On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 05-cr-00274) District Judge: Honorable David S. Cercone.
The opinion of the court was delivered by: Aldisert, Circuit Judge.
Before: SLOVITER, FUENTES and ALDISERT, Circuit Judges.
William J. Morena appeals from the judgment on a verdict of the United States District Court for the Western District of Pennsylvania finding him guilty of being a felon in possession of a firearm and possessing that firearm, an unregistered sawed-off shotgun with a barrel of less than eighteen inches in length. Morena also appeals the enhancement of his sentence for possession of a firearm in connection with another felony. We are asked to decide whether: (1) the government's injection into the trial of extensive evidence of uncharged drug use and transactions by Morena, as well as evidence of Morena's prior non-felony convictions, amounted to prosecutorial misconduct and plain error; (2) the District Court exceeded its discretion in admitting evidence of Morena's drug use and dealing for the purpose of showing background and motive; (3) Morena's Sixth Amendment right to counsel was violated because his attorney faced possible obstruction of evidence charges for actions in the case and thus acted under an actual conflict of interest; and (4) the District Court erred by applying a four-point sentencing enhancement for possession of a firearm in connection with another felony, based on uncharged evidence of drug dealing.*fn1 We conclude that the government's repeated injection of prejudicial drug evidence into the trial testimony constituted prosecutorial misconduct resulting in a denial of due process and that the District Court plainly erred in allowing introduction of the quantum of this evidence. We will reverse and remand for a new trial.
Federal prosecutors have a special and solemn duty to refrain from improper methods of obtaining a conviction. "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). As such, a prosecutor "may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones." Id.
Improper prosecutorial conduct rises to the level of constitutional error "when the impact of the misconduct is to distract the trier of fact and thus raise doubts as to the fairness of the trial." Marshall v. Hendricks, 307 F.3d 36, 67 (3d Cir. 2002). The test for prosecutorial misconduct is whether the conduct "'so infected the trial with unfairness as to make the resulting conviction a denial of due process'" in light of the entire proceeding. Id. at 64 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In conducting this analysis, this Court assesses the prosecutor's improper actions, the weight of properly admitted evidence and any curative instructions given by the trial court. Moore v. Morton, 255 F.3d 95, 112-113 (3d Cir. 2001).
A Rule 404(b) Federal Rules of Evidence analysis guides our determination that the government's systematic injection of evidence of drug use and dealing by Morena into the trial constituted prosecutorial misconduct in violation of due process.*fn2 For prior "bad acts" evidence to be admissible, the Supreme Court has directed that (1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the court must instruct the jury to consider the evidence only for the limited purpose for which it is admitted. Huddleston v. United States, 485 U.S. 681, 691-692 (1988). Admission of bad acts evidence must be carefully scrutinized because, "[a]lthough the government will hardly admit it, the reasons proffered to admit prior-bad-act evidence may often be a Potemkin, because the motive, we suspect, is often mixed between an urge to show some other consequential fact as well as to impugn the defendant's character." United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992).
In this case, police found a sawed-off shotgun concealed in a heating duct of Morena's home during a warranted search. Informant Dale Palmer claimed to have twice seen Morena with the shotgun and provided probable cause for the search by conducting a "controlled buy" of crack cocaine from Morena. Morena was never charged with any drug offenses. In pretrial conference, the government contended that some discussion of drugs was necessary for background and that it would show that Morena possessed the shotgun to protect a drug dealing enterprise. App. 60. The District Court cautioned about the prejudicial danger in admitting drug evidence, but ruled that drug evidence was admissible for motive and was relevant "to the presentation of facts as they had occurred." Id. at 75.
However, the government repeatedly exceeded its pretrial proffer, systematically injecting inadmissible drug evidence into the two-day trial. The record reveals that, time and again, the government introduced prejudicial drug evidence with no proper purpose under Rule 404(b). Over the two-day trial, the District Court declared at least five times that the government's use of drug evidence was "too prejudicial" or warned the prosecutor that the prejudice from the drug evidence outweighed its probative value. Nevertheless, the District Court ultimately failed to prevent the rampant injection of inadmissible evidence into the trial and its single limiting instruction to the jury was inadequate to cure the prejudice.
The government's misconduct started as soon as it called its first witness. The prosecutor elicited detailed testimony about heroin dealing not connected to Morena and was warned by the Court at sidebar to go no further. See App. 131-132 ("[A]ll of this detail and this coverage of this drug transaction is unnecessary and prejudicial. . . . [Y]ou've laid your background for it. I think you got in what you needed to. I think you should move on."). The government disregarded this direction from the District Court. Immediately thereafter, it elicited testimony about a 500-bag heroin transaction for which Morena was not ever charged or connected. Id. at 139. The District Court admonished the government again, and gave its only limiting instruction--a reminder to the jury to keep in mind that this was not a drug case. Id. at 140.
The government continued to cross the line with improper drug evidence in the face of explicit prohibition by the District Court. When Morena sought to establish his defense that George Mushinsky, the registered owner of the shotgun, had lived in Morena's house and concealed the shotgun there while Morena was incarcerated for a probation violation, the government asked Morena's wife on cross-examination how many times her husband had violated probation by failing urine tests for drugs. Then, on cross-examination of Morena's mother, the government asked, "How long has [Morena] been a drug user?", prompting the District Court to again warn, "Come on. Let's move on, please." Id. at 340. The government's next question was, "And you never talked to him about his drug use?", upon which the defense objected. Id. At sidebar, the District Court refused to ...