United States v. Murray

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

1-3-1997

United States v. Murray
Precedential or Non-Precedential:

Docket 96-7072

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 96-7072
____________

UNITED STATES OF AMERICA

v.

MICHAEL MURRAY,
Appellant
____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 92-00200-04)
____________________

Argued: August 12, 1996
Before: GREENBERG and ALITO, Circuit Judges,
and FISHER, Senior District Judge *

(Opinion Filed: January 3, 1997)
____________________

OPINION OF THE COURT

DAVID A. RUHNKE (Argued)
RUHNKE & BARRETT
47 Park Street
Montclair, NJ 07042

Attorney for Appellant

DAVID M. BARASCH
UNITED STATES ATTORNEY

WILLIAM A. BEHE (Argued)
Assistant U.S. Attorney
Federal Building
228 Walnut Street
Harrisburg, PA 17108

Attorneys for Appellee

* The Honorable Clarkson S. Fisher, Senior United States
District Judge for the District of New Jersey, sitting by
designation.
ALITO, Circuit Judge:

Appellant Michael Murray was convicted following a jury

trial of an intentional killing in furtherance of a continuing

criminal enterprise ("CCE") in violation of 21 U.S.C. §

848(e)(1)(A); conspiracy to distribute in excess of five

kilograms of cocaine in violation of 21 U.S.C. §§ 846 and

841(a)(1); and distribution of and possession with intent to

distribute cocaine in violation of 21 U.S.C. § 841(a)(1). In

this appeal, Murray argues that the district court erred in (1)

admitting testimony under Fed. R. Evid. 404(b) and 403 that he

had committed a murder not charged in the indictment; (2)

admitting under Fed. R. Evid. 608 evidence supporting the

credibility of the only testifying eyewitness to the events

immediately preceding the charged murder; (3) denying Murray’s

motion to excuse for cause a juror who had read a newspaper

article about the case; and (4) denying Murray’s motion to

suppress the testimony of a jailhouse informant. We hold that

the district court erred under Fed. R. Evid. 404(b) and 403 in

admitting testimony about the uncharged murder and in admitting

evidence about specific instances of conduct supporting the

credibility of the eyewitness, in contravention of Fed. R. Evid.

608(b). We conclude that these errors require reversal of

Murray’s murder conviction but that they are harmless with

respect to his convictions on the other charges.
 I.

Murray was indicted and arrested in August 1992. (App.

13) The superseding indictment on which he was tried alleged that

Murray (whose "street name" was "Solo") and co-defendants

Jonathan Ray Bradley ("Fresh" or "Johnny Fresh") and Emanuel

Harrison ("Paradise") intentionally killed Juan Carlos Bacallo on

January 28, 1992, while engaging in and working in furtherance of

a drug distribution CCE. (App. 64) Bradley was alleged to be the

leader of the drug ring, which imported cocaine from New York

City in cookie boxes for sale in the 1400-1600 block of Market

Street in Harrisburg. (App. 65-66)

In August 1993, the government filed notice that it

would seek the death penalty against Murray. (App. 73-75) See

United States v. Bradley, 880 F. Supp. 271 (M.D. Pa. 1994)

(addressing death penalty issues). In June 1994, on the last day

scheduled for jury selection, the parties informed the court that

they had reached a plea agreement, and two days later, Murray,

Bradley, and Harrison entered guilty pleas. (App. 88, 107-11)

Murray’s plea agreement was designed to result in an offense

level of 40 (a base offense level of 43 with a three-level

reduction for acceptance of responsibility), which would have

produced a sentence in the neighborhood of 25 years’

imprisonment, and the agreement provided that he could withdraw

the plea if for any reason his offense level was ultimately

calculated to be higher than 40. (App. 108). Because the

3
district court judge did not believe that Murray was entitled to

a reduction for acceptance of responsibility due to his failure

to show remorse, she held that Murray’s offense level would be

43, which would have required a life sentence. (App. 50) Murray

then moved to withdraw his plea, and the court granted the

motion. (App. 52) Murray sought reconsideration of the death

penalty authorization, and a few days before jury selection was

scheduled to begin, the government advised that the Attorney

General had withdrawn that authorization. (App. 337). Before

this time, the government had been planning to use testimony

concerning the uncharged murder during the sentencing phase as

part of its argument in favor of the death penalty, but after the

death penalty authorization was withdrawn, the government decided

to attempt to introduce this testimony during the guilt phase of

Murray’s trial. See Govt. Br. at 33 n.2. (App. 78, 85).

Murray's trial lasted four days. The government

offered strong evidence concerning his drug distribution

activities, and we will not recount that evidence here. However,

because of its relationship to Murray's two key evidentiary

arguments, we will summarize the evidence relating to the murder.

The government presented evidence that Bacallo, the murder

victim, had been working for Bradley’s drug ring as a street-

level dealer and that he owed Bradley money for drugs he had been

"fronted." (App. 786). Marguerite King, Bacallo’s girlfriend,

testified that a week before he was murdered Bacallo approached

4
Bradley to inform him that he was quitting the drug business and

that Bradley responded by pointing a sawed-off shotgun at

Bacallo’s head and telling him that "once you are in this

business, you never get out." (App. 787, 791) King admitted that

she had lied to the police when she was questioned shortly after

the murder, explaining that she had been afraid to tell the truth

because Harrison was with her. (App. 788-89)

Jay Williams testified that on the night of the murder,

Bacallo, Harrison, and he went to a bar even though Bacallo did

not want to go. (App. 803-04) Williams said that he and Harrison

asked Bacallo if the reason he did not want to go the bar was

because "you don’t got Fresh’s money," but Bacallo denied this.

(App. 803-04) Williams testified that inside the bar Bradley and

Murray "smack[ed]" Bacallo repeatedly and that Bacallo, Bradley,

Murray, and Harrison left the bar and got into a taxicab because,

as Bacallo said, "[t]hey want me to do something for them."

(App. 805-06) Williams admitted that at the time he testified he

was incarcerated for drug trafficking, that he had lied shortly

after the murder when he gave the police a statement (in which he

denied any knowledge of the anything relating to the murder), and

that he had been smoking marijuana and drinking alcohol on the

night of the murder. (App. 799, 807, 811-12)

Richard Brown, a taxicab driver who was "friends" with

Murray, testified that he picked up Bacallo, Murray, and Harrison

(but not Bradley) in his cab on January 28, 1992, and that, at

5
Murray's direction, he drove them to a deserted part of State

Farm Road in Susquehanna Township. (App. 717-19) He gave the

following account of what happened next. Murray told Brown to

pull over and instructed Bacallo to get out of the car because

"he was going to make him walk." (App. 719) Harrison, whom Brown

had noticed was carrying a sawed-off shotgun beneath his coat,

remained in the car. (App. 719) Shortly after Murray and Bacallo

walked away from the car, Brown heard gunshots. (App. 720) A few

seconds later, Murray got back into the car, carrying a .45

caliber pistol, and said something to the effect of "that is what

someone gets for being in violation." (App. 720) "[S]cared as

hell," Brown drove Murray and Harrison back into town and then

returned home. (App. 721-22) When he got home, Brown told

Stephanie Stewart, with whom he was living at the time, what had

happened. (App. 722)

Brown admitted that he had been working as an informant

for the Harrisburg Police Department at the time of the murder,

but that he had not reported what he had seen in the early

morning of January 28, 1992, until July or August of that year.

(App. 723) Brown explained that he waited so long "[b]ecause

quite frankly, I was afraid, not only for myself, but for the

people I cared about the [sic]. My mother was dying of cancer.

I didn’t want any accidents to happen to any of them. I cared

about my children." (App. 723) Brown admitted that he had been

using marijuana and cocaine for 27 years and that he had been

6
convicted of cocaine possession and theft of services. (App.

725)

Stewart testified that when Brown returned home the day

of the murder he told her that "I just saw Solo kill someone."

(App. 767-68) She stated that when she read about the murder in

the newspaper she asked Brown, "Is this what you were talking

about?" and that he replied in the affirmative. (App. 776)

After Murray cross-examined Brown, the government

called Lt. John Goshert, a Harrisburg police officer, to testify

in support of Brown’s reliability. Murray objected to Goshert’s

testimony on the ground that "the character of [Brown] for

truthfulness" had not been "attacked by opinion or reputation

evidence or otherwise," Fed. R. Evid. 608(a), and that even if it

had, Lt. Goshert’s testimony violated Fed. R. Evid. 608(b)’s

proscription on proof of specific instances of conduct by

extrinsic evidence. (App. 822, 826-29) The court overruled

Murray’s objection. (App. 829)

Lt. Goshert testified that, as the officer in charge of

the Harrisburg police drug enforcement unit, he had utilized

Brown as a confidential informant since 1988. (App. 834-36) Lt.

Goshert stated that in his opinion Brown was "extremely reliable"

in providing accurate information. (App. 836) Lt. Goshert

explained that the Harrisburg police had "made" "[i]n excess of

65" cases and had obtained "numerous" search warrants as a result

of Brown’s services as an informant. (App. 836)

7
 Robert McCallister, a Susquehanna police officer,

testified that he discovered Bacallo’s body on the morning of

January 28, 1992, and found seven shell casings nearby. (App.

648, 651-52) James Rottmund, a ballistics expert, testified that

all seven casings were from the same .45 caliber gun and that the

shots were fired from a distance of at least five feet. (App.

683-84) Dr. Isadore Mihalakis, a medical examiner, testified that

Bacallo had suffered eight gunshot wounds: one to the right

thigh, three to the right buttock, two to one hand, one to the

other wrist, and one to the head. (App. 702-05, 707) Dr.

Mihalakis testified that all eight wounds (which, he said, might

have been caused by seven shots) were inflicted from behind, that

the shot to the head was the final one, and that it occurred with

Bacallo in a prone position. (App. 705, 710) He concluded that

the manner of death was homicide. (App. 713)

Randy Drawbaugh and Sean Proffit, both jailhouse

informants, testified as well. Drawbaugh testified that Murray

had told him that "he shot a guy named Carlos" because "Carlos"

owed him money. (App. 851-52) Proffit testified that Murray told

him that he was going to "get" all of the witnesses against him

when he was released from jail and, in particular, that "there

was a certain witness named Juice [Xenophon Singleton] that he

was going to get and throw his baby off the roof of a building."

8
 (App. 870) Drawbaugh and Proffit were impeached with their

criminal records.1

Murray’s Rule 404(b) and 403 arguments are based on the

testimony of Jemeke Stukes ("Quest"). Stukes testified that,

while in New York City, he met Bradley, who introduced him to

Murray. In August 1991, Stukes said, he went to Harrisburg to

sell cocaine at Bradley’s invitation. (App. 463-64) Stukes was

indicted and arrested at the same time as Murray and pled guilty

in January 1993 to conspiracy to distribute cocaine, for which he

was sentenced to 24 months’ imprisonment. (App. 19, 449) At

the time of Murray’s trial, Stukes had recently completed a

combined 38 months of imprisonment on the federal conviction and

related state charges. (App. 446-50) Stukes testified that

Murray committed an uncharged murder in New York City in 1991.

According to Stukes, in the middle of August 1991, "[a] guy by

the name of Howie came by Mr. Bradley’s store in Manhattan and

said his little cousin was having problems with this guy,"

referring to a dispute over drug territory. (App. 457) Bradley

told Howie that "me and Solo will take care of it," and he asked

Stukes to "go along." (App. 457) Stukes explained that "Fresh

[Bradley] had me go along to see how his reputation is

established because, you know, he has a rep in New York as being

1
1. Prior to trial, Murray had moved to exclude Proffit’s
testimony on the ground that Proffit’s conversation with him
violated Massiah v. United States, 377 U.S. 201 (1964), but after
a pretrial hearing, the court denied the motion. (App. 412)

9
a shooter, and, you know, a fairly large drug dealer." (App.

458) On a Sunday afternoon, "Howie" drove Bradley, Murray, and

Stukes in a van to a housing project at 169th Street and

Washington Avenue in the Bronx to look for a "heavy-set"

Panamanian man. (App. 459) Stukes testified that Bradley and

Murray wrapped their faces in towels so that only their eyes were

visible and that all three of them left the van while Howie

remained in it. (App. 459) Then, according to Stukes, "Solo

[Murray] went up to the guy" while "Fresh [Bradley] stood across

the street." (App. 459) Stukes testified that "Solo went up to

the guy and pumped four slugs in his chest. And as he was

running back towards the van, Fresh, you know, had his gun out

and he sprayed the building, you know, fired shots at the

building because there was people standing out there." (App.

460) Stukes fled the scene in a taxicab and did not report the

incident to the police. (App. 461, 463) Shortly thereafter,

Stukes went to Harrisburg with Bradley and Murray.

A New York City Housing Police report shows that a man

named Jorge Tesis was shot and killed on Sunday, July 21, 1991,

at the location indicated by Stukes. (App. 328) Two other

individuals were also shot but were not seriously injured. (App.

328) The report describes the alleged perpetrator as a 5'8" tall

20-year old; Murray was 18 or 19 years old at the time and is 6'

tall. (App. 328, 822) According to the report, a "witness states

10
male walked up to [the victim] and opened fire with a gun

striking victim in the stomach and chest." (App. 329)

Murray was convicted on all counts. (App. 57) A

sentence of life imprisonment was imposed, and Murray appealed.

II.

Murray challenges the admission of Stukes’ testimony

under both Fed. R. Evid. 404(b) and Fed. R. Evid. 403. We

address his Rule 404(b) argument first.

A. As a general rule, "all relevant evidence is

admissible," Fed. R. Evid. 402, and evidence is "relevant" if its

existence simply has some "tendency to make the existence of any

fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence." Fed. R. Evid. 401. However, Rule 404(b)

restricts the admission of one category of relevant evidence.

Rule 404(b) provides in part as follows:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of the person in order to show that
he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.

Thus, in order for "[e]vidence of other crimes, wrongs, or acts"

to be admissible, it must be relevant to prove something other

than "the character of the person in order to show that he acted

in conformity therewith." In this case, therefore, Rule 404(b)

11
barred Stukes' testimony if it was relevant only to permit the

jury to infer that Murray had a homicidal character and that this

character found expression in the murder of Bacallo. But if

Stukes' testimony was relevant to prove anything else, Rule

404(b) did not preclude its admission. On appeal, Rule 404(b)

rulings "may be reversed only when they are clearly contrary to

reason and not justified by the evidence." United States v.

Balter, 91 F.3d 427, 437 (3d Cir. 1996)(quotation omitted). See

also United States v. Himelwright, 42 F.3d 777, 781 (3d Cir.

1994).

The admission of evidence that is allowed by Rule

404(b) is not disfavored, but trial judges need to exercise

particular care in admitting such evidence. This is so for at

least two reasons. First, the line between what is permitted and

what is prohibited under Rule 404(b) is sometimes quite subtle.

Second, Rule 404(b) evidence sometimes carries a substantial

danger of unfair prejudice and thus raises serious questions

under Fed. R. Evid. 403. Therefore, it is advisable for a trial

judge to insist that a party offering Rule 404(b) evidence place

on the record a clear explanation of the chain of inferences

leading from the evidence in question to a fact "that is of

consequence to the determination of the action." Fed. R. Evid

401. And it is likewise advisable for the trial court to place

on the record a clear explanation of the basis for its ruling on

the admission of the evidence. Not only do these procedures help

12
to ensure that sensitive Rule 404(b) rulings are made with care

(and thus to diminish the likelihood that these rulings will

result in reversals), but these procedures greatly assist the

process of appellate review. Consequently, although the language

of Rule 404(b) does not require such procedures, our cases have

emphasized their usefulness. See Himelwright, 42 F.3d at 782;

United States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992).

Unfortunately, these procedures were not followed here.

The government never provided a clear explanation on the record

of the chain of inferences on which it was relying.2 Its best

explanation appears to have occurred at the charge conference,

2. The government contends that Murray never objected under Rule
404(b) or Rule 403 to the introduction of Stukes’ testimony.
However, it appears to us that Murray did raise both of these
issues. The court opened the August 10, 1995 hearing by making
its Rule 403 ruling (App. 377), which indicates that Murray had
argued this point in chambers. In addition, Murray repeated the
objection on the record, if somewhat obliquely. See App. 382
("Your Honor, I would also point out that as the Court has noted,
it is highly prejudicial.") Shortly thereafter, the government
referred to the court’s off-the-record discussion of the Rule 403
issue. (App. 385) At an August 14 hearing, Murray’s counsel
noted that "[m]ost of my argument on the 404(b) material, the New
York murders, was said in chambers off the record." (App. 818)
Later, when the court asked Murray’s counsel to draft a limiting
instruction for Stukes’ testimony, he replied that "I am not
quite sure what the relevance was, and it was my contention that
it was not relevant." (App. 820) While it is true that much of
Murray’s ire with respect to Stukes’ testimony was directed at
the fact that he did not receive notice that it would be used in
the government’s case-in-chief until the day before trial
(because of the government’s last-minute change in strategy
precipitated by the withdrawal of the death penalty
authorization), we are satisfied that Murray made it sufficiently
clear that he was objecting to its relevance under Rule 404(b)
and to its unfair prejudicial effect under Rule 403. Fed. R.
Evid. 103(a). Cf. United States v. Long, 574 F.2d 761, 766 (3d
Cir.), cert. denied, 439 U.S. 985 (1978).

13
when the prosecutor stated that Stukes’ testimony "wasn’t just

[offered for] identity. Role in the organization, common scheme,

plan, a number of different reasons." (App. 957) The

prosecution provided no further explanation beyond these

conclusory statements, and the district court similarly gave

little explanation for its ruling admitting this highly sensitive

evidence. The district court's most complete on-the-record

explanation appears to have occurred during the charge to the

jury when it said only that the evidence was admitted "for the

very limited purpose to show identity, role in the conspiracy, a

common scheme or plan," and cautioned that it was not admissible

to prove character. (App. 995-96) We have searched the record

but have been unable to find anything other than these conclusory

assertions to support the admission of Stukes’ testimony

regarding the uncharged New York murder.

We have examined each of the grounds offered by the

prosecution and accepted by the trial judge for the admission of

this testimony, and even under the highly deferential standard of

review that we generally apply to a trial judge's Rule 404(b)

rulings, we believe that the admission of this evidence was

improper. The government’s principal Rule 404(b) argument seems

to be that Stukes’ testimony was relevant to show Murray’s role

in the conspiracy. While the government's brief does little to

flesh out this argument, we perceive the argument to run as

follows: Murray murdered the victim in New York City at the

14
behest of the CCE charged in the indictment; from this fact, the

jury could infer that Murray was the CCE's designated "shooter";

and from this fact, the jury could infer that the shooting of

Bacallo, which was committed in the interests of the Bradley CCE,

was performed by Murray.

This theory, however, is undermined by the absence of

any evidence that the New York murder about which Stukes

testified was in any way related to the charged CCE. On the

contrary, it appears from Stukes’ testimony that the murder arose

out of a dispute between the cousin of a friend of Bradley’s

("Howie") and the New York victim over drug sales in New York

City. The government has not directed our attention to any

evidence that Howie, his cousin, or the New York victim were

involved in the CCE described in the indictment or that the

dispute with the New York victim had anything to do with the

activities of that CCE, whose drug sales took place in

Harrisburg. (App. 65-66) Thus, evidence that Murray was a

triggerman in the New York murder does not tend to show that he

performed the same role in the Harrisburg CCE, and consequently

this evidence does not seem to be admissible under Rule 404(b) to

show his role in the charged CCE.3

3. The government might conceivably have argued, not that the
New York murder showed that Murray played the role of the CCE's
designated killer, but that he played the role of Bradley's
personal killer. But even if the government had made this
argument, the legitimate probative value of this evidence would
have been substantially outweighed by the danger of unfair
prejudice for essentially the reasons set out in part IIB of this
opinion.

15
 The absence of evidence that the New York murder was

related to the CCE charged in the indictment also dooms the

government's argument that evidence of the New York murder was

admissible because it and Bacallo’s murder were committed on the

basis of a common plan or scheme. As we explained in Government

of the Virgin Islands v. Pinney, 967 F.2d 912, 916 (3d Cir.

1992), "[o]rdinarily, when courts speak of ‘common plan or

scheme,’ they are referring to a situation in which the charged

and the uncharged crimes are parts of a single series of events."

In this case, there is no evidence that the two killings were

planned together or that they involved a common design. Cf.

United States v. Baker, 82 F.3d 273, 276 (8th Cir. 1996)

(admitting evidence that the defendant police officer had

previously employed a "remarkably similar" extortion scheme in

which "a motorist is stopped for speeding, a firearm is

discovered, and the motorist is given the choice of facing

charges or ‘working it out’ with Baker").4

4. The same is true with respect to the government's suggestion
on appeal that evidence of the New York murder was admissible to
establish the existence of the charged CCE and Murray's
membership in it. See Govt. Br. at 29. Since there was no
evidence that the New York murder was committed as part of the
charged CCE, Murray's commission of that murder does not tend to
show either the existence of that enterprise or Murray's
membership.

Another related argument advanced by the government on appeal
is the contention that the New York murder showed Murray's motive
for the Bacallo murder, "that is to advance the interests of the
Continuing Criminal Enterprise." Govt. Br. at 35. Apparently,
the government's theory is that the New York murder was relevant
to show Murray's membership in the CCE and thus to show that he
had a motive for the Bacallo killing, which furthered the CCE's

16
 We also see no merit in the government's argument in

the district court that proof of the New York murder was

admissible to prove "identity" because that murder was "a

signature killing" and because Bacallo’s murder bore the same

signature. (App. 820) "The evidence concerning the manner in

which the two alleged crimes were committed here was neither

sufficiently detailed nor significantly unusual to permit any

inference that the perpetrator of the second [crime] was the same

perpetrator of the first." Pinney, 967 F.2d at 916. The New

York murder was committed during the day on a public street at

the spot where the victim was found. The shooting occurred in

the presence of bystanders, some of whom were apparently hit.

Two gunmen participated. By contrast, the Harrisburg murder

occurred at night in a secluded spot to which the victim was

taken. There were no innocent bystanders, and it appears that

only one gun was used.5
(..continued)
interests. But the lack of evidence linking the New York murder
to the CCE is fatal to this theory.

5. On appeal, the government advances the apparently new
argument that evidence of the New York murder was admissible to
refute in advance a claim that Murray had made in a letter to the
district court after the sentencing hearing that followed his
abortive guilty plea. At that time, Murray claimed that Bacallo
had lunged at him prior to the shooting, and the government
maintains that evidence of the New York murder was relevant to
show that the Bacallo killing was not accidental and was not
committed in self-defense. Govt. Br. at 29-30. The government
further argues that it "did not have to wait for rebuttal to
offer this evidence." Id. at 30. Murray, however, did not
testify, and the government does not claim that the defense ever
suggested to the jury that the Bacallo murder was accidental or
that it occurred in self-defense. Moreover, the government
itself notes that the theory that the killing was accidental or

17
 In sum, we do not believe that any of the grounds

advanced by the prosecution and accepted by the district court at

trial can justify the admission of the evidence of the New York

murder under Rule 404(b).

B. Moreover, even if this evidence had some relevance

to show something other than that Murray has a homicidal

character, this relevance was so slight and the potential for

unfair prejudice was so great that Fed. R. Evid. 403 demanded the

exclusion of the evidence.

Rule 403 provides in pertinent part that "[a]lthough

relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice

. . . ." We review a Rule 403 ruling for abuse of discretion

unless the district court failed to explain its ruling and "its

reasons for doing so are not otherwise apparent from the record."

Himelwright, 42 F.3d at 781.

In this case, the district court's on-record

explanation for its ruling was minimal. It appears that the

district court conducted virtually all of its Rule 403 discussion

off the record in chambers and that the sum total of its on-

record treatment of the issue is the conclusory statement that

(..continued)
in self-defense "was in stark contrast to the . . . nature of
Bacallo's wounds." Id. at 9. Thus, without any suggestion by
the defense that the killing was accidental or occurred in self-
defense, it is questionable whether the New York killing was
relevant, and in any event its probative value to show absence of
accident or self-defense was undoubtedly negligible.

18
"[t]he Court recognizes that it is prejudicial, but it is also

highly probative." (App. 377) When the record does not contain

an adequate explanation of a trial judge's Rule 403 ruling, a

remand for clarification may be appropriate, but here we see no

reason for a remand, because we see no basis on which the

admission of the evidence in question could be sustained. Cf.

United States v. Sriyuth, 98 F.3d 739, 744 n.8 (3d Cir. 1996)

("We take this occasion, once again, to remind the district

courts of their obligation to perform this weighing process on

the record. Although we are able to perform this balancing here,

other cases may require remand to the court for such proceedings

or even for a new trial.").

It should go without saying that evidence in a murder

trial that the defendant committed another prior murder poses a

high risk of unfair prejudice. Stukes' testimony concerning the

uncharged New York murder informed the jury that Murray had shot

at point-blank range a man with whom he had no personal conflict

and whom he appears not to have even known. Evidence would have

to possess significant probative value to avoid being

substantially outweighed by the grave danger of unfair prejudice

that this testimony carried.

In the previous section of this opinion, we reviewed

all of the government's arguments as to how the evidence of the

New York murder was relevant to prove something other than

Murray's homicidal character, and we concluded that this evidence

19
was not even relevant to show any of the permissible things

mentioned by the government or the district court at trial. But

even if the evidence of the New York murder had some relevance

under one or more of these theories, its legitimate probative

value was unquestionably slight. We will now again discuss all

of the government's theories, but we will add a few comments

about the government's best theory, i.e., that the proof of the

New York murder was relevant to show Murray's role in the CCE.

As we previously noted, the government's theory

apparently is that the evidence of the New York murder was

relevant to show that Murray played the role of the CCE's killer,

that the Bacallo murder was committed to serve the CCE's

interests, and that therefore it could be inferred that Murray

committed that murder. Even if there were some slight evidence

that the New York murder was connected with the CCE charged in

the indictment, the probative value of the testimony regarding

the New York murder to show that Murray committed the Bacallo

murder would still be small. Under the government's theory, the

probative value of the evidence of the New York murder depends on

the uniqueness of Murray's role as the CCE's "shooter." The

events surrounding the New York murder, however, as recounted by

Stukes, do not show that Murray played the unique and distinctive

role of the CCE's killer. On the contrary, Stukes testified

that Bradley "has a rep in New York as being a shooter,"

explained that Bradley brought him along to see how Bradley

20
established that reputation, and testified that Bradley "sprayed

the building" with gunfire. (App. 458, 460) Accordingly, the

testimony regarding the New York murder suggested at most that

Murray was a shooter, not the shooter. Unless there were

significant evidence linking the New York murder to the CCE,

Stukes' account of the New York murder would appear to have

little legitimate probative value.6 Accordingly, we hold that

the district court abused its discretion in concluding that any

legitimate probative value possessed by this evidence was not

substantially outweighed by the danger of unfair prejudice.

We are unable to conclude that the district court’s

Rule 404(b) and Rule 403 errors were harmless in relation to the

murder charge. In order to do so, we would have to be persuaded

that it is "highly probable that the evidence . . . did not

contribute to the jury’s judgment of conviction." Government of

Virgin Islands v. Archibald, 987 F.2d 180, 187 (3d Cir. 1993)

(quoting United States v. Schwartz, 790 F.2d 1059, 1062 (3d Cir.

1986)). While the jury might have convicted Murray of the murder

without relying on Stukes’ testimony, we do not believe that the

other evidence against him was so overwhelming as to render that

conclusion "highly probable." There was only one eyewitness, and
6. On redirect examination, Stukes was asked, "What was Mr.
Murray’s role or function or reputation in your crew?" and Stukes
responded that he was "[j]ust a shooter." (App. 522-23) The
parties have not addressed the question whether this testimony,
as opposed to Stukes' testimony concerning the New York murder,
was properly admitted, and we therefore do not reach that
question here.

21
the jury might well have discounted or discredited his testimony

based on his delay in reporting what he knew and his extensive

history of drug use. Furthermore, as explained below, his

credibility was improperly bolstered with testimony that was

proscribed by Fed. R. Evid. 608. Many of the government’s other

witnesses were similarly impeached on the basis of

inconsistencies in their stories, their interest in cooperating

with the prosecution, and their own drug use. Moreover, in its

closing argument, the government emphasized Stukes’ testimony.

The prosecutor said:
[Stukes] was present in July of 1991 when this defendant gunned
down an individual in New York, participated in a
murder with Jonathan Ray Bradley of a drug dealer over
drugs. Doesn’t that help establish that this defendant
was part of this conspiracy whose role as Stukes said
was the shooter, whose favorite weapon was a .45?

This is not the trial of that incident in New York. This is not
that trial. That evidence is offered to establish the
reliability of all of the other information
establishing this defendant as the killer of Juan
Carlos Bacallao [sic] in this case. And if you credit
that testimony of Stukes, doesn’t that help establish
that this defendant is in fact a killer, the shooter,
the executioner of Juan Carlos Bacallao [sic]?

App. 915-16 (emphasis added).

We cannot disregard the possibility that the evidence

of the New York murder "weigh[ed] too much with the jury and . .

. so overpersuade[d] them as to prejudice one with a bad general

record and deny him a fair opportunity to defend against a

particular charge." United States v. Sampson, 980 F.2d 883, 886
(3d Cir. 1992) (quoting Michelson v. United States, 335 U.S. 469,

22
476-76 (1948)). We are thus constrained to reverse the judgment

of conviction as to the murder charge contained in count two and

to remand for a new trial on that charge to be conducted without

evidence of the New York murder. In contrast, we believe that

the erroneous admission of Stukes' testimony was harmless with

respect to the drug charges contained in counts three and six of

the superseding indictment. Murray's argument on appeal focuses

exclusively on the murder conviction, and it is with respect to

that charge that the jury could have been improperly influenced

by Stukes' testimony; while evidence that Murray was a murderer

might have contributed to his conviction for murder, such

evidence is unlikely to have persuaded the jury that Murray was

guilty of the drug charges. Moreover, the government presented

substantially stronger evidence in support of the drug charges

than in support of the murder charge, including testimony by many

individuals who participated in the CCE or who were associated

with participants as well as by a Harrisburg police officer who

had made an undercover purchase of cocaine from Murray. We

therefore conclude that it is "highly probable," Archibald, 987

F.2d at 187, that Stukes' testimony did not contribute to the

jury's conviction of Murray on the drug charges.

III.

Murray argues that the admission of the testimony of

Lt. John Goshert of the Harrisburg police department contravened

23
Fed. R. Evid. 608. Murray timely and clearly objected to Lt.

Goshert’s testimony. (App. 826-28) In relevant part, Rule 608

provides:
(a) The credibility of a witness may be . . . supported by
evidence in the form of opinion or reputation, but
subject to these limitations . . . (2) evidence of
truthful character is admissible only after the
character of the witness for truthfulness has been
attacked by opinion or reputation evidence or
otherwise.

(b) Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness’
credibility . . . may not be proved by extrinsic
evidence.

Murray’s first argument is that Brown’s character for

truthfulness was not "attacked by opinion or reputation evidence

or otherwise." We disagree. It is true that Murray did not

present any opinion or reputation evidence to impeach Brown, but

Murray’s counsel performed an extended and vigorous cross-

examination of Brown that exposed Brown’s various illegal and

sordid activities. Murray’s counsel questioned Brown about his

long-standing and heavy drug use, his acquaintance with many

Harrisburg drug dealers, his apparent under-the-table tax-free

compensation for his work as an informant, his convictions for

drug possession and theft of services, his unlawful carrying of

an unlicensed firearm, his concealment of his drug use from his

friend and contact in the Harrisburg police department, and his

prior inconsistent statements to the grand jury. (App. 730-61)

In view of this questioning, the opinion or reputation testimony

given by Lt. Goshert fell within the language of Rule 608(a)(2)

24
permitting the introduction of such evidence to support a

witness’ credibility when his character for truthfulness has been

"otherwise" attacked. See, e.g., United States v. Dring, 930

F.2d 687, 692 (9th Cir. 1991), cert. denied, 506 U.S. 836 (1992);

Fed. R. Evid. 608(a), Advisory Committee Notes ("evidence of

misconduct, including conviction of crime," permits

rehabilitation).

Murray’s more persuasive argument is founded upon Rule

608(b)’s prohibition on proving specific instances of a witness’

conduct by extrinsic evidence. Once Brown’s character for

truthfulness was attacked by Murray’s counsel, the government was

entitled to attempt to rehabilitate Brown by calling a witness to

give opinion or reputation testimony as to Brown’s character for

truthfulness. But the government was not entitled to present

"extrinsic evidence" of "specific instances" of Brown’s conduct

"for the purpose of . . . supporting [his] credibility." Fed. R.

Evid. 608(b). Lt. Goshert’s testimony was as follows:
Q. Lieutenant Goshert, do you know an individual by the name of
Richard Brown?

A. Yes, I do.

Q. Have you ever used Mr. Brown as a confidential informant?

A. On numerous occasions, the Harrisburg Police has utilized him.

Q. As a result pf [sic] your using Richard Brown as a
confidential informant, have you made any cases?

A. Yes, we have.

Q. Do you have an idea of approximately how many?

A. In excess of 65. 65, 66 something like that.

25
Q. And search warrants, have you obtained search warrants based
on his information?

A. Yes, we have numerous times.

Q. How long a period of time have you been dealing with Mr.
Brown?

A. Since 1988.

Q. Based on your dealings with Mr. Brown and the cases you said
that he has made, can you give us your opinion as to
his reputation for being a reliable individual?

A. He is extremely reliable.

Q. In terms of the accuracy of the information?

A. Yes.

App. 835-36.

This testimony, in our view, included "extrinsic

evidence" of Brown’s character for truthfulness. United States

v. McNeill, 887 F.2d 448, 453 (3d Cir. 1989)("Extrinsic evidence

is evidence offered through other witnesses rather than through

cross-examination of the witness himself or herself."), cert.

denied, 493 U.S. 1087 (1990). Murray argues that Lt. Goshert’s

quantification of the cases that Brown had "made" constituted

evidence of "specific instances" of Brown’s conduct and thus

should have been excluded under Rule 608(b). The government

contends that Lt. Goshert’s testimony was proper as foundation

for his opinion as to Brown’s character for truthfulness. In

support of the admission of Lt. Goshert’s testimony in the

district court, the government argued that "[t]here has got to be

some basis for the jury to know how he can give that opinion as

26
to his reputation. And by letting the jury know they have a

close working relationship over a period of time and that they

have been involved in all of these incidents, then there is a

basis for him giving that opinion." (App. 828) We agree that Lt.

Goshert’s testimony that the Harrisburg police had used Brown as

a confidential informant on "numerous occasions" since 1988 was

necessary to establish that he had a basis on which to offer his

opinion as to Brown’s character for truthfulness. However, his

testimony that Brown had "made" 65 or 66 cases was more specific

than can be justified as necessary to establish a foundation.7

United States v. Taylor, 900 F.2d 779 (4th Cir. 1990)

presented a situation extremely similar to the instant case. In

Taylor as in this case, the government’s fortunes depended in

large part on the credibility of an informant, and the government

called a law enforcement officer to testify as to the informant’s

reliability. The officer testified that the informant "had acted

as a buyer for the government on 15 to 18 drug buys," that he

"had given reliable information in a particular case which

resulted in the seller’s conviction," and that "several others

either pleaded guilty or were convicted as a result of [the

informant’s] testimony." Id. at 780-81. The court held that it

was error to admit evidence that the informant’s testimony had

7.7 The government prepared a chart detailing the particular
instances where Brown had provided information to the Harrisburg
police, but it conceded that the chart was not admissible under
Rule 608(b). (App. 827)

27
resulted in convictions in other cases. Id. at 781. Lt.

Goshert’s testimony was substantially identical, and we conclude

that its admission contravened Rule 608(b).

We are buttressed in this conclusion by the emphasis

placed by the government on Lt. Goshert’s testimony in its

closing argument. The government first told the jury that "[i]t

was very important, wasn’t it, to hear from him?" and then

argued:
And Lieutenant Goshert, you think he would let any of his men or
himself kick down some door with a search warrant on a
drug raid or make an arrest on information from
somebody that they didn’t think was reliable? Sixty-
seven cases, Richard Brown has proven to be a reliable
source of information for. They stake their lives on
his testimony -- on his information. Does that give
you some sense of how reliable he is?

App. 913-14. This emphasis compounded the significance of the

error in allowing Lt. Goshert’s specific-instance testimony and

prevents us from concluding that the error was harmless.8 On

retrial, the district court should limit the government to

8. 8In United States v. Piva, 870 F.2d 753, 760-61 & n.9 (1st
Cir. 1989), the court held that it was error to allow "a
professional government witness [to] vouch[] for the credibility
of an informant," but found that the district court rendered the
error harmless by instructing the jury that: "Members of the
jury, you have to make a determination whether you believe Mr.
Pacheco [the informant]. Whether Mr. Costa believes him or not
is not relevant to that, you have to make that determination,
based on your own observations of Mr. Pacheco and only that, and
your judgment as to whether he was telling the truth." No such
curative instruction was given in this case.

28
eliciting from Lt. Goshert only such testimony as is necessary to

establish a foundation for his opinion.9

IV.

Murray also argues that the district court erred in

denying his motion to disqualify for cause a juror who had read a

newspaper article about the case. Immediately before trial

commenced on August 10, 1995, the court asked whether any jurors

had seen an article that appeared in the Harrisburg Patriot-News

on August 2, 1995, entitled "Feds won’t seek death penalty for

accused killer, 22." (App. 85) The article stated, inter alia,

that Murray had previously pled guilty to the murder and had

described it as "not a premeditation or contract killing. It was

just a stupid unfortunate incident." (App. 85)

A juror named Mary Kling acknowledged that she had read

the article and was subjected to voir dire by the court and by

Murray’s counsel. (App. 413-15) Kling stated that all she could

remember from the article was that the government had decided not

to seek the death penalty and had not given any explanation for

that decision, that Murray was accused of murder, and that he was

9. Murray does not argue that the erroneous admission of Lt.
Goshert’s testimony somehow taints his convictions on the drug
charges. The prejudicial effect of Lt. Goshert’s testimony was
to bolster the credibility of Richard Brown, who testified about
the murder of which Murray was convicted. However, Brown did not
testify in support of the drug charges. We therefore conclude
that the district court’s Rule 608(b) error does not require
reversal of Murray’s drug convictions.

29
from New York. (App. 414) She denied that she had formed any

opinion as to Murray’s guilt or innocence and affirmed that she

could decide the case on the basis of the evidence. (App. 413-

14) The court was satisfied that Kling could serve impartially

and denied Murray’s motion to excuse her for cause. (App. 419)

"In determining whether a particular juror should be

excused for cause, our main concern is whether the juror holds a

particular belief or opinion that will prevent or substantially

impair the performance of his duties as a juror in accordance

with his instructions and his oath." Kirk v. Raymark Indus.,

Inc., 61 F.3d 147, 153 (3d Cir. 1995) (quotations omitted), cert.

denied, 116 S. Ct. 1015 (1996). "Determining whether a

prospective juror can render a fair verdict lies peculiarly

within a trial judge's province." United States v. Polan, 970

F.2d 1280, 1284 (3d Cir. 1992), cert. denied, 507 U.S. 953 (1993)

(quotation omitted). We review the district court’s ruling only

for an abuse of discretion; "the question of the partiality of an

individual juror `is plainly one of historical fact: did a juror

swear that he could set aside any opinion he might hold and

decide the case on the evidence, and should the juror's

protestation of impartiality have been believed . . . .

[Therefore,] the trial court's resolution of such questions is

entitled, even on direct appeal, to special deference.'" United
States v. Ferri, 778 F.2d 985, 994 (3d Cir. 1985), cert. denied,

30
476 U.S. 1172 (1986) (quoting Patton v. Yount, 104 S. Ct. 2885,

2891 (1984)).

Under this deferential standard of review, we are

unable to conclude that the court erred in allowing Kling to

serve as a juror.

V.

Murray’s final argument is that the district court

erred in allowing Sean Proffit to testify as to what Murray told

him in jail. Murray argues that the admission of Proffit’s

testimony deprived him of his Sixth Amendment right to counsel

under Massiah v. United States, 377 U.S. 201 (1964). Massiah

held that the government may not, consistent with the Sixth

Amendment, use as evidence statements made by the defendant

"which [it] had deliberately elicited from him after he had been

indicted and in the absence of his counsel." Id. at 206. See

also United States v. Brink, 39 F.3d 419, 421-22 (3d Cir. 1994).

Thus, if the government had deliberately placed Proffit in

proximity with Murray with the intention of eliciting

incriminating statements from Murray in the absence of his

counsel, Murray’s claim would be valid. See United States v.
Henry, 447 U.S. 264, 274 (1980). In this case, however, the

district court held an evidentiary hearing following Murray’s

objection to Proffit’s testimony and concluded that there was no

31
evidence that the government did so. (App. 396-412) We perceive

no error in the district court’s treatment of this issue.

VI.

For the foregoing reasons, we reverse the judgment of

conviction and sentence on the murder charge and remand for a new

trial. We affirm the judgment of conviction as to the drug

charges and remand for resentencing, if appropriate, on those

counts.

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33