dissenting.
I do not agree that the mere admission of the guilty pleas of the co-conspirators in this case constituted reversible error, especially in light of the prosecution’s carefully restrained use of the evidence and the trial judge’s carefully crafted limiting instructions to the jury. I therefore respectfully dissent.
I would affirm the district court for three independently sufficient reasons: (1) the court correctly admitted the guilty pleas of the co-conspirators into evidence for a proper purpose; (2) even if the court admitted the guilty pleas for an -improper purpose, any prejudice to Thomas was cured by the trial judge’s limiting instructions; and (3) even if the court admitted the guilty pleas for an improper purpose and the prejudice was not cured by the trial court’s limiting instructions, the error was harmless and therefore does not warrant reversal. Each of these reasons, standing alone, justifies affirming the district court.
a. The trial court admitted the’ guilty pleas for a proper purpose.
I recognize the policy against using a co-conspirator’s guilty plea as substantial evidence of another defendant’s guilt and . that every defendant has the right “to have his guilt or innocence determined by the evidence presented against him, not, by what has happened with regard to a criminal prosecution against -someone else.” United States v. Toner, 173 F.2d 140, 142 (3d Cir.1949). However, “evidence of a guilty plea or plea agreement may be introduced for other permissible purposes.” United States v. Gambino, 926 F.2d 1355, 1363 (3d Cir.), cert. denied sub nom. Mannino v. United States, — U.S. -, 111 S.Ct. 2800, 115 L.Ed.2d 973 (1991), and cert. denied, Gambino v. United States, — U.S. -, 112 S.Ct. 415, 116 L.Ed.2d 436 (1991); United States v. Werme, 939 F.2d 108, 113 (3d Cir.1991), cert. *1208denied, — U.S. -, 112 S.Ct. 1165, 117 L.Ed.2d 412 (1992).
In this ease, the- co-conspirators’ guilty pleas were introduced for three reasons: (1) to bolster the credibility of the co-conspirators as prosecution witnesses; (2) to quell the inference that the co-conspirators were not prosecuted and that Thomas was thus “singled out” for punishment; and (3) to establish the basis for the co-conspirators’ firsthand knowledge of the crime about which they testified. Each of these reasons is a proper purpose for admitting a guilty plea.
The majority in this case concludes that there was no proper purpose for the admission of the guilty pleas of the co-conspirators because defense counsel informed the trial court in his motion in limine that he would not elicit on the cross-examination of either of the co-conspirators any facts regarding entry of a plea of guilty, execution óf a plea agreement, or granting of immunity. Thus, the majority assert “there was no need to protect the credibility of the prosecution’s witnesses from attack by allowing the preemptive introduction of evidence of their guilty pleas.” Op. at 1205.
The majority also rejects the second justification by the trial judge that the jury could impermissibly conclude that Thomas alone was being prosecuted on the ground that the judge “could have instructed the jury that they need concern themselves only with the guilt or innocence of the defendant Thomas and that the involvement of any other persons ... was not this jury’s concern.”
The majority finally rejects the third reason given by the trial court for the admission of this testimony that such evidence would establish the co-conspirafars’ acknowledgment of their participation in the offense because they testified about their role in the transportation of the stolen property without facing any challenge from the defense. Op. at 1205-06. I disagree on all three counts.
The district court enjoys broad discretion when deciding whether evidence is admissible, and we must therefore determine whether its decision to admit the co-conspirators’ guilty pleas constituted an abuse of that discretion. Gambino, 926 F.2d at 1364.
The most frequent purpose for introducing evidence of a guilty plea is to aid the jury in assessing the witness’s credibility. Werme, 939 F.2d at 114. “By eliciting the witness’ guilty plea on direct examination, the [G]overnment dampens attacks on credibility, and forecloses any suggestion that it was concealing evidence. Such disclosure [of a guilty plea] is appropriate.” Gambino, 926 F.2d at 1355; accord United States v. Casto, 889 F.2d 562, 567 (5th Cir.1989), cert. denied, 493 U.S. 1092, 110 S.Ct. 1164, 107 L.Ed.2d 1067 (1990); United States v. Dworken, 855 F.2d 12, 30 (1st Cir.1988); United States v. Louis, 814 F.2d 852, 856 (2d Cir.1987).
Also, this- court has recognized that evidence of a guilty plea may be legitimately introduced when used to quell the inference that the co-conspirators have not been prosecuted and that the defendant has been “singled out” for punishment. United States v. Inadi, 790 F.2d 383, 384 n. 2 (3d Cir.1986); see also United States v. Anderson, 532 F.2d 1218, 1230 (9th Cir.), cert. denied, 429 U.S. 839, 97 S.Ct. 111, 50 L.Ed.2d 107 (1976).
Finally, the Ninth Circuit has held that a co-conspirator’s guilty plea is properly admissible in order to explain the witness’s firsthand knowledge of the defendant’s misdeeds. United States v. Halbert, 640 F.2d 1000, 1005 (9th Cir.1981).
Therefore, all of the purposes for which the guilty pleas were admitted into evidence in the case sub judice are proper, and the tidal court did not abuse its discretion.
The majority contends, however, that there was no need to bolster the co-conspirators’ credibility because defense counsel had communicated that he did not intend to impeach the credibility of the. witnesses by reference to their guilty pleas. However, this argument is without merit.
First, this court has held that guilty pleas are admissible to bolster credibility even absent a prior attack on credibility. Gambino, 926 F.2d at 1363. Moreover, the defense’s statement that it did not intend to impeach the witnesses by reference to the guilty pleas falls far short of an absolute assurance to the *1209prosecution that its witnesses’ credibility would not be undermined. As the Ninth Circuit has noted, “There are many ways in which a plea may be tactically utilized by the defense and skilled counsel will take advantage of any or all of them as judgment determines.” Halbert, 640 F.2d at 1005.
Moreover, under the facts of this ease, the credibility of the defendant’s co-eonspiratorial witnesses depended not only on the possibility of impeachment by the defendant, but on the impression that they personally made in the testimony they gave to the jury. Even without any impeachment efforts by the defendant, the jury was not bound to believe their testimony or understand their motivation in testifying against Thomas. Furthermore, without the evidence of the guilty pleas, the jury reasonably could have inferred that the defendant here was being selectively prosecuted or the Government might be concealing pertinent information.
The conspiracy here involved only three conspirators and the credibility of the testimony of the two co-conspirators was critical to the prosecution’s case. Their testimony and role in the conspiracy were not marginal but central to the prosecution’s case. Thus, the tactical effort of the defense to preempt the prosecution’s presentation of its case could not in itself circumscribe the impressions that the jurors were free to make of the credibility of the co-conspirators’ testimony or of the selective prosecution of Thomas.
In United States v. Whitehead, 618 F.2d 523 (4th Cir.1980), the court was confronted with a similar situation where the defense challenged the prosecution’s intention to introduce guilty pleas because the defense had agreed to limit its impeachment questioning. The district court there permitted the evidence, and the court of appeals agreed, stating that “such a limitation on the details of the plea agreements would have been both unfair to the defendants and misleading to the jury.” Id. at 529. The court continued:
The prosecution’s inquiry into the guilty pleas during its examination was limited to a brief question as to whether the witnesses had entered pleas of guilty to “charges in this case.” On each occasion, the district court immediately instructed the jury, in the language approved in [United States u] Curry, [512 F.2d 1299 (4th Cir.1975)], that the pleas could not be considered as evidence against appellants. Under these circumstances, we see no error in the admission of the guilty pleas.
Id. at 529-30.
Similarly, in the case sub judice, the Government did not unduly emphasize or dwell on the guilty pleas. It made no special effort to draw the jury’s attention to the pleas. The trial judge twice admonished the jury with limiting instructions. The district court noted in its memorandum opinion that “the [Government did not improperly emphasize such evidence in its opening to the jury, during the trial or in the closing argument.” The Government merely elicited from the two witnesses that they had been indicted and pled guilty, and that their testimony was part of the plea agreement. “No editorial comment or unnecessary elaboration occurred. The brief questions about the existence of the guilty pleas was clearly relevant as bearing on the witnesses’ credibility.” Halbert, 640 F.2d at 1005.
One could argue that credibility is always at issue and that my position thus effectively overrules Toner. However, a witness’s, credibility is only at issue when he or she testifies about a relevant and disputed fact. Moreover, Toner merely states that a guilty plea of a witness cannot be used to establish the guilt of the defendant. Thus, even if the guilty plea is always admissible for the purpose of establishing the credibility of the witness, that does not overrule Toner: Toner would still require a limiting instruction, similar to the ones given by the trial judge in the present case, to insure that the jury understands that the guilty plea cannot be used to establish the guilt of the defendant.
Also, even if the pleas were not needed to bolster credibility, the pleas remained necessary for the two other proper purposes previously mentioned; to quell the inference that Thomas was singled out for prosecution, see Inadi, 790 F.2d at 384 n. 2, and to establish the witnesses’ basis for firsthand knowledge of the crime, see id. at 1005.
*1210In sum, the guilty pleas were entered into evidence for proper purposes, and thus the district court did not abuse its discretion. Moreover, the defense’s assertion that it would not attack the credibility of the witnesses does not alter this result, and we thus should affirm the district court,
b. Even if the pleas were introduced for an improper purpose, any prejudice to Thomas was cured by the trial judge’s limiting instructions.
Judge Lee’s instructions to the jury eliminated any potential prejudice that might otherwise have been caused by the introduction of the guilty pleas. In United States v. Tyler, 878 F.2d 753 (3d Cir.), cert. denied, 493 U.S. 899, 110 S.Ct. 254, 107 L.Ed.2d 203 (1989), this court held that any possible error caused by the introduction of guilty pleas was cured by the district court’s jury instructions.
Moreover, in both Guild and Newman we expressly recognized that appropriate curative instructions can remedy an error in this context, although in those cases we found the instructions lacking. In Newman, we indicated that, ‘... the district court should have instructed that the testimony ... was no proof whatsoever of [the defendant’s] guilt and that the testimony pi-offered should be disregarded completely in determining the guilt or innocence of the [defendant].’
Tyler, 878 F.2d at 761; see also United States v. Newman, 490 F.2d 139, 143 (3d Cir.1974) (The admission of 'a guilty plea is not reversible error “provided that cautionary instructions are given.”). Therefore, jury instructions can cure improper prejudice.
In the case sub judice, Judge Lee issued a preliminary instruction to the jury regarding the testimony of the co-conspirators:
Now, during this trial, you will hear the testimony of Charles C. Copney and Wendell Ronald Charles. You will hear that they were involved in the same crime that the defendant is charged with committing. You should consider ... Copney’s and ... Charles’s testimony with more caution than, the testimony of other witnesses. Do not convict the defendant based on the unsupported testimony of such a witness standing alone ... Now, the fact that ... Copney and ... Charles have pleaded, guilty to a crime is not evidence that the defendant is guilty, and you cannot com sider this against the defendant in any way.
(emphasis added).
Then, in his final charge to the jury, Judge Lee cautioned:
You have heard evidence, testimony, that witnesses] ... Copney and ... Charles have pleaded guilty to a crime or crimes which arose out of the same event for which the defendant is on trial here. You must not consider those guilty pleas as any evidence' of this defendant’s guilt. You may consider those witnesses’ guilty pleas only for the purpose of determining how much, if at all, to rely upon those witnesses’ testimony ... You have also heard that they were involved in the same crime ... or crimes.that the defendant is charged with committing. You should consider ... Copney’s testimony and ... Charles’s testimony with more caution than the testimony of other witnesses,
(emphasis added).
Thus, the district court twice plainly and unequivocally warned the jury that it may not use the guilty pleas of the co-conspirators as substantive evidence upon which to base a conviction. Moreover, the court instructed the jury to consider the testimony of the co-conspirators with more caution than an ordinary witness. Therefore, the trial court’s limiting instructions prudently avoided the possibility of any prejudice to Thomas as a result of the admission of the guilty pleas.
The majority argues that because this case involved a conspiracy, a curative instruction will not save the conviction:
It is the general rule in this Circuit that while the evidence of a guilty plea by a co-conspirator is not admissible, under some circumstances curative instructions are adequate to remove the harm where the pleas are to substantive counts.
United States v. Gullo, 502 F.2d 759, 761 (3d Cir.1974) (citations omitted). The majority cites this as proof that curative instructions are adequate only when the pleas are to *1211substantive counts and not to conspiracy. This position is untenable.
First, although the Gullo court did express that conspiracy cases may have to be scrutinized more carefully than those involving substantive counts, Gullo, 502 F.2d at 761, it continued:
However, we need not decide here whether there should be a distinction between cases where the plea is to a'substantive, rather than to a conspiracy count because the combination of events which occurred is enough to necessitate the grant of a new trial.
Id. Therefore, the Gullo court expressly declined to hold that conspiracy counts are to be treated differently than substantive counts.
Second, this court has stated that adequate jury instructions could have cured the prejudice in a case involving the guilty plea of a co-conspirators:
Moreover, in . . Gullo [, a case involving the admission of a co-conspirators’ guilty plea,] ... we expressly recognized that appropriate curative instructions can remedy an error in this context, although in those cases we found the instructions lacking.
Tyler, 878 F.2d at 761. Thus, that the present case involves a conspiracy rather than a substantive crime does not render the curative instructions inadequate.
The majority next contends that a limiting instruction can only cure prejudice when the guilty plea was introduced for a proper purpose. Op. at 1206-07. However, this court has expressly stated that curative instructions could remedy an error in admitting guilty pleas. Tyler, 878 F.2d at 761. An error in this context presumably means that a guilty plea was admitted for an improper purpose.
In Dworken, 855 F.2d 12, the Government offered the guilty plea of a witness into evidence. The trial court gave the jury cautionary instructions during the Government’s opening, when the witness testified, and in the final jury instructions concerning the use of the plea. The prosecution, however, made comments thereafter about the implications of the plea, comparing the witness with the other co-defendants and strongly implied “a logical variant of guilty by association.” Dworken, 855 F.2d at 31. The court immediately responded with a limiting instruction. Although the court of appeals concluded that the prosecution’s statements reached “the level of misconduct ... because the principal issue on the attempt charge was whether criminal intent could be inferred from the actions of the defendants,” it was “convinced that this prosecutorial misconduct did not so prejudicially affect the defendants’ rights as to deprive them of a fair trial. See [U.S. v. ] Dougherty, 810 F.2d [763] at 767 [8th Cir.1987].” Id. The appellate court assumed that the jury heeded the trial judge’s repeated insisténce that the guilty plea not be used to infer the guilt of those on trial.
In the instant case, the Government neither engaged in any prosecutorial misconduct nor did it dwell on the guilty pleas. 'Accordingly, I believe that in this case the Government made a legitimate use of the guilty plea. Unlike Dworken, the prosecution here guarded and limited its use, and the trial court’s painstaking and repeated cautionary instructions provided adequate guarantee that Thomas would not be prejudiced. If the curative instructions in Dworken sufficed to obviate prejudice to the defendant in that case, then surely Judge Lee’s instructions removed any prejudice potentially derived from the introduction of the guilty pleas in the present action.
In short, there were adequate limiting instructions in this case to cure any potential prejudice that Thomas may have suffered. As a result, Thomas’s conviction should be affirmed.
c. Even if the pleas were introduced for improper purposes and the limiting instructions did not cure the prejudice, the error was harmless and thus does not warrant reversal of the district court.
Assuming arguendo that the introduction of the pleas into evidence constituted an abuse of the trial court’s discretion, it was harmless error. An error is harmless if it is “highly probable” that it did not' affect the defendant’s substantial rights. Werme, 939 F.2d at 116-17. Accordingly, high probability requires that a reviewing court must have “a sure conviction that the error did not prejudice the defendant, but need not dis*1212prove every reasonable possibility of prejudice.” United States v. Jannotti, 729 F.2d 213, 219-20 (3d Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984).
The evidence at trial showed that Thomas, without permission, absconded with several truckloads of parts and equipment and stored them at Hopwood Industries, which was owned by one of the co-conspirators, and at his own garage. He did not document or tag the property to insure its safe' return. The prosecution then informed the-jury that Thomas tried to. return or abandon this property when he learned that an investigation had been commenced. Moreover, his two co-conspirators testified that his planned intent was to steal the equipment.
It strains credulity that the majority feels that “most of the circumstantial evidence of his intent was credibly contested by Thomas.” Op. at 1207. Thomas rebutted the evidence outlined above with the incredible claim that he transported the equipment in order to temporarily store it on private property because there was no room to do so on Government property. However, Thomas admitted that he did not seek permission to store the equipment on private property, and he suddenly found room to store it on Government property when he learned that an investigation was under way. Moreover, two co-conspirators testified of Thomas’s intent to steal the property. Thomas’s self-serving testimony is so totally incredible in the face of contradictory direct and circumstantial evidence that the requisite intent was most likely proven without reference to the guilty pleas. Thus, their admission, if improper, constituted harmless error.
Therefore, it is unlikely that the admission of the guilty pleas had an affect on the substantive rights of Thomas because the evidence of his guilt was so clear. As a result, any error that did occur at the trial was harmless and cannot support a reversal of his conviction.
Accordingly, each of the foregoing reasons, standing alone, justifies affirming the district court. I therefore respectfully dissent.