JORDAN, Circuit Judge.
Paul Bergrin, a former federal prosecutor and prominent defense attorney, was indicted in the United States District Court for the District of New Jersey on numerous charges, including violations of the Racketeering Influenced and Corrupt Organizations Act ("RICO"). Reasoning that the RICO charges were inappropriate in light of "the disparate nature of the substantive crimes that ... serve[d] as the racketeering predicates," the District Court dismissed them. United States v. Bergrin, 707 F.Supp.2d 503, 511 (D.N.J. 2010). The government appealed that decision and we reversed, observing that the concerns of the District Court were "either endemic to RICO prosecutions or involve[d] the application of irrelevant legal standards." United States v. Bergrin, 650 F.3d 257, 274 (3d Cir.2011).
After remand, the government filed a 33-count second superseding indictment (the "Indictment") charging Bergrin with RICO violations, witness tampering, participating in a cocaine-trafficking conspiracy, and tax evasion. Two of the Indictment's witness-tampering counts charge Bergrin for his role in facilitating the murder of a man named Kemo McCray ("Kemo"),
As soon as the jury was dismissed, the government, in anticipation of a retrial, asked whether the District Court would adhere to its earlier evidentiary rulings. "Absolutely," was the response, though the Court noted that the government would be permitted to try to "convince [the Court]
We will vacate the District Court's decision with respect to one of the challenged evidentiary rulings, and, because we will direct the Chief Judge of the District Court to reassign this matter, will leave the other issues presented to be considered afresh by the judge who will take up the case.
Centered around RICO counts that are substantially similar to the ones we held to be validly pleaded the last time this case was before us, see Bergrin, 650 F.3d at 261-63 (summarizing the RICO charges), the Indictment accuses Bergrin of misusing his law practice to traffic drugs, facilitate prostitution, tamper with witnesses, and evade taxes. Three different instances of witness tampering, all of which are alleged in the RICO violation charged in Count 1, are relevant to this appeal. Specifically, Bergrin is charged with instigating Kemo's murder, plotting to kill witnesses in connection with the legal defense of an individual named Vicente Esteves (the "Esteves Plot"), and plotting to kill a witness who planned to testify against a client named Richard Pozo (the "Pozo Plot").
The Kemo Murder Counts were the subject of the trial that ultimately led to the present appeal, and, as charged, they carry a mandatory life sentence.
At the trial on those counts, the government introduced evidence that Kemo's murder arose out of Bergrin's representation of William Baskerville. Baskerville was an associate in a drug-trafficking organization run by Hakeem Curry and was arrested on federal drug charges in November 2003 for drug sales he made to Kemo. Baskerville told Bergrin that he suspected Kemo to be the likely source of the government's evidence against him. Bergrin, in turn, telephoned Curry and told him that Kemo was the confidential witness against Baskerville.
Anthony Young, a member of Curry's organization and the government's key witness at the trial of the Kemo Murder Counts,
Members of Curry's organization thereafter discussed how to find and kill Kemo, and, in March of 2004, Young found Kemo and shot him to death.
The government also sought to prove Kemo's murder using evidence of the Pozo Plot and the Esteves Plot, which the District Court ultimately precluded after considering evidentiary proffers.
The government's first effort to rely on those other murder plots developed pretrial when, after we ruled that the RICO counts had been wrongly dismissed and remanded the case, Bergrin filed a motion under Federal Rule of Criminal Procedure 14 to sever the Kemo Murder Counts from the Indictment.
Pozo, the government asserted, was a "large scale drug trafficker who distributed multi-hundred kilogram shipments of cocaine he received in New Jersey via Texas." (D.N.J. ECF no. 09-369, doc. no. 304-1, at 13.)
Esteves, too, was a former client of Bergrin's who "operated a large scale drug trafficking business based in New Jersey." (D.N.J. ECF no. 09-369, doc. no. 304-1, at 23.) He was prepared to testify that, when he met with Bergrin in May 2008, after being charged in the Superior Court of New Jersey with drug trafficking, Bergrin told him that "the only way to beat the case was if [Esteves] took care of the witnesses" on a list of those Bergrin believed were cooperating with the government. (Id.) During that conversation, Bergrin also told Esteves that he "hate[d] rats and ... would kill a rat himself," that "this was not the first time he ha[d] done this," and that, "if there are no witnesses, there is no case." (Id.) An informant named Oscar Cordova, whom Bergrin believed was a hitman, subsequently recorded Bergrin instructing him to kill a witness on that list. (Id.; see Joint App. at 225-28 (describing the plot).) In that conversation, Bergrin stated, "we gotta make it look like a robbery. It cannot under any circumstances look like a hit.... We have to make it look like a home invasion robbery." (D.N.J. ECF no. 09-369, doc. no. 304-5, at 3.)
In a September 21, 2011 opinion (the "First Severance Opinion") citing those
The Court did say, however, that it would "likely allow certain ... Rule 404(b) evidence into the separate trial on the [Kemo Murder] Counts." (Joint App. at 58.) In particular, it indicated that evidence of the Pozo Plot would be admissible because that plot occurred "before or around the same time as the [Kemo] murder conspiracy." (Id. at 59.) Evidence of the Esteves Plot, by contrast, troubled the Court. The Esteves Plot was unlike the "other-crime evidence most typically admitted under Rule 404(b)," the Court said, because it pertained to acts that "happened more than four years after the [Kemo] murder conspiracy" and was therefore evidence of a "subsequent criminal act." (Id.) Although the Court acknowledged that there was no categorical "bar to subsequent act evidence," it observed that "evidence of a subsequent act" is not necessarily "permissible or relevant in the same way that evidence of a prior bad act may be." (Id.)
Nevertheless, the Court seemed to take for granted that the government would be permitted to use Bergrin's own admissions to Esteves in proving the Kemo Murder Counts. (See id. at 62 (suggesting that certain evidence pertaining to the Esteves Plot would "likely be admissible to provide the requisite background information to support" the testimony of the witnesses, including Esteves, who would testify to Bergrin's admissions).) Aside from that, however, the Court made it clear that most of the proffered evidence pertaining to the Esteves Plot would be inadmissible in a trial on the Kemo Murder Counts. The Court was particularly concerned about the tape recording of Bergrin's conversation with Cordova, evidently believing that the tape's probative value was likely to be substantially outweighed by the danger of unfair prejudice:
(Id. at 56.) Because Bergrin faced a life sentence on the Kemo Murder Counts, the Court found that risk to be particularly unacceptable. (See id. at 57 ("[A]lthough he is charged with a variety of crimes, the stakes on the [Kemo Murder] Counts are especially high for Bergrin: if a jury finds
Thus, based in part on its view that evidence of the other witness-murder plots would not, despite the government's argument, necessarily be admissible in a trial on the Kemo Murder Counts, the Court severed those counts from the Indictment and ordered them to be tried first.
On September 29, 2011, the government moved to admit much of the Rule 404(b) evidence it had set forth in its prior proffer, asking the Court to make "preliminary, pretrial rulings on the admissibility of [the] other acts evidence" that the Court's First Severance Opinion had suggested would be admissible in a trial on the Kemo Murder Counts. (D.N.J. ECF no. 09-369, doc. no. 304-2, at 3.) Among other things, the government sought admission of Pozo's testimony about the Pozo Plot, and Esteves's testimony as to Bergrin's statements during the Esteves Plot.
The next day, the Court announced its ruling on the government's motion which was memorialized in an undated and unfiled opinion "handed to the parties the following week."
(Joint App. at 10 (internal citations omitted).)
The Court, however, retreated from its previous suggestion that it would allow the government to introduce some of the evidence pertaining to the Esteves Plot. It ruled instead that no such evidence — including the "admissions themselves" — would be allowed "under Rule 404(b) because the potential for prejudice far outweigh[ed that evidence's] minimal probative value." (Id. at 13.) As the Court explained it, the admissions were minimally probative because they were made in connection with a subsequent, as opposed to a prior, crime and were therefore too attenuated from the Kemo murder:
(Id. (internal citation omitted).)
Opening statements began on October 17, 2011. Proceeding pro se with standby counsel, Bergrin told the jury that the evidence would prove he "never wanted,... never expected, ... never believed ... that one hair on Kemo's head would be hurt." (Id. at 648.) Instead, as he explained to the jury, he had simply acted as a zealous advocate on Baskerville's behalf: "[W]hen I represented — was called ... to represent William Baskerville, who was accused of a criminal offense, the Sixth Amendment of the United States Constitution said that I had to represent him, that he deserved to be represented effectively. And that's all I ever did in this case." (Id.) Thus, although Bergrin acknowledged calling Curry and informing him that Kemo was the confidential witness, he characterized that call as part of his legal duty to represent Baskerville and denied any malicious motives.
Bergrin spoke similarly in explaining the Pozo Plot to the jury, stating:
(Id. at 691-92.)
Believing that Bergrin had made "various door-opening assertions during his opening statement" the government filed a letter-motion the next day, asking the District Court to reconsider its evidentiary ruling excluding the Esteves Plot evidence.
Worse yet for the government, on November 8, 2011, the Court reversed course on the admissibility of Pozo's testimony. Acknowledging that it had previously "indicate[d] that that testimony would be admissible under [Rule] 404(b)," the Court said it had changed its mind, "after hearing the case and the context in which [the testimony was] now being offered." (Joint App. at 19.) The Court described a three-step process for considering whether to admit evidence under Rule 404(b): first, to "decide whether there is sufficient evidence that the other act in question actually occurred"; second, to assess "whether the evidence of other acts is probative of the material issue other than character"; and third, to consider "whether the probative value of the evidence is substantially outweighed by its potential prejudicial effect." (Id.)
Pozo's testimony, the Court said, was problematic under the first step of that procedure, because there was no independent documentation corroborating the substance of his intended testimony:
(Id. at 19-21.)
The Court suggested that its concern about whether Pozo's testimony was truthful also played a role in assessing whether, under the third step, the probative value of the evidence was substantially outweighed by "its potential prejudicial effect." (Id. at 19.) And the Court declared Pozo's testimony would be "cumulative," "collateral," and "confusing." It explained:
(Id. at 23-26.)
That evening, the government filed a motion asking the Court to reconsider its decision to exclude evidence of the Pozo Plot and the Esteves Plot. As the government argued the next morning in support of its motion, one might perceive "an inherent
At a subsequent conference about jury instructions, Bergrin successfully requested that the jury be told it "is a defense to the charges in the Indictment that the defendant's acts constituted lawful and legitimate legal representation of a client." (D.N.J. ECF doc. no. 09-369, no. 327, at 46; see Joint App. at 4024-25 (Bergrin's request).) Then, in summation, he echoed his opening statement's assertion that he was being "accused for doing [his] job," to "defend the Constitution [by] mak[ing] sure that [Baskerville] ha[d] effective representation." (Joint App. at 4188.) Indeed, while Bergrin again acknowledged that he had discussed Kemo's name with Baskerville and disclosed it to Curry over the phone, he attributed his behavior to legitimate representation, and implored the jury not to conclude "under any circumstance, under any leap of bound and faith that [he] ever intended for one hair to be hurt on poor Kemo's head." (Id. at 4277; accord id. at 4194 ("I, under no circumstances, ever intended, ever wanted, ever told, ever warned, ever advised, ever informed anyone to ever harm a hair on the head of Kemo McCray. I never had that intent.").)
After six days of deliberation, the jury was unable to reach a verdict. As a result, the Court declared a mistrial on November 23, 2011, and scheduled a retrial on the Kemo Murder Counts for January 2012.
Shortly thereafter, the government inquired "about rulings that [the Court] made excluding evidence," asking the Court to clarify if it was "going to adhere to those; Pozo and Esteves and the things that were contained in the ... 404(b) ruling." (Id. at 49.) The Court responded as follows: "Absolutely. I don't see — unless you can convince me otherwise, as to why those rulings — I know you feel otherwise — but on reflection I feel strongly that those rulings were appropriate. So I don't expect I would be changing those rulings." (Id. at 49-50.) On November 30, 2011, the government filed a notice of appeal challenging those evidentiary rulings.
The next day, the government moved to try the remainder of the counts in the Indictment at the January 2012 retrial, though it stated it would be willing to sever the tax evasion counts upon Bergrin's request. The Court held a hearing on December 8, 2011 to consider which counts to try next. Bergrin appeared at the hearing and asked the Court to stay proceedings pending our disposition of the government's appeal of the evidentiary rulings.
At an ensuing hearing on December 14, 2011, the government again requested that it be permitted to try the entirety of its case against Bergrin, because "[t]he Kemo murder and the Esteves thing [were] not [disconnected] bookends" but rather were charged as "a racketeering RICO violation because" that was what they were. (Id. at 4436.) The Court, however, made clear that it would not accept the government's request to "go forward with the Kemo allegations ... in the" RICO counts:
(Id. at 4433.) Trying the RICO counts next, the Court said, would unfairly expose Bergrin to a potential life sentence:
(Id. at 4463-64.) Given that, in the Court's view, the government's case on the charges other than the Kemo Murder Counts and the related RICO counts was "very strong,"
In response to those concerns, the government invited the Court to dismiss the RICO counts if it believed "that Mr. Bergrin [could not] get a fair trial ... as presently constituted." (Id. at 4458.) The Court, however, refused to dismiss the Indictment's RICO counts, stating that it had already "[done] that once ... because at the time I still was concerned about the RICO allegations, quite frankly, mostly for the same reason." (Id.)
Instead, on December 27, 2011, the Court severed the substantive counts charging Bergrin with drug trafficking and participating in the Esteves Plot from the rest of the counts in the Indictment, and ordered that they be tried in January 2012 (the "Second Severance Order"). The Court explained that its "original premise [was] that trying Bergrin for his alleged involvement in the [Kemo] murder conspiracy with extensive evidence from the [Esteves Plot] ... would be fundamentally unfair and improper" (id. at 67), and it went on to say that the concerns memorialized in its First Severance Opinion required an additional severance, because the government's appeal with respect to the Kemo Murder Counts made it "impossible" to pursue the "most logical solution" of simply retrying those counts (id. at 69).
Severing the Indictment's drug-trafficking and Esteves Plot counts was the next best solution, the Court said, since such a severance would
(Id. at 73.) The Court also ruled that it was necessary to ensure that those counts were tried before the RICO counts in which the Kemo murder and the Esteves Plot were intrinsic, rejecting the government's statement that it should be permitted to proceed on its RICO charges first, and characterizing that position as a "thinly veiled attempt to either circumvent [the Court's] prior decision or discourage the Court from taking further actions required by justice." (Id.)
That same day, the government filed a second notice of appeal, this time challenging the Second Severance Order.
The government argues that the District Court abused its discretion by precluding the introduction of evidence of the Pozo Plot and the Esteves Plot in the retrial on the Kemo Murder Counts, and in ordering the drug-trafficking and Esteves Plot counts to be severed. It also contends that this case should be reassigned to another district judge. Bergrin of course disagrees, but spends the bulk of his efforts arguing that we lack jurisdiction to entertain any of the government's arguments.
We begin by addressing the jurisdictional issue.
The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We, in turn, have appellate jurisdiction to consider challenges to "decision[s] or order[s] of a district court suppressing or excluding evidence ..., not made after the defendant has been put in jeopardy," so long as the "United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding." 18 U.S.C. § 3731. The government's appeal from the District Court's ruling excluding evidence of the Pozo Plot and the Esteves Plot invokes that jurisdiction on the ground that the District Court's verbal statement that it would "[a]bsolutely" adhere to its prior rulings on retrial (Joint App. at 49) was an appealable "decision or order" excluding evidence.
Given § 3731's express mandate that its provisions "shall be liberally construed to effectuate its purposes," 18 U.S.C. § 3731, there is wide agreement that oral decisions dealing with subjects within the statute's scope are appealable. See United States v. Farnsworth, 456 F.3d 394, 398-99 (3d Cir. 2006) (presuming an "oral ruling" is appealable under § 3731, but holding the ruling at issue was not appealable because it was not, as the government contended, a dismissal); United States v. Janati, 374 F.3d 263, 269 (4th Cir.2004) (exercising appellate jurisdiction over an "oral ruling"); United States v. Presser, 844 F.2d 1275, 1280 (6th Cir.1988) ("[W]e view the district court's oral statement as evidencing an intent to exclude government evidence... and consequently, its statement qualifies as an appealable order...."); United States v. Flores, 538 F.2d 939, 942-43 (2d Cir.1976) (oral ruling "exclud[ing] evidence of prior acts and statements" was appealable under § 3731). Bergrin argues, however, that the District Court's statement was not sufficiently definite to constitute an appealable decision or order, because the District Court was not unequivocal in saying it would exclude evidence of the Pozo Plot and the Esteves Plot at Bergrin's retrial. Cf. United States v. Brooks, 145 F.3d 446, 453-54 (1st Cir.1998) (stating that orders lacking a requisite "degree of finality ... may not qualify as ... order[s] excluding evidence under section 3731"). The record belies that claim.
Although the Court's colloquy did include some qualifying language, the first thing it said was that it would "[a]bsolutely" exclude that evidence from Bergrin's retrial. (Joint App. at 49.) And it further stated that it "fe[lt] strongly that [its] rulings were appropriate." (Id.) The Court's rulings over the course of Bergrin's trial on the Kemo Murder Counts reflect similarly strong convictions, even amidst repeated requests by the government to introduce the Pozo Plot and the Esteves Plot evidence after Bergrin denied any intent to harm Kemo. Moreover, the Court confirmed its resolve to keep out the questioned evidence when, at a hearing after the government's first appeal was filed, it reiterated that excluding the evidence was "the right decision" (id. at 4446), and subsequently ordered a second severance based on its belief "that trying Bergrin for his alleged involvement in the [Kemo] murder conspiracy with extensive evidence from the [Esteves Plot] ... would be fundamentally unfair and improper" (id. at 67).
The District Court did, to be sure, leave open the possibility that it would reconsider its evidentiary determinations, and it is possible, as Bergrin points out, that circumstances may change in the future. But the chance of change is inherent in virtually every pretrial evidentiary ruling
We turn, then, to consider the government's challenge to the merits of those evidentiary rulings.
Before trial, the District Court had ruled that the government would be permitted under Rule 404(b) to introduce Pozo's testimony that Bergrin counseled him to murder a witness. As the Court noted at that time, "[t]he factual similarities" between that incident and the Kemo murder are "striking," and the "evidence is highly probative of Bergrin's intent with respect to [the Kemo murder]." (Joint App. at 10.) Although the Court thought the admission of that testimony "carrie[d] a risk of undue prejudice," it concluded "that [the] prejudice [was] insufficient to substantially outweigh its high probative value" and noted that it would "mitigate the risk of prejudice by providing a proper limiting instruction." (Id.) At trial, however, even after Bergrin told the jury in his opening statement that he would not have made the statements to which Pozo would testify and declared that he had been acting
Rule 404(b), as we have noted, provides that "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that ... the person acted in accordance with the character," Fed.R.Evid. 404(b)(1), but the Rule permits such evidence "for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident," Fed.R.Evid. 404(b)(2). To be admissible under Rule 404(b), then, evidence of uncharged crimes or wrongs must have a proper evidentiary purpose. "A proper purpose is one that is `probative of a material issue other than character.'" United States v. Green, 617 F.3d 233, 250 (3d Cir.2010) (quoting Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)); see United States v. Johnson, 199 F.3d 123, 128 (3d Cir.1999) (stating that Rule 404(b) evidence is proper "if relevant for any other purpose than to show a mere propensity or disposition on the part of the defendant to commit the crime" (citation and internal quotation marks omitted)). As long as evidence offered under Rule 404(b) satisfies that criterion, we favor its admission. Johnson, 199 F.3d at 128. Of course, such evidence may be excluded if "its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. We have also emphasized that limiting instructions may be appropriate when admitting Rule 404(b) evidence. See Green, 617 F.3d at 249 (noting that a limiting instruction should be given where requested).
As the District Court correctly explained, one step in evaluating whether to admit Rule 404(b) evidence is to determine whether there is sufficient evidence to conclude that the crime, wrong, or other act in question actually occurred, because "similar act evidence is relevant only if ... the act occurred and ... the defendant was the actor." Huddleston, 485 U.S. at 689, 108 S.Ct. 1496. Applying that inquiry to Pozo's proffered testimony, however, the Court made its own credibility assessment, saying that there was "nothing to document what actually was spoken at that time in those few little sentences that the Government contends would show that Mr. Bergrin was attempting [to] ... you know, to murder the witness." (Joint App. at 21.) Owing to the lack of independent corroboration, the Court decided that "Mr. Pozo's best recollection" would not suffice. (Id.) That was an error of law.
In Huddleston v. United States, the Supreme Court expressly rejected the "level of judicial oversight" that the District Court applied here in excluding Pozo's testimony. 485 U.S. at 688, 108 S.Ct. 1496. It said, rather, that Rule 404(b) evidence need only be supported by sufficient evidence for a jury to be able to "reasonably conclude that the act occurred and that the defendant was the actor." Id. at 689, 108 S.Ct. 1496. A court's task in that regard is simply to decide, in accordance with Rule 104(b), "whether the jury could reasonably find th[ose] facts ... by a preponderance of the evidence."
By discounting Pozo's testimony based on a lack of corroboration and questions about credibility, the Court usurped the jury's role. See United States v. Dillon, 532 F.3d 379, 391 (5th Cir.2008) ("Rule 104(b) does not require corroboration. It only requires that the district court consider the witness's testimony and determine that a reasonable jury could [make the required] find[ing] by a preponderance of the evidence...." (internal footnote omitted)); Siegel, 536 F.3d at 319 ("Evidence is [sufficiently] reliable for purposes of Rule 404(b) `unless it is so preposterous that it could not be believed by a rational and properly instructed juror.'" (citation omitted)); cf. United States v. Haut, 107 F.3d 213, 220 (3d Cir.1997) (noting that it "is a basic tenet of the jury system that it is improper for a district court to substitute[] [its] judgment of the facts and the credibility of the witnesses for that of the jury" (alteration in original) (citation and internal quotation marks omitted)). While Pozo's credibility and motivation for testifying may be open to question, his testimony itself was sufficient to permit a jury to reasonably conclude, by a preponderance of the evidence, that Bergrin did the things that Pozo said he did. See United States v. Bailey, 990 F.2d 119, 123 (4th Cir.1993) (explaining that a witness's testimony should not be precluded "simply because it is in conflict with or contradicted by other testimony" or is offered by a "witness [who] has an unsavory past," as those "are merely circumstances for the jury to consider").
Consequently, the Court was obliged to permit a jury to consider that testimony, provided it was otherwise admissible under the Federal Rules of Evidence.
The District Court did not believe that Pozo's testimony was otherwise admissible, because, under Rule 403, the Court determined that the testimony was cumulative and confusing, and that the prejudice from it substantially outweighed any probative value. All of those conclusions are problematic.
To begin with, it is not clear that the Court applied the proper test under Rule 403, because, at times, it spoke simply in terms of "prejudice" to Bergrin. (Joint App. at 23.) It must always be remembered that unfair prejudice is what Rule 403 is meant to guard against, that is, prejudice "based on something other than [the evidence's] persuasive weight." United States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir.2003); see United States v. Starnes, 583 F.3d 196, 215 (3d Cir.2009) ("[U]nfair prejudice does not simply mean damage to the opponent's cause." (citation and internal quotation marks omitted)). Assuming the Court was using the term "prejudice" as shorthand for "unfair prejudice," we are examining the kind of balancing decision to which we would ordinarily accord great deference. See United States
Pozo, as the District Court saw it, "would be another witness, a drug dealer who is claiming at some point some conversation occurred." (Joint App. at 25.) Assessing his proffered testimony in that light, the Court characterized it as having a "minimum degree [of persuasiveness]... with respect to intent." (Id.) An assumption about how the jury would view Pozo's credibility was, however, an improper basis for discounting his testimony's probative value. See United States v. Welsh, 774 F.2d 670, 672 (4th Cir.1985) ("[A]s a general rule, the credibility of a witness has nothing to do with whether or not his testimony is probative with respect to the fact which it seeks to prove."); 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5214 (4th ed. 1996) ("[I]t seems relatively clear that in the weighing process under Rule 403 the judge cannot consider the credibility of witnesses."). And that errant starting point likewise tainted the Court's conclusion that the jury would be confused by Pozo's testimony indicating that Bergrin told him to "take out" a cooperating witness. The only possible confusion, if it can be called that, would arise from discrediting the source of the testimony.
Stripped of improper credibility assessments, Pozo's proffered testimony is — as the District Court initially observed when saying it would be admissible — highly probative of Bergrin's guilt, because the factual similarities between the Pozo Plot and the Kemo murder truly are "striking." (Joint App. at 10.) Pozo was a drug dealer represented by Bergrin around the same time as the Kemo murder, and he was prepared to testify that Bergrin suggested that he kill a witness. Pozo's testimony is, therefore, powerfully suggestive of Bergrin's intent in passing Kemo's identity on from Baskerville to Curry. It is likewise relevant to deciding whether Bergrin uttered the words "No Kemo, no case," and, if he did, what he meant.
The government also asks that this case be given to another district judge, and we agree, reluctantly, that reassignment is appropriate. Our authority to direct the reassignment of a case on remand is based on 28 U.S.C. § 455(a) and 28 U.S.C. § 2106. United States v. Bertoli, 40 F.3d 1384, 1411 (3d Cir.1994). Under § 455(a), a judge should no longer preside over a case when "a reasonable person, with knowledge of all the facts, would conclude that the judge's impartiality might reasonably be questioned."
Although reassignment is an extraordinary remedy that should seldom be employed, see United States v. Higdon, 638 F.3d 233, 248 (3d Cir.2011) (recognizing that reassignment should "be considered seriously and made only rarely" (citation and internal quotation marks omitted)), we conclude that it is appropriate in this case despite our sincere respect for the District Judge who has presided to this point. Key to our decision is the District Court's repeated expressions of discomfort with the manner in which
The Court expressed that same fear when, after the government appealed the evidentiary rulings relating to the Kemo Murder Counts, it balked at the government's request to try the RICO counts. In suggesting that a trial of those counts would be a fundamentally unfair and inefficient use of prosecutorial resources, the Court said:
(Id. at 4461-62.)
To mitigate that perceived inequity, and in an apparent effort to dissuade the government from seeking to try the RICO counts, the Court tried to assure the government that "there would be a sentence that would reflect the severity of the Indictment's other charges if it secured a conviction on those charges. (Joint App. at 4460.) In that same colloquy, the Court did not dispute the government's assertion that the Court had "all but accused [the prosecution of] having wrapped [the Kemo murder and the Esteves Plot] in the Indictment in order to prevent [Bergrin] from getting a fair trial" (id. at 4450), confirming instead that, in the Court's view, it would indeed "have been inherently unfair to have [Bergrin] convicted under... RICO" (id. at 4463). Most recently, in ordering a second severance, the Court made clear its view that "trying Bergrin for his alleged involvement in the [Kemo] murder conspiracy with extensive evidence from the [Esteves Plot] ... would be fundamentally unfair and improper." (Id. at 67.)
Ultimately, in light of the District Court's statements — both before and after the earlier appeal in this case — about a perceived unfairness in trying the various witness-tampering counts together, we believe that the Court's "impartiality might reasonably be questioned," Wecht, 484 F.3d at 226 (citation and internal quotation marks omitted), and will therefore order that this case be reassigned under § 2106, see Bertoli, 40 F.3d at 1414 (noting that supervisory power reassignment has typically been applied "under an `appearance of impartiality' standard" (citation omitted)). Because the Court's discomfort with the Indictment may well have prompted its evidentiary and case management rulings (see Joint App. at 4458 (the Court's statement that it initially dismissed the RICO counts "because at the time I still was concerned about the RICO allegations, quite frankly, mostly for the same reason")), we direct the judge to whom this case is reassigned to consider anew whether the Indictment should be severed in any respect and, as necessary, the extent to which evidence of the Esteves Plot and the Pozo Plot can properly be used to prove the government's case against Bergrin on the Kemo Murder Counts.
For the foregoing reasons, we will vacate the District Court's decision to exclude evidence of the Pozo Plot and will direct the Chief Judge of the District Court to reassign this matter.
With respect to the Esteves Plot, we agree with the government that the District Court observed an unwarranted analytical distinction between a "prior bad act" and a "subsequent bad act," reasoning that the latter "looks more like evidence that is being offered to show that the accused is a `bad guy,' someone with the propensity to commit criminal acts." (Joint App. at 60.) Rule 404(b) refers to evidence of crimes, wrongs, or other acts, saying nothing about whether the act in question is a "prior" or "subsequent" act. That makes sense because light can be shed on motive, intent, and the other issues listed in Rule 404(b)(2) as much by a subsequent course of behavior as it can by a prior one. Cf. Huddleston, 485 U.S. at 686, 108 S.Ct. 1496 (referring to "similar acts evidence under Rule 404(b)" (emphasis added)). So although we once questioned, in dicta "[t]he logic of showing prior intent or knowledge by proof of subsequent activity," United States v. Boyd, 595 F.2d 120, 126 (3d Cir.1978), the District Court erred to the extent it dismissed the probative value of subsequent act evidence. See United States v. McGilberry, 620 F.3d 880, 886 (8th Cir.2010) ("Rule 404(b) draw[s] no distinction between prior and subsequent acts that would support different analyses...." (citation and internal quotation marks omitted)); United States v. Rutkoske, 506 F.3d 170, 177 (2d Cir.2007) ("The courts of appeals mostly agree that the admission of subsequent acts under Rule 404(b) is governed by the same four-part test as prior acts...."); United States v. Mohr, 318 F.3d 613, 617 (4th Cir.2003) ("Rule 404(b) ... covers evidence of both prior and subsequent acts."); United States v. Jernigan, 341 F.3d 1273, 1283 (11th Cir.2003) ("[T]he standard for evaluating the admissibility of a subsequent bad act under Rule 404(b) is identical to that for determining whether a prior bad act should be admitted under this Rule."); United States v. Echeverri, 854 F.2d 638, 645 (3d Cir. 1988) ("We do not dispute that there may be cases in which evidence of subsequent wrongful acts may properly be admitted under Rule 404(b)"); United States v. Alker, 260 F.2d 135, 157 (3d Cir. 1958) (stating that "prior and subsequent acts ... substantially similar to the subject matter forming the basis of the indictment [that] are probative to negate the inference that the crucial conduct was ... innocent").
Unlike the District Court's ruling with respect to the Pozo Plot, however, the District Court's decision to exclude evidence of the Esteves Plot was not clearly rooted in a flawed premise. Indeed, the Court spoke at length about its concerns regarding the nature of the Esteves Plot evidence, (see, e.g., Joint App. at 38 (explaining that if "there was a conviction, I would believe ... that that conviction was the result of the Esteves evidence, because I don't see how they could humanly put that out of their mind and the purposes of the cautionary instruction would be and then weigh the rest of this case accordingly")), and we cannot glean whether or not its Rule 403 balancing was tainted by the mistaken distinction it drew between subsequent and prior acts. Thus, it is difficult to tell whether or not the Court's judgment is entitled to the deference ordinarily accorded a Rule 403 decision. See Kellogg, 510 F.3d at 197 (stating the general maxim that "judicial self-restraint" is desirable "when a Rule 403 analysis of a trial court is reviewed" (citation and internal quotation marks omitted)). However, because we will be reassigning this case and directing the new district judge to determine afresh the admissibility of the Esteves Plot evidence, see infra Part II.C, we need not tackle the issue at this juncture. It suffices to say that, in considering that issue on remand, the judge should bear in mind that subsequent act evidence may be properly admitted under Rule 404(b), although Rule 403 permits exclusion when the probative value of such evidence is "substantially outweighed by a danger of ... unfair prejudice," see Fed.R.Evid. 403, which, again, refers to prejudice "based on something other than [the evidence's] persuasive weight." Cruz-Garcia, 344 F.3d at 956.
All of this, of course, becomes essentially moot if the new judge disagrees with the approach to severance that had been followed here, though a limiting instruction might still be warranted with respect to the jury's consideration of the Pozo Plot and the Esteves Plot in connection with the Kemo Murder Counts.
