U.S. v. LEE

se of discretion, which we have defined as `arbitrary or irrational.'" (citing In re Paoli R.R. Yard PCB Lit., 113 F.3d 444, 453 (3d Cir. 1997))). Here, the Court's ruling was certainly not so infirm. It, in effect, recognized that the prosecutor was only providing the jury with the inferential step that he hoped would be made: that Lee had particular reason to protect himself against gun violence by wearing body armor because he was himself carrying a gun. While prejudicial to Lee, it was not unfairly prejudicial to suggest that bullet-proof vests and guns often accompany one another.

In addition, while we do not think it helpful to view the bullet-proof vest as 404(b) evidence, any concern that the jury might have misinterpreted the relevance of the vest is laid to rest by the District Court's instruction that information related to the vest could only be considered for a limited purpose. The Court told the jury, twice, that it should consider the bullet-proof vest only for "deciding whether the defendant had the state of mind, knowledge, motive or intent necessary to commit the crime charged, or did not commit the acts for which he is on trial by accident or mistake." (App. at 644-45.) Thus, the Court's limiting instruction encouraged the jury to think of the vest only for what it might imply about whether Lee possessed a firearm when Kraus confronted him.

Limiting instructions are not limited to Rule 404(b) evidence. They are of assistance in other contexts where the jury needs to be directed to view a piece of evidence solely as it pertains to a specific issue. See, e.g., United States v. Jones, 566 F.3d 353, 359 (3d Cir. 2009) (finding that a court's limiting instruction was sufficient because it "differentiated [the defendant's offenses] from the other offenses connected to his co-defendant"); United States v. Green, 556 F.3d 151, 155 (3d Cir. 2009) (discussing limiting instructions in the context of admitting a piece of evidence under one of the exceptions to the hearsay rule); Vazquez v. Wilson, 550 F.3d 270, 279 (3d Cir. 2008) (discussing the use of limiting instructions in the context of alleged Bruton violations).

Given the high degree of deference we owe when reviewing a district court's Rule 403 determination, combined with the legitimate probative value of the evidence and the District Court's limiting instruction, we cannot say that the decision to admit the bullet-proof vest evidence was arbitrary or irrational.

C. Lee's Statements Regarding His Prior Possession of Firearms

Lee next argues that the District Court erred in admitting into evidence the statements he made to Kraus during their interview. Specifically, Kraus provided the following testimony at trial regarding those statements:

Lee insisted he does not typically own or carry guns. However, he did state that he has access to a lot of guns and would use them against anyone who threatens him or his family. He stated that he shot at an individual named Pickles, who was well known as Ernest Harris, on multiple occasions. He went on to say that I arrested Pickles, which is true, in the past, with a firearm. And Mr. Lee claimed that on that night, that . . . Pickles was arrested, that Pickles was actually on his way with that gun to kill Mr. Lee. He acknowledged that and said that there's a long time, ongoing violent feud between Mr. Lee's family and Pickles. . . . Lee continued to insist that he did not have any weapons in the car when I stopped him on June 27th, but he did compare that to a time when he stated that he fled from me before in the Hill District. . . . I do remember this. It would have been probably back in 2001 or 2002. . . . He further told me that if I would have caught him that night, I would have caught him with guns in the car, but, again, he continued to insist that he had no guns in the car on June 27th when I stopped him.

(App. at 417-18.) In short, Lee admitted that he had access to guns, that he was willing to use guns, that he had shot at someone with whom he had an ongoing feud, that that person had tried to kill him, and that he had possessed a gun at an earlier time when Kraus tried to stop him. Lee attempted to exclude those statements as impermissible evidence under Rule 404(b), arguing that they do nothing but show a propensity for unlawful gun possession. The District Court denied that motion and held that the statements were "admissible to prove intent, knowledge and/or the absence of mistake. Defendant has denied possession of the firearms in question here." ( Id. at 5.)

On appeal, Lee again argues that his statements constitute impermissible propensity evidence under Rule 404(b). "To the extent that our review of the district court's Rule 404(b) ruling requires us to interpret the rules of evidence our review is plenary, but, if the evidence could have been admissible in some circumstances, we would review the district court's decision to admit evidence . . . for an abuse of discretion." United States v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006) (citation omitted).

The Supreme Court has created a four-step test for the admissibility of evidence covered by Rule 404(b):

(1) the evidence must have a proper purpose under Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh its prejudicial effect under Rule 403; and (4) the court must charge the jury to consider the evidence only for the limited purpose for which it is admitted.

United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992) (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). Only the first, third, and fourth steps are contested here, as it is undisputed that, under step two, Lee's statements are relevant.

At least it is undisputed insofar as Lee's statements reflected his motives. See infra n. 22 and accompanying text.

i. Proper Purpose

If the proffered "evidence only goes to show character, or that the defendant had a propensity to commit the crime, it must be excluded. Where, however, the evidence also tends to prove some fact besides character, admissibility depends upon whether its probative value outweighs its prejudicial effect." Id. at 887 (citing Gov't of V.I. v. Harris, 938 F.2d 401, 419 (3d Cir. 1991)). If the government offers evidence of other wrongful acts, "it must clearly articulate how that evidence fits into a chain of logical inferences, no link of which can be the inference that because the defendant committed . . . [such an act] before, he therefore is more likely to have committed this one." Id. Nevertheless, Rule 404(b) "is inclusive, not exclusive, and emphasizes admissibility." Id. at 886 (citation omitted).

The government presents several arguments as to why Lee's statements are admissible under Rule 404(b). First, it says that Lee's statements are "relevant [to] and admissible regarding the key issue[] of knowledge." (Appellee's Ans. Br. at 45.) Lee's trial, however, was not about whether he knew that he had a rifle in the back seat of his Jeep. There was no question of accident or mistake. Rather, Lee's defense was simply that there was no rifle in his Jeep and that the rifle recovered at the Apartments was not his. Thus, the trial was about weighing Kraus's credibility against Lee's, and, as Lee rightly notes, "[i]t is inconceivable that if the jury believed [Kraus's] testimony it would have found that Lee acted by mistake." (Appellant's Op. Br. at 47.)

The government presses the point, however, saying that knowledge is at issue because Lee did not admit possession of any firearm. It relies on our decision in United States v. Givan, 320 F.3d 452 (3d Cir. 2003), in which the defendant was convicted of conspiring to distribute and possess with intent to distribute heroin. Id. at 455. There, we allowed the government to introduce into evidence the fact that the defendant had a prior felony drug conviction. We accepted the government's argument that,

because it had to prove that Givan knew, prior to its discovery by the troopers, that a quantity of heroin was hidden in the back seat of the rental car and that it had to prove that Givan possessed the heroin with intent to distribute it, knowledge and intent were material and contested issues at trial.

Id. at 460-61. Unlike in Givan, however, where the defendant denied knowing that there was heroin in the backseat of his rental car and that he intended to distribute it, Lee has not put knowledge at issue. Lee is not arguing that he did not know there was a rifle in his back seat. His argument is a straightforward denial that any gun was there.

The government also argues that Lee put his knowledge at issue when his counsel told the jury, "Yes, the police did find the rifle in the woods near where Mr. Lee abandoned his Jeep, but the evidence will show that he did not put it there." (App. at 334.) But the government's argument fails again. The quoted comment does not amount to a statement that Lee did not know the rifle was in his possession or near his vicinity; it was once more an out-and-out denial that he had anything to do with the gun.

The government does far better with motive as a theory of admissibility. According to the government, the statements Lee made to Kraus reveal Lee's motive for possessing firearms because he admitted that he has no qualms about using such weapons against anyone who threatens him or his family, and he stated that he was in a violent feud with Ernest "Pickles" Harris. See App. at 216 ("The defendant's statements regarding his motive for possessing firearms (to use them against anyone who would threaten Mr. Lee or his family, such as . . . `Pickles', with whom he and his family have had a long standing feud) is certainly relevant to his motive to possess a firearm in this matter."). We agree with that assessment of the statements. Not only did Lee claim that, at some point in the past, Harris had planned to shoot him and he had shot at Harris, he also admitted that the feud he and his family had with Harris was ongoing. Moreover, Lee conceded that he "has access to a lot of guns and would use them against anyone who threatens him or his family." ( Id. at 417.) Those statements reveal that Lee had reason to possess a weapon on the day in question.

The Dissent questions whether motive is "relevant in a case such as this . . . [because] we are not faced with a situation where answering `why' would help solve the crime. . . ." (Dissent at p. 7-8.) Motive is one of the permissible purposes listed in Rule 404(b) not because the "why" helps solve a crime, but because it is highly relevant to show that a defendant had a motivation to commit the crime for which he is being charged. In a case like this, where Lee is asserting that he never had a gun on the day in question, it is important to know that he had a personal motivation to possess a gun. Indeed, someone who is involved in an ongoing feud — a feud during which guns have been used — is far more likely to have a gun in his possession than someone who is not involved in such a feud. See United States v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002) ("[I]n cases where a defendant is charged with unlawful possession of something, evidence that he possessed the same or similar things at other times is often quite relevant to his knowledge and intent with regard to the crime charged. . . . [A] jury could infer possession from motive, which could in turn be inferred from intent.") (quotations omitted).
The Dissent also points out that the District Court did not cite to motive in its initial ruling on the admissibility of the statements. (Dissent at pp. 199-200.) However, the District Court did instruct the jury that it could "consider the evidence . . . for the purpose of deciding whether the defendant had the . . . motive . . . to commit the crime charged. . . ." (App. at 596.) That decision to instruct on motive is not without meaning. By offering motive as a basis on which the jury could consider the evidence, the District Court necessarily concluded that motive was a proper basis for admission of one or more of the statements.
Further, the Dissent's reliance on Sampson, in which we held that "[t]he district court, if it admits the evidence, must in the first instance, rather than the appellate court in retrospect, articulate the reasons why the evidence goes to show something other than character[,]" 980 F.2d at 888, does not account for language that follows immediately after that quote. We went on to say that, " Unless the reason is apparent from the record, a mere list of the purposes found in Rule 404(b) is insufficient." Id. (emphasis added). Motive, in this instance, is apparent from the record, and is an entirely legitimate basis upon which the jury could consider statements about Lee's reason for having a rifle, despite his denials. Lee's statements to Kraus reveal that he was afraid of being attacked by a specific person — who had attempted to kill him in the past — and that he would arm himself for his and his family's protection.
In sum, Lee had a compelling reason to arm himself, and that is directly relevant to the question of whether Lee had a rifle in his car.

We note that the final part of Lee's statements to Kraus — in which Lee admitted that he had possessed firearms on a prior occasion in 2000 or 2001 when Kraus stopped him — does not, in isolation, speak to motive in the same way as Lee's statements about possessing guns to protect his family and about his ongoing feud with Harris's family. Based on the record, we cannot tell whether, as a factual matter, the statement about 2000 or 2001 was part and parcel of Lee's first two statements about protecting his family and his violent feud with Harris. Moreover, it is not clear to us whether, as a procedural matter, defense counsel, in argument before the District Court, treated Lee's statements as one single conversation, or whether defense counsel treated the statements as analytically distinct. While defense counsel did parse the statements in a motion in limine submitted to the District Court, in the briefing before us, no distinction was drawn between the various admissions. ( See App. at 180.)

The Dissent slices the statement more finely than did the defendant in his motion in limine. Our dissenting colleague analyzes Lee's statement to Kraus by dividing it into six separate statements (Dissent at pp. 197-98), while Lee had divided it into three, leaving out certain elements of the statement altogether ( see App. at 180). As an initial matter, the Dissent separates the statement, "[Lee] shot at an individual named Pickles" from "[Pickles] was actually on his way with that gun to kill [Lee] . . . [and] there's a long time, ongoing violent feud between Mr. Lee's family and Pickles." ( Id.) The Dissent faults us for not separating those two statements. ( See Dissent p. 198 n. 2.) However, Lee never separated that description of the feud into two separate statements, and rightly so because those statements, as Kraus recounted them, can appropriately be viewed as a single statement about the feud. That Lee shot at Pickles also shows the degree to which the feud between them was real and violent, and not just a matter of heated words. It thus shows the high degree of Lee's motivation to possess a gun.
Moreover, at trial, Lee argued only that the entire interview with Kraus should be excluded, not that it should be parsed into six separate statements to be analyzed individually. The defense argument was simply to keep it all out. We should be wary of holding district courts to an analytical construct that was not fairly presented at trial.

Assuming that this last statement can, as a factual matter, be separated from Lee's first two statements, and assuming further that this last statement was argued separately to the District Court and so can be analyzed separately here, it was error to admit the third statement regarding Lee's 2000 or 2001 gun possession because that statement is not probative of motive (or any other permissible ground listed in 404(b)). Unlike the statements concerning the ongoing feud and his desire and capability to protect himself and his family with guns, his comment that he once had a gun years earlier does not, on its own, prove anything about a present motive to be armed. However, any error in admitting that third statement was harmless in the context of the overall admissions, because it was "highly probable" that the admission of Lee's final statement did not contribute to the conviction, especially considering the fact that the jury had just heard the previous two statements that spoke so directly to Lee's motive. See United States v. Ali, 493 F.3d 387, 392 (3d Cir. 2007) ("[T]he test for harmless error is whether it is highly probable that evidentiary error did not contribute to conviction." (citing Gov't of V.I. v. Toto, 529 F.2d 278, 283-84 (3d Cir. 1976))); 2A FEDERAL PROCEDURE, LAWYER'S EDITION § 3:8444 (1981) ("[F]ederal appellate courts are more willing to find harmless error in the area of evidentiary rulings than they are in other areas of procedure." (citing Julander v. Ford Motor Co., 488 F.2d 839, 843 (10th Cir. 1973))).

In discussing harmless error, our dissenting colleague suggests that the rest of the evidence of Lee's guilt was not "overwhelming," citing to, for example, Digger's equivocal actions near the rifle and the lack of forensic evidence. (Dissent at pp. 203-04.) However, the Dissent is not recognizing that 1) Lee fled from the original stop; 2) a coat matching what Kraus said he saw covering a long object in the backseat of Lee's Jeep was found with the rifle near the Jeep; 3) Lee admitted that he had abandoned the Jeep near where the rifle was found; and 4) Lee continued to be a fugitive until he was found hiding in a couch. These are not minor facts. They are, particularly in combination, powerful evidence of guilt, even without the 404(b) statements.

The government also contends that Lee's statements are admissible evidence of his modus operandi. The prosecution's theory is as follows: Lee admitted to fleeing from a traffic stop conducted by Kraus four years earlier because he had a weapon in his vehicle. That prior act shows Lee's method of flight to avoid conviction for weapons possession. We have held that "[a] jury can rationally infer from evidence that the defendant committed a prior crime in an unusual and distinctive manner and evidence that a second similar crime was committed in the same unusual and distinctive manner that the defendant committed the second crime." Givan, 320 F.3d at 467-68. But there was nothing unusual or distinctive about Lee driving away from the police back in 2000 or 2001. As Lee notes, "[t]he act of fleeing from a traffic stop to avoid being found with contraband is hardly so unique as to create an inference that Lee had a rifle in his Jeep here because he had a gun in his vehicle [before]. . . ." (Appellant's Op. Br. at 51.)

In conclusion, the government presented a "chain of logical inferences" between Lee's prior weapons possession and the rifle charge that does not suggest a mere propensity to engage in weapons offenses. Sampson, 980 F.2d at 887. Lee's statements about possessing guns to protect his family and about his ongoing and violent feud with Harris's family are relevant to show his motive for possessing a rifle on the day in question. Thus, the evidence was offered for a proper purpose under Rule 404(b).

ii. Probative Value v. Prejudicial Effect

Given the relevance of Lee's statements, we next determine under Huddleston whether, pursuant to Rule 403, the danger of unfair prejudice substantially outweighs the probative value of the statements. 485 U.S. at 691, 108 S.Ct. 1496. Given the substantial deference owed to district courts in weighing evidence under Rule 403, combined with the highly probative value of the evidence — particularly Lee's statements about his feud with Harris and what that revealed about Lee's motive — the District Court's decision to admit those statements was not "arbitrary or irrational." See Univ. Rehab. Servs., 205 F.3d at 669 ("[We] cannot reverse a District Court's conclusion under Federal Rule 403 unless such a conclusion is . . . `arbitrary or irrational.'" (citation omitted)). Indeed, the statements reveal Lee's motive to possess weapons on the day in question, which is highly probative in a case like this, in which the defendant has denied possession all together.

See supra n. 18 and accompanying text.

Our dissenting colleague asserts that we "never address[] the issue of prejudice" (Dissent at p. 202), but we have endeavored to do so here. To reiterate, it was not an abuse of discretion to conclude that the danger of unfair prejudice — i.e., that the jury would wrongly use Lee's admission of prior gun possession and use to conclude that he must have been guilty of the crimes charged here — did not substantially outweigh the relevance of the statements Lee made to Kraus. Application of the standard dictated by Rule 403 is, by definition, a judgment call. That the District Court could usefully have made that judgment call with a more explicit description of its "probative value vs. prejudicial effect" weighing of the evidence does not lead us to conclude that the experienced trial judge failed to apprehend the nature of the prejudice and the probative values at stake.

iii. Limiting Instructions

Lastly, Huddleston requires us to ensure that the District Court charged the jury to consider the evidence only for the limited purpose for which it was admitted. 485 U.S. at 691-92, 108 S.Ct. 1496. The District Court gave a limiting instruction as follows:

Now, you have heard evidence that the defendant . . . made certain statements to Lieutenant Kraus about his past possession and use of firearms when he was arrested on July 12, 2005. This evidence was admitted for a limited purpose only. You may consider this evidence only for the purpose of deciding whether the defendant had the state of mind, knowledge, motive or intent necessary to commit the crime charged in the indictment, or did not commit the acts for which he is on trial by accident or mistake. Do not consider the evidence for any other purpose.

Of course, it is for you to determine whether you believe this evidence, and if you do believe it, whether you accept it for the purpose offered. You may give it as much weight as you feel it deserved, but only for the limited purpose that I described to you.

The defendant is not on trial for committing these other acts. You may not consider the evidence of these other acts as a substitute for proof that the defendant committed the crime charged. You may not consider this evidence as proof that the defendant has a bad character or any propensity to commit crimes. Specifically, you may not use this evidence to conclude that because the defendant may have committed the other acts, he must also have committed the act charged in the indictment.

Remember, the defendant is on trial here only for possessing a firearm on the date in question, not for these other acts. Do not return a guilty verdict unless the government proves the crime charged in the indictment beyond a reasonable doubt.

(App. at 595-97) (quoting THIRD CIRCUIT MODEL JURY INSTRUCTIONS — CRIMINAL § 4.29 (2009).) At the conclusion of the District Court's instructions to the jury, defense counsel asked the Court to repeat the limiting instruction, which it did.

Now, for the first time, Lee challenges the adequacy of that instruction. Because he did not object at trial, any review of the instruction must be for plain error. See United States v. Olano, 507 U.S. 725, 734-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see also United States v. Pelullo, 399 F.3d 197, 221 (3d Cir. 2005) ("A party generally may not assign error to a jury instruction if he fails to object before the jury retires or to `stat[e] distinctly the matter to which that party objects and the grounds of the objection.'" (quoting Jones v. United States, 527 U.S. 373, 387, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999))).

Lee has not shown any error in this regard, much less plain error. Though Lee argues that the District Court's instruction provided no guidance because it simply repeated the litany of permissible theories under Rule 404(b), the Court in fact did more than simply list the 404(b) grounds. The instruction properly informed the jury of the limited purpose for considering Lee's admissions about gun possession. To the extent that Lee is now arguing that the jury could not have understood the instruction, we have rejected such sweeping and non-specific assertions before. See Givan, 320 F.3d at 462 ("[I]t is a basic tenet . . . that a jury is presumed to have followed the instructions the court gave it . . . [and i]f we preclude the use of evidence admissible under Rule 404(b) because of a concern that jurors will not be able to follow the court's instructions regarding its use we will inevitably severely limit the scope of evidence permitted by that important rule."). Lee's statements about possessing guns to protect his family and about his feud with Harris therefore meet the guidelines for admissibility articulated in Huddleston. They were admissible for a proper purpose under Rule 404(b) as evidence of Lee's motive for possessing a weapon; they are undisputedly relevant under Rule 402; the District Court's finding under Rule 403 that the danger of unfair prejudicial effect did not substantially outweigh the probative value of the statements was not arbitrary and irrational; and the District Court twice charged the jury to consider the evidence only for the limited purpose for which it is admitted. See Huddleston, 485 U.S. at 691-92, 108 S.Ct. 1496.

The implication from the Dissent is that the District Court's limiting instruction — which followed nearly word-for-word our Circuit's model 404(b) instruction — is inherently inadequate. ( See Dissent at pp. 201-02.) We disagree. The list of proper evidentiary purposes set forth in 404(b) and repeated in the model instruction, which is the list that the District Court used here, is not made improper solely because the Court was not as clear as it could have been in articulating why motive was a proper purpose that the jury could rely on when considering Lee's statements to Kraus. We take this opportunity to encourage district court judges to delineate the specific grounds for admissibility of 404(b) evidence, even if the entire 404(b) litany has already been recounted. Our dissenting colleague is quite right to note that comments to the model jury instructions encourage that practice. (Dissent at pp. 201-02 n. 8.) However, the government argued motive; motive is apparent on the record; and the District Court instructed on motive. Given the very deferential standard we are under, the instruction was adequate. To hold otherwise would be contrary to one of the overarching principles we referred to in Sampson, namely that "[Rule 404(b)] is inclusive, not exclusive, and emphasizes admissibility." 980 F.2d at 886.

The Dissent suggests that Lee's statements are also problematic because they were recounted by Kraus, rather than by Lee himself. ( See Dissent p. 204 n. 10.) But virtually every confession entered into evidence at a criminal trial is made to someone else and not on the stand by the defendant, and very often the confessions are made to police officers. We do not presume a reliability problem in all such cases. Here, Lee frankly confessed to Kraus his motive for and willingness to carry a firearm. Further, the defense theory of the case has not been that Lee never said to Kraus what Kraus claims Lee said. The dispute instead has consistently been about whether the statements should be allowed into evidence, not whether they were made.

D. The Prosecutor's Statements Regarding Digger

Lee next argues that he is entitled to a new trial based on two instances of prosecutorial misconduct. First, he contends that, during the government's closing, the prosecutor improperly referred to evidence regarding the bloodhound, Digger, that had been excluded by the District Court. Second, he asserts that the prosecutor vouched for the credibility of Digger based on his own personal experience with hunting dogs. That misconduct, says Lee, deprived him of due process and a fair trial.

i. Background

In a pre-trial motion, Lee sought to exclude the evidence of Digger's behavior as irrelevant, or, if relevant, inadmissible under Rule 403. Specifically, Lee argued that the evidence would make the jury believe that Digger "actually identified the gun and the jacket when, in fact, that's not what happened." (App. at 226.) Lee also attacked the probative value of the evidence, arguing that the officers searching the area had contaminated the Jeep and the scene so that the dog could not have reliably tracked a scent.

The Court held that the evidence of Digger's tracking was admissible, "as it tends to prove that [Lee], who had occupied the front seat of the Jeep, had traveled along the pathway where the coat and rifle were found and then on to the apartment complex. This is circumstantial evidence that [Lee] possessed and removed the coat and rifle from the Jeep." ( Id. at 2.) The Court added, however, that "the Government has agreed to eliminate any reference in the testimony that Digger paused at the coat and rifle, thus, further reducing any unfair prejudice to [Lee]." ( Id.)

The Court's meaning was plainly that the risk of unfair prejudice was reduced.

In light of the Court's pre-trial ruling, police officer Harkins, the dog handler, did not mention in his testimony that Digger "paused" at the coat and the rifle. Rather, he said that Digger went from the Jeep, "down a flight of steps, through a very overgrown weeded asphalt parking lot . . . slightly to the left angle of the fence." ( Id. at 458.) He added that Digger "went down the fence line approximately 20, 25 feet" ( id.), and that he came within "10 to 15 inches" of the rifle and the coat. ( Id. at 460.)

Lee argues that, unlike Harkins, the prosecutor disregarded the Court's instructions and argued exactly what the Court had excluded, namely, that Digger paused at the coat and rifle. The prosecutor said the following:

[W]hat Digger told us from Chief Harkins on the stand is that the person who was the driver of that car went straight down the steps, straight across the parking lot, deposited a gun, went through the fence . . . and then ultimately escaped.

. . .

What happened with Digger is that Digger came from the car, went down the steps, across the parking lot and to the gun. Digger did not go to the right where the first person to find this firearm went originally, Digger went in that exact path. Does this support Lieutenant Kraus or does it contradict him?

( Id. at 617; 619.) Lee did not object when those statements were made, but argues on appeal that in making those statements, the prosecutor was suggesting that Digger paused at the rifle, which was forbidden by the Court's earlier ruling. Lee contends that "it is [] improper for a prosecutor, during closing arguments, to bring to the attention to the jury any purported facts that are not in evidence and are prejudicial." (Appellant's Op. Br. at 59 (citation omitted).)

The second instance of alleged misconduct is what Lee calls the prosecutor's impermissible vouching for Digger, by "assuring the jury of Digger's credibility based on [the prosecutor's] . . . own personal experience hunting and tracking using dogs." ( Id.) The specific statements Lee points to are as follows:

I am a hunter. Some of you may be as well. As a hunter, I've had experience with dogs in the past. I've hunted with bird dogs and I've hunted with beagles for the majority of my life. It never ceased to amaze me when we were out with those dogs, their abilities.

When I rabbit hunt with my brothers and my father, we would sometimes see a rabbit, we would jump a rabbit and it would be running out front. Our dog, being much smaller than us, he couldn't necessarily see the rabbit, so we had a signal that we would tell the dog where we saw and what we saw. We would say, here's the bunny. That meant to the dog, we saw the rabbit, here's where we think it was. And the dog would come there and start to circle and from just going to that location, smelling in one direction and then smelling in the other, that dog could tell which one of those two tracks was fresher and go in the direction that the rabbit went to rather than where the rabbit came from. That never ceased to amaze me.

Or, when you hunted with bird dogs, that that bird dog would stop a foot and a half from this particular bird, a pheasant —

(App. at 615-16.) At that point, Lee's counsel objected, noting the "personal nature of the testimony which doesn't have anything to do with the evidence." ( Id.) The District Court sustained defense counsel's objection, stating that "we should move from that." ( Id.) The prosecutor complied and did not return to his reminiscing.

ii. Standard of Review: Prosecutorial Misconduct

We review for abuse of discretion a district court's ruling on a contemporaneous objection. United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003). However, any non-contemporaneous objections are reviewed for plain error. Id. While Lee objected to one portion of the prosecutor's closing argument — the portion that Lee now claims was vouching — he did not object to the part of the closing involving Digger's behavior near the rifle. It is only here on appeal that he asserts that the prosecutor committed misconduct by suggesting that Digger paused at the coat and rifle. Thus, we review the ruling on alleged vouching for abuse of discretion, and we review the prosecutor's description of Digger's behavior near the rifle for plain error.

Lee tries to argue that he preserved the issue by objecting to the prosecutor's proposed use of this evidence during a suppression hearing, reminding the Court of its ruling excluding the evidence, and noting in his own closing argument that the prosecutor's interpretation of the bloodhound evidence was incorrect. However, those are not objections raising the specific contention that the prosecutor had alluded to excluded evidence. In fact, there was no objection to the specific statements which Lee now argues contained excluded evidence.

A prosecutor's comments can create reversible error if they "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). "[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Moreover, we "must examine the prosecutor's offensive actions in context and in light of the entire trial, assessing the severity of the conduct, the effect of the curative instructions, and the quantum of evidence against the defendant." Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001). "A finding of prosecutorial misconduct requires reversal unless the error is harmless." Brennan, 326 F.3d at 182. "If the error is constitutional, we will affirm [only] if we determine that the error is harmless beyond a reasonable doubt." United States v. Helbling, 209 F.3d 226, 241 (3d Cir. 2000). "If the error is non-constitutional, we will affirm when it is highly probable that the error did not contribute to the judgment." Id. (quotation omitted).

iii. The Prosecutor's Alleged Reliance on Excluded Evidence

Though silent on the issue before, Lee now contends that the prosecutor committed misconduct by alluding to excluded evidence in suggesting that Digger "paused" at the coat and rifle. (App. at 2.) Lee's previous silence is understandable, since the record does not actually support his argument. At no time did the prosecutor state that Digger paused or hesitated at the coat and the rifle. While the prosecutor did state that "Digger came from the car, went down the stairs, across the parking lot and to the gun" ( Id. at 619), and while that comment arguably comes close to what was prohibited by the District Court, there was no assertion that the dog paused or alerted at the gun. Instead, a fair interpretation of the prosecutor's argument is that Digger led the police away from the car, down a path, and to the area where the coat and rifle were located, before heading to the Apartments. Given Harkins's testimony that Digger traced a path from Lee's car to within inches of where the police discovered the coat and rifle, the District Court's allowing the prosecutor's argument was not plain error. We have repeatedly held that a "prosecutor is entitled to considerable latitude in summation to argue the evidence and any reasonable inferences that can be drawn from that evidence." United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991) (citation omitted). That latitude encompasses the argument that the path that Digger tracked was evidence that Lee had dropped the coat and rifle by the fence.

iv. The "Vouching" Argument

A prosecutor may not vouch for the credibility of a witness based on the prosecutor's personal knowledge, experience, or opinions. See Young, 470 U.S. at 18-19, 105 S.Ct. 1038. Vouching occurs when two criteria are met: "(1) the prosecutor must assure the jury that testimony of a Government witness is credible; and (2) this assurance is based on either the prosecutor's personal knowledge, or other information not contained in the record." United States v. Walker, 155 F.3d 180, 187 (3d Cir. 1998). While Lee says that the prosecutor vouched for the bloodhound evidence, the government argues that there was no vouching because the prosecutor "merely told an anecdote about his own experience with Beagles and bird dogs." (Appellee's Ans. Br. at 64.) The government then argues that it is "common knowledge that dogs have an ability much greater than humans to detect scent." ( Id. at 65 (quotation omitted).)

Whether something is "common knowledge" to a group of people largely depends, of course, on the composition of the group. The amazing abilities of hunting dogs are not the common ken of all humanity. Perhaps the heightened ability of dogs to detect scent is well-known, but the prosecutor did not confine himself to that. Rather, he spoke from his own personal experience with dogs, dating back to his childhood, and reflected on the remarkable things he had witnessed. As a result, the jury may have been influenced by the prosecutor's experiences, thinking that the prosecutor's views bolstered the credibility of Kraus's and Harkins's testimony about Digger. This is what the rule against vouching prohibits.

The government argues that it "is unclear whether or not a prosecutor could be guilty for vouching for a police dog, who was not actually a witness in the matter." (Appellee's Ans. Br. at 64.) To the extent that Lee is complaining not just about the prosecutor's vouching for Kraus's and Harkins's testimony about Digger but is also saying that the prosecutor was vouching directly for Digger, an interesting question is raised. Assuming the latter problem were the only one at issue and we were not presented with a classic case of vouching for the credibility of a testifying witness, it would still be a close cousin of classic vouching. If the prosecutor was vouching for the reliability of Digger as an expert on tracking scent, using personal anecdotes to vouch for Digger's expertise, that would be impermissible because "[i]t is well settled that a prosecutor in a criminal case has a special obligation to avoid improper suggestions, insinuations, and especially assertions of personal knowledge[,]" United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998) (internal quotations omitted), which the I-know-dogs commentary was here.

However, even though the prosecutor did cross the line into improper vouching, a new trial is not warranted because it is highly probable that the error did not contribute to Lee's conviction, for several reasons. Helbling, 209 F.3d at 241. First and most significantly, the prosecutor did not continue the vouching once an objection was raised and the District Court directed the prosecutor to move on. See United States v. Galloway, 316 F.3d 624, 633 (6th Cir. 2003) (holding that, while prosecutor's statement concerning his personal opinion were improper, the statement did not warrant a reversal because the defendant objected at trial and the court sustained the objection and directed the prosecutor to move on). Second, the acuteness of Digger's sense of smell was of record through Harkins's testimony. Third, the testimony about Digger's behavior required no vouching. The dog went within inches of the rifle on its way to the Apartments. That concrete and specific evidence, not general praise for the nose on man's best friend, is what in all likelihood left an impression on the jury, if anything about Digger did. Fourth, the Court specifically instructed the jury that "what the lawyers said is not evidence and it's not binding on you." (App. at 589.)

While Lee describes vouching as a constitutional error, we have held that "vouching that is aimed at the witness's credibility and is based on extra-record evidence is deemed non-constitutional error." United States v. Dispoz-O-Plastics, Inc., 172 F.3d 275, 286 (3d Cir. 1999) (citing United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995)).

Lee notes that the District Court did not give any curative instruction after it sustained his objection. However, defense counsel never requested one, and the prosecutor moved on immediately after the Court sustained the objection.

Thus, despite the wholly unnecessary vouching for the testimony about Digger and the gratuitous comments about a dog's ability to track a scent, a new trial is not warranted because it is highly probable that the misconduct did not contribute to the judgment.

Lee challenges his sentence, arguing that the District Court erred in classifying his misdemeanor conviction for reckless endangerment as a "crime of violence," thereby increasing his offense level under the career offender enhancement found in § 2K2.1(a)(2) and (a)(4) of the Sentencing Guideline s. The government had argued to the District Court that Lee's conviction was a crime of violence under the Guidelines but, on appeal, concedes that "reckless conduct, standing alone, is not the type of purposeful conduct that can constitute a crime of violence . . . [and thus, Lee's] sentence should be vacated and the case remanded for the purposes of re-sentencing." (Appellee's Ans. Br. at 68 (citation omitted).)

The District Court employed the 2007 edition of the Guidelines Manual, effective November 1, 2007.

Lee and the government are correct in their agreement about the law. Following Lee's sentencing hearing, the Supreme Court decided Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), in which it effectively held that, to qualify as a crime of violence, the crime at issue must present "a serious potential risk of physical injury" and be one that "typically involves purposeful, violent, and aggressive conduct." Id. at 144-45, 128 S.Ct. 1581. The Court expressly distinguished crimes involving negligence or recklessness from those involving violence or aggression. Id. at 146, 128 S.Ct. 1581; see also United States v. Johnson, 587 F.3d 203, 208 (3d Cir. 2009). Thus, following Begay, a conviction for mere recklessness cannot constitute a crime of violence.

While the Begay Court addressed the definition of "violent felony" under the Armed Career Criminal Act ("ACCA"), we have since held that the definition of "violent felony" in the ACCA and the definition of a "crime of violence" in the Sentencing Guidelines are "close enough that precedent under the former must be considered in dealing with the latter." United States v. Polk, 577 F.3d 515, 519 n. 1 (3d Cir. 2009) (citations omitted).

Other circuits addressing the issue have similarly held that, after Begay, reckless conduct does not qualify as a crime of violence. Johnson, 587 F.3d at 211 n. 8. See, e.g., United States v. Baker, 559 F.3d 443, 453 (6th Cir. 2009) (holding that Tennessee's reckless endangerment statute does not qualify as a crime of violence); United States v. Smith, 544 F.3d 781, 786-87 (7th Cir. 2008) (finding that Indiana's criminal recklessness statute is not a crime of violence); United States v. Gray, 535 F.3d 128, 131-32 (2d Cir. 2008) (holding that New York's reckless endangerment statute is not a crime of violence).
Pennsylvania's reckless endangerment statute, under which Lee was convicted, states that "[a] person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 PA. CONS. STAT. § 2705.

Lee's earlier-noted conviction for concededly reckless conduct, standing alone, does not qualify as a crime of violence. Accordingly, as the parties agree, Lee's sentence must be vacated and the case remanded for re-sentencing.

F. The Constitutionality of the Felon-In-Possession Statute

Finally, Lee argues that the felon-in-possession statute is unconstitutional. He recognizes, however, that we are bound by our decision in United States v. Singletary, 268 F.3d 196, 198-205 (3d Cir. 2001), in which we confirmed the constitutionality of the felon-in-possession statute, and he acknowledges that he presents this issue only "to preserve a challenge to the constitutionality of [the felon-in-possession statute] for Supreme Court review." (Appellant's Op. Br. at 80.) We therefore reject that argument without further discussion.

III. Conclusion

For the reasons discussed above, we will affirm Lee's conviction but will vacate his sentence and remand for re-sentencing.