MEMORANDUM OPINION
NEAL BIGGERS JR., Senior District Judge
This cause comes before the court on the bench trial held August 2-5, 2010. After consideration of the testimony, evidence, and exhibits presented at trial and the post-trial briefs submitted by the parties, the court finds as follows.
Factual and Procedural Background
The issue in this case involves questions of real property law that date back to the 1970s. In 1978, the Tennessee Valley Authority ("TVA") began construction of a nuclear power plant on the Tennessee River in Tishomingo County, Mississippi, in an area of the river known as "Yellow Creek." To serve this nuclear facility, a railroad access line was built in 1980 from the Yellow Creek site connecting with the Norfolk and Southern Railway Line approximately ten miles from the Yellow Creek site. The decision by TVA that a nuclear power plant was needed in the area was short-lived. After the expenditure of several million dollars, TVA decided in 1984 that the nuclear generating plant would not be financially productive, and the plans were abandoned, leaving a partially completed facility vacant on Yellow Creek.
TVA later transferred its interests in the Yellow Creek site to the National Aeronautical and Space Administration ("NASA") which took over the defunct, partially completed nuclear facility with plans to use it for the building of a solid-fuel rocket manufacturing facility to be used in its space exploration program. This decision by NASA also was short-lived. In 1993, Congress pulled funding, and the plans for the solid-fuel rocket plant at Yellow Creek were cancelled. Before the death warrant for the rocket plant was signed, NASA had conveyed several public utility easements within and along the length of the railroad right-of-way at Yellow Creek, including a fiberoptic telecommunications easement to BellSouth, for the purpose of communication service to the rocket facility. At the time the rocket plant was abandoned, however, BellSouth had not yet begun installing the buried single-duct fiberoptic cable planned for the easement.
With the plans for the two federal facilities cancelled, in 1996 the United States conveyed the real property and the facilities thereon, including the buildings and railroad access line, by quitclaim deed to the State of Mississippi. This deed was recorded in the deed books of Tishomingo County, Mississippi, in which the property was situated. The quitclaim deed mentioned public utility easements, including the easement from NASA to BellSouth.
In an attempt to attract industry to the Yellow Creek site, the State of Mississippi gave the Mississippi Department of Economic and Community Development ("MDECD") (subsequently known as the Mississippi Development Authority) the responsibility to manage the Yellow Creek site as an industrial park to be called the Tri-State Commerce Park. In the spring of 1999, representatives of the plaintiff Tishomingo Railroad Company ("TRC") contacted MDECD about obtaining a lease of the railroad access line and equipment and the railroad right-of-way as an entrepreneurial project to provide access to the park for industries which might locate in the park. TRC representatives sent a proposed lease to MDECD's office in Jackson, Mississippi, and discussions about this draft lease — from the State of Mississippi to the TRC entrepreneurs — took place between Robert Crawford, the father of plaintiff Bruce Crawford, and Bob Smira, a deputy director of MDECD. TRC and MDECD entered into an operating agreement, which the parties refer to as a "Letter of Understanding," on October 4, 1999. This document was signed by Bruce Crawford on behalf of TRC and Dr. Bob Robinson, MDECD's site manager at Yellow Creek. Upon obtaining the signed Letter of Understanding from MDECD, TRC filed a Notice of Exempt Transaction with the Surface Transportation Board ("STB"), and the STB issued a Class III Permit authorizing TRC to operate the railroad access line on the property. TRC later prepared another document, also signed by Crawford and Robinson, known as the "Amendment to Letter of Understanding." The agreement granting TRC the authority to operate the abovedescribed railroad reflected by the two "Letters of Understanding" is still in effect. The parties, however, never entered into a formal lease agreement.
The plaintiffs herein filed this complaint in the Chancery Court of Tishomingo County, Mississippi, on November 15, 2006, seeking damages from BellSouth for trespassing on the TRC railroad right-of-way by placing fiberoptic cables along the right-of-way and for the continued use of the cables through the present time; however, TRC was sold to Mississippi Central Railroad ("MCRR") effective August 1, 2009. Prior to the sale to MCRR, TRC granted to plaintiff Bruce Crawford, individually, the right to retain for himself any licensing fees that may be owed to TRC at the time of the sale, thus the standing of Bruce Crawford as an individual plaintiff herein. MCRR was made a co-plaintiff in this case pursuant to Federal Rule of Civil Procedure 19 and seeks damages from BellSouth from the date of its purchase from TRC until the present.
Findings of Fact and Conclusions of Law
The plaintiffs Tishomingo County Railroad and Mississippi Central Railroad argue that this court does not have jurisdiction to determine whether the Letters of Understanding were a lease, because, they argue, only the national Surface Transportation Board ("STB") can hear challenges to the authority of railroad companies operating on its tracks. The court rejects this argument as it is contrary to the Surface Transportation Board's own rulings. As the STB has explained, "it is well settled that the interpretation of deeds and the determination of who owns good title to property are issues of state law that are outside of the expertise of the [STB]." Cent. Kansas Railway, LLC — Abandonment Exemption — In Marion and McPherson Counties, KS, No. AB-406, 2001 WL 489991, at *2 n. 2 (STB May 3, 2001). See also Hayfield N. R.R. v. Chicago N.W. Transp., 467 U.S. 622, 634 (1984); Presault v. Interstate Commerce Commission, 494 U.S. 1, 8 (1990) (state law governs disposition of reversionary interests subject to the STB's jurisdiction to regulate abandonments); Kansas City Public Service Freight Operation — Abandonment Exemption — In Jackson County, MO, No. AB-321-X, 1990 WL 300646, at *7 (STB Dec. 20, 1990) (issues of real property rights are within exclusive jurisdiction of the State). The STB has explicitly recognized that "its involvement . . . was not needed" in determining real property rights because the issue of "what property rights the landowner had was the type of issue the courts are well suited to address." En Banc Brief of Amicus Curiae Surface Transportation Board, Franks Investment Co. v. Union Pacific R.R. Co., 593 F.3d 404 (5th Cir. 2010) (No. 08-30236), 2009 WL 6297302, at *17. The STB further acknowledged that if it were required to resolve such disputes, "the crush of cases would significantly overburden the STB's resources . . . not only because of the sheer number of cases that could be brought . . . but also because the Board has no particular expertise or familiarity with the property laws of each state." Id. at *17-18. The Franks court ultimately determined that a state landowner's suit to prevent the defendant railroad from closing four private right-of-way crossings was not preempted by federal laws managing and governing rail transportation. Franks, 593 F.3d at 415. In accordance with the STB's rulings as well as the Fifth Circuit and U.S. Supreme Court cases cited, this court finds that it has proper jurisdiction over the present action.
Several discussions took place between TRC representatives and MDECD about the proposed lease, but no formal lease was ever signed and executed by the required officials of MDECD. The two parties did, however, enter into a written operating agreement, reflected in the Letter of Understanding referenced hereinabove, in October of 1999. That agreement is still in effect, and no further documents have been signed or created between TRC (or its successor, MCRC) and the State of Mississippi. TRC filed a notice of exemption under 49 C.F.R. 1150.31 with the STB, and the STB's exemption decree was published to become effective on October 28, 1999. In December 1999, the agreement between TRC and the State of Mississippi was amended to give TRC the use of the railroad right-of-way and to allow it to keep the proceeds from the licensing of easements along the right-of-way without having to share any of those proceeds with the State. TRC and the State of Mississippi have entered into no further definitive agreements.
Jimmy Heidel, Executive Director of MDECD when the Letters of Understanding were signed, testified that he was the only person in his agency at that time with the statutory authority to sign a lease of real property on behalf of the State of Mississippi and that he never signed a lease from the State of Mississippi to TRC, and he never assigned that authority to anyone in MDECD while he served as its executive director.
The plaintiffs characterize this agreement as a "leasing agreement," and the agreement does refer to TRC as a "lessee" and the State of Mississippi as a "lessor." The defendant asserts that this agreement is not a valid lease conferring any property rights to TRC because it was not executed by the necessary officers of the State of Mississippi who must sign a lease for it to be effective, and that it served as merely an operating agreement until a formal lease could be agreed on and executed. A formal lease between the parties has never been agreed on and executed.
The court finds that BellSouth did have a valid easement along the railroad right-of-way prior to the plaintiffs entering the property. NASA granted an easement along this railroad right-of-way to BellSouth in early 1993. Although BellSouth failed to record the easement in the land records of Tishomingo County, the easement was made a matter of public record when it was described in the deed from NASA to the State of Mississippi, which was recorded on March 22, 1996, in the land records of Tishomingo County. Neither TRC nor MCRC nor any of their principals ran a title check on the property involved along the railroad right-of-way prior to their actions to lease, purchase, or operate the property or prior to their financial investments in the property.
Notwithstanding BellSouth's prior vested easement in a portion of the railroad right-of-way granted by NASA, the plaintiffs note that the undisputed evidence is that the fiberoptic cables laid along the right-of-way are not laid within the specific boundaries of the NASA easement, except for a small portion of approximately 200 feet of the ten miles of railroad. The court finds this fact to be immaterial, however, because of the plaintiffs' actual or constructive knowledge of BellSouth's installation of the fiberoptic cable, the plaintiffs' joint venture partners' involvement in the installation, and the plaintiffs' acquiescence in the installation.
After TRC received the operating agreement from the State of Mississippi, Jerry Beasley, a BellSouth representative, had a meeting with Robert Crawford, father of the plaintiff Bruce Crawford. In this meeting, Robert Crawford was representing a company by the name of North American Software, later known as North America Datacom ("NADC"), which, through its subsidiary or affiliate North American Infotech ("NAIT"), was installing conduit along the railroad right-of-way to accommodate fiberoptic cable. Beasley, on behalf of BellSouth, made it known that BellSouth wished to purchase one of the three conduits laid by NAIT for use by BellSouth in installing fiberoptic cable along the right-of-way. During these discussions, representatives of NAIT and NADC gave Mr. Beasley a business card listing Bruce Crawford, the plaintiff here, as president of plaintiff TRC. No one at the meeting mentioned anything about BellSouth needing a permit or paying a license fee to lay its cable in the conduit purchased by BellSouth from NAIT. After BellSouth bought the conduit from NAIT for $43,534.05, BellSouth installed its fiberoptic cable in the conduit — a process that took from at least four to six weeks to complete. All the conduit work was done on the railroad right-of-way over which TRC was operating. During this time BellSouth workers saw the TRC train moving past them along the track and at least one time waved at the engineer, and the engineer waved back. Plaintiff Bruce Crawford testified he was the only person who was authorized to be an engineer on the train of TRC. The parties have stipulated that the first installation of the cable was completed by June 2001.
Bruce Crawford asserts that on April 13, 2002 — well after BellSouth had purchased the conduit and laid its cable in the conduit — he faxed a letter to Casie Jones, the designer for North Star Communications, one of BellSouth's contractors, stating that it had come to his attention that BellSouth had installed fiberoptic cables on the railroad's right-of-way and that TRC and BellSouth would need to arrange a licensing agreement for this and proposed installations. Jones testified that she never received the letter and that, if she had, she would have forwarded the matter to her supervisor to handle, as she had no responsibilities related to negotiations for licensing agreements. Although the plaintiffs admit they knew of the installation by April 2002 (and evidence reflects they had knowledge as early as mid-2001), they did not send BellSouth an invoice for licensing fees until May 2004 and did not file their complaint in this action until November 15, 2006.
The court sets forth this finding to show the plaintiffs' acquiescence in BellSouth's easement — not to address a statute of limitations argument. The plaintiffs attempt to recover from BellSouth under an "open account" claim. Section 15-1-29 of the Mississippi Code provides a three-year limitation period after accrual for "actions on an open account . . . not acknowledged in writing. . . ." The plaintiffs assert that BellSouth should have paid licensing fees to them on an annual basis. Because the first fiberoptic lines were laid by June 2001, according to the plaintiffs, the statute of limitations would not begin to run until June 2002. The plaintiffs acknowledge that the statute of limitations on the 2002 payment and the 2003 payment expired before they filed this suit on November 15, 2006, but allege that the subsequent annual payments — 2004 through 2010 — are not barred by the statute. The court's ruling on the merits herein in favor of BellSouth negates the need for further analysis of a statute of limitations argument.
The court concludes from the evidence that the plaintiffs had constructive and, most likely, actual knowledge of BellSouth's installation of the fiberoptic cable as early as mid-2001. The court bases its conclusion in part on the fact that Bruce Crawford's father, Robert Crawford, as a representative of NADC and NAIT, was present at the negotiations for BellSouth's purchase of the conduit. Robert Crawford was not only principal of the company laying the conduits, NAIT, but was principal at one time of the plaintiff corporation Tishomingo Railroad Company. Robert Crawford had an office in the same building at the Yellow Creek facility as did plaintiff Bruce Crawford. The court further bases its conclusion on the fact that the trucks and employees of BellSouth and its contractors were present on the railroad right-of-way throughout the installation project while the TRC train traveled the railroad and that a BellSouth representative was handed a business card at the negotiation meeting and told to contact Bruce Crawford when the cable was to be laid in the conduit so to avoid any scheduling matters or conflicts interfering with the operation of the railroad. This knowledge on the part of the plaintiffs and the plaintiffs' failure to make an actual claim for licensing fees until 2004 reflect the plaintiffs' acquiescence regarding BellSouth's easement.
The court finds that TRC, NADC, and NAIT were partners in a joint venture regarding the fiberoptic telecommunications network they attempted to establish at Tri-State Commerce Park and along the railroad right-of-way operated by TRC and the railroad right-of-way owned by Norfolk Southern Railway running west from Iuka, Mississippi, to Memphis, Tennessee, and east to Chattanooga, Tennessee. The record reflects that each of the three entities contributed capital and services to the joint venture and each sought to earn a profit from it. Notice to one partner of a joint venture serves as notice to all the partners. The Mississippi Supreme Court "has stated on several occasions that the Uniform Partnership Act (UPA), which this state adopted in 1976, is applicable to joint ventures." Duggins v. Guardianship of Washington Through Huntley, 632 So. 2d 420, 427 (Miss. 1993). The Mississippi Uniform Partnership Act provides: "A partner's knowledge, notice, or receipt of a notification of a fact relating to the partnership is effective immediately as knowledge by, notice to, or receipt of a notification by the partnership. . . ." Miss. Code Ann. § 79-13-201(f). Further, the actions of one partner of a joint venture bind all other partners. "Every partner is an agent of the partnership for the purpose of its business, and the act of every partner . . . for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership. . . ." Duggins, 632 So. 2d at 427 (quoting Miss Code Ann. § 79-12-11 (1972), which has since been repealed and replaced by Miss. Code Ann. § 79-13-301 (2005), which includes a similar provision: "Each partner is an agent of the partnership for the purpose of its business. An act of a partner . . . for apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership binds the partnership. . . .").
In the present case, Jerry Wilemon, vice president of engineering for NAIT, and Robert Crawford, president of NADC and plaintiff Bruce Crawford's father, had actual and apparent authority to give BellSouth permission to purchase the conduit and install its fiberoptic lines therein. BellSouth, following instructions from NAIT and NADC, notified Brian Rushing, an employee of NADC, each day before entering the subject property and installing the fiberoptic lines. Rushing would, in turn, inform BellSouth whether it could proceed on that particular day or whether TRC's operations would prevent installation from proceeding at that time. On a daily basis, Rushing watched Stevens Construction, a BellSouth contractor, install the fiberoptic system in the conduit purchased by BellSouth along the right-of-way, and Rushing inspected and approved the work as it was completed. Further, Josh Ward, a contract worker for BellSouth, testified that he had a conversation with Bruce Crawford prior to the cable installation about when BellSouth would be installing cable in the conduit purchased from NADC and NAIT. At that meeting, Bruce Crawford gave Ward a business card with Bruce Crawford's name on it and told Ward to call him when he was installing the cable.
As mentioned above, despite many discussions between TRC, through Bruce Crawford, and MDECD, there was never a formal lease agreed on and executed between the parties. The Letters of Understanding were not signed by the State of Mississippi officials who must execute a lease if it is to be binding. The Letters of Understanding merely served to authorize TRC to operate the railroad and use certain other property until a formal binding lease could be agreed on. In a letter of August 29, 2000, Bruce Crawford wrote to MDECD that he included a proposed lease only "for discussion purposes." One of the main sticking points which prohibited an agreement on a lease was that the State of Mississippi insisted on making any lease subject to prior easements granted along the railroad right-of-way. Because no agreed lease was ever executed between the parties TRC and the State of Mississippi, TRC was never granted the authority to sell right-of-way licenses for easements along the right-of-way. Just because the plaintiffs call the Letters of Understanding a lease does not make them a lease, as a valid lease could only be executed by the Executive Director of MDECD or the Secretary of State after all parties agreed to the terms.
TRC made the decision to allow NAIT to lay the conduit where it is now located, and the BellSouth cable is in that conduit. BellSouth's purchase of the conduit and the installation of the fiberoptic cables within that conduit created an implied easement by necessity. "To establish an easement by necessity, one must prove that (1) the dominant and servient parcels were once under common ownership, (2) severance by the common owner(s), (3) the necessity for the easement arose at the time of the severance by the common owner(s) and (4) the necessity is continuing." Daley v. Hughes, 4 So. 2d 364, 368 (Miss. Ct. App. 2008). Each of these elements is met in the present case in regard to BellSouth and its use of the conduit. BellSouth is therefore entitled to use the right-of-way pursuant to their implied easement by necessity in addition to the NASA easement, which this court has already ruled valid hereinabove.
When MDECD took over Tri-State Commerce Park at Yellow Creek, it hired Mickey Milligan as a contract employee to attract industrial clients to set up businesses at the park. The businesses that came into the park did not have leases originally, including TRC. All had merely "letters of understanding" as did TRC, but all of the "letters of understanding" had been replaced by formal leases by 2003 except for those between TRC and the State of Mississippi. The Letters of Understanding in the present case do not convey right-of-way easements or the right to sell right-of-way easements. The persons who signed the Letters of Understanding on behalf of the State of Mississippi had no authority to convey any interest in real property owned by the State — whether leasehold interest, fee simple, or otherwise. Plaintiff Bruce Crawford exchanged proposed leases with MDECD several times but none was ever executed. Dr. Bob Robinson signed the Letters of Understanding giving TRC operating rights on the railroad until a formal lease could be signed, but Robinson told Bruce Crawford that he had no authority to sign a formal lease — that a formal lease would have to be agreed on and signed by the proper authorities.
It is clear that a valid lease conveying property rights did not exist between TRC and the State of Mississippi; however, the court finds this question ultimately to be immaterial since, in addition to the NASA easement and the implied easement by necessity, BellSouth also had authority to locate its fiberoptic lines on this public land along this public right-of-way pursuant to Mississippi Laws of 1886, Chapter 38, ("the 1886 Act"), which provides in pertinent part:
Be it enacted by the Legislature of the State of Mississippi, that any telegraph or telephone company, chartered or incorporated by the laws of this or any other State of the United States, shall, upon making due compensation, as hereinafter provided, have the right to construct, maintain and operate telegraph or telephone lines through any public lands of this State, and on, across and along all highways, streets and roads, and across and under any navigable waters, and on, along upon the right-of-way and structures of any railroad. . . .
The Mississippi Supreme Court upheld and enforced the 1886 Act in Southern Bell Tel. Tel. Co. v. City of Meridian, 131 So. 2d 666 (Miss. 1961), which has never been overruled and continues to serve as binding authority on this issue. The court held that Southern Bell's "acts of acceptance" of the rights provided by the Act (i.e., construction of lines, maintenance, etc.) "resulted in the creation of an irrevocable contract between [Southern Bell], on the one hand, and the State, on the other, which is protected from impairment by the contract clause of the State Constitution." Id. at 670. The court concluded that any attempt by the legislature to enact a state law imposing a rent or charge on Southern Bell for the placement of its telephone lines or facilities on state public right-of-way was invalid "since it would impair the property right vested in Southern Bell." Id. at 675. Defendant BellSouth is a successor in interest to the legal rights of Southern Bell in the State of Mississippi, and its vested contract right applies to after-acquired property held by the State or its subdivisions. See Davis v. South Central Bell Telephone Co., 480 F. Supp. 826, 829-30 (S.D. Miss. 1979).
The plaintiffs assert that BellSouth does not have standing to contest the validity of the "lease" between TRC and the State of Mississippi (which ultimately conveyed the property to Tishomingo County) because BellSouth is not a party to the lease and is not a third-party beneficiary to the lease. This court finds to the contrary. BellSouth has standing to attack the scope of the rights granted under this putative lease between TRC and the State because BellSouth has a vested contract right to be on this public land along this public right-of-way pursuant to the 1886 Act as interpreted by the City of Meridian case. The court finds that in addition to the NASA easement and the easement by necessity, established when BellSouth purchased the conduit along the TRC right-of-way, the City of Meridian case also defeats the plaintiffs' claim that BellSouth owes licensing fees.
Conclusion
For the foregoing reasons, the court finds in favor of the defendant BellSouth in all respects. A separate order in accord with this opinion shall issue this day.
This, the 21st day of September, 2010.
ohnson,
199 F.3d 123, 128 (3d Cir. 1999). To the extent Ferguson's arguments were not made to the District Court, we review for plain error. Rule 403 provides that" [a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed.R.Evid. 403.
As to the District Court's failure to hold a hearing before allowing Crowe to testify, our case law does not obligate a district court to employ any particular means (such as a hearing) in order to convince itself that Rule 403's balancing test has been satisfied. Thus, the District Court's failure sua sponte to hold a hearing to probe the circumstances leading up to Crowe's testimony in performing its Rule 403 analysis was not error (much less plain error). In fact, the District Court did address the potential for Crowe's testimony to generate unfair prejudice of the type with which Rule 403 concerns itself. Namely, it instructed the jury on how to consider Crowe's self-interest in evaluating his testimony. App. 3461. And as to Crowe's testimony itself, while Ferguson asserts that it was unduly prejudicial, he fails to explain why any such prejudice was undue. We hold that the District Court did not commit reversible error in denying Ferguson's motions in limine.
Ferguson's argument that the District Court's decision to deny his motion in limine on these bases violated (apart from Rule 403) his Fifth Amendment right to due process is equally meritless.
2. Rule 404(b)
Ferguson next argues that the District Court plainly erred in admitting into evidence, pursuant to Federal Rule of Evidence 404(b), a stipulation that Ferguson had been arrested in 1999 on several drug charges. Specifically, Ferguson argues that the District Court's jury instruction explaining that the evidence was admissible only for the limited purpose of impeachment was substantively inadequate and was given too late.
We review the District Court's decision to admit evidence of Ferguson's prior criminal convictions pursuant to Federal Rule of Evidence 404(b) for plain error, because Ferguson never objected to this evidence at trial. See Gov't of V.I. v. Archibald, 987 F.2d 180, 184 (3d Cir. 1993)
Rule 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Fed.R.Evid. 404(b).
If a court decides to admit evidence of prior bad acts pursuant to Rule 404(b), it must give a limiting instruction concerning the purpose for which the evidence may be used. United States v. Mastrangelo, 172 F.3d 288, 295 (3d Cir. 1999). The instruction must be evaluated" not `in artificial isolation, but . . . in the context of the overall charge.'" United States v. Price, 13 F.3d 711, 724 (3d Cir. 1994) (quoting United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975)) (alteration in Price). The instruction need not contain any particular language, as long as it adequately prevents unfair prejudice. SeeUnited States v. Daraio, 445 F.3d 253, 265 (3d Cir. 2006). There is also no rigid rule about the timing of a limiting instruction; the focus, again, is on whether the instruction (at the time it was given and in the manner it was given) sufficed to prevent unfair prejudice. SeeUnited States v. Hakim, 344 F.3d 324, 326 (3d Cir. 2003).
The District Court did not plainly err in giving its limiting instruction. That instruction provided:
Evidence that an act was done or that an offense was committed by a Defendant at some other time is not, of course, any evidence or proof whatever that at another time a Defendant performed a similar act or committed a
similar offense, including the offense charged in the superseding indictment. Evidence of a similar act or offense may not be considered by the jury in determining whether a Defendant actually performed the physical acts charged in the superseding indictment. Nor may such evidence be considered for any other purpose whatsoever unless the jury first finds beyond a reasonable doubt from other evidence in the case standing alone that the Defendant physically did the acts charged in the superseding indictment.
If the jury should find beyond a reasonable doubt from other evidence in the case that a Defendant did the act or alleged in the superseding indictment, the jury may then consider evidence as to an alleged earlier act of a like nature in determining the knowledge, intent, or motive of the Defendant.
App. at 3465. We believe that this instruction is similar, in material respects, to the one we held satisfied Rule 404(b) in Daraio:
You must not consider any of this evidence in deciding if the defendant committed the acts charged in this indictment. However, you may consider this evidence for other very limited purposes.
If you find beyond a reasonable doubt from the other evidence in this case, that the defendant did commit the acts charged in the indictment, then you may consider the evidence of similar acts allegedly committed on other occasions, to determine, one, whether the defendant had the intent necessary to commit the crime charged in the indictment; two, whether the defendant had the motive to commit the act charged in the indictment; or, three, whether the defendant willfully committed the acts for which she is on trial, or rather committed them by accident, negligence, or mistake.
445 F.3d at 257. That instruction survived abuse-of-discretion review.
Id. at 259 (indicating use of abuse of discretion standard of review of district court's Rule 404(b) ruling). The one given by the District Court here, then, comfortably survives our more deferential plain error review.
The District Court also did not plainly err in giving this instruction at the close of trial rather than at the time the evidence was introduced. In our view, the lapse of time was not long enough to overcome the presumption that the jury follows the court's instructions. See Hakim, 344 F.3d at 326; see also United States v. Eraser, 448 F.3d 833, 843 n. 4 (6th Cir. 2006) (holding that delayed limiting instruction was not error); United States v. Misle Bus Equipment Co., 967 F.2d 1227, 1234 (8th Cir. 1992) (holding that delayed limiting instruction does not amount to abuse of discretion).
B. Thompson 1. Sixth Amendment Challenge
By the time of the second trial, Government witnesses Gary Sloan and Raymond Moon had already received reduced sentences, pursuant to plea agreements, for their cooperation in the case. At trial, Thompson sought to cross-examine Sloan and Moon by eliciting their possible incentive to give false testimony based on their plea agreements and expectation of receiving reduced sentences. Thompson also requested that the District Court preclude the Government from adducing evidence of Sloan and Moon's actual sentence reductions to avoid intimating that the witnesses had earned reduced sentences by telling the truth. In other words, defense counsel was concerned that if the jury learned that the District Court had reduced the witnesses' sentences, it might believe that the court had given its imprimatur on the veracity of their testimony. The District Court denied the latter request. It gave Thompson the option of either: (1) allowing the Government to elicit testimony of the sentence reductions if he wished to challenge the witnesses' bias based on the plea agreements; or (2) foregoing inquiry into plea agreements altogether. Thompson chose the latter option, and now argues that the District Court violated his rights under the Sixth Amendment.
We review the District Court's limitation on Thompson's ability to cross-examine Sloan and Moon for an abuse of discretion; if we find such an abuse, we then must ask whether the abuse was harmless. United States v. Lore, 430 F.3d 190, 208 (3d Cir. 2005).
The Confrontation Clause secures the right of a criminal defendant" to be confronted with the witnesses against him." U.S. Const., amend. VI. By now it is axiomatic that inquiry into a witness's motivation to testify — especially a cooperating witness testifying pursuant to a plea agreement with the Government —" is the principal means by which the believability of [the] witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). It is equally well settled, however, that" trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); see also Delaivare v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam) ("the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.") (emphasis in original).
Had the District Court prohibited outright all inquiry into Sloan's and Moon's plea agreements, the ruling unquestionably would have run afoul of the Confrontation Clause. See Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431 ("By . . . cutting off all questioning about an event that . . . a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the court's ruling violated . . . the Confrontation Clause."). Of course, the District Court did not so rule, but instead posed to Thompson a choice between: (1) permitting the Government to elicit testimony from the witnesses that they had already received reduced sentences, if Thompson wished to probe the witnesses' possible bias regarding their plea agreements; and (2) foregoing inquiry into the plea agreements altogether. While Thompson ultimately opted not to pursue it, we will review the less restrictive — the first — option to determine if the District Court unduly limited Thompson's overall ability to cross-examine Sloan and Moon as to bias. If the option itself comports with the Sixth Amendment, Thompson's considered decision not to select it cannot be assailed as the fault of the District Court. We hold that the District Court did not abuse its discretion, and that the choice it posed to Thompson satisfied the Sixth Amendment.
In United States v. Chandler, two cooperating witnesses testified that they expected to receive reduced sentences in exchange for their testimony, but the district court did not permit the defendant to inquire about how much time the witnesses would have been facing absent their cooperation. 326 F.3d 210, 222 (3d Cir. 2003). As we explained, this amounted to a significant limitation on the defendant's right to examine the witnesses' motive for testifying because their" mere acknowledgment that [they] hoped that the government would move for a lesser sentence did not adequately enable a jury to evaluate [their] motive to cooperate." Id. We set out the following test for challenges to a district court's limitation on cross-examination:
First, we must determine whether that ruling significantly inhibited Chandler's effective exercise of her right to inquire into either witness's" motivation in testifying"; and second, if the District Court's ruling did significantly inhibit Chandler's exercise of that right, [we must determine] whether the constraints it imposed on the scope of Chandler's cross-examination fell within those" reasonable limits" which a trial court, in due exercise of its discretion, has authority to establish.
Id. at 219. We continued in pertinent part:
With respect to the cross-examination of cooperating witnesses who expect to obtain, or have obtained, a benefit from the government in exchange for their testimony, the" critical question . . . is whether the defendant is allowed an opportunity to examine a witness [sic] `subjective understanding of his bargain with the government,' `for it is this understanding which is of probative value on the issue of bias.'"
Id. at 220 (citation omitted, alterations in original).
The first option posed by the District Court in this case in no way limited the scope of defense counsel's inquiry into Sloan and Moon's potential motivation to lie. Thompson would have been free to question Sloan and Moon on the sentences they faced without the plea agreements, squarely within Chandler's holding. The District Court simply conditioned Thompson's inquiry on the preservation of the Government's right to convey the entire account. According to the Government, any incentive to lie that Sloan and Moon might have had in order to curry favor with the prosecutor arguably vanished when they were sentenced. App. 651. Therefore, the Government argues, if Thompson was permitted to elicit testimony tending to demonstrate the witnesses's ulterior motives, then the Government should have been allowed to rebut such a claim. We agree.
Thompson argues that the first option limited his constitutional right to cross-examine Sloan and Moon because introduction of their reduced sentences" absolutely would have resulted in improper vouching for the credibility of the witnesses." Thompson Br. at 26. We disagree. Vouching occurs when two criteria are met:" (1) the prosecutor must assure the jury that the testimony of a Government witness is credible; and (2) this assurance [must be] based on either the prosecutor's personal knowledge, or other information not contained in the record." United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006) (quoting United States v. Walker, 155 F.3d 180, 187 (3d Cir. 1998)). Upon discussing the issue with counsel, the District Court clearly understood the dilemma Thompson faced, and emphasized to the Government its desire" to make sure that the prosecutor doesn't try to use the fact that the judge has made a determination that they're believable so [the jury] should believe them." App. 651-52. The prosecutor responded," I won't make that argument, Your Honor." Id. In light this stipulation, we will not speculate that the prosecutor would nonetheless have used Sloan and Moon's sentences to personally assure the jury of their credibility.
In essence, Thompson asks us to interpret Chandler such that he had a constitutional right to challenge Sloan and Moon's motivation to testify and simultaneously to hamstring the Government from rebutting such a challenge. But neither Chandler nor any of the cases upon which it rests provide authority for such a right. A defendant" states a violation of the Confrontation Clause by showing that he was prohibited from engaging in other wise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness." Chandler, 326 F.3d at 222 (quoting Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431). The District Court prescribed no such prohibition, and Thompson's claim therefore fails.
We note that, even if we were to find that the District Court's choice violated the Confrontation Clause, we would hold the error harmless in light of the overwhelming weight of the evidence proffered against Thompson. See Lore, 430 F.3d at 208.
2. Preclusion of Good's Recorded Telephone Calls with Means
Thompson next argues that the District Court erred in refusing to allow him to play for the jury recorded conversations between his daughter, Monique Means, and Good. The calls demonstrated that before his arrest, Good had engaged in a secret sexual relationship with Means. Such evidence, Thompson says, would have demonstrated more clearly Good's bias against him. The District Court granted the Government's motion in limine to preclude admission of the calls, subject to Good's acknowledgment of the sexual relationship with Means. App. 1429. The District Court did, however, rule that Good's relationship with Means was an appropriate line of inquiry, and both the Government and defense counsel questioned Good about the relationship. App. 1433-34, 1445-47. Thompson now claims that he should have been permitted to play the calls for the jury.
The nature of Thompson's challenge is unclear. He avers that under Rules 401 and 402 of the Federal Rules of Evidence, the recordings were relevant evidence of Good's bias, Thompson Br. at 31, and then intimates that the District Court erred in a Rule 403 analysis by finding that the inflammatory nature of the calls outweighed their probative value, id. at 34. The District Court instead conducted the two-part constitutional analysis set forth in Chandler, supra, although in doing so it necessarily weighed the relative prejudice of the tapes against their probative value. The Government assumes that the Chandler framework properly applies here, where the" limitation" was the preclusion of audio evidence possibly related to Good's bias. We note that the issue in Chandler (as it was in Van Arsdall, upon which Chandler relied) was the actual" curtailment of [a defendant's] inquiry" into a witness's possible bias, rather than the refusal to admit extrinsic evidence that might complement such an inquiry. See 326 F.3d at 217-19, 223. We understand the nature of Thompson's challenge to be evidentiary rather than constitutional. Indeed, Thompson cites three cases, none of which concerns the Confrontation Clause. See Thompson Br. at 31-33. And while the Government characterizes the District Court's ruling as affecting" the interplay between cross examination for motive and [the] reasonable limitation thereupon," Gov't Br. at 53, the parties agree that the District Court did not limit the scope of Thompson's inquiry into Good's relationship with Means, but simply denied the admission of extrinsic evidence relating to such an inquiry. We will therefore analyze the claim under the familiar balancing test required by Rule 403. See United States v. Eufrasio, 935 F.2d 553, 571 (3d Cir. 1991). Whether falling under the aegis of Chandler or the Federal Rules of Evidence, however, we review the District Court's refusal to play the recorded calls for abuse of discretion, see United States v. Jimenez, 513 F.3d 62, 76 (3d Cir. 2008), and we find none.
We will accept Thompson's argument that the recorded calls between Good and Means were relevant to Good's bias, see Fed.R.Evid. 401, 402, and will proceed directly to the District Court's rationale for excluding them from the jury. As part of its analysis under Chandler, the District Court discussed the effect the tapes had on Good at the first trial:" [T]he Court has preliminarily advised the parties that . . . [it] would not permit the conversations to be played because the conversations . . . in the prior case . . . clearly affected the witness Michael Good, it caused him to be very agitated, concerned and he took that as a form of harassment. . . ." App. 1416. The District Court continued:" [s]o, in order to minimize the prejudicial effect, which the Court recognizes does occur because of the incestuous nature of the sexual relationship that would be coming out and . . . that could have the potential to affect the jury, the Court w[ill] not permit the conversations to be played. . . ." App. 1417. The District Court concluded as follows:
I'm not going to permit the — unless Michael Good denies the relationship, I will not permit the conversations to be played. . . . [T]he tapes cannot be played because I think they are more inflammatory and they go more to harassing the defendant. I think what is important is for the defendant to be able to probe this line of inquiry, but I am going to impose those restrictions which I believe fall within the reasonable limits that a district court has the authority to impose, and that would be for purposes of harassment, which would be the playing of the tapes. . . .
App. 1428-29.
Thompson argues that the District Court erred by precluding admission of the calls because the calls not only demonstrated the existence of Good's relationship with Means, but also themselves demonstrated the extent of Good's bias against him. Because, Thompson says, Good expressed his desire to keep the relationship secret during the calls, the substance of the calls demonstrated Good's motivation to assist the Government in its case against Thompson (thus allowing Good to continue his relationship with Means uninterrupted). Whether this was so (and we have serious doubts that it was), we have steadfastly held that" if judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal." United States v. Long, 574 F.2d 761, 767 (3d Cir. 1978)." Because the trial judge is present in the courtroom as the challenged evidence is offered, and is therefore in the best position to assess the extent of the prejudice caused a party, the trial judge must be given a very substantial discretion in balancing probative value on the one hand and unfair prejudice on the other." United States v. Universal Rehabilitation Servs., 205 F.3d 657, 665 (3d Cir. 2000) (citations and quotation marks omitted).
Accordingly, we" accord great deference" to the District Court's decision, mindful that" in order to justify reversal, a district court's analysis and resulting conclusion [concerning the probative value or prejudicial effect of the challenged evidence] must be `arbitrary or irrational.'" Id. (quoting In re Paoli R.R. Yard PCB Litig., 113 F.3d 444, 453 (3d Cir. 1997)). As its discussion set forth above demonstrates, the District Court's determination that playing the calls to the jury would have been more prejudicial than their relative probative value was neither arbitrary nor irrational. We hold, therefore, that it was not an abuse of discretion.
IV. Prosecutorial Misconduct
Ferguson argues that the Government committed prosecutorial misconduct and that the District Court committed plain error by failing to declare a mistrial. We disagree.
Ferguson appears to argue that we should review those prosecutorial misconduct arguments that he" brought to the district court's attention" but to which he did not formally object for abuse of discretion rather than plain error. See Ferguson Br. at 46. We disagree and will apply plain error review. See United States v. Ehrmann, 421 F.3d 774, 783-84 (8th Cir. 2005) (holding that plain error review — and not abuse of discretion review — applies to allegation of prosecutorial misconduct brought to district court's attention yet not formally objected to) (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Boyd, 180 F.3d 967, 983 (8th Cir. 1999)); see also United States v. Irizarry, 341 F.3d 273, 306 (3d Cir. 2003). We note, however, that we would reach the same result under an abuse of discretion standard.
A. Summation Remarks
Ferguson first argues that the prosecutor made an improper remark in his summation. A litigant making a prosecutorial misconduct claim based on an allegedly improper summation faces a decidedly up-hill journey." The 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. Wertne, 939 F.2d 108, 117 (3d Cir. 1991) (rejecting due process challenge to remarks in summation)." The prosecution may `ask the jury to draw permissible inferences from anything that appears in the record.'" United States v. Sullivan, 803 F.2d 87, 91 (3d Cir. 1986) (quoting Oliver v. Zimmerman, 720 F.2d 766, 770 (3d Cir. 1983) (per curiam)).
The prosecutor did not act improperly when he characterized Thompson's statement to imply that, had Ferguson resisted the police's request to search his automobile," he would still be out here with us [co-defendant Roscoe Thompson and Good] dealing drugs." App. 3541. Thompson and Good, in the conversation at issue, were lamenting Ferguson's lack of resistance to the police's request to search his vehicle. They agreed that, had either of them been in Ferguson's place, they would have refused the search. Had Ferguson done so, Thompson said," he['d] be out there bullsh — ing with us" as a free man. Gov't Supp.App. 110. Given the ample unchallenged record evidence linking Ferguson to Good's drug ring, see, e.g., App. 1126-27; 2409-10; 1843, the jury reasonably could have interpreted the statement that Ferguson would be" out there bullsh — ing" with Good and Thompson as a free man to mean that Ferguson would be participating in drug-related activities with Good and Thompson. Therefore, the prosecutor's statement did not amount to mis-conduct. See Werme, 939 F.2d at 117. The District Court did not plainly err in failing to declare a mistrial on this basis.
B. Good-Faith Basis to Question
Second, Ferguson argues that the prosecutor questioned a defense witness without a good-faith basis." Although counsel may explore certain areas of inquiry in a criminal trial without full knowledge of the answer to anticipated questions, he must, when confronted with a demand for an offer of proof, provide some good faith basis for questioning that alleges adverse facts." United States v. Katsougrakis, 715 F.2d 769, 779 (2d Cir. 1983). The district court has no obligation to declare a mistrial, though, when it objectively appears to the district court that defense counsel has satisfied itself that the prosecutor has demonstrated good faith. SeeUnited States v. Cudlitz, 72 F.3d 992, 1001 (1st Cir. 1996). Further, as a general matter, the district court" enjoys great latitude in deciding whether a good faith basis [for a prosecutor's question] exists." Id. (citing United States v. Ovalle-Marquez, 36 F.3d 212, 219 (1st Cir. 1994)).
The prosecutor did not act improperly when he asked Frederick Neal, who for a time was housed near Ferguson in prison, about whether he remembered having a conversation with Ferguson earlier that morning. Specifically, the prosecutor asked Neal whether, during the purported conversation, Ferguson" told you, remember, this is what your story needs to be." App. 2813. Neal testified that he did not recall such a conversation. Id. Immediately thereafter, during a recess, Ferguson's counsel told the court:
Your Honor, when [the prosecutor] was done, I walked over and I asked him, because I presumed he asked that question in good faith, because, obviously, if he didn't I was going to ask it be stricken and he'd be admonished for doing something like that. And he informed me he did have a good faith basis for that. I, unfortunately, presume I'm going to see a witness who will testify probably exactly to what he asked.
App. 2814. The prosecutor indicated that a rebuttal witness would indeed be forth-coming. App. 2814-15. Ferguson later admitted to having a conversation with Neal (but testified that he did not remember its substance). App. 3175-76. On rebuttal, a United States Marshal testified that, after that recess, Ferguson asked him," are you the one that ratted me out?" App. 3370.
The prosecutor provided exactly what defense counsel appears to ask for: rebuttal testimony tending to indicate that the prosecutor's question had a basis in fact. The Marshal's testimony regarding Ferguson's negative reaction to the question posed to Neal is competent proof that the prosecutor had a good-faith basis to probe any directive that Ferguson might have given Neal before his testimony. Thus, we find that the District Court did not plainly err — and did act within its" great latitude," Cudlitz, 72 F.3d at 1001 (citing OvalleMarquez, 36 F.3d at 219) — in declining to declare a mistrial on this ground.
V. Sentencing Issues
Ferguson and Thompson also challenge their sentences as unreasonable. We have thoroughly reviewed the transcripts of the sentencing proceedings, as well as the sentences themselves. We discern no reason to disturb the sentences, and will reject the challenges without further discussion.
VII. Conclusion
We will affirm the District Court's judgments in these appeals in all respects.