The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion for Mistrial (ECF No. 1096). For the following reasons, Defendant's Motion will be denied.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment (the "Indictment") charging Defendant Kaboni Savage with: conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1); twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15); tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8)*fn1 ; conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9); retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16); and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment, ECF No. 480.) Savage was charged along with three co-defendants, Steven Northington, Robert Merritt, and his sister, Kidada Savage. Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed a notice of intent to seek the death penalty against Kaboni Savage, Merritt, and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada Savage.
On February 1, 2013, we filed a Memorandum and Order granting the
Government's motion in limine to admit lay opinion testimony pursuant
to Rules 104 and 701 of the Federal Rules of Evidence.*fn1
(See Lay Opinion Mem., ECF No. 1018; Lay Opinion Order, ECF
No. 1019.) The Government requested that it be permitted to elicit the
lay opinion and perceptions of FBI Special Agent Kevin Lewis. (See ECF
No. 755.) In our Lay Opinion Memorandum, we provided the parameters by
which Agent Lewis would be permitted to testify at trial concerning
his opinion and interpretation of recorded conversations:
According to the Government, Special Agent Lewis's interpretive testimony about the context and unclear language used in the recordings to be admitted into evidence at trial will be based upon his experience as the case agent investigating the KSO rather than his experience as a law enforcement official in general. At trial, Defendants will be able to both cross-examine Special Agent Lewis about his opinions and their bases and to introduce witnesses who may provide alternate interpretations of the terms in dispute. The jury will then be free to credit either interpretation. While there are risks in having a case agent provide lay opinion testimony, such risks are mitigated by vigorous policing of the Government's questioning, to ensure Special Agent Lewis does not testify about clear statements or provide speculative opinions outside the realm of his rational perception. Special Agent Lewis will be permitted to testify about his impressions of recorded conversations and to interpret the meaning of words used in conversation; he will not be permitted to summarize the conversations or to testify about commonly used terms. (Lay Opinion Mem. 12 (internal citations omitted).)
Trial commenced on February 4, 2013, and is expected to last many months. During its case in chief, the Government called Special Agent Lewis as a witness. Special Agent Lewis has been the lead investigator and case agent, investigating the Kaboni Savage Organization ("KSO") for over thirteen years. (See June 11, 2012 Hr'g Tr. 10 (on file with Court).) He prepared the affidavits for all seven of the Title III wiretaps, which permitted the interception of communications in this case. (Id. at 11, 17.) During his investigation, Special Agent Lewis interviewed numerous confidential informants and Government co-conspirators and conducted physical surveillance. (Id. at 40-41, 59, 64.) Lewis testified on February 21 and 22, 2013 about certain recorded wiretap conversations that were obtained as a result of the Title III wiretap orders. Defendants raised objections to the testimony provided by Lewis, both on direct and cross examination.
On February 22, 2013, Defendant filed the instant Motion. (Def.'s Mot., ECF No. 1096.) The Government filed a Response in opposition to the Motion on February 24, 2013. (Gov't's Resp., ECF No. 1099.)
A. The Parties' Contentions
Defendant requests that the Court declare a mistrial as a result of testimony provided by Special Agent Lewis on direct and cross examination. (Def.'s Mot. 1.) Defendant's objections fall into two categories. The first category relates to lay opinion testimony provided by Special Agent Lewis. Defendant argues that Special Agent Lewis's testimony exceeded the boundaries established by Rule 701 and by the Court's Lay Testimony Order, and that "the effect of [his] pronounced and persistent remarks created substantial prejudice which misled the jury." (Id. at 1, 2.) The second category of objections relates to responses Special Agent Lewis provided to defense counsel on cross examination. Defendant contends that Special Agent Lewis injected non-responsive and prejudicial answers to questions, and that the "cumulative effect of [his] persistent and pronounced testimony created substantial prejudice which likely misled the jury and was not the subject of any curative action." (Id. at 2.)
The Government responds generally that Defendant's request for a mistrial is specious. (Gov't's Resp. 1.) Specifically, the Government contends that Special Agent Lewis's testimony was proper and within the bounds of Rule 701 and the Court's Lay Opinion Order. (Id.) With regard to the allegation that Special Agent Lewis provided non-responsive and prejudicial responses to questions, the Government argues that the opposite actually occurred: that his answers to questions on cross examination were directly responsive to the questions posed to him. (Id. at 2-4.) The Government asserts that it is defense counsel's strategy to suggest, through the examination of Special Agent Lewis and other witnesses, that certain Government cooperators were immunized from the prosecution for violent crimes. The Government contends that it is this trial tactic, which is fraught with peril, that has caused Special Agent Lewis to provide responses on cross examination that were not intended by defense counsel.
The District Court has the power to declare a mistrial prior to the conclusion of the presentation of evidence. United States v. Wecht, No. 06-26, 2008 U.S. Dist. LEXIS 34957, at *20 (W.D. Pa. Apr. 29, 2008) (citing United States v. Scott, 437 U.S. 82, 92 (1978)). A mistrial may be a proper remedy when remarks are made during trial that prejudiced the defendant. United States v. Riley, 621 F.3d 312, 336 (3d Cir. 2010). However, "[e]ven when improper remarks are made during trial, mistrial is not warranted when those remarks are harmless." United States v. Greenstein, 322 F. App'x 259, 265 (3d Cir. 2009) (citing United States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995)). In determining whether remarks made by a witness during trial prejudiced the defendant, the following three factors are considered: "(1) whether [the witness's] remarks were pronounced and persistent, creating a ...