United States v. Arnold Bell

531 F. App'x 117

• Court: Court of Appeals for the Second Circuit
• Decided: August 27, 2013
• Docket: 11-5445-cr
• Status: Unpublished

Opinion

SUMMARY ORDER

Defendant-Appellant Arnold Bell appeals from a July 1, 2004 judgment of conviction and sentence imposed by the United States District Court for the District of Connecticut (Nevas, J.) following a jury trial. We assume the parties’ familiarity with the facts and procedural history of this case.

Bell contends that the district court improperly denied two motions for a mistrial. Specifically, Bell argues that he is entitled to a new trial because during the prosecution’s cross-examination of Bell, the prosecution (1) asked allegedly improper questions concerning the credibility and veracity of government witnesses that substantially prejudiced Bell; and (2) asked allegedly improper and prejudicial questions concerning statements Bell made in his trial testimony, but had not made in a post-arrest, post -Miranda statement.

The District Court did not abuse its discretion in denying Bell’s two motions for a mistrial. With respect to Bell’s first claim, Bell is unable to demonstrate that the government’s conduct, even were it improper, caused him substantial prejudice. See United States v. Truman, 688 F.3d 129 (2d Cir.2012). The prosecution’s cross-examination question that compelled Bell to characterize a government witness as “lying” was improper. See United States v. Gaind, 31 F.3d 73, 77 (2d Cir.1994). However, the questions that compelled Bell to characterize government witnesses as mistaken were not. Id. Considering the prosecution’s isolated and minor impropriety, in conjunction with the district court’s curative instruction to the jury, Bell did not suffer substantial prejudice.

With respect to Bell’s second claim, Bell is unable to show that the prosecution’s questions were improper. Bell is correct that under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the prosecution may not use a defendant’s post-Miranda silence for impeachment purposes. However, the prosecution’s questions that Bell challenges on appeal were not posed for this improper purpose. Rather, the challenged questions identified inconsistencies between Bell’s trial testimony and statements he had made during his post-arrest, post-Miranda statement. Doyle poses no bar to such questions, which concern prior inconsistent statements only. See Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980).

For the reasons stated above, the judgment of the district court is AFFIRMED.