United States of America v. Narsan Lingala

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-2060
____________
UNITED STATES OF AMERICA
v.
NARSAN LINGALA,
Appellant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-19-cr-00110-001)
District Judge: Honorable Freda L. Wolfson
____________
Argued on November 1, 2023
Before: CHAGARES, Chief Judge, HARDIMAN, and
MONTGOMERY-REEVES, Circuit Judges.
(Filed: January 30, 2024)

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Jonathan M. Petty
22 Kirkpatrick Street, P.O. Box 915
New Brunswick, NJ 08903
Stephen Turano [Argued]
100 Riverside Drive, Room 1d
New York, NY 10024
Counsel for Defendant-Appellant
Sabrina G. Comizzoli [Argued]
Mark E. Coyne
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee
___________
OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
A jury convicted Narsan Lingala on four counts related
to the attempted murder of his ex-wife. Lingala filed this
appeal claiming the District Court made jurisdictional,
procedural, constitutional, and evidentiary errors. We will
affirm.

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I
A
In 2012, Lingala and his wife, Saroja Alkanti, divorced
after more than 15 years of marriage. The divorce was
contentious, and in early 2018, Lingala was arrested for failing
to pay alimony and child support. While detained in Middlesex
County, Lingala informed his cellmate Carlo Commesso that
he wanted Alkanti dead. On his own initiative, Commesso
responded by pretending to know someone named “Manny”
who could kill Alkanti. Commesso acquired Lingala’s New
Jersey address so they could keep in touch. A few days later,
Commesso contacted Lingala and asked him to send his phone
number, which Lingala eventually did. Commesso then began
cooperating with law enforcement. To assist them, Commesso
introduced Lingala via text message to Carlos Teixeira, a
detective and sergeant at the Middlesex County Prosecutor’s
Office, who was posing as Manny the hitman.
Between June 20 and August 18, 2018, New Jersey
authorities recorded 13 phone calls and various texts between
Manny and Lingala, some of which were initiated by Lingala.
On July 27, Lingala, who was in Indiana at the time, told
Manny he was “serious” about the murder-for-hire and asked
for a “ballpark idea” on the cost to kill Alkanti. Supp. App. 15–
17. In furtherance of the scheme, Lingala drove from Indiana
to New Jersey on August 18 to meet Manny to discuss the
details.
Lingala’s girlfriend, Sandya Reddy, accompanied him
to the meeting, which occurred in a mall parking lot. During
the meeting, Lingala offered Manny a down payment of $1,000
to kill Alkanti. To help Manny do so, Lingala disclosed

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Alkanti’s name, age, address, phone number, place of
employment, and how she got to work. With Reddy’s
assistance, Lingala also provided Manny with a picture of
Alkanti and her residence. Law enforcement arrested Lingala
and Reddy at the scene immediately after the meeting.
B
After his arrest, Lingala was charged with murder-for-
hire by the State of New Jersey. While detained on those
charges, Lingala tried to prevent Reddy from testifying against
him at trial. Between October 2018 and January 2019, Lingala
repeatedly threatened Reddy in letters urging her not to plead
guilty or testify against him. For example, Lingala wrote:
If you are going to testify against me, then I do
not have any choice to defend myself and you
will be in very bad shape for the rest of your life!!
I will make sure your daughter gets what she
deserves. Supp. App. 87 (underlining in
original).
Remember if you damage me, I will not keep
quiet. You will also go down with me. Supp.
App. 71.
You are in danger if you take the plea. I will also
be forced to use the statements you made, which
will put you and your daughter in worst situation
[sic]. Supp. App. 82.
You will not survive a trial against me. Do you
understand???? Supp. App. 84.

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All the letters the Government eventually introduced into
evidence at Lingala’s trial were either provided to the
Government by Reddy’s defense counsel or taken from
Reddy’s cell by the FBI after she was detained for her
involvement in the murder-for-hire scheme.1
C
Along with the threatening letters he wrote to Reddy,
Lingala trained his attention on Sergeant Teixeira. Lingala
enlisted fellow inmate Daryl Underwood to bribe Teixeira (or
kill him if he did not accept the bribe). Lingala offered to pay
Underwood $100,000 to obtain a video recording of Teixeira
accepting a bribe. Lingala asked his brother in India for the
necessary funds over three-way calls that Underwood’s brother
helped set up. Lingala’s brother subsequently arranged for the
delivery of $20,000 to Underwood’s brother, $4,000 of which
was deposited into Underwood’s commissary account. This
large deposit drew the attention of jail authorities, who
discovered the illicit arrangement by listening to the recorded
calls. Underwood pleaded guilty to misprision and agreed to
assist with the investigation and testify against Lingala at trial.
D
On February 1, 2019, the United States filed a criminal
complaint against Lingala for his role in the murder-for-hire
scheme, so New Jersey dismissed its case. During Lingala’s
transfer to federal custody, FBI agents seized four envelopes in
his possession containing almost 1,000 pages of documents.
The FBI provided the seized documents to a “taint” team
1 Reddy eventually pleaded guilty in federal court to one count
of conspiracy to commit murder-for-hire.

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within the United States Attorney’s Office to review them and
remove any privileged material before turning anything over to
the prosecution team.2 The taint team consisted of one non-
lawyer from the FBI and one Assistant United States Attorney
(AUSA), neither of whom helped prosecute Lingala. After
review by the FBI agent, the AUSA “provided the materials
[the agent] designated as non-privileged” to the lawyer who
was prosecuting Lingala. Dist. Ct. Dkt. No. 35-1, at 1. The
Government admits that the production of documents by the
taint team to the prosecution team included at least one
potentially privileged document—correspondence “from an
unknown attorney relating to an unfamiliar civil litigation.”
App. 38. Because of that disclosure, the prosecution team
returned the documents to the taint team for further review.
Following that review, the AUSA released to the prosecution
team the documents he designated as non-privileged. The
AUSA subsequently produced copies of all seized documents
to Lingala.
Lingala moved to suppress evidence of the seized
documents, claiming the seizure of his papers violated his
rights under the Fourth Amendment to the United States
Constitution. Further objecting to the taint team’s review of his
papers and unilateral determination of any privilege in the
documents, Lingala urged the District Court to disqualify the
2 Taint teams consist of people walled-off from the prosecution
who screen evidence and remove documents protected by the
attorney-client privilege or work-product doctrine to ensure the
prosecution team does not view this material. See United States
v. Scarfo, 41 F.4th 136, 173 (3d Cir. 2022) (citing In re Search
of Elec. Commc’ns in the Account of chakafattah gmail.com at
Internet Serv. Provider Google, Inc., 802 F.3d 516, 530 (3d
Cir. 2015)).

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prosecution team from the case because it had benefitted from
viewing the documents. The Government responded that it had
not used the documents seized from Lingala for any purpose—
and would not do so at trial. The District Court denied the
motion to suppress and to disqualify the prosecution team.
E
Following the federal criminal complaint charging
Lingala with conspiracy to commit murder-for-hire, Lingala
was charged in a superseding indictment with conspiracy to
commit murder-for-hire (Count One) and murder-for-hire
(Count Two), in violation of 18 U.S.C. § 1958 and 2; and
witness tampering as to his co-conspirator Reddy (Count
Three) and Sergeant Teixeira (Count Four), in violation of 18
U.S.C. § 1512(b).
In an omnibus pretrial motion, Lingala sought both to
sever the two witness tampering charges (Counts Three and
Four) from the murder-for-hire charges (Counts One and Two)
and dismiss the indictment for lack of jurisdiction. Lingala
claimed that the witness tampering charges “d[id] not relate
physically or temporally with the attempted murder charge”
under Rule 8(a) of the Federal Rules of Criminal Procedure and
that their joinder was “profoundly prejudicial” under Rule
14(a) because he would be deprived of his right to cross-
examine Reddy and testify on the witness tampering charges.
App. 78. Lingala also argued that federal agents had
improperly manufactured federal jurisdiction to prosecute a
primarily local crime, relying on the Second Circuit’s decision
dismissing an indictment in United States v. Archer, 486 F.2d
670 (2d Cir. 1973). The District Court denied both motions.

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To prove Lingala’s witness tampering as to Reddy, the
Government introduced into evidence letters that Lingala sent
to her. Lingala objected that the letters were inadmissible. The
District Court rejected each of his arguments.
After seven days of trial, the jury convicted Lingala on
all four counts. The District Court sentenced him to 222
months’ imprisonment and three years’ supervised release.
Lingala filed a timely notice of appeal, challenging only his
judgment of conviction.
II3
Lingala asserts that the District Court should have
dismissed the indictment because the Government
manufactured federal jurisdiction. We apply a mixed standard
of review to the District Court’s decision not to dismiss the
indictment, so we review its legal conclusions de novo and we
review challenges to factual findings for clear error. United
States v. Menendez, 831 F.3d 155, 164 (3d Cir. 2016).
The applicable statute prohibits traveling interstate or
using any “facility of interstate or foreign commerce” with the
intent to further a murder-for-hire. 18 U.S.C. § 1958(a). It also
defines “facility of interstate or foreign commerce” as
“includ[ing] means of transportation and communication.” Id.
§ 1958(b)(2). The indictment alleged that Lingala had engaged
in interstate travel by driving from Indiana to New Jersey and
that he used multiple facilities of interstate commerce: (i) a car;
(ii) a cellphone to make calls to Manny, who was in New
3 The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).

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Jersey; and (iii) the internet, along with Reddy, to retrieve
photos of Alkanti and information about her. The District
Court concluded that Lingala’s use of these facilities of
interstate commerce and his travel across state lines, as alleged
in the indictment, each satisfied the jurisdictional element of
the statute.
Lingala counters by citing the Second Circuit’s opinion
in Archer, which prohibits federal officers from “themselves
suppl[ying] the interstate element and act[ing] to ensure that an
interstate element would be present.” Archer, 486 F.2d at 682.
There are two problems with this argument. First, we have not
adopted Archer’s concept of “manufactured jurisdiction.” See,
e.g., United States v. Faison, 679 F.2d 292, 293–95 (3d Cir.
1982). Like most of our sister circuits,4 including the Second
Circuit itself,5 we have emphasized Archer’s “limited”
holding. See United States v. Jannotti, 673 F.2d 578, 610 (3d
Cir. 1982) (en banc). Second, even if we had followed Archer,
its “statutory infirmity” was that the phone calls “relied upon
to establish jurisdiction . . . were insufficiently related to the
criminal activity charged or had been arranged by the federal
agents for the sole purpose of providing the necessary federal
nexus.” Id. (emphasis added). This is far afield from Lingala’s
situation. While Lingala was in Indiana, he initiated several
calls to Manny in New Jersey, eventually arranging an in-
person meeting in New Jersey, which prompted him to drive
4 See, e.g., United States v. Al-Cholan, 610 F.3d 945, 953 (6th
Cir. 2010); United States v. Mandel, 647 F.3d 710, 719 (7th
Cir. 2011); United States v. Chi Tong Kuok, 671 F.3d 931, 938
(9th Cir. 2012).
5 See United States v. Gambino, 566 F.2d 414, 419 (2d Cir.
1977).

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across state lines. And at the meeting, Lingala used the internet
to retrieve information to help Manny kill Alkanti. Unlike the
defendants in Archer, the Government did not manipulate
Lingala into traveling interstate or using various facilities of
interstate commerce.
For these reasons, we hold that the District Court did not
err in denying Lingala’s motion to dismiss the indictment.
III
Lingala next argues that he is entitled to a new trial on
all counts because the District Court violated Rules 8(a) and
14(a) of the Federal Rules of Criminal Procedure when it failed
to sever the murder-for-hire counts (Counts One and Two)
from the witness tampering counts (Counts Three and Four).
We review the Rule 8(a) challenge de novo, and we review the
District Court’s refusal to sever counts under Rule 14(a) for
abuse of discretion. United States v. Gorecki, 813 F.2d 40, 41–
42 (3d Cir. 1987).
A
Under Rule 8(a), an indictment “may charge a
defendant in separate counts with [two] or more offenses if the
offenses charged . . . are of the same or similar character, or are
based on the same act or transaction, or are connected with or
constitute parts of a common scheme or plan.” The witness
tampering charges in Counts Three and Four are clearly
“connected with” Counts One and Two in “a common scheme
or plan,” namely, hiring a hitman to kill Alkanti. Many of our
sister circuits have embraced a similar approach towards
obstruction offenses like witness tampering. See, e.g., United
States v. Stackpole, 811 F.2d 689, 693 (1st Cir. 1987)

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(upholding joinder of obstruction of justice counts with arson-
related counts); United States v. Davis, 752 F.2d 963, 971–72
(5th Cir. 1985) (upholding joinder of obstruction of justice
counts with fraud counts); United States v. Berardi, 675 F.2d
894, 899–900 (7th Cir. 1982) (upholding joinder of obstruction
of justice count with mail fraud and extortion counts); United
States v. Colhoff, 833 F.3d 980, 983 (8th Cir. 2016) (“Witness
tampering is factually interrelated with the proceeding in
which the defendant attempted to interfere.”) (cleaned up).
Lingala relies on the significant temporal gap between
the acts underlying the murder-for-hire counts and the witness
tampering counts. But Rule 8(a) does not expressly or
impliedly require that offenses be committed within a limited
timeframe. Rather, it is a “liberal joinder provision” designed
“to promote judicial and prosecutorial economy by the
avoidance of multiple trials.” See United States v.
Niederberger, 580 F.2d 63, 66 (3d Cir. 1978). Joinder was thus
not improper under Rule 8(a).
B
Lingala fares no better with his Rule 14(a) argument. He
cannot meet his “heavy burden” of showing that the joinder
produced “clear and substantial prejudice resulting in a
manifestly unfair trial.” United States v. Reicherter, 647 F.2d
397, 400 (3d Cir. 1981). As the District Court noted, the
evidence of Lingala’s witness tampering would have been
admissible at his murder-for-hire trial, and vice versa. See
United States v. Gatto, 995 F.2d 449, 454 (3d Cir. 1993) (“It is
well-established that evidence of threats or intimidation is
admissible under Rule 404(b) [of the Federal Rules of
Evidence] to show a defendant’s consciousness of guilt.”);
Fed. R. Evid. 404(b)(2) (“[E]vidence [of any other crime,

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wrong, or act] may be admissible for . . . proving motive.”).
Lingala argues that the joinder compromised his rights to
present a complete defense and testify on his own behalf. But
this “bare allegation,” without more, is not enough to show a
violation of Rule 14(a). See Gorecki, 813 F.2d at 43.
* * *
For these reasons, the District Court did not err when it
denied Lingala’s motion to sever and conduct separate trials
for Counts One and Two (related to murder-for-hire) and
Counts Three and Four (related to witness tampering).
IV
Lingala also argues he is entitled to a new trial because
the District Court should have disqualified the prosecution
team. We disagree.
Because the District Court made “a reasoned
determination on the basis of a fully prepared record,”
including written submissions and oral argument, its decision
declining to do so was not arbitrary. United States v. Voigt, 89
F.3d 1050, 1075 (3d Cir. 1996). We thus review factual
findings for clear error and the disqualification decision for
abuse of discretion. United States v. Shah, 43 F.4th 356, 362 &
n.4 (3d Cir. 2022). A district court must “appropriately balance
proper considerations of judicial administration against the
United States’ right to prosecute the matter through counsel of
its choice.” United States v. Whittaker, 268 F.3d 185, 193–94
(3d Cir. 2001). This also requires us “to determine that the
[District Court’s] discretion was not guided by erroneous legal
conclusions,” such as its holding that Lingala’s motion to

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suppress was moot. Koon v. United States, 518 U.S. 81, 100
(1996).
The District Court based its decision not to disqualify
the prosecution team on: (i) the Government’s representation
that it would not use at trial any documents seized from
Lingala; and (ii) its finding that the Government had not relied
on the documents in bringing charges against Lingala for
witness tampering as to Reddy—which was based on the
Court’s review of the charging documents against Lingala and
Lingala’s failure to identify any particular seized document
from which the Government benefitted.
A
Lingala claims the District Court “failed to address the
issue of whether [he] . . . had a reasonable expectation of
privacy in the papers that were seized by the FBI.” Lingala Br.
15. But there was no need to do so because the point had
become moot once the Government agreed not to use any of
the documents taken from Lingala at trial.6 Cf. Smith v. Immigr.
& Naturalization Serv., 585 F.2d 600, 602 (3d Cir. 1978) (per
curiam) (“Because the challenged evidence was not in fact
introduced, th[e] issue [of whether the defendant was entitled
to a hearing on the motion to suppress] is moot.”). Our holding
here aligns with the reasoning of our sister circuits. See, e.g.,
6 It was not inappropriate for the District Court to accept the
Government’s representation. As we have recognized,
“[p]rosecutors routinely . . . make representations to the court
. . . . Whether they do so strategically or for reasons of
convenience is of no moment. Once prosecutors undertake
such commitments, they are bound to honor them.” United
States v. Liburd, 607 F.3d 339, 343 (3d Cir. 2010).

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United States v. Tiem Trinh, 665 F.3d 1, 17 (1st Cir. 2011);
United States v. Kahre, 737 F.3d 554, 565 (9th Cir. 2013);
United States v. Mikolon, 719 F.3d 1184, 1189 (10th Cir.
2013); United States v. Perkins, 787 F.3d 1329, 1343 n.2 (11th
Cir. 2015).
Lingala persists that the District Court abused its
discretion by not disqualifying the prosecution team “[b]ecause
suppression . . . was not an adequate remedy based on the
Government’s egregious conduct.” Lingala Br. 15. According
to Lingala, “[s]imply refraining from using the documents at
trial could not cure the illegal search” because the Government
could rely on the information gleaned from these documents
“whether they used it with a document at trial or not.” Lingala
Br. 22. For example, Lingala’s counsel suggested at oral
argument that the documents turned over to the prosecution
team contained information laying out Lingala’s entrapment
defense, allowing the Government to prepare for this argument
before the trial. As the Government conceded at oral argument,
the taint team made two mistakes: (i) the FBI agent reviewed
the documents before the AUSA; and (ii) the taint team did not
engage with Lingala’s counsel before providing non-privileged
materials to the prosecution team. However problematic these
missteps may have been, Lingala has not shown “actual taint.”
Shah, 43 F.4th at 363. He has neither identified a single
privileged document related to his criminal case that was
provided to the prosecution team, nor explained how any of the
seized documents could have affected the prosecution team’s
strategy. As Lingala’s counsel admitted at oral argument, any
prejudice was “difficult to completely determine.” Oral Arg.
3:32–37. Aside from unsupported contentions that the
prosecution team must have taken thoughts out of Lingala’s
head or reviewed notes about defense strategy, Lingala has not

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explained how errors made by the taint team deprived him of a
fair trial. Lingala’s claim that he was prejudiced is nothing
more than supposition, which is inadequate to show that the
District Court abused its discretion in denying his motion to
disqualify the prosecution team.
B
Lingala also asserts that the prosecution team
impermissibly relied on the seized documents to secure the
indictment against him for witness tampering as to Reddy
(Count Three). This argument fails because Lingala cannot
show that the District Court’s factual findings to the contrary
were clearly erroneous. Following a pointed inquiry of the
prosecution team and an independent review of the federal
criminal complaint against Lingala, the District Court
determined that the complaint referenced letters containing
information that supported charging Lingala with witness
tampering as to Reddy. Because this complaint was filed on
February 1, 2019—before the search of Lingala’s cell and the
seizure of his documents—the District Court reasoned that the
prosecution team had already acquired information about
witness tampering and thus did not rely on any documents
seized from Lingala to accuse him of tampering with Reddy.
Lingala responds by emphasizing that he was charged
with witness tampering only after his documents were seized.
But this is not responsive to the District Court’s factual
findings. As the Court noted, while the criminal complaint did
not include a formal charge of witness tampering, it quoted
statements made in a letter that Reddy’s counsel gave to law
enforcement before the seizure of Lingala’s documents.
Lingala does not contest the source of these statements
included in the complaint, and he points to no other evidence

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supporting a finding that the prosecution team used documents
seized from him beyond the chronology of the seizure and the
indictment. Lingala thus fails to show that the District Court
clearly erred in finding that the prosecution team did not rely
on documents seized from him.
* * *
For these reasons, the District Court did not abuse its
discretion in refusing to disqualify the prosecution team.
V
Lingala also contends that he should receive a new trial
as to the charge of witness tampering with Reddy (Count
Three) because the District Court erroneously admitted into
evidence letters that support his conviction on this charge.
Lingala asserted at trial and now claims on appeal that these
letters were inadmissible on four grounds: (i) authentication;
(ii) Rule 403 of the Federal Rules of Evidence; (iii) the
Confrontation Clause; and (iv) hearsay. We reject each
argument.
A
We review the District Court’s decision on authenticity
for abuse of discretion, United States v. Browne, 834 F.3d 403,
408 (3d Cir. 2016), and “the burden of proof for authentication
is slight,” Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318,
328 (3d Cir. 2005) (cleaned up). Generally, “[t]o satisfy the
requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it
is.” Fed. R. Evid. 901(a).

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Alkanti testified at trial that letters threatening Reddy
were written by Lingala. Her opinion had to be “based on a
familiarity with [Lingala’s handwriting] that was not acquired”
for the criminal case against him. Fed. R. Evid. 901(b)(2). The
District Court found this requirement to be satisfied based on
Alkanti’s 15 years of marriage to Lingala and her testimony
that she was familiar with his handwriting. And though Alkanti
misidentified a document as having been written by Lingala,
the District Court reasonably concluded that this error went to
the weight of her testimony, not its admissibility. See Link v.
Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 928 (3d Cir.
1986). Lingala remained free to challenge Alkanti’s testimony,
and his counsel did so during cross-examination and closing
arguments. The District Court also instructed the jury that it
should give Alkanti’s testimony whatever weight it deemed
appropriate.
The “distinctive characteristics” of handwritten letters,
both their appearance and contents, may also satisfy the
authentication requirement. Fed. R. Evid. 901(b)(4). This is
particularly so where, as here, the letters are “shown to contain
information that persons other than the purported sender are
not likely to possess.” United States v. Reilly, 33 F.3d 1396,
1404 (3d Cir. 1994) (citation omitted). As the District Court
observed, several letters signed by Lingala referred to family
details and facts of the criminal investigation known only to
Lingala, Reddy, and law enforcement.
In light of the slight burden of proof for authentication,
we hold the District Court did not abuse its discretion when it
found that the handwritten letters were properly authenticated
based on Alkanti’s identification and the distinctive
characteristics of the letters.

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B
We review the District Court’s decision to admit the
letters over a Rule 403 challenge for abuse of discretion and
construe its discretion “especially broadly.” United States v.
Scarfo, 41 F.4th 136, 178 n.35 (3d Cir. 2022). And even “[i]f
the record fails to include an explicit Rule 403 analysis,” we
may “decide the trial court implicitly performed the required
balance[] or . . . perform the balance oursel[ves].” United
States v. Heinrich, 971 F.3d 160, 163 (3d Cir. 2020) (cleaned
up).
Rule 403 permits a court to exclude “relevant evidence
if its probative value is substantially outweighed by the danger
of unfair prejudice,” that is, prejudice “suggest[ing] a decision
on an improper basis,” not the persuasive weight of the
evidence. United States v. Rutland, 372 F.3d 543, 545–46 (3d
Cir. 2004) (cleaned up). The letters were highly probative—
and not only to the charge of witness tampering with Reddy.
One letter provided evidence of Lingala’s intent to prevent
Teixeira’s testimony, and the letters suggested Lingala’s
consciousness of guilt as to the murder-for-hire charges. See,
e.g., Gatto, 995 F.2d at 454. To support his Rule 403 challenge
at trial, Lingala argued that the Government’s failure to call
Reddy as a witness would cause the jury to infer incorrectly
that Reddy was too intimidated to testify—or perhaps even
physically incapacitated by Lingala. To address this concern,
the District Court secured assurances from the Government
that it would not suggest the letters had affected Reddy in any
way, thereby reducing any danger of unfair prejudice.
Implicitly weighing this minimal risk of unfair prejudice
against the significant probative value of the letters, the District
Court found that neither the letters nor the Government’s
decision not to call Reddy to testify violated Rule 403.

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Lingala now argues for the first time on appeal that the
District Court abused its discretion by failing to analyze the
letters under specific factors for Rule 403 balancing applicable
to so-called “threat evidence” that we laid out in United States
v. Guerrero: (i) the “need for the evidence,” based on “the
importance and centrality to the ultimate issue in the case” and
“the availability of other evidence”; (ii) “the prejudicial nature
of the threat evidence,” which includes “the tendency of the
particular conduct alleged to suggest decision on an improper
basis,” “the nature or style of the . . . narrative,” “the likelihood
that the testimony is true,” and “the sufficiency of the other
evidence presented”; and (iii) “the extent to which any possible
inflaming of the jury can be cured by limiting instructions.”
803 F.2d 783, 785–86 (3d Cir. 1986) (cleaned up).
Because the failure to make an argument results in
forfeiture, we consider whether the Rule 403 argument that
Lingala advanced at trial is the same as the one he now raises.
Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004). While
Lingala’s trial argument at most implicated only Rule 403’s
general balancing test in weighing the probative value of
evidence against its potential prejudicial effect, Guerrero, 803
F.2d at 785, his appellate argument urges consideration of
specific factors, none of which Lingala identified in the District
Court. While “[p]arties are free . . . to place greater emphasis
and more fully explain an argument on appeal than they did in
the District Court,” “[r]evisions at some point become
differences in kind, presenting a completely new argument
altogether.” United States v. Joseph, 730 F.3d 336, 341 & n.5
(3d Cir. 2013). If two arguments rely on distinct legal rules or
standards, “they are not the same[,] and the raising of one will
not preserve the other.” Id. at 342. We thus deem his Guerrero

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argument forfeited and review it only for plain error. See
United States v. Henderson, 64 F.4th 111, 116 (3d Cir. 2023).
To prevail under plain-error review, Lingala must show
(i) an error; (ii) that was plain; (iii) that prejudiced him; and
(iv) that “if uncorrected, would seriously affect[] the fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Payano, 930 F.3d 186, 191–92 (3d Cir. 2019) (citing
United States v. Olano, 507 U.S. 725, 732 (1993)). Even if the
District Court erred in not considering the Guerrero factors,
Lingala cannot make a showing of prejudice—in other words,
that the District Court’s failure to apply Guerrero resulted in
the admission of the letters in violation of Rule 403 and that
admitting them had a reasonable probability of affecting the
outcome of the proceedings. Payano, 930 F.3d at 192. Unlike
Guerrero, Lingala was on trial for witness tampering. See
Guerrero, 803 F.2d at 784. The letters sent to Reddy were thus
central to the charges against Lingala, and nothing suggests
that other, similarly probative evidence was available.
Even on appeal, Lingala does not explain how the
letters—or the Government’s decision not to call Reddy as a
witness—were unfairly prejudicial. No doubt, Lingala’s letters
harmed his case. But neither their content nor style suggested
that the jury would be inflamed or otherwise decide his fate on
an “improper basis,” see id. at 786, especially in light of the
Government’s representation that it would not discuss any
impact the letters may have had on Reddy as well as the District
Court’s instruction that the jury not speculate about the absence
of any individuals not named as defendants in the indictment,
see Weeks v. Angelone, 528 U.S. 225, 234 (2000) (presuming
that jurors follow limiting instructions). So even had the
District Court applied the Guerrero factors, it would have
admitted the letters into evidence.

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21
C
Lingala makes two additional evidentiary challenges
based on the Confrontation Clause and hearsay. These
arguments both fail because the letters contained Lingala’s
own statements. See Melendez-Diaz v. Massachusetts, 557
U.S. 305, 309 (2009) (citing Crawford v. Washington, 541 U.S.
36, 51 (2004)); Fed. R. Evid. 801(d)(2)(A).
* * *
For the reasons stated, we reject Lingala’s evidentiary
arguments.
VI
The District Court had jurisdiction over Lingala’s case,
and he was convicted by a jury after a fair trial. Because none
of his claims of error is persuasive, we will affirm the judgment
of conviction.

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