United States of America v. Nelson Luis Diaz

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4088
UNITED STATES OF AMERICA
v.
NELSON LUIS DIAZ,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-07-cr-00147-1)
District Judge: Honorable John E. Jones, III
Argued September 15, 2009
Before: SLOVITER, FUENTES, and SMITH, Circuit Judges.
(Filed: January 15, 2010)
_____
Ronald A. Krauss (Argued)
Office of Federal Public Defender
Harrisburg, PA 17101
Attorney for Appellant
Michael A. Consiglio (Argued)
Eric Pfisterer
Office of United States Attorney
Harrisburg, PA l7108
Attorneys for Appellee

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_____
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant Nelson Diaz was convicted by a jury of
possession of a firearm in furtherance of drug trafficking “[o]n
or about March 29, 2006,” in violation of 18 U.S.C. § 924(c)
(Count I), App. at 19; possession with intent to distribute heroin
“[i]n or about November 1, 2005, through March 29, 2006,” in
violation of 21 U.S.C. § 841(a)(1) (Count II), App. at 20; and an
additional possession of a firearm in furtherance of drug
trafficking “[i]n or about January 2006 and before March 29,
2006,” in violation of 18 U.S.C. 924(c) (Count III), App. at 21.
The District Court sentenced Diaz to a term of 480 months
imprisonment – the sum of consecutive sentences of 120 months
for each firearm count and 240 months for possession with intent
to distribute heroin.
Diaz appeals on two grounds. First, he contends that his
convictions and consecutive sentences for the two firearm
charges violate the Double Jeopardy Clause. Second, Diaz
asserts that the District Court abused its discretion in denying his
motions for a mistrial which he filed because the Court admitted
the testimony of three Government witnesses that they feared
retaliation for their testimony.
I.
Factual Background
A. The Shooting of Albert Pierce
The underlying facts are not contested. Diaz sold heroin
at the Hall Manor housing project in Harrisburg beginning in
November 2005 and continuing through late March 2006, at a
price that undercut that of Albert Pierce, another drug dealer
operating out of Hall Manor. In March 2006, Pierce physically

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Pierce’s death resulted from a gunshot by an unidentified 1
triggerman. The Government state s that “[t]he testimony
conflicted concerning who shot first and how many shooters there
were . . . .” Appellee’s Br. at 7.
The jury instruc tio ns said, in relevant part: “[T]he 2
government alleges that Mr. Diaz violated [§ 924(c)] in two ways.
[It] alleges that Mr. Diaz violate d [§ 924(c)] by using or carrying
3
assaulted Diaz, and soon thereafter, on or about March 29, 2006,
Diaz and others confronted Pierce. Shots were fired by several
people, including Diaz, and Pierce was fatally wounded. It is not
known who fired the fatal shot.1
Diaz was indicted in April 2007 on one count that he
possessed, carried, and used a firearm in furtherance of a heroin-
trafficking offense, in violation of 18 U.S.C. § 924(c), on or
about March 29, 2006, and a second count of possession with
intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1).
A superseding indictment filed five months later retained the two
original counts and added, as a third count, another § 924(c)
charge that Diaz possessed, carried, and used a firearm in
furtherance of a drug trafficking offense “[i]n or about January
2006 and before March 29, 2006 . . . .” App. at 19-20. Diaz
pled not guilty to the superseding indictment, and the case
proceeded to trial.
B. The Trial Proceedings
In its jury instructions, the Court explained that the jurors
had to first consider whether Diaz had committed the underlying
drug-trafficking offense contained in Count II of the superseding
indictment. The Court further instructed that if the jury found in
the affirmative as to that question, it could then consider whether
Diaz committed the firearm charges in Counts I and III. The
Government sought to prove at trial that Diaz had used firearms
for different purposes throughout his drug-trafficking activities,
but aside from the separate dates contained in Counts I and III,
the Court’s jury instructions did not specify distinct purposes
with regard to the separate § 924(c) charges. The jury quickly 2

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a firearm – this is the first way – using or carrying a firearm during
and in relation to a drug trafficking c r ime ; and the second way,
possessing a firearm in furtherance of a drug tr af ficking crime.”
Supp. App. at 467.
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returned a guilty verdict on all three counts.
On appeal, Diaz does not contest the facts alleged in the
indictment. In other words, he concedes there was sufficient
evidence to support the heroin distribution count and that he
possessed a firearm on at least two occasions, one each during
the dates specified in Counts I and III. Instead, he raises a legal
challenge to his convictions on the two firearms counts. He also
contends that the District Court abused its discretion in denying
his motion for a mistrial on the ground that the testimony of
three Government witnesses that each feared becoming known in
their community as “a snitch,” App. at 54, prejudiced the jury by
implying that Diaz had threatened the witnesses.
C. The Sentence
In the presentence report (“PSR”), the Probation Office
found that Diaz was a career offender, that the 2007 Sentencing
Guidelines provided for a sentence in the range of 210 to 262
months for the drug-trafficking violation in Count II, and that
Counts I and III mandated an additional consecutive sentence of
360 months – 60 months for Count I and 300 months for Count
III, for a total recommended range of 570-622 months. The
calculation regarding the firearm offenses was based on
U.S.S.G. § 4B1.1, and 18 U.S.C. §§ 924(c)(1)(A)(i) & (C)(i),
which require a minimum sentence of five years (60 months) for
one § 924(c) violation, a minimum consecutive sentence of
twenty-five years (300 months) for each subsequent § 924(c)
violation, and that these sentences run consecutively to the term
imposed for the underlying drug offense.
Diaz objected to the PSR on the ground that punishing
him under § 924(c) with a five year term for one of the firearm
offenses and an additional twenty-five year term for the second

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Casiano does not govern this case because the Government 3
there charged more predicate crimes than § 924(c) violations. 113
F.3d at 426.
5
firearm offense based on the same predicate offense subjected
him to successive punishments for the same offense in violation
of the Double Jeopardy Clause. The District Court agreed,
relying on the weight of authority from other circuits and
referring to this court’s opinion in United States v. Casiano, 113
F.3d 420 (3d Cir. 1997). The District Court predicted that we 3
would require convictions on separate predicate offenses before
a district court could constitutionally find a “second or
subsequent conviction” and impose a twenty-five year
consecutive sentence under § 924(c)(1)(C).
Although the District Court sustained Diaz’s objections to
the PSR and agreed not to impose an additional twenty-five year
sentence under § 924(c)(1)(C), it nonetheless imposed two ten
year consecutive sentences for the § 924(c) convictions. Diaz
argued that the court was still improperly imposing multiple
penalties for a single offense, but the District Court was
unpersuaded. It stated that double jeopardy principles merely
precluded counting multiple § 924(c) offenses charged in
connection with a single predicate offense as “second or
subsequent” convictions under § 924(c)(1)(C), which would
automatically trigger additional twenty-five year consecutive
sentences. On appeal, Diaz raises as his principal issue whether
the District Court may impose two consecutive sentences for
firearm possession in furtherance of drug trafficking when he
was convicted on only one predicate drug trafficking offense.
II.
Jurisdiction and Standards of Review
The District Court had jurisdiction under 18 U.S.C. §
3231. This court has jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742. This court’s review of a district court’s
interpretation of the Federal Sentencing Guidelines and

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constitutional questions is plenary. United States v. McKoy, 452
F.3d 234, 236 (3d Cir. 2006). We review the District Court’s
denial of Diaz’s motions for mistrial for abuse of discretion.
United States v. Rivas, 493 F.3d 131, 139 (3d Cir. 2007).
Moreover, “such discretion is construed especially broadly in the
context of Rule 403.” United States v. Kemp, 500 F.3d 257, 295
(3d Cir. 2007).
III.
Discussion
A. Double Jeopardy and § 924(c)
We turn first to Diaz’s argument that his sentence to two
consecutive terms of 120 months each for the § 924(c)
convictions is “greater punishment than the legislature
intended,” and is thus prohibited by the Double Jeopardy Clause.
Appellant’s Br. at 20 (quoting Missouri v. Hunter, 459 U.S. 359,
366 (1983)).
The constitutional question in this case - whether the §
924(c) convictions and consecutive sentences violate the Double
Jeopardy Clause - turns on legislative intent. “With respect to
cumulative sentences imposed in a single trial, the Double
Jeopardy Clause does no more than prevent the sentencing court
from prescribing greater punishment than the legislature
intended.” Hunter, 459 U.S. at 366. It is thus incumbent on us
first to analyze the statutory text.
Section 924(c) provides, in pertinent part:
[A]ny person who, during and in relation to any . . . drug
trafficking crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall,
in addition to the punishment provided for such . . . drug
trafficking crime . . . be sentenced to a term of
imprisonment of not less than 5 years; . . . [and] if the
firearm . . . is a short-barreled rifle, short-barreled
shotgun, or semiautomatic assault weapon, . . .to a term of

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imprisonment of not less than 10 years; . . . [and if the
firearm] . . . is a machinegun . . . , to a term of
imprisonment of not less than 30 years. . . . In the case of
a second or subsequent conviction under this subsection,
the person shall . . . be sentenced to a term of
imprisonment of not less than 25 years. . . . [N]o term of
imprisonment imposed on a person under this subsection
shall run concurrently with any other term of
imprisonment . . . .
18 U.S.C. § 924(c)(1)(A)(i), (B)(i), B(ii), (C)(i) & (D)(ii).
Our analysis must begin by deciding what is the proper
“unit of prosecution” for § 924(c). See United States v. Pollen,
978 F.2d 78, 85 (3d Cir. 1992). Most of the courts of appeals
that have addressed this issue agree with Diaz that it is the
underlying predicate crime, i.e., the drug distribution count.
Indeed, nine courts of appeals have so held. See, e.g., United
States v. Rodriguez, 525 F.3d 85, 111 (1st Cir. 2008); United
States v. Baptiste, 309 F.3d 274, 279 (5th Cir. 2002). The
Government differs, arguing that the statute’s unit of prosecution
is each instance in which a defendant uses or carries a firearm
during and in relation to a drug-trafficking offense, or each
instance in which a defendant possesses a firearm in furtherance
of such an offense.
The Second Circuit undertook a detailed analysis of the
issue in United States v. Lindsay before holding that “a
defendant who uses multiple firearms in relation to a single
drug-trafficking crime may be charged with only one violation of
§ 924(c)(1).” 985 F.2d 666, 676 (2d Cir. 1993). The court
examined the statutory text and stated that because § 924(c)
requires “some relation or connection between the firearm and
the underlying crime,” Congress likely considered the
appropriate unit of prosecution to be the underlying drug-
trafficking offense. Id. at 673 (quoting United States v. Feliz-
Cordero, 859 F.2d 250, 254 (2d Cir. 1988)). Even so, the court
recognized that the legislative history of § 924(c) was meager
and the statutory language ambiguous, and therefore resolved the
issue by relying on the rule of lenity on behalf of the defendant.

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Id. at 676.
The Sixth Circuit relied on the Lindsay decision when it
was presented with an appeal by a defendant who was convicted
of one underlying drug offense and two counts under § 924(c).
See United States v. Taylor, 13 F.3d 986, 993 (6th Cir. 1993).
The court framed the issue as: “whether or not § 924(c) allows
multiple convictions and sentences in relation to a single
predicate drug-trafficking offense.” Id. at 992. It resolved that
question by analyzing the statutory text, particularly the “during
and in relation to” language, and found that § 924(c)
“‘emphasizes the relationship between the firearms and the
underlying drug-trafficking crime, rather than the individual
firearms . . . .’” Id. at 993 (quoting Lindsay, 985 F.2d at 673). It
thus held that one of the two firearms convictions could not be
sustained. Id. at 994.
Two years later, the D.C. Circuit, sitting en banc,
considered the same issue in United States v. Anderson, 59 F.3d
1323 (D.C. Cir. 1995). The opinion for the plurality noted that §
924(c) can be understood in one of two ways. It could “mean
either that (1) each time a defendant uses [or carries] a firearm in
relation to a crime he commits a separate crime, or (2) that if
during the course of a crime a defendant uses or carries a firearm
at any time, he commits a separate crime.” Id. at 1326
(quotations omitted). After closely parsing the text, a plurality
of the court found the latter interpretation to best reflect
congressional intent. Id. at 1326-27 (“[i]t appears to us that the
draftsmen were not employing the word ‘uses’ to imply that each
discrete act that might be called a ‘use’ constitutes a separate
crime.”).
In support, the opinion noted that inclusion of the verb
“carries” in the statute suggested that Congress was referring to
a “continuing activity,” rather than a discrete act. Id. at 1327.
Moreover, it considered that the enhancement for a
“machinegun” in § 924(c)(1)(B)(ii) suggested that Congress
focused on the underlying drug crime “whose character is
irrevocably changed when the defendant uses or carries a gun.”
Id. The Anderson court also stated that “Congress spoke in

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terms of the word ‘the’ because it did not regard as significant
the number of times guns, or the number of guns that were
carried or used during and in relation to the predicate crime.” Id.
Finally, the opinion reasoned that Congress could have easily
inserted the words “each time” or “on each occasion” to clarify
its intent. Id. Because Congress did not, the plurality found it
“virtually inconceivable” that Congress had contemplated that a
defendant would be charged with multiple § 924(c) violations
“appended to one underlying drug crime.” Id.
The result reached in Anderson has also been reached by
many other circuits. For example, the Seventh Circuit reversed
two of the defendant’s three convictions under § 924(c) because
the defendant had only been convicted of and sentenced on two
counts of drug trafficking. See United States v. Cappas, 29 F.3d
1187, 1195 (7th Cir. 1994). The court stated that “each § 924(c)
count needs to be tied to a different . . . drug-trafficking crime”
id. at 1189, and that “separate [§ 924(c)] convictions are
permissible so long as the court’s instructions require the jury to
connect each gun use to a separate predicate offense.” Id. at
1190. The Ninth, Tenth, and Eleventh Circuits have all agreed
with that premise. See United States v. Hamilton, 953 F.2d
1344, 1346 (11th Cir. 1992); United States v. Smith, 924 F.2d
889, 894-95 (9th Cir. 1991); United States v. Henning, 906 F.2d
1392, 1399 (10th Cir. 1990).
More recently, other circuits have followed these cases
with little additional reasoning. For example, in Rodriguez, the
defendant was convicted of one count of drug conspiracy and
two separate counts under § 924(c). 525 F.3d 85 at 111. The
only difference between the two § 924(c) counts was that the
two incidents involving firearms occurred on different dates. Id.
When the defendant appealed, the Government conceded that it
was improper to impose two consecutive sentences under §
924(c). Id. Even with the Government’s concession, the court
proceeded to cite many of the cases Diaz also cites, as well as its
own precedent which held that imposing “multiple consecutive
sentences under subsection 924(c) for using multiple weapons
during a single predicate crime ‘would impinge upon
fundamental double jeopardy principles.’” Id. (quoting United

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States v. Pena-Lora, 225 F.3d 17, 32 (1st Cir. 2000)).
To be sure, two circuits have taken the minority view.
The Eighth Circuit held that the plain language of the statute
favors finding that § 924(c)’s unit of prosecution is the
individual “uses” to which firearms are put throughout the
duration of an underlying crime. See United States v. Lucas, 932
F.2d 1210, 1222 (8th Cir. 1991). Given its conclusion about the
statutory text, that court held that multiple § 924(c) convictions
arising out of a single, predicate crime do not offend double
jeopardy principles, so long as the Government proves that
firearms were put to different uses during that predicate crime.
Id. at 1223.
Similarly, the Fourth Circuit has also held that separate §
924(c) convictions may arise from one predicate offense. See
United States v. Camps, 32 F.3d 102, 108-09 (4th Cir. 1994). It
concluded, partly on policy grounds, that the “use” and
“carry[ing]” of a firearm are the units of prosecution. Id.; see
also id. at 108 (“[i]f multiple uses of . . . weapons . . . could not
be punished with multiple consecutive sentences, there would be
little deterrence against armed drug dealers using those weapons
repeatedly during a lengthy drug conspiracy.”).
The position of these two courts is not significantly
different from that taken by the five-judge minority of the D.C.
Circuit which concluded that the operative verbs in the statute
defined its units of prosecution. See Anderson, 59 F.3d at 1338
(Ginsburg, J., dissenting). The opinion for the dissenters stated:
“[t]he rule that a crime is committed each time a defendant
performs the proscribed act is so obvious that courts rarely pause
to comment upon it.” Id. (Ginsburg, J., dissenting). The
statement is surprising as it was not so “obvious” to the nine
courts of appeals that adopt the contrary view. Moreover, the
issue is not whether a defendant violates § 924(c)(1) each time
he commits a crime by using a firearm in connection with a
drug-trafficking crime. Instead, the question is whether a
defendant has committed more than one § 924(c) violation when
only one drug trafficking offense has been proven. We agree
with the Taylor court when it stated, “[t]he purpose of §

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924(c)(1), as explained extensively in Lindsay, is to target those
defendants who choose to involve weapons in an underlying
narcotics crime . . . . Consequently, the predicate offense, not the
firearm, is the object of § 924(c)(1).” Taylor, 13 F.3d at 993-94.
The difference of opinion among the circuits (and within
the D.C. Circuit) suggests that § 924(c)’s statutory text may
reasonably be susceptible of differing interpretations. We might
expect elucidation as to congressional intent from the legislative
history but there is some support for both positions in the
legislative history of § 924(c). We are aware that there is some
disdain for using legislative history as a tool to help ascertain the
intent behind ambiguous statutory language. See, e.g., United
States v. R.L.C., 503 U.S. 291, 307 (1992) (“In my view it is not
consistent with the rule of lenity to construe a textually
ambiguous penal statute against a criminal defendant on the
basis of legislative history.”) (Scalia, J., concurring).
Nonetheless, we refer to that history briefly to determine
whether congressional intent is ascertainable, as we have done in
the past when confronted with an ambiguous statute. See United
States v. Tupone, 442 F.3d 145, 152 n.5 (3d Cir. 2006) (noting
that the “rule of lenity applies only where a statute is found to be
ambiguous upon review of the text, structure, legislative history,
and policies of the statute”) (emphasis added).
The Second Circuit in Lindsay found support for the
conclusion that § 924(c)’s unit of prosecution is the predicate
crime in a statement by Representative Poff, an original sponsor
of an amendment to a bill that became § 924(c), that the purpose
of the amendment was:
to persuade the man who is tempted to commit a Federal
felony to leave his gun at home. Any such person should
understand that if he uses his gun and is caught and
convicted, he is going to jail. He should further
understand that if he does so a second time, he is going to
jail for longer.
Lindsay, 985 F.2d at 676 (quoting 114 Cong. Rec. 22,231
(1968)).

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Although the Lindsay court read this statement to show
that Congress “apparently was concerned more with the number
of underlying drug-trafficking crimes committed by the
defendant, than with the number of firearms used in relation to
any particular offense,” Lindsay, 985 F.2d at 676, we do not find
Representative Poff’s statement enlightening as to the question
at hand. Similarly unhelpful are other statements by
Representative Poff referred to by the Government, such as the
following statement also quoted by the Anderson minority:
The penalties in this amendment were not addressed to
the base felony . . . The amendment was addressed to the
use of a firearm in the commission of the base felony. It
was designed to persuade the man who has decided to set
forth on a criminal venture to leave his gun at home.
Anderson, 59 F.3d at 351 (Ginsburg, J., dissenting) (internal
citations omitted).
The Government reads this statement to show that
“Congress intended to prohibit each event of possession, usage
or carrying . . . .” Appellee’s Br. at 30. On the other hand,
Representative Poff’s statement refers to gun possession in
relation to a “criminal venture,” which could be interpreted to
mean that some, underlying offense must exist before the use of
a gun violates the statute. See United States v. Bernier, 954 F.2d
818, 820 (2d Cir. 1992) (“the legislative history makes clear the
intent of Congress to deter multiple commissions of a crime with
a gun.”). We conclude only that the legislative history is as
ambiguous as the statutory text, and it is thus not enlightening as
to Congress’ intent on the specific question before us.
We therefore agree with the resolution of the D.C. Circuit
that the ambiguity in the text of § 924(c) and in its legislative
history require that courts follow the rule of lenity. See
Anderson, 59 F.3d at 1333 (“[w]e are led, then, to the ultimate
conclusion that at a very minimum, § 924(c)(1) is ambiguous.
The rule of lenity must, therefore, govern application of the

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Indeed, as Judge Ginsburg pointed out in his dissenting 4
opinion, the rule of lenity was the only principle of law accepted by
a majority of the D.C. Circuit as a basis for its en banc decision in
Anderson. 59 F.3d at 1340 n. 5 (Ginsburg, J., dissenting).
13
statute.”) ; see also Lindsay, 985 F.2d at 673 (“[s]ince Congress 4
failed to specify the firearm as the appropriate unit of
prosecution under § 924(c)(1), we invoke the rule of lenity . . .
.”) (internal citation omitted).
The concurring opinion of Judge Randolph of the D.C.
Circuit stated that it is the rule of lenity that tips the otherwise
evenly-balanced scales in favor of the criminal defendant. See
Anderson, 59 F.3d at 1335 (Randolph, J., concurring). Applying
that principle to § 924(c)(1), he stated:
The statute yields barely a clue about how to apply it to
drug dealers who routinely arm themselves as they go
about their awful business and, when caught, are charged
only with one continuing drug offense. Reading and
rereading my colleagues’ skillful efforts to parse the
language only plunges me deeper into the fog. The
arguments on both sides are pretty much in equipoise.
The rule of lenity is, as I see it, the one path out.
Id.
We agree. We cannot pretend that the statutory text and
legislative history explicate congressional intent in this context.
Although it is true that the rule of lenity is reserved for statutes
with grievous ambiguity, we can say without hesitation that
“[a]fter ‘seiz[ing] everything from which aid can be derived’”
we are “‘left with an ambiguous statute.’” Smith v. United
States, 508 U.S. 223, 239-40 (1993) (quoting United States v.
Bass, 404 U.S. 336, 347 (1971)) (further internal quotations and
citations omitted). Application of the rule of lenity is
particularly appropriate in the context of § 924(c) because of its
mandatory consecutive sentences and extremely harsh penalties
for subsequent convictions.

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Under the Government’s position, there would be no
limitation on its ability to charge a defendant with a new §
924(c) for each instance in which he used, carried, or possessed
a gun as he sold drugs, which, under the statute’s “second or
subsequent” clause, could quickly add up to life imprisonment.
The Second Circuit put it well when it said, “if congress
intended to impose such a draconian penalty[,] . . . surely it
would have said so in clear language.” Lindsay, 985 F.2d at 674.
For the reasons set forth, we will vacate one of Diaz’s
two § 924(c) convictions and remand to the District Court for re-
sentencing. See Taylor, 13 F.3d at 994 (prescribing the
appropriate remedy in this context). As the Supreme Court
stated in Bass, 404 U.S. at 348, “because of the seriousness of
criminal penalties, and because criminal punishment usually
represents the moral condemnation of the community,
legislatures and not courts should define criminal activity. . . .
[t]hus, where there is ambiguity in a criminal statute, doubts are
resolved in favor of the defendant.”
B. Motion for Mistrial and Federal Rule of Evidence
403
We dispose of Diaz’s second ground for appeal more
easily. He contends that the District Court should have granted
his motions for a mistrial in light of the testimony of
Government witnesses that they feared what members of their
community would do to them in retaliation for their cooperation
with the Government. Diaz bases this argument on Rule 403 of
the Federal Rules of Evidence, which directs district courts to
exclude evidence when the danger of unfair prejudice
substantially outweighs its probative value.
Arguably there was little probative value to the testimony
as it only helped explain why certain Government witnesses
were uncooperative, but its potential for prejudice was
unsubstantial. None of the testimony stated directly that Diaz
himself was violent. Rather, the witnesses merely stated they
feared being labeled a “snitch” in their community. The overall
effect of this testimony reflected the dangerousness of the Hall

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Manor housing project.
Perhaps most important, we owe the District Court “very
substantial discretion” in its ruling on whether to admit
testimony under Rule 403. United States v. Long, 574 F.2d 761,
767 (3d Cir. 1978). A district court’s balancing under Rule 403
will only be reversed if its analysis and conclusions are
“arbitrary or irrational.” United States v. Universal Rehab.
Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir. 2000) (quotation
and citation omitted).
We cannot so state here. When one Government witness
began testifying about being “labeled as a snitch” in his
neighborhood, App. at 37, the District Court conferred with
counsel at sidebar, clarified that the testimony did not involve an
allegation of a threat from Diaz himself, and found that any
particular witness’ subjective belief that s/he will be at risk in the
community after testifying for the Government did not warrant a
mistrial. Diaz did not object the second time the issue arose. On
the third occasion, when a witness testified to being “afraid,
because [she] live[s] in Hall Manor . . . [a]nd . . . the detective . .
. can’t even protect [her],” the District Court stopped the
witness’ testimony upon Diaz’s objections. We have no basis to
disturb the judgment of the District Court that the danger of
unfair prejudice from this testimony did not substantially
outweigh its probative value.
IV.
Conclusion
For the reasons set forth, we will affirm the District
Court’s denial of Diaz’s motion for a mistrial. We will vacate
one of the two § 924(c) violations and remand this case to the
District Court for re-sentencing.

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