author: GREENBERG, Circuit Judge.

text:
    UNITED STATES of America v. Dominique JACKSON, a/k/a Dominique Green Dominique Jackson, Appellant
    No. 14-3712
    United States Court of Appeals, Third Circuit.
    Argued December 7, 2016
    (Filed: February 24, 2017)

      Donovan J. Cocas, Esq. (argued), Assistant U.S. Attorney, Pittsburgh, PA, Attorney for Appellee.
    F. Clinton Broden, Esq. (argued), Bro-den & Mickelsen, Dallas, TX, Attorney for Appellant.
    BEFORE: FISHER , KRAUSE, and GREENBERG, Circuit Judges

       Judge Fisher assumed senior status on February 1, 2017.

   OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on Dominique Jackson’s appeal from his conviction for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. Jackson’s principal contention is that the District Court erroneously denied his pretrial motions to suppress evidence derived from what he claims were unlawfully intercepted, cellphone calls. In addition he argues that the Court made prejudicial plain errors at his trial.

Before trial, Jackson moved to suppress evidence of co-conspirators’ cellphone calls intercepted as authorized by district court orders. These interceptions, pursuant to Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, governing wiretaps, comprised a significant amount of the evidence at trial, though Jackson was a participant in only a small number of calls. A Pennsylvania state court had authorized wiretaps sought by state law enforcement officers and information obtained from those wiretaps was used in affidavits when federal wiretap orders were sought. Jackson challenges the district court authorized wiretaps because he contends that the state court lacked jurisdiction to permit the underlying wiretaps of cellphones outside of Pennsylvania. In this case intercepted calls were placed and received outside of that state, even though the calls in part concerned cocaine trafficking in Pennsylvania. Accordingly, Jackson contends that the evidence obtained through the federal interceptions was the fruit of illegal conduct and should have been suppressed.

Jackson also claims that during the trial there were three unchallenged prejudicial plain errors: (1) the admission of a case agent’s testimony interpreting the contents of certain telephone calls; (2) the admission of co-conspirators’ testimony about their convictions and guilty pleas for the same crime; and (3) the prosecutor’s mention of a co-conspirator’s Fifth Amendment right not to testify when she was prompted to identify the evidentiary rule that permitted the admission into evidence of what otherwise would have been inadmissible hearsay. Jackson urges that those errors separately and cumulatively require reversal of his conviction.

We conclude that inasmuch as the District Court did not err in denying Jackson’s motions to suppress the wiretap evidence and his other contentions of error, even if correct, would not make claims rising to the level of plain errors entitling him to relief, we will affirm Jackson’s conviction.

II. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291.

“We review the denial of a suppression motion for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the district court’s properly found facts.” United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006). To the extent that Jackson failed to object to any of the issues during the trial that he raises for the first time on appeal, our review is for plain error. See Fed. R. Crim. P. 52(b); United States v. Christie, 624 F.3d 558, 567 (3d Cir. 2010). When exercising such a review, an appellate court may evaluate whether there has been “[a] plain error that affects substantial rights.” Fed. R.- Crim. P. 52(b). To be a “plain” error, the error must be “clear under current law.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). Moreover, the error must involve substantial rights and prejudice the defendant by “affeet[ing] the outcome of the district court proceedings.” Id., 113 S.Ct. at 1778.. The plain error rule “leaves the decision to correct the forfeited error within the sound discretion of the court of appeals.” Id. at 732, 113 S.Ct. at 1776. A court of appeals will decline to grant relief on a plain error basis unless the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and citation omitted).

III. BACKGROUND

A. Procedural History

A grand jury indicted Jackson and seven co-defendants on one count of “conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine from in and around July 2010 and continuing thereafter to on or about October 7, 2010.” Supp. App’x at 487. Jackson was the only one of the eight defendants who went to trial. Before his trial, he submitted multiple motions to suppress wiretap evidence of intercepted cellphone conversations, but the District Court denied of all these motions. The jury found Jackson guilty, and on July 24, 2014, the Court sentenced him to a 135-month custodial term to be followed by five years of supervised release.

B. The Evidence at Trial

The evidence at trial mainly was comprised of: (1) numerous cellphone calls intercepted in part pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968; (2) testimony from case agents who engaged in surveillance and testimony from Jackson’s co-conspirators Dietrick Bostick and Christopher Stanley; and (3) documents such as hotel, plane, and bus receipts that corroborated witness testimony.

This case grew out of a joint federal and state investigation. One of the case agents, Detective Shane Countryman of the Allegheny County Sheriffs Office, who was assigned to the Greater Pittsburgh Safe Streets Task Force with the Federal Bureau of Investigation, testified at length about the. results of his investigation. See Supp. App’x at 67. He detailed an initial investigation into a street-level drug dealer and explained how that investigation led to wiretaps of cocaine suppliers Dameli Gaines and Dietrick Bostick. Id. at 79-81. After the FBI determined that a eo-con-spirator, Arthur Gilbert, supplied Bostick ■with cocaine, it obtained an order to wiretap Gilbert’s phone as well. Id. at 80-81.

Co-conspirator Bostick testified at the trial describing his work as a middleman in the cocaine distribution network during the time period in which Jackson was engaging in cocaine distribution and for which Jackson was indicted and convicted. Bostick also interpreted a number of the calls to which he was a party. See id. at 291. He informed the jury that he used his Monroeville, Pennsylvania, house to hold cocaine for out-of-state distributors. See id. at 240, 282. He testified that about twice a month he received between five and 20 kilograms of cocaine from Gilbert, who was Jackson’s cousin. Id. at 252-55, 337. Gilbert told Bostick that he paid between $24,600 and $25,700 per kilogram of cocaine. Id at 259. Bostick, in turn, paid Gilbert around $30,000 per kilogram and sold each kilogram for around $34,500 to a number of distributors, including Gaines. Id. at 259-60, 264.

Both Gilbert and co-conspirator Christopher Stanley informed Bostick that the cocaine had been obtained from an individual named “Dom” in Texas. Id at 255. Bostick testified that he understood that his payments went to “Dom,” that “Dom” was Jackson, and that he had met Dom once in a strip club in Atlanta. Id. at 254, 268-65, 272. An intercepted call supporting Bostick’s testimony showed Gilbert telling Bostick that “I just heard from, uh, Dom, he is just, uh, said everything was alright.” Id. at 644. Bostick stated that Jackson in July 2010 travelled to the Pittsburgh area, staying in the Doubletree Hotel in Mon-roeville. Id. at 261-62. Bostick testified that he took Gilbert to the same hotel. Id. Bostick admitted that he did not deal directly with Jackson even though he participated in the distribution chain involving Jackson. Id. at 283.

Bostick testified that from July to October 2010 co-conspirators Arthur Brown, Melinda Adams, Philip Gilbert, and Shari Williams once or twice a month delivered between one to three kilograms of cocaine to him in Pennsylvania that they had obtained in Texas. Id. at 256, 261-62. Bostick stated that these persons smuggled the cocaine in their pants when travelling by plane or Greyhound bus. Id. at 257. When Bostick received the cocaine he paid the persons who delivered it. Id at 262-63. On the day he was arrested, Bostick was expecting to receive a shipment from Brown and Williams. Id at 261.

Co-conspirator Christopher Stanley testified about his experience trafficking cocaine with Jackson. He detailed a number of instances during which he acted at Jackson’s direction as the intermediary between Jackson and Bostick. One such instance was on June 27, 2010, when Jackson directed Stanley to fly to Pittsburgh after two associates already had delivered cocaine to Bostick for Jackson. Id. at 325. Jackson told Stanley to call Bostick to obtain approximately $34,800 as payment for the cocaine. Id. at 325-29. Stanley subsequently travelled to Bostick’s house in Monroeville and collected the cash. Id. at 327. Stanley and other persons with him stayed at the Doubletree Hotel in Monroe-ville that night. Id. On June 28, 2010, Stanley and the others hid the cash on their bodies and, at Jackson’s direction, transported the cash to Dallas. Id. at 326, 330-31.

Jackson then directed Stanley on July 1, 2010, to fly back to Pittsburgh to transfer cocaine to Bostick. Id. at 332-33. Jackson gave one kilogram of cocaine to Stanley and his associate and directed Stanley to book a room for Jackson in Pittsburgh. Id. Upon arriving in Pittsburgh, Stanley and his associate went to the Doubletree Hotel in Monroeville, where they delivered the kilogram of cocaine to Bostick. Id. at 334. Stanley testified that Jackson took a flight to Pittsburgh the day after the delivery and met him at the Doubletree Hotel. Id. at 335-36. Jackson obtained payment for the cocaine the following day and flew with Stanley back to Dallas on July 4, 2010. Id. at 338. The transfers at that time included three kilograms of cocaine and $64,000 in cash. Id. at 338-39. Detailed cellphone records showing that Jackson’s cellphone on June 30, 2010, accessed a cell tower in Monroeville corroborated this testimony as did Bostick’s testimony that Jackson in July 2010 stayed at the Doubletree Hotel in Monroeville to obtain payment, and Stanley’s receipt for the Doubletree Hotel in Monroeville for the dates June 29, 2010, through July 4, 2010. Id at 261-62, 300-01, 387.

Stanley also testified about other trips to Pittsburgh in which he acted as an intermediary between Bostick and Jackson. On one occasion, Jackson directed Stanley to travel to Pittsburgh to assist in delivering two kilograms of cocaine to Bos-tick and to transport the payment for the cocaine to Jackson in Dallas. Id. at 341-43. Stanley testified that Jackson supplied the cocaine for the transaction. Id Stanley obtained $35,000 for each kilogram of cocaine, and he and his associates turned the money over to Jackson in Dallas. Id. at 343-346. Stanley stated that overall he came to Pittsburgh four times. Id. at 346.

Stanley detailed two times when he stayed in Dallas while working for Jackson. Both times Jackson in Dallas gave him cocaine that Stanley, in turn, delivered to co-conspirator Brown. On August 11 or 12, 2010, Brown came to Dallas from Pittsburgh. Id at 347-48. Intercepted phone calls showed that Brown told Gilbert that he was going to a Denny’s restaurant on the afternoon of August 12, 2010. Id. at 666. Stanley arranged with Brown to meet him there. Id at 668. Detective Countryman observed Stanley pick up Brown and Brown’s luggage at the restaurant. Id. at 174-76. In an intercepted call later that night, Gilbert asked Bostick for.“Dom’s” number. Id. at 670. After Brown made a number of intercepted calls to Gilbert and Stanley, Stanley in an intercepted call gave Jackson’s phone number to Brown. Id. at 671-79. Even though there was no subsequent call to Jackson that night at least that was admitted into evidence, Stanley testified that Jackson told Brown to ask Stanley to check to see “how he got it tucked,” meaning “how he had the cocaine placed on his body.” Id. at 348. The intercepted phone call in which Brown asked Stanley to do so was evidence in the trial. Id. at 685. Stanley dropped Brown off at the Greyhound bus station in Dallas, and Brown transported the cocaine back to Pittsburgh. Id. at 347-48.

In mid-September 2010, Jackson again gave Stanley two kilograms of cocaine to deliver to Brown, who was staying at a hotel in Dallas. Id. at 350-51. At the Greyhound bus station on September 17, 2010, Officer Ryan Miller watched Brown arrive on a bus and observed Stanley with him. Id. at 156. There was a text message on Jackson’s phone sent to Gilbert on September 17, 2010, at 5:17 p.m., which read: “Western Union 800 to Christopher Stanley, Dallas, Texas. Need for the rest of the deal. I’m going to be on the plane.” Id. at 133. In an intercepted phone call at 5:33 p.m., Gilbert told Jackson that “when they ask for [the] sender where its [sic] from just say Pittsburgh” and Jackson responded that “my partner gonna call you so because, he gonna get everything together.... So when I land it’ll be straight.” Id. at 613. After Stanley delivered the two kilograms of cocaine, Stanley called Gilbert, who gave him the details about the Western Union payment. Id. at 351-53, 618. In an intercepted call, Stanley told Gilbert to send the Western Union number via text message. IR at 618. A corresponding text message with a number and a Western Union receipt with that same number as its confirmation number listing Bostick as the sender and Stanley as the payee were admitted into evidence at trial. Id. at 133,138-39.

Later that evening, Jackson in a call to Gilbert stated that “I’m tryin [sic] to um coordinate it.” Id. at 629. In that call, Gilbert told Jackson that he gave $800 to “Chris” but was $400 short. Id. at 630-31. In an intercepted call made at 1:48 a.m. on September 18, 2010, Stanley told Gilbert, “[E]verything one hundred.” Id. at 633. Stanley testified that the statement was code that the deal had been completed. Id. at 352. The next morning, September 18, 2010, Officer Miller observed Brown leave the Greyhound bus station from Dallas. Id. at 156-57.

Stanley testified about Jackson’s unsuccessful attempt to deliver, cocaine to Brown. Brown came to Texas in October 2010 to obtain three kilograms of cocaine from Jackson. Id. at 355. Brown paid Jackson around $90,000 in cash for the three kilograms of cocaine before Jackson had the cocaine. Id. at 356. Stanley watched Jackson use a money counter to count the cash in an apartment in Dallas. Id. But Jackson was unable to supply the cocaine, so Brown obtained the cocaine from another supplier. Id at 355-57. Jackson then needed to return the payment that Brown had made to him for the undelivered cocaine. Id at 357. Stanley testified that Jackson returned the payment at a hotel with Crowne in the name in downtown Dallas. Id.

Countryman provided testimony about his surveillance that aligned with Stanley’s description of the failed cocaine deal. He testified that on October 4, 2010, he observed Brown and another co-conspirator, Shari Williams, travel from the Dallas Greyhound bus station to the Crowne Plaza Hotel in that city. Id. at 104. In a phone conversation between Gilbert and Brown on October 4, 2010, Brown told Gilbert to meet him at the “Crowne Plaza.” Id at 603. There were two receipts for two different rooms in the Crowne Plaza Hotel for October 4 through October 5, 2010, in Shari Williams’s name. Id. at 106-07.

Countryman observed Jackson in the lobby of the Crowne Plaza Hotel at around 4:00 p.m. on October 4, 2010. Id. at 108, 110. He testified that Jackson was wearing a backpack. Id. at 111. About ten minutes later, Jackson left the hotel with a “much fuller” backpack. Id. at 112. A pen register trap and trace of one of Jackson’s cellphone numbers indicated that Jackson was in the vicinity of the Crowne Plaza at that time. Id. at 113-15. On October 5, 2010, Countryman once again observed Jackson entering the Crowne Plaza Hotel with the same backpack. Id. at-115-16. Jackson entered the same room that Countryman had watched Gilbert leave “[mjultiple times.” Id. at 116. Countryman testified that based on Stanley’s interview with him, he determined that Jackson’s actions at the Crowne Plaza Hotel involved Jackson receiving and then returning the money for the failed cocaine purchase about which Stanley testified. Id. at 118.

An Allegheny County Sheriffs Department officer testified that on October 7, 2010, he participated with the FBI in the arrest of Brown and Williams at the Greyhound bus station in Pittsburgh. Id. at 63. He and other officers had been waiting for them to arrive on the bus from Texas. Id. at 63-64. When they arrested Brown, a kilogram of cocaine fell out of his waistband. Id. at 64. Further, they found a kilogram of cocaine in Brown’s suitcase. Id. at 98. Williams also had a kilogram of cocaine in her luggage. Id. at 99. In a phone call placed on October 2, 2010, from Gilbert to Brown, Brown told Gilbert “[t]wo on and two in.” Id. at 600. Countryman interpreted that code to mean that Brown had kilograms of cocaine on his person and in his suitcase, and contended that these facts corroborated what they found on Brown at the time of the arrest. Id. at 102.

According to Stanley, Jackson used an apartment in Dallas to store cocaine which he directed a friend, Allen Russell, to rent in Russell’s name. Id. at 357-58. Stanley testified that Stanley and others “stayed there 95 percent of the time.” Id. at 358.

The FBI searched an apartment in Stanley’s name on October 7, 2010, and seized a credit card in Jackson’s name, court and other documents in Jackson’s birth name, a utility bill in Jackson’s birth name, a magazine with ammunition, a food sealer with sealing bags, cling wrap, rubber gloves, cellphone receipts in Stanley’s name, various credit and identification cards in Stanley’s name, an auto insurance policy jointly in Stanley’s and Jackson’s names, and a money counter, along with other documentation relating to other names including Allen Russell. Id. at 34-59. FBI agent Detective Jason Preece stated that cling wrap, gloves, food sealers and sealing bags are used to package either money or illegal drugs and the money counter is associated with drug trafficking because of the large sums of cash involved in drug transactions. Id. at 44, 53. Preece also testified that he saw Jackson and Stanley entering and leaving the apartment when conducting surveillance of the property. Id. at 56. The prosecutor introduced a text message from October 8, 2010, sent from a phone seized from Jackson stating, “I wish you would listen to me when I told you that shit was hot fbi [sic] went by da crib with search warrant meet me somewhere.” Appellant’s br. at 16 n.6; see Supp. App’x at 228, 230-31.

The FBI also searched Bostick’s house on October 7, 2010. In the search they recovered a money counter, $4,700 in cash, numerous cellphones, marijuana, cocaine, a shotgun, an ammunition magazine, and a razor blade near a food scale. An FBI agent testified that these items were indicative of drug trafficking. Supp. App’x at 196-203. Before he was arrested Bostick attempted to flush cocaine down the toilet. Id. at 201.

Jackson testified and claimed that a voice in cellphone recordings in evidence attributed to him was not actually his voice. Id. at 463. He contended that evidence admitted at the trial was fabricated. Id. at 460. The jury convicted Jackson of one count of conspiracy to distribute and possess with intent to distribute five or more kilograms of cocaine. In the face of the overwhelming evidence against him Jackson does not contend that the evidence at trial, if admissible, did not support his conviction.

IV. DISCUSSION

A. The Federal Wiretap Orders

Jackson contends evidence derived from the execution of two federal orders authorizing wiretaps of cellphones pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 should have been suppressed because the court that entered the orders based its finding of probable cause for their authorization on affidavits including information received from what he contends were illegal state wiretaps. He claims that the state court lacked authority to authorize those wiretaps because it did not have jurisdiction over the cellphones being tapped when they were outside of Pennsylvania. He maintains that a “state’s jurisdiction is limited to the confines of its own borders.” Appellant’s br. at 27. Thus, he argues in his brief that the Pennsylvania wiretap statute authorizing “the interception of wire, electronic or .oral communications anywhere within the Commonwealth” permits courts to authorize interception of communications only if all the phones are located within the borders of Pennsylvania at the time of the communication. 18 Pa. Cons. Stat. § 5710; Appellant’s br. at 24-27. When pressed at oral argument, he conceded that the Pennsylvania statute itself permitted a “listening post” theory but emphasized a constitutional argument that the principles of federalism and the historical relationship between the federal and state governments preclude a state from authorizing a wiretap if one party is outside the state’s borders. Oral Argument at 3:21-53. Inasmuch as several conversations concerning and involving Jackson occurred while the cellphones being used were located outside of Pennsylvania, Jackson claims that the interceptions of the conversations were illegal and evidence derived from the interceptions must be suppressed, even though Pennsylvania was one of the loci of the conspiracy. See Appellant’s br. at 24 (citing United States v. Giordano, 416 U.S. 505, 533, 94 S.Ct. 1820, 1835, 40 L.Ed.2d 341 (1974)).

The government responds that Jackson lacks standing in part to complain of the use of the interceptions because, except for six cellphone calls, to which he was a party and therefore the use of which he has standing to challenge, he was not a party to the intercepted calls. Appellee’s br. at 13. It contends that Title III, rather than state law, applies to the determination of the evidence’s admissibility, and that Title III permits the interception of out-of-state calls if the interception, or “listening post,” itself is located within the jurisdiction of the court authorizing the interception. Ap-pellee’s br. at 14-15. It also asserts that the Pennsylvania statute is “‘generally modeled’ after Title III” and follows its listening post requirement. Id. at 16 (quoting Commonwealth v. Spangler, 570 Pa. 226, 809 A.2d 234, 237 (2002)). It further argues that any error with respect to the state interception was harmless, or, if harmful, the “good faith” exception to the exclusionary rule should apply so evidence derived from the state interceptions was admissible. Id. at 18-20.

First, we address the government’s standing argument with respect to cellphone calls to which Jackson was not a party. “Standing” in the context in which the government uses the term on this appeal is shorthand for whether Jackson is an “aggrieved party” under Title III, not a jurisdictional requirement as it may be in other contexts. See 18 U.S.C. §§ 2518, 2510; United States v. Faulkner, 439 F.3d 1221, 1223 (10th Cir. 2006); United States v. Thompson, 944 F.2d 1331, 1339 (7th Cir. 1991). If standing is not a jurisdictional requirement the government cannot challenge a party’s standing on an appeal if it did not object to the party’s standing before the district court. Alderman v. United States, 394 U.S. 165, 175 n.9, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (“Congress has provided only that an.‘aggrieved person’ may move to suppress the contents of a wire or oral communication intercepted in violation of the Act. The Act’s legislative history indicates that ‘aggrieved person’ ... should be construed in accordance with existent standing rules.”) (citation omitted). In point of fact, the government did not claim in the District Court that Jackson lacked standing to be treated as an “aggrieved person” per the terms of Title III and thus was without authority to move to suppress the interceptions. Accordingly, it cannot raise that argument on appeal. See 18 U.S.C. § 2518.

Inasmuch as Jackson has standing to challenge use of all the interceptions, we consider the statutory requirements for suppression on the merits. Title III governs suppression of evidence of interceptions offered in a district court trial. See United States v. Williams, 124 F.3d 411, 426 (3d Cir. 1997). It reads in relevant part:

Any aggrieved person in any trial ... before any court ... of the United States ... may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that—
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.

18 U.S.C. § 2518(10)(a). The foregoing bases are the “exclusive grounds for suppression under Title III.” Williams, 124 F.3d at 427. The Supreme Court has held that subsection (i) includes constitutional violations, such as those that Jackson alleges took place in this case, and outlaws “official interceptions without probable cause.” Giordano, 416 U.S. at 526, 94 S.Ct. at 1832. The Court also has held that “communications intercepted pursuant to [an] extension order [based on an illegal initial wiretap] were evidence derived” from the invalidly intercepted communications and thus required suppression. Id. at 531-32, 94 S.Ct. at 1834.

We must determine whether the Title III wiretap orders were derived from unlawfully intercepted communications. Inasmuch as Jackson contends that Title III does not “authorize a state court to allow its law enforcement officials to eavesdrop on citizens of other states simply by locating the ‘listening post’ in the state where the state court is locatedf,]” we must consider whether Title III permits Pennsylvania courts to authorize within-jurisdiction interceptions of conversations that took place wholly outside of Pennsylvania. Appellant’s br. at 28. Title III in relevant part permits a “State court judge of competent jurisdiction,” 18 U.S.C. § 2516(2), to authorize “the interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting,” Id § 2518(3). “[I]nter-cept” is defined as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” Id. § 2510(4).

We join the other courts of appeals that have addressed this issue in adopting the “listening post” theory that under Title III either the interception of or the communications themselves must have been within the judge’s territorial jurisdiction. See United States v. Cano-Flores, 796 F.3d 83, 87 (D.C. Cir. 2015), cert, denied, — U.S. -, 136 S.Ct. 1688, 194 L.Ed.2d 790 (2016) (adopting the “listening post” theory and reasoning that requiring a new “wiretap order in every district where [the government] thought a target could make calls ... seems unworkable”); United States v. Henley, 766 F.3d 893, 911-12 (8th Cir. 2014), cert. denied, — U.S. -, 135 S.Ct. 2065, 191 L.Ed.2d 968 (2015); United States v. Luong, 471 F.3d 1107, 1109 (9th Cir. 2006) (“The most reasonable interpretation of the statutory definition of interception is that an interception occurs where the tapped phone is located and where law enforcement officers first overhear the call.”); United States v. Jackson, 207 F.3d 910, 914 (7th Cir. 2000), vacated on other grounds, 531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290 (2000); United States v. Denman, 100 F.3d 399, 403 (5th Cir. 1996); United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir. 1994) (holding that the Oklahoma wiretap statute, like the federal statute, authorizes wiretaps within the territorial jurisdiction where the contents were first heard); United States v. Rodriguez, 968 F.2d 130, 136 (2d Cir. 1992) (holding that “[i]t seems clear that when the contents of a ... communication are captured or redirected in any way, an interception occurs at that time” but also “since the definition of interception includes the ‘aural’ acquisition of the contents of the communication, the interception must also be considered to occur where the redirected contents are first heard”).

We need not determine whether a conversation recovered from a federally authorized wiretap has been “unlawfully intercepted” when the authority for the interception was based on information obtained from an unlawful state wiretap because the state wiretaps that were the sources of information in this case were lawful. The Pennsylvania statute is “generally modeled” after the federal statute. Spangler, 809 A.2d at 237. Pennsylvania’s wiretap statute, in a provision similar to a provision in Title III permits a state court to authorize the interception of calls outside of Pennsylvania if the “interception” is “anywhere within the Commonwealth.” 18 Pa. Cons. Stat. § 5710. Indeed, it was after cases like Rodriguez expressly interpreted Title III as defining the location of the intercept to include the listening post that Pennsylvania’s statute was amended specifically to clarify that the definition of “intercept” “include[s] the point at which the contents of the communication are monitored by investigative or law enforcement officers.” Id. § 5702. See H. 187-47, 1997 Sess., at 1567 (Pa. 1997). These provisions make clear that for the interception to be lawful only the interception had to have been in Pennsylvania. There is no dispute that the interceptions at issue in this case were made in Pennsylvania. Hence evidence from the state wiretaps upon which the federal orders were partially premised is lawful. Accordingly, we uphold the District Court’s denial of Jackson’s motions to suppress the evidence derived from the federal wiretaps that, in part, used state-wiretap-based affidavits to establish probable cause.

B. The Alleged Trial Errors

1. The Admission of the Case Agent’s Testimony

Jackson asserts that the District Court plainly erred in not sua sponte precluding the government’s case agent, Countryman, from interpreting the meaning of certain intercepted telephone calls. Appellant’s br. at 29. Though he does not dispute the propriety of Countryman’s testimony about “arguable code terms” like “one in and one out,” he claims that Countryman’s testimony exceeded the limited scope of proper use. Id at 82. He lists a number of questions that the prosecutor asked Countryman that he claims were impermissible. Id. at 32-38. Jackson also details a number of times when Countryman “interpret[ed]” a call to include situational and contextual information that is lacking in the call. Id. at 33-36. The government contends that the phone conversations were unclear and needed interpretation. Appellee’s br. at 23. It also maintains that Countryman’s testimony properly involved only his personal observations. Id. It further asserts that any error in the testimony regarding interpretations was not plain and that if there was such an error it did not prejudice Jackson. Id. at 25-30.

Inasmuch as Countryman’s testimony was not admitted as expert testimony, Federal Rule of Evidence 701 governed the admission of his interpretation testimony as it deals with lay witness opinion testimony. - Under Rule 701, lay witnesses may testify as to their opinions so long as the testimony is “rationally based on the witness’s perception,” is “helpful to clearly understanding the witness’s testimony or to determining a fact in issue,” and is “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” “In layman’s terms, Rule 701 means that a witness is • only permitted to give her opinion or interpretation of an event when she has some personal knowledge of that incident.” United States v. Fulton, 837 F.3d 281, 291 (3d Cir. 2016). The goal of Rule 701 is to give the trier of fact an “accurate reproduction of the event.” Id. (internal quotation marks omitted). The evidence is permitted because it “has the effect of describing something that the jurors could not otherwise experience for themselves by drawing upon the witness’s sensory and experiential observations that were made as a firsthand witness to a particular event.” Id. (internal quotation marks omitted).

Rule 701(b)’s helpfulness requirement with respect to Countryman’s testimony is at issue in this case. Under this requirement, lay witnesses may provide opinions about their understandings of recorded conversations when “[t]o the uninitiated listener, [the speaker] speaks as if he were using code” and the witness’s “opinions are based upon his direct perception of the event, are not speculative, and are helpful to the determination” of a fact in the case if the “trial court vigorously policefs] the government’s examination of [the witness] to ensure that he [is] not asked to interpret relatively clear statements.” United States v. De Peri, 778 F.2d 963, 977-78 (3d Cir. 1985). But “the interpretation of clear conversations is not helpful to the jury, and thus is not admissible” under Rule 701. United States v. Dicker, 853 F.2d 1103, 1108 (3d Cir. 1988).

Rule 701(b)’s helpfulness requirement mandates the exclusion of “testimony where the witness is no better suited than the jury to make the judgment at issue.” Fulton, 837 F.3d at 293 (quoting United States v. Meises, 645 F.3d 5, 16 (1st Cir. 2011) (internal quotation marks omitted)). A case agent’s testimony may not “simply dress[] up argument as evidence.” Id. (quoting Meises, 645 F.3d at 17). Testimony may be so characterized when a witness “infer[s] [the defendant’s] roles not from any direct knowledge, but from the same circumstantial evidence that was before the jury — effectively usurping the jury’s role as fact-finder.” Id (quoting Meises, 645 F.3d at 16). “[W]here a case agent’s testimony leaves the jury ‘to trust that [the case agent] had some information — information unknown to them — that made him better situated to interpret the words used in the calls than they were,’ when, in fact, he does not, such testimony is inadmissible under Rule 701(b).” Id. (quoting United States v. Freeman, 730 F.3d 590, 597 (6th Cir. 2013)) (citing United States v. Hampton, 718 F.3d 978, 982-83 (D.C. Cir. 2013); Meises, 645 F.3d at 16-17; United States v. Johnson, 617 F.3d 286, 292-93 (4th Cir. 2010); United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007); United States v. Garcia, 413 F.3d 201, 213-14 (2d Cir. 2005); United States v. Grinage, 390 F.3d 746, 750-51 (2d Cir. 2004)). After all, the role of the “prosecutor [is] to argue in summation” what inferences to draw from the evidence. Id (quoting Meises, 645 F.3d at 17).

We are satisfied that the District Court erroneously permitted Countryman on several occasions to express his understanding of the meaning of clear conversations. One of the most egregious examples is when Countryman interpreted Jackson’s statement “you can go ahead and send him” to mean “it is okay now to send [a co-conspirator] to purchase cocaine in Dallas.” Supp. App’x at 129, 605. Further, Countryman provided unhelpful argument in the guise of evidence. In interpreting one unclear call, he testified: “So, [Jackson] lays out the conspiracy for you in this telephone call that Gilbert is sending Brown with the money. Brown gives the money to either the defendant or Stanley at the direction of the defendant and the defendant takes the money and goes and purchases the cocaine, gives the money back to Brown, Brown takes the cocaine back to Monroeville where it is sold and distributed.” Id. at 144. While the call’s meaning is unclear, there is seemingly no mention of code words for cocaine, money, or Monroeville in the call that Countryman interpreted, and nothing seems to indicate that any part of that conversation can be interpreted as broadly as Countryman did. Id. at 628-31. Countryman seems to infer the knowledge for his testimony on other evidence, rather than on his direct knowledge of the events. In these circumstances his testimony was improper.

Although the' District Court erred in not sua sponte precluding the objectionable evidence that we have identified, we cannot conclude that the Court’s error can be characterized as plain. Inasmuch as we decided Fulton, a case that would have been useful to the Court, after the trial in this case had concluded, the Court did not have the benefit of that opinion at the trial. Thus, we decline to hold that the error in admitting evidence regarding the interpretation of the calls was plain or obvious. Furthermore, even if we held otherwise, Jackson would bear the burden of showing that the error was prejudicial by impacting on the outcome of the trial, thereby affecting his substantial rights. Piano, 507 U.S. at 734-35, 113 S.Ct. at 1777. The testimony of Jackson’s co-conspirators Dietrick Bostick and Christopher Stanley provided much of the same information as Countryman set forth in his interpretations of the phone calls, and the’ jury on its own could review the calls that Countryman wrongfully interpreted to reach its own conclusion as to their meaning in light of Bostick’s and Stanley’s testimony and the other evidence.

2. The Admission of the Co-Conspirators’ Testimony about their Convictions and Pleas of Guilty

Jackson contends that the government wrongfully attempted to use two of his co-conspirators’ guilty pleas as substantive evidence of his guilt, although he “recognizes that it is not always error to inform a jury as to a co-defendant’s guilty plea[,] especially when the jury is given a cautionary instruction” such as the District Court gave here. Appellant’s br. at 40. In arguing that the admission of evidence of the guilty pleas was a plain error, Jackson in his brief cites our statement in United States v. Gullo that

[t]he guilty plea to a conspiracy charge carries with it more potential harm to the defendant on trial because the crime by definition requires the participation of another. The jury could not fail to appreciate the significance of this and would realize ... that ‘it takes two to tango.’

Id. at 41 (quoting United States v. Gullo, 502 F.2d 759, 761 (3d Cir. 1974) (citation omitted)).

We have “repeatedly held that the government may introduce neither a witness’s guilty plea nor his or her concomitant plea agreement as substantive evidence of a defendant’s guilt.” United States v. Universal Rehabilitation Servs. (PA), Inc., 205 F.3d 657, 668 (3d Cir. 2000). Yet, a witness’s guilty plea is admissible under Federal Rule of Evidence 403 for at least three purposes: “(1) to allow the jury accurately to assess the credibility of the witness; (2) to eliminate any concern that the jury may harbor concerning whether the government has selectively prosecuted the defendant; and (3) to explain how the witness has first-hand knowledge concerning the events about which he/she is testifying.” Id. at 665. We have noted that

[w]hen a co-conspirator testifies he took part in the crime with which the defendant is charged, his credibility will auto-maticálly be implicated. Questions will arise in the minds of the jurors whether the co-conspirator is being prosecuted, why he is testifying, and what he may be getting in return. If jurors know the terms of the plea agreement, these questions will be set to rest and they will be able to evaluate the declarant’s motives and credibility.

United States v. Gaev, 24 F.3d 473, 477 (3d Cir. 1994). We held that “[a]s such, we are satisfied that the government may seek to introduce a witness’s guilty plea and/or plea agreement even in the absence of a challenge to the witness’s credibility.” Universal Rehabilitation Servs. (PA), 205 F.3d at 666.

Here, the government’s use of the co-conspirators’ guilty pleas was permissible. Co-conspirator Bostick testified while wearing prison attire. Supp. App’x at 240. The prosecutor asked him why he was wearing that clothing and questioned him about the charges against him. Id. at 240-41. The prosecutor then discussed the terms of his guilty plea with him, making the jury aware that Bostick was testifying because of his plea agreement with the hope that he might receive a reduced sentence in return for his testimony. Id. at 241-45. The prosecutor also elicited testimony from Bostick that he had not been guaranteed that he would be given a reduction in sentence for testifying and that he would not perjure himself at the trial. Id. Then, the prosecutor asked Bostick about his prior felonies and drug use. Id. at 246-51. After completing that line of questioning, the prosecutor addressed the current case, asking, “Now, you already indicated you pled guilty for your role in a drug trafficking conspiracy, correct?” Id. at 251. She then asked a number of questions about the conspiracy before she finally asked about Jackson. Id. at 251-54.

The prosecutor engaged in the same type of examination of co-conspirator Christopher Stanley. The prosecutor started her examination of Stanley by asking him about his current incarceration and the charges to which he pleaded guilty. Id at 310-11. She then elicited that he was testifying in the hope that, per his plea agreement, his sentence would be reduced. Id. at 312-13. As was the case with Bos-tick, the prosecutor drew testimony from Stanley recognizing his understanding that the judge, not the prosecution, would determine his sentence, and he could be prosecuted if he lied in giving his testimony. Id. After that testimony, he testified about his prior crimes and whether he was in the same jail as other co-conspirators. Id. at 313-16. Only then did the prosecutor ask him about his drug trafficking history, at which time he mentioned Jackson. Id. at 316.

Neither of these uses of the co-conspirators’ guilty pleas was impermissible. The evidence regarding the guilty pleas all went to the heart of whether the co-conspirator witnesses were credible, whether the government selectively was prosecuting Jackson, and whether the co-conspirators had firsthand knowledge of the crime for which Jackson was being tried. The evidence clearly was not offered as substantive evidence of Jackson’s guilt. Furthermore, the District Court provided an appropriate limiting instruction with respect to the guilty plea evidence at the end of the case. Id. at 495-96. Therefore, the Court did not err at all, let alone commit plain error, in allowing the guilty plea testimony.

3. The Government’s Mention of a Co-Conspirator’s Fifth Amendment Right Not to Testify

Jackson argues that the District Court made a plain error when, in response to its question about which exception to the hearsay rule applied to the admission of Gilbert’s otherwise-hearsay testimony, the prosecutor stated that “[t]he exception is Arthur Gilbert cannot take the stand. He has a Fifth Amendment privilege where the government cannot force him to come in to testify. He is unavailable to this Court and thereby it would be an exception to hearsay.” Id. at 253.

We have recognized that it may be improper for a prosecutor to refer to the invocation of a Fifth Amendment privilege to encourage a jury to infer a witness’s guilt. See, e.g., Nezowy v. United States, 723 F.2d 1120, 1124 (3d Cir. 1983); United States ex rel. Fournier v. Pinto, 408 F.2d 539, 541 (3d Cir. 1969). “[W]e may reverse” on plain error review, however, “only if we find an error in the prosecutor’s comments so serious as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” United States v. Pungitore, 910 F.2d 1084, 1126 (3d Cir. 1990) (internal quotation marks and citation omitted). “[0]ur objective is not to penalize the prosecutor for an inopportune remark, but to ensure that the appellant[ ] received a fair trial.” Id.

Here, the prosecutor’s response to the District Court’s question about the applicable hearsay exceptions was a failed and incomplete attempt to claim a Federal Rule of Evidence 804 exception which applies when a witness is unavailable based on his invocation of privilege pursuant to Rule 804(a)(1). The Court instead ruled that it was admissible as a statement of a co-conspirator under Evidence Rule 801(d)(2)(E). While the prosecutor’s mention of a witness’s invocation' of the Fifth Amendment in front of the jury was inopportune, the error in the admission of the evidence was not so serious that it was a plain error.

4. The Cumulative Effect of the Aforementioned Actions

Inasmuch as we hold that none of the issues that Jackson raises demonstrates that there was a plain error at his trial, we need not analyze whether the cumulative effect of plain error on the trial requires that we reverse Jackson’s conviction.

Y. CONCLUSION

For the foregoing reasons, we will affirm Jackson’s judgment of conviction and sentence entered on July 24, 2014.

      . There were transcripts of the phone calls supplied to the jury but the District Court told the jury that "[t]he recordings themselves are the evidence. If you notice any differences between what you hear in the recordings and what you read in the transcripts, you must rely on what you hear, not on what you read.” Supp. App’x at 100.

      . The custodial sentence later was reduced to 120 months, a sentence that Jackson does not challenge on this appeal.

      . Our summary of the evidence focuses on Jackson and the relevant co-conspirators, and does not address evidence concerning other co-conspirators.

      .The spelling of the name Darnell Gaines is inconsistent throughout the record.

      . The date on the exhibit is October 4, 2010, but Countryman read it as October 1, 2010, at trial and was not corrected. Supp. App'x at 104, 603.

      . Jackson's change of emphasis modified his position in his brief.

      . To the extent that Jackson makes a Fourth Amendment argument, see Oral Arg. at 4:08-10, we note that “standing” in the Fourth Amendment context is "shorthand” for a "legitimate expectation of privacy” and is not a jurisdictional requirement to pursue an argument. United States v. Stearn, 597 F.3d 540, 551, 551 n.11 (3d Cir. 2010) (internal quotation marks and citations omitted). Thus, arguments based on a lack of Fourth Amendment "standing” are also waivable. Id.

      . Jackson claims that in situations in which state laws authorizing wiretaps are more restrictive than those in Title III, if a state court has authorized a wiretap, a federal court must determine whether the wiretap violated state as well as federal law. Appellant’s ’br. at 24 n.10. The government disagrees. Appellee’s br. at 15. Here, because we hold that federal and Pennsylvania law both utilize the "listening post” theory of determining territorial jurisdiction, we have no need to address this issue.

      . Jackson also argues that the listening post theory violates the Fourth Amendment by permitting the interception of calls occurring in other states or even other countries, untethered from any Pennsylvania connection. In support of his argument, Jackson offers only United States v. Cosme, No. 10-3044, 2011 WL 3740337 (S.D. Cal. Aug. 24, 2011), aff'd sub nom. United States v. Luis, 537 Fed.Appx. 752 (9th Cir. 2013), and Cano-Flores, 796 F.3d 83. In each of those cases, however, the court recognized that Title III permits the wiretap of phones located in Mexico so long as the calls are intercepted within the United States. See Cosme, 2011 WL 3740337, at *10; Cano-Flores, 796 F.3d at 86. Pennsylvania’s authorization of interceptions of calls placed in Texas is at least as jurisdictionally proper as the United States’ interception of calls made in Mexico, a foreign sovereign.
      While Jackson conceded in oral argument that the Pennsylvania statute codifies a "listening post” theory, he maintained that it went beyond the permissible scope of a state’s jurisdiction. Oral Arg. at 3:21-53. Jackson claims that "it is a long standing principle, dating back to the common law, that a state's jurisdiction is limited to the confines of its own borders.” Appellant’s br. at 27. But that claim overstates the limitations on state courts’ jurisdiction. After all, the Supreme Court long has held that "[ajcts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if [the defendant] had been present [in the state] at the effect.” United States v. Lee, 359 F.3d 194, 206 (3d Cir. 2004) (quoting Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735 (1911)). Moreover, Pennsylvania law permits a person to be convicted only for "an offense committed by his own conduct or the conduct of another for which he is legally accountable” that has a conduct or result element that has a nexus in Pennsylvania. 18 Pa. Cons. Stat. § 102. Therefore, while there may not be per se territorial restrictions in Pennsylvania regarding intercepting out-of-state calls, there are, in effect, territorial limitations on the state’s use of such calls.

      . We decided United States v. Fulton on September 19, 2016, three months after Jackson filed his brief in this Court.

      . Jackson does not make this argument directly, but relies heavily on similar propositions from a court of appeals in United States v. Hampton, 718 F.3d 978 (D.C. Cir. 2013). See Appellant’s br. at 30.

      . Countryman improperly testified with respect to the interpretation of phone calls at other times. For example, he testified in detail about Gilbert’s state of mind. He interpreted a call to mean that Gilbert “is not aware of Christopher Stanley’s involvement in this setup.... He is uncomfortable with Christopher Stanley being involved in these transactions because he doesn't know him.” Supp. App'x at 140, 620. But the content of that call does not support that interpretation, and the parties to the call apparently did not use coded language. Id. at 620-21. The prosecutor asked Countryman, "Well learn that in a subsequent call, well learn more detail about that?,” to which he responded, “Correct.” Id. at 140. Overall it is evident that Countryman was in no better position than the jury to interpret these calls.

      . In his brief Jackson contends that the testifying co-conspirators though "to a lesser extent” than Countryman, Appellant’s br. at 36, gave improper evidence interpreting telephone calls. He does not, however, make reference to this testimony in his statement of issues in his brief, see id. at 9-10, and therefore he has waived the argument. See Laborers' Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398 (3d Cir. 1994) ("An issue is waived unless a party raises it in its opening brief, and for those purposes 'a passing reference to an issue ... will not suffice to bring that issue before this court.’ ”) (citation omitted).


source: Caselaw Access Project

author: ROTH, Circuit Judge:

license: Public Domain

text:
    Paul MCKERNAN, Appellant v. SUPERINTENDENT SMITHFIELD SCI; the District Attorney of the County of Philadelphia; the Attorney General of the State of Pennsylvania
    No. 14-4506
    United States Court of Appeals, Third Circuit.
    Argued on June 21, 2016
    Opinion filed: February 28, 2017

      Maria K. Pulzetti, Esquire (Argued), Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Appellant.
    Joshua S. Goldwert, Esquire (Argued), Philadelphia County -Office of District Attorney, 3 South Penn Square, Philadelphia, PA 19107, Counsel for Appellees.
    Before:  FISHER, GREENAWAY, JR. and ROTH, Circuit Judges

       The Honorable D. Michael Fisher assumed senior status on February 1, 2017.

   OPINION OF THE COURT

ROTH, Circuit Judge:

In this appeal, Paul McKernan contends that, because of the egregious advice given him by his counsel, he was deprived of the right to a fair trial before an impartial tribunal. He asserts that the judge in his murder trial was so concerned over what she considered to be “slanderous,” “hurtful,” and “terrible things” written about her on a website that she lost her ability to be impartial. He farther asserts that his counsel, unlike any competent counsel, failed to recognize this loss of impartiality and, in doing so, deprived him of the effective assistance of counsel that the Constitution guarantees. We agree with the latter argument and, for this reason, we will remand this case to the District Court with instructions to grant McKernan’s petition for a writ of habeas corpus unless within 60 days of the date of remand, the Commonwealth of Pennsylvania shall decide to retry Paul McKernan.

I.

In July 1998, after a bench trial in the Philadelphia County Court of Common Pleas, McKernan was convicted of first degree murder in the death of Mark Gibson. McKernan and Gibson were former roommates. McKernan was found to have killed Gibson with a baseball bat during an argument outside McKernan’s home. A witness to the events, Joseph Rodgers, did not see McKernan strike Gibson but did hear “a loud thump,” after which he saw Gibson lying on the ground, bleeding profusely. McKernan told Rodgers that he hit Gibson in the chest, a statement contradicted by a defense witness who testified that he saw McKernan hit Gibson in the head.

A medical examiner testified that Gibson died after being hit behind the ear with a blunt instrument, such as an aluminum baseball bat. McKernan admitted to hitting Gibson with the bat but claimed that it was in self-defense and that Gibson’s head injuries arose from the impact of Gibson hitting his head on the curb. The trial judge, Judge Lisa Richette, found McKernan guilty of first degree murder and sentenced him to a mandatory sentence of life in prison without the possibility of parole.

On the second day of the' bench trial, after the Commonwealth had rested but before the defense had started its case-in-chief, Judge Richette called the victim’s mother, Beatrice Gibson, and his brother, David Gibson, into her robing room, along with the assistant district attorney, Mark Gilson, and defense counsel, Fred Harrison. McKernan was not present for the ensuing meeting, but the meeting was transcribed by the court reporter.

It is difficult to convey in excerpts the inappropriate nature of this lengthy conference. It is even more difficult to understand why defense counsel Harrison failed to object to the proceedings or to move for the judge’s recusal at any point during the conference. Harrison himself noted in later testimony that he had never before or since been part of a similar conference.

The judge began the conversation by saying that she was “very disturbed” after finding a website that the Gibsons had created, containing criticism of the judge. The judge said to Mrs. Gibson that the site was “vicious and unfair” and that the judge did not “want to hear this case if’ Mrs. Gibson was “unhappy with” her. The judge had a printed copy of the website and read from portions of it. The website described an ongoing controversy between the judge and the actor Charlton Heston, who had criticized the judge as being soft on crime and referred to her as “Let ‘em Loose Lisa.” The judge read a passage from the website stating “Lisa Richette is a bleeding heart judge that often sympathizes with murderers and other violent criminals and gives them light sentences,” which the judge characterized as “a total lie.” The judge then accused the Gibsons of -writing “dreadful, slanderous things about [her]” throughout the website.

Despite the judge’s anger caused by the website, she sought the Gibsons’s approval of her actions in the trial. She characterized the case as “a horrible, horrible murder,” told the Gibsons that she “just wantfed] to make sure that you folks are happy with me,” and told the assistant district attorney she didn’t “want these people — they have already been hurt enough, and I don’t want them to have this case heard by a Judge in whom they have no faith.” She told the Gibsons, “You’re very fortunate, I’ll tell you what, you have a witness, you have Mr. Rodgers” because, “[m]any of these murders occur with nobody willing to come forward and say I saw it.” After being assured by the Gibsons that they were “satisfied” with Judge Richette presiding over McKernan’s trial, she concluded, “I don’t want to open the Daily News tomorrow and read the usual B.S.”

Throughout this conversation, McKer-nan’s defense counsel stood mute. Indeed, it was Assistant District Attorney Gilson who eventually asked McKernan’s counsel if he was concerned about the conference, to which Harrison replied, “The only input I have is I guess I need to apprise [McKernan] of what is going on.” After making this statement, Harrison did not request that the meeting be recessed, but rather left Gilson, the judge, and the Gib-sons alone together in the robing room while Harrison conferred with his client. As Harrison left, the judge said, “Go ahead, I’ll just talk to [the family] generally.”

In Harrison’s absence, David Gibson, the victim’s brother, who was primarily responsible for creating the offending website, offered to allow the judge to “red line” anything she did not approve of from the site and write her own thoughts about victimology, which David Gibson would post in the judge’s “defense.” The judge agreed to do so. The judge told Mrs. Gibson that she (the judge) would have acted similarly if the same events had happened to her son, noting that “we’re all mothers here.” She also told Mrs. Gibson that they were “very lucky” that they were assigned Mr. Gilson, the assistant district attorney, and that “Gilson is one of the best D.A.s in the world.” The Gibsons then left the judge’s chambers.

After conferring with McKernan, Harrison returned to the robing room and told the judge and Gilson that his client had “concerns” because the website said the judge was “a lenient judge” and “the fact that you mentioned Mr. Rogers and his testimony, he thinks that you may be constrained to lean over backwards,” to prove Mrs. Gibson wrong and the judge would not give McKernan a fair trial. Gilson had the same concerns. Harrison said that McKernan was unsure what to do. Harrison indicated that he had advised McKer-nan to continue before Judge Richette. He further noted that he and Gilson believed what “might solve the problem would be if we brought Mr. McKernan back and let him talk to you just like you talked to” the victim’s family.

McKernan was brought to the robing room where the judge told him that she had discussed the website with the victim’s family, that the family was now satisfied with her because they had been assigned Mr. Gilson, and that the victim’s family wanted the judge to continue to hear the case. She told McKernan that the conversation was “not going to influence [her] thinking at all about this” and that she would “listen to your side of the case very carefully and ... reach a verdict.” She also stated she would “try and pray to God that I be fair to you.” Although McKer-nan stated that he believed that the judge could be fair, Gilson seemed to sense some doubts in McKernan’s demeanor, causing him to ask the judge to allow McKernan more time to speak with Harrison before continuing the colloquy.

After this second private conversation, Harrison stated that he “had an opportunity ... to speak with [his] client by himself, and .. ’ indicated • to him — reiterated to him what Your Honor has said to him previously. Mr. McKernan has indicated to me that he thinks that you can be fair.” Gilson asked whether anyone had forced McKernan to accept Judge Richette and if anyone had threatened or promised him anything, to which McKernan replied no. The bench trial then .resumed, with McKernan putting on his defense, after which the judge found McKernan guilty of First Degree Murder.

McKernan appealed his conviction to the Pennsylvania Superior Court, which affirmed in an unpublished opinion. Among the grounds of the appeal were the claims that “the trial judge erred in failing to recuse herself’ based on the robing room conference and that Harrison was ineffective for failing to move for recusal. The Superior Court rejected both arguments, finding “neither trial court error nor ineffective assistance of counsel on this record.”

McKernan petitioned for post-conviction relief, which the trial court denied. On appeal, McKernan raised a single issue: whether McKernan’s “decision, mid-trial, to refuse the Trial Court’s offer to recuse itself’ was a “knowing, intelligent and voluntary decision and under all the circumstances was a knowing waiver of a constitutional right at the time that it was made and were trial counsel, appellate counsel and post conviction counsel all ineffective for failing to raise and brief this very precise issue.” The Superior Court found that the issue had been previously litigated. In the alternative, the Superior Court analyzed the merits of McKernan’s motion for post-conviction relief, finding that ha-beas relief was not warranted. For both reasons, the Superior Court dismissed the petition. The Pennsylvania Supreme Court declined review.

McKernan then filed a pro se federal habeas petition raising, among other grounds, the question of whether “[t]rial counsel rendered IAC [ineffective assistance of counsel] by failing to challenge whether the petitioner entered a voluntary, intelligent and knowing waiver regarding the recusal of the trial judge.” A Magistrate Judge recommended denial of the habeas petition, to which McKernan, now represented by counsel, objected.

The District Court held an evidentiary hearing on November 24, 2008. After the hearing, the District Court denied the petition but granted a Certificate of Appeala-bility on the issue of whether McKernan had made a substantial showing that the trial judge’s failure to recuse violated the due process requirement of a fair trial by a fair tribunal and whether he might be actually innocent of first degree murder, if not some degree of homicide. A panel of this Court expanded the Certificate of Ap-pealability to include the issue of “whether the district court erred in denying [the] claim that trial counsel performed ineffectively by failing to seek and secure relief for the trial court’s (alleged) bias.” We will consider only this second issue in our consideration of this appeal.

II.

The District Court had jurisdiction over this matter pursuant to 28 U.S.C. § 2254; we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2258. Our review of the District Court’s opinion is plenary. In reviewing a habeas petition under § 2254, we must first be satisfied that the claims have been exhausted, and have not been procedurally defaulted. If these procedural requirements are satisfied, a habeas petition may be granted with respect to a claim that was adjudicated on the merits by a state court only .if the state court proceeding “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Under § 2254(d)(1), “[a] state court decision is an unreasonable application ... if the court identifies the correct governing legal rule from the Supreme Court’s cases but unreasonably applies it to the facts of the particular case.” This is a high standard, since “[i]t is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous.” Instead, “[t]he state court’s application of clearly established law must be objectively unreasonable before a federal court may grant the writ.”

Here, McKernan has not procedurally defaulted his ineffective assistance of counsel claim, and has properly exhausted it in state court. Although the Superior Court dismissed McKernan’s Strickland claim under Pennsylvania’s “previous litigation rule,” we have held that claims resolved under this rule are not procedurally defaulted for purposes of federal habeas corpus. Similarly, we have held that claims dismissed under the previous litigation rule are properly exhausted. Accordingly, McKernan has satisfied the procedural requirements of a federal habeas petition, and we may consider the merits of his argument.

McKernan argues that the state courts unreasonably applied Supreme Court precedent as to whether McKer-nan’s trial counsel was ineffective for failing to seek Judge Richette’s recusal and for advising McKernan not to seek recusal. Because the Superior Court considered the merits of McKernan’s claims, and did not rest solely on the previous litigation rule, we treat its findings with the deference required by § 2254(d). The state court and the District Court correctly identified the appropriate Supreme Court precedent to apply as Strickland v. Washington. Strickland established the familiar two prong test for evaluating ineffective assistance of counsel claims, under which the petitioner must first show that the counsel’s performance was deficient and, second, that the deficient performance was prejudicial to the defendant. To meet the first prong, counsel’s performance must fall “below an objective standard of reasonableness considering all the circumstances.” Counsel’s performance is deficient only “when counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.”

III.

The deference due state court merits judgments under § 2254(d) and Strickland is significant, but it “does not imply abandonment or abdication of judicial review.” We have no trouble holding that, in the unique circumstances of this case, counsel’s performance in failing to move for recusal of Judge Richette fell far below the minimal standards of competence in the profession and the state court’s failure to recognize this incompetence was an unreasonable application of the Strickland factors.

Counsel in this matter had tried many cases before Judge Richette and described her as a “colorful jurist.” He testified at the hearing before the District Court that, although he had never experienced a situation similar to the robing room conference, he believed that a bench trial before Judge Richette offered the best option for his client. The District Court found that Harrison’s decision was strategic in nature and was at least arguably rational. We disagree.

The right to a “fair trial in a fair tribunal is a basic requirement of due process” and derives directly from the Constitution. While a defendant is capable of waiving many rights, including the right to a jury, the absolute minimum standard for a constitutional trial is “an impartial trial by jury.” The importance of a fair tribunal is so etched into the bedrock of the American judicial system that few courts have even found a need to address it. The Seventh Circuit Court of Appeals, for instance, simply observed that certain procedural requirements must be' followed, noting that “if the parties stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept.” Similarly, the Second Circuit Court of Appeals reversed a district court’s holding that a defendant waived his right to an impartial jury by failing to object to a juror who lied during voir dire, especially in light of subsequent events that revealed the juror “was actually biased against Defendants.”

Considering the myriad procedural safeguards in place to avoid the seating of even one biased juror, out of twelve, it is inconceivable that, during a bench trial when the judge is the sole factfinder, a trial may proceed when that judge is biased. To do so is to conduct a trial before an unfair tribunal, violating the fundamental requirement for an acceptable trial. We therefore hold today that the right to an impartial trial extends to a bench trial, and that such right cannot be waived by a defendant.

The Commonwealth asserts, and the state courts found, that Judge Richette did not show herself to be “actually biased” against McKernan and, consequently, counsel was not ineffective for failing to move for recusal. The state- courts applied the wrong constitutional test and compounded the error by finding that counsel was not ineffective. The Supreme Court has held that allegations of bias rise to the level of a constitutional deprivation when there is the “probability of unfairness” and there exists “a possible temptation to the average man as a judge not to hold the balance nice, clear and true between the State and the accused.” As an example, in Mayberry v. Pennsylvania, two pro se defendants directed near constant abuse at a state trial judge until the trial judge held them in contempt. The Supreme Court held that the judge, as the victim of the contemnor’s outbursts, was too close to the proceedings to be impartial enough to make the relevant contempt findings.

The Supreme Court held that the judge in Mayberry was subjected to “highly personal aspersions” and “[ijnsults of that kind [that] are apt to strike at the most vulnerable and human qualities of a judge’s temperament.” Here, we know that the Gibsons’ websites struck “at the most vulnerable and human qualities of’ Judge Richette’s temperament through the robing room conference transcript. In Mayberry, the Supreme Court noted that “a judge, vilified as was this Pennsylvania judge, necessarily becomes embroiled in a running, bitter controversy” and that “[n]o one so cruelly slandered is likely to maintain that calm detachment necessary for fair adjudication.” In the instant matter, Judge Richette admitted to her belief that she had been slandered by the victim’s family and indicated that she was determined to prove them wrong.

In a case such as McKernan’s, where the defense theory of the case was at least partially based on arguing a lesser degree of culpability, Judge Richette’s actions would have caused any competent attorney to seek recusal immediately. Judge Ri-chette offered the victim’s family in a case in progress before her an opportunity to seek her recusal. She repeatedly implied that the assistant district attorney was the Gibsons’ attorney, when he in fact had no responsibility to the family of the victim, but rather to all of the people of the Commonwealth of Pennsylvania. Most strikingly, Judge Richette sought repeatedly to assure the Gibson family that she was not “Let 'em Loose Lisa,” a judge who was incapable of issuing harsh decisions.

As McKernan recognized, but McKer-nan’s counsel did not, a. finding that McKernan was guilty of some offense involving a lower standard of culpability would play directly into the narrative the Gibsons had published on their website: the caricature of “Let ‘em Loose Lisa Strikes Again!” While McKernan’s counsel’s belief that Judge Richette was the best option for his client at the beginning of trial may have been a reasonable strategic decision, by the time Judge Richette held the robing room conference and revealed herself to be actively concerned with the her image on the internet and the victim’s family’s perception of her, any competent attorney would have realized that the strategy had to be revised.

Indeed, it appears that if McKernan had had no counsel at all, he would have made the decision to seek recusal. He expressed his concerns to his attorney, only to have his attorney inexplicably talk him out of those concerns; even going so far as to refer to his client’s very valid issues as a “problem” to be solved. If counsel is ineffective only where his conduct was so deficient as to render his client de facto without counsel, McKernan’s counsel may have been worse: he convinced his client to proceed before a tribunal that objectively had the appearance of bias against him. He advised his client to proceed before a court that was structurally deficient, something no competent attorney would ever do. Under § 2254, where “[t]he question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard,” the answer here is “No.” Consequently, McKernan’s claim fulfills the first prong of Strickland.

Strickland’s second prong is easier to fulfill. To show prejudice, a petitioner need only “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been . different.” This standard “is less demanding than the preponderance standard.” Here, the standard is easily met.

As noted above, McKeman’s defense centered on the degree of his culpability. McKernan’s argument was that he had struck Gibson in self-defense and Gibson died when his head hit the curb. In view of Judge Richette’s sensitivity to criticism for being lenient, it would not appear likely that she would now accept McKernan’s defense of a lesser degree of homicide. There is evidence in the record from which an impartial judge could have found a lesser degree of homicide. McKernan’s counsel himself admittéd to the District Court that he was quite surprised by the verdict, thinking that there was virtually no chance under the facts of the case that McKernan would be found guilty of first degree murder. Thus, there is a reasonable probability that if McKernan’s counsel had been effective and moved for recusal, the outcome of the trial would have been different. The second Strickland prong'is met here.

Given this holding that petitioner met both prongs of the Strickland inquiry, it is unnecessary for us to reach the parties’ other arguments, and we express no opinion as to their validity.

IV

For the foregoing reasons, we will reverse the decision of the District Court and remand with instructions to grant the petition for habeas corpus unless, within 60 days of the remand, the Commonwealth of Pennsylvania decides to retry the charges against McKernan.

      . J.A. at 249.

      . Id.

      . Id. at 253.

      . Id. at 259.

      . Id.

      . Id. at 275.

      . Id. at 260.

      . Id. at 279.

      . Id. at 280.

      . Id.

      . Id. at 283.

      . Id.

      . Id. at 284.

      . Id. at 286.

      . Id.

      . Id. at 287.

      . Id. at 288.

      . Id. at 287.

      . Id. at 290.

      . Id. at 291.

      . Id.

      . Id. at 293-294.

      . Id. at 294.

      . Id. at 295.

      . Commonwealth v. McKernan, 776 A.2d 1007 (Pa. Super. Ct. 2001) (Table).

      . Showers v. Beard, 635 F.3d 625, 628 (3d Cir. 2011).

      . 28 U.S.C. § 2254(b)(1)(A).

      . 28 U.S.C. § 2254(d).

      . Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005) (internal quotation marks omitted).

      . Rountree v. Balicki, 640 F.3d 530, 537 (3d Cir. 2011) (internal quotation marks omitted) (alteration in original).

      . Id. (internal quotation marks omitted) (alteration in original).

      . Boyd v. Waymart, 579 F.3d 330, 369-70 (3d Cir. 2009) (en banc) (opinion of Hardiman, J.) (collecting cases). The per curiam opinion in Boyd expressly rested on Judge Hardiman’s analysis of procedural default and exhaustion. Id. at 332 ("For the reasons given in Part III of [Judge Hardiman's] opinion, we conclude Boyd's claim was properly exhausted and has not been procedurally defaulted.”).

      . Staruh v. Superintendent Cambridge Springs SCI, et al., 827 F.3d 251, 256 n.4 (3d Cir. 2016).

      . See Rolan v. Coleman, 680 F.3d 311, 319-21 (3d Cir. 2012).

      . 466 U.S. 668, 104 S.Ct 2052, 80 L.Ed.2d 674 (1984).

      . Id. at 687, 104 S.Ct. 2052.

      . Jacobs, 395 F.3d at 102.

      . McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 (3d Cir. 2012) (alteration in original).

      . Brumfield v. Cain, - U.S. -, 135 S.Ct. 2269, 2277, 192 L.Ed.2d 356 (2015) (internal quotation marks omitted).

      . In re: Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

      . Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965).

      . United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985).

      . United States v. Parse, 789 F.3d 83, 120 (2d Cir. 2015) (internal quotation marks omitted).

      . Because McKernan’s claim of ineffective assistance is premised on the alleged bias of Judge Richette, we must make a threshold inquiry as to whether there were grounds to believe that Judge Richette was biased; counsel would not be ineffective for failing to move for recusal absent some perceived partiality. However, this threshold inquiry does not necessarily support the existence of an independent due process claim. A due process claim lies where a judge would have been required to recuse herself. An ineffective assistance of counsel claim, on the other hand, may lie where counsel fails to file a motion for discretionary recusal for which there are good grounds.

        . In re: Murchison, 349 U.S. at 136, 75 S.Ct. 623 (internal quotation marks omitted).

      . 400 U.S. 455, 460-62, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971).

      . Id. at 466, 91 S.Ct. 499 (internal quotation marks omitted).

      . Id. (internal quotation marks omitted).

      . Id. (internal quotation marks omitted).

      . Id. at 465, 91 S.Ct. 499.

      . Cf. Breakiron v. Horn, 642 F.3d 126, 142 (3d Cir. 2011).(holding that counsel was ineffective for failing to strike an obviously biased venire panel).

        . McBride, 687 F.3d at 103 (quoting Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)).

      . Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001) (internal quotation marks omitted).

      . Id.