United States v. Francis Brooks

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

Nos. 12-2301, 12-2354, 12-2675, 12-2875

_______________

UNITED STATES OF AMERICA,

Appellee/Cross-Appellant

v.

BILL JOHN-BAPTISTE, FRANCIS BROOKS, & ENID

EDWARDS

Appellants/Cross-Appellees

________________

Appeal from the District Court

for the District of the Virgin Islands (D.V.I.)

(D.V.I. Criminal Action Nos. 3-10-cr-00036-001,

3-10-cr-00036-002 & 3-10-cr-00036-004)

District Judge: Honorable Curtis V. Gomez

________________

Argued: April 24, 2013

Before: MCKEE, Chief Judge

and SCIRICA, VANASKIE, Circuit Judges

(Opinion filed: February 19, 2014)

Sonja Ralston (argued)

United States Department of Justice

Appellate Section, Criminal Division

Room 1264

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

Counsel for Appellee/Cross-Appellant

Donnie M. King (argued)

1212 Bjerge Gade

Charlotte Amalie

St. Thomas, USVI 00802-000

George H. Hodge, Jr. (argued)

P.O. Box 803

Charlotte Amalie

St. Thomas, USVI 00804-000

Allison B. Duffie (argued)

Entin & Della Fera

110 Southeast Sixth Street

Suite 1970

Fort Lauderdale, FL 33301

Counsel for Appellants/Cross-Appellees

________________

OPINION OF THE COURT

________________

McKEE, Chief Judge

In this consolidated appeal, Francis Brooks, Enid

Edwards, and Bill John-Baptiste challenge their convictions

following trial before the District Court. All convictions

stemmed from the defendants’ alleged extortion, kidnapping,

bribes, and drug trafficking while each served as law

enforcement officers. Brooks and Edwards were employed

with the Virgin Islands Police Department (“VIPD”), and

John-Baptiste was employed by the Virgin Islands Port

Authority (“VIPA”). Defendants challenge their convictions

on various constitutional and evidentiary grounds. In

2

addition, the government cross-appeals the District Court’s

judgment of acquittal on certain counts. For the reasons that

follow, we will reverse the District Court’s judgment of

acquittal as to counts 5, 6, 10, 11, 12, and 46, and affirm the

judgment of the District Court with respect to all other counts.

I. Background

This case presents a sordid picture of “law

enforcement officers” who sought to enrich themselves rather

than protect the public by engaging in a protracted pattern of

criminality that included extortion, drug dealing and

kidnapping, all at the expense of the residents of the United

States Virgin Islands.

In September 2010, a federal grand jury issued a 53-

count superseding indictment against the defendants, and the

case proceeded to trial. At trial, the prosecution introduced

the following evidence as to particular charges in the

superseding indictment.

A. Evidence of Specific Crimes

1. Brooks and Edwards Distribute Six

Pounds of Marijuana for Resale. (Counts 2 to 4)

Kelvin Moses testified that in 2005, Brooks and

Edwards approached him in their police cruiser and sold him

six pounds of marijuana for him to resell. Joint App. 643-46.

Moses also testified that prior to this exchange, from 2000 to

2003 and from 2005 to 2007, he routinely paid money to

Brooks and Edwards for information regarding other people

who were cooperating with them.

2. Brooks and Edwards Impound a

Truck and Extort Payment From The Owner.

(Counts 5 to 12)

Kenneth Love testified that in 2007, Brooks and

Edwards illegally impounded his truck. Edwards told Love

that he would have to pay $1,200 to get his truck back, and

further informed him that she had been “taking money . . .

from people” for 19 years. Joint App. 572-73. Love also

testified that Brooks and Edwards eventually arranged for

3

him to pay approximately $825 in cash to release the truck.

Joint App. 603-04.

3. Brooks, Edwards and John-Baptiste Arrest a

Taxi Driver and Hold Her in Custody Until her Boyfriend

Pays for her Release. (Counts 24 to 33)

In April 2008, John-Baptiste arrested taxi driver,

Yvese Calixte, for a parking violation. John-Baptiste

proceeded to forcibly detain Calixte until VIPD officers

arrived, handcuffed her, and placed her in a police car. John-

Baptiste followed behind as the officers drove Calixte to a

VIPD facility, and placed her in a holding cell where she

remained for four to five hours. Joint App. 737-39. Calixte

was eventually transferred to a downtown jail, where she was

processed for booking. Id. at 743. Thereafter, John-Baptiste

handcuffed Calixte and drove her to a shipping station, where

they were met by Brooks, Edwards, and Calixte’s boyfriend,

Jossenel Morino. Calixte was finally released, but only after

Morino paid $1,000 to Brooks and Edwards in exchange for

her freedom.

4. Brooks Extorts Payment from Felon in Possession

of a Firearm in Exchange for Not Arresting Him;

Edwards and Brooks then Coerce Him into Selling

Cocaine for Them (Counts 34 to 38 &

39 to 46)

John Lindquist, a convicted felon, testified that in

2009, Brooks approached him while Lindquist had a gun in

his possession. In exchange for not arresting him, Brooks

asked Lindquist for $2,000, which Lindquist paid over the

course of the next month. Months later, Lindquist

encountered Brooks again while carrying another gun.

Lindquist testified that Brooks and Edwards gave him 4.5

ounces of crack cocaine to sell for them in exchange for not

being arrested. After Lindquist sold the drugs, he paid

Brooks $3,500 over the course of the following months. 1

1

Additionally, the following evidence was admitted for

counts that were ultimately dismissed pre-verdict pursuant to

defendants’ Rule 29 motion for acquittal, see Joint Appx.

1311, 2102-2: (1) Elias Deeb, an undocumented Syrian

4

B. Post Trial Motions.

At the close of trial, the jury convicted Brooks and

Edwards of: conspiracy under the Racketeering Influenced

and Corrupt Organizations Act, 18 U.S.C. § 1962(d) (RICO);

conspiracy and extortion under the Hobbs Act, 18 U.S.C. §§

1951(a) & (2); conspiracy to possess with intent to distribute

controlled substances, in violation of 21 U.S.C. § 846;

distribution of and possession with intent to distribute

controlled substances, in violation of 21 U.S.C. § 841(a)(1);

conspiracy, in violation of 14 V.I.C. § 551; extortion, in

violation of 14 V.I.C. §§ 701 & 11; solicitation and receipt of

a bribe, in violation of 14 V.I.C. §§ 403 & 11; and conflict of

interest, in violation of 3 V.I.C. §§ 1102(3) & 1108 and 14

V.I.C. § 11. The jury convicted John-Baptiste of kidnapping

and false imprisonment, in violation of 14 V.I.C. §§ 1051 &

11.

Following their convictions, defendants moved for

judgments of acquittal pursuant to Rule 29, and for new trials

pursuant to Rule 33 of the Federal Rules of Criminal

Procedure. The District Court granted defendants’ Rule 29

motions as to counts 5, 6, 7, 10, 11, 12, 35, and 46.

Thereafter, the District Court sentenced both Brooks and

Edwards to 151 months’ imprisonment to be followed by 3

immigrant who came to the United States in 2004 and was

seeking asylum, testified that in 2004 Edwards offered to

illegally obtain a driver’s license for him. Joint App. 373.

Deeb eventually became an informant for the FBI and DEA.

Over the course of several meetings, he gave Brooks and

Edwards $900 in cash and a CD player in exchange for the

license. Joint App. at 394, 409-11, 418 (Counts 13 to 23); (2)

A man going by the name of Troy Willock claims that in

early 2008, Brooks and Edwards approached him and his

friends while they sat outside a local bakery. (As we discuss

below, there is a controversy over the identity of the man who

actually testified at trial). The officers frisked the men and

Brooks removed a Ziploc bag filled with marijuana from

inside a man’s pocket. However, no one was arrested

(Counts 47 to 52).

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years’ supervised release. John-Baptiste was sentenced to 60

months imprisonment. These appeals followed.

II. Discussion

We have jurisdiction to review a district court’s final

order and sentence under 28 U.S.C. § 1291 and 18 U.S.C. §§

3731 & 3742.

A. Sufficiency of the Indictment

Prior to trial, Brooks moved to dismiss the indictment

because the government failed to identify the victims of each

crime by name. According to Brooks, the indictment was

invalid because it failed to provide him with sufficient

information to prepare a defense, and to plead double

jeopardy in case of future prosecution. Brooks renews this

claim before us. This presents a legal question over which we

have plenary review. United States v. Kemp, 500 F.3d 257,

280 (3d Cir. 2007).

The Supreme Court has articulated a two-part test for

measuring the sufficiency of an indictment. Russell v. United

States, 369 U.S. 749, 763-64 (1962). Under this test, an

indictment is sufficient when it (1) “contains the elements of

the offense intended to be charged and sufficiently apprises

the defendant of what he must be prepared to meet,” id. at

763, and (2) allows him to “plead an acquittal or conviction in

bar of future prosecutions for the same offense.” Hamling v.

United States, 418 U.S. 87, 117 (1974). We have recognized

that “[a]n indictment must allege more than just the essential

elements of the offense.” United States v. Vitillo, 490 F.3d

314, 321 (3d Cir. 2007). However, “‘[n]o greater specificity

than the statutory language is required so long as there is

sufficient factual orientation’ to permit a defendant to prepare

his defense and invoke double jeopardy.” United States v.

Huet, 665 F.3d 588, 595 (3d Cir. 2012) (quoting United

States v. Kemp, 500 F.3d at 280).

Brooks’s argument is wholly grounded upon the

second of the above-cited factors. He claims that he cannot

assert a double jeopardy claim in the future because the

indictment omits the names of the alleged victims. He

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correctly notes that the indictment only references dates and

the nature of the statutory offense charged in each count and

does not include the name of any of the alleged victims. For

example, Brooks highlights count 25, charging racketeering

extortion in violation of 18 U.S.C. §§ 1951(a), 2. That

portion of the indictment states:

On or about April 2, 2008, at St. Thomas in the

District of

the Virgin Islands, ENID EDWARDS,

FRANCIS BROOKS

and BILL JOHN-BAPTISTE, while acting

under color of

official right as law enforcement officers of the

Virgin

Islands, did knowingly and intentionally affect

commerce

by extortion, and attempted to do so, and aided

and abetted

the same; namely, by unlawfully requiring an

individual

to pay money in order for the individual to

recover a

vehicle that had been towed pursuant to police

directive

authority.

Brooks App. at 36 (emphasis added).

The specificity required for an indictment to have

“‘sufficient factual orientation’ to permit a defendant to

prepare his defense and invoke double jeopardy,” is not

particularly onerous. Huet, 665 F.3d at 595 (quoting United

States v. Kemp, 500 F.3d at 280). We have found that a

defendant has sufficient notice to guard against a future

prosecution in violation of the protection against double

jeopardy if an indictment specifies the time frame for the

criminal conduct. See United States v. Huet, 665 F.3d at 596

(reversing District Court’s order dismissing an indictment

where the relevant charge listed all required elements of the

offense and where it also “specifie[d] the time period during

which the violation occurred” by including the temporal

description “on or about August 10, 2007, to on or about

January 11, 2008.”).

7

Although this indictment could easily have identified

the alleged victims, it adequately specified the period in

which the alleged crimes occurred, and set forth enough

specificity about the crimes charged to protect against any

subsequent attempt to charge Brooks with any crimes arising

from the conduct that is the subject of this indictment.

Accordingly, we conclude that the indictment was sufficiently

specific to withstand a double jeopardy challenge. 2

B. John-Baptiste’s Motion for Severance. 3

The jury returned a verdict finding John-Baptiste

guilty of a single count (count 27), charging false

imprisonment and kidnapping, and acquitted him of all other

charges. 4

2

For example, the trial evidence identified the specific

incident that occurred on April 2, 2008, as charged in count

25, as the extortion of $500 for the release of Calixte and her

taxi.

In rejecting the challenge to the specificity of this

indictment, we by no means condone the lack of precision

that is evident on the face of this indictment. Nothing here

suggests a need to withhold the identity of various victims

because of any concerns for their safety, and the government

has not attempted to defend the manner in which this

indictment was drafted by asserting any such concerns.

Although the specificity in the indictment is adequate, we

would hope that greater care is taken in drafting indictments

in the future.

3

We review the denial of a motion to sever for abuse of

discretion. United States v. Davis, 397 F.3d 173, 182 (3d Cir.

2005).

4

Specifically, the jury acquitted John-Baptiste of interfering

with interstate commerce (count 25), kidnapping for extortion

(count 28), extortion (29), solicitation and receipt of a bribe

(count 30), conflict of interest (count 32), aggravated assault

and battery (count 32), and unlawful sexual contact (count

33).

8

John-Baptiste argues that the District Court erred in

rejecting his pre-trial requests for severance under either F. R.

Crim. P. 8(b) or 14(a). He argues that the government’s case

against him stemmed solely from the April 2, 2008 incident

involving Calixte, and joinder in an indictment containing

numerous other charges against other defendants allowed

evidence admissible only against Brooks and Edwards to

improperly “spillover” and be used against him.

A defendant seeking a new trial due to the denial of a

severance motion must show that the joint trial led to “clear

and substantial prejudice resulting in a manifestly unfair

trial.” United States v. Urban, 404 F.3d 754, 775 (3d Cir.

2005) (internal quotation marks omitted). “Mere allegations

of prejudice are not enough,” United States v. Reicherter, 647

F.2d 397, 400 (3d Cir. 1981), and defendants are “not entitled

to severance merely because they may have a better chance of

acquittal in separate trials.” Zafiro v. United States, 506 U.S.

534, 540 (1993). Thus, as we have previously explained, the

critical issue when considering the potential for prejudice “is

not whether the evidence against a co-defendant is more

damaging but rather whether the jury will be able to

‘compartmentalize the evidence as it relates to separate

defendants in view of its volume and limited admissibility.’”

Davis, 397 F.3d at 182 (quoting United States v. Somers, 496

F.2d 723, 730 (3d Cir. 1974)).

Here, John-Baptiste cannot establish that the evidence

presented against Edwards and Brooks resulted in clear and

substantial prejudice to his case. As noted, his sole

contention is that the evidence against Edwards and Brooks

was so extensive that it prevented the jury from reliably

determining his guilt. See John-Baptiste Br. at 24. However,

severance is not required simply because the evidence against

his co-defendants may be stronger than the evidence against

John-Baptiste. See Urban, 404 F.3d at 776 (“[A] defendant is

not entitled to severance merely because the evidence against

a co-defendant is more damaging than that against him.”)

(citation and internal quotation marks omitted); United States

v. Console, 13 F.3d 641, 655 (3d Cir. 1993) (“Prejudice

should not be found in a joint trial just because all evidence

adduced is not germane to all counts against each defendant

or some evidence adduced is more damaging to one defendant

9

than others.”); see also United States v. Dansker, 537 F.2d 40,

62 (3d Cir. 1976).

Additionally, nothing suggests that the jury was unable

to “compartmentalize the evidence as it relate[d] to separate

defendants . . . . ” Davis, 397 F.3d at 182, nor does John-

Baptiste point to any evidence of that happening. We realize

that only eight of the 54 counts in this indictment involved

John-Baptiste and his involvement in the scheme to kidnap

Calixte and hold her for ransom. However, the evidence that

was relevant to those charges was easily separated and

compartmentalized from testimony that was admitted

regarding Edwards’s or Brooks’s involvement in the other

charged offenses. See, e.g., Davis, 397 F.3d at 182 (rejecting

claim of prejudice where “facts [] relatively simple; all events

occurred in a single evening; there are only three defendants;

and there are no overly technical or scientific issues”).

Finally, in instructing the jury, the District Court underscored

that “[e]ach count and the evidence pertaining to it should be

considered separately” and that “[t]he case of each defendant

should be considered separately and individually.” Joint App.

2142-43. Accordingly, we conclude that the jury could have

compartmentalized the evidence on each count and each

defendant as instructed.

C. The Virgin Islands False Imprisonment and

Kidnapping Statute

John-Baptiste also challenges the District Court’s

interpretation and application of 14 V.I.C. § 1051 (the Virgin

Islands false imprisonment and kidnapping statute). He first

claims that he District Court erroneously ignored the

requirement that a defendant act “without lawful authority” in

committing the offense. Second, John-Baptiste argues that

the statute is unconstitutionally void for vagueness as

interpreted because it provides no notice to law enforcement

officers that they can be charged and convicted of

kidnapping. The arguments border on frivolity.

14 V.I.C. § 1051 provides in pertinent part:

Whoever without lawful authority confines or

imprisons

10

another person within this Territory against his

will,

or confines . . . or kidnaps another person, with

intent to cause him to be confined or imprisoned

in this

Territory against his will . . . is guilty of

kidnapping and shall be imprisoned for not less

than one

and not more than 20 years.

14 V.I.C. § 1051. As noted, the jury convicted John-Baptiste

of one count of kidnapping for which he received a sentence

of five years’ imprisonment.

In arguing that the District Court erroneously

interpreted “without lawful authority,” John-Baptiste claims

that, given his authority as a peace officer to make arrests

with or without a warrant, any arrest he makes must

necessarily be “within lawful authority.” The argument is at

best, misguided and at most, fanciful. This Virgin Islands

statute provides peace officers with lawful authority to make

arrests in routine circumstances—e.g., when they have

witnessed a public offense or when there is reasonable cause

to believe that a person has committed a felony. See 5 V.I.C.

§ 3562. 5 No reasonable interpretation of the statute would

5

In its entirety, the statute provides:

A peace officer may make an arrest in

obedience to a warrant delivered to him,

or may, without a warrant, arrest a

person—

(1) for a public offense committed

or attempted in his presence;

(2) when a person has committed

a felony, although not in his presence;

(3) when a felony has in fact been

committed and he has reasonable

cause for believing the person to

have

committed it;

(4) on a charge made, upon a

reasonable cause, of the

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convert it to a license to empower peace officers to act

outside of this authority or detain someone for a criminal

purpose. Indeed, the slightest modicum of common sense

would negate the conclusion that the statute allows police

officers to engage in criminality merely because they have

been authorized to uphold the law. Yet, that is precisely the

interpretation that John-Baptiste urges upon us.

Notwithstanding John-Baptiste’s argument to the

contrary, it is well-settled that law enforcement officers are

subject to prosecution under criminal statutes when they act

unlawfully or “without legal authority.” See, e.g., Hampton v.

United States, 425 U.S. 484, 490 (1976) (plurality opinion)

(“If the police engage in illegal activity in concert with a

defendant beyond the scope of their duties the remedy

lies . . . in prosecuting the police under the applicable

provisions of state or federal law.”); see also Imbler v.

Pachtman, 424 U.S. 409, 429 (1976) (“This Court has never

suggested that the policy considerations which compel civil

immunity for certain government officials also place them

beyond the reach of criminal law.”).

A recent case decided by the First Circuit Court of

Appeals is illustrative. In United States v. Cortes-Caban, 691

F.3d 1 (1st Cir. 2012), a divided panel of the First Circuit

upheld the conviction of several police officer defendants for

drug distribution under 21 U.S.C. § 841. The officers

unlawfully transferred marijuana and cocaine to each other

and outside parties as part of a conspiracy to plant evidence

and conduct illegal searches and seizures. In affirming the

convictions that followed, the majority explained in detail that

while Congress had “carved out a specific exemption for

distribution of controlled substances by law enforcement

officers, but only the extent that they are ‘lawfully engaged’

in the enforcement of drug laws.” See Cortes-Caban, 691

commission of a felony by the

party; or

(5) at night, when there is

reasonable cause to believe that

he has committed a felony.

5 V.I.C. § 3562.

12

F.3d at 20 (citing 21 U.S.C. § 885) (emphasis in original). 6

Because the officers in that case acted outside their lawful

authority to enforce state and federal drug laws, they were

subject to prosecution under federal drug laws the same as

anyone else. Id. at 20-22. 7

Similarly, the Virgin Islands “arrest by a peace officer”

statute may only be read to grant officers authority to carry

out arrests under specific circumstances. It was certainly not

intended to immunize police officers from prosecution for

such clearly illegal actions as restraining someone’s liberty

until a ransom is paid. Thus, where, as here, the government

can show that a peace officer’s conduct exceeded lawful

authority to arrest and detain, that officer is subject to

prosecution under any statute that criminalizes his/her

conduct.

John-Baptiste makes an equally tenuous claim that the

Virgin Islands kidnapping statute is unconstitutional as

applied because it is so vague as to not give peace officers

6

Indeed, a contrary result would have subjected police

officers to prosecution for illegal distribution of a controlled

substance when they gave an informant a controlled

substance to sell as part of a controlled buy or “sting.”

7

The mere fact that the panel in Cortes-Caban was not

unanimous does not undermine our belief that John-Baptiste’s

argument that every action of a Virgin Islands police officer

is cloaked with legal authority is unreasonable. The issue that

divided the panel in Cartes-Caban was whether the evidence

of a drug “distribution” was sufficient to convict under 21

USC § 841(a)(1) because Congress had specifically

authorized some distributions of controlled substances by law

enforcement officers.

However, in his dissent, Judge Torruella specifically

confirmed that he agreed that the evidence of an illegal

distribution of drugs by a police officer was sufficient to

convict the defendant of a criminal conspiracy. (“I agree that

the record supports the government’s allegations . . . that

appellants’ actions in planting drugs for the purpose of

fabricating criminal cases constitutes a violation of 18 USC §

241.”). 691 F.3d at 30.

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notice that they could be “arrested and convicted of

kidnapping for performing [their] official duties.” John-

Baptiste Br. at 20. We exercise plenary review over that

question of law. San Filippo v. Bongiovanni, 961 F.2d 1125,

1133 (3d Cir. 1992).

A statute is unconstitutionally vague if it “fails to give

a person of ordinary intelligence fair notice that his

contemplated conduct is forbidden by the statute” or

“encourages arbitrary and erratic arrests and convictions.”

Papachristou v. City of Jacksonville, 405 U.S. 156, 162

(1972); see also Kolender v. Lawson, 461 U.S. 352, 357

(1983). “A statute can be void for vagueness not only on its

face, but as applied, as a result of ‘an unforeseeable and

retroactive judicial expansion of narrow and precise statutory

language.’” United States v. Protex Indus., Inc., 874 F.2d

740, 743 (10th Cir. 1989) (quoting Bouie v. City of Columbia,

378 U.S. 347, 352 (1964)).

We fail to see how a person of ordinary intelligence

could possibly think that 14 V.I.C. § 1051 (or any other

legislative enactment) authorizes a police officer to hold

someone in custody for personal gain until a ransom is paid.

As the government notes, the Virgin Islands false

imprisonment and kidnapping statute closely tracks those of

other jurisdictions. See, e.g., 18 Pa. Conn. Stat. §§ 2901,

2903. Like the Virgin Islands’ statute, these laws generally

proscribe the removal, transport, or confinement of another

person when carried out “unlawfully” or “without lawful

authority.” For John-Baptiste’s vagueness argument to have

any merit, we would have to conclude that no reasonable law

enforcement officer could understand that s/he is proscribed

from, e.g., confining or imprisoning another person without

lawful authority.

In fact, the contrary is true. Police officers can be

exposed to civil liability under 42 USC § 1983. In addition,

in order to lawfully exercise the police power of the state,

they must understand the constitutional restraints imposed on

the authority of the state and its agents. No reasonable

interpretation of this statute, or any similar statute that we are

aware of, could conceivably suggest that a police officer may

14

use his/her police power to extort a ransom in exchange for

releasing someone who was being held in custody.

Here, as in any prosecution for kidnapping, the

government had to prove beyond a reasonable doubt that the

defendant acted without lawful authority. That burden is

easily satisfied where the proof would allow a reasonable

juror to conclude beyond a reasonable doubt that a person

was held in official custody for private gain rather than in

furtherance of an officer’s official duties. Despite John-

Baptiste’s argument to the contrary, we see neither vagueness

nor room for confusion about the scope of his legal authority

in the text of 14 V.I.C. § 1051.

D. Defendants’ Rule 29 Motions. 8

The government appeals the District Court’s grant of

Brooks’ and Edwards’ Rule 29 motions on counts 5, 6, 10,

11, and 12 (relating to the extortion of Love) and 46 (relating

to the Lindquist drug transaction). John-Baptiste also appeals

the Court’s denial of his Rule 29 motion (motion for

judgment of acquittal). He argues there was insufficient

evidence to sustain his conviction for kidnapping (count 27).

We exercise plenary review over a district court’s

ruling on a Rule 29 motion. United States v. Applewaithe,

195 F.3d 679, 684 (3d Cir. 1999). A defendant

“challenging the sufficiency of the evidence” pursuant to

Rule 29 “bears a heavy burden.” United States v. Casper,

956 F.2d 416, 421 (3d Cir. 1992). In reviewing a verdict for

sufficiency of the evidence, we “‘consider the evidence in the

light most favorable to the government and affirm the

judgment if there is substantial evidence from which any

rational trier of fact could find guilt beyond a reasonable

doubt.’” United States v. Benjamin, No. 11-2906, 2013 WL

1197767, *3 (3d Cir. March 26, 2013) (quoting United States

v. Brown, 3 F.3d 673, 680 (3d Cir. 1993)).

8

“[T]he Rule 29 judgment of acquittal is a substantive

[judicial] determination that the prosecution has failed to

carry its burden.” Smith v. Massachusetts, 543 U.S. 462, 468

(2005).

15

1. John-Baptiste’s Conviction for False Imprisonment

and Kidnapping

As noted above, under the applicable statute, the

government was required to prove beyond a reasonable doubt

that (1) the defendant, intending the victim to be confined or

imprisoned, (2) unlawfully took or carried away the victim

for a substantial distance, (3) against the victim’s will. 14

V.I.C. § 1051.

John-Baptiste argues that the government’s evidence

was insufficient to prove that he acted “without lawful

authority” when he arrested Calixte. He claims that the

government’s evidence largely relied upon the testimony of

VIPD Officer Rodney Querrard, who testified that the VIPD

does not recognize an officer’s authority to “unarrest” a

detainee, as John-Baptiste arguably did once Morino paid the

ransom to Edwards and Brooks to secure Calixte’s release.

John-Baptiste reasons that this testimony was irrelevant

because there was no evidence to show that the policies and

procedures governing the conduct of a Virgin Islands’ police

officer such as Querrard also governed officers of the Virgin

Islands Port Authority Police. (As noted at the outset, John-

Baptiste was a member of the Virgin Islands Port Authority

Police). John-Baptiste also argues that even if Querrard’s

testimony was properly admitted, it was insufficient to show

that his (John-Baptiste’s) conduct satisfied the elements of the

false imprisonment and kidnapping statute.

While we certainly agree that failing to follow

departmental procedures is not tantamount to acting

unlawfully, the record here contains sufficient evidence that

John-Baptiste acted without lawful authority in detaining

Calixte. Specifically, the government introduced the

testimony of VIPA Chief Edred Wilkes, who stated that while

John-Baptiste may have followed VIPA procedures in

arresting Calixte, he (Wilkes) was “furious” when he learned

that John-Baptiste released Calixte as a favor to Edwards.

Joint App. 1083. Given that testimony, and testimony that

John-Baptiste accepted money as a condition of releasing

Calixte, the jury could reasonably conclude that even if the

original seizure of Calixte was lawful, at some point during

her detention, John-Baptiste decided to hold her until he

16

received a payment that can only be described as a ransom.

From that point until the ransom was actually paid, he was

holding her against her will and when he transported her to

the location where the ransom was paid, the jury could well

have concluded that she was being illegally detained and

transported solely to facilitate receipt of the ransom he

extorted for her release.

In reviewing a challenge to the sufficiency of

evidence, “we are limited to determining whether the

conclusion chosen by the factfinders was permissible.”

United States v. Ashfield, 735 F.2d 101, 106 (3d Cir. 1984)

(emphasis added). Viewed in the light most favorable to the

government as verdict winner, we conclude that the evidence

was more than sufficient to prove that John-Baptiste was

guilty of false imprisonment and kidnapping as charged in

count 27. Indeed, on this record, it is hard to imagine that the

jury could have concluded anything else

2. Extortion and Conspiracy to Extort Under Federal

and Territorial Law.

The government challenges the District Court’s

judgment of acquittal in favor of Brooks and Edwards after

the jury convicted them on the charges set forth in counts 5,

6, 10, 11, and 12. Those counts all related to the officers’

extortion of Kenneth Love, who, as noted above, paid Brooks

and Edwards approximately $825 in return for the release of

his truck after it was illegally impounded by Brooks and

Edwards.

Counts 5 and 6 charged conspiracy and extortion under

the Hobbs Act. To sustain the conspiracy conviction the

government had to prove beyond a reasonable doubt that

Brooks and Edwards knowingly entered into an agreement to

interfere with interstate commerce by extortion under color of

official right. 18 U.S.C. § 1951; see also United States v.

Inigo, 925 F.2d 641, 652 (3d Cir. 1991). To prove extortion,

the government had to prove beyond a reasonable doubt that

Brooks and Edwards knowingly and willfully obtained

Love’s property through coercion resulting from the

“wrongful use of actual or threatened force, violence, or fear,

or under color of official right” and that this “obstruct[ed],

delay[ed], or affect[ed] [interstate] commerce.” 18 U.S.C. §

17

1951(a), (b)(2); United States v. Manzo, 636 F.3d 56, 62 (3d

Cir. 2011).

a. Extortion

The District Court granted the Defendants’ post trial

motion for judgment of acquittal, primarily because Love did

not make his payment to recover his impounded truck directly

to Edwards. Rather, Love testified that he “placed

[approximately] $825 on the dashboard of [Edwards’s] police

vehicle” in exchange for obtaining his truck. Joint App. 36,

46. After Love retrieved his truck, he was given an itemized

receipt for $825.

The government concedes that there was no direct

evidence that Edwards took any of the $825 that Love paid,

but argues that direct evidence was not required. See United

States v. Johnson, 203 F.3d 139, 149 (3d Cir. 2002). The

government contends that the prosecution presented sufficient

circumstantial evidence at trial to sustain a Hobbs Act

extortion charge. The government relies on the following

evidence: (1) Edwards repeatedly told Love how much Love

would have to pay to get his truck back; (2) Edwards told

Love that she had been “taking money . . . from people” for

19 years; (3) Edwards ordered Love to put the money on her

patrol car dashboard; and (4) Love later saw the tow-truck

driver with only “a couple hundred dollars” in his hand. Gov.

Br. at 48-49, Joint App. at 602. We agree that this was

sufficient to convict Edwards of Hobbs Act extortion as

charged in count 6. 9

9

The extortion charge in count 10 required the government to

prove the same elements as the Hobbs Act with the exception

of effect on interstate commerce. See 14 V.I.C. § 701. For

the territorial bribery conviction in count 11, the government

had to prove that Brooks and Edwards were public officials

and that they asked for or received “any emolument, gratuity,

or reward, or promise thereof” in exchange for an official act.

See id. § 403. For the conflict of interest charge in count 12,

the government needed to show that Brooks and Edwards

were territorial officers who knowingly had an interest in a

transaction they conducted that was “in substantial conflict

with the proper discharge of [their] duties.” See 3 V.I.C. §

1102(3). Because of these overlapping elements, this same

18

The jury obviously accepted Love’s testimony that

after he placed the $825 on Edwards’s dashboard, he saw the

tow-truck driver with only a couple hundred dollars in his

hand. Joint App. 603. That testimony is circumstantial

evidence that Edwards gave the tow-truck driver a “couple

hundred dollars” for his role in the scheme, but that Edwards

retained most of the $825 that Love placed in Edwards’ patrol

car. See, e.g., United States v. McNeill, 887 F.2d 448, 450

(3d Cir. 1989) (“The fact that evidence is circumstantial does

not make it less probative than direct evidence.”). This

evidence, when properly viewed in the light most favorable to

the government, would clearly allow any reasonable juror to

conclude beyond a reasonable doubt that Edwards was guilty

of extortion.

b. Conspiracy

The District Court’s apparent reliance on the absence

of direct evidence also caused it to err in granting a judgment

of acquittal on the conspiracy charge. The court explained

that it could not find evidence of an explicit agreement

between Brooks and Edwards. It did not have to. The court

stressed that Brooks remained silent while Edwards told Love

that she “had been doing this for 19 years, taking money . . .

from people.” Joint App. 36. Thus, while Brooks was

present in the patrol car while this conversation was going on,

the Court noted that “mere presence at the scene of the crime

or association with a criminal is not sufficient evidence of a

conspiracy.” Id.

The government concedes that “mere presence” is

insufficient to support a conspiracy conviction, but

underscores that the existence of an agreement can

nonetheless be inferred from the circumstances surrounding a

contract. See United States v. Caraballo-Rodriguez, 726 F.3d

418, 431 (3d Cir. 2013) (en banc) (holding that proof of an

element of conspiracy can be shown by circumstantial

evidence: “A case can be built against the defendant grain-by-

result as to counts 5 (discussed below) and 6 also applies to

the District Court’s decision to grant the defendants’ motion

to acquit on count 10 (extortion under territorial law); count

11 (bribery under territorial law); and count 12 (conflict of

interest under territorial law).

19

grain until the scale finally tips.” (quoting United States v.

Iafelice, 978 F.2d 92, 98 (3d Cir. 1992)). Indeed, that

proposition is so firmly established as to require no citation.

We also agree with the government that the circumstances

surrounding the interaction of Edwards and Brooks was

certainly sufficient to establish an illicit agreement between

the two to extort money from Love. The tow- truck driver

involved in returning Love’s car testified that Brooks spoke to

him about the price he thought Love should pay for the

release of the truck. Perhaps most damningly, Brooks sat

silently by as Edwards explained that she had been taking

money from people for 19 years. Therefore, the unique

circumstances here establish something much more probative

than “mere presence.” The jury could certainly assume that if

one police officer boasts of engaging in such illegal activity

for nearly two decades in the presence of another police

officer, there must be an agreement and that the agreement

arises from a “longstanding pattern of activity and mutual

trust” between the two. Here, that relationship can be

discerned from the evidence that sustained convictions for

other counts as well as the circumstances surrounding the

release of the truck. See United States v. Gibbs, 190 F.3d

188, 199 (3d Cir. 1999) (holding that buyer shared

conspiracy’s goal of distributing cocaine, when circumstantial

evidence showed he knew about the larger drug operation). 10

10

In Gibbs, we considered whether circumstantial evidence

supported the conspiracy conviction of a defendant who

alleged he merely bought drugs from a member of

conspiracy, where the evidence included tape-recorded

conversations between him and his codefendants, many of

which were in code and had to be interpreted by an FBI agent.

We held that knowledge of and intent to join a conspiracy can

be imputed from certain factors such as the length of

affiliation between the defendant and the conspiracy, or

whether there is a demonstrated level of mutual trust: “when a

defendant . . . has repeated, familiar dealings with members

of a conspiracy, [he] probably comprehends fully the nature

of the group with whom he is dealing . . . and is more likely

to perform [acts] for conspiracy members in an effort to

maintain his connection to them.” Id. at 199-200. See also

United States v. Claxton, 685 F.3d 300, 308-09 (evidence was

sufficient to show defendant knew he was participating in

20

While we agree that the evidence supporting Brooks’

and Edwards’ conviction for conspiring to extort Love out of

his property is more tenuous than the evidence that Edwards

carried out the extortion plan, membership in a conspiracy

need not depend on the level of cooperation that the District

Court required here. See United States v. Claxton, 685 F.3d

300, 305 (“[A] finding of guilt in a conspiracy case does not

depend on the government introducing direct evidence that a

defendant was a knowing participant in the conspiracy;

circumstantial evidence can carry the day.”); United States v.

Wexler, 838 F.2d 88, 90 (3d Cir. 1988) (“The elements of a

conspiracy may be proven entirely by circumstantial

evidence . . . .”). Thus, when viewed in the light most

favorable to the government, we conclude that the District

Court erred in granting judgment of acquittal on the

conspiracy counts and that portion of the court’s order will be

reversed. 11

c. Conspiracy to Distribute Drugs Under 21 U.S.C. §

846

Count 46 charged Brooks and Edwards with

conspiracy to possess with intent to distribute controlled

substances in violation of 21 U.S.C. § 846. The charge

relates to Brooks’s and Edwards’s interactions with John

Lindquist. As noted above, the government introduced

evidence that Brooks coerced Lindquist into selling crack

cocaine for him. That evidence established that Lindquist

received the crack cocaine from Edwards while he sat in the

back of the officers’ patrol car. Although Edwards handed

the bag containing the crack cocaine to Lindquist and told

him that Brooks expected to receive $3,500 for its contents,

criminal enterprise, as required to sustain conviction for

conspiracy to possess cocaine with intent to distribute, where

defendant picked up coconspirator at airport and transported

coconspirator’s luggage to another car, where evidence

showed defendant knew the luggage contained money from

illegal activities, and where conspiracy was operated for a

number of years and involved multiple drug–related

transactions).

11 In reversing the Distr ict Co urt’s grant of the Rule 29 motion here, we caution that our analy sis is limited to the precise circumstances of this case. As we have explained, the jury heard that one police office boasted of 19 y ears of “shakin g down” citizens in front of another police officer. That evidence, h as additional force here because Edwards and Broo ks were both law enforcement officers.

21

Lindquist neither heard Edwards admit that she knew what

was in the bag, nor saw her look into it.

To establish a conspiracy, the government must prove

beyond a reasonable doubt: (1) a shared unity of purpose; (2)

an intent to achieve a common illegal goal; and (3) an

agreement to work toward that goal. United States v. Boria,

592 F.3d 476, 488 n. 12 (3d Cir. 2010). It may do so by

direct or circumstantial evidence. United States v. Brodie,

403 F.3d 123, 134 (3d Cir. 2005). We have also required

proof that the defendant had knowledge of the conspiracy’s

illegal goal. Id. at 148.

We must therefore examine the record to determine

whether the government set forth “drug-related evidence,

considered with the surrounding circumstances, from which a

rational trier of fact could logically infer that the defendant

knew a controlled substance was involved in the transaction.”

Boria, 592 F.3d at 481.

In granting the defendants’ Rule 29 motion on this

count, the court reasoned that there was insufficient evidence

for the jury to conclude that Edwards knew the contents of the

bag. See, e.g., Cartwright, 359 F.3d at 287. The District

Court concluded that the evidence of a conspiracy was

therefore insufficient against Edwards, and thus necessarily

insufficient to prove beyond a reasonable doubt that Brooks

conspired with her. Joint App. 29.

However, after defendants’ trial, we decided United

States v. Caraballo-Rodriguez, where we reexamined our test

for evaluating the sufficiency of the evidence in drug

conspiracy cases such as this. 726 F.3d at 431. In doing so,

we recognized that we had previously overturned convictions

in the absence of specific evidence of a defendant’s

knowledge of the identity of the illegal drugs s/he possessed

even though circumstantial evidence may have been sufficient

to establish that knowledge beyond a reasonable doubt.

Caraballo-Rodriguez, 726 F.3d at 430-431. We

acknowledged that our jurisprudence in this area had “failed

to apply the deferential standard the law requires on review of

sufficiency of the evidence challenges.” Id. at 419. As we

explained, we had previously sometimes examined the

22

evidence under a microscope – rather than reviewing the

evidence as a whole and giving deference to the jury’s

verdict. Id. at 430. Our decision in that case clarified that the

appropriate standard of review of the sufficiency of the

evidence in a drug conspiracy case is the same as in all other

cases: the jury’s verdict must be assessed from the

perspective of a reasonable juror, and must be upheld if the

evidence was sufficient to allow a reasonable juror to

conclude beyond a reasonable doubt that the defendant knew

what was in his/her possession. Id. at 431 (abrogating United

States v. Wexler, 838 F.2d 88, 92 (3d Cir. 1988), United

States v. Salmon, 944 F.3d 1106, United States v. Thomas,

114 F.3d 403, United States v. Idowu, 157 F.3d 265, 268 (3d

Cir. 1998), and United States v. Cartwright, 359 F.3d 281 (3d

Cir. 2004)). Moreover, we specifically disavowed our prior

analytical approach and reasoning – that the jury’s verdict

could not stand when the evidence was as consistent with

other contraband, as it was with controlled substances. Id. at

432

Thus, while this issue may have presented a close

question when the District Court originally decided it, it is

now clear that the District Court’s grant of this Rule 29

motion was not sufficiently deferential to the jury’s verdict.

The evidence introduced at trial established that in

2009, Lindquist met with Brooks and Edwards, who arrived

together in a car. Lindquist got into the car, and Edwards

handed him a bag while informing him that Brooks wanted

$3,500 for it. Lindquist looked into the bag, recognized its

contents, and got out of the car. Over the course of the next

several months, Lindquist sold the crack cocaine that was in

the bag and gave the proceeds to Brooks. The government

also argues: “based on the timing of their meeting, the bag’s

small size, flimsy construction, and light weight, and

Edward’s statement that ‘Brooks wants $3,500 for this,’ along

with evidence of a 2005 incident involving the sale to Kelvin

Moses of six pounds of marijuana, the jury could have

concluded that Edwards knew the bag contained drugs.”

Gov. Br. at 51. We agree.

The same reasoning would have allowed the jury to

conclude beyond a reasonable doubt that Edwards knew that

23

the illegal venture involved drugs. See Caraballo-Rodriguez,

726 F.3d at 433. In Caraballo-Rodriguez, the defendant

responded to questions about whether he knew that a suitcase

contained drugs by saying: “I didn’t know it was drugs. I

knew that it was something bad . . . Because nobody is going

to pay five thousand dollars for picking up suitcases.” Id. at

422. We reasoned that the jury could have concluded from

the surrounding circumstances that the defendant knew the

suitcases contained drugs. Similarly, here, the jury could

reasonably conclude that these two police officers had enough

common sense and knowledge to understand that if Brooks

expected $3500 for the sale of whatever was in the paper bag,

Brooks wanted Lindquist to sell the contents of the bag, and

given the expected price, the bag most surely didn’t contain a

tuna fish sandwich.

Moreover, while mere presence at the scene of the

crime or association with a criminal is not sufficient evidence

of a conspiracy, see, e.g., United States v. Tyson, 653 F.3d

192 (3d Cir. 2011), the evidence here is – once again –

substantially more than “mere presence.” The events

involving Lindquist took place in 2009, several years into a

longstanding pattern of illicit activity between Edwards and

Brooks. That activity had, in the past, involved recruiting

third parties to sell drugs for them. See, e.g., United States v.

Claxton, 685 F.3d 300, 310 (3d Cir. 2012) (“[A]lthough the

number of transactions here does not, on its own, prove

[defendant’s] knowledge of the character of the conspiracy, it

does make it more likely that he knew the business he was

about.”). Given the circumstances here, the evidence was

sufficient to sustain the jury’s conclusion that Edwards

understood that she was participating in a drug transaction.

Accordingly, we conclude that the jury’s verdict on count 46

did not “fall below the threshold of bare rationality.”

Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012). We

therefore reverse the District Court’s grant of the Rule 29

motion on that count, and the guilty verdict will be reinstated

as to both Edwards and Brooks. 12

12

Since the evidence was sufficient to support the verdict on

this count, we reject Edwards’s argument that the District

Court improperly attributed the entire 4.5 ounces of cocaine

to her at sentencing.

24

E. Brooks’s Rule 33 Motion for New Trial on RICO

Conspiracy 13

Brooks claims that the District Court erred in denying his

Rule 33 motion for a new trial on his conviction for RICO

conspiracy. He argues that the jury considered evidence of

acquitted conduct in convicting him on that count. We

review a denial of a motion for judgment of acquittal under

Rule 33 for abuse of discretion. United States v. Silveus, 542

F.3d 993, 1005 (3d Cir. 2008). However, we again view the

evidence supporting a conviction “in the light most favorable

to the government and affirm[s] the judgment if there is

substantial evidence from which any rational trier of fact

could find guilt beyond a reasonable doubt.” Benjamin, 2013

WL 1197767, at *3.

To establish a conviction for a RICO conspiracy, the

government must show: (1) that two or more persons agreed

to conduct or to participate, directly or

indirectly, in the conduct of an enterprise’s affairs through a

pattern of racketeering activity; (2) that the defendant was a

party to or member of that agreement; and (3) that the

defendant joined the agreement or conspiracy knowing of its

objective to conduct or participate, directly or indirectly, in

the conduct of an enterprise’s affairs through a pattern of

racketeering activity. United States v. Riccobene, 709 F.2d

214, 224 (3d Cir. 1983). 14

To establish a pattern of racketeering activity, the

government must show that there was “‘continuity plus

relationship’ among the predicate acts.” United States v.

13

Under F. R. Crim. P. 33, a court may grant a new trial on

motion of the defendant “if the interest of justice so requires.”

14

We note that on appeal Brooks does not expressly argue

that the government failed to set forth evidence establishing

his association with an “enterprise.” Accordingly, we need

not discuss that element of the crime. However, for a

thorough discussion of the proof needed to establish a RICO

enterprise, see United States v. Bergrin, 650 F.3d 257 (3d Cir.

2011).

25

Mark, No. 10-4075, 2012 WL 120092, at *3 (3d Cir. Jan. 17,

2012) (quoting Sedima S.P.R.I. v. Imrex Co., 473 U.S. 479,

496 n.14 (1985) (quoting S. REP. NO. 91-617, at 158

(1969))). Racketeering acts are “related” if the acts had the

same or similar purposes,

results, participants, victims or methods of commission.

Barticheck v. Fidelity Union Bank/First Nat'l State, 832 F.2d

36, 39 (3d Cir.1987). “[S]poradic and separate criminal

activities alone cannot give rise to a pattern for RICO

purposes . . . .” Mark, 2012 WL 120092, at *3 (quoting

United States v. Eufrasio, 935 F.2d 553, 565 (3d Cir. 1991).

Count 1 of the indictment charged a RICO conspiracy

and included the following predicate acts: drug trafficking,

alien harboring, kidnapping, bribery, and extortion. In

support of these charges, the government relied on the

testimony of Moses, Lindquist, Deeb, Willock, and Love

(discussed in Section I.A). The testimony of these witnesses

established that Brooks and Edwards regularly demanded

money in exchange for drugs or property.

Before submitting the case to the jury, the District

Court acquitted the defendants on all counts relating to Deeb

and Willock, as well as several others. Joint App. 1311,

2125. Accordingly, the District Court instructed the jury that

it had to agree on at least two of the remaining racketeering

acts (drug trafficking conspiracy, drug trafficking,

kidnapping, kidnapping for extortion, extortion, and bribery).

The jury convicted Brooks (and Edwards) of the RICO

conspiracy and twelve counts charging offenses that were

predicate acts, but the District Court granted Brooks’s Rule

29 motion as to four of those twelve counts (6, 10, 11, and

46). The jury did not specify, nor was it asked to specify,

which of the predicate acts it relied upon to convict on the

RICO conspiracy charge.

Brooks argues that the dismissal of four of the twelve

counts relating to the predicate acts required a new trial, since

the jury could have relied on dismissed counts to convict him

of the RICO charge. He also claims that the lack of

credibility of the particular witnesses casts doubt on the

convictions on the remaining eight counts.

26

It is well established that if a jury convicts the

defendant on two or more of the predicate acts constituting a

RICO violation, the conviction on the RICO count itself will

withstand a challenge even if the jury acquitted the defendant

on several counts charging other predicate acts. See United

States v. Holzer, 840 F.2d 1343, 1350-51 (7th Cir. 1988).

Even where the jury’s verdict is inconsistent, the RICO

conviction must stand so long as there is sufficient evidence

to prove that the defendant committed two or more predicate

acts. United States v. Vastola, 989 F.2d 1318, 1331 (1993).

As noted, even accounting for the four counts on which the

District Court granted the Rule 29 motions, Brooks’s (and

Edwards’s) eight convictions for offenses that were predicate

RICO acts remain (including extortion, bribery, and drug

trafficking). The convictions foreclose Brooks’ challenge to

the court’s denial of his Rule 33 motion on the RICO offense

charged in count 1. Holzer, 840 F.2d at 1350–51 (“[A] jury is

presumed to act rationally, and a rational jury would convict a

defendant of racketeering . . . [e]ven if it had exonerated

[him] of all the predicate offenses charged except one act of

extortion and one receipt of a bribe.”). Moreover, Brooks’s

attack on the sufficiency of evidence amounts to little more

than a challenge to the credibility of the witnesses. 15 See

United States v. Cothran, 286 F.3d 173, 176 (3d Cir. 2002)

(refusing to reconcile “inconsistencies” in testimony because

“witness credibility [is] an area peculiarly within the jury’s

domain”). Thus, the District Court properly rejected his

claim.

F. Prosecutorial Misconduct

Both Brooks and Edwards argue that prosecutorial

misconduct occurred during the trial when the prosecutor

withheld exculpatory evidence and suborned perjury. Their

argument pertains to the government’s use of three witnesses:

Love, Deeb, and Willock. As we explain, this argument is

unpersuasive.

1. Kenneth Love—Identification of Brooks

15

See Brooks Br. at 15-22.

27

At trial, Love identified Edwards but could not identify

Brooks. Joint App. 570–71. Thereafter, during a break in

Love’s testimony, Love and an agent had lunch at the same

pizzeria where Brooks and his family ate, and the agent

pointed Love out. Joint App. 589. Brooks argues that this

was improper because Love had not finished his testimony.

Brooks Br. 23–24.

The agent’s conduct was clearly improper, and the

incident could have been problematic. However, the District

Court competently handled the situation. Upon the parties’

return to the courtroom, the Court held a hearing outside the

presence of the jury to discuss what had occurred during the

break. Since Love had not been able to identify Brooks in the

courtroom prior to the incident, the Court dismissed any

suggestion of a tainted identification and allowed the

government to continue Love’s direct examination. Joint

App. 595-96. Thereafter, Love was not asked to identify

Brooks, nor did he identify Brooks at any point during trial.

See Joint App. 594–95.

Brooks also argues that Love falsely testified that he

had read Brooks’ name on Brooks’ name tag or badge, Joint

App. 581. That testimony was undermined by other officers

who testified that VIPD officers’ badges have numbers, but

no names and that names are not displayed on uniforms. See

Joint App. 1657–58. However, that conflicting testimony

only raised a credibility issue that the jury was free to resolve.

Moreover, Brooks fails to explain why the officers’ testimony

should be given more weight than Love’s, and we agree with

the District Court’s decision to refrain from usurping the role

of the jury by attempting to resolve this conflict in Brooks’

favor. See United States v. Richardson, 658 F.3d 333, 337

(3d Cir. 2011) (“[I]t is the jury’s province . . . to make

credibility determinations and to assign weight to the

evidence.”); United States v. Prejean, 517 F. App’x 107, 109

(3d Cir. 2013) (jury free to discredit witness’s testimony and

instead believe evidence offered by other party).

Moreover, even if we assume that Love was not

truthful about seeing Brooks’s name on his badge, the jury

was free to accept the balance of Love’s testimony. See

United States v. Merlino, 349 F.3d 144, 160 (3d Cir. 2003)

28

(noting that “a jury can believe some witness’s testimony as

to some aspects, and disbelieve others, or not believe any, or

believe all.”); Barber v. CSX Distribution Svcs., 68 F.3d 694,

700 (3d Cir. 1009) (evaluation of witness credibility is

exclusive function of jury, and jury can always choose to

discredit testimony); McCann v. Miller, 502 F. App’x 163,

170 n.8 (3d Cir. 2012) (jury not required to believe all of the

testimony offered by an interested witness).

2. Elias Deeb—Alleged Suppression of Exculpatory

Evidence

Brooks also argues that the government engaged in

prosecutorial misconduct by omitting an exculpatory portion

of Deeb’s recorded conversation with a federal agent. Joint

App. 447-50. In order for Brooks to succeed, “[t]he evidence

at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must

have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Strickler v.

Greene, 527 U.S. 263, 281-82 (1999). Here, nothing in the

record suggests that the prosecution’s decision to only play a

portion of the conversation between Deeb and a federal agent

amounted to misconduct. The government introduced the full

tape into evidence. On cross-examination, Brooks’s counsel

played the allegedly exculpatory conversation for the jury,

and highlighted the fact that Deeb never discussed Brooks’

involvement in the scheme to obtain a driver’s license.

Accordingly, even if it could be argued that the prosecution

“suppressed” evidence by failing to directly present it to the

jury, it cannot be said that the failure prejudiced Brooks.

3. Troy Willock—Controversy Surrounding Witness

Identity

Lastly, Brooks and Edwards contend that the

prosecution purposefully concealed the controversy

concerning the identity of Troy Willock (“Willock 1”), who

testified in relation to the marijuana theft charged in counts

48 to 52. Willock 1 was a cooperating witness who testified

that in 2008, he saw Brooks “pocket a quantity of marijuana”

taken from a dealer during a “shakedown.” United States v.

29

Edwards, No. 2010-36, 2011 WL 5834241, *3 (D.V.I. Nov.

18, 2011).

Prior to trial, the government learned that the VIPD

had files on two Troy Willocks with different fingerprints and

photographs but the same name and birthday. The

government claims that on the first day of trial, one of the

prosecutors placed copies of Willock 1’s National Crime

Information Center (NCIC) report, along with his Pre-

Sentence Report (PSR) for his pending drug charges, on

defense counsels’ table. Joint App. 2666-68. The

government claims that both reports listed multiple social

security numbers for Willock 1 and disclosed what the

government knew about its witness at that time. Joint App.

2666-68. Defense counsel acknowledged having received the

packets, but no defendant cross-examined Willock 1 about his

identity. Joint App. 2470-22, 2474, 2477; see Joint App. 678-

94.

In or about April 2011, another person using the name

Troy Willock (“Willock 2”) complained to the Social

Security Administration in St. Thomas that Willock 1 had

stolen his identity. Joint App. 2666-68. Later that month,

Willock 1 appeared for sentencing pursuant to a guilty plea in

an unrelated drug distribution case. Willock 1’s attorney

asked to withdraw on grounds that he “had reason to believe

that Willock 1 is not who he claims to be.” Id. Counsel also

stated that he believed that Willock 1 had stolen Willock 2’s

identity.

On November 1, 2011, the District Court held a

hearing to consider the defendants’ motion for a new trial and

determine whether the controversy surrounding Willock 1’s

identity had in any way affected this trial. Following the

hearing, the Court denied the defendants’ motion. The Court

held that: (1) there was no specific evidence that Willock 1

had perjured himself at trial, as he testified that his name was

“Troy Willock” and no conflicting evidence was introduced;

(2) there was not sufficient evidence to show that, if Willock

1 committed perjury, the government knew of it before or

during trial; and (3) if Willock1 committed perjury and the

government was blameless, the perjury did not result in a

30

manifest injustice that would require upsetting the jury’s

verdict. Joint App. 2669.

On appeal, Brooks and Edwards claim that Willock 1’s

alleged perjury amounts to a due process violation because

the government either knew or should have known that

Willock 1 would offer false testimony. They claim that the

District Court abused its discretion in denying their motion

for a new trial because there was a “reasonable likelihood that

the false testimony . . . affected the judgment of the jury.”

United States v. Augurs, 427 U.S. 97, 103 (1976). We reject

their arguments for substantially the same reasons relied on

by the District Court.

For such a claim to succeed, the defendants must

show: “(1) [the government’s witness] committed perjury;

(2) the government knew or should have known of his

perjury; (3) the testimony went uncorrected; and (4) there is

any reasonable likelihood that the false testimony could have

affected the verdict.” Lambert v. Blackwell, 387 F.3d 210,

242 (3d Cir. 2004). This record does not contain any

evidence that would render the District Court’s findings

regarding the alleged perjury clearly erroneous.

Discrepancies regarding his social security number

notwithstanding, there is no direct evidence that Willock 1’s

name was anything other than “Troy Willock” when the

District Court held an evidentiary hearing into the matter. A

finding that the witness did not commit perjury would itself

“preclude a finding of constitutional error.” Lambert, 387

F.3d at 243.

The issue of knowledge is a thornier one. At the time

of trial, the government certainly appears to have been aware

that VIPD records for “Troy Willock” listed two individuals

sharing the same name and birth date -- a fact that the District

Court admitted should have raised red flags. See Edwards,

2011 WL 5834241, at *7 (noting odds that two individuals

share same name and birth date is “far from impossible” but

nonetheless a “highly improbable coincidence”). Moreover,

even if the government did not know that one number

belonged to another person, it also understood from NCIC

reports that one of the two Willocks was claiming two

separate Social Security numbers. Id. at *8. Ultimately, as

31

the District Court noted, it is clear that, at a minimum, the

government should have investigated the identity of its

witness further prior to Willock 1’s appearance at the

defendants’ trial.

However, even assuming arguendo that Willock 1

committed perjury and/or that the government knew or should

have known that, Willock 1’s testimony could not have

prejudiced the defendants’ entire case. His testimony was

only relevant to counts 48 to 52 and those charges were

dismissed at the close of the government’s case. Joint App.

1311. The transaction Willock 1 testified about did not

pertain to the RICO conspiracy charged in count 1 for which

Brooks and Edwards were convicted.

G. Limitations on Cross-Examination and the

Introduction of Character Testimony

Edwards, Brooks, and John-Baptiste all challenge

several of the District Court’s rulings regarding the admission

of evidence. We review these claims for abuse of discretion.

See United States v. Starnes, 583 F.3d 196, 213-14 (3d Cir.

2009). The District Court’s exercise of discretion is

commonly left undisturbed “unless no reasonable person

would adopt [its] view.” Ansell v. Green Acres Contracting

Co., 347 F.3d 515, 519 (3d Cir. 2003) (internal quotation

marks omitted).

1. District Court’s Limiting of Cross-

Examination of Government Witnesses

Three of the government’s witnesses against Edwards

were facing their own criminal charges when they testified.

On cross-examination, Edwards sought to elicit information

from the witnesses relating to any deals each made with the

government in exchange for their cooperation. The District

Court (acting sua sponte) permitted only questions going to

the general contours of the sentence reductions and prohibited

questions relating to the specific lengths of time they faced

without cooperation. The Court’s stated concern was that talk

of specific terms of incarceration would prejudice the jury by

“putting visions of jail and incarceration and penalties” into

the jurors’ minds as they deliberated, and cause confusion of

32

the issues because they would lack details as to the actual

lengths of the witnesses’ sentences.

Edwards claims that the District Court infringed on her

constitutional right to confrontation by limiting the scope of

the cross-examination of three government witnesses to

nonspecific questions regarding the reduction of their

sentences they received in exchange for their cooperation.

The Sixth Amendment gives a defendant the right to

cross-examine the government’s witnesses for possible bias.

Davis v. Alaska, 415 U.S. 308, 316–17 (1974). However, “[a]

district court retains ‘wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable

limits on such cross-examination based on concerns

about . . . harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only

marginally relevant.’” United States v. Mussare, 405 F.3d

161, 169 (3d Cir. 2005) (quoting Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986)). We review any restriction of

cross-examination for abuse of discretion and will reverse

only when the restriction “is so severe as to constitute a denial

of the defendant’s right to confront witnesses against him and

. . . is prejudicial to [his] substantial rights.” United States v.

Conley, 92 F.3d 157, 169 (3d Cir. 1996) (internal quotation

marks omitted). In assessing whether a limitation on cross-

examination violated the Confrontation Clause, we inquire

into: “(1) whether the limitation significantly limited the

defendant’s right to inquire into a witness’s motivation for

testifying; and (2) whether the constraints imposed fell within

the reasonable limits that a district court has the authority to

impose.” Mussare, 405 F.3d at 169. The District Court’s

ruling was well within this parameter.

The District Court limited inquiry only into specific

sentences that could have been imposed if the witnesses had

refused to cooperate—a line of questioning that we have

allowed trial courts to curtail. See Mussare, 405 F.3d at 170

(rejecting “categorical right to inquire into the penalty a

cooperating witness would otherwise have received”).

Indeed, the District Court allowed testimony regarding the

witnesses’ agreements to cooperate with the government and

the fact that they expected to receive more lenient sentences

33

in return. See, e.g., JA 654-55 (exchange between defense

counsel and Moses in which Moses admits, inter alia, that he

“entered into an agreement with the government for what’s

referred to as substantial assistance”). We conclude that there

was no abuse of discretion here.

2. District Court’s Limiting of Cross-

Examination of Deeb

Edwards attempted to attack Deeb’s credibility by

cross-examining him about Deeb’s alleged submission of a

fraudulent insurance claim. Edwards wanted to produce two

witnesses who would have testified about this. The District

Court ruled that such extrinsic evidence was both

impermissible under Fed. R. Evid. 608(b), 16 and barred by

Fed. R. Evid. 403 because it would result in an unnecessarily

confusing “mini insurance trial.” Because Deeb’s

compensation from the FBI and DEA was at issue, the

District Court limited any inquiry related to an insurance

payout to matters relating to his income, and not to the

alleged fraud itself. Edwards’s again argues that the District

Court’s decision to limit defense counsel’s cross-examination

was a violation of her confrontation rights. See Edwards’s

Br. at 19-23.

Edwards’s confrontation argument as to Deeb must

also fail. In denying Edwards’s defense counsel the

opportunity to question Deeb as to his past insurance claim,

the District Court stressed that it had never been established

that Deeb acted fraudulently. See Joint App. A 500-02.

Accordingly, the District Court acted well within its

discretion in concluding that any questions this insurance

16

Rule 608(a) provides that a party may attack a

witness’s credibility “by testimony about the witness’s

reputation for having a character for truthfulness or

untruthfulness, or by testimony in the form of an

opinion about that character.” The rule prohibits

“extrinsic evidence … to prove a specific instance[] of

a witness’s conduct in order to attack or support the

witness’s character for truthfulness….” See United

States v. Murray, 103 F.3d 310, 322 (3d Cir. 1997).

34

claim were potentially confusing, misleading, and risked

unnecessary delay.

3. District Court’s Exclusion of Out-of-

Court Statements

During trial, John-Baptiste intended to have five

witnesses, who were present during the incident with Calixte

testify about that incident. This is the incident we have

discussed above 17 and is the same incident that formed the

basis of the charges against John-Baptiste. John-Baptiste

insisted that his arrest of Calixte was the result of an

altercation in which Calixte refused to move her unlawfully

parked cab and then proceeded to physically attack him. The

proffered testimony was offered to establish that the force

used, the arrest, and the detention, were all reasonable under

the circumstances. Moreover, John-Baptiste intended to use

witnesses’ recollection that, before the altercation with

Calixte, he told the drivers of parked cars “125, 125”— which

the witnesses understood was the fine for parking in the

relevant loading zone ($125). The testimony was intended to

show that he fairly and properly enforced VIPA rules.

The District Court sustained hearsay objections and

limited the witnesses’ testimony only to what they saw, rather

than what they heard. The court also rejected John-Baptiste’s

argument that the statements were verbal parts of acts

showing the state of mind of both parties and therefore not

offered for the truth of the matter asserted. Because this

incident, and Calixte’s post-arrest complaints, form the basis

of the allegations against John-Baptiste, he argues that the

District Court’s “mechanistic[]” application of the hearsay

rule denied him due process, citing Chambers v. Mississippi,

410 U.S. 284 (1973). Jean-Baptiste Br. at 33-34.

John-Baptiste’s argument relies on two exceptions to

the hearsay rules. First, he claims that any statements he

sought to introduce were not hearsay because they constituted

“verbal acts”—a legally operative statement, like making a

contract or a threat. United States v. Tyler, 281 F.3d 84, 98

(3d Cir. 2002). Second—as the government concedes—John-

17

See Section I.A.

35

Baptiste’s argument could also be characterized as invoking

the state of mind exception to the hearsay rule.

Under either of these theories, John-Baptiste’s

arguments would fail. First, it is unclear how any of the

testimony that John-Baptiste sought to introduce—which, he

explains would have gone to show the “reasonableness of the

actions of the officer”—could be characterized as “verbal

acts.” See, e.g., United States v. Tyler, 281 F.3d 84, 98 (3d

Cir. 2002) (“The hearsay rule excludes … statements which

themselves ‘affect[] the legal rights of the parties or [are]

circumstance[s] bearing on conduct affecting their rights.’”

(quoting Fed. R. Evid. 801(c))). Moreover, to the extent any

testimony would have gone to show either John-Baptiste’s or

Calixte’s frame of mind during their exchange, the

government correctly notes that other non-hearsay testimony

regarding observations adequately informed the jurors of the

confrontation.—“[John-Baptiste] approached her car; she

threw a drink can at him; he reached for the door handle; he

pulled her out; she kicked him; they scuffled; he put

handcuffs on her….” Gov. Br. at 33. Accordingly, the

District Court acted within the bounds of its discretion when

it foreclosed the use of this testimony. 18

4. District Court’s Refusal to Allow

John-Baptiste to Cross- Examine VIPA

Chief Wilkes on Calixte’s Prior Statements

On cross-examination of VIPA Chief Edred Wilkes,

John-Baptiste’s defense counsel asked a series of questions

attempting to show that Calixte had made statements

inconsistent with her prior testimony. The District Court

refused to allow this line of questioning because it constituted

18

Moreover, John-Baptiste’s argument misses the force of the

Calixte incident. That incident resulted in criminal charges

not because of the initial seizure and detention which may

have been appropriate as well as legal. However, despite the

legality of the initial arrest, as explained above, it is clear on

this record that at some point after she was arrested, John-

Baptiste continued Calixte’s detention in order to extort a

ransom for her release. That is the criminality, not the initial

arrest and detention.

36

improper impeachment under Fed. R. Evid. 613. Rule 613

required that Calixte first be given the opportunity to “explain

or deny” any extrinsic evidence of a prior inconsistent

statement. Joint App. 1120-23. John-Baptiste claims that the

District Court’s ruling was erroneous and contributed to the

denial of his due process rights. The argument is meritless as

the Court’s ruling was clearly consistent with Rule 613 and

well within the Court’s discretion. See United States v.

Saada, 212 F.3d 210, 221 (3d Cir. 2000) (“Rule 613 requires

that a witness be given the opportunity to admit or deny a

prior inconsistent statement before extrinsic evidence of that

statement may be introduced.”).

5. Government’s use of

Deborah Harrigan’s

Testimony to Rebut

Edwards’s Alibi Evidence

Edwards claims that the District Court erred by

permitting the government to introduce testimony from

Deborah Harrigan, because defense counsel had not

received adequate notice of her testimony as required

by Fed. R. Crim. P. 12.1. Edwards Br. at 6-7.

Harrigan is a VIPD payroll custodian who

rebutted Edwards’s claim that she was away for nearly

all of 2005. Harrigan testified that Edwards worked

VIPD shifts from August 22 through August 31, 2005.

Edwards did provide notice of an alibi in accordance

with Fed. R. Crim. P. 12(a) as to September 4-18, 2005

(when the drug transaction alleged in counts 3 and 4

took place). However, at trial, Edwards testified that

she was away for nearly all of 2005 and that “from

August to September” she was in Antigua. Joint App.

1760.

The court properly allowed the government to

expand the scope of Harrigan’s testimony to address

Edwards’ expanded alibi. Federal Rule of Criminal

Procedure 12.1(3) grants courts the discretion to admit

or prohibit a witness’s testimony if a party fails to

provide the notice required by 12.1(a). The court may

grant an exception to the notice requirements “[f]or

good cause.” Id. 12.1(d). Accordingly, the rule

provides the district court with discretion and acts to

37

prevent surprise at trial. Harrigan’s testimony was

properly admitted in response to Edwards’ own failure

to give adequate notice for her alibi. United States v.

Carter, 756 F.2d 310, 312 (3d Cir. 1985). Moreover,

Edwards was paid for the period in question, and

presumably knew that time sheets reflecting that she

was on duty during that period would be available to

offer into evidence. Thus, she cannot seriously claim

that she was surprised by Harrigan’s testimony.

Accordingly, we conclude the District Court acted

within its discretion in allowing Harrigan’s testimony

regarding Edwards’s whereabouts in August 2005

without prior notice from defense counsel.

V. Conclusion

For the foregoing reasons, we will affirm the District

Court’s judgment of conviction as to each defendant. We will

reverse the District Court’s ruling acquitting Brooks and

Edwards of conspiring to distribute a controlled substance

(count 46). We also reverse the District Court’s ruling

acquitting Brooks and Edwards of extortion and conspiracy to

extort (counts 5, 6, 10, 11, and 12). Accordingly, we will

vacate and remand with directions that the District Court

reinstate the jury’s verdict of conviction and proceed to

resentencing.

38