United States v. Lopez

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

10-24-2001

USA v. Lopez

Precedential or Non-Precedential:

Docket 00-1812

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Filed October 24, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 00-1812, 00-1848, 00-1888, 00-1938 AND 00-1992

UNITED STATES OF AMERICA

v.

LOUIS LOPEZ, JR.,

Appellant No. 00-1812

UNITED STATES OF AMERICA

v.

HERNAN NAVARRO,

Appellant Nos. 00-1848 and 00-1992

UNITED STATES OF AMERICA

v.

JUAN CRISPIN,

Appellant No. 00-1888

UNITED STATES OF AMERICA

v.

DELROY JOSIAH,

Appellant No. 00-1938

On Appeal from the District Court of the Virgin Islands

(D.C. Criminal No. 99-cr-00016-1,2,3,4)

District Judge: Honorable Raymond L. Finch, Chief Judge

Argued May 14, 2001

Before: McKEE, RENDELL and BARRY, Circuit Judges ,

(Filed: October 24, 2001)

Warren B. Cole, Esq. [ARGUED]

Hunter, Colianni, Cole & Bennett

1138 King Street, Suite 301

Christiansted, St. Croix

USVI 00820

Counsel for Appellant

Louis Lopez, Jr.

Patricia Schrader-Cooke, Esq.

[ARGUED]

Office of Federal Public Defender

P.O. Box 3450

Christiansted, Saint Croix

USVI 00822

Counsel for Appellant

Hernan Navarro

Jean-Robert Alfred, Esq. [ARGUED]

27 & 28 King Cross Street

Christiansted, St. Croix

USVI 00820

Counsel for Appellant

Juan Crispin

Wilfredo A. Geigel, Esq. [ARGUED]

Law Offices of Wilfredo A. Geigel

P.O. Box 25749, Gallows Bay

Christiansted, St. Croix

USVI 00824

Counsel for Appellant

Delroy Josiah

2

Bruce Z. Marshack, Esq. [ARGUED]

Office of United States Attorney

1108 King Street, Suite 201

Christiansted, St. Croix

USVI 00820

Counsel for Appellee

United States of America

OPINION OF THE COURT

RENDELL, Circuit Judge.

Beginning in the late hours of September 22, 1998, and

ending early the following morning, four men invaded three

homes in St. Croix, Virgin Islands. By the time the four had

completed their crime spree, Orlando Orta was dead and

Concepcion Garcia Orta, James Sorhaindo, Reynoldson

Ferrol, Jacklyn Tredway, and Thomas Barrows had all been

assaulted. After an investigation, the police arrested four

men: Juan Crispin, Delroy Josiah, Louis Lopez, Jr., and

Hernan Navarro. Their trial and conviction form the basis

for this appeal.

Crispin, Josiah, Lopez, and Navarro ("the defendants")

raise a variety of issues. The most significant of these

affects all four defendants and presents an issue of first

impression: does Pinkerton liability1 apply in the Virgin

Islands? The defendants also challenge various evidentiary

rulings and the sufficiency of the evidence of carjacking and

gun possession. In addition, the defendants argue that the

District Court erred by not conducting voir dire of a juror

to determine bias, and by not granting a hearing in

response to a charge of prosecutorial misconduct. 2 On the

_________________________________________________________________

1. As will be discussed in more detail later in the opinion, "Pinkerton

liability" is a theory of vicarious criminal liability set forth in

Pinkerton v.

United States, 328 U.S. 640 (1946).

2. Defendants make two additional challenges, which we believe merit

very little discussion. First, they argue that the District Court had no

jurisdiction because the crimes charged were not"of the same or similar

character or part of, or based on, the same act or transaction or two or

3

issue involving Pinkerton liability, we find that the doctrine

does exist in the Virgin Islands. With respect to this issue,

and all other issues raised, we will affirm the rulings of the

District Court.

I. FACTS

The trial involved defendants' conduct at three different

residential locations in St. Croix:

A. 338 Estate Mount Pleasant

On the evening of September 22, 1998, a group of men

invaded 338 Estate Mount Pleasant, the home of James

Sorhaindo. Sorhaindo's friend, Reynoldson Ferrol, was also

in the house at the time. The two were beaten and robbed

by three masked assailants. Sorhaindo saw the face of one

assailant, and, at trial, he testified that he thought that

Navarro was his attacker. Sorhaindo also identified two

watches and a chain that the police found outside the

window of the third crime scene.

There were two eyewitnesses associated with this crime,

Eugenio Guadalupe and Maha Joseph. Guadalupe testified

that she saw Josiah, Crispin and Lopez from her residence,

Building Five of the Paradise Project, which is in the

vicinity of 338 Estate Mount Pleasant, around the time the

crime occurred. Joseph testified that he lived in Building

Four of the Paradise Project, and that he had been

questioned regarding what he had seen around that same

time. He stated that he had gone to the police station and

_________________________________________________________________

more acts or transactions connected together or constituting part of a

common scheme or plan," which is required by statute in order to give

the District Court concurrent jurisdiction over the territorial crimes. 48

U.S.C. S 1612. Based on the ample evidence demonstrating the

interconnected nature of the crimes, we find this claim to be without

merit. Second, the defendants object to the use of identification

evidence.

We note that the defendants do not challenge anything specific about the

identifications in this case, but instead focus on the lack of reliability

of

identifications in general. Thus, in order to find in their favor on this

issue, we would have to find that eyewitness identifications are

inherently unreliable and cannot be admissible in court. We decline to

do so.

4

told them what he had seen. However, he denied having

identified the defendants, instead expressing his"love" to

the defendants in the courtroom and insisting that he had

been forced to testify. A police officer, Lieutenant Secundino

Roman Cruz, then took the stand to rebut Joseph's

testimony, stating that Joseph had come to the police

station on September 23, 1998, the day after the crime,

and identified Crispin, Josiah and Lopez as having been in

the vicinity of 338 Estate Mount Pleasant around the time

of the crime.

B. 56 Estate Enfield Green

In the early morning hours on September 23, 1998,

Jackie Tredway and Thomas Barrows were outside

Tredway's residence, 56 Estate Enfield Green, when they

were attacked, taken into the house, beaten with a gun,

and kicked repeatedly. Their assailants told them that if

they did not hand over their money, they would be killed.

The intruders also insisted that Tredway give them the keys

to her van.

After the attack, Tredway looked at photo spreads and

picked out two men who she said bore a resemblance to

one of her assailants. Neither of those pictures depicted any

of the defendants. However, in court, she did identify one

assailant, Crispin, whose face she had seen under a

flashlight.3 She also testified that she had seen Crispin in

a store and recognized him then as having been one of the

intruders. She added that when she saw the picture of

Crispin in the paper, she knew he was the man who had

attacked her.

Tredway also identified items and photos of items that

the police had recovered, including her car keys. Some of

these items were found in her van, which had been

abandoned next to one of the crime scenes, while others

were recovered either at the site of the third crime scene or

at Lopez' house.

_________________________________________________________________

3. Tredway noted that because the incident occurred shortly after

Hurricane Georges, her home was without power.

5

C. 66 Estate Enfield Green

The most serious crimes occurred at the last location, 66

Estate Enfield Green, the home of Concepcion Garcia Orta

and her husband Orlando Orta. The couple was asleep in

bed. The assailants entered the home and shot at the

couple. Mrs. Orta's hand was mutilated by one gunshot;

another killed her husband. The intruders stole cash, a

chain and a watch.

At trial, Mrs. Orta identified the watch that had been

stolen, which the police discovered during their search of

Josiah's residence. The police recovered many items at the

Orta home that were taken from the two previous crime

scenes, including a camera and minicassette player that

Tredway later identified as hers. The police also found a

knife outside the Ortas' bedroom window, with a fingerprint

matching Navarro's. Additionally, a shoe print was lifted

matching Josiah's boot print, and a slug found in the door

was determined to have come from Crispin's gun. The

doctor who treated Mrs. Orta in the emergency room also

testified regarding her injuries, and photos of her hand

were introduced into evidence over a defense objection that

they were prejudicial and should not be admitted based on

Fed. R. Evid. 403.

D. Searches of Defendants' Homes

In a series of searches of the defendants' homes, the

police uncovered a variety of incriminating items. In the

home of Lopez, the police found a bag with Sorhaindo's

name on it containing two VCRs, a striped bag with

Tredway's van keys in it, ammunition similar to that found

at the Orta home, slugs matching those found both at the

Orta home and Josiah's residence,4 and clothing matching

the descriptions given by victims. In Josiah's residence,

police discovered boots with a print matching that found at

the Orta home, a watch later identified as Mr. Orta's, and

slugs matching both those found at the Orta home and at

Lopez' home.5 And in the residence that Navarro shared

_________________________________________________________________

4. At trial, Gregory Bennerson, a ballistics expert, testified that this

type

of slug was very unusual -- he had only seen that type of ammunition

six to eight times during his sixteen year career.

5. Josiah had a running commentary with police during the search, and

said, "You should have come yesterday, everything was here yesterday.

The big one was here yesterday."

6

with other family members, the police found a camouflage

jacket with a gun in the pocket and camouflage pants and

a t-shirt, clothing that matched the victims' descriptions of

the assailants' clothing.6

E. Crispin's Arrest

On October 20, 1998, police officers were responding to

a complaint near Paradise Project when they spotted a

Nissan driven by Crispin. Once the officers were in pursuit,

the Nissan turned a corner and the police saw a person flee

the vehicle. After unsuccessfully chasing the individual,

they saw the car still had someone in it. The police

discovered Crispin in the driver's seat, sitting with the seat

reclined back in an apparent attempt to hide. Crispin did

get out of the car after the police instructed him to do so,

but he aroused further suspicion by throwing his keys

inside the locked car as he was closing the door. The police

officers then spotted what appeared to be marijuana on the

front seat and called for back-up. Crispin told Sergeant

Pemberton, one of the responding officers, that there was a

gun under the seat. A forensics officer came to the scene

and recovered a weapon and ammunition from under the

driver's seat. At trial, ballistics expert Gregory Bennerson

testified that a slug from the Orta home had been fired

from this same gun, and also that the same gun had

expelled a cartridge onto the porch under the window of

that home.

II. PROCEDURAL HISTORY

On April 6, 1999, defendants Crispin, Josiah, Lopez and

Navarro were charged in a twenty-two count indictment. At

their consolidated trial, victims Ferrol, Sorhaindo, Tredway,

Barrows and Orta were among those witnesses that

testified on behalf of the government. Eyewitnesses

Guadalupe and Joseph took the stand, as did Lieutenant

Cruz, who testified regarding what Joseph had originally

told the police. Another police officer, Jonathan Hitesman,

testified regarding the collection of evidence at the Orta

_________________________________________________________________

6. There is no information in the record regarding a search of Crispin's

home.

7

home, where items from Tredway's home, a knife with

Navarro's fingerprint, a slug from Crispin's gun, and a shoe

print matching Josiah's boot were found. In addition, the

government presented four expert witnesses: Sandra

Wiersma, who identified the boot print found outside 66

Enfield Green as matching Josiah's; Gregory Bennerson,

who testified as a ballistics expert and determined that

slugs found at the Orta home came from Crispin's gun, and

were the same types of unusual slugs found at Lopez'

house; and Kenneth Getz and John Massey, who both

stated that the fingerprint discovered at the Orta home

matched Navarro's. The defendants did not take the stand,

but did present witnesses on their behalf.

The defendants were found guilty by a jury of murder,

burglary, robbery, possession of a firearm during the

commission of crimes of violence, assault with the intent to

commit murder and robbery, and mayhem with intent to

commit a felony, all of which were charged under Virgin

Islands statutes. Navarro was found guilty of threatening

witnesses Sorhaindo and Ferrol, and Crispin alone was

convicted of possession of a firearm pursuant to 14 V.I.C.

S 2253(a). All defendants were found guilty of carjacking

and of possessing a firearm in relation to the commission of

carjacking, both of which are federal crimes.

The defendants were sentenced to life without parole on

the murder charge and additional years on the other

counts. They filed motions for new trials, which were

denied. Timely Notices of Appeals were filed. These matters

were consolidated on January 26, 2001.

III. DISCUSSION

The District Court had jurisdiction under 48 U.S.C.

S 1612, commonly known as the Organic Act:

[Along with jurisidiction over federal criminal offenses,

the District Court of the Virgin Islands has] concurrent

jurisdiction with the local courts of the Virgin Islands

over those offenses against the criminal laws of the

Virgin Islands which are of the same or similar

character or part of, or based on, the same act or

transaction or two or more acts or transactions

8

connected together or constituting part of a common

scheme or plan . . . .

Id. We have appellate jurisdiction under 28 U.S.C. S 1291.

A. Pinkerton Liability

In Pinkerton v. United States, 328 U.S. 640 (1946), the

Supreme Court held that the criminal act of one

conspirator in furtherance of the conspiracy is"attributable

to the other[ ] [conspirators] for the purpose of holding them

responsible for the substantive offense." Id. at 647. This

aspect of Pinkerton, commonly referred to as the Pinkerton

theory of liability or the Pinkerton doctrine, permits the

government to prove the guilt of one defendant through the

acts of another committed within the scope of and in

furtherance of a conspiracy of which the defendant was a

member, provided the acts are reasonably foreseeable as a

necessary or natural consequence of the conspiracy. Id. at

647-48.

At trial, the government asked that the jury be given a

Pinkerton instruction. The District Court granted the

government's request, finding that Pinkerton's "reasoning

applying to federal statutes could also apply to local

statutes." The Court gave the following instruction to the

jury:

Counts I through XVII and Counts XX and XXI charge

the defendants as principal, aiders and abettors and

under a theory of criminal responsibility call[ed]

Pinkerton Liability. In order to sustain its burden of

proof for Pinkerton Liability, the Government must

prove the three essential elements beyond a reasonable

doubt:

1. That a conspiracy existed in that there was an

agreement between individuals to align

themselves with others in the criminal venture;

2. That having so aligned themselves together, one

or more of the others of them acted to commit

the substantive offense; and

3. That the substantive offense was committed in

furtherance of the criminal venture in which the

defendant had aligned himself with others.

9

It is not required that a conspiracy be charged in the

indictment for Pinkerton liability to apply, as long as

the evidence at trial establishes beyond a reasonable

doubt that a conspiracy existed and that the

substantive offense was committed in furtherance of

the conspiracy. . . .

Defendants make two separate arguments that the jury

should not have been instructed that Pinkerton liability

could apply to territorial crimes. First, they argue that

when conspiracy has not been charged, there can be no

Pinkerton liability. Though this is our first opportunity to

address this issue, we have little difficulty following our

sister circuit courts of appeals in determining that a

conspiracy need not be charged in order for Pinkerton's

doctrine to apply. E.g., United States v. Chairez, 33 F.3d

823, 827 (7th Cir. 1994) ("[T]he absence of a conspiracy

charge does not preclude the district court from applying a

Pinkerton theory . . . if the evidence so suggests."); Thomas

v. United States, 748 A.2d 931, 934 (D.C. Cir. 2000)

("[E]very federal court that has decided[whether Pinkerton

can be charged when there is no conspiracy charge in the

indictment] has held that such an instruction is proper.").

The more significant challenge leveled by defendants is

their contention that the Pinkerton doctrine does not apply

in trials involving Virgin Islands law. In examining the case

law, Pinkerton liability has only been mentioned in cases in

the Virgin Islands involving federal offenses. See, e.g.,

United States v. Koenig, 53 F. Supp. 2d 803, 808 (D.V.I.

1999). Here, the jury was given a Pinkerton instruction for

all crimes, not just the federal offenses.

The defendants argue that the Virgin Islands aiding and

abetting statute, 14 V.I.C. S 11,7 sets forth the only ways a

_________________________________________________________________

7. The aiding and abetting statute, 14 V.I.C.S 11, provides:

(a) Whoever commits a crime or offense or aids, abets, counsels,

commands, induces or procures its commission, is punishable as a

principal.

(b) Whoever willfully causes an act to be done which if directly

performed by him or another person would be a crime or offense, is

punishable as a principal.

Id.

10

defendant can be held criminally responsible for the acts of

another.8 The government, however, contends that

"[n]othing in the Virgin Islands Code prohibits the

application of Pinkerton to territorial crimes." Gov't Br. at

41. Our review of Virgin Islands case law reveals that

Pinkerton has never been explicitly applied or rejected. We

therefore are confronted with an issue of first impression.

Because we find that there is no case law governing this

precise issue, we look to 1 V.I.C. S 4, which provides:

The rules of the common law, as expressed in the

restatements of the law approved by the American Law

Institute, and to the extent not so expressed, as

generally understood and applied in the United States,

shall be the rules of decision in the courts of the Virgin

Islands in cases to which they apply, in the absence of

local laws to the contrary.

Id. We are dealing with criminal law, so there is no

Restatement to consult. We thus must consider whether

Pinkerton is a "rule[ ] of the common law, . . . as generally

understood and applied in the United States . . . ." Id.

Without a doubt, Pinkerton is part of federal common law.

E.g., United States v. Thirion, 813 F.2d 146, 151 (8th Cir.

1987) ("[C]oconspirator liability does not have its genesis in

this statute, but rather in the common law. See Pinkerton,

328 U.S. at 647."). In addition, it is the rule in the majority

of jurisdictions. See, e.g., State v. Walton, 630 A.2d 990,

997 (Conn. 1993) ("Pinkerton liability is now a recognized

part of federal criminal conspiracy jurisprudence.").

Further, we can find no local law to the contrary. The

aiding and abetting statute makes punishable certain acts

one commits as a principal but does not speak to, or rule

out, co-conspirator punishment for an offense. Also, we do

_________________________________________________________________

8. The defendants also rely on Gov't of the Virgin Islands v. Aquino, 378

F.2d 540 (3d Cir. 1967), to support their argument concerning Pinkerton

liability. However, this case is inapposite. Aquino did not address co-

conspirator liability at all, making no mention of the application of

Pinkerton liability in the Virgin Islands. Rather, it merely clarified

that

the effect of the Virgin Islands aiding and abetting statute, 14 V.I.C. S

11,

was to abolish common law distinctions between accessories before and

after the fact and principals in the first and second degree. Id. at 552-

53.

11

not view the fact that the specific criminal offenses at issue

punish the commission of the offense, without including

accomplice or other liability, as reflecting a local law to the

contrary.

Hence, we conclude that the Pinkerton doctrine does

apply in the Virgin Islands.9 Thus, we find that the District

Court did not err in instructing the jury that they could

convict the defendants under the Pinkerton doctrine.

B. Rule 403 Challenge to the Admissibility of

Photographs

The defendants argue that the District Court erred in

admitting photographs of Mrs. Orta's mutilated hand,

instead of relying simply on her testimony and that of the

doctor who treated her in the emergency room. They argue

that the admission violated Fed. R. Evid. 40310 for two

reasons. First, the defendants contend that insofar as there

was other evidence of the injuries, the probative value was

low. Second, they assert that given the photographs'

graphic nature, the prejudicial value was high. The

government responds that because the photographs related

to the charge of mayhem, which requires a showing that

Mrs. Orta was "seriously disfigure[d] . . . by . . . mutilation"

or that a body part was destroyed or disabled, the evidence

was highly probative and, moreover, not unfairly

prejudicial.

We have previously held that "[a] district court has broad

discretion to determine the admissibility of relevant

evidence in response to an objection under Rule 403."

United States v. Balter, 91 F.3d 427, 442 (3d Cir. 1996). We

have also stated: "If judicial restraint is ever desirable, it is

when a Rule 403 analysis of a trial court is reviewed by an

_________________________________________________________________

9. Of course, if the legislature of the Virgin Islands does not believe

that

Pinkerton should apply to crimes charged under Virgin Islands statutes,

it can simply enact a "local rule to the contrary."

10. Rule 403 states: "Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of

cumulative evidence."

12

appellate tribunal." United States v. Long , 574 F.2d 761,

767 (3d Cir. 1978). We review for abuse of discretion.

United States v. Driggs, 823 F.2d 52, 54 (3d Cir. 1987).

We agree with the District Court that the photographs

had value insofar as they were the best evidence of

mutilation available, and we see nothing in the record to

indicate that they were unfairly prejudicial. Therefore, we

find that the District Court did not abuse its discretion. See

In re Air Crash Disaster Near New Orleans, 767 F.2d 1151,

1154 (5th Cir. 1985) (finding no abuse of discretion in

admitting photographs of bodies of plane crash victims with

third degree burns where conscious pain and suffering at

issue); United States v. Brady, 579 F.2d 1121, 1129 (9th

Cir. 1978) (noting that photos from crime scene only

inadmissible when picture of such "gruesome and

horrifying nature" that danger of inflaming jury outweighed

its probative value).

C. Rule 16 Challenge: Failure to Supply Written

Summary of Expert Testimony

The government called FBI fingerprint specialist Kenneth

Getz to offer expert testimony that the fingerprint found at

the Orta home was Navarro's. The defense objected to his

testimony at trial on the ground that it did not receive the

required information in advance pursuant to Fed. R. Crim.

Pro. 16(a)(1)(E), which states:

At the defendant's request, the government shall

disclose to the defendant a written summary of

testimony that the government intends to use under

Rules 702, 703, or 705 of the Federal Rules of

Evidence during its case-in-chief at trial. . . . The

summary provided under this subdivision shall

describe the witnesses' opinions, the bases and the

reasons for those opinions, and the witnesses'

qualifications.

Id. The District Court agreed with the government's

argument that the defense's failure to raise the issue earlier

and "trigger the resources of the court . . .[did] not sit well

with [it]," and, because the defense did not fulfill its

"obligation to ask for a Daubert hearing," it would admit the

testimony.

13

Navarro asserts that by only producing in advance of trial

a two-page Report of Examination regarding the expert's

examination of the fingerprint found on the knife, without

information regarding "the bases and the reasons" for the

expert's opinion, and by not proffering the expert's

qualifications until trial, the government violated Rule

16(1)(a)(E).

The government does not dispute that inadvertently it did

not provide its expert witness's qualifications until trial.

However, the government notes that the witness's resume

was immediately produced when the government became

aware, via a defense motion to exclude expert testimony,

that it had not been provided.

With respect to Navarro's contention that the government

failed to list the bases and the reasons for the expert's

opinion, it argues that due to the content of the expert

testimony, that is, the determination of "whether the

fingerprints found on a knife at the murder scene matched

or didn't match [Navarro's] known prints," Gov't Br. at 70,

the information provided was sufficient. The government

contends that, in any event, the defense did not raise this

issue of discovery noncompliance until trial in a strategic

effort to exclude the testimony rather than allow the

government time to produce the missing information. And

more important, the government maintains that Navarro

cannot demonstrate any prejudice that resulted.

We will assume, without deciding, that by not providing

the expert witness's resume to the defense until trial, and

only providing the defense with a brief summary of the

expert report, the government violated the requirements of

Rule 16(a). Accordingly, we must look to Rule 16(d)(2),

which addresses the situation in which a party fails to

comply with a discovery request. It states only that, upon

the court becoming aware of the failure, it "may order such

party to permit the discovery or inspection, grant a

continuance, or prohibit the party from introducing

evidence not disclosed, or it may enter such other order as

it deems just under the circumstances." Id. In other words,

on its face, the Rule does not require a district court to do

anything -- Rule 16 merely states that the court"may" take

such actions.

14

In determining whether we should second guess the

District Court's view of what was "just," we will consider

any harm caused by the government's violation. In United

States v. Miller, 199 F.3d 416 (7th Cir. 1999), the Court of

Appeals for the Seventh Circuit held that, where the

government failed to properly disclose expert witness

testimony, a new trial was not warranted unless"the

remedy offered by the district court was inadequate to

provide [the defendant] with a fair trial." Id. at 420. In

addition, the Court of Appeals for the Ninth Circuit held

that the government's failure to comply with Rule 16 only

compelled reversal where the appellant "demonstrate[d]

prejudice to substantial rights [where] [t]he prejudice that

must be shown to justify reversal for a discovery violation

is a likelihood that the verdict would have been different

had the government complied with the discovery rules, not

had the evidence [been] suppressed." United States v.

Mendoza, 244 F.3d 1037, 1047 (9th Cir. 2001). In

accordance with these holdings, we require a showing that

the District Court's actions resulted in prejudice to the

defendant.

We need not specify the parameters of this inquiry

because, here, Navarro makes no allegation of prejudice. He

does not attempt to explain how the government's failure

resulted in a denial of his right to a fair trial. Due to the

absence of a showing of prejudice caused by the

government's failure to comply with 16(a)(1)(E), and given

the discretion explicitly provided to the District Court by

Rule 16's language, we decline to grant the defendant the

extreme remedy of a new trial.

D. Admission of Testimony Pursuant to Fed. R. Evid.

801(d)(1)(C)

Maha Joseph, a government witness, was subpoenaed to

testify that he had told the police, on the day after the

crime, that he had seen three of the defendants in the area

of the crime during the time the homes were invaded. On

the day he was called to testify, Joseph failed to appear in

court. Once he was apprehended by the United States

Marshal and brought to court to testify, he denied making

any such statement to the police and was declared a hostile

witness. The government then sought to impeach him

15

about the statement he had made to the police regarding

the defendants.

After Joseph had testified, the government called

Lieutenant Cruz to the stand and questioned him about

Joseph's prior statement. The defense objected to the

admission of his testimony on the grounds that it was

hearsay. The District Court permitted Cruz to testify,

finding that as long as the testimony was limited to the

statement regarding the identification, it fell under Fed. R.

Evid. 801(d)(1)(C). Cruz testified that Joseph had reported

to the police that he had seen the defendants on the night

of the crime in the vicinity of the crime scene. We review

the admission of his testimony for abuse of discretion.11

United States v. Brink, 39 F.3d 419, 425 (3d Cir. 1994).

Fed. R. Evid. 801(d)(1)(C) provides: "A statement is not

hearsay if . . . the declarant testifies at the trial or hearing

and is subject to cross-examination concerning the

statement, and the statement is . . . one of identification

made after perceiving the person." The defendants argue

that the Rule does not contemplate identifications of this

nature but, rather, pertains to the selection of defendants

from lineups or photo spreads. They also contend that

testimony regarding when and where Joseph saw the

defendants did not qualify as an identification. The

_________________________________________________________________

11. Defendants also assert that the District Court erred by not

conducting a hearing in response to their claim that the government

committed prosecutorial misconduct by calling Maha Joseph to the

stand knowing that he would give unfavorable testimony. They argue

that the government intentionally put Joseph on the stand in order to

make Detective Cruz' hearsay statements admissible through

impeachment, which constituted misconduct because impeachment

"may not be permitted where employed as a mere subterfuge to get

before the jury evidence not otherwise admissible." United States v.

Webster, 734 F.2d 1191, 1192 (7th Cir. 1984). The District Court

concluded that because Joseph "had not previously testified in any

manner inconsistent with his statement" and there was no "indication he

had told the Government he intended to recant his prior statement," any

conclusion by the government regarding how Joseph would testify would

have been nothing but "a guess." We see no basis in the record to

conclude that the prosecution engaged in misconduct, and thus will not

disturb the District Court's ruling.

16

government responds that an identification without the

when and where would be nonsensical. It also argues that

the Rule was designed to encompass exactly this type of

testimony (and not just lineup and photo spread

identifications).

Statements of prior identifications are admitted as

substantive evidence because of "the generally

unsatisfactory and inconclusive nature of courtroom

identifications as compared with those made at an earlier

time under less suggestive conditions." Fed. R. Evid. 801,

advisory committee notes. We noted in Brink, 39 F.3d at

426, that evidence is generally admitted under 801(d)(1)(C)

"when a witness has identified the defendant in a lineup or

photospread, but forgets, or changes, his testimony at

trial." We explained that this Rule then permits a third

person to testify regarding the previous statements of the

eyewitness. Id.; see also United States v. Blackman, 66 F.3d

1572, 1578 (11th Cir. 1995) (holding that testimony of FBI

Agent regarding bank teller's out of court identification was

properly admitted under 801(d)(1)(C)); United States v.

O'Malley, 796 F.2d 891, 899 (7th Cir. 1986) (stating that

FBI Agent testimony regarding prior statements of witness

who recanted at trial was admissible); United States v.

Jarrad, 754 F.2d 1451, 1456 (9th Cir. 1985) (holding that

Agent's testimony as to witness's identification was not

hearsay).

Certainly the purpose of the Rule seems to be fulfilled

here, where Joseph abandoned his previous knowledge of

the defendants at trial. While we have yet to construe Rule

801(d)(1)(C) as covering this type of identification, that is,

one that consists of a person coming forward after a crime

is committed and saying he saw a particular person at a

certain place and time, viewing both the Advisory

Committee notes to Rule 801 and our own case law, we see

no basis to conclude that Rule 801 does not extend to such

situations. Any concerns regarding conditions or

circumstances that might bear on reliability are matters

going to the weight of the evidence, which can be addressed

on cross-examination, and should not affect the

admissibility of the statement. In any event, certainly the

trial judge did not abuse his discretion, nor was the error

17

prejudicial in light of the overwhelming evidence against the

defendants. See Fed. R. Evid. 52(a) ("Any error, defect,

irregularity or variance which does not affect substantial

rights shall be disregarded."); United States v. Adams, 252

F.3d 276, 281 (3d Cir. 2001) ("In practice, Rule 52(a)

applies when the defendant has made a timely objection to

an error, and the court of appeals normally engages in a so-

called "harmless error" inquiry to determine whether the

error was prejudicial to the defendant, with the government

bearing the burden of persuasion on the issue of

prejudice."). We cannot imagine that the defendants would

not have been found guilty but for the detective's testimony

regarding Joseph's identification. Even if the statement was

arguably inadmissible, its admission was harmless.

E. Admission of Clothing Seized From Navarro's Home

Navarro challenges the admission into evidence of items

seized from his home, including a camouflage t-shirt, jacket

and pants, as well as a .380 pistol. He argues that the

District Court should not have admitted the evidence

because it was barred by Fed. R. Evid. 402 and 403.

Navarro contends that under Rule 402, the items were not

relevant because he shared the home, and the items were

not necessarily his but could have belonged to others.

Additionally, because he contends that the ownership of the

items could not be ascertained with certainty, he argues

that their admission subjected him to unfair prejudice.

This claim is without merit. Navarro's argument does not

really implicate issues of relevancy under Fed. R. Evid. 402,

or of prejudice under Fed. R. Evid. 403 but, rather, it goes

only to the weight of the evidence. Defense counsel had the

opportunity to address issues regarding the multiple

occupants of the home on cross-examination and during

his statements to the jury. In addition, the relevance and

probative value of the evidence are obvious, given the

testimony that the assailants wore similar clothing to the

items found in Navarro's home, and the fact that the

firearm was found in the pocket of the jacket.

We find no abuse of discretion here.

F. Sufficiency of Evidence of Carjacking

The jury found the defendants guilty of carjacking based

on the theft of Tredway's van during the course of the

18

robbery and assaults. The carjacking statute requires proof

of five elements: (1) taking a motor vehicle (2) that had been

transported, shipped, or received in interstate or foreign

commerce (3) from the person or presence of another (4) by

force or intimidation (5) with the intent to cause death or

serious harm. 18 U.S.C.A. S 2119.

When evaluating a challenge to the sufficiency of the

evidence, we examine whether the jury could have

rationally found that each of the challenged elements had

been established beyond a reasonable doubt. United States

v. Lake, 150 F.3d 269, 272 (3d Cir. 1998). We review the

evidence in the light most favorable to the government.

United States v. Xavier, 2 F.3d 1281, 1288 (3d Cir. 1993);

see also United States v. Casper, 956 F.2d 416, 421 (3d Cir.

1992) ("Appellate reversal on the grounds of insufficient

evidence should be confined to cases where the failure of

the prosecution is clear.").

The first element is not in dispute. Tredway's van was

stolen. The defendants also do not dispute the second

element. However, defendants challenge the proof of the

third element because Tredway was inside her residence

and the van was outside. They urge us to depart from our

ruling in Lake, 150 F.3d 269, which leaves little room for

argument regarding this issue. In Lake, a man was on a

beach and had his van parked at a hilltop where it was not

visible. Id. at 270. His keys were forcibly taken from him by

the defendant on the beach. Id. at 271. On appeal, the

defendant argued that the evidence did not show he took

the car "from the person or presence of another." Id. at 272.

We were unpersuaded by his argument, and found that this

element meant that the car was "so within his reach,

observation or control, that he could if not overcome by

violence or prevented by fear, retain his possession of it."

Id. at 272. The circumstances in Lake are sufficiently

similar to those here so that Lake controls. Therefore, the

third element is satisfied.

The fourth element is not in dispute, and is clearly

controlled by United States v. Applewhaite, 195 F.3d 679,

685 (3d Cir. 1999), where we held that the threatened or

actual force at issue must be employed in furtherance of

the taking of the car. The evidence here clearly establishes

19

that it was. The fifth and final element is easily satisfied by

the circumstances under which the car was stolen-- the

defendants insisted Tredway give them her keys in the

course of a robbery and assault. See Holloway v. United

States, 526 U.S. 1, 8 (1999) (holding that intent to carjack

requires that defendant possessed intent to seriously harm

or kill driver if necessary to steal car.)

We agree with the government. The record clearly

supports the carjacking convictions. We will, therefore,

reject the defendants' challenge to the sufficiency of the

evidence as to this offense.

G. Sufficiency of Evidence of Gun Possession

Crispin argues that the evidence was insufficient to

support his conviction for gun possession. As we recounted

above, Crispin was discovered by the police crouched down

in the car he had been driving, and when he was ordered

out, he threw the keys inside the car, then locked the door.

He then told an officer who had arrived that there was a

gun under the seat. Forensic testing linked that gun to the

crimes at issue in the instant case.

Crispin argues that the government failed to prove that

he possessed the gun as required by 14 V.I.C. S 2253(a):

Whoever, unless otherwise authorized by law, has,

possesses, bears, transports or carries either, actually

or constructively, openly or concealed any firearm, . . .

[and any] such person [who was previously] convicted

of a felony in any state, territory, or federal court of the

United States, or if such firearm or an imitation thereof

was had, possessed, borne, transported or carried by

or under the proximate control of such person during

the commission or attempted commission of a crime of

violence, as defined in subsection (d) hereof, then such

person shall be sentenced to imprisonment . . . .

We must determine whether the jury could have rationally

found that the elements had been established beyond a

reasonable doubt. Lake, 150 F.3d at 272. We review the

evidence in the light most favorable to the government.

Xavier, 2 F.3d at 1288.

20

We note that, here, the operative language of the Virgin

Islands statute encompasses not only "possession," but

covers anyone who "bears, transports or carries .. .

actually or constructively." 14 V.I.C. S 2253(a). Prior to

November 1996, section 2253(a) made it unlawful for a

person to have a firearm "under his control in any vehicle."

14 V.I.C. S 2253 (1996). This phrase was deleted, however,

and now, where a defendant "had, possessed, bore or

carried" a firearm in his automobile, the statute no longer

requires that it be "under his control." No court has yet

construed the implication of this alteration.

While the language has changed, we have defined the

concept of "constructive possession" so as to make the

issue of control still a central theme. We have stated that

constructive possession exists if an individual"knowingly

has both the power and the intention at a given time to

exercise dominion or control over a thing, either directly or

through another person or persons." United States v.

Blackston, 940 F.2d 877, 883 (3d Cir. 1991) (quoting

Black's Law Dictionary 1047 (5th ed. 1979)). Here there is

no question that Crispin had knowledge of the gun since he

actually told the police officer that the gun was in the car.

But, could the jury have found that he had the "power and

intention" to "exercise control over" the gun?

We think the facts present here could easily justify the

inference the jury may have drawn in favor of Crispin's

constructive possession of the gun; these include, his

operation of the vehicle, his admitted knowledge of the

firearm's presence in the car, and its location underneath

the car's front seat and therefore within his reach. In United

States v. Iafelice, we found constructive possession of drugs

in the car's trunk, placing considerable weight on the

defendant's ownership and operation of the car, but also

stressing the need for these facts to be "considered in the

context of the surrounding circumstances." 978 F.2d 92, 97

(3d Cir. 1992).

We previously upheld the finding of constructive

possession under the former version of 2253(a), where we

determined the firearm was under the control of the

defendants. In McKie, the driver and two passengers of the

car were found to have the firearms under their control, so

21

as to possess them where the guns were all in plain view

inside the compact car. United States v. McKie , 112 F.3d

626 (3d Cir. 1997). In Xavier, the driver was found to have

possession of a gun held by a passenger exiting the car,

because it was within his "grab area" when it was in the

passenger cabin. Xavier, 2 F.3d at 1289. We believe that

the operative language of the current statute is, if anything,

broader than the previous language applied in McKie and

Xavier in that the concept of possession is expanded.

Further, it is coupled with other verbs that could apply

here as well -- "has, . . . bears, transports or carries."

Crispin relies on United States v. Chairez, 33 F.3d 823

(7th Cir. 1994), to support his argument that there was

insufficient evidence to convict him of possession of a

firearm. However, Chairez is readily distinguishable. First,

the court was only considering whether the defendant

"possessed" a gun as required by the portion of the statute

at issue, 18 U.S.C. S 924(c). The court opined that "[a]

defendant must know of the firearm's existence in order to

have possession or control of it." Chairez , 33 F.3d at 825.

Chairez was sitting in the passenger seat of a car

containing marijuana. Id. at 824. After the police and DEA

agents stopped the car and had the driver and passenger

get out, they discovered a gun six inches under the

passenger seat. Id. Chairez successfully appealed his

conviction for possessing a firearm in connection with a

drug trafficking offense by demonstrating that there was

insufficient evidence that he knowingly possessed the gun.

Id. at 825. The court found that the government"failed to

produce even a shred of evidence" that Chairez knew about

the gun or had ever carried a firearm. Id. Here, Crispin's

knowledge is well established in the record based on

Pemberton's testimony that Crispin told him that the gun

was under the seat.

Clearly, the jury could have rationally found that the

government established that Crispin "had, possessed,

bor[e], transported, or carried" the firearm beyond a

reasonable doubt. Thus, we reject Crispin's claim that there

is insufficient evidence to support his conviction for

possession of a firearm.

22

H. Failure to Question Juror Regarding Possible Bias

Navarro argues that the District Court erred by not

questioning a juror to ascertain if she was biased against

him. The juror in question sent the judge a note on the

fourth day of the trial, requesting that Navarro stop staring

at her. The note said: "it doesn't bother me, he doesn't

scare me, it's just that I don't like it." Id. On the following

trial day, Navarro's counsel asked that the juror be stricken

from the jury because she "harbor[ed] specific feelings

toward Mr. Navarro [that are] negative." Id. The District

Court denied the motion to strike the juror, stating: "[T]here

is nothing I have heard that would allow me to conclude

that this particular [juror] is necessarily harboring feelings

of negativity towards the defendant Navarro." 12 On appeal,

Navarro argues that the note shows that the juror was

biased toward him, and that the Court should have

questioned the juror in order to explore the issue before

making this determination. We review the District Court's

handling of this matter under an abuse of discretion

standard. See United States v. Murray, 103 F.3d 310, 323

(3d Cir. 1997) ("We review the district court's ruling [not to

excuse a juror for cause] for an abuse of discretion.")

Navarro relies on Gov't of the Virgin Islands v. Dowling,

814 F.2d 134 (3d Cir. 1987), to support his contention. In

Dowling, the trial judge received a note from a juror

indicating that the jury had been exposed to extra-record

information about the facts of the case and about Dowling's

past criminal record. Id. at 135. The note identified one

specific juror as the one who was discussing these matters.

Id. at 136. The judge excused the juror identified in the

note, id. at 136, but denied the defendant's motion for a

mistrial after addressing the entire jury panel, none of

whom indicated that they had been exposed to any

information that "had rendered [him or her] incapable of

giving a fair trial." Id. at 135. We held that the failure to

question the jurors individually was not an abuse of

_________________________________________________________________

12. While the actual transcript reads that the Court referenced "this

particular defendant" rather than "this particular juror," the context of

the Court's statement makes clear that it intended to speak of the juror

rather than the defendant.

23

discretion, but we reversed on the grounds that"the trial

judge erred when he failed to develop a record sufficient to

permit evaluation of the potential prejudice to the

defendant and failed to make a finding regarding the jurors'

ability to perform their assigned task which took into

account whatever information they had received." Id. at

141.

While Dowling does support Navarro's argument that in

camera questioning of an individual juror is appropriate in

some instances to determine prejudice, its reasoning

focused on juror exposure to prejudicial extra-record

information. While there may be circumstances which would

warrant an extension of Dowling, we find that Dowling does

not apply to the facts of this case. Here, the judge had

obviously observed the defendant and the proceedings and

was not confronted with the exertion of an outside influence.13

While the judge might have questioned the juror, the note

states that the juror was not bothered by Navarro's alleged

conduct, giving rise to a clear inference that she was not

negatively affected by it. Dowling also stands for the

proposition that the trial judge must be given considerable

latitude when making such decisions, as "the trial judge

develops a relationship with the jury during the course of a

trial that places him or her in a far better position than an

appellate court to measure what a given situation requires."

Id. at 137.

In addition, our reasoning in United States v. Murray,

103 F.3d 310 (3d Cir. 1997), though involving somewhat

different facts, provides additional support for the District

Court's conclusion. Murray involved a challenge to a

District Court's denial of a motion to disqualify a juror

(during jury selection) because he disclosed during voir dire

that he had read an article regarding the case. Id. at 322.

In affirming the District Court, we stated:

_________________________________________________________________

13. While not necessarily determinative, we do note that under the

Federal Rules of Evidence, extraneous information is viewed as posing a

unique threat to the deliberative process. Pursuant to Rule 606(b), a

juror may not testify about the jury's deliberations, except in regards to

"extraneous prejudicial information . . . improperly brought to the jury's

attention or whether any outside influence was improperly brought to

bear upon any juror."

24

In determining whether a particular juror should be

excused for cause, our main concern is whether the

juror holds a particular belief or opinion that will

prevent or substantially impair the performance of his

duties as a juror . . . . Determining whether a

prospective juror can render a fair verdict lies

peculiarly within a trial judge's province . . . . The trial

judge's resolution of such questions is entitled, even on

direct appeal, to special deference.

Id. at 323 (internal quotation marks and citations omitted).

The District Court here made an assessment of the

situation as required by Murray. We see nothing in the

record here to indicate that the District Court should have

concluded that the juror in question was incapable of

"render[ing] a fair verdict," or that it was obligated to

question the juror in order to make that determination. See

id.; see also United States v. Hursh, 217 F.3d 761, 768-69

(9th Cir. 2000) (holding that though judge did not question

juror individually, note from juror to judge requesting

private meeting to ask legal question did not suggest juror

would not base verdict on evidence). Accordingly, we find

that the District Court's decision not to question the juror

before ruling on Navarro's motion to strike was well within

its discretion.

IV. CONCLUSION

For all the foregoing reasons, we will AFFIRM the District

Court's Judgment and Conviction Orders.

25

McKEE, Circuit Judge, concurring.

I join the opinion of my colleagues in all respects, but

write separately to express my concern over the carjacking

convictions under 18 U.S.C. S 2119. See Maj. Op. at 18-19.

Although I agree that United States v. Lake 150 F.3d 269,

272 (3d Cir. 1998), requires that we affirm the instant

convictions for carjacking, I continue to believe that Lake

was wrongly decided. Here, as in Lake, the temporal and

circumstantial nexus between the theft of the keys and the

subsequent theft of the car is just too attenuated to

constitute the federal offense of "carjacking." In his

thoughtful dissent in Lake, Chief Judge Becker explained

why such an attenuated nexus ought not to establish the

federal crime of carjacking. He explained:

When the defendant took the car keys from his victim,

. . . [the victim's] car was, in city terms, a block away

up the hill, out of sight. Under these circumstances, I

would join an opinion upholding Lake's conviction for

keyjacking, or for both key robbery and grand larceny.

I cannot however agree that he is guilty of carjacking.

150 F.3d at 275 (Becker, C.J. dissenting) (internal

quotation marks omitted). I agree. Although here, the car

was closer to the keys than the car that was taken in Lake,

the theft of the keys, and the theft of the car are still two

discrete actions separated by both time and distance.

Accordingly, but for Lake, I would conclude that the

evidence here is not sufficient to establish that the vehicle

was taken "from the person or presence of another" as is

required for a conviction under 18 U.S.C. S 2119. However,

inasmuch as we are bound by the holding in Lake , I join in

the analysis of my colleagues. Under Lake, I must agree

that the evidence presented here is sufficient to morph this

"keyjacking," into a carjacking under S 2119.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

26