United States v. Berrios

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

Nos. 07-2818, 07-2887, 07-2888 and 07-2904

______

UNITED STATES OF AMERICA;

GOVERNMENT OF THE VIRGIN ISLANDS

v.

REINALDO BERRIOS,

Appellant in 07-2818

______

UNITED STATES OF AMERICA;

GOVERNMENT OF THE VIRGIN ISLANDS

v.

ANGEL RODRIGUEZ,

Appellant in 07-2887

______

UNITED STATES OF AMERICA;

GOVERNMENT OF THE VIRGIN ISLANDS

v.

FELIX CRUZ,

Appellant in 07-2888

______

UNITED STATES OF AMERICA;

GOVERNMENT OF THE VIRGIN ISLANDS

v.

TROY MOORE,

Appellant in 07-2904

______

On Appeal from the District Court

of the Virgin Islands – Appellate Division

Division of St. Croix

(D.C. Nos. 1-04-cr-00105-001, 1-04-cr-00105-003,

1-04-cr-00105-004 and 1-04-cr-00105-002)

District Judge: Honorable Raymond L. Finch

______

Nos. 07-2818, 07-2887 and 07-2904

Argued December 6, 2011

No. 07-2888

Submitted December 6, 2011

Before: FISHER, GREENAWAY, JR.

2

and ROTH, Circuit Judges.

(Filed: April 10, 2012)

Warren B. Cole (Argued)

Hunter, Cole & Bennett

1138 King Street, Suite 301

Christiansted, St. Croix, USVI 00820

Counsel for Appellant, Reinaldo Berrios

Robert L. King (Argued)

Law Offices of Robert L. King

Windward Passage Hotel

P.O. Box 9768, Veterans Drive

Charlotte Amalie, St. Thomas, USVI 00801

Counsel for Appellant, Angel Rodriguez

Jorge E. Rivera-Ortiz

P.O. Box 1845

Manati, PR 00674-1845

Counsel for Appellant, Felix Cruz

Clive Rivers (Argued)

Nisky Center, Suite 233

Charlotte Amalie, St. Thomas, USVI 00801

Counsel for Appellant, Troy Moore

John A. Romano (Argued)

United States Department of Justice

Appellate Section, Criminal Division

P.O. Box 899

3

Ben Franklin Station

Washington, DC 20044

Harry Wallace

Office of United States Attorney

99 Northeast 4th Street, 6th Floor

Miami, FL 33132

Counsel for Appellees

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

Reinaldo Berrios, Felix Cruz, Troy Moore, and Angel

Rodriguez (together, ―the defendants‖) appeal from

judgments of conviction and sentence in the U.S. District

Court for the District of the Virgin Islands arising out of a

series of carjackings, an attempted robbery, and the murder of

a security guard. Between them, the defendants have raised a

number of arguments on appeal, including evidentiary errors,

prosecutorial misconduct, faulty jury instructions, sufficiency

of the evidence, and double jeopardy. We address the various

contentions in turn, but focus our discussion on two principal

issues: clarifying our jurisprudence under the Confrontation

Clause and its relationship to the Federal Rules of Evidence,

and resolving a question of statutory interpretation under 18

U.S.C. § 924(c) and (j) with double jeopardy implications.

After thorough consideration of the arguments presented by

both sides, we will affirm.

4

I.

A. Factual History

On April 17, 2004, at 9:45 p.m., Lydia Caines was

speaking on her cell phone in her car, a tan Chevy Cavalier,

when a masked man exited a white Suzuki Sidekick with

tinted windows and stuck a gun against the car‘s window.

Caines dropped her phone and relinquished her vehicle, and

both her car and the Sidekick were driven away. Law

enforcement learned that the Sidekick was owned by

Reinaldo Berrios, who had been seen driving it earlier in the

evening when he was ticketed by a traffic cop and later in the

evening when he spoke to a police officer. On April 18,

Caines‘s phone was used to make calls to the family of Angel

Rodriguez and to a friend of Troy Moore.

An hour later, three masked gunmen attempted to rob a

Wendy‘s Restaurant, which Berrios had discussed with a

friend earlier that day. An off-duty police officer, Cuthbert

Chapman, was working as a security guard for the Wendy‘s at

the time; when he attempted to stop the robbery, the would-be

robbers shot him repeatedly, and he died nine days later from

his wounds. Before leaving, one of the robbers yelled, ―Troy,

let we go,‖ meaning, ―Troy, let‘s go.‖ After the shooting, the

robbers fled; two of them got into a champagne-colored

Chevy Cavalier, which was being driven by an individual

who had not entered the Wendy‘s. The Cavalier crashed,

severely damaging one of the wheels, and the occupants

abandoned it. When it was recovered, law enforcement

determined that it was the stolen Cavalier, although the

license plate had been switched and a side-view mirror was

5

missing. A mask, similar to the ones worn by the robbers,

was found close to the vehicle. Threads found in the Chevy

Cavalier were matched to the material of a jacket retrieved

from Felix Cruz‘s room, and a fingerprint from Rodriguez

was lifted off of the license plate.

Around 11:00 p.m., shortly after the Wendy‘s robbery

and shooting, Shariska Peterson was confronted by three

masked men as she was walking to her Honda Accord. As

the men demanded the keys to her car, one of them pointed a

gun at her head. Instead, Peterson threw them into the high

grass in her yard, prompting one of the men to say, ―You

should not have done that,‖ and then the three ran away.

Peterson saw a fourth man join them as they left. Soon

thereafter, four masked men stole Rita Division‘s Toyota

Echo, which she had left running while she was locking up

the gate at the high school where she worked. One of the

men ordered her at gunpoint to stay away from the car. Her

car was recovered a few days later; the original license plate

for Caines‘s Chevy Cavalier and its missing side-view mirror

were found nearby.

In July of 2004, a federal judge in the District Court of

Puerto Rico approved a Title III surveillance application,

pursuant to 18 U.S.C. §§ 2510 et seq., to monitor

conversations in a detention center in Guaynabo, Puerto Rico,

as part of an unrelated investigation into criminal activity in

which Berrios and Moore were involved (the ―Title III

recording‖); both Berrios and Moore were in the detention

center at the time. Surveillance was performed both through

video and sound recording. Authorities intercepted a

conversation between Berrios and Moore in a recreational

6

yard at the detention facility during which they discussed, in

detail, the Wendy‘s shooting and getaway, and their

respective roles in it. The defendants identified Rodriguez

(by nickname) as the getaway driver, and blamed him for

blowing out a tire and crashing the getaway car. During the

conversation, Moore also threatened to kill an individual who

worked at a store with his girlfriend and was getting

―regularly question[ed]‖ by the police.

B. Trial and Procedural History

On May 31, 2006, a federal grand jury in the District

of the Virgin Islands returned a third superseding indictment

charging each defendant with conspiracy and attempt to

interfere with commerce by robbery, both in violation of 18

U.S.C. § 1951(a) (Counts 1 and 2, respectively); carjacking

and attempted carjacking, both in violation of 18 U.S.C.

§ 2919(1) (Counts 3 and 10, and Count 8, respectively); using

a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c)(1)(A) (Counts 4, 9 and 11);

causing the death of a person through use of a firearm, in

violation of 18 U.S.C. § 924(j)(1) (Count 6); first-degree

felony murder, in violation of 14 V.I.C. §§ 922(a)(2) and 11

(Count 5); and unauthorized use of a firearm, in violation of

14 V.I.C. §§ 2253(a) and 11 (Count 7). On February 6, 2007,

after a four-week trial, the jury found the defendants guilty on

all charges. On July 8, the District Court entered judgments

of acquittal on Counts Three (carjacking) and Four (use of a

firearm during the carjacking) for the Caines incident, as to

Moore, Rodriguez and Cruz, but otherwise denied

defendants‘ motions for judgments of acquittal and a new

trial.

7

Berrios was sentenced to life imprisonment and

consecutive prison terms totaling 70 years on the federal

counts, and to life imprisonment and a consecutive prison

term of 15 years on the Virgin Islands counts, with local

sentences to run consecutively to the federal sentences.

Rodriguez, Cruz and Moore were sentenced to life

imprisonment on the federal counts, and to life imprisonment

and a consecutive 15-year prison term on the Virgin Islands

counts, with local sentences to run consecutively to federal

sentences. Each defendant was fined $50,000 for Count 7.

The defendants filed timely notices of appeal.

II.

The District Court had jurisdiction pursuant to 48

U.S.C. § 1612(a) and (c). We have jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742.

III.

The defendants raise six categories of error, which we

address in turn:

A. Title III Evidence

B. Rule 404(b) Evidence

C. Sufficiency of the Evidence

D. Prosecutorial Misconduct

E. Jury Instructions

8

F. Double Jeopardy

After careful review, we find that none of the arguments

raised by the defendants has merit.

A. Title III Evidence

The Title III recording of the conversation between

Berrios and Moore formed the cornerstone of the

prosecution‘s case against Rodriguez, Cruz, and Moore, and

these three defendants challenge admission of the recording

on several grounds. Rodriguez and Cruz challenge the

recording as a violation of their rights under the

Confrontation Clause of the Sixth Amendment, and in the

alternative, as inadmissible hearsay under the Federal Rules

of Evidence. Moore contends that the Title III application

was facially deficient, and therefore the recording should

have been suppressed. Due to the confusion exhibited by the

parties as to the proper scope of the Confrontation Clause, we

will first clarify our Confrontation Clause jurisprudence with

regards to testimonial versus nontestimonial statements,

before proceeding to the admissibility of the recording against

the three defendants. We exercise ―plenary review over

Confrontation Clause challenges,‖ United States v. Lore, 430

F.3d 190, 208 (3d Cir. 2005), but review a nonconstitutional

challenge to the admission of hearsay for abuse of discretion.

United States v. Riley, 621 F.3d 312, 337 (3d Cir. 2010).

1. Confrontation Clause Challenges

The Sixth Amendment‘s Confrontation Clause

provides that ―[i]n all criminal prosecutions, the accused shall

9

enjoy the right . . . to be confronted with the witnesses against

him.‖ U.S. Const. amend. VI. Until recently, the scope of the

Confrontation Clause had been governed by the ―indicia of

reliability‖ test laid out by Justice Blackmun in Ohio v.

Roberts, 448 U.S. 56, 65-66 (1980). Under Roberts, an

absent witness‘s hearsay statement could be introduced

against a criminal defendant only if the witness was

unavailable at trial and the statement bore certain ―indicia of

reliability,‖ either by ―fall[ing] within a firmly rooted hearsay

exception‖ or by showing ―particularized guarantees of

trustworthiness.‖ Id. at 66. In Crawford v. Washington, 541

U.S. 36, 51 (2004), however, the Supreme Court observed

that, at its core, the Confrontation Clause is concerned with

―testimonial‖ hearsay. Abrogating Roberts, the Crawford

Court adopted a per se rule that where testimonial hearsay is

concerned and the declarant is absent from trial, the

Confrontation Clause requires that the witness be unavailable

and that the defendant have had a prior opportunity for cross-

examination. Id. at 59, 68.

In subsequent decisions, the Court overruled Roberts

in its entirety, holding without qualification that the

Confrontation Clause protects the defendant only against the

introduction of testimonial hearsay statements, and that

admissibility of nontestimonial hearsay is governed solely by

the rules of evidence. See Davis v. Washington, 547 U.S.

813, 823-24 (2006) (holding that, under Crawford, the

Confrontation Clause protects only against admission of

testimonial hearsay, because ―a limitation so clearly reflected

in the text of the constitutional provision must fairly be said

to mark out not merely its ‗core,‘ but its perimeter‖);

10

Michigan v. Bryant, 131 S. Ct. 1143, 1152-53 (2011)

(confirming that Crawford limits the reach of the

Confrontation Clause to testimonial statements); Whorton v.

Bocking, 549 U.S. 406, 419-20 (2007) (―Under Crawford, . . .

the Confrontation Clause has no application to [out-of-court

nontestimonial statements] and therefore permits their

admission even if they lack indicia of reliability.‖).

We initially interpreted the Crawford decision to

overrule Roberts only insofar as testimonial statements were

concerned, but continued to apply the Confrontation Clause to

nontestimonial hearsay through the Roberts indicia of

reliability test. See United States v. Hendricks, 395 F.3d 173,

179 (3d Cir. 2005) (―[U]nless a particular hearsay statement

qualifies as ‗testimonial,‘ Crawford is inapplicable and

Roberts still controls.‖). To date, we have yet to circumscribe

the Confrontation Clause to its core concern with testimonial

hearsay, but have rather maintained that ―nontestimonial

statements do not violate the Confrontation Clause and are

admissible as long as ‗they are subject to a firmly rooted

hearsay exception or bear an adequate indicia of reliability.‘‖

United States v. Jimenez, 513 F.3d 62, 77 (3d Cir. 2008)

(quoting Albrecht v. Horn, 485 F.3d 103, 134 (3d Cir. 2007)).

To avoid needless confusion, we now expressly follow the

Supreme Court‘s Confrontation Clause jurisprudence as laid

out in the trilogy of Davis, Whorton, and Bryant: where

nontestimonial hearsay is concerned, the Confrontation

Clause has no role to play in determining the admissibility of

11

a declarant‘s statement.1 Accordingly, the ―indicia of

reliability‖ test of Roberts is no longer an appropriate vehicle

for challenging admission of nontestimonial hearsay.2

1

In light of intervening Supreme Court opinions, we

are not bound by the cited panel decisions. See Reich v. D.M.

Savia Co., 90 F.3d 854, 858 (3d Cir. 1996) (―Although a

panel of this court is bound by, and lacks authority to

overrule, a published decision of a prior panel, . . . a panel

may reevaluate a precedent in light of intervening authority

. . . .‖). Moreover, Jimenez and Albrecht failed to cite the

recently issued Supreme Court decisions that we now

conclude govern the present case, and ―[w]hile we strive to

maintain a consistent body of jurisprudence, we also

recognize the overriding principle that ‗[a]s an inferior court

in the federal hierarchy, we are, of course, compelled to apply

the law announced by the Supreme Court as we find it on the

date of our decision.‘‖ United States v. Tann, 577 F.3d 533,

541 (3d Cir. 2009) (quoting United States v. City of

Philadelphia, 644 F.2d 187, 192 n.3 (3d Cir. 1980)). Thus,

we ―‗should not countenance the continued application in this

circuit of a rule . . . which is patently inconsistent with the

Supreme Court‘s pronouncements.‘‖ Id. (quoting Cox v.

Dravo Corp., 517 F.2d 620, 627 (3d Cir. 1975)).

12

Thus, our Confrontation Clause inquiry is twofold.

First, a court should determine whether the contested

2

To say that Roberts is no longer applicable means, as

a practical matter, that a challenge to the admission of

nontestimonial hearsay previously within the scope of the

Confrontation Clause has no constitutional foundation. For

purposes of appellate review, this will require the application

of a different standard of harmless error. See United States v.

Diallo, 575 F.3d 252, 264 (3d Cir. 2009). However, it should

not detract in any way from the scrutiny that nontestimonial

hearsay receives under the rules of evidence. As the Roberts

Court observed, ―hearsay rules and the Confrontation Clause

are generally designed to protect similar values, and stem

from the same roots.‖ 448 U.S. at 66 (internal marks and

citations omitted). As admissibility under Roberts relied in

part on the existence of a relevant ―firmly rooted hearsay

exception,‖ it will often be the case that evidence courts

would deem inadmissible under Roberts is also inadmissible

under the rules of evidence. See, e.g., United States v.

Mussare, 405 F.3d 161, 168-69 (3d Cir. 2005) (determining

admissibility under Bruton based on satisfaction of Federal

Rule of Evidence 804(b)(3)).

13

statement3 by an out-of-court declarant qualifies as

testimonial under Davis and its progeny. Second, the court

should apply the appropriate safeguard. If the absent

witness‘s statement is testimonial, then the Confrontation

Clause requires ―unavailability and a prior opportunity for

cross-examination.‖ Crawford, 541 U.S. at 68. If the

statement is nontestimonial, then admissibility is governed

solely by the rules of evidence. Davis, 547 U.S. at 823.

Applying this two-part test to the Title III recording at

issue here, we have little hesitation in concluding that the

recorded conversation was not testimonial, and thus not

subject to Confrontation Clause scrutiny. Although we lack

an authoritative definition of ―testimonial,‖ in Hendricks, 395

F.3d at 180-81, we addressed the admissibility of similar Title

III recordings of conversations between various nontestifying

defendants and third parties. After comparing these

recordings to the examples which the Supreme Court stated

were definitively testimonial, such as ―prior testimony at a

preliminary hearing, before a grand jury, or at a former trial,

and police interrogations,‖ we reasoned that a ―surreptitious‖

Title III recording neither qualified as ―ex parte in-court

3

In scrutinizing a contested statement, we note that a

trial court should consider not only whether the statement as a

whole qualifies as testimonial, but also whether portions of

the statement may qualify as testimonial, and therefore

require redaction of otherwise admissible evidence. See

Davis v. Washington, 547 U.S. 813, 829 (2006) (scrutinizing

portions of contested statement separately to determine

testimonial nature).

14

testimony or its functional equivalent,‖ nor formalized

―extrajudicial statements.‖ Id. Cognizant that ―a witness

‗who makes a formal statement to government officers bears

testimony in a sense that a person who makes a casual remark

to an acquaintance does not,‘‖ id. (quoting Crawford, 541

U.S. at 51), we concluded that ―the surreptitiously monitored

conversations and statements contained in the Title III

recordings [we]re not ‗testimonial‘ for purposes of

Crawford.‖ 4 Id.

It is likewise clear that, in the present case, the

contested statements bear none of the characteristics exhibited

by testimonial statements. There is no indication that Berrios

4

Intervening Supreme Court cases have exclusively

addressed which ―interrogations by law enforcement officers

fall squarely within [the] class of testimonial hearsay,‖

Michigan v. Bryant, 131 S. Ct. 1143, 1153 (2011) (quoting

Davis, 547 U.S. at 826), and have done nothing to sway us

from this understanding. In Davis, the Court considered

whether statements about domestic violence to law

enforcement personnel during a 911 call or at a crime scene

qualified as testimonial for Confrontation Clause purposes,

547 U.S. at 823, 829-30, and Bryant differed only insofar as

the contested statements concerned a nondomestic dispute.

131 S. Ct. at 1156. The Bryant and Davis Courts held that

statements for which ―the primary purpose of the

interrogation is to establish or prove past events potentially

relevant to later criminal prosecution‖ are testimonial, but

those made to enable police to meet an ongoing emergency

are not. Davis, 547 U.S. at 822.

15

and Moore held the objective of incriminating any of the

defendants at trial when their prison yard conversation was

recorded; there is no indication that they were aware of being

overheard; and there is no indication that their conversation

consisted of anything but ―casual remark[s] to an

acquaintance.‖ Crawford, 541 U.S. at 51. Nor do we think

that a surreptitious recording falls within the category of

―abuses‖ which, historically, the Framers were concerned

about eradicating from the government‘s investigative

practices. See id. Consequently, we reject any suggestion

that, in this circumstance, the Title III recording was

testimonial,5 and therefore that the Confrontation Clause

5

Of course, it is possible that participants in a recorded

conversation might be aware that they are being recorded, and

intentionally incriminate another individual. By no means are

we establishing a categorical rule: simply because we have

found some Title III recordings to be nontestimonial does not

mean that no Title III recordings can qualify as such. Rather,

each statement should be scrutinized on its own terms to

determine whether it exhibits the characteristics of a

testimonial statement. See Bryant, 131 S. Ct. at 1156 (―To

determine whether the ‗primary purpose‘ of an interrogation

is ‗to enable police assistance to meet an ongoing

emergency,‘ which would render resulting statements

nontestimonial, we objectively evaluate the circumstances in

which the encounter occurs and the statements and actions of

the parties.‖ (quoting Davis, 547 U.S. at 822)). There may be

some instances, such as where the primary purpose of the

declarant‘s interlocutor was to elicit a testimonial statement,

such that even if the declarant‘s purpose was innocent, the

16

affords protection against the introduction of such evidence at

the defendants‘ trial.

Our conclusion that the contested statements were

nontestimonial under Davis compels us to reject the

challenges levied by Rodriguez and Cruz under Bruton v.

United States, 391 U.S. 123 (1968). In Bruton, the Court held

that the Confrontation Clause bars the use of the confession

of a nontestifying criminal defendant in a joint trial to the

extent that it directly inculpates a co-defendant, though it

might be otherwise admissible against the confessing

defendant. Id. at 126. ―We have interpreted Bruton

expansively, holding that it applies not only to custodial

confessions, but also when the statements of the non-

testifying co-defendant were made to family or friends, and

are otherwise inadmissible hearsay.‖ United States v.

Mussare, 405 F.3d 161, 168 (3d Cir. 2005) (citing Monachelli

v. Graterford, 884 F.2d 749, 753 (3d Cir. 1989), and United

States v. Ruff, 717 F.2d 855, 857-58 (3d Cir. 1983)).

However, because Bruton is no more than a by-product of the

Confrontation Clause, the Court‘s holdings in Davis and

Crawford likewise limit Bruton to testimonial statements.

See, e.g., United States v. Wilson, 605 F.3d 985, 1017 (D.C.

Cir. 2010) (holding that alleged Bruton claim did not violate

the Confrontation Clause because the statements were not

testimonial). Any protection provided by Bruton is therefore

only afforded to the same extent as the Confrontation Clause,

which requires that the challenged statement qualify as

conversation as a whole would be testimonial. Nevertheless,

we are not presented with such a situation here.

17

testimonial. To the extent that we have held otherwise, we no

longer follow those holdings. See Monachelli, 884 F.2d at

753 (holding that Bruton applies to statements ―made in a

non-custodial setting to family and friends‖); Ruff, 717 F.2d

at 857-58 (same). And because, as discussed above, we have

found the Title III recordings not to constitute testimonial

hearsay, Bruton provides no solace for Rodriguez or Cruz.

2. Challenges under the Federal Rules of Evidence

Following the two-step framework articulated above,

having determined that the challenged recording is

nontestimonial and therefore that the Confrontation Clause

challenges are not viable, we move next to the admissibility

of the Title III recording against Cruz and Rodriguez under

the Federal Rules of Evidence. We may affirm the District

Court on any ground supported by the record. Mussare, 405

F.3d at 168.

Rodriguez contends that the Title III recording was

inadmissible hearsay as to him, but we agree with the

government that the recording was admissible under Rule

804(b)(3) as a statement against penal interest. Although we

are sensitive to the possibility that self-serving incriminating

statements uttered by a non-testifying co-defendant may be

inherently untrustworthy, ―[w]here statements inculpate both

the speaker and the defendant challenging their admission, the

statements are admissible so long as they were ‗self-

inculpatory‘ and not simply self-serving attempts to deflect

criminal liability.‖ Id. at 168 (quoting United States v.

Moses, 148 F.3d 277, 281 (3d Cir. 1998)). In Mussare, we

considered the admission of similar braggadocio by a non-

18

testifying codefendant, who had boasted to a witness that he

and the defendant had performed the illegal acts underlying

the criminal charges. Id. We found that because the co-

defendant did not attempt to ―deflect liability,‖ but rather

―took credit‖ for it, the statements were not inadmissible

hearsay. Id.6

Mussare squarely governs here. In the Title III

recording, Berrios and Moore unequivocally incriminate

themselves in the carjackings and the Wendy‘s murder.

Rather than attempting to ―deflect liability‖ to Rodriguez,

they take full credit for the Wendy‘s murder, bragging about

shooting the security guard, and mentioning Rodriguez only

to complain that he crashed the getaway car. In no way was

the recorded conversation ―self-serving,‖ and therefore we

will uphold the District Court‘s ruling as to its admissibility

against Rodriguez.

Cruz‘s challenge is equally straightforward because

Berrios and Moore never blame Cruz for any criminal

conduct, or even mention him by name. Moreover, Moore‘s

threat to kill a man who worked with his girlfriend, and who

was evidently talking to the police, did not clearly refer to

Cruz, as Cruz himself concedes (and the government never

attempted to argue that it did). Thus, Cruz cannot contend

that Berrios or Moore attempted to deflect any criminal

liability in his direction during their conversation. See

6

In Mussare, 405 F.3d at 168-69, we went on to

determine admissibility under Bruton, which, as discussed in

the preceding section, is no longer applicable in this situation.

19

Mussare, 405 F.3d at 168. Rather, the challenged statements

are entirely self-inculpatory, and consequently admissible

against Cruz under Rule 804(b)(3). See id.

3. Sufficiency of the Title III Application

Moore offers a curious argument that the Title III

application submitted by the investigating prosecutor was

facially deficient because the prosecutor was not admitted to

practice in Puerto Rico, the jurisdiction where the warrant

was obtained. We find that this argument was waived under

Federal Rule of Criminal Procedure 12.

―[U]nder Rule 12, a suppression argument raised for

the first time on appeal is waived (i.e., completely barred)

absent good cause,‖ including when the defendant filed a

suppression motion but failed to include the specific issues

raised on appeal. United States v. Rose, 538 F.3d 175, 177,

182 (3d Cir. 2008). Rose concerned evidence which the

defendant sought to suppress under the Fourth Amendment

on the grounds that the warrant was facially deficient, id. at

176-77, but in light of the expansive language of Rule

12(b)(3)(C), which applies broadly to ―a motion to suppress,‖

we find it equally appropriate to apply this waiver rule in the

Title III context. See, e.g., United States v. Kincaide, 145

F.3d 771, 778 (6th Cir. 1998) (holding that failure to seek

suppression of Title III wiretap evidence waived claim on

appeal under Rule 12); United States v. Torres, 908 F.2d

1417, 1424 (9th Cir. 1990) (same). Thus, although Moore

submitted a pre-trial motion to suppress the wiretap evidence,

that motion preserved only those arguments which he

specifically raised, and he did not raise this purported

20

deficiency. Nor can Moore offer any argument as to why he

was unable to make a proper motion, or contend that he was

unaware of this potential basis for suppression, as would

warrant a waiver exception under 18 U.S.C. § 2518(10)(a):

his co-defendant, Berrios, moved for a new trial based on the

purported deficiency in the Title III application, which Moore

did not join. The argument was accordingly waived under

Rule 12, and because the plain error doctrine is inapplicable,

see Rose, 538 F.3d at 177, we do not reach its dubious merits.

B. Other Acts Evidence

Berrios challenges the government‘s introduction at

trial of statements he made in response to police questioning

regarding loose ammunition in his home, as well as

photographs of the ammunition, under Federal Rule of

Evidence 404(b). We review the admission of evidence

under Rule 404(b) for abuse of discretion. United States v.

Butch, 256 F.3d 171, 175 (3d Cir. 2001). The government

contends that this evidence demonstrated consciousness of

guilt as part of a pattern of exculpatory statements he made to

the police during the investigation of the Wendy‘s shooting.

We disagree, but the error was harmless.

1. Admissibility under Rule 404(b)

Extrinsic bad acts evidence may not be introduced ―to

prove a person‘s character in order to show that on a

particular occasion the person acted in accordance with that

character.‖ Fed. R. Evid. 404(b). Berrios correctly observes

that his unlawful possession of ammunition constitutes such a

21

bad act, and contends that the government introduced it for

the improper purpose of showing his violent tendencies.

We have acknowledged that false exculpatory

statements may be introduced as evidence of the defendant‘s

consciousness of guilt of the underlying charges, even where

such conduct may itself violate the law. See United States v.

Kemp, 500 F.3d 257, 296 (3d Cir. 2007); United States v.

Levy, 865 F.2d 551, 558 (3d Cir. 1989). For example, in

Kemp, we rejected a Rule 404(b) challenge to the use of false

grand jury testimony, which the government used to disprove

the defendant‘s ―alibi‖ that he was, in essence, too wealthy to

have committed the charged money laundering offenses. 500

F.3d at 296-97. Despite the defendant‘s contention that the

government was attempting to show that he was lying on the

stand because he had lied in the grand jury, we found that, as

a false exculpatory statement, this evidence properly

demonstrated consciousness of guilt. Id. Similarly, in Levy,

we found that a defendant‘s attempt to conceal his or her

identity after committing a crime was admissible to show

consciousness of guilt, even where the defendant‘s use of

false identities may have violated ―international travelling

statutes.‖ Levy, 865 F.2d at 558.

The government hangs its hat on the contention that

Berrios‘s statements qualify under the consciousness of guilt

exception to Rule 404(b) because they are, generally

speaking, exculpatory, and were made during the

investigation of the Wendy‘s shooting. Thus, the government

calls this part of a ―pattern‖ of false exculpatory statements,

the entirety of which is relevant to show consciousness of

guilt. We disagree. Although the statements concerned a

22

collection of unused ammunition which garnered attention

during an investigation of the charged offenses, the

connection between this statement and consciousness of guilt

is simply too attenuated. In both Kemp and Levy, the false

exculpatory statements were directly related to the charged

offense, thereby falling squarely within the kind of conduct

traditionally demonstrating consciousness of guilt. However,

neither Levy nor Kemp suggests that a false exculpatory

statement made to deflect criminal liability for unrelated

conduct may also be introduced for such purposes, and we

decline to hold so here. Indeed, such an expansive

interpretation of the consciousness of guilt exception would

effectively eviscerate the rule itself: any time that the

government sought to introduce other bad acts evidence, it

could circumvent Rule 404(b) by admitting the defendant‘s

false exculpatory statements about that conduct.

We have said that ―[t]o show a proper purpose, the

government must clearly articulate how that evidence fits into

a chain of logical inferences without adverting to a mere

propensity to commit crime now based on the commission of

crime then.‖ Kemp, 500 F.3d at 296 (internal quotations

omitted). The government has failed to do so, and therefore,

as the District Court recognized in its post-trial opinion, the

evidence should have been excluded under Rule 404(b).

2. Harmless Error

Nevertheless, the District Court correctly concluded

that the purported error was harmless because ―the jury

learned that no similar ammunition was found at Wendy‘s‖

and the ―alleged falsehood was cumulative to other false and

23

contradictory statements that Berrios made during the same

interrogation that bore directly on his consciousness of guilt

concerning the Wendy‘s incident.‖ Where evidence is

improperly admitted, reversal is not required where it is

―highly probable that the error did not contribute to the

judgment.‖ United States v. Cross, 308 F.3d 308, 326 (3d

Cir. 2002) (internal quotation omitted). ―Under the highly

probable standard, . . . there is no need to disprove every

reasonable possibility of prejudice,‖ and ―we can affirm for

any reason supported by the record.‖ Id. (internal marks and

quotations omitted). In the present case, we may comfortably

conclude that the harmless error standard is satisfied.

First and foremost, the evidence against Berrios was so

overwhelming that any improper inferences the jury might

have drawn from the ammunition evidence were marginal, at

most. See id. Second, the jury learned that none of the

ammunition found at Berrios‘s home resembled the

ammunition found at the Wendy‘s, so would not likely have

conflated the two. Third, minimal prejudice would have

resulted from the jury‘s consideration of the ammunition

evidence in light of the court‘s instructions not to base its

verdict on any uncharged acts and, as is oft repeated, ―juries

are presumed to follow their instructions.‖ Id. (quoting Zafiro

v. United States, 506 U.S. 534, 541 (1993)). And fourth, the

government presented other statements from the same

conversation which properly demonstrated consciousness of

guilt of the charged offense, so any inference that the jury

might have improperly drawn from this evidence was

cumulative of the balance of other consciousness of guilt

24

evidence. See id. Thus, the District Court was correct in

determining that a new trial was not warranted on this basis.

C. Sufficiency of the Evidence

Cruz, Rodriguez and Moore renew their sufficiency of

the evidence challenges previously made in post-trial

motions. We exercise plenary review over a district court‘s

denial of a motion for judgment of acquittal based on the

sufficiency of the evidence. United States v. Starnes, 583

F.3d 196, 206 (3d Cir. 2009). The verdict must be sustained

if ―any rational trier of fact could have found proof of guilt

beyond a reasonable doubt based on the available evidence.‖

United States v. Silveus, 542 F.3d 993, 1002 (3d Cir. 2008).

We review for plain error where the defendant failed to make

a timely motion for judgment of acquittal. United States v.

Brodie, 403 F.3d 123, 133 (3d Cir. 2005). Making all

reasonable inferences in favor of the government as the

verdict winner, Starnes, 583 F.3d at 206, we find these

challenges meritless.

1. Cruz

Cruz submits that the government failed to prove

beyond a reasonable doubt that he was one of the perpetrators

of the charged crimes. Cruz moved for judgment of acquittal

at the close of trial under Rule 29. The District Court

correctly denied the motion as to Cruz‘s involvement in all

but the Caines carjacking because, based on physical

evidence, witness testimony, and post-offense conduct, a

reasonable jury could have found him to be a participant in

25

the robbery, shooting and carjackings beyond a reasonable

doubt. Silveus, 542 F.3d at 1002.

First, Cruz was tied to the crimes through fibers found

in the Chevy Cavalier which matched a dark blue Nike jacket

recovered from his room. The government‘s expert testified

that it was ―very unlikely‖ that fibers consistent with a

garment would not originate from that garment, particularly

given the ―over 80 billion tons of fibers produced each year.‖

Additionally, the jury could reasonably infer that the jacket

belonged to Cruz because, when told to dress, he put on pants

from the room where the jacket was found. Second,

witnesses placed Cruz in the company of the other

conspirators shortly before the attempted robbery. Angel

Ayala testified that at around 7 p.m., Cruz and Rodriguez had

talked with him about holding a gun and that they were

wearing black and blue sweaters with blue hoods. Tyiasha

Moore likewise testified that Rodriguez, Cruz and Berrios

were gathered around a gun, all wearing dark clothing, one

floor away from Moore, at around 10:15 p.m. that night. And

third, Armando Cruz, a government witness, confronted Cruz

several times about the Wendy‘s shooting. Cruz never denied

his involvement in the crime until the third conversation, at

which point Armando believed he had grown suspicious

about Armando‘s assistance in the investigation. Making all

reasonable inferences in favor of the government as the

verdict winner, Starnes, 583 F.3d at 206, Cruz cannot show

that no reasonable jury could have convicted him on the

totality of the evidence.

26

2. Rodriguez

Rodriguez contends that the evidence was insufficient

as a matter of law to convict him of the charges. However,

the tape of Berrios and Moore identifying Rodriguez as the

getaway driver for the Wendy‘s robbery and as an accomplice

in the carjackings was properly admitted, and he rightly

concedes that if the recording was admissible against him, the

evidence was sufficient for a conviction. Rodriguez also

argues that a jury could not find him guilty of attempting to

carjack Peterson‘s car because none of the defendants harmed

her in any way after she threw her keys into her yard.

However, the specific intent element of carjacking is assessed

at the time the defendant ―demanded or took control over the

car.‖ See Holloway v. United States, 526 U.S. 1, 8 (1999).

Therefore, the fact that Peterson was not harmed does not

negate the jury‘s assessment of Rodriguez‘s intent at the time

the carjackers demanded the keys. Indeed, Peterson testified

that they ran away when neighborhood dogs began to bark,

which suggests that the defendants may very well have

changed their minds during the carjacking. Drawing all

reasonable inferences in favor of the verdict, Rodriguez

cannot prevail merely because the victim escaped unharmed.

3. Moore

Moore argues that the evidence was insufficient to

prove that he was an accomplice in the Wendy‘s robbery and

carjackings, but concedes that if the recording of his

conversation with Berrios was properly admitted, his

sufficiency of the evidence argument must fail. We reject his

challenge accordingly.

27

D. Prosecutorial Misconduct

Several of the defendants have appealed on the

grounds of prosecutorial misconduct. Cruz submits that the

prosecution improperly vouched for a government witness,

and, along with Rodriguez and Moore, contends that

prosecutorial conduct during closing requires reversal.

1. Vouching

Cruz argues that Detective Matthews vouched for

witnesses Tyiasha Moore and Angel Ayala by testifying that

their grand jury testimony was consistent with their prior

statements, and by confirming that he told them to tell the

truth at the grand jury proceeding. We review an unpreserved

vouching claim for plain error. See United States v. Harris,

471 F.3d 507, 512 (3d Cir. 2006). If petitioner preserved the

claim, we review for abuse of discretion. United States v.

Vitillo, 490 F.3d 314, 325 (3d Cir. 2007).

―Vouching constitutes an assurance by the prosecuting

attorney of the credibility of a Government witness through

personal knowledge or by other information outside of the

testimony before the jury.‖ United States v. Walker, 155 F.3d

180, 184 (3d Cir. 1998) (citations omitted). Such conduct

threatens to ―convey the impression that evidence not

presented to the jury, but known to the prosecutor, supports

the charges against the defendant,‖ thereby ―jeopardiz[ing]

the defendant‘s right to be tried solely on the basis of the

evidence presented to the jury,‖ and ―induc[ing] the jury to

trust the Government‘s judgment rather than its own view of

the evidence.‖ Id. For a prosecutor‘s conduct to constitute

28

vouching, (1) ―the prosecutor must assure the jury that the

testimony of a Government witness is credible,‖ and (2) ―this

assurance [must be] based on either the prosecutor's personal

knowledge, or other information not contained in the record.‖

Id. at 187.

The government is not immunized from this attack

merely because the challenged vouching occurred through the

use of witness testimony. Although ―vouching most often

occurs during summation, . . . [it] may occur at any point

during trial,‖ including witness examination, when the

elicited testimony satisfies the two criteria for vouching.

Vitillo, 490 F.3d at 328. In Vitillo, for example, prosecutors

referred to their presence at the defendant‘s interview by

using the pronoun ―we‖ when examining a government agent

about what the defendant had admitted to the government. Id.

at 329. We concluded that, through their questions, the

prosecutors effectively ―assured the jury that [the witness‘s]

testimony was credible based on their personal observations

of [his] interrogation of [the defendant].‖ Id. As such, it

constituted improper vouching. Id.

In this case, however, the concerns underlying the

vouching prohibition were not implicated by the examination

of Detective Matthews. Although the government elicited

Matthews‘s testimony to assure the jury that Tyiasha Moore

and Angel Ayala were credible, it did not do so based on

information outside of the record. Moreover, the jury could

not glean anything about the prosecutor‘s personal knowledge

of the grand jury proceedings. Thus, at no point did the

prosecutor imply that the jury should disregard the evidence

29

in favor of the government‘s undisclosed knowledge or

judgment. See Walker, 155 F.3d at 184.

Moreover, where the purported vouching is a

―reasonable response to allegations of [impropriety]‖ by the

defense, it is not improper. United States v. Weatherly, 525

F.3d 265, 272 (3d Cir. 2008); see also United States v.

Gentles, 619 F.3d 75, 84-85 (1st Cir. 2010). For instance, in

Weatherly, we allowed the prosecutor a ―brief and appropriate

response‖ during closing to the defense‘s ―speculation and

attacks on the credibility of government witnesses.‖ Id. The

examination of Detective Matthews was also such a response.

The defense had elicited testimony that Moore had testified at

the grand jury under coercive conditions. It was eminently

appropriate for the prosecution to respond by introducing

testimony to rehabilitate. Cf. United States v. Harris, 471

F.3d 507, 512 (3d Cir. 2006). We reject Cruz‘s argument

accordingly.

2. Closing Argument

Cruz, Moore and Rodriguez also challenge the fairness

of the trial on the grounds that prosecutorial misconduct

during closing jeopardized their right to a fair trial. The

alleged misconduct includes the reading of a poem

30

commemorating the victim, Officer Chapman,7 as well as the

use of an enlarged photograph of the victim and brief

references to Rodriguez‘s presence in jail. We review a

district court‘s rulings on contemporaneous objections to

closing arguments for abuse of discretion. United States v.

Lore, 430 F.3d 190, 210 (3d Cir. 2005). Any non-

contemporaneous objections are reviewed for plain error.

United States v. Lee, 612 F.3d 170, 193 (3d Cir. 2010). A

nonconstitutional error ―requires reversal unless the error is

harmless.‖ Id. at 194.

We agree that the closing was rife with misconduct,

and to a degree that should not be tolerated by a district court.

The reading of a commemorative poem could truly serve no

purpose other than to appeal to the emotions and sympathies

of the jury, see Viereck v. United States, 318 U.S. 236, 247-48

& n.3 (1943); a criminal trial may prove cathartic for a

victim‘s friends and family, but the courtroom is not an

appropriate forum for a memorial. If, as the government

7

The poem read at trial consisted of the following:

―To Officer Chapman, I bid you farewell, a man and a hero I

never knew well. Like those before him, he answered the

call, out gunned and out flanked, he was destined to fall. But

the job he chose never promised long life, just respect from

others whom he protected from strife. He went without fear

into that night. Against crime and evil he fought the good

fight. On an April night he did all that he could. He

sacrificed his life to fight bad with good. In the face of a gun

he showed steely nerve, and he kept his promise to protect

and to serve.‖

31

contends, the poem merely reiterated evidence that had been

elicited at trial, then the government can simply discuss that

evidence with the jury. The same goes for the puzzle of

Officer Chapman‘s face, which the government submits was

meant to show the jury how disparate pieces of evidence fit

together. Visual aids can often help in conveying difficult

concepts to a jury, particularly in a factually complex case

such as this. See, e.g., United States v. De Peri, 778 F.2d

963, 979 (3d Cir. 1985) (approving use of a chart to diagram

relationships). But if that were truly the sole purpose behind

the puzzle imagery, there was no such conceivable purpose in

using an enlarged photograph of the victim‘s face as the

puzzle image. Considered jointly with the poem, the purpose

of the government‘s conduct is transparent and its

justifications are not credible; such conduct should not have

been allowed in court.8

Nevertheless, a ―‗criminal conviction is not to be

lightly overturned on the basis of a prosecutor‘s [conduct]

standing alone . . . .‘‖ Lee, 612 F.3d at 194 (quoting United

States v. Young, 470 U.S. 1, 11 (1985)). Rather, ―we ‗must

examine the prosecutor‘s offensive actions in context and in

light of the entire trial, assessing the severity of the conduct,

the effect of the curative instructions, and the quantum of

evidence against the defendant[s].‘‖ Id. (quoting Moore v.

8

The Government also concedes that the references to

Rodriguez‘s presence in jail, both in mentioning his shackles

and his prison letters to his girlfriend, were error. However,

because these were minor incidents, we focus our analysis on

the more troubling instances of misconduct.

32

Morton, 255 F.3d 95, 107 (3d Cir. 2001)); United States v.

Gambone, 314 F.3d 163, 179 (3d Cir. 2003). ―A prosecutor‘s

[conduct] can create reversible error if [it] ‗so infected the

trial with unfairness as to make the resulting conviction a

denial of due process.‘‖ Lee, 612 F.3d at 194 (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).

In the present case, when examined in context and in

light of the entire trial, the prosecutor‘s conduct does not

merit reversal. First, the objectionable poem was a mere ten

lines out of over seventy-five pages of closing argument by

the prosecution and thousands of pages of trial transcript; we

have found prejudice to be minimal from similarly brief

comments. See Gambone, 314 F.3d at 180 (finding no

prejudice where comments took up less than half a page out

of 3200 pages of trial transcript); United States v. Zehrbach,

47 F.3d 1252, 1267 (3d Cir. 1995) (finding no prejudice

where comments were two sentences in a forty-page closing

argument). The same applies to the photograph of Officer

Chapman, which had already been presented as evidence to

the jury in its original form and, in the context of the entire

trial, was displayed during an equally brief period of time.9

Second, instructions by the judge, though not issued directly

in response to the poem, sufficiently removed any lingering

prejudice. See United States v. Wood, 486 F.3d 781, 789 (3d

Cir. 2007) (finding opening and closing jury instructions to

9

The government conceded at oral argument that its

stance on this issue might be different if the photograph and

poem were presented simultaneously, but because that was

not the case, we see no need to address that possibility.

33

consider only the evidence, which did not include argument

by counsel, sufficient, even without issuing an express

curative instruction for the challenged comment); Gambone,

314 F.3d at 180 (same). As in Wood, the judge in this case

instructed the jury repeatedly to base its judgment on the

evidence, not on sympathy or bias,10 and that arguments by

counsel do not constitute evidence. These instructions were

likewise an adequate response to the possibility that the

improper commentary would lead the jury astray in its

deliberations. Moreover, the jury was already aware of the

nature of the crime and the identity of the victim, and

therefore would have been exposed to the passion and

sympathy elicited by the poem throughout the trial. See

Duvall v. Reynolds, 139 F.3d 768, 795 (10th Cir. 1998).

Finally, the jury was presented with ample evidence on which

it could convict the defendants, see Wood, 486 F.3d at 789,

and, as the District Court noted, the poem itself was

―interlaced‖ with evidence adduced at trial. See Gambone,

314 F.3d at 179 (reaffirming prior holdings ―that probative

evidence on the same issue as improper remarks may mitigate

10

Specifically, the District Court instructed the jury

that it was ―to perform [its] duties without sympathy, without

bias, and without prejudice to any party,‖ because ―[o]ur

system of law does not permit jurors to be governed or

affected by bias, sympathy or prejudice.‖ The District Court

also emphasized that ―[u]nder no circumstances . . . should

[the jury‘s] deliberations be affected or diverted by any

appeals to bias, passion, or prejudice, nor influenced by any

pity or sympathy in favor of either side.‖

34

prejudice stemming from those remarks‖). However

prejudicial the photo and poem may seem in isolation, when

viewed in context of the entire trial, prejudice was minimal

and reversal is not warranted.

E. Jury Instructions

In its charge on the specific intent element of

carjacking,11 the District Court instructed the jury that

―whether the Defendant ‗intended to cause death or serious

bodily harm‘ is to be judged objectively from the conduct of

the Defendant as disclosed by the evidence, and from what

one in the position of the alleged victim might reasonably

conclude.‖ Berrios contends that by emphasizing the

perspective of the victim, these instructions established a

subjective standard allowing the jury to find the intent

element satisfied based only on an ―empty threat‖ or

―intimidating bluff,‖ thereby ―render[ing] superfluous the

statute‘s ‗by force and violence or intimidation‘ element.‖

Holloway v. United States, 526 U.S. 1, 11 (1999). We

11

The four elements of carjacking, as instructed by the

District Court, were: (1) ―That the Defendant took a motor

vehicle from the person or presence of another‖; (2) ―That the

Defendant did so by force or violence, or by intimidation‖;

(3) ―That the motor vehicle previously had been transported,

shipped, or received in interstate or foreign commerce‖; and

(4) ―That the Defendant intended to cause death or serious

bodily harm when the Defendant took the vehicle.‖ This

accords with circuit practice. See United States v.

Applewhaite, 195 F.3d 679, 684-85 (3d Cir. 1999).

35

exercise plenary review in determining ―whether the jury

instructions stated the proper legal standard.‖ United States v.

Leahy, 445 F.3d 634, 643 (3d Cir. 2006) (citation omitted).

We review the particular wording of the instructions for abuse

of discretion. Id. (citation omitted). Although an ―an empty

threat, or intimidating bluff . . . is not enough to satisfy

[carjacking‘s] specific intent element,‖ Holloway, 526 U.S. at

11, when read in the context of the charge as a whole, the jury

instructions were proper.

Jury instructions ―‗may not be evaluated in artificial

isolation,‘‖ but rather ―‗must be evaluated in the context of

the overall charge.‘‖ United States v. Williams, 344 F.3d 365,

377 (3d Cir. 2003) (quoting United States v. Goldblatt, 813

F.2d 619, 623 (3d Cir. 1987)). Thus, an instruction that

appears erroneous on its own may be remedied by the balance

of the court‘s instructions. See id. In Williams, for example,

the defendant contested the use of the word ―emboldening‖ in

jury instructions on the ―carry‖ and ―possession‖ prongs of a

§ 924(c) violation. Id. We found no error, because the stray

term was ―included as part of a thorough instruction that

sufficiently tracked language used by the Supreme Court.‖

Id. at 377-78. Likewise, in United States v. Khorozian, 333

F.3d 498, 508 (3d Cir. 2003), we rejected the defendant‘s

contention that an intent instruction for bank fraud

―emasculated‖ the specific intent requirement. Although the

challenged statement, ―taken out of context,‖ did ―not employ

the exact language‖ from our established definition of intent,

the instruction as a whole ―communicate[ed] to the jury that it

must find that [the defendant] possessed the specific intent to

defraud . . . .‖ Id.

36

At the outset, of course, it is apparent that the

challenged clause did not set forth a ―subjective standard,‖ as

Berrios contends, but rather an objective reasonable person

standard. Objective standards are often defined as what a

reasonable person under the circumstances would believe or

understand. See, e.g., J.D.B. v. North Carolina, 131 S. Ct.

2394, 2402 (2011) (―By limiting analysis to the objective

circumstances of the interrogation, and asking how a

reasonable person in the suspect‘s position would understand

his freedom . . . to leave, the objective test [for custody under

Miranda] avoids burdening police with the task of

anticipating the idiosyncrasies of every individual suspect and

divining how those particular traits affect each person‘s

subjective state of mind.‖); United States v. Mendenhall, 446

U.S. 544, 554 (1980) (holding that ―seizure‖ for Fourth

Amendment purposes objectively occurs when ―in view of all

of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave‖).

And despite Berrios‘s contentions otherwise, a ―reasonable

person in the victim‘s position‖ standard is distinguishable

from the victim‘s subjective belief: even where a victim who

is easily intimidated might be subjectively fearful, a jury

employing this standard must discern whether a reasonable

person in that position would find the defendant possessed the

requisite intent.

Even if a juror might mistake the challenged clause as

a subjective standard, the instructions as a whole tracked the

correct standard for specific intent. We have said that a

defendant‘s specific intent is to be judged ―[b]ased upon the

totality of all the surrounding facts and circumstances,‖

37

United States v. Anderson, 108 F.3d 478, 485 (3d Cir. 1997)

(applying specific intent standard for carjacking) (emphasis

added); see Polsky v. Patton, 890 F.2d 647, 650 (3d Cir.

1989) (discussing intent standard for third degree murder),

and not ―by the secret motive of the actor, or some

undisclosed purpose merely to frighten, not to hurt.‖ United

States v. Guilbert, 692 F.3d 1340, 1344 (11th Cir. 1982)

(quoting Shaffer v. United States, 308 F.2d 654, 655 (5th Cir.

1962)). The instructions here invited the jury to consider the

facts in precisely this way: ―objectively from the conduct of

the Defendant as disclosed by the evidence, and from what

one in the position of the alleged victim might reasonably

conclude.‖ The clause which Berrios highlights, read in

context, does no more than provide one of the evidentiary

factors the jury could consider in reaching its verdict. The

fact that the clause appears in the second half of the sentence,

connected by an ―and,‖ confirms its role as a descriptive

example rather than a discrete instruction which contradicts

the initial one. See United States v. Gordon, 290 F.3d 539,

545 (3d Cir. 2003) (―[A] defect in a charge may result in legal

error if the rest of the instruction contains language that

merely contradicts and does not explain the defective

language in the instruction.‖). Thus, read as a whole, the

instruction did not direct the jury to rely on the victim‘s

subjective perception, and therefore, did not run the risk of

allowing a conviction based on empty threats or bluffs.

38

F. Double Jeopardy

Berrios was convicted under Virgin Islands law for

first-degree (felony) murder, 14 V.I.C. § 922(a)(2),12 and

under federal law, 18 U.S.C. § 924(j)(1),13 both premised on

the killing of Officer Chapman. He was sentenced to

consecutive terms of life imprisonment, which he challenges

as a violation of the Fifth Amendment‘s Double Jeopardy

12

The text of § 922(a)(2), in relevant part, defines first

degree murder as ―(a) All murder which . . . (2) is committed

in the perpetration or attempt to perpetrate arson, burglary,

kidnapping, rape, robbery or mayhem, assault in the first

degree, assault in the second degree, assault in the third

degree and larceny.‖

13

The text of § 924(j)(1) provides, in relevant part: ―A

person who, in the course of a violation of subsection (c),

causes the death of a person through the use of a firearm,

shall--(1) if the killing is a murder (as defined in section

1111), be punished by death or by imprisonment for any term

of years or for life; and (2) if the killing is manslaughter (as

defined in section 1112), be punished as provided in that

section.‖

39

Clause.14 Our review is plenary. See United States v. Bishop,

66 F.3d 569, 573 (3d Cir. 1995).

―With respect to cumulative sentences imposed in a

single trial, the Double Jeopardy Clause does no more than

prevent the sentencing court from prescribing greater

punishment than the legislature intended.‖ Missouri v.

Hunter, 459 U.S. 359, 366 (1983). ―Where Congress

intended . . . to impose multiple punishments, imposition of

such sentences does not violate the Constitution.‖ Albernaz v.

United States, 450 U.S. 333, 344 (1981). Accordingly, a

Double Jeopardy challenge must fail if the statutory text

clearly reflects a legislative intent to impose multiple

sentences on a defendant for a single underlying transaction.

See id. at 344 & n.3; Bishop, 66 F.3d at 573-74. If, after

inspection, Congress‘s intent remains unclear, cumulative

sentencing poses no double jeopardy problem only if ―each

provision requires proof of a fact which the other does not,‖

thereby satisfying Blockburger v. United States, 284 U.S. 299

(1932). Bishop, 66 F.3d at 573 (quoting Blockburger, 284

U.S. at 304). However, ―[b]ecause the [Blockburger] rule

‗serves as a means of discerning congressional purpose[, it]

should not be controlling where, for example, there is a clear

indication of contrary legislative intent.‘‖ United States v.

14

―The Virgin Islands and the federal government are

considered one sovereignty for the purposes of determining

whether an individual may be punished under both Virgin

Islands and United States statutes for a similar offense

growing out of the same occurrence.‖ Gov’t of the V.I. v.

Braithwaite, 782 F.2d 399, 406 (3d Cir. 1986).

40

Conley, 37 F.3d 970, 975-76 (3d Cir. 1994) (third alteration

in original) (quoting Albernaz, 450 U.S. at 340).

The parties agree that, because felony murder in the

Virgin Islands is a lesser included offense of 18 U.S.C.

§ 924(j), Blockburger is not satisfied. The question we are

faced with is whether, by expressly requiring a § 924(c)

violation before imposing a § 924(j) penalty, Congress also

intended § 924(j) to incorporate subsection (c)‘s consecutive

sentence mandate, § 924(c)(1)(D)(ii). This is a question

which has divided our sister circuits. Compare United States

v. Dinwiddie, 618 F.3d 821, 837 (8th Cir. 2010) (holding that

consecutive sentence provision under § 924(c) applies to

sentences imposed under § 924(j)), and United States v.

Battle, 289 F.3d 661, 665-69 (10th Cir. 2002) (same), with

United States v. Julian, 633 F.3d 1250, 1252-57 (11th Cir.

2011) (holding that § 924(j) defines a distinct offense from

§ 924(c) and is not subject to consecutive sentence mandate).

We conclude that Congress did so intend, and will therefore

deny Berrios‘s double jeopardy challenge.

1. The Statutory Scheme

As is customary in cases of statutory interpretation,

―our inquiry begins with the language of the statute and

focuses on Congress‘[s] intent.‖ United States v. Abbott, 574

F.3d 203, 206 (3d Cir. 2009). ―Because statutory

interpretation . . . is a holistic endeavor,‖ we do ―not look

merely to a particular clause in which general words may be

used, but will take in connection with it the whole statute.‖

United States v. Cooper, 396 F.3d 308, 313 (3d Cir. 2005)

(internal marks and quotations omitted).

41

The text of 18 U.S.C. § 924(j) reads as follows:

―A person who, in the course of a

violation of subsection (c), causes the

death of a person through the use of a

firearm, shall—

(1) if the killing is a murder (as

defined in section 1111), be

punished by death or by

imprisonment for any term of

years or for life, and

(2) if the killing is manslaughter

(as defined in section 1112), be

punished as provided in that

section.‖

18 U.S.C. § 924(j) (emphasis added). By virtue of the

subsection (c) cross-reference, we will begin, counter-

intuitively, with § 924(c).

We have explored the mechanics of 18 U.S.C. § 924(c)

more fully elsewhere, see Abbott, 574 F.3d at 206-08; Bishop,

66 F.3d at 573-75, but briefly revisit it here. In its prefatory

clause, subsection (c) begins by identifying a core set of

predicate offenses, crimes of violence and drug trafficking

crimes, which fall within its scope. See § 924(c)(1)(A). The

prefatory clause then provides that a defendant who commits

a predicate offense while using, carrying or possessing a

firearm, is subject to a mandatory punishment ―in addition to‖

the sentence for that predicate offense. Id. Subsection (c)

42

also makes clear that ―no term of imprisonment imposed on a

person under . . . subsection [(c)] shall run concurrently with

any other term of imprisonment imposed on the

person . . . .‖15 § 924(c)(1)(D)(ii) (emphasis added) (the

―consecutive sentence mandate‖). The Supreme Court –

along with every Court of Appeals to address the question,

including our own – has unequivocally held that ―[w]hen a

defendant violates § 924(c), his sentencing enhancement

under that statute must run consecutively to all other prison

terms.‖ United States v. Gonzales, 520 U.S. 1, 9-10 (1997)

(emphasis added); see, e.g., Bishop, 66 F.3d at 574-75

(―‗[T]he legislative intent to impose a consecutive sentence

for the violation of section 924(c) is plain from the language

15

Although the scope of § 924(c)(1)(D)(ii)

substantially overlaps with that of subsection (c)‘s prefatory

clause, § 924(c)(1)(A), the consecutive sentence mandate

applies to ―any other term of imprisonment imposed,‖ thereby

reaching more broadly than the language of the prefatory

clause, which only mandates the imposition of penalties in

addition to the predicate offense. In recognition of this, the

government implicitly concedes that where, as here, Berrios

challenges the § 924(j) sentence based on a conviction for

felony murder which was not the charged predicate offense,

only the consecutive sentence mandate is controlling.

Nevertheless, we can see no reason for Congress to

differentiate between the extension of the prefatory clause to

subsection (j) and the extension of the consecutive sentence

mandate, because both are essential to the sentencing scheme.

43

of that provision . . . .‘‖ (quoting United States v. Mohammed,

27 F.3d 815, 819-20 (2d Cir. 1994))).

The remainder of subsection (c) then provides a length

for the additional mandatory sentence, the severity of which

depends on factors delineated in that subsection or elsewhere.

See Abbott, 574 F.3d at 206-08 (holding that mandatory

minimum sentences provided in other provisions of law may

apply to increase a subsection (c) punishment). The

provisions of subsection (c) provide for greater sentence

lengths based upon, for example, actual discharge of the

weapon, § 924(c)(1)(A)(iii), or the use of a machinegun,

§ 924(c)(1)(B)(ii). This structure extends to § 924 (j): like

the rest of subsection (c), § 924(j) simply provides an

additional circumstance beyond the existence of the predicate

offense – namely, where a subsection (c) violation results in

the death of a person – that governs the length of a sentence

to be imposed. See 18 U.S.C. § 924(j) (varying sentence

lengths depending on whether death results from murder or

manslaughter). Understood in the context of the statutory

scheme, section 924(j) effectively functions as an extension

of subsection (c)‘s statutory core. And in light of the

subsection (c) cross-reference, Congress‘s intent to treat it as

such is clear. With the statutory scheme firmly in mind, we

turn to the double jeopardy issue.

2. The Consecutive Sentence Mandate

Berrios‘s principal argument is that § 924(j) lacks any

indication that a sentence is to be stacked on top of his other

offenses, and therefore the requisite congressional intent is

not present. He also observes that the consecutive sentence

44

mandate exclusively applies to a penalty ―imposed under‖

subsection (c), see 18 U.S.C. § 924(c)(1)(D)(ii), and contends

that a sentence imposed pursuant to a subsection (j)

conviction is not ―imposed under‖ subsection (c) because,

following the Eleventh Circuit‘s reasoning in Julian, 633 F.3d

at 1252-57, subsection (j) constitutes a separate offense.

Although the government concedes that § 924(j) establishes a

discrete crime from § 924(c), this has no bearing on our

decision: we are persuaded that under any reasonable

interpretation, 18 U.S.C. 924(j) is subject to the consecutive

sentence mandate provided in § 924(c)(1)(D)(ii).

First, in light of Congress‘s clear intent to stack

punishments for all § 924(c) violations, we agree with the

Tenth Circuit that ―[t]he failure to repeat the prohibition

against concurrent sentences set forth in § 924(c)(1)(D)(ii)

does not demonstrate that Congress has determined that the

penalty set forth in § 924(j) should not be imposed ‗in

addition to‘‖ any other term of imprisonment. Battle, 289

F.3d at 668. After all, the consecutive sentence mandate is

the heart of the statutory scheme set forth by subsection (c);

its veritable raison d’être. See Gonzales, 520 U.S. at 9-10. It

takes no special insight or leap of logic to conclude that the

central reason for Congress‘s choice of language in writing

subsection (j) – ―during the course of a violation of

subsection (c)‖ – was to ensure that separating out subsection

(j) from subsection (c) did not deprive the law of a coherent

sentencing scheme, the heart of which is the consecutive

45

sentence mandate.16 As we have said before, ―[o]nce

Congress has clearly stated an intention to stack punishments

as it did in section 924(c), ‗it need not reiterate that intent in

any subsequent statutes that fall within the previously defined

class.‘‖ Bishop, 66 F.3d at 575 (quoting United States v.

Singleton, 16 F.3d 1419, 1428 (5th Cir. 1994)).

To interpret the text any other way would give rise to

an anomalous result: that ―a defendant convicted under

§ 924(c) is subject to an additional consecutive sentence only

in situations that do not result in a death caused by use of a

firearm.‖ Allen, 247 F.3d at 769; Battle, 289 F.3d at 668

(quoting Allen, 247 F.3d at 769). We agree with the Eighth

and Tenth Circuits that it is highly ―unlikely that Congress,

which clearly intended to impose additional cumulative

punishments for using firearms during violent crimes in cases

where no murder occurs, would turn around and not intend to

impose cumulative punishments in cases where there are

actual murder victims.‖ Battle, 289 F.3d at 668 (quoting

16

We find unpersuasive the Eleventh Circuit‘s

reasoning in Julian, 633 F.3d at 1255-56, that the contrary

interpretation is necessary to avoid rendering superfluous the

language of § 924(c)(5), because otherwise, ―no difference

[would] exist[] between the sentences that these two

provisions prescribe[].‖ In fact, there is a patently obvious

difference: § 924(j) requires the death of a person ―through

the use of a firearm,‖ (emphasis added), whereas § 924(c)(5)

is based on the use, carrying, or possession of ―armor

piercing ammunition,‖ (emphasis added), which is, of course,

not a firearm.

46

Allen, 247 F.3d at 769). In light of the statutory scheme and

purpose shared by subsection (c) and subsection (j), we

simply cannot impute a contradictory intent to Congress

without some underlying rationale.

This reading is supported by our prior interpretation of

§ 924(c)‘s prefatory clause, which instructs that the penalties

enumerated in subsection (c) apply ―in addition to the

punishment provided‖ for the predicate crime of violence or

drug trafficking offense, ―except to the extent that a greater

minimum sentence is otherwise provided by this subsection

or by any other provision of law.‖ 18 U.S.C. § 924(c)(1)(A)

(emphasis added); see Abbott, 574 F.3d at 206-08. As we

discussed in Abbott, the prefatory clause‘s mandatory

sentencing scheme is not limited to subsection (c), because

―[i]n referring to alternative minimum sentences, the

prefatory clause mentions ‗any other provision of law‘ to

allow for additional § 924(c) sentences that may be codified

elsewhere in the future . . . .‖ 574 F.3d at 208 (emphasis

added). The clause thereby ―provides a safety valve that

would preserve the applicability of any other provisions that

could impose an even greater mandatory minimum

consecutive sentence for a violation of § 924(c).‖ United

States v. Studifin, 240 F.3d 415, 423 (4th Cir. 2001).

Although Abbott did not place subsection (j) squarely

before us at that time, we think that subsection (j) was the

unambiguous target of this safety valve. Accordingly, if

Congress wanted to increase the mandatory minimum for a

violation of subsection (c) resulting in the death of a person, it

could do so in subsection (j) without rewriting the entire

statute. Cf. Bishop, 66 F.3d at 575. Thus, Congress‘s intent

47

in imposing cumulative punishment on a defendant for both a

§ 924(c) violation and a predicate offense was not constrained

to those penalties provided solely by that subsection. Rather,

the consecutive sentence scheme is intended to impose

additional punishments for any violation of subsection (c),

whether the penalties for such violations are provided in that

subsection or elsewhere.

Second, we think that Berrios‘s interpretation of

sentences ―imposed under‖ subsection (c) to exclude

subsection (j) lacks a firm textual basis and is unduly

restrictive in light of the statutory scheme. Of course,

―imposed under‖ could refer to only those sentences literally

listed in subsection (c), but that is by no means the only

possible definition. For instance, Webster‘s defines ―under‖

as, in part, ―subject to regulation by,‖ see Webster‘s Third

Int‘l Dictionary (1989), and so it is equally plausible that a

sentence ―imposed under‖ subsection (c) means ―subject to

regulation by‖ subsection (c), a definition under which

subsection (j) would clearly qualify. But in light of the

statutory scheme as a whole, it is apparent that the phrase

serves a functional – as opposed to literal – purpose, by

identifying those sentences imposed as a consequence of a

subsection (c) offense: in other words, those sentences

handed down for a subsection (c) violation.

Although we decline to follow the Eighth and Tenth

Circuits in concluding that subsection (j) merely sets forth

sentencing elements to be applied to a subsection (c) offense,

see Battle, 289 F.3d at 666; Allen, 247 F.3d at 769, such a

48

determination is not dispositive.17 The sentencing scheme

embodied by subsection (c) does not distinguish between an

17

We acknowledge that our resolution of this issue

would be more straightforward were we to follow the Eighth

and Tenth Circuits in holding that § 924(j) merely provides an

―enhancement‖ for a § 924(c) offense. See Battle, 289 F.3d at

666; Allen, 247 F.3d at 769. Nevertheless, we are persuaded

that such a reading would be inconsistent with the Supreme

Court‘s analysis of § 924(c) enhancements and offenses in

Castillo v. United States, 530 U.S. 120, 124-31 (2000), and

Harris v. United States, 536 U.S. 545, 552-56 (2002), as well

as Jones v. United States, 526 U.S. 227, 233-52 (1999) –

cases which the Eighth and Tenth Circuits did not address.

49

In Castillo, the Court held that a then-current provision

enhancing the mandatory minimum sentence for use of a

machinegun during a § 924(c)(1) violation constituted an

element of a separate crime rather than a sentencing factor.

530 U.S. at 124-31. The Court reasoned that the use of a

machinegun reflected a ―great‖ variation, ―both in degree and

in kind,‖ from a generic § 924(c) offense, and was unlike

―traditional sentencing factors‖ relating to offender

characteristics, such as recidivism. Id. at 126. The Court also

acknowledged that ―treating facts that lead to an increase in

the maximum sentence as a sentencing factor would give rise

to significant constitutional questions.‖ Id. at 124 (citing

Jones, 526 U.S. at 239-52). Conversely, in Harris, 536 U.S.

at 556, the Court held that the provisions of § 924(c)

increasing the penalty for brandishing or discharging a

firearm were sentencing factors, not elements. Those

provisions did ―not repeat the elements from the principal

paragraph‖ setting forth the offense, raised the minimum

sentences in incremental steps, and were premised on

―paradigmatic sentencing factor[s].‖ Id. at 552-54.

50

These cases, in conjunction with Jones, 526 U.S. at

251-52, where the Court held that ―death‖ constituted an

element of an aggravated carjacking offense under 18 U.S.C.

§ 2119(3), guide us here. We think that the death of a person

– a fact more serious than the use of a machinegun in Castillo

– introduces a ―great‖ variation in degree and in kind from

other subsection (c) offenses, and cannot be considered a

―traditional sentencing factor.‖ See 530 U.S. at 124; Jones,

526 U.S. at 233, 243-44. Additionally, just as the significant

step up in the mandatory minimum for machinegun use – 25

years – would have posed ―significant constitutional

questions‖ if premised on a sentencing factor, Castillo, 530

U.S. at 124, exposure to life imprisonment and the death

penalty in § 924(j) would as well. See Jones, 526 U.S. at 233,

239-52. In sum, these characteristics, in addition to locating §

924(j) in a wholly separate subsection rather than integrating

it into § 924(c), strongly suggest that Congress intended the

death of a person to be considered an element of a discrete

offense – an offense provided by § 924(j).

51

increased sentence provided as a function of a sentencing

factor, as in § 924(c)(1)(A)(iii), see Harris v. United States,

536 U.S. 545, 552-54 (2002), or an element of a separate

offense, as in § 924(c)(1)(B)(ii), see Castillo v. United States,

530 U.S. 120, 125-26 (2000). Nor do we think that, where an

offense is defined jointly by two statutory provisions, a

sentence can only be ―imposed under‖ one of them. Rather,

we are persuaded that a subsection (j) sentence qualifies as a

sentence ―imposed under‖ subsection (c), even though it is

also ―imposed under‖ subsection (j), because they are part

and parcel of the same statutory scheme, and jointly provide

the legal basis for the sentence. Simply put, because a §

924(j) sentence is imposed on a defendant for violating

subsection (c), such a sentence is ―imposed under‖ subsection

(c).18

Nevertheless, we do not think that this is the proper

case to decide the question. First, the government expressly

stated at argument that it considered § 924(j) to constitute a

separate offense and, consistent with this view, specifically

charged a § 924(j) offense in Count Six of the indictment.

Second, in its instructions to the jury, the District Court

included the death of a person as an element of the § 924(j)

offense, thereby obviating any possibility that the exposure to

an increased maximum sentence compromised due process,

which would be the central issue implicated by our decision.

See Jones, 526 U.S. at 232.

18

This is also consistent with the indictment, which

charged Berrios with a violation of § 924(c) along with a

violation of § 924(j).

52

We find the Eleventh Circuit‘s reasoning to the

contrary unpersuasive. See Julian, 633 F.3d at 1253. In

concluding that a subsection (j) penalty is not ―imposed

under‖ subsection (c) because subsection (j) ―provided

[defendant‘s] sentence,‖ the Eleventh Circuit looked to

―decisions of our sister circuits that have declined to read

section 924(o), which punishes ‗conspir[acies] to commit an

offense under subsection (c),‘ as requiring consecutive

sentences.‖ Id. But neither United States v. Clay, 579 F.3d

919, 933 (8th Cir. 2009), nor United States v. Stubbs, 279

F.3d 402, 405-09 (6th Cir. 2002), overruled on other grounds

by United States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003),

the two cases on which Julian relies, are analogous. In those

cases, the defendant was charged and convicted of a § 924(o)

offense, but sentenced under § 924(c), thereby posing a

severe problem under Apprendi v. New Jersey, 530 U.S. 466

(2000). See Stubbs, 279 F.3d at 408-09. Here, on the other

hand, as in Julian, the defendant was convicted and sentenced

under the same provision, § 924(j), thereby implicating none

of the concerns underlying those decisions. Moreover,

§ 924(o)‘s relationship to § 924(c) is easily distinguishable

from that of § 924(j): § 924(o) creates a conspiracy offense,

which is by nature inchoate, and therefore does not require

that the defendant actually commit the underlying crime. See

Iannelli v. United States, 420 U.S. 770, 777 (1975). In that

regard, a § 924(o) sentence, unlike § 924(j), is in no way

dependent on a § 924(c) violation, and therefore provides no

guidance for our analysis here.

Based on our reading of the statutory scheme, we

conclude that Congress intended a defendant who violates

53

subsection (c) to be subject to enhanced sentences by virtue

of the consecutive sentence mandate. A defendant who

violates subsection (j) by definition violates subsection (c),

and therefore is subject to the mandate, regardless of whether

§ 924(j) constitutes a discrete criminal offense from § 924(c).

And when Congress required proof of a § 924(c) violation

before imposing the penalties listed under § 924(j), it

intended to include a subsection (j) penalty within the scope

of those sentences ―imposed under‖ subsection (c). Finding

that Congress clearly intended to impose cumulative

punishment for a violation of subsection (j) and any other

offense, see Albernaz, 450 U.S. at 344, we reject Berrios‘s

double jeopardy challenge accordingly.

IV.

For the foregoing reasons, we will affirm the

judgments of conviction and sentence.

54