Government of the Virgin Islands v. Mosby , 512 F. App'x 253 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-3676
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GOVERNMENT OF THE VIRGIN ISLANDS
v.
GENT MOSBY,
Appellant
_____________
On Appeal from the Appellate Division of the
District Court of the Virgin Islands
District Court No. 3-97-cr-00015-001
District Judge: The Honorable Raymond L. Finch
District Judge: The Honorable Legrome D. Davis
Superior Court Judge: The Honorable Patricia D. Steele
Argued December 3, 2012
Before: SMITH, HARDIMAN, and ROTH, Circuit Judges
(Filed: January 30, 2013 )
Pamela R. Tepper ARGUED
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802
Counsel for Plaintiff-Appellee
Samuel A. Walker ARGUED
201 East Pine Street
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Suite 445
Orlando, FL 32801
Counsel for Defendant-Appellant
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OPINION
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SMITH, Circuit Judge.
In August of 1996, a jury found Gent Mosby guilty of the March 26, 1994
murder of Officer Steven Hodge. On this direct appeal, he challenges his
convictions on constitutional, evidentiary, and procedural grounds. We will affirm.
I
Officer Steven Hodge’s murder took place shortly after 11:00 pm on
March 26, 1994. He was shot fourteen times by at least two people using four
different guns. Police found only one piece of physical evidence at the scene, a
towel with gun residue. It was found near a bush close to Officer Hodge’s home
and appeared to have been recently placed there.
Earlier on the day of the murder, two witnesses saw Mosby with two of his
codefendants—Carl Fleming and Ricky Vanterpool—at a store Mosby ran called
New York’s Latest Fashions. One of these witnesses, Gwentin Sellwood, testified
at trial that he saw them there and that he saw Mosby remove three guns from a
paper bag, two of which he handed to Fleming and Vanterpool. Sellwood also saw
a long gun with a damaged handle on the counter behind Mosby. On the back of a
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chair near Mosby, he saw a towel similar to the one found near the crime scene.
Finally, Sellwood also heard Mosby tell his codefendants that he would pick them
up at 11:30 pm so that they could take care of “serious business.” The other
witness, Vincent Daniel, also visited the store and saw Mosby with Vanterpool.
While Daniel was there, he heard the “cranking of a gun” from the bathroom.
Witnesses Bernice Celestine, Eustace Sorhaindo, and Shorn Pennyfeather all
heard gun shots the evening of the murder and saw four men dressed in black near
Officer Hodge’s home shortly before or after his murder. Only Sorhaindo was able
to identify at trial any of the four men he saw. He identified Mosby and another
codefendant, Pedro Harris. He later recanted his identification of Harris, but he
never withdrew his identification of Mosby.
Two days after the murder, Sellwood again encountered Mosby. This time,
Mosby had just been questioned by police about the murder of a police officer.
Sellwood helped Mosby clean out New York’s Latest Fashions store and heard
him exclaim several times that he would not go to jail. Several months later,
Sellwood encountered Mosby, Fleming, and Vanterpool. Mosby pointedly stopped
Sellwood on the street to tell him that “whatsoever you hear in the store or
whatsoever you see in the store, don’t ever leave me hear it or otherwise me and
the boys them will take you out.”
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Mosby offered two defenses at trial. First, he tried to provide an alibi for the
evening of the murder by explaining that he was at strip clubs. Second, he claimed
that the murder was committed by corrupt Virgin Islands police officers who knew
that Officer Hodge was about to report them. In support of this second defense,
Mosby offered a recording in which a person involved in the drug business
allegedly explained to a confidential informant (“CI”) that Virgin Islands police
officers had approached him to hire a contract killer to murder Officer Hodge. The
person in the recording was allegedly Vargas Paniagua, who purportedly assisted
in the murder because Officer Hodge owed Paniagua cocaine money. Despite
Mosby’s attempts, Paniagua was not produced to testify at trial, the recording was
not admitted into evidence, and the CI’s identity was not revealed.
On August 19, 1996, in the Virgin Islands Superior Court, 1 a jury found
Mosby guilty of first-degree murder, conspiracy to commit murder, unauthorized
possession of a firearm, and threatening a witness. On November 16, 1996, the
Superior Court denied Mosby’s motion for a judgment of acquittal or, in the
alternative, a new trial. He then filed a timely appeal to the Appellate Division of
the Virgin Islands District Court. Mosby v. Gov’t of Virgin Islands, No. 1997-
0015-1, 2011 WL 4357301, at *3 (D.V.I. Sept. 16, 2011) (per curiam). After an
1
At the time of trial, the trial court was known as the Territorial Court. Starting in
October 2004, the Territorial Court became known as the Superior Court. We will
refer to the trial court as the Superior Court.
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unexplained fifteen-year delay, the Appellate Division affirmed Mosby’s
conviction on January 22, 2010. Mosby, 2011 WL 4357301, at *3. Mosby then
filed a timely appeal to this Court.
The Appellate Division had jurisdiction to hear Mosby’s appeal pursuant to
48 U.S.C. § 1613a(a) and (d). We review the Superior Court’s rulings using the
same standards of review as those employed by the Appellate Division. Semper v.
Santos, 845 F.2d 1233, 1236 (3d Cir. 1988); Gov’t of Virgin Islands v. Lewis, 620
F.3d 359, 364 & n.4 (3d Cir. 2010).
II
Mosby challenges his conviction on five grounds.2 Three arguments relate to
the Paniagua tape recording. Mosby argues that the Superior Court violated his
Sixth Amendment right to compulsory process when it denied his motion for a writ
of habeas corpus ad testificandum requiring Paniagua to testify, that the Superior
Court erred by determining that the tape was inadmissible hearsay, and that the
Superior Court was incorrect to deny his motion to disclose the identity of the CI
2
Mosby also suggests that Sorhaindo’s in-court and out-of-court identifications
should have been suppressed. He fails, however, to provide any legal basis for his
in-court identification argument or accurate record citations for his out-of-court-
identification argument. Accordingly, these arguments have not been properly
presented and will not be addressed. See Kost v. Kozakiewicz, 1 F.3d 176, 182–83
(3d Cir. 1993); Rebuck v. Vogel, 713 F.2d 484, 487 (8th Cir. 1983). Mosby’s
change of venue argument is similarly flawed because he fails to provide any legal
or factual support for the argument.
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who recorded the conversation. Besides the Paniagua-related arguments, Mosby
makes two additional arguments. First, he argues that the testimony of Athnell
Coker violated the rule of Bruton v. United States, 391 U.S. 123 (1968), because it
contained the confession of one of Mosby’s codefendants, Maurice Richardson,
that impermissibly implicated Mosby. Second, he argues that the transcript of
Sorhaindo’s testimony should have been read back to the jury in its entirety, even
though they requested only a portion of it. None of these arguments have merit.
Mosby’s Sixth Amendment right to compulsory process was not violated
because Paniagua’s testimony would not have been favorable. United States v.
Valenzuela-Bernal, 458 U.S. 858, 867–68 (1982). To assert this Sixth Amendment
right to produce a witness, a defendant must show (among other things) “that the
excluded testimony would have been material and favorable to his defense.” Gov’t
of Virgin Islands v. Mills, 956 F.2d 443, 446 (3d Cir. 1992) (citing Rock v.
Arkansas, 483 U.S. 44, 56 (1987)). Mosby argues that Paniagua’s testimony would
have been material and favorable because the tape allegedly showed that if
Paniagua were to testify truthfully, then he would explain that he was approached
by Virgin Islands police officers who wanted his help to hire a contract killer to
murder Officer Hodge. During a pretrial proceeding, however, Paniagua denied
under oath that he participated in the conversation recorded or a conversation
similar to it. Mosby thus failed to show that Panaigua’s testimony at trial would
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have been favorable or material.
Mosby contends that the required showing would have been met if he had
been given a chance to confront Paniagua’s denial of involvement in the murder
with the recording, which the parties agree constitutes hearsay. We are not
persuaded. The favorability determination must be based on a witness’s actual
testimony and admissible evidence. This is so because defendants cannot
circumvent the rules of evidence by calling witnesses solely to impeach them with
evidence that would otherwise be inadmissible. United States v. Sebetich, 776 F.2d
412, 428–29 (3d Cir. 1985). The Superior Court therefore did not violate Mosby’s
Sixth Amendment right to compulsory process by refusing to compel Paniagua’s
testimony. 3
The Superior Court also did not err in concluding that the tape was not
admissible under either Federal Rule of Evidence 804(b)(3) as a statement against
3
Similarly, the Superior Court’s denial of Mosby’s motion for a writ of habeas
corpus ad testificandum was not an abuse of discretion. See United States v. Cruz-
Jiminez, 977 F.2d 95, 99 (3d Cir. 1992) (explaining that our standard of review for
denials of the writ of habeas corpus ad testificandum is for abuse of discretion).
This writ may be denied if “the witness’s testimony is only peripherally relevant
. . . .” Id. at 100. Paniagua’s denial of his participation in the conversation is not
relevant at all because it would not make any “fact more or less probable.” Fed. R.
Evid. 401(a). That the Superior Court’s denial of Mosby’s motion was a reversal of
its initial decision to grant it is also not an abuse of discretion because trial judges
are permitted to test the proffered evidence used to support a motion. See Luce v.
United States, 469 U.S. 38, 41 (1984).
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interest or the residual exception in Rule 807.4 This decision was not an abuse of
discretion because the tape was inadequately substantiated by other evidence. See
United States v. Starnes, 583 F.3d 196, 213–14 (3d Cir. 2009) (explaining that we
review admissibility rulings for abuse of discretion). For a statement to be admitted
under either of these exceptions, the statement’s content and context must
demonstrate its trustworthiness. United States v. Boyce, 849 F.2d 833, 835–36 (3d
Cir. 1988) (explaining that trustworthy circumstances is one of two requirements
for the statement against interest exception to apply); United States v. Bailey, 581
F.2d 341, 346–47 (3d Cir. 1978) (explaining that the residual exception can be
used when trustworthiness and “high degrees of probativeness and necessity are
present”). The record supports the Superior Court’s conclusion that the statements
on the tape were untrustworthy. There is simply no evidence to support the tape’s
suggestion that a hit man was brought to the Virgin Islands. If anything, the
evidence at trial suggests that a hit man was not involved because of the multiple
guns used in the killing. Mosby does not explain why the officers would pay a hit
man $50,000 to join them in murdering a police officer, rather than to simply kill
the officer himself.
Furthermore, the record does not provide any reason to conclude that the
4
The Superior Court’s ruling refers to Federal Rule of Evidence 804(b)(5), which
was the location of the residual exception at the time of the trial. The exception
now appears in Rule 807.
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Superior Court was clearly unreasonable in determining that the circumstances did
not indicate trustworthiness. There is evidencing supporting the conclusion that the
CI was financially motivated to fabricate evidence and had been an unreliable
informant in the past. Furthermore, the tape does show that Paniagua’s statement
was not spontaneous and was made when he had reason to enhance his criminal
reputation to the CI by sounding “all powerful.” Accordingly, the Superior Court’s
ruling that the statements on the tape were inadmissible hearsay was not an abuse
of discretion.
Mosby’s final Paniagua-related argument is that the identity of the CI,
known as SKS, should have been disclosed so that Mosby could authenticate the
statements on the tape. We review the Superior Court’s denial of Mosby’s motion
to disclose SKS’s identity for abuse of discretion. United States v. Johnson, 302
F.3d 139, 149 (3d Cir. 2002). A defendant is generally not entitled to the identity
of a CI when “the informant was not an active participant or eyewitness, but rather
a mere tipster” to the reported offense. United States v. Jiles, 658 F.2d 194, 197–98
(3d Cir. 1981). Here, SKS was very similar to a tipster because he had no role in
the murder of Officer Hodge and only happened upon the information in the tape
as a part of an unrelated drug investigation. SKS thus could not provide any
information beyond what was already on the tape, thereby rendering his identity of
minimal value to the preparation of Mosby’s defense. Cf. Roviaro v. United States,
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353 U.S. 53, 62 (1957) (explaining that disclosure of confidential informants’
identities is guided by the balancing of “the public interest in protecting the flow of
information against the individual’s right to prepare his defense”). The Superior
Court’s denial of Mosby’s request to disclose SKS’s identity was not, therefore, an
abuse of discretion.
Aside from the issues relating to Paniagua, Mosby also challenges the
testimony of Athnell Coker. Coker recounted the confession of one of Mosby’s
codefendants, Maurice Richardson, who did not testify at trial. Coker testified that
“they went down Lindberg Bay in the bushes and stake out and waited until Hodge
came out of his house and shoot him.” Mosby argues that Coker’s use of “they”
impermissibly implicated him in violation of his Sixth Amendment right to
confrontation. See Bruton, 391 U.S. at 136–37. Mosby also argues that the same
improper implication resulted from both the prosecutor’s unanswered questions
regarding the number of people and types of guns involved and in his closing
argument that reformulated Coker’s statement. These arguments are meritless.
In Bruton, the Supreme Court held that the prosecutor’s introduction into
evidence of a nontestifying codefendant’s confession violates a defendant’s right
under the Confrontation Clause when “there is a strong implication that the non-
testifying codefendant’s confession refers to the defendant.” Pabon v. Mahanoy,
654 F.3d 385, 393 (3d Cir. 2011). The use of “they” here is not sufficient to create
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an unconstitutionally strong implication. At no point in the testimony does Coker
identify or mention the activities of other people in the crime, much less imply that
Mosby was involved. Furthermore, the Superior Court properly stopped Coker
from answering the prosecutor’s questions about the number of people and the
number of guns. This prevented any possible implication that Coker’s use of
“they” referred to the other defendants in the courtroom. Cf. United States v.
Richards, 241 F.3d 335, 340–41 (3d Cir. 2001) (finding a Bruton violation when
the redaction of the codefendant’s confession “sharply incriminated” the
nonconfessing defendant). And though the prosecutor may have suggested in his
closing statement that Richardson meant Mosby when he said “they,” this is
insufficient because the testimony and other evidence left open other possible
inferences that the jury was free to make. See Priester v. Vaughn, 382 F.3d 394,
399 (3d Cir. 2004). Coker’s testimony, therefore, did not violate Mosby’s Sixth
Amendment right to confrontation as understood in Bruton.
Mosby’s final argument is that the Superior Court erred by reading back
only the portion of Sorhaindo’s testimony that the jury requested, rather than
Sorhaindo’s entire testimony. Trial courts have broad discretion in deciding which
portions of testimony to reread to a jury upon its request. United States v. Wright-
Barker, 784 F.2d 161, 174 (3d Cir. 1986), superseded on other grounds by statute
as recognized in United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir.
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1993). District courts do not abuse this discretion by limiting the part read back to
the part requested by the jury, even though the defendant may have wanted more
read. Wright-Barker, 784 F.2d at 174. Here, the Superior Court read only that
portion requested by the jury, which even Mosby’s trial counsel recognized was all
that was required. The Court did not, therefore, abuse its discretion.
III
For these reasons, we will affirm Mosby’s convictions.
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