United States v. Francis Brooks

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 12-2301, 12-2354, 12-2675, 12-2875
_______________
UNITED STATES OF AMERICA,
Appellee/Cross-Appellant
v.
BILL JOHN-BAPTISTE, FRANCIS BROOKS, & ENID
EDWARDS
Appellants/Cross-Appellees
________________
Appeal from the District Court
for the District of the Virgin Islands (D.V.I.)
(D.V.I. Criminal Action Nos. 3-10-cr-00036-001,
3-10-cr-00036-002 & 3-10-cr-00036-004)
District Judge: Honorable Curtis V. Gomez
________________
Argued: April 24, 2013
Before: MCKEE, Chief Judge
and SCIRICA, VANASKIE, Circuit Judges
(Opinion filed: February 19, 2014)
Sonja Ralston (argued)
United States Department of Justice
Appellate Section, Criminal Division
Room 1264
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Counsel for Appellee/Cross-Appellant
Donnie M. King (argued)
1212 Bjerge Gade
Charlotte Amalie
St. Thomas, USVI 00802-000
George H. Hodge, Jr. (argued)
P.O. Box 803
Charlotte Amalie
St. Thomas, USVI 00804-000
Allison B. Duffie (argued)
Entin & Della Fera
110 Southeast Sixth Street
Suite 1970
Fort Lauderdale, FL 33301
Counsel for Appellants/Cross-Appellees
________________
OPINION OF THE COURT
________________
McKEE, Chief Judge
In this consolidated appeal, Francis Brooks, Enid
Edwards, and Bill John-Baptiste challenge their convictions
following trial before the District Court. All convictions
stemmed from the defendants’ alleged extortion, kidnapping,
bribes, and drug trafficking while each served as law
enforcement officers. Brooks and Edwards were employed
with the Virgin Islands Police Department (“VIPD”), and
John-Baptiste was employed by the Virgin Islands Port
Authority (“VIPA”). Defendants challenge their convictions
on various constitutional and evidentiary grounds. In
2
addition, the government cross-appeals the District Court’s
judgment of acquittal on certain counts. For the reasons that
follow, we will reverse the District Court’s judgment of
acquittal as to counts 5, 6, 10, 11, 12, and 46, and affirm the
judgment of the District Court with respect to all other counts.
I. Background
This case presents a sordid picture of “law
enforcement officers” who sought to enrich themselves rather
than protect the public by engaging in a protracted pattern of
criminality that included extortion, drug dealing and
kidnapping, all at the expense of the residents of the United
States Virgin Islands.
In September 2010, a federal grand jury issued a 53-
count superseding indictment against the defendants, and the
case proceeded to trial. At trial, the prosecution introduced
the following evidence as to particular charges in the
superseding indictment.
A. Evidence of Specific Crimes
1. Brooks and Edwards Distribute Six
Pounds of Marijuana for Resale. (Counts 2 to 4)
Kelvin Moses testified that in 2005, Brooks and
Edwards approached him in their police cruiser and sold him
six pounds of marijuana for him to resell. Joint App. 643-46.
Moses also testified that prior to this exchange, from 2000 to
2003 and from 2005 to 2007, he routinely paid money to
Brooks and Edwards for information regarding other people
who were cooperating with them.
2. Brooks and Edwards Impound a
Truck and Extort Payment From The Owner.
(Counts 5 to 12)
Kenneth Love testified that in 2007, Brooks and
Edwards illegally impounded his truck. Edwards told Love
that he would have to pay $1,200 to get his truck back, and
further informed him that she had been “taking money . . .
from people” for 19 years. Joint App. 572-73. Love also
testified that Brooks and Edwards eventually arranged for
3
him to pay approximately $825 in cash to release the truck.
Joint App. 603-04.
3. Brooks, Edwards and John-Baptiste Arrest a
Taxi Driver and Hold Her in Custody Until her Boyfriend
Pays for her Release. (Counts 24 to 33)
In April 2008, John-Baptiste arrested taxi driver,
Yvese Calixte, for a parking violation. John-Baptiste
proceeded to forcibly detain Calixte until VIPD officers
arrived, handcuffed her, and placed her in a police car. John-
Baptiste followed behind as the officers drove Calixte to a
VIPD facility, and placed her in a holding cell where she
remained for four to five hours. Joint App. 737-39. Calixte
was eventually transferred to a downtown jail, where she was
processed for booking. Id. at 743. Thereafter, John-Baptiste
handcuffed Calixte and drove her to a shipping station, where
they were met by Brooks, Edwards, and Calixte’s boyfriend,
Jossenel Morino. Calixte was finally released, but only after
Morino paid $1,000 to Brooks and Edwards in exchange for
her freedom.
4. Brooks Extorts Payment from Felon in Possession
of a Firearm in Exchange for Not Arresting Him;
Edwards and Brooks then Coerce Him into Selling
Cocaine for Them (Counts 34 to 38 &
39 to 46)
John Lindquist, a convicted felon, testified that in
2009, Brooks approached him while Lindquist had a gun in
his possession. In exchange for not arresting him, Brooks
asked Lindquist for $2,000, which Lindquist paid over the
course of the next month. Months later, Lindquist
encountered Brooks again while carrying another gun.
Lindquist testified that Brooks and Edwards gave him 4.5
ounces of crack cocaine to sell for them in exchange for not
being arrested. After Lindquist sold the drugs, he paid
Brooks $3,500 over the course of the following months. 1
1
Additionally, the following evidence was admitted for
counts that were ultimately dismissed pre-verdict pursuant to
defendants’ Rule 29 motion for acquittal, see Joint Appx.
1311, 2102-2: (1) Elias Deeb, an undocumented Syrian
4
B. Post Trial Motions.
At the close of trial, the jury convicted Brooks and
Edwards of: conspiracy under the Racketeering Influenced
and Corrupt Organizations Act, 18 U.S.C. § 1962(d) (RICO);
conspiracy and extortion under the Hobbs Act, 18 U.S.C. §§
1951(a) & (2); conspiracy to possess with intent to distribute
controlled substances, in violation of 21 U.S.C. § 846;
distribution of and possession with intent to distribute
controlled substances, in violation of 21 U.S.C. § 841(a)(1);
conspiracy, in violation of 14 V.I.C. § 551; extortion, in
violation of 14 V.I.C. §§ 701 & 11; solicitation and receipt of
a bribe, in violation of 14 V.I.C. §§ 403 & 11; and conflict of
interest, in violation of 3 V.I.C. §§ 1102(3) & 1108 and 14
V.I.C. § 11. The jury convicted John-Baptiste of kidnapping
and false imprisonment, in violation of 14 V.I.C. §§ 1051 &
11.
Following their convictions, defendants moved for
judgments of acquittal pursuant to Rule 29, and for new trials
pursuant to Rule 33 of the Federal Rules of Criminal
Procedure. The District Court granted defendants’ Rule 29
motions as to counts 5, 6, 7, 10, 11, 12, 35, and 46.
Thereafter, the District Court sentenced both Brooks and
Edwards to 151 months’ imprisonment to be followed by 3
immigrant who came to the United States in 2004 and was
seeking asylum, testified that in 2004 Edwards offered to
illegally obtain a driver’s license for him. Joint App. 373.
Deeb eventually became an informant for the FBI and DEA.
Over the course of several meetings, he gave Brooks and
Edwards $900 in cash and a CD player in exchange for the
license. Joint App. at 394, 409-11, 418 (Counts 13 to 23); (2)
A man going by the name of Troy Willock claims that in
early 2008, Brooks and Edwards approached him and his
friends while they sat outside a local bakery. (As we discuss
below, there is a controversy over the identity of the man who
actually testified at trial). The officers frisked the men and
Brooks removed a Ziploc bag filled with marijuana from
inside a man’s pocket. However, no one was arrested
(Counts 47 to 52).
5
years’ supervised release. John-Baptiste was sentenced to 60
months imprisonment. These appeals followed.
II. Discussion
We have jurisdiction to review a district court’s final
order and sentence under 28 U.S.C. § 1291 and 18 U.S.C. §§
3731 & 3742.
A. Sufficiency of the Indictment
Prior to trial, Brooks moved to dismiss the indictment
because the government failed to identify the victims of each
crime by name. According to Brooks, the indictment was
invalid because it failed to provide him with sufficient
information to prepare a defense, and to plead double
jeopardy in case of future prosecution. Brooks renews this
claim before us. This presents a legal question over which we
have plenary review. United States v. Kemp, 500 F.3d 257,
280 (3d Cir. 2007).
The Supreme Court has articulated a two-part test for
measuring the sufficiency of an indictment. Russell v. United
States, 369 U.S. 749, 763-64 (1962). Under this test, an
indictment is sufficient when it (1) “contains the elements of
the offense intended to be charged and sufficiently apprises
the defendant of what he must be prepared to meet,” id. at
763, and (2) allows him to “plead an acquittal or conviction in
bar of future prosecutions for the same offense.” Hamling v.
United States, 418 U.S. 87, 117 (1974). We have recognized
that “[a]n indictment must allege more than just the essential
elements of the offense.” United States v. Vitillo, 490 F.3d
314, 321 (3d Cir. 2007). However, “‘[n]o greater specificity
than the statutory language is required so long as there is
sufficient factual orientation’ to permit a defendant to prepare
his defense and invoke double jeopardy.” United States v.
Huet, 665 F.3d 588, 595 (3d Cir. 2012) (quoting United
States v. Kemp, 500 F.3d at 280).
Brooks’s argument is wholly grounded upon the
second of the above-cited factors. He claims that he cannot
assert a double jeopardy claim in the future because the
indictment omits the names of the alleged victims. He
6
correctly notes that the indictment only references dates and
the nature of the statutory offense charged in each count and
does not include the name of any of the alleged victims. For
example, Brooks highlights count 25, charging racketeering
extortion in violation of 18 U.S.C. §§ 1951(a), 2. That
portion of the indictment states:
On or about April 2, 2008, at St. Thomas in the
District of
the Virgin Islands, ENID EDWARDS,
FRANCIS BROOKS
and BILL JOHN-BAPTISTE, while acting
under color of
official right as law enforcement officers of the
Virgin
Islands, did knowingly and intentionally affect
commerce
by extortion, and attempted to do so, and aided
and abetted
the same; namely, by unlawfully requiring an
individual
to pay money in order for the individual to
recover a
vehicle that had been towed pursuant to police
directive
authority.
Brooks App. at 36 (emphasis added).
The specificity required for an indictment to have
“‘sufficient factual orientation’ to permit a defendant to
prepare his defense and invoke double jeopardy,” is not
particularly onerous. Huet, 665 F.3d at 595 (quoting United
States v. Kemp, 500 F.3d at 280). We have found that a
defendant has sufficient notice to guard against a future
prosecution in violation of the protection against double
jeopardy if an indictment specifies the time frame for the
criminal conduct. See United States v. Huet, 665 F.3d at 596
(reversing District Court’s order dismissing an indictment
where the relevant charge listed all required elements of the
offense and where it also “specifie[d] the time period during
which the violation occurred” by including the temporal
description “on or about August 10, 2007, to on or about
January 11, 2008.”).
7
Although this indictment could easily have identified
the alleged victims, it adequately specified the period in
which the alleged crimes occurred, and set forth enough
specificity about the crimes charged to protect against any
subsequent attempt to charge Brooks with any crimes arising
from the conduct that is the subject of this indictment.
Accordingly, we conclude that the indictment was sufficiently
specific to withstand a double jeopardy challenge. 2
B. John-Baptiste’s Motion for Severance. 3
The jury returned a verdict finding John-Baptiste
guilty of a single count (count 27), charging false
imprisonment and kidnapping, and acquitted him of all other
charges. 4
2
For example, the trial evidence identified the specific
incident that occurred on April 2, 2008, as charged in count
25, as the extortion of $500 for the release of Calixte and her
taxi.
In rejecting the challenge to the specificity of this
indictment, we by no means condone the lack of precision
that is evident on the face of this indictment. Nothing here
suggests a need to withhold the identity of various victims
because of any concerns for their safety, and the government
has not attempted to defend the manner in which this
indictment was drafted by asserting any such concerns.
Although the specificity in the indictment is adequate, we
would hope that greater care is taken in drafting indictments
in the future.
3
We review the denial of a motion to sever for abuse of
discretion. United States v. Davis, 397 F.3d 173, 182 (3d Cir.
2005).
4
Specifically, the jury acquitted John-Baptiste of interfering
with interstate commerce (count 25), kidnapping for extortion
(count 28), extortion (29), solicitation and receipt of a bribe
(count 30), conflict of interest (count 32), aggravated assault
and battery (count 32), and unlawful sexual contact (count
33).
8
John-Baptiste argues that the District Court erred in
rejecting his pre-trial requests for severance under either F. R.
Crim. P. 8(b) or 14(a). He argues that the government’s case
against him stemmed solely from the April 2, 2008 incident
involving Calixte, and joinder in an indictment containing
numerous other charges against other defendants allowed
evidence admissible only against Brooks and Edwards to
improperly “spillover” and be used against him.
A defendant seeking a new trial due to the denial of a
severance motion must show that the joint trial led to “clear
and substantial prejudice resulting in a manifestly unfair
trial.” United States v. Urban, 404 F.3d 754, 775 (3d Cir.
2005) (internal quotation marks omitted). “Mere allegations
of prejudice are not enough,” United States v. Reicherter, 647
F.2d 397, 400 (3d Cir. 1981), and defendants are “not entitled
to severance merely because they may have a better chance of
acquittal in separate trials.” Zafiro v. United States, 506 U.S.
534, 540 (1993). Thus, as we have previously explained, the
critical issue when considering the potential for prejudice “is
not whether the evidence against a co-defendant is more
damaging but rather whether the jury will be able to
‘compartmentalize the evidence as it relates to separate
defendants in view of its volume and limited admissibility.’”
Davis, 397 F.3d at 182 (quoting United States v. Somers, 496
F.2d 723, 730 (3d Cir. 1974)).
Here, John-Baptiste cannot establish that the evidence
presented against Edwards and Brooks resulted in clear and
substantial prejudice to his case. As noted, his sole
contention is that the evidence against Edwards and Brooks
was so extensive that it prevented the jury from reliably
determining his guilt. See John-Baptiste Br. at 24. However,
severance is not required simply because the evidence against
his co-defendants may be stronger than the evidence against
John-Baptiste. See Urban, 404 F.3d at 776 (“[A] defendant is
not entitled to severance merely because the evidence against
a co-defendant is more damaging than that against him.”)
(citation and internal quotation marks omitted); United States
v. Console, 13 F.3d 641, 655 (3d Cir. 1993) (“Prejudice
should not be found in a joint trial just because all evidence
adduced is not germane to all counts against each defendant
or some evidence adduced is more damaging to one defendant
9
than others.”); see also United States v. Dansker, 537 F.2d 40,
62 (3d Cir. 1976).
Additionally, nothing suggests that the jury was unable
to “compartmentalize the evidence as it relate[d] to separate
defendants . . . . ” Davis, 397 F.3d at 182, nor does John-
Baptiste point to any evidence of that happening. We realize
that only eight of the 54 counts in this indictment involved
John-Baptiste and his involvement in the scheme to kidnap
Calixte and hold her for ransom. However, the evidence that
was relevant to those charges was easily separated and
compartmentalized from testimony that was admitted
regarding Edwards’s or Brooks’s involvement in the other
charged offenses. See, e.g., Davis, 397 F.3d at 182 (rejecting
claim of prejudice where “facts [] relatively simple; all events
occurred in a single evening; there are only three defendants;
and there are no overly technical or scientific issues”).
Finally, in instructing the jury, the District Court underscored
that “[e]ach count and the evidence pertaining to it should be
considered separately” and that “[t]he case of each defendant
should be considered separately and individually.” Joint App.
2142-43. Accordingly, we conclude that the jury could have
compartmentalized the evidence on each count and each
defendant as instructed.
C. The Virgin Islands False Imprisonment and
Kidnapping Statute
John-Baptiste also challenges the District Court’s
interpretation and application of 14 V.I.C. § 1051 (the Virgin
Islands false imprisonment and kidnapping statute). He first
claims that he District Court erroneously ignored the
requirement that a defendant act “without lawful authority” in
committing the offense. Second, John-Baptiste argues that
the statute is unconstitutionally void for vagueness as
interpreted because it provides no notice to law enforcement
officers that they can be charged and convicted of
kidnapping. The arguments border on frivolity.
14 V.I.C. § 1051 provides in pertinent part:
Whoever without lawful authority confines or
imprisons
10
another person within this Territory against his
will,
or confines . . . or kidnaps another person, with
intent to cause him to be confined or imprisoned
in this
Territory against his will . . . is guilty of
kidnapping and shall be imprisoned for not less
than one
and not more than 20 years.
14 V.I.C. § 1051. As noted, the jury convicted John-Baptiste
of one count of kidnapping for which he received a sentence
of five years’ imprisonment.
In arguing that the District Court erroneously
interpreted “without lawful authority,” John-Baptiste claims
that, given his authority as a peace officer to make arrests
with or without a warrant, any arrest he makes must
necessarily be “within lawful authority.” The argument is at
best, misguided and at most, fanciful. This Virgin Islands
statute provides peace officers with lawful authority to make
arrests in routine circumstances—e.g., when they have
witnessed a public offense or when there is reasonable cause
to believe that a person has committed a felony. See 5 V.I.C.
§ 3562. 5 No reasonable interpretation of the statute would
5
In its entirety, the statute provides:
A peace officer may make an arrest in
obedience to a warrant delivered to him,
or may, without a warrant, arrest a
person—
(1) for a public offense committed
or attempted in his presence;
(2) when a person has committed
a felony, although not in his presence;
(3) when a felony has in fact been
committed and he has reasonable
cause for believing the person to
have
committed it;
(4) on a charge made, upon a
reasonable cause, of the
11
convert it to a license to empower peace officers to act
outside of this authority or detain someone for a criminal
purpose. Indeed, the slightest modicum of common sense
would negate the conclusion that the statute allows police
officers to engage in criminality merely because they have
been authorized to uphold the law. Yet, that is precisely the
interpretation that John-Baptiste urges upon us.
Notwithstanding John-Baptiste’s argument to the
contrary, it is well-settled that law enforcement officers are
subject to prosecution under criminal statutes when they act
unlawfully or “without legal authority.” See, e.g., Hampton v.
United States, 425 U.S. 484, 490 (1976) (plurality opinion)
(“If the police engage in illegal activity in concert with a
defendant beyond the scope of their duties the remedy
lies . . . in prosecuting the police under the applicable
provisions of state or federal law.”); see also Imbler v.
Pachtman, 424 U.S. 409, 429 (1976) (“This Court has never
suggested that the policy considerations which compel civil
immunity for certain government officials also place them
beyond the reach of criminal law.”).
A recent case decided by the First Circuit Court of
Appeals is illustrative. In United States v. Cortes-Caban, 691
F.3d 1 (1st Cir. 2012), a divided panel of the First Circuit
upheld the conviction of several police officer defendants for
drug distribution under 21 U.S.C. § 841. The officers
unlawfully transferred marijuana and cocaine to each other
and outside parties as part of a conspiracy to plant evidence
and conduct illegal searches and seizures. In affirming the
convictions that followed, the majority explained in detail that
while Congress had “carved out a specific exemption for
distribution of controlled substances by law enforcement
officers, but only the extent that they are ‘lawfully engaged’
in the enforcement of drug laws.” See Cortes-Caban, 691
commission of a felony by the
party; or
(5) at night, when there is
reasonable cause to believe that
he has committed a felony.
5 V.I.C. § 3562.
12
F.3d at 20 (citing 21 U.S.C. § 885) (emphasis in original). 6
Because the officers in that case acted outside their lawful
authority to enforce state and federal drug laws, they were
subject to prosecution under federal drug laws the same as
anyone else. Id. at 20-22. 7
Similarly, the Virgin Islands “arrest by a peace officer”
statute may only be read to grant officers authority to carry
out arrests under specific circumstances. It was certainly not
intended to immunize police officers from prosecution for
such clearly illegal actions as restraining someone’s liberty
until a ransom is paid. Thus, where, as here, the government
can show that a peace officer’s conduct exceeded lawful
authority to arrest and detain, that officer is subject to
prosecution under any statute that criminalizes his/her
conduct.
John-Baptiste makes an equally tenuous claim that the
Virgin Islands kidnapping statute is unconstitutional as
applied because it is so vague as to not give peace officers
6
Indeed, a contrary result would have subjected police
officers to prosecution for illegal distribution of a controlled
substance when they gave an informant a controlled
substance to sell as part of a controlled buy or “sting.”
7
The mere fact that the panel in Cortes-Caban was not
unanimous does not undermine our belief that John-Baptiste’s
argument that every action of a Virgin Islands police officer
is cloaked with legal authority is unreasonable. The issue that
divided the panel in Cartes-Caban was whether the evidence
of a drug “distribution” was sufficient to convict under 21
USC § 841(a)(1) because Congress had specifically
authorized some distributions of controlled substances by law
enforcement officers.
However, in his dissent, Judge Torruella specifically
confirmed that he agreed that the evidence of an illegal
distribution of drugs by a police officer was sufficient to
convict the defendant of a criminal conspiracy. (“I agree that
the record supports the government’s allegations . . . that
appellants’ actions in planting drugs for the purpose of
fabricating criminal cases constitutes a violation of 18 USC §
241.”). 691 F.3d at 30.
13
notice that they could be “arrested and convicted of
kidnapping for performing [their] official duties.” John-
Baptiste Br. at 20. We exercise plenary review over that
question of law. San Filippo v. Bongiovanni, 961 F.2d 1125,
1133 (3d Cir. 1992).
A statute is unconstitutionally vague if it “fails to give
a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute” or
“encourages arbitrary and erratic arrests and convictions.”
Papachristou v. City of Jacksonville, 405 U.S. 156, 162
(1972); see also Kolender v. Lawson, 461 U.S. 352, 357
(1983). “A statute can be void for vagueness not only on its
face, but as applied, as a result of ‘an unforeseeable and
retroactive judicial expansion of narrow and precise statutory
language.’” United States v. Protex Indus., Inc., 874 F.2d
740, 743 (10th Cir. 1989) (quoting Bouie v. City of Columbia,
378 U.S. 347, 352 (1964)).
We fail to see how a person of ordinary intelligence
could possibly think that 14 V.I.C. § 1051 (or any other
legislative enactment) authorizes a police officer to hold
someone in custody for personal gain until a ransom is paid.
As the government notes, the Virgin Islands false
imprisonment and kidnapping statute closely tracks those of
other jurisdictions. See, e.g., 18 Pa. Conn. Stat. §§ 2901,
2903. Like the Virgin Islands’ statute, these laws generally
proscribe the removal, transport, or confinement of another
person when carried out “unlawfully” or “without lawful
authority.” For John-Baptiste’s vagueness argument to have
any merit, we would have to conclude that no reasonable law
enforcement officer could understand that s/he is proscribed
from, e.g., confining or imprisoning another person without
lawful authority.
In fact, the contrary is true. Police officers can be
exposed to civil liability under 42 USC § 1983. In addition,
in order to lawfully exercise the police power of the state,
they must understand the constitutional restraints imposed on
the authority of the state and its agents. No reasonable
interpretation of this statute, or any similar statute that we are
aware of, could conceivably suggest that a police officer may
14
use his/her police power to extort a ransom in exchange for
releasing someone who was being held in custody.
Here, as in any prosecution for kidnapping, the
government had to prove beyond a reasonable doubt that the
defendant acted without lawful authority. That burden is
easily satisfied where the proof would allow a reasonable
juror to conclude beyond a reasonable doubt that a person
was held in official custody for private gain rather than in
furtherance of an officer’s official duties. Despite John-
Baptiste’s argument to the contrary, we see neither vagueness
nor room for confusion about the scope of his legal authority
in the text of 14 V.I.C. § 1051.
D. Defendants’ Rule 29 Motions. 8
The government appeals the District Court’s grant of
Brooks’ and Edwards’ Rule 29 motions on counts 5, 6, 10,
11, and 12 (relating to the extortion of Love) and 46 (relating
to the Lindquist drug transaction). John-Baptiste also appeals
the Court’s denial of his Rule 29 motion (motion for
judgment of acquittal). He argues there was insufficient
evidence to sustain his conviction for kidnapping (count 27).
We exercise plenary review over a district court’s
ruling on a Rule 29 motion. United States v. Applewaithe,
195 F.3d 679, 684 (3d Cir. 1999). A defendant
“challenging the sufficiency of the evidence” pursuant to
Rule 29 “bears a heavy burden.” United States v. Casper,
956 F.2d 416, 421 (3d Cir. 1992). In reviewing a verdict for
sufficiency of the evidence, we “‘consider the evidence in the
light most favorable to the government and affirm the
judgment if there is substantial evidence from which any
rational trier of fact could find guilt beyond a reasonable
doubt.’” United States v. Benjamin, No. 11-2906, 2013 WL
1197767, *3 (3d Cir. March 26, 2013) (quoting United States
v. Brown, 3 F.3d 673, 680 (3d Cir. 1993)).
8
“[T]he Rule 29 judgment of acquittal is a substantive
[judicial] determination that the prosecution has failed to
carry its burden.” Smith v. Massachusetts, 543 U.S. 462, 468
(2005).
15
1. John-Baptiste’s Conviction for False Imprisonment
and Kidnapping
As noted above, under the applicable statute, the
government was required to prove beyond a reasonable doubt
that (1) the defendant, intending the victim to be confined or
imprisoned, (2) unlawfully took or carried away the victim
for a substantial distance, (3) against the victim’s will. 14
V.I.C. § 1051.
John-Baptiste argues that the government’s evidence
was insufficient to prove that he acted “without lawful
authority” when he arrested Calixte. He claims that the
government’s evidence largely relied upon the testimony of
VIPD Officer Rodney Querrard, who testified that the VIPD
does not recognize an officer’s authority to “unarrest” a
detainee, as John-Baptiste arguably did once Morino paid the
ransom to Edwards and Brooks to secure Calixte’s release.
John-Baptiste reasons that this testimony was irrelevant
because there was no evidence to show that the policies and
procedures governing the conduct of a Virgin Islands’ police
officer such as Querrard also governed officers of the Virgin
Islands Port Authority Police. (As noted at the outset, John-
Baptiste was a member of the Virgin Islands Port Authority
Police). John-Baptiste also argues that even if Querrard’s
testimony was properly admitted, it was insufficient to show
that his (John-Baptiste’s) conduct satisfied the elements of the
false imprisonment and kidnapping statute.
While we certainly agree that failing to follow
departmental procedures is not tantamount to acting
unlawfully, the record here contains sufficient evidence that
John-Baptiste acted without lawful authority in detaining
Calixte. Specifically, the government introduced the
testimony of VIPA Chief Edred Wilkes, who stated that while
John-Baptiste may have followed VIPA procedures in
arresting Calixte, he (Wilkes) was “furious” when he learned
that John-Baptiste released Calixte as a favor to Edwards.
Joint App. 1083. Given that testimony, and testimony that
John-Baptiste accepted money as a condition of releasing
Calixte, the jury could reasonably conclude that even if the
original seizure of Calixte was lawful, at some point during
her detention, John-Baptiste decided to hold her until he
16
received a payment that can only be described as a ransom.
From that point until the ransom was actually paid, he was
holding her against her will and when he transported her to
the location where the ransom was paid, the jury could well
have concluded that she was being illegally detained and
transported solely to facilitate receipt of the ransom he
extorted for her release.
In reviewing a challenge to the sufficiency of
evidence, “we are limited to determining whether the
conclusion chosen by the factfinders was permissible.”
United States v. Ashfield, 735 F.2d 101, 106 (3d Cir. 1984)
(emphasis added). Viewed in the light most favorable to the
government as verdict winner, we conclude that the evidence
was more than sufficient to prove that John-Baptiste was
guilty of false imprisonment and kidnapping as charged in
count 27. Indeed, on this record, it is hard to imagine that the
jury could have concluded anything else
2. Extortion and Conspiracy to Extort Under Federal
and Territorial Law.
The government challenges the District Court’s
judgment of acquittal in favor of Brooks and Edwards after
the jury convicted them on the charges set forth in counts 5,
6, 10, 11, and 12. Those counts all related to the officers’
extortion of Kenneth Love, who, as noted above, paid Brooks
and Edwards approximately $825 in return for the release of
his truck after it was illegally impounded by Brooks and
Edwards.
Counts 5 and 6 charged conspiracy and extortion under
the Hobbs Act. To sustain the conspiracy conviction the
government had to prove beyond a reasonable doubt that
Brooks and Edwards knowingly entered into an agreement to
interfere with interstate commerce by extortion under color of
official right. 18 U.S.C. § 1951; see also United States v.
Inigo, 925 F.2d 641, 652 (3d Cir. 1991). To prove extortion,
the government had to prove beyond a reasonable doubt that
Brooks and Edwards knowingly and willfully obtained
Love’s property through coercion resulting from the
“wrongful use of actual or threatened force, violence, or fear,
or under color of official right” and that this “obstruct[ed],
delay[ed], or affect[ed] [interstate] commerce.” 18 U.S.C. §
17
1951(a), (b)(2); United States v. Manzo, 636 F.3d 56, 62 (3d
Cir. 2011).
a. Extortion
The District Court granted the Defendants’ post trial
motion for judgment of acquittal, primarily because Love did
not make his payment to recover his impounded truck directly
to Edwards. Rather, Love testified that he “placed
[approximately] $825 on the dashboard of [Edwards’s] police
vehicle” in exchange for obtaining his truck. Joint App. 36,
46. After Love retrieved his truck, he was given an itemized
receipt for $825.
The government concedes that there was no direct
evidence that Edwards took any of the $825 that Love paid,
but argues that direct evidence was not required. See United
States v. Johnson, 203 F.3d 139, 149 (3d Cir. 2002). The
government contends that the prosecution presented sufficient
circumstantial evidence at trial to sustain a Hobbs Act
extortion charge. The government relies on the following
evidence: (1) Edwards repeatedly told Love how much Love
would have to pay to get his truck back; (2) Edwards told
Love that she had been “taking money . . . from people” for
19 years; (3) Edwards ordered Love to put the money on her
patrol car dashboard; and (4) Love later saw the tow-truck
driver with only “a couple hundred dollars” in his hand. Gov.
Br. at 48-49, Joint App. at 602. We agree that this was
sufficient to convict Edwards of Hobbs Act extortion as
charged in count 6. 9
9
The extortion charge in count 10 required the government to
prove the same elements as the Hobbs Act with the exception
of effect on interstate commerce. See 14 V.I.C. § 701. For
the territorial bribery conviction in count 11, the government
had to prove that Brooks and Edwards were public officials
and that they asked for or received “any emolument, gratuity,
or reward, or promise thereof” in exchange for an official act.
See id. § 403. For the conflict of interest charge in count 12,
the government needed to show that Brooks and Edwards
were territorial officers who knowingly had an interest in a
transaction they conducted that was “in substantial conflict
with the proper discharge of [their] duties.” See 3 V.I.C. §
1102(3). Because of these overlapping elements, this same
18
The jury obviously accepted Love’s testimony that
after he placed the $825 on Edwards’s dashboard, he saw the
tow-truck driver with only a couple hundred dollars in his
hand. Joint App. 603. That testimony is circumstantial
evidence that Edwards gave the tow-truck driver a “couple
hundred dollars” for his role in the scheme, but that Edwards
retained most of the $825 that Love placed in Edwards’ patrol
car. See, e.g., United States v. McNeill, 887 F.2d 448, 450
(3d Cir. 1989) (“The fact that evidence is circumstantial does
not make it less probative than direct evidence.”). This
evidence, when properly viewed in the light most favorable to
the government, would clearly allow any reasonable juror to
conclude beyond a reasonable doubt that Edwards was guilty
of extortion.
b. Conspiracy
The District Court’s apparent reliance on the absence
of direct evidence also caused it to err in granting a judgment
of acquittal on the conspiracy charge. The court explained
that it could not find evidence of an explicit agreement
between Brooks and Edwards. It did not have to. The court
stressed that Brooks remained silent while Edwards told Love
that she “had been doing this for 19 years, taking money . . .
from people.” Joint App. 36. Thus, while Brooks was
present in the patrol car while this conversation was going on,
the Court noted that “mere presence at the scene of the crime
or association with a criminal is not sufficient evidence of a
conspiracy.” Id.
The government concedes that “mere presence” is
insufficient to support a conspiracy conviction, but
underscores that the existence of an agreement can
nonetheless be inferred from the circumstances surrounding a
contract. See United States v. Caraballo-Rodriguez, 726 F.3d
418, 431 (3d Cir. 2013) (en banc) (holding that proof of an
element of conspiracy can be shown by circumstantial
evidence: “A case can be built against the defendant grain-by-
result as to counts 5 (discussed below) and 6 also applies to
the District Court’s decision to grant the defendants’ motion
to acquit on count 10 (extortion under territorial law); count
11 (bribery under territorial law); and count 12 (conflict of
interest under territorial law).
19
grain until the scale finally tips.” (quoting United States v.
Iafelice, 978 F.2d 92, 98 (3d Cir. 1992)). Indeed, that
proposition is so firmly established as to require no citation.
We also agree with the government that the circumstances
surrounding the interaction of Edwards and Brooks was
certainly sufficient to establish an illicit agreement between
the two to extort money from Love. The tow- truck driver
involved in returning Love’s car testified that Brooks spoke to
him about the price he thought Love should pay for the
release of the truck. Perhaps most damningly, Brooks sat
silently by as Edwards explained that she had been taking
money from people for 19 years. Therefore, the unique
circumstances here establish something much more probative
than “mere presence.” The jury could certainly assume that if
one police officer boasts of engaging in such illegal activity
for nearly two decades in the presence of another police
officer, there must be an agreement and that the agreement
arises from a “longstanding pattern of activity and mutual
trust” between the two. Here, that relationship can be
discerned from the evidence that sustained convictions for
other counts as well as the circumstances surrounding the
release of the truck. See United States v. Gibbs, 190 F.3d
188, 199 (3d Cir. 1999) (holding that buyer shared
conspiracy’s goal of distributing cocaine, when circumstantial
evidence showed he knew about the larger drug operation). 10
10
In Gibbs, we considered whether circumstantial evidence
supported the conspiracy conviction of a defendant who
alleged he merely bought drugs from a member of
conspiracy, where the evidence included tape-recorded
conversations between him and his codefendants, many of
which were in code and had to be interpreted by an FBI agent.
We held that knowledge of and intent to join a conspiracy can
be imputed from certain factors such as the length of
affiliation between the defendant and the conspiracy, or
whether there is a demonstrated level of mutual trust: “when a
defendant . . . has repeated, familiar dealings with members
of a conspiracy, [he] probably comprehends fully the nature
of the group with whom he is dealing . . . and is more likely
to perform [acts] for conspiracy members in an effort to
maintain his connection to them.” Id. at 199-200. See also
United States v. Claxton, 685 F.3d 300, 308-09 (evidence was
sufficient to show defendant knew he was participating in
20
While we agree that the evidence supporting Brooks’
and Edwards’ conviction for conspiring to extort Love out of
his property is more tenuous than the evidence that Edwards
carried out the extortion plan, membership in a conspiracy
need not depend on the level of cooperation that the District
Court required here. See United States v. Claxton, 685 F.3d
300, 305 (“[A] finding of guilt in a conspiracy case does not
depend on the government introducing direct evidence that a
defendant was a knowing participant in the conspiracy;
circumstantial evidence can carry the day.”); United States v.
Wexler, 838 F.2d 88, 90 (3d Cir. 1988) (“The elements of a
conspiracy may be proven entirely by circumstantial
evidence . . . .”). Thus, when viewed in the light most
favorable to the government, we conclude that the District
Court erred in granting judgment of acquittal on the
conspiracy counts and that portion of the court’s order will be
reversed. 11
c. Conspiracy to Distribute Drugs Under 21 U.S.C. §
846
Count 46 charged Brooks and Edwards with
conspiracy to possess with intent to distribute controlled
substances in violation of 21 U.S.C. § 846. The charge
relates to Brooks’s and Edwards’s interactions with John
Lindquist. As noted above, the government introduced
evidence that Brooks coerced Lindquist into selling crack
cocaine for him. That evidence established that Lindquist
received the crack cocaine from Edwards while he sat in the
back of the officers’ patrol car. Although Edwards handed
the bag containing the crack cocaine to Lindquist and told
him that Brooks expected to receive $3,500 for its contents,
criminal enterprise, as required to sustain conviction for
conspiracy to possess cocaine with intent to distribute, where
defendant picked up coconspirator at airport and transported
coconspirator’s luggage to another car, where evidence
showed defendant knew the luggage contained money from
illegal activities, and where conspiracy was operated for a
number of years and involved multiple drug–related
transactions).
11 In reversing the Distr ict Co urt’s grant of the Rule 29 motion here, we caution that our analy sis is limited to the precise circumstances of this case. As we have explained, the jury heard that one police office boasted of 19 y ears of “shakin g down” citizens in front of another police officer. That evidence, h as additional force here because Edwards and Broo ks were both law enforcement officers.
21
Lindquist neither heard Edwards admit that she knew what
was in the bag, nor saw her look into it.
To establish a conspiracy, the government must prove
beyond a reasonable doubt: (1) a shared unity of purpose; (2)
an intent to achieve a common illegal goal; and (3) an
agreement to work toward that goal. United States v. Boria,
592 F.3d 476, 488 n. 12 (3d Cir. 2010). It may do so by
direct or circumstantial evidence. United States v. Brodie,
403 F.3d 123, 134 (3d Cir. 2005). We have also required
proof that the defendant had knowledge of the conspiracy’s
illegal goal. Id. at 148.
We must therefore examine the record to determine
whether the government set forth “drug-related evidence,
considered with the surrounding circumstances, from which a
rational trier of fact could logically infer that the defendant
knew a controlled substance was involved in the transaction.”
Boria, 592 F.3d at 481.
In granting the defendants’ Rule 29 motion on this
count, the court reasoned that there was insufficient evidence
for the jury to conclude that Edwards knew the contents of the
bag. See, e.g., Cartwright, 359 F.3d at 287. The District
Court concluded that the evidence of a conspiracy was
therefore insufficient against Edwards, and thus necessarily
insufficient to prove beyond a reasonable doubt that Brooks
conspired with her. Joint App. 29.
However, after defendants’ trial, we decided United
States v. Caraballo-Rodriguez, where we reexamined our test
for evaluating the sufficiency of the evidence in drug
conspiracy cases such as this. 726 F.3d at 431. In doing so,
we recognized that we had previously overturned convictions
in the absence of specific evidence of a defendant’s
knowledge of the identity of the illegal drugs s/he possessed
even though circumstantial evidence may have been sufficient
to establish that knowledge beyond a reasonable doubt.
Caraballo-Rodriguez, 726 F.3d at 430-431. We
acknowledged that our jurisprudence in this area had “failed
to apply the deferential standard the law requires on review of
sufficiency of the evidence challenges.” Id. at 419. As we
explained, we had previously sometimes examined the
22
evidence under a microscope – rather than reviewing the
evidence as a whole and giving deference to the jury’s
verdict. Id. at 430. Our decision in that case clarified that the
appropriate standard of review of the sufficiency of the
evidence in a drug conspiracy case is the same as in all other
cases: the jury’s verdict must be assessed from the
perspective of a reasonable juror, and must be upheld if the
evidence was sufficient to allow a reasonable juror to
conclude beyond a reasonable doubt that the defendant knew
what was in his/her possession. Id. at 431 (abrogating United
States v. Wexler, 838 F.2d 88, 92 (3d Cir. 1988), United
States v. Salmon, 944 F.3d 1106, United States v. Thomas,
114 F.3d 403, United States v. Idowu, 157 F.3d 265, 268 (3d
Cir. 1998), and United States v. Cartwright, 359 F.3d 281 (3d
Cir. 2004)). Moreover, we specifically disavowed our prior
analytical approach and reasoning – that the jury’s verdict
could not stand when the evidence was as consistent with
other contraband, as it was with controlled substances. Id. at
432
Thus, while this issue may have presented a close
question when the District Court originally decided it, it is
now clear that the District Court’s grant of this Rule 29
motion was not sufficiently deferential to the jury’s verdict.
The evidence introduced at trial established that in
2009, Lindquist met with Brooks and Edwards, who arrived
together in a car. Lindquist got into the car, and Edwards
handed him a bag while informing him that Brooks wanted
$3,500 for it. Lindquist looked into the bag, recognized its
contents, and got out of the car. Over the course of the next
several months, Lindquist sold the crack cocaine that was in
the bag and gave the proceeds to Brooks. The government
also argues: “based on the timing of their meeting, the bag’s
small size, flimsy construction, and light weight, and
Edward’s statement that ‘Brooks wants $3,500 for this,’ along
with evidence of a 2005 incident involving the sale to Kelvin
Moses of six pounds of marijuana, the jury could have
concluded that Edwards knew the bag contained drugs.”
Gov. Br. at 51. We agree.
The same reasoning would have allowed the jury to
conclude beyond a reasonable doubt that Edwards knew that
23
the illegal venture involved drugs. See Caraballo-Rodriguez,
726 F.3d at 433. In Caraballo-Rodriguez, the defendant
responded to questions about whether he knew that a suitcase
contained drugs by saying: “I didn’t know it was drugs. I
knew that it was something bad . . . Because nobody is going
to pay five thousand dollars for picking up suitcases.” Id. at
422. We reasoned that the jury could have concluded from
the surrounding circumstances that the defendant knew the
suitcases contained drugs. Similarly, here, the jury could
reasonably conclude that these two police officers had enough
common sense and knowledge to understand that if Brooks
expected $3500 for the sale of whatever was in the paper bag,
Brooks wanted Lindquist to sell the contents of the bag, and
given the expected price, the bag most surely didn’t contain a
tuna fish sandwich.
Moreover, while mere presence at the scene of the
crime or association with a criminal is not sufficient evidence
of a conspiracy, see, e.g., United States v. Tyson, 653 F.3d
192 (3d Cir. 2011), the evidence here is – once again –
substantially more than “mere presence.” The events
involving Lindquist took place in 2009, several years into a
longstanding pattern of illicit activity between Edwards and
Brooks. That activity had, in the past, involved recruiting
third parties to sell drugs for them. See, e.g., United States v.
Claxton, 685 F.3d 300, 310 (3d Cir. 2012) (“[A]lthough the
number of transactions here does not, on its own, prove
[defendant’s] knowledge of the character of the conspiracy, it
does make it more likely that he knew the business he was
about.”). Given the circumstances here, the evidence was
sufficient to sustain the jury’s conclusion that Edwards
understood that she was participating in a drug transaction.
Accordingly, we conclude that the jury’s verdict on count 46
did not “fall below the threshold of bare rationality.”
Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012). We
therefore reverse the District Court’s grant of the Rule 29
motion on that count, and the guilty verdict will be reinstated
as to both Edwards and Brooks. 12
12
Since the evidence was sufficient to support the verdict on
this count, we reject Edwards’s argument that the District
Court improperly attributed the entire 4.5 ounces of cocaine
to her at sentencing.
24
E. Brooks’s Rule 33 Motion for New Trial on RICO
Conspiracy 13
Brooks claims that the District Court erred in denying his
Rule 33 motion for a new trial on his conviction for RICO
conspiracy. He argues that the jury considered evidence of
acquitted conduct in convicting him on that count. We
review a denial of a motion for judgment of acquittal under
Rule 33 for abuse of discretion. United States v. Silveus, 542
F.3d 993, 1005 (3d Cir. 2008). However, we again view the
evidence supporting a conviction “in the light most favorable
to the government and affirm[s] the judgment if there is
substantial evidence from which any rational trier of fact
could find guilt beyond a reasonable doubt.” Benjamin, 2013
WL 1197767, at *3.
To establish a conviction for a RICO conspiracy, the
government must show: (1) that two or more persons agreed
to conduct or to participate, directly or
indirectly, in the conduct of an enterprise’s affairs through a
pattern of racketeering activity; (2) that the defendant was a
party to or member of that agreement; and (3) that the
defendant joined the agreement or conspiracy knowing of its
objective to conduct or participate, directly or indirectly, in
the conduct of an enterprise’s affairs through a pattern of
racketeering activity. United States v. Riccobene, 709 F.2d
214, 224 (3d Cir. 1983). 14
To establish a pattern of racketeering activity, the
government must show that there was “‘continuity plus
relationship’ among the predicate acts.” United States v.
13
Under F. R. Crim. P. 33, a court may grant a new trial on
motion of the defendant “if the interest of justice so requires.”
14
We note that on appeal Brooks does not expressly argue
that the government failed to set forth evidence establishing
his association with an “enterprise.” Accordingly, we need
not discuss that element of the crime. However, for a
thorough discussion of the proof needed to establish a RICO
enterprise, see United States v. Bergrin, 650 F.3d 257 (3d Cir.
2011).
25
Mark, No. 10-4075, 2012 WL 120092, at *3 (3d Cir. Jan. 17,
2012) (quoting Sedima S.P.R.I. v. Imrex Co., 473 U.S. 479,
496 n.14 (1985) (quoting S. REP. NO. 91-617, at 158
(1969))). Racketeering acts are “related” if the acts had the
same or similar purposes,
results, participants, victims or methods of commission.
Barticheck v. Fidelity Union Bank/First Nat'l State, 832 F.2d
36, 39 (3d Cir.1987). “[S]poradic and separate criminal
activities alone cannot give rise to a pattern for RICO
purposes . . . .” Mark, 2012 WL 120092, at *3 (quoting
United States v. Eufrasio, 935 F.2d 553, 565 (3d Cir. 1991).
Count 1 of the indictment charged a RICO conspiracy
and included the following predicate acts: drug trafficking,
alien harboring, kidnapping, bribery, and extortion. In
support of these charges, the government relied on the
testimony of Moses, Lindquist, Deeb, Willock, and Love
(discussed in Section I.A). The testimony of these witnesses
established that Brooks and Edwards regularly demanded
money in exchange for drugs or property.
Before submitting the case to the jury, the District
Court acquitted the defendants on all counts relating to Deeb
and Willock, as well as several others. Joint App. 1311,
2125. Accordingly, the District Court instructed the jury that
it had to agree on at least two of the remaining racketeering
acts (drug trafficking conspiracy, drug trafficking,
kidnapping, kidnapping for extortion, extortion, and bribery).
The jury convicted Brooks (and Edwards) of the RICO
conspiracy and twelve counts charging offenses that were
predicate acts, but the District Court granted Brooks’s Rule
29 motion as to four of those twelve counts (6, 10, 11, and
46). The jury did not specify, nor was it asked to specify,
which of the predicate acts it relied upon to convict on the
RICO conspiracy charge.
Brooks argues that the dismissal of four of the twelve
counts relating to the predicate acts required a new trial, since
the jury could have relied on dismissed counts to convict him
of the RICO charge. He also claims that the lack of
credibility of the particular witnesses casts doubt on the
convictions on the remaining eight counts.
26
It is well established that if a jury convicts the
defendant on two or more of the predicate acts constituting a
RICO violation, the conviction on the RICO count itself will
withstand a challenge even if the jury acquitted the defendant
on several counts charging other predicate acts. See United
States v. Holzer, 840 F.2d 1343, 1350-51 (7th Cir. 1988).
Even where the jury’s verdict is inconsistent, the RICO
conviction must stand so long as there is sufficient evidence
to prove that the defendant committed two or more predicate
acts. United States v. Vastola, 989 F.2d 1318, 1331 (1993).
As noted, even accounting for the four counts on which the
District Court granted the Rule 29 motions, Brooks’s (and
Edwards’s) eight convictions for offenses that were predicate
RICO acts remain (including extortion, bribery, and drug
trafficking). The convictions foreclose Brooks’ challenge to
the court’s denial of his Rule 33 motion on the RICO offense
charged in count 1. Holzer, 840 F.2d at 1350–51 (“[A] jury is
presumed to act rationally, and a rational jury would convict a
defendant of racketeering . . . [e]ven if it had exonerated
[him] of all the predicate offenses charged except one act of
extortion and one receipt of a bribe.”). Moreover, Brooks’s
attack on the sufficiency of evidence amounts to little more
than a challenge to the credibility of the witnesses. 15 See
United States v. Cothran, 286 F.3d 173, 176 (3d Cir. 2002)
(refusing to reconcile “inconsistencies” in testimony because
“witness credibility [is] an area peculiarly within the jury’s
domain”). Thus, the District Court properly rejected his
claim.
F. Prosecutorial Misconduct
Both Brooks and Edwards argue that prosecutorial
misconduct occurred during the trial when the prosecutor
withheld exculpatory evidence and suborned perjury. Their
argument pertains to the government’s use of three witnesses:
Love, Deeb, and Willock. As we explain, this argument is
unpersuasive.
1. Kenneth Love—Identification of Brooks
15
See Brooks Br. at 15-22.
27
At trial, Love identified Edwards but could not identify
Brooks. Joint App. 570–71. Thereafter, during a break in
Love’s testimony, Love and an agent had lunch at the same
pizzeria where Brooks and his family ate, and the agent
pointed Love out. Joint App. 589. Brooks argues that this
was improper because Love had not finished his testimony.
Brooks Br. 23–24.
The agent’s conduct was clearly improper, and the
incident could have been problematic. However, the District
Court competently handled the situation. Upon the parties’
return to the courtroom, the Court held a hearing outside the
presence of the jury to discuss what had occurred during the
break. Since Love had not been able to identify Brooks in the
courtroom prior to the incident, the Court dismissed any
suggestion of a tainted identification and allowed the
government to continue Love’s direct examination. Joint
App. 595-96. Thereafter, Love was not asked to identify
Brooks, nor did he identify Brooks at any point during trial.
See Joint App. 594–95.
Brooks also argues that Love falsely testified that he
had read Brooks’ name on Brooks’ name tag or badge, Joint
App. 581. That testimony was undermined by other officers
who testified that VIPD officers’ badges have numbers, but
no names and that names are not displayed on uniforms. See
Joint App. 1657–58. However, that conflicting testimony
only raised a credibility issue that the jury was free to resolve.
Moreover, Brooks fails to explain why the officers’ testimony
should be given more weight than Love’s, and we agree with
the District Court’s decision to refrain from usurping the role
of the jury by attempting to resolve this conflict in Brooks’
favor. See United States v. Richardson, 658 F.3d 333, 337
(3d Cir. 2011) (“[I]t is the jury’s province . . . to make
credibility determinations and to assign weight to the
evidence.”); United States v. Prejean, 517 F. App’x 107, 109
(3d Cir. 2013) (jury free to discredit witness’s testimony and
instead believe evidence offered by other party).
Moreover, even if we assume that Love was not
truthful about seeing Brooks’s name on his badge, the jury
was free to accept the balance of Love’s testimony. See
United States v. Merlino, 349 F.3d 144, 160 (3d Cir. 2003)
28
(noting that “a jury can believe some witness’s testimony as
to some aspects, and disbelieve others, or not believe any, or
believe all.”); Barber v. CSX Distribution Svcs., 68 F.3d 694,
700 (3d Cir. 1009) (evaluation of witness credibility is
exclusive function of jury, and jury can always choose to
discredit testimony); McCann v. Miller, 502 F. App’x 163,
170 n.8 (3d Cir. 2012) (jury not required to believe all of the
testimony offered by an interested witness).
2. Elias Deeb—Alleged Suppression of Exculpatory
Evidence
Brooks also argues that the government engaged in
prosecutorial misconduct by omitting an exculpatory portion
of Deeb’s recorded conversation with a federal agent. Joint
App. 447-50. In order for Brooks to succeed, “[t]he evidence
at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). Here, nothing in the
record suggests that the prosecution’s decision to only play a
portion of the conversation between Deeb and a federal agent
amounted to misconduct. The government introduced the full
tape into evidence. On cross-examination, Brooks’s counsel
played the allegedly exculpatory conversation for the jury,
and highlighted the fact that Deeb never discussed Brooks’
involvement in the scheme to obtain a driver’s license.
Accordingly, even if it could be argued that the prosecution
“suppressed” evidence by failing to directly present it to the
jury, it cannot be said that the failure prejudiced Brooks.
3. Troy Willock—Controversy Surrounding Witness
Identity
Lastly, Brooks and Edwards contend that the
prosecution purposefully concealed the controversy
concerning the identity of Troy Willock (“Willock 1”), who
testified in relation to the marijuana theft charged in counts
48 to 52. Willock 1 was a cooperating witness who testified
that in 2008, he saw Brooks “pocket a quantity of marijuana”
taken from a dealer during a “shakedown.” United States v.
29
Edwards, No. 2010-36, 2011 WL 5834241, *3 (D.V.I. Nov.
18, 2011).
Prior to trial, the government learned that the VIPD
had files on two Troy Willocks with different fingerprints and
photographs but the same name and birthday. The
government claims that on the first day of trial, one of the
prosecutors placed copies of Willock 1’s National Crime
Information Center (NCIC) report, along with his Pre-
Sentence Report (PSR) for his pending drug charges, on
defense counsels’ table. Joint App. 2666-68. The
government claims that both reports listed multiple social
security numbers for Willock 1 and disclosed what the
government knew about its witness at that time. Joint App.
2666-68. Defense counsel acknowledged having received the
packets, but no defendant cross-examined Willock 1 about his
identity. Joint App. 2470-22, 2474, 2477; see Joint App. 678-
94.
In or about April 2011, another person using the name
Troy Willock (“Willock 2”) complained to the Social
Security Administration in St. Thomas that Willock 1 had
stolen his identity. Joint App. 2666-68. Later that month,
Willock 1 appeared for sentencing pursuant to a guilty plea in
an unrelated drug distribution case. Willock 1’s attorney
asked to withdraw on grounds that he “had reason to believe
that Willock 1 is not who he claims to be.” Id. Counsel also
stated that he believed that Willock 1 had stolen Willock 2’s
identity.
On November 1, 2011, the District Court held a
hearing to consider the defendants’ motion for a new trial and
determine whether the controversy surrounding Willock 1’s
identity had in any way affected this trial. Following the
hearing, the Court denied the defendants’ motion. The Court
held that: (1) there was no specific evidence that Willock 1
had perjured himself at trial, as he testified that his name was
“Troy Willock” and no conflicting evidence was introduced;
(2) there was not sufficient evidence to show that, if Willock
1 committed perjury, the government knew of it before or
during trial; and (3) if Willock1 committed perjury and the
government was blameless, the perjury did not result in a
30
manifest injustice that would require upsetting the jury’s
verdict. Joint App. 2669.
On appeal, Brooks and Edwards claim that Willock 1’s
alleged perjury amounts to a due process violation because
the government either knew or should have known that
Willock 1 would offer false testimony. They claim that the
District Court abused its discretion in denying their motion
for a new trial because there was a “reasonable likelihood that
the false testimony . . . affected the judgment of the jury.”
United States v. Augurs, 427 U.S. 97, 103 (1976). We reject
their arguments for substantially the same reasons relied on
by the District Court.
For such a claim to succeed, the defendants must
show: “(1) [the government’s witness] committed perjury;
(2) the government knew or should have known of his
perjury; (3) the testimony went uncorrected; and (4) there is
any reasonable likelihood that the false testimony could have
affected the verdict.” Lambert v. Blackwell, 387 F.3d 210,
242 (3d Cir. 2004). This record does not contain any
evidence that would render the District Court’s findings
regarding the alleged perjury clearly erroneous.
Discrepancies regarding his social security number
notwithstanding, there is no direct evidence that Willock 1’s
name was anything other than “Troy Willock” when the
District Court held an evidentiary hearing into the matter. A
finding that the witness did not commit perjury would itself
“preclude a finding of constitutional error.” Lambert, 387
F.3d at 243.
The issue of knowledge is a thornier one. At the time
of trial, the government certainly appears to have been aware
that VIPD records for “Troy Willock” listed two individuals
sharing the same name and birth date -- a fact that the District
Court admitted should have raised red flags. See Edwards,
2011 WL 5834241, at *7 (noting odds that two individuals
share same name and birth date is “far from impossible” but
nonetheless a “highly improbable coincidence”). Moreover,
even if the government did not know that one number
belonged to another person, it also understood from NCIC
reports that one of the two Willocks was claiming two
separate Social Security numbers. Id. at *8. Ultimately, as
31
the District Court noted, it is clear that, at a minimum, the
government should have investigated the identity of its
witness further prior to Willock 1’s appearance at the
defendants’ trial.
However, even assuming arguendo that Willock 1
committed perjury and/or that the government knew or should
have known that, Willock 1’s testimony could not have
prejudiced the defendants’ entire case. His testimony was
only relevant to counts 48 to 52 and those charges were
dismissed at the close of the government’s case. Joint App.
1311. The transaction Willock 1 testified about did not
pertain to the RICO conspiracy charged in count 1 for which
Brooks and Edwards were convicted.
G. Limitations on Cross-Examination and the
Introduction of Character Testimony
Edwards, Brooks, and John-Baptiste all challenge
several of the District Court’s rulings regarding the admission
of evidence. We review these claims for abuse of discretion.
See United States v. Starnes, 583 F.3d 196, 213-14 (3d Cir.
2009). The District Court’s exercise of discretion is
commonly left undisturbed “unless no reasonable person
would adopt [its] view.” Ansell v. Green Acres Contracting
Co., 347 F.3d 515, 519 (3d Cir. 2003) (internal quotation
marks omitted).
1. District Court’s Limiting of Cross-
Examination of Government Witnesses
Three of the government’s witnesses against Edwards
were facing their own criminal charges when they testified.
On cross-examination, Edwards sought to elicit information
from the witnesses relating to any deals each made with the
government in exchange for their cooperation. The District
Court (acting sua sponte) permitted only questions going to
the general contours of the sentence reductions and prohibited
questions relating to the specific lengths of time they faced
without cooperation. The Court’s stated concern was that talk
of specific terms of incarceration would prejudice the jury by
“putting visions of jail and incarceration and penalties” into
the jurors’ minds as they deliberated, and cause confusion of
32
the issues because they would lack details as to the actual
lengths of the witnesses’ sentences.
Edwards claims that the District Court infringed on her
constitutional right to confrontation by limiting the scope of
the cross-examination of three government witnesses to
nonspecific questions regarding the reduction of their
sentences they received in exchange for their cooperation.
The Sixth Amendment gives a defendant the right to
cross-examine the government’s witnesses for possible bias.
Davis v. Alaska, 415 U.S. 308, 316–17 (1974). However, “[a]
district court retains ‘wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns
about . . . harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant.’” United States v. Mussare, 405 F.3d
161, 169 (3d Cir. 2005) (quoting Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)). We review any restriction of
cross-examination for abuse of discretion and will reverse
only when the restriction “is so severe as to constitute a denial
of the defendant’s right to confront witnesses against him and
. . . is prejudicial to [his] substantial rights.” United States v.
Conley, 92 F.3d 157, 169 (3d Cir. 1996) (internal quotation
marks omitted). In assessing whether a limitation on cross-
examination violated the Confrontation Clause, we inquire
into: “(1) whether the limitation significantly limited the
defendant’s right to inquire into a witness’s motivation for
testifying; and (2) whether the constraints imposed fell within
the reasonable limits that a district court has the authority to
impose.” Mussare, 405 F.3d at 169. The District Court’s
ruling was well within this parameter.
The District Court limited inquiry only into specific
sentences that could have been imposed if the witnesses had
refused to cooperate—a line of questioning that we have
allowed trial courts to curtail. See Mussare, 405 F.3d at 170
(rejecting “categorical right to inquire into the penalty a
cooperating witness would otherwise have received”).
Indeed, the District Court allowed testimony regarding the
witnesses’ agreements to cooperate with the government and
the fact that they expected to receive more lenient sentences
33
in return. See, e.g., JA 654-55 (exchange between defense
counsel and Moses in which Moses admits, inter alia, that he
“entered into an agreement with the government for what’s
referred to as substantial assistance”). We conclude that there
was no abuse of discretion here.
2. District Court’s Limiting of Cross-
Examination of Deeb
Edwards attempted to attack Deeb’s credibility by
cross-examining him about Deeb’s alleged submission of a
fraudulent insurance claim. Edwards wanted to produce two
witnesses who would have testified about this. The District
Court ruled that such extrinsic evidence was both
impermissible under Fed. R. Evid. 608(b), 16 and barred by
Fed. R. Evid. 403 because it would result in an unnecessarily
confusing “mini insurance trial.” Because Deeb’s
compensation from the FBI and DEA was at issue, the
District Court limited any inquiry related to an insurance
payout to matters relating to his income, and not to the
alleged fraud itself. Edwards’s again argues that the District
Court’s decision to limit defense counsel’s cross-examination
was a violation of her confrontation rights. See Edwards’s
Br. at 19-23.
Edwards’s confrontation argument as to Deeb must
also fail. In denying Edwards’s defense counsel the
opportunity to question Deeb as to his past insurance claim,
the District Court stressed that it had never been established
that Deeb acted fraudulently. See Joint App. A 500-02.
Accordingly, the District Court acted well within its
discretion in concluding that any questions this insurance
16
Rule 608(a) provides that a party may attack a
witness’s credibility “by testimony about the witness’s
reputation for having a character for truthfulness or
untruthfulness, or by testimony in the form of an
opinion about that character.” The rule prohibits
“extrinsic evidence … to prove a specific instance[] of
a witness’s conduct in order to attack or support the
witness’s character for truthfulness….” See United
States v. Murray, 103 F.3d 310, 322 (3d Cir. 1997).
34
claim were potentially confusing, misleading, and risked
unnecessary delay.
3. District Court’s Exclusion of Out-of-
Court Statements
During trial, John-Baptiste intended to have five
witnesses, who were present during the incident with Calixte
testify about that incident. This is the incident we have
discussed above 17 and is the same incident that formed the
basis of the charges against John-Baptiste. John-Baptiste
insisted that his arrest of Calixte was the result of an
altercation in which Calixte refused to move her unlawfully
parked cab and then proceeded to physically attack him. The
proffered testimony was offered to establish that the force
used, the arrest, and the detention, were all reasonable under
the circumstances. Moreover, John-Baptiste intended to use
witnesses’ recollection that, before the altercation with
Calixte, he told the drivers of parked cars “125, 125”— which
the witnesses understood was the fine for parking in the
relevant loading zone ($125). The testimony was intended to
show that he fairly and properly enforced VIPA rules.
The District Court sustained hearsay objections and
limited the witnesses’ testimony only to what they saw, rather
than what they heard. The court also rejected John-Baptiste’s
argument that the statements were verbal parts of acts
showing the state of mind of both parties and therefore not
offered for the truth of the matter asserted. Because this
incident, and Calixte’s post-arrest complaints, form the basis
of the allegations against John-Baptiste, he argues that the
District Court’s “mechanistic[]” application of the hearsay
rule denied him due process, citing Chambers v. Mississippi,
410 U.S. 284 (1973). Jean-Baptiste Br. at 33-34.
John-Baptiste’s argument relies on two exceptions to
the hearsay rules. First, he claims that any statements he
sought to introduce were not hearsay because they constituted
“verbal acts”—a legally operative statement, like making a
contract or a threat. United States v. Tyler, 281 F.3d 84, 98
(3d Cir. 2002). Second—as the government concedes—John-
17
See Section I.A.
35
Baptiste’s argument could also be characterized as invoking
the state of mind exception to the hearsay rule.
Under either of these theories, John-Baptiste’s
arguments would fail. First, it is unclear how any of the
testimony that John-Baptiste sought to introduce—which, he
explains would have gone to show the “reasonableness of the
actions of the officer”—could be characterized as “verbal
acts.” See, e.g., United States v. Tyler, 281 F.3d 84, 98 (3d
Cir. 2002) (“The hearsay rule excludes … statements which
themselves ‘affect[] the legal rights of the parties or [are]
circumstance[s] bearing on conduct affecting their rights.’”
(quoting Fed. R. Evid. 801(c))). Moreover, to the extent any
testimony would have gone to show either John-Baptiste’s or
Calixte’s frame of mind during their exchange, the
government correctly notes that other non-hearsay testimony
regarding observations adequately informed the jurors of the
confrontation.—“[John-Baptiste] approached her car; she
threw a drink can at him; he reached for the door handle; he
pulled her out; she kicked him; they scuffled; he put
handcuffs on her….” Gov. Br. at 33. Accordingly, the
District Court acted within the bounds of its discretion when
it foreclosed the use of this testimony. 18
4. District Court’s Refusal to Allow
John-Baptiste to Cross- Examine VIPA
Chief Wilkes on Calixte’s Prior Statements
On cross-examination of VIPA Chief Edred Wilkes,
John-Baptiste’s defense counsel asked a series of questions
attempting to show that Calixte had made statements
inconsistent with her prior testimony. The District Court
refused to allow this line of questioning because it constituted
18
Moreover, John-Baptiste’s argument misses the force of the
Calixte incident. That incident resulted in criminal charges
not because of the initial seizure and detention which may
have been appropriate as well as legal. However, despite the
legality of the initial arrest, as explained above, it is clear on
this record that at some point after she was arrested, John-
Baptiste continued Calixte’s detention in order to extort a
ransom for her release. That is the criminality, not the initial
arrest and detention.
36
improper impeachment under Fed. R. Evid. 613. Rule 613
required that Calixte first be given the opportunity to “explain
or deny” any extrinsic evidence of a prior inconsistent
statement. Joint App. 1120-23. John-Baptiste claims that the
District Court’s ruling was erroneous and contributed to the
denial of his due process rights. The argument is meritless as
the Court’s ruling was clearly consistent with Rule 613 and
well within the Court’s discretion. See United States v.
Saada, 212 F.3d 210, 221 (3d Cir. 2000) (“Rule 613 requires
that a witness be given the opportunity to admit or deny a
prior inconsistent statement before extrinsic evidence of that
statement may be introduced.”).
5. Government’s use of
Deborah Harrigan’s
Testimony to Rebut
Edwards’s Alibi Evidence
Edwards claims that the District Court erred by
permitting the government to introduce testimony from
Deborah Harrigan, because defense counsel had not
received adequate notice of her testimony as required
by Fed. R. Crim. P. 12.1. Edwards Br. at 6-7.
Harrigan is a VIPD payroll custodian who
rebutted Edwards’s claim that she was away for nearly
all of 2005. Harrigan testified that Edwards worked
VIPD shifts from August 22 through August 31, 2005.
Edwards did provide notice of an alibi in accordance
with Fed. R. Crim. P. 12(a) as to September 4-18, 2005
(when the drug transaction alleged in counts 3 and 4
took place). However, at trial, Edwards testified that
she was away for nearly all of 2005 and that “from
August to September” she was in Antigua. Joint App.
1760.
The court properly allowed the government to
expand the scope of Harrigan’s testimony to address
Edwards’ expanded alibi. Federal Rule of Criminal
Procedure 12.1(3) grants courts the discretion to admit
or prohibit a witness’s testimony if a party fails to
provide the notice required by 12.1(a). The court may
grant an exception to the notice requirements “[f]or
good cause.” Id. 12.1(d). Accordingly, the rule
provides the district court with discretion and acts to
37
prevent surprise at trial. Harrigan’s testimony was
properly admitted in response to Edwards’ own failure
to give adequate notice for her alibi. United States v.
Carter, 756 F.2d 310, 312 (3d Cir. 1985). Moreover,
Edwards was paid for the period in question, and
presumably knew that time sheets reflecting that she
was on duty during that period would be available to
offer into evidence. Thus, she cannot seriously claim
that she was surprised by Harrigan’s testimony.
Accordingly, we conclude the District Court acted
within its discretion in allowing Harrigan’s testimony
regarding Edwards’s whereabouts in August 2005
without prior notice from defense counsel.
V. Conclusion
For the foregoing reasons, we will affirm the District
Court’s judgment of conviction as to each defendant. We will
reverse the District Court’s ruling acquitting Brooks and
Edwards of conspiring to distribute a controlled substance
(count 46). We also reverse the District Court’s ruling
acquitting Brooks and Edwards of extortion and conspiracy to
extort (counts 5, 6, 10, 11, and 12). Accordingly, we will
vacate and remand with directions that the District Court
reinstate the jury’s verdict of conviction and proceed to
resentencing.
38