Jamal Fahie v. People of the Virgin Islands
66 V.I. 935
| 3rd Cir. | 2017Background
- On Nov. 19, 2011 Omari Baltimore was shot 19 times on St. Thomas; eyewitness Carol Kelly initially identified Kamaal Francis as the shooter.
- Francis later told police he was present but Jamal Fahie was the shooter; Francis described Fahie’s clothing and the use of a Glock; forensic testing matched a Glock and found gunpowder residue on clothing recovered from Fahie’s residence.
- Francis pleaded guilty to accessory-after-the-fact and misprision in exchange for testimony against Fahie; he testified that Fahie was the sole shooter.
- At trial Kelly testified she saw Francis fire some shots and suggested two shooters; after her testimony the government amended the Information to reincorporate an aiding-and-abetting theory and the court instructed the jury on aiding-and-abetting.
- The trial court also gave an anti-CSI instruction (telling jurors the prosecution need not produce specific scientific evidence); Fahie was convicted on all counts.
- On appeal the V.I. Supreme Court upheld the aiding-and-abetting instruction and found the anti-CSI instruction erroneous but harmless; Fahie petitioned this Court which granted certiorari as to both issues.
Issues
| Issue | Fahie’s Argument | People’s Argument | Held |
|---|---|---|---|
| Jurisdiction: whether 3d Cir. retains certiorari review | Bar/implicit: §1613 revoked certiorari for cases pending when petition filed; no jurisdiction | Bason precedent: certiorari remains for cases commenced before §1613 enactment | Court has jurisdiction (Bason controls) |
| Aiding-and-abetting instruction: whether giving it was proper | Instruction improper because gov’t didn’t pursue that theory in chief and Francis’s plea as accessory after the fact precludes him being a principal | Gov’t argued it advanced aiding/abetting after Kelly’s testimony, amended the Information, and Fahie had notice; evidence supported the theory | Instruction proper; no abuse of discretion to give it |
| Judicial estoppel effect of cooperator’s plea | Francis’s plea to accessory-after-the-fact judicially estops prosecution from treating him as participant (so aiding theory impossible) | Plea bargaining does not bind future prosecutions absent fraud or knowing misrepresentation; estoppel not triggered here | Judicial estoppel not applicable; aiding/abetting theory allowed |
| Anti-CSI instruction & harmless-error standard | Instruction was erroneous and V.I. Supreme Court misapplied harmless-error standard (Fahie sought review) | V.I. Supreme Court treated it as territorial evidence law and applied appropriate review | Certiorari improvidently granted on this question; vacated that portion (territorial law best left to V.I. Supreme Court) |
Key Cases Cited
- Standefer v. United States, 447 U.S. 10 (Sup. Ct.) (a participant’s liability under aiding-and-abetting principles is not negated by acquittal or plea of another participant)
- Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d 314 (3d Cir.) (judicial estoppel requires prior court acceptance of the earlier inconsistent position and that the inconsistency be tantamount to a knowing misrepresentation)
- North Am. Seafarers Int’l Union ex rel. Bason v. Gov’t of the V.I., 767 F.3d 193 (3d Cir.) (interpreting §1613: certiorari jurisdiction preserved for cases commenced before the statutory cutoff)
- Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (Sup. Ct.) (no mandatory sequencing of threshold jurisdictional issues)
- Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (Sup. Ct.) (courts must raise lack of subject-matter jurisdiction sua sponte)