JAMAL JUSTIN FAHIE, Petitioner v. PEOPLE
No. 15-2721
United States Court of Appeals for the Third Circuit
May 24, 2017
858 F.3d 935
DAVID J. CATTIE, St. Thomas, USVI, Counsel for Petitioner.
KIMBERLY L. SALISBURY, PAMELA R. TEPPER, SU-LAYNE U. WALKER, Office of Attorney General of Virgin Islands, Department of Justice, St. Thomas, USVI,
EDWARD L. BARRY, Christiansted, USVI; CHRISTOPHER A. BROOKHART, Estrella, San Juan, PR, Counsel for Amicus Curiae.
CHAGARES, JORDAN and HARDIMAN, Circuit Judges
OPINION OF THE COURT
(May 24, 2017)
JORDAN, Circuit Judge
This case comes to us on a writ of certiorari to the Virgin Islands Supreme Court. Kamaal Francis was identified by an eyewitness as the triggerman in the fatal shooting of Omari Baltimore on St. Thomas. Francis protested his innocence but admitted that he was present during the shooting and claimed that Jamal Justin Fahie wielded the weapon. Both Fahie and Francis were later charged with the murder and related crimes. Francis worked out a plea deal with the government. In exchange for reduced charges, he agreed to testify against Fahie, which he did, swearing that Fahie was the sole shooter. The jury found Fahie guilty as charged. After an unsuccessful appeal to the V.I. Supreme Court, Fahie petitioned us for a writ of certiorari.
We granted the petition and accepted the following two questions: (1) whether the V.I. Supreme Court erred in ruling that it was appropriate for the trial court to give an “aiding and abetting” instruction under the circumstances of this case; and (2) whether the V.I. Supreme Court used the correct standard to assess whether another supposed error in the jury instructions was harmless. In addition to the briefing provided by the parties, the Virgin Islands Bar Association has filed an amicus brief challenging our jurisdiction to consider this matter at all. For the reasons that follow, we conclude that we do have jurisdiction, that the ruling on the “aiding and abetting” instruction was proper, and that we improvidently granted certiorari on the harmless error question.
I. Background
A. Factual Background
“On November 19, 2011 . . . Omari Baltimore was shot 19 times while walking up Bunker Hill . . . on St. Thomas.” Fahie v. People, 62 V.I. 625, 628 (2015). Carol Kelly, a resident of a nearby neighborhood, witnessed the murder. Id. She called 911 to report the crime and, later that day, identified Kamaal Francis as the killer from a police photo array. Id. “The police arrested Francis the following day and charged him with first-degree murder and several other crimes.” Id. At first, Francis lied about his location and his involvement in the murder. Id. “However, [he] later recanted . . . and informed the police that he was at the scene of the shooting but that it was Jamal Fahie who shot Baltimore.” Id. Francis explained that Fahie was motivated by gang-related animosity. Id. He also “gave a detailed description of how Fahie committed Baltimore‘s murder as well as a description of what clothing Fahie was wearing at the time of the murder[.]” Id. at 629. Among other details, Francis noted that Fahie used a Glock firearm1 to commit the crime. Id. A subsequent ballistics analysis confirmed that a Glock was the murder weapon. “Police authorities later found [the clothing that Francis had described]
B. Procedural Background
Based on Francis‘s statement, “the government filed a multi-count Information against . . . Fahie and . . . Francis[,]”2 (Opening Br. at 3.) Both men were charged with first degree murder, second degree murder, first degree assault, and three counts involving the unauthorized use of a firearm.3 Francis later agreed to plead guilty to the charges of accessory after the fact and misprision of a felony, to cooperate with the government, and to testify against Fahie at trial. In exchange, the government agreed to drop the other charges against Francis and to recommend a sentence of five to ten years imprisonment for the accessory charge and three years’ for the misprision charge.
Francis kept his end of the bargain. He testified at trial that he and Fahie were together on the evening of the shooting and that they saw Baltimore walking towards the top of Bunker Hill. Francis said that he and Fahie got a ride to the top of the hill from Karl Webbe, one of Francis‘s friends, and that, during the ride, Fahie said “I‘m gonna deal with this guy . . . [I‘m gonna] kill him.” (JA at 415.) At the high point of the road, Fahie got out of the car and ran up a flight of stairs to reach Baltimore, with Francis following. Francis described what happened next:
When we got to the top of the stairs Mr. Fahie then takes a black mask out of his pocket . . . [and] took an extended [ammunition] clip out of his right back pocket . . . So, Mr. Fahie then puts his mask over his face and loads his clip, and he looks up, sees Baltimore and he sho[o]ts him. . . . I was right behind him.
(JA at 417-18.) After the shooting, Francis said that they ran down the stairs and were driven away by Webbe.
At trial, in addition to presenting Francis‘s account of events and arguing that Fahie was the sole shooter, the government presented forensic experts who testified that Baltimore was shot nineteen times, that he died of his gunshot wounds, that each of the bullets was fired from the same gun, and that the gun involved in the shooting was manufactured by Glock.
Following the government‘s presentation of its case, Fahie invoked
Relying on the testimony of Carol Kelly, Fahie mounted a defense which was, basically, that Francis committed the murder. Kelly testified that she was walking up Bunker Hill when Francis passed her from behind. She indicated that the shooting started about two minutes after Francis had passed her, and that she saw Francis fire at least some of the shots. Kelly further recounted that she called 911 after the shooting and identified Francis from a photo lineup.4
After Fahie presented his case, the government advanced the Fifth Amended Information, which reincorporated the aiding and abetting theory of liability. The amendment was evidently motivated by Kelly‘s testimony. Over Fahie‘s objection, the trial court allowed the amendment and instructed the jury on aiding and abetting as a theory of guilt. The court also gave an anti-CSI instruction. An “anti-CSI” instruction states, in essence, that the government is not required to “employ any specific investigation technique [such as fingerprint analysis or DNA testing] or all possible investigative techniques to prove [its] case.” (JA at 127.) The name by which such instructions are known is a reference to the popular television series “CSI” and its spinoffs, which feature crime scene investigators using sophisticated forensic techniques to solve crimes. The anti-CSI instruction in this case told the jury that the government was “not required to gather or produce any specific type of evidence so long as [it] present[ed] sufficient evidence to convince [the members] beyond a reasonable doubt of [Fahie‘s] guilt.” (JA at 895-96.) Fahie was found guilty on all counts.
On appeal to the V.I. Supreme Court, Fahie challenged the trial court‘s decision to, inter alia, include the aiding and abetting instruction and the anti-CSI instruction. Fahie, 62 V.I. at 629-30. Both challenges were rejected. With respect to the aiding and abetting instruction, the V.I. Supreme Court concluded that there was sufficient evidence to support a theory of aiding and abetting liability and that Fahie had been given adequate notice of the theory. Id. at 633-35. With respect to the anti-CSI instruction, it agreed that the trial court should not have included the instruction but concluded that the error was harmless. Id. at 638.
After the V.I. Supreme Court ruled against him, Fahie sought a writ of certiorari from us and we granted his petition, specifically as to the questions relating to the “aiding and abetting” and “anti-CSI” instructions. (JA at 1-2.)
A. Jurisdiction
The V.I. Supreme Court had jurisdiction under
Under the Revised Organic Act of 1984, we had, for a limited time, certiorari jurisdiction over “all final decisions of the highest court of the Virgin Islands from which a decision could be had.”5
On December 28, 2012, the President of the United States signed into law the bill that became the current version of
The dispute over our jurisdiction in this case centers on the meaning of the words “commenced on[.]”
This is not the first time we have been asked to construe § 1613. In North America Seafarers International Union ex rel. Bason v. Government of the Virgin Islands (”Bason“), 767 F.3d 193, 205-06, 61 V.I. 753 (3d Cir. 2014), we adopted the first of the two interpretations described above and expressly held that the statute eliminates jurisdiction over all cases commenced in the Superior Court after December 28, 2012. Id. In that case, the original plaintiff, Bason, died during the pendency of an appeal for reinstatement to a previous employment position. Id. at 195-200. We eventually dismissed the case on mootness grounds, id. at 211, but we did so only after deciding the threshold jurisdictional question concerning § 1613, saying, “we conclude that we still possess certiorari jurisdiction over proceedings that were filed in the Virgin Islands courts before [§ 1613‘s] enactment date[.]” Id. at 201. We also said our decision was “[b]ased on the language of the statute, analogous legislation, and prior case law[.]” Id. at 206.
The Bar Association disagrees with Bason and argues that our analysis relating to jurisdiction “contravened the jurisprudence of the Supreme Court . . . and the uncontradicted legislative history [of § 1613.]” (Br. of Amicus Curiae at 2.) It also asserts that the jurisdictional analysis in Bason is nonbinding because the “unequivocal determination that the matter was moot by reason of Bason‘s intervening death renders the remainder of the Bason decision dicta.” (Id. at 4.) On those grounds, the Bar Association urges that we “overturn Bason[,]” and it says that we have “the complete freedom” to do so without requiring en banc review. (Id. at 3.)
No matter how we might now view Bason, however, the Bar Association is mistaken about our “complete freedom[.]” (Id.) We deliberately chose to assess the jurisdictional question as a threshold issue in Bason, recognizing that, “while threshold jurisdictional issues must ordinarily be decided before turning to the merits, ‘there is no mandatory sequencing of jurisdictional issues.’ ” Bason, 767 F.3d at 202 n.3 (quoting Sinochem Int‘l Co. v. Malaysia Int‘l Shipping Corp., 549 U.S. 422, 431 (2007)). Then after extensive analysis, we concluded that the words “cases commenced” were a reference “to the filing of a complaint in the Virgin Islands Superior Court.” Id. at 206 (quotation and alteration omitted). That ruling was not merely non-binding dicta, and it remains the law in our Circuit.8 Thus, while we are grateful for the interest and assistance of the Bar Association, we cannot accept its argument. According to Bason, we have jurisdiction over Fahie‘s claims.
Fahie objects to the inclusion of the “aiding and abetting” instruction, not to its content, so we are not asked to review the legal accuracy of the instruction, which would call for de novo review. Gov‘t of V.I. v. Isaac, 50 F.3d 1175, 1180 (3d Cir. 1995) (“[W]here . . . the question is whether the jury instructions failed to state the proper legal standard, this court‘s review is plenary.“). Instead, we review for abuse of discretion the trial court‘s decision to include the instruction at all. Cf. id. (“Generally, we review the district court‘s refusal to give certain jury instructions on an abuse of discretion basis.“); see also United States v. Moreno, 727 F.3d 255, 261, 59 V.I. 1131 (3d Cir. 2013) (“[I]n the absence of a misstatement [within the jury instructions] we review for abuse of discretion.” (quotation omitted)).
“When jury instructions are challenged, ‘we consider the totality of the instructions and not a particular sentence or paragraph in isolation.’ ” United States v. Thayer, 201 F.3d 214, 221 (3d Cir. 1999) (quoting United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995)), abrogated on other grounds by Skilling v. United States, 561 U.S. 358 (2010). “The issue is ‘whether, viewed in light of the evidence, the charge as a whole fairly and adequately submits the issues in the case to the jury.’ ” Id. (quoting United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995)).
Fahie advances two challenges to the “aiding and abetting” instruction. First, he argues that it was erroneous because it was given “despite the fact that the government never presented [an aiding and abetting] theory at trial.” (Opening Br. at 14.) Second, he argues that the instruction is problematic because Francis pled guilty to being an accessory after the fact, effectively eliminating the possibility of Francis being a principal for Fahie to “aid or abet” in the shooting. (Id. at 14, 16-19); see also Gov‘t of V.I. v. Aquino, 378 F.2d 540, 553, 6 V.I. 395 (3d Cir. 1967) (“By definition, an accessory after the fact is one who stands outside the commission of the substantive crime, for his offense consists of what he does, after he knows it has been committed, to aid the offender to avoid apprehension or punishment.“). We address those arguments in turn.
Fahie says that the instruction was erroneous because it was included even though the government did not present an aiding and abetting theory.9 But the record demonstrates that the government did, in fact, present an aiding and abetting theory to the jury. In its closing statement, the government discussed Kelly‘s testimony and drew the jury‘s attention to the portions of her statement that refer to two shooters. (See JA at 873-74, 876.)10 The government laid the groundwork for that argument when it questioned Kelly. (JA at 744, 751.)11 The record thus shows that
That the government did not use the phrase “aiding and abetting” when talking to the jury does not mean the judge was precluded from including the instruction. See United States v. Gordon, 812 F.2d 965, 969 (5th Cir. 1987) (“The words ‘aid and abet’ need not appear in the indictment in order to sustain a conviction as an aider and abettor . . . ‘[O]ne who has been indicted as a principal may be convicted on evidence showing that he has merely aided and abetted the commission of the offense.’ “) (quoting United States v. Vines, 580 F.2d 850, 853 (5th Cir. 1978)). The government communicated its intent to argue the aiding and abetting theory when it amended the Information to include aiding and abetting as a basis for criminal liability and when it requested that the judge add an aiding and abetting instruction to the jury charge. Fahie was thus on notice that the government was indeed relying on that theory.
The second argument Fahie advances is that the instruction is problematic because “legally, there was no one for Fahie to ‘aid and abet’ ” since Francis was, by virtue of his plea agreement, an accessory after the fact, which precluded any consideration of him as a participant in the shooting. (Opening Br. at 14, 19.) Essentially, Fahie argues that Francis‘s plea to being an accessory after the fact confined the government‘s proof at Fahie‘s trial. By Fahie‘s lights, since an accessory after the fact “[b]y definition . . . is one who stands outside the commission of the substantive crime . . . [,]” Aquino, 378 F.2d at 553; see also
That argument has a certain superficial appeal but is flawed. It rests on an improper understanding of judicial estoppel.14 The fact that the government negotiates
Two analogous cases are persuasive in this regard. In Standefer v. United States, 447 U.S. 10, 11-14 (1980), the Supreme Court upheld an aiding and abetting conviction under
We therefore reject Fahie‘s argument that judicial estoppel is applicable to bar
C. The Anti-CSI Instruction
The second question on which we granted certiorari concerns the use of an anti-CSI instruction and whether the V.I. Supreme Court applied the correct “harmless error” standard after finding the instruction was erroneous. On further consideration, we believe that the writ was, in that regard, improvidently granted. Because the propriety of an anti-CSI instruction is fundamentally a matter of Virgin Islands law, and not a matter of federal concern, we will vacate the writ of certiorari as it pertains to that question.
Our review of the briefing, record, and oral argument convinces us that the V.I. Supreme Court‘s determination that the anti-CSI instruction was error is a point of territorial law on evidence. The parties themselves agree on that,17 and they appear to be right, since the language of the V.I. Supreme Court‘s decision focuses on Virgin Islands precedent rather than constitutional principles. Fahie, 62 V.I. at 636 (“Although we have not previously addressed the validity of an instruction informing the jury that the People [were] not required to produce specific scientific evidence, this Court has noted that when the trial court comments on the evidence, or the absence of evidence, it risks invading the exclusive province of the jury to decide what conclusions should be drawn from evidence admitted at trial.“) (citations omitted).
In addition, a review of the factors provided in our local rules to guide our discretion in granting certiorari suggests that certiorari on this question is better withheld. 3d Cir. L.A.R. 112.1 (2011). Specifically, those factors are:
(1) The Supreme Court of the Virgin Islands has decided a question in a way that conflicts with applicable decisions of this court, other appellate courts, or the United States Supreme Court. (2) The Supreme Court of the Virgin Islands has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of this court‘s powers of review. (3) The Supreme Court of the Virgin Islands has decided an important question of federal or territorial law that has not been, but should be, decided by this court. (4) The Supreme Court of the Virgin Islands was without jurisdiction of the case, or where, because of disqualifications or other reason, the decision of the Supreme Court of the Virgin Islands lacks the concurrence of the required majority of qualified non-recused judges.
Id. None of those factors appear to be applicable to the V.I. Supreme Court‘s ruling on this issue.
III. Conclusion
For the foregoing reasons, we have jurisdiction; we will affirm the ruling on the aiding and abetting instruction; and we will vacate as improvidently granted the writ of certiorari as it pertains to the anti-CSI instruction.
Notes
“Q: Was the person who was doing the shooting the same person who had passed you on the hill? A: Initially, no. He was the one who fired the last four shots.” (JA at 732);
“Q: Okay. And when you looked up from there tell the jury what you saw? A: The gentleman who had pass[ed] me on the road was approaching a second person who had his arm extended and pointing across the road. Mr. Francis took one more step and then turned. The gunshots were continuing and there was a slight pause, and then Mr. Francis had the gun and walked across the road and shot four times into the body. Q: Did you ever see more than one firearm? A: No.” (JA at 740);
“Q: Okay. So you had heard shots, at this point in time [Francis] wasn‘t shooting, you saw an arm extended and heard shots; is that correct? A: Correct.” (JA at 744);
“They stood over him and shot him four times.” (911 Call of Carol Kelly at 4:18-4:28 (Lexar zipdrive, Aug. 2012)).
Within that system, the Superior Court of the Virgin Islands holds concurrent original jurisdiction with the District Court in all criminal actions.
requires that: (1) a party adopts a position clearly inconsistent with an earlier position and (2) the party had succeeded in persuading a court to accept that party‘s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled.”
Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 750 (2001)). Thus, “absent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory.” In re Kane, 628 F.3d 631, 638 (3d Cir. 2010) (quoting Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d 314, 319 (3d Cir. 2003)).