*1 AMERICA, Appellee UNITED STATES OF MIKE, JAMAAL L. Appellant No. 10-1394 United States Court of Appeals for the Third Circuit 23, 2011
August *3 of Federal Public J. Office A. Villegas, Esq., Gessin, Esq., Gabriel Jesse USVI; Amafie, Defender, THURSTON T. St. Charlotte Christiansted, Defender, Federal Public Office of McKelvin, ESQ., USVI, Counsel Appellant. for Amalie, Charlotte of United StatesAttorney, Office JONES,Esq.,
NelsonL. Thomas, USVI, Appellee. Counsel St. SMITH, McKee,
McKEE, Judges. FUENTES and Circuit Judge, Chief and in dissenting Judge, concurring part part. Chief THE OPINION OF COURT (August 2011) Fuentes, Circuit Judge Mike, and aiding abetting was convicted by jury Jamaal
Appellant, a violation outside his state of residency, of a firearm receipt acquired and unauthorized 922(a)(3) 924(a)(1)(D); possession of 18 U.S.C. § 14, 2253(a). tit. He a firearm in of VI. CODE Ann. appeals violation convictions, trial. that there were three with his these arguing problems First, it failed to use that the District Court erred when give he says co-defendant; second, that he entitled to a he says no evidence that the firearm he because there was judgment acquittal *4 ammunition; and of discharging convicted of was capable was possessing a based on an he that he was entitled to judgment acquittal finally, says affirmative law. find these arguments defense under Islands We Virgin below, and, forth affirm the judgment for the reasons set unpersuasive the District Court. I. 10, 2009, a Ouma Francis down Fenyang deposit
On put April Gun Rieg’s rifle and two 30-round magazines Shop an AK-47 purchase Orlando, the next Ten day. days Florida. He the purchase completed Juan, Rico, 21, 2009, later, in San Puerto on U.S. inspectors April postal a a man named Imon Thomas with a addressed to intercepted package revealed Their investigation Islands. in St. office box post box in the office was false and that post return address the package’s the Thomas. Intrigued, to Imon not registered address was the shipping After inside. and saw a firearm x-rayed package inspectors postal warrant, discovered an and they package a search opened securing The magazines. postal and two 30-round covered in grease AK-47 fired” it to test the box and “dry from then removed weapon inspectors that, the AK-47’s removed After they It was. whether it was operable. box, firearm on its St. bolt, way and sent the it back in the firing placed the would-be delivery designed apprehend Thomas in a controlled owner. Mike, owner, travelling Jamaal found the
The next day prospective Reid, Jr., and with Lucas office in St. Thomas the Frenchtown post met Hunte, and Reid had along old that Mike a 17-year juvenile Dwayne office, and Reid arrived at post of the road. When group the side a McDonald’s. nearby met his mother at while Hunte Mike went inside Reid left the office empty-handed, minutes Mike and post After a few There, Hunte, office. drove to the Estate Sugar post back to went it. Reid and a number on tracking a with Mike Reid gave slip paper but office to retrieve package, Estate Sugar Hunte then entered post office. back at the Frenchtown post that the was were told package arrived, Mike Hunte gave they around to Frenchtown. When circled group on it. Hunte Imon Thomas written one with the name this slip paper, office a card from post office and retrieved inside the and Reid went post Hunte, stood card to who Reid gave to Reid’s father. box belonging When employee card to a employee. and handed the postal in fine name Imon it under the Hunte signed Hunte a brought package, car, where to Reid’s then carried package Reid and Hunte Thomas. in the was placed Once package So were waiting. police. Mike Reid, Mike, and and arrested car, the vehicle federal agents approached Hunte, a firearm. had a license to possess none of whom to shipping guilty arrested. He subsequently pleaded
Francis was also an out-of-state a firearm to and to transferring in the mail a firearm that neither attorney he told his negotiations, his During plea resident. Imon he addressed to in the knew what was Mike nor Reid that Francis would the Government told attorney Thomas. Francis’s fact this the Government disclosed behalf and on Mike and Reid’s testify 19, 2009, Francis. *5 Mike subpoenaed and Reid. On October to
1353 Francis moved to next October quash subpoena very day, 20. — — That same the first of the trial day day Mike asked for a continuance to Francis’s offer investigate to The District testify. Court denied the motion. Mike then asked Court to grant Francis use immunity. motion, Court denied the that Francis’s concluding would not be clearly “I don’t think there’s exculpatory: basis for any immunity] [use at this It sounds like point. it would be a issue. And credibility that’s it, think, that would take something I out of the realm of clearly to, which I think is a exculpatory, baseline in requirement order for the Court to even further.” Mike go any 174-75). moved for a (App. judgment at the close of the acquittal government’s case and after the again returned a verdict of on both guilty counts. The District Court denied the motions. Mike was sentenced to subsequently fifty-one-month sentences conviction, on each of the imprisonment counts of to be served concurrently.
Mike appeals denial of each of the above motions. The District Court had jurisdiction to 18 U.S.C. pursuant 3231 and 48 U.S.C. 1612. We have under the jurisdiction authority 28 U.S.C. provided by II.§ 1291. on argues that the District appeal Court was to wrong deny to request give Francis use We immunity. review District Court’s
factual determinations
regarding
effect of
likely
undisclosed
information for clear error and its ultimate decision not to immunize a
defense witness for an
Perez,
abuse of discretion. See United States v.
F.3d
(3d
280
348
Cir. 2002).1 We see no error. The District Court did
not abuse its discretion when it declined Mike’s
request
grant Francis
use
because the
immunity
failure to grant Francis
did not
Mike of his
deprive
constitutional due
process right
present clearly
evidence
exculpatory
obtain a fair
necessary
trial.
Thomas,
Our decision in United States v.
(3d
2004)
review was plain limited to error. *6 states that States Constitution Amendment to the United
The Fifth life, without due or liberty, be of property, shall... deprived person “[n]o v. Mississippi, amend. V. Chambers of law.” U.S. CONST. process essence, the is “in that this due right Court recognized process Supreme accusations.” defend State’s against fair to to a right opportunity 294, 1038, For this 284, (1973). L. Ed. 2d Ct. 35 297 U.S. 93 S. 410 strict rules reason, held that Mississippi’s the Chambers court evidence, cross-examining from Leon Chambers which prevented crime and him from to the same prevented who had confessed witness violated of the witness’s guilt, into evidence other admissions entering fair trial. Id. him a effectively denying to due by Chambers’s right process 285, at 302. that criminal defendants recognizes
Chambers
proposition
evidence
to have
right
clearly exculpatory
a “due process
possess
there is no strong countervailing
to the
at least when
jury,
presented
Herman,
States v.
its exclusion.” United
interest
systemic
justifies
1191,
to be
(3d Cir.
That recognition proved
F.2d
1204
589
Islands v.
in Government
to the
presented
answer
question
964,
to
Smith,
1980):
If a defendant’s right
F.2d
After
precisely identifying
right
the Smith court
it,
focused on the means of
protecting
making
common-sense
observation that
. . .
“[a]ny remedy
must take into account the fact that a
retrial would be
unless the evidence
meaningless
in issue
be
may
Id. In cases where a defense
compelled.”
witness invokes the Fifth
self-incrimination,
Amendment for fear of
only way
this
compel
*7
States,
evidence is to
Id.
grant immunity.
See
v. United
Kastigar
406 U.S.
441, 462,
1653,
(1972)
92 S. Ct.
immunity must be properly sought in the district court; [2] the de fense witness must be available to testify; [3] proffered testimony must be clearly exculpatory; [4] testimony must be essential; and [5] there must be no strong governmental interests which countervail against a of grant immunity.
Id. at 972.
Mike’s is focused on the appeal of the availability remedy judicially-granted The immunity. parties agree first two conditions for are granting remedy satisfied. battle is over the last three, with on the particular condition that emphasis proffered be testimony “clearly exculpatory.”
Our decision in United States v.
(3d
2004),
The government says *8 Mike in the that he did not tell Mike what was package have testified the Islands. at the Frenchtown office in post helped pick up with the that Mike him a gave slip paper Hunte testified he the on it in order to identify name Imon Thomas written detained, that, and after their arrest while He further testified wanted. haircut,” is, understood this to a and that Hunte told Hunte “all it is all it would mean to take the because mean that Mike wanted Hunte rap Home.” and a at the stay “Boy’s a conviction for Hunte was juvenile could have because the 171-72). jury to the government, According (App. in the knew what was that Mike inferred from Hunte’s statements created have to the would contrary simply Francis’s testimony package, under Thomas enough it contends is an issue of which credibility, be testimony clearly exculpatory. meet the condition of Thomas is Its view seems The Government’s reading expansive. the weigh if the must jury is clearly exculpatory to be that never testimony of other credibility the against of the immunized witness credibility will be the law. In Smith we said that “[i]mmunity witnesses. This is not the only relate ... is found to the testimony denied if proffered witnesses,” F.2d at 972 (emphasis of the credibility government’s Ammar, added), and in we remarked that is judicial immunity improper when the is “at best F.2d testimony at 251 n.8. proffered speculative,” in these the Nothing cases rules out that a defense witness’s possibility establish, can be when it testimony clearly exculpatory helps among other that a witness’s is not credible. Of things, government testimony course, found no in we error the failure to in Thomas grant immunity a determination would be in order to credibility required “[b]ecause credible,” determine which were more 357 F.3d at but this parties Elsewhere, was not the sole reason for our decision. we emphasized “undermine” there was other evidence to “undercut” and Thomas’s theory case. Id. at 365-66. Here, inas there is evidence in the record undercutting Francis testimony might given have Mike’s of the case. theory Hunte’s is one such of evidence. Mike’s testimony records piece phone trial, Francis, are another. At testified that Mike and postal inspector Reid numerous calls on the exchanged AK-47 was telephone days mail, the AK-47 was sent purchased, day into and the day AK-47 was at the 299-307). office. This picked up post (App. testimony, too, Thus, trial, undermines Mike’s claim of in in ignorance. Mike’s as Thomas’s, was confronted with more than just credibility cases, determination. both from the witness the defendant, defendant wanted immunized may but it was helped far from to ensure a fair necessary trial. satisfied,
Since the five Smith conditions had not been the District Court could not have granted to Francis. A district court cannot immunity abuse its discretion when it fails to give that is not in its remedy power to give.
Our should not be holding to foreclose interpreted judicially- cases, granted similar so as the five long Smith conditions are satisfied. of whether Ultimately, question evidence clearly exculpatory an necessary effective defense is a decision present calling upon *9 sound of the district court in a judgment judge to listen to the position witnesses and evaluate the tenor of trial narratives. Our role is not to substitute the we judgment reach after the record might reading for of a district court judgment who saw that record judge actually develop live in courtroom. The law tolerates differences of and our role opinion on is to make sure that those differences within appeal simply stay certain bounds. In this case the boundaries of decision are making acceptable
1358
standard,
of
which
us
defined
the abuse
discretion
compels
accept
by
unless its decision is
of the District Court
judgment
considered
Green,
fanciful,
v.
or
unreasonable.” United States
“arbitrary,
clearly
233,
Starnes,
v.
(3d
2010)
Cir.
United States
617 F.3d
239
(quoting
196, 214,
(3d
2009)).
Cir.
Based on
record
583 F.3d
law . . . . . or . . . as any . either actually constructively possesses 451(d) section code” is defined in Title subject [the Islands] firearm, 2253(a). A as defined V.I. CODEAnn. tit. imprisonment. known, 451(d), “any capable device whatever name by an ammunition means of from gas generated explosive discharging ‘BB’ or any air or or composition, including gas spring any pistols ‘BB’ been or modified as discharge that have guns projectiles adapted 23, 451(d). a firearm.” Code Ann. tit. V.I. brief, Mike that his motion have been granted
In his should argues that the AK-47 was delivered because the trial showed *10 without its bolt and was therefore firing at oral inoperable. tack, Mike shifted instead argument, was that arguing problem there nowas evidence at trial that the showing had ever been weapon test fired and shown to be of a bullet. The capable firing record demonstrates otherwise. When asked at trial whether he had test-fired the weapon, Mitchell Perez postal inspector answered that “we it.” dry-fired (App. 148). He also testified that the AK-47 to him at trial was the presented same one he found inside addressed to Imon Thomas when trial, it was in Puerto Rico. Later in the Senior intercepted Special Agent Rios, Alcohol, Tobacco, Felix from the Bureau of Firearms and testified that he test-fired that same Explosives weapon August 2009 was, and concluded “that the and that it weapon operable, will fire in semiautomatic mode.” 157.) (App. the above
Viewing evidence in the most favorable to the light government, we conclude that a rational could concluded jury the AK-47 was capable ammunition. We discharging thus affirm the District Court’s order Rule denying Mike’s 29 motion.
IV.
As stated
previously,
Islands
Virgin
of a
prohibits possession
firearm “unless
otherwise authorized
law.” V.I. CODE
tit.
Ann.
2253(a).
McKie,
In United States v.
we decided
§
that 470 of Title 23 of
§
Islands code
Virgin
“authorized
essentially
by law” the
possession
a firearm in the
before a
period
person
required
report
receipt
the firearm to the
626, 631,
Islands Police
Commission. 112 F.3d
so,
Mike
that his motion for a
argues
judgment
should have
acquittal
been
or that the
granted,
should have been
instructed on his
affirmative defense under
because the trial testimony
demonstrated
that he was arrested
after
“immediately”
the AK-47. The
obtaining
Government counters that the evidence
at trial
presented
makes it obvious
that Mike had
no intention of
absolutely
reporting
gun, “immediately”
made clear
To
that McKie
or
time thereafter. which
any
responds
*11
to
not
intent to
in order
obtain
that a defendant does
need to prove
report
meant
(“If
to
the
affirmative defense. Id. at 632
the legislature
470 §
defense,
so.”).
not say
to
as
of the
it did
include ‘intent
report’
part
entitled
the
that Mike
not
to a
with
Government
was
agree
We
a
on
defense. In
or
instruction
the affirmative
jury
of
judgment
acquittal
McKie,
element of the
that “‘intent to
was not an
we explained
report’
of
for less than
hours
twenty-four
affirmative defense
firearm possession
470,
it
recent
Id. (emphasis
as
existed under
its
amendment.”
§
before
the 24-hour
added).
period
the
Islands
substituted
Virgin
legislature
When
the
it
“immediately,”
to
in 470 for a time
defined
word
report
period
§
The
the
the
defense. McKie
nature of
affirmative
fundamentally changed
much,
to
that “the
wanted
close
court intimated as
legislature
explaining
hour
Id.
grace
(citing
the
created
the
twenty-four
period.”
loophole
23,
Title
470 of the
on Bill No.
to amend
Section
Virgin
21-0219
Hearing
Code,
29, 1996)).
(V.I.
Sess.
means
Reg.
Aug.
“Immediately”
Islands
at once” or “with no
or
Webster’s
object
space intervening.”
“instantly;
the
(2d ed.1998).
this term
Dictionary
By
Virgin
Unabridged
using
the use
its
of
objective, eliminating
Islands legislature accomplished
in the
of cases by
470 as a viable affirmative defense
vast majority
into
the time
for
nothing.
collapsing
period
reporting
the
a
can
only way
receipt
“immediately” report
person
with that
and
the
a firearm is to
set out
intent
conscientiously
provide
The evidence
trial revealed
when the firearm obtained.
report
canines,
in
to mask its scent from curious
grease
AK-47 was slathered
a
to a
named Imon
was inside
addressed
fictitious
package
person
to
that Mike
juvenile
and
convinced
pick up
him
the fictitious addressee. The evidence was
under the assumed name of
clear
had no
to
“immediately”
receipt
that Mike
intent
report
evidence,
entitled to
Without such
Mike
jury
firearm.
and,
been given,
defense
even if one had
no
instruction on
affirmative
fact could
used it as the basis for an
See
acquittal.
rational trier of
101,
I. The Definition of a Firearm Under VI Law The facts relevant to Mike’s of a “firearm” receipt were not disputed trial: a ballistics testified that the expert gun was mailed to Mike was when operable law enforcement agents it. An intercepted then agent removed the bolt from the gun, it rendering inoperable. was then gun Mike, forwarded to and the bolt was mailed to another separately government official. It was not included in the Mike received. Therefore, firearm, when Mike received the it was no longer “operable.” that because the argues firearm was he when received inoperable it, he cannot be with charged 2253(a)1, V.I.C. violating which criminalizes unauthorized of a possession firearm. A firearm is defined under the Virgin Islands Code as follows:
1 The statute reads as follows: Whoever, (a) law, has, bears, by unless otherwise authorized possesses, transports or either, carries actually constructively, firearm, or openly or any concealed as defined in code, 451(d) unloaded,
Title section of this may loaded or be arrested without a warranty] 2253(a) 14 V.I.C. § known, capable name device whatever means
(d) any “Firearm” from an ammunition means of gas generated explosive discharging or “BB” air or gun any pistols including any gas spring composition, to discharge or modified pro- that have been adapted or “BB” guns as a firearm. jectiles added).
23 V.I.C. 451 (emphasis under must be that a firearm operable two cases to argue Mike refies on of a for illegal a conviction 451(d) possession to sustain 23 V.I.C. § Islands 232 Fed. Virgin Henry, Appx. In firearm.2 Neither persuasive. in the noted 2007) procedural we simply (unpublished), that: history . . . Virgin agreed Division [with Islands] Appellate [of showing had failed to offer evidence that the government
petitioner] (i.e., the scene was operable capable retrieved at that one of guns ammunition). Henry’s the Court reversed Accordingly, of discharging that was not involving to the count conviction with respect to the conviction with respect and affirmed his shown to be operable to be was shown operable.] remaining gun [which determine whether we did not Id. at 173. our reaching holding 451(d). a firearm under 23 V.I.C. in order to be a firearm must be operable “To case, Islands held: prove Court of the District second *13 firearm], must the government of an unlicensed this charge [possession Albert, Islands v. U.S. Dist. Virgin 1980 the firearm was show that operable.” 2253(a) and (citing 14466, 18 1980) 14 V.I.C. (D.Ct. 21 V.I. V.I. LEXIS here where a to the situation case is 451(d)). analogous Neither 23 V.I.C.. § ren- ammunition is subsequently of discharging that was capable firearm firing of (d) capable that a firearm be requires dispute that government The does mailed, counters, however, operable when it was that the firearm was ammunition. It it. The intervention, Mike received operable have been when the firearm would its “but-for” favor, support finds no of relevant case law and a review cites no cases in its government proposition. this dered law enforcement officials and then forwarded to a de- inoperable by fendant to take of it as of criminal possession part investigation.3 “firearm,”
I that the that Mike received agree as but qualifies my of that issue a bit analysis diverges from my colleagues. writes: majority brief,
In his that his motion argues should have been granted because the at trial showed that the AK-47 was delivered without its bolt and was therefore at oral firing inoperable. tack, Mike shifted argument, instead that the arguing was that problem there was no evidence at trial that the had ever been showing weapon test fired and shown to be a bullet. The record dem- capable firing onstrates otherwise. at 18. then conclude that
Maj. Op. My colleagues because there was evi- it, dence that the firearm was when tested a rational operable government could have concluded that the AK-47 was am- capable discharging munition. conclusion, I with the think
Although agree I do not majority’s it is at all relevant that défense counsel “shifted tack” at oral argument. Although Mike’s stated that there was no attorney evidence whether the regarding was ever weapon “dry-fired” it government, he was appears confused about the merely record. Mike’s counsel did not concede the issue in his brief. I think we should take
Accordingly, this to decide opportunity directly that the Islands statute to a applies weapon capable firing mail, when into the but placed is rendered subsequently law inoperable by enforcement before it on agents sending its to a defendant in order way make a controlled the issue delivery. Addressing more will directly eliminate that law any enforcement possibility agents believe may they have to a “live” into the mail in place weapon order to a violation prove of this and similar statutes. 2253(a),
To establish a violation of the government must prove two elements following beyond (1) reasonable doubt: the defendant did Although Mike’s list of cases is not exhaustive. similarly other cases “oper use word *14 “capable discharging able” and interchangeably, ammunition” none of those cases are binding. “either, or bear, constructively, openly actually or carry, transport possess, firearm, 451(d) of section as defined in Title (2) “any concealed” or as 451(d) defines a firearm code, 23 V.I.C. or unloaded.” § this loaded known, of discharging name capable whatever device “any by an from generated explosive means of gas ammunition . .” . . composition a firearm be not 451(d) “operable.” does require be
Instead, “capable that the device only its language requires plain from an explosive means of gas generated ammunition discharging added). 451(d) . . . .” 23 V.I.C. (emphasis composition with the word “operable.” is not synonymous The word “capable” traits “having defines as dictionary “capable” Merriam-Webster’s Online Dictionary, Merriam Webster to or features permitting.” conducive June (last visited http://www.merriam-webster.com/dictionary/capable as (“OED”) defines Dictionary “capable” The Oxford English Definition, Oxford English for.” room or Capable “having capacity (last Version), (Online http://www.oed.com/view/Entry/27354 Dictionary 21, 2011). visited June to be Operable as “able operated.”
The OED defines “operable” Version), Definition, (Online English Dictionary Oxford 21, 2011). (last June visited http://www.oed.com/view/Entry/131732 ammunition, but not Thus, be of discharging a firearm may “capable” ammunition, for” or the to fire “capacity if it has the potential “operable,” ammunition, time. at the relevant but cannot do so discharging ammunition, as Here, discharging certainly capable the AK-47 was that Mike the AK-47 established. Although evidence government’s — n — “features the firearm still had the bolt lacked one received part barrel, ammunition, functioning including discharge it to permitting” buttstock, these were hammer, All of and magazine. grip trigger, piston, a bolt missing may a firearm that is order. working Although in perfect has the it nevertheless bolt is missing replaced, until the be operable ammunition. for” discharging “capacity would firearm to be “operable” such a
More requiring importantly, states 451(d), which explicitly of 23 V.I.C. language violate plain a firearm. An to be considered not be loaded in order that a need ammunition. it cannot discharge since unloaded firearm is “inoperable,” a firearm a device to be considered 451(d)’s language, Section permitting unloaded, concern an overwhelming legislative reflects even if it is *15 the statute not be limited to firearms that be could fired at a moment. given Rather, the concerned legislature clearly about potential firing ammunition and crafted the definition of “firearm” accordingly. in statute this manner does not broaden 23 V.I.C.
Interpreting 451(d) to include that should not be considered weapons fairly firearms. Neither a nor even bolt without the rest of the scope, missing weapon, would constitute a under 451(d), firearm because such and parts accessories do not to fire ammunition. capacity They may facilitate a but are firing harm weapon, they capable inflicting unless affixed to actual firearm or into it. integrated so is what Doing “firearm;” allows to function as a such or weapon attaching parts accessories or them into the integrating results in an weapon altogether different “device” than such items alone.4 standing sum, I believe that the need government that the device only prove Mike received was ammunition.” in “capable discharging order to a 2253(a). violation of 14 V.I.C. The prove were testimony agents able to fire” the that Mike successfully “dry gun received was sufficient to that here. the bolt rendered the prove Removing AK-47 but inoperable, was still ammunition. weapon “capable” firing It was no less of that when Mike received it capable than if it had arrived unloaded but intact. fully
II. Use Immunity Mike also the district court’s refusal appeals use grant immunity Francis, Fenyang who told his purportedly that Mike did not attorney know there was a in the he received. The finds majority that the district court did not abuse its discretion because Francis’s is not testimony “clearly I exculpatory.” disagree.
For to be it “clearly cannot be “undercut exculpatory,” ... statement^],” Perez, 318, 350 inconsistent United States prior 280 F.3d 4 Additionally, urged more restrictive definition of “firearm” yields illogical clearly results as evidenced here. This statute is illegal guns aimed at the flow of and the carnage they and devastation interpretation cause. Mike’s of the required statute would have law enforcement officers who knew that a package contained an assault weapon place fully functioning weapon back into the stream of successfully commerce in order to complete lost, investigation an while hoping that it would not be wrong party, delivered to the or fall into the along way. hands of minors or criminals It any legislature is inconceivable that intentionally require enacting would a such result in this kind of statute. 2002), or to make (3d. credibility Cir otherwise require determination, F.3d United States v. the district court’s affirming relies on Thomas heavily majority There, found that the district court properly
denial we immunity. of use to call to denied witnesses whom Thomas wanted use two dealer, had that another James car Stager, a theory person, present *16 car. two other offered testimony in his least witnesses planted drugs “[A]t in his car.” at that Thomas’ that Id. Stager planted drugs undercut theory 365. Barr, witness was “Thomas’ Heather girlfriend, first [who] that were in already drugs . . told her that he knew
testified that. Thomas remove from his car in his car that Thomas to the drugs attempted [and] in order to the lot and fled to State avert College police impoundment the at A second drugs.” when the found Id. 365-66. being police arrested had the undermined Thomas’s that argument Stager witness also car he testified in Thomas’s because to opportunity plant drugs of theory not claimed it was in his Thomas’s car was where Thomas case. to immunized through
Since the
Thomas wanted
testimony
produce
case, the
of the
jury
in direct conflict with Thomas’s theory
witnesses was
whom Thomas
would
had to decide whether to believe
witnesses
immunized, or
non-immunized
witnesses.
wanted
two
prosecutorial
in
would have
order to
determination
been
credibility
required
“Because
credible,
Thomas
testimony
determine which
were more
parties
[the
as
been ‘clearly
required
to
would not have
sought
exculpatory,’
admit]
Smith,
Thomas,
615 F.2d at
under
As its required prove government part this, the he received. To prove knew that a was evidence, government two presented circumstantial pieces which the cites as majority undermining clearly nature of Francis’s exculpatory First, that, potential testimony. cites the fact after majority were they arrested, haircut,” is, Mike told Hunte that he all would “a get go detention. juvenile that only establishes that Mike knew some contraband type was in the not that he knew it contained package, gun. he could have theory, believed he was receiving shipment Therefore, of some drugs other kind of contraband. Francis’s testimony could have been without accepted to chose requiring jury between two statements if the competing believed Francis.
Next, the majority points multiple calls between Francis telephone and Mike that the confirming two communicated numerous times in the weeks surrounding firearm and often in the shipment minutes before and after the of the firearm and the purchase of the firearm. shipment However, we do more, not know the content of these calls. Without I do not believe can we assume about the enough substance of those conversations justify denying use immunity. it is Although very easy to assume that Francis told Mike about the of a firearm shipment during *17 conversations, least one of those that should be an that is left for argument the to resolve jury after all the hearing relevant evidence. In theory, Francis may been merely the confirming of contraband or the receipt of the timing of the mailing those package during conversations. We have found that the “clearly standard exculpatory”, for a use immunity is “similar analysis analysis applies [to the] [that] [an] Perez, alleged Brady 318, violation.” United States v. (3d 280 F.3d Perez, Cir. 2002). In we explained:
Under Brady[,] ... suppression by prosecution evidence favorable to an accused warrants a new trial where “the evidence is material either to guilt or to of the punishment, faith irrespective good or bad faith of the Evidence is prosecution.” material if there is a rea- that, disclosed, sonable had it been probability the result of the pro- would ceeding have been different. (citations
Id. at omitted). 348-49 It is hard to evidence imagine with a greater than exculpatory potential who person that shipped package saying did not it know course, contained a Of gun. would jury have been free to disregard beyond that the other evidence established if it testimony thought that or if it knew he was receiving gun, doubt that Mike reasonable that we said in Smith lacking credibility. otherwise found Francis is found to relate if the testimony... will be denied “[i]mmunity proffered Ammar, witnesses,” we of the credibility government’s only when the proffered is immunity improper remarked judicial Smith, at 13 (citing “at best Maj. Op. is testimony speculative!.]?” 238, Ammar, (3d 251 n.8 Cir. States v. 714 F.2d F.2d at and United 1983)) removed). (emphasis not believe our can be interpreted preclude I do precedent have been Francis because his would merely credibility
use
would
a broad
of use immunity
in issue had he testified. Such
prohibition
even when a witness’s
be tantamount to
tool
eliminating
altogether
of due
to satisfy
requirements
process5
testimony
required
testifies.
an issue
witness
any
because
whenever
credibility
always
cases,
determine
all
are to
they
“Jurors are instructed ...
in almost
of an
. . . even in the absence
of all witnesses who testify
credibility
v. Universal
to witness
United States
challenge
credibility.”
affirmative
Inc.,
banc). The
200.0)(en
(PA),
205 F.3d
Rehab. Servs.
attacked
been aggressively
mere fact that Francis’
would have
credibility
due
to undermine the
process
should not be sufficient
prosecutor
a defense to a
that a defendant is able to
interests of ensuring
present
Here,
Mike of the only
the district court’s ruling
criminal charge.
deprived
of the
of the contents
could
about Mike’s
testify
knowledge
witness who
he received.
made conviction more
would have
The fact that such
defendant access
a reason to
deny
if
is not
difficult accepted
that were
of the accused
witnesses. Each of
protections
to favorable
of the
makes conviction
onto the Bill of Rights
so carefully engrafted
*18
narrow the
a reason to so
That
cannot be
surely
more difficult.
guilty
to fact
are denied access
that defendants
immunity
doctrine of use
a
the
properly
rests
system
assumption
witnesses. The jury
upon
and the arguments
the evidence
through
be able to sort
instructed
will
5
1038,
(1973)
284, 294,
of counsel and determine if the has case a government beyond its proven reasonable doubt.
Judicial use exists to ensure due process. Although jury witness, will be free to the of a defense always disregard courts should not function of a usurp jury’s by deciding credibility witness.
III.Affirmative Defense Under 23 V.l.C. 470§ before I Finally, think it to state a concern and concluding, helpful observation about the affirmative defense created 23 V.l.C. 470. As notes, McKie, 626, 631, in United States v. 112 F.3d majority 36 V.I. 1997), we held that there is an affirmative defense to a firearm under Islands law because a possessing Virgin had person hours to register before it becomes to it. weapon illegal No possess doubt because of Islands problems proof, Virgin legislature amended 470 to “immediate” require registration upon entering illustrates, Islands. as this case Virgin amendment creates more than it solves. It will often be problems to rebut a claim impossible of an intent to a firearm unless a defendant is immediately register given a sufficient to it and fails to take to do so opportunity register any steps Islands. upon entering to theory, only way such defense in the case disprove ordinary
would be to establish a government registration desk adjacent the exit of the with all who airport lobby signs instructing arrived that had to to the they go directly desk and registration register any firearms. with this statute has shown that Experience have a police tendency arrest a with firearms as person soon as he/she leaves the or takes airport of them rather than wait until possession circumstances are sufficient to refute that the intended any argument the firearm. recipient register understandable, that is
Although the amended law real perhaps creates when an arrest as problems occurs soon as takes recipient delivery or leaves the weapon because there is no airport building opportunity the firearm. I immediately register agree this does not complication assist Mike because all of the circumstances here the conclusion supports that he never intended to he received in the register first place. Moreover, Mike’s to seek shelter under 470 is undermined attempt his to also that he did not attempt argue know what was in the he received. I therefore join my Mike’s defense here. colleagues rejecting *19 to consider the wish However, -may legislature Islands so that create in future cases statute could the amendment to this problems of an rebut any suggestion time to have to wait sufficient will not police an arrest for before making register weapon to immediately intent 2253(a).6 violation
Conclusion conclusion, that Mike evidence proves I concur sufficient the court should I believe that 2253(a). violated 14 V.I.C. § Mike to allowed thereby to Francis use granted that defense testimony. present concerning the amendment to Section joins concerns and observations Judge Smith in these
470.