                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-24-2001

USA v. Lopez
Precedential or Non-Precedential:

Docket 00-1812




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Recommended Citation
"USA v. Lopez" (2001). 2001 Decisions. Paper 246.
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Filed October 24, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 00-1812, 00-1848, 00-1888, 00-1938 AND 00-1992

UNITED STATES OF AMERICA

v.

LOUIS LOPEZ, JR.,
       Appellant No. 00-1812

UNITED STATES OF AMERICA

v.

HERNAN NAVARRO,
       Appellant Nos. 00-1848 and 00-1992

UNITED STATES OF AMERICA

v.

JUAN CRISPIN,
       Appellant No. 00-1888

UNITED STATES OF AMERICA

v.

DELROY JOSIAH,
       Appellant No. 00-1938

On Appeal from the District Court of the Virgin Islands
(D.C. Criminal No. 99-cr-00016-1,2,3,4)
District Judge: Honorable Raymond L. Finch, Chief Judge
Argued May 14, 2001

Before: McKEE, RENDELL and BARRY, Circuit Judges ,

(Filed: October 24, 2001)

       Warren B. Cole, Esq. [ARGUED]
       Hunter, Colianni, Cole & Bennett
       1138 King Street, Suite 301
       Christiansted, St. Croix
       USVI 00820
        Counsel for Appellant
       Louis Lopez, Jr.

       Patricia Schrader-Cooke, Esq.
        [ARGUED]
       Office of Federal Public Defender
       P.O. Box 3450
       Christiansted, Saint Croix
       USVI 00822
        Counsel for Appellant
       Hernan Navarro

       Jean-Robert Alfred, Esq. [ARGUED]
       27 & 28 King Cross Street
       Christiansted, St. Croix
       USVI 00820
        Counsel for Appellant
       Juan Crispin

       Wilfredo A. Geigel, Esq. [ARGUED]
       Law Offices of Wilfredo A. Geigel
       P.O. Box 25749, Gallows Bay
       Christiansted, St. Croix
       USVI 00824
        Counsel for Appellant
       Delroy Josiah

                               2
       Bruce Z. Marshack, Esq. [ARGUED]
       Office of United States Attorney
       1108 King Street, Suite 201
       Christiansted, St. Croix
       USVI 00820
        Counsel for Appellee
       United States of America

OPINION OF THE COURT

RENDELL, Circuit Judge.

Beginning in the late hours of September 22, 1998, and
ending early the following morning, four men invaded three
homes in St. Croix, Virgin Islands. By the time the four had
completed their crime spree, Orlando Orta was dead and
Concepcion Garcia Orta, James Sorhaindo, Reynoldson
Ferrol, Jacklyn Tredway, and Thomas Barrows had all been
assaulted. After an investigation, the police arrested four
men: Juan Crispin, Delroy Josiah, Louis Lopez, Jr., and
Hernan Navarro. Their trial and conviction form the basis
for this appeal.

Crispin, Josiah, Lopez, and Navarro ("the defendants")
raise a variety of issues. The most significant of these
affects all four defendants and presents an issue of first
impression: does Pinkerton liability1 apply in the Virgin
Islands? The defendants also challenge various evidentiary
rulings and the sufficiency of the evidence of carjacking and
gun possession. In addition, the defendants argue that the
District Court erred by not conducting voir dire of a juror
to determine bias, and by not granting a hearing in
response to a charge of prosecutorial misconduct. 2 On the
_________________________________________________________________

1. As will be discussed in more detail later in the opinion, "Pinkerton
liability" is a theory of vicarious criminal liability set forth in
Pinkerton v.
United States, 328 U.S. 640 (1946).

2. Defendants make two additional challenges, which we believe merit
very little discussion. First, they argue that the District Court had no
jurisdiction because the crimes charged were not"of the same or similar
character or part of, or based on, the same act or transaction or two or

                               3
issue involving Pinkerton liability, we find that the doctrine
does exist in the Virgin Islands. With respect to this issue,
and all other issues raised, we will affirm the rulings of the
District Court.

I. FACTS

The trial involved defendants' conduct at three different
residential locations in St. Croix:

A. 338 Estate Mount Pleasant

On the evening of September 22, 1998, a group of men
invaded 338 Estate Mount Pleasant, the home of James
Sorhaindo. Sorhaindo's friend, Reynoldson Ferrol, was also
in the house at the time. The two were beaten and robbed
by three masked assailants. Sorhaindo saw the face of one
assailant, and, at trial, he testified that he thought that
Navarro was his attacker. Sorhaindo also identified two
watches and a chain that the police found outside the
window of the third crime scene.

There were two eyewitnesses associated with this crime,
Eugenio Guadalupe and Maha Joseph. Guadalupe testified
that she saw Josiah, Crispin and Lopez from her residence,
Building Five of the Paradise Project, which is in the
vicinity of 338 Estate Mount Pleasant, around the time the
crime occurred. Joseph testified that he lived in Building
Four of the Paradise Project, and that he had been
questioned regarding what he had seen around that same
time. He stated that he had gone to the police station and
_________________________________________________________________

more acts or transactions connected together or constituting part of a
common scheme or plan," which is required by statute in order to give
the District Court concurrent jurisdiction over the territorial crimes. 48
U.S.C. S 1612. Based on the ample evidence demonstrating the
interconnected nature of the crimes, we find this claim to be without
merit. Second, the defendants object to the use of identification
evidence.
We note that the defendants do not challenge anything specific about the
identifications in this case, but instead focus on the lack of reliability
of
identifications in general. Thus, in order to find in their favor on this
issue, we would have to find that eyewitness identifications are
inherently unreliable and cannot be admissible in court. We decline to
do so.

                               4
told them what he had seen. However, he denied having
identified the defendants, instead expressing his"love" to
the defendants in the courtroom and insisting that he had
been forced to testify. A police officer, Lieutenant Secundino
Roman Cruz, then took the stand to rebut Joseph's
testimony, stating that Joseph had come to the police
station on September 23, 1998, the day after the crime,
and identified Crispin, Josiah and Lopez as having been in
the vicinity of 338 Estate Mount Pleasant around the time
of the crime.

B. 56 Estate Enfield Green

In the early morning hours on September 23, 1998,
Jackie Tredway and Thomas Barrows were outside
Tredway's residence, 56 Estate Enfield Green, when they
were attacked, taken into the house, beaten with a gun,
and kicked repeatedly. Their assailants told them that if
they did not hand over their money, they would be killed.
The intruders also insisted that Tredway give them the keys
to her van.

After the attack, Tredway looked at photo spreads and
picked out two men who she said bore a resemblance to
one of her assailants. Neither of those pictures depicted any
of the defendants. However, in court, she did identify one
assailant, Crispin, whose face she had seen under a
flashlight.3 She also testified that she had seen Crispin in
a store and recognized him then as having been one of the
intruders. She added that when she saw the picture of
Crispin in the paper, she knew he was the man who had
attacked her.

Tredway also identified items and photos of items that
the police had recovered, including her car keys. Some of
these items were found in her van, which had been
abandoned next to one of the crime scenes, while others
were recovered either at the site of the third crime scene or
at Lopez' house.
_________________________________________________________________

3. Tredway noted that because the incident occurred shortly after
Hurricane Georges, her home was without power.

                               5
C. 66 Estate Enfield Green

The most serious crimes occurred at the last location, 66
Estate Enfield Green, the home of Concepcion Garcia Orta
and her husband Orlando Orta. The couple was asleep in
bed. The assailants entered the home and shot at the
couple. Mrs. Orta's hand was mutilated by one gunshot;
another killed her husband. The intruders stole cash, a
chain and a watch.

At trial, Mrs. Orta identified the watch that had been
stolen, which the police discovered during their search of
Josiah's residence. The police recovered many items at the
Orta home that were taken from the two previous crime
scenes, including a camera and minicassette player that
Tredway later identified as hers. The police also found a
knife outside the Ortas' bedroom window, with a fingerprint
matching Navarro's. Additionally, a shoe print was lifted
matching Josiah's boot print, and a slug found in the door
was determined to have come from Crispin's gun. The
doctor who treated Mrs. Orta in the emergency room also
testified regarding her injuries, and photos of her hand
were introduced into evidence over a defense objection that
they were prejudicial and should not be admitted based on
Fed. R. Evid. 403.

D. Searches of Defendants' Homes

In a series of searches of the defendants' homes, the
police uncovered a variety of incriminating items. In the
home of Lopez, the police found a bag with Sorhaindo's
name on it containing two VCRs, a striped bag with
Tredway's van keys in it, ammunition similar to that found
at the Orta home, slugs matching those found both at the
Orta home and Josiah's residence,4 and clothing matching
the descriptions given by victims. In Josiah's residence,
police discovered boots with a print matching that found at
the Orta home, a watch later identified as Mr. Orta's, and
slugs matching both those found at the Orta home and at
Lopez' home.5 And in the residence that Navarro shared
_________________________________________________________________

4. At trial, Gregory Bennerson, a ballistics expert, testified that this
type
of slug was very unusual -- he had only seen that type of ammunition
six to eight times during his sixteen year career.
5. Josiah had a running commentary with police during the search, and
said, "You should have come yesterday, everything was here yesterday.
The big one was here yesterday."

                               6
with other family members, the police found a camouflage
jacket with a gun in the pocket and camouflage pants and
a t-shirt, clothing that matched the victims' descriptions of
the assailants' clothing.6

E. Crispin's Arrest

On October 20, 1998, police officers were responding to
a complaint near Paradise Project when they spotted a
Nissan driven by Crispin. Once the officers were in pursuit,
the Nissan turned a corner and the police saw a person flee
the vehicle. After unsuccessfully chasing the individual,
they saw the car still had someone in it. The police
discovered Crispin in the driver's seat, sitting with the seat
reclined back in an apparent attempt to hide. Crispin did
get out of the car after the police instructed him to do so,
but he aroused further suspicion by throwing his keys
inside the locked car as he was closing the door. The police
officers then spotted what appeared to be marijuana on the
front seat and called for back-up. Crispin told Sergeant
Pemberton, one of the responding officers, that there was a
gun under the seat. A forensics officer came to the scene
and recovered a weapon and ammunition from under the
driver's seat. At trial, ballistics expert Gregory Bennerson
testified that a slug from the Orta home had been fired
from this same gun, and also that the same gun had
expelled a cartridge onto the porch under the window of
that home.

II. PROCEDURAL HISTORY

On April 6, 1999, defendants Crispin, Josiah, Lopez and
Navarro were charged in a twenty-two count indictment. At
their consolidated trial, victims Ferrol, Sorhaindo, Tredway,
Barrows and Orta were among those witnesses that
testified on behalf of the government. Eyewitnesses
Guadalupe and Joseph took the stand, as did Lieutenant
Cruz, who testified regarding what Joseph had originally
told the police. Another police officer, Jonathan Hitesman,
testified regarding the collection of evidence at the Orta
_________________________________________________________________

6. There is no information in the record regarding a search of Crispin's
home.

                               7
home, where items from Tredway's home, a knife with
Navarro's fingerprint, a slug from Crispin's gun, and a shoe
print matching Josiah's boot were found. In addition, the
government presented four expert witnesses: Sandra
Wiersma, who identified the boot print found outside 66
Enfield Green as matching Josiah's; Gregory Bennerson,
who testified as a ballistics expert and determined that
slugs found at the Orta home came from Crispin's gun, and
were the same types of unusual slugs found at Lopez'
house; and Kenneth Getz and John Massey, who both
stated that the fingerprint discovered at the Orta home
matched Navarro's. The defendants did not take the stand,
but did present witnesses on their behalf.

The defendants were found guilty by a jury of murder,
burglary, robbery, possession of a firearm during the
commission of crimes of violence, assault with the intent to
commit murder and robbery, and mayhem with intent to
commit a felony, all of which were charged under Virgin
Islands statutes. Navarro was found guilty of threatening
witnesses Sorhaindo and Ferrol, and Crispin alone was
convicted of possession of a firearm pursuant to 14 V.I.C.
S 2253(a). All defendants were found guilty of carjacking
and of possessing a firearm in relation to the commission of
carjacking, both of which are federal crimes.

The defendants were sentenced to life without parole on
the murder charge and additional years on the other
counts. They filed motions for new trials, which were
denied. Timely Notices of Appeals were filed. These matters
were consolidated on January 26, 2001.

III. DISCUSSION

The District Court had jurisdiction under 48 U.S.C.
S 1612, commonly known as the Organic Act:

       [Along with jurisidiction over federal criminal offenses,
       the District Court of the Virgin Islands has] concurrent
       jurisdiction with the local courts of the Virgin Islands
       over those offenses against the criminal laws of the
       Virgin Islands which are of the same or similar
       character or part of, or based on, the same act or
       transaction or two or more acts or transactions

                               8
       connected together or constituting part of a common
       scheme or plan . . . .

Id. We have appellate jurisdiction under 28 U.S.C. S 1291.

A. Pinkerton Liability

In Pinkerton v. United States, 328 U.S. 640 (1946), the
Supreme Court held that the criminal act of one
conspirator in furtherance of the conspiracy is"attributable
to the other[ ] [conspirators] for the purpose of holding them
responsible for the substantive offense." Id. at 647. This
aspect of Pinkerton, commonly referred to as the Pinkerton
theory of liability or the Pinkerton doctrine, permits the
government to prove the guilt of one defendant through the
acts of another committed within the scope of and in
furtherance of a conspiracy of which the defendant was a
member, provided the acts are reasonably foreseeable as a
necessary or natural consequence of the conspiracy. Id. at
647-48.

At trial, the government asked that the jury be given a
Pinkerton instruction. The District Court granted the
government's request, finding that Pinkerton's "reasoning
applying to federal statutes could also apply to local
statutes." The Court gave the following instruction to the
jury:

       Counts I through XVII and Counts XX and XXI charge
       the defendants as principal, aiders and abettors and
       under a theory of criminal responsibility call[ed]
       Pinkerton Liability. In order to sustain its burden of
       proof for Pinkerton Liability, the Government must
       prove the three essential elements beyond a reasonable
       doubt:

       1. That a conspiracy existed in that there was an
       agreement between individuals to align
       themselves with others in the criminal venture;

       2. That having so aligned themselves together, one
       or more of the others of them acted to commit
       the substantive offense; and

       3. That the substantive offense was committed in
       furtherance of the criminal venture in which the
       defendant had aligned himself with others.

                                9
       It is not required that a conspiracy be charged in the
       indictment for Pinkerton liability to apply, as long as
       the evidence at trial establishes beyond a reasonable
       doubt that a conspiracy existed and that the
       substantive offense was committed in furtherance of
       the conspiracy. . . .

Defendants make two separate arguments that the jury
should not have been instructed that Pinkerton liability
could apply to territorial crimes. First, they argue that
when conspiracy has not been charged, there can be no
Pinkerton liability. Though this is our first opportunity to
address this issue, we have little difficulty following our
sister circuit courts of appeals in determining that a
conspiracy need not be charged in order for Pinkerton's
doctrine to apply. E.g., United States v. Chairez, 33 F.3d
823, 827 (7th Cir. 1994) ("[T]he absence of a conspiracy
charge does not preclude the district court from applying a
Pinkerton theory . . . if the evidence so suggests."); Thomas
v. United States, 748 A.2d 931, 934 (D.C. Cir. 2000)
("[E]very federal court that has decided[whether Pinkerton
can be charged when there is no conspiracy charge in the
indictment] has held that such an instruction is proper.").

The more significant challenge leveled by defendants is
their contention that the Pinkerton doctrine does not apply
in trials involving Virgin Islands law. In examining the case
law, Pinkerton liability has only been mentioned in cases in
the Virgin Islands involving federal offenses. See, e.g.,
United States v. Koenig, 53 F. Supp. 2d 803, 808 (D.V.I.
1999). Here, the jury was given a Pinkerton instruction for
all crimes, not just the federal offenses.

The defendants argue that the Virgin Islands aiding and
abetting statute, 14 V.I.C. S 11,7 sets forth the only ways a
_________________________________________________________________

7. The aiding and abetting statute, 14 V.I.C.S 11, provides:

       (a) Whoever commits a crime or offense or aids, abets, counsels,
       commands, induces or procures its commission, is punishable as a
       principal.

       (b) Whoever willfully causes an act to be done which if directly
       performed by him or another person would be a crime or offense, is
       punishable as a principal.

Id.

                               10
defendant can be held criminally responsible for the acts of
another.8 The government, however, contends that
"[n]othing in the Virgin Islands Code prohibits the
application of Pinkerton to territorial crimes." Gov't Br. at
41. Our review of Virgin Islands case law reveals that
Pinkerton has never been explicitly applied or rejected. We
therefore are confronted with an issue of first impression.

Because we find that there is no case law governing this
precise issue, we look to 1 V.I.C. S 4, which provides:

       The rules of the common law, as expressed in the
       restatements of the law approved by the American Law
       Institute, and to the extent not so expressed, as
       generally understood and applied in the United States,
       shall be the rules of decision in the courts of the Virgin
       Islands in cases to which they apply, in the absence of
       local laws to the contrary.

Id. We are dealing with criminal law, so there is no
Restatement to consult. We thus must consider whether
Pinkerton is a "rule[ ] of the common law, . . . as generally
understood and applied in the United States . . . ." Id.
Without a doubt, Pinkerton is part of federal common law.
E.g., United States v. Thirion, 813 F.2d 146, 151 (8th Cir.
1987) ("[C]oconspirator liability does not have its genesis in
this statute, but rather in the common law. See Pinkerton,
328 U.S. at 647."). In addition, it is the rule in the majority
of jurisdictions. See, e.g., State v. Walton, 630 A.2d 990,
997 (Conn. 1993) ("Pinkerton liability is now a recognized
part of federal criminal conspiracy jurisprudence.").
Further, we can find no local law to the contrary. The
aiding and abetting statute makes punishable certain acts
one commits as a principal but does not speak to, or rule
out, co-conspirator punishment for an offense. Also, we do
_________________________________________________________________

8. The defendants also rely on Gov't of the Virgin Islands v. Aquino, 378
F.2d 540 (3d Cir. 1967), to support their argument concerning Pinkerton
liability. However, this case is inapposite. Aquino did not address co-
conspirator liability at all, making no mention of the application of
Pinkerton liability in the Virgin Islands. Rather, it merely clarified
that
the effect of the Virgin Islands aiding and abetting statute, 14 V.I.C. S
11,
was to abolish common law distinctions between accessories before and
after the fact and principals in the first and second degree. Id. at 552-
53.

                               11
not view the fact that the specific criminal offenses at issue
punish the commission of the offense, without including
accomplice or other liability, as reflecting a local law to the
contrary.

Hence, we conclude that the Pinkerton doctrine does
apply in the Virgin Islands.9 Thus, we find that the District
Court did not err in instructing the jury that they could
convict the defendants under the Pinkerton doctrine.

B. Rule 403 Challenge to the Admissibility of
       Photographs

The defendants argue that the District Court erred in
admitting photographs of Mrs. Orta's mutilated hand,
instead of relying simply on her testimony and that of the
doctor who treated her in the emergency room. They argue
that the admission violated Fed. R. Evid. 40310 for two
reasons. First, the defendants contend that insofar as there
was other evidence of the injuries, the probative value was
low. Second, they assert that given the photographs'
graphic nature, the prejudicial value was high. The
government responds that because the photographs related
to the charge of mayhem, which requires a showing that
Mrs. Orta was "seriously disfigure[d] . . . by . . . mutilation"
or that a body part was destroyed or disabled, the evidence
was highly probative and, moreover, not unfairly
prejudicial.

We have previously held that "[a] district court has broad
discretion to determine the admissibility of relevant
evidence in response to an objection under Rule 403."
United States v. Balter, 91 F.3d 427, 442 (3d Cir. 1996). We
have also stated: "If judicial restraint is ever desirable, it is
when a Rule 403 analysis of a trial court is reviewed by an
_________________________________________________________________

9. Of course, if the legislature of the Virgin Islands does not believe
that
Pinkerton should apply to crimes charged under Virgin Islands statutes,
it can simply enact a "local rule to the contrary."

10. Rule 403 states: "Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence."

                               12
appellate tribunal." United States v. Long , 574 F.2d 761,
767 (3d Cir. 1978). We review for abuse of discretion.
United States v. Driggs, 823 F.2d 52, 54 (3d Cir. 1987).

We agree with the District Court that the photographs
had value insofar as they were the best evidence of
mutilation available, and we see nothing in the record to
indicate that they were unfairly prejudicial. Therefore, we
find that the District Court did not abuse its discretion. See
In re Air Crash Disaster Near New Orleans, 767 F.2d 1151,
1154 (5th Cir. 1985) (finding no abuse of discretion in
admitting photographs of bodies of plane crash victims with
third degree burns where conscious pain and suffering at
issue); United States v. Brady, 579 F.2d 1121, 1129 (9th
Cir. 1978) (noting that photos from crime scene only
inadmissible when picture of such "gruesome and
horrifying nature" that danger of inflaming jury outweighed
its probative value).

C. Rule 16 Challenge: Failure to Supply Written
       Summary of Expert Testimony

The government called FBI fingerprint specialist Kenneth
Getz to offer expert testimony that the fingerprint found at
the Orta home was Navarro's. The defense objected to his
testimony at trial on the ground that it did not receive the
required information in advance pursuant to Fed. R. Crim.
Pro. 16(a)(1)(E), which states:

       At the defendant's request, the government shall
       disclose to the defendant a written summary of
       testimony that the government intends to use under
       Rules 702, 703, or 705 of the Federal Rules of
       Evidence during its case-in-chief at trial. . . . The
       summary provided under this subdivision shall
       describe the witnesses' opinions, the bases and the
       reasons for those opinions, and the witnesses'
       qualifications.

Id. The District Court agreed with the government's
argument that the defense's failure to raise the issue earlier
and "trigger the resources of the court . . .[did] not sit well
with [it]," and, because the defense did not fulfill its
"obligation to ask for a Daubert hearing," it would admit the
testimony.

                                13
Navarro asserts that by only producing in advance of trial
a two-page Report of Examination regarding the expert's
examination of the fingerprint found on the knife, without
information regarding "the bases and the reasons" for the
expert's opinion, and by not proffering the expert's
qualifications until trial, the government violated Rule
16(1)(a)(E).

The government does not dispute that inadvertently it did
not provide its expert witness's qualifications until trial.
However, the government notes that the witness's resume
was immediately produced when the government became
aware, via a defense motion to exclude expert testimony,
that it had not been provided.

With respect to Navarro's contention that the government
failed to list the bases and the reasons for the expert's
opinion, it argues that due to the content of the expert
testimony, that is, the determination of "whether the
fingerprints found on a knife at the murder scene matched
or didn't match [Navarro's] known prints," Gov't Br. at 70,
the information provided was sufficient. The government
contends that, in any event, the defense did not raise this
issue of discovery noncompliance until trial in a strategic
effort to exclude the testimony rather than allow the
government time to produce the missing information. And
more important, the government maintains that Navarro
cannot demonstrate any prejudice that resulted.

We will assume, without deciding, that by not providing
the expert witness's resume to the defense until trial, and
only providing the defense with a brief summary of the
expert report, the government violated the requirements of
Rule 16(a). Accordingly, we must look to Rule 16(d)(2),
which addresses the situation in which a party fails to
comply with a discovery request. It states only that, upon
the court becoming aware of the failure, it "may order such
party to permit the discovery or inspection, grant a
continuance, or prohibit the party from introducing
evidence not disclosed, or it may enter such other order as
it deems just under the circumstances." Id. In other words,
on its face, the Rule does not require a district court to do
anything -- Rule 16 merely states that the court"may" take
such actions.

                                14
In determining whether we should second guess the
District Court's view of what was "just," we will consider
any harm caused by the government's violation. In United
States v. Miller, 199 F.3d 416 (7th Cir. 1999), the Court of
Appeals for the Seventh Circuit held that, where the
government failed to properly disclose expert witness
testimony, a new trial was not warranted unless"the
remedy offered by the district court was inadequate to
provide [the defendant] with a fair trial." Id. at 420. In
addition, the Court of Appeals for the Ninth Circuit held
that the government's failure to comply with Rule 16 only
compelled reversal where the appellant "demonstrate[d]
prejudice to substantial rights [where] [t]he prejudice that
must be shown to justify reversal for a discovery violation
is a likelihood that the verdict would have been different
had the government complied with the discovery rules, not
had the evidence [been] suppressed." United States v.
Mendoza, 244 F.3d 1037, 1047 (9th Cir. 2001). In
accordance with these holdings, we require a showing that
the District Court's actions resulted in prejudice to the
defendant.

We need not specify the parameters of this inquiry
because, here, Navarro makes no allegation of prejudice. He
does not attempt to explain how the government's failure
resulted in a denial of his right to a fair trial. Due to the
absence of a showing of prejudice caused by the
government's failure to comply with 16(a)(1)(E), and given
the discretion explicitly provided to the District Court by
Rule 16's language, we decline to grant the defendant the
extreme remedy of a new trial.

D. Admission of Testimony Pursuant to Fed. R. Evid.
       801(d)(1)(C)

Maha Joseph, a government witness, was subpoenaed to
testify that he had told the police, on the day after the
crime, that he had seen three of the defendants in the area
of the crime during the time the homes were invaded. On
the day he was called to testify, Joseph failed to appear in
court. Once he was apprehended by the United States
Marshal and brought to court to testify, he denied making
any such statement to the police and was declared a hostile
witness. The government then sought to impeach him

                               15
about the statement he had made to the police regarding
the defendants.

After Joseph had testified, the government called
Lieutenant Cruz to the stand and questioned him about
Joseph's prior statement. The defense objected to the
admission of his testimony on the grounds that it was
hearsay. The District Court permitted Cruz to testify,
finding that as long as the testimony was limited to the
statement regarding the identification, it fell under Fed. R.
Evid. 801(d)(1)(C). Cruz testified that Joseph had reported
to the police that he had seen the defendants on the night
of the crime in the vicinity of the crime scene. We review
the admission of his testimony for abuse of discretion.11
United States v. Brink, 39 F.3d 419, 425 (3d Cir. 1994).

Fed. R. Evid. 801(d)(1)(C) provides: "A statement is not
hearsay if . . . the declarant testifies at the trial or hearing
and is subject to cross-examination concerning the
statement, and the statement is . . . one of identification
made after perceiving the person." The defendants argue
that the Rule does not contemplate identifications of this
nature but, rather, pertains to the selection of defendants
from lineups or photo spreads. They also contend that
testimony regarding when and where Joseph saw the
defendants did not qualify as an identification. The
_________________________________________________________________

11. Defendants also assert that the District Court erred by not
conducting a hearing in response to their claim that the government
committed prosecutorial misconduct by calling Maha Joseph to the
stand knowing that he would give unfavorable testimony. They argue
that the government intentionally put Joseph on the stand in order to
make Detective Cruz' hearsay statements admissible through
impeachment, which constituted misconduct because impeachment
"may not be permitted where employed as a mere subterfuge to get
before the jury evidence not otherwise admissible." United States v.
Webster, 734 F.2d 1191, 1192 (7th Cir. 1984). The District Court
concluded that because Joseph "had not previously testified in any
manner inconsistent with his statement" and there was no "indication he
had told the Government he intended to recant his prior statement," any
conclusion by the government regarding how Joseph would testify would
have been nothing but "a guess." We see no basis in the record to
conclude that the prosecution engaged in misconduct, and thus will not
disturb the District Court's ruling.

                               16
government responds that an identification without the
when and where would be nonsensical. It also argues that
the Rule was designed to encompass exactly this type of
testimony (and not just lineup and photo spread
identifications).

Statements of prior identifications are admitted as
substantive evidence because of "the generally
unsatisfactory and inconclusive nature of courtroom
identifications as compared with those made at an earlier
time under less suggestive conditions." Fed. R. Evid. 801,
advisory committee notes. We noted in Brink, 39 F.3d at
426, that evidence is generally admitted under 801(d)(1)(C)
"when a witness has identified the defendant in a lineup or
photospread, but forgets, or changes, his testimony at
trial." We explained that this Rule then permits a third
person to testify regarding the previous statements of the
eyewitness. Id.; see also United States v. Blackman, 66 F.3d
1572, 1578 (11th Cir. 1995) (holding that testimony of FBI
Agent regarding bank teller's out of court identification was
properly admitted under 801(d)(1)(C)); United States v.
O'Malley, 796 F.2d 891, 899 (7th Cir. 1986) (stating that
FBI Agent testimony regarding prior statements of witness
who recanted at trial was admissible); United States v.
Jarrad, 754 F.2d 1451, 1456 (9th Cir. 1985) (holding that
Agent's testimony as to witness's identification was not
hearsay).

Certainly the purpose of the Rule seems to be fulfilled
here, where Joseph abandoned his previous knowledge of
the defendants at trial. While we have yet to construe Rule
801(d)(1)(C) as covering this type of identification, that is,
one that consists of a person coming forward after a crime
is committed and saying he saw a particular person at a
certain place and time, viewing both the Advisory
Committee notes to Rule 801 and our own case law, we see
no basis to conclude that Rule 801 does not extend to such
situations. Any concerns regarding conditions or
circumstances that might bear on reliability are matters
going to the weight of the evidence, which can be addressed
on cross-examination, and should not affect the
admissibility of the statement. In any event, certainly the
trial judge did not abuse his discretion, nor was the error

                               17
prejudicial in light of the overwhelming evidence against the
defendants. See Fed. R. Evid. 52(a) ("Any error, defect,
irregularity or variance which does not affect substantial
rights shall be disregarded."); United States v. Adams, 252
F.3d 276, 281 (3d Cir. 2001) ("In practice, Rule 52(a)
applies when the defendant has made a timely objection to
an error, and the court of appeals normally engages in a so-
called "harmless error" inquiry to determine whether the
error was prejudicial to the defendant, with the government
bearing the burden of persuasion on the issue of
prejudice."). We cannot imagine that the defendants would
not have been found guilty but for the detective's testimony
regarding Joseph's identification. Even if the statement was
arguably inadmissible, its admission was harmless.

E. Admission of Clothing Seized From Navarro's Home

Navarro challenges the admission into evidence of items
seized from his home, including a camouflage t-shirt, jacket
and pants, as well as a .380 pistol. He argues that the
District Court should not have admitted the evidence
because it was barred by Fed. R. Evid. 402 and 403.
Navarro contends that under Rule 402, the items were not
relevant because he shared the home, and the items were
not necessarily his but could have belonged to others.
Additionally, because he contends that the ownership of the
items could not be ascertained with certainty, he argues
that their admission subjected him to unfair prejudice.

This claim is without merit. Navarro's argument does not
really implicate issues of relevancy under Fed. R. Evid. 402,
or of prejudice under Fed. R. Evid. 403 but, rather, it goes
only to the weight of the evidence. Defense counsel had the
opportunity to address issues regarding the multiple
occupants of the home on cross-examination and during
his statements to the jury. In addition, the relevance and
probative value of the evidence are obvious, given the
testimony that the assailants wore similar clothing to the
items found in Navarro's home, and the fact that the
firearm was found in the pocket of the jacket.

We find no abuse of discretion here.

F. Sufficiency of Evidence of Carjacking

The jury found the defendants guilty of carjacking based
on the theft of Tredway's van during the course of the

                               18
robbery and assaults. The carjacking statute requires proof
of five elements: (1) taking a motor vehicle (2) that had been
transported, shipped, or received in interstate or foreign
commerce (3) from the person or presence of another (4) by
force or intimidation (5) with the intent to cause death or
serious harm. 18 U.S.C.A. S 2119.

When evaluating a challenge to the sufficiency of the
evidence, we examine whether the jury could have
rationally found that each of the challenged elements had
been established beyond a reasonable doubt. United States
v. Lake, 150 F.3d 269, 272 (3d Cir. 1998). We review the
evidence in the light most favorable to the government.
United States v. Xavier, 2 F.3d 1281, 1288 (3d Cir. 1993);
see also United States v. Casper, 956 F.2d 416, 421 (3d Cir.
1992) ("Appellate reversal on the grounds of insufficient
evidence should be confined to cases where the failure of
the prosecution is clear.").

The first element is not in dispute. Tredway's van was
stolen. The defendants also do not dispute the second
element. However, defendants challenge the proof of the
third element because Tredway was inside her residence
and the van was outside. They urge us to depart from our
ruling in Lake, 150 F.3d 269, which leaves little room for
argument regarding this issue. In Lake, a man was on a
beach and had his van parked at a hilltop where it was not
visible. Id. at 270. His keys were forcibly taken from him by
the defendant on the beach. Id. at 271. On appeal, the
defendant argued that the evidence did not show he took
the car "from the person or presence of another." Id. at 272.
We were unpersuaded by his argument, and found that this
element meant that the car was "so within his reach,
observation or control, that he could if not overcome by
violence or prevented by fear, retain his possession of it."
Id. at 272. The circumstances in Lake are sufficiently
similar to those here so that Lake controls. Therefore, the
third element is satisfied.

The fourth element is not in dispute, and is clearly
controlled by United States v. Applewhaite, 195 F.3d 679,
685 (3d Cir. 1999), where we held that the threatened or
actual force at issue must be employed in furtherance of
the taking of the car. The evidence here clearly establishes

                               19
that it was. The fifth and final element is easily satisfied by
the circumstances under which the car was stolen-- the
defendants insisted Tredway give them her keys in the
course of a robbery and assault. See Holloway v. United
States, 526 U.S. 1, 8 (1999) (holding that intent to carjack
requires that defendant possessed intent to seriously harm
or kill driver if necessary to steal car.)

We agree with the government. The record clearly
supports the carjacking convictions. We will, therefore,
reject the defendants' challenge to the sufficiency of the
evidence as to this offense.

G. Sufficiency of Evidence of Gun Possession

Crispin argues that the evidence was insufficient to
support his conviction for gun possession. As we recounted
above, Crispin was discovered by the police crouched down
in the car he had been driving, and when he was ordered
out, he threw the keys inside the car, then locked the door.
He then told an officer who had arrived that there was a
gun under the seat. Forensic testing linked that gun to the
crimes at issue in the instant case.

Crispin argues that the government failed to prove that
he possessed the gun as required by 14 V.I.C. S 2253(a):

       Whoever, unless otherwise authorized by law, has,
       possesses, bears, transports or carries either, actually
       or constructively, openly or concealed any firearm, . . .
       [and any] such person [who was previously] convicted
       of a felony in any state, territory, or federal court of the
       United States, or if such firearm or an imitation thereof
       was had, possessed, borne, transported or carried by
       or under the proximate control of such person during
       the commission or attempted commission of a crime of
       violence, as defined in subsection (d) hereof, then such
       person shall be sentenced to imprisonment . . . .

We must determine whether the jury could have rationally
found that the elements had been established beyond a
reasonable doubt. Lake, 150 F.3d at 272. We review the
evidence in the light most favorable to the government.
Xavier, 2 F.3d at 1288.

                                20
We note that, here, the operative language of the Virgin
Islands statute encompasses not only "possession," but
covers anyone who "bears, transports or carries .. .
actually or constructively." 14 V.I.C. S 2253(a). Prior to
November 1996, section 2253(a) made it unlawful for a
person to have a firearm "under his control in any vehicle."
14 V.I.C. S 2253 (1996). This phrase was deleted, however,
and now, where a defendant "had, possessed, bore or
carried" a firearm in his automobile, the statute no longer
requires that it be "under his control." No court has yet
construed the implication of this alteration.

While the language has changed, we have defined the
concept of "constructive possession" so as to make the
issue of control still a central theme. We have stated that
constructive possession exists if an individual"knowingly
has both the power and the intention at a given time to
exercise dominion or control over a thing, either directly or
through another person or persons." United States v.
Blackston, 940 F.2d 877, 883 (3d Cir. 1991) (quoting
Black's Law Dictionary 1047 (5th ed. 1979)). Here there is
no question that Crispin had knowledge of the gun since he
actually told the police officer that the gun was in the car.
But, could the jury have found that he had the "power and
intention" to "exercise control over" the gun?

We think the facts present here could easily justify the
inference the jury may have drawn in favor of Crispin's
constructive possession of the gun; these include, his
operation of the vehicle, his admitted knowledge of the
firearm's presence in the car, and its location underneath
the car's front seat and therefore within his reach. In United
States v. Iafelice, we found constructive possession of drugs
in the car's trunk, placing considerable weight on the
defendant's ownership and operation of the car, but also
stressing the need for these facts to be "considered in the
context of the surrounding circumstances." 978 F.2d 92, 97
(3d Cir. 1992).

We previously upheld the finding of constructive
possession under the former version of 2253(a), where we
determined the firearm was under the control of the
defendants. In McKie, the driver and two passengers of the
car were found to have the firearms under their control, so

                               21
as to possess them where the guns were all in plain view
inside the compact car. United States v. McKie , 112 F.3d
626 (3d Cir. 1997). In Xavier, the driver was found to have
possession of a gun held by a passenger exiting the car,
because it was within his "grab area" when it was in the
passenger cabin. Xavier, 2 F.3d at 1289. We believe that
the operative language of the current statute is, if anything,
broader than the previous language applied in McKie and
Xavier in that the concept of possession is expanded.
Further, it is coupled with other verbs that could apply
here as well -- "has, . . . bears, transports or carries."

Crispin relies on United States v. Chairez, 33 F.3d 823
(7th Cir. 1994), to support his argument that there was
insufficient evidence to convict him of possession of a
firearm. However, Chairez is readily distinguishable. First,
the court was only considering whether the defendant
"possessed" a gun as required by the portion of the statute
at issue, 18 U.S.C. S 924(c). The court opined that "[a]
defendant must know of the firearm's existence in order to
have possession or control of it." Chairez , 33 F.3d at 825.
Chairez was sitting in the passenger seat of a car
containing marijuana. Id. at 824. After the police and DEA
agents stopped the car and had the driver and passenger
get out, they discovered a gun six inches under the
passenger seat. Id. Chairez successfully appealed his
conviction for possessing a firearm in connection with a
drug trafficking offense by demonstrating that there was
insufficient evidence that he knowingly possessed the gun.
Id. at 825. The court found that the government"failed to
produce even a shred of evidence" that Chairez knew about
the gun or had ever carried a firearm. Id. Here, Crispin's
knowledge is well established in the record based on
Pemberton's testimony that Crispin told him that the gun
was under the seat.

Clearly, the jury could have rationally found that the
government established that Crispin "had, possessed,
bor[e], transported, or carried" the firearm beyond a
reasonable doubt. Thus, we reject Crispin's claim that there
is insufficient evidence to support his conviction for
possession of a firearm.

                               22
H. Failure to Question Juror Regarding Possible Bias

Navarro argues that the District Court erred by not
questioning a juror to ascertain if she was biased against
him. The juror in question sent the judge a note on the
fourth day of the trial, requesting that Navarro stop staring
at her. The note said: "it doesn't bother me, he doesn't
scare me, it's just that I don't like it." Id. On the following
trial day, Navarro's counsel asked that the juror be stricken
from the jury because she "harbor[ed] specific feelings
toward Mr. Navarro [that are] negative." Id. The District
Court denied the motion to strike the juror, stating: "[T]here
is nothing I have heard that would allow me to conclude
that this particular [juror] is necessarily harboring feelings
of negativity towards the defendant Navarro." 12 On appeal,
Navarro argues that the note shows that the juror was
biased toward him, and that the Court should have
questioned the juror in order to explore the issue before
making this determination. We review the District Court's
handling of this matter under an abuse of discretion
standard. See United States v. Murray, 103 F.3d 310, 323
(3d Cir. 1997) ("We review the district court's ruling [not to
excuse a juror for cause] for an abuse of discretion.")

Navarro relies on Gov't of the Virgin Islands v. Dowling,
814 F.2d 134 (3d Cir. 1987), to support his contention. In
Dowling, the trial judge received a note from a juror
indicating that the jury had been exposed to extra-record
information about the facts of the case and about Dowling's
past criminal record. Id. at 135. The note identified one
specific juror as the one who was discussing these matters.
Id. at 136. The judge excused the juror identified in the
note, id. at 136, but denied the defendant's motion for a
mistrial after addressing the entire jury panel, none of
whom indicated that they had been exposed to any
information that "had rendered [him or her] incapable of
giving a fair trial." Id. at 135. We held that the failure to
question the jurors individually was not an abuse of
_________________________________________________________________

12. While the actual transcript reads that the Court referenced "this
particular defendant" rather than "this particular juror," the context of
the Court's statement makes clear that it intended to speak of the juror
rather than the defendant.

                               23
discretion, but we reversed on the grounds that"the trial
judge erred when he failed to develop a record sufficient to
permit evaluation of the potential prejudice to the
defendant and failed to make a finding regarding the jurors'
ability to perform their assigned task which took into
account whatever information they had received." Id. at
141.

While Dowling does support Navarro's argument that in
camera questioning of an individual juror is appropriate in
some instances to determine prejudice, its reasoning
focused on juror exposure to prejudicial extra-record
information. While there may be circumstances which would
warrant an extension of Dowling, we find that Dowling does
not apply to the facts of this case. Here, the judge had
obviously observed the defendant and the proceedings and
was not confronted with the exertion of an outside influence.13
While the judge might have questioned the juror, the note
states that the juror was not bothered by Navarro's alleged
conduct, giving rise to a clear inference that she was not
negatively affected by it. Dowling also stands for the
proposition that the trial judge must be given considerable
latitude when making such decisions, as "the trial judge
develops a relationship with the jury during the course of a
trial that places him or her in a far better position than an
appellate court to measure what a given situation requires."
Id. at 137.

In addition, our reasoning in United States v. Murray,
103 F.3d 310 (3d Cir. 1997), though involving somewhat
different facts, provides additional support for the District
Court's conclusion. Murray involved a challenge to a
District Court's denial of a motion to disqualify a juror
(during jury selection) because he disclosed during voir dire
that he had read an article regarding the case. Id. at 322.
In affirming the District Court, we stated:
_________________________________________________________________

13. While not necessarily determinative, we do note that under the
Federal Rules of Evidence, extraneous information is viewed as posing a
unique threat to the deliberative process. Pursuant to Rule 606(b), a
juror may not testify about the jury's deliberations, except in regards to
"extraneous prejudicial information . . . improperly brought to the jury's
attention or whether any outside influence was improperly brought to
bear upon any juror."

                               24
       In determining whether a particular juror should be
       excused for cause, our main concern is whether the
       juror holds a particular belief or opinion that will
       prevent or substantially impair the performance of his
       duties as a juror . . . . Determining whether a
       prospective juror can render a fair verdict lies
       peculiarly within a trial judge's province . . . . The trial
       judge's resolution of such questions is entitled, even on
       direct appeal, to special deference.

Id. at 323 (internal quotation marks and citations omitted).
The District Court here made an assessment of the
situation as required by Murray. We see nothing in the
record here to indicate that the District Court should have
concluded that the juror in question was incapable of
"render[ing] a fair verdict," or that it was obligated to
question the juror in order to make that determination. See
id.; see also United States v. Hursh, 217 F.3d 761, 768-69
(9th Cir. 2000) (holding that though judge did not question
juror individually, note from juror to judge requesting
private meeting to ask legal question did not suggest juror
would not base verdict on evidence). Accordingly, we find
that the District Court's decision not to question the juror
before ruling on Navarro's motion to strike was well within
its discretion.

IV. CONCLUSION

For all the foregoing reasons, we will AFFIRM the District
Court's Judgment and Conviction Orders.

                                25
McKEE, Circuit Judge, concurring.

I join the opinion of my colleagues in all respects, but
write separately to express my concern over the carjacking
convictions under 18 U.S.C. S 2119. See Maj. Op. at 18-19.
Although I agree that United States v. Lake 150 F.3d 269,
272 (3d Cir. 1998), requires that we affirm the instant
convictions for carjacking, I continue to believe that Lake
was wrongly decided. Here, as in Lake, the temporal and
circumstantial nexus between the theft of the keys and the
subsequent theft of the car is just too attenuated to
constitute the federal offense of "carjacking." In his
thoughtful dissent in Lake, Chief Judge Becker explained
why such an attenuated nexus ought not to establish the
federal crime of carjacking. He explained:

       When the defendant took the car keys from his victim,
       . . . [the victim's] car was, in city terms, a block away
       up the hill, out of sight. Under these circumstances, I
       would join an opinion upholding Lake's conviction for
       keyjacking, or for both key robbery and grand larceny.
       I cannot however agree that he is guilty of carjacking.

150 F.3d at 275 (Becker, C.J. dissenting) (internal
quotation marks omitted). I agree. Although here, the car
was closer to the keys than the car that was taken in Lake,
the theft of the keys, and the theft of the car are still two
discrete actions separated by both time and distance.

Accordingly, but for Lake, I would conclude that the
evidence here is not sufficient to establish that the vehicle
was taken "from the person or presence of another" as is
required for a conviction under 18 U.S.C. S 2119. However,
inasmuch as we are bound by the holding in Lake , I join in
the analysis of my colleagues. Under Lake, I must agree
that the evidence presented here is sufficient to morph this
"keyjacking," into a carjacking under S 2119.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               26
