                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-24-2005

Govt of VI v. Rosa
Precedential or Non-Precedential: Precedential

Docket No. 04-1846




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                                                 PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 04-1846


          GOVERNMENT OF THE VIRGIN ISLANDS,

                                                 Appellant

                                v.

                     JOSE ALBERTO ROSA


           On Appeal from the Appellate Division of the
               District Court of the Virgin Islands
               (D.C. Crim. App. No. 2001/0068)
            Honorable Raymond L. Finch, Chief Judge
           Honorable Thomas K. Moore, District Judge
           Honorable Rhys S. Hodge, Territorial Judge
                     (sitting by designation)


                    Argued: December 14, 2004

               Before: SLOVITER, FUENTES, and
                  GREENBERG, Circuit Judges.

                    (Filed: February 24, 2005)


Iver A. Stridiron
Attorney General
Elliott M. Davis
Solicitor General
Maureen Phelan (argued)
Assistant Attorney General
Department of Justice
34-38 Kronprindsens Gade
GERS Bldg., 2nd Floor
Charlotte Amalie, St. Thomas,
United States Virgin Islands 00802

   Attorneys for Appellant

G. Luz A. James (argued)
P.O. Box 224469
Christiansted, St. Croix
United States Virgin Islands 00822

   Attorney for Appellee


                      OPINION OF THE COURT


GREENBERG, Circuit Judge.

            I. FACTUAL AND PROCEDURAL HISTORY

         This matter comes on before this court on an appeal by the
Government of the Virgin Islands from an order of the District Court
of the Virgin Islands entered March 11, 2004, reversing Jose Alberto
Rosa’s conviction for first-degree murder at a jury trial in the
territorial court. Rosa and Victor Ramos were tried jointly in the
territorial court after being charged in a criminal information with
committing murder in the first degree and with carrying or using a
dangerous weapon during a crime of violence. 14 V.I. Code Ann. §§
922(a)(1) & 2251(a)(2) (1996 & Supp 2004).

        The following is a summary of the evidence supporting the
charges at the defendants’ joint trial largely drawn from the testimony
of two seemingly disinterested eye witnesses.1 Rosa’s car and a truck
belonging to George Glasgow, the victim, were parked on a street in
Estate Profit, St. Croix, and Rosa and Glasgow were in a field beside
the vehicles. In addition, Ramos, who had been in Rosa’s car, was at


        1
          The facts in this case in support of Rosa’s conviction are set
forth in the district court opinion and the government’s brief. In his brief
Rosa does not take issue with those recitations. Indeed, Rosa’s brief
does not make any reference to the facts of his offense. It should be
noted, however, that both defendants testified at trial and gave
exculpatory versions of the events, arguing that they took their actions
in self defense. App. at 9.

                                     2
the scene. Rosa had a 2 x 2 stick in his hands, taped at the end to
form a grip, with which he was hitting Glasgow. Upon being struck,
Glasgow ran to his car, pulled out a machete, and swung errantly at
Rosa. Ramos quickly jarred the machete out of Glasgow’s hand and
forced him to the ground. Ramos then picked up the machete and
struck Glasgow with its blunt edge, while Rosa hit him with the stick.
Even after Ramos ceased hitting Glasgow, Rosa continued to strike
him with the stick. According to the eyewitnesses, the beating
continued as Rosa hit Glasgow with the club while Ramos kicked
him. Glasgow was unable to regain his footing as Rosa continued
beating him. The witnesses testified that after Glasgow stopped
moving, Rosa hit him several times in the head with the modified 2 x
2. Once Glasgow was unconscious, Rosa and Ramos pilfered through
his pockets, found his wallet, and took his money. Glasgow died at
the scene. Rosa and Ramos were apprehended and charged with first-
degree murder and carrying a dangerous weapon during a crime of
violence.

        There were discussions regarding the jury instructions
beginning midway through the trial. The court first sifted through
jury instructions Ramos proposed.2 These instructions erroneously
indicated that to prove first-degree murder the government had to
prove that the defendants “had an intent to kill or inflict serious bodily
harm against a human being.”3 Appellant’s br. at 16. This proposed
instruction was erroneous to the extent that it allowed the jury to
convict the defendants of first-degree murder even if their intent only
was to inflict serious bodily harm. Nevertheless when the court asked
Rosa’s attorney, Mr. James, if he had any objections to these
instructions the following ensued:

               THE COURT: Attorney James, you
               have looked at Defendant Ramos [sic]
               proposed instructions?


       2
         There is no indication in the record that Rosa submitted jury
instructions and he does not indicate in his brief that he did so.
       3
        This statement clearly was an inaccurate characterization of the
homicide law of the Virgin Islands under which for a first-degree murder
conviction the government must prove that the unlawful killing was
accompanied by a clear and deliberate intent to take life. See
Government of the Virgin Islands v. Lake, 362 F.2d 770, 775-76 (3d Cir.
1966).

                                    3
               MR. JAMES: Yes, your Honor, I have.

               THE COURT: Do you have any
               objections to –

               MR. JAMES: I have no objections, your
               Honor.

               THE COURT: Any additions,
               modifications or corrections?

               MR. JAMES: No, sir.

               THE COURT: So they can apply
               equally to your client.

               MR. JAMES: That’s correct, sir.

App. at 65-66.

        The court then walked through Ramos’s proposed jury
instructions, one by one, allowing the parties to raise any objections or
offer any additions. See app. at 66-73. Rosa did not raise objections
to the language Ramos proposed erroneously setting forth the
government’s burden to prove intent, and ultimately stated, “I am
satisfied, your Honor.” App. at 73.

        The court then analyzed the government’s proposed
instructions:

               THE COURT: The Government has
               proposed in its initial instructions,
               element instructions — murder in the
               first degree, possession and a flight
               instruction. Is there any objection to
               any of those three instructions?

               MR. JAMES: No, your honor.

               THE COURT: Excuse me?

               MR. JAMES: No. I said no, your
               Honor.


                                   4
               THE COURT: None.

App. at 73. The court then broadly outlined the instructions it would
give, see app. at 74-78, and repeated its call for any objections or
modifications to the proposed instructions. App. at 78. Mr. James
again replied, “I am satisfied, your Honor.” Id.

        After the parties made closing arguments and the issue of self-
defense was raised, the court suggested that it should instruct the jury
on the lesser included offense of involuntary manslaughter. Both
defendants agreed to this charge which was to be in addition to a
charge on voluntary manslaughter that the court already had
determined to give. The court, however, did not instruct the jury until
the following morning, a delay that provided the attorneys with an
additional opportunity to raise objections or suggest modifications to
the jury instructions. The court noted that, “[i]f the parties require to
submit any additional instructions they may do so particularly in light
of involuntary manslaughter. . . .” App. at 161. The next morning
when the court convened no party made any objection to the
instructions.

      Ultimately when the court instructed the jury on first-degree
murder, it incorporated Ramos’s erroneous instruction into the charge:

               Now defendant is . . . defendants are
               charged in the first count of the
               amended information with the charge of
               murder in the first degree, in violation
               of Title 14, section 922(a)(1). Murder
               is the unlawful killing of a human being
               with malice aforethought. For murder
               to constitute murder in the first degree
               the additional elements of willfulness
               deliberateness and premeditation must
               be established; therefore, murder in the
               first degree is the unlawful killing of a
               human being with malice aforethought,
               with willfulness, deliberateness and
               premeditation.

               Therefore, before you can find the
               defendants or any of the defendants
               guilty of the crime of murder in the first


                                    5
degree you must find that the
government has proved each of the
following essential elements beyond a
reasonable doubt: that the defendants
knowingly and intentionally while
aiding and abetting each other
unlawfully killed a human being, in this
case George Glasgow. That the
defendants acted with malice
aforethought. That the killing was
willful, deliberate and premeditated.
That the defendant did not act in self-
defense and that the defendant had an
intent to kill or to inflict serious bodily
harm against a human being and that the
acts occurred on November 5, 2000, on
St. Croix, Virgin Islands.

Certain terms have been used and I will
define a few of them for you now.
Malice aforethought: Malice
aforethought means an intent at the time
of killing willfully to take the life of a
human being or an intent willfully to act
in callous and wanton disregard of
consequences of human life. But
malice aforethought does not
necessarily imply any ill will, spite or
hatred toward the individual killed.

Malice as the term is used here is but
another name for a certain state or
condition of a person’s mind or heart.
Since no one can look into the heart or
mind of another the only means of
determining whether or not malice
existed at the time of the killing is by
inferences drawn from the surrounding
facts and circumstances as shown by the
evidence in the case. Where a killing is
shown to have been accomplished by a
deadly weapon or other instrument in
such a manner as may be naturally


                    6
              expected and probable to cause death,
              malice may be inferred from that fact
              alone.

              Premeditation and deliberation are very
              similar and they mean virtually the same
              thing. Premeditation and deliberation
              are typically associated with murder in
              cold blood and requires a period of time
              in which the accused coolly deliberates
              or thinks the matter over before acting.

              The necessary duration of that period
              cannot be arbitrarily fixed. The time
              required to form a deliberate plan or
              design varies in the minds and
              temperament in which they may be
              made. Any interval of time between the
              forming of the specific intent to kill and
              that execution of that intent which is of
              sufficient duration for the accused to be
              fully conscious and mindful of what he
              intended willfully to set about to do is
              sufficient to justify a finding of
              premeditation.

App. at 186-89 (emphasis added).

        The court then instructed the jury on the lesser included
charges of second-degree murder, voluntary manslaughter, and
involuntary manslaughter. See app. 190-96. To distinguish between
the crimes of first- and second-degree murder the court explained:

              Murder in the first degree is the
              unlawful killing of a human being with
              malice aforethought and willful,
              deliberate and premeditated. Murder in
              the second degree does not have
              deliberation and premeditation, but
              murder in the first degree and murder in
              the second degree have malice
              aforethought.



                                   7
App. at 191. Following the jury instructions, the court once again
invited the attorneys to propose any modifications, additions, or
corrections to these instructions. Once again, Rosa’s attorney replied,
“I am satisfied, your Honor.” App. at 211.

        The jury found Rosa guilty of first-degree murder and Ramos
guilty of voluntary manslaughter on August 1, 2002, and, in addition,
found them guilty on the weapons offenses.4 The court sentenced
Rosa on September 19, 2001, to life imprisonment without the
opportunity for parole. Rosa appealed to the Appellate Division of
the District Court of the Virgin Islands, which, in a per curiam
opinion, reversed his conviction on the grounds that, “the erroneous
jury instruction describing the element of intent-to-kill violated
Appellant’s due process right to a fair trial and constituted plain
error.” App. at 29. Ramos, however, did not appeal from his
conviction and sentence.       Following the reversal in the district
court the government filed its timely notice of appeal to this court
from the district court. The three-level proceedings in this case have
placed us in the unusual position of adjudicating an appeal by the
government in a criminal case in which the jury convicted the
defendant and the issue on appeal relates to the conviction.



        II. JURISDICTION AND STANDARD OF REVIEW

        The Appellate Division of the District Court of the Virgin
Islands had jurisdiction in this case under 48 U.S.C. § 1613a(a) and
we have jurisdiction over the appeal from the Appellate Division of
the District Court of the Virgin Islands under 48 U.S.C. § 1613a(c). A
determination of whether a defendant effectively waived his rights is
made as a matter of law and is subject to plenary de novo review on
appeal. United States v. Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995)
(“Determining the requirements that must be satisfied in order to find
an effective waiver of a constitutional right is a question of law.”).



                            III. DISCUSSION

       A.        Forfeiture vs. Waiver


       4
           We are not concerned with the weapons offenses on this appeal.

                                     8
        The first issue that we must address is whether Rosa, by
failing to object to the erroneous first-degree murder instruction at
trial, waived, or merely forfeited, his right to appeal his conviction
based upon the inaccurate instruction. The distinction between waiver
and forfeiture is critical in the context of Federal Rule of Criminal
Procedure 52(b), the crux of this appeal.5 Rule 52(b), the authority
which the district court invoked to overturn Rosa’s conviction as he
did not object to the jury instructions at trial, provides an appellate
court with the limited power to correct an error even though the
appellant did not advance an objection to the error in the trial court.
United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 1776
(1993).

        Authority under the auspices of Rule 52(b) is contingent upon
there having been an “error” in the proceedings in the trial court. Id.
at 732, 113 S.Ct. at 1776. Olano defines an “error” as the deviation
from a legal rule in circumstances in which the legal rule has not been
waived. Id. at 732-33, 113 S.Ct. at 1777. Accordingly, when a legal
rule has been waived, an appeal based upon the nonadherence to that
legal principle is precluded.6 If, however, the correct application of


       5
           Fed. R. Crim. P. 52 states:

                 Rule 52. Harmless and Plain Error

                 (a) Harmless Error. Any error, defect,
                 irregularity, or variance that does not
                 affect substantial rights must be
                 disregarded.

                 (b) Plain Error. A plain error that affects
                 substantial rights may be considered even
                 though it was not brought to the court's
                 attention.
       6
         For a waiver to be valid, the right said to have been waived must
be waivable. The Court in Olano noted that, “[w]hether a particular right
is waivable; whether the defendant must participate personally in the
waiver; whether certain procedures are required for waiver; and whether
the defendant's choice must be particularly informed or voluntary, all
depend on the right at stake.” Olano, 507 U.S. at 733, 113 S.Ct. at 1777
(citation omitted). It long has been held that a defendant’s attorney may
waive objections that might have been made to jury instructions. See

                                     9
the rule merely was “forfeited,” Rule 52(b) provides a basis for
review. Thus, “forfeiture, as opposed to waiver, does not extinguish
an ‘error’ under Rule 52(b).” Id. at 733, 113 S.Ct. 1777. Therefore,
“if a legal rule was violated during the district court proceedings, and
if the defendant did not waive the rule, then there has been an ‘error’
within the meaning of Rule 52(b) despite the absence of a timely
objection.” Id. at 733-34, 113 S.Ct. at 1777. Stated most simply,
“where there was forfeiture, we apply a plain error analysis; where
there was waiver, we do not.” United States v. Mitchell, 85 F.3d 800,
807 (1st Cir. 1996).

         Though the conceptual distinction between a forfeiture and a
waiver is clear, in practice the distinction is sometimes elusive. The
Court in Olano, clarifying the distinction, noted that while “forfeiture
is the failure to make the timely assertion of a right, waiver is the
‘intentional relinquishment or abandonment of a known right.’” 507
U.S. at 733, 113 S.Ct. at 1777 (quoting Johnson v. Zerbst, 304 U.S.
458, 464, 58 S.Ct. 1019, 1023 (1938)).

         The threshold question in deciding whether there is appellate
authority to grant relief under Rule 52(b), is therefore whether the
appellant who failed to object in the trial court to an error that violated
his rights was aware of the relinquished or abandoned right.
See United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en
banc). If he had that knowledge, yet intentionally chose to abandon
the right, his failure to object will be deemed a “waiver” depriving
him of the opportunity to obtain relief on appeal. Accordingly, an
explicit agreement or stipulation constitutes a waiver of rights if the
defendant was aware of the right. See United States v. Malpeso, 126
F.3d 92, 95 (2d Cir. 1997). Additionally, a number of courts of
appeals have held that the failure of the defendant to raise a timely
objection can be deemed a waiver in circumstances where the
defendant “consciously refrains from objecting as a tactical matter.”
United States v. Yu-Leung, 51 F.3d 1116, 1122 (2d Cir. 1995); see
United States v. Salerno, 108 F.3d 730, 740 (7th Cir. 1997)
(defendant’s objection to evidence indicating knowledge of potential
need for limiting instruction, combined with overt acceptance of
court’s final jury instruction without a limiting instruction,
demonstrated that defendant “intentionally relinquished his known
right”).



United States v. Perez, 116 F.3d 840, 845 n.7 (9th Cir. 1997) (en banc).

                                    10
         The case before us, however, does not present us with a
knowing waiver situation. We do not see any indication that Rosa’s
attorney explicitly stipulated to the erroneous instructions with
knowledge of the error in them or refrained from objecting to the jury
instructions for tactical reasons.7 Rather, we are satisfied that his
failure to object, and moreover his agreement on at least three
occasions to the erroneous jury instructions, stemmed from the
circumstance that he was unaware of the correct rule of law or, if
aware of it, did not realize that the intent instruction misstated it.

        The reasoning of the Court of Appeals for the Ninth Circuit in
Perez, 116 F.3d at 840, bolsters Rosa’s claim that he did not waive his
right to appellate review by his mere acquiescence to the erroneous
jury instructions. In Perez, the appellants contended that the court
should reverse their convictions because the district court did not
instruct the jury on an essential element of the offense charged, using
or carrying a firearm during and in relation to drug trafficking, even
though the appellants had submitted the flawed instruction to the
court. Id. at 844-45. The court of appeals previously had held that the
statute’s “in relation to” requirement was an essential element of the
offense and therefore its submission to the jury was required. See
United States v. Mendoza, 11 F.3d 126, 128 (9th Cir. 1993). Though
the court had decided Mendoza prior to the trial in Perez, neither the
trial court nor the parties in Perez suggested that the “in relation to”
element should be submitted to the jury. The appellants did not object
to the faulty instruction and were convicted. On appeal, the appellants
sought reversal by reason of the faulty instruction. The government
argued that the error was unreviewable because the appellants had
offered the instruction which did not include the element, and thus
had waived their right to appellate review. Id. at 844.

        The court in Perez compared the facts before it with those in a
previous case, United States v. Baldwin, 987 F.2d 1432, 1436-37 (9th
Cir. 1993), in which it had held that a defendant had waived his right
to appellate review. In Baldwin a defendant was charged with
conspiracy to distribute cocaine. The court’s proposed jury
instruction, however, omitted the required “overt act” element of the
conspiracy charge. The government objected to the instruction
because of the omission of this element, but the defense attorney


       7
        We note that the government does not urge that we reinstate the
conviction on the basis of the invited error doctrine. See United States
v. Pungitore, 910 F.2d 1084, 1126 (3d Cir. 1990).

                                  11
indicated that he did not believe it necessary to instruct about the
“overt act” requirement. Id. at 1437. The government then withdrew
its opposition, and the court approved the instruction without the
“overt act” requirement. The defendant was convicted and ultimately
appealed based upon the faulty instruction. The Court of Appeals for
the Ninth Circuit held that the defendant waived his right to raise the
erroneous jury instruction on appeal and thus was precluded from
arguing plain error.

        The Perez court, recognizing Baldwin as a prototypical waiver
case, stated, “[t]his scenario is an example of waiver because the
record reflects that the defendant was aware of the omitted element
and yet relinquished his right to have it submitted to the jury.” Perez,
116 F.3d at 845. The court continued, “[w]aiver occurred . . . because
the defendant considered the controlling law, or omitted element, and,
in spite of being aware of the applicable law, proposed or accepted a
flawed instruction.”8 Id.

        The court in Perez distinguished the case before it from a
“clear” waiver like that in Baldwin by noting that the appellants in
Perez had been unaware of the requirement to include the “in relation
to” element to the jury.9 Perez, 116 F.3d at 845. The court noted:

               [T]here is no evidence that [the
               appellants] considered submitting the
               ‘in relation to’ element to the jury, but
               then, for some tactical or other reason,
               rejected the idea. Thus, it cannot be
               said that [the appellants] waived their
               right to have this element submitted to
               the jury; waiver occurs only when a
               defendant relinquishes or abandons a
               ‘known right.’ Olano, 507 U.S. at 733,
               113 S.Ct. at 1777. To the contrary, the


       8
        See also United States v. Guthrie, 931 F.2d 564, 567 (9th Cir.
1991) (refusing to review jury instructions on appeal because trial court
had offered to give omitted instruction, and defendant’s attorney
objected).
       9
        “Unaware” in this sense obviously does not mean that it was
impossible for the parties to know of the information, as the court of
appeals decided Mendoza months before the trial in Perez.

                                   12
                 failure to propose the ‘in relation to’
                 element was forfeited error: error that is
                 not objected to during trial because the
                 defendant is unaware of a right that is
                 being violated. Here, because neither
                 [of the appellants] knew of the right to
                 have the omitted element submitted to
                 the jury, we must treat the right as
                 forfeited, as opposed to waived.

Id. at 845-46.

         Guided by the logical underpinnings of Perez, we hold that
Rosa did not waive, but merely forfeited his rights to proper jury
instruction. Despite his repeated acquiescence to the instructions, it is
clear that he did not knowingly and intentionally waive his right to the
proper charge. There is no indication that his attorney knew of and
considered the controlling law, and despite being aware of the need
for the government to prove a clear and deliberate intent to take
human life to find his client guilty of first-degree murder, accepted the
flawed instruction that included the additional language of inflicting
serious bodily injury. We, therefore, will not hold that his attorney’s
failure to object to the erroneous first-degree murder instruction
waived Rosa’s right to have the jury correctly instructed on the
elements of the crime for which he was charged.

       B.        Plain Error

        Because we conclude that Rosa forfeited, as opposed to
waived, his right to object to the jury instructions on appeal, we
analyze the instructions for “plain error.” See United States v. Retos,
25 F.3d 1220, 1228 (3d Cir. 1994). To demonstrate “plain error” an
appellant bears the burden of proving that: (1) the court erred; (2) the
error was “plain” at the time of appellate consideration; and (3) the
error affected substantial rights, usually meaning that the error “must
have affected the outcome of the district court proceedings.” Olano,
507 U.S. at 734, 113 S.Ct. at 1777-78. Federal Rule of Criminal
Procedure 52(b) leaves the decision to correct the forfeited error
within the discretion of the court of appeals. As we recently
indicated, “[w]e should exercise our discretion to correct the error,
where the defendant is actually innocent, or where, regardless of the
defendant’s innocence or guilt, the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United States


                                    13
v. Gordon, 290 F.3d 539, 543 (3d Cir. 2002) (internal quotation marks
omitted).

        The presence of the first element, “error,” partially addressed
above, is ascertained by inquiring whether there was a deviation from
a legal rule that was not waived. Olano, 507 U.S. at 732-33, 113 S.Ct.
at 1777. Long before the trial in this case we held in Government of
the Virgin Islands v. Lake, 362 F.2d 770, 775-76 (3d Cir. 1966), that
under Virgin Islands law, a conviction for first-degree murder cannot
lie unless the government proves the unlawful killing was
accompanied by a clear and deliberate intent to take life. The
government concedes that “since first-degree murder requires the
homicide to be committed with the specific intent-to-kill, the single
reference to the intent to commit ‘serious bodily injury’ in relation to
first-degree murder was probably erroneous.” Appellant’s br. at 22.

         The second limitation on appellate authority under Rule 52(b)
is that the error be “plain.” Olano, 507 U.S. at 734, 113 S.Ct. at 1777.
 To be “plain” an error must be “clear” or “obvious.” Id. (citing
United States v. Young, 470 U.S. 1, 16 n.14, 105 S.Ct. 1038, 1047
n.14 (1985); United States v. Frady, 456 U.S. 152, 163, 102 S.Ct.
1584, 1592 (1982)). The government concedes this element as well.
Appellant’s br. at 22 (“Case law appears consistent on this point, so
the error was probably ‘plain.’”).

        The third limitation on appellate authority under Rule 52(b) is
that the plain error must “affec[t] substantial rights.” Olano, 507 U.S.
at 734, 113 S.Ct. 1777. This language tracks Rule 52(b) and means
“that the error must have been prejudicial: It must have affected the
outcome of the district court proceedings.” Id. (citing Bank of Nova
Scotia v. United States, 487 U.S. 250, 255-57, 108 S.Ct. 2369,
2373-74 (1988); United States v. Lane, 474 U.S. 438, 454-64, 106
S.Ct. 725, 734-39 (1986) (Brennan, J., concurring in part and
dissenting in part); Kotteakos v. United States, 328 U.S. 750, 758-65,
66 S.Ct. 1239, 1244-48 (1946)); United States v. Barbosa, 271 F.3d
438, 454 (3d Cir. 2001).

       In the present case, the district court held that the error was
prejudicial.10 In reaching this conclusion the court held that the jury

       10
         The government appears to have conceded that “substantial
rights” were affected. Appellant’s br. at 22 (“The Government has also
conceded that a defendant has a ‘substantial right’ to have the jury

                                   14
could have found that Rosa acted with malice based on the intent to
act willfully in a callous and wanton disregard of consequences of
human life, acted with premeditation, and acted with an intent to
inflict serious bodily injury.11 See app. at 19. If the jury utilized this


correctly instructed on the elements of the crime, although not an
absolute right.”). The government, however, later in its brief limits its
concession for it argues that “there is no reasonable likelihood that this
jury believed that the defendant acted with intent to inflict only serious
bodily injury, yet found him guilty of first-degree murder.” Id. at 24. In
any event, given that the issue of whether the mistake was prejudicial
was argued and briefed we will consider the “affects substantial rights”
prong of a plain error analysis in making our determination.
        11
          The district court, in finding the erroneous jury instruction
prejudicial, stated, “we find it difficult to believe that the error could not
have impacted the jury’s consideration of the case.” App. at 22. The
district court noted:

                The instruction provided two options for
                assessing the element of intent. If the
                jury found the government had proven
                beyond a reasonable doubt that Rosa
                intended to inflict serious bodily injury,
                the government had satisfied its burden
                with respect to that element.
                Alternatively, the element could be
                proven if the government proved intent to
                kill. Jurors heard eyewitness testimony
                that Rosa hit the victim so many times
                with a 2 x 2 stick, which was fitted with
                a grip, that Glasgow had a massive skull
                injury. The testimony indicated that a
                significant portion of these blows were
                directed at Glasgow after he had fallen to
                the ground and appeared unconscious. If
                the jury were in any way uncertain about
                whether intent to kill had been proven,
                faced with the breadth of evidence
                showing the harm done to Glasgow, it
                would have been not only easy but logical
                to determine that the Government had
                met its burden by proving intent to cause

                                     15
logic it would have found him guilty of first-degree murder with a
lower burden of proof than the law requires, and thus run afoul of the
Due Process Clause of the Fourteenth Amendment to the United
States Constitution. See Smith v. Horn, 120 F.3d 400, 415 (3d Cir.
1997).12

         We reject the district court’s assessment of the likely
prejudicial impact of the faulty instructions. As we recently have
noted, “[i]t is a rare case in which an improper instruction will justify
reversal of a criminal conviction when no objection has been made in
the trial court.” United States v. Gambone, 314 F.3d 163, 182 (3d
Cir. 2003); Gordon, 290 F.3d at 545 (quoting Henderson v. Kibbe,
431 U.S. 145, 154, 97 S.Ct. 1730 (1977)). The standard in analyzing
the effect of the erroneous instructions is whether there was a
“reasonable likelihood” that the jury prejudiced the defendant by
applying the challenged instructions in a manner that violated the
constitution. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475,
482 (1991).

        We do not find that there was a reasonable likelihood that the
erroneous jury instructions prejudiced Rosa. Indeed, we think it quite
clear that the jury, despite the faulty first-degree murder instruction,
concluded that Rosa had the specific intent to kill Glasgow.
Therefore, there was no “reasonable likelihood” that the jury applied
the challenged instructions in a manner that allowed it to convict Rosa
of the crime of first-degree murder without making the findings that
the law requires.

       The most compelling reason to sustain the conviction is


                 serious bodily injury.

App. at 22-23.
       12
          The Due Process Clause of the Fourteenth Amendment
“protects the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with
which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068,
1073 (1970); see also Smith v. Horn, 120 F.3d at 415 (“A jury
instruction that omits or materially misdescribes an essential element of
an offense as defined by state law relieves the state of its obligation to
prove facts constituting every element of the offense beyond a reasonable
doubt, thereby violating the defendant’s federal due process rights.”)

                                    16
derived from the manner in which the jury disposed of the homicide
charges against Ramos as compared to those against Rosa. In the
cases of both defendants the court instructed the jury on first-degree
murder, second-degree murder, voluntary manslaughter, and
involuntary manslaughter.13 Accordingly, the jury could have
acquitted or convicted either defendant of any of these crimes.
Moreover, the court gave the jury certain identical instructions
applicable for its consideration of each of these offenses, though, of
course, it also gave instructions discrete as to each particular offense.
The jury, however, though finding Rosa guilty of first-degree murder,
found Ramos not guilty of murder, even in the second degree, and
convicted him on the lesser offense of voluntary manslaughter.

        The crimes of murder and manslaughter are distinguishable by
the burden of demonstrating malice placed upon the government in
proving murder. See Stevenson v. United States, 162 U.S. 313, 320,
16 S.Ct. 839, 842 (1896) (“The presence or absence of this malice or
mental condition marks the boundary which separates the two crimes
of murder and manslaughter.”). The court instructed the jury that,
“[m]alice aforethought means an intent at the time of a killing
willfully to take the life of a human being or an intent willfully to act
in callous and wanton disregard of consequences of human life.”14
App. at 188. We are convinced considering the evidence in the case
and the court’s charge to the jury that, in finding Ramos guilty of
voluntary manslaughter but not murder, the jury concluded that he did
not intend to kill Glasgow.15 In fact, we do not understand how we


       13
          First-degree murder is distinguishable from second-degree
murder in that to prove second-degree murder it is not necessary to prove
deliberation and premeditation. To prove either first- or second-degree
murder, however, malice aforethought is necessary. See Government of
the Virgin Islands v. Sampson, 94 F. Supp. 2d 639, 644 (D.V.I. App.
Div. 2000) ([“14 V.I. Code Ann.] Section 922 retains the common law
distinction between second degree murder, which requires a killing with
malice aforethought, and first degree murder, which in addition to malice
aforethought requires a killing with premeditation and deliberation.”).
       14
            Rosa does not claim that this charge was erroneous.
       15
         The jury made a reasonable assessment and quite
understandably distinguished between the defendants given the evidence
presented at trial. The evidence indicates that Ramos did not stab
Glasgow with the machete’s blade, but rather struck him with its blunt

                                    17
could reach a contrary conclusion as the court made it clear that if
either defendant intended to kill Glasgow he was guilty of murder.
Thus, the jury clearly drew a distinction between the actions of Ramos
and those of Rosa because in returning a verdict of first-degree
murder against Rosa it necessarily concluded that he possessed malice
aforethought and acted with premeditation and deliberation.

        The jury’s differential treatment of the two defendants
demonstrates its cognizance that the government had the burden to
prove that a defendant had the intent to kill if it was to convict him of
first-degree murder. Though we think it evident that in convicting
Ramos of the lesser offense of voluntary manslaughter the jury
concluded that he did not possess malice and accordingly did not
possess an intent to kill Glasgow, we are satisfied that in finding Rosa
guilty of murder, it concluded that he did act with malice
aforethought. In other words, if the jury did not believe that the Rosa
had possessed an intent to kill when causing the death of Glasgow, it
would not have found him guilty of murder but rather would have
treated him as it did Ramos, and accordingly found him guilty of
voluntary manslaughter. We are convinced that the jury understood
clearly the differing levels of intent necessary to prove voluntary
manslaughter and first-degree murder, and found that Rosa possessed
malice aforethought.

        This conclusion, however, does not end our inquiry into
whether the erroneous instruction was prejudicial. Rosa, mirroring
the district court’s opinion, argues that notwithstanding the jury’s
differential treatment between Rosa and Ramos, Rosa may have been
convicted on a lesser proof standard than mandated under our
jurisprudence. He argues it is reasonably likely that jury found malice
not by concluding that Rosa had an intent to kill, but rather by
concluding that he had an “intent willfully to act in callous and
wanton disregard of consequences of human life.” See appellee’s br.
at 9; app at 19. Inasmuch as premeditation is an element of first-
degree murder, Rosa’s argument hypothesizes that the jury decided
that he acted with premeditation, but convicted him of first-degree
murder by following the erroneous instruction regarding “inflict[ing]


edge. Additionally, as the government noted at oral argument, the
impact of the 2 x 2 on Glasgow’s skull caused his death. The jury could
have regarded these factors as a basis to hold that Ramos did not exhibit
an intent to kill Glasgow, as well as to distinguish Rosa’s more violent
actions.

                                   18
serious injury.” Id.

        The possibility that the jury employed this rationale as its basis
to convict Rosa for first-degree murder is not only not “reasonably
likely,” it is extremely remote if possible at all. In determining the
constitutional validity of jury instructions, a court should not view an
individual instruction discretely, but rather should consider the
instructions in the context of the overall charge. Cupp v. Naughten,
414 U.S. 141, 146-47, 94 S.Ct. 396, 400 (1973). We, therefore,
extend our inquiry to the instructions as a whole. Rosa does not
contend that the court did not instruct the jury correctly on the
requirements of finding “premeditation.” See app. 188-89 (“Any
interval of time between the forming of the specific intent to kill and
that execution of that intent which is of sufficient duration for the
accused to be truly conscious and mindful of what he intended
willfully to set about to do is to justify a finding of premeditation.”)
(emphasis added).16 Moreover, the court told the jury that
premeditation is “typically associated with murder in cold blood . . . .”
App. at 189. The court, therefore, clearly instructed the jury and
correctly indicated that the only manner in which it could find
premeditation was, in part, by concluding that Rosa had formed a
specific intent to kill.17

        In reaching our conclusion, “[w]e must assume that juries for
the most part understand and faithfully follow instructions.”
Connecticut v. Johnson, 460 U.S. 73, 85 n.14, 103 S.Ct. 969, 977,
n.14 (1983). Therefore, it is implicit in the jury’s finding of
premeditation that it found that Rosa had a specific intent to kill.
Accordingly, it follows that the jury’s finding of first-degree murder
incorporated a conclusion that Rosa possessed a specific intent to kill
Glasgow and did not merely intend to injure him seriously, as it would
be far fetched to conclude that the jury believed that he had a specific
intent to kill for purposes of premeditation but not for the purposes of


       16
         In his brief Rosa indicates that “the premeditation instruction
was also independently correct.” Appellee’s br. at 8.
       17
          The district court in its opinion said that it found “further
evidence that the error influenced the jury’s deliberations in such a way
as to prejudice Rosa by contrasting the jury’s verdict in Ramos’ case, in
which they found him guilty of the lesser crime of voluntary
manslaughter.” App. at 22-23. The court, however, did not explain why
it reached this conclusion.

                                   19
malice aforethought. We conclude, therefore, that the jury, in fact, did
reach the conclusion that Rosa possessed a specific intent to kill when
he unlawfully killed Glasgow. We therefore cannot agree with the
district court’s holding that there was a reasonable likelihood that the
jury convicted Rosa of first-degree murder under a lower burden of
proof threshold than the law requires. Overall, therefore, taking into
account all of the circumstances that we have described, we hold that
the jury instructions, though erroneous, did not result in a plain error.



                          IV. CONCLUSION

        For the foregoing reasons, we will reverse the district court
order of March 11, 2004, reversing the conviction and reinstate the
judgment of conviction and sentence entered in the territorial court.
We are aware, however, that in the district court Rosa argued as an
alternative basis to reverse that the evidence was insufficient for the
jury to find him guilty of first-degree murder. In view of its
disposition of the appeal the district court did not reach this point and
inasmuch as Rosa has not argued the insufficiency of the evidence
point as an alternative basis to uphold the district court’s result, the
parties’ briefs do not address whether the evidence was sufficient.18
In the circumstances we will remand the case to the district court to
allow Rosa to renew the sufficiency of the evidence argument but we
do so without prejudice to the government being free to argue that by
not raising the evidence issue in this court Rosa has waived it, a point
on which we express no opinion. On the remand Rosa also may
renew any other arguments that he raised in the district court subject
again to the government being free to argue that Rosa has waived the
contentions.

                                  ____


       18
          The district court should have addressed the insufficiency of the
evidence point regardless of its outcome predicated on the erroneous
charge because if the evidence was insufficient a retrial on the first-
degree murder charge would be barred on Double Jeopardy principles
and the appropriate result would be to enter an acquittal on that charge.
See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150-51
(1978); see also United States v. Cartwright, 359 F.3d 281, 291 (3d Cir.
2004). Thus, a reversal on the evidence point would limit the retrial to
the lesser included offenses.

                                    20
