                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-9-2008

USA v. Silveus
Precedential or Non-Precedential: Precedential

Docket No. 07-3544




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                                            PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ___________

                         No. 07-3544
                         ___________

              UNITED STATES OF AMERICA

                               v.

                    ROZALINE SILVEUS,

                                             Appellant
                         ___________

              On Appeal from the District Court
                      for the Virgin Islands
                       (No. 06-cr-00065-2)
          District Judge: Honorable Curtis V. Gomez
                          ___________

                     Argued May 8, 2008

             Before: RENDELL, FUENTES, and
                CHAGARES, Circuit Judges

              (Opinion Filed: September 9, 2008)

Everard E. Potter, Esq.     (Argued)
Office of United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
USVI, 00802-6924

      Counsel for Appellee



                              -1-
David J. Cattie, Esq.      (Argued)
Ogletree, Deakins, Nash, Smoak & Stewart
1336 Beltjen Road, Suite 201
Charlotte Amalie, St. Thomas
USVI, 00802-0000

       Counsel for Appellant


                   OPINION OF THE COURT


FUENTES, Circuit Judge:

       Rozaline Silveus’s cohabitant and boyfriend, Dorsainvil
Jean, failed to report for deportation, prompting a search by
immigration authorities. After agents failed to find Jean at their
residence, an immigration agent received an anonymous tip that
Silveus and Jean were transporting illegal aliens from St. John to
St. Thomas on a ferry. The primary issues on appeal are the
constitutional validity of the subsequent seizure and arrest of
Silveus on the ferry, and the sufficiency of the evidence to support
Silveus’s convictions for harboring Jean at their apartment and
transporting illegal aliens. Because immigration officials had
reasonable suspicion that Silveus would be transporting an illegal
alien and fugitive, her seizure and arrest were lawful. However, we
conclude that the evidence produced at trial was insufficient to
support Silveus’s harboring conviction.

                                 I.

       While the appellant in this case is Rozaline Silveus, the
factual history begins with the search for her boyfriend and
codefendant, Dorsainvil Jean. Jean, a Haitian national, was denied
asylum and ordered to depart the United States on February 8,
2006. However, Jean violated this order and remained in the
Virgin Islands, prompting a search by agents from Immigration and
Customs Enforcement (“ICE”). ICE was familiar with both Jean
and Silveus, who were in business together filing asylum papers
and serving as translators for recently arrived Haitian aliens.

                                -2-
       Sometime in early April 2006, ICE followed a lead to Jean
and Silveus’s apartment in St. Thomas, where they had been living
under a joint lease entered into before Jean was ordered to depart
the United States. Agent Michael Harrison, one of two agents who
visited Silveus’s apartment, testified that “[a]s I approached the
apartment, I heard the door of the apartment slam. Then I heard
bushes break. And as I rounded the corner, I saw Ms. Silveus
shutting the front door. . . . She opened the window and talked to
me through the window.” App. 157-58. Silveus allegedly stated
that Jean was not in the apartment and that she “didn’t know” if
anyone had run out of the apartment prior to the agents’ arrival.
App. 158. She refused the officers’ request to look in the
apartment for his personal belongings. Agent Harrison and another
agent returned to the apartment the following month, but were told
by the landlord’s daughter that Silveus and Jean were not present.

        Four months later, on September 15, 2006, Agent Harrison
received a phone call at his office from an anonymous informant,
who stated that Jean and Silveus were in St. John to pick up illegal
aliens and transport them in Silveus’s SUV to St. Thomas via car
ferry, a journey of about four miles. The informant identified Jean
and Silveus by name, and identified the license plate number and
color of Silveus’s SUV. According to Agent Harrison’s testimony
at a suppression hearing, he received a similar tip from a person
with an identical voice two weeks earlier, leading him to believe
that this was the same informant. Agent Harrison testified that he
“gave all the information to the Deportation Section, and because
[Jean] was illegally in the country, [two agents, Roy Rogers and
Jason Allen,] were dispatched” to the St. Thomas landing point to
intercept the ferry from St. John. App. 59.

       When the ferry arrived, Agents Rogers and Allen prevented
all passengers from disembarking, then boarded the boat and
located the SUV that had been identified by the informant. The
agents observed Silveus in the driver’s seat, a pair of pants on the
passenger seat, and two individuals, later identified as Marctenson
Marc and Marie Dana Supreme, in the back seat. Marc and
Supreme could not speak English and could not communicate with
the agents. According to Agent Harrison’s suppression hearing
testimony, although Marc and Supreme were inside Silveus’s SUV,

                                -3-
their clothing was wet, suggesting that they had been in the water
before boarding the ferry. This testimony was unopposed by
defense counsel at the suppression hearing, but, at trial, both Marc
and Supreme testified that they were wearing dry clothing. One of
the arresting officers, Agent Rogers, could not recall at trial
whether Marc and Supreme were wearing wet clothing, but he
stated that they appeared “nervous,” “scared,” and “disoriented.”
App. 326-27.

       Agent Rogers also testified at trial that he asked Silveus
where Jean was and she responded that he remained behind in St.
John. The agents did not believe Silveus and wanted to obtain a
translator to question Marc and Supreme, so they detained all three
passengers in the agents’ van and removed the SUV from the ferry.
Shortly thereafter, the agents spotted Jean treading water near the
ferry. After arresting him, they brought all four detainees and
Silveus’s SUV to the immigration office, where Marc and Supreme
promptly admitted through a translator that they were illegal aliens
from Haiti.

       Two days after Silveus’s arrest, Agent Harrison conducted
an inventory search of the SUV and found Haitian identification
documents under the front passenger floor mat for Marc and at
least one other Haitian, Gordany Vancol. Sometime thereafter,
Vancol applied for asylum and informed agents that he too was in
Silveus’s SUV, but was concealed in the rear of the vehicle. He
stated at trial that he escaped undetected while the agents were
apprehending Jean.

       A federal grand jury returned a joint indictment against Jean
and Silveus, charging Silveus with three counts of aiding and
abetting the transportation of three illegal aliens—Supreme, Marc,
and Vancol—in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). In
addition, Silveus was charged with one count of harboring and
shielding Jean at their apartment in St. Thomas in violation of 8
U.S.C. § 1324(a)(1)(A)(iii).1


       1
        Jean was charged with three counts of transporting illegal
aliens and one count of failing to report for deportation.

                                -4-
        On the morning of trial, Silveus moved to suppress the
evidence seized from her car, arguing that the initial seizure of the
ferry and her subsequent arrest violated her Fourth Amendment
rights. This motion was denied, and the case proceeded to trial.

       Following the close of the government’s case-in-chief,
Silveus moved for an acquittal under Federal Rule of Criminal
Procedure 29, alleging that the government produced insufficient
evidence to support a conviction. The District Court denied this
motion. After both parties rested, the jury returned a guilty verdict
on all counts. Silveus then filed post-trial motions requesting
reconsideration of the motion to suppress, the motion for acquittal
under Rule 29, and seeking a new trial under Rule 33 because “the
interest of justice so requires.” Fed. R. Crim. P. 33. The District
Court denied these motions, and sentenced Silveus to 16 months’
imprisonment.

       Silveus appeals. She challenges the District Court’s denial
of her motion to suppress, motion to acquit, and motion for a new
trial. She also argues that she was denied the right to present a
defense because the District Court improperly curtailed her cross-
examination of Agent Harrison regarding a previous prosecution of
her co-defendant, Jean.2

                                 II.

        Silveus challenges the District Court’s denial of her motion
to suppress the evidence seized from her vehicle. She argues that
the identification documents found under the front floor mat, and
the testimony of Marc and Supreme, were all obtained as a result
of an unlawful seizure. In denying the motion to suppress, the
District Court stated that

       given the totality of the circumstances, the Court


       2
       The District Court exercised original jurisdiction over this
case pursuant to 48 U.S.C. § 1612(a) and 18 U.S.C. § 3231. We
have appellate jurisdiction under 28 U.S.C. § 1294(3) and 28
U.S.C. § 1291.

                                -5-
       [concludes] that the tip received . . . by Agent
       Harrison about someone being Mr. Dorsainvil Jean
       in this case, and the possibility of transportation of
       illegal immigrants, certainly if no place else, at the
       border, [permitted] the agents [to] make an inquiry,
       which is what they did.

       And the Court finds that the inferences made from
       what they observed were reasonable inferences, and
       the arrest was proper. And so the search incident to
       that arrest was proper.

App. 78-79.3 We “review[] the district court’s denial of the motion
to suppress for ‘clear error as to the underlying facts, but exercise
plenary review as to its legality in light of the court’s properly
found facts.’” United States v. Riddick, 156 F.3d 505, 509 (3d Cir.
1998) (quoting United States v. Inigo, 925 F.2d 641, 656 (3d Cir.
1991)) (alterations omitted).

        The Fourth Amendment protects individuals from
“unreasonable searches and seizures.” U.S. Const. amend IV. Our
analysis necessarily begins by identifying the moment when
Silveus was first “seized.” We then must determine whether that
seizure was reasonable, i.e., whether there was reasonable
suspicion of criminal activity. See United States v. Mosley, 454
F.3d 249, 257 (3d Cir. 2006). A seizure occurs “when [an] officer,
by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19
n.16 (1968); see also United States v. Williams, 413 F.3d 347, 352
(3d Cir. 2005). In this case, a seizure occurred when the agents,
through a show of authority, prevented Silveus from disembarking


       3
         In the alternative, the District Court held that the search
was a proper border search. See United States v. Ramsey, 431
U.S. 606, 619 (1977). At oral argument the government distanced
itself from this holding, presumably because the ferry was
traveling between two United States ports. Because we conclude
that the search and seizure was constitutional on other grounds, we
need not address the District Court’s alternative holding.

                                -6-
the ferry. Cf., Mosley, 454 F.3d at 253 (“[I]t is settled law that a
traffic stop is a seizure of everyone in the stopped vehicle.”).

       Generally, warrantless searches and seizures are per se
unreasonable under the Fourth Amendment. See Williams, 413
F.3d at 351. However, there are several exceptions to this rule.
The parties agree that the proper focus in this case is whether the
exception for short investigatory stops, or Terry stops, is applicable
to Silveus’s initial seizure.

        The Fourth Amendment permits law enforcement to stop
vehicles briefly for further investigation when there is reasonable
suspicion that criminal activity may be afoot. See Alabama v.
White, 496 U.S. 325, 328-30 (1990). Reasonable suspicion
requires “‘some minimal level of objective justification’ for
making the stop.” White, 496 U.S. at 329-30 (quoting INS v.
Delgado, 466 U.S. 210, 217 (1984)). This is a lower hurdle than
the probable cause necessary to obtain a search warrant, given the
lesser infringement on an individual’s liberty. “[P]robable cause
means ‘a fair probability that contraband or evidence of a crime
will be found,’ and the level of suspicion required for a Terry stop
is obviously less demanding than for probable cause.” Id. at 330
(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). While the
standards are different, both reasonable suspicion and probable
cause require the Court to consider the totality of the
circumstances. Id. When one circumstance leading to a Terry stop
is an anonymous tip of criminal activity, we consider its degree of
reliability. As the Supreme Court stated in White, “if a tip has a
relatively low degree of reliability, more information will be
required to establish the requisite quantum of suspicion than would
be required if the tip were more reliable.” Id. By “information,”
White implies corroborative information known to or discovered
by the police, which can, when coupled with the tip, create
reasonable suspicion to make a stop. See id. at 329-30.

       In this case, the ICE agents had reasonable suspicion that
Jean, a fugitive, would be on the ferry, and that Silveus would be
transporting him. The ICE agents were familiar with both Silveus
and Jean because they filed asylum papers and translated for
asylum applicants who often appeared at ICE’s offices in St.

                                 -7-
Thomas. The agents were aware that Silveus and Jean lived
together and were involved in a romantic relationship. Finally,
they knew that Jean’s asylum application had been denied and he
had failed to report for deportation. The anonymous informant
identified Jean and Silveus by name, placed them together, and
identified Silveus’s car by color and license plate number. The tip
appeared to be reliable, given that it was corroborated by the
agents’ prior knowledge. At that point they had reasonable
suspicion that two crimes were being committed on the ferry:
Jean’s failure to report for deportation, and Silveus’s transportation
of Jean, an illegal alien and fugitive.

        Silveus cites to Florida v. J.L., 529 U.S. 266 (2000), as
support for her argument that the initial stop was made without the
requisite reasonable suspicion. In J.L., the police received an
anonymous tip that an unnamed black male in a plaid shirt was
standing at a bus stop with a gun. Id. at 268. Based solely on this
anonymous tip, two police officers approached three black males
standing near the bus stop, one of whom was wearing a plaid shirt.
Id. The officers frisked each of them, and found a gun in the
pocket of the male in the plaid shirt. Id. The Supreme Court noted
that the police officers only corroborated the defendant’s “readily
observable location and appearance,” while “[t]he reasonable
suspicion here at issue requires that a tip be reliable in its assertion
of illegality, not just in its tendency to identify a determinate
person.” Id. at 272. Because the Terry stop in that case was made
without reasonable suspicion of criminal activity, the Supreme
Court held that it violated the Fourth Amendment, warranting
suppression of the firearm.

       Unlike the tip in J.L., the anonymous tipster in the present
case provided information already known to the agents about
ongoing criminal activity: Jean’s continued failure to report for
deportation. The informant also stated that Jean and Silveus were
together in Silveus’s vehicle. Given the agents’ prior knowledge
of the close relationship between Silveus and Jean, these details
permitted a reasonable belief that the tip was in fact accurate. In
short, when the tipster identified Jean, Silveus, and Silveus’s
vehicle, given the agents’ prior knowledge, we believe they had a
“reasonable, articulable suspicion that criminal activity [was]

                                  -8-
afoot,” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry,
392 U.S. at 30), and they were justified in stopping Silveus from
disembarking the ferry so that they could investigate further.

        We have stated that following a valid investigatory stop, “an
officer who develops a reasonable, articulable suspicion of criminal
activity may expand the scope of an inquiry beyond the reason for
the stop and detain the vehicle and its occupants for further
investigation.” United States v. Givan, 320 F.3d 452, 458 (3d Cir.
2003); see also Mosley, 454 F.3d at 255 n.9 (“A traffic stop
requires only reasonable suspicion to believe that a traffic violation
has been committed. But detaining the vehicle longer than is
necessary to effectuate the legitimate response to that traffic
violation requires independent suspicion that some other crime is
afoot.”). That is precisely what happened in this case. Once Agent
Rogers located Silveus’s vehicle on the ferry, he observed that
there were pants on the empty front passenger seat and two visibly
nervous passengers in the rear who could not speak English. These
observations lent credence to the original tip that Silveus would be
transporting illegal aliens in her SUV on the ferry. While the initial
Terry stop was justified by a reasonable suspicion of Jean’s
continued failure to report for deportation and Silveus’s
transporting of Jean, the officers developed an independent
suspicion, once on the ferry, that Silveus was transporting other
illegal aliens.

       Silveus’s primary argument in challenging the validity of
her subsequent arrest is that the District Court placed undue
reliance on the wetness of the aliens’ clothes, a finding suggested
at the suppression hearing, but later undermined at trial. In
reviewing the denial of a motion to suppress evidence, “this court
may look at the entire record; it is not restricted to the evidence
presented at the suppression hearing where the motion was
denied.” Gov’t of Virgin Islands v. Williams, 739 F.2d 936, 939
(3d Cir. 1984). Even absent the suppression hearing testimony
regarding Marc and Supreme’s wet clothing, there was still trial
testimony by Agent Rogers that Marc and Supreme appeared
“nervous,” “scared,” and “disoriented.” App. 326-27. We
conclude, in consideration of the totality of the circumstances, that
“the objective facts available to the officers at the time of arrest

                                 -9-
were sufficient to justify a reasonable belief that an offense was
being committed,” thereby justifying Silveus’s arrest. United
States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984).

       Finally, two days following Silveus’s arrest, Agent Harrison
found identification documents for several Haitian aliens during a
routine inventory search of Silveus’s impounded vehicle.
Inventory searches are excepted from the general warrant
requirement for several reasons: to protect the owner’s property
while it remains in police custody, to protect the police from claims
or disputes over lost property, and to protect the police from
potential danger. See South Dakota v. Opperman, 428 U.S. 364,
369 (1976). Silveus does not argue that the police “acted
unreasonably in impounding and removing the vehicle” following
a lawful arrest, United States v. Smith, 522 F.3d 305, 315 (3d Cir.
2008), and does not contest that the police can undertake an
inventory search following a lawful arrest and impoundment.
Rather, she only argues that the initial arrest was unlawful.
Because we reach the opposite conclusion, we will affirm the
District Court’s denial of the motion to suppress the evidence
found in Silveus’s vehicle.

                                 III.

        Silveus’s next contention is that the jury’s verdict rested on
insufficient evidence, warranting an acquittal under Federal Rule
of Criminal Procedure 29. We exercise plenary review over a
district court’s grant or denial of a motion for acquittal based on the
sufficiency of the evidence, applying the same standard as the
district court. United States v. Brodie, 403 F.3d 123, 133 (3d Cir.
2005). Hence, we apply “a particularly deferential standard of
review,” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)
(citations omitted), viewing “the record in the light most favorable
to the prosecution to determine whether any rational trier of fact
could have found proof of guilt beyond a reasonable doubt based
on the available evidence.” United States v. Smith, 294 F.3d 473,
476 (3d Cir. 2002) (quoting United States v. Wolfe, 245 F.3d 257,
262 (3d Cir. 2001)).

                                  A.

                                 -10-
        Silveus was indicted and convicted for three counts of
violating 8 U.S.C. § 1324(a)(1)(A)(ii) by aiding and abetting the
transportation of Marc, Supreme, and Vancol from St. John to St.
Thomas. Section 1324(a)(1)(A)(ii) penalizes a person who

               knowing or in reckless disregard of
               the fact that an alien has come to,
               entered, or remains in the United
               States in violation of law, transports,
               or moves or attempts to transport or
               move such alien within the United
               States by means of transportation or
               otherwise, in furtherance of such
               violation of law.

8 U.S.C. § 1324(a)(1)(A)(ii). To sustain a conviction under this
section, the government must prove that (1) the defendant
transported or attempted to transport an alien within the United
States, (2) the alien was in the United States illegally, (3) the
defendant knew of or recklessly disregarded the fact that the alien
was in the United States illegally, and (4) the defendant acted
willfully in furtherance of the alien’s violation of the law. See
United States v. Williams, 132 F.3d 1055, 1059 (5th Cir. 1998);
United States v. Parmelee, 42 F.3d 387, 391 & n. 5 (7th Cir. 1994);
see also United States v. Barajas-Chavez, 162 F.3d 1285, 1288
(10th Cir. 1999).

       Silveus challenges the sufficiency of the evidence with
respect to the fourth element: whether she acted willfully in
furtherance of Marc, Supreme, and Vancol’s violation of the law.
She argues that the evidence only proved that she was giving a ride
to the Haitians; it did not support a finding that she intended “to
deliberately assist an alien in maintaining his or her illegal presence
in this country.” Appellant’s Br. 24 (quoting United States v.
Stonefish, 402 F.3d 691, 695 (6th Cir. 2005) (citation and quotation
marks omitted)).

        The government produced several witnesses to testify about
the transporting charges. Rock Feller Sorel was a Haitian national
who traveled from St. Maarten to St. John on the same night as

                                 -11-
Marc, Supreme, and Vancol. He testified that soon after he arrived
in St. John at 2:00 A.M., Silveus and Jean approached him and the
other illegal aliens and collected identification documents and
money for transportation to St. Thomas. Next, both Marc and
Vancol testified that either Silveus or Jean collected their
identification documents before they got into Silveus’s SUV, which
she drove onto the ferry. Vancol additionally testified that Silveus
and Jean hid him in the rear of the vehicle prior to boarding the
ferry. Moreover, the government produced Haitian identification
documents that had been concealed underneath the front passenger
side floor mat of Silveus’s vehicle. Finally, the jury was informed
that Silveus was in the business of filing asylum papers and
translating for Haitian aliens, which supported the government’s
theory that Silveus and Jean transported the illegal aliens not as a
friendly gesture, but rather to develop their client base.

        Given the evidence presented at trial, a rational juror could
have concluded that Silveus acted with the intent to further Marc,
Supreme, and Vancol’s illegal presence in the United States. We
will therefore affirm the District Court’s denial of Silveus’s motion
to dismiss the transporting conviction for insufficiency of the
evidence.

                                 B.

       Silveus was also charged with, and convicted on, one count
of harboring Jean “within an apartment at 5-24 Estate Sorgenfri”
from “February 8, 2006 up to and including September 15, 2006,”
in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). App. 22. The
relevant section is violated if a person,

       knowing or in reckless disregard of the fact that an
       alien has come to, entered, or remains in the United
       States in violation of law, conceals, harbors, or
       shields from detection, or attempts to conceal,
       harbor, or shield from detection, such alien in any
       place, including any building or any means of
       transportation.

8 U.S.C. 1324(a)(1)(A)(iii). To sustain a conviction under this

                                -12-
section, the government must prove “conduct tending substantially
to facilitate an alien’s remaining in the United States illegally and
to prevent government authorities from detecting [the alien’s]
unlawful presence.” United States v. Ozcelik, 527 F.3d 88, 99 (3d
Cir. 2008) (quotation marks and alteration omitted).

        Silveus knew that Jean was an illegal alien in the United
States. Therefore, the only issue on appeal is whether Silveus
“harbored” him at her apartment, as charged in the indictment. The
government does not dispute that cohabitation with Jean, taken
alone, does not constitute “harboring” within the meaning of the
statute. Rather, the government asserts that there was sufficient
evidence for a reasonable juror to conclude that Silveus violated
the harboring provision of § 1324 in early April when Agent
Harrison visited the apartment looking for Jean. The government’s
only evidence offered at trial to support the harboring conviction
is Agent Harrison’s testimony:

       Q.     And when you went [to the apartment]
              searching for [Jean], what, if anything,
              happened?

       ***

       A.     As I approached the apartment, I heard the
              door of the apartment slam. Then I heard
              bushes break. And as I rounded the corner, I
              saw Ms. Silveus shutting the front door.

       Q.     And when you saw Ms. Silveus shutting the
              front door, what, if anything, did you do?

       A.     She opened the window and talked to me
              through the window. . . . I asked her if
              Dorsainvil Jean was in the apartment. And
              she told me, no. And I asked her if any of his
              personal belongings were in the apartment.
              Could I come in and look. And she told me,
              no.



                                -13-
       Q.     Did you ask her any questions regarding your
              observations of the bushes?

       A.     Yes, sir. I asked if anybody had run out of
              the apartment. And she said she didn’t know.

App. 157-58. Agent Harrison later stated that Silveus “more or less
shut the door in my face.” App. 227. Based on this account, the
District Court denied Silveus’s Rule 29 motion, stating that “there
was testimony that Ms. Silveus, I believe, slammed the door or
closed the door in the face of Agent Harrison. The jury could infer
from that . . . she has reasonable control over the premises.” App.
418.

       Reasonable control of the premises, however, is not an
element of “harboring” under § 1324. Rather, the government had
to prove that Silveus’s “conduct tend[ed] substantially to facilitate
[Jean’s] remaining in the United States illegally and to prevent
government authorities from detecting his unlawful presence.”
Ozcelik, 527 F.3d at 99 (quotation marks and alteration omitted).

        After giving the government the benefit of every reasonable
inference, we find Agent Harrison’s testimony insufficient for a
reasonable juror to find, beyond a reasonable doubt, that Silveus’s
conduct constituted “harboring” within the meaning of § 1324.
Agent Harrison conceded at trial that he never saw Jean on the day
he went to the apartment. Hence, to conclude that Silveus was
“harboring” Jean, a juror would have to conclude that Jean ran out
of the apartment based on Agent Harrison’s account of the noises
in the bushes, the fact that Silveus was shutting the door as Agent
Harrison rounded the corner, and Agent Harrison’s testimony that
Silveus said she “didn’t know” whether anybody had run out of the
apartment. App. 157-58.4 A jury may use circumstantial evidence


       4
         At oral argument, the government suggested that there was
sufficient evidence for the jury to conclude that Jean was running
into the apartment, rather than out of the apartment. To accept that
conclusion, however, the jury would have to disagree with the
government’s only witness, who presumed that Jean was running

                                -14-
to support reasonable inferences of fact. See United States v.
McNeill, 887 F.2d 448, 450 (3d Cir. 1989) (“Inferences from
established facts are accepted methods of proof when no direct
evidence is available so long as there exists a logical and
convincing connection between the facts established and the
conclusion inferred.”). But in this case the evidence supports no
more than mere speculation as to Jean’s presence.

       We conclude that no reasonable juror could have found
Silveus guilty of harboring Jean at their joint apartment based on
the evidence presented at trial. Because the harboring conviction
is based on legally insufficient evidence, we will reverse the denial
of the Rule 29 motion as to that charge, and vacate Silveus’s
conviction for harboring Jean in violation of § 1324.

                                 V.

        Silveus next contends that the District Court erred in
denying her motion for a new trial on her conviction for aiding and
abetting the transportation of illegal aliens, arguing that Vancol’s
testimony was perjured.5 Federal Rule of Criminal Procedure 33
provides that “[u]pon the defendant’s motion, the court may vacate
any judgment and grant a new trial if the interest of justice so
requires.” Fed. R. Crim. P. 33. “Unlike an insufficiency of the
evidence claim, when a district court evaluates a Rule 33 motion it
does not view the evidence favorably to the Government, but
instead exercises its own judgment in assessing the Government’s
case.” United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002).
However, even if a district court believes that the jury verdict is
contrary to the weight of the evidence, it can order a new trial “only
if it believes that there is a serious danger that a miscarriage of
justice has occurred—that is, that an innocent person has been
convicted.” Id. (citation and quotation marks omitted). We review
the denial of a motion for a new trial pursuant to Rule 33 for abuse


out of the apartment.
       5
        Silveus also moved for a new trial on her harboring
conviction. Because we are dismissing that conviction for
insufficient evidence, we need not consider it in this section.

                                -15-
of discretion. United States v. Jasin, 280 F.3d 355, 360 (3d Cir.
2002). Such motions are not favored and should be “granted
sparingly and only in exceptional cases.” Gov’t of Virgin Islands
v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987) (citations omitted).

       Silveus argues that Vancol’s story that he was in the car but
unnoticed by the agents was “so incredible as to deny any
indication that the jury actually considered the facts when entering
its verdict.” Appellant’s Br. 30. We disagree. Given Vancol’s
testimony that he was concealed in the back of Silveus’s SUV, and
the fact that Vancol’s identification documents were found under
the front passenger floor mat, the District Court did not abuse its
discretion in rejecting Silveus’s argument that the jury verdict was
against the weight of the evidence. We will therefore affirm the
District Court’s denial of Silveus’s motion for a new trial pursuant
to Rule 33.

                                VI.

       Silveus’s final argument is that the District Court violated
her Sixth Amendment right of confrontation when it limited her
cross-examination of Agent Harrison regarding potential bias, and
therefore abused its discretion by not granting her motion for a
severance. In particular, Silveus wanted to question Agent
Harrison about a prior prosecution of Jean, which resulted in an
acquittal. Agent Harrison, she argues, felt personally insulted by
the acquittal. When Jean failed to depart the United States, Agent
Harrison obsessively pursued him, frequently requesting that
Silveus turn him over to the immigration authorities. In addition,
Silveus contends that Agent Harrison made romantic passes at
Silveus. According to Silveus, “[w]hen [she] would not submit to
[Agent] Harrison’s advances and requests, she too became a
subject of Harrison’s obsession, resulting, ultimately, in her arrest,
conviction, and possible deportation.” Appellant’s Br. 61.

       During trial, counsel for Jean objected to Silveus’s questions
concerning Jean’s prior prosecution. The District Court sustained
these objections, finding that testimony regarding Jean’s prior
prosecution would be more prejudicial than probative. See Fed R.
Evid. 403 (“Although relevant, evidence may be excluded if its

                                -16-
probative value is substantially outweighed by the danger of unfair
prejudice . . . .”). The District Court explained the scope of its
limitation: “If you want to explore bias, you can do that. If you
want to question this witness’s credibility, you can do that. But
what you cannot do, I’ll just make it clear, is go into a prior
prosecution.” App. 199. We review both a district court’s denial
of a motion for a severance and limitation on cross-examination for
abuse of discretion. United States v. Balter, 91 F.3d 427, 433 (3d
Cir. 1996); United States v. Ellis, 156 F.3d 493, 498 (3d Cir. 1998).

        “There is a preference in the federal system for joint trials
of defendants who are indicted together,” because “[t]hey promote
efficiency and ‘serve the interests of justice by avoiding the scandal
and inequity of inconsistent verdicts.’” Zafiro v. United States, 506
U.S. 534, 537 (1993) (quoting Richardson v. Marsh, 481 U.S. 200,
210 (1987)). Nevertheless, Federal Rule of Criminal Procedure
14(a) states that “[i]f the joinder of . . . defendants . . . for trial
appears to prejudice a defendant . . . , the court may . . . sever the
defendants’ trials, or provide any other relief that justice requires.”
Id. The Supreme Court has declined to adopt a bright-line rule for
severance anytime defendants have conflicting defenses. Zafiro,
506 U.S. at 538. Instead, the Supreme Court has instructed that
trial courts should grant a severance under Rule 14 “only if there
is a serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at
539.

        The question presented, then, is whether the District Court’s
limitation on cross-examination compromised Silveus’s right to
confrontation. The Confrontation Clause of the Sixth Amendment
guarantees the right of a criminal defendant “to be confronted with
the witnesses against him.” U.S. Const. amend. VI. The Supreme
Court has held that “[t]he main and essential purpose of
confrontation is to secure for the opponent the opportunity of
cross-examination.” Davis v. Alaska, 415 U.S. 308, 315-316
(1974) (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed.
1940)). Moreover, “exposure of a witness’ motivation in testifying
is a proper and important function of the constitutionally protected
right of cross-examination.” Id. at 316-317 (citing Greene v.

                                 -17-
McElroy, 360 U.S. 474, 496 (1959)). Nevertheless, “trial judges
retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.”
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

        In United States v. Chandler, 326 F.3d 210 (3d Cir. 2003),
we established a two-part test to determine whether a judge’s
limitation on cross-examination violates the Confrontation Clause:

       First, we must determine whether that ruling
       significantly inhibited [a defendant’s] effective
       exercise of her right to inquire into [the] witness’s
       ‘motivation in testifying’; and second, if the District
       Court’s ruling did significantly inhibit [the
       defendant’s] exercise of that right, whether the
       constraints it imposed on the scope of [the]
       cross-examination fell within those ‘reasonable
       limits’ which a trial court, in due exercise of its
       discretion, has authority to establish.

Id. at 219.

        We conclude that the District Court’s limitations did not
inhibit Silveus’s effective exercise of her right to inquire into bias,
and therefore the District Court did not abuse its discretion by
limiting Silveus’s cross-examination of Agent Harrison. Silveus
claims that she became “a subject of Harrison’s obsession” only
after she refused to “submit to Harrison’s advances and requests.”
Appellant’s Br. 61. Up until that time, Silveus contends that Agent
Harrison sought a romantic relationship and her assistance in
apprehending Jean for his failure to depart. Silveus inquired about
Agent Harrison’s requests that Silveus break up with Jean, turn him
over to the authorities, and date Agent Harrison instead:

       Q.      [O]n several occasions you asked Ms. Silveus
               to – you told her that she should cease her
               relationship with Mr. Jean; is that correct?

                                 -18-
       A.      I don’t believe I used those words.

       Q.      What words did you in fact use, sir?

       A.      I asked her to have Mr. Jean turn himself in.

       Q.      And was that the limit of your conversations
               with Ms. Silveus?

       A.      Yes, sir. It was just in passing.

       Q.      Did you ever have occasion to ask Ms.
               Silveus out on a date?

       A.      Never.

App. 205. Silveus was only precluded from questioning Agent
Harrison about Jean’s prior prosecution, and this reasonable
limitation did not “significantly inhibit” her “effective exercise of
her right to inquire into [the] witness’s ‘motivation in testifying.’”
Chandler, 326 F.3d at 219. Therefore, we conclude that the
District Court did not abuse its discretion by limiting Silveus’s
cross-examination of Agent Harrison.

                                VII.

        For the foregoing reasons, we will affirm the District
Court’s denial of Silveus’s suppression motion, motion to dismiss
the transporting convictions for insufficiency of the evidence, and
motion for a new trial under Rule 33. We also conclude that the
District Court did not abuse its discretion by limiting Silveus’s
cross-examination of Agent Harrison. However, we will reverse
Silveus’s conviction for harboring Jean at their apartment, because
the government produced insufficient evidence at trial to support
a conviction.




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