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


12-12-2008

Government of the Vi v. Hewitt Pereira
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1719




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                                      NOT PRECEDENTIAL
         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   _____________

                      No. 08-1719
                     _____________

      GOVERNMENT OF THE VIRGIN ISLANDS,

                            v.

                   HEWITT PEREIRA,

                                 Appellant.
                     _____________

               On Appeal from the District Court
           of the Virgin Islands - Appellate Division
                   (D.C. No. 03-cr-035-001)
   District Judges: Raymond L. Finch and Curtis V. Gomez
           Superior Court Judge: Audrey L. Thomas
                       _______________

        Submitted Under Third Circuit LAR 34.1(a)
                   December 9, 2008

Before: FISHER, JORDAN and STAPLETON, Circuit Judges,

                (Filed: December 12, 2008)
                     _______________

                OPINION OF THE COURT
                    _______________
JORDAN, Circuit Judge.

       Hewitt Pereira appeals the decision of the Appellate Division of the District Court

of the Virgin Islands affirming his conviction for assault in the first degree and possession

of a dangerous weapon during the commission of a crime of violence. On appeal, Pereira

contests the sufficiency of the evidence against him, argues that the government did not

initiate the criminal charges against him until after the statute of limitations had run, and

asserts that the government’s delay in filing the charging information violated his due

process rights. Because we find that there was sufficient evidence to convict Pereira, that

the information charging him was filed within the statute of limitations, and that the

government’s delay in filing the information did not violate his due process rights, we

will affirm.

I.     Background

       On August 13, 1999, Granville Freeman was shot multiple times by two armed

assailants. Three years later to the day, the Government of the Virgin Islands filed an

information based on the shooting, charging Hewitt Pereira with assault in the first

degree, two counts of possession of a deadly weapon during the commission of a crime of

violence, and two counts of unauthorized possession of a firearm. The information was

accompanied by an affidavit prepared by Detective Richard Matthews but signed by

Sergeant Stephen Brown.




                                              2
       At trial in the Superior Court of the Virgin Islands, Freeman testified that he and

his then girlfriend, now wife, Raytricia Bermudez Freeman (“Bermudez”) were

approached from behind by Pereira and an accomplice named Aswad Moe. Moe’s face

was fully visible but Pereira’s was obscured by a nylon stocking pulled over it. Both men

had hand guns. Moe shot Freeman twice in the back and twice in the leg, while Pereira

held his gun to Bermudez’s head. Then Pereira shot Freeman twice in the side before

fleeing with Moe.

       Freeman testified that, despite the stocking mask, he could identify Pereira as the

second assailant. He explained that he had known Pereira since seventh grade, was very

familiar with him because they were long-time enemies, and recognized him from his

body type and the braids in his hair. In addition, Freeman indicated that he had seen

Pereira and Moe together in a car shortly before the shooting.

       Bermudez also took the stand. She identified Moe as one of the shooters but could

not identify the second shooter because his face was covered by the stocking mask. She

did testify, however, that the second shooter was the same height and had the same build,

skin color, and complexion as Pereira.

       At the conclusion of the trial, a jury convicted Pereira of one count of assault in the

first degree in violation of 14 V.I.C. §§ 295(1) and 11, and one count of possession of a

dangerous weapon during a crime of violence, in violation of 14 V.I.C. § 2251(a)(2). He




                                              3
was sentenced to ten years imprisonment on the assault charge and three years

imprisonment on the possession charge, with the sentences to be served consecutively.

       Pereira appealed his conviction to the District Court of the Virgin Islands,

Appellate Division 1 and raised three issues. First, he argued that there was insufficient

evidence to convict him because neither Freeman nor Bermudez saw the second

assailant’s face. The Appellate Division reviewed the evidence presented at trial and

concluded that the testimony of Freeman and Bermudez provided sufficient evidence for

a reasonable juror to conclude that Pereira was the second assailant.

       Second, Pereira argued that, because the affidavit submitted with the information

was invalid, the government did not initiate the criminal proceedings within the statute of

limitations. Pereira raised that argument for the first time on appeal, and the Appellate

Division thus considered it under the plain-error standard. It determined that, under

Virgin Islands law, the government is not required to file a probable cause affidavit with

an information and that Pereira had not demonstrated that the information filed was

otherwise insufficient.




       1
        At the time of the appeal, the Appellate Division had appellate jurisdiction over
the Superior Court judgment pursuant to 48 U.S.C. § 1613a(a). If a Superior Court case
such as this were appealed today, it would proceed to the Supreme Court of the Virgin
Islands for appellate review. 4 V.I.C. § 32.

                                              4
       Finally, Pereira argued that the government’s pre-accusation delay violated his due

process rights.2 The Appellate Division noted that Pereira had not shown that he suffered

actual prejudice or that the government intentionally delayed filing the information to

gain a tactical advantage. The Court, therefore, rejected that argument. Having

addressed each of Pereira’s arguments, the Appellate Division affirmed his conviction.

       Pereira filed a timely notice of appeal and now challenges the Appellate Division’s

decision to affirm his conviction.

II.    Discussion

       We determine whether the Appellate Division erred by conducting an independent

review of the Superior Court’s decision. See Semper v. Santos, 845 F.2d 1233, 1235-36

(3d Cir. 1988) (“[I]t is only through an independent review of the trial court's findings that

the second appellate court can determine whether the first appellate court erred in its

review.”). We review the Superior Court’s decision using the same standard of review

applied by the Appellate Division. Tyler v. Armstrong, 365 F.3d 204, 208 (3d Cir. 2004).

In other words, we exercise plenary review over the Superior Court’s legal determinations




       2
         The Due Process Clause of the Fifth Amendment is expressly made applicable to
the Virgin Islands by the 1968 Amendments to the Revised Organic Act. 48 U.S.C. §
1561 (“The following provisions of and amendments to the Constitution of the United
States are hereby extended to the Virgin Islands to the extent that they have the same
force and effect there as in the United States or in any State of the United States ... the
first to ninth amendments inclusive... .”); see generally United States v. Hyde, 37 F.3d
116, 123 (3d Cir.1994).

                                              5
and review its findings of fact for clear error. Government of Virgin Islands v. Fahie, 419

F.3d 249, 252 (3d Cir. 2005).

          On appeal to this Court, Pereira makes the same arguments he made before the

Appellate Division. First, he claims that there was insufficient evidence for a rational jury

to find him guilty beyond a reasonable doubt. Second, he maintains that the criminal

proceedings against him were initiated after the statute of limitations had run. And finally,

he asserts that the government’s delay in filing the information violated his due process

rights.

          A.    Sufficiency of the Evidence

          Pereira argues that, because the second assailant was wearing a stocking mask and

neither witness saw the second assailant’s face, there was insufficient evidence for a

rational juror to conclude beyond a reasonable doubt that he was the second assailant.

          We review sufficiency of the evidence under a highly deferential standard. See

United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001). Under this standard, we examine

whether the evidence submitted at trial, when viewed in the light most favorable to the

government, would allow a rational trier of fact to convict the defendant. Id. (citing

United States v. Helbling, 209 F.3d 226, 238 (3d Cir.2000), cert. denied, 531 U.S. 1100,

121 S.Ct. 833, 148 L.Ed.2d 715 (2001); United States v. Coleman, 811 F.2d 804, 807 (3d

Cir. 1987)).




                                               6
       To recap the evidence, Freeman at trial testified that, despite the stocking mask, he

recognized Pereira as one of his assailants. He stated that he was very familiar with

Pereira, having been enemies with him since seventh grade, and recognized him from his

body type and braids. As Freeman explained it, “I mean, is like having your best friend,

you know. You know everything about your best friend. Same way about someone you

know that don’t like you is your enemy, you know everything about them. You know what

he looks like, how he walks, how he talks.” (JA at 192.) In addition, Freeman swore that

he saw Pereira and Moe together in a gray Honda Civic the evening of the shooting.

Specifically, he testified: “On the way back, I noticed a Honda Civic, a gray Honda Civic

that Aswad Moe and Hewitt Pereira or whoever else was in there used to come through

Harbor View looking for me.” (JA at 179.) Bermudez also took the stand and testified

that the assailant wearing the stocking mask was the same height and weight and had the

same build, complexion, and skin color as Pereira.

       Viewed in the light most favorable to the Government, this evidence is sufficient to

allow a rational trier of fact to convict Pereira.

       B.     Statute of Limitations

       Pereira argues that because the information was filed with an invalid affidavit, it

did not take effect within the statute of limitations period and should have been dismissed.

As the Appellate Division noted, Pereira did not raise that issue at the trial level. For an




                                                7
appellate court to correct an error not raised at trial, the error must be plain and must affect

substantial rights. United States v. Olano, 507 U.S. 725, 732-34 (1993).

       Pereira’s argument is based on a misunderstanding of the law. Under neither the

Federal Rules of Criminal Procedure 3 nor the Rules for the Superior Court of the Virgin

Islands, is the government required to submit a probable cause affidavit with an

information.4 Because the affidavit was not required, its defects did not keep the


       3
       See Fed. R. Crim. P. 7(c)(1) (stating required contents of an indictment or
information).
       4
         Virgin Islands Superior Court Rules 121(a) and 123(a)(5) govern the filing of
criminal complaints. Neither rule requires the government to file a probable cause
affidavit with a complaint.

       V.I. Super. Ct. R. 121(a) states:

       (a) Form of Complaint. The complaint is a written statement of the
       essential facts constituting the offense charged. It shall be made upon oath
       before the judge or the clerk of the court, or the Attorney General of the
       Virgin Islands or such Assistant Attorney General as the Attorney General
       shall authorize in writing, as well as any complaint clerk in the office of the
       Attorney General of the Virgin Islands.

       V.I. Super. Ct. R. 123(a)(5) states:

       (a)(5) Filing of Complaint. The Attorney General shall prepare a complaint
       form to be completed and filed with the Court prior to the Initial
       Appearance. The complaint shall recite the charge, the applicable statutory
       citation, and shall otherwise comply with the requirements of Superior
       Court Rule 121. It shall be sworn to prior to commencement of the Initial
       Appearance Hearing, and copies made available to all interested parties.

      We note that Pereira does not contend that the charging document itself was
unsworn, but rather that the officer who signed the affidavit could not properly have
sworn to the affidavit.

                                               8
information from validly initiating criminal proceedings against Pereira within the statute

of limitations. This is not to say that the government does not have to prove probable

cause; it simply is not required to do so at the filing of a charging information. The

Superior Court did not commit plain error and the Appellate Division correctly rejected

Pereira’s statute of limitations argument.

       C.     Pre-Accusation Delay

       Pereira alleges that the Government’s delay violated his due process rights because

by the time the information was filed he could no longer remember where he was on the

night of the shooting and was unable to find witnesses to support his alibi defense.

       To prevail on a due process claim based on the government’s delay in filing an

information, a defendant must prove both that the government intentionally delayed filing

charges to gain a tactical advantage and that he was actually prejudiced by the delay.

United States v. Gouveia, 467 U.S. 180, 192, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984);

United States v. Marion, 404 U.S. 307, 325-26, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

Pereira has not provided any evidence to substantiate his allegation that the government

intentionally delayed filing the information to gain a tactical advantage. In an attempt to

satisfy the second prong of the test, the “actual prejudice” requirement, Pereira claims that

he suffered actual prejudice because he does not remember where he was on the night of

the shooting and was unable to obtain witnesses to support an alibi defense. However, we

have explained that “contentions that the memories of witnesses [have] faded as a result of



                                              9
the delay fall[] short of the requisite showing of actual prejudice.” United States v.

Sebetich, 776 F.2d 412, 430 (3d Cir. 1985) (citing Marion, 404 U.S. at 325-26). Hence,

Pereira’s alleged memory lapse is insufficient to establish actual prejudice.

       As Pereira has failed to establish either intent or prejudice, the Appellate Division

correctly concluded that the government’s delay did not violate his due process rights.

III.   Conclusion

       The Appellate Division correctly analyzed and rejected Pereira’s arguments, and we

will affirm its decision.




                                             10
