                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-29-2002

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Precedential or Non-Precedential:

Docket 1-2780




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Govt of VI v. Bryan" (2002). 2002 Decisions. Paper 57.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/57


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                    NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                           No. 01-2780


                GOVERNMENT OF THE VIRGIN ISLANDS

                               v.

                        ADELBERT M. BRYAN,

                                    Appellant



                On Appeal from the District Court
            of the Virgin Islands - Appellate Division
                 (D.C. Criminal No. 98-cr-00171)
                            Hon. Raymond L. Finch, Chief Judge
                              Hon. Thomas K. Moore, District Judge
                              Hon. Alphonso G. Andrews, Territorial Judge


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                         December 6, 2001

  BEFORE: BECKER, Chief Judge, NYGAARD and COWEN, Circuit Judges

                     (Filed January 29, 2002)


                        MEMORANDUM OPINION


COWEN, Circuit Judge.
     In this criminal case involving a charge of destruction of property,
we are called
upon to review a judgment of guilty following a bench trial. Because we
discern no error
in the District Court Judgment, we will affirm.
                                I.
     On November 7, 1996, the Legislature of the Virgin Islands was in
session and
Defendant, Virgin Islands Senator Adelbert M. Bryan ("Bryan"), was in
attendance.
Also present was Steve Rockstein ("Rockstein"), an experienced
professional
photographer for the Daily News. Rockstein began taking pictures of
Bryan. Testimony
adduced at trial from several witnesses indicated that Rockstein's taking
of photographs
produced a rapid and incessant clicking or flashing effect.
     Bryan was upset with Rockstein's high level of photographic activity
and
complained to Senate President Almando Liburd. Senator Liburd directed
the Sergeant-
at-arms to stop Rockstein from taking further pictures. But Rockstein did
not heed the
request of the Sergeant-at-arms and continued to take pictures of Bryan.
At some point
Bryan approached Rockstein, grabbed the camera that Rockstein was using,
and threw it
to the floor. The sound of the camera hitting the floor was clearly
audible to people in
the vicinity.
     The Government of the Virgin Islands ("GVI") charged Bryan with
destruction of
property, in violation of 14 V.I.C.   1266. The criminal Complaint read,
in pertinent
part:
          On or about November 7, 1996 in St. Thomas, Virgin Islands,
Adelbert
     "Bert" Bryan, did maliciously injure or destroy personal property not
his
     own and belonging to the Daily News, to wit; a camera, in violation
of 14
     V.I.C. section 1266.

App. at 5.
     After a one-day bench trial in which many witnesses including experts
on camera
construction and usage testified for both sides, the Territorial Court
adjudged Bryan
guilty of destruction of property. 14 V.I.C.    1266. In the Order
finding Bryan guilty,
the trial judge stated that Rockstein was using a camera that had a
technical feature
allowing for a rapid snapping of photographs. The judge further found
that the camera
that Bryan threw to the floor that day was the same camera introduced into
evidence at
the trial (Exhibit "G-3"). G-3, a Nikon FM-2 camera, showed manifold
signs of physical
damage when displayed at the trial.
     The trial judge also explained that while Bryan's witnesses
questioned whether the
extent of damage seen on G-3 could have been caused by Bryan's act of
throwing the
camera to the floor, those witnesses did not dispute that Bryan's actions
could have
injured a camera to some degree, even if slight. In support of his Order,
the trial judge
further cited oral testimony that: (1) the camera was thrown to the ground
by Bryan with
"some force" and was not "gingerly" placed; (2) the camera's flash
separated upon
impact with the ground; (3) the camera's lens has not worked properly
since the incident;
and (4) the "flash gadget" which had a large crack could have separated
from the
camera upon impact. App. at 16-18. In sum, the judge found that the
"unavoidable
conclusion" was that "the camera sustained injuries." Bryan was sentenced
to ninety (90)
days of probation plus a fine of two hundred dollars ($200), with seventy
five dollars
($75) suspended. Bryan was also ordered to pay restitution in the amount
of three
hundred fifty dollars ($350).
     Following his conviction, Bryan filed a Motion for Judgment of
Acquittal pursuant
to Federal Rule of Criminal Procedure 29, or, in the alternative, a Motion
for New Trial.
In his Motion, Bryan argued that the physically damaged camera introduced
by GVI at
trial G-3 was not the camera involved in the incident at the Legislature.
Bryan posited
that, based on trial testimony, there was a blatant inconsistency in the
Order of the
Territorial Court finding Bryan guilty of destruction of property. More
specifically,
Bryan questioned how the trial judge could find that Rockstein was using a
camera with a
technical feature for taking pictures in rapid succession when G-3 was a
camera model
without such a feature. To cure any alleged factual inconsistency, GVI
argued in its
opposition papers that "[i]t is entirely believable that as a professional
photographer he
[Rockstein] is experienced and competent in manually advancing film in
rapid succession
but the pictures were not taken in rapid succession through the use of an
automatic film
advance feature." App. at 43.
     The Territorial Court denied Bryan any post-trial relief. After
setting forth the
legal standard for evaluating a Rule 29 motion, the Court addressed the
alleged factual
inconsistency raised by Bryan as follows:
          On the day of the incident, Mr. Rockstein had two cameras. If
the
     Government proved that either one of those cameras was damaged by
     defendant, the evidence would support a conviction.

App. at 26.
The trial judge also stated that the damages seen on G-3 were consistent
with GVI's
expert testimony, which indicated that such damage could be caused by
throwing the
camera to the floor. App. at 26-27. The trial judge further explained
that GVI's expert
saw no evidence that the camera was tampered with before being introduced
as a trial
exhibit. Specifically (according to GVI's expert), there were no tool
marks, scratch
marks, or pry marks to indicate that any tampering had taken place. App.
at 27. The
judge concluded that:
           The above facts earnestly undermine the defense's contention
that the
     camera which was admitted in evidence was damaged after its removal
     from the Legislature or that all the damage to the camera was
inflicted after
     its removal.
App. at 27.
     Bryan appealed to the District Court of the Virgin Islands, Appellate
Division,
arguing again that Exhibit G-3 was not the camera grabbed by Bryan on the
date in
question.    After a detailed recitation of the testimony adduced at trial,
the Appellate
Division affirmed. The Court concluded that the Territorial Court's Order
was not
"clearly erroneous." In reaching this determination, it reasoned that the
Territorial Court
could reasonably find that Rockstein was a credible witness and that his
testimony alone
could sustain a guilty verdict. The Appellate Division further stated
that several
witnesses appearing at trial corroborated Rockstein's testimony that Bryan
grabbed G-3
from him and damaged it at least partially by throwing it to the floor.
                                II.
     We have carefully reviewed the parties' briefs, the record, and the
judgments
below, and conclude that no reversible error has occurred. We remind the
parties as the
Appellate Division did that we are constrained by a sharply delineated
standard of
review when analyzing the results of a criminal bench trial.
     We evaluate the trial court's findings in a non-jury criminal trial
through the
"clearly erroneous" lens of review. See United States v. Delerme, 457
F.2d 156 (3d Cir.
1972). Under that standard, we ask whether the evidence adduced at trial
would permit
"reasonable mind[s]" to accept a particular conclusion. See id., 457 F.2d
at 160. Unlike
de novo review, deference as to factual findings must be accorded to the
trial court. We
are not permitted to substitute our judgment for that of the trial court,
even if we would
have decided the contested issue differently in the first instance. More
specifically,
where two permissible views of the evidence exist, we will not adjudge the
trial court
"clearly erroneous" for choosing one of them. See generally Anderson v.
City of
Bessemer, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511-12 (1985); Krasnov
v. Dinan,
465 F.2d 1298, 1302 (3d Cir. 1972).
     Moreover, in analyzing the trial court record, the evidence (and all
reasonable
inferences therefrom) is viewed in the light most favorable to the
Government. See
Delerme, 457 F.2d at 160; Orban v. Vaughn, 123 F.3d 727, 731 (3d Cir.
1997) (citation
omitted). Our standard of review also incorporates the well-settled
principle of appellate
jurisprudence that where evidence consists of disputed oral testimony, due
regard is given
the trial judge's opportunity to evaluate witness credibility. Delerme,
457 F.2d at 160.
Having viewed the demeanor of the witnesses first-hand, the trial judge
sits in the best
position to determine the veracity of live testimony.
     Applying these principles, we cannot conclude that Bryan's conviction
on the
destruction of property charge requires reversal. In his appeal to this
Court, Bryan again
argues that G-3 was not the camera he grabbed and that, therefore, GVI
introduced the
wrong camera into evidence. Appellant's Brief at 25-29. In the same
vein, Bryan
asserts that the trial judge committed reversible error by finding that
Bryan had two
cameras on the day in question and that the Appellate Division erred by
tacitly accepting
that specific finding. Id. Bryan labels the trial judge's findings
"illogical" and
"inconsistent." Id. at 29. The Government simply responds that the trial
judge's findings
were not clearly erroneous. Appellee's Brief at 9-15.
     We acknowledge the strength of Bryan's arguments and the contention
that G-3
may not have been the camera involved in the altercation at the
Legislature.   However,
we find these arguments ultimately unavailing. Our own thorough review of
the trial
record reveals substantial evidence that when viewed in the light most
favorable to the
Government proved beyond reasonable doubt that Bryan maliciously
"injure[d]" a
camera not belonging to him. 14 V.I.C.    1266; Delerme, 457 F.2d at 160;
see also
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). For the
foregoing reasons, the
District Court's Judgment of June 13, 2001 will be affirmed.
TO THE CLERK:
          Please file the foregoing opinion.

                             /s/ Robert E. Cowen
                             United States Circuit Judge




GOVERNMENT OF THE VIRGIN ISLANDS V. ADELBERT M. BRYAN, No. 01-2780

BECKER, Chief Judge, Concurring in the Judgement.

     This might have been a very straightforward case for review. The
evidence
clearly supports the conclusion that Senator Bryan wrested a camera from
Mr. Rockstein
and flung it to the floor. The camera introduced into evidence without
objection (G-3)
had the kind of damage that one would expect from the kind of incident
described.
Indeed, stress marks on the negative containing images of Bryan were
consistent with the
damage to exhibit G-3 itself, thereby supporting the inference that
exhibit G-3 was the
camera involved in the incident. If a jury had found Bryan guilty on the
basis of this
evidence, an affirmance of the judgment would be a foregone conclusion.
The problem
with this appeal stems from some of the trial judge's statements in his
post-trial opinion
denying Bryan's Motion for Judgment of Acquittal.
     The issue is so well framed by Bryan's Reply Brief that it will be
useful to
rescribe its relevant passages here:
                         The issue in this case is whether Exhibit G-3 was
the
          camera involved in this incident. While G-3 does have
          extensive damage, it is undisputed that G-3 is not the type of
          camera that can automatically (and rapidly) advance its film,
          nor does it have a film winder attached which could have
          performed this same function. However, Judge Swan found
          that the camera involved in the incident had the capacity to
          fast forward the film, finding in his initial opinion as follows
          (JA 9-10):

                             The nomenclature of Rockstein's camera, and
              whatever additional mechanism that was
              mounted upon the camera, allowed Rockstein to
              continue to take Bryan's photograph in
              unremitting succession.

                    Thus, G-3 could not have been the camera Rockstein was
          using when taking pictures at the Legislature on the date in
          question.

I note additionally that the evidence was to the effect that a camera with
a winder
attached could not have sustained the kind of damage sustained by G-3. I
also note,
however, that this issue was not presented to the judge at trial.
     The Reply Brief continues:
                          When this discrepancy between his findings and
the
           nomenclature of G-3 was brought to Judge Swan's attention
           in a post-trial motion, Judge Swan did not change his prior
           holding by finding that the camera did not have a fast forward
           mechanism, as he instead re-affirmed his prior holding by
           stating (JA 26):

                             Defendant suggests that one of the cameras
was
              taking photographs in rapid succession. A
              witness, Mr. Sam Daly, who is also a
              photographer, suggested that on the day of the
              incident, Mr. Rockstein had a Nikon F4 camera.
              This camera has a built-in drive which can take
                photographs in rapid succession. This
                suggestion is consistent with the evidence
                adduced at trial.

                     However, to cure this inconsistency, Judge Swan then
made a
            new finding, as follows (JA 26):

                               On the day of the incident, Mr. Rockstein
had
                two cameras. If the Government proved that
                one of those cameras was damaged by
                defendant, the evidence would support a
                conviction. (emphasis added).


                     Rockstein, however, testified that he only had one
camera on
            the day in question and only shot one roll of film, which he
            developed later that day. Thus, there were not two cameras.

     These arguments are extremely forceful, and present what for me are
troubling
questions. But there are countervailing considerations: (1) there was
evidence from
which it might be inferred that Rockstein did have two cameras; and (2)
there was also
evidence that a photographer as skilled and experienced as Rockstein would
have been
able to operate the camera manually with as much celerity as if it had had
a winder.
     Judge Swan is an able, experienced, and conscientious jurist. In
this high profile
case, perhaps in an effort to tie down every loose end, he may have said
too much. In
another sense, however   in terms of not clearing up the issues that
trouble me   he may
have said too little, but I lay much of that at the failure of the defense
generally to raise
these issues squarely at trial.
     We are here reviewing the findings (and verdict) of a trial judge and
our scope of
review is highly deferential (we apply the clearly erroneous standard).
Bryan has made a
strong argument that the trial judge has made inconsistent findings. He
appears to have
done so. But even if he did, I am hard pressed to say that his bottom
line   that Bryan
damaged G-3 by pulling it from Rockstein's person and hurling it to the
floor, is
unsupported. Under these circumstances, I join in the judgment.
