                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                          No. 11-4581
                                         ____________

                           UNITED STATES OF AMERICA

                                              v.

                                    SEAN GERARD,

                                                   Appellant
                                         ____________

                            On Appeal from the District Court
                                   of the Virgin Islands
                                  (D.C. No. 09-cr-00013)
                      District Judge: Honorable Anne E. Thompson
                                      ____________

                            Argued December 4, 2012
               Before: SMITH, HARDIMAN and ROTH, Circuit Judges.

                               (Filed: December 19, 2012)

Alphonso G. Andrews, Jr. [Argued]
Allan John-Baptiste
Office of United States Attorney
1108 King Street
Suite 201
Christiansted, St. Croix, VI 00820
       Attorney for Plaintiff-Appellee

Yohana M. Manning [Argued]
Second Floor
53A Company Street
Christiansted, VI 00820
       Attorney for Defendant-Appellant
                                         ____________

                                OPINION OF THE COURT
                                     ____________

HARDIMAN, Circuit Judge.

       Sean Gerard appeals the District Court’s order denying his motion for a new trial

following his convictions for murder and firearms offenses. He claims there was

insufficient admissible evidence to support a guilty verdict. Because we discern no error

by the District Court, we will affirm.

                                              I

       We write for the parties, who are well acquainted with the case, so we review only

briefly the essential facts and procedural history.

       In June 2009, a grand jury charged Gerard with the May 6, 2009, murder of Alfred

Hendricks in the Mon Bijou neighborhood of St. Croix and various firearms-related

offenses. 1 Arkeisha Hughes testified to the grand jury that on the day of the murder she

had seen Gerard and another person fighting over a bicycle. She said that Gerard pulled a

hammer out of his pants and used it to beat the other individual. Hughes then saw Gerard


       1
         In addition to first degree murder in violation of 14 V.I.C. §§ 922(a)(1) and
923(a), the grand jury charged Gerard with: being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g) and 924(a)(2); receiving a firearm while under
information in violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(d); and unauthorized
possession of a firearm in violation of 14 V.I.C. § 2253(a).
                                              2
go inside and grab a gray-and-black firearm and she heard shots fired. Although she did

not witness the shooting, Hughes testified that, after she heard the gunshots, she saw

Gerard go up the road.

       At Gerard’s jury trial, Hughes did an about-face, testifying that her statement

before the grand jury was a lie, that she was not in Mon Bijou on May 6, 2009, and that

her boyfriend, James Rock, had provided her with the details of Gerard’s attire, the

altercation between Gerard and the third party, the gun, and the shooting. The

prosecution then impeached Hughes with her grand jury testimony. Later in the trial, the

Court permitted a Government witness to read into the record the portions of Hughes’s

grand jury testimony that contradicted her trial testimony as a prior inconsistent statement,

over defense counsel’s objection.

       In addition to Hughes, several others testified about what happened in Mon Bijou

on the day of the murder. A neighbor recalled hearing gunshots and seeing Gerard

walking away from the area from which the shots were fired with his hands under his

shirt. Rock testified that he witnessed an argument between Gerard and another

individual, heard two shots fired, and saw Gerard leave the area from which the shots

were fired. Sergeant Robert Matthews of the Virgin Islands Police Department recounted

his interaction with Gerard soon after the shooting, during which Gerard “started acting

very nervous” and “wouldn’t make eye contact” with the officer. Matthews also noticed

cuts on Gerard’s forearm. Rashid Ali recalled hearing shots fired and seeing someone

                                             3
rapidly exit the area from which the discharges originated. Ali had previously identified

that person as Gerard in a photo array.

       On April 14, 2010, the jury found Gerard guilty of first degree murder and

unauthorized possession of a firearm. The next day, the District Court conducted a bench

trial and found Gerard guilty on the remaining counts of being a felon in possession of a

firearm and receiving a firearm while under information. After Rock swore in a

declaration that he provided Hughes with the information she used to testify before the

grand jury, Gerard filed a motion requesting a new trial based on newly discovered

evidence. The District Court denied the motion and later sentenced Gerard to life

imprisonment on the murder conviction to be served concurrently with shorter sentences

on the three firearms convictions. This appeal followed.

                                             II 2

       Gerard makes three interrelated arguments on appeal: (1) the District Court abused

its discretion when it allowed the Government to read Hughes’s grand jury testimony into

the record as substantive evidence; (2) without Hughes’s grand jury testimony, the trial

jury had insufficient evidence to convict Gerard of any of the charged crimes; and (3) the

Court erred when it denied Gerard’s motion for a new trial. We address each of these

issues and their respective standards of review in turn.


       2
        The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C.
§ 1612(a), and we have jurisdiction under 28 U.S.C. § 1291.
                                              4
                                             A

       The admissibility of Hughes’s grand jury testimony turns on whether it was

“inconsistent” with her testimony at trial under Federal Rule of Evidence 801(d)(1). “To

the extent that our review of the District Court’s determination implicates its

interpretation of the Federal Rules of Evidence, our review is plenary, but where the

District Court’s ruling was ‘based on a permissible interpretation of a rule,’ we review

only for an abuse of discretion.” United States v. Peppers, 302 F.3d 120, 137 (3d Cir.

2002) (quoting United States v. Console, 13 F.3d 641, 656 (3d Cir. 1993)).

       Rule 801(d)(1) provides that a witness’s prior statement is not considered hearsay

and is admissible as substantive evidence where: “The declarant testifies and is subject to

cross-examination about a prior statement, and the statement: (A) is inconsistent with the

declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other

proceeding or in a deposition . . . .”

       At trial, Hughes testified on direct examination that she was not in Mon Bijou on

the date of the murder, that she had received the entire account secondhand from her

boyfriend, Rock, and that she could not remember many of the events of May 6, 2009.

She reiterated these assertions during cross-examination. This testimony was a complete

reversal of her sworn grand jury testimony, in which she offered a detailed, first-person

account that included: Gerard’s attire; his attack on another with a hammer; his retrieval

of a gun; hearing gunshots; and seeing Gerard’s subsequent departure from the scene of

                                             5
the crime. The inconsistency of Hughes’s trial testimony extends to her purported lack of

memory regarding both the day’s events and her grand jury testimony.

       We have noted that “inconsistency under Rule 801(d)(1)(A) is not limited to

diametrically opposed statements.” United States v. Mornan, 413 F.3d 372, 379 (3d Cir.

2005) (citation omitted); see, e.g., United States v. Iglesias, 535 F.3d 150, 159 (3d Cir.

2008) (“[W]here a witness demonstrates a ‘manifest reluctance to testify’ and ‘forgets’

certain facts at trial, this testimony can be inconsistent under Rule 801(d)(1)(A).”

(quoting United States v. Williams, 737 F.2d 594, 608 (7th Cir. 1984))) (footnote

omitted). Because Hughes’s trial testimony is irreconcilable with her grand jury

testimony, the District Court properly held that the Government could read the relevant

grand jury testimony into the record as a prior inconsistent statement under Rule

801(d)(1)(A).

       Gerard attempts to avoid Rule 801(d)(1)(A) by making a threshold argument that

Hughes’s grand jury testimony is inadmissible under Federal Rule of Evidence 602,

which states: “A witness may testify to a matter only if evidence is introduced sufficient

to support a finding that the witness has personal knowledge of the matter. Evidence to

prove personal knowledge may consist of the witness’s own testimony.” He claims the

Government failed to establish that Hughes had personal knowledge of the events

surrounding the murder. Gerard’s interpretation is incorrect because Rule 602 creates a

low threshold for admissibility, and a judge should admit witness testimony if the jury

                                              6
could reasonably find that the witness perceived the event. See United States v. Hickey,

917 F.2d 901, 904 (6th Cir. 1990) (“Testimony should not be excluded for lack of

personal knowledge unless no reasonable juror could believe that the witness had the

ability and opportunity to perceive the event that he testifies about.” (citation omitted)).

Based on the detailed nature of Hughes’s grand jury testimony and her about-face on the

witness stand at trial, a reasonable juror could determine that she was lying during trial

and that she did, in fact, personally witness Gerard’s actions in Mon Bijou on May 6,

2009. Therefore, Rule 602 does not bar Hughes’s grand jury testimony and we find no

abuse of discretion in its admission as a prior inconsistent statement under Rule

801(d)(1)(A).

                                              B

       Because Gerard’s argument regarding the sufficiency of the evidence was largely

predicated on Hughes’s grand jury testimony having been erroneously admitted, we will

only briefly address it here. When deciding whether a jury verdict rests on legally

sufficient evidence, “we must view the evidence in the light most favorable to the

government,” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (citation omitted),

and we will sustain the verdict if “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307, 319

(1979) (citation omitted).

       Several witnesses testified that Gerard was involved in an altercation with the

                                              7
victim just before the murder occurred. Hughes testified that just prior to hearing

gunshots, she saw Gerard retrieve a handgun and walk back to the area where the victim

was later found dead. Multiple witnesses also saw Gerard leaving the scene of the crime

immediately after hearing shots fired. Gerard was injured following the shooting, and he

acted evasively while speaking with police. This and other evidence presented at trial

provided a sufficient basis for a rational juror to find Gerard guilty of murder.

       The same holds true for the weapons charges. Gerard stipulated that he was a

convicted felon, that there was proof beyond a reasonable doubt that there was a pending

information charging him with felony robbery, and that there were no firearm

manufacturers in the Virgin Islands, so the weapon necessarily travelled in interstate

commerce. Considering these stipulations and the testimony indicating that Gerard

murdered the victim with a handgun, there was sufficient evidence to convict him of the

three firearms charges.

                                              C

       Lastly, Gerard contends that the Court erred when it denied his request for a new

trial. The Court found that Rock’s post-trial declaration that Hughes was not present in

Mon Bijou on May 6, 2009, was not newly discovered evidence because Hughes said as

much while she was on the witness stand. Though we normally review a District Court’s

denial of a motion for a new trial for abuse of discretion, Hook v. Ernst & Young, 28 F.3d

366, 370 (3d Cir. 1994), we determine de novo whether a witness’s declaration

                                              8
constitutes “newly discovered evidence,” see United States v. Jasin, 280 F.3d 355, 360

(3d Cir. 2002).

       Federal Rule of Criminal Procedure 33 provides that a District Court “may vacate

any judgment and grant a new trial if the interest of justice so requires.” A new trial

should be granted only if “there is a serious danger that a miscarriage of justice has

occurred—that is, that an innocent person has been convicted.” United States v. Johnson,

302 F.3d 139, 150 (3d Cir. 2002) (quoting United States v. Santos, 20 F.3d 280, 285 (7th

Cir. 1994)) (internal quotation marks omitted). “There are five requirements that must be

met before a court may grant a new trial on the basis of newly discovered evidence,”

including that “the evidence must be in fact newly discovered, i.e. discovered since trial.”

United States v. Quiles, 618 F.3d 383, 388 (3d Cir. 2010) (citation omitted). We agree

with the District Court that there is nothing in Rock’s declaration that constitutes new

evidence. Hughes repeatedly claimed at trial that she was not actually present at the time

of the murder, an assertion that led to extensive impeachment with her grand jury

testimony. Therefore, Rock’s declaration does not constitute new evidence and the Court

correctly denied Gerard’s motion for a new trial.

                                             III

       For the reasons stated, we will affirm the judgment of the District Court in all

respects.




                                              9
