                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 11-3676
                                 _____________

                 GOVERNMENT OF THE VIRGIN ISLANDS

                                        v.

                                GENT MOSBY,
                                      Appellant
                                _____________

                 On Appeal from the Appellate Division of the
                       District Court of the Virgin Islands
                     District Court No. 3-97-cr-00015-001
               District Judge: The Honorable Raymond L. Finch
               District Judge: The Honorable Legrome D. Davis
             Superior Court Judge: The Honorable Patricia D. Steele

                            Argued December 3, 2012

            Before: SMITH, HARDIMAN, and ROTH, Circuit Judges

                            (Filed: January 30, 2013 )

Pamela R. Tepper         ARGUED
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802
      Counsel for Plaintiff-Appellee

Samuel A. Walker         ARGUED
201 East Pine Street
                                        1
Suite 445
Orlando, FL 32801
       Counsel for Defendant-Appellant
                           _____________________

                                   OPINION
                            _____________________

SMITH, Circuit Judge.

      In August of 1996, a jury found Gent Mosby guilty of the March 26, 1994

murder of Officer Steven Hodge. On this direct appeal, he challenges his

convictions on constitutional, evidentiary, and procedural grounds. We will affirm.

                                         I

      Officer Steven Hodge’s murder took place shortly after 11:00 pm on

March 26, 1994. He was shot fourteen times by at least two people using four

different guns. Police found only one piece of physical evidence at the scene, a

towel with gun residue. It was found near a bush close to Officer Hodge’s home

and appeared to have been recently placed there.

      Earlier on the day of the murder, two witnesses saw Mosby with two of his

codefendants—Carl Fleming and Ricky Vanterpool—at a store Mosby ran called

New York’s Latest Fashions. One of these witnesses, Gwentin Sellwood, testified

at trial that he saw them there and that he saw Mosby remove three guns from a

paper bag, two of which he handed to Fleming and Vanterpool. Sellwood also saw

a long gun with a damaged handle on the counter behind Mosby. On the back of a

                                         2
chair near Mosby, he saw a towel similar to the one found near the crime scene.

Finally, Sellwood also heard Mosby tell his codefendants that he would pick them

up at 11:30 pm so that they could take care of “serious business.” The other

witness, Vincent Daniel, also visited the store and saw Mosby with Vanterpool.

While Daniel was there, he heard the “cranking of a gun” from the bathroom.

      Witnesses Bernice Celestine, Eustace Sorhaindo, and Shorn Pennyfeather all

heard gun shots the evening of the murder and saw four men dressed in black near

Officer Hodge’s home shortly before or after his murder. Only Sorhaindo was able

to identify at trial any of the four men he saw. He identified Mosby and another

codefendant, Pedro Harris. He later recanted his identification of Harris, but he

never withdrew his identification of Mosby.

      Two days after the murder, Sellwood again encountered Mosby. This time,

Mosby had just been questioned by police about the murder of a police officer.

Sellwood helped Mosby clean out New York’s Latest Fashions store and heard

him exclaim several times that he would not go to jail. Several months later,

Sellwood encountered Mosby, Fleming, and Vanterpool. Mosby pointedly stopped

Sellwood on the street to tell him that “whatsoever you hear in the store or

whatsoever you see in the store, don’t ever leave me hear it or otherwise me and

the boys them will take you out.”



                                        3
      Mosby offered two defenses at trial. First, he tried to provide an alibi for the

evening of the murder by explaining that he was at strip clubs. Second, he claimed

that the murder was committed by corrupt Virgin Islands police officers who knew

that Officer Hodge was about to report them. In support of this second defense,

Mosby offered a recording in which a person involved in the drug business

allegedly explained to a confidential informant (“CI”) that Virgin Islands police

officers had approached him to hire a contract killer to murder Officer Hodge. The

person in the recording was allegedly Vargas Paniagua, who purportedly assisted

in the murder because Officer Hodge owed Paniagua cocaine money. Despite

Mosby’s attempts, Paniagua was not produced to testify at trial, the recording was

not admitted into evidence, and the CI’s identity was not revealed.

      On August 19, 1996, in the Virgin Islands Superior Court, 1 a jury found

Mosby guilty of first-degree murder, conspiracy to commit murder, unauthorized

possession of a firearm, and threatening a witness. On November 16, 1996, the

Superior Court denied Mosby’s motion for a judgment of acquittal or, in the

alternative, a new trial. He then filed a timely appeal to the Appellate Division of

the Virgin Islands District Court. Mosby v. Gov’t of Virgin Islands, No. 1997-

0015-1, 2011 WL 4357301, at *3 (D.V.I. Sept. 16, 2011) (per curiam). After an

1
  At the time of trial, the trial court was known as the Territorial Court. Starting in
October 2004, the Territorial Court became known as the Superior Court. We will
refer to the trial court as the Superior Court.
                                          4
unexplained fifteen-year delay, the Appellate Division affirmed Mosby’s

conviction on January 22, 2010. Mosby, 2011 WL 4357301, at *3. Mosby then

filed a timely appeal to this Court.

      The Appellate Division had jurisdiction to hear Mosby’s appeal pursuant to

48 U.S.C. § 1613a(a) and (d). We review the Superior Court’s rulings using the

same standards of review as those employed by the Appellate Division. Semper v.

Santos, 845 F.2d 1233, 1236 (3d Cir. 1988); Gov’t of Virgin Islands v. Lewis, 620

F.3d 359, 364 & n.4 (3d Cir. 2010).

                                        II

      Mosby challenges his conviction on five grounds.2 Three arguments relate to

the Paniagua tape recording. Mosby argues that the Superior Court violated his

Sixth Amendment right to compulsory process when it denied his motion for a writ

of habeas corpus ad testificandum requiring Paniagua to testify, that the Superior

Court erred by determining that the tape was inadmissible hearsay, and that the

Superior Court was incorrect to deny his motion to disclose the identity of the CI


2
  Mosby also suggests that Sorhaindo’s in-court and out-of-court identifications
should have been suppressed. He fails, however, to provide any legal basis for his
in-court identification argument or accurate record citations for his out-of-court-
identification argument. Accordingly, these arguments have not been properly
presented and will not be addressed. See Kost v. Kozakiewicz, 1 F.3d 176, 182–83
(3d Cir. 1993); Rebuck v. Vogel, 713 F.2d 484, 487 (8th Cir. 1983). Mosby’s
change of venue argument is similarly flawed because he fails to provide any legal
or factual support for the argument.
                                        5
who recorded the conversation. Besides the Paniagua-related arguments, Mosby

makes two additional arguments. First, he argues that the testimony of Athnell

Coker violated the rule of Bruton v. United States, 391 U.S. 123 (1968), because it

contained the confession of one of Mosby’s codefendants, Maurice Richardson,

that impermissibly implicated Mosby. Second, he argues that the transcript of

Sorhaindo’s testimony should have been read back to the jury in its entirety, even

though they requested only a portion of it. None of these arguments have merit.

      Mosby’s Sixth Amendment right to compulsory process was not violated

because Paniagua’s testimony would not have been favorable. United States v.

Valenzuela-Bernal, 458 U.S. 858, 867–68 (1982). To assert this Sixth Amendment

right to produce a witness, a defendant must show (among other things) “that the

excluded testimony would have been material and favorable to his defense.” Gov’t

of Virgin Islands v. Mills, 956 F.2d 443, 446 (3d Cir. 1992) (citing Rock v.

Arkansas, 483 U.S. 44, 56 (1987)). Mosby argues that Paniagua’s testimony would

have been material and favorable because the tape allegedly showed that if

Paniagua were to testify truthfully, then he would explain that he was approached

by Virgin Islands police officers who wanted his help to hire a contract killer to

murder Officer Hodge. During a pretrial proceeding, however, Paniagua denied

under oath that he participated in the conversation recorded or a conversation

similar to it. Mosby thus failed to show that Panaigua’s testimony at trial would

                                        6
have been favorable or material.

      Mosby contends that the required showing would have been met if he had

been given a chance to confront Paniagua’s denial of involvement in the murder

with the recording, which the parties agree constitutes hearsay. We are not

persuaded. The favorability determination must be based on a witness’s actual

testimony and admissible evidence. This is so because defendants cannot

circumvent the rules of evidence by calling witnesses solely to impeach them with

evidence that would otherwise be inadmissible. United States v. Sebetich, 776 F.2d

412, 428–29 (3d Cir. 1985). The Superior Court therefore did not violate Mosby’s

Sixth Amendment right to compulsory process by refusing to compel Paniagua’s

testimony. 3

      The Superior Court also did not err in concluding that the tape was not

admissible under either Federal Rule of Evidence 804(b)(3) as a statement against



3
   Similarly, the Superior Court’s denial of Mosby’s motion for a writ of habeas
corpus ad testificandum was not an abuse of discretion. See United States v. Cruz-
Jiminez, 977 F.2d 95, 99 (3d Cir. 1992) (explaining that our standard of review for
denials of the writ of habeas corpus ad testificandum is for abuse of discretion).
This writ may be denied if “the witness’s testimony is only peripherally relevant
. . . .” Id. at 100. Paniagua’s denial of his participation in the conversation is not
relevant at all because it would not make any “fact more or less probable.” Fed. R.
Evid. 401(a). That the Superior Court’s denial of Mosby’s motion was a reversal of
its initial decision to grant it is also not an abuse of discretion because trial judges
are permitted to test the proffered evidence used to support a motion. See Luce v.
United States, 469 U.S. 38, 41 (1984).
                                           7
interest or the residual exception in Rule 807.4 This decision was not an abuse of

discretion because the tape was inadequately substantiated by other evidence. See

United States v. Starnes, 583 F.3d 196, 213–14 (3d Cir. 2009) (explaining that we

review admissibility rulings for abuse of discretion). For a statement to be admitted

under either of these exceptions, the statement’s content and context must

demonstrate its trustworthiness. United States v. Boyce, 849 F.2d 833, 835–36 (3d

Cir. 1988) (explaining that trustworthy circumstances is one of two requirements

for the statement against interest exception to apply); United States v. Bailey, 581

F.2d 341, 346–47 (3d Cir. 1978) (explaining that the residual exception can be

used when trustworthiness and “high degrees of probativeness and necessity are

present”). The record supports the Superior Court’s conclusion that the statements

on the tape were untrustworthy. There is simply no evidence to support the tape’s

suggestion that a hit man was brought to the Virgin Islands. If anything, the

evidence at trial suggests that a hit man was not involved because of the multiple

guns used in the killing. Mosby does not explain why the officers would pay a hit

man $50,000 to join them in murdering a police officer, rather than to simply kill

the officer himself.

      Furthermore, the record does not provide any reason to conclude that the

4
 The Superior Court’s ruling refers to Federal Rule of Evidence 804(b)(5), which
was the location of the residual exception at the time of the trial. The exception
now appears in Rule 807.
                                         8
Superior Court was clearly unreasonable in determining that the circumstances did

not indicate trustworthiness. There is evidencing supporting the conclusion that the

CI was financially motivated to fabricate evidence and had been an unreliable

informant in the past. Furthermore, the tape does show that Paniagua’s statement

was not spontaneous and was made when he had reason to enhance his criminal

reputation to the CI by sounding “all powerful.” Accordingly, the Superior Court’s

ruling that the statements on the tape were inadmissible hearsay was not an abuse

of discretion.

      Mosby’s final Paniagua-related argument is that the identity of the CI,

known as SKS, should have been disclosed so that Mosby could authenticate the

statements on the tape. We review the Superior Court’s denial of Mosby’s motion

to disclose SKS’s identity for abuse of discretion. United States v. Johnson, 302

F.3d 139, 149 (3d Cir. 2002). A defendant is generally not entitled to the identity

of a CI when “the informant was not an active participant or eyewitness, but rather

a mere tipster” to the reported offense. United States v. Jiles, 658 F.2d 194, 197–98

(3d Cir. 1981). Here, SKS was very similar to a tipster because he had no role in

the murder of Officer Hodge and only happened upon the information in the tape

as a part of an unrelated drug investigation. SKS thus could not provide any

information beyond what was already on the tape, thereby rendering his identity of

minimal value to the preparation of Mosby’s defense. Cf. Roviaro v. United States,

                                         9
353 U.S. 53, 62 (1957) (explaining that disclosure of confidential informants’

identities is guided by the balancing of “the public interest in protecting the flow of

information against the individual’s right to prepare his defense”). The Superior

Court’s denial of Mosby’s request to disclose SKS’s identity was not, therefore, an

abuse of discretion.

      Aside from the issues relating to Paniagua, Mosby also challenges the

testimony of Athnell Coker. Coker recounted the confession of one of Mosby’s

codefendants, Maurice Richardson, who did not testify at trial. Coker testified that

“they went down Lindberg Bay in the bushes and stake out and waited until Hodge

came out of his house and shoot him.” Mosby argues that Coker’s use of “they”

impermissibly implicated him in violation of his Sixth Amendment right to

confrontation. See Bruton, 391 U.S. at 136–37. Mosby also argues that the same

improper implication resulted from both the prosecutor’s unanswered questions

regarding the number of people and types of guns involved and in his closing

argument that reformulated Coker’s statement. These arguments are meritless.

      In Bruton, the Supreme Court held that the prosecutor’s introduction into

evidence of a nontestifying codefendant’s confession violates a defendant’s right

under the Confrontation Clause when “there is a strong implication that the non-

testifying codefendant’s confession refers to the defendant.” Pabon v. Mahanoy,

654 F.3d 385, 393 (3d Cir. 2011). The use of “they” here is not sufficient to create

                                          10
an unconstitutionally strong implication. At no point in the testimony does Coker

identify or mention the activities of other people in the crime, much less imply that

Mosby was involved. Furthermore, the Superior Court properly stopped Coker

from answering the prosecutor’s questions about the number of people and the

number of guns. This prevented any possible implication that Coker’s use of

“they” referred to the other defendants in the courtroom. Cf. United States v.

Richards, 241 F.3d 335, 340–41 (3d Cir. 2001) (finding a Bruton violation when

the redaction of the codefendant’s confession “sharply incriminated” the

nonconfessing defendant). And though the prosecutor may have suggested in his

closing statement that Richardson meant Mosby when he said “they,” this is

insufficient because the testimony and other evidence left open other possible

inferences that the jury was free to make. See Priester v. Vaughn, 382 F.3d 394,

399 (3d Cir. 2004). Coker’s testimony, therefore, did not violate Mosby’s Sixth

Amendment right to confrontation as understood in Bruton.

      Mosby’s final argument is that the Superior Court erred by reading back

only the portion of Sorhaindo’s testimony that the jury requested, rather than

Sorhaindo’s entire testimony. Trial courts have broad discretion in deciding which

portions of testimony to reread to a jury upon its request. United States v. Wright-

Barker, 784 F.2d 161, 174 (3d Cir. 1986), superseded on other grounds by statute

as recognized in United States v. Martinez-Hidalgo, 993 F.2d 1052, 1056 (3d Cir.

                                         11
1993). District courts do not abuse this discretion by limiting the part read back to

the part requested by the jury, even though the defendant may have wanted more

read. Wright-Barker, 784 F.2d at 174. Here, the Superior Court read only that

portion requested by the jury, which even Mosby’s trial counsel recognized was all

that was required. The Court did not, therefore, abuse its discretion.

                                         III

      For these reasons, we will affirm Mosby’s convictions.




                                         12
