                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No. 10-3370
                                   _______________

                     GOVERNMENT OF THE VIRGIN ISLANDS

                                            v.

                                     JOSE NUNEZ,

                                             Appellant
                                   _______________

                 On Appeal from the District Court of the Virgin Islands
                           Appellate Division of St. Thomas
                     (D.C. Criminal Action No. 3-05-cr-00104-001)
          District Judges: Hon. Curtis V. Gomez and Hon. Raymond L. Finch
                    Superior Court Judge: Honorable Julio A. Brandy
                                   _______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 14, 2011
                                  _______________

              Before: SCIRICA, RENDELL and AMBRO, Circuit Judges

                             (Opinion filed: April 21, 2011)
                                  _______________

                                      OPINION
                                   _______________

AMBRO, Circuit Judge

      Jose Nunez was convicted by a jury in the Superior Court of the Virgin Islands of

first degree rape and first degree assault with intent to commit rape. He was sentenced to
concurrent terms of 25 years’ imprisonment on the rape count and 10 years’

imprisonment on the assault count. He appealed to the Appellate Division of the District

Court of the Virgin Islands, which held that assault was a lesser included offense of rape,

and therefore the convictions were multiplicitous. It thus remanded to the Superior Court

to vacate Nunez’s conviction and sentence for assault. The Court rejected Nunez’s other

assignments of error, and he appeals. We affirm the District Court’s judgment.

                                        I. Background

       In December 2003 Nunez was accused of raping his housemate. He was arrested

and charged with first degree rape (in violation of 14 V.I.C. §§ 1700(a), 1701(2)), first

degree assault with intent to commit rape (in violation of 14 V.I.C. § 295(3)), carrying or

possessing a weapon (in violation of 14 V.I.C. § 2251(a)(2)), and third degree assault (in

violation of 14 V.I.C. § 297(2)). Nunez’s defense at trial was that his sexual relationship

with the victim was consensual. A jury convicted him of the first two charges and

acquitted him of the latter two.

       At trial, FBI Agent Kristina Losquadro testified for the Government that chemical

tests were done on a vaginal swab and that those tests could indicate the presence of

blood. The accompanying FBI report, which was entered into evidence as Exhibit 9,

concluded that the presence of blood in the victim’s vaginal area could not be confirmed.

During its case, defense counsel examined Nunez’s sister, Lorensa Torres, in an effort to

refute the Government’s theory that Nunez had changed his story after speaking to his

sister at the police station after his arrest (he had first told police that he did nothing to the

victim). After Torres’ testimony, the Court commented on the Government’s decision to

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conduct cross-examination, questioning its purpose for doing so.

       At the close of testimony, defense counsel requested that closing arguments be

postponed until the next day, given the late hour. The Court denied the request.

Accordingly, the Government, and then the defense, gave their closing arguments. Prior

to the Government’s rebuttal, it also asked for a postponement until the next day, and the

Court acquiesced. The next day, during the Government’s rebuttal, it stated that blood

was present on the vaginal swab. Defense counsel objected to the Government’s

characterization of the evidence. The following day, the Court instructed the jury that the

Government’s statements were not evidence and that the jurors should rely only on the

FBI reports in evidence.

       During deliberations, the jury conveyed to the Court that it needed “a clearer

understanding of the charges.” In response, the Court re-read the elements of the charged

crimes but declined to comment any further.

       On appeal, Nunez makes the following arguments.

          • The Superior Court’s comments after Torres’ testimony were inappropriate

              and undermined her testimony, which resulted in prejudice.

          • The Government’s statements in closing regarding the blood evidence

              testimony prejudiced him, and the curative instruction was insufficient to

              cure this prejudice.

          • The District Court incorrectly attributed to “trial management” the Superior

              Court’s decision to allow the Government to present its closing rebuttal



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                 statements the next day; he contends that this was a denial of his right to

                 effective assistance of counsel.

             • The Superior Court failed to provide additional clarifying instructions to the

                 jury regarding the elements of the charges.

             • The District Court failed to address Nunez’s argument that the compilation

                 of these alleged errors requires a new trial.

    We do not find these arguments persuasive and, for the reasons that follow, affirm the

    District Court’s judgment. 1

                                         II. Discussion

          We reject Nunez’s attempt to characterize the overnight break during closing

arguments as a denial of Nunez’s right to counsel, as we agree with the District Court that

Nunez’s ineffective assistance-of-counsel argument is no more than an objection to the

Court’s handling of the trial. The Superior Court’s decision regarding the timing of

closing arguments was discretionary trial management. See United States v. Rana, 944

F.2d 123, 126 (3d Cir. 1991) (quotation marks omitted). It did not abuse its discretion in

declining defense counsel’s request to group the closing arguments together and postpone

the rebuttal until the following day.

          We also disagree with Nunez’s argument that the Superior Court improperly failed

to give additional clarifying instructions to the jury. Provided a court does not misstate


1
 The Superior Court of the Virgin Islands had jurisdiction under 4 V.I.C. § 76. The
Appellate Division of the District Court of the Virgin Islands had jurisdiction under 48
U.S.C. § 1613a(a), (d). We have jurisdiction under 28 U.S.C. § 1291 and 48 U.S.C.
§ 1613a(c).
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the law, we review its jury instructions for abuse of discretion. United States v.

Hoffecker, 530 F.3d 137, 173-74 (3d Cir. 2008). As noted by the District Court, the jury

did not ask any additional questions after the trial judge re-read the elements of the

crimes charged. Nor does the record suggest that there was any lingering juror confusion.

Accordingly, we conclude there was no abuse of discretion.

       With respect to Nunez’s remaining issues, after reviewing the parties’ briefs and

relevant portions of the record, we conclude that the District Court correctly applied the

relevant legal standards. We thus agree with that Court, for substantially the same

reasons contained in its fine opinion, that there was no reversible error arising from the

Superior Court’s comments after Torres’ testimony or from the Government’s statements

regarding the blood evidence.

       Because we agree with the District Court that the Superior Court did not commit a

series of cumulative errors, as Nunez alleges, we cannot conclude that due process

requires a new trial. Cf. United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir. 1994)

(noting that where a defendant alleges mistrial based on cumulative error, a new trial is

required only when the combination of errors “so infected the jury’s deliberations that

they had a substantial influence on the outcome of the trial”).

                                    *   *   *       *   *

       We thus affirm the District Court’s judgment affirming the Superior Court’s

judgment of conviction for first degree rape.




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