                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-11-2007

USA v. Magloire
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2242




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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        No. 06-2242

                             UNITED STATES OF AMERICA

                                              v.

                                  CARTER MAGLOIRE,
                                            Appellant

                   Appeal from the District Court of the Virgin Islands,
                                  Division of St. Croix
                                  (No. 04-cr-00142-2)
                        District Court: Hon. Anne E. Thompson

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   December 4, 2006

               Before: McKEE, BARRY, and STAPLETON Circuit Judges


                                Opinion filed: April 11, 2007

                                          OPINION

McKEE, Circuit Judge.

       Carter Magloire appeals the district court’s judgments of conviction and sentence.

He claims the court erred in failing to grant his motion for recusal, that the evidence was

insufficient to sustain his convictions, and that his trial counsel was ineffective. For the

reasons that follow, we will affirm.

                                              I.

       Because we write primarily for the parties, we need not recite the facts or
procedural background of this case except insofar as may be helpful to our brief

discussion. However, since Magloire challenges the sufficiency of the evidence, we will

begin our discussion with a brief overview of the testimony.

       During the trial, four Haitians testified: (1) they were Haitian nationals without

proper documentation to enter the United States; (2) they were attempting to enter the

United States through the Virgin Islands and/or the continental United States; and (3) they

paid to be transported from Dominica to the Virgin Islands. Three of the witnesses paid

$1,000 to board the ship; one paid $1,200. They traveled by boat to St. Croix from

Dominica, and no one asked them to show proper documentation to enter the United

States before or after they boarded the boat. They left Dominica at night in a small boat

that took them to the larger boat that eventually ran aground in St. Croix. They observed

only Magloire and co-defendant Laville operating the boat during the three-day voyage.

Two witnesses testified that they paid their money to the boat owner directly, and that the

owner knew they were Haitian nationals. Another witness testified that the boat’s owner

told the passengers that Magloire and Laville would be taking the boat to the Virgin

Islands.

       The evidence also included the deposition testimony of four Cuban passengers that

was very similar to the Haitians’ testimony. The Cuban nationals did not have any

documentation authorizing their entry into the United States. They paid a contact in

Dominica $3,000 to be transported to the United States. That contact knew they were



                                              2
Cuban. They said they left Dominica around 1 or 2 a.m., and were taken to a larger boat

that transported them to the Virgin Islands. However, unlike the Haitians, the Cubans did

not know who operated the boat.

       David Levering, a special agent at Immigration and Customs Enforcement with

experience investigating alien smuggling in the Virgin Islands, also testified. He stated

that alien smuggling operations typically begin at staging locations like Dominica or St.

Martin, where aliens pay organizers to be taken to the Virgin Islands. He also testified

that the boat operators are invariably paid for their services.

       The jury acquitted Magloire of conspiracy to bring in illegal aliens, but convicted

him of bringing aliens into the United States, and doing so for financial gain. Thereafter,

Magloire filed a counseled motion for new trial pursuant to Fed. R. Crim. P. 33. His

arguments included a claim that Judge Gómez should have recused himself because he

had been Deputy Criminal Chief in the Office of the United States Attorney for the

District of the Virgin Islands when Magloire was arrested, and he remained Deputy Chief

during the ensuing investigation and indictment. Magloire also challenged the sufficiency

of the evidence.

       Thereafter, he filed a pro se motion pursuant to Fed. R. Civ. P. 60(b), arguing

ineffective assistance of counsel. At the ensuing sentencing hearing, Judge Anne E.

Thompson denied Magloire’s motion for a new trial and refused to address Magloire’s

ineffective assistance of counsel claims. This appeal followed.



                                               3
                                             II.

       Section 455(a) of Title 28 of the United States Code provides: “Any justice, judge,

or magistrate judge of the United States shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Section

455(b)(3) requires disqualification “[w]here [the judge] has served in governmental

employment and in such capacity participated as counsel, adviser or material witness

concerning the proceeding or expressed an opinion concerning the merits of the particular

case in controversy.” 28 U.S.C. § 455(b)(3).

       Magloire first contends that it was improper for Judge Thompson to rule on his

recusal motion. He highlights the statutory mandate that a judge “disqualify himself . . .

[when] his impartiality might reasonably be questioned.” § 455(a) (emphasis added); see

United States v. Balistrieri, 779 F.2d 1191, 1202-03 (7th Cir. 1985) (“Section 455 clearly

contemplates that decisions with respect to disqualification should be made by the judge

sitting in the case, and not by another judge.”). The Government argues that, because

Magloire first questioned Judge Gómez’s impartiality in a post-trial motion for a new

trial, rather than in a motion for recusal, it was proper for Judge Thompson to rule on the

issue of recusal.

       The Government’s argument sidesteps the self-executing nature of § 455. That

section “imposes a duty on the judge to act sua sponte, even if no motion . . . is filed.”

Balistrieri, 779 F.2d at 1202; see also In re Antar, 71 F.3d 97, 101 (3d Cir. 1995)



                                               4
(“Section 455(a) imposes a general duty on a federal judge to recuse whenever there is an

appearance of judicial partiality.”) (emphasis added).

       In Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155 (3d Cir. 2004), we

stated: “‘as in other areas of the law, there is room for harmless error’ in § 455(a)

analysis.” Id. at 171 (quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S.

847, 862 (1988)). Thus, Judge Thompson’s ruling and Judge Gómez’s failure to recuse

are subject to harmless error review. Given this record, even if we assume, arguendo,

that Judge Gómez should have recused himself, the error would be harmless. Where, as

here, a claim that the trial judge should have recused himself/herself is not made until

after trial, we require the claim to “be supported by substantial justification.” Martin v.

Monumental Life Ins. Co., 240 F.3d 223, 237 (3d Cir. 2001).

       The dearth of facts Magloire asserts to support his recusal argument falls woefully

short of the “more compelling standard for recusal under § 455(a) after the conclusion of

a trial.” Id. Magloire points out that Judge Gómez was Deputy Criminal Chief in the

United States Attorney’s Office for the District of the Virgin Islands during the pretrial

stages of his prosecution. However, standing alone, the fact that Judge Gómez was one

of several Assistant United States Attorneys in the office that prosecuted Magloire would

not cause a reasonable and informed observer to question his impartiality. Apart from

Judge Gómez’s tenure as an Assistant United States Attorney, Magloire offers little to

establish that “a reasonable person knowing all the circumstances would harbor doubts



                                              5
concerning the judge’s impartiality.” United States v. Di Pasquale, 864 F.2d 271, 279 (3d

Cir. 1988) (quotation omitted).

       Unable to buttress his contention with an extrajudicial source of bias, Magloire

challenges Judge Gómez’s impartiality on the basis of a ruling that Magloire claims

allowed hearsay testimony to be admitted during trial. However, “judicial rulings alone

almost never constitute a valid basis for a . . . partiality motion. . . . [T]hey . . . can only in

the rarest circumstances evidence the degree of favoritism or antagonism required . . .

when no extrajudicial source is involved.” Liteky v. United States, 510 U.S. 540, 555

(1994). Judge Gómez’s ruling on the evidentiary question evidences no favoritism or

antagonism toward Magloire. It is not, therefore, a basis for recusal.

       Moreover, the challenged ruling on Magloire’s belated hearsay objection does not

advance his claim for relief on appeal. During cross-examination, defense counsel asked

one of the alien passengers whether Magloire “introduce[d] himself to [the witness] as the

captain” of the boat. The witness responded that when the boat owner came on board

with her, he told her that Magloire and Laville “would be controlling the boat.” Defense

counsel did not immediately move to strike the testimony on hearsay grounds. Instead,

defense counsel asked the witness follow-up questions related to this alleged hearsay

statement. The follow-up questions themselves consume more than five pages of

transcript. Only after the parties returned from the lunch recess did defense counsel first

move to strike this testimony on hearsay grounds. In response, Judge Gómez noted that



                                                 6
defense counsel had “asked a series of questions [and] elicited the [challenged]

testimony.” Judge Gómez subsequently denied the motion in open court, stating that it

would not be “appropriate” to strike “information that [defense counsel] elicited during . .

. cross-examination.” Because defense counsel first raised the subject of who, if anyone,

was identified as being in charge of the boat on the night in question and because defense

counsel continued to elicit information on that subject after securing the initial response,

we believe the district court was well within its discretion in rejecting Magloire’s belated

motion to strike.1 See, e.g., United States v. Parikh, 858 F.2d 688, 695 (11th Cir. 1988)

(“We hold that the admission of out of court statements by a government witness, when

responding to an inquiry by defense counsel, creates ‘invited error.’”); United States v.

Cabera, 201 F.3d 1243, 1248-49 (9th Cir. 2000); United States v. Driver, 242 F.3d 767,

770 (7th Cir. 2001) (“If . . . defense counsel elicits testimony at trial, the defendant can’t

argue on appeal that the evidence was hearsay and should have been excluded.”).2


       1
        For the same reason, we reject Magloire’s argument that admission of the challenged
hearsay statement violated his rights under the Confrontation Clause. See Parikh, 858 F.2d at
695-96 (no Confrontation Clause violation where defense counsel elicits hearsay statement from
government witness).
       2
        Even if the statement Magloire complains of had not been elicited by defense
counsel, the district court might well have found it admissible as the statement of a co-
conspirator under Fed. R. Evid. 801(d)(2)(E). That Rule provides:“a statement by a
coconspirator of a party during the course and in furtherance of the conspiracy” is not
hearsay. Here, the statement was made during the course of an alien smuggling scheme
in which Magloire played an important role as transporter. Additionally, the statement
was made by the boat’s owner, who collected money for the voyage, provided the means
to transport the aliens, and also played a central role in the scheme. Moreover, the
statement can be viewed as made in furtherance of the conspiracy to smuggle aliens

                                               7
       Magloire’s argument that § 455(b)(3) required recusal also fails because Magloire

has not presented anything to show that Judge Gómez acted as counsel or advised others

with respect to his prosecution. Nor has Magloire asserted any facts suggesting that

Judge Gómez expressed an opinion concerning the merits of Magloire’s prosecution

while in the United States Attorney’s Office. We, therefore, conclude that his belated

recusal argument is meritless.

                                             III.

       Magloire’s claim that the evidence was insufficient fares no better. Section

1324(a)(1)(A)(I) of Title 8 of the United States Code provides:

              Any person who—knowing that a person is an alien, brings to
              or attempts to bring to the United States in any manner
              whatsoever such person at a place other than a designated port
              of entry or place other than as designated by the
              Commissioner, regardless of whether such alien has received
              prior official authorization to come to, enter, or reside in the
              United States and regardless of any future official action
              which may be taken with respect to such alien . . . shall be
              punished as provided in subparagraph (B).

Therefore, § 1324(a)(1)(A)(I) required the Government to establish: (1) that Magloire



because the statement informed the passengers who would be transporting them to the
Virgin Islands, possibly allaying some of their fears and giving them a sense of security in
their investment.
        Magloire’s acquittal on the conspiracy charge would not have precluded admission
of the statement under Rule 801(d)(2)(E). “Generally, the trial judge makes a finding that the
government has shown the conspiracy’s existence by a preponderance of the evidence before the
statement is admitted.” United States v. De Peri, 778 F.2d 963, 981 (3d Cir. 1985).
Accordingly, the jury’s eventual conclusion that the Government failed to establish the
conspiracy beyond a reasonable doubt has no bearing on the statement’s admissibility.

                                              8
brought or attempted to bring into the United States; (2) an alien; (3) knowing that the

person was an alien; and (4) did so at a place other than a designated port of entry.

       Section 1324(a)(2)(B)(ii) of Title 8 of the United States Code provides:

              Any person who, knowing or in reckless disregard of the fact
              that an alien has not received prior official authorization to
              come to, enter, or reside in the United States, brings to or
              attempts to bring to the United States in any manner
              whatsoever, such alien, regardless of any official action which
              may later be taken with respect to such alien shall, for each
              alien in respect to whom a violation of this paragraph occurs .
              . . in the case of—an offense done for the purpose of
              commercial advantage or private financial gain . . . be fined
              under Title 18 and shall be imprisoned. . . .

Thus, § 1324(a)(2)(B(ii) required the Government to establish that (1) Magloire brought

or attempted to bring; (2) an alien; (3) knowing or recklessly disregarding the fact that the

alien had not received official permission to enter; and (4) did so for financial gain.

       “In reviewing a jury verdict for sufficiency of the evidence, we must consider the

evidence in the light most favorable to the [G]overnment and affirm the judgment if there

is substantial evidence from which any rational trier of fact could find guilt beyond a

reasonable doubt.” United States v. Brown, 3 F.3d 673, 680 (3d Cir.1993) (citation and

internal quotations omitted). Accordingly, “[a] defendant challenging the sufficiency of

the evidence bears a heavy burden,” United States v. Casper, 956 F.2d 416, 421 (3d

Cir.1992) (citations omitted), in trying to overturn a verdict.

       The evidence we have summarized above is clearly sufficient to establish

Magloire’s guilt under both statutes. Magloire directs us to United States v. Nguyen, 73

                                              9
F.3d 887 (9th Cir. 1995) and United States v. Barajas-Montiel, 185 F.3d 947 (9th Cir.

1999), in urging us to construe sections 1324(a)(1)(A)(i) and 1324(a)(2)(B)(ii) as

requiring a specific criminal intent to violate the immigration law. However, we need not

decide whether those sections have that mens rea requirement because the record here

would allow a reasonable jury to find all the elements beyond a reasonable doubt even if

we were to require specific intent to violate the immigration law. Specifically, the aliens

were first loaded on a small boat that left harbor under cover of darkness or in the early

morning hours. They were then transported to a larger boat that brought them to the

Virgin Islands at a location that was neither intended nor designed as a port of entry, but

which did minimize the chance that they would encounter immigration authorities. This

certainly suggests something other than the typical Caribbean cruise. A jury could

certainly conclude that this procedure was used to minimize the likelihood of detection by

authorities. Indeed, we can think of no other explanation for the time or method of

departure. Accordingly, there is enough here to establish Magloire’s criminal intent even

if we conclude that element is required for conviction.

       Magloire argues the evidence supports his contention that he was merely a

passenger on the boat, like the other thirty-two aliens apprehended by Virgin Islands

Police Department, and that the record does not support the conclusion that he brought

them into the United States. However, as noted at the outset, the Government’s evidence

established that Magloire and Laville were the only two people who operated the boat



                                             10
during its sojourn from Dominica to the Virgin Islands, and that the owner of the boat

introduced Magloire as one of the boat’s two “operators.” Furthermore, Magloire was in

possession of a GPS when apprehended. That is consistent with testimony that he was an

operator; a passenger would not need a satellite navigating device. The Government’s

evidence also established that the boat carried Haitian, Cuban, Dominican, and Brazilian

nationals who paid to enter the United States illegally. Moreover, the boat ran aground in

a channel that did not lead to the Gallows Bay dock—the designated port of entry for

vessels arriving in Christiansted. Based on the foregoing, a rational juror could infer that

Magloire brought illegal aliens to the United States at a place other than a designated port

of entry; indeed, the juror would be hard pressed to conclude anything else. Moreover,

when viewed in the light most favorable to the Government, the evidence also established

that Magloire knew the passengers were aliens.

       Magloire further contends that the Government’s evidence failed to establish that

he brought aliens to the United States for financial gain. We have already summarized

the evidence that undermines that claim. We need only reiterate the testimony that alien

smuggling operations usually begin at holding locations, like Dominica, and that the

individuals who operate boats transporting aliens are compensated for their efforts.

Insofar as 8 U.S.C. § 1324(a)(2)(B)(ii) “does not require evidence of an actual payment or

even an agreement to pay,” United States v. Angwin, 271 F.3d 786, 805 (9th Cir. 2001), a

rational juror could infer that Magloire knew or acted in reckless disregard of the fact that



                                             11
the aliens he transported lacked official permission to enter the United States, and that he

had been, or would be, compensated with a portion of the money that the aliens paid to be

transported to the United States.

       Finally, Magloire argues that his trial counsel was ineffective for several reasons.

However, “claims of ineffective assistance of counsel are ordinarily not cognizable on

direct appeal.” United States v. Tobin, 155 F.3d 636, 643 (3d Cir. 1998). “The proper

mechanism for challenging the efficacy of counsel is through a motion pursuant to 28

U.S.C. § 2255.” Id. It is not, therefore, appropriate for us to address that issue now.

                                             IV.




                                             12
