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


5-23-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2082




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 06-2082


                            UNITED STATES OF AMERICA

                                               v.

                                  PHINEHAS WEEKES,

                                              Appellant


                 On Appeal from the District Court of the Virgin Islands,
                                 Division of St. Croix
                             (D.C. Crim. No. 1999/0089-1)
                       District Judge: Hon. Anne E. Thompson


                                   Argued May 7, 2007

     Before: SLOVITER, STAPLETON, and VAN ANTWERPEN, Circuit Judges.

                                   (Filed May 23, 2007)

Eric S. Chancellor (Argued)
2111 Company Street, Suite 7
Christiansted, St. Croix, U.S.V.I. 00820

              Counsel for Appellant

Kim L. Chisholm (Argued)
Everard E. Potter
Office of the United States Attorney for the District of the Virgin Islands
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas, U.S.V.I. 00802
Alphonso G. Andrews, Jr.
Office of the United States Attorney for the District of the Virgin Islands
1108 King Street, Suite 201
Christiansted, St. Croix, U.S.V.I. 00820

                     Counsel for the United States




                               OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Appellant Phinehas Weekes was convicted by the District Court of discharging a

firearm in a school zone, possessing a firearm during a crime of violence, and using a

firearm during a crime of violence. On appeal, Weekes argues that the prosecution made

a number of inappropriate comments during its closing argument and that these

comments undermined the fairness of Weekes’ trial.

       The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231 and 48

U.S.C. § 1612, and this Court has jurisdiction pursuant to 28 U.S.C. § 1291. See United

States v. Polanco, 451 F.3d 308, 310 (3d Cir. 2006). For the reasons set forth below, we

will affirm.



                                             I.

       According to his indictment, on August 30, 1999, Appellant Phinehas Weekes

shot acquaintance Gary Mason three times after Mason, who was driving around in


                                             1
search of crack cocaine, hit Weekes’ car as it was parked in front of Weekes’ house. Two

weeks after the shooting, police questioned Mason while he was still in the hospital.

During this questioning, Mason identified Weekes as the culprit and then picked

Weekes’ photo out of a six-person array.

       On December 14, 1999, Weekes was indicted, and on January 8, 2004, he stood

trial for the following: (1) discharging a firearm in a school zone, a violation of 18

U.S.C. § 922(q)(3)(A), (2) attempted first-degree murder, a violation of 14 V.I.C. §§

922(a)(1) and 331, (3) possessing a firearm during a crime of violence, a violation of 14

V.I.C. § 2253(a), and (4) discharging a firearm during a violent crime, a violation of 18

U.S.C. § 924(c)(1)(A). The jury found Weekes not guilty of attempted first degree

murder, but could not reach a verdict as to the other three counts. Accordingly, the

District Court declared a mistrial as to these three counts and commenced a second trial

on April 5, 2004.

       At the second trial, Mason testified, as did an eyewitness who had been sitting in a

parked car near the incident and who knew Weekes. Both identified Weekes as the

shooter. In addition, Weekes’ neighbor testified that she saw Weekes enter his home just

after she heard gun shots, and a police officer testified that he saw Weekes walking

toward the back of his house some time after another witness testified that she saw an

unidentified man walking away from Weekes’ house with a bag in his hand. Ultimately,

a jury found Weekes guilty on all three counts. On March 16, 2006, the District Court


                                              2
sentenced him to 122 months’ imprisonment followed by three years of supervised

release, a special assessment of $200, and a fine of $2000.

       On March 17, 2006, Weekes filed this timely appeal.



                                            II.

       On appeal, Weekes argues that his second trial was unfair because of five remarks

made by the prosecutor during his closing argument. He claims three of these comments

constituted impermissible vouching and that the remaining two were improper for other

reasons. We will review each of these comments below.

       At the outset, we note that Weekes’s attorney objected to four of the five

comments and that the District Court sustained all of his objections. As to the instance of

alleged vouching to which Weekes did not object, we review for plain error. See United

States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003); United States v. Walker, 155 F.3d

180, 187-88 (3d Cir. 1998).

       We consider all five comments in reviewing for abuse of discretion the District

Court’s decision not to grant Weekes’ motion for a mistrial on the grounds that the

prosecutor made improper remarks in his closing argument. United States v.

Dispoz-O-Plastics, Inc., 172 F.3d 275, 282 (3d Cir. 1999). If we find an error, we must

apply harmless error analysis. United States v. Molina-Guevara, 96 F.3d 698, 703 (3d

Cir. 1996). The standard used in the harmless error analysis “depends on whether the


                                             3
error was of constitutional proportions.” Id. (citation omitted). If there is a constitutional

error, this Court may affirm only if the error is “harmless beyond a reasonable doubt.” Id.

(citing Chapman v. State of California, 386 U.S. 18, 24 (1967)). If the error is non-

constitutional, this Court “may affirm so long as there is a ‘high probability’ the error did

not contribute to the conviction.” Id. (citing United States v. Jannotti, 729 F.2d 213,

219-20 (3d Cir. 1984)). In judging whether improper remarks are harmful, we consider

“their scope, their relation to the context of the trial, the ameliorative effect of any

curative instructions and the strength of the evidence supporting the conviction.” United

States v. Rivas, 479 F.3d 259, 267 (3d Cir. 2007) (citation omitted).

                    A. The District Court Did Not Commit Plain Error

       At Weekes’ trial, the prosecution called a witness who had been walking in the

back of Weekes’ residence shortly after the shooting. This witness testified that she saw a

person with a small bag come from the rear of Weekes’ residence and walk down a hill

toward the beach. The witness did not see this person’s face or know what was in the

bag. During his closing argument, the prosecutor asserted the following with respect to

the identity of the person and the contents of the bag: “I guarantee you, that was the

murder weapon that this Defendant was on his way to dispose of.” App. at 214. On

appeal, Weekes argues this comment constituted impermissible vouching.

       As the Supreme Court explained in United States v. Young, “a criminal conviction

is not to be lightly overturned on the basis of a prosecutor’s comments standing alone,


                                               4
for the statements or conduct must be viewed in context; only by so doing can it be

determined whether the prosecutor’s conduct affected the fairness of the trial.” 470 U.S.

1, 11 (1985). With respect to improper vouching, two criteria must be met: “(1) the

prosecutor must assure the jury that the testimony of a Government witness is credible;

and (2) this assurance [must be] based on either the prosecutor’s personal knowledge, or

other information not contained in the record.” Walker, 155 F.3d at 187.

       After reviewing the context of the prosecutor’s inartful comment, we find that it

invited the jury to draw an inference from the witness’ testimony and did not constitute

impermissible vouching. First, the prosecutor never made a claim about the witness’

credibility or misled the jury about her statements. In fact, the prosecutor made clear that

the witness “could not say who [the person walking toward the beach] was.” App. at 213.

Second, just before making the “I guarantee you . . .” comment, the prosecutor explicitly

asked the jurors to draw an inference about the identity of the unidentified person from

the timing of his appearance relative to the shooting, the person’s proximity to Weekes’

residence, and the person’s apparent destination. See id. (“ Now, she couldn’t say who it

was, but you could use you inferences.”). The “I guarantee you . . .” comment was an

extension of this discussion. Third, the prosecutor’s comment in this case could not be

viewed as being based upon special knowledge unique to the prosecutor. This

distinguishes the comment from a similar one made by a prosecutor in

Dispoz-O-Plastics, Inc., a case on which Weekes heavily relies. See Dispoz-O-Plastics,


                                             5
Inc., 172 F.3d at 280 (“I can guarantee you the Justice Department doesn’t give two for

one [plea bargain] deals . . . .”) (emphasis added). In Dispoz-O-Plastics, Inc., we were

concerned that the jury, after hearing the comment, would believe that the prosecutor, an

employee of the Justice Department, had special knowledge of the Justice Department’s

plea bargain policies. See id. at 284 (explaining “[h]is remark about the purported policy

of the Department of Justice . . . was meant to convince the jury that . . . the department

would not give a deal in return for two guilty pleas . . .”). In this case, nothing about the

prosecutor’s office or his involvement in the case would have led a jury to believe that he

had special knowledge of the identity of the witness or the contents of the bag. Finally,

after reviewing the context of the statement, it is clear that the jury would not have taken

the prosecutor’s comment as an actual guarantee based on information outside the record.

Before discussing the testimony of individual witnesses, the prosecutor explained as

follows: “I want you to remember that, as the Court told you, in addition to the evidence

that you hear from witnesses . . . you are allowed to make reasonable inferences. That’s

just another way of saying you can use your common sense to figure out what happened[

f]rom the evidence you have.” App. at 212. He then indicated that he was going to

discuss the testimony of each witness and draw “the reasonable inference[s] that you[,

the jury,] could make.” Id. Given the prosecutor’s explanation, and his many subsequent

references to drawing reasonable inferences, the jury would not have believed that the

prosecutor was supplying it with information outside of the record when he made the “I


                                              6
guarantee you . . .” statement.

       Accordingly, although we believe the prosecutor’s use of the “guarantee”

language was inappropriate, we find no plain error in the District Court’s failure to strike

it sua sponte under the circumstances of this case.

B. The District Court Did Not Abuse Its Discretion in Denying Weekes’ Mistrial Motion

       Weekes also appeals the District Court’s failure to grant his motion for a mistrial

given the prosecutor’s five comments. He claims that these comments, standing alone

and taken together, prejudiced his trial. We analyze each of the four remaining comments

below and then consider all five comments collectively.

1. Reference to witnesses who did not testify at trial

       At Weekes’ trial, a detective testified that he confronted Weekes on September 1,

prior to learning his identity from the victim, and accused Weekes of the shooting. The

detective also testified that he knew the identities of those who had testified in front of

the grand jury on September 7 in this matter, that some of those who testified were

associates of Weekes, and that Weekes left the island shortly after they had testified. See

App. at 55-58. Weekes did not object to any of this testimony. In his summation, the

prosecutor made the following remarks:

              PROSECUTOR: Again, you have to use your logical
              inferences. Why is [the detective] telling [Weekes], “I know
              you did it?” Why is he telling him, as opposed to anybody
              else in the community? Unless [the detective] got information
              from someplace else.


                                              7
              DEFENSE COUNSEL: Objection. Arguing facts not in
              evidence, Your Honor.

              COURT: Sustained.

              PROSECUTOR: Logical inferences. You need to ask
              yourself, why is he out there asking or accusing him of
              committing the crime? How would he know if he wasn’t
              there?
                                            ***
                     We know that [the detective] couldn’t have gotten any
              information from the victim . . . because the victim was still
              unconscious.
                                            ***
                     You got more.

                     Why wasn’t the defendant in this apartment where he
              lives on December 15th when [the detective] went to look for
              him?

                     He told you he had gone. And we knew he left. The
              evidence is he left the island September 10th.1 But the
              evidence, also, is that December 7th, witnesses went to the
              Grand Jury on this case. The evidence also is that some of
              those witnesses were associates of the Defendant.

              DEFENSE COUNSEL: Again, Your Honor, arguing facts
              not in evidence.

              COURT: Sustained.

App. at 217-18.

       We analyze these and the remaining comments in two steps: “[W]e must first be


   1
    In referring to the date of the defendant’s flight, the prosecutor misspoke. Later in his
closing argument, he clarified that Weekes fled the island on December 10, 1999, not
September 10, 1999. See App. at 219 (explaining that “[h]e was running from December
10th until 2002”).

                                              8
convinced that the prosecution did in fact misconduct itself.” Rivas, 479 F.3d at 266. If

we find misconduct, we then apply harmless error analysis. See Molina-Guevara, 96

F.3d at 703.

       Weekes argues that the prosecutor’s comments invited the jury to infer “that there

were other witnesses who gave [the detective] information,” and that these other

witnesses were not available for cross-examination. Weekes’ Br. at 15. We find the

prosecutor’s remark that the detective “got information from someplace else” somewhat

unclear. App. at 217. If the term “someplace else” referred to a person or persons who

testified at trial, such as the eyewitness or Weekes’ neighbor, the remark would appear to

be proper. However, if the term “someplace else” referred to a person or persons who did

not testify at trial, the prosecutor’s argument would be improper. Calling for such an

inference would implicate Weekes’ right “to be confronted with the witnesses against

him.” U.S. Const. amend. VI. Accordingly, we may affirm the District Court’s decision

to deny Weekes’ motion for a mistrial only if the comments were “harmless beyond a

reasonable doubt.” Molina-Guevara, 96 F.3d at 703.

       Even if we assume the term “someplace” referred to a person or persons who did

not testify at trial, we nevertheless conclude that the prosecutor’s comments were

harmless for the following reasons. First, Weekes immediately lodged objections to these

comments and the District Court promptly sustained these objections. This contrasts with

the District Court’s decision to overrule defense counsel’s objections to inappropriate


                                             9
comments in Molina-Guevara, a case Weekes argues is analogous to his. Second, on

more than one occasion, the District Court instructed the jury that “arguments of the

lawyers are not evidence.” Apr. 6, 2004, Jury Charge Tr. at 6, 39. As we have explained,

“[w]e must assume that juries for the most part understand and faithfully follow

instructions.” Gov’t of V.I. v. Rosa, 399 F.3d 283, 297 (3d Cir. 2005) (quoting

Connecticut v. Johnson, 460 U.S. 73, 85 n. 14 (1983)). We see nothing in the record that

would lead us to believe that this assumption is unwarranted in this case. Finally, the

evidence presented against Weekes at trial was sufficiently strong to support his

conviction. The victim and the eyewitness who identified Weekes as the shooter knew

him personally. These witnesses testified consistently at trial. In addition, other witnesses

testified that Weekes entered his home immediately after the shooting and that he was

walking back to his house just minutes after a witness saw an unidentified person walk

from the back of Weekes’ home toward the beach. Even Weekes’ own witness, Bertram

Joseph, who lived with Weekes and was in his bedroom at the time of the shooting,

testified that he heard the front door close just after the shooting.

       In sum, given that the District Court sustained Weekes’ objections to the

comments, the ameliorative effect of the District Court’s jury instruction, and the

strength of the evidence supporting Weekes’ conviction, we find the prosecutor’s error

harmless beyond a reasonable doubt.

2. Reference to witnesses too afraid to come forward


                                              10
       At Weekes’ trial, the detective who confronted Weekes after the shooting said that

Weekes made the following comment in response to the detective’s accusation that

Weekes was the shooter: “[You] will have to prove that, because nobody [is] going to

talk about that in [my neighborhood].” App. at 52. Weekes did not object to this

testimony. During his summation, the prosecutor implicitly referenced this comment as

follows: “Think about what’s happening here, ladies and gentlemen. There is obviously a

code. There is a street code that says you don’t talk. You don’t become an eyewitness.”

App. at 240. Weekes lodged an objection to this comment that the Court sustained.

       We do not find that the prosecutor erred in making this statement. As we have

explained, “the prosecutor is entitled to considerable latitude in summation to argue the

evidence and any reasonable inferences that can be drawn from that evidence.” United

States v. Green, 25 F.3d 206, 210 (3d Cir. 1994) (quoting United States v. Werme, 939

F.2d 108, 117 (3d Cir. 1991)). We find it was reasonable for the prosecutor to infer that

there was a “street code” based on Weekes’ comment that no one in his neighborhood

would talk to police about the shooting.

3. Reference to Weekes’ motive

       At Weekes’ trial, the victim testified that he knew Weekes through Weekes’

stepfather and that he had testified on behalf of Weekes’ stepfather and against Weekes’

mother in a child-custody dispute that Weekes’ mother ultimately lost. Weekes objected

to this line of questioning, but the Court permitted it because it went to motive. In his


                                             11
closing, the prosecutor explicitly stated that this dispute gave Weekes a motive: “I would

say [Weekes] had some motive beyond the hitting of his vehicle . . . Remember [the

victim] testified that two weeks before this incident happened, . . . [h]e was testifying, in

essence, against this Defendant’s mother . . . . And as a result of that, [Weekes’

stepfather] got custody [of Weekes’ little sister.]” App. at 219. Weekes lodged an

objection to this comment that the Court sustained.

       We do not find that the prosecutor erred in making this statement, as it was

reasonable to infer that Weekes may have held a grudge against the victim based on the

victim’s then-recent testimony against Weekes’ mother.

4. Reference to lack of a weapon

       Finally, the prosecutor made the following comments about the government’s

failure to produce the gun used to shoot Mason: “You have to prove that the defendant

had a gun but there is no element that says produce the gun. That’s a red herring. You

realize how easy it would be to just continue shoot (sic) up people, committing crimes,

while, if the Government had to produce a gun? If you think that we have problems now

with people being shot and shots being discharged, it will be worse – ” App. at 239.

Weekes lodged an objection to this comment that the Court sustained.

       Weekes argues that this comment by the prosecution constituted error and that it

was made to inflame the passions of the jury. We agree. However, we find that there is a

high probability that this non-constitutional error did not contribute to Weekes’


                                             12
conviction. We base our finding on the District Court’s providing the jury with the

following curative instruction intended to specifically address this improper remark:

              This defendant is not on trial for any general charge
              concerning weapons. He is not on trial for anything not in the
              indictment. He cannot be held accountable for crimes of
              violence that [are] not charged in the indictment. He cannot
              be held accountable for use of weapons on the streets of St.
              Croix or the Virgin Islands in particular.

Apr. 7, 2004, Jury Charge Tr. at 1. This instruction, when considered along with the fact

that the District Court sustained Weekes’ objection to the comment and that the evidence

against Weekes was strong, permits us to conclude to a high probability that the comment

did not negatively affect Weekes’ trial.

5. Cumulative Effect of All Five Comments

       Weekes also argues that all five comments, when considered together, undermined

the fairness of his trial. We disagree. As we have discussed, we find no impropriety with

respect to two of the five. Given the limited scope of the remaining comments, the

District Court’s sustaining of the two objections that were made, the District Court’s

general and specific curative instructions, and the strength of the evidence against

Weekes, we find these comments harmless beyond a reasonable doubt.

       Accordingly, we find the District Court did not abuse its discretion in denying

Weekes’ motion for a mistrial.2


   2
    Although we do not find the prosecutor’s inappropriate comments to be sufficiently
prejudicial to rise to the level of reversible error, our disposition of this case should not be

                                              13
                                              III.

       We have considered all other arguments made by the parties on appeal, and

conclude that no further discussion is necessary. For the foregoing reasons, we will

affirm the District Court’s decision in all respects.




understood to condone the improper remarks made here. Even where prosecutorial
indiscretion in closing arguments does not constitute reversible error, such misconduct
“results in an unnecessary waste of judicial resources, both at the trial and appellate level,
by diversion and attention to review of what by now should be understood to be totally
unacceptable conduct . . . .” United States v. Maccini, 721 F.2d 840, 846 (1st Cir. 1983);
see United States v. Somers, 496 F.2d 723, 742 (3d Cir. 1974) (“[O]ur Court has too
frequently been required to review the issue of prosecutorial misconduct. We feel quite
strongly that we should not have to deal so constantly with such a recurring issue when it
can so readily be avoided.”); United States v. Bethancourt, 65 F.3d 1074, 1084 (3d Cir.
1995) (McKee, J., concurring in part and dissenting in part) (noting regularity with which
we have addressed instances of improper closing argument, notwithstanding our “oft
repeated refrain as to the impropriety and danger of such argument”).

                                              14
