                                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 10-3342
                                    _____________

                     GOVERNMENT OF THE VIRGIN ISLANDS

                                           v.

                                   WADE GUMBS,
                                      Appellant
                                   _____________

                             Appeal from the District Court
                        of the Virgin Islands Appellate Division
                        (D.C. Criminal No. 3-03-cr-00014-001)
          District Judges: Hon. Curtis V. Gomez and Hon. Raymond L. Finch
                   Superior Court Judge: Honorable Patricia D. Steele
                                    _____________

                                 Argued April 12, 2011

              Before: SCIRICA, RENDELL and AMBRO, Circuit Judges

                             (Opinion Filed: May 4, 2011)
                                   _____________

Ravinder S. Nagi, Esq.
Nycole A. Thompson, Esq. [ARGUED]
Bolt Nagi
5600 Royal Dane Mall, Corporate Place
Charlotte Amalie
St. Thomas, VI 00802-6410
   Counsel for Appellant

Matthew C. Phelan, Esq. [ARGUED]
Maureen Phelan, Esq.
Office of Attorney General of the Virgin Islands
Department of Justice
34-38 Kronprindsens Gade, GERS Complex, 2nd Floor
Charlotte Amalie
St. Thomas, VI 00802
   Counsel for Appellee
                                _____________

                               OPINION OF THE COURT
                                   _____________

RENDELL, Circuit Judge.

       On December 4, 2002, Appellant, Wade Gumbs, was convicted in the Superior

Court of the Virgin Islands of first-degree murder, in violation of 14 V.I.C. § 922(A)(1),

and unauthorized possession of a firearm during the commission of a crime of violence,

in violation of 14 V.I.C. § 2253(a). The District Court of the Virgin Islands, Appellate

Division, upheld the convictions. Gumbs now appeals his convictions to this Court and

urges that: (1) he was denied his Sixth Amendment right to effective counsel, (2) the

prosecution failed to release certain information to Gumbs about the victim’s medical

records and about government remunerations and assistance given to its key witness,

Andrea Powell, in conflict with Brady v. Maryland, 373 U.S. 863 (1963), (3) the

testimony of Andrea Powell and Dr. William Fogarty was insufficient to prove the

charged crimes beyond a reasonable doubt, and (4) the Superior Court abused its

discretion by admitting a certificate of non-existence of record in violation of the

Confrontation Clause.

       We are not persuaded by any of Gumbs’ first three challenges, and therefore, we

will affirm his conviction for first-degree murder. However, in light of the precedent

established by Crawford v. Washington, 541 U.S. 36, 51 (2004), and Melendez-Diaz v.


                                              2
Massachusetts, 129 S.Ct. 2527, 2531 (2009), we will vacate Gumbs’ conviction for

unauthorized possession of a firearm during the commission of a crime of violence, as the

certificate of non-existence of record was admitted without Gumbs having the

opportunity to confront the individual who prepared the certificate, a clear violation of

the Confrontation Clause. As we write solely for the benefit of the parties, who are

familiar with the facts and procedural history of the case, we confine our discussion to the

legal issues presented and include only those facts necessary to our disposition.



                          Right to Effective Assistance of Counsel

       Gumbs’ initial challenge is that his convictions should be vacated because his

Sixth Amendment right to effective assistance of counsel was offended by his trial

attorney’s failure to reasonably prepare for trial, as well as the existence of a conflict of

interest due to concurrent representation of Gumbs and a witness.

       We do not normally entertain ineffective assistance of counsel claims on direct

appeal, as “such claims frequently involve questions regarding conduct that occurred

outside the purview of the district court and therefore can be resolved only after a factual

development at an appropriate hearing.” United States v. Mclaughlin, 386 F.3d 547, 555

(3d Cir. 2004) (quoting Gov’t of Virgin Islands v. Zepp, 748 F.2d 125, 133 (3d Cir.

1984). Gumbs previously attacked the performance of his trial counsel by means of a

Petition for a Writ of Habeas Corpus and lost that challenge. While there was a hearing

held in connection with that petition, nonetheless, we agree with the District Court that

the record was not sufficiently developed. Thus the District Court did not err in declining

                                               3
to address the issue.1 Therefore, Gumbs’ challenge based on his Sixth Amendment right

to effective assistance of counsel must fail.



                                      Brady Challenge

       Gumbs also challenges his convictions on the basis that his due process rights

were violated when the prosecution failed to release certain information to the Defendant.

In Brady v. Maryland, the Supreme Court held that “the suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or bad faith of

the prosecution.” 373 U.S. 83, 87 (1963). This was later extended to include

impeachment evidence in Giglio v. United States, 405 U.S. 150, 154 (1972). To establish

that his due process rights had been violated in this manner, a defendant must show that

“(1) evidence was suppressed; (2) the evidence was favorable to the defense; and (3) the

evidence was material.” United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006). For a

Brady challenge, we review the trial court’s legal conclusions de novo, and the factual

findings under a clearly erroneous standard. United States v. Joseph, 996 F.2d 36, 39 (3d

Cir. 1993).

       Here, Gumbs claims that the prosecution withheld certain impeachment evidence

about Powell: (1) regarding help Powell received from police officials in relation to her

immigration status; (2) regarding money Powell received from police officials; (3)

   1
     We need not reach the issue as to whether Gumbs’ failure to appeal the denial of the
writ is a bar to our consideration of the issue, by way of waiver, res judicata, or law of the
case.
                                                4
regarding help Powell received from police officials in removing her son from the island

after alleged threats were made on his life. The Appellate Division found no violations.

       We agree with the Appellate Division’s assessment that Gumbs has failed to show

that the evidence was not known to Gumbs’ attorney. After reviewing the trial

transcripts, we think it is clear that Gumbs was sufficiently aware of the allegedly

suppressed information, either prior to trial, as Gumbs raised these issues very

specifically on cross examination of witnesses, or, at least during trial, as the information

was clearly made available while the prosecution was conducting direct examination and

Gumbs was able to utilize the information effectively as impeachment evidence on cross.

See United States v. Johnson, 816 F.2d 918, 924 (3d Cir. 1987)(“Where the government

makes Brady evidence available during the course of a trial in such a way that a

defendant is able effectively to use it, due process is not violated and Brady is not

contravened.”). Gumbs also challenges the prosecution’s failure to produce the victim’s

medical records, but this information was equally available to Gumbs and the

government, so this Brady challenge must fail as well. United States v. Pelullo, 399 F.3d

197, 202 (3d Cir. 2005)( “[T]he government is not obliged under Brady to furnish a

defendant with information which he already has or, with any reasonable diligence, he

can obtain himself.”(quoting United States v. Starusko, 729 f.2d 256, 262 (3d Cir. 1984)).



                                Sufficiency of the Evidence

       Gumbs also claims that the evidence offered by the prosecution was insufficient to

support his convictions. Our standard of review for this type of challenge is plenary, and

                                              5
we must uphold a verdict if, after viewing the evidence in the light most favorable to the

government and giving the government the benefit of all inferences, “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

United States v. Voight, 89 F.3d 1050, 1080 (3d Cir. 1996)(citations omitted).

       Gumbs argues that the prosecution could not prove his crimes beyond a reasonable

doubt because the Powell’s credibility was severely damaged by the impeachment

evidence offered at trial and there was insufficient evidence offered as to cause of death.

Gumbs argument is based on the witness’ alleged lack of credibility, as Gumbs does not

claim that the prosecution failed to make out any of the elements of the crime; rather he

merely argues that the weight of evidence leads to a reasonable doubt. The jury did not

agree, and neither can we. It was not irrational for the jury to find the witness credible

and convict based on her testimony.

       As to the cause of death, the coroner testified that the cause of death was “major

lacerations to both cerebral hemispheres to the brain due to a gunshot wound to the

head.” Gumbs’ argument to defeat this theory at trial by urging that the harvesting of the

victim’s organs was the real cause of death was not accepted by the jury. It is clear to us

that the evidence adduced at trial was sufficient for a rational jury to find Gumbs guilty of

the crimes charged.



                                   Confrontation Clause

       Gumbs also posits a Confrontation Clause challenge to the admission of a

certificate of non-existence of record (“CNR”) regarding Gumbs not being licensed to

                                              6
carry a gun. Our review is governed by an abuse of discretion standard. US v. Prosper,

375 Fed. Appx. 190, 194 (3d Cir. 2010). We hold that the Superior Court erred in

admitting the CNR without Gumbs having the opportunity to confront the person who

prepared the document.

       In Crawford, the Supreme Court held that the Confrontation Clause applies to any

individual who “bear[s] testimony” against the accused and described a core class of

testimonial statements – which includes affidavits – to which the Confrontation Clause

applies. 541 U.S. at 51. This rule was then clarified in Melendez-Diaz to include the

admission of certificates of analysis, utilized by prosecutors to prove the weight and type

of seized drugs, finding that these certificates are “affidavits … that declarants would

reasonably expect to be used prosecutorially.” 129 S.Ct. at 2531 (quoting Crawford, 541

U.S. at 51). In doing so, the Melendez-Diaz Court analogized the certificates of analysis

to CNRs, and as a result, the Second, Fifth, Ninth, and D.C. Circuits have held that the

Confrontation Clause applies to CNRs, as the certificates are offered as substantive

evidence against a defendant whose guilt depends on the document’s accuracy. United

States v. Madarikan, 356 Fed.Appx. 532 (2d Cir. 2009); United States v. Martinez-Rios,

595 F.3d 581 (5th Cir. 2010); United States v. Orozco-Acosta, 607 F.3d 1156 (9th Cir.

2010); Tabaka v. District of Columbia, 976 A.2d 173 (D.C. Cir. 2009).

       We agree with our sister Circuits and, therefore, will vacate Gumbs’ conviction for

the crime of unauthorized possession of a firearm during the commission of a crime of

violence, and remand this count for further proceedings.



                                             7
                                      Conclusion

      Accordingly, we will AFFIRM Gumbs conviction for the crime of first degree

murder, and VACATE his conviction for the crime of unauthorized possession of a

firearm during the commission of a crime of violence, and remand this count for further

proceedings.




                                           8
