                                  PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
             ______________

                  No. 16-1373
                ______________

        UNITED STATES OF AMERICA

                       v.

             ELVIN WRENSFORD,

                         Appellant
                ______________

                  No. 16-1395
                ______________

        UNITED STATES OF AMERICA

                       v.

               CRAIG MULLER,

                         Appellant
                ______________

    APPEAL FROM THE DISTRICT COURT
            OF THE VIRGIN ISLANDS
(D.C. Nos. 1-13-cr-00003-001 & 1-13-cr-00003-002)
           District Judge: Hon. Wilma A. Lewis
                      ______________

                   Argued May 2, 2017
                    ______________

 Before: GREENAWAY, JR., SHWARTZ, and FUENTES,
                 Circuit Judges

                 (Filed: August 31, 2017)


Omodare B. Jupiter, Esq. [ARGUED]
Federal Public Defender
1115 Strand Street, Suite 201
Christiansted, VI 00820

      Counsel for Appellant Elvin Wrensford

Martial A. Webster, Sr., Esq. [ARGUED]
Law Office of Martial A. Webster, Sr.
116 Queen Cross Street
Frederiksted, VI 00851

      Counsel for Appellant Craig Muller

Alphonso G. Andrews, Jr., Esq.
Rhonda Williams-Henry, Esq. [ARGUED]
Office of United States Attorney
1108 King Street, Suite 201
Christiansted, VI 00820




                            2
David W. White [ARGUED]
Office of United States Attorney
5500 Veterans Drive, Suite 260
United States Courthouse
St. Thomas, VI 00802

      Counsel for Appellee United States of America


                      ______________

                OPINION OF THE COURT
                    ______________

SHWARTZ, Circuit Judge

       Elvin Wrensford and Craig Muller (“Defendants”)
were convicted of federal and territorial crimes arising from a
May 10, 2012 shooting in Christiansted, St. Croix.
Defendants appeal the District Court’s orders denying their
motions to suppress evidence, the admission at trial of out-of-
court identifications, orders denying their motions for
mistrials based on the jury poll, and the refusal to give a
voluntary manslaughter jury instruction.          Muller also
challenges the sufficiency of the evidence against him.

       Because Wrensford was de facto arrested when,
without probable cause, he was transported from the location
where police found him to a police station and placed in a
cell, we will vacate and remand to the District Court to
determine whether (1) an exception to the Fourth Amendment
applies and renders the evidence admissible, or (2) a new trial
is warranted. As to Muller, we will affirm the District




                               3
Court’s judgment because (1) he waived his challenge to the
suppression rulings, (2) the District Court did not abuse its
discretion by admitting the eyewitness identification, polling
the jury and instructing it to redeliberate, or refusing to give a
voluntary manslaughter jury instruction, and (3) the District
Court correctly concluded that the evidence was sufficient to
support the jury’s verdict against him.

                                I

                                A

        Wrensford and Muller were involved in an altercation
with a man at Ben’s Car Wash on the afternoon of May 10,
2012. A few hours later, the man returned to the car wash
with Gilbert Hendricks, apparently looking for someone.
Hendricks and the man left, but Hendricks returned to the car
wash at around 8:00 p.m. Shortly after he arrived, a red truck
passed in front of the car wash and, moments later, the truck
turned around and chased Hendricks down the road toward
Food Town, a local supermarket. The passenger, who was
later identified as Wrensford, fired several shots at Hendricks.
Hendricks died two days later from gunshot wounds to his
head.




                                4
                             B1

       Several officers responded to the scene at around 8:06
p.m. Witnesses told Officer Julio Mendez that a red truck left
the area at a high speed. Mendez drove in the direction the
truck was observed going, and 45 minutes later, he
encountered two men walking on the road. Mendez stopped
in front of them and noticed that both were sweating
profusely; one said they were coming from a basketball court
in the area. Mendez called for backup, and before he could
approach them, both men ran. One ran into the bushes and
the other ran toward a gas station. Mendez radioed a general
description of the men to other officers.

       Officer Leon Cruz was patrolling after the shooting
when, at 8:46 p.m., he heard the transmission from Mendez
stating that two “black, rasta males” were on the run. App.
358-59. (Cruz testified that “rasta” means a person who has
dreadlocks. App. 428-29.) Cruz thereafter observed a man
wearing a white shirt running across the street toward a
ballpark. Cruz turned toward the ballpark and saw a “rasta
guy” standing near the bush area. App. 362-63. He also saw
a white shirt hanging in the bushes. At approximately 8:58
p.m., Cruz drew his gun, ordered the individual—
Wrensford—to show his hands and get on the ground, and
once another officer arrived, Cruz placed Wrensford in
handcuffs. Cruz patted Wrensford down and removed a
knife, keys to a GMC truck, a wallet, and an insurance card

      1
        Because Wrensford’s motion to suppress is central to
this appeal, the facts in Section B are drawn largely from the
evidence presented at the suppression hearing. Many of these
facts were also presented at trial.




                              5
from Wrensford’s pockets. Wrensford was then transported
to the “C Command” police station in a police vehicle at
around 9:06 p.m. and placed in a cell. Officers later returned
to the area where Wrensford was stopped and recovered a
Smith & Wesson 9 mm pistol close to where he had been
standing. Shortly after Wrensford was detained, Mendez
notified the other officers that a red GMC truck had been
found, partially hidden in bushes, next to an abandoned
building.
        At the scene of the shooting, Detective Kirk
Fieulleteau spoke to two witnesses: Tynicia Teague and her
father, Trevor Teague, who were in the Food Town parking
lot during the shooting and said they were able to identify the
shooter. Fieulleteau decided to speak with the witnesses at C
Command, so he asked a fellow officer, Lydia Figueroa, to
take Wrensford from C Command to the Rainbow Building
police station in Frederiksted. Fieulleteau went to the station
and found Wrensford in a cell. Fieulleteau took Wrensford’s
driver’s license and then he, Figueroa, and another officer
escorted Wrensford outside while handcuffed and placed him
in a police car in front of the station. Fieulleteau testified that
he did not want the witnesses “to have any sort of inadvertent
interaction with him.” App. 659.

       Tynicia and Trevor Teague arrived at C Command at
around 9:55 p.m. As Wrensford was being taken out of the
station and into the car, which was a few steps from the
station’s front door, Tynicia Teague was waiting at a traffic
light outside the station. She looked toward C Command and
observed Wrensford being put into the police car. The
Teagues thereafter entered the police station and met with the
police. Before Fieulleteau had formally commenced the
interview with Tynicia Teague, she “blurted out” that she saw




                                6
the shooter, referring to Wrensford, being taken out of the
station. App. 600. Trevor Teague told Officer Richard
Matthews “the same thing.” App. 661. Tynicia Teague then
provided a statement concerning the shooting, and when
shown Wrensford’s driver’s license, she confirmed that he
was the shooter and the person she saw outside the station.

       Matthews met with Wrensford later that night at
Rainbow Building. At 12:23 a.m., Matthews read Wrensford
his Miranda rights, and Wrensford acknowledged his rights
but did not sign the Miranda waiver form. Wrensford told
Matthews that he was playing basketball that evening in the
Princess area with “a partner of his,” but he declined to give
his partner’s name. App. 509. While being booked at
approximately 1:30 a.m. on May 11, Wrensford agreed to
provide a DNA sample.

       Tynicia Teague also said she saw the truck’s driver.
Three days after the shooting, she was shown a photo array
that included Muller’s photo and she identified him as the
driver. She said that prior to the shooting, she had seen
Muller with Wrensford.

                              C

       At trial, Muller’s grandfather testified concerning
Muller’s actions and whereabouts after the shooting. Muller
began staying with his grandfather on the fourth day after the
shooting. Muller told his grandfather that he was ill,
considered not going to work, and planned to travel to New
York to see his mother and a doctor. Notably, two of his co-
workers testified that Muller never mentioned that he was
feeling ill or planning to leave St. Croix. Rather, one of




                              7
Muller’s co-workers testified that he overheard co-workers
asking Muller whether he was involved in the shooting (they
heard that he was). Muller’s supervisor testified that, after
the shooting, Muller asked to be reassigned to work in a
different area of the island, because “he had a situation.”
App. 1920-21.

        Just four days after he began living with his
grandfather, Muller left St. Croix and traveled to the San
Juan, Puerto Rico airport, where he was met by Tomas
Garcia, a Customs and Border Protection officer. Garcia
testified that he approached Muller from behind and told him
he was “there to pick him up.” App. 1544. Muller “lowered
his head and shoulders” and “said that’s okay. I figured
somebody was going to pick [me] up.” App. 1544. Garcia
handcuffed him and advised him that he would be detained
“on some business that he had in St. Croix . . . .” App. 1544.
Garcia escorted Muller to an inspection area and asked
whether Muller knew of any issues or problems in St. Croix.
Muller then “broke down crying,” App. 1545, and returned to
St. Croix.

                               D

       Wrensford and Muller were charged with:
(1) possession of a firearm in a school zone, in violation of 18
U.S.C. §§ 922(q)(2)(A) and 924(a)(1)(B) (Count I); (2) using
a firearm during a violent crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii) (Count II); (3) first degree murder, in
violation of 14 V.I. Code §§ 922(a)(1) and 923(a) (Count IV);
and (4) unauthorized possession of a firearm, in violation of
14 V.I. Code § 2253(a) (Count V). In addition, Wrensford




                               8
was charged with possession of a firearm with an obliterated
serial number, in violation of 18 U.S.C. § 922(k) (Count III).

        Wrensford moved to suppress items found in his
possession, the statements he made to law enforcement,
identifications made by Tynicia and Trevor Teague, and his
DNA sample. Muller moved to suppress any identification
evidence. The District Court granted Wrensford’s motion to
suppress the truck keys, wallet, and insurance card, but
denied his motion to suppress the knife, his statements to the
police, the DNA evidence, and the eyewitness identifications.
The District Court found the DNA sample was admissible
because it was taken after he was arrested and pursuant to
probable cause. As to the identifications of both Wrensford
and Muller, the Court concluded that the identifications were
not the product of unduly suggestive procedures and denied
the motions to suppress them.

                              E

       In addition to the events described above concerning
the apprehension of Wrensford and Muller, the jury heard
testimony from Henry Mason, who knew Wrensford, Muller,
and Hendricks. Mason testified that he was at Ben’s Car
Wash on the afternoon of the shooting and observed Muller
and Wrensford having an altercation with an associate of
Hendricks.

       Tynicia Teague testified that she was in the Food
Town parking lot on the night of the shooting and went to the
police station afterward, but claimed she did not remember
any details about the shooting or her identification of
Wrensford. Portions of her statements to the police, which




                              9
included her identifications of Wrensford and Muller, and the
photo array were admitted into evidence.

       The Government presented evidence that 9 mm, .38
class (9 mm), and .40 caliber bullet casings were found at the
scene of the shooting or in the truck. The jury also heard
evidence that a 9 mm Smith & Wesson was found where
Wrensford was stopped, his DNA was found on the weapon,
and the 9 mm casings found at the scene were fired from that
gun.
                              F

        After hearing the evidence, instructions, and
summations, the jury found Wrensford guilty on Counts I-V
and Muller guilty on Counts I, IV, and V. Defendants asked
to poll the jury.

        All jurors, including Juror 7, initially responded that
the verdict was their independent verdict, but after Juror 7
replied regarding Count IV as to Wrensford, Wrensford’s
counsel stated that he did not hear a response. The Court
asked again whether it was Juror 7’s independent verdict, and
she responded “Yes. Yes.” App. 2506. Wrensford’s counsel
stated that he saw Juror 7 “shrug [ ] her shoulders” and heard
no response to the question on Count IV and that he “barely
heard a verbal response from her” as to Count III. App.
2506-07. Wrensford’s counsel sought a declaration that the
verdict was not unanimous or, in the alternative, that Juror 7
be repolled; Muller’s counsel also said that he did not hear
Juror 7 and that she should be repolled.

       The District Court continued polling the remaining
jurors on Count V as to Wrensford, without objection, to




                              10
which the jurors responded that it was their unanimous
verdict, and Juror 7 was then re-polled on Counts III and IV
as to Wrensford and the following ensued:

             The Clerk: Juror No. 7, we were unable
      to hear your response as to Count III. Is this
      your independent verdict?
             The Juror: Yes.
             The Clerk: As to Count IV, is this your
      independent verdict?
             The Juror: Yes.
             The Clerk: Yes? I can’t hear you.
             The Juror: Yes.
             The Clerk: And that was as to Wrensford
      on both counts. Is this your independent
      verdict?
             The Juror: No.
             The Court: As to Wrensford? As to
      Count III?
             The Juror: No.
             The Court: As to Count IV?
             The Juror: No.

App. 2516. After a sidebar, the Court decided to continue
polling as to Muller, and defense counsel did not object. On
Count I as to Muller, Juror 7 stated that it was not her
independent verdict. The Court continued polling the
remaining jurors on that count without objection. After
asking counsel “whether we poll with respect to all the other
counts, or we determine, at this point, whether some other
course of action is appropriate,” App. 2520, Muller and
Wrensford moved for mistrials on the grounds that there
would be too much pressure on Juror 7 if the jury were




                             11
directed to redeliberate. Muller also asked to continue polling
as to the other counts. The District Court continued the poll
and all jurors, including Juror 7, stated that those guilty
verdicts against Muller (on Counts IV and V) were their
independent verdicts.

       Wrensford moved for a mistrial as to Counts III and IV
and Muller moved for a mistrial as to all counts. In response,
the District Court excused the jury to discuss with the parties
whether it should deliver a jury instruction directing the jury
to redeliberate on Counts III and IV for Wrensford and Count
I for Muller. Defendants reiterated their positions and
motions. The Court decided to have the jurors redeliberate on
those counts and gave a supplemental instruction telling the
jury, among other things, that it was desirable to reach a
verdict but emphasizing that the jurors should not surrender
their convictions and that the verdict must reflect the
conscientious judgment of each juror.2 After deliberating


      2
         The District Court instructed the jury as
      follows:

              Now, let me remind you of a couple of
      things as you go back for these further
      deliberations. It is your duty as jurors to
      consult with one another and to deliberate with
      a view to reaching an agreement if you can do
      so without violence to individual judgment.
      Each of you must decide the case for yourself.
      But do so only after an impartial consideration
      of the evidence in the case with your fellow
      jurors.




                              12
       In the course of your deliberations, do
not hesitate to reexamine your own views and
change your opinion if convinced that your
view is erroneous, but do not surrender your
honest conviction as to the weight or effect of
evidence solely because of the opinion of your
fellow jurors, or for the mere purpose of
returning a verdict. It is desirable if a verdict
can be reached, but your verdict must reflect the
conscientious judgment of each juror. Under no
circumstances must any juror yield his
conscientious judgment.

       You’re reminded also that the
government bears the burden of proving each
element of the offense beyond a reasonable
doubt. Do not ever change your mind just
because the other jurors see something
differently, or just to get the case over with. As
I’ve told you before, in the end your vote must
be exactly that, your own vote. And as
important as it is for you to reach a unanimous
agreement, it is just as important that you do so
honestly and in good conscience.

       So with that, by way of supplemental
instruction, I will ask that you return to the jury
room and deliberate further on the particular
counts that I have mentioned, that is Count I for
Mr. Muller, which is Possession of a Firearm in
a School Zone; and Counts III and IV for Mr.
Wrensford, Possession of a Firearm with an




                        13
again, the jury returned a guilty verdict against Wrensford on
Counts III and IV and against Muller on Count I. The jury
was polled again, and all jurors, including Juror 7, replied
“Yes,” that it was their independent verdict, on all counts.
App. 2566-70. Wrensford was thus convicted on Counts I-V,
and Muller was convicted on Counts I, IV, and V.

        Wrensford moved for a new trial, and Muller moved
for a judgment of acquittal or a new trial. Defendants
challenged the Court’s pre-trial suppression orders, the
evidentiary rulings made at trial that allowed out-of-court
identifications into evidence, and the Court’s refusal to
declare a mistrial after a juror indicated that the verdict did
not represent her individual verdict, and Muller asserted that
the evidence was insufficient to convict him. The District
Court denied these motions.

      Wrensford and Muller appeal.




      Obliterated Serial Number, is Count III, and
      Murder in the First Degree is Count IV, with
      the lesser included offense, Second Degree
      Murder, as part of Count IV as well.

             So with that, I ask you to return to the
      jury room for further deliberations. Thank you.

App. 2562-63.




                              14
                              II3

                              A

        Wrensford argues that the District Court erred in
denying his motion to suppress because his involuntary
transportation to the police station and detention in a cell
constituted an arrest without probable cause, in violation of
the Fourth Amendment. We agree and conclude that
Wrensford’s transportation to C Command and placement in
a cell was a de facto arrest.4

        The Fourth Amendment provides: “The right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon probable
cause . . . .” U.S. Const. amend. IV. A “seizure” occurs
when, “taking into account all of the circumstances
surrounding the encounter, the police conduct would have
communicated to a reasonable person that he was not at
liberty to ignore the police presence and go about his
business.” Florida v. Bostick, 501 U.S. 429, 437 (1991)
(citation and internal quotation marks omitted). Absent some
exception, evidence obtained as a result of an illegal seizure,

       3
         The District Court had jurisdiction pursuant to 18
U.S.C. § 3231 and 48 U.S.C. § 1612(c). We have jurisdiction
pursuant to 28 U.S.C. § 1291.
       4
         We “review[ ] the District Court’s denial of a motion
to suppress for clear error as to the underlying factual
findings and exercise[ ] plenary review of the District Court’s
application of the law to those facts.” United States v. Perez,
280 F.3d 318, 336 (3d Cir. 2002) (citation omitted).




                              15
including evidence obtained by consent tainted by the illegal
seizure, is inadmissible. See Florida v. Royer, 460 U.S. 491,
507-08 (1983).

        Depending on the facts, involuntary transportation to a
police station or other custodial setting can be deemed a de
facto arrest. See Hayes v. Florida, 470 U.S. 811, 816 (1985)
(holding that an illegal arrest occurred when the defendant
was transported, without probable cause, from his home to the
police station for fingerprinting, and that “the line is crossed
when the police, without probable cause or a warrant, forcibly
remove a person from his home or other place in which he is
entitled to be and transport him to the police station, where he
is detained, although briefly, for investigative purposes”);
Royer, 460 U.S. at 494-95, 504-07 (plurality opinion)
(holding that the defendant had been subjected to an illegal
arrest when, after detectives requested and did not return his
airline ticket and driver’s license, he was asked to come with
the officers from the concourse into an “interrogation room”
approximately 40 feet away, where his suitcases were
searched); Dunaway v. New York, 442 U.S. 200, 207, 212,
216 (1979) (concluding that the police violated the Fourth
Amendment when, without probable cause, they seized the
defendant from a neighbor’s home and transported him to the
police station for interrogation without telling him he was free
to go); Davis v. Mississippi, 394 U.S. 721, 724-28 (1969)
(ruling that an unreasonable seizure occurred when police
brought the defendant to the police station without probable
cause, a warrant, or his consent for fingerprinting and brief
questioning before he was released); see also Kaupp v. Texas,
538 U.S. 626, 631-33 (2003) (per curiam) (holding that police
executed an illegal arrest when they took a teenage suspect
from his home and brought him, in handcuffs, to the police




                               16
station for questioning); Deputy v. Taylor, 19 F.3d 1485,
1491 (3d Cir. 1994) (discussing Dunaway’s holding “that the
‘reasonable suspicion’ which permits a limited stop under
Terry v. Ohio . . . is not enough to allow the police to
transport the person stopped to the police station and extract
information through detention and interrogation” (citation
omitted)).

        Other appellate courts have also concluded that
transportation to and detention in a police station or other
custodial setting constitutes a de facto arrest. See, e.g.,
United States v. Acosta-Colon, 157 F.3d 9, 15 (1st Cir. 1998)
(holding that, under Royer, the defendant was arrested when
“he was prevented from boarding his plane, placed in
handcuffs, involuntarily transported (in restraints) to an
official holding area some distance from the place of the
original stop, confined to a small interrogation room and kept
there under observation for more than a momentary period;
yet he was never informed how long he would be detained
nor told that he was not under arrest”); Centanni v. Eight
Unknown Officers, 15 F.3d 587, 589, 591-92 (6th Cir. 1994)
(holding that taking an individual who was not suspected of
any crime to a police station and into an interview room, and
detaining her for approximately four hours where it was made
clear she was not free to leave, violated the Fourth
Amendment); United States v. Obasa, 15 F.3d 603, 608 (6th
Cir. 1994) (ruling that an illegal arrest occurred when officers
stopped a cab in which the defendant was riding on an
interstate highway, read him his Miranda rights, and brought
him to an airport police station in a police cruiser, and noting
that “[w]hile [the defendant] was not taken from his home to
the police station, he was taken ‘forcibly’ from a public place
where he had a right to be”); United States v. Ceballos, 812




                               17
F.2d 42, 45-46, 48-50 (2d Cir. 1987) (stating that an illegal
arrest occurred when the defendant was asked to accompany
agents to a field office, the agents did not convey that he had
a choice in the matter, and he was then placed “in a small,
locked interview room” and questioned for several hours);
United States v. Martinez, 808 F.2d 1050, 1055 (5th Cir.
1987) (stating that “[t]he removal of the suspect from the
scene of the stop to police headquarters usually marks the
point at which an investigative stop becomes a de facto
arrest,” but concluding that the officer had probable cause at
the time he transported the defendant to the station); United
States v. Gonzalez, 763 F.2d 1127, 1128, 1133 (10th Cir.
1985) (holding that having the defendant follow an officer to
a police station “three to four miles away,” after the officer
had asked for and retained the defendant’s driver’s license,
registration, and title was not permissible as part of a Terry
stop, and stating that “we understand the Hayes decision as
eliminating the option of forcing the suspect to go to the
police station from the alternatives available to the officer
during an investigative detention”); United States v. Moreno,
742 F.2d 532, 534, 535-36 (9th Cir. 1984) (holding that
escorting the defendant from a baggage claim area to a DEA
office approximately 75 yards away was an arrest, and that
his consent to the search of his bag in that office was tainted
by the illegal seizure). Not every transportation by police,
however, constitutes an arrest.         See United States v.
McCargo, 464 F.3d 192, 197-99 (2d Cir. 2006) (concluding
that officers acted reasonably in transporting the defendant in
a police car from the location he was apprehended, which was
approximately 200 feet from the crime scene, back to the
crime scene for potential identification by the victim).




                              18
        There is no doubt that Wrensford was subjected to a de
facto arrest when the police transported him from the place he
was stopped to the police station and placed him in a cell.
Upon finding him near the ballpark approximately one hour
after the shooting, Cruz drew his gun, ordered Wrensford to
show his hands, ordered him to the ground, and placed him in
handcuffs. After Cruz patted him down and removed his
knife, keys, wallet, and insurance card, Wrensford was placed
in a police car and transported to C Command. Wrensford
was never told he was free to leave or that he did not have to
come to the station. Once at the station, Wrensford was
placed in a cell. Wrensford was then taken from C Command
to Rainbow Building where he was formally arrested at 1:30
a.m. The “line” between an investigative stop and a de facto
arrest was certainly “crossed” when the police forcibly
removed Wrensford from a place he was entitled to be and
transported him to the police station and detained him in a
cell, and, under the precedent, could have been crossed even
before he was placed in the cell. Hayes, 470 U.S. at 816. Put
simply, the involuntary transportation to the police station and
placement in a custodial setting thereafter constituted a de
facto arrest. Dunaway, 442 U.S. at 216. We need not decide
at exactly which point along the timeline here Wrensford was
de facto arrested because on these facts, it is clear that he was
subjected to a de facto arrest once he was put in a cell.

       The Government argues that transporting and
detaining Wrensford was not a de facto arrest, and probable
cause was not required, because detaining him was
reasonably necessary to continue an active investigation into
the shooting. Certain investigatory seizures are permissible
under the Fourth Amendment if there is a reasonable,
articulable suspicion that a person has committed or is about




                               19
to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 27 (1968).
In addition, “there are undoubtedly reasons of safety and
security that would justify moving a suspect from one
location to another during an investigatory detention . . . .”
Royer, 460 U.S. at 504. The record, however, does not
indicate that Wrensford was moved from the street and
detained in a cell out of a concern for the officers’ or the
public’s safety or security. Rather, as Cruz testified,
Wrensford was taken to C Command for investigation and,
specifically, to verify whether Wrensford was the same
person who fled from Mendez and to allow the case agent,
Matthews, to question him.

      Because Wrensford was arrested when he was taken to
C Command and placed in a custodial setting, and the
Government concedes that the officers did not have probable
cause to arrest Wrensford at that time, we next consider
whether the evidence obtained following the de facto arrest
must be suppressed.

        The police recovered several things after the de facto
arrest: Tynicia Teague’s identifications of Wrensford, as well
as Wrensford’s license, a statement, and DNA sample. This
evidence must be suppressed unless the Government can
demonstrate an exception to the Fourth Amendment’s
requirements such as the independent source, inevitable
discovery, or attenuation doctrines, or the good faith
exception. See Brown v. Illinois, 422 U.S. 590, 604 (1975)
(“[T]he burden of showing admissibility rests, of course, on
the prosecution.”); United States v. Pellulo, 173 F.3d 131,
136 (3d Cir. 1999) (collecting cases). Because the District
Court found the detention proper, it did not determine
whether any exception applied, including whether there were




                              20
“intervening events [that] broke the connection” between
Wrensford’s illegal arrest, on the one hand, and Tynicia
Teague’s statement and identification, Wrensford’s statement,
and his DNA sample, on the other hand Dunaway, 442 U.S.
at 219.5 Because we do not have the benefit of the District
Court’s view on whether any exception to the Fourth
Amendment’s requirements applies to the challenged
evidence, we will remand to the District Court for it to
examine whether the evidence gathered after the de facto
arrest is subject to such an exception and hence is admissible.

        For these reasons, we will remand to the District Court
to determine whether the evidence gathered following the de
facto arrest is admissible. See Kaupp, 538 U.S. at 633
(stating that the defendant’s confession must be suppressed
“[u]nless, on remand, the State can point to testimony
undisclosed on the record before us, and weighty enough to
carry the State’s burden” to show there was “‘any meaningful
intervening event’ between the illegal arrest and [defendant’s]
confession” (quoting Taylor v. Alabama, 457 U.S. 687, 691
(1982)); cf. United States v. Coward, 296 F.3d 176, 180-83
(3d Cir. 2002) (where the Government asked to reopen before
our Court, remanding to the district court to evaluate whether
the Government should be permitted to reopen the


      5
         To make a determination on potential intervening
events, courts may consider, among other things, whether the
evidence was “obtained by exploitation of an illegal arrest,”
the “temporal proximity between the arrest and” collection of
the evidence, “the presence of intervening circumstances, and
particularly, the purpose and flagrancy of the official
misconduct . . . .” Brown, 422 U.S. at 603-04.




                              21
suppression hearing).6 If the evidence obtained was not
subject to an exception to the Fourth Amendment’s
requirements, then it is inadmissible. Royer, 460 U.S. at 507-
08; Brown, 422 U.S. at 603-05. If the evidence is deemed
inadmissible, then the District Court must determine whether
its admission was nevertheless harmless beyond a reasonable
doubt. United States v. Schaefer, 691 F.2d 639, 644 (3d Cir.
1982). If the District Court deems the evidence inadmissible
and determines that its admission was not harmless beyond a

       6
         Whether the Government will be permitted to reopen
the suppression hearing following remand to offer evidence
will be subject to the District Court’s discretion and will
require consideration of, among other things, whether
Wrensford will be prejudiced. Whether a defendant will be
prejudiced depends on whether he will have an opportunity to
respond and rebut the evidence. Coward, 296 F.3d at 181
(quoting United States v. Blankenship, 775 F.2d 735, 741 (6th
Cir. 1985)). Courts also consider the timeliness of the motion
to reopen, the nature of the evidence, the reason why the
evidence was not initially presented, and whether the timing
of its presentation will distort its importance. Id. (quoting
Blankenship, 775 F.2d at 741). As to the reasons for the
failure to present the evidence, courts may consider how the
new evidence came to light and whether the law was
unsettled or unclear at the time of the initial proceedings. Id.
at 182. Reopening may also be permitted to allow the
presentation of evidence about a technical matter “overlooked
by inadvertence.” Id. (citation and quotation marks omitted).
In Coward, our Court concluded that the district court should
evaluate the Government’s reasons for seeking to reopen,
including whether it provides a “reasonable and adequate
explanation for its failure to present” evidence. Id.




                               22
reasonable doubt, then it should grant Wrensford a new trial.
Otherwise, it shall reinstate the verdict.7

        As to Muller, however, we reach a different
conclusion. Muller presented no argument that the District
Court erred in denying Wrensford’s motion to suppress or
that the District Court abused its discretion in admitting the
eyewitness identifications, but rather “adopt[ed] and
incorporate[ed] by reference all four . . . arguments made by
Appellant Wrensford in his brief.” Appellant Muller’s Br. 42.
Although there are circumstances where a party may adopt
the arguments of a co-party in a consolidated case, see Fed.
R. App. P. 28(i), Muller specifically disclaimed at oral
argument reliance on an argument that Tynicia Teague’s
identification was the fruit of the poisonous tree, Oral Arg.
Recording at 17:15-18:33, available at
http://www2.ca3.uscourts.gov/oralargument/audio/16-
1373USAv.Wrensford.mp3.           Moreover, the arguments
Wrensford made have nothing to do with Muller. Indeed,
Tynicia Teague’s identification of Muller arose from different
facts and involves applying some different legal principles
from those applicable to her identification of Wrensford.
Thus, Muller cannot pursue his appeal of the suppression
ruling against him by adopting Wrensford’s suppression
arguments.




      7
         Because we are remanding and the findings on
remand may impact the admissibility of Tynicia Teague’s
out-of-court identification, we need not address Wrensford’s
argument that the District Court erred in admitting her out-of-
court identification.




                              23
                              B

       We next consider whether the District Court erred in
denying the motions for mistrials based on non-unanimous
jury verdicts. We review a district court’s actions concerning
jury polling for abuse of discretion. Virgin Islands v.
Hercules, 875 F.2d 414, 417 (3d Cir. 1989). Our Court has
adopted “a rule vesting discretion in the trial court” because
“a trial judge is in the best position to weigh the
circumstances peculiar to each trial and determine whether a
poll coerced a juror into acquiescing in the majority’s
demands.” United States v. Fiorilla, 850 F.2d 172, 176 (3d
Cir. 1988).

        A jury verdict in a federal criminal trial must be
unanimous. Fed. R. Crim. P. 31(a); United States v. Scalzitti,
578 F.2d 507, 512 (3d Cir. 1978). A defendant has the right
to poll the jury after it returns its verdict, and if the poll
reflects a lack of unanimity, a district court may direct the
jury to redeliberate or may declare a mistrial. Fed. R. Crim.
P. 31(d); Hercules, 875 F.2d at 417-18 & n.6. Specifically,
Rule 31(d) of the Federal Rules of Criminal Procedure
provides:

      After a verdict is returned but before the jury is
      discharged, the court must on a party’s request,
      or may on its own, poll the jurors individually.
      If the poll reveals a lack of unanimity, the court
      may direct the jury to deliberate further or may
      declare a mistrial and discharge the jury.

Fed. R. Crim. P. 31(d). We consider several factors to
determine whether the method of polling and redeliberation




                              24
created an impermissibly coercive environment for the
dissenting juror(s).    Those factors include: (1) whether
counsel objected to continued polling after a juror voiced
disagreement with the verdict; (2) whether the trial involves
multiple counts and/or multiple defendants; (3) the nature of
the court’s supplemental instruction, if any; and (4) any
evidence showing that the dissenting juror’s will may have
been overborne. See Fiorilla, 850 F.2d at 176-77; see also
United States v. Aimone, 715 F.2d 822, 832 (3d Cir. 1983)
(addressing specific challenges to a jury poll).

        A consideration of these factors shows that the District
Court did not abuse its discretion in continuing to poll and in
instructing the jury to continue deliberating. First, the record
shows that Defendants moved for a mistrial when polling
showed a lack of unanimity, but did not object to further
polling when Juror 7 dissented. Once Wrensford’s counsel
said he did not hear Juror 7 respond when she was polled on
Count IV and that he barely heard her respond on Count III,
counsel for both Defendants requested she be repolled. The
Court continued polling on Count V without objection and
then returned to Counts III and IV, and Juror 7 responded that
those verdicts were not her independent verdicts. The Court
then, without objection, polled the jurors with respect to
Muller, including all jurors on Count I. Both Defendants
moved for mistrials, but Muller then requested that polling
continue as to the other counts—and on those Counts, IV and
V, all jurors reported that the verdicts were their independent
verdicts. Thus, although polling revealed Juror 7 as the lone
dissenter, and Defendants argued for mistrials and asserted
that Juror 7 would be subjected to a coercive atmosphere if
the jury were sent back to deliberate, they did not object to
the continued polling. Because Defendants failed to object to




                               25
the continued polling, their silence deprived the District Court
of an opportunity to consider their views about continuing the
poll, and thus we are hard-pressed to say that the District
Court abused its discretion when it had no objection to rule
upon.

        Second, this case involved two defendants who were
each tried for multiple counts. The District Court justifiably
had an interest in continuing to poll as to all counts to obtain
at least a partial verdict. Indeed, it is appropriate to repoll a
jury to attempt “to take partial verdicts wherever possible in a
relatively complex, multi-count, multi-defendant criminal
prosecution.” Fiorilla, 850 F.2d at 177. Thus, we do not fault
the District Court for confirming unanimity as to any and all
counts.

        Third, in its instruction to the jury before it
recommenced its deliberations, the District Court told the jury
that reaching a verdict is desirable, reminded the jurors that
their verdict “must reflect the conscientious judgment of each
juror,” and said that “[u]nder no circumstances must any juror
yield his conscientious judgment.” App. 2562-63. These
warnings “removed any possibility that the supplemental
charge could be considered [ ] coercive.” United States v.
Brennan, 326 F.3d 176, 193 (3d Cir. 2003); see also Fiorilla,
850 F.2d at 176-77 (noting that “[b]efore deliberations
resumed the next day, the trial judge delivered a cautionary
instruction asking the jurors to carefully weigh and consider
the views of their fellow jurors”); cf. Lowenfield v. Phelps,
484 U.S. 231, 234-35, 241 (1988) (concluding that there was
no coercion when the jury was sent back to deliberate as to
sentencing, where the district court provided a cautionary
instruction after one juror answered in the negative to the




                               26
court’s question whether further deliberations would enable
each juror to arrive at a verdict). The instruction, therefore,
served to prevent coercion.

       Fourth, there is no evidence that Juror 7’s will was
overborne during redeliberation such that she was coerced
into agreeing with the guilty verdicts on Counts III and IV for
Wrensford and Count I for Muller. The record does not show
any doubt on her part when the court polled the jury after
redeliberation.

       Considering these factors together, we conclude that
the District Court did not abuse its discretion in polling,
reinstructing the jury, and having the jury redeliberate. Thus,
the motions for mistrials were properly denied.

                              C

       We next address the assertion that the District Court
erred in refusing to give a voluntary manslaughter jury
instruction.

       We review a district court’s refusal to give a certain
jury instruction for abuse of discretion. Virgin Islands v.
Isaac, 50 F.3d 1175, 1180 (3d Cir. 1995). A court acts within
its discretion in declining to give an instruction where the
requested instruction lacks “rational support in the evidence.”
Bishop v. Mazurkiewicz, 634 F.2d 724, 725 (3d Cir. 1980).
Moreover, the Constitution does not “require a jury
instruction on lesser included offenses where the evidence
does not support it.” Id.




                              27
        Here, Defendants asked the District Court to provide a
voluntary manslaughter instruction. Voluntary manslaughter
under Virgin Islands law requires proof that: (1) the defendant
unlawfully killed another; (2) the defendant did so without
malice aforethought; (3) the killing occurred “upon a sudden
quarrel or in the heat of passion”; and (4) the defendant had
done the act “either with an intent to kill or an intent to inflict
serious or grievous bodily injury that would likely cause or
result in death.” Isaac, 50 F.3d at 1179; see also Virgin
Islands v. Knight, 764 F. Supp. 1042, 1049 (D. V.I. 1991)
(listing the same elements); 14 V.I. Code Ann. § 924
(defining voluntary manslaughter).

        The evidence does not support a voluntary
manslaughter instruction in this case. Crucially, that offense
requires proof that the defendant killed upon a sudden quarrel
or in the heat of passion. Isaac, 50 F.3d at 1179. Witnesses
testified that an altercation between Wrensford and
Hendricks’s associate occurred hours before the shooting, and
Muller attempts to suggest that this provoked the shooting but
does so without any evidentiary basis. As a result, there was
no “rational support” in the record for a necessary element of
voluntary manslaughter, Bishop, 634 F.2d at 725, and hence,
the District Court did not abuse its discretion in refusing to
give the voluntary manslaughter instruction.

                                D

       Finally, we turn to Muller’s argument that there was
insufficient evidence to support his convictions for possession
of a firearm in a school zone (Count I), first degree murder
(Count IV), and unauthorized possession of a firearm (Count
V). He argues that the evidence was insufficient to find that




                                28
he “had anything to do with the death of Gilbert Hendricks,
Jr.” and insufficient “to convict [him] on any count.”
Appellant Muller’s Br. 32, 37. In other words, he advances a
theory of misidentification and not the insufficiency of the
evidence as to any particular element or count. Thus, we
review the record to determine whether there is sufficient
evidence to show his involvement in the shooting.

       Our review of the sufficiency of the evidence is
“highly deferential.” United States v. Caraballo-Rodriguez,
726 F.3d 418, 430 (3d Cir. 2013). “We do not weigh
evidence or determine the credibility of witnesses in making
this determination.” United States v. Gambone, 314 F.3d
163, 170 (3d Cir. 2003) (citation omitted). Rather, we view
the evidence as a whole and “ask whether it is strong enough
for a rational trier of fact to find guilt beyond a reasonable
doubt.” Caraballo-Rodriguez, 726 F.3d at 430 (citation and
internal quotation marks omitted); see also United States v.
Sparrow, 371 F.3d 851, 852 (3d Cir. 2004) (stating that we
examine the “totality of the evidence, both direct and
circumstantial” and credit “all available inferences in favor of
the government” (citation and internal quotation marks
omitted)).

        The evidence here was sufficient to prove Muller’s
role in Hendricks’s murder. First, Mason testified that Muller
was at Ben’s Car Wash on the afternoon of May 10, where he
became involved in an altercation with an associate of
Hendricks. Second, Tynicia Teague viewed a photo array and
identified Muller as the driver of the truck from which the




                               29
shooter shot Hendricks.8 Although she did not identify
Muller in court and claimed not to remember any of the
details of the shooting, and she testified only to witnessing a
shooting at Food Town involving men in a red truck, she
authenticated her May 13 statement and photo array
identifying Muller as “[t]he guy . . . driving the red truck
Thursday night, May 10, 2012, during the shooting incident
in front of Food Town grocery,” Muller Supp. App. 2, and

      8
          Muller makes a passing reference to the District
Court’s admission of eyewitness testimony offered against
him, but this is insufficient to avoid waiving the challenge,
see Free Speech Coal., Inc. v. Att’y Gen. of U.S., 677 F.3d
519, 545 (3d Cir. 2012). Even if Muller did not waive this
argument, it fails because the procedures employed with
respect to the photo array were not unduly suggestive.
Tynicia Teague had seen Muller several times in the past and
identified him as the truck’s driver from a six-photo array
during an interview with police at a restaurant on May 13,
2012. As Defendants’ expert in the field of cognitive
psychology, memory, and eyewitness identification testified
at trial, the photo array contained “five additional
photographs that were similar in appearance to Mr. Muller.
And that’s the proper procedure for conducting an
identification.” App. 2272. These procedures were not
unduly suggestive, and the District Court did not err in
admitting Tynicia Teague’s identification of Muller. See,
e.g., United States v. Burnett, 773 F.3d 122, 133-34 (3d Cir.
2014) (holding that a photo array in which “all of the men in
the array were of similar age; there was no striking difference
in the amount of head hair each had; and the skin color of the
members of the array was not strikingly different” was not
impermissibly suggestive).




                              30
both were admitted as substantive evidence, see Fed. R. Evid.
801(d)(1)(C); United States v. Brink, 39 F.3d 419, 425-26 (3d
Cir. 1994). The jury also heard that, at various times prior to
the shooting, Tynicia Teague had seen Muller with the
shooter. Third, Muller provided inconsistent stories to his co-
workers and grandfather in the wake of the shooting. Muller
asked to stay with his grandfather after the shooting and told
his grandfather he was feeling ill and that he planned to see a
doctor in New York. However, over those same days he did
not inform his supervisors of any medical issues and did not
tell them that he planned to leave St. Croix. Fourth, when
met by Customs and Border Patrol agents in the San Juan
airport, Muller “lowered his head and shoulders” and “said
that’s okay. I figured somebody was going to pick [me] up,”
App. 1544, and, when asked whether he knew about any
issues pending in St. Croix, Muller “broke down crying,”
App. 1545, suggesting a consciousness of guilt. Based upon
the witnesses who placed him with the shooter on the day of
the shooting and at other times, Tynicia Teague’s
identification of him as the driver of the truck from which the
shooter shot Hendricks, and his conduct after the shooting,
there was sufficient evidence from which a rational trier of
fact could find that Muller was involved in the shooting of
Hendricks and thus sufficient evidence existed to support his
convictions.9

      9
         Muller also argues that he should be granted a new
trial because the verdict is contrary to the evidence, the
verdict was less than unanimous, and justice requires a new
trial. Federal Rule of Criminal Procedure 33(a) provides that
a court “may vacate any judgment and grant a new trial if the
interest of justice so requires.” Fed. R. Crim. P. 33(a). We
review the denial of a motion for a new trial pursuant to Rule




                              31
                              III

       For the foregoing reasons, with respect to Wrensford,
we will vacate and remand for the District Court to determine
whether the identification, Wrensford’s statements, and the
DNA evidence obtained following his de facto arrest are
admissible. We will affirm the District Court’s other rulings,
including the judgment against Muller.




33 for abuse of discretion. United States v. Silveus, 542 F.3d
993, 1005 (3d Cir. 2008). “Such motions are not favored and
should be granted sparingly and only in exceptional cases.”
Id. (citation and internal quotation marks omitted). For the
reasons stated herein, Muller has not established any basis for
a new trial. We will therefore affirm the District Court’s
denial of his motion for a new trial.




                              32
