Ibrahim v. Gov't of the Virgin Islands, CRIM A.2004/101.
| Decision Date | 03 November 2005 |
| Docket Number | No. CRIM A.2004/101.,CRIM A.2004/101. |
| Citation | 47 V.I. 589 |
| Parties | Ishmael Sameer IBRAHIM, Appellant, v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee. |
| Court | U.S. District Court — Virgin Islands |
OPINION TEXT STARTS HERE
On Appeal from the Superior Court of the Virgin Islands.Darwin K. Carr, St. Croix, U.S.V.I., for Appellant.
Maureen Phelan, AAG, St. Thomas, U.S.V.I., for Appellee.
Before: RAYMOND L. FINCH, Chief Judge, District Court of the Virgin Islands; CURTIS V. GOMEZ, Judge of the District Court of the Virgin Islands; and BRENDA J. HOLLAR, Judge of the Superior Court, Sitting by Designation.
The appellant brings this appeal from his conviction for grand larceny, forgery and obtaining money under false pretenses, challenging the sufficiency of the evidence at trial.
For the reasons which follow, this Court will reverse the appellant's conviction for forgery and affirm his conviction in all other respects.
Ishmael Sameer Ibrahim (“Ibrahim” or “appellant”) was initially charged under an 11–count amended Information, stemming from several separate incidents in which he was accused of inducing several individuals to pay him money for merchandise by falsely representing himself to be a furniture salesman and of taking and endorsing checks belonging to other individuals. Specifically, the 11–count amended criminal Information charged him as to each of the victims as follows:
1. Friedenstahl Moravian Church (“the church transaction”):
The Information charged Ibrahim with committing forgery, grand larceny and obtaining money under false pretense (Counts I–III), as to the Friedenstahl Moravian Church (“the church”) by: fraudulently making out a check to himself for $1,000 on the church's account; cashing said check and taking its proceeds of $1,000; and making out another check to himself, in the same amount, on the church's account.
2. Silverio Avila (“the Avila transaction”):
The Information charged Ibrahim with committing forgery, grand larceny and obtaining money under false pretenses (Counts IV–VI) as to Silverio Avila (“Avila”) by: forging the endorsement on a retirement check belonging to Avila without authorization and stealing said retirement check valued at $350.47 and defrauding another by forging said check and collecting its proceeds.
3. Marie Jean Agustine (“the Agustine transaction”):
The Information charged Ibrahim with obtaining money under false pretenses and grand larceny (Counts VII–VIII) against Marie Agustine (“Agustine”) by fraudulently offering to sell furniture to her, thereby inducing her to turn over money in excess of $400 for furniture he never delivered; and for taking more than $100 from Agustine in that transaction.
4. George Davis and/or Irene Ferrella Davis (“the Davis transaction”):
The Information charged Ibrahim with obtaining money under false pretenses (Count IX), charging he fraudulently offered to sell furniture to George and/or Irene Davis (“Davis”) and induced them to pay him $200 as a deposit for furniture he never delivered.
5. Wilbert Wilkerson McCoy (“the McCoy transaction”):
The Information charged Ibrahim with obtaining money under false pretenses and grand larceny (Counts X–XI) as to Wilbert McCoy (“McCoy”) by fraudulently offering to sell a freezer to McCoy and inducing him to pay the appellant $500 for said freezer which the appellant never delivered, and by stealing said $500.
[ See Supplemental Appendix contained in Br. of Appellee (“Supplemental App.”) at 1–4].
Following trial by jury, Ibrahim was found not guilty of Count I of the information which charged forgery in connection with the church transaction. Counts II and III, which also related to the church transaction, were also dismissed by the court. Ibrahim was, therefore, convicted of three counts of grand larceny under 14 V.I.C. §§ 1081 and 1083(1); one count of forgery under 14 V.I.C. § 791(1), and; four counts of obtaining money under false pretenses, in violation of 14 V.I.C. § 834(2). [Joint Appendix (“J.A.”) at 119]. His conviction related only to the Avila, Agustine, Davis and McCoy transactions. This timely appealed followed.
For the following reasons, this Court holds that Ibrahim waived his right to appeal his conviction of grand larceny and obtaining money under false pretenses as it relates to the Avila, Davis and McCoy transactions. Having found the evidence of forgery, in a separate count, in the Avila transaction insufficient, we will reverse Ibrahim's conviction in that regard. However, we will affirm his conviction in all other respects.
In reviewing the sufficiency of the evidence to support a conviction, we determine whether the evidence and the inferences that may be drawn therefrom, viewed in the light most favorable to the Government, is such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt of every element of the offense. See Abiff v. Government of Virgin Islands, 313 F.Supp.2d 509, 511 (D.V.I.App.Div.2004) (citations omitted). An appellate court may disturb the jury's verdict “only when the record contains no evidence, regardless of how it is weighted, from which the jury could find guilt beyond a reasonable doubt.” Id.; see also, United States v. United States Gypsum Co., 600 F.2d 414, 416–17 (3d Cir.), cert. denied,444 U.S. 884 (1979); United States v. Casper, 956 F.2d 416, 421 (3d Cir.1992)(“Appellate reversal on the grounds of insufficient evidence should be confined to cases where the failure of the prosecution is clear.”).
Although the evidence need not be inconsistent with every conclusion save that of guilt, and circumstantial evidence is no less probative than direct evidence, the nexus between the evidence and the guilty verdict must, nonetheless, be “logical and convincing.” Government of V.I. v. Williams, 739 F.2d 936, 940 (3d Cir.1984) (citations omitted).
Before reaching the crux of the issues raised on appeal, we must make a threshold determination of the issues for which review may actually be obtained based on the state of the current record and the arguments submitted.
Ibrahim raised issues in his appellate brief that were not decided below or for which there was no conviction. Moreover, he fails to present arguments on some issues and, in some cases, attempts to do so for the first time in his reply brief. However, because the issues and arguments in Ibrahim's appellate brief were limited to his conviction related to the Augustin transaction and the forgery charge in the Avila transaction, those are the only issues this Court will consider.
To properly obtain review, an appellant has a duty to outline in his main appellate brief the issues for which review is sought, and the issues thereby listed shape the parameters of the appellate court's consideration. See V.I.R.App. P. 22. Moreover, an appellant is bound to submit arguments in support of the issues presented, supported by legal authorities and applied to the facts reflected on the record. See V.I.R.A.P. 22(a)(3), (5) and (d)( responsibility of appellant to state, in his main brief, the issues for review and arguments with authorities in support thereof, as well as references to the record); V.I.R.A.P. 20 (). A reply brief is intended only to provide an opportunity for an appellant to respond to the arguments raised in the appellee's brief; it is not intended as a forum to raise new issues or theories not argued in the main brief. Accordingly, issues not argued or presented with no more than a cursory reference in the appellant's main brief are deemed waived. See United States v. Voigt, 89 F.3d 1050, 1064 (3d Cir.1996)( issues or theory not identified in brief, as required by applicable federal appellate rule mirroring V.I.R.A.P. 22, constituted waiver) (citations omitted); Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir.1993)(declining review of issue mentioned just “casually in one sentence,” noting that under parallel provision in Fed.R.App.P. 28(a)(3), (5), “When an issue is either not set forth in the statement of issues presented or not pursued in the argument section of the brief, the appellant has abandoned and waived that issue on appeal.”)(citing Kost v. Kozakiewicz, 1 F.3d 176, 182–83 & n. 3 (3d Cir.1993); Institute for Scientific Info., Inc. v. Gordon & Breach, Science Publishers, Inc., 931 F.2d 1002, 1011 (3d Cir.1991); 16 Charles A. Wright, et al., Federal Practice and Procedure § 3974, at 421 (1977 & Supp.1993, at 690)(issue must be raised in both the issues and argument sections of the brief to obtain review); Lunderstadt v. Colafella, 885 F.2d 66, 78 (3d Cir.1989)(raising issue for first time in reply brief insufficient to preserve issue for review); Daggett v. Kimmelman, 811 F.2d 793, 795 (3d Cir.1987) (same)).
An appellant's belated arguments made for the first time in the reply brief are also insufficient to preserve those issues for appeal. See Lunderstadt, 885 F.2d at 78;see also, Simmons v. City of Philadelphia, 947 F.2d 1042, 1066 (3d Cir.1991)( that “a passing reference to an issue in a brief will not suffice to bring that issue before this court on appeal”) (citations omitted); Kost, 1 F.3d at 182 and n. 3 (); compare, In re Adornato, 301 F.Supp.2d 416, 420 n. 9 (D .V.I.App. Div.2004)(declining to address new arguments raised in reply brief).
In his main brief, Ibrahim indicated he was presenting the following three issues for review:
1) Whether “[t]here was insufficient evidence before the trial court to convict Appellant of Grand Larceny because the record was void of any evidence of Appellant's...
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