U.S. of America v. McDene, 98-7541

• Decision Date: 15 April 1999
• Docket Number: No. 98-7541,98-7541
• Parties: (3rd Cir. 1999) UNITED STATES OF AMERICA; GOVERNMENT OF THE VIRGIN ISLANDS, v. VICTOR MCDENE APPLEWHAITE, APPELLANT NO. 98-7541 UNITED STATES OF AMERICA; GOVERNMENT OF THE VIRGIN ISLANDS, v. LYDIA GROUBY ROMERO; VICTOR MCDENE APPLEWHAITE; LYDIA GROUBY ROMERO, APPELLANT NO. 98-7624 /7624 Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 679

195 F.3d 679 (3rd Cir. 1999)

UNITED STATES OF AMERICA; GOVERNMENT OF THE VIRGIN ISLANDS, v. VICTOR MCDENE APPLEWHAITE, APPELLANT NO. 98-7541

UNITED STATES OF AMERICA; GOVERNMENT OF THE VIRGIN ISLANDS, v. LYDIA GROUBY ROMERO; VICTOR MCDENE APPLEWHAITE; LYDIA GROUBY ROMERO, APPELLANT NO. 98-7624

No. 98-7541/7624

U.S. Court of Appeals, Third Circuit

Argued: April 15, 1999

Decided: November 2, 1999

Appeal from the Judgment of the District Court of the Virgin Islands, Division of St. Croix (d.c.v.i. Criminal No. 1997-0019, Stx) District Judge: Hon. Raymond L. Finch

[Copyrighted Material Omitted] Before: Nygaard, McKEE and Rendell, Circuit Judges

OPINION OF THE COURT

McKEE, Circuit Judge.

In this consolidated appeal, Victor McDene Applewhaite and Lydia Grouby Romero allege that their conviction for numerous federal and territorial crimes must be reversed because the evidence presented at their joint trial was insufficient to sustain the jury's verdict.¹

The defendants were convicted of conspiracy in violation 18 U. S. C. § 371 (Count 1); carjacking in violation 18 U. S. C. § 2119(2) (Count 2); hindering the communication of information relating to the commission of a federal offense violation of 18 U. S. C. § 1512(b)(3) (Count 3); and destruction of evidence in violation of 18 U. S. C. § 1512(b)(2)(B) (Count 4). They were also convicted of the territorial crimes of attempted first degree murder in violation of 14 V. I. C. §§ 922(a)(1), 331 and 11 (Count 5) and kidnapping in violation of 14 V. I. C. #8E8E # 1051 and 11 (Count 6). We agree that the evidence presented at trial was insufficient to support the defendants' convictions for carjacking under 18 U. S. C. § 2119(2) (Count 2), and we will therefore reverse as to that count of the indictment. However, we will affirm as to the remaining counts.

I. FACTUAL BACKGROUND.

Were this case not so tragic, it could quite properly be classified as "A Comedy of Errors." Lydia and Eddie Romero had been married for approximately 17 years. The events that underlie this appeal clearly show that theirs was not the happiest of relationships. As of April, 1997 they had been separated for about two years and the period of their separation had been marked by rancorous arguments and violence as well as allegations that Lydia had threatened to kill, and had assaulted Eddie. Lydia, who was a Virgin Islands Police Officer, had become romantically involved with Victor Applewhaite, who was also a Virgin Islands Police Officer.

In the morning of April 19, 1997, Lydia Romero and Eddie Romero had a heated argument about the latter's delinquency in his child support and mortgage payments. That evening, Lydia Romero telephoned Eddie Romero and told him to come immediately to her home because she needed to speak to him about their daughter. Eddie Romero asked if the matter could wait until the following day, but Lydia insisted that it was important that they speak then. Consequently, Eddie drove his white van to Lydia's home.

When he arrived, Lydia was waiting outside in the front yard. Eddie got out of his van and rested against it near a small gate in a stone wall. The wall separated Eddie from Lydia. Lydia told Eddie to wait outside the stone wall until she penned the dogs; however, she made no move to pen the dogs. Rather, she remained in place, staring at Eddie Romero. As she stood staring at Eddie, he was knocked unconscious by three blows from behind.

Jean and Marie Hepburn lived across the street from Lydia Romero. During the night of April 19th going into the morning of April 20th, Jean Hepburn was awakened by barking dogs. He also heard something that sounded like someone being beaten with a stick or a bat, and, two or three minutes later, he heard the sound of Lydia Romero's Ford Explorer leaving the area, only to return about thirty minutes later. Marie, Jean's wife, was also awakened by the barking dogs and also heard something that sounded like someone being hit with a stick. A little later she heard a car leave, and, within two minutes she heard Lydia Romero's Explorer leave. About one half-hour later she also heard Romero's Explorer return.

Sometime after being knocked unconscious, Eddie Romero awoke inside his van to see Applewhaite driving the van. Applewhaite had his left hand on the steering wheel, and he was holding a gun in his right hand. As Eddie regained consciousness, he and Applewhaite began to struggle as he attempted to grab Applewhaite's gun. As they wrestled for the gun, Eddie Romero was shot. Applewhaite, who was unable to drive, control the gun, and wrestle with Romero at the same time, lost control of the van which crashed into surrounding vegetation. After the crash, Applewhaite got out of the van, turned and fired two more bullets into Eddie Romero, and then ran from the scene. Police later discovered a bloody baseball bat and latex gloves in the well below the driver's seat of the van, and Applewhaite's fingerprints were recovered from the van's hood.

Fortunately for Romero, Applewhaite was no better at aiming a gun than he was at kidnapping or driving a "getaway" car. Accordingly, none of the bullets that Applewhaite fired into Romero were fatal. Romero was treated for 3 bullet wounds, shock, blunt force trauma that was consistent with having been struck with a baseball bat, and released from the hospital.

At approximately 4:00 a.m. the day after Romero was assaulted, Lydia Romero contacted another Virgin Islands police officer, Akeem Newton, and told him that she had heard on the radio that Eddie Romero had been beaten-up. Newton went immediately to Lydia Romero's house. There, he noticed that the stone wall in front of the house had recently been painted. Later that morning, Newton had seen Lydia Romero painting the wall and planting flowers in the earth abutting it. At Lydia Romero's urging, Newton had helped her plant flowers.

The Hepburns also saw Lydia Romero painting the stone wall. Jean Hepburn saw Lydia Romero standing by her front gate with a bucket, cleaning the stone wall in front of her house with a rag or a chamois after he got out of bed on the morning of April 20th. Shortly thereafter, he saw "a young Spanish guy by the street with a pick digging, planting flowers and [Lydia] Romero was there with -- they was painting the wall." Joint Appendix at 41a. About 7:00 a. m. on the morning of April 20th, Marie Hepburn also saw a "young Puerto Rican guy" painting the wall and saw Lydia Romero planting flowers in front of the wall. Id. at 62-63. The stone fence had never previously been painted during the 18 years the Hepburns lived across the street from Lydia Romero. Forensic analysis later revealed Eddie Romero's blood on the stone wall and in the soil beneath it.²

On the morning of April 20th, Lydia Romero told Newton that she was concerned that Eddie Romero might try to implicate her in the attack; and that if anyone asked, he (Newton) should say that he spent the preceding night with her. Later that day, Applewhaite contacted Newton, and informed him that Lydia Romero had been arrested. Applewhaite also reminded Newton of Lydia's request that Newton tell anyone who inquired that Lydia and Newton had spent the night together.

Lydia Romero and Applewhaite were subsequently indicted for the aforementioned violations of federal and territorial law and jointly tried before a jury. Lydia Romero did not testify at trial. However, Applewhaite did testify. He admitted hitting Eddie Romero with the baseball bat, but he testified that he did so because Eddie was threatening Lydia with a gun. Applewhaite explained that when he realized what he had done, he put on the latex gloves that he retrieved from Lydia's car, and he then put Eddie Romero in Eddie's own van in order to take him to the hospital. According to Applewhaite's testimony, Eddie woke-up as he was being taken to the hospital, a struggle ensued, and a gun that Applewhaite just happened to be holding went off. The jury rejected Applewhaite's version of what happened and convicted both defendants of all charges. This appeal followed.³ We will limit our Discussion to the defendants' attack upon the sufficiency of the evidence.

II. STANDARD OF REVIEW.

In reviewing the sufficiency of the evidence to sustain a conviction we review the evidence in the light most favorable to the government as verdict winner. United States v. Stansfield, 101 F.3d 909, 911 (3d Cir. 1996). "We must affirm the convictions if a rational trier of fact could have found defendant guilty beyond a reasonable doubt, and the verdict is supported by substantial evidence." United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995).

III. FEDERAL CONVICTIONS.

A. Conspiracy.

We begin our Discussion with the defendants' assertion that there was insufficient evidence to support their conspiracy convictions. Count 1 of the superseding indictment charged that Romero and Applewhaite agreed with each other to commit three related federal crimes, viz., (1) carjacking; (2) hindering the communication of information relating to the commission of a federal offense; and (3) destruction of evidence to be used in an official proceeding. Section 371 of Title 18 provides, in relevant part, that "[i]f two or more persons conspire to commit any offense against the United States, . . . and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both."

"In a conspiracy indictment, the gist of the offense is the agreement and specific intent to commit an unlawful act, and when required by statute, an overt act." United States v. Wander, 601 F.2d 1251, 1259 (3d Cir. 1979). Here, the defendants challenge only the first element of their conspiracy convictions. They argue that the government did not prove an illicit agreement beyond a reasonable doubt. Thus, we must determine if the evidence at trial would have allowed a...