United States v. Berrios

Decision Date10 April 2012
Docket NumberNos. 07–2818,07–2888,07–2887,07–2904.,s. 07–2818
PartiesUNITED STATES of America; Government of The Virgin Islands v. Reinaldo BERRIOS, Appellant in 07–2818. United States of America; Government of The Virgin Islands v. Angel Rodriguez, Appellant in 07–2887. United States of America; Government of The Virgin Islands v. Felix Cruz, Appellant in 07–2888. United States of America; Government of The Virgin Islands v. Troy Moore, Appellant in 07–2904.
CourtU.S. Court of Appeals — Third Circuit

OPINION TEXT STARTS HERE

Warren B. Cole (Argued), Hunter, Cole & Bennett, Christiansted, St. Croix, USVI 00820, for Appellant, Reinaldo Berrios.

Robert L. King (Argued), Law Offices of Robert L. King, Windward Passage Hotel, Charlotte Amalie, St. Thomas, USVI 00801, for Appellant, Angel Rodriguez.

Jorge E. Rivera–Ortiz, Manati, PR, for Appellant, Felix Cruz.

Clive Rivers (Argued), Nisky Center, Charlotte Amalie, St. Thomas, USVI 00801, for Appellant, Troy Moore.

John A. Romano (Argued), United States Department of Justice, Appellate Section, Criminal Division, Ben Franklin Station, Washington, DC, Harry Wallace, Office of United States Attorney, Miami, FL, for Appellees.

Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

Reinaldo Berrios, Felix Cruz, Troy Moore, and Angel Rodriguez (together, the defendants) appeal from judgments of conviction and sentence in the U.S. District Court for the District of the Virgin Islands arising out of a series of carjackings, an attempted robbery, and the murder of a security guard. Between them, the defendants have raised a number of arguments on appeal, including evidentiary errors, prosecutorial misconduct, faulty jury instructions, sufficiency of the evidence, and double jeopardy. We address the various contentions in turn, but focus our discussion on two principal issues: clarifying our jurisprudence under the Confrontation Clause and its relationship to the Federal Rules of Evidence, and resolving a question of statutory interpretation under 18 U.S.C. § 924(c) and (j) with double jeopardy implications. After thorough consideration of the arguments presented by both sides, we will affirm.

I.
A. Factual History

On April 17, 2004, at 9:45 p.m., Lydia Caines was speaking on her cell phone in her car, a tan Chevy Cavalier, when a masked man exited a white Suzuki Sidekick with tinted windows and stuck a gun against the car's window. Caines dropped her phone and relinquished her vehicle, and both her car and the Sidekick were driven away. Law enforcement learned that the Sidekick was owned by Reinaldo Berrios, who had been seen driving it earlier in the evening when he was ticketed by a traffic cop and later in the evening when he spoke to a police officer. On April 18, Caines's phone was used to make calls to the family of Angel Rodriguez and to a friend of Troy Moore.

An hour later, three masked gunmen attempted to rob a Wendy's Restaurant, which Berrios had discussed with a friend earlier that day. An off-duty police officer, Cuthbert Chapman, was working as a security guard for the Wendy's at the time; when he attempted to stop the robbery, the would-be robbers shot him repeatedly, and he died nine days later from his wounds. Before leaving, one of the robbers yelled, “Troy, let we go,” meaning, “Troy, let's go.” After the shooting, the robbers fled; two of them got into a champagne-colored Chevy Cavalier, which was being driven by an individual who had not entered the Wendy's. The Cavalier crashed, severely damaging one of the wheels, and the occupants abandoned it. When it was recovered, law enforcement determined that it was the stolen Cavalier, although the license plate had been switched and a side-view mirror was missing. A mask, similar to the ones worn by the robbers, was found close to the vehicle. Threads found in the Chevy Cavalier were matched to the material of a jacket retrieved from Felix Cruz's room, and a fingerprint from Rodriguez was lifted off of the license plate.

Around 11:00 p.m., shortly after the Wendy's robbery and shooting, Shariska Peterson was confronted by three masked men as she was walking to her Honda Accord. As the men demanded the keys to her car, one of them pointed a gun at her head. Instead, Peterson threw them into the high grass in her yard, prompting one of the men to say, “You should not have done that,” and then the three ran away. Peterson saw a fourth man join them as they left. Soon thereafter, four masked men stole Rita Division's Toyota Echo, which she had left running while she was locking up the gate at the high school where she worked. One of the men ordered her at gunpoint to stay away from the car. Her car was recovered a few days later; the original license plate for Caines's Chevy Cavalier and its missing side-view mirror were found nearby.

In July of 2004, a federal judge in the District Court of Puerto Rico approved a Title III surveillance application, pursuant to 18 U.S.C. § 2510 et seq., to monitor conversations in a detention center in Guaynabo, Puerto Rico, as part of an unrelated investigation into criminal activity in which Berrios and Moore were involved (the Title III recording”); both Berrios and Moore were in the detention center at the time. Surveillance was performed both through video and sound recording. Authorities intercepted a conversation between Berrios and Moore in a recreational yard at the detention facility during which they discussed, in detail, the Wendy's shooting and getaway, and their respective roles in it. The defendants identified Rodriguez (by nickname) as the getaway driver, and blamed him for blowing out a tire and crashing the getaway car. During the conversation, Moore also threatened to kill an individual who worked at a store with his girlfriend and was getting “regularly question[ed] by the police.

B. Trial and Procedural History

On May 31, 2006, a federal grand jury in the District of the Virgin Islands returned a third superseding indictment charging each defendant with conspiracy and attempt to interfere with commerce by robbery, both in violation of 18 U.S.C. § 1951(a) (Counts 1 and 2, respectively); carjacking and attempted carjacking, both in violation of 18 U.S.C. § 2119(1) (Counts 3 and 10, and Count 8, respectively); using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (Counts 4, 9 and 11); causing the death of a person through use of a firearm, in violation of 18 U.S.C. § 924(j)(1) (Count 6); first-degree felony murder, in violation of 14 V.I.C. §§ 922(a)(2) and 11 (Count 5); and unauthorized use of a firearm, in violation of 14 V.I.C. §§ 2253(a) and 11 (Count 7). On February 6, 2007, after a four-week trial, the jury found the defendants guilty on all charges. On July 8, the District Court entered judgments of acquittal on Counts Three (carjacking) and Four (use of a firearm during the carjacking) for the Caines incident, as to Moore, Rodriguez and Cruz, but otherwise denied defendants' motions for judgments of acquittal and a new trial.

Berrios was sentenced to life imprisonment and consecutive prison terms totaling 70 years on the federal counts, and to life imprisonment and a consecutive prison term of 15 years on the Virgin Islands counts, with local sentences to run consecutively to the federal sentences. Rodriguez, Cruz and Moore were sentenced to life imprisonment on the federal counts, and to life imprisonment and a consecutive 15–year prison term on the Virgin Islands counts, with local sentences to run consecutively to federal sentences. Each defendant was fined $50,000 for Count 7. The defendants filed timely notices of appeal.

II.

The District Court had jurisdiction pursuant to 48 U.S.C. § 1612(a) and (c). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

III.

The defendants raise six categories of error, which we address in turn:

A. Title III Evidence

B. Rule 404(b) Evidence

C. Sufficiency of the Evidence

D. Prosecutorial Misconduct

E. Jury Instructions

F. Double Jeopardy

After careful review, we find that none of the arguments raised by the defendants has merit.

A. Title III Evidence

The Title III recording of the conversation between Berrios and Moore formed the cornerstone of the prosecution's case against Rodriguez, Cruz, and Moore, and these three defendants challenge admission of the recording on several grounds. Rodriguez and Cruz challenge the recording as a violation of their rights under the Confrontation Clause of the Sixth Amendment, and in the alternative, as inadmissible hearsay under the Federal Rules of Evidence. Moore contends that the Title III application was facially deficient, and therefore the recording should have been suppressed. Due to the confusion exhibited by the parties as to the proper scope of the Confrontation Clause, we will first clarify our Confrontation Clause jurisprudence with regards to testimonial versus nontestimonial statements, before proceeding to the admissibility of the recording against the three defendants. We exercise “plenary review over Confrontation Clause challenges,” United States v. Lore, 430 F.3d 190, 208 (3d Cir.2005), but review a nonconstitutional challenge to the admission of hearsay for abuse of discretion. United States v. Riley, 621 F.3d 312, 337 (3d Cir.2010).

1. Confrontation Clause Challenges

The Sixth Amendment's Confrontation Clause provides that [i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. Until recently, the scope of the Confrontation Clause had been governed by the “indicia of reliability” test laid out by Justice Blackmun in Ohio v. Roberts, 448 U.S. 56, 65–66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under Roberts, an absent witness's hearsay statement could be introduced against a criminal defendant only if the witness was unavailable at...

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