United States v. Harper
| Decision Date | 25 July 2014 |
| Docket Number | Criminal Action No. 2011-004 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. GILLIAN HARPER a/k/a "TIBA," and KALIF FLANDERS a/k/a "SMOKE DOG," Defendants. |
| Court | U.S. District Court — Virgin Islands |
Attorneys:
Alphonso G. Andrews, Esq.,
St. Croix, U.S.V.I.
For the United States
Anthony R. Kiture, Esq.,
St. Croix, U.S.V.I.
For Defendant Gillian Harper
Emile A. Henderson III, Esq.,
St. Croix, U.S.V.I.
THIS MATTER comes before the Court on two Motions: Defendant Gillian Harper's ("Harper") "Motion for Judgment of Acquittal And/Or New Trial" (Dkt. No. 125), and Defendant Kalif Flanders' ("Flanders") "Motion for Judgment of Acquittal Or, In the Alternative, For New Trial" (Dkt. No. 140). For the reasons that follow, the Court will deny the Motions.
On March 15. 2011, Harper and Flanders (collectively, "Defendants") were charged in a seven-count Indictment. (Dkt. No. 1). The Indictment charges that: Harper knowingly possessed a firearm while being a convicted felon (violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 2 Count 1); that Flanders knowingly aided and abetted Harper in such illegal possession of a firearm (violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 2 Count 2); Defendants mutually aided and abetted each other in possessing said firearm within a school zone (violation of 18 U.S.C. §§ 922(q)(1), 924(a)(4), Count 3); Defendants mutually aided and abetted each other in unauthorized possession of a firearm during the commission of crimes of violence (violation of 14 V.I.C. §§ 11, 2253(a), Count 4); Defendants mutually aided and abetted each other in murdering Luis Orlando Encarnacion (violation of 14 V.I.C. §§ 11, 2253(a), Count 5); Defendants mutually aided and abetted each other in committing assault in the third degree (violation of 14 V.I.C. §§ 11, 297(2), Count 6); and that Defendants mutually aided and abetted each other in using a firearm during a crime of violence for which federal prosecution was possible (violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 2, Count 7). The felon in possession charges (Counts 1 and 2) were bifurcated to be tried at the conclusion of trial on the remaining Counts.
Trial on Counts 3-7 commenced on July 26, 2011 with voir dire and jury selection. (Dkt. No. 98). During voir dire the prospective jurors were asked a number of questions, including whether they, "anyone in [their] family, or a close relative [had been] a victim of a crime involving use of a weapon." (Dkt. No. 127 at 34). The jury panel member who was eventually seated as juror number 1 did not raise her card to indicate an affirmative response to this question. Id. Prospective jurors were asked if they had heard of the incident in which LuisOrlando Encarnacion was killed, but were not expressly asked if they knew the victim or any of his family members. (Dkt. No. 127 at 6). The panel member who was later chosen as the jury foreman did not raise his card in response to this question. (Dkt. No. 127 at 6-8). Twelve jurors and one alternate were chosen from the jury pool.
The evidence at trial established that on the morning of May 13, 2010, the victim left his home with Flanders. Multiple witnesses testified that they saw three men involved in an altercation in a field behind Evelyn Williams School in Mount Pleasant, St. Croix. Witnesses heard a single gunshot. The victim's body was recovered from the same area where the altercation occurred. A witness for the government testified that she saw both Defendants leaving her yard, which abuts the field where the victim's body was recovered, that they requested a ride home, and that she transported both Defendants to their homes in the Paradise Mills community. The same witness testified that she saw a gun in Harper's pocket when he exited the car. Phone records introduced at trial documented multiple calls the morning of the murder between Defendants' cell phones. Witnesses also testified that Flanders and Harper each walked children from Paradise Mills to Evelyn Williams School on occasion.
At the close of the prosecution's case, both Defendants moved for immediate judgments of acquittal pursuant to Rule 29(c) of the Federal Rules of Criminal Procedure. The Motions were both denied. The Rule 29 Motions were renewed after Defendants rested their case, and were again denied. After nine days of trial and a morning of deliberation, the jury returned verdicts of guilty on Counts 3-7 for both Defendants. (Dkt. Nos. 113, 114). The Government dismissed Counts 1 and 2. After the verdict was entered Defendants renewed their Rule 29 Motions for acquittal, or, in the alternative, new trials pursuant to Rule 33. These Motions are presently before the Court.
Flanders contends that the Court should: (1) enter a judgment of acquittal pursuant to Rule 29 because the United States presented insufficient evidence to support his conviction on any of the charges; or (2) order a new trial pursuant to Rule 33 in the interest of justice, because the Court allegedly erred in admitting in evidence a cell phone recovered from the crime scene and because of alleged prejudice "caused to him by the prosecutor's request in front of the jury to re-open the government's case." Harper contends that the Court should: (1) enter a judgment of acquittal pursuant to Rule 29 because the United States presented insufficient evidence to support his conviction on any of the charges; or (2) order a new trial pursuant to Rule 33 in the interest of justice, given newly discovered evidence of two jurors' allegedly concealed bias. The Court held a hearing on June 3, 2014 on Harper's Rule 33 argument, in which Flanders joined. The Court will first set forth the legal principles applicable to each Motion, before reaching their applicability to the facts of this case.
Defendants each move for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure, or, in the alternative, a new trial pursuant to Rule 33 of the same. While each Defendant sets forth distinct grounds for their Motions, the legal principles applicable to the Motions are the same.
A judgment of acquittal is appropriate under Rule 29 for insufficiency of the evidence the Court determines that no jury could rationally find proof of guilt beyond a reasonable doubt given the evidence presented in the case. United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006). In determining whether to grant a Rule 29 motion, the Court views the available evidencein the light most favorable to the Government. United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) (citing United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001)). An insufficiency of the evidence finding, and consequent acquittal, should be "'confined to cases where the prosecution's failure is clear'" - a heavy burden. Smith, 294 F.3d at 477 (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984)); United States v. Casper, 956 F.2d 416, 421 (3d Cir. 1992).
"Courts must be ever vigilant in the context of [Rule] 29 not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting its judgment for that of the jury." United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (citations omitted); see also United States v. Soto, 539 F.3d 191, 194 (3d Cir. 2008) (citation omitted). "Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt," may the Court overturn the jury's verdict. United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1990) (citation omitted). "To sustain the jury's verdict, the evidence does not need to be inconsistent with every conclusion save that of guilty." United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (citation omitted). "There is no requirement . . . that the inference drawn by the jury be the only inference possible or that the government's evidence foreclose every possible innocent explanation." United States v. Iafelice, 978 F.2d 92, 97 (3d Cir. 1992). The Defendants, in their Rule 29 motion, must therefore show that no evidence could support the jury rationally finding them guilty in this case. McNeill, 887 F.2d at 450.
If Defendants are not granted judgments of acquittal, they seek a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. (Dkt. Nos. 138, 140). The Rule states that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33. The rule may be applied where there is finding of prosecutorial misconduct, concealed juror bias, or evidentiary errors. See United States v. Dixon, 658 F.2d 181, 193 (3d Cir. 1981) (). This list, however, is not exhaustive. If the Court concludes that a verdict constitutes a miscarriage of justice, it may set it aside and order a new trial. United States v. Bevans, 728 F. Supp. 340, 343 (E.D. Pa. 1990) aff'd, 914 F.2d 244 (3d Cir. 1990) (citing United States v. Martorano, 596 F.Supp. 621, 624 (E.D.Pa.1984), aff'd, 767 F.2d 63 (3d Cir.), cert. denied, 474 U.S. 949 (1985); United States v. Phifer, 400 F.Supp. 719, 723 (E.D.Pa.1975), aff'd, 532 F.2d 748 (3d Cir.1976)).
"When the court evaluates a Rule 33 motion, unlike an insufficiency of the evidence claim under Rule 29, it does not view the evidence in a light most favorable to the government, but 'instead exercises its own judgment in assessing the Government's case.'" United States v. Dorival, 2008 WL 1884166, *26 (D.V.I. Apr. 24, 2008) aff'd in part sub nom. (quoting United States v. Johnson, 302 F.3d 139, 150 (3d Cir.2002), cert. denied, 537 U.S. 1140 (2003)). The Court must grant a new trial pursuant to Rule 33 "if there is a reasonable probability that error infecting...
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