APPEALS FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX (D.C. Crim. Nos. 79-00049-02 and -03)
Before Seitz, Chief Judge, and Gibbons and Rosenn, Circuit Judges.
Defendants Floyd Josiah and Juan Rios appeal from judgments of conviction entered on counts of second-degree murder, V.I.Code Ann. tit. 14, §§ 921-922 (1964), and of possessing an unlicensed firearm during the commission of a crime of violence, id. §§ 2253(a), 2254 (1979-1980 Supp.). The government cross-appeals from judgments of acquittal on the count of kidnapping for ransom or extortion, id. § 1052 (1979-1980 Supp.), which were entered by the district court on behalf of Josiah and Rios after the jury found them guilty of this offense.
Louis Golden, Jr., a seventeen-year-old youth, disappeared on January 31, 1978. His decomposed body was discovered twelve days later. Medical evidence revealed that he had died approximately ten days before his body was discovered. Death was caused by a gunshot wound to his head.
After the authorities conducted an investigation of Golden's death, they concluded that Golden had been kidnapped, beaten, and eventually killed because of a marijuana debt. Rios, Josiah, Elmo Barnes, and two others were charged by information with various criminal offenses relating to Louis Golden's kidnapping and murder. Elmo Barnes' trial was severed from that of Josiah and Rios, and Barnes pleaded guilty to second-degree murder after promising to testify truthfully for the government at the trial of Josiah and Rios. Barnes did testify against Josiah and Rios at their trial, claiming that Rios fired the shot that killed Golden. Josiah and Rios denied involvement in Golden's kidnap or murder. The jury, however, found both Josiah and Rios guilty of second-degree murder, kidnapping for ransom or extortion, and possessing an unlicensed firearm during commission of a crime of violence.
On appeal, Josiah asserts that his conviction must be overturned because of prosecutorial misconduct at trial and the issuance of an improper arrest warrant. He also seeks a remand to the district court to consider certain claims of prosecutorial misconduct. Rios challenges his conviction of second-degree murder by asserting that there was insufficient evidence to convict. The government cross-appeals the district court's posttrial entry of judgments of acquittal on the count of kidnapping for ransom or extortion.
Josiah asserts on appeal that his conviction was improperly obtained through prosecutorial use of perjured and coerced testimony. At sentencing, Josiah was instructed by the district court to file motions and supporting affidavits seeking appropriate relief for this alleged misconduct, so that the court could determine the truth of Josiah's contentions and decide, if there was misconduct, whether a new trial was required. Josiah, however, filed a notice of appeal instead of these motions; several weeks later he filed a motion in this court to remand to the district court so that the district court could consider whether the prosecution knowingly used perjured testimony or failed to disclose that it was paying a witness to testify. Josiah also raised the issue of prosecutorial misconduct in his appellate brief.
Some of Josiah's contentions appear to be based on a claim of newly discovered evidence, such as information gathered from a posttrial newspaper article and posttrial affidavits. If, however, Josiah desires to file a motion for a new trial on the basis of newly discovered evidence, the motion should be filed first in the district court, even though an appeal has been taken. See United States v. Phillips, 558 F.2d 363, 363 (6th Cir. 1977) (per curiam). It is up to the district court in the first instance to determine whether such a motion is actually based on newly discovered evidence and, if so, whether the evidence supports the motion for a new trial. If the district court is disposed to grant a motion for a new trial, and if a remand is necessary because an appeal is pending, the court should so certify to the court of appeals. See id.; United States v. Wander, 465 F. Supp. 1013, 1020 (W.D.Pa.), appeal from denial of new trial dismissed as moot, 601 F.2d 1251 (3d Cir. 1979). Otherwise, the district court may deny the motion without remand, at which time the denial may be appealed. Thus, the motion to remand is not properly before us at this time, and is denied without prejudice.
Additionally, because the district court was not given the opportunity to address Josiah's assertion that the prosecution used perjured and coerced testimony, and because Josiah moved to remand this issue to the district court, we find that the question of prosecutorial misconduct is not properly before us on appeal. Therefore, we do not address the contentions of prosecutorial misconduct that were raised in Josiah's appellate brief.
Josiah also contends that he was improperly arrested because the affidavits supporting his arrest warrant failed to establish the reliability of information supplied by an informant. See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). As the Supreme Court has recently stated, however, "(a)n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction." United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 1251, 63 L. Ed. 2d 537 (1980). Because Josiah fails to assert harm other than being brought ...