On Appeal from the United States District Court of the Virgin Islands; D.C. Crim. No. 88-00162.
Sloviter, Stapleton, and Hutchinson, Circuit Judges.
On this direct appeal from a judgment of conviction and sentence, George Edwards raises five issues. He argues that it was plain error for the magistrate to preside over the jury voir dire and selection, that the district court abused its discretion by allowing the government to introduce evidence under Federal Rule of Evidence 404(b), that the district court erred in denying his motion for judgment of acquittal, that the jury verdict is inconsistent, and that the district court should have granted his motion for return of property under Fed.R.Crim.P. 41(e).
The District Court of the Virgin Islands had jurisdiction over this trial pursuant to 48 U.S.C. § 1612 (Supp. III 1985). This court has jurisdiction of this appeal from a conviction and sentence pursuant to 28 U.S.C. § 1291 (1982).
On October 4, 1988, items valued at over $7,000 were stolen from the Alcovers' apartment. The perpetrator gained access to the apartment through the rear bedroom window. The Alcovers lived in the east end of a duplex on a dead-end street. On the same day, the apartment next door occupied by Ms. Hammel was also burglarized. The person gained entry to the Hammel apartment using the same method as was used to enter the Alcover residence -- through the rear bedroom window.
George Edwards was charged in an information with burglary in the third degree in violation of V.I. Code Ann. tit. 14 § 444 (Supp. 1989) and grand larceny in violation of V.I. Code Ann. tit. 14 § 1083(1) (1964) in connection with the burglary of the Alcover residence. The magistrate presided, without the defendant protesting, over the jury voir dire and selection.
At trial, Mrs. Alcover testified that she returned home on October 4 to find her dog, which had been locked in the apartment that morning, running in the street. With a neighbor, she entered her home to find that someone had broken in. Four louvers had been removed from the bedroom window and stacked on the rear deck.
The government then made a motion under Rule 404(b) to introduce evidence concerning a burglary at the residence of Ms. Hammel, a neighbor of the Alcovers. The court admitted the evidence, finding that "[fingerprint] evidence in a fact situation such as this would go to absence of mistake. It would go to identity. It may indeed to go [sic] intent. But it seems to me squarely within the import and purpose of the Rule." App. at 13-14. Hammel testified that on the same day as the Alcover break-in, she returned home from work to find that the police were there, that her apartment had been broken into, and that the intruder had gained entry by removing the bottom four louvers from the rear bedroom window.
The evidence at trial that directly implicated Edwards consisted of expert testimony that the one latent fingerprint found on the Alcovers' louvers and the two latent fingerprints found on Hammel's louvers matched Edwards' prints. The defendant, at the close of the government's case, made a motion for acquittal, which was denied by the court. The jury returned a verdict, finding him guilty of burglary in the third degree but acquitting him on the grand larceny charge. Finally, the defendant made a motion under Fed.R.Crim. . 41(e) to have the government return the jewelry found on the defendant when he was arrested, which the court also denied. Edward appeals.
Edwards asserts on appeal that the district court committed error in allowing the magistrate to conduct jury selection in Edwards' felony criminal case. Because he did not object at the time, Edwards argues that the error is plain error, and that even if the assignment of the duties did not constitute plain error, the issue of a magistrate's power is a jurisdictional question which is always reviewable by a court.
Under the Federal Magistrates Act, a magistrate is given the power to be assigned additional duties that are "not inconsistent with the Constitution and laws of the United States." 28 U.S.C.A. § 636(b)(3) (1982). The Supreme Court recently held that this language does not include the duty of jury selection and that a defendant may demand an Article III judge to conduct voir dire. Gomez v. United States, 490 U.S. 858, 109 S. Ct. 2237, 104 L. Ed. 2d 923 (1989). Gomez, however, was a case ...