On Appeal from the District Court of the Virgin Islands Division of St. Croix. (D.C. Criminal No. 92-00065-2).
Before: Greenberg, Scirica and Garth, Circuit Judges.
Defendant Clement Xavier challenges his convictions and sentences for assault and weapons offenses. We will affirm in part, reverse in part, and remand for resentencing.
On May 20, 1992, Clement Xavier and his brother, Franklin, were inside a grocery store in St. Croix when Craig Brodhurst drove into the parking lot. Brodhurst's wife, his two children, and two other adults, Alton Pennyfeather and Mario Edwards, were also in his car. When Edwards and Ms. Brodhurst went into the store, Franklin Xavier approached them, asking if Pennyfeather was in the car. Edwards said "don't get me into that," but Franklin Xavier threatened "well, that's Pennyfeather out there. If those guys want war, they will get war tonight."
Franklin Xavier then told Clement Xavier that Pennyfeather was in Brodhurst's car, and Clement Xavier said "wait inside here[, d]on't go nowhere." Clement Xavier got in his truck, drove off, and returned after a few minutes with an unidentified man. This man got out of the truck and handed a .38 caliber, long-nosed pistol to Franklin Xavier, who shot at Brodhurst's car several times. Clement Xavier yelled "Let's go, Franky," and the three men left the scene. No one was injured in the incident.
The government indicted both brothers. Clement Xavier was charged with five of the seven counts in the indictment: attempted murder (14 V.I.C. §§ 11(a), 331(1), 922(a)(1) (count I)); aiding and abetting third degree assault (14 V.I.C. §§ 11(a), 297(2) (count II)); aiding and abetting possession of a firearm during a violent crime (14 V.I.C. §§ 11(a), 2253(a) (count III)); possession of a firearm, (14 V.I.C. §§ 11(a), 2253(a) (count IV)); and aiding and abetting an ex-felon's possession of a firearm (18 U.S.C. §§ 2(a), 922(g)(1) (count VI)).*fn1
At trial, three eyewitnesses -- Brodhurst, Edwards, and Pennyfeather -- testified for the prosecution. Edwards recounted his conversation with Clement Xavier and the subsequent exchange between the brothers. Each witness testified that Clement Xavier left the grocery store parking lot in his truck shortly after Brodhurst's car arrived and returned several minutes later with an unidentified man. That man, according to the witnesses, handed a gun to Franklin Xavier, who shot at Brodhurst's car. The witnesses heard Clement Xavier yell to his brother and saw the brother jump into defendant's truck, in which they sped off together.*fn2 In his defense, Clement Xavier offered the testimony of three friends, who placed him at a basketball game at the time of the incident.
The jury acquitted Clement Xavier of attempted murder but convicted him of aiding and abetting third degree assault (count II), aiding and abetting possession of a firearm during a violent crime (count III), possession of a firearm (count IV), and aiding and abetting an ex-felon's possession of a firearm (count VI). He received a 2 year sentence on count II, 5 years on count III, 2 years on count IV, and 30 months (to run concurrently with the sentences on counts II-IV) on count VI. Clement Xavier now appeals his convictions and the imposition of consecutive sentences on counts III and IV.*fn3
Clement Xavier claims the district court should have granted a mistrial because of prejudicial remarks by a prosecution witness.
At trial, government witness Brodhurst was emotional and made strong remarks about the defendants. Most comments were directed at Franklin, not Clement Xavier ("he is a coward," "them man wicked," "he ain't civilize," "them man is trouble makers"). Defense counsel did not contemporaneously object or ask the district Judge to strike the remarks. Instead, after Brodhurst made five or six such comments and after direct examination, defense counsel asked for a mistrial. The Judge denied the request but instructed the jury to ignore Brodhurst's "outbursts" and consider only the "responsive portions" of his testimony.
Defendant claims Brodhurst's "highly inflammatory and prejudicial" comments were grounds for a mistrial. The district court disagreed, and we review for abuse of discretion. United States v. Wright-Barker, 784 F.2d 161, 175 (3d Cir. 1986). Our inquiry focuses on whether any conduct at trial was so prejudicial that defendant was deprived of a fundamental right. See, e.g., United States v. DeRosa, 548 F.2d 464, 473 (3d Cir. 1977). Three factors guide this inquiry: (1) whether Brodhurst's remarks were pronounced and persistent, creating a likelihood they would mislead and prejudice the jury, (2) the strength of the other evidence, and (3) curative action taken by the district court. See United States v. Brockington, 849 F.2d 872, 875 (4th Cir. 1988).
We find the jury was not misled by Brodhurst's comments; his statements pertaining to defendant were oblique and neither pronounced nor persistent. Brodhurst, the target of the shots, was a victim of the crime, and his remarks should be viewed in that context. See United States v. Somers, 496 F.2d 723, 739 (3d Cir.) (prejudice assessed based on the nature of improper remarks and circumstances in which they were made), cert. denied, 419 U.S. 832, 42 L. Ed. 2d 58, 95 S. Ct. 56 (1974). The evidence against defendant was strong, and both the prosecutor and the trial Judge admonished Brodhurst to refrain from making these statements. Moreover, the district Judge instructed the jury to ignore Brodhurst's outbursts and consider only the responsive elements of his testimony. We find no abuse of discretion here.
Defendant contends he was wrongfully convicted for aiding an abetting possession of a firearm by a convicted felon. 18 U.S.C. §§ 2 (a), 922(g)(1). He claims the government never proved his knowledge of Franklin Xavier's conviction, which, he asserts, is an essential element of the crime. The government concedes "proof of knowledge (or reasonable cause to believe) of an ex-felon's status is a required element for conviction, as an aider and abettor, under Section 922(g)(1)." We agree.
Section 922(g) proscribes possession of a firearm by anyone
(1) who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ;
(2) who is a fugitive from Justice;
(3) who is an unlawful user of or addicted to any controlled substance . . .;
(4) who has been adjudicated as a mental defective or who has been committed to ...