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Fahie v. People of Virgin Islands

United States Court of Appeals, Third Circuit

May 24, 2017


          Argued December 12, 2016

         On Writ of Certiorari to the Supreme Court of the Virgin Islands Supreme Court Crim. No. 2013-0042

          David J. Cattie [ARGUED] Counsel for Petitioner

          Kimberly L. Salisbury Pamela R. Tepper Su-Layne U. Walker [ARGUED] Office of Attorney General of Virgin Islands Department of Justice Counsel for Respondent

          Edward L. Barry [ARGUED] Christopher A. Brookhart Estrella Counsel for Amicus Curiae

          Before: CHAGARES, JORDAN and HARDIMAN, Circuit Judges


          JORDAN, Circuit Judge.

         This case comes to us on a writ of certiorari to the Virgin Islands Supreme Court. Kamaal Francis was identified by an eyewitness as the triggerman in the fatal shooting of Omari Baltimore on St. Thomas. Francis protested his innocence but admitted that he was present during the shooting and claimed that Jamal Justin Fahie wielded the weapon. Both Fahie and Francis were later charged with the murder and related crimes. Francis worked out a plea deal with the government. In exchange for reduced charges, he agreed to testify against Fahie, which he did, swearing that Fahie was the sole shooter. The jury found Fahie guilty as charged. After an unsuccessful appeal to the V.I. Supreme Court, Fahie petitioned us for a writ of certiorari.

         We granted the petition and accepted the following two questions: (1) whether the V.I. Supreme Court erred in ruling that it was appropriate for the trial court to give an "aiding and abetting" instruction under the circumstances of this case; and (2) whether the V.I. Supreme Court used the correct standard to assess whether another supposed error in the jury instructions was harmless. In addition to the briefing provided by the parties, the Virgin Islands Bar Association has filed an amicus brief challenging our jurisdiction to consider this matter at all. For the reasons that follow, we conclude that we do have jurisdiction, that the ruling on the "aiding and abetting" instruction was proper, and that we improvidently granted certiorari on the harmless error question.

          I. Background

         A. Factual Background

         "On November 19, 2011 … Omari Baltimore was shot 19 times while walking up Bunker Hill … on St. Thomas." Fahie v. People, 62 V.I. 625, 628 (2015). Carol Kelly, a resident of a nearby neighborhood, witnessed the murder. Id. She called 911 to report the crime and, later that day, identified Kamaal Francis as the killer from a police photo array. Id. "The police arrested Francis the following day and charged him with first-degree murder and several other crimes." Id. At first, Francis lied about his location and his involvement in the murder. Id. "However, [he] later recanted … and informed the police that he was at the scene of the shooting but that it was Jamal Fahie who shot Baltimore." Id. Francis explained that Fahie was motivated by gang-related animosity. Id. He also "gave a detailed description of how Fahie committed Baltimore's murder as well as a description of what clothing Fahie was wearing at the time of the murder[.]" Id. at 629. Among other details, Francis noted that Fahie used a Glock firearm[1] to commit the crime. Id. A subsequent ballistics analysis confirmed that a Glock was the murder weapon. "Police authorities later found [the clothing that Francis had described] secreted in Fahie's residence." Id. The clothes tested positive for gunpowder residue. Id.

         B. Procedural Background

         Based on Francis's statement, "the government filed a multi-count Information against ... Fahie and ... Francis[.]"[2](Opening Br. at 3.) Both men were charged with first degree murder, second degree murder, first degree assault, and three counts involving the unauthorized use of a firearm.[3] Francis later agreed to plead guilty to the charges of accessory after the fact and misprision of a felony, to cooperate with the government, and to testify against Fahie at trial. In exchange, the government agreed to drop the other charges against Francis and to recommend a sentence of five to ten years imprisonment for the accessory charge and three years' for the misprision charge.

         Francis kept his end of the bargain. He testified at trial that he and Fahie were together on the evening of the shooting and that they saw Baltimore walking towards the top of Bunker Hill. Francis said that he and Fahie got a ride to the top of the hill from Karl Webbe, one of Francis's friends, and that, during the ride, Fahie said "I'm gonna deal with this guy … [I'm gonna] kill him." (JA at 415.) At the high point of the road, Fahie got out of the car and ran up a flight of stairs to reach Baltimore, with Francis following. Francis described what happened next:

When we got to the top of the stairs Mr. Fahie then takes a black mask out of his pocket ... [and] took an extended [ammunition] clip out of his right back pocket. ... So, Mr. Fahie then puts his mask over his face and loads his clip, and he looks up, sees Baltimore and he sho[o]ts him. ... I was right behind him.

(JA at 417-18.) After the shooting, Francis said that they ran down the stairs and were driven away by Webbe.

         At trial, in addition to presenting Francis's account of events and arguing that Fahie was the sole shooter, the government presented forensic experts who testified that Baltimore was shot nineteen times, that he died of his gunshot wounds, that each of the bullets was fired from the same gun, and that the gun involved in the shooting was manufactured by Glock.

         Following the government's presentation of its case, Fahie invoked Federal Rule of Criminal Procedure 29 and moved for a judgment of acquittal on all counts, arguing that the government failed to present sufficient evidence on any count. He emphasized that the government had not presented any evidence to support an aiding and abetting charge of liability. The government opposed the Rule 29 motion but agreed to strike the aiding and abetting theory from the Information. Fahie's motion was held under advisement and subsequently denied.

         Relying on the testimony of Carol Kelly, Fahie mounted a defense which was, basically, that Francis committed the murder. Kelly testified that she was walking up Bunker Hill when Francis passed her from behind. She indicated that the shooting started about two minutes after Francis had passed her, and that she saw Francis fire at least some of the shots. Kelly further recounted that she called 911 after the shooting and identified Francis from a photo lineup.[4]

         After Fahie presented his case, the government advanced the Fifth Amended Information, which reincorporated the aiding and abetting theory of liability. The amendment was evidently motivated by Kelly's testimony. Over Fahie's objection, the trial court allowed the amendment and instructed the jury on aiding and abetting as a theory of guilt. The court also gave an anti-CSI instruction. An "anti-CSI" instruction states, in essence, that the government is not required to "employ any specific investigation technique [such as fingerprint analysis or DNA testing] or all possible investigative techniques to prove [its] case." (JA at 127.)

         The name by which such instructions are known is a reference to the popular television series "CSI" and its spinoffs, which feature crime scene investigators using sophisticated forensic techniques to solve crimes. The anti-CSI instruction in this case told the jury that the government was "not required to gather or produce any specific type of evidence so long as [it] present[ed] sufficient evidence to convince [the members] beyond a reasonable doubt of [Fahie's] guilt." (JA at 895-96.) Fahie was found guilty on all counts.

         On appeal to the V.I. Supreme Court, Fahie challenged the trial court's decision to, inter alia, include the aiding and abetting instruction and the anti-CSI instruction. Fahie, 62 V.I. at 629-30. Both challenges were rejected. With respect to the aiding and abetting instruction, the V.I. Supreme Court concluded that there was sufficient evidence to support a theory of aiding and abetting liability and that Fahie had been given adequate notice of the theory. Id. at 633-35. With respect to the ...

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