res a ewe et a ee ee ain

FOR PUBLICATION



| it] THE TERRITORIAL COURT OF THE VIRGIN ISLANDS

| DIVISION OF ST. THOMAS AND ST. JOHN



GOVERNMENT OF THE VIRGIN ISLANDS,



)

oa Plaintiff, )

)

vs. ) CRIMINAL NO. F184/1996

) CRIMINAL NO. F186/1996

TONY DAVIS a/k/a LISA DAVIZ, KENNETH EDWARDS )

alk/a KEVIN JONES aka WILLIAM OBERG, )

)

Defendants. ) .

)

APPEARANCES:

Douglas Sprotte, Esquire J. Daryl Dodson, Esquire

Assistant Attorney General DUDLEY, TOPPER & FEUERZEIG

Virgin Islands Department of Justice Law House - 1A Frederiksberg Gade

48B-50C Kronprindsens Gade Post Office Box 756

St. Thomas, Virgin Islands 00802 St. Thomas, U.S. Virgin Islands 00804

Attorney for Plaintiff Attorney for Defendant Tony Davis



Richard H. Dollison, Esquire



D'AMOUR, JONES, STRYKER,



- DUENSING & NICHOLS



Upper Drakes Passage



Post Office Box 6785



| St. Thomas, Virgin Islands 00804



| Attorney for Defendant Kenneth Edwards



| Hollar, Judge



i MEMORANDUM OPINION

| (Filed: January 10, 1997)



i Before the Court are post trial motions of defendants Lisa Davis ("Davis") and‘Kenneth



| Edwards ("Edwards") for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal



' The defendant Lisa Davis' motion for judgment of acquittal was only in connection with the conspiracy set

froth at Carnt ll af tha ennarcedina infarmatinn dated Oetoher 11. 1996.



chris 0 46 A

%



Soy soiled: Cher? "

Criminal Nos. FIgsi3sd and Fl as3

Mamorandumn Opiaiaa



Far22



Prosadure ani Edwrards' mo‘ion, in the azemativa, jor anew iviel, pursuant to Fed. R.Cim.P, 337

The Government opposes tha relief sought by defendants: For reasons set forth below,

defendants’ motions are danied.

Hd FACTS AND PROCEDURAL HISTORY.

i During the four day jury trial, the Govarnmant offered evidence in an effort to establish a

‘| single overall scheme to steal diamonds from Cardow Jewalers, which began in the Pennsylvania-

4 New Jersey area, on or before April 20, 1996, and culminated in the grand larceny of a wallet of

't loose diamonds from the Cardow Diamond Center on Main Street, in downtown Charlotte Amalie,



ii St. Thomas, Virgin Islands. The evidence elicited disclosed that Edwards and Davis traveled to



‘the Virgin Islands with two other individuals, on Saturday, April 20, 1996, on airline tickets



+ purchased under a false name? by a co-conspirator, who was a minor. The party of four stayed at



4 the Emerald Beach Resort in a room that the minor co-conspirator booked using the name of Lynn



! Oberg. Edwards falsely represented himself to the desk clerk at Emerald Beach Resort as the

ii minor co-conspirators husband. Although the room was booked for two days, both Davis and

ii Edwards were reported to have traveled to St. Thomas without luggage. -



i On Sunday, April 21, 1996, Edwards and Davis, together with the minor and another,

f appeared at the Cardow Diamond Center store. Once inside, the four separated and each took



» different positions in the store. Davis went to the loose diamond counter and immediately engaged



the store clerk manning that area. Edwards also took a position at the diamond counter, but in the



2 The appropriate rule for seeking a new trial in the Territorial Court is Terr. Ct. R. 135.



3 The Government offered testimony that the minor co-conspirator traveled fram the Philadelphia area to a

travel agency located in New Jersey on April 19, 1956, represented herself to be Lynn Oberg, and pur-

chased airline tickets for herself, Davis, Edwards, and another, with a credit card belonging to Lynn Oberg.

The credit card utilized was ultimataly reported lost or stolan. The owner of the credit card, Lynn Oberg

: never met, much less authorized the minor to use her card. Lynn Oberg testified that she only realized that

. her credit card was missing after she received a call from Citibank, alerting her that a strange inquiry had

haan mada an her ard mumher fram the Emarald Beach Hotel in the Virgin Islands.

sits has te Pet emeinie weathe hy an ei gt

cde se he Loy ae et



K z, rts: oad aad #1a3/1995

moraad tym Osinion



nr



th



* corner ssvaral fsat away from Davis. Ths minor repeaiscy urged anoiner clara io isay



|: “normal station" near the loose diamonds and to show har jewelry in the showcase at the far end



of the store.

While at the diamond counter, Davis requested to s22 loose diamonds, which were

ratriaved by a store clerk from a small office behind the display counter. Because Davis expressed



a desire to purchase larger carat diamonds than were shown or available at the branch location,



the store clerk placed loose diamonds back in a wallet and returned them to the small office.



| Within minutes after the clerk returned the loose diamonds to the small office, Edwards requested

| the assistance of the same clerk in viewing wedding bands displayed in the showcase at the

| opposite end of the counter. Edwards then began pointing to different wedding bands in rapid



i succession. Finally, in a bold and offensive effort to completely divert the clerk's attention from the



\ small office area where the loose diamonds were located, Edwards forcefully held the clerk's head

| down against the countertop, onder the guise of directing the clerk to the items pointed out. While

i this diversion tactic shocked and appalled the store clerk, it nonetheless permitted Davis to

.successfully crawl behind the counter to the small office, grab the wallet of loose diamonds and

leave the store. Upon exiting Cardow, Davis was observed signalling or waving to Edwards, who

then abruptly left the store without making a purchase. A video surveillance camera caught Davis



|| as she crawled behind the counter, entered the small office, and crawled out with the wallet of



loose diamonds, unnoticed by the employees and patrons of the store.‘ Later that same day, the



h

wallet of loose diamonds was discovered missing by store‘personnel.



4 Hidden surveillance camera(s) were installed In the various locations of the store, unbeknownst to the



Fj employees of Cardow, for the purpose of detecting any possible pilferage or irregular transactions involving

|| employees. Two cameras were installed in the immediate area, however, one of the cameras was

ena = Sat



a

i

(a)



ae]

i

3

ub

iu

ra

rs)

a

va

Q

fc,

a

iw]

w

ha

i

=

=



7s



0)

w

U

a

i



1



tu



i

- 07 Cardow Stores saw Davis at the Emarald Beach Rasort.? He immediately racognized har from

, the video surveillance tapes he had reviewed earlier with security personnel. Another Cardow

|; employee identified both Davis and Edwards the following day at Emerald Beach.’ Both



| defendants were later arrested on April 23, 1996 at the Emerald Beach Resort. Edwards attempted



i to flae when apprehended.



i During the "booking" process, after defendants were arrested, a witness saw Edwards



[ reach into the front of his ante: remove blue paper wrappings and digest-the contents in a

j clandestine manner. A police officer found diamond wrappers that Cardow uses for its loose

diamonds in the immediate area where the witness observed defendant's activities. Davis, after

{i being given her Miranda’ warnings, waived them and admitted inter alia that she was the female

: on the video tape crawling behind the counter and stealing the wallet of loose diamonds.®



r In further establishing the defendants’ culpability, Micheal Pepper, the Cardow store

i manager, unexpectedly testified that during the trial, while the jury was on a "view" of the crime

i scene at Cardow's Diamond Center, he personally overheard Edwards tell Davis that "they" would



Ff not be able to see her (Davis) in the tapes crawling behind the counter because of the way he



i

|| (Edwards) positioned a bag on the counter.



fl On May 2, 1996, Davis and Edwards were arraigned and formally charged on a multiple



count information. Edwards was charged in Count Il of a superseding information with aiding and



3



5 The defendants were apparently unaware that the owner of Cardow was also the owner of Emerald

» Beach that the store manager resided at Emerald Beach.



§ Because of her “striking” appearance, Davis was consistently identified by Cardow employees as a very

tall, "model-like,” light skinned, Black or Hispanic female.



_7 Miranda v. Arizona, 384 U.S. 436 (1966).



8 Ravie! asininal statement had to be redacted because it implicated the co-defendants.

i Grint ‘ral Nes. "Fy 3471233 and = 132

tdamarandum Opinion

Faga5



aA

is,



tas



» abetting a grand larcany, in visiation of V.1. Goa Ani. ti. 31037 acd 1983(1) and in Count

'. IV, with conspiring to commit grand larcsny, in violation of V.1. Code Ann. tit. 14, §§1081, 1083(1)



and 551(1). Other charges against Edwards were dismissed subsequent to the arraignment.



pee ee



Davis was charged in Count | of the superseding information with grand larceny, in violation of V.1.

Code Ann. tit. 14, §§1081 and 1083(1), in Count Ili with conspiracy to commit grand larceny, in



violation of V.I. Code Ann. §§1081, 1083(1) and 551(1), and in Count VI with receiving stolen



property, in violation of V.I. Code Ann. tit. 14, § 2101(a). Other charges against Davis were



i subsequently dismissed. Both defendants pled "not guilty” to all charges filed against them.



I A jury was impanelled and swom on October 7, 1996, and the trial on the merits

li commenced on the same date. At the conclusion of the Government's case-in-chief, counsel for



| Edwards and Davis moved for a judgment of acquittal. After hearing oral arguments, the Court

! reserved decision on the motion(s) pursuant to Fed.R.Crim.P. 29(b).



I Following the conclusion of all the evidence, closing arguments and instructions to the jury,



i the jury went into deliberations and subsequently returned "guilty verdicts" on all counts. Edwards

; was found guilty on the charges of conspiracy to commit grand larceny and aiding and abetting a

\ grand larceny, while Davis was found guilty on the charges of conspiracy to commit grand larceny,



grand larceny, and receiving stolen property.



I After the discharge of the jury, Davis renewed her motion for judgment of acquittal on the



i conspiracy charge, pursuant to Fed.R.Crim.P.29(c). Edwards also renewed his motion for



it



judgment on acquittal on both counts against him. Edwards, additionally made a mation, in the



. alternative, for a new trial, pursuant to Fed.R.Crim.P. 33.

Wis Cr



This Court is asked to resolve several issuas in relation to the motions for judgment oi



|

: ° . . * - * e . rs



| acquittal and alternatively, motion for a naw trial. The issues raised are as follows: (1) whether

1



'



| there was sufiiciant evidence to sustain a conviction against Edwards for grand larceny, as an aidar

and absttor, as charged in Count Il;* (2) whether there was sufficient evidence to sustain



convictions against Davis and Edwards for conspiracy to commit grand larceny, as set forth in



Counts I!'° and IV'! of the information; (3) whether the jury's guilty verdict was against the weight

1 ;



| of the evidence and irrational, thus warranting a new trial with respect to the charges against



i



Edwards; (4) whether there existed any valid Brady violation claims or discovery violations that



would warrant a new trial; and (5) whether there were erroneous court rulings that had a substantial



impact on the outcome of the trial, thus necessitating a new trial.



| 9 Count Il of the information charges Edwards as follows:



i On or about April 21, 1996, in St. Thomas, Virgin Islands, Kenneth Edwards



afk/a Kevin James a/k/a William Oberg, did aid and abet the unlawful taking,

stealing, or driving away of the persona! property of another, to wit: a wallet of loose

diamonds owned by Cardow Jewelers, said property being more then $100.00 in

value, with intent to deprive the owner thereof permanently, in violation of 14 V.I.C.

1081 and 1083(1).



10 Count Il of the information charges Davis as follows:



_ Onor about April 21, 1996, in St. Thomas, Virgin Islands, Tony Davis a/k/a Lisa

Daviz, did conspire with Lester Rufus Jones and Kenneth Edwards a/k/a Kevin

James a/k/a William Oberg, to unlawfully take, steal, or drive away the personal

property of another, to wit: a wallet of loose diamonds owned by Cardow Jewelers,



+] sald property being more than $100.00 in value, with intent to deprive the owner



E " thereof, permanently, in violation of 14 V.I.C. 1081, 1083(1) and 551(1).



: 1 Count IV of the information charges Edwards as follows:



On or about April 21, 1996, in St. Thomas, Virgin Istands, Kenneth Edwards,

a/k/a Kevin James a/k/a William Oberg, did conspire with Tony Davis, a/k/a Lisa

Daviz and Lester Rufus Jones, to unlawfully take, steal, or drive away the personal

property of another, to wit: a wallet of loose diamonds owned by Cardow Jewelers,

said property being more than $100.00 In value, with intent to daorive.the owner -

theraof. permanentlv. in violation of 14 V.I.C. 1081, 1083(1) and 551(1).

ire $HOTIONM FOR JUSSENMENT OF ACQUITTAL



pursuant to Fed.R.Crim.P. 29. Kenneth Edwards also moves for judgment of acquittal, but on

Counts II and IV, specifically grand larcany by aiding and abetting and conspiracy to commit grand

larceny.



1. Standard



In considering the defendants’ motion for judgment of acquittal, the standard to be used is

{| whether, in viewing all of the ‘evidence adduced at trial, in the light. most favorable to the

Government, there is substantial evidence from which the jury could find guilt beyond a reasonable

doubt. Government of the Virgin Islands v. Smalls, 32 V.\. 157 (Terr. Ct. St.T and St.J. 1995)

(citing 2 Charles Wright, Federal Practice and Procedure § 467 (1982)). See also Government of



the Virgin Islands v. Grant, 21 V.1. 20 (D.C.V.1. 1984); Government of the Virgin Islands v. Greene,



708 F.2d 113 (3rd Cir. 1983), reh'g denied, 712 F.2d 824 (3rd Cir. 1983), cert denied 465 U.S. 1008

(1984). When ruling on a motion for judgment of acquittal after the jury has returned a guilty

verdict, the court must determine whether the government presented sufficient evidence upon

which a rational jury could find beyond a reasonable doubt that it proved each element of the

offense for which defendant seeks acquittal. Government of the Virgin Islands v. Commissiong,



706 F.Supp. 1172 (D.C.V.I. 1989).



Evidence W ufficient To Sustain The Conviction Against

Edwards For Grand Larce iding and Abettin



Edwards was charged with the substantive offense of grand larceny. The Government,



hi



i however, characterized Edwards' participation as an “aider and abettor." Statutorily, whoever aids



3

i; and abets the commission of an offense is punishable as a principal.

i



opi

‘lavisracdem Cpiaic.

Page g



(a) \Whoaver commits a crims or offense or aids, abats,

counsels, commands, induces or procures its commission, is

punishable as a principal. |

1 (b) Whoever wilfully causes an act to ba dona which if

directly performed by him or another person would ba a crime or

offense, is punishable as a principal.

(c) Persons within this section shall ba prosecuted and tried

as principals, and no fact need be alleged in the information against

them other than is required in the information against the principal.

Thus, under tha theory of “aiding and abetting,” guilt of an accused in a criminal case may

* be established without proof that he or she personally did every act constituting the offense alleged.

: United States v. Walker, 621 F.2d 163, 165 (5th Cir. 1980). The law recognizes that, ordinarily,

anything a person can do for himself or herself may also be accomplished through the direction of

:. another person, as his or her agent, or by acting in concert with, or under the direction of another

person or persons in a joint effort or enterprise. Id.

Before a defendant may be held criminally responsible for the acts of others, itis necessary

that the accused wilfully associated himself or herself in some way with the criminal venture and

i{ willfully participated in it as he or she would in something he or she wished to bring about. United

| States v. Gomez, 733 F.2d 69, 72-73 (8th Cir. 1984). The Government's burden is to prove beyond

= a reasonable doubt that the defendant knowingly and deliberately associated himself or herself in

some way with the crime charged and that he or she participated, with intent to commit the crime.

Id. Mere presence at the scene of a crime is not sufficient to establish that a defendant aided and

“ abetted the crima unless the Government proves beyond a reasonable doubt that the defendant



was a participant and not merely a knowing spectator. United States v. Wright, 742 F.2d 1215,



1221 (9th Cir. 1984).

grarandum Opiniana

Sone



Abie



* ' -~ vigen oman + yt a me oma ya :

TS vt eee a all WoVS7TT|M ts MEAS OLS CALS t:



cD,

a



ota sige} ware 3's

Mot.s OVS. 03 Govs6 Sy t



oh



ans abstting, to wit (1) the parson who is baing aidad must be intentionally committing a crims; (2)



| the alder or abattor, must know that the other is committing the crime; (3) the aider or abetior must

h hava the purpose to aid that other to commit the crime; and (4) the aider must in fact render aid

or assistance. United States v. Nolan, 718 F.2d 589, 592 (3rd Cir. 1983). All four elements have

basen established against Edwards by the evidence presented by the Government in the case sub

; judice.

H As to the first element, the Government readily established that Davis was the individual

| who was baing aided by Edwards and that aa intentionally stole a wallet of loose diamonds from

the Cardow Diamond Center.’? The second element was established by testimony that Edwards

i and Davis appeared in the Cardow Store at the same time and that when Davis exited the store

ij she waived or signalled Edwards. Additionally, Edwards was observed swallowing what was

believed to be diamonds after his arrest during the booking proceedings. The third and fourth

| elements were also established through testimony that Edwards created the diversion Davis

‘ required in order to steal the diamonds unnoticed.



tt, Edwards’ participation was more than his mere presence on the scene. Indeed, Edwards

‘

it actively assisted Davis by furnishing the diversion she needed in order for her to avoid being seen



f by the only store clerk who could have detected her behind the counter. This assistance was

if

i | necessary for the successful execution of the crime. Edwards’ actions also indicated that he



knowingly and willfully participated in the crime of grand larceny, and he undeniably ae that his

i

* actions anid enable Davis to snatch the diamonds without detection.



‘12 The jury returned a guilty verdict against Lisa Davis for grand larceny of the loose diamonds belonging

ii to the Cardow Diamond Center.

Criminal tics. clawiss 2

Manmieraiadum Opinicn

FPag210



1 timed eile? = . oI - 4 ~

acing Gp Oras SHOSITS i wis dean aim ee kee bie lt i aa is



a



(i



~ 1 the prosecution has presented "suostantial evidence” against defendant Edwards, fram which a

jury could find Edwards guilty beyond a reasonable doubt as to the charge of grand larceny by

‘



aiding and abetting. Therefore, the motion for judgment of acquittal for that count is deniad.



3. Evidence Was Sufficient To Sustain Convictions

Against Davis and Edwards On The Conspiracy Counts



Both Davis and Edwards contend there was insufficient evidence against them to sustain

a finding of guilt beyond a reasonable doubt on Counts Ill and !V, respectively, because the



Government proved multiple conspiracies cr a conspiracy other than the one charged in the



information, thus creating a prejudicial variance. The Government, on the other hand, argues



“i that no variance was created because it proved a single overall conspiracy to steal loose diamonds



from Cardow Jewelers, with individuals performing various functions and incidental offenses in an

dH

i effort to achiave that common objective.



| a. Variance Versus Single Overall Conspiracy



i Not only must the court determine, in the light most favorable to the Government, whether

H



there exists substantial evidence from which a rational jury could find defendants guilty of

conspiracy beyond a reasonable doubt, it must also determine whether a variance was created.



A variance exists when the charging terms of an indictment or information remains unaltered, but



the evidence at trial proves facts other than those alleged in the indictment or information. United



t

'

F

y



vi



'3. The defendants maintain that the Government at best proved conspiracy to fraudulently us2 a lost or

_ if stolen credit card but not a conspiracy to stzal diamonds from Cardow Jewelers, the offense charged in the

! information against them.



eee we

37.36 1748 (3rd Cit, 1235), cart danfsd, 475 U.S. 1C25 (ies).



In conspiracy cases, a prejudicial varianca, warranting a judgment of acquittal, is creatsa

i if mora than one conspiracy is proven while the information charges a single conspiracy, Kotteakos

v. United States, 328 U.S. 750, 755-56 (1946), or if a conspiracy, separate and distinct from the

| one charged in the indictment or information is proved. United States v. Camp, 32 F.3d 102, 105

(4th Cir. 4994)(dictum)(variance prejudicial whare government proved separate conspiracy from

| the one charged in the indictment), cert. denied, 115 S. Ct. 1118 (1995)). Conversely, if a jury

| could find a single overall agreement to achieve a common objactive, with individuals performing

| various overt acts and different functions, a single conspiracy is proved and no impermissible

| variance is created. United States v. Crouch, 46 F.3d (3rd Cir, 1995), cert. denied, 475 U.S. 1029

f (1996); United States v. Davis, 882 F.2d 1334, 1342 (8th Cir. 1989), cert. denied, 494 U.S. 1027

f (1990)."



ij :

b. Identification Of Single Overall Conspiracy



| The Supreme Court as well as this Circuit have devised formulas and tests in order to



} identify when a single overall conspiracy has been proven. In Blumenthal v. United States, 332



14 To warrant a judgment of acquittal, a real and tangible difference between the allegations in the plead-



| ings and the proof offered must exist. The difference must be both substantial and material. Fed.R.Crim.P.



| 52(a). Acknowledging this premise, a nonprejudicial variance is identified In the information because Count



Hl lll alleged Davis conspired with Lester Rufus Jones and Kenneth Edwards, and Count IV alleged Edwards



i} conspired with Lester Rufus Jones and Lisa Davis. Lester Rufus Jones, however, was acquitted of all



i! charges, including conspiracy with Davis and Edwards. Ergo, the Government failed to prove beyond a



i reasonable doubt that there was a conspiracy involving Jones as a participant. The absence of proof that



I! Jones was a co-conspirator was not fatal because the statute V1. Code Ann. tit. 14, § 551(1) only requires



'; two or more individuals to be involved in a conspiracy. The jury found Davis and Edwards gullty of con- *



. spiring with each other to steal diamonds, therefore, the statutory number of co- conspirators was satisfied.



| Furthermore, variance relating to discrepancies in the number of individuals alleged to have participated in



.. a conspiracy are deemed nonprejudicial. See United Statas v. Schurr, 775 F.2d 549, 555 (ard Cir. 1985)



i (no fatal variance between indictment charging conspiracy involving five persons and proof that only three



: were involved because indictment gave adequate notice of charges and presented no danger of double

Jeopardy).



i '5 tq determining whether a prejudicial or impermissible variance exists, the standard of review requires the

|! evidence to be viewed in the light most favorable to the Government.

re = s =~ , - ~ -

Los nai tes Pis1S53 Aas FIs iz3s



ilamorandum Opinion

Page 12



U.



Gi)



. 539, 559 (1347), ine Cour rulsd ingi a singis consair

oF and joined in the overriding scheme and with this knowiadga and action sought a common end. |

In United States v. Reyes, 930 F.2d 310, 313 (3rd Cir. 1991), the court held that conspiracy is |



| proven when there is evidance of a larg2 general scheme, and of aid given by some conspirators



| to others in aid of that scheme. An elaborate test for recognizing a sing!2 overall conspiracy was

| most recently developed in United States v. Barr, 963 F.2d 641, 648 (3rd Cir. 1992). The test

requires the Court to first examine whether there is a common goal among the conspirators.



: Second, the nature of the scheme must be scrutinized to determine whether the agreement



contemplated bringing to pass a continuous result that will not continue without the continuous



: cooperation of the conspirators. Third, the court must determine the extent to which the



; participants overlap in the various dealings.



3 In applying the Barr analysis to the case sub judice, the three prong test establishing a



| single conspiracy has been satisfied because the evidence discloses that Davis and Edwards



| joined the conspiracy in the Philadelphia area where an overall scheme to steal diamonds in St.



- Thomas originated. Next, the participants committed various continuous acts and incidental crimes



an order to achieve the ultimate common goal of stealing the loose diamonds at Cardow.



: Specifically, the minor purchased airline tickets for herself, Davis, Edwards and another with a lost



; or stolen credit card belonging to Lynn Oberg. The conspirators, including Davis and Edwards,

immediately assumed false names and traveled to St. Thomas using aliases and false



identifications. Once in St. Thomas, the minor booked.a room at Emerald Beach Hotel using the



name of Lynn Oberg, the owner of the lost or stolen credit card. Edwards then falsely represented



himself to the desk clerk at the hotel as being William Oberg, the minor's husband. The day after



arriving in St. Thomas, Davis, Edwards, James and the minor all appeared at Cardow's Diamond |

Cr oser id

Wemorandum Opiaios

Pas: 73



Bs ~~ oma aah she aa Ane ey



mer th : wat Biatinn =} at yess '

someinna accundinemcomacur and icviupeifarsat stations in ine Stora, Wis'e2cn co-



! crawl behind the counter and steal the loos2 diamonds. Lastly, the defendants pereeeed in their

} various d2alings. Each participated throughout the conspiracy assuming different roles at different



stages of the conspiracy.



| c. Proof of A Con iracy Separate And Distinct From



The One Charged Versus Proof Of Separate Crimes



| The evidence adduced at trial supported the commission of fraudulent use of a lost or stolen

F credit card by the minor co-conspirator, which was a crime or act separate, but not unrelated, to

i



| the conspiracy set forth in Counts III and IV of the information against Edwards and Davis. Multiple

groups and performance of separate crimes or acts, however, do not rule out the possibility that



i an overall conspiracy exists. United States v. Snider, 770 F.2d 985, 989 (8th Cir. 1983)(citing



: United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir. 1980), cert denied, 452 U.S. 905 (1981)).



This Court concluded in its discussions at {[ IIA3b infra. that a single overall conspiracy



existed, with participants of the conspiracy performing various functions, including the overt act or



crime of fraudulently using a lost or stolen credit card, in an effort to achieve the ultimate objective

of stealing loose diamonds from Cardow Diamond Center. To find that the fraudulent use of a lost



or stolen credit card was a separate and distinct conspiracy from the one charged would require



this Court to ignore existing law.



I Because the evidence elicited at trial satisfied both the three prong test in Barr and the

i standards enunciated in Blumenthal and Reyes, a single conspiracy was established sufficiently

linking the conspiracy charged in the information with the conspiracy proven at trial. Hence, in



viswing the evidence in the light most favorable to the Government, the Court concludes that no

Cowinal Nas. Pie ies Shs resis

dlamocandum Oginion

Pag? i¢



prejudicial variance was created and ihe evicencs was Sutinang ta ausiz pues:

respact to the conspiracy counts.



B, MOTION FOR A NEW TRIAL



Alternatively, Edwards moves for a new trial asserting insufficient and nawly discovered

| evidence as grounds on which he seeks relief. First, Edwards contends that certain witnesses

| were not credible. Second, he contends that the Government's dalay and failure to turn over to the

| defense information of an exculpatory and/or potentially inculpatory nature, violated his

: constitutional right to a fair trial and the rules of discovery, and lastly, defendant-contends that the

: Court's evidentiary rulings were erroneous, thus warranting a new trial.



' 4. Standard For New Trial



It is well settled that in passing on a motion for a new trial, the court's role is to weigh the



4 evidence rather than examine its sufficiency and in doing so may weigh the credibility of witnesses.

: Government of the Virgin islands v. Commissiong, 706 F.Supp. 1172 (D.C.V.|. 1989). If after

1 weighing the evidence, the court determines that there has been a miscarriage of justice, the court

: may grant a new trial, and if trial error had a substantial influence on the verdict, the court must

» granta new trial.. Commissiong, supra. See also Government of the Virgin Islands v. Smalls, 32

, VA. 157 (Terr. Ct. St. T. & St. J. 1995). On motion for a new trial, the court may weigh the evidence

« and consider the credibility of the witnesses as if it were sitting as a thirteenth juror. Government

of the Virgin Islands v. Grant, 19 V.1. 440 (Terr. Ct. St. C. 4983); Government of the Virgin [slands

v. Leycock, 19 V.1. 59, 62 (D.C.V.1. 1982). The Court may exercise its discretion to order anew

trial if it finds that the evidence preponderates heavily against the verdict; however, such exercise

of discretion is to be used only in exceptional circumstances. Leycock, supra. lf a motion for a new

trial is based on newly discovered evidence, the court must decide whether there is a reasonable



probability that the result would have been different had the evidence been.disclosed. United

ket eal eS, Mb idee aies

Memeorandum Osinion

Pag275



- = A pn nn.

yap 12S U0,. OSé | PO), ee



a) tw oe Pt “

Wwe. fe tie, ow



cr?

Cha

71



ah



1



nm.



(h

taj

U3

Ga;

(0



The mere possidility that an undisclosed item of information might hava halpad the dsi2anss, or

might have affactad the outcome of the trial is insufficient. U.S. v. Agurs, 427 U.S. 97, 109-10

(1976)."*



I 2. The Testimonies Of Sheila Cunningham And Micheal Pepper Were Credible



Edward sesks to discredit the testimony of Shaila Cunningnam and Micheal Pepper, the

i Diamond Center clerk and the store manager respectively, who offered damaging evidence against

‘him. In doing so, Edwards mares several assertions: (1) that Pepper's testimony was doubtful

¢ since he did not remember the names of his employees; (2) that Cunningham's identification

; testimony was tainted or suspect because she was shown a suggestive photo array containing

' Edwards’ photo; and (3) the testimonies of other law enforcement personnel were equally

' unreliable because the testimony conflicted as to the whereabouts of one of the diamonds that was

+ evidently retrieved. With respect to each assertion, the defense counsel was given broad latitude

ii to impeach the credibility of the witnass' testimony during cross-examination. The jury weighed the

\, evidence and apparently found that Pepper's non recollection of the names of his employees was

i inconsequential and that Sheila Cunningham was capable of identifying Davis and Edwards, absent

any alleged suggestive photo array(s), given the length of time she spent with both defendants and



i: the memorable events that took place on April 21, 1996.7 Assuming arguendo the photo arrays



~ 16 Im the absence of a specific Brady request, Agurs sets a different and stricter standard than Bagley.



_ However, the Supreme Court seems now to have abandoned this distinction. It now holds in Bagley that



- the test In all cases is that “evidence is material only if there Is a reasonable probability that, had the evi-

dence been disclosed to the defense, the result of proceedings would have been different.” 3 Charles A.

Wright, Federal Practice and Procedure § 557.2 (1982).



» 7 Because the photo arrays were not shown to the witnesses until after the defendants were indepen-

dently identified and arrested and considering the totality of the circumstances, the Court dogs not find

the photo arrays to have been “unnecessarily suggestive” and violative cf the defendant's due process



: fight. U.S. v. Emanuel, 51 F.3d 1123, 1128 (3rd Cir. 1995).



——

. i



Grimisai mas. Fladtess ar lewvigeaa

Memozraadum Opinion

Pags is



= 2} matt * - =< “jas mheryat om * TS Pe +4 pHa Aas

ware suggasiiva, $13 jury was apsropriaialy instructed i2 examins win great care any laenancaion



t | by a witness who was influancad by circumstances under which ine identification was made.

Obviously satisfied that the Government mat its burden regarding the identification of the

defendant(s), the jury returned guilty verdicts on both counts against Edwards.



3. Government's Failure And/Or Delay In Disclosing Evidence



As another basis for a new trial, Edwards contends that the Government violated its duty



to make available to the defense certain discovery under Fed.R.Crim.P. 16(a)(1)(C) and (D) and

| that exculpatory evidence was withheld by the Government in violation of the prohibition set forth



in Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Edwards argues that the results of certain



medical tests performed on him were not made available and that the FBI lab analysis on the

| diamond wrappers was naver disclosed nor was he given an opportunity to examine the wrappers

| and have a forensic test poteliyl on them. He further argues that he was not advised that a



| witness identified him from a "suggestive" photo-array until the witness inadvertently referred to the



photo array during the course of her testimony at trial.



a. Consequences Under Brady



i

7 .



Unlike Rule 16," the Government's duty to disclose exculpatory evidence under Brady is

| not a discovery rule, but a rule of fairness and minimal prosecutorial obligation based on the

}



! requirements of due process. United States v. Starusko, 729 F.2d 256, 262 (3rd Cir. 1984). Due

; process forbids a prosecutor from suppressing “evidence favorable to'an accused upon request

} where the evidence is material either to guilt or to punishment, irrespective of the good faith of the



" prosecution." Brady at 87.



In order to invoke a valid Brady violation, the defendant must satisfy three elements: (1)



i "8 Federal Rules of Criminal Procedure.

Crstnal Was. 721333 ana ATS ise

tlamarandum Opinion

Pag217



S32 ahS Cs:



tb



a

=



ats

FP)



~



1)



sya]



€3



5. 4 = =j5 “

time we beS Seem Sie VID IS ee



INS PPOSsSCUl SUL eSssSa CF sis.

. !



(3) the evidence is material to the defense, United Staies v, Perdomo, 929 F.2d 957, 970 (3rd. Cir,



1994) (citing Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562 (1972)). Evidanca is not considered to

« be suppresssd or withheld if the defendant either knew or should have known of the esseniial facts

fl permitting him to take advantage of exculpatory evidence. Perdomo at 973.

Applying the elements set forth in Perdomo, Edwards failed to meet the requisite standard

| for establishing a Brady violation. With respact to Edwards’ contention that the medical test results

i were not disclosed, the Court finds that the defendant knew of the medical examination because

ij it was performed on him."® Because the test was performed on Edwards, the results are deemed

to be property belonging to him, thereby granting him equal access to such. If Edwards received

i any resistance in obtaining the results, he was entitled to have this Court assist him in issuing a

I subpoena or subpoena duces tecum to acquire the same. Moreover, the Government stated, on

i the record during the trial, that the results were inconclusive and that the hospital did not have the

i! examination results on file. Because the defendant, using due diligence, could have received the

test results on his own, the first element of the Perdomo test was not met.

{: With respect to the nondisclosure of the test results on the diamond wrappers and the

alleged absence of opportunity for the defendant to examine and perform forensic tests on the

| wrappers, the Court finds that the evidence can not be considered newly discovered because the

: defendant had knowledge of the diamond wrappers; yet, he made no specific request for the

wrappers to be tested. Furthermore, the Government asserted that tests performed yielded

- inconclusive results because identifiable prints could not be lifted from the wrappers. Accordingly,



the defendant has failed to damonstrate the materiality of the "undisclosed evidence” or the



. : The medical tests were apparently performed on Edwards in an effort to verify whether he had swallow-

+ ed any diamonds as reported.

Momsesagsum Csi



uF



>



Pag273



)



Sretareica. Pardamoa



© O74 (clin



(4)



Government of the Virgin Islands v. Martinsz, 739 F.2d 392, 306 (3rd Cir. 1935)). Considering tha

: totality of the circumstances and other substantial evidence offered against the defendant, the

 SuOMission of tha "inconclusive" tast results would not have made any significant difference at trial.



! Tha final contention by Edwards that the delayed disclosure of the photo array constituted

if

a Brady violation is unpersuasive. Tha photo array was not exculpatory and was ultimately



disclosed, albsit belatedly, and introduced at trial. Thus, no prejudice resulted because defendants

i viewed the photos during a recess and were given an opportunity to fully cross-examine the case



i| investigator regarding the suggestive nature of the photos.



f b. Consequences Under Rule 16(a)



Fi The relevant sections of Rule 16 state as follows:



Upon request of the defendant the government shall permit _

the defendant to inspect and copy or photograph books, papers,

documents, photographs, tangible objects, buildings or places, or

copies or portions thereof, which are within the possession, custody,



7 or control of the government, and which are material to the



preparation of the defendant's defense or are intended for use by the

7 government as evidence in chief at the trial, or were obtained from or

: belong to the defendant. Fed.R.Crim.P. 16(a)(1)(C). :



Upon request of a defendant the government shall permit the

defendant to inspect and copy or photograph any results or reports

of physical or mental examinations, and of scientific tests, or

i experiments, or copies thereof, which are within the possession,

af custody, or control of the government, the existence of which is



Known, or by the exercise of due diligence may become known, to the



attorney for the government, and which are material to the

is preparation of the defendant's defense or are intended for use by the

government. Fed.R.Crim.P. 16(a)(1)(D).



Under either subsection C or D of Rule 16(a)(1), the Government has the duty to turn over

information even if itis inculpatory, and the Government is required to disclose the information to



» the defendant regardless of whether it planned to use the information. U.S. v. Rodriquez, 799 F.2d

Caisiaiai ios. We igeg ae Fiecagsd

iiamarandum Oainiaa

P3232 79



649 (11th Cir. 1935). Tne Govarnmani's visigtion of its duty uncer ins digeivary vase Cross. 2:

: automatically entitle defandant to tna relisf requested. Relief for violations o7 the discovery rulss



1 fias within the discretion of the trial court. Id. A showing of prajudice to tha substantial rights of the

fF



| defendant is required to show raversiole error. U.S. v. Scruggs, 583 F.2d 238, 242 (5th Cir. 1978).

The actual prejudice will often turn on the strength of the Government's case. Rodriquez at 652.



With respect to the non disclosure of the medical results, the Court finds no prejudice to tha

substantial rights of Edwards essentially for the same reasons stated in finding no valid Brady

violation. Similarly, the Court finds that Edwards failed to make a showing that he was prejudiced

| by the delayed or non disclosure of the FBI test results on the diamond wrappers. In fact, Edwards

refused the Government's offer made during trial to obtain the information from the FBI. Moreover,

| Edwards did not request a continuance in order to receive the lab report nor did he accept the offer

| by the Government to stipulate to the lab results, which were "inconclusive." .In the absence of a

request by Edwards for a continuance, and considering Edwards’ unwillingness to stipulate to the

| lab results, the Court must conclude that counsel for defendant did not need time to incorporate



the undisclosed information into his game plan. Thus, no prejudice arose. U.S. V. Langlois, 15



F.3d 1161, 1178 (1st Cir. 1993).



In terms of the photo array, Edwards likewise failed to make a showing that the



|

| Government's delay in furnishing the photos caused any prejudice to any of his substantial rights.

\i The lack of demonstrable prajudice sounds the “death knell" for a delayed discovery claim. /d.”



II In addressing Edwards’ remaining concern that the photo array was unnecessarily



| suggestive,2" after conducting an in camera review, the Court found the array not to be



|. 29 See also United States v. Devin, 918 F.2d 280, 290 (1st. Cir. 1990)(explaining that a defendant com-



*, plaining about delayed discovery “can not rely on wholly conclusory assertions but must bear the burden of

‘ producing, at the very least, a prima facie showing of a plausible strategic option which the detay fore-



closed.”)

er At eed



*

ewer me ee eee 8



Sas



eer ee rene gt arenes ses.



. + - io ue tems wernt -=-- HY

the Coun cermited the pacioé mays 19 28 BCs dine



fae

amen ine



a ee Poe

ts ae =

Soto am ete



as]



ra



- Pa stl Sas t peatisintal hanntcas = als

102 aastiva, twas not prejudisial bsceuss ons o7 ina individusis



rs



~t



W



5 SU



Wi

(Le



-



shown the photo erray nad previously identified E iwards at Emerald Beach Hots! prior io his arrest.



The other individual shown the photo array wes the sales clerk at Cerdow who not only hed ample



opportunity to observe Edwards but also had sufjicient cause to remember him since she waited

on him the day of the larceny of the loose diamonds and Edwards forcibly pulled her head to the

jewelry counter, causing her to be extremely agitated and annoyed. For these- reasons the

defendant's argument is without merit,



4, Erroneous Rulings



In addition to the contentions of a failure to disclose evidence, insufficiency of the evidence

and discovery rule and Brady violations, the defendant Edwards requests a new trial based on trial

error. With respect to any other errors, "a defendant is entitled to a fair trial but not a perfect one,

for there is no perfect trial." Government of the Virgin Islands v. Beaford, 671 F.2d 758, 762 (3rd.

Cir. 1982) (quoting Brown v. United States, 411 U.S. 223-331-32, 93 S.Ct. 1565, 1570, 36 L.Ed.

and 28 (1 973) and Lutwork v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593

(1953)). Because there is no reasonable probe ability that error in the proceedings had a substantial

impact on the outcome of the trial, no new trial is required. United States v. Fisher, 808 F.Supp.



390, 392 (M.S. Pa. 1992) (citations omitted).



“=| CONCLUSION



- In view of the foregoing, this Court concludes as follows: (1) sufficient evidence existed,



when Viewed in the light most favorable to the Government, to esteblish a single overall conspiracy



att Oa

mente ats pest --r



net ae td



Mm



4 ~ $ aa -

{OStse.SN2.5.07



+) Because tha phoiss ci the cefencenisv



Se mower re em EF ese eee pet revs eae



visted between the preci



1 ee ere

acme Ai ee te et Be) Pa RO ret tm med Em et!

Gacy to Comm: ofa id! resny ana wi SPScins COWS si jonn



Ww

7)



S5:35iS5N=5



gy



gu



od



fy



Bits "Ging Clas



ud



=

=



in tha information; (2) suiiiciant evidsnce existed, whan viewad in the light most favorabie to tha



Government io support a guilty vardict against Edwards for grand larceny by aiding and abatting; «

and (3) the jury's guilty verdicts against Edwards were rational, supported by the weight of the |

evidence and credibility of witnasses and no court ruling was erroneous to the extent of affecting |



the outcome of the trial. Accordingly, the defendants’ motions for judgment of acquittal and j



Edwards' motion for a new trial are DENIED.



Dated: January iO , 1997

BRENDA J.HOLLAR/ ¢



Judge of the Territorial Court i

of the Virgin Islands



ATTESTE og Lhepltpe



YVONNE V. WESSELHOFT

CLERK OF THE COURT