Jamal Fahie v. People of the Virgin Islands

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 15-2721
_____________

JAMAL JUSTIN FAHIE,
Petitioner
v.

PEOPLE OF THE VIRGIN ISLANDS
_______________

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

Argued
December 12, 2016

Before: CHAGARES, JORDAN and HARDIMAN, Circuit
Judges

(Filed May 24, 2017)
_______________
David J. Cattie [ARGUED]
2329 Commandant Gade – Unit #3
St. Thomas, VI 00802
Counsel for Petitioner

Kimberly L. Salisbury
Pamela R. Tepper
Su-Layne U. Walker [ARGUED]
Office of Attorney General of
Virgin Islands
Department of Justice
34-38 Kronprindesens Gade
GERS Complex – 2nd Fl.
St. Thomas, VI 00802
Counsel for Respondent

Edward L. Barry [ARGUED]
2120 Company Street
Christiansted, VI 00820

Christopher A. Brookhart
Estrella
150 Tetuan Street
San Juan, PR 00901
Counsel for Amicus Curiae
________________

OPINION OF THE COURT
_______________

2
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.

3
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 firearm1 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.

1
“Glock” is the tradename of the Austrian firearm
manufacturer Glock Ges.m.b.H. Glock Gesellschaft m.b.H.:
Company Information, D&B Hoovers (Apr. 19, 2017, 11:00
AM), http://www.hoovers.com/company-
information/cs/company-
profile.glock_gesellschaft_mbh.85a9bff64e0c59c3.html.

4
 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,

2
An indictment is not required to level felony charges
in the Virgin Islands. “[T]he right of presentment by grand
jury is merely a remedial right which is not among the
fundamental rights which Congress in legislating for a
territory not incorporated into the United States, such as the
Virgin Islands, must secure to its inhabitants. ... [U]ntil
Congress shall extend rights of this character to the
inhabitants of [the] territory, the judicial system prevailing in
such territory—not the system contemplated by the
Constitution—is applicable and controlling.” Rivera v. Gov’t
of V.I., 375 F.2d 988, 991 (3d Cir. 1967) (internal quotations
omitted). Thus, “[defendants] may be prosecuted by
information unless a local law requires [they] be prosecuted
by grand jury.” Simmonds v. People, 59 V.I. 480, 490 (2013)
(quoting Codrington v. People, 57 V.I. 176, 196 (2012)).
3
While “aiding and abetting” was not expressly
charged as a separate count, the theory was included within
the language of each of the charged counts. The language
was stricken in the Fourth Amended Information, but was
subsequently added back into the Fifth Amended Information,
as will be discussed in more detail hereafter.

5
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,

6
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

4
While Kelly did not see a second shooter, much of
her testimony suggests that two people were involved in the
shooting:

“Q: Was the person who was doing the
shooting the same person who had passed you
on the hill? A: Initially, no. He was the one
who fired the last four shots.” (JA at 732);

7
 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.)

“Q: Okay. And when you looked up
from there tell the jury what you saw? A: The
gentleman who had pass[ed] me on the road
was approaching a second person who had his
arm extended and pointing across the road. Mr.
Francis took one more step and then turned. The
gunshots were continuing and there was a slight
pause, and then Mr. Francis had the gun and
walked across the road and shot four times into
the body. Q: Did you ever see more than one
firearm? A: No.” (JA at 740);

“Q: Okay. So you had heard shots, at
this point in time [Francis] wasn’t shooting, you
saw an arm extended and heard shots; is that
correct? A: Correct.” (JA at 744);

“They stood over him and shot him four
times.” (911 Call of Carol Kelly at 4:18-4:28
(Lexar zipdrive, Aug. 2012)).

8
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 anti-CSI instruction, it agreed that the trial court
should not have included the instruction but concluded that
the error was harmless. Id. at 638.

After the V.I. Supreme Court ruled against him, Fahie
sought a writ of certiorari from us and we granted his petition,
specifically as to the questions relating to the “aiding and
abetting” and “anti-CSI” instructions. (JA at 1-2.)

9
II. Discussion

A. Jurisdiction

The V.I. Supreme Court had jurisdiction under 4
V.I.C. § 32(a). Fahie, 62 V.I. at 629. Neither party contests
our jurisdiction, but, in the role of amicus, the Virgin Islands
Bar Association does, and, in any event, we have an
obligation to consider it sua sponte. Ins. Corp. of Ireland,
Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702
(1982) (“[A] court, including an appellate court, will raise
lack of subject-matter jurisdiction on its own motion.”).

Under the Revised Organic Act of 1984, we had, for a
limited time, certiorari jurisdiction over “all final decisions of
the highest court of the Virgin Islands from which a decision
could be had.”5 48 U.S.C. § 1613 (1984 version) (amending

5
Under the 1984 Act, “a dual system of local and
federal judicial review in the Virgin Islands” was
implemented, Parrott v. Gov’t of V.I., 230 F.3d 615, 619 (3d
Cir. 2000), in which “‘the judicial power of the Virgin
Islands’ [vested] in a ‘District Court of the Virgin Islands
established by Congress, and in such appellate court and
lower local courts as may have been or may hereafter be
established by local law.’” Pichardo v. V.I. Comm’r of
Labor, 613 F.3d 87, 93 (3d Cir. 2010) (quoting 48 U.S.C.
§ 1611(a)).
Within that system, the Superior Court of the Virgin
Islands holds concurrent original jurisdiction with the District
Court in all criminal actions. 4 V.I.C. § 76(b). When the V.I.
Supreme Court was established in 2004, cases from the
Superior Court became appealable directly to it, as “the

10
the Revised Organic Act of the Virgin Islands). That grant of
jurisdiction, however, was designed to terminate when the
V.I. Supreme Court “developed sufficient institutional
traditions to justify direct review by the Supreme Court of the
United States from all such final decisions.” Pichardo v. V.I.
Comm’r of Labor, 613 F.3d 87, 94 (3d Cir. 2010) (quoting 48
U.S.C. § 1613 (1984 version)).

On December 28, 2012, the President of the United
States signed into law the bill that became the current version
of 48 U.S.C. § 1613, which provides formal recognition of
the V.I. Supreme Court’s institutionally mature status and
began the phasing out of our certiorari jurisdiction. 48 U.S.C.
§ 1613 (2012 version) (amending the Revised Organic Act of
the Virgin Islands). Section 1613 revokes our certiorari
jurisdiction over all cases “commenced on or after”
December 28, 2012. 28 U.S.C. § 1260 note (2012) (“The
amendments made by this Act [amending § 1613] apply to
cases commenced on or after the date of the enactment of this
Act.”).

The dispute over our jurisdiction in this case centers on
the meaning of the words “commenced on[.]” Id. The
operative question is whether § 1613 revokes jurisdiction
over cases commenced in the Superior Court on or after
December 28, 2012, or whether the law only revokes

supreme judicial power of the Territory.” Pichardo, 613 F.3d
at 94 (quoting 4 V.I.C. § 21). We were given certiorari
jurisdiction over the V.I. Supreme Court’s final decisions
under 48 U.S.C. § 1613. Id. at 94 (internal quotations
omitted).

11
jurisdiction over cases that have commenced in our Court
(through a petition for writ of certiorari) on or after that date.
The Bar Association, expressing a desire to reduce the
backlog of cases in the Virgin Islands court system, supports
the latter interpretation.6 The choice of interpretation is
relevant here because the case against Fahie commenced in
the Superior Court in November 2011, but was not the subject
of a petition to us until 2016.

This is not the first time we have been asked to
construe § 1613. In North America Seafarers International
Union ex rel. Bason v. Government of the Virgin Islands
(“Bason”), we adopted the first of the two interpretations
described above and expressly held that the statute eliminates
jurisdiction over all cases commenced in the Superior Court
after December 28, 2012. 767 F.3d 193, 205-06 (3d Cir.
2014). In that case, the original plaintiff, Bason, died during
the pendency of an appeal for reinstatement to a previous
employment position. Id. at 195-200. We eventually
dismissed the case on mootness grounds, id. at 211, but we
did so only after deciding the threshold jurisdictional question
concerning § 1613, saying, “we conclude that we still possess

6
The Bar Association argues that, if the first
interpretation is adopted, our certiorari jurisdiction “will
extend ... over Virgin Islands cases indefinitely” (Br. of
Amicus Curiae at 19), because of significant delays in the
Superior Court, where there are currently 6,000 pending
cases, each taking on average 10 years for adjudication. That
result, says the Bar Association, would be “absurd ... given
that the stated purpose of [the amendment to § 1613] ... was
to end such oversight immediately upon its passage.” (Id. at
19.)

12
certiorari jurisdiction over proceedings that were filed in the
Virgin Islands courts before [§ 1613’s] enactment date[.]” Id.
at 201. We also said our decision was “[b]ased on the
language of the statute, analogous legislation, and prior case
law[.]” Id. at 206.

The Bar Association disagrees with Bason and argues
that our analysis relating to jurisdiction “contravened the
jurisprudence of the Supreme Court ... and the uncontradicted
legislative history [of § 1613.]” (Br. of Amicus Curiae at 2.)
It also asserts that the jurisdictional analysis in Bason is non-
binding because the “unequivocal determination that the
matter was moot by reason of Bason’s intervening death
renders the remainder of the Bason decision dicta.” (Id. at 4.)
On those grounds, the Bar Association urges that we
“overturn Bason[,]” and it says that we have “the complete
freedom” to do so without requiring en banc review. (Id. at
3.)

No matter how we might now view Bason, however,
the Bar Association is mistaken about our “complete
freedom[.]” (Id.) We deliberately chose to assess the
jurisdictional question as a threshold issue in Bason,
recognizing that, “while threshold jurisdictional issues must
ordinarily be decided before turning to the merits, ‘there is no
mandatory sequencing of jurisdictional issues.’”7 767 F.3d at

7
The Bar Association acknowledges that reasoning,
but argues that “[t]hat principle has no application ... when
subject matter jurisdiction is absent.” (Br. of Amicus Curiae
at 8.) Essentially, it is arguing that we treat mootness as a
threshold threshold question, or that there is a threshold

13
202 n.3 (quoting Sinochem Int’l Co. v. Malaysia Int’l
Shipping Corp., 549 U.S. 422, 431 (2007) (further quotations
omitted)). Then after extensive analysis, we concluded that
the words “cases commenced” were a reference “to the filing
of a complaint in the Virgin Islands Superior Court.” Id. at
206 (quotation and alteration omitted). That ruling was not
merely non-binding dicta, and it remains the law in our
Circuit.8 Thus, while we are grateful for the interest and
assistance of the Bar Association, we cannot accept its
argument. According to Bason, we have jurisdiction over
Fahie’s claims.

B. Inclusion of the “Aiding and Abetting”
Instruction

Fahie objects to the inclusion of the “aiding and
abetting” instruction, not to its content, so we are not asked to
review the legal accuracy of the instruction, which would call
for de novo review. Gov’t of V.I. v. Isaac, 50 F.3d 1175,
1180 (3d Cir. 1995) (“[W]here ... the question is whether the
jury instructions failed to state the proper legal standard, this

hierarchy, but it fails to substantiate that argument with any
case law and we are unpersuaded.
8
Even if we were to agree that Bason was wrongly
decided, we are not at liberty to overturn the holding without
en banc review because it is not dicta. Mariana v. Fisher,
338 F.3d 189, 201 (3d Cir. 2003). We have already denied
such a petition previously. Sur Petition for Rehearing, North
America Seafarers Int’l Union ex rel. Bason v. Gov’t of the
V.I., 767 F.3d 193 (3d Cir. 2014) (No. 13-1247) (Sept. 30,
2014).

14
court’s review is plenary.”). Instead, we review for abuse of
discretion the trial court’s decision to include the instruction
at all. Cf. id. (“Generally, we review the district court’s
refusal to give certain jury instructions on an abuse of
discretion basis.”); see also United States v. Moreno, 727
F.3d 255, 261 (3d Cir. 2013) (“[I]n the absence of a
misstatement [within the jury instructions] we review for
abuse of discretion.” (quotation omitted)).

“When jury instructions are challenged, ‘we consider
the totality of the instructions and not a particular sentence or
paragraph in isolation.’” United States v. Thayer, 201 F.3d
214, 221 (3d Cir. 1999) (quoting United States v. Coyle, 63
F.3d 1239, 1245 (3d Cir. 1995)), abrogated on other grounds
by Skilling v. United States, 561 U.S. 358 (2010). “The issue
is ‘whether, viewed in light of the evidence, the charge as a
whole fairly and adequately submits the issues in the case to
the jury.’” Id. (quoting United States v. Zehrbach, 47 F.3d
1252, 1264 (3d Cir. 1995)).

Fahie advances two challenges to the “aiding and
abetting” instruction. First, he argues that it was erroneous
because it was given “despite the fact that the government
never presented [an aiding and abetting] theory at trial.”
(Opening Br. at 14.) Second, he argues that the instruction is
problematic because Francis pled guilty to being an accessory
after the fact, effectively eliminating the possibility of Francis
being a principal for Fahie to “aid or abet” in the shooting.
(Id. at 14, 16-19); see also Gov’t of V.I. v. Aquino, 378 F.2d
540, 553 (3d Cir. 1967) (“By definition, an accessory after the
fact is one who stands outside the commission of the
substantive crime, for his offense consists of what he does,
after he knows it has been committed, to aid the offender to

15
avoid apprehension or punishment.”). We address those
arguments in turn.

Fahie says that the instruction was erroneous because
it was included even though the government did not present
an aiding and abetting theory.9 But the record demonstrates
that the government did, in fact, present an aiding and
abetting theory to the jury. In its closing statement, the
government discussed Kelly’s testimony and drew the jury’s
attention to the portions of her statement that refer to two
shooters. (See JA at 873-74, 876.)10 The government laid the
groundwork for that argument when it questioned Kelly. (JA
at 744, 751.)11 The record thus shows that the government

9
The government seems to agree that it did not pursue
the theory. (See Answering Br. at 8 (“The record indicates
that the Information was revised prior to jury deliberations,
which reflects the People’s decision not to pursue an aiding
and abetting charge.”) (citing JA at 52-54).) But we take that
as an admission that it did not pursue the theory in its case-in-
chief. It did in fact present the theory following Kelly’s
testimony.
10
JA at 873-74 (“Listen to her reference of ‘they’
during the course of that 9-1-1 call. ... [S]he saw an arm
extended and heard shots firing at the same time from the
very stairwell where Kamaal Francis said Jamal Fahie was.”);
JA at 876 (“[W]hat we heard from Carol Kelly was consistent
with what you heard from Mr. Francis[.]”).

JA at 744 (“Q: And you looked up, was the arm that
11

you saw extended [shooting], was it extended at that point in
time? A: Yes. Q: And at that point in time did you see where

16
indeed did contend that Fahie was, at the very least, involved
in the shooting as an aider and abettor, and there was
sufficient evidence to support an instruction to the jury to that
effect.12

That the government did not use the phrase “aiding
and abetting” when talking to the jury does not mean the
judge was precluded from including the instruction. See
United States v. Gordon, 812 F.2d 965, 969 (5th Cir. 1987)
(“The words ‘aid and abet’ need not appear in the indictment
in order to sustain a conviction as an aider and abettor ...
‘[O]ne who has been indicted as a principal may be convicted
on evidence showing that he has merely aided and abetted the
commission of the offense.’”) (quoting United States v. Vines,

Mr. Francis went? A: He was still approaching the corner of
the building. Q: Okay. And that’s before, as you testified,
you saw him fire four, five shots? A: Yes.”); JA at 751 (“Q:
After th[at] final set of shots, where did the individuals go?
A: They both ran down the stairwell. Q: Okay. So the
individual whose arm you saw extended, he travel[ed] down
the stairwell? A: Yes. Q: And Mr. Francis you said also
traveled down the stairwell; is that correct? A: Yes.”).
12
Carol Kelly’s testimony strongly suggests that there
were two shooters. See supra n.4. Her testimony, even when
compared to countervailing evidence, was sufficient to allow
a reasonable jury to find Fahie guilty of aiding and abetting
the criminal activity. Additionally, the testimony of Francis
and Webbe, as well as forensic evidence, added to the
sufficiency of the evidence, and the court acknowledged that
at trial.

17
580 F.2d 850, 853 (5th Cir. 1978), cert. denied, 439 U.S. 991
(1978)). The government communicated its intent to argue
the aiding and abetting theory when it amended the
Information to include aiding and abetting as a basis for
criminal liability and when it requested that the judge add an
aiding and abetting instruction to the jury charge. Fahie was
thus on notice that the government was indeed relying on that
theory.

The second argument Fahie advances is that the
instruction is problematic because “legally, there was no one
for Fahie to ‘aid and abet’” since Francis was, by virtue of his
plea agreement, an accessory after the fact, which precluded
any consideration of him as a participant in the shooting.
(Opening Br. at 14, 19.) Essentially, Fahie argues that
Francis’s plea to being an accessory after the fact confined
the government’s proof at Fahie’s trial. By Fahie’s lights,
since an accessory after the fact “[b]y definition ... is one who
stands outside the commission of the substantive crime ... [,]”
Aquino, 378 F.2d at 553; see also 14 V.I.C. § 12(a) (defining
accessory after the fact as having the same mens rea
requirement under Virgin Islands law), Francis could not be a
participant in the shooting and there was no one for Fahie to
aid and abet in the murder.13

13
Fahie confusingly makes his argument by focusing
substantial portions of his briefing on Francis’s inability to be
an aider and abettor to Fahie, but the focus here is on whether
Fahie could be found guilty of aiding and abetting in the
murder, not on whether Francis could be found guilty under
that theory.

18
 That argument has a certain superficial appeal but is
flawed. It rests on an improper understanding of judicial
estoppel.14 The fact that the government negotiates a plea
does not mean that the government is required to treat all
aspects of that plea as binding in future prosecutions. Such a
requirement could unnecessarily tie the hands of prosecutors
who gain a greater understanding of the facts over time, and it

14
Judicial estoppel is triggered when a court deals with
inconsistent positions taken by a party. See Carlyle Inv.
Mgmt. LLC v. Moonmouth Co. SA, 779 F.3d 214, 221-22 (3d
Cir. 2015) (“The doctrine of judicial estoppel prevents a party
from prevailing in one phase of a case on an argument and
then relying on a contradictory argument to prevail in another
phase.”) (citation omitted). That doctrine

requires that: (1) a party adopts a position
clearly inconsistent with an earlier position and
(2) the party had succeeded in persuading a
court to accept that party’s earlier position, so
that judicial acceptance of an inconsistent
position in a later proceeding would create “the
perception that either the first or the second
court was misled.”

Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 750
(2001)). Thus, “absent any good explanation, a party should
not be allowed to gain an advantage by litigation on one
theory, and then seek an inconsistent advantage by pursuing
an incompatible theory.” In re Kane, 628 F.3d 631, 638 (3d
Cir. 2010) (quoting Krystal Cadillac-Oldsmobile GMC Truck,
Inc. v. Gen. Motors Corp., 337 F.3d 314, 319 (3d Cir. 2003)).

19
could yield unfair windfalls for later defendants. “Judicial
estoppel is only appropriate when the inconsistent positions
are tantamount to a knowing misrepresentation to or even
fraud on the court.” Krystal Cadillac-Oldsmobile GMC
Truck, Inc. v. Gen. Motors Corp., 337 F.3d 314, 324 (3d Cir.
2003) (internal quotations omitted). The government’s
position here does not amount to anything of the kind.

Two analogous cases are persuasive in this regard. In
Standefer v. United States, the Supreme Court upheld an
aiding and abetting conviction under 18 U.S.C. § 2, despite
the principal defendant’s having been acquitted of the
offense. 447 U.S. 10, 11-14 (1980). The Court concluded
that, “[under § 2] ... all participants in conduct violating a
federal criminal statute are ‘principals[,]’ [and] [a]s such, they
are punishable for their criminal conduct; the fate of other
participants is irrelevant.”15 Id. at 20. Later, in Smith v.
State, the Indiana Supreme Court rejected a defendant’s
argument that judicial estoppel barred the government “from
seeking an instruction on accomplice liability because it
agreed to a guilty plea from another defendant on a theory of
the facts that was allegedly inconsistent with Smith’s being an
accomplice to the killing.” 765 N.E.2d 578, 581 (Ind. 2002).
The court said, “[w]e do not believe the acceptance of a plea
bargain from [the other defendant] on one theory of the case

15
Fahie was convicted as an aider and abettor under 14
V.I.C. § 11. That statute was modeled after 18 U.S.C. § 2.
See Todman v. People, 59 V.I. 675, 683 (V.I. 2013) (noting
that 14 V.I.C. § 11 was modeled on 18 U.S.C. § 2, and
indicating that the logic of Standefer applies with equal force
in the Virgin Islands).

20
and the prosecution of Smith in a separate action on an
alternate theory can be construed as ‘playing fast and loose’
with the courts.” Id. at 584; see also In re J.W.S., 825 P.2d
125, 128 (Kan. 1992) (rejecting the argument that “once the
prosecution permits one of two codefendants to plead guilty
to aiding and abetting, then it is locked into proving the
second defendant is the principal.”). At least on the facts
here, we agree with that reasoning.16

We therefore reject Fahie’s argument that judicial
estoppel is applicable to bar the aiding and abetting theory in
this case. There is enough evidence in the record to show that
a theory of aiding and abetting was, in fact, presented at trial,
and we discern no abuse of discretion in the trial court’s
decision to give an aiding and abetting instruction.

16
Our holding does not mean that there is no role for
judicial estoppel in constraining government theories of
culpability. See, e.g., Drake v. Kemp, 762 F.2d 1449, 1478-
79 (11th Cir. 1985) (finding a due process violation where a
prosecutor convicted one defendant of murder and then used
that defendant’s testimony (from his first trial, in which he
attempted to demonstrate his innocence by pinning the blame
on someone else) to convict another defendant for the same
murder, explaining, “the prosecutor either believed or did not
believe [the first defendant]. If he did believe him, then the
prosecutor should not have prosecuted [him] ... If he did not
believe [him], then the prosecutor used testimony he thought
was false in order to convict [the other defendant], a
conviction he could not constitutionally otherwise secure.”).

21
 C. The Anti-CSI Instruction

The second question on which we granted certiorari
concerns the use of an anti-CSI instruction and whether the
V.I. Supreme Court applied the correct “harmless error”
standard after finding the instruction was erroneous. On
further consideration, we believe that the writ was, in that
regard, improvidently granted. Because the propriety of an
anti-CSI instruction is fundamentally a matter of Virgin
Islands law, and not a matter of federal concern, we will
vacate the writ of certiorari as it pertains to that question.

Our review of the briefing, record, and oral argument
convinces us that the V.I. Supreme Court’s determination that
the anti-CSI instruction was error is a point of territorial law
on evidence. The parties themselves agree on that,17 and they
appear to be right, since the language of the V.I. Supreme
Court’s decision focuses on Virgin Islands precedent rather

17
See Oral Argument at 13:15-13:26, Fahie v. People
of V.I. (No. 15-2721), http://www2.ca3.uscourts.gov/
oralargument/audio/15-2721Fahiev.PeopleofVI.mp3 (Fahie
arguing that the V.I. Supreme Court was interpreting Virgin
Islands law and “[the V.I.] Supreme Court is still free to
determine that [the] instruction is improper in the Virgin
Islands. It is not bound by the Third Circuit[.]”); id. at 15:41-
16:51, 20:15-21:13, 22:39-24:10 (Fahie arguing that the
assumption of error in question two is under Virgin Islands
law and based on Virgin Islands jurisprudence); id. at 34:00-
35:17 (the People arguing that “the [V.I.] Supreme Court is
well within their rights ... that it was a state level argument
that they made.”).

22
than constitutional principles. Fahie, 62 V.I. at 636
(“Although we have not previously addressed the validity of
an instruction informing the jury that the People [were] not
required to produce specific scientific evidence, this Court
has noted that when the trial court comments on the evidence,
or the absence of evidence, it risks invading the exclusive
province of the jury to decide what conclusions should be
drawn from evidence admitted at trial.”) (citations omitted).

In addition, a review of the factors provided in our
local rules to guide our discretion in granting certiorari
suggests that certiorari on this question is better withheld. 3d
Cir. L.A.R. 112.1 (2011). Specifically, those factors are:

(1) The Supreme Court of the Virgin Islands
has decided a question in a way that conflicts
with applicable decisions of this court, other
appellate courts, or the United States Supreme
Court. (2) The Supreme Court of the Virgin
Islands has so far departed from the accepted
and usual course of judicial proceedings, or so
far sanctioned such a departure by a lower
court, as to call for an exercise of this court’s
powers of review. (3) The Supreme Court of
the Virgin Islands has decided an important
question of federal or territorial law that has not
been, but should be, decided by this court. (4)
The Supreme Court of the Virgin Islands was
without jurisdiction of the case, or where,
because of disqualifications or other reason, the
decision of the Supreme Court of the Virgin
Islands lacks the concurrence of the required
majority of qualified non-recused judges.

23
Id. None of those factors appear to be applicable to the V.I.
Supreme Court’s ruling on this issue.

“Examination of a case ... on oral argument, may bring
into ‘proper focus’ a consideration which, though present in
the record at the time of granting the writ, only later indicates
that the grant was improvident.” The Monrosa v. Carbon
Black Exp., Inc., 359 U.S. 180, 184 (1959). That is the
circumstance we are in. “Now that plenary consideration has
shed more light on this case than in the nature of things was
afforded at the time the petition for certiorari was
considered,” Belcher v. Stengel, 429 U.S. 118, 119-20 (1976)
(citing Monrosa, 359 U.S. at 183-84), we have concluded that
the writ should be vacated as improvidently granted to the
extent it dealt with the anti-CSI instruction.

III. Conclusion

For the foregoing reasons, we have jurisdiction; we
will affirm the ruling on the aiding and abetting instruction;
and we will vacate as improvidently granted the writ of
certiorari as it pertains to the anti-CSI instruction.

24