United States v. Mike

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 10-1394
_____________

UNITED STATES OF AMERICA

v.

JAMAAL L. MIKE,
Appellant
_____________

On Appeal from the District Court of the Virgin Islands,
Division of St. Thomas and St. John
(Crim. No. 3-09-cr-00036-001)
District Judge: Honorable Curtis V. Gómez
_____________

Argued December 16, 2010

BEFORE: McKEE, Chief Judge, FUENTES and SMITH,
Circuit Judges

(Opinion Filed: August 23, 2011)

Jesse A. Gessin, Esq
Gabriel J. Villegas, Esq. [ARGUED]
Office of Federal Public Defender
P.O. Box 1327, 51B Kongens Gade
Charlotte Amalie, St. Thomas, USVI 00804

Thurston T. McKelvin, Esq.
Office of Federal Public Defender
P.O. Box 223450
Christiansted, USVI 00822

Counsel for Appellant
Nelson L. Jones, Esq. [ARGUED]
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
Charlotte Amalie, St. Thomas, USVI 00802-6924

Counsel for Appellee
_____________

OPINION OF THE COURT
_____________

FUENTES, Circuit Judge.

Appellant, Jamaal Mike, was convicted by a jury of
aiding and abetting the receipt of a firearm acquired outside
his state of residency, a violation of 18 U.S.C. § 922(a)(3) and
§ 924(a)(1)(D); and unauthorized possession of a firearm in
violation of V.I. Code Ann. tit. 14, § 2253(a). He appeals
these convictions, arguing that there were three problems with
his trial. First, he says that the District Court erred when it
failed to give use immunity to a co-defendant; second, he says
that he is entitled to a judgment of acquittal because there was
no evidence that the firearm he was convicted of possessing
was capable of discharging ammunition; and finally, he says
that he was entitled to a judgment of acquittal based on an
affirmative defense under Virgin Islands law. We find these
arguments unpersuasive and, for the reasons set forth below,
affirm the judgment of the District Court.

I.

On April 10, 2009, Fenyang Ouma Francis put down a
deposit to purchase an AK-47 rifle and two 30-round
magazines at Rieg's Gun Shop in Orlando, Florida. He
completed the purchase the next day. Ten days later, on April
21, 2009, U.S. postal inspectors in San Juan, Puerto Rico,
intercepted a package addressed to a man named Imon
Thomas with a post office box in St. Thomas, Virgin Islands.
Their investigation revealed that the package's return address
was false and that the post office box in the shipping address
was not registered to Imon Thomas. Intrigued, the postal
inspectors x-rayed the package and saw a firearm inside.

2
After securing a search warrant, they opened the package and
discovered an AK-47 covered in grease and two 30-round
magazines. The postal inspectors then removed the weapon
from the box and "dry fired" it to test whether it was operable.
It was. After that, they removed the AK-47's firing bolt,
placed it back in the box, and sent the firearm on its way to
St. Thomas in a controlled delivery designed to apprehend the
would-be owner.

The next day found the prospective gun owner, Jamaal
Mike, travelling to the Frenchtown post office in St. Thomas
with Lucas Reid, Jr., and Dwayne Hunte, a 17-year old
juvenile that Mike and Reid had met along the side of the
road. When the group arrived at the post office, Reid and
Mike went inside while Hunte met his mother at a nearby
McDonald's. After a few minutes Mike and Reid left the post
office empty-handed, went back to Hunte, and drove to the
Sugar Estate post office. There, Mike gave Reid a slip of
paper with a tracking number on it. Reid and Hunte then
entered the Sugar Estate post office to retrieve a package, but
were told that the package was back at the Frenchtown post
office. The group circled around to Frenchtown. When they
arrived, Mike gave Hunte a slip of paper, this one with the
name Imon Thomas written on it. Hunte and Reid went
inside the post office and retrieved a card from a post office
box belonging to Reid's father. Reid gave the card to Hunte,
who stood in line and handed the card to a postal employee.
When the employee brought Hunte a package, Hunte signed
for it under the name Imon Thomas. Reid and Hunte then
carried the package to Reid's car, where Mike was waiting.
So were the police. Once the package was placed in the car,
federal agents approached the vehicle and arrested Reid,
Mike, and Hunte, none of whom had a license to possess a
firearm.

Francis was also arrested. He subsequently pleaded
guilty to shipping a firearm in the mail and to transferring a
firearm to an out-of-state resident. During his plea
negotiations, he told his attorney that neither Mike nor Reid
knew what was in the package he addressed to Imon Thomas.
Francis's attorney told the Government that Francis would
testify on Mike and Reid's behalf and the Government

3
disclosed this fact to Mike and Reid. On October 19, 2009,
Mike subpoenaed Francis.

Francis moved to quash the subpoena the very next
day, October 20. That same day—the first day of the trial—
Mike asked for a continuance to investigate Francis's offer to
testify. The District Court denied the motion. Mike then
asked the Court to grant Francis use immunity. The Court
denied the motion, concluding that Francis's testimony would
not be clearly exculpatory: "I don't think there's any basis for
[use immunity] at this point. It sounds like it would be a
credibility issue. And that's something that would take it, I
think, out of the realm of clearly exculpatory, which I think is
a baseline requirement in order to, for the Court to even go
any further." (App. 174-75). Mike moved for a judgment of
acquittal at the close of the government's case and again after
the jury returned a verdict of guilty on both counts. The
District Court denied the motions. Mike was subsequently
sentenced to fifty-one-month sentences of imprisonment on
each of the counts of conviction, to be served concurrently.

Mike appeals the denial of each of the above motions.
The District Court had jurisdiction pursuant to 18 U.S.C. §
3231 and 48 U.S.C. § 1612. We have jurisdiction under the
authority provided by 28 U.S.C. § 1291.

II.

Mike argues on appeal that the District Court was
wrong to deny the request to give Francis use immunity. We
review the District Court’s factual determinations regarding
the likely effect of undisclosed information for clear error and
its ultimate decision not to immunize a defense witness for an
abuse of discretion. See United States v. Perez, 280 F.3d 318,
348 (3d Cir. 2002).1 We see no error. The District Court did

1
Our decision in United States v. Thomas, 357 F.3d 357 (3d
Cir. 2004) did not set forth the standard of review. In that
case, the appellant failed to present his judicial immunity
argument to the district court. Id. at 362 (citing Fed. R. Crim.
P. 52(b)); see also id. at 365-66. "Failure to object at trial,
absent plain error, constitute a waiver of the issue for post-
trial purposes." United States v. Tiller, 302 F.3d 98, 105 (3d

4
not abuse its discretion when it declined Mike's request to
grant Francis use immunity because the failure to grant
Francis immunity did not deprive Mike of his constitutional
due process right to present clearly exculpatory evidence
necessary to obtain a fair trial.

The Fifth Amendment to the United States
Constitution states that "[n]o person shall . . . be deprived of
life, liberty, or property, without due process of law." U.S.
Const. amend. V. In Chambers v. Mississippi, the Supreme
Court recognized that this due process right is "in essence, the
right to a fair opportunity to defend against the State's
accusations." 410 U.S. 284, 294 (1973). For this reason, the
Chambers court held that Mississippi's strict rules of
evidence, which prevented Leon Chambers from cross-
examining a witness who had confessed to the same crime
and prevented him from entering into evidence other
admissions of the witness's guilt, violated Chambers's right to
due process by effectively denying him a fair trial. Id. at 285,
302.

Chambers recognizes the proposition that criminal
defendants possess a "due process right to have clearly
exculpatory evidence presented to the jury, at least when
there is no strong countervailing systemic interest that
justifies its exclusion." United States v. Herman, 589 F.2d
1191, 1204 (3d Cir. 1978). That recognition proved to be the
answer to the question presented in Government of the Virgin
Islands v. Smith, 615 F.2d 964 (3d Cir. 1980): If a
defendant's right to due process can be violated by strict rules
of evidence that prevent a defendant from presenting clearly
exculpatory evidence to the jury, can that same right also be
violated by the failure to affirmatively grant immunity to an
available defense witness who will not testify under grounds
of self-incrimination when the witness is likely to offer
clearly exculpatory testimony? Smith said "yes," observing
that the latter violation is "not different in substance than the
violation found in Chambers." Id. at 970. Indeed, cases like
Chambers; Gideon v. Wainwright, 372 U.S. 335 (1963)
(holding that an indigent defendant cannot have a fair trial

Cir. 2002). Thus, in Thomas, the scope of our review was
limited to plain error.

5
without being provided counsel) and Brady v. Maryland, 373
U.S. 83 (1963) (holding that a defendant cannot present an
effective case when the government suppresses material
exculpatory evidence), recognize that a major purpose of a
criminal trial is to search for the truth, and that this purpose is
not advanced by rules that "turn the trial into a mere 'poker
game' to be won by the most skilled tactician." Smith, 615
F.2d at 971 (quoting Williams v. Florida, 399 U.S. 78, 82
(1970)). Thus, Smith highlighted the long-standing principle
that the Fifth Amendment's Due Process Clause is violated
when a defendant is deprived of "clearly exculpatory
evidence necessary to present an effective defense." Id.

After precisely identifying the right at issue, the Smith
court focused on the means of protecting it, making the
common-sense observation that "[a]ny remedy . . . must take
into account the fact that a retrial would be meaningless
unless the evidence in issue may be compelled." Id. In cases
where a defense witness invokes the Fifth Amendment for
fear of self-incrimination, the only way to compel this
evidence is to grant immunity. Id. See Kastigar v. United
States, 406 U.S. 441, 462 (1972) (concluding that use
immunity "is coextensive with the [Fifth Amendment]
privilege and suffices to supplant it"). For this reason, the
Smith court drew upon precedents describing the "inherent
judicial power to grant witness immunity in order to vindicate
constitutional rights" and concluded that judicially-granted
immunity could serve to remedy these types of due process
violations. Smith, 615 F.2d at 971 (citing, among other
cases, Simmons v. United States, 390 U.S. 377 (1968)).
However, because of the "unique and affirmative nature of
the immunity remedy and fundamental considerations of
separation of powers, grants of immunity to defense witnesses
must be bounded by special safeguards and must be made
subject to special conditions." Id. The Smith court imposed
five such conditions, emphasizing that each must be met
before the remedy of judicially-granted immunity is available:
[1] immunity must be properly sought in the
district court; [2] the defense witness must be
available to testify; [3] the proffered testimony
must be clearly exculpatory; [4] the testimony
must be essential; and [5] there must be no

6
 strong governmental interests which countervail
against a grant of immunity.
Id. at 972.

Mike's appeal is focused on the availability of the
remedy of judicially-granted immunity. The parties agree
that the first two conditions for granting the remedy are
satisfied. The battle is over the last three, with particular
emphasis on the condition that the proffered testimony be
"clearly exculpatory."

Our decision in United States v. Thomas, 357 F.3d 357
(3d Cir. 2004), guides our analysis as to whether Francis's
testimony was clearly exculpatory. In that case, the namesake
defendant was arrested after drugs were found behind the
glove box of his car. Id. at 359. Thomas's theory was that the
car dealer who sold him the car, and the car dealer's assistant,
planted the drugs. Id. at 365. He called each of them to
testify, but they invoked the Fifth Amendment and refused.
Id. On appeal, Thomas argued that the district court should
have granted the two witnesses immunity. Reviewing for
plain error, we concluded that the district court properly
declined to offer immunity because the witnesses' testimony
would not have been "clearly exculpatory." Id. We observed
that judicial immunity may be properly denied when the
exculpatory nature of testimony is "at best speculative." Id.
(quoting United States v. Ammar, 714 F.2d 238, 251 n.8 (3d
Cir. 1983)). In Thomas's case, the testimony of two other
witnesses "undercut" his theory that drugs were planted and
"undermine[d]" his assertion that he didn't know there were
drugs in his car. Id. at 365 -66. Accordingly, "[b]ecause a
credibility determination would have been required in order
to determine which parties were more credible," the
testimony of the witnesses Thomas wanted immunized
"would not have been 'clearly exculpatory[.]'" Id. at 366.

The government says that the same is true in this case.
Francis would have testified that he did not tell Mike what
was in the package Mike helped pick up at the Frenchtown
post office in the Virgin Islands. However, Hunte testified
that Mike gave him a slip of paper with the name Imon
Thomas written on it in order to identify the package he
wanted. He further testified that, after their arrest and while

7
detained, Mike told Hunte "all it is, is a haircut," and that
Hunte understood this to mean that Mike wanted Hunte to
take the rap because all it would mean for Hunte was a
juvenile conviction and a stay at the "Boy's Home." (App.
171-72). According to the government, because the jury
could have inferred from Hunte's statements that Mike knew
what was in the package, Francis's testimony to the contrary
would simply have created an issue of credibility, which it
contends is not enough under Thomas to meet the condition
that testimony be clearly exculpatory.

The Government's reading of Thomas is expansive. Its
view seems to be that testimony is never clearly exculpatory
if the jury must weigh the credibility of the immunized
witness against the credibility of other witnesses. This is not
the law. In Smith we said that "[i]mmunity will be denied if
the proffered testimony . . . is found to relate only to the
credibility of the government's witnesses," 615 F.2d at 972
(emphasis added), and in Ammar, we remarked that judicial
immunity is improper when the proffered testimony is "at
best speculative," 714 F.2d at 251 n.8. Nothing in these cases
rules out the possibility that a defense witness's testimony can
be clearly exculpatory when it helps to establish, among other
things, that a government witness's testimony is not credible.
Of course, we found no error in the failure to grant immunity
in Thomas "[b]ecause a credibility determination would be
required in order to determine which parties were more
credible," 357 F.3d at 366, but this was not the sole reason for
our decision. Elsewhere, we emphasized that there was other
evidence to "undercut" and "undermine" Thomas's theory of
the case. Id. at 365-66.

Here, as in Thomas, there is evidence in the record
undercutting the testimony Francis might have given and
Mike's theory of the case. Hunte's testimony is one such
piece of evidence. Mike's phone records are another. At trial,
a postal inspector testified that Francis, Mike and Reid
exchanged numerous telephone calls on the days the AK-47
was purchased, the day the AK-47 was sent into the mail, and
the day the AK-47 was picked up at the post office. (App.
299-307). This testimony, too, undermines Mike's claim of
ignorance. Thus, in Mike's trial, as in Thomas's, the jury was
confronted with more than just a credibility determination. In

8
both cases, the testimony from the witness the defendant
wanted immunized may have helped the defendant, but it was
far from necessary to ensure a fair trial.

Since the five Smith conditions had not been satisfied,
the District Court could not have granted immunity to
Francis. A district court cannot abuse its discretion when it
fails to give a remedy that is not in its power to give.

Our holding should not be interpreted to foreclose
judicially-granted immunity in similar cases, so long as the
five Smith conditions are satisfied. Ultimately, the question
of whether clearly exculpatory evidence is necessary to
present an effective defense is a decision calling upon the
sound judgment of the district court judge in a position to
listen to the witnesses and evaluate the tenor of trial
narratives. Our role is not to substitute the judgment we
might reach after reading the record for the judgment of a
district court judge who actually saw that record develop live
in a courtroom. The law tolerates differences of opinion and
our role on appeal is simply to make sure that those
differences stay within certain bounds. In this case the
boundaries of acceptable decision making are defined by the
abuse of discretion standard, which compels us to accept the
considered judgment of the District Court unless its decision
is "arbitrary, fanciful, or clearly unreasonable." United States
v. Green, 617 F.3d 233, 239 (3d Cir. 2010) (quoting United
States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)). Based
on the record presented in this appeal, the District Court's
ruling was clearly within the bounds of reasonable decision
making because there was no indication that Mike's right to a
fair trial was in jeopardy. The District Court did not abuse its
discretion when it declined to grant Francis use immunity.

III.

Mike also says that the District Court was wrong to
deny his motion for a judgment of acquittal because he did
not possess a "firearm" as that word is defined by Title 23,
section 451(d) of the Virgin Islands code. We exercise
plenary review over the grant or denial of a motion for
acquittal under Federal Rule of Criminal Procedure 29,
applying the same standard as the District Court. United
States v. Silveus, 542 F.3d 993, 1002 (3d Cir. 2008). Thus,

9
we look to determine whether the evidence is sufficient to
support the conviction, Fed. R. Crim. P. 29, but in doing so,
we are mindful that "[i]t is not for us to weigh the evidence or
to determine the credibility of the witnesses." United States
v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996) (quoting United
States v. Schoolcraft, 879 F.2d 64, 69 (3d Cir. 1989)).
Instead, we review the evidence in the light most favorable to
the government and sustain the verdict "if any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt." United States v. Dent, 149 F.3d
180, 187 (3d Cir. 1998) (quoting Voigt, 89 F.3d at 1080).

In the Virgin Islands, "[w]hoever, unless otherwise
authorized by law . . . possesses . . . either actually or
constructively . . . any firearm, as defined in Title 23, section
451(d) of [the Virgin Islands] code" is subject to
imprisonment. V.I. Code Ann. tit. 14, § 2253(a). A firearm,
as defined by § 451(d), is "any device by whatever name
known, capable of discharging ammunition by means of gas
generated from an explosive composition, including any air
gas or spring gun or any 'BB' pistols or 'BB' guns that have
been adapted or modified to discharge projectiles as a
firearm." V.I. Code Ann. tit. 23, § 451(d).

In his brief, Mike argues that his motion should have
been granted because the testimony at trial showed that the
AK-47 was delivered without its firing bolt and was therefore
inoperable. However, at oral argument, Mike shifted tack,
instead arguing that the problem was that there was no
evidence at trial showing that the weapon had ever been test
fired and shown to be capable of firing a bullet. The record
demonstrates otherwise. When asked at trial whether he had
test-fired the weapon, postal inspector Mitchell Perez
answered that "we dry-fired it." (App. 148). He also testified
that the AK-47 presented to him at trial was the same one he
found inside the package addressed to Imon Thomas when it
was intercepted in Puerto Rico. Later in the trial, Senior
Special Agent Felix Rios, from the Bureau of Alcohol,
Tobacco, Firearms and Explosives testified that he test-fired
that same weapon in August 2009 and concluded "that the
weapon was operable, and that it was, will fire in
semiautomatic mode." (App. 157.)

10
 Viewing the above evidence in the light most
favorable to the government, we conclude that a rational jury
could have concluded that the AK-47 was capable of
discharging ammunition. We thus affirm the District Court's
order denying Mike's Rule 29 motion.

IV.

As stated previously, the Virgin Islands prohibits
possession of a firearm "unless otherwise authorized by law."
V.I. Code Ann. tit. 14, § 2253(a). In United States v. McKie,
we decided that § 470 of Title 23 of the Virgin Islands code
essentially "authorized by law" the possession of a firearm in
the period before a person is required to report the receipt of
the firearm to the Virgin Islands Police Commission. 112
F.3d 626, 631 (3d Cir. 1997). In doing so, § 470 created an
affirmative defense to the crime of unlawful possession. Id.
When the defendant in McKie was arrested, § 470 gave him
24 hours to report the fact that he had obtained a firearm, but
by the time his case was presented to this Court the statute
had been amended into its current form to provide that
firearms obtained from outside the Virgin Islands must be
reported "immediately." Id. at 632.

Mike argues that his motion for a judgment of acquittal
should have been granted, or that the jury should have been
instructed on his affirmative defense under § 470, because the
trial testimony demonstrated that he was arrested
"immediately" after obtaining the AK-47. The Government
counters that the evidence presented at trial makes it obvious
that Mike had absolutely no intention of reporting the gun,
"immediately" or any time thereafter. To which Mike
responds that McKie made clear that a defendant does not
need to prove intent to report in order to obtain the § 470
affirmative defense. Id. at 632 ("If the legislature meant to
include 'intent to report' as part of the defense, it did not say
so.").

We agree with the Government that Mike was not
entitled to a judgment of acquittal or a jury instruction on the
affirmative defense. In McKie, we explained that "'intent to
report' was not an element of the affirmative defense of
firearm possession for less than twenty-four hours as it
existed under § 470, before its recent amendment." Id.

11
(emphasis added). When the Virgin Islands legislature
substituted the 24-hour period to report in § 470 for a time
period defined by the word "immediately," it fundamentally
changed the nature of the affirmative defense. The McKie
court intimated as much, explaining that "the legislature
wanted to close the loophole created by the twenty-four hour
grace period." Id. (citing Hearing on Bill No. 21-0219 to
amend Title 23, Section 470 of the Virgin Islands Code, Reg.
Sess. (V.I. Aug. 29, 1996)). "Immediately" means "instantly;
at once" or "with no object or space intervening." Webster's
Unabridged Dictionary 957 (2d ed.1998). By using this term
the Virgin Islands legislature accomplished its objective,
eliminating the use of § 470 as a viable affirmative defense in
the vast majority of cases by collapsing the time period for
reporting into nothing.

The only way a person can "immediately" report the
receipt of a firearm is to conscientiously set out with that
intent and provide the report when the firearm is obtained.
The evidence at trial revealed that the AK-47 was slathered in
grease to mask its scent from curious canines, that the gun
was inside a package addressed to a fictitious person named
Imon Thomas, and that Mike convinced a juvenile to pick up
the package for him under the assumed name of the fictitious
addressee. The evidence was clear that Mike had no intent to
"immediately" report the receipt of the firearm. Without such
evidence, Mike was not entitled to a jury instruction on the
affirmative defense and, even if one had been given, no
rational trier of fact could have used it as the basis for an
acquittal. See Government of the Virgin Islands v. Carmona,
422 F.2d 95, 101 (3d Cir. 1970) (concluding that defendant
was not entitled to jury instruction where there was no
evidence to support it).

V.

We find no merit to Mike's argument that the District
Court abused its discretion when it failed to grant use
immunity to a co-defendant. We similarly find unpersuasive
the argument that Mike did not possess a "firearm" as that
word is defined by Virgin Islands statute. And there is no
evidence in the record that would have warranted a jury
instruction on an affirmative defense under V.I. Code. Ann.

12
Tit. 23, § 470. For all of the foregoing reasons, the judgment
of the District Court is affirmed.

13
McKee, Chief Judge, concurring in part and dissenting in

part:

Although I agree with the majority‟s conclusion that
there was sufficient evidence to convict Jamaal Mike of being
in possession of a firearm, I write separately to clarify how
courts should interpret the definition of “firearm” under 23
V.I.C. § 451. In addition, I can not agree that the district court
properly denied use immunity because I believe that
circumstantial evidence that does not directly contradict the
testimony of a proposed defense witness is insufficient to
negate the otherwise clearly exculpatory nature of such
testimony. I therefore believe that the district court erred in
not granting use immunity pursuant to our decision in Gov’t
of Virgin Islands v. Smith, 615 F.2d 964, 972 (3d Cir. 1980)).
Accordingly, I dissent from my colleagues‟ use immunity
analysis and thus can not concur in the judgment.

I. The Definition of a Firearm Under VI Law

The facts relevant to Mike's receipt of a “firearm” were
not disputed at trial: a ballistics expert testified that the gun
that was mailed to Mike was operable when law enforcement
agents intercepted it. An agent then removed the bolt from the
gun, rendering it inoperable. The gun was then forwarded to
Mike, and the bolt was mailed separately to another
government official. It was not included in the package Mike
received. Therefore, when Mike received the firearm, it was
no longer “operable.”
Mike argues that because the firearm was inoperable
when he received it, he cannot be charged with violating 14
V.I.C. § 2253(a) 1, which criminalizes unauthorized

1
The statute reads as follows:
(a) Whoever, unless otherwise authorized by
law, has, possesses, bears, transports or carries
either, actually or constructively, openly or
concealed any firearm, as defined in Title 23,
1
possession of a firearm. A firearm is defined under the
Virgin Islands Code as follows:

(d) "Firearm" means any device by
whatever name known, capable of
discharging ammunition by means of gas
generated from an explosive
composition, including any air gas or
spring gun or any "BB" pistols or "BB"
guns that have been adapted or modified
to discharge projectiles as a firearm.

23 V.I.C. § 451 (emphasis added).
Mike relies on two cases to argue that a firearm must
be operable under 23 V.I.C. § 451(d) to sustain a conviction
for illegal possession of a firearm.2 Neither is persuasive. In
Virgin Islands v. Henry, 232 F. App‟x. 170 (3d Cir. 2007)
(unpublished), we simply noted in the procedural history
that:
the Appellate Division [of the Virgin
Islands] . . . agreed [with the petitioner]
that the government had failed to offer
evidence showing that one of the guns
retrieved at the scene was operable (i.e.,
capable of discharging ammunition).
Accordingly, the Court reversed Henry's
conviction with respect to the count

section 451(d) of this code, loaded or unloaded,
may be arrested without a warrant[.]
14 V.I.C. § 2253(a)
2
The government does not dispute that § 451(d) requires that
a firearm be capable of firing ammunition. It counters,
however, that the firearm was operable when it was mailed,
and “but-for” its intervention, the firearm would have been
operable when Mike received it. The government cites no
cases in its favor, and a review of relevant case law finds no
support for this proposition.

2
 involving the gun that was not shown to
be operable and affirmed his conviction
with respect to the remaining gun [which
was shown to be operable.]

Id. at 173. However, in reaching our holding we did not
determine whether a firearm must be operable in order to be a
firearm under 23 V.I.C. § 451(d). In the second case, the
District Court of the Virgin Islands held: “To prove this
charge [possession of an unlicensed firearm], the government
must show that the firearm was operable.” Virgin Islands v.
Albert, 1980 U.S. Dist. LEXIS 14466 (D.Ct. V.I. 1980)
(citing 14 V.I.C. § 2253(a) and 23 V.I.C.. § 451(d)). Neither
case is analogous to the situation here where a firearm that
was capable of discharging ammunition is subsequently
rendered inoperable by law enforcement officials and then
forwarded to a defendant to take possession of it as part of a
criminal investigation.3

I agree that the gun that Mike received qualifies as a
“firearm,” but my analysis of that issue diverges a bit from
that of my colleagues. The majority writes:

In his brief, Mike argues that his motion
should have been granted because the
testimony at trial showed that the AK-47
was delivered without its firing bolt and
was therefore inoperable. However, at
oral argument, Mike shifted tack, instead
arguing that the problem was that there
was no evidence at trial showing that the
weapon had ever been test fired and
shown to be capable of firing a bullet.
The record demonstrates otherwise.

3
Mike‟s list of cases is not exhaustive. Although other cases
similarly use the word “operable” and “capable of
discharging ammunition” interchangeably, none of those
cases are binding.
3
Maj. Op. at 18. My colleagues then conclude that because
there was evidence that the firearm was operable when the
government tested it, a rational jury could have concluded
that the AK-47 was capable of discharging ammunition.

Although I agree with the majority‟s conclusion, I do
not think it is at all relevant that defense counsel “shifted
tack” at oral argument. Although Mike‟s attorney stated that
there was no evidence regarding whether the weapon was
ever “dry-fired” by the government, it appears that he was
merely confused about the record. Mike‟s counsel did not
concede the issue in his brief.

Accordingly, I think we should take this opportunity to
decide directly that the Virgin Islands statute applies to a
weapon that is capable of firing when placed into the mail,
but subsequently is rendered inoperable by law enforcement
agents before sending it on its way to a defendant in order to
make a controlled delivery. Addressing the issue more
directly will eliminate any possibility that law enforcement
agents may believe they have to place a “live” weapon into
the mail in order to prove a violation of this and similar
statutes.

To establish a violation of § 2253(a), the government
must prove the following two elements beyond a reasonable
doubt: (1) the defendant did possess, bear, transport or carry,
“either, actually or constructively, openly or concealed” (2)
“any firearm, as defined in Title 23, section 451(d) of this
code, loaded or unloaded.” 23 V.I.C. § 451(d) defines a
firearm as “any device by whatever name known, capable of
discharging ammunition by means of gas generated from an
explosive composition . . . .”

However, § 451(d) does not require that a firearm be
“operable.” Instead, its plain language requires only that the
device be “capable of discharging ammunition by means of
gas generated from an explosive composition . . . .” 23 V.I.C.
§ 451(d) (emphasis added).

4
 The word “capable” is not synonymous with the word
“operable.” Merriam-Webster‟s dictionary defines “capable”
as “having traits conducive to or features permitting.”
Merriam Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/capable (last visited June 21, 2011).
The Oxford English Dictionary (“OED”) defines “capable” as
“having room or capacity for.” Capable Definition, Oxford
English Dictionary (Online Version),
http://www.oed.com/view/Entry/27354 (last visited June 21,
2011).

The OED defines “operable” as “able to be operated.”
Operable Definition, Oxford English Dictionary (Online
Version), http://www.oed.com/view/Entry/131732 (last
visited June 21, 2011). Thus, a firearm may be “capable” of
discharging ammunition, but not “operable,” if it has the
potential to fire ammunition, or the “capacity for” discharging
ammunition, but cannot do so at the relevant time.

Here, the AK-47 was certainly capable of discharging
ammunition, as the government‟s evidence established.
Although the AK-47 that Mike received lacked one part —
the bolt — the firearm still had “features permitting” it to
discharge ammunition, including a barrel, functioning trigger,
piston, hammer, buttstock, grip and magazine. All of these
were in perfect working order. Although a firearm that is
missing a bolt may not be operable until the missing bolt is
replaced, it nevertheless has the “capacity for” discharging
ammunition.

More importantly, requiring such a firearm to be
“operable” would violate the plain language of 23 V.I.C. §
451(d), which explicitly states that a gun need not be loaded
in order to be considered a firearm. An unloaded firearm is
"inoperable," since it cannot discharge ammunition. Section
451(d)‟s language, permitting a device to be considered a
firearm even if it is unloaded, reflects an overwhelming
legislative concern that the statute not be limited to firearms
that could be fired at a given moment. Rather, the legislature
was clearly concerned about the potential for firing

5
ammunition and crafted the definition of “firearm”
accordingly.

Interpreting the statute in this manner does not broaden
23 V.I.C. § 451(d) to include weapons that should not fairly
be considered firearms. Neither a scope, nor even the missing
bolt without the rest of the weapon, would constitute a
firearm under § 451(d), because such parts and accessories do
not have the capacity to fire ammunition. They may facilitate
firing a weapon, but they are not capable of inflicting harm
unless affixed to the actual firearm or integrated into it.
Doing so is what allows the weapon to function as a
“firearm;” and attaching such parts or accessories or
integrating them into the weapon results in an altogether
different “device” than such items standing alone.4

In sum, I believe that the government need only prove
that the device MIke received was “capable of discharging
ammunition.” in order to prove a violation of 14 V.I.C. §
2253(a). The testimony that agents were able to successfully
“dry fire” the gun that Mike received was sufficient to prove
that here. Removing the bolt rendered the AK-47 inoperable,
but the weapon was still “capable” of firing ammunition. It
was no less capable of that when Mike received it than if it
had arrived unloaded but fully intact.

4
Additionally, the more restrictive definition of
“firearm” urged by Mike yields illogical results as evidenced
here. This statute is clearly aimed at the illegal flow of guns
and the carnage and devastation they cause. Mike‟s
interpretation of the statute would have required law
enforcement officers who knew that a package contained an
assault weapon to place that fully functioning weapon back
into the stream of commerce in order to successfully complete
an investigation while hoping that it would not be lost,
delivered to the wrong party, or fall into the hands of minors
or criminals along the way. It is inconceivable that any
legislature would intentionally require such a result in
enacting this kind of statute.
6
 II. Use Immunity

Mike also appeals the district court‟s refusal to grant
use immunity to Fenyang Francis, who purportedly told his
attorney that Mike did not know that there was a gun in the
package he received. The majority finds that the district court
did not abuse its discretion because Francis‟s testimony is not
“clearly exculpatory.” I disagree.

For testimony to be “clearly exculpatory,” it cannot be
“undercut by . . . prior inconsistent statement[s],” United
States v. Perez, 280 F.3d 318, 350 (3d. Cir 2002), or
otherwise require a jury to make a credibility determination,
United States v. Thomas, 357 F.3d 357, 365 (3d Cir. 2004).

The majority relies heavily on Thomas in affirming the
district court‟s denial of use immunity. There, we found that
the district court properly denied use immunity to two
witnesses whom Thomas wanted to call to present a theory
that another person, James Stager, a car dealer, had planted
drugs in his car. “[A]t least two other witnesses offered
testimony that undercut Thomas' theory that Stager planted
drugs in his car.” Id. at 365.

The first witness was “Thomas' girlfriend, Heather
Barr, [who] testified that . . . Thomas told her that he already
knew that drugs were in his car [and] that Thomas attempted
to remove the drugs from his car in the police impoundment
lot and fled to State College in order to avert being arrested
when the police found the drugs.” Id. at 365-66. A second
witness also undermined Thomas‟s argument that Stager had
the opportunity to plant the drugs in Thomas‟s car because he
testified that Thomas‟s car was not where Thomas claimed it
was in his theory of the case.

Since the testimony Thomas wanted to produce
through immunized witnesses was in direct conflict with
Thomas‟s theory of the case, the jury would have had to
decide whether to believe the witnesses whom Thomas
wanted immunized, or two non-immunized prosecutorial
witnesses. “Because a credibility determination would have
7
been required in order to determine which parties were more
credible, [the testimony Thomas sought to admit] would not
have been „clearly exculpatory,‟ as required under Smith.”
Thomas, 357 F.3d at 366 (referencing Smith, 615 F.2d at
972).

Thomas is distinguishable. That case reinforces the
unremarkable notion that use immunity not be used as a
license to commit perjury. Here, the circumstantial evidence
that the government presented that Mike knew the contents of
the box does not clearly undercut Francis‟s proffered
testimony. In fact, Francis‟s testimony could explain the
circumstantial evidence the government admitted in its case-
in-chief. Unlike the testimony in Thomas, Francis‟s
testimony here could have been accepted in a context that was
completely compatible with evidence already admitted.

As part of its case, the government was required to
prove that Mike knew that a gun was in the package he
received. To prove this, the government presented two pieces
of circumstantial evidence, which the majority cites as
undermining the clearly exculpatory nature of Francis‟s
potential testimony. First, the majority cites the fact that,
after they were arrested, Mike told Hunte that all he would
get was “a haircut,” that is, go to juvenile detention.
However, that only establishes that Mike knew some type of
contraband was in the package, not that he knew it contained
a gun. In theory, he could have believed he was receiving a
shipment of drugs of some other kind of contraband.
Therefore, Francis‟s testimony could have been accepted
without requiring the jury to chose between two competing
statements if the jury believed Francis.

Next, the majority points to multiple telephone calls
between Francis and Mike confirming that the two
communicated numerous times in the weeks surrounding the
firearm shipment and often in the minutes before and after the
purchase of the firearm and the shipment of the firearm.
However, we do not know the content of these calls. Without
more, I do not believe we can assume enough about the
substance of those conversations to justify denying use
8
immunity. Although it is very easy to assume that Francis
told Mike about the shipment of a firearm during at least one
of those conversations, that should be an argument that is left
for the jury to resolve after hearing all of the relevant
evidence. In theory, Francis may have merely been
confirming the receipt of contraband or the timing of the
mailing of the package during those conversations.

We have found that the “clearly exculpatory” standard
for a use immunity analysis is “similar [to the] analysis [that]
applies to [an] alleged Brady violation.” United States v.
Perez, 280 F.3d 318, 348 (3d Cir. 2002). In Perez, we
explained:
Under Brady[,] . . . the suppression by
the prosecution of evidence favorable to
an accused warrants a new trial where
“the evidence is material either to guilt
or to punishment, irrespective of the
good faith or bad faith of the
prosecution.” Evidence is material if
there is a reasonable probability that, had
it been disclosed, the result of the
proceeding would have been different.

Id. at 348-49 (citations omitted).

It is hard to imagine evidence with a greater
exculpatory potential than the person who shipped the
package saying that Mike did not know it contained a gun.
Of course, the jury would have been free to disregard that
testimony if it thought that the other evidence established
beyond a reasonable doubt that Mike knew he was receiving a
gun, or if it otherwise found Francis lacking in credibility. “In
Smith we said that „[i]mmunity will be denied if the proffered
testimony . . . is found to relate only to the credibility of the
government's witnesses,‟ and in Ammar, we remarked that
judicial immunity is improper when the proffered testimony
is „at best speculative[.]‟” Maj. Op. at 13 (citing Smith, 615
F.2d at 972, and United States v. Ammar, 714 F.2d 238, 251
n.8 (3d Cir. 1983)) (emphasis removed).

9
 However, I do not believe our precedent can be
interpreted to preclude use immunity for Francis merely
because his credibility would have been in issue had he
testified. Such a broad prohibition of use immunity would be
tantamount to eliminating that tool altogether even when a
witness‟s testimony was required to satisfy the requirements
of due process5 because credibility is always an issue
whenever any witness testifies. “Jurors are instructed . . . in
almost all cases, that they are to determine the credibility of
all witnesses who testify . . . even in the absence of an
affirmative challenge to witness credibility.” United States v.
Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 666 (3d
Cir. 2000) (en banc). The mere fact that Francis‟ credibility
would have been aggressively attacked by the prosecutor
should not be sufficient to undermine the due process
interests of ensuring that a defendant is able to present a
defense to a criminal charge. Here, the district court‟s ruling
deprived Mike of the only witness who could testify about
Mike‟s knowledge of the contents of the package he received.

The fact that such testimony would have made
conviction more difficult if accepted by the jury is not a
reason to deny a defendant access to favorable witnesses.
Each of the protections of the accused that were so carefully
engrafted onto the Bill of Rights makes conviction of the
guilty more difficult. That surely cannot be a reason to so
narrow the doctrine of use immunity that defendants are
denied access to fact witnesses. The jury system rests upon
the assumption that a properly instructed jury will be able to
sort through the evidence and the arguments of counsel and
determine if the government has proven its case beyond a
reasonable doubt.

5
See Chambers v. Mississippi, 410 U.S. 284, 294
(1973) (“The rights to confront and cross-examine witnesses
and to call witnesses in one's own behalf have long been
recognized as essential to due process.”). See also Maj. Op.
at 5-6 (discussing Chambers, 410 U.S. 284).
10
 Judicial use immunity exists to ensure due process.
Although a jury will always be free to disregard the testimony
of a defense witness, courts should not usurp the jury‟s
function by deciding the credibility of a witness.

III. Affirmative Defense Under 23 V.I.C. § 470

Finally, before concluding, I think it helpful to state a
concern and observation about the affirmative defense created
by 14 V.I.C. § 470. As the majority notes, in United States v.
McKie, 112 F.3d 626, 631 (3d Cir. 1997), we held that there
is an affirmative defense to possessing a firearm under Virgin
Islands law because a person had 24 hours to register the
weapon before it becomes illegal to possess it. No doubt
because of problems of proof, the Virgin Islands legislature
amended § 470 to require “immediate” registration upon
entering the Virgin Islands. However, as this case illustrates,
that amendment creates more problems than it solves. It will
often be impossible to rebut a claim of an intent to
immediately register a firearm unless a defendant is given a
sufficient opportunity to register it and fails to take any steps
to do so upon entering the Virgin Islands.

In theory, the only way to disprove such a defense in
the ordinary case would be for the government to establish a
registration desk adjacent to the exit of the airport lobby with
signs instructing all who arrived that they had to go directly to
the registration desk and register any firearms. Experience
with this statute has shown that police have a tendency to
arrest a person with firearms as soon as he/she leaves the
airport or takes possession of them rather than wait until
circumstances are sufficient to refute any argument that the
recipient intended to register the firearm.

Although that is perhaps understandable, the amended
law creates real problems when an arrest occurs as soon as the
recipient takes delivery of a weapon or leaves the airport
building because there is no opportunity to immediately
register the firearm. I agree that this complication does not
assist Mike because all of the circumstances here supports the
conclusion that he never intended to register the gun he
11
received in the first place. Moreover, Mike's attempt to seek
shelter under § 470 is undermined by his attempt to also argue
that he did not know what was in the package he received. I
therefore join my colleagues in rejecting Mike‟s defense here.
However, the Virgin Islands legislature may wish to consider
the problems the amendment to this statute could create in
future cases so that police will not have to wait a sufficient
time to rebut any suggestion of an intent to immediately
register a weapon before making an arrest for a violation of §
2253(a). 6
Conclusion

In conclusion, I concur that sufficient evidence proves
that Mike violated 14 V.I.C. § 2253(a). However, I believe
that the court should have granted use immunity to Francis
and thereby allowed Mike to present that defense testimony.

6
Judge Smith joins in these concerns and observations
concerning the amendment to Section 470.
12