United States v. Berrios

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

Nos. 07-2818, 07-2887, 07-2888 and 07-2904
______

UNITED STATES OF AMERICA;
GOVERNMENT OF THE VIRGIN ISLANDS

v.

REINALDO BERRIOS,

Appellant in 07-2818
______

UNITED STATES OF AMERICA;
GOVERNMENT OF THE VIRGIN ISLANDS

v.

ANGEL RODRIGUEZ,

Appellant in 07-2887
______

UNITED STATES OF AMERICA;
GOVERNMENT OF THE VIRGIN ISLANDS

v.
 FELIX CRUZ,

Appellant in 07-2888
______

UNITED STATES OF AMERICA;
GOVERNMENT OF THE VIRGIN ISLANDS

v.

TROY MOORE,

Appellant in 07-2904
______

On Appeal from the District Court
of the Virgin Islands – Appellate Division
Division of St. Croix
(D.C. Nos. 1-04-cr-00105-001, 1-04-cr-00105-003,
1-04-cr-00105-004 and 1-04-cr-00105-002)
District Judge: Honorable Raymond L. Finch
______

Nos. 07-2818, 07-2887 and 07-2904
Argued December 6, 2011

No. 07-2888
Submitted December 6, 2011

Before: FISHER, GREENAWAY, JR.

2
 and ROTH, Circuit Judges.

(Filed: April 10, 2012)

Warren B. Cole (Argued)
Hunter, Cole & Bennett
1138 King Street, Suite 301
Christiansted, St. Croix, USVI 00820
Counsel for Appellant, Reinaldo Berrios

Robert L. King (Argued)
Law Offices of Robert L. King
Windward Passage Hotel
P.O. Box 9768, Veterans Drive
Charlotte Amalie, St. Thomas, USVI 00801
Counsel for Appellant, Angel Rodriguez

Jorge E. Rivera-Ortiz
P.O. Box 1845
Manati, PR 00674-1845
Counsel for Appellant, Felix Cruz

Clive Rivers (Argued)
Nisky Center, Suite 233
Charlotte Amalie, St. Thomas, USVI 00801
Counsel for Appellant, Troy Moore

John A. Romano (Argued)
United States Department of Justice
Appellate Section, Criminal Division
P.O. Box 899

3
Ben Franklin Station
Washington, DC 20044

Harry Wallace
Office of United States Attorney
99 Northeast 4th Street, 6th Floor
Miami, FL 33132
Counsel for Appellees
______

OPINION OF THE COURT
______

FISHER, Circuit Judge.

Reinaldo Berrios, Felix Cruz, Troy Moore, and Angel
Rodriguez (together, ―the defendants‖) appeal from
judgments of conviction and sentence in the U.S. District
Court for the District of the Virgin Islands arising out of a
series of carjackings, an attempted robbery, and the murder of
a security guard. Between them, the defendants have raised a
number of arguments on appeal, including evidentiary errors,
prosecutorial misconduct, faulty jury instructions, sufficiency
of the evidence, and double jeopardy. We address the various
contentions in turn, but focus our discussion on two principal
issues: clarifying our jurisprudence under the Confrontation
Clause and its relationship to the Federal Rules of Evidence,
and resolving a question of statutory interpretation under 18
U.S.C. § 924(c) and (j) with double jeopardy implications.
After thorough consideration of the arguments presented by
both sides, we will affirm.

4
 I.

A. Factual History

On April 17, 2004, at 9:45 p.m., Lydia Caines was
speaking on her cell phone in her car, a tan Chevy Cavalier,
when a masked man exited a white Suzuki Sidekick with
tinted windows and stuck a gun against the car‘s window.
Caines dropped her phone and relinquished her vehicle, and
both her car and the Sidekick were driven away. Law
enforcement learned that the Sidekick was owned by
Reinaldo Berrios, who had been seen driving it earlier in the
evening when he was ticketed by a traffic cop and later in the
evening when he spoke to a police officer. On April 18,
Caines‘s phone was used to make calls to the family of Angel
Rodriguez and to a friend of Troy Moore.

An hour later, three masked gunmen attempted to rob a
Wendy‘s Restaurant, which Berrios had discussed with a
friend earlier that day. An off-duty police officer, Cuthbert
Chapman, was working as a security guard for the Wendy‘s at
the time; when he attempted to stop the robbery, the would-be
robbers shot him repeatedly, and he died nine days later from
his wounds. Before leaving, one of the robbers yelled, ―Troy,
let we go,‖ meaning, ―Troy, let‘s go.‖ After the shooting, the
robbers fled; two of them got into a champagne-colored
Chevy Cavalier, which was being driven by an individual
who had not entered the Wendy‘s. The Cavalier crashed,
severely damaging one of the wheels, and the occupants
abandoned it. When it was recovered, law enforcement
determined that it was the stolen Cavalier, although the
license plate had been switched and a side-view mirror was

5
missing. A mask, similar to the ones worn by the robbers,
was found close to the vehicle. Threads found in the Chevy
Cavalier were matched to the material of a jacket retrieved
from Felix Cruz‘s room, and a fingerprint from Rodriguez
was lifted off of the license plate.

Around 11:00 p.m., shortly after the Wendy‘s robbery
and shooting, Shariska Peterson was confronted by three
masked men as she was walking to her Honda Accord. As
the men demanded the keys to her car, one of them pointed a
gun at her head. Instead, Peterson threw them into the high
grass in her yard, prompting one of the men to say, ―You
should not have done that,‖ and then the three ran away.
Peterson saw a fourth man join them as they left. Soon
thereafter, four masked men stole Rita Division‘s Toyota
Echo, which she had left running while she was locking up
the gate at the high school where she worked. One of the
men ordered her at gunpoint to stay away from the car. Her
car was recovered a few days later; the original license plate
for Caines‘s Chevy Cavalier and its missing side-view mirror
were found nearby.

In July of 2004, a federal judge in the District Court of
Puerto Rico approved a Title III surveillance application,
pursuant to 18 U.S.C. §§ 2510 et seq., to monitor
conversations in a detention center in Guaynabo, Puerto Rico,
as part of an unrelated investigation into criminal activity in
which Berrios and Moore were involved (the ―Title III
recording‖); both Berrios and Moore were in the detention
center at the time. Surveillance was performed both through
video and sound recording. Authorities intercepted a
conversation between Berrios and Moore in a recreational

6
yard at the detention facility during which they discussed, in
detail, the Wendy‘s shooting and getaway, and their
respective roles in it. The defendants identified Rodriguez
(by nickname) as the getaway driver, and blamed him for
blowing out a tire and crashing the getaway car. During the
conversation, Moore also threatened to kill an individual who
worked at a store with his girlfriend and was getting
―regularly question[ed]‖ by the police.

B. Trial and Procedural History

On May 31, 2006, a federal grand jury in the District
of the Virgin Islands returned a third superseding indictment
charging each defendant with conspiracy and attempt to
interfere with commerce by robbery, both in violation of 18
U.S.C. § 1951(a) (Counts 1 and 2, respectively); carjacking
and attempted carjacking, both in violation of 18 U.S.C.
§ 2919(1) (Counts 3 and 10, and Count 8, respectively); using
a firearm during and in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A) (Counts 4, 9 and 11);
causing the death of a person through use of a firearm, in
violation of 18 U.S.C. § 924(j)(1) (Count 6); first-degree
felony murder, in violation of 14 V.I.C. §§ 922(a)(2) and 11
(Count 5); and unauthorized use of a firearm, in violation of
14 V.I.C. §§ 2253(a) and 11 (Count 7). On February 6, 2007,
after a four-week trial, the jury found the defendants guilty on
all charges. On July 8, the District Court entered judgments
of acquittal on Counts Three (carjacking) and Four (use of a
firearm during the carjacking) for the Caines incident, as to
Moore, Rodriguez and Cruz, but otherwise denied
defendants‘ motions for judgments of acquittal and a new
trial.

7
 Berrios was sentenced to life imprisonment and
consecutive prison terms totaling 70 years on the federal
counts, and to life imprisonment and a consecutive prison
term of 15 years on the Virgin Islands counts, with local
sentences to run consecutively to the federal sentences.
Rodriguez, Cruz and Moore were sentenced to life
imprisonment on the federal counts, and to life imprisonment
and a consecutive 15-year prison term on the Virgin Islands
counts, with local sentences to run consecutively to federal
sentences. Each defendant was fined $50,000 for Count 7.
The defendants filed timely notices of appeal.

II.

The District Court had jurisdiction pursuant to 48
U.S.C. § 1612(a) and (c). We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742.

III.

The defendants raise six categories of error, which we
address in turn:

A. Title III Evidence

B. Rule 404(b) Evidence

C. Sufficiency of the Evidence

D. Prosecutorial Misconduct

E. Jury Instructions

8
 F. Double Jeopardy

After careful review, we find that none of the arguments
raised by the defendants has merit.

A. Title III Evidence

The Title III recording of the conversation between
Berrios and Moore formed the cornerstone of the
prosecution‘s case against Rodriguez, Cruz, and Moore, and
these three defendants challenge admission of the recording
on several grounds. Rodriguez and Cruz challenge the
recording as a violation of their rights under the
Confrontation Clause of the Sixth Amendment, and in the
alternative, as inadmissible hearsay under the Federal Rules
of Evidence. Moore contends that the Title III application
was facially deficient, and therefore the recording should
have been suppressed. Due to the confusion exhibited by the
parties as to the proper scope of the Confrontation Clause, we
will first clarify our Confrontation Clause jurisprudence with
regards to testimonial versus nontestimonial statements,
before proceeding to the admissibility of the recording against
the three defendants. We exercise ―plenary review over
Confrontation Clause challenges,‖ United States v. Lore, 430
F.3d 190, 208 (3d Cir. 2005), but review a nonconstitutional
challenge to the admission of hearsay for abuse of discretion.
United States v. Riley, 621 F.3d 312, 337 (3d Cir. 2010).

1. Confrontation Clause Challenges

The Sixth Amendment‘s Confrontation Clause
provides that ―[i]n all criminal prosecutions, the accused shall

9
enjoy the right . . . to be confronted with the witnesses against
him.‖ U.S. Const. amend. VI. Until recently, the scope of the
Confrontation Clause had been governed by the ―indicia of
reliability‖ test laid out by Justice Blackmun in Ohio v.
Roberts, 448 U.S. 56, 65-66 (1980). Under Roberts, an
absent witness‘s hearsay statement could be introduced
against a criminal defendant only if the witness was
unavailable at trial and the statement bore certain ―indicia of
reliability,‖ either by ―fall[ing] within a firmly rooted hearsay
exception‖ or by showing ―particularized guarantees of
trustworthiness.‖ Id. at 66. In Crawford v. Washington, 541
U.S. 36, 51 (2004), however, the Supreme Court observed
that, at its core, the Confrontation Clause is concerned with
―testimonial‖ hearsay. Abrogating Roberts, the Crawford
Court adopted a per se rule that where testimonial hearsay is
concerned and the declarant is absent from trial, the
Confrontation Clause requires that the witness be unavailable
and that the defendant have had a prior opportunity for cross-
examination. Id. at 59, 68.

In subsequent decisions, the Court overruled Roberts
in its entirety, holding without qualification that the
Confrontation Clause protects the defendant only against the
introduction of testimonial hearsay statements, and that
admissibility of nontestimonial hearsay is governed solely by
the rules of evidence. See Davis v. Washington, 547 U.S.
813, 823-24 (2006) (holding that, under Crawford, the
Confrontation Clause protects only against admission of
testimonial hearsay, because ―a limitation so clearly reflected
in the text of the constitutional provision must fairly be said
to mark out not merely its ‗core,‘ but its perimeter‖);

10
Michigan v. Bryant, 131 S. Ct. 1143, 1152-53 (2011)
(confirming that Crawford limits the reach of the
Confrontation Clause to testimonial statements); Whorton v.
Bocking, 549 U.S. 406, 419-20 (2007) (―Under Crawford, . . .
the Confrontation Clause has no application to [out-of-court
nontestimonial statements] and therefore permits their
admission even if they lack indicia of reliability.‖).

We initially interpreted the Crawford decision to
overrule Roberts only insofar as testimonial statements were
concerned, but continued to apply the Confrontation Clause to
nontestimonial hearsay through the Roberts indicia of
reliability test. See United States v. Hendricks, 395 F.3d 173,
179 (3d Cir. 2005) (―[U]nless a particular hearsay statement
qualifies as ‗testimonial,‘ Crawford is inapplicable and
Roberts still controls.‖). To date, we have yet to circumscribe
the Confrontation Clause to its core concern with testimonial
hearsay, but have rather maintained that ―nontestimonial
statements do not violate the Confrontation Clause and are
admissible as long as ‗they are subject to a firmly rooted
hearsay exception or bear an adequate indicia of reliability.‘‖
United States v. Jimenez, 513 F.3d 62, 77 (3d Cir. 2008)
(quoting Albrecht v. Horn, 485 F.3d 103, 134 (3d Cir. 2007)).
To avoid needless confusion, we now expressly follow the
Supreme Court‘s Confrontation Clause jurisprudence as laid
out in the trilogy of Davis, Whorton, and Bryant: where
nontestimonial hearsay is concerned, the Confrontation
Clause has no role to play in determining the admissibility of

11
a declarant‘s statement.1 Accordingly, the ―indicia of
reliability‖ test of Roberts is no longer an appropriate vehicle
for challenging admission of nontestimonial hearsay.2

1
In light of intervening Supreme Court opinions, we
are not bound by the cited panel decisions. See Reich v. D.M.
Savia Co., 90 F.3d 854, 858 (3d Cir. 1996) (―Although a
panel of this court is bound by, and lacks authority to
overrule, a published decision of a prior panel, . . . a panel
may reevaluate a precedent in light of intervening authority
. . . .‖). Moreover, Jimenez and Albrecht failed to cite the
recently issued Supreme Court decisions that we now
conclude govern the present case, and ―[w]hile we strive to
maintain a consistent body of jurisprudence, we also
recognize the overriding principle that ‗[a]s an inferior court
in the federal hierarchy, we are, of course, compelled to apply
the law announced by the Supreme Court as we find it on the
date of our decision.‘‖ United States v. Tann, 577 F.3d 533,
541 (3d Cir. 2009) (quoting United States v. City of
Philadelphia, 644 F.2d 187, 192 n.3 (3d Cir. 1980)). Thus,
we ―‗should not countenance the continued application in this
circuit of a rule . . . which is patently inconsistent with the
Supreme Court‘s pronouncements.‘‖ Id. (quoting Cox v.
Dravo Corp., 517 F.2d 620, 627 (3d Cir. 1975)).

12
 Thus, our Confrontation Clause inquiry is twofold.
First, a court should determine whether the contested

2
To say that Roberts is no longer applicable means, as
a practical matter, that a challenge to the admission of
nontestimonial hearsay previously within the scope of the
Confrontation Clause has no constitutional foundation. For
purposes of appellate review, this will require the application
of a different standard of harmless error. See United States v.
Diallo, 575 F.3d 252, 264 (3d Cir. 2009). However, it should
not detract in any way from the scrutiny that nontestimonial
hearsay receives under the rules of evidence. As the Roberts
Court observed, ―hearsay rules and the Confrontation Clause
are generally designed to protect similar values, and stem
from the same roots.‖ 448 U.S. at 66 (internal marks and
citations omitted). As admissibility under Roberts relied in
part on the existence of a relevant ―firmly rooted hearsay
exception,‖ it will often be the case that evidence courts
would deem inadmissible under Roberts is also inadmissible
under the rules of evidence. See, e.g., United States v.
Mussare, 405 F.3d 161, 168-69 (3d Cir. 2005) (determining
admissibility under Bruton based on satisfaction of Federal
Rule of Evidence 804(b)(3)).

13
statement3 by an out-of-court declarant qualifies as
testimonial under Davis and its progeny. Second, the court
should apply the appropriate safeguard. If the absent
witness‘s statement is testimonial, then the Confrontation
Clause requires ―unavailability and a prior opportunity for
cross-examination.‖ Crawford, 541 U.S. at 68. If the
statement is nontestimonial, then admissibility is governed
solely by the rules of evidence. Davis, 547 U.S. at 823.

Applying this two-part test to the Title III recording at
issue here, we have little hesitation in concluding that the
recorded conversation was not testimonial, and thus not
subject to Confrontation Clause scrutiny. Although we lack
an authoritative definition of ―testimonial,‖ in Hendricks, 395
F.3d at 180-81, we addressed the admissibility of similar Title
III recordings of conversations between various nontestifying
defendants and third parties. After comparing these
recordings to the examples which the Supreme Court stated
were definitively testimonial, such as ―prior testimony at a
preliminary hearing, before a grand jury, or at a former trial,
and police interrogations,‖ we reasoned that a ―surreptitious‖
Title III recording neither qualified as ―ex parte in-court
3
In scrutinizing a contested statement, we note that a
trial court should consider not only whether the statement as a
whole qualifies as testimonial, but also whether portions of
the statement may qualify as testimonial, and therefore
require redaction of otherwise admissible evidence. See
Davis v. Washington, 547 U.S. 813, 829 (2006) (scrutinizing
portions of contested statement separately to determine
testimonial nature).

14
testimony or its functional equivalent,‖ nor formalized
―extrajudicial statements.‖ Id. Cognizant that ―a witness
‗who makes a formal statement to government officers bears
testimony in a sense that a person who makes a casual remark
to an acquaintance does not,‘‖ id. (quoting Crawford, 541
U.S. at 51), we concluded that ―the surreptitiously monitored
conversations and statements contained in the Title III
recordings [we]re not ‗testimonial‘ for purposes of
Crawford.‖ 4 Id.

It is likewise clear that, in the present case, the
contested statements bear none of the characteristics exhibited
by testimonial statements. There is no indication that Berrios
4
Intervening Supreme Court cases have exclusively
addressed which ―interrogations by law enforcement officers
fall squarely within [the] class of testimonial hearsay,‖
Michigan v. Bryant, 131 S. Ct. 1143, 1153 (2011) (quoting
Davis, 547 U.S. at 826), and have done nothing to sway us
from this understanding. In Davis, the Court considered
whether statements about domestic violence to law
enforcement personnel during a 911 call or at a crime scene
qualified as testimonial for Confrontation Clause purposes,
547 U.S. at 823, 829-30, and Bryant differed only insofar as
the contested statements concerned a nondomestic dispute.
131 S. Ct. at 1156. The Bryant and Davis Courts held that
statements for which ―the primary purpose of the
interrogation is to establish or prove past events potentially
relevant to later criminal prosecution‖ are testimonial, but
those made to enable police to meet an ongoing emergency
are not. Davis, 547 U.S. at 822.

15
and Moore held the objective of incriminating any of the
defendants at trial when their prison yard conversation was
recorded; there is no indication that they were aware of being
overheard; and there is no indication that their conversation
consisted of anything but ―casual remark[s] to an
acquaintance.‖ Crawford, 541 U.S. at 51. Nor do we think
that a surreptitious recording falls within the category of
―abuses‖ which, historically, the Framers were concerned
about eradicating from the government‘s investigative
practices. See id. Consequently, we reject any suggestion
that, in this circumstance, the Title III recording was
testimonial,5 and therefore that the Confrontation Clause

5
Of course, it is possible that participants in a recorded
conversation might be aware that they are being recorded, and
intentionally incriminate another individual. By no means are
we establishing a categorical rule: simply because we have
found some Title III recordings to be nontestimonial does not
mean that no Title III recordings can qualify as such. Rather,
each statement should be scrutinized on its own terms to
determine whether it exhibits the characteristics of a
testimonial statement. See Bryant, 131 S. Ct. at 1156 (―To
determine whether the ‗primary purpose‘ of an interrogation
is ‗to enable police assistance to meet an ongoing
emergency,‘ which would render resulting statements
nontestimonial, we objectively evaluate the circumstances in
which the encounter occurs and the statements and actions of
the parties.‖ (quoting Davis, 547 U.S. at 822)). There may be
some instances, such as where the primary purpose of the
declarant‘s interlocutor was to elicit a testimonial statement,
such that even if the declarant‘s purpose was innocent, the

16
affords protection against the introduction of such evidence at
the defendants‘ trial.

Our conclusion that the contested statements were
nontestimonial under Davis compels us to reject the
challenges levied by Rodriguez and Cruz under Bruton v.
United States, 391 U.S. 123 (1968). In Bruton, the Court held
that the Confrontation Clause bars the use of the confession
of a nontestifying criminal defendant in a joint trial to the
extent that it directly inculpates a co-defendant, though it
might be otherwise admissible against the confessing
defendant. Id. at 126. ―We have interpreted Bruton
expansively, holding that it applies not only to custodial
confessions, but also when the statements of the non-
testifying co-defendant were made to family or friends, and
are otherwise inadmissible hearsay.‖ United States v.
Mussare, 405 F.3d 161, 168 (3d Cir. 2005) (citing Monachelli
v. Graterford, 884 F.2d 749, 753 (3d Cir. 1989), and United
States v. Ruff, 717 F.2d 855, 857-58 (3d Cir. 1983)).
However, because Bruton is no more than a by-product of the
Confrontation Clause, the Court‘s holdings in Davis and
Crawford likewise limit Bruton to testimonial statements.
See, e.g., United States v. Wilson, 605 F.3d 985, 1017 (D.C.
Cir. 2010) (holding that alleged Bruton claim did not violate
the Confrontation Clause because the statements were not
testimonial). Any protection provided by Bruton is therefore
only afforded to the same extent as the Confrontation Clause,
which requires that the challenged statement qualify as

conversation as a whole would be testimonial. Nevertheless,
we are not presented with such a situation here.

17
testimonial. To the extent that we have held otherwise, we no
longer follow those holdings. See Monachelli, 884 F.2d at
753 (holding that Bruton applies to statements ―made in a
non-custodial setting to family and friends‖); Ruff, 717 F.2d
at 857-58 (same). And because, as discussed above, we have
found the Title III recordings not to constitute testimonial
hearsay, Bruton provides no solace for Rodriguez or Cruz.

2. Challenges under the Federal Rules of Evidence

Following the two-step framework articulated above,
having determined that the challenged recording is
nontestimonial and therefore that the Confrontation Clause
challenges are not viable, we move next to the admissibility
of the Title III recording against Cruz and Rodriguez under
the Federal Rules of Evidence. We may affirm the District
Court on any ground supported by the record. Mussare, 405
F.3d at 168.

Rodriguez contends that the Title III recording was
inadmissible hearsay as to him, but we agree with the
government that the recording was admissible under Rule
804(b)(3) as a statement against penal interest. Although we
are sensitive to the possibility that self-serving incriminating
statements uttered by a non-testifying co-defendant may be
inherently untrustworthy, ―[w]here statements inculpate both
the speaker and the defendant challenging their admission, the
statements are admissible so long as they were ‗self-
inculpatory‘ and not simply self-serving attempts to deflect
criminal liability.‖ Id. at 168 (quoting United States v.
Moses, 148 F.3d 277, 281 (3d Cir. 1998)). In Mussare, we
considered the admission of similar braggadocio by a non-

18
testifying codefendant, who had boasted to a witness that he
and the defendant had performed the illegal acts underlying
the criminal charges. Id. We found that because the co-
defendant did not attempt to ―deflect liability,‖ but rather
―took credit‖ for it, the statements were not inadmissible
hearsay. Id.6

Mussare squarely governs here. In the Title III
recording, Berrios and Moore unequivocally incriminate
themselves in the carjackings and the Wendy‘s murder.
Rather than attempting to ―deflect liability‖ to Rodriguez,
they take full credit for the Wendy‘s murder, bragging about
shooting the security guard, and mentioning Rodriguez only
to complain that he crashed the getaway car. In no way was
the recorded conversation ―self-serving,‖ and therefore we
will uphold the District Court‘s ruling as to its admissibility
against Rodriguez.

Cruz‘s challenge is equally straightforward because
Berrios and Moore never blame Cruz for any criminal
conduct, or even mention him by name. Moreover, Moore‘s
threat to kill a man who worked with his girlfriend, and who
was evidently talking to the police, did not clearly refer to
Cruz, as Cruz himself concedes (and the government never
attempted to argue that it did). Thus, Cruz cannot contend
that Berrios or Moore attempted to deflect any criminal
liability in his direction during their conversation. See

6
In Mussare, 405 F.3d at 168-69, we went on to
determine admissibility under Bruton, which, as discussed in
the preceding section, is no longer applicable in this situation.

19
Mussare, 405 F.3d at 168. Rather, the challenged statements
are entirely self-inculpatory, and consequently admissible
against Cruz under Rule 804(b)(3). See id.

3. Sufficiency of the Title III Application

Moore offers a curious argument that the Title III
application submitted by the investigating prosecutor was
facially deficient because the prosecutor was not admitted to
practice in Puerto Rico, the jurisdiction where the warrant
was obtained. We find that this argument was waived under
Federal Rule of Criminal Procedure 12.

―[U]nder Rule 12, a suppression argument raised for
the first time on appeal is waived (i.e., completely barred)
absent good cause,‖ including when the defendant filed a
suppression motion but failed to include the specific issues
raised on appeal. United States v. Rose, 538 F.3d 175, 177,
182 (3d Cir. 2008). Rose concerned evidence which the
defendant sought to suppress under the Fourth Amendment
on the grounds that the warrant was facially deficient, id. at
176-77, but in light of the expansive language of Rule
12(b)(3)(C), which applies broadly to ―a motion to suppress,‖
we find it equally appropriate to apply this waiver rule in the
Title III context. See, e.g., United States v. Kincaide, 145
F.3d 771, 778 (6th Cir. 1998) (holding that failure to seek
suppression of Title III wiretap evidence waived claim on
appeal under Rule 12); United States v. Torres, 908 F.2d
1417, 1424 (9th Cir. 1990) (same). Thus, although Moore
submitted a pre-trial motion to suppress the wiretap evidence,
that motion preserved only those arguments which he
specifically raised, and he did not raise this purported

20
deficiency. Nor can Moore offer any argument as to why he
was unable to make a proper motion, or contend that he was
unaware of this potential basis for suppression, as would
warrant a waiver exception under 18 U.S.C. § 2518(10)(a):
his co-defendant, Berrios, moved for a new trial based on the
purported deficiency in the Title III application, which Moore
did not join. The argument was accordingly waived under
Rule 12, and because the plain error doctrine is inapplicable,
see Rose, 538 F.3d at 177, we do not reach its dubious merits.

B. Other Acts Evidence

Berrios challenges the government‘s introduction at
trial of statements he made in response to police questioning
regarding loose ammunition in his home, as well as
photographs of the ammunition, under Federal Rule of
Evidence 404(b). We review the admission of evidence
under Rule 404(b) for abuse of discretion. United States v.
Butch, 256 F.3d 171, 175 (3d Cir. 2001). The government
contends that this evidence demonstrated consciousness of
guilt as part of a pattern of exculpatory statements he made to
the police during the investigation of the Wendy‘s shooting.
We disagree, but the error was harmless.

1. Admissibility under Rule 404(b)

Extrinsic bad acts evidence may not be introduced ―to
prove a person‘s character in order to show that on a
particular occasion the person acted in accordance with that
character.‖ Fed. R. Evid. 404(b). Berrios correctly observes
that his unlawful possession of ammunition constitutes such a

21
bad act, and contends that the government introduced it for
the improper purpose of showing his violent tendencies.

We have acknowledged that false exculpatory
statements may be introduced as evidence of the defendant‘s
consciousness of guilt of the underlying charges, even where
such conduct may itself violate the law. See United States v.
Kemp, 500 F.3d 257, 296 (3d Cir. 2007); United States v.
Levy, 865 F.2d 551, 558 (3d Cir. 1989). For example, in
Kemp, we rejected a Rule 404(b) challenge to the use of false
grand jury testimony, which the government used to disprove
the defendant‘s ―alibi‖ that he was, in essence, too wealthy to
have committed the charged money laundering offenses. 500
F.3d at 296-97. Despite the defendant‘s contention that the
government was attempting to show that he was lying on the
stand because he had lied in the grand jury, we found that, as
a false exculpatory statement, this evidence properly
demonstrated consciousness of guilt. Id. Similarly, in Levy,
we found that a defendant‘s attempt to conceal his or her
identity after committing a crime was admissible to show
consciousness of guilt, even where the defendant‘s use of
false identities may have violated ―international travelling
statutes.‖ Levy, 865 F.2d at 558.

The government hangs its hat on the contention that
Berrios‘s statements qualify under the consciousness of guilt
exception to Rule 404(b) because they are, generally
speaking, exculpatory, and were made during the
investigation of the Wendy‘s shooting. Thus, the government
calls this part of a ―pattern‖ of false exculpatory statements,
the entirety of which is relevant to show consciousness of
guilt. We disagree. Although the statements concerned a

22
collection of unused ammunition which garnered attention
during an investigation of the charged offenses, the
connection between this statement and consciousness of guilt
is simply too attenuated. In both Kemp and Levy, the false
exculpatory statements were directly related to the charged
offense, thereby falling squarely within the kind of conduct
traditionally demonstrating consciousness of guilt. However,
neither Levy nor Kemp suggests that a false exculpatory
statement made to deflect criminal liability for unrelated
conduct may also be introduced for such purposes, and we
decline to hold so here. Indeed, such an expansive
interpretation of the consciousness of guilt exception would
effectively eviscerate the rule itself: any time that the
government sought to introduce other bad acts evidence, it
could circumvent Rule 404(b) by admitting the defendant‘s
false exculpatory statements about that conduct.

We have said that ―[t]o show a proper purpose, the
government must clearly articulate how that evidence fits into
a chain of logical inferences without adverting to a mere
propensity to commit crime now based on the commission of
crime then.‖ Kemp, 500 F.3d at 296 (internal quotations
omitted). The government has failed to do so, and therefore,
as the District Court recognized in its post-trial opinion, the
evidence should have been excluded under Rule 404(b).

2. Harmless Error

Nevertheless, the District Court correctly concluded
that the purported error was harmless because ―the jury
learned that no similar ammunition was found at Wendy‘s‖
and the ―alleged falsehood was cumulative to other false and

23
contradictory statements that Berrios made during the same
interrogation that bore directly on his consciousness of guilt
concerning the Wendy‘s incident.‖ Where evidence is
improperly admitted, reversal is not required where it is
―highly probable that the error did not contribute to the
judgment.‖ United States v. Cross, 308 F.3d 308, 326 (3d
Cir. 2002) (internal quotation omitted). ―Under the highly
probable standard, . . . there is no need to disprove every
reasonable possibility of prejudice,‖ and ―we can affirm for
any reason supported by the record.‖ Id. (internal marks and
quotations omitted). In the present case, we may comfortably
conclude that the harmless error standard is satisfied.

First and foremost, the evidence against Berrios was so
overwhelming that any improper inferences the jury might
have drawn from the ammunition evidence were marginal, at
most. See id. Second, the jury learned that none of the
ammunition found at Berrios‘s home resembled the
ammunition found at the Wendy‘s, so would not likely have
conflated the two. Third, minimal prejudice would have
resulted from the jury‘s consideration of the ammunition
evidence in light of the court‘s instructions not to base its
verdict on any uncharged acts and, as is oft repeated, ―juries
are presumed to follow their instructions.‖ Id. (quoting Zafiro
v. United States, 506 U.S. 534, 541 (1993)). And fourth, the
government presented other statements from the same
conversation which properly demonstrated consciousness of
guilt of the charged offense, so any inference that the jury
might have improperly drawn from this evidence was
cumulative of the balance of other consciousness of guilt

24
evidence. See id. Thus, the District Court was correct in
determining that a new trial was not warranted on this basis.

C. Sufficiency of the Evidence

Cruz, Rodriguez and Moore renew their sufficiency of
the evidence challenges previously made in post-trial
motions. We exercise plenary review over a district court‘s
denial of a motion for judgment of acquittal based on the
sufficiency of the evidence. United States v. Starnes, 583
F.3d 196, 206 (3d Cir. 2009). The verdict must be sustained
if ―any rational trier of fact could have found proof of guilt
beyond a reasonable doubt based on the available evidence.‖
United States v. Silveus, 542 F.3d 993, 1002 (3d Cir. 2008).
We review for plain error where the defendant failed to make
a timely motion for judgment of acquittal. United States v.
Brodie, 403 F.3d 123, 133 (3d Cir. 2005). Making all
reasonable inferences in favor of the government as the
verdict winner, Starnes, 583 F.3d at 206, we find these
challenges meritless.

1. Cruz

Cruz submits that the government failed to prove
beyond a reasonable doubt that he was one of the perpetrators
of the charged crimes. Cruz moved for judgment of acquittal
at the close of trial under Rule 29. The District Court
correctly denied the motion as to Cruz‘s involvement in all
but the Caines carjacking because, based on physical
evidence, witness testimony, and post-offense conduct, a
reasonable jury could have found him to be a participant in

25
the robbery, shooting and carjackings beyond a reasonable
doubt. Silveus, 542 F.3d at 1002.

First, Cruz was tied to the crimes through fibers found
in the Chevy Cavalier which matched a dark blue Nike jacket
recovered from his room. The government‘s expert testified
that it was ―very unlikely‖ that fibers consistent with a
garment would not originate from that garment, particularly
given the ―over 80 billion tons of fibers produced each year.‖
Additionally, the jury could reasonably infer that the jacket
belonged to Cruz because, when told to dress, he put on pants
from the room where the jacket was found. Second,
witnesses placed Cruz in the company of the other
conspirators shortly before the attempted robbery. Angel
Ayala testified that at around 7 p.m., Cruz and Rodriguez had
talked with him about holding a gun and that they were
wearing black and blue sweaters with blue hoods. Tyiasha
Moore likewise testified that Rodriguez, Cruz and Berrios
were gathered around a gun, all wearing dark clothing, one
floor away from Moore, at around 10:15 p.m. that night. And
third, Armando Cruz, a government witness, confronted Cruz
several times about the Wendy‘s shooting. Cruz never denied
his involvement in the crime until the third conversation, at
which point Armando believed he had grown suspicious
about Armando‘s assistance in the investigation. Making all
reasonable inferences in favor of the government as the
verdict winner, Starnes, 583 F.3d at 206, Cruz cannot show
that no reasonable jury could have convicted him on the
totality of the evidence.

26
 2. Rodriguez

Rodriguez contends that the evidence was insufficient
as a matter of law to convict him of the charges. However,
the tape of Berrios and Moore identifying Rodriguez as the
getaway driver for the Wendy‘s robbery and as an accomplice
in the carjackings was properly admitted, and he rightly
concedes that if the recording was admissible against him, the
evidence was sufficient for a conviction. Rodriguez also
argues that a jury could not find him guilty of attempting to
carjack Peterson‘s car because none of the defendants harmed
her in any way after she threw her keys into her yard.
However, the specific intent element of carjacking is assessed
at the time the defendant ―demanded or took control over the
car.‖ See Holloway v. United States, 526 U.S. 1, 8 (1999).
Therefore, the fact that Peterson was not harmed does not
negate the jury‘s assessment of Rodriguez‘s intent at the time
the carjackers demanded the keys. Indeed, Peterson testified
that they ran away when neighborhood dogs began to bark,
which suggests that the defendants may very well have
changed their minds during the carjacking. Drawing all
reasonable inferences in favor of the verdict, Rodriguez
cannot prevail merely because the victim escaped unharmed.

3. Moore

Moore argues that the evidence was insufficient to
prove that he was an accomplice in the Wendy‘s robbery and
carjackings, but concedes that if the recording of his
conversation with Berrios was properly admitted, his
sufficiency of the evidence argument must fail. We reject his
challenge accordingly.

27
 D. Prosecutorial Misconduct

Several of the defendants have appealed on the
grounds of prosecutorial misconduct. Cruz submits that the
prosecution improperly vouched for a government witness,
and, along with Rodriguez and Moore, contends that
prosecutorial conduct during closing requires reversal.

1. Vouching

Cruz argues that Detective Matthews vouched for
witnesses Tyiasha Moore and Angel Ayala by testifying that
their grand jury testimony was consistent with their prior
statements, and by confirming that he told them to tell the
truth at the grand jury proceeding. We review an unpreserved
vouching claim for plain error. See United States v. Harris,
471 F.3d 507, 512 (3d Cir. 2006). If petitioner preserved the
claim, we review for abuse of discretion. United States v.
Vitillo, 490 F.3d 314, 325 (3d Cir. 2007).

―Vouching constitutes an assurance by the prosecuting
attorney of the credibility of a Government witness through
personal knowledge or by other information outside of the
testimony before the jury.‖ United States v. Walker, 155 F.3d
180, 184 (3d Cir. 1998) (citations omitted). Such conduct
threatens to ―convey the impression that evidence not
presented to the jury, but known to the prosecutor, supports
the charges against the defendant,‖ thereby ―jeopardiz[ing]
the defendant‘s right to be tried solely on the basis of the
evidence presented to the jury,‖ and ―induc[ing] the jury to
trust the Government‘s judgment rather than its own view of
the evidence.‖ Id. For a prosecutor‘s conduct to constitute

28
vouching, (1) ―the prosecutor must assure the jury that the
testimony of a Government witness is credible,‖ and (2) ―this
assurance [must be] based on either the prosecutor's personal
knowledge, or other information not contained in the record.‖
Id. at 187.

The government is not immunized from this attack
merely because the challenged vouching occurred through the
use of witness testimony. Although ―vouching most often
occurs during summation, . . . [it] may occur at any point
during trial,‖ including witness examination, when the
elicited testimony satisfies the two criteria for vouching.
Vitillo, 490 F.3d at 328. In Vitillo, for example, prosecutors
referred to their presence at the defendant‘s interview by
using the pronoun ―we‖ when examining a government agent
about what the defendant had admitted to the government. Id.
at 329. We concluded that, through their questions, the
prosecutors effectively ―assured the jury that [the witness‘s]
testimony was credible based on their personal observations
of [his] interrogation of [the defendant].‖ Id. As such, it
constituted improper vouching. Id.

In this case, however, the concerns underlying the
vouching prohibition were not implicated by the examination
of Detective Matthews. Although the government elicited
Matthews‘s testimony to assure the jury that Tyiasha Moore
and Angel Ayala were credible, it did not do so based on
information outside of the record. Moreover, the jury could
not glean anything about the prosecutor‘s personal knowledge
of the grand jury proceedings. Thus, at no point did the
prosecutor imply that the jury should disregard the evidence

29
in favor of the government‘s undisclosed knowledge or
judgment. See Walker, 155 F.3d at 184.

Moreover, where the purported vouching is a
―reasonable response to allegations of [impropriety]‖ by the
defense, it is not improper. United States v. Weatherly, 525
F.3d 265, 272 (3d Cir. 2008); see also United States v.
Gentles, 619 F.3d 75, 84-85 (1st Cir. 2010). For instance, in
Weatherly, we allowed the prosecutor a ―brief and appropriate
response‖ during closing to the defense‘s ―speculation and
attacks on the credibility of government witnesses.‖ Id. The
examination of Detective Matthews was also such a response.
The defense had elicited testimony that Moore had testified at
the grand jury under coercive conditions. It was eminently
appropriate for the prosecution to respond by introducing
testimony to rehabilitate. Cf. United States v. Harris, 471
F.3d 507, 512 (3d Cir. 2006). We reject Cruz‘s argument
accordingly.

2. Closing Argument

Cruz, Moore and Rodriguez also challenge the fairness
of the trial on the grounds that prosecutorial misconduct
during closing jeopardized their right to a fair trial. The
alleged misconduct includes the reading of a poem

30
commemorating the victim, Officer Chapman,7 as well as the
use of an enlarged photograph of the victim and brief
references to Rodriguez‘s presence in jail. We review a
district court‘s rulings on contemporaneous objections to
closing arguments for abuse of discretion. United States v.
Lore, 430 F.3d 190, 210 (3d Cir. 2005). Any non-
contemporaneous objections are reviewed for plain error.
United States v. Lee, 612 F.3d 170, 193 (3d Cir. 2010). A
nonconstitutional error ―requires reversal unless the error is
harmless.‖ Id. at 194.

We agree that the closing was rife with misconduct,
and to a degree that should not be tolerated by a district court.
The reading of a commemorative poem could truly serve no
purpose other than to appeal to the emotions and sympathies
of the jury, see Viereck v. United States, 318 U.S. 236, 247-48
& n.3 (1943); a criminal trial may prove cathartic for a
victim‘s friends and family, but the courtroom is not an
appropriate forum for a memorial. If, as the government
7
The poem read at trial consisted of the following:
―To Officer Chapman, I bid you farewell, a man and a hero I
never knew well. Like those before him, he answered the
call, out gunned and out flanked, he was destined to fall. But
the job he chose never promised long life, just respect from
others whom he protected from strife. He went without fear
into that night. Against crime and evil he fought the good
fight. On an April night he did all that he could. He
sacrificed his life to fight bad with good. In the face of a gun
he showed steely nerve, and he kept his promise to protect
and to serve.‖

31
contends, the poem merely reiterated evidence that had been
elicited at trial, then the government can simply discuss that
evidence with the jury. The same goes for the puzzle of
Officer Chapman‘s face, which the government submits was
meant to show the jury how disparate pieces of evidence fit
together. Visual aids can often help in conveying difficult
concepts to a jury, particularly in a factually complex case
such as this. See, e.g., United States v. De Peri, 778 F.2d
963, 979 (3d Cir. 1985) (approving use of a chart to diagram
relationships). But if that were truly the sole purpose behind
the puzzle imagery, there was no such conceivable purpose in
using an enlarged photograph of the victim‘s face as the
puzzle image. Considered jointly with the poem, the purpose
of the government‘s conduct is transparent and its
justifications are not credible; such conduct should not have
been allowed in court.8

Nevertheless, a ―‗criminal conviction is not to be
lightly overturned on the basis of a prosecutor‘s [conduct]
standing alone . . . .‘‖ Lee, 612 F.3d at 194 (quoting United
States v. Young, 470 U.S. 1, 11 (1985)). Rather, ―we ‗must
examine the prosecutor‘s offensive actions in context and in
light of the entire trial, assessing the severity of the conduct,
the effect of the curative instructions, and the quantum of
evidence against the defendant[s].‘‖ Id. (quoting Moore v.
8
The Government also concedes that the references to
Rodriguez‘s presence in jail, both in mentioning his shackles
and his prison letters to his girlfriend, were error. However,
because these were minor incidents, we focus our analysis on
the more troubling instances of misconduct.

32
Morton, 255 F.3d 95, 107 (3d Cir. 2001)); United States v.
Gambone, 314 F.3d 163, 179 (3d Cir. 2003). ―A prosecutor‘s
[conduct] can create reversible error if [it] ‗so infected the
trial with unfairness as to make the resulting conviction a
denial of due process.‘‖ Lee, 612 F.3d at 194 (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).

In the present case, when examined in context and in
light of the entire trial, the prosecutor‘s conduct does not
merit reversal. First, the objectionable poem was a mere ten
lines out of over seventy-five pages of closing argument by
the prosecution and thousands of pages of trial transcript; we
have found prejudice to be minimal from similarly brief
comments. See Gambone, 314 F.3d at 180 (finding no
prejudice where comments took up less than half a page out
of 3200 pages of trial transcript); United States v. Zehrbach,
47 F.3d 1252, 1267 (3d Cir. 1995) (finding no prejudice
where comments were two sentences in a forty-page closing
argument). The same applies to the photograph of Officer
Chapman, which had already been presented as evidence to
the jury in its original form and, in the context of the entire
trial, was displayed during an equally brief period of time.9
Second, instructions by the judge, though not issued directly
in response to the poem, sufficiently removed any lingering
prejudice. See United States v. Wood, 486 F.3d 781, 789 (3d
Cir. 2007) (finding opening and closing jury instructions to
9
The government conceded at oral argument that its
stance on this issue might be different if the photograph and
poem were presented simultaneously, but because that was
not the case, we see no need to address that possibility.

33
consider only the evidence, which did not include argument
by counsel, sufficient, even without issuing an express
curative instruction for the challenged comment); Gambone,
314 F.3d at 180 (same). As in Wood, the judge in this case
instructed the jury repeatedly to base its judgment on the
evidence, not on sympathy or bias,10 and that arguments by
counsel do not constitute evidence. These instructions were
likewise an adequate response to the possibility that the
improper commentary would lead the jury astray in its
deliberations. Moreover, the jury was already aware of the
nature of the crime and the identity of the victim, and
therefore would have been exposed to the passion and
sympathy elicited by the poem throughout the trial. See
Duvall v. Reynolds, 139 F.3d 768, 795 (10th Cir. 1998).
Finally, the jury was presented with ample evidence on which
it could convict the defendants, see Wood, 486 F.3d at 789,
and, as the District Court noted, the poem itself was
―interlaced‖ with evidence adduced at trial. See Gambone,
314 F.3d at 179 (reaffirming prior holdings ―that probative
evidence on the same issue as improper remarks may mitigate

10
Specifically, the District Court instructed the jury
that it was ―to perform [its] duties without sympathy, without
bias, and without prejudice to any party,‖ because ―[o]ur
system of law does not permit jurors to be governed or
affected by bias, sympathy or prejudice.‖ The District Court
also emphasized that ―[u]nder no circumstances . . . should
[the jury‘s] deliberations be affected or diverted by any
appeals to bias, passion, or prejudice, nor influenced by any
pity or sympathy in favor of either side.‖

34
prejudice stemming from those remarks‖). However
prejudicial the photo and poem may seem in isolation, when
viewed in context of the entire trial, prejudice was minimal
and reversal is not warranted.

E. Jury Instructions

In its charge on the specific intent element of
carjacking,11 the District Court instructed the jury that
―whether the Defendant ‗intended to cause death or serious
bodily harm‘ is to be judged objectively from the conduct of
the Defendant as disclosed by the evidence, and from what
one in the position of the alleged victim might reasonably
conclude.‖ Berrios contends that by emphasizing the
perspective of the victim, these instructions established a
subjective standard allowing the jury to find the intent
element satisfied based only on an ―empty threat‖ or
―intimidating bluff,‖ thereby ―render[ing] superfluous the
statute‘s ‗by force and violence or intimidation‘ element.‖
Holloway v. United States, 526 U.S. 1, 11 (1999). We

11
The four elements of carjacking, as instructed by the
District Court, were: (1) ―That the Defendant took a motor
vehicle from the person or presence of another‖; (2) ―That the
Defendant did so by force or violence, or by intimidation‖;
(3) ―That the motor vehicle previously had been transported,
shipped, or received in interstate or foreign commerce‖; and
(4) ―That the Defendant intended to cause death or serious
bodily harm when the Defendant took the vehicle.‖ This
accords with circuit practice. See United States v.
Applewhaite, 195 F.3d 679, 684-85 (3d Cir. 1999).

35
exercise plenary review in determining ―whether the jury
instructions stated the proper legal standard.‖ United States v.
Leahy, 445 F.3d 634, 643 (3d Cir. 2006) (citation omitted).
We review the particular wording of the instructions for abuse
of discretion. Id. (citation omitted). Although an ―an empty
threat, or intimidating bluff . . . is not enough to satisfy
[carjacking‘s] specific intent element,‖ Holloway, 526 U.S. at
11, when read in the context of the charge as a whole, the jury
instructions were proper.

Jury instructions ―‗may not be evaluated in artificial
isolation,‘‖ but rather ―‗must be evaluated in the context of
the overall charge.‘‖ United States v. Williams, 344 F.3d 365,
377 (3d Cir. 2003) (quoting United States v. Goldblatt, 813
F.2d 619, 623 (3d Cir. 1987)). Thus, an instruction that
appears erroneous on its own may be remedied by the balance
of the court‘s instructions. See id. In Williams, for example,
the defendant contested the use of the word ―emboldening‖ in
jury instructions on the ―carry‖ and ―possession‖ prongs of a
§ 924(c) violation. Id. We found no error, because the stray
term was ―included as part of a thorough instruction that
sufficiently tracked language used by the Supreme Court.‖
Id. at 377-78. Likewise, in United States v. Khorozian, 333
F.3d 498, 508 (3d Cir. 2003), we rejected the defendant‘s
contention that an intent instruction for bank fraud
―emasculated‖ the specific intent requirement. Although the
challenged statement, ―taken out of context,‖ did ―not employ
the exact language‖ from our established definition of intent,
the instruction as a whole ―communicate[ed] to the jury that it
must find that [the defendant] possessed the specific intent to
defraud . . . .‖ Id.

36
 At the outset, of course, it is apparent that the
challenged clause did not set forth a ―subjective standard,‖ as
Berrios contends, but rather an objective reasonable person
standard. Objective standards are often defined as what a
reasonable person under the circumstances would believe or
understand. See, e.g., J.D.B. v. North Carolina, 131 S. Ct.
2394, 2402 (2011) (―By limiting analysis to the objective
circumstances of the interrogation, and asking how a
reasonable person in the suspect‘s position would understand
his freedom . . . to leave, the objective test [for custody under
Miranda] avoids burdening police with the task of
anticipating the idiosyncrasies of every individual suspect and
divining how those particular traits affect each person‘s
subjective state of mind.‖); United States v. Mendenhall, 446
U.S. 544, 554 (1980) (holding that ―seizure‖ for Fourth
Amendment purposes objectively occurs when ―in view of all
of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave‖).
And despite Berrios‘s contentions otherwise, a ―reasonable
person in the victim‘s position‖ standard is distinguishable
from the victim‘s subjective belief: even where a victim who
is easily intimidated might be subjectively fearful, a jury
employing this standard must discern whether a reasonable
person in that position would find the defendant possessed the
requisite intent.

Even if a juror might mistake the challenged clause as
a subjective standard, the instructions as a whole tracked the
correct standard for specific intent. We have said that a
defendant‘s specific intent is to be judged ―[b]ased upon the
totality of all the surrounding facts and circumstances,‖

37
United States v. Anderson, 108 F.3d 478, 485 (3d Cir. 1997)
(applying specific intent standard for carjacking) (emphasis
added); see Polsky v. Patton, 890 F.2d 647, 650 (3d Cir.
1989) (discussing intent standard for third degree murder),
and not ―by the secret motive of the actor, or some
undisclosed purpose merely to frighten, not to hurt.‖ United
States v. Guilbert, 692 F.3d 1340, 1344 (11th Cir. 1982)
(quoting Shaffer v. United States, 308 F.2d 654, 655 (5th Cir.
1962)). The instructions here invited the jury to consider the
facts in precisely this way: ―objectively from the conduct of
the Defendant as disclosed by the evidence, and from what
one in the position of the alleged victim might reasonably
conclude.‖ The clause which Berrios highlights, read in
context, does no more than provide one of the evidentiary
factors the jury could consider in reaching its verdict. The
fact that the clause appears in the second half of the sentence,
connected by an ―and,‖ confirms its role as a descriptive
example rather than a discrete instruction which contradicts
the initial one. See United States v. Gordon, 290 F.3d 539,
545 (3d Cir. 2003) (―[A] defect in a charge may result in legal
error if the rest of the instruction contains language that
merely contradicts and does not explain the defective
language in the instruction.‖). Thus, read as a whole, the
instruction did not direct the jury to rely on the victim‘s
subjective perception, and therefore, did not run the risk of
allowing a conviction based on empty threats or bluffs.

38
 F. Double Jeopardy

Berrios was convicted under Virgin Islands law for
first-degree (felony) murder, 14 V.I.C. § 922(a)(2),12 and
under federal law, 18 U.S.C. § 924(j)(1),13 both premised on
the killing of Officer Chapman. He was sentenced to
consecutive terms of life imprisonment, which he challenges
as a violation of the Fifth Amendment‘s Double Jeopardy

12
The text of § 922(a)(2), in relevant part, defines first
degree murder as ―(a) All murder which . . . (2) is committed
in the perpetration or attempt to perpetrate arson, burglary,
kidnapping, rape, robbery or mayhem, assault in the first
degree, assault in the second degree, assault in the third
degree and larceny.‖
13
The text of § 924(j)(1) provides, in relevant part: ―A
person who, in the course of a violation of subsection (c),
causes the death of a person through the use of a firearm,
shall--(1) if the killing is a murder (as defined in section
1111), be punished by death or by imprisonment for any term
of years or for life; and (2) if the killing is manslaughter (as
defined in section 1112), be punished as provided in that
section.‖

39
Clause.14 Our review is plenary. See United States v. Bishop,
66 F.3d 569, 573 (3d Cir. 1995).

―With respect to cumulative sentences imposed in a
single trial, the Double Jeopardy Clause does no more than
prevent the sentencing court from prescribing greater
punishment than the legislature intended.‖ Missouri v.
Hunter, 459 U.S. 359, 366 (1983). ―Where Congress
intended . . . to impose multiple punishments, imposition of
such sentences does not violate the Constitution.‖ Albernaz v.
United States, 450 U.S. 333, 344 (1981). Accordingly, a
Double Jeopardy challenge must fail if the statutory text
clearly reflects a legislative intent to impose multiple
sentences on a defendant for a single underlying transaction.
See id. at 344 & n.3; Bishop, 66 F.3d at 573-74. If, after
inspection, Congress‘s intent remains unclear, cumulative
sentencing poses no double jeopardy problem only if ―each
provision requires proof of a fact which the other does not,‖
thereby satisfying Blockburger v. United States, 284 U.S. 299
(1932). Bishop, 66 F.3d at 573 (quoting Blockburger, 284
U.S. at 304). However, ―[b]ecause the [Blockburger] rule
‗serves as a means of discerning congressional purpose[, it]
should not be controlling where, for example, there is a clear
indication of contrary legislative intent.‘‖ United States v.
14
―The Virgin Islands and the federal government are
considered one sovereignty for the purposes of determining
whether an individual may be punished under both Virgin
Islands and United States statutes for a similar offense
growing out of the same occurrence.‖ Gov’t of the V.I. v.
Braithwaite, 782 F.2d 399, 406 (3d Cir. 1986).

40
Conley, 37 F.3d 970, 975-76 (3d Cir. 1994) (third alteration
in original) (quoting Albernaz, 450 U.S. at 340).

The parties agree that, because felony murder in the
Virgin Islands is a lesser included offense of 18 U.S.C.
§ 924(j), Blockburger is not satisfied. The question we are
faced with is whether, by expressly requiring a § 924(c)
violation before imposing a § 924(j) penalty, Congress also
intended § 924(j) to incorporate subsection (c)‘s consecutive
sentence mandate, § 924(c)(1)(D)(ii). This is a question
which has divided our sister circuits. Compare United States
v. Dinwiddie, 618 F.3d 821, 837 (8th Cir. 2010) (holding that
consecutive sentence provision under § 924(c) applies to
sentences imposed under § 924(j)), and United States v.
Battle, 289 F.3d 661, 665-69 (10th Cir. 2002) (same), with
United States v. Julian, 633 F.3d 1250, 1252-57 (11th Cir.
2011) (holding that § 924(j) defines a distinct offense from
§ 924(c) and is not subject to consecutive sentence mandate).
We conclude that Congress did so intend, and will therefore
deny Berrios‘s double jeopardy challenge.

1. The Statutory Scheme

As is customary in cases of statutory interpretation,
―our inquiry begins with the language of the statute and
focuses on Congress‘[s] intent.‖ United States v. Abbott, 574
F.3d 203, 206 (3d Cir. 2009). ―Because statutory
interpretation . . . is a holistic endeavor,‖ we do ―not look
merely to a particular clause in which general words may be
used, but will take in connection with it the whole statute.‖
United States v. Cooper, 396 F.3d 308, 313 (3d Cir. 2005)
(internal marks and quotations omitted).

41
 The text of 18 U.S.C. § 924(j) reads as follows:

―A person who, in the course of a
violation of subsection (c), causes the
death of a person through the use of a
firearm, shall—

(1) if the killing is a murder (as
defined in section 1111), be
punished by death or by
imprisonment for any term of
years or for life, and

(2) if the killing is manslaughter
(as defined in section 1112), be
punished as provided in that
section.‖

18 U.S.C. § 924(j) (emphasis added). By virtue of the
subsection (c) cross-reference, we will begin, counter-
intuitively, with § 924(c).

We have explored the mechanics of 18 U.S.C. § 924(c)
more fully elsewhere, see Abbott, 574 F.3d at 206-08; Bishop,
66 F.3d at 573-75, but briefly revisit it here. In its prefatory
clause, subsection (c) begins by identifying a core set of
predicate offenses, crimes of violence and drug trafficking
crimes, which fall within its scope. See § 924(c)(1)(A). The
prefatory clause then provides that a defendant who commits
a predicate offense while using, carrying or possessing a
firearm, is subject to a mandatory punishment ―in addition to‖
the sentence for that predicate offense. Id. Subsection (c)

42
also makes clear that ―no term of imprisonment imposed on a
person under . . . subsection [(c)] shall run concurrently with
any other term of imprisonment imposed on the
person . . . .‖15 § 924(c)(1)(D)(ii) (emphasis added) (the
―consecutive sentence mandate‖). The Supreme Court –
along with every Court of Appeals to address the question,
including our own – has unequivocally held that ―[w]hen a
defendant violates § 924(c), his sentencing enhancement
under that statute must run consecutively to all other prison
terms.‖ United States v. Gonzales, 520 U.S. 1, 9-10 (1997)
(emphasis added); see, e.g., Bishop, 66 F.3d at 574-75
(―‗[T]he legislative intent to impose a consecutive sentence
for the violation of section 924(c) is plain from the language

15
Although the scope of § 924(c)(1)(D)(ii)
substantially overlaps with that of subsection (c)‘s prefatory
clause, § 924(c)(1)(A), the consecutive sentence mandate
applies to ―any other term of imprisonment imposed,‖ thereby
reaching more broadly than the language of the prefatory
clause, which only mandates the imposition of penalties in
addition to the predicate offense. In recognition of this, the
government implicitly concedes that where, as here, Berrios
challenges the § 924(j) sentence based on a conviction for
felony murder which was not the charged predicate offense,
only the consecutive sentence mandate is controlling.
Nevertheless, we can see no reason for Congress to
differentiate between the extension of the prefatory clause to
subsection (j) and the extension of the consecutive sentence
mandate, because both are essential to the sentencing scheme.

43
of that provision . . . .‘‖ (quoting United States v. Mohammed,
27 F.3d 815, 819-20 (2d Cir. 1994))).

The remainder of subsection (c) then provides a length
for the additional mandatory sentence, the severity of which
depends on factors delineated in that subsection or elsewhere.
See Abbott, 574 F.3d at 206-08 (holding that mandatory
minimum sentences provided in other provisions of law may
apply to increase a subsection (c) punishment). The
provisions of subsection (c) provide for greater sentence
lengths based upon, for example, actual discharge of the
weapon, § 924(c)(1)(A)(iii), or the use of a machinegun,
§ 924(c)(1)(B)(ii). This structure extends to § 924 (j): like
the rest of subsection (c), § 924(j) simply provides an
additional circumstance beyond the existence of the predicate
offense – namely, where a subsection (c) violation results in
the death of a person – that governs the length of a sentence
to be imposed. See 18 U.S.C. § 924(j) (varying sentence
lengths depending on whether death results from murder or
manslaughter). Understood in the context of the statutory
scheme, section 924(j) effectively functions as an extension
of subsection (c)‘s statutory core. And in light of the
subsection (c) cross-reference, Congress‘s intent to treat it as
such is clear. With the statutory scheme firmly in mind, we
turn to the double jeopardy issue.

2. The Consecutive Sentence Mandate

Berrios‘s principal argument is that § 924(j) lacks any
indication that a sentence is to be stacked on top of his other
offenses, and therefore the requisite congressional intent is
not present. He also observes that the consecutive sentence

44
mandate exclusively applies to a penalty ―imposed under‖
subsection (c), see 18 U.S.C. § 924(c)(1)(D)(ii), and contends
that a sentence imposed pursuant to a subsection (j)
conviction is not ―imposed under‖ subsection (c) because,
following the Eleventh Circuit‘s reasoning in Julian, 633 F.3d
at 1252-57, subsection (j) constitutes a separate offense.
Although the government concedes that § 924(j) establishes a
discrete crime from § 924(c), this has no bearing on our
decision: we are persuaded that under any reasonable
interpretation, 18 U.S.C. 924(j) is subject to the consecutive
sentence mandate provided in § 924(c)(1)(D)(ii).

First, in light of Congress‘s clear intent to stack
punishments for all § 924(c) violations, we agree with the
Tenth Circuit that ―[t]he failure to repeat the prohibition
against concurrent sentences set forth in § 924(c)(1)(D)(ii)
does not demonstrate that Congress has determined that the
penalty set forth in § 924(j) should not be imposed ‗in
addition to‘‖ any other term of imprisonment. Battle, 289
F.3d at 668. After all, the consecutive sentence mandate is
the heart of the statutory scheme set forth by subsection (c);
its veritable raison d’être. See Gonzales, 520 U.S. at 9-10. It
takes no special insight or leap of logic to conclude that the
central reason for Congress‘s choice of language in writing
subsection (j) – ―during the course of a violation of
subsection (c)‖ – was to ensure that separating out subsection
(j) from subsection (c) did not deprive the law of a coherent
sentencing scheme, the heart of which is the consecutive

45
sentence mandate.16 As we have said before, ―[o]nce
Congress has clearly stated an intention to stack punishments
as it did in section 924(c), ‗it need not reiterate that intent in
any subsequent statutes that fall within the previously defined
class.‘‖ Bishop, 66 F.3d at 575 (quoting United States v.
Singleton, 16 F.3d 1419, 1428 (5th Cir. 1994)).

To interpret the text any other way would give rise to
an anomalous result: that ―a defendant convicted under
§ 924(c) is subject to an additional consecutive sentence only
in situations that do not result in a death caused by use of a
firearm.‖ Allen, 247 F.3d at 769; Battle, 289 F.3d at 668
(quoting Allen, 247 F.3d at 769). We agree with the Eighth
and Tenth Circuits that it is highly ―unlikely that Congress,
which clearly intended to impose additional cumulative
punishments for using firearms during violent crimes in cases
where no murder occurs, would turn around and not intend to
impose cumulative punishments in cases where there are
actual murder victims.‖ Battle, 289 F.3d at 668 (quoting
16
We find unpersuasive the Eleventh Circuit‘s
reasoning in Julian, 633 F.3d at 1255-56, that the contrary
interpretation is necessary to avoid rendering superfluous the
language of § 924(c)(5), because otherwise, ―no difference
[would] exist[] between the sentences that these two
provisions prescribe[].‖ In fact, there is a patently obvious
difference: § 924(j) requires the death of a person ―through
the use of a firearm,‖ (emphasis added), whereas § 924(c)(5)
is based on the use, carrying, or possession of ―armor
piercing ammunition,‖ (emphasis added), which is, of course,
not a firearm.

46
Allen, 247 F.3d at 769). In light of the statutory scheme and
purpose shared by subsection (c) and subsection (j), we
simply cannot impute a contradictory intent to Congress
without some underlying rationale.

This reading is supported by our prior interpretation of
§ 924(c)‘s prefatory clause, which instructs that the penalties
enumerated in subsection (c) apply ―in addition to the
punishment provided‖ for the predicate crime of violence or
drug trafficking offense, ―except to the extent that a greater
minimum sentence is otherwise provided by this subsection
or by any other provision of law.‖ 18 U.S.C. § 924(c)(1)(A)
(emphasis added); see Abbott, 574 F.3d at 206-08. As we
discussed in Abbott, the prefatory clause‘s mandatory
sentencing scheme is not limited to subsection (c), because
―[i]n referring to alternative minimum sentences, the
prefatory clause mentions ‗any other provision of law‘ to
allow for additional § 924(c) sentences that may be codified
elsewhere in the future . . . .‖ 574 F.3d at 208 (emphasis
added). The clause thereby ―provides a safety valve that
would preserve the applicability of any other provisions that
could impose an even greater mandatory minimum
consecutive sentence for a violation of § 924(c).‖ United
States v. Studifin, 240 F.3d 415, 423 (4th Cir. 2001).

Although Abbott did not place subsection (j) squarely
before us at that time, we think that subsection (j) was the
unambiguous target of this safety valve. Accordingly, if
Congress wanted to increase the mandatory minimum for a
violation of subsection (c) resulting in the death of a person, it
could do so in subsection (j) without rewriting the entire
statute. Cf. Bishop, 66 F.3d at 575. Thus, Congress‘s intent

47
in imposing cumulative punishment on a defendant for both a
§ 924(c) violation and a predicate offense was not constrained
to those penalties provided solely by that subsection. Rather,
the consecutive sentence scheme is intended to impose
additional punishments for any violation of subsection (c),
whether the penalties for such violations are provided in that
subsection or elsewhere.

Second, we think that Berrios‘s interpretation of
sentences ―imposed under‖ subsection (c) to exclude
subsection (j) lacks a firm textual basis and is unduly
restrictive in light of the statutory scheme. Of course,
―imposed under‖ could refer to only those sentences literally
listed in subsection (c), but that is by no means the only
possible definition. For instance, Webster‘s defines ―under‖
as, in part, ―subject to regulation by,‖ see Webster‘s Third
Int‘l Dictionary (1989), and so it is equally plausible that a
sentence ―imposed under‖ subsection (c) means ―subject to
regulation by‖ subsection (c), a definition under which
subsection (j) would clearly qualify. But in light of the
statutory scheme as a whole, it is apparent that the phrase
serves a functional – as opposed to literal – purpose, by
identifying those sentences imposed as a consequence of a
subsection (c) offense: in other words, those sentences
handed down for a subsection (c) violation.

Although we decline to follow the Eighth and Tenth
Circuits in concluding that subsection (j) merely sets forth
sentencing elements to be applied to a subsection (c) offense,
see Battle, 289 F.3d at 666; Allen, 247 F.3d at 769, such a

48
determination is not dispositive.17 The sentencing scheme
embodied by subsection (c) does not distinguish between an

17
We acknowledge that our resolution of this issue
would be more straightforward were we to follow the Eighth
and Tenth Circuits in holding that § 924(j) merely provides an
―enhancement‖ for a § 924(c) offense. See Battle, 289 F.3d at
666; Allen, 247 F.3d at 769. Nevertheless, we are persuaded
that such a reading would be inconsistent with the Supreme
Court‘s analysis of § 924(c) enhancements and offenses in
Castillo v. United States, 530 U.S. 120, 124-31 (2000), and
Harris v. United States, 536 U.S. 545, 552-56 (2002), as well
as Jones v. United States, 526 U.S. 227, 233-52 (1999) –
cases which the Eighth and Tenth Circuits did not address.

49
 In Castillo, the Court held that a then-current provision
enhancing the mandatory minimum sentence for use of a
machinegun during a § 924(c)(1) violation constituted an
element of a separate crime rather than a sentencing factor.
530 U.S. at 124-31. The Court reasoned that the use of a
machinegun reflected a ―great‖ variation, ―both in degree and
in kind,‖ from a generic § 924(c) offense, and was unlike
―traditional sentencing factors‖ relating to offender
characteristics, such as recidivism. Id. at 126. The Court also
acknowledged that ―treating facts that lead to an increase in
the maximum sentence as a sentencing factor would give rise
to significant constitutional questions.‖ Id. at 124 (citing
Jones, 526 U.S. at 239-52). Conversely, in Harris, 536 U.S.
at 556, the Court held that the provisions of § 924(c)
increasing the penalty for brandishing or discharging a
firearm were sentencing factors, not elements. Those
provisions did ―not repeat the elements from the principal
paragraph‖ setting forth the offense, raised the minimum
sentences in incremental steps, and were premised on
―paradigmatic sentencing factor[s].‖ Id. at 552-54.

50
 These cases, in conjunction with Jones, 526 U.S. at
251-52, where the Court held that ―death‖ constituted an
element of an aggravated carjacking offense under 18 U.S.C.
§ 2119(3), guide us here. We think that the death of a person
– a fact more serious than the use of a machinegun in Castillo
– introduces a ―great‖ variation in degree and in kind from
other subsection (c) offenses, and cannot be considered a
―traditional sentencing factor.‖ See 530 U.S. at 124; Jones,
526 U.S. at 233, 243-44. Additionally, just as the significant
step up in the mandatory minimum for machinegun use – 25
years – would have posed ―significant constitutional
questions‖ if premised on a sentencing factor, Castillo, 530
U.S. at 124, exposure to life imprisonment and the death
penalty in § 924(j) would as well. See Jones, 526 U.S. at 233,
239-52. In sum, these characteristics, in addition to locating §
924(j) in a wholly separate subsection rather than integrating
it into § 924(c), strongly suggest that Congress intended the
death of a person to be considered an element of a discrete
offense – an offense provided by § 924(j).

51
increased sentence provided as a function of a sentencing
factor, as in § 924(c)(1)(A)(iii), see Harris v. United States,
536 U.S. 545, 552-54 (2002), or an element of a separate
offense, as in § 924(c)(1)(B)(ii), see Castillo v. United States,
530 U.S. 120, 125-26 (2000). Nor do we think that, where an
offense is defined jointly by two statutory provisions, a
sentence can only be ―imposed under‖ one of them. Rather,
we are persuaded that a subsection (j) sentence qualifies as a
sentence ―imposed under‖ subsection (c), even though it is
also ―imposed under‖ subsection (j), because they are part
and parcel of the same statutory scheme, and jointly provide
the legal basis for the sentence. Simply put, because a §
924(j) sentence is imposed on a defendant for violating
subsection (c), such a sentence is ―imposed under‖ subsection
(c).18

Nevertheless, we do not think that this is the proper
case to decide the question. First, the government expressly
stated at argument that it considered § 924(j) to constitute a
separate offense and, consistent with this view, specifically
charged a § 924(j) offense in Count Six of the indictment.
Second, in its instructions to the jury, the District Court
included the death of a person as an element of the § 924(j)
offense, thereby obviating any possibility that the exposure to
an increased maximum sentence compromised due process,
which would be the central issue implicated by our decision.
See Jones, 526 U.S. at 232.
18
This is also consistent with the indictment, which
charged Berrios with a violation of § 924(c) along with a
violation of § 924(j).

52
 We find the Eleventh Circuit‘s reasoning to the
contrary unpersuasive. See Julian, 633 F.3d at 1253. In
concluding that a subsection (j) penalty is not ―imposed
under‖ subsection (c) because subsection (j) ―provided
[defendant‘s] sentence,‖ the Eleventh Circuit looked to
―decisions of our sister circuits that have declined to read
section 924(o), which punishes ‗conspir[acies] to commit an
offense under subsection (c),‘ as requiring consecutive
sentences.‖ Id. But neither United States v. Clay, 579 F.3d
919, 933 (8th Cir. 2009), nor United States v. Stubbs, 279
F.3d 402, 405-09 (6th Cir. 2002), overruled on other grounds
by United States v. Helton, 349 F.3d 295, 299 (6th Cir. 2003),
the two cases on which Julian relies, are analogous. In those
cases, the defendant was charged and convicted of a § 924(o)
offense, but sentenced under § 924(c), thereby posing a
severe problem under Apprendi v. New Jersey, 530 U.S. 466
(2000). See Stubbs, 279 F.3d at 408-09. Here, on the other
hand, as in Julian, the defendant was convicted and sentenced
under the same provision, § 924(j), thereby implicating none
of the concerns underlying those decisions. Moreover,
§ 924(o)‘s relationship to § 924(c) is easily distinguishable
from that of § 924(j): § 924(o) creates a conspiracy offense,
which is by nature inchoate, and therefore does not require
that the defendant actually commit the underlying crime. See
Iannelli v. United States, 420 U.S. 770, 777 (1975). In that
regard, a § 924(o) sentence, unlike § 924(j), is in no way
dependent on a § 924(c) violation, and therefore provides no
guidance for our analysis here.

Based on our reading of the statutory scheme, we
conclude that Congress intended a defendant who violates

53
subsection (c) to be subject to enhanced sentences by virtue
of the consecutive sentence mandate. A defendant who
violates subsection (j) by definition violates subsection (c),
and therefore is subject to the mandate, regardless of whether
§ 924(j) constitutes a discrete criminal offense from § 924(c).
And when Congress required proof of a § 924(c) violation
before imposing the penalties listed under § 924(j), it
intended to include a subsection (j) penalty within the scope
of those sentences ―imposed under‖ subsection (c). Finding
that Congress clearly intended to impose cumulative
punishment for a violation of subsection (j) and any other
offense, see Albernaz, 450 U.S. at 344, we reject Berrios‘s
double jeopardy challenge accordingly.

IV.

For the foregoing reasons, we will affirm the
judgments of conviction and sentence.

54