2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 5-25-2004 

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w . v i l l a no va . e du/thir dc ir c uit_2004/683NOT PRECEDE NTIAL Case No 03-1963 UNIT ED STA TES OFAMERI CA; GOVERNMENT OFTHE VI RGI N IS LANDS

v. FABIAN TO WERS, Appellant

_________________________________ On A ppeal from the Un ited States District Co urt of the Virgi n Islands, St . Croix Divi sion (Crim. No. 02- cr-00057) Distri ct Judge: The Honorable Raymond L. Fi nch

_________________________________

Argued May 5, 2004
BE FO RE : BA RR Y, A M BR O a nd S M ITH , Circuit Judges , (Fil ed May 25, 2004) Martial A. Webster (argued) 116 Queen Cross Stree t Frederi ksted, St. Croi x, U.S. Vir gin Isl ands 00840 Co unse l for Ap pellan t David M. Nissman Alphonso G. Andrews, Jr . (ar gued) 1108 King Street , Suite 201 Christianst ed, St. Croix, U.S. Virgin I slands 00829 Counsel for

Appellee1 Th e D istrict Co urt h ad ju risdi ction pur sua nt to 18 U .S.C . § 32 31 a nd 4 8 U .S.C . §

161 2(c ), an d w e ex ercis e jur isdic tion pur sua nt to 28 U .S.C . § 12 91 a nd 4 8 U .S.C . § 1613a (c). 2 _____________ OPINI ON OF THE COURT

_____________ SM ITH , Circuit

Judge. Appellant

Fabian Tower s wa s con victed of p osses sion o f a fire arm b y a felon in violat ion of 18 U.S.C. § 922(g) (1) (the “f ederal stat

ute”), and of unauthorized poss ession of
a firearm in violation of 14 V .I.C. § 2253(a ) (the “local statute”). 1 He now challenges these convictions on two grounds: ( 1) that the char ges were multiplici tous and t herefore vi olate d the double je opa rd y clause of the Fift h Amendment; and (2) t hat the re was insuf

fici ent evidence to sust ain his co nvi ction . B ecause we conclude t hat the charges were not
mu ltip li citous and th at there wa s suff icient ev idenc e to su ppo rt his co nvictio n, w e w ill aff irm. I. Because we write o nly for the parties, we set forth only a bri ef recitati on of the facts. Appellant

Fabian Towers was on parol e on April 4, 2001, when the pi ckup truck i n which h e was a passenger

was pulled over

by the polic e. Accordi ng to the testi mony of Officer s Rolando Hu ertas an d W inston M arcus , Jr., and o f sev eral of the oth er pas seng ers in th e3

vehicl e, severalpeople who had been ri ding in the be d of the truck immediatelyfled. Officer Huertas further

testifie d that he saw Towers jump out of the bed of the t ruck, go to “the front passenger

door, t he right side of t he vehicl e, front

passenger

door, andhe went, re ach [sic] under his shi rt, and pulle d a gun out, and pas s [sic] to the f ront se at pass enger,” Veronica Santana. Officer Huert as tes tifi ed that when he saw Tow ers “pul l the weapon, ” he ye lled “gun” to ale rt hi s partner, drew his servi ce weapon and ordered Towers to the ground. Offi cer Huertas al so informed his partner when he discove red that Towers was wearing a bullet proof vest. A search of the truck, according to Officer Huertas, reveal ed a gun under the p asse nge r sea t and ano ther gun in th e tru ck b ed u nde r a b lack jack et. Although Of ficer M arcus testified that he did n ot see T ow ers w it h t he gun, he confirmed that Offi cer Huerta s had sh outed the word “gun.” He also testi fied that Huerta s told him To we rs w as w earin g a b ullet pro of v est. Towers denied pass ing the gun to Sant ana, and San tana te stified th at she had not rec eived the gun from Towers. The dri ver of the vehicl e, Eve rton K nigh t, testified th at he d id no t see T ow ers giv e anyth ing to S antana bec aus e he “w as f ocu sed on t he p olice off icer.” The gov ernm ent ind icted T ow ers on eight c oun ts. He wa ived h is right to a ju ry, and tri al commenced on July 24, 2002. The Dis tri ct Court dis missed count s thre e through ei ght at tri al when the Government of the Virgi n Islands would not produce t he records of

Officer Jose Rodriguez, whose testimony was central to those charges. The Distri ct Judge convicted Tow ers on counts one and two, possess ion of a fire arm by a f elon (under

the feder al st atute )4

and unauthori zed possess ion of a fire arm (under t he localstat

ute), respectively . Towers was sentence d to 11 5 m onth s on th e fed eral co unt a nd 15 ye ars on the localcount, to run
concu rre ntly , followed bythree y ears of s upervis ed rele ase. The j udge also i mposed a specialassess men t o f $100 a gainst Towers and fined hi m $1,000, t o be paid through par ticip ation in th e In ma te F inan cial R esp ons ibility P rog ram . II. Tow ers argues that the indict ment vi o lated h is right to b e pro tected from dou ble jeopardy because the charges were mul tipl icitou s in that t he localstat

ute cont ained an enhancementprovisi on for possessi on by a fel on. This Court undertake s de novo review of questi ons of

law
. United Statesv. River a Constr. Co. , 863 F.2d 293, 295 n.3 (3d C ir. 1988). The rule governing multipli city in an indi ctment was set forth bythe Suprem e Co urt i n Blockburger

v. Un ited Sta te s , 28 4 U.S. 299 (1932) : “[W]here t he same act or

trans acti on consti tutes a violation of two distinct s tatutory provisi ons, the test to be appl ied to de termine whether there are two offense s or onlyone, i s whether eac h provisi on requires proof of a fa ct which the o ther

does no t. ” 284 U.S. at 304 ; see als o United Stat es v. Hodge , 211 F.3d 74, 78 (3d Cir. 2000) (“To determine whether t he offenses gr ow out of the same occur re nc e, we applythe te st set

forth i n Blockburger .”). “[I]f ea ch stat ute requires proof

of an additional factwhich the other does not, an acqu ittal or co nvictio n un der eith er statute does not exempt the defendant fr om prosecuti on and punishment under the othe r.” Blockburger , 284 U.S. at2 Both parti es agree, and it i s settled la w, that “the Virgi n Islands and the fe deral government ar e considered one soverei gnty for the pur pose of dete rmining whethe r an individual m ay be punished under b oth Virgin Islan ds and U nited States statutes for a simil ar offense growing out of the same occurre nce.” Hodge , 211 F.3d at 78 (quoti ng Go v’t of the V.I. v. B rathw aite , 782 F.2 d 39 9, 40 6 (3 d C ir. 19 86) ). 5 304 (citations an d quotation marks o mitted). 2 When apply ing the Blockburger test, cou rts look to t he offenses i n the abst

ract r ather than to the fa cts of th e pa rticu lar ca se. Bra thwa ite , 782 F.2d at 407 n.8. I n this case, when the local and federalstat utes are compared—even ignoring t he requirement in t

he federal statute that t

he defendant be a f

elon and the enhancement avai lable under the local sta tute if the defendant i s a felon—the two st atute s each require proof of an additional e lementthat t he otherdoe s no t. Sp ecif ically, u nlik e the fed eral s tatut e, the lo cal st atute requires that the firearm be o per able and that i t be c arrie d ille gally, United Stat es v. Blyden , 740 F. Supp. 376, 380 (D.V.I. 1990). Li kewise, t he fed eral s tatute requires posses sion “i n or affecting
com me rce,” see United St ates v. Dodd , 225 F .3d 34 0, 344 (3d C ir. 2000 ), wh ile th e local statu te do es n ot. Tow ers argues that “becaus e of the uni que size, location and limi ted res ources of the Virg in Island s, it is axiom atic that no firearm is manuf actured in the V irgin Islands.” To wers Br. at 15-16. Becaus e w e look at the o ffen ses in th e abs tract, w e nee d no t resolv e this questi on. It matters onl y that the federal stat ute, and not the local stat ute, requires that

the gun travelin or affe ct interst ate commerce. The charges of which Towers was convi cted
we re th eref ore not mu ltiplic itou s an d hi s do ubl e jeo par dy righ ts w ere n ot v iolat ed.6 III. Tow ers further

argues t hat the evidence was insuf ficien t to susta in his conviction. In reviewing a clai m of insuff icie nt evi dence, t

his Court

employs a substantialevidence standar d, i.e . , wh eth e r there is s ubstantial evi dence that, when viewed in the light most favo rable to the g over nm ent, w ould allow a rationaltri er of fact to find t he essential elem ents of the cri me beyond areas ona ble d oub t. United Statesv. Aguilar , 843 F.2d 155, 157 (3d Cir. 1988). The testimo ny of ev en on e indiv idual is suffici ent to s atis fy t he substant

ial e vidence standar d, so long as tha t tes timonywould allow the finder of f act t o find the essential elem ents of the crim e be yond a rea son able dou bt. See , e.g., United Stat es v. Prove nzano , 620 F.2d 985 , 999 ( 3d C ir. 1980 ); Jacobs v. Redman , 616 F.2d 1251, 12 55 (3d C ir. 1980). In this cas e, not o nly did Officer Hu ertas testif y that he sa w T ow ers ha nd th e gun to Santana, but Officer

Marcus’s te sti mony corr oborated Offi cer Huerta s ’s test imony i n that OfficerMarcus heard him y ell out “gun,” saw him apprehend Towers and verifie d that a gun
was found where S anta na had been sitting. Kn ight did not co ntradict Off icer Hue rtas’s testimon y and he test

ifie d that t

here had not

been a gun in hi s truc k prior to Towers ri ding in it t hat day . Although Tow ers’s and Santana’s testimony conflicted with Officer Huertas’s,
our role i s not t o weigh evidence or determi ne the cre dibil ity of wit nes ses. United Stat

es v. Casper , 956 F.2d 416, 421 ( 3d Cir. 1992) . Officer Huertas’ s test

imony al one would h a ve been suffici ent fora rati onal trier of fa ct to f ind that t he essential e lements of the cri me had been establ ished bey ond a reason able d oubt, a nd here the record s hows that t here was7

sign ifica nt ad ditio nal c orro bor ating testim ony. IV. Because we conclude that the char ges were not mult ipli citous and the evi dence was suffici ent to convic t Towers of viol ating 18 U. S.C. § 922(g) (1) and 14 V .I.C. § 225 3( a) , w e will af firm th e judg men t of the Distric t Cou rt.