2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-14-2009

Govt of the VI v. Muiruri

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4166

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 08-4166

____________

GOVERNMENT OF THE VIRGIN ISLANDS

v.

SWALEH MUIRURI, 

Appellant

____________

On Appeal from the District Court of the Virgin Islands, 

Division of St. Thomas & St. John, 

Appellate Division

(D.C. Crim App. No. 2002-36)

Honorable Raymond L. Finch, 

Honorable Curtis V. Gomez, 

Honorable Patricia D. Steele

____________

Argued April 21, 2009

Before: BARRY, HARDIMAN and COWEN, Circuit Judges.

(Filed: August 14, 2009)

Tiffany V. Robinson, Esq. [Argued] 

Dolace McLean, Esq.

Office of Attorney General of Virgin Islands

Department of Justice

34-38 Kronprindsens Gade, GERS Complex, 2nd Floor

Charlotte Amalie

St. Thomas, VI 00802

Attorneys for Appellee

Adam K. Gusman, Esq. [Argued]

Christopher A. Kroblin, Esq.
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Law Offices of Karin A. Bentz

18 Dronningens Gade

Suite 8

St. Thomas, VI 00802

Attorneys for Appellant

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Swaleh Muiruri appeals his judgment of conviction, arguing that the District Court

committed reversible error when it admitted hearsay testimony into evidence. We agree

that the trial court erred in this regard and that these errors were not harmless. Since

Muiruri had been incarcerated for some eight years, on April 22, 2009, the day after oral

argument, we vacated Muiruri’s conviction and ordered his release. We now explain the

reasons in support of our judgment.

I.

On the night of August 7, 2000, Dawn Fiscus stormed out of a bar in the Red Hook

area of St. Thomas, U.S. Virgin Islands, following an argument with her husband. While

Fiscus was walking down the road, Muiruri pulled alongside and offered her a ride in his

unlicensed “taxi.” Fiscus declined Muiruri’s offer. Soon thereafter, Muiruri returned and

implored Fiscus to allow him to drive her home. Fiscus entered the vehicle and the pair

drove to several locations where they repeatedly had sexual intercourse.
The jury acquitted Muiruri of two kidnapping charges, apparently crediting his 1

testimony over Fiscus’s testimony in this respect.

3

Muiruri testified that Fiscus freely got into his vehicle and that the sex was

consensual. Fiscus, on the other hand, claims that Muiruri forced her into his vehicle at

gunpoint and then raped her repeatedly. At trial, Fiscus admitted that she told Muiruri

that the sex was “very good,” “wonderful,” and “the best [she] ever had.” App. 319. 

Fiscus also made other statements consistent with a consensual sexual encounter,

including thanking Muiruri “for a lovely evening,” App. 328, 332, and instructed him to

drop her off outside the entrance to her condominium complex so Muiruri would not be

seen by the security guard and so Fiscus’s husband would not learn of their encounter. As

soon as Muiruri dropped her off, however, Fiscus ran to the guard shack screaming that

she had been raped and shouting out Muiruri’s license plate number.

Fiscus testified that the statements she made consistent with a consensual sexual

encounter were merely a facade to pacify her attacker, as she had been taught in nursing

school. She testified that Muiruri abducted her at gunpoint and physically restrained her

from escaping several times. 1

In sum, the case presented contradictory factual scenarios that required the jury to

discern whether the accuser’s testimony that the encounter was not consensual was

credible and, if so, whether guilt had been proven beyond a reasonable doubt.

Over Muiruri’s repeated objections, the trial judge admitted into evidence: (1) a

written statement by Fiscus detailing her version of the encounter; (2) a security guard’s
4

out-of-court statement to Fiscus’s husband that she had been raped; and (3) testimony

about the investigation from a law enforcement officer who visited the crime scene with

Fiscus. The jury returned a mixed verdict, convicting Muiruri of unlawful sexual contact,

one count of assault, and two counts of rape, but acquitting him of false imprisonment

and kidnapping, kidnapping for rape, another count of assault, and two other counts of

rape.

Pursuant to 48 U.S.C. §§ 1613a(a)-(b), Muiruri appealed his conviction to the

Appellate Division of the District Court of the Virgin Islands. Six years later, the

Appellate Division affirmed and Muiruri appealed to this Court pursuant to 28

U.S.C. § 1291 and 48 U.S.C. § 1613a(c).

II.

Muiruri argues that the aforementioned out-of-court statements were inadmissible

under the hearsay rule. “Whether a statement is hearsay is a legal question subject to

plenary review. If the district court correctly classifies a statement as hearsay, its

application of the relevant hearsay exceptions is subject to review for abuse of

discretion.” United States v. Price, 458 F.3d 202, 205 (3d Cir. 2006) (citations omitted). 

The deferential abuse of discretion standard is met only when “the district court’s action

was arbitrary, fanciful or clearly unreasonable”; in other words, when “no reasonable

person would adopt the district court’s view.” United States v. Frazier, 469 F.3d 85, 87-

88 (3d Cir. 2006).
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A.

The first question presented is whether the written statement Fiscus gave to the

police the day after the encounter was admissible under Federal Rule of Evidence

801(d)(1)(B), which excludes prior consistent statements from the definition of hearsay. 

Although Rule 801 defines hearsay and we generally conduct plenary review of hearsay

determinations, Price, 458 F.3d at 205, we have held that a trial court’s ruling on the

admissibility of prior consistent statements is reviewed for abuse of discretion because

“[t]his inherently factual inquiry does not have a sufficient legal component to warrant

plenary review.” Frazier, 469 F.3d at 87.

Under Rule 801(d)(1)(B), an out-of-court statement is not hearsay if it is

“consistent with the declarant’s testimony and is offered to rebut an express or implied

charge against the declarant of recent fabrication or improper influence or motive.” Id. at

88. The following requirements must be satisfied for a prior consistent statement to be

admitted into evidence: “(1) the declarant must testify at trial and be subject to crossexamination; (2) there must be an express or implied charge of recent fabrication or

improper influence or motive of the declarant’s testimony; (3) the proponent must offer a

prior consistent statement that is consistent with the declarant’s challenged in-court

testimony; and (4) the prior consistent statement must be made prior to the time that the

supposed motive to falsify arose.” Id.
6

Fiscus testified at trial, her testimony was generally consistent with her written

statement, and the defense impugned her testimony by suggesting that the rape allegations

were concocted to garner sympathy from her husband after a fight. Only the “pre-motive

requirement” is at issue here. “[T]he premotive inquiry is interrelated with the

fabrication/motive/influence inquiry, and should for the most part be left to the sound

discretion of the district court.” Id. at 93.

The Supreme Court squarely addressed the pre-motive requirement in Tome v.

United States, 513 U.S. 150 (1995), stating: “Prior consistent statements may not be

admitted to counter all forms of impeachment or to bolster the witness merely because she

has been discredited.” Id. at 157. The question is whether an out-of-court statement

rebuts the alleged link between the declarant’s purported motive to lie and her subsequent

testimony. Id. The pre-motive requirement exists because “[a] consistent statement that

predates the motive is a square rebuttal of the charge that the testimony was contrived as a

consequence of that motive . . . [but] out-of-court statements that postdate the alleged

fabrication . . . refute the charged fabrication in a less direct and forceful way.” Id. at

158. This distinction is necessary because “[i]f . . . Rule [801(d)(1)(B)] were to permit

the introduction of prior statements as substantive evidence to rebut every implicit charge

that a witness’ in-court testimony results from recent fabrication or improper influence or

motive, the whole emphasis of the trial could shift to the out-of-court statements, not the

in-court ones.” Id. at 165. Tome acknowledged that “it may be difficult to ascertain
7

when a particular fabrication, influence, or motive arose,” but concluded that courts are

nevertheless capable of making the determination. Id. at 165-66. Following Tome, we

held in Frazier that “[t]he premotive requirement will be satisfied if a district court can

reasonably determine from the record a range of time when a motive to fabricate could

have arisen after the prior consistent statement.” 469 F.3d at 93-94.

In this case, the trial judge initially ruled that Fiscus’s written statement was

inadmissible. After a sidebar conference, he abruptly reversed course:

I am going to reconsider my ruling. I believe this is a prior statement that

has been offered as consistent with the two prior statements to rebut and to

challenge the declarant to a recent fabrication and motive or one of the

identification of the persons made after receiving that statement, and the

person she described to the defendant. And regardless to what the theory is

. . . at least as to her motive, you’re arguing that her motive for doing this is

that she complained to her husband, so I’m going to allow it. I will allow

the statement.

App. 363-64.

The Appellate Division affirmed the trial judge’s ruling in cursory fashion,

concluding that Fiscus’s written statement was not hearsay under Rule 801(d)(1)(B)

because “Muiruri’s entire defense was premised on the theory that [Fiscus] fabricated the

rape and lied to the police.” App. 55-56.

The trial judge and the Appellate Division failed to address the determinative

issue: whether Fiscus’s purported motive to falsify her testimony arose before or after she

gave her statement to the police. On appeal, the Government claims that “[t]he record

does not support the Appellant’s contention that the victim had a motive to accuse him of
8

rape prior to her statement to the police to get sympathy from her husband or conceal an

affair with the Appellant.” Appellee’s Br. at 16. Yet Muiruri’s defense has always been

that Fiscus was motivated by a fight with her husband that occurred shortly before her

encounter with Muiruri, the day before her statement to police. This theory has plain

support in the record; neither the fact that Fiscus had a fight with her husband nor the

relative timing of the fight and her encounter with Muiruri are in dispute. Thus, Muiruri

has alleged a motive to fabricate arising before Fiscus gave her statement to the police. 

Accordingly, Fiscus’s written statement constituted inadmissible hearsay under Rule

801(d)(1)(B) and its admission constituted an abuse of discretion.

B.

We next consider the testimony of John Hawkins, who overheard the security

guard at Fiscus’s condominium complex tell Mr. Fiscus: “Your wife has been raped.” 

App. 682.

The trial judge and the Appellate Division accepted the Government’s contention

that the security guard’s out-of-court statement was not offered to prove the truth of the

matter asserted because it was offered to explain why Mr. Fiscus stopped searching for

his wife and went to the hospital. Whether hearsay evidence is offered to prove the truth

of the matter asserted is “a question of law subject to plenary review.” United States v.

Sallins, 993 F.2d 344, 346 (3d Cir. 1993). In Sallins, we noted:

Whether a disputed statement is hearsay frequently turns on the purpose for

which it is offered. If the hearsay rule is to have any force, courts cannot
9

accept without scrutiny an offering party’s representation that an out-ofcourt statement is being introduced for a material non-hearsay purpose.

Rather, courts have a responsibility to assess independently whether the

ostensible non-hearsay purpose is valid.

Id.

In this case, the Government’s justification is nothing more than a thinly veiled

pretext. The Government claims that the out-of-court statement was offered to explain

Mr. Fiscus’s activities after his wife’s encounter with Muiruri, but those activities are

utterly irrelevant. The fact that Mr. Fiscus was searching for his wife and eventually

found her at the hospital has no bearing on the question whether the sexual encounter

between Muiruri and Fiscus was consensual. To the extent that the witness’s testimony

provided context for the jury, its marginal utility could have been achieved without the

hearsay statement — which expressed a third-hand opinion regarding the ultimate issue in

the case — that Fiscus had been raped. On appeal, the Government makes no attempt to

explain how Mr. Fiscus’s actions were relevant, or why the hearsay statement was so

necessary to provide context that it was not intended to prove the truth of the matter

asserted.

In Sallins, the Government similarly argued that a radio conversation between

police officers was offered as context for the officer’s actions, not for the truth of the

assertion that a suspect fitting the defendant’s description was in the area. Id. We

concluded that the radio conversation was not admissible to provide context because the

information was of little relevance and, in any event, could have been provided without
10

the potentially prejudicial hearsay statement. Id. Morever, we held that even if the radio

conversation were admissible to provide context, it was clearly not offered for that

purpose: “The absence of a tenable non-hearsay purpose for offering the contents of the

police radio call establishes that the evidence could have been offered only for its truth

value.” Id. at 347.

As in Sallins, we are unable to discern a tenable non-hearsay purpose for the

security guard’s statement that Fiscus had been raped. We therefore conclude that the

statement was offered to prove the truth of the matter asserted. In light of the statement’s

obviously prejudicial character, the trial court abused its discretion in this regard as well.

III.

Having concluded that two hearsay statements were erroneously admitted into

evidence, we must determine whether these errors were harmless. Erroneously admitted

evidence is harmless if “it is highly probable that the improperly admitted evidence did

not contribute to the jury’s judgment of conviction.” Id. at 348. But “if one cannot say

. . . that the judgment was not substantially swayed by the error, it is impossible to

conclude that substantial rights were not affected,” and reversal is required. United States

v. Lopez, 340 F.3d 169, 177 (3d Cir. 2003) (quoting Government of the Virgin Islands v.

Toto, 529 F.2d 278, 283 (3d Cir.1976)).

The trial of this case hinged almost entirely on conflicting versions of events given

by Muiruri and Fiscus. The jury convicted Muiruri of unlawful sexual contact and two
In light of our holding, we need not address Muiruri’s argument that an 2

investigator’s testimony regarding her visit to the alleged crime scene constituted

11

counts of rape but acquitted him of two other counts of rape. Excluding the inadmissible

hearsay, the other evidence in the record would have sufficed to support the jury’s

verdict. But “[t]he inquiry cannot be merely whether, notwithstanding the error, there

was enough to support the conviction.” Lopez, 340 F.3d at 177 (quotations omitted). 

Where evidence is, as it was in this case, less than overwhelming, “we cannot help but

harbor a grave doubt that the erroneous admission of [hearsay] substantially influenced

the jury’s verdict.” United States v. Green, 556 F.3d 151, 158 (3d Cir. 2009). See also

Lopez, 340 F.3d at 177 (reversal required when the appellate court is “not confident that

the improperly admitted hearsay statements did not help to ‘cement’ the jury’s judgment

of conviction”).

Given the substantial weight that the jury had to place on Fiscus’s testimony to

convict Muiruri, the potential prejudice caused by inadmissible hearsay reinforcing her

version of events was great. A written report by the alleged victim and the conclusion of

a security guard that Fiscus had been raped likely tainted the jury’s decisionmaking

process. Therefore, we cannot hold that the trial court’s evidentiary rulings were

harmless.

IV.

For the foregoing reasons, we hold that the trial court’s evidentiary rulings

constituted reversible error, which required vacatur of Muiruri’s judgment of conviction.2
reversible error. We note, however, that should the Government subject Muiruri to

another trial, the trial court should ensure that any testimony by the investigator is limited

to her observations without repeating inadmissible hearsay statements made to her by

Fiscus during their visit to the alleged crime scene.

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