2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-4-2002

Govt of VI v. Viust

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2557

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 01-2557 

 ___________ 

 GOVERNMENT OF THE VIRGIN ISLANDS 

 

 v. 

 

 ALEXANDER VIUST, 

 Appellant 

 

 ___________ 

 On Appeal from the District Court of the 

 Virgin Islands, Appellate Division 

 (D.C. Crim. App. No. 96-242-1) 

 

District Judges: The Honorable Raymond L. Finch; the Honorable Thomas K. Moore; 

and the Honorable Patricia D. Steele, Territorial Court Judge, sitting by designation 

 ___________ 

 Submitted Pursuant to LAR 34.1(a) 

 Monday, May 13, 2002 

Before: AMBRO and FUENTES, Circuit Judges, and GARTH, Senior Circuit Judge 

 (Opinion Filed: June 4, 2002) 

 

 

 ___________________ 

 _______________________ 

 

 OPINION OF THE COURT 

 ________________________ 

FUENTES, Circuit Judge: 

 After a jury trial in the Territorial Court of the Virgin Islands, defendant, 

Alexander Viust, was convicted of one count each of first degree murder and first degree 

assault. Viust was sentenced to life imprisonment for the murder conviction and a fifteen 

year term for the assault conviction. On appeal to the District Court of the Virgin Islands, 

Appellate Division, Viust challenged, among other things, the trial court’s denial of his 

pretrial motion to suppress evidence against him and the trial court’s denial of his motion 

for a new trial based on newly discovered evidence. 

 In a per curiam opinion, the Appellate Division affirmed Viust’s conviction. See 

Anderson v. Gov’t of the Virgin Islands, Crim. App. No. 1996-242 (D.V.I. 2001). Upon 

a thorough review of the record on appeal, we discern no error and, therefore, we affirm 

the judgment of the Appellate Division. 

 I 

 On November 30, 1994, the Government filed an information charging appellant 

Alexander Viust with murder in the first degree of Malik Meyers and assault with a 

deadly weapon upon George Van Holten, each in relation to a shooting that took place 

on January 9, 1994, in the Paul M. Pearson Gardens Housing Complex ("PMP"). The 
government contended that the shootings were the result of a rivalry between two 

competing street gangs, the "West Side Posse" and the "Hospital Ground Posse," and 

that Robbie Smalls, the leader of the West Side Posse, had ordered the killing of Meyers 

and Van Holten. 

 The government’s case against Viust relied heavily on the testimony of Viust’s 

cousin, Danny Guzman. The trial testimony established that on January 8, 1995, Viust, 

his co-defendant Avery Anderson, Robbie Smalls and one other individual, all members 

of the West Side Posse, attended a jam session above a Wendy’s restaurant in St. 

Thomas. At the jam, Viust saw his cousin, Danny Guzman, and told him to leave 

because "something was going down." Guzman testified that he saw that the four were 

armed with guns and so decided to heed Viust’s advice and to leave the area. As he was 

leaving, he saw the four men, joined by one other, conferring at a street corner. 

 Meanwhile, Meyers and Van Holten, whom the police believed to be members of 

the Hospital Ground Posse, left the jam and walked toward home, crossing through PMP. 

Danny Guzman happened to be walking behind the two at some distance. Guzman 

testified that he next saw Viust and Anderson run toward Meyers and Van Holten as they 

crossed a basketball court in PMP. Guzman stated that Viust had a gun in each hand, one 

a 9 mm and the other a 32 caliber, and that Anderson carried a TEK-9, a semiautomatic 

pistol that uses a 10 to 50 round magazine. 

 Guzman saw Viust run to the bleachers along the basketball court and begin 

firing while Anderson ran directly behind Meyers and Van Holten and opened fire. 

Meyers was shot and killed instantly, while Van Holten was shot fifteen times and 

seriously injured. 

 Immediately after the shooting, Guzman walked away from the basketball court, 

toward his aunt’s apartment in PMP. As he approached, he ran into Viust, who also lived 

there. Guzman saw two handguns stuck in Viust’s waistband. Guzman exclaimed, "I just 

saw what happened." Viust replied, "I ain’t got nothing to do with it. Partner want to do 

it by [him]self. Avery (Anderson) deal with it [him]self." 

 As this shooting was taking place, Smalls, the West Side Posse’s leader, walked 

up to a truck full of young men in Mandela Circle and shot into it, killing one person and 

wounding another. Smalls was then shot himself by an off-duty police officer and chased 

in the direction of PMP. While searching for Smalls, police came upon Meyers and Van 

Holten, sprawled on the ground near the basketball court in PMP. 

 Homicide Detective Granville Christopher responded to the PMP shooting and 

then proceeded to the hospital to locate and interview witnesses. In the hospital parking 

lot, Christopher found about twelve witnesses to the Mandela Circle shooting, standing 

near the truck into which Smalls had shot. The witnesses began to describe to 

Christopher what had occurred. They all claimed to have seen a "Spanish or Arab" 

looking man conferring with Smalls immediately prior to the shooting. 

 While Christopher was speaking to these witnesses, Viust pulled up to the 

hospital, in a car that Christopher recognized was owned by Smalls. Several of the 

witnesses immediately identified Viust as the "Spanish or Arab" looking man who had 

been with Smalls immediately prior to the truck shooting. They yelled to Christopher to 

"stop the car! Stop the car! That guy was in the shooting!" Based on these statements and 

his knowledge of recent gang-related activity between the two rival "posses," 

Christopher arrested Viust in connection with the Mandela Circle murder. 

 While Viust was in custody, police performed a gunshot residue test on his hands. 

Although the results of that test were positive, Viust was released soon thereafter. He 

was later picked up and, in November 1994, was charged with the murder and assault at 

PMP. 

 II 

 On April 5, 1995, Viust filed a motion to suppress evidence, namely the results of 

the gunshot residue test. Viust claimed that the police had lacked probable cause when 

they had initially arrested him for the Mandela Circle truck shooting. As a result, Viust 

argued, any evidence obtained with regard to that murder was inadmissible as the fruit of 

an illegal arrest. On March 2, 1996, the Territorial Court denied Viust’s motion to 

suppress the results of the gunshot residue test. A motion to reconsider that decision was 

also denied by the Territorial Court. 

 On May 20, 1996, after a seven day jury trial, Viust was convicted, along with codefendant Anderson, of the murder of Meyers, and of aggravated assault against Van 
Holten. On May 24, 1996, Viust and Anderson filed a motion for a new trial, pursuant to 

Fed. R. Crim. P. 33, claiming that the Government had denied them the opportunity to 

interview, prior to trial, Danny Guzman ("Guzman"), an eyewitness to the shooting, who 

later testified for the Government at the trial. 

 On July 10, 1996, both Viust and Anderson were sentenced to life imprisonment 

for the murder charge and fifteen years for the assault charge. On August 9, 1996, Viust 

moved to "expand and supplement" his motion for a new trial to include allegedly newly 

discovered evidence. Viust claimed to have only recently discovered the identity of 

Andrew "Danny" Williams, a friend and co-eyewitness with Guzman to the shooting. 

Viust also offered Danny’s newly obtained affidavit, containing statements that 

contradicted Guzman’s testimony. 

 On September 20, 1996, the Territorial Court denied Viust’s motion for a new 

trial. The Court determined that Viust’s failure to discover "Danny’s" identity prior to 

trial was due primarily to the defendant’s lack of diligence rather than to any alleged 

intransigence on the part of the Government. 

 On October 9, 1996, Viust timely filed an appeal to the District Court of the Virgin 

Islands, Appellate Division. Viust presented four claims, including two that are relevant 

to this appeal. The District Court rejected all of Viust’s arguments and upheld his 

conviction by the Territorial Court. 

 III 

 The District Court for the Virgin Islands, Appellate Division, had jurisdiction to 

review the orders of the Territorial Court under 4 V.I.C. 33. We exercise jurisdiction 

over Viust’s appeal from the Appellate Division under 48 U.S.C. 1613a (c). Viust now 

challenges the trial court’s denial of his pretrial motion to suppress evidence and the trial 

court’s denial of his motion for a new trial based on newly discovered evidence. Our 

review of a determination of probable cause for a warrantless arrest or search is made de 

novo. United States V. Harple 202 F.3d 194, 196 (3d Cir. 1999). We review a trial 

court’s denial of a Rule 33 motion for a new trial based upon newly discovered evidence 

for abuse of discretion. See Gov’t of the Virgin Islands v. Lima, 774 F.2d 1245 , 1250 

(3d Cir. 1985) 

 IV 

 We turn first to Viust’s contention that the Territorial Court erred in denying his 

motion to suppress the results of the gunshot residue test. Viust argues, once again, that 

the police had lacked probable cause when they arrested him for the Mandela Circle 

shooting and, as a result, evidence taken while Viust was under arrest for that crime was 

inadmissible as the fruit of an illegal arrest. 

 In reviewing Viust’s motion to suppress, both the District Court and the Territorial 

Court concluded that, "taken in their totality, the facts and circumstances known to the 

arresting officer at the time Viust was arrested were sufficient to warrant a prudent 

person to believe that Viust had committed an offense in connection with the Mandela 

Circle shooting." App. at 18. See also Merkle v. Upper Dublin School District, 211 F.3d 

782, 789 (3d Cir., 2000) (Probable cause to arrest exists where "[at the time] the arrest 

[is] made... the facts and circumstances within the arresting officer’s knowledge and of 

which they had reasonably trustworthy information were sufficient to warrant a prudent 

man in believing that" the arrestee had violated the law). 

 After a thorough review of the record, we affirm the rejection of Viust’s motion to 

suppress the gunshot residue evidence for substantially the same reasons stated by the 

Territorial Court. We write further on this subject simply to note that this Court has 

previously concluded that the "knowledge of a credible report from a [single] credible 

eyewitness" can be sufficient to demonstrate probable cause for a warrantless arrest. Id., 

at 790. The statements of several of the eyewitnesses to the Mandela Circle shooting 

identifying Viust, along with Detective Christopher’s prior knowledge of Viust’s 

affiliations and recent gang-related violence, were more than enough to meet this 

Circuit’s standard for probable cause. 

 We next address Viust’s contention that the Territorial Court abused its discretion 

in denying his Rule 33 motion for a new trial that was based upon the allegedly newly 

discovered evidence, namely the identity and affidavit of "Danny." In denying Viust’s 

motion, the Territorial Court noted that the defense had in its possession, at least six 

months prior to trial, Guzman’s statement that he was with a friend, also named "Danny," 

on the night of the shooting. The Court further reasoned that: 
 Defendant Viust could easily have discovered Williams’ identity. The 

 mention of "Danny" in the presence of Guzman on the night of the 

 crimes would [have] implicate[d] Williams, a good friend of both 

 Guzman and Viust, as a plausible choice. Viust knew Guzman was 

 coming to testify against him; therefore, all of Guzman’s statements 

 warranted intense scrutiny for purposes of cross-examination. Thus, the 

 information was available to Viust. Knowing Williams’ identity, how 

 long would it take for someone to find "a good friend of many years" 

 on St. Thomas? 

 

App. at 867. Accordingly, the Territorial Court held that Viust had failed to meet his 

burden for obtaining a new trial based on newly discovered evidence. 

 On appeal, the District Court determined that the record clearly supported the trial 

court’s finding that Viust’s counsel was served by mail with Guzman’s statements at 

least six months before trial, and that the defense had ample opportunity to discover the 

identity of "Danny." The Court further reasoned that, even assuming that defense 

counsel did not realize Danny’s identity and significance until Guzman testified at trial, 

nothing in the record showed that defense counsel either requested or were denied any 

additional time to locate this supposedly key eyewitness prior to the end of trial. 

Therefore, the District Court concluded that "given the facts [that were] before the 

[Territorial Court], we can easily conclude that the trial judge did not abuse his 

discretion." App. at 31. 

 We find the analysis of this issue by both the Territorial and the District Court to 

be well-reasoned and persuasive and we therefore affirm substantially for the reasons 

stated by each. 

 V 

 In conclusion, we now affirm the decision of the District Court, Appellate 

Division, for the reasons stated herein. 

 

 

_____________________________ 

TO THE CLERK OF THE COURT: 

Kindly file the foregoing Opinion. 

 By the Court, 

 /s/ Julio M. Fuentes 

 Circuit Judg