2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-23-2011

USA v. Jamaal Mike

Precedential or Non-Precedential: Precedential

Docket No. 10-1394

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Recommended Citation

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-1394

_____________

UNITED STATES OF AMERICA

v.

JAMAAL L. MIKE,

 Appellant

_____________

On Appeal from the District Court of the Virgin Islands, 

Division of St. Thomas and St. John

(Crim. No. 3-09-cr-00036-001)

District Judge: Honorable Curtis V. Gómez

_____________

Argued December 16, 2010

BEFORE: McKEE, Chief Judge, FUENTES and SMITH, 

Circuit Judges

(Opinion Filed: August 23, 2011)

Jesse A. Gessin, Esq

Gabriel J. Villegas, Esq. [ARGUED]

Office of Federal Public Defender

P.O. Box 1327, 51B Kongens Gade

Charlotte Amalie, St. Thomas, USVI 00804

Thurston T. McKelvin, Esq.

Office of Federal Public Defender

P.O. Box 223450

Christiansted, USVI 00822

Counsel for Appellant
2

Nelson L. Jones, Esq. [ARGUED]

Office of United States Attorney

5500 Veterans Building, Suite 260

United States Courthouse

Charlotte Amalie, St. Thomas, USVI 00802-6924

Counsel for Appellee

_____________

OPINION OF THE COURT

_____________

FUENTES, Circuit Judge.

Appellant, Jamaal Mike, was convicted by a jury of 

aiding and abetting the receipt of a firearm acquired outside 

his state of residency, a violation of 18 U.S.C. § 922(a)(3) and 

§ 924(a)(1)(D); and unauthorized possession of a firearm in 

violation of V.I. Code Ann. tit. 14, § 2253(a). He appeals 

these convictions, arguing that there were three problems with 

his trial. First, he says that the District Court erred when it 

failed to give use immunity to a co-defendant; second, he says 

that he is entitled to a judgment of acquittal because there was 

no evidence that the firearm he was convicted of possessing

was capable of discharging ammunition; and finally, he says 

that he was entitled to a judgment of acquittal based on an 

affirmative defense under Virgin Islands law. We find these 

arguments unpersuasive and, for the reasons set forth below, 

affirm the judgment of the District Court. 

I.

On April 10, 2009, Fenyang Ouma Francis put down a 

deposit to purchase an AK-47 rifle and two 30-round 

magazines at Rieg's Gun Shop in Orlando, Florida. He 

completed the purchase the next day. Ten days later, on April 

21, 2009, U.S. postal inspectors in San Juan, Puerto Rico, 

intercepted a package addressed to a man named Imon 

Thomas with a post office box in St. Thomas, Virgin Islands.

Their investigation revealed that the package's return address 

was false and that the post office box in the shipping address 

was not registered to Imon Thomas. Intrigued, the postal 

inspectors x-rayed the package and saw a firearm inside. 
3

After securing a search warrant, they opened the package and 

discovered an AK-47 covered in grease and two 30-round 

magazines. The postal inspectors then removed the weapon 

from the box and "dry fired" it to test whether it was operable. 

It was. After that, they removed the AK-47's firing bolt, 

placed it back in the box, and sent the firearm on its way to 

St. Thomas in a controlled delivery designed to apprehend the 

would-be owner.

The next day found the prospective gun owner, Jamaal 

Mike, travelling to the Frenchtown post office in St. Thomas 

with Lucas Reid, Jr., and Dwayne Hunte, a 17-year old 

juvenile that Mike and Reid had met along the side of the 

road. When the group arrived at the post office, Reid and 

Mike went inside while Hunte met his mother at a nearby 

McDonald's. After a few minutes Mike and Reid left the post 

office empty-handed, went back to Hunte, and drove to the 

Sugar Estate post office. There, Mike gave Reid a slip of 

paper with a tracking number on it. Reid and Hunte then 

entered the Sugar Estate post office to retrieve a package, but 

were told that the package was back at the Frenchtown post 

office. The group circled around to Frenchtown. When they 

arrived, Mike gave Hunte a slip of paper, this one with the 

name Imon Thomas written on it. Hunte and Reid went 

inside the post office and retrieved a card from a post office 

box belonging to Reid's father. Reid gave the card to Hunte,

who stood in line and handed the card to a postal employee. 

When the employee brought Hunte a package, Hunte signed 

for it under the name Imon Thomas. Reid and Hunte then 

carried the package to Reid's car, where Mike was waiting. 

So were the police. Once the package was placed in the car, 

federal agents approached the vehicle and arrested Reid, 

Mike, and Hunte, none of whom had a license to possess a 

firearm.

Francis was also arrested. He subsequently pleaded 

guilty to shipping a firearm in the mail and to transferring a 

firearm to an out-of-state resident. During his plea 

negotiations, he told his attorney that neither Mike nor Reid 

knew what was in the package he addressed to Imon Thomas. 

Francis's attorney told the Government that Francis would 

testify on Mike and Reid's behalf and the Government 
4

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

Mike subpoenaed Francis.

Francis moved to quash the subpoena the very next 

day, October 20. That same day—the first day of the trial—

Mike asked for a continuance to investigate Francis's offer to 

testify. The District Court denied the motion. Mike then 

asked the Court to grant Francis use immunity. The Court 

denied the motion, concluding that Francis's testimony would 

not be clearly exculpatory: "I don't think there's any basis for 

[use immunity] at this point. It sounds like it would be a 

credibility issue. And that's something that would take it, I 

think, out of the realm of clearly exculpatory, which I think is 

a baseline requirement in order to, for the Court to even go 

any further." (App. 174-75). Mike moved for a judgment of 

acquittal at the close of the government's case and again after 

the jury returned a verdict of guilty on both counts. The 

District Court denied the motions. Mike was subsequently 

sentenced to fifty-one-month sentences of imprisonment on 

each of the counts of conviction, to be served concurrently. 

Mike appeals the denial of each of the above motions. 

The District Court had jurisdiction pursuant to 18 U.S.C. § 

3231 and 48 U.S.C. § 1612. We have jurisdiction under the 

authority provided by 28 U.S.C. § 1291.

II.

Mike argues on appeal that the District Court was 

wrong to deny the request to give Francis use immunity. We 

review the District Court’s factual determinations regarding 

the likely effect of undisclosed information for clear error and 

its ultimate decision not to immunize a defense witness for an 

abuse of discretion. See United States v. Perez, 280 F.3d 318, 

348 (3d Cir. 2002).1 We see no error. The District Court did 

 

1 Our decision in United States v. Thomas, 357 F.3d 357 (3d 

Cir. 2004) did not set forth the standard of review. In that 

case, the appellant failed to present his judicial immunity 

argument to the district court. Id. at 362 (citing Fed. R. Crim. 

P. 52(b)); see also id. at 365-66. "Failure to object at trial, 

absent plain error, constitute a waiver of the issue for posttrial purposes." United States v. Tiller, 302 F.3d 98, 105 (3d 
5

not abuse its discretion when it declined Mike's request to 

grant Francis use immunity because the failure to grant 

Francis immunity did not deprive Mike of his constitutional 

due process right to present clearly exculpatory evidence 

necessary to obtain a fair trial.

The Fifth Amendment to the United States 

Constitution states that "[n]o person shall . . . be deprived of 

life, liberty, or property, without due process of law." U.S. 

Const. amend. V. In Chambers v. Mississippi, the Supreme 

Court recognized that this due process right is "in essence, the 

right to a fair opportunity to defend against the State's 

accusations." 410 U.S. 284, 294 (1973). For this reason, the 

Chambers court held that Mississippi's strict rules of 

evidence, which prevented Leon Chambers from crossexamining a witness who had confessed to the same crime 

and prevented him from entering into evidence other 

admissions of the witness's guilt, violated Chambers's right to 

due process by effectively denying him a fair trial. Id. at 285, 

302. 

Chambers recognizes the proposition that criminal 

defendants possess a "due process right to have clearly 

exculpatory evidence presented to the jury, at least when 

there is no strong countervailing systemic interest that 

justifies its exclusion." United States v. Herman, 589 F.2d 

1191, 1204 (3d Cir. 1978). That recognition proved to be the 

answer to the question presented in Government of the Virgin 

Islands v. Smith, 615 F.2d 964 (3d Cir. 1980): If a 

defendant's right to due process can be violated by strict rules 

of evidence that prevent a defendant from presenting clearly 

exculpatory evidence to the jury, can that same right also be 

violated by the failure to affirmatively grant immunity to an 

available defense witness who will not testify under grounds 

of self-incrimination when the witness is likely to offer 

clearly exculpatory testimony? Smith said "yes," observing 

that the latter violation is "not different in substance than the 

violation found in Chambers." Id. at 970. Indeed, cases like 

Chambers; Gideon v. Wainwright, 372 U.S. 335 (1963)

(holding that an indigent defendant cannot have a fair trial 

 

Cir. 2002). Thus, in Thomas, the scope of our review was 

limited to plain error.
6

without being provided counsel) and Brady v. Maryland, 373 

U.S. 83 (1963) (holding that a defendant cannot present an 

effective case when the government suppresses material

exculpatory evidence), recognize that a major purpose of a 

criminal trial is to search for the truth, and that this purpose is 

not advanced by rules that "turn the trial into a mere 'poker 

game' to be won by the most skilled tactician." Smith, 615 

F.2d at 971 (quoting Williams v. Florida, 399 U.S. 78, 82

(1970)). Thus, Smith highlighted the long-standing principle 

that the Fifth Amendment's Due Process Clause is violated 

when a defendant is deprived of "clearly exculpatory 

evidence necessary to present an effective defense." Id.

After precisely identifying the right at issue, the Smith

court focused on the means of protecting it, making the 

common-sense observation that "[a]ny remedy . . . must take 

into account the fact that a retrial would be meaningless 

unless the evidence in issue may be compelled." Id. In cases

where a defense witness invokes the Fifth Amendment for 

fear of self-incrimination, the only way to compel this 

evidence is to grant immunity. Id. See Kastigar v. United 

States, 406 U.S. 441, 462 (1972) (concluding that use 

immunity "is coextensive with the [Fifth Amendment] 

privilege and suffices to supplant it"). For this reason, the 

Smith court drew upon precedents describing the "inherent 

judicial power to grant witness immunity in order to vindicate 

constitutional rights" and concluded that judicially-granted 

immunity could serve to remedy these types of due process 

violations. Smith, 615 F.2d at 971 (citing, among other 

cases, Simmons v. United States, 390 U.S. 377 (1968)). 

However, because of the "unique and affirmative nature of 

the immunity remedy and fundamental considerations of 

separation of powers, grants of immunity to defense witnesses 

must be bounded by special safeguards and must be made 

subject to special conditions." Id. The Smith court imposed 

five such conditions, emphasizing that each must be met 

before the remedy of judicially-granted immunity is available:

[1] immunity must be properly sought in the 

district court; [2] the defense witness must be 

available to testify; [3] the proffered testimony 

must be clearly exculpatory; [4] the testimony 

must be essential; and [5] there must be no 
7

strong governmental interests which countervail 

against a grant of immunity.

Id. at 972.

Mike's appeal is focused on the availability of the 

remedy of judicially-granted immunity. The parties agree 

that the first two conditions for granting the remedy are 

satisfied. The battle is over the last three, with particular 

emphasis on the condition that the proffered testimony be 

"clearly exculpatory." 

Our decision in United States v. Thomas, 357 F.3d 357 

(3d Cir. 2004), guides our analysis as to whether Francis's 

testimony was clearly exculpatory. In that case, the namesake 

defendant was arrested after drugs were found behind the 

glove box of his car. Id. at 359. Thomas's theory was that the 

car dealer who sold him the car, and the car dealer's assistant, 

planted the drugs. Id. at 365. He called each of them to 

testify, but they invoked the Fifth Amendment and refused. 

Id. On appeal, Thomas argued that the district court should 

have granted the two witnesses immunity. Reviewing for 

plain error, we concluded that the district court properly 

declined to offer immunity because the witnesses' testimony 

would not have been "clearly exculpatory." Id. We observed 

that judicial immunity may be properly denied when the 

exculpatory nature of testimony is "at best speculative." Id.

(quoting United States v. Ammar, 714 F.2d 238, 251 n.8 (3d 

Cir. 1983)). In Thomas's case, the testimony of two other 

witnesses "undercut" his theory that drugs were planted and 

"undermine[d]" his assertion that he didn't know there were 

drugs in his car. Id. at 365 -66. Accordingly, "[b]ecause a 

credibility determination would have been required in order 

to determine which parties were more credible," the 

testimony of the witnesses Thomas wanted immunized 

"would not have been 'clearly exculpatory[.]'" Id. at 366.

The government says that the same is true in this case. 

Francis would have testified that he did not tell Mike what 

was in the package Mike helped pick up at the Frenchtown 

post office in the Virgin Islands. However, Hunte testified 

that Mike gave him a slip of paper with the name Imon 

Thomas written on it in order to identify the package he 

wanted. He further testified that, after their arrest and while 
8

detained, Mike told Hunte "all it is, is a haircut," and that 

Hunte understood this to mean that Mike wanted Hunte to 

take the rap because all it would mean for Hunte was a

juvenile conviction and a stay at the "Boy's Home." (App. 

171-72). According to the government, because the jury 

could have inferred from Hunte's statements that Mike knew 

what was in the package, Francis's testimony to the contrary 

would simply have created an issue of credibility, which it 

contends is not enough under Thomas to meet the condition 

that testimony be clearly exculpatory. 

The Government's reading of Thomas is expansive. Its 

view seems to be that testimony is never clearly exculpatory 

if the jury must weigh the credibility of the immunized 

witness against the credibility of other witnesses. This is not 

the law. In Smith we said that "[i]mmunity will be denied if 

the proffered testimony . . . is found to relate only to the 

credibility of the government's witnesses," 615 F.2d at 972

(emphasis added), and in Ammar, we remarked that judicial 

immunity is improper when the proffered testimony is "at 

best speculative," 714 F.2d at 251 n.8. Nothing in these cases 

rules out the possibility that a defense witness's testimony can 

be clearly exculpatory when it helps to establish, among other 

things, that a government witness's testimony is not credible.

Of course, we found no error in the failure to grant immunity 

in Thomas "[b]ecause a credibility determination would be 

required in order to determine which parties were more 

credible," 357 F.3d at 366, but this was not the sole reason for 

our decision. Elsewhere, we emphasized that there was other 

evidence to "undercut" and "undermine" Thomas's theory of 

the case. Id. at 365-66. 

Here, as in Thomas, there is evidence in the record 

undercutting the testimony Francis might have given and 

Mike's theory of the case. Hunte's testimony is one such 

piece of evidence. Mike's phone records are another. At trial, 

a postal inspector testified that Francis, Mike and Reid 

exchanged numerous telephone calls on the days the AK-47 

was purchased, the day the AK-47 was sent into the mail, and 

the day the AK-47 was picked up at the post office. (App. 

299-307). This testimony, too, undermines Mike's claim of 

ignorance. Thus, in Mike's trial, as in Thomas's, the jury was 

confronted with more than just a credibility determination. In 
9

both cases, the testimony from the witness the defendant 

wanted immunized may have helped the defendant, but it was 

far from necessary to ensure a fair trial. 

Since the five Smith conditions had not been satisfied, 

the District Court could not have granted immunity to 

Francis. A district court cannot abuse its discretion when it 

fails to give a remedy that is not in its power to give. 

Our holding should not be interpreted to foreclose 

judicially-granted immunity in similar cases, so long as the 

five Smith conditions are satisfied. Ultimately, the question 

of whether clearly exculpatory evidence is necessary to 

present an effective defense is a decision calling upon the 

sound judgment of the district court judge in a position to 

listen to the witnesses and evaluate the tenor of trial 

narratives. Our role is not to substitute the judgment we 

might reach after reading the record for the judgment of a 

district court judge who actually saw that record develop live 

in a courtroom. The law tolerates differences of opinion and 

our role on appeal is simply to make sure that those 

differences stay within certain bounds. In this case the 

boundaries of acceptable decision making are defined by the 

abuse of discretion standard, which compels us to accept the 

considered judgment of the District Court unless its decision 

is "arbitrary, fanciful, or clearly unreasonable." United States 

v. Green, 617 F.3d 233, 239 (3d Cir. 2010) (quoting United 

States v. Starnes, 583 F.3d 196, 214 (3d Cir. 2009)). Based 

on the record presented in this appeal, the District Court's 

ruling was clearly within the bounds of reasonable decision 

making because there was no indication that Mike's right to a 

fair trial was in jeopardy. The District Court did not abuse its 

discretion when it declined to grant Francis use immunity. 

III.

Mike also says that the District Court was wrong to 

deny his motion for a judgment of acquittal because he did 

not possess a "firearm" as that word is defined by Title 23, 

section 451(d) of the Virgin Islands code. We exercise 

plenary review over the grant or denial of a motion for 

acquittal under Federal Rule of Criminal Procedure 29, 

applying the same standard as the District Court. United 

States v. Silveus, 542 F.3d 993, 1002 (3d Cir. 2008). Thus, 
10

we look to determine whether the evidence is sufficient to 

support the conviction, Fed. R. Crim. P. 29, but in doing so, 

we are mindful that "[i]t is not for us to weigh the evidence or 

to determine the credibility of the witnesses." United States 

v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996) (quoting United 

States v. Schoolcraft, 879 F.2d 64, 69 (3d Cir. 1989)). 

Instead, we review the evidence in the light most favorable to 

the government and sustain the verdict "if any rational trier of 

fact could have found the essential elements of the crime 

beyond a reasonable doubt." United States v. Dent, 149 F.3d 

180, 187 (3d Cir. 1998) (quoting Voigt, 89 F.3d at 1080).

In the Virgin Islands, "[w]hoever, unless otherwise 

authorized by law . . . possesses . . . either actually or 

constructively . . . any firearm, as defined in Title 23, section 

451(d) of [the Virgin Islands] code" is subject to 

imprisonment. V.I. Code Ann. tit. 14, § 2253(a). A firearm, 

as defined by § 451(d), is "any device by whatever name 

known, capable of discharging ammunition by means of gas 

generated from an explosive composition, including any air 

gas or spring gun or any 'BB' pistols or 'BB' guns that have 

been adapted or modified to discharge projectiles as a 

firearm." V.I. Code Ann. tit. 23, § 451(d).

In his brief, Mike argues that his motion should have 

been granted because the testimony at trial showed that the 

AK-47 was delivered without its firing bolt and was therefore 

inoperable. However, at oral argument, Mike shifted tack, 

instead arguing that the problem was that there was no 

evidence at trial showing that the weapon had ever been test 

fired and shown to be capable of firing a bullet. The record 

demonstrates otherwise. When asked at trial whether he had 

test-fired the weapon, postal inspector Mitchell Perez 

answered that "we dry-fired it." (App. 148). He also testified 

that the AK-47 presented to him at trial was the same one he 

found inside the package addressed to Imon Thomas when it 

was intercepted in Puerto Rico. Later in the trial, Senior 

Special Agent Felix Rios, from the Bureau of Alcohol, 

Tobacco, Firearms and Explosives testified that he test-fired 

that same weapon in August 2009 and concluded "that the 

weapon was operable, and that it was, will fire in 

semiautomatic mode." (App. 157.)
11

Viewing the above evidence in the light most 

favorable to the government, we conclude that a rational jury 

could have concluded that the AK-47 was capable of 

discharging ammunition. We thus affirm the District Court's 

order denying Mike's Rule 29 motion.

IV.

As stated previously, the Virgin Islands prohibits 

possession of a firearm "unless otherwise authorized by law." 

V.I. Code Ann. tit. 14, § 2253(a). In United States v. McKie, 

we decided that § 470 of Title 23 of the Virgin Islands code

essentially "authorized by law" the possession of a firearm in

the period before a person is required to report the receipt of 

the firearm to the Virgin Islands Police Commission. 112 

F.3d 626, 631 (3d Cir. 1997). In doing so, § 470 created an 

affirmative defense to the crime of unlawful possession. Id.

When the defendant in McKie was arrested, § 470 gave him 

24 hours to report the fact that he had obtained a firearm, but 

by the time his case was presented to this Court the statute 

had been amended into its current form to provide that 

firearms obtained from outside the Virgin Islands must be 

reported "immediately." Id. at 632. 

Mike argues that his motion for a judgment of acquittal 

should have been granted, or that the jury should have been 

instructed on his affirmative defense under § 470, because the 

trial testimony demonstrated that he was arrested 

"immediately" after obtaining the AK-47. The Government 

counters that the evidence presented at trial makes it obvious 

that Mike had absolutely no intention of reporting the gun, 

"immediately" or any time thereafter. To which Mike 

responds that McKie made clear that a defendant does not 

need to prove intent to report in order to obtain the § 470 

affirmative defense. Id. at 632 ("If the legislature meant to 

include 'intent to report' as part of the defense, it did not say 

so.").

We agree with the Government that Mike was not 

entitled to a judgment of acquittal or a jury instruction on the 

affirmative defense. In McKie, we explained that "'intent to 

report' was not an element of the affirmative defense of 

firearm possession for less than twenty-four hours as it 

existed under § 470, before its recent amendment." Id. 
12

(emphasis added). When the Virgin Islands legislature 

substituted the 24-hour period to report in § 470 for a time 

period defined by the word "immediately," it fundamentally 

changed the nature of the affirmative defense. The McKie

court intimated as much, explaining that "the legislature 

wanted to close the loophole created by the twenty-four hour 

grace period." Id. (citing Hearing on Bill No. 21-0219 to 

amend Title 23, Section 470 of the Virgin Islands Code, Reg. 

Sess. (V.I. Aug. 29, 1996)). "Immediately" means "instantly; 

at once" or "with no object or space intervening." Webster's 

Unabridged Dictionary 957 (2d ed.1998). By using this term

the Virgin Islands legislature accomplished its objective, 

eliminating the use of § 470 as a viable affirmative defense in 

the vast majority of cases by collapsing the time period for 

reporting into nothing. 

The only way a person can "immediately" report the 

receipt of a firearm is to conscientiously set out with that 

intent and provide the report when the firearm is obtained. 

The evidence at trial revealed that the AK-47 was slathered in 

grease to mask its scent from curious canines, that the gun 

was inside a package addressed to a fictitious person named 

Imon Thomas, and that Mike convinced a juvenile to pick up 

the package for him under the assumed name of the fictitious 

addressee. The evidence was clear that Mike had no intent to 

"immediately" report the receipt of the firearm. Without such 

evidence, Mike was not entitled to a jury instruction on the 

affirmative defense and, even if one had been given, no 

rational trier of fact could have used it as the basis for an 

acquittal. See Government of the Virgin Islands v. Carmona, 

422 F.2d 95, 101 (3d Cir. 1970) (concluding that defendant 

was not entitled to jury instruction where there was no 

evidence to support it).

V.

We find no merit to Mike's argument that the District 

Court abused its discretion when it failed to grant use 

immunity to a co-defendant. We similarly find unpersuasive 

the argument that Mike did not possess a "firearm" as that 

word is defined by Virgin Islands statute. And there is no 

evidence in the record that would have warranted a jury 

instruction on an affirmative defense under V.I. Code. Ann. 
13

Tit. 23, § 470. For all of the foregoing reasons, the judgment 

of the District Court is affirmed. 
1

McKee, Chief Judge, concurring in part and dissenting in 

part:

Although I agree with the majority‟s conclusion that 

there was sufficient evidence to convict Jamaal Mike of being

in possession of a firearm, I write separately to clarify how 

courts should interpret the definition of “firearm” under 23 

V.I.C. § 451. In addition, I can not agree that the district court

properly denied use immunity because I believe that 

circumstantial evidence that does not directly contradict the 

testimony of a proposed defense witness is insufficient to 

negate the otherwise clearly exculpatory nature of such 

testimony. I therefore believe that the district court erred in 

not granting use immunity pursuant to our decision in Gov’t 

of Virgin Islands v. Smith, 615 F.2d 964, 972 (3d Cir. 1980)).

Accordingly, I dissent from my colleagues‟ use immunity 

analysis and thus can not concur in the judgment.

I. The Definition of a Firearm Under VI Law

The facts relevant to Mike's receipt of a “firearm” were 

not disputed at trial: a ballistics expert testified that the gun 

that was mailed to Mike was operable when law enforcement 

agents intercepted it. An agent then removed the bolt from the 

gun, rendering it inoperable. The gun was then forwarded to 

Mike, and the bolt was mailed separately to another 

government official. It was not included in the package Mike 

received. Therefore, when Mike received the firearm, it was 

no longer “operable.”

Mike argues that because the firearm was inoperable 

when he received it, he cannot be charged with violating 14 

V.I.C. § 2253(a) 1, which criminalizes unauthorized 

 

1

 The statute reads as follows: 

(a) Whoever, unless otherwise authorized by 

law, has, possesses, bears, transports or carries 

either, actually or constructively, openly or 

concealed any firearm, as defined in Title 23, 
2

possession of a firearm. A firearm is defined under the 

Virgin Islands Code as follows:

(d) "Firearm" means any device by 

whatever name known, capable of 

discharging ammunition by means of gas 

generated from an explosive 

composition, including any air gas or 

spring gun or any "BB" pistols or "BB" 

guns that have been adapted or modified 

to discharge projectiles as a firearm.

23 V.I.C. § 451 (emphasis added). 

Mike relies on two cases to argue that a firearm must 

be operable under 23 V.I.C. § 451(d) to sustain a conviction 

for illegal possession of a firearm.2 Neither is persuasive. In 

Virgin Islands v. Henry, 232 F. App‟x. 170 (3d Cir. 2007) 

(unpublished), we simply noted in the procedural history 

that:

the Appellate Division [of the Virgin 

Islands] . . . agreed [with the petitioner] 

that the government had failed to offer 

evidence showing that one of the guns 

retrieved at the scene was operable (i.e., 

capable of discharging ammunition). 

Accordingly, the Court reversed Henry's 

conviction with respect to the count 

 

section 451(d) of this code, loaded or unloaded, 

may be arrested without a warrant[.] 

 14 V.I.C. § 2253(a)

2

The government does not dispute that § 451(d) requires that 

a firearm be capable of firing ammunition. It counters, 

however, that the firearm was operable when it was mailed, 

and “but-for” its intervention, the firearm would have been 

operable when Mike received it. The government cites no 

cases in its favor, and a review of relevant case law finds no 

support for this proposition.
3

involving the gun that was not shown to 

be operable and affirmed his conviction 

with respect to the remaining gun [which 

was shown to be operable.]

Id. at 173. However, in reaching our holding we did not 

determine whether a firearm must be operable in order to be a 

firearm under 23 V.I.C. § 451(d). In the second case, the 

District Court of the Virgin Islands held: “To prove this 

charge [possession of an unlicensed firearm], the government 

must show that the firearm was operable.” Virgin Islands v. 

Albert, 1980 U.S. Dist. LEXIS 14466 (D.Ct. V.I. 1980) 

(citing 14 V.I.C. § 2253(a) and 23 V.I.C.. § 451(d)). Neither

case is analogous to the situation here where a firearm that 

was capable of discharging ammunition is subsequently 

rendered inoperable by law enforcement officials and then 

forwarded to a defendant to take possession of it as part of a 

criminal investigation.

3

I agree that the gun that Mike received qualifies as a 

“firearm,” but my analysis of that issue diverges a bit from 

that of my colleagues. The majority writes:

In his brief, Mike argues that his motion 

should have been granted because the 

testimony at trial showed that the AK-47 

was delivered without its firing bolt and 

was therefore inoperable. However, at 

oral argument, Mike shifted tack, instead 

arguing that the problem was that there 

was no evidence at trial showing that the 

weapon had ever been test fired and 

shown to be capable of firing a bullet. 

The record demonstrates otherwise. 

 

3 Mike‟s list of cases is not exhaustive. Although other cases 

similarly use the word “operable” and “capable of 

discharging ammunition” interchangeably, none of those

cases are binding.
4

Maj. Op. at 18. My colleagues then conclude that because 

there was evidence that the firearm was operable when the 

government tested it, a rational jury could have concluded 

that the AK-47 was capable of discharging ammunition. 

Although I agree with the majority‟s conclusion, I do 

not think it is at all relevant that defense counsel “shifted 

tack” at oral argument. Although Mike‟s attorney stated that 

there was no evidence regarding whether the weapon was

ever “dry-fired” by the government, it appears that he was 

merely confused about the record. Mike‟s counsel did not 

concede the issue in his brief. 

Accordingly, I think we should take this opportunity to 

decide directly that the Virgin Islands statute applies to a 

weapon that is capable of firing when placed into the mail, 

but subsequently is rendered inoperable by law enforcement 

agents before sending it on its way to a defendant in order to 

make a controlled delivery. Addressing the issue more 

directly will eliminate any possibility that law enforcement 

agents may believe they have to place a “live” weapon into 

the mail in order to prove a violation of this and similar 

statutes. 

To establish a violation of § 2253(a), the government 

must prove the following two elements beyond a reasonable 

doubt: (1) the defendant did possess, bear, transport or carry,

“either, actually or constructively, openly or concealed” (2) 

“any firearm, as defined in Title 23, section 451(d) of this 

code, loaded or unloaded.” 23 V.I.C. § 451(d) defines a 

firearm as “any device by whatever name known, capable of 

discharging ammunition by means of gas generated from an 

explosive composition . . . .”

However, § 451(d) does not require that a firearm be 

“operable.” Instead, its plain language requires only that the 

device be “capable of discharging ammunition by means of 

gas generated from an explosive composition . . . .” 23 V.I.C. 

§ 451(d) (emphasis added).
5

The word “capable” is not synonymous with the word 

“operable.” Merriam-Webster‟s dictionary defines “capable”

as “having traits conducive to or features permitting.” 

Merriam Webster Online Dictionary, http://www.merriamwebster.com/dictionary/capable (last visited June 21, 2011).

The Oxford English Dictionary (“OED”) defines “capable” as 

“having room or capacity for.” Capable Definition, Oxford 

English Dictionary (Online Version), 

http://www.oed.com/view/Entry/27354 (last visited June 21, 

2011). 

The OED defines “operable” as “able to be operated.” 

Operable Definition, Oxford English Dictionary (Online 

Version), http://www.oed.com/view/Entry/131732 (last 

visited June 21, 2011). Thus, a firearm may be “capable” of 

discharging ammunition, but not “operable,” if it has the 

potential to fire ammunition, or the “capacity for” discharging 

ammunition, but cannot do so at the relevant time. 

Here, the AK-47 was certainly capable of discharging 

ammunition, as the government‟s evidence established. 

Although the AK-47 that Mike received lacked one part —

the bolt — the firearm still had “features permitting” it to 

discharge ammunition, including a barrel, functioning trigger, 

piston, hammer, buttstock, grip and magazine. All of these 

were in perfect working order. Although a firearm that is 

missing a bolt may not be operable until the missing bolt is 

replaced, it nevertheless has the “capacity for” discharging 

ammunition. 

More importantly, requiring such a firearm to be 

“operable” would violate the plain language of 23 V.I.C. § 

451(d), which explicitly states that a gun need not be loaded 

in order to be considered a firearm. An unloaded firearm is 

"inoperable," since it cannot discharge ammunition. Section 

451(d)‟s language, permitting a device to be considered a 

firearm even if it is unloaded, reflects an overwhelming 

legislative concern that the statute not be limited to firearms 

that could be fired at a given moment. Rather, the legislature 

was clearly concerned about the potential for firing
6

ammunition and crafted the definition of “firearm” 

accordingly.

Interpreting the statute in this manner does not broaden 

23 V.I.C. § 451(d) to include weapons that should not fairly 

be considered firearms. Neither a scope, nor even the missing 

bolt without the rest of the weapon, would constitute a 

firearm under § 451(d), because such parts and accessories do 

not have the capacity to fire ammunition. They may facilitate 

firing a weapon, but they are not capable of inflicting harm 

unless affixed to the actual firearm or integrated into it. 

Doing so is what allows the weapon to function as a 

“firearm;” and attaching such parts or accessories or 

integrating them into the weapon results in an altogether 

different “device” than such items standing alone.4

In sum, I believe that the government need only prove 

that the device MIke received was “capable of discharging 

ammunition.” in order to prove a violation of 14 V.I.C. § 

2253(a). The testimony that agents were able to successfully 

“dry fire” the gun that Mike received was sufficient to prove 

that here. Removing the bolt rendered the AK-47 inoperable,

but the weapon was still “capable” of firing ammunition. It 

was no less capable of that when Mike received it than if it 

had arrived unloaded but fully intact.

 

4 Additionally, the more restrictive definition of 

“firearm” urged by Mike yields illogical results as evidenced 

here. This statute is clearly aimed at the illegal flow of guns 

and the carnage and devastation they cause. Mike‟s 

interpretation of the statute would have required law 

enforcement officers who knew that a package contained an 

assault weapon to place that fully functioning weapon back 

into the stream of commerce in order to successfully complete 

an investigation while hoping that it would not be lost, 

delivered to the wrong party, or fall into the hands of minors 

or criminals along the way. It is inconceivable that any 

legislature would intentionally require such a result in 

enacting this kind of statute. 
7

II. Use Immunity

Mike also appeals the district court‟s refusal to grant 

use immunity to Fenyang Francis, who purportedly told his 

attorney that Mike did not know that there was a gun in the 

package he received. The majority finds that the district court 

did not abuse its discretion because Francis‟s testimony is not 

“clearly exculpatory.” I disagree.

For testimony to be “clearly exculpatory,” it cannot be 

“undercut by . . . prior inconsistent statement[s],” United 

States v. Perez, 280 F.3d 318, 350 (3d. Cir 2002), or 

otherwise require a jury to make a credibility determination,

United States v. Thomas, 357 F.3d 357, 365 (3d Cir. 2004). 

The majority relies heavily on Thomas in affirming the 

district court‟s denial of use immunity. There, we found that 

the district court properly denied use immunity to two 

witnesses whom Thomas wanted to call to present a theory 

that another person, James Stager, a car dealer, had planted 

drugs in his car. “[A]t least two other witnesses offered 

testimony that undercut Thomas' theory that Stager planted 

drugs in his car.” Id. at 365.

The first witness was “Thomas' girlfriend, Heather 

Barr, [who] testified that . . . Thomas told her that he already 

knew that drugs were in his car [and] that Thomas attempted 

to remove the drugs from his car in the police impoundment 

lot and fled to State College in order to avert being arrested 

when the police found the drugs.” Id. at 365-66. A second

witness also undermined Thomas‟s argument that Stager had 

the opportunity to plant the drugs in Thomas‟s car because he 

testified that Thomas‟s car was not where Thomas claimed it 

was in his theory of the case. 

Since the testimony Thomas wanted to produce 

through immunized witnesses was in direct conflict with 

Thomas‟s theory of the case, the jury would have had to 

decide whether to believe the witnesses whom Thomas 

wanted immunized, or two non-immunized prosecutorial 

witnesses. “Because a credibility determination would have 
8

been required in order to determine which parties were more 

credible, [the testimony Thomas sought to admit] would not 

have been „clearly exculpatory,‟ as required under Smith.” 

Thomas, 357 F.3d at 366 (referencing Smith, 615 F.2d at 

972).

Thomas is distinguishable. That case reinforces the 

unremarkable notion that use immunity not be used as a 

license to commit perjury. Here, the circumstantial evidence 

that the government presented that Mike knew the contents of 

the box does not clearly undercut Francis‟s proffered

testimony. In fact, Francis‟s testimony could explain the 

circumstantial evidence the government admitted in its casein-chief. Unlike the testimony in Thomas, Francis‟s 

testimony here could have been accepted in a context that was 

completely compatible with evidence already admitted.

As part of its case, the government was required to 

prove that Mike knew that a gun was in the package he 

received. To prove this, the government presented two pieces 

of circumstantial evidence, which the majority cites as 

undermining the clearly exculpatory nature of Francis‟s 

potential testimony. First, the majority cites the fact that, 

after they were arrested, Mike told Hunte that all he would 

get was “a haircut,” that is, go to juvenile detention. 

However, that only establishes that Mike knew some type of 

contraband was in the package, not that he knew it contained 

a gun. In theory, he could have believed he was receiving a 

shipment of drugs of some other kind of contraband. 

Therefore, Francis‟s testimony could have been accepted 

without requiring the jury to chose between two competing 

statements if the jury believed Francis.

Next, the majority points to multiple telephone calls 

between Francis and Mike confirming that the two 

communicated numerous times in the weeks surrounding the 

firearm shipment and often in the minutes before and after the 

purchase of the firearm and the shipment of the firearm. 

However, we do not know the content of these calls. Without 

more, I do not believe we can assume enough about the 

substance of those conversations to justify denying use 
9

immunity. Although it is very easy to assume that Francis 

told Mike about the shipment of a firearm during at least one 

of those conversations, that should be an argument that is left 

for the jury to resolve after hearing all of the relevant 

evidence. In theory, Francis may have merely been 

confirming the receipt of contraband or the timing of the 

mailing of the package during those conversations. 

We have found that the “clearly exculpatory” standard 

for a use immunity analysis is “similar [to the] analysis [that] 

applies to [an] alleged Brady violation.” United States v. 

Perez, 280 F.3d 318, 348 (3d Cir. 2002). In Perez, we 

explained:

Under Brady[,] . . . the suppression by 

the prosecution of evidence favorable to 

an accused warrants a new trial where 

“the evidence is material either to guilt 

or to punishment, irrespective of the 

good faith or bad faith of the 

prosecution.” Evidence is material if 

there is a reasonable probability that, had 

it been disclosed, the result of the 

proceeding would have been different. 

Id. at 348-49 (citations omitted).

It is hard to imagine evidence with a greater 

exculpatory potential than the person who shipped the 

package saying that Mike did not know it contained a gun. 

Of course, the jury would have been free to disregard that 

testimony if it thought that the other evidence established 

beyond a reasonable doubt that Mike knew he was receiving a 

gun, or if it otherwise found Francis lacking in credibility. “In 

Smith we said that „[i]mmunity will be denied if the proffered 

testimony . . . is found to relate only to the credibility of the 

government's witnesses,‟ and in Ammar, we remarked that 

judicial immunity is improper when the proffered testimony 

is „at best speculative[.]‟” Maj. Op. at 13 (citing Smith, 615 

F.2d at 972, and United States v. Ammar, 714 F.2d 238, 251 

n.8 (3d Cir. 1983)) (emphasis removed). 
10

However, I do not believe our precedent can be 

interpreted to preclude use immunity for Francis merely 

because his credibility would have been in issue had he 

testified. Such a broad prohibition of use immunity would be 

tantamount to eliminating that tool altogether even when a 

witness‟s testimony was required to satisfy the requirements

of due process5because credibility is always an issue 

whenever any witness testifies. “Jurors are instructed . . . in 

almost all cases, that they are to determine the credibility of 

all witnesses who testify . . . even in the absence of an 

affirmative challenge to witness credibility.” United States v. 

Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 666 (3d 

Cir. 2000) (en banc). The mere fact that Francis‟ credibility 

would have been aggressively attacked by the prosecutor 

should not be sufficient to undermine the due process 

interests of ensuring that a defendant is able to present a 

defense to a criminal charge. Here, the district court‟s ruling 

deprived Mike of the only witness who could testify about 

Mike‟s knowledge of the contents of the package he received. 

The fact that such testimony would have made 

conviction more difficult if accepted by the jury is not a 

reason to deny a defendant access to favorable witnesses.

Each of the protections of the accused that were so carefully 

engrafted onto the Bill of Rights makes conviction of the 

guilty more difficult. That surely cannot be a reason to so 

narrow the doctrine of use immunity that defendants are 

denied access to fact witnesses. The jury system rests upon 

the assumption that a properly instructed jury will be able to 

sort through the evidence and the arguments of counsel and 

determine if the government has proven its case beyond a 

reasonable doubt. 

 

5

 See Chambers v. Mississippi, 410 U.S. 284, 294 

(1973) (“The rights to confront and cross-examine witnesses 

and to call witnesses in one's own behalf have long been 

recognized as essential to due process.”). See also Maj. Op. 

at 5-6 (discussing Chambers, 410 U.S. 284).
11

Judicial use immunity exists to ensure due process. 

Although a jury will always be free to disregard the testimony 

of a defense witness, courts should not usurp the jury‟s 

function by deciding the credibility of a witness. 

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

Finally, before concluding, I think it helpful to state a 

concern and observation about the affirmative defense created 

by 14 V.I.C. § 470. As the majority notes, in United States v. 

McKie, 112 F.3d 626, 631 (3d Cir. 1997), we held that there 

is an affirmative defense to possessing a firearm under Virgin 

Islands law because a person had 24 hours to register the 

weapon before it becomes illegal to possess it. No doubt 

because of problems of proof, the Virgin Islands legislature 

amended § 470 to require “immediate” registration upon 

entering the Virgin Islands. However, as this case illustrates, 

that amendment creates more problems than it solves. It will 

often be impossible to rebut a claim of an intent to 

immediately register a firearm unless a defendant is given a 

sufficient opportunity to register it and fails to take any steps 

to do so upon entering the Virgin Islands. 

In theory, the only way to disprove such a defense in 

the ordinary case would be for the government to establish a 

registration desk adjacent to the exit of the airport lobby with 

signs instructing all who arrived that they had to go directly to 

the registration desk and register any firearms. Experience 

with this statute has shown that police have a tendency to 

arrest a person with firearms as soon as he/she leaves the 

airport or takes possession of them rather than wait until 

circumstances are sufficient to refute any argument that the 

recipient intended to register the firearm. 

Although that is perhaps understandable, the amended 

law creates real problems when an arrest occurs as soon as the 

recipient takes delivery of a weapon or leaves the airport 

building because there is no opportunity to immediately 

register the firearm. I agree that this complication does not 

assist Mike because all of the circumstances here supports the 

conclusion that he never intended to register the gun he 
12

received in the first place. Moreover, Mike's attempt to seek 

shelter under § 470 is undermined by his attempt to also argue 

that he did not know what was in the package he received. I 

therefore join my colleagues in rejecting Mike‟s defense here. 

However, the Virgin Islands legislature may wish to consider 

the problems the amendment to this statute could create in 

future cases so that police will not have to wait a sufficient 

time to rebut any suggestion of an intent to immediately 

register a weapon before making an arrest for a violation of § 

2253(a). 6

Conclusion

In conclusion, I concur that sufficient evidence proves 

that Mike violated 14 V.I.C. § 2253(a). However, I believe 

that the court should have granted use immunity to Francis 

and thereby allowed Mike to present that defense testimony.

 

6

Judge Smith joins in these concerns and observations 

concerning the amendment to Section 470.