NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 11-1501 and 11-1557

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UNITED STATES OF AMERICA; 

THE PEOPLE OF THE VIRGIN ISLANDS

v.

ENRIQUE SALDANA,

Appellant in 11-1501.

v.

GEORGE N. GREENE, JR.,

Appellant in 11-1557.

On Appeal from the District Court of the Virgin Islands

(Division of St. Thomas)

(D.C. Nos. 3-09-cr-00032-001 and 3-09-cr-00032-003)

District Judge: Honorable Curtis V. Gomez

Argued on December 8, 2011

Before: FISHER, GREENAWAY, Jr., and ROTH, Circuit Judges

(Opinion filed: March 30, 2012)

Darren John-Baptiste, Esquire

The Practice, PLLC

2329 Commandant Gade, Unit 3

St. Thomas, Virgin Islands 00802
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Dolace McLean, Esquire (Argued)

VISIONS Law Firm

9003 Havensight Mall, Suite 319

St. Thomas, Virgin Islands 00802

Counsel for Appellant Saldana

Thurston T. McKelvin, Esquire

Federal Public Defender

Gabriel J. Villegas, Esquire (Argued)

Assistant Federal Public Defender

Office of Federal Public Defender

P.O. Box 1327

St. Thomas, Virgin Islands 00804

Counsel for Appellant Greene

Ronald W. Sharpe, Esquire

United States Attorney

Nolan D. Paige, Esquire (Argued)

Assistant United States Attorney

Office of United States Attorney

5500 Veterans Drive, Suite 260

St. Thomas, Virgin Islands 00802

Counsel for Appellee

O P I N I O N 

ROTH, Circuit Judge

In related appeals arising from the same prosecution and trial, Enrique Saldana 

appeals the District Court’s March 18, 2011 judgment of conviction, and George N. 

Greene, Jr., appeals the District Court’s May 3, 2011 judgment of conviction. For the 

following reasons, we will affirm the judgments of the District Court.

: 
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I.

On December 4, 2008, officers from the Virgin Islands Police Department (VIPD) 

seized and towed a car, previously rented by Rosemary Sauter, that Richard Motta, a 

subcontractor of Sauter’s realty office, had borrowed and left unattended. Motta’s black 

notebook and keys were inside the car, as well as a package of white flour that Motta had 

cooked to look like a brick of cocaine. When Motta and Sauter retrieved the car the 

following day, the items were missing, and Motta was told to call VIPD Lieutenant 

Enrique Saldana about them. Motta and Saldana spoke twice by phone but the items 

were not returned. One Louis Roldan subsequently approached Motta and told him that 

the package that the VIPD had seized from the car tested positive for heroin and would be 

turned over to federal authorities unless Motta paid $10,000. 

Background

Motta explained the situation to the Federal Bureau of Investigation. Under the 

direction of the FBI, Motta made recorded telephone calls to Roldan to inform him that 

he would pay only $5,000. Motta also tried calling Saldana. Wearing a recording device, 

Motta met with Roldan and VIPD Sergeant George N. Greene, Jr., to negotiate the details 

of the exchange. Santana was present at the meeting in a VIPD car but did not actively 

participate. Motta later met with Greene and Roldan again to exchange $5,000 in cash 

for the assurance that he would not be reported to federal law enforcement. 

On August 4, 2009, the grand jury returned an eleven-count Indictment charging 

Greene, Saldana, and Roldan with various counts, including obstruction of justice, 
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extortion, and conspiracy.1

On December 14, 2009, Saldana, Greene, and Roldan proceeded to a jury trial, 

which ended in a mistrial. The retrial began on January 25, 2010. During the trial, the 

District Court rejected Greene’s request for Agent Arthurton’s rough notes and declined 

to strike his testimony. Greene testified at trial and was asked on cross-examination:

 That same day, Greene gave a voluntary statement to Drug 

Enforcement Administration (DEA) Special Agent Andrew Arthurton. 

Q: And by the way, do you have any felony convictions?

A: Yes, I do.

Q: What are they?

A: Last –

[Greene’s Defense Counsel]: Objection, Judge. Objection.

Following a sidebar conference, the District Court instructed the jury “to disregard the 

last answer that the witness gave.” A short time later, at the request of Greene’s counsel, 

the District Court gave a curative instruction:

You may recall during the last witness that was examined, there was a reference to 

a conviction. Just as it is not appropriate for you to consider any possible sentence 

during your deliberation, it is improper for you to consider the testimony 

concerning the conviction. So you are to disregard that, as I had previously told 

you.

The District Court declined to give Saldana’s proposed jury instructions on the public 

authority defense, finding that no evidence supported giving such a charge. 

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 On September 17, 2009, the grand jury returned a fifteen-count Superseding 

Indictment, which included two counts against Greene for unlawful possession of 

firearms with obliterated serial numbers, in violation of 18 U.S.C. §§ 922(k)(5)(A) and 

924(a)(1)(B). The District Court severed those two counts. Greene was found guilty by 

a jury on both counts and sentenced to concurrent 30-month terms of imprisonment. 

Greene appealed, and we affirmed the District Court’s judgment of conviction and 

sentence in Appeal No. 10-3267.
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On January 29, 2010, the jury found Saldana, Greene, and Roldan guilty of Counts 

5, 6, 7, 8, 9, and 10. After holding an evidentiary hearing, the District Court denied 

Saldana’s and Greene’s motions for a new trial, which alleged a violation of the Sixth 

Amendment right to a public trial. 

The District Court sentenced Saldana to 41 months imprisonment and entered a 

Judgment of Conviction on March 18, 2011. The District Court sentenced Greene to 36 

months imprisonment and entered a Judgment of Conviction on May 3, 2011. Saldana’s 

appeal was docketed as No. 11-1501, and Greene’s appeal was docketed as No. 11-1557. 

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and 48 U.S.C. 

§ 1612. We have jurisdiction pursuant to 18 U.S.C. § 3742(a), 28 U.S.C. § 1291, and 48 

U.S.C. § 1613.

Discussion

A. Saldana

1. Hobbs Act

Saldana was convicted of extortion under the Hobbs Act, which required the 

government to prove that the defendant obstructed, delayed, or affected commerce by 

extortion and that the defendant acted knowingly and willfully. See United States v. 

Driggs, 823 F.2d 52, 54 (3d Cir. 1987) (citing 18 U.S.C. § 1951). Saldana contends that 

there was insufficient evidence of an actual effect on interstate commerce. 

We review de novo the District Court’s denial of a motion for judgment of 

acquittal pursuant to Fed. R. Crim. P. 29. United States v. Brodie, 403 F.3d 123, 133 (3d 

Cir. 2005). We “view the evidence in the light most favorable to the government and 
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must sustain a jury’s verdict if a reasonable jury believing the government’s evidence 

could find beyond a reasonable doubt that the government proved all the elements of the 

offenses.” United States v. Rosario, 118 F.3d 160, 163 (3d Cir. 1997) (internal 

quotations omitted). 

We find, as the District Court did, that federal jurisdiction existed under the Hobbs 

Act based on the “depletion of assets” theory. See United States v. Marrero, 299 F.3d 

653, 654-55 (7th Cir. 2002). There was sufficient evidence introduced at trial from 

which a reasonable jury could find beyond a reasonable doubt that interstate commerce 

was affected, as required for a conviction under the Hobbs Act because the FBI had 

supplied the $5,000 that was to be paid to defendants. Moreover, although the sham 

narcotics had already been destroyed, that act was not so far in the past as to be an 

inappropriate basis for a Hobbs Act violation. We conclude, therefore, that the District 

Court properly denied Saldana’s motion for judgment of acquittal.

2. Brady Violation

Saldana alleges that the government failed to search for possible sources of 

exculpatory information regarding Sauter, in violation of Brady v. Maryland, 373 U.S. 83 

(1963). For a Brady claim, we review factual findings for clear error and legal 

conclusions de novo. United States v. Perdomo, 929 F.2d 967, 969 (3d Cir. 1991). To 

establish a due process violation under Brady, a defendant must show that: 1) evidence 

was suppressed, 2) the suppressed evidence was favorable to the defense, and 3) the 

suppressed evidence was material either to guilt or to punishment. United States v. 

Pelullo, 399 F.3d 197, 209 (3d Cir. 2005). The District Court found, and we agree, that 
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Saldana has failed to point to any evidence that the government withheld from him or to 

articulate how such evidence would have resulted in his acquittal. 

3. Right to Public Trial

Saldana contends that the District Court abused its discretion when it denied his 

motion for a new trial based on exclusion of the public during jury selection. We review 

the denial of a motion for a new trial for abuse of discretion. United States v. Joseph, 996 

F.2d 36, 39 (3d Cir. 1993). Our review is plenary when the denial was “based on the 

application of legal precepts.” Hook v. Ernst & Young, 28 F.3d 366, 370 (3d Cir. 1994). 

On the basis of testimony introduced at the evidentiary hearing, the District Court 

found that individuals had been excluded from the courtroom by a Court Security Officer 

(CSO) during jury roll call at a time when the judge was not present in the courtroom. 

Moreover, it is not clear whether the closure continued after the judge entered the 

courtroom. If it did -- and the judge was not aware of any closure – it was for an 

insignificant period. The District Court concluded that Saldana was not denied his Sixth 

Amendment right to a public trial because the alleged closure was neither ordered nor 

directed by the District Court and it did not appear to have occurred during a judicial 

proceeding to which the Sixth Amendment attaches. 

Greene raised an identical claim, based on testimony introduced at the same 

evidentiary hearing, in a prior related appeal. On appeal of that conviction we affirmed 

the District Court’s ruling that Greene did not suffer harm of constitutional dimension 

when a CSO temporarily prevented his family member from entering the courtroom. 

United States v. Greene, 431 F. App’x 191, 197 (3d Cir. 2011). We noted there, as we do 
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here, that the partial closure was limited in both duration and scope and occurred 

unbeknownst to the trial judge. See id. at 196-97. Again, we hold that the District Court 

properly concluded that Saldana was not denied his right to a public trial. 

4. Jury Instructions

Saldana argues that the District Court erred in denying his request to give a jury 

instruction on the public authority defense. Where a party objects to the failure to give a 

particular jury instruction, we review de novo whether the jury instructions stated the 

proper legal standard and review for abuse of discretion the refusal to give a particular 

instruction. United States v. Jimenez, 513 F.3d 62, 74 (3d Cir. 2008). A defendant is 

“entitled to an instruction as to any recognized defense for which there exists evidence 

sufficient for a reasonable jury to find in his favor.” Gov’t of Virgin Islands v. Isaac, 50 

F.3d 1175, 1180 (3d Cir. 1995). “It is well settled that there is no error to refuse to 

instruct as counsel wishes if the charge to the jury is correct.” United States v. Blair, 456 

F.2d 514, 520 (3d Cir. 1972). 

Public authority, either actual public authority or apparent public authority, is an 

affirmative defense. See United States v. Pitt, 193 F.3d 751, 755-58 (3d Cir. 1999). 

Saldana testified at trial and denied committing any illegal acts. Because of this 

evidence, there was no basis for a defense that he was authorized to commit the acts, nor 

was there any evidence from which a reasonable jury could find in Saldana’s favor on a 

public authority defense. The District Court therefore correctly charged the jury and did 

not abuse its discretion by refusing to give the requested instruction. 
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B. Greene

1. Admissibility of Evidence

Greene contends that the District Court abused its discretion when it admitted into 

evidence summary charts and when it refused to order production of an agent’s rough 

notes. We review the District Court’s evidentiary rulings for abuse of discretion. United 

States v. Williams, 458 F.3d 312, 315 (3d Cir. 2006). “[A]n evidentiary ruling is to be 

reversed only if arbitrary or irrational.” Id. 

a. Summary Chart

The District Court did not abuse its discretion in admitting into evidence 

telephone records accompanied by a written certification because they were properly 

authenticated pursuant to Fed. R. Evid. 803(6) and 902(11). Moreover, the summary 

chart of those voluminous telephone records was properly admitted pursuant to Fed. R. 

Evid. 1006. See United States v. Pelullo, 964 F.2d 193 (3d Cir. 2002) (noting summary 

evidence is admissible under Rule 1006 if the underlying materials upon which it is based 

are admissible). 

b. Rough Notes

The District Court rejected Greene’s request for Agent Arthurton’s rough notes, 

finding that “absent other circumstances” there was an “insufficient basis” to require their 

production. Because Greene failed to raise a “colorable claim” that the rough notes

contained Brady material that had not been included in Agent Arthurton’s report, the 

District Court correctly denied Greene’s request. See United States v. Ramos, 27 F.3d 65, 

71 (3d Cir. 1994). 
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2. Prior Felony Conviction

Greene contends that the District Court should have ordered a mistrial sua sponte

following his testimony that he had a prior felony conviction. When a defendant objects 

but fails to request a mistrial, we review for plain error. United States v. Richards, 241 

F.3d 335, 341 (3d Cir. 2001). Under that standard, the Court may, in its discretion, 

correct an error only if the appellant demonstrates that: 1) there is an error, 2) the error is 

“clear or obvious,” 3) the error “affected the appellant’s substantial rights,” i.e.,. affected 

the outcome of the District Court proceedings, and 4) the error “seriously affects the 

fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus, 

130 S. Ct. 2159, 2164 (2010). 

Although the fact of Greene’s prior felony conviction should not have been 

elicited, he did not testify regarding its nature. At the prompt objection and request of 

defense counsel, the District Court immediately instructed the jury to disregard the 

answer and also gave a curative instruction a short time later. The District Court’s 

actions were an adequate cure for any potential prejudice, especially in light of the 

amount of evidence introduced against Greene at trial. We conclude, therefore, that the 

error was not plain. 

 III.

For the foregoing reasons, we will affirm the judgments of conviction entered by 

the District Court. 

Conclusion