2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-27-2007

Govt of VI v. Suarez

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4477

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NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

NO. 06-4477

 

 GOVERNMENT OF THE VIRGIN ISLANDS

v.

OMAR JAMIL SUAREZ

Appellant

 

On Appeal From the District Court of the Virgin Islands

Division of St. Thomas and St. John 

(D.C. Crim. Action No. 04-cr-00117)

District Judge: Hon. Raymond L. Finch, Chief Judge

District Judge: Hon. Curtis V. Gomez

Territorial Judge: Hon. Patricia D. Steele

 

Argued May 8, 2007

BEFORE: SLOVITER, STAPLETON and

VAN ANTWERPEN, Circuit Judges

(Opinion Filed July 27, 2007)

 

Maureen Phelan

Dolace McLean (Argued)

Office of the Attorney General of the Virgin Islands

Department of Justice

34-38 Kronprindsens Gade

GERS Complex, 2nd Floor

Charlotte Amalie, St. Thomas

USVI 00802

 Attorneys for Appellee
 In the interest of privacy, we abbreviate the names of the children involved in this 1

case. 

2

Stephen A. Brusch (Argued)

The Brusch Law Firm

No. 40A Norre Gade

P.O. Box 988

Charlotte Amalie, St. Thomas

USVI 00804

 Attorney for Appellant

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge:

Omar Jamil Suarez appeals his convictions for aggravated rape in the first degree

and rape in the first degree under Virgin Islands law. For the reasons that follow, we will

affirm Suarez’s aggravated rape conviction. We will, however, reverse his first-degree

rape conviction and remand with instructions to enter a judgment of acquittal on that

charge.

I.

We recount the evidence, as we must, in the light most favorable to the

government. On July 31, 2002, ten-year old A.B. visited the home of Susie Bryan, her 1

aunt, and Suarez, Bryan’s long-time companion. Bryan went to run some errands, leaving

Suarez to supervise both A.B. and his four-year old daughter, S.S. After Suarez and the
 A.B. deduced that the object was not a hot dog, see JA at 320 (a hot dog “wouldn’t 2

get bigger”), a Twinkie, see id. (“That’s flat on the bottom and round on the top”), or a

banana twist, see id. (“A banana twist is a bun with cream stuff in it.”).

3

two children returned home from a trip to the community swimming pool, he asked them

whether they wanted to play a “tasting game.” A.B. was unfamiliar with the game, but

agreed to play. 

Suarez led A.B. and S.S. into his bedroom and blindfolded each child with a sock

and a shirt. He then repeatedly placed his finger into each of their mouths, flavored by a

different food or condiment on each occasion, and asked them to identify the substance

on his finger by taste. After A.B. had tasted several different items, which she identified

as onion dip, barbeque sauce, cocoa powder, and “something like a Twinkie . . . call[ed] a

banana twist,” JA at 297, Suarez inserted “something big” into her mouth and told her

“don’t bite it.” JA at 298. A.B. testified that the object was “round” and “didn’t feel like

a finger,” and that it “started off a little small and got bigger . . . . it was kind of . . . soft

and got harder.” JA 298-99. A.B. also testified that she thought that the object might be

Suarez’s penis (she had previously seen both her father’s and brother’s penises in the

shower), but admitted that she could not be certain since she was blindfolded.2

After A.B. told Suarez that the object did not have any taste, he suggested that this

was because she “[ha]dn’t suck[ed] further up.” JA at 298-99. Suarez used his hand to

“push” A.B.’s head “a little forward.” JA at 298-99. The object touched A.B.’s throat

and made her feel like she was going to vomit. She also felt “little hairs” against her face. 
4

JA at 298. A.B. admitted that neither she nor Suarez said anything after he pushed her

head forward. JA at 299-300. A.B. also admitted that Suarez did not touch her with his

hands during the encounter other than when he pushed her head forward. JA at 299. 

Meanwhile, S.S. began urging Suarez to switch roles with them. Suarez told S.S.

to “let [him] finish up” with A.B., but S.S. continued to press him. JA at 302. Suarez

then asked A.B. whether she “want[ed] to stop” and she responded yes. JA at 302. 

According to A.B., Suarez thereafter placed the object into her mouth two or three more

times before finally stopping. Suarez waited a “couple of minutes” before removing

A.B.’s blindfold, at which point she noticed “white stuff” on his shorts. JA at 303. 

A.B. then joined S.S. in urging Suarez to take his turn playing the “testing game.” 

Suarez agreed, and they continued to play the game for a brief period. When the game

ended, A.B. and S.S. went into the living room and watched television while Suarez used

the bathroom. 

Later that day, Susie Bryan returned home and took A.B. to the home of her greatgrandmother, Inga Bryan. Shortly after her arrival, A.B. approached Inga, scared and

upset, and told her about the “tasting game” and how she believed that Suarez may have

inserted his penis into her mouth. 

Suarez was subsequently charged with one count of aggravated rape in the first

degree under V.I. Code tit. 14, § 1700(a)(1), and one count of rape in the first degree

under V.I. Code tit. 14, § 1701(2). The case was tried before a jury in the Superior Court
 We have jurisdiction under 48 U.S.C. § 1613a(c), and, because this case came to the 3

Appellate Division “[p]rior to the establishment of the [Supreme Court of the Virgin

Islands],” it had jurisdiction under 48 U.S.C. § 1613a(a). If such a case were appealed

today from the Superior Court, it would proceed directly to the Supreme Court of the

Virgin Islands for appellate review. See V.I. Code tit. 4, §32 (granting the Supreme Court

of the Virgin Islands jurisdiction over appeals from the Superior Court).

 This court reviews decisions of the Superior Court using the same standard of review 4

applied by the Appellate Division. Tyler v. Armstrong, 365 F.3d 204, 208 (3d Cir. 2004);

Gov't of the Virgin Islands v. Albert, 241 F.3d 344, 347 n.3 (3d Cir. 2001); Semper v.

Santos, 845 F.2d 1233, 1235-36 (3d Cir. 1988). We exercise plenary review over the

Superior Court’s legal determinations, but only review its findings of fact for clear error. 

Gov’t of the Virgin Islands v. Fahie, 419 F.3d 249, 252 (3d Cir. 2005). The Superior

Court’s evidentiary rulings are reviewed for abuse of discretion. Gov’t of the Virgin

Islands v. Riley, 973 F.2d 224, 228 (3d Cir. 1992). 

5

of the Virgin Islands (then known as the Territorial Court of the Virgin Islands). The jury

convicted Suarez on both counts, and the Superior Court denied Suarez’s post-trial

motions. Suarez appealed to the Appellate Division of the District Court of the Virgin

Islands (“Appellate Division”), which affirmed both convictions. This appeal followed.3

 Suarez raises several arguments on appeal, challenging the effectiveness of his

trial counsel on various grounds under the Sixth Amendment, certain evidentiary rulings

by the Superior Court, and the sufficiency of the evidence supporting his convictions.

Suarez also contends that the government suborned perjured testimony and destroyed

potentially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).4

II.

The Appellate Division correctly rejected the majority of Suarez’s contentions, and

there is little we can add to its thorough analysis in this respect. We agree with the
 Suarez’s ineffectiveness claims are based on trial counsel’s failure to object to 5

improper expert testimony by Dr. Melinda Astran; failure to call A.B.’s grandmother,

Nancy Bryan, as a witness at trial; and failure to object to improper argument by the

prosecutor regarding the refusal of Suarez and Susie Bryan to allow investigators to

question S.S. about the incident. 

6

Appellate Division’s denial of Suarez’s ineffective assistance of counsel claims without

prejudice to his right to raise those claims on collateral review. “It has long been the 5

practice of this court to defer the issue of ineffectiveness of trial counsel to a collateral

attack,” United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003), and we perceive no

basis for departing from this general rule here. 

We likewise agree with the Appellate Division that the Superior Court acted well

within its discretion in admitting Inga Bryan’s testimony regarding A.B.’s out-of-court

statements about the “tasting game,” uttered approximately two hours after the incident,

under the excited utterance exception to the hearsay rule. See V.I. Code tit. 5, § 932(4)(b)

(recognizing hearsay exception for statements made “while the declarant was under the

stress of a nervous excitement caused by such perception”); accord Fed. R. Evid. 803(2). 

While Suarez protests that the time lapse between the alleged rape and A.B.’s statements

to Bryan gave her sufficient opportunity to reflect on the encounter and fabricate a story,

thereby rendering the statements beyond the scope of the excited utterance exception, we

think the Superior Court had an adequate basis to reach a contrary result considering the

age of the declarant and the nature of the event about which she spoke. See, e.g., United

States v. Hefferon, 314 F.3d 211, 222-23 (5th Cir. 2002) (upheld admissibility of child
 Suarez also complains that admission of A.B.’s out-of-court statements to Bryan 6

concerning the “tasting game” violated his Confrontation Clause rights. Based on our

review of the record, it does not appear that Suarez raised this argument before the

Superior Court, and the Appellate Division did not expressly address it on appeal. Even

assuming that Suarez properly preserved his Confrontation Clause challenge, we conclude

that it lacks merit. Consistent with his rights under the Confrontation Clause, Suarez had

the opportunity to, and did, cross-examine A.B. about the challenged statements at trial. 

7

victim’s statements, made within two hours of sexual encounter, as excited utterances,

noting that “when the victim declarant is a young child . . . the possibility of fabrication

and coaching are limited and the likelihood that the trauma from the startling event will

remain with the child for some time after the encounter is strong”) (citations omitted). 

6

Like the Appellate Division, we also find no abuse of discretion in the Superior

Court’s decision to prohibit Suarez from presenting evidence, through the testimony of

his sister-in-law, Lisa Jamil, that he had cared for young children on many occasions in

the past without incident. Contrary to Suarez’s assertion, this evidence does not

constitute habit evidence for the reasons noted by the Appellate Division, nor can it be

fairly characterized as admissible character evidence. See Gov’t of the Virgin Islands v.

Grant, 775 F.2d 508, 512 (3d Cir. 1985) (evidence proffered to show absence of prior

misconduct by defendant is not admissible as character evidence, at least in cases where

defendant’s character is not essential element of the charged offense). To the extent that

Suarez contends that the Superior Court’s adverse ruling deprived him of his

constitutional right to present a complete defense, we are unpersuaded. To establish a

constitutional violation in these circumstances, a defendant must show: (1) he was
 In reviewing a jury verdict for sufficiency of the evidence, “we determine whether 7

there is substantial evidence that, when viewed in the light most favorable to the

government, would allow a rational trier of fact to convict.” United States v. Helbling,

209 F.3d 226, 238 (3d Cir. 2000) (quoting Gov’t of the Virgin Islands v. Charles, 72 F.3d

401, 410 (3d Cir. 1995)).

 See V.I. Code tit. 14, § 1699(e). 8

8

deprived of the opportunity to present evidence in his favor; (2) the excluded evidence

was material to the defense, i.e., there is a reasonable likelihood that consideration of the

evidence would have affected the jury’s judgment; and (3) the deprivation was arbitrary

or disproportionate to any legitimate evidentiary or procedural purpose. Gov’t of the

Virgin Islands v. Mills, 956 F.2d 443, 446 (3d Cir. 1992). Suarez plainly cannot satisfy

the latter two requirements here.

As the Appellate Division also concluded, there is sufficient evidence to support

Suarez’s aggravated rape conviction under § 1700(a)(1). To meet its burden on the 7

aggravated rape charge, the government was required to prove beyond a reasonable doubt

that (1) Suarez engaged in an act of sexual intercourse or sodomy, which is defined to

include fellatio, with A.B.; (2) A.B. was not his spouse; and (3) A.B. was under the age 8

of thirteen. Suarez only takes issue with the first element, arguing that the evidence is

insufficient to establish beyond a reasonable doubt that he inserted his penis, as opposed

to some other object, into A.B.’s mouth. 

The evidence shows that the object, which Suarez expressly instructed A.B. not to

bite, resembled a penis in shape and size. The object hardened and expanded in
9

dimension while in A.B.’s mouth. After Suarez pushed A.B.’s head farther forward on

the object, she felt “little hairs” against her face. When Suarez finally removed A.B.’s

blindfold, she noticed a white-colored substance on his shorts. Considering this evidence

as a whole and in the light most favorable to the government, together with A.B.’s

testimony that she herself thought that the object in her mouth might be Suarez’s penis as

opposed to his finger or some type of food substance, we agree with the Appellate

Division that the jury could have drawn the reasonable inference that the object in A.B.’s

mouth was, in fact, Suarez’s penis.

III.

Although the Appellate Division did not specifically address Suarez’s perjury and

Brady claims, these contentions need only detain us briefly. We first reject Suarez’s

argument that the government suborned perjury by permitting A.B. to testify that the

object in her mouth started out soft and “got harder.” Suarez relies exclusively on a posttrial affidavit submitted by Nancy Bryan, A.B.’s grandmother, who did not testify at trial,

which states that A.B. told her on the night of the incident that the object Suarez placed in

her mouth only felt soft. While Bryan’s affidavit may suggest that A.B.’s trial testimony

was not wholly consistent with her earlier accounts of the incident in question, it falls far

short of establishing that A.B.’s testimony was perjurious, much less that the government

knowingly made use of false testimony to obtain Suarez’s conviction. See Lambert v.

Blackwell, 387 F.3d 210, 249 (3d Cir. 2004) (noting that “[d]iscrepancy is not enough to
 Ms. Berry had accompanied Mr. Berry to the police station. JA at 426. 9

10

prove perjury”); United States v. Payne, 940 F.2d 286, 291 (8th Cir. 1991) (mere

challenge to witness’s testimony by another witness does not establish perjury).

We also conclude that Suarez’s Brady claim lacks merit. Relying on the testimony

of Randy Berry, A.B.’s father, that the police officer to whom he reported the incident

“ripped up” the police report, JA at 426, Suarez contends that the government improperly

deprived him of access to material and potentially exculpatory evidence in the form of the

discarded police report. As Berry explained, however, the police officer “ripped up” the

police report upon learning that the incident had occurred while A.B. was in the care of

her mother, Berry’s former wife, and simply “started filling out a new one with Ms. Berry

[listed as] filing the report because the incident happened in her care.” JA at 426. There 9

is no reason to believe that the substance of the discarded police report differed in any

material way from the new report, which Suarez does not suggest was withheld from him

by the government, or that the initial report otherwise contained exculpatory information. 

IV.

We must still consider Suarez’s contention that there is insufficient evidence to

support his first-degree rape conviction. The Virgin Islands’ first-degree rape statute

provides that:

Whoever perpetrates an act of sexual intercourse or sodomy with a person-

(1) when through idiocy, imbecility or any unsoundness of mind,
11

either temporary or permanent, the person is incapable of giving

consent, or, by reason of mental or physical weakness or immaturity

or any bodily ailment, the person does not offer resistance;

(2) when the person’s resistance is forcibly overcome;

(3) when the person’s resistance is prevented by fear of immediate

and great bodily harm which the person has reasonable cause to

believe will be inflicted upon the person;

(4) when the person’s resistance is prevented by stupor or weakness

of mind produced by an intoxicating, narcotic or anaesthetic agent,

or when the person is known by the defendant to be in such state of

stupor or weakness of mind from any cause; or

(5) when the person is, at the time, unconscious of the nature of the

act and this is known to the defendantis guilty of rape in the first degree . . . . 

V.I. Code tit. 14, § 1701. 

Count Two of the Information charged that Suarez committed first-degree rape

under subsection (2) of the statute, and the government proceeded at trial solely under this

subsection. To sustain its burden under § 1701(2), the government was required to prove

beyond a reasonable doubt that: (1) Suarez perpetrated an act of sexual intercourse or

sodomy with A.B.; (2) A.B. resisted; and (3) Suarez forcibly overcame her resistance. 

Suarez contends that the his rape conviction must be overturned because the government

failed to prove that A.B. affirmatively resisted his illicit advances. We agree.

In reaching a contrary result, both the Superior Court and the Appellate Division

relied in part on A.B.’s testimony that Suarez told her she needed to “suck further up” and
 We note that resistance by the victim is a sine qua non of § 1701(2) alone; none of 10

the other four subsections of the statute contains a resistance requirement.

12

then pushed her head “a little forward.” Suarez’s actions were a direct response to A.B.’s

comment that she did not taste anything on the object in her mouth, however, and there is

no affirmative evidence in the record that A.B. offered any degree of resistance, physical

or otherwise, when he pushed her head forward. In fact, A.B. admitted that she did not

say anything to Suarez at that point in the encounter. The unfortunate reality is that A.B.

in all likelihood did not resist Suarez’s advances because she was under the

misimpression that she would be able to taste and identify the object’s flavor - the very

objective of the “tasting game” - if she simply followed Suarez’s instructions. While a

perpetrator of sodomy who employs such deceptive tactics to avoid resistance by his

victim might well be successfully prosecuted under another subsection of the Virgin

Islands’ first-degree rape statute, see § 1701(5) (criminalizing sodomy where the victim

“is, at the time, unconscious of the nature of the act and this is known to the defendant”);

see also §1701(1) (proscribing sodomy with person who “by reason of . . . immaturity . . .

does not offer resistance”), the absence of resistance by the victim is fatal to a prosecution

under § 1701(2), the only provision that concerns us here. 

10

In its resistance analysis, the Appellate Division also found it significant that

Suarez “disregard[ed]” A.B.’s subsequent “pleas to stop.” App. at F. We do not think

this is a fair characterization of the evidence, however, even when viewed in the light
 The Appellate Division also supported its analysis by emphasizing that a child victim 11

of sexual abuse need not exert that the same level of resistance that would be expected of

an adult victim. While we agree with the Appellate Division that the resistance inquiry is

highly context-specific and should include consideration of the victim’s age and maturity,

the fact remains that the record evidence here fails to demonstrate that A.B. offered any

resistance to Suarez’s conduct. To the extent that the Appellate Division relied on cases

from other jurisdictions upholding rape convictions where the child victim did not

affirmatively resist the encounter, those cases involved either inapposite factual scenarios

or prosecutions under statutes without resistance requirements. 

13

most favorable to the government. A.B. simply responded yes when asked by Suarez, in

the face of repeated requests by S.S. that he take his turn playing the “tasting game,” 

whether she wanted to stop. Suarez then placed his penis in A.B.’s mouth two or three

more times without meeting any resistance. After Suarez removed her blindfold, A.B.

promptly joined S.S. in urging him to take his turn at the game. Suarez and the two

children switched roles and continued to play the game together without objection. 

Again, while the sad truth may be that A.B. did not resist Suarez’s advances because she

failed to fully comprehend the nature of his conduct, the jury was not permitted to convict

Suarez under § 1701(2) without sufficient proof of resistance. Because we believe that 11

the government failed to meet this burden here, we will reverse Suarez’s first-degree rape

conviction under § 1701(2). 

V.

For the foregoing reasons, we will affirm Suarez’s aggravated rape conviction

without prejudice to his right to raise his ineffective assistance of counsel claims in a

petition to the Superior Court pursuant to V.I. Code tit. 5, §§ 1301-1325. We will reverse
14

his first-degree rape conviction and remand with instructions to enter a judgment of

acquittal on that charge.