NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-3283

 

GOVERNMENT OF THE VIRGIN ISLANDS

v.

MAUVILLE A. LAKE,

 Appellant

 

On Appeal from the Appellate Division of the 

District Court of the Virgin Islands

District Court No. 3-05-cr-00024-001

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

May 3, 2010

Before: SMITH, CHAGARES, and JORDAN, Circuit Judges

(Filed: May 5, 2010)

 

OPINION

 

SMITH, Circuit Judge.

On or about April 8, 2004, Mauville A. Lake and Leburn Smith transported

Elvis Burton to an empty apartment, assaulted him, forced him to telephone

another person demanding the production of cocaine in exchange for his freedom,
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tied his hands and feet, wrapped him in a sheet, and left him in a bathtub. Burton

escaped and promptly notified law enforcement authorities. Fortuitously, Burton

later happened to see the vehicle in which he had been transported, and Lake and

Smith were apprehended. During the police investigation, Lake and Smith gave

statements to Detective Cleopatra Brooks. Eventually prosecutors filed an

amended information, which contained eighteen counts, charging Lake and Smith

with, inter alia, kidnapping for ransom, false imprisonment, first degree assault,

first degree robbery, and use of a dangerous weapon, all offenses under Virgin

Islands law. 

At a joint trial, Burton testified about his ordeal, and unequivocally

identified Lake and Smith as two of the perpetrators. The prosecution also called

Detective Brooks and inquired about the contents of Smith’s statement, which

implicated Lake. Although Smith’s statement had been redacted by agreement of

the parties, when questioned by the prosecution, Detective Brooks began to read

Smith’s unredacted statement, stating Lake’s proper name six times and relating

that Lake was present when Burton entered the vehicle. When the prosecution

asked what Lake and Burton talked about while they were in the vehicle, defense

counsel objected for the first time. The objection was sustained and eventually

Detective Brooks read Smith’s redacted statement. In addition to reading the

statement to the jury, she testified about the circumstances under which she
 The Appellate Division of the District Court of the Virgin Islands had jurisdiction 1

pursuant to 48 U.S.C. § 1613a(a) and (d). We exercise appellate jurisdiction under 28 U.S.C. §

1291 and 48 U.S.C. § 1613a(c).

 Because Lake did not present legal argument on the other issues, we need not address 2

them. See Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994)

(noting that “[a]n issue is waived unless a party raises it in its opening brief, and for those

purposes ‘a passing reference to an issue . . . will not suffice to bring that issue before this

court’”); see also Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (observing that an

appellant’s failure to present legal argument in support of an issue waives that issue on appeal

and the court of appeals need not address it).

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obtained Lake’s statement and read his statement to the jury. 

After the prosecution rested, Smith did not testify. Lake did, however. He

admitted that he was with Burton the night Burton was assaulted and robbed, that

he tied Burton’s hands in an attempt to help Burton make it appear he was

kidnapped, and that there actually was a telephone call to another person about

drugs or money. The jury found Lake guilty of the offenses charged. 

Lake unsuccessfully appealed to the Appellate Division of the District Court

of the Virgin Islands. This timely appeal followed. Lake identifies three issues in 1

his “Statement of Issues,” but presents legal argument on only his assertion that

the admission of a portion of Smith’s unredacted statement violated his rights

under the Confrontation Clause. Because Lake did not object to Detective

2

Brooks’s testimony about Smith’s unredacted statement that expressly

incriminated him, we review for plain error. United States v. Olano, 507 U.S. 725,

733-36 (1993).
4

We agree that Detective Brooks’s testimony reciting the statement of 

Lake’s nontestifying co-defendant Smith, which referred to him by his proper

name and directly implicated him, violated Lake’s rights under the Confrontation

Clause. United States v. Bruton, 391 U.S. 123, 135-36 (1968). This was an

obvious error. 

Nonetheless, relief is not warranted unless Lake can demonstrate that this

error affected his substantial rights. Olano, 507 U.S. at 734. As the Supreme

Court explained, this means in most cases “that the error must have been

prejudicial: it must have affected the outcome of the district court proceedings.” 

Id. Lake plainly cannot satisfy this requirement. Burton’s testimony was, by

itself, damning. Moreover, Lake’s testimony confirmed not only that he was

present during the incident but also that he participated by tying Burton’s hands

together. Combined, this constitutes overwhelming evidence to support the jury’s

verdict. The error did not affect Lake’s substantial rights. We will, accordingly,

affirm the judgment of the District Court.