2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-9-2008

USA v. Silveus

Precedential or Non-Precedential: Precedential

Docket No. 07-3544

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-3544

___________

UNITED STATES OF AMERICA

 v.

ROZALINE SILVEUS,

 Appellant

___________

On Appeal from the District Court 

for the Virgin Islands

(No. 06-cr-00065-2)

District Judge: Honorable Curtis V. Gomez

___________

Argued May 8, 2008

Before: RENDELL, FUENTES, and 

CHAGARES, Circuit Judges

(Opinion Filed: September 9, 2008)

Everard E. Potter, Esq. (Argued)

Office of United States Attorney

United States Courthouse

5500 Veterans Building, Suite 260

Charlotte Amalie, St. Thomas

USVI, 00802-6924

Counsel for Appellee
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David J. Cattie, Esq. (Argued)

Ogletree, Deakins, Nash, Smoak & Stewart

1336 Beltjen Road, Suite 201

Charlotte Amalie, St. Thomas

USVI, 00802-0000

Counsel for Appellant

OPINION OF THE COURT

FUENTES, Circuit Judge:

Rozaline Silveus’s cohabitant and boyfriend, Dorsainvil

Jean, failed to report for deportation, prompting a search by

immigration authorities. After agents failed to find Jean at their

residence, an immigration agent received an anonymous tip that

Silveus and Jean were transporting illegal aliens from St. John to

St. Thomas on a ferry. The primary issues on appeal are the

constitutional validity of the subsequent seizure and arrest of

Silveus on the ferry, and the sufficiency of the evidence to support

Silveus’s convictions for harboring Jean at their apartment and

transporting illegal aliens. Because immigration officials had

reasonable suspicion that Silveus would be transporting an illegal

alien and fugitive, her seizure and arrest were lawful. However, we

conclude that the evidence produced at trial was insufficient to

support Silveus’s harboring conviction.

I.

While the appellant in this case is Rozaline Silveus, the

factual history begins with the search for her boyfriend and

codefendant, Dorsainvil Jean. Jean, a Haitian national, was denied

asylum and ordered to depart the United States on February 8,

2006. However, Jean violated this order and remained in the

Virgin Islands, prompting a search by agentsfrom Immigration and

Customs Enforcement (“ICE”). ICE was familiar with both Jean

and Silveus, who were in business together filing asylum papers

and serving as translators for recently arrived Haitian aliens. 
-3-

Sometime in early April 2006, ICE followed a lead to Jean

and Silveus’s apartment in St. Thomas, where they had been living

under a joint lease entered into before Jean was ordered to depart

the United States. Agent Michael Harrison, one of two agents who

visited Silveus’s apartment, testified that “[a]s I approached the

apartment, I heard the door of the apartment slam. Then I heard

bushes break. And as I rounded the corner, I saw Ms. Silveus

shutting the front door. . . . She opened the window and talked to

me through the window.” App. 157-58. Silveus allegedly stated

that Jean was not in the apartment and that she “didn’t know” if

anyone had run out of the apartment prior to the agents’ arrival.

App. 158. She refused the officers’ request to look in the

apartment for his personal belongings. Agent Harrison and another

agent returned to the apartment the following month, but were told

by the landlord’s daughter that Silveus and Jean were not present.

Four months later, on September 15, 2006, Agent Harrison

received a phone call at his office from an anonymous informant,

who stated that Jean and Silveus were in St. John to pick up illegal

aliens and transport them in Silveus’s SUV to St. Thomas via car

ferry, a journey of about four miles. The informant identified Jean

and Silveus by name, and identified the license plate number and

color of Silveus’s SUV. According to Agent Harrison’s testimony

at a suppression hearing, he received a similar tip from a person

with an identical voice two weeks earlier, leading him to believe

that this was the same informant. Agent Harrison testified that he

“gave all the information to the Deportation Section, and because

[Jean] was illegally in the country, [two agents, Roy Rogers and

Jason Allen,] were dispatched” to the St. Thomas landing point to

intercept the ferry from St. John. App. 59. 

When the ferry arrived, Agents Rogers and Allen prevented

all passengers from disembarking, then boarded the boat and

located the SUV that had been identified by the informant. The

agents observed Silveus in the driver’s seat, a pair of pants on the

passenger seat, and two individuals, later identified as Marctenson

Marc and Marie Dana Supreme, in the back seat. Marc and

Supreme could not speak English and could not communicate with

the agents. According to Agent Harrison’s suppression hearing

testimony, although Marc and Supreme were inside Silveus’s SUV,
Jean was charged with three counts of transporting illegal 1

aliens and one count of failing to report for deportation.

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their clothing was wet, suggesting that they had been in the water

before boarding the ferry. This testimony was unopposed by

defense counsel at the suppression hearing, but, at trial, both Marc

and Supreme testified that they were wearing dry clothing. One of

the arresting officers, Agent Rogers, could not recall at trial

whether Marc and Supreme were wearing wet clothing, but he

stated that they appeared “nervous,” “scared,” and “disoriented.”

App. 326-27. 

Agent Rogers also testified at trial that he asked Silveus

where Jean was and she responded that he remained behind in St.

John. The agents did not believe Silveus and wanted to obtain a

translator to question Marc and Supreme, so they detained all three

passengers in the agents’ van and removed the SUV from the ferry.

Shortly thereafter, the agents spotted Jean treading water near the

ferry. After arresting him, they brought all four detainees and

Silveus’s SUV to the immigration office, where Marc and Supreme

promptly admitted through a translator that they were illegal aliens

from Haiti. 

Two days after Silveus’s arrest, Agent Harrison conducted

an inventory search of the SUV and found Haitian identification

documents under the front passenger floor mat for Marc and at

least one other Haitian, Gordany Vancol. Sometime thereafter,

Vancol applied for asylum and informed agents that he too was in

Silveus’s SUV, but was concealed in the rear of the vehicle. He

stated at trial that he escaped undetected while the agents were

apprehending Jean.

A federal grand jury returned a joint indictment against Jean

and Silveus, charging Silveus with three counts of aiding and

abetting the transportation of three illegal aliens—Supreme, Marc,

and Vancol—in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). In

addition, Silveus was charged with one count of harboring and

shielding Jean at their apartment in St. Thomas in violation of 8

U.S.C. § 1324(a)(1)(A)(iii).1
The District Court exercised original jurisdiction over this 2

case pursuant to 48 U.S.C. § 1612(a) and 18 U.S.C. § 3231. We

have appellate jurisdiction under 28 U.S.C. § 1294(3) and 28

U.S.C. § 1291. 

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On the morning of trial, Silveus moved to suppress the

evidence seized from her car, arguing that the initial seizure of the

ferry and her subsequent arrest violated her Fourth Amendment

rights. This motion was denied, and the case proceeded to trial.

Following the close of the government’s case-in-chief,

Silveus moved for an acquittal under Federal Rule of Criminal

Procedure 29, alleging that the government produced insufficient

evidence to support a conviction. The District Court denied this

motion. After both parties rested, the jury returned a guilty verdict

on all counts. Silveus then filed post-trial motions requesting

reconsideration of the motion to suppress, the motion for acquittal

under Rule 29, and seeking a new trial under Rule 33 because “the

interest of justice so requires.” Fed. R. Crim. P. 33. The District

Court denied these motions, and sentenced Silveus to 16 months’

imprisonment.

Silveus appeals. She challenges the District Court’s denial

of her motion to suppress, motion to acquit, and motion for a new

trial. She also argues that she was denied the right to present a

defense because the District Court improperly curtailed her crossexamination of Agent Harrison regarding a previous prosecution of

her co-defendant, Jean.2

II.

Silveus challenges the District Court’s denial of her motion

to suppress the evidence seized from her vehicle. She argues that

the identification documents found under the front floor mat, and

the testimony of Marc and Supreme, were all obtained as a result

of an unlawful seizure. In denying the motion to suppress, the

District Court stated that 

given the totality of the circumstances, the Court
In the alternative, the District Court held that the search 3

was a proper border search. See United States v. Ramsey, 431

U.S. 606, 619 (1977). At oral argument the government distanced

itself from this holding, presumably because the ferry was

traveling between two United States ports. Because we conclude

that the search and seizure was constitutional on other grounds, we

need not address the District Court’s alternative holding.

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[concludes] that the tip received . . . by Agent

Harrison about someone being Mr. Dorsainvil Jean

in this case, and the possibility of transportation of

illegal immigrants, certainly if no place else, at the

border, [permitted] the agents [to] make an inquiry,

which is what they did.

And the Court finds that the inferences made from

what they observed were reasonable inferences, and

the arrest was proper. And so the search incident to

that arrest was proper.

App. 78-79. We “review[] the district court’s denial of the motion 3

to suppress for ‘clear error as to the underlying facts, but exercise

plenary review as to its legality in light of the court’s properly

found facts.’” United States v. Riddick, 156 F.3d 505, 509 (3d Cir.

1998) (quoting United States v. Inigo, 925 F.2d 641, 656 (3d Cir.

1991)) (alterations omitted). 

The Fourth Amendment protects individuals from

“unreasonable searches and seizures.” U.S. Const. amend IV. Our

analysis necessarily begins by identifying the moment when

Silveus was first “seized.” We then must determine whether that

seizure was reasonable, i.e., whether there was reasonable

suspicion of criminal activity. See United States v. Mosley, 454

F.3d 249, 257 (3d Cir. 2006). A seizure occurs “when [an] officer,

by means of physical force or show of authority, has in some way

restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19

n.16 (1968); see also United States v. Williams, 413 F.3d 347, 352

(3d Cir. 2005). In this case, a seizure occurred when the agents,

through a show of authority, prevented Silveus from disembarking
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the ferry. Cf., Mosley, 454 F.3d at 253 (“[I]t is settled law that a

traffic stop is a seizure of everyone in the stopped vehicle.”). 

Generally, warrantless searches and seizures are per se

unreasonable under the Fourth Amendment. See Williams, 413

F.3d at 351. However, there are several exceptions to this rule.

The parties agree that the proper focus in this case is whether the

exception for short investigatory stops, or Terry stops, is applicable

to Silveus’s initial seizure. 

The Fourth Amendment permits law enforcement to stop

vehicles briefly for further investigation when there is reasonable

suspicion that criminal activity may be afoot. See Alabama v.

White, 496 U.S. 325, 328-30 (1990). Reasonable suspicion

requires “‘some minimal level of objective justification’ for

making the stop.” White, 496 U.S. at 329-30 (quoting INS v.

Delgado, 466 U.S. 210, 217 (1984)). This is a lower hurdle than

the probable cause necessary to obtain a search warrant, given the

lesser infringement on an individual’s liberty. “[P]robable cause

means ‘a fair probability that contraband or evidence of a crime

will be found,’ and the level of suspicion required for a Terry stop

is obviously less demanding than for probable cause.” Id. at 330

(quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). While the

standards are different, both reasonable suspicion and probable

cause require the Court to consider the totality of the

circumstances. Id. When one circumstance leading to a Terry stop

is an anonymous tip of criminal activity, we consider its degree of

reliability. As the Supreme Court stated in White, “if a tip has a

relatively low degree of reliability, more information will be

required to establish the requisite quantum of suspicion than would

be required if the tip were more reliable.” Id. By “information,”

White implies corroborative information known to or discovered

by the police, which can, when coupled with the tip, create

reasonable suspicion to make a stop. See id. at 329-30.

In this case, the ICE agents had reasonable suspicion that

Jean, a fugitive, would be on the ferry, and that Silveus would be

transporting him. The ICE agents were familiar with both Silveus

and Jean because they filed asylum papers and translated for

asylum applicants who often appeared at ICE’s offices in St.
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Thomas. The agents were aware that Silveus and Jean lived

together and were involved in a romantic relationship. Finally,

they knew that Jean’s asylum application had been denied and he

had failed to report for deportation. The anonymous informant

identified Jean and Silveus by name, placed them together, and

identified Silveus’s car by color and license plate number. The tip

appeared to be reliable, given that it was corroborated by the

agents’ prior knowledge. At that point they had reasonable

suspicion that two crimes were being committed on the ferry:

Jean’s failure to report for deportation, and Silveus’s transportation

of Jean, an illegal alien and fugitive. 

Silveus cites to Florida v. J.L., 529 U.S. 266 (2000), as

support for her argument that the initial stop was made without the

requisite reasonable suspicion. In J.L., the police received an

anonymous tip that an unnamed black male in a plaid shirt was

standing at a bus stop with a gun. Id. at 268. Based solely on this

anonymous tip, two police officers approached three black males

standing near the bus stop, one of whom was wearing a plaid shirt.

Id. The officers frisked each of them, and found a gun in the

pocket of the male in the plaid shirt. Id. The Supreme Court noted

that the police officers only corroborated the defendant’s “readily

observable location and appearance,” while “[t]he reasonable

suspicion here at issue requires that a tip be reliable in its assertion

of illegality, not just in its tendency to identify a determinate

person.” Id. at 272. Because the Terry stop in that case was made

without reasonable suspicion of criminal activity, the Supreme

Court held that it violated the Fourth Amendment, warranting

suppression of the firearm. 

Unlike the tip in J.L., the anonymous tipster in the present

case provided information already known to the agents about

ongoing criminal activity: Jean’s continued failure to report for

deportation. The informant also stated that Jean and Silveus were

together in Silveus’s vehicle. Given the agents’ prior knowledge

of the close relationship between Silveus and Jean, these details

permitted a reasonable belief that the tip was in fact accurate. In

short, when the tipster identified Jean, Silveus, and Silveus’s

vehicle, given the agents’ prior knowledge, we believe they had a

“reasonable, articulable suspicion that criminal activity [was]
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afoot,” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry,

392 U.S. at 30), and they were justified in stopping Silveus from

disembarking the ferry so that they could investigate further.

We have stated that following a valid investigatory stop, “an

officer who develops a reasonable, articulable suspicion of criminal

activity may expand the scope of an inquiry beyond the reason for

the stop and detain the vehicle and its occupants for further

investigation.” United States v. Givan, 320 F.3d 452, 458 (3d Cir.

2003); see also Mosley, 454 F.3d at 255 n.9 (“A traffic stop

requires only reasonable suspicion to believe that a traffic violation

has been committed. But detaining the vehicle longer than is

necessary to effectuate the legitimate response to that traffic

violation requires independent suspicion that some other crime is

afoot.”). That is precisely what happened in this case. Once Agent

Rogers located Silveus’s vehicle on the ferry, he observed that

there were pants on the empty front passenger seat and two visibly

nervous passengers in the rear who could not speak English. These

observations lent credence to the original tip that Silveus would be

transporting illegal aliens in her SUV on the ferry. While the initial

Terry stop was justified by a reasonable suspicion of Jean’s

continued failure to report for deportation and Silveus’s

transporting of Jean, the officers developed an independent

suspicion, once on the ferry, that Silveus was transporting other

illegal aliens.

Silveus’s primary argument in challenging the validity of

her subsequent arrest is that the District Court placed undue

reliance on the wetness of the aliens’ clothes, a finding suggested

at the suppression hearing, but later undermined at trial. In

reviewing the denial of a motion to suppress evidence, “this court

may look at the entire record; it is not restricted to the evidence

presented at the suppression hearing where the motion was

denied.” Gov’t of Virgin Islands v. Williams, 739 F.2d 936, 939

(3d Cir. 1984). Even absent the suppression hearing testimony

regarding Marc and Supreme’s wet clothing, there was still trial

testimony by Agent Rogers that Marc and Supreme appeared

“nervous,” “scared,” and “disoriented.” App. 326-27. We

conclude, in consideration of the totality of the circumstances, that

“the objective facts available to the officers at the time of arrest
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were sufficient to justify a reasonable belief that an offense was

being committed,” thereby justifying Silveus’s arrest. United

States v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984). 

Finally, two days following Silveus’s arrest, Agent Harrison

found identification documents for several Haitian aliens during a

routine inventory search of Silveus’s impounded vehicle.

Inventory searches are excepted from the general warrant

requirement for several reasons: to protect the owner’s property

while it remains in police custody, to protect the police from claims

or disputes over lost property, and to protect the police from

potential danger. See South Dakota v. Opperman, 428 U.S. 364,

369 (1976). Silveus does not argue that the police “acted

unreasonably in impounding and removing the vehicle” following

a lawful arrest, United States v. Smith, 522 F.3d 305, 315 (3d Cir.

2008), and does not contest that the police can undertake an

inventory search following a lawful arrest and impoundment.

Rather, she only argues that the initial arrest was unlawful.

Because we reach the opposite conclusion, we will affirm the

District Court’s denial of the motion to suppress the evidence

found in Silveus’s vehicle. 

III.

Silveus’s next contention is that the jury’s verdict rested on

insufficient evidence, warranting an acquittal under Federal Rule

of Criminal Procedure 29. We exercise plenary review over a

district court’s grant or denial of a motion for acquittal based on the

sufficiency of the evidence, applying the same standard as the

district court. United States v. Brodie, 403 F.3d 123, 133 (3d Cir.

2005). Hence, we apply “a particularly deferential standard of

review,” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)

(citations omitted), viewing “the record in the light most favorable

to the prosecution to determine whether any rational trier of fact

could have found proof of guilt beyond a reasonable doubt based

on the available evidence.” United States v. Smith, 294 F.3d 473,

476 (3d Cir. 2002) (quoting United States v. Wolfe, 245 F.3d 257,

262 (3d Cir. 2001)). 

A.
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Silveus was indicted and convicted for three counts of

violating 8 U.S.C. § 1324(a)(1)(A)(ii) by aiding and abetting the

transportation of Marc, Supreme, and Vancol from St. John to St.

Thomas. Section 1324(a)(1)(A)(ii) penalizes a person who 

knowing or in reckless disregard of

the fact that an alien has come to,

entered, or remains in the United

States in violation of law, transports,

or moves or attempts to transport or

move such alien within the United

States by means of transportation or

otherwise, in furtherance of such

violation of law.

8 U.S.C. § 1324(a)(1)(A)(ii). To sustain a conviction under this

section, the government must prove that (1) the defendant

transported or attempted to transport an alien within the United

States, (2) the alien was in the United States illegally, (3) the

defendant knew of or recklessly disregarded the fact that the alien

was in the United States illegally, and (4) the defendant acted

willfully in furtherance of the alien’s violation of the law. See

United States v. Williams, 132 F.3d 1055, 1059 (5th Cir. 1998);

United States v. Parmelee, 42 F.3d 387, 391 & n. 5 (7th Cir. 1994);

see also United States v. Barajas-Chavez, 162 F.3d 1285, 1288

(10th Cir. 1999).

Silveus challenges the sufficiency of the evidence with

respect to the fourth element: whether she acted willfully in

furtherance of Marc, Supreme, and Vancol’s violation of the law.

She argues that the evidence only proved that she was giving a ride

to the Haitians; it did not support a finding that she intended “to

deliberately assist an alien in maintaining his or her illegal presence

in this country.” Appellant’s Br. 24 (quoting United States v.

Stonefish, 402 F.3d 691, 695 (6th Cir. 2005) (citation and quotation

marks omitted)). 

The government produced several witnesses to testify about

the transporting charges. Rock Feller Sorel was a Haitian national

who traveled from St. Maarten to St. John on the same night as
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Marc, Supreme, and Vancol. He testified that soon after he arrived

in St. John at 2:00 A.M., Silveus and Jean approached him and the

other illegal aliens and collected identification documents and

money for transportation to St. Thomas. Next, both Marc and

Vancol testified that either Silveus or Jean collected their

identification documents before they got into Silveus’s SUV, which

she drove onto the ferry. Vancol additionally testified that Silveus

and Jean hid him in the rear of the vehicle prior to boarding the

ferry. Moreover, the government produced Haitian identification

documents that had been concealed underneath the front passenger

side floor mat of Silveus’s vehicle. Finally, the jury was informed

that Silveus was in the business of filing asylum papers and

translating for Haitian aliens, which supported the government’s

theory that Silveus and Jean transported the illegal aliens not as a

friendly gesture, but rather to develop their client base. 

Given the evidence presented at trial, a rational juror could

have concluded that Silveus acted with the intent to further Marc,

Supreme, and Vancol’s illegal presence in the United States. We

will therefore affirm the District Court’s denial of Silveus’s motion

to dismiss the transporting conviction for insufficiency of the

evidence.

B.

Silveus was also charged with, and convicted on, one count

of harboring Jean “within an apartment at 5-24 Estate Sorgenfri”

from “February 8, 2006 up to and including September 15, 2006,”

in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). App. 22. The

relevant section is violated if a person, 

knowing or in reckless disregard of the fact that an

alien has come to, entered, or remains in the United

States in violation of law, conceals, harbors, or

shields from detection, or attempts to conceal,

harbor, or shield from detection, such alien in any

place, including any building or any means of

transportation. 

8 U.S.C. 1324(a)(1)(A)(iii). To sustain a conviction under this
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section, the government must prove “conduct tending substantially

to facilitate an alien’s remaining in the United States illegally and

to prevent government authorities from detecting [the alien’s]

unlawful presence.” United States v. Ozcelik, 527 F.3d 88, 99 (3d

Cir. 2008) (quotation marks and alteration omitted).

Silveus knew that Jean was an illegal alien in the United

States. Therefore, the only issue on appeal is whether Silveus

“harbored” him at her apartment, as charged in the indictment. The

government does not dispute that cohabitation with Jean, taken

alone, does not constitute “harboring” within the meaning of the

statute. Rather, the government asserts that there was sufficient

evidence for a reasonable juror to conclude that Silveus violated

the harboring provision of § 1324 in early April when Agent

Harrison visited the apartment looking for Jean. The government’s

only evidence offered at trial to support the harboring conviction

is Agent Harrison’s testimony: 

Q. And when you went [to the apartment]

searching for [Jean], what, if anything,

happened?

***

A. As I approached the apartment, I heard the

door of the apartment slam. Then I heard

bushes break. And as I rounded the corner, I

saw Ms. Silveus shutting the front door.

Q. And when you saw Ms. Silveus shutting the

front door, what, if anything, did you do?

A. She opened the window and talked to me

through the window. . . . I asked her if

Dorsainvil Jean was in the apartment. And

she told me, no. And I asked her if any of his

personal belongings were in the apartment.

Could I come in and look. And she told me,

no.
At oral argument, the government suggested that there was 4

sufficient evidence for the jury to conclude that Jean was running

into the apartment, rather than out of the apartment. To accept that

conclusion, however, the jury would have to disagree with the

government’s only witness, who presumed that Jean was running

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Q. Did you ask her any questions regarding your

observations of the bushes?

A. Yes, sir. I asked if anybody had run out of

the apartment. And she said she didn’t know.

App. 157-58. Agent Harrison later stated that Silveus “more or less

shut the door in my face.” App. 227. Based on this account, the

District Court denied Silveus’s Rule 29 motion, stating that “there

was testimony that Ms. Silveus, I believe, slammed the door or

closed the door in the face of Agent Harrison. The jury could infer

from that . . . she has reasonable control over the premises.” App.

418. 

Reasonable control of the premises, however, is not an

element of “harboring” under § 1324. Rather, the government had

to prove that Silveus’s “conduct tend[ed] substantially to facilitate

[Jean’s] remaining in the United States illegally and to prevent

government authorities from detecting his unlawful presence.”

Ozcelik, 527 F.3d at 99 (quotation marks and alteration omitted).

After giving the government the benefit of every reasonable

inference, we find Agent Harrison’s testimony insufficient for a

reasonable juror to find, beyond a reasonable doubt, that Silveus’s

conduct constituted “harboring” within the meaning of § 1324.

Agent Harrison conceded at trial that he never saw Jean on the day

he went to the apartment. Hence, to conclude that Silveus was

“harboring” Jean, a juror would have to conclude that Jean ran out

of the apartment based on Agent Harrison’s account of the noises

in the bushes, the fact that Silveus was shutting the door as Agent

Harrison rounded the corner, and Agent Harrison’s testimony that

Silveus said she “didn’t know” whether anybody had run out of the

apartment. App. 157-58. A jury may use circumstantial evidence 4
out of the apartment. 

Silveus also moved for a new trial on her harboring 5

conviction. Because we are dismissing that conviction for

insufficient evidence, we need not consider it in this section.

-15-

to support reasonable inferences of fact. See United States v.

McNeill, 887 F.2d 448, 450 (3d Cir. 1989) (“Inferences from

established facts are accepted methods of proof when no direct

evidence is available so long as there exists a logical and

convincing connection between the facts established and the

conclusion inferred.”). But in this case the evidence supports no

more than mere speculation as to Jean’s presence. 

We conclude that no reasonable juror could have found

Silveus guilty of harboring Jean at their joint apartment based on

the evidence presented at trial. Because the harboring conviction

is based on legally insufficient evidence, we will reverse the denial

of the Rule 29 motion as to that charge, and vacate Silveus’s

conviction for harboring Jean in violation of § 1324.

V.

Silveus next contends that the District Court erred in

denying her motion for a new trial on her conviction for aiding and

abetting the transportation of illegal aliens, arguing that Vancol’s

testimony was perjured. Federal Rule of Criminal Procedure 33 5

provides that “[u]pon the defendant’s motion, the court may vacate

any judgment and grant a new trial if the interest of justice so

requires.” Fed. R. Crim. P. 33. “Unlike an insufficiency of the

evidence claim, when a district court evaluates a Rule 33 motion it

does not view the evidence favorably to the Government, but

instead exercises its own judgment in assessing the Government’s

case.” United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002).

However, even if a district court believes that the jury verdict is

contrary to the weight of the evidence, it can order a new trial “only

if it believes that there is a serious danger that a miscarriage of

justice has occurred—that is, that an innocent person has been

convicted.” Id. (citation and quotation marks omitted). We review

the denial of a motion for a new trial pursuant to Rule 33 for abuse
-16-

of discretion. United States v. Jasin, 280 F.3d 355, 360 (3d Cir.

2002). Such motions are not favored and should be “granted

sparingly and only in exceptional cases.” Gov’t of Virgin Islands

v. Derricks, 810 F.2d 50, 55 (3d Cir. 1987) (citations omitted).

Silveus argues that Vancol’s story that he was in the car but

unnoticed by the agents was “so incredible as to deny any

indication that the jury actually considered the facts when entering

its verdict.” Appellant’s Br. 30. We disagree. Given Vancol’s

testimony that he was concealed in the back of Silveus’s SUV, and

the fact that Vancol’s identification documents were found under

the front passenger floor mat, the District Court did not abuse its

discretion in rejecting Silveus’s argument that the jury verdict was

against the weight of the evidence. We will therefore affirm the

District Court’s denial of Silveus’s motion for a new trial pursuant

to Rule 33.

VI.

Silveus’s final argument is that the District Court violated

her Sixth Amendment right of confrontation when it limited her

cross-examination of Agent Harrison regarding potential bias, and

therefore abused its discretion by not granting her motion for a

severance. In particular, Silveus wanted to question Agent

Harrison about a prior prosecution of Jean, which resulted in an

acquittal. Agent Harrison, she argues, felt personally insulted by

the acquittal. When Jean failed to depart the United States, Agent

Harrison obsessively pursued him, frequently requesting that

Silveus turn him over to the immigration authorities. In addition,

Silveus contends that Agent Harrison made romantic passes at

Silveus. According to Silveus, “[w]hen [she] would not submit to

[Agent] Harrison’s advances and requests, she too became a

subject of Harrison’s obsession, resulting, ultimately, in her arrest,

conviction, and possible deportation.” Appellant’s Br. 61.

During trial, counsel for Jean objected to Silveus’s questions

concerning Jean’s prior prosecution. The District Court sustained

these objections, finding that testimony regarding Jean’s prior

prosecution would be more prejudicial than probative. See Fed R.

Evid. 403 (“Although relevant, evidence may be excluded if its
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probative value is substantially outweighed by the danger of unfair

prejudice . . . .”). The District Court explained the scope of its

limitation: “If you want to explore bias, you can do that. If you

want to question this witness’s credibility, you can do that. But

what you cannot do, I’ll just make it clear, is go into a prior

prosecution.” App. 199. We review both a district court’s denial

of a motion for a severance and limitation on cross-examination for

abuse of discretion. United States v. Balter, 91 F.3d 427, 433 (3d

Cir. 1996); United States v. Ellis, 156 F.3d 493, 498 (3d Cir. 1998).

“There is a preference in the federal system for joint trials

of defendants who are indicted together,” because “[t]hey promote

efficiency and ‘serve the interests of justice by avoiding the scandal

and inequity of inconsistent verdicts.’” Zafiro v. United States, 506

U.S. 534, 537 (1993) (quoting Richardson v. Marsh, 481 U.S. 200,

210 (1987)). Nevertheless, Federal Rule of Criminal Procedure

14(a) states that “[i]f the joinder of . . . defendants . . . for trial

appears to prejudice a defendant . . . , the court may . . . sever the

defendants’ trials, or provide any other relief that justice requires.”

Id. The Supreme Court has declined to adopt a bright-line rule for

severance anytime defendants have conflicting defenses. Zafiro,

506 U.S. at 538. Instead, the Supreme Court has instructed that

trial courts should grant a severance under Rule 14 “only if there

is a serious risk that a joint trial would compromise a specific trial

right of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at

539. 

The question presented, then, is whether the District Court’s

limitation on cross-examination compromised Silveus’s right to

confrontation. The Confrontation Clause of the Sixth Amendment

guarantees the right of a criminal defendant “to be confronted with

the witnesses against him.” U.S. Const. amend. VI. The Supreme

Court has held that “[t]he main and essential purpose of

confrontation is to secure for the opponent the opportunity of

cross-examination.” Davis v. Alaska, 415 U.S. 308, 315-316

(1974) (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed.

1940)). Moreover, “exposure of a witness’ motivation in testifying

is a proper and important function of the constitutionally protected

right of cross-examination.” Id. at 316-317 (citing Greene v.
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McElroy, 360 U.S. 474, 496 (1959)). Nevertheless, “trial judges

retain wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on such cross-examination

based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.”

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

In United States v. Chandler, 326 F.3d 210 (3d Cir. 2003),

we established a two-part test to determine whether a judge’s

limitation on cross-examination violates the Confrontation Clause:

First, we must determine whether that ruling

significantly inhibited [a defendant’s] effective

exercise of her right to inquire into [the] witness’s

‘motivation in testifying’; and second, if the District

Court’s ruling did significantly inhibit [the

defendant’s] exercise of that right, whether the

constraints it imposed on the scope of [the]

cross-examination fell within those ‘reasonable

limits’ which a trial court, in due exercise of its

discretion, has authority to establish. 

Id. at 219.

We conclude that the District Court’s limitations did not

inhibit Silveus’s effective exercise of her right to inquire into bias,

and therefore the District Court did not abuse its discretion by

limiting Silveus’s cross-examination of Agent Harrison. Silveus

claims that she became “a subject of Harrison’s obsession” only

after she refused to “submit to Harrison’s advances and requests.”

Appellant’s Br. 61. Up until that time, Silveus contends that Agent

Harrison sought a romantic relationship and her assistance in

apprehending Jean for his failure to depart. Silveus inquired about

Agent Harrison’s requests that Silveus break up with Jean, turn him

over to the authorities, and date Agent Harrison instead:

Q. [O]n several occasions you asked Ms. Silveus

to – you told her that she should cease her

relationship with Mr. Jean; is that correct?
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A. I don’t believe I used those words.

Q. What words did you in fact use, sir?

A. I asked her to have Mr. Jean turn himself in.

Q. And was that the limit of your conversations

with Ms. Silveus?

A. Yes, sir. It was just in passing.

Q. Did you ever have occasion to ask Ms.

Silveus out on a date?

A. Never.

App. 205. Silveus was only precluded from questioning Agent

Harrison about Jean’s prior prosecution, and this reasonable

limitation did not “significantly inhibit” her “effective exercise of

her right to inquire into [the] witness’s ‘motivation in testifying.’”

Chandler, 326 F.3d at 219. Therefore, we conclude that the

District Court did not abuse its discretion by limiting Silveus’s

cross-examination of Agent Harrison.

VII.

For the foregoing reasons, we will affirm the District

Court’s denial of Silveus’s suppression motion, motion to dismiss

the transporting convictions for insufficiency of the evidence, and

motion for a new trial under Rule 33. We also conclude that the

District Court did not abuse its discretion by limiting Silveus’s

cross-examination of Agent Harrison. However, we will reverse

Silveus’s conviction for harboring Jean at their apartment, because

the government produced insufficient evidence at trial to support

a conviction.