2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-19-2012

USA v. Sean Gerard

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-4581

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-4581

____________

UNITED STATES OF AMERICA

v.

SEAN GERARD,

 Appellant

____________

On Appeal from the District Court

of the Virgin Islands

(D.C. No. 09-cr-00013)

District Judge: Honorable Anne E. Thompson

____________

Argued December 4, 2012

Before: SMITH, HARDIMAN and ROTH, Circuit Judges.

(Filed: December 19, 2012)

Alphonso G. Andrews, Jr. [Argued]

Allan John-Baptiste

Office of United States Attorney

1108 King Street

Suite 201

Christiansted, St. Croix, VI 00820

Attorney for Plaintiff-Appellee

Yohana M. Manning [Argued]

Second Floor

53A Company Street

Christiansted, VI 00820

Attorney for Defendant-Appellant
2

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Sean Gerard appeals the District Court’s order denying his motion for a new trial 

following his convictions for murder and firearms offenses. He claims there was 

insufficient admissible evidence to support a guilty verdict. Because we discern no error 

by the District Court, we will affirm.

I

We write for the parties, who are well acquainted with the case, so we review only 

briefly the essential facts and procedural history.

In June 2009, a grand jury charged Gerard with the May 6, 2009, murder of Alfred 

Hendricks in the Mon Bijou neighborhood of St. Croix and various firearms-related 

offenses.1

 1 In addition to first degree murder in violation of 14 V.I.C. §§ 922(a)(1) and 

923(a), the grand jury charged Gerard with: being a felon in possession of a firearm in 

violation of 18 U.S.C. §§ 922(g) and 924(a)(2); receiving a firearm while under 

information in violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(d); and unauthorized 

possession of a firearm in violation of 14 V.I.C. § 2253(a).

 Arkeisha Hughes testified to the grand jury that on the day of the murder she 

had seen Gerard and another person fighting over a bicycle. She said that Gerard pulled a 

hammer out of his pants and used it to beat the other individual. Hughes then saw Gerard 
3

go inside and grab a gray-and-black firearm and she heard shots fired. Although she did 

not witness the shooting, Hughes testified that, after she heard the gunshots, she saw 

Gerard go up the road.

At Gerard’s jury trial, Hughes did an about-face, testifying that her statement 

before the grand jury was a lie, that she was not in Mon Bijou on May 6, 2009, and that 

her boyfriend, James Rock, had provided her with the details of Gerard’s attire, the 

altercation between Gerard and the third party, the gun, and the shooting. The 

prosecution then impeached Hughes with her grand jury testimony. Later in the trial, the 

Court permitted a Government witness to read into the record the portions of Hughes’s 

grand jury testimony that contradicted her trial testimony as a prior inconsistent statement, 

over defense counsel’s objection.

In addition to Hughes, several others testified about what happened in Mon Bijou 

on the day of the murder. A neighbor recalled hearing gunshots and seeing Gerard 

walking away from the area from which the shots were fired with his hands under his 

shirt. Rock testified that he witnessed an argument between Gerard and another 

individual, heard two shots fired, and saw Gerard leave the area from which the shots 

were fired. Sergeant Robert Matthews of the Virgin Islands Police Department recounted 

his interaction with Gerard soon after the shooting, during which Gerard “started acting 

very nervous” and “wouldn’t make eye contact” with the officer. Matthews also noticed 

cuts on Gerard’s forearm. Rashid Ali recalled hearing shots fired and seeing someone 
4

rapidly exit the area from which the discharges originated. Ali had previously identified 

that person as Gerard in a photo array.

On April 14, 2010, the jury found Gerard guilty of first degree murder and 

unauthorized possession of a firearm. The next day, the District Court conducted a bench 

trial and found Gerard guilty on the remaining counts of being a felon in possession of a 

firearm and receiving a firearm while under information. After Rock swore in a 

declaration that he provided Hughes with the information she used to testify before the 

grand jury, Gerard filed a motion requesting a new trial based on newly discovered 

evidence. The District Court denied the motion and later sentenced Gerard to life 

imprisonment on the murder conviction to be served concurrently with shorter sentences

on the three firearms convictions. This appeal followed.

II2

Gerard makes three interrelated arguments on appeal: (1) the District Court abused 

its discretion when it allowed the Government to read Hughes’s grand jury testimony into 

the record as substantive evidence; (2) without Hughes’s grand jury testimony, the trial 

jury had insufficient evidence to convict Gerard of any of the charged crimes; and (3) the 

Court erred when it denied Gerard’s motion for a new trial. We address each of these 

issues and their respective standards of review in turn.

 2 The District Court had jurisdiction under 18 U.S.C. § 3231 and 48 U.S.C. 

§ 1612(a), and we have jurisdiction under 28 U.S.C. § 1291.
5

A

The admissibility of Hughes’s grand jury testimony turns on whether it was 

“inconsistent” with her testimony at trial under Federal Rule of Evidence 801(d)(1). “To 

the extent that our review of the District Court’s determination implicates its 

interpretation of the Federal Rules of Evidence, our review is plenary, but where the 

District Court’s ruling was ‘based on a permissible interpretation of a rule,’ we review 

only for an abuse of discretion.” United States v. Peppers, 302 F.3d 120, 137 (3d Cir. 

2002) (quoting United States v. Console, 13 F.3d 641, 656 (3d Cir. 1993)).

Rule 801(d)(1) provides that a witness’s prior statement is not considered hearsay 

and is admissible as substantive evidence where: “The declarant testifies and is subject to 

cross-examination about a prior statement, and the statement: (A) is inconsistent with the 

declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other 

proceeding or in a deposition . . . .”

At trial, Hughes testified on direct examination that she was not in Mon Bijou on 

the date of the murder, that she had received the entire account secondhand from her 

boyfriend, Rock, and that she could not remember many of the events of May 6, 2009. 

She reiterated these assertions during cross-examination. This testimony was a complete 

reversal of her sworn grand jury testimony, in which she offered a detailed, first-person 

account that included: Gerard’s attire; his attack on another with a hammer; his retrieval 

of a gun; hearing gunshots; and seeing Gerard’s subsequent departure from the scene of 
6

the crime. The inconsistency of Hughes’s trial testimony extends to her purported lack of 

memory regarding both the day’s events and her grand jury testimony.

We have noted that “inconsistency under Rule 801(d)(1)(A) is not limited to 

diametrically opposed statements.” United States v. Mornan, 413 F.3d 372, 379 (3d Cir. 

2005) (citation omitted); see, e.g., United States v. Iglesias, 535 F.3d 150, 159 (3d Cir. 

2008) (“[W]here a witness demonstrates a ‘manifest reluctance to testify’ and ‘forgets’ 

certain facts at trial, this testimony can be inconsistent under Rule 801(d)(1)(A).” 

(quoting United States v. Williams, 737 F.2d 594, 608 (7th Cir. 1984))) (footnote 

omitted). Because Hughes’s trial testimony is irreconcilable with her grand jury 

testimony, the District Court properly held that the Government could read the relevant 

grand jury testimony into the record as a prior inconsistent statement under Rule 

801(d)(1)(A).

Gerard attempts to avoid Rule 801(d)(1)(A) by making a threshold argument that 

Hughes’s grand jury testimony is inadmissible under Federal Rule of Evidence 602, 

which states: “A witness may testify to a matter only if evidence is introduced sufficient 

to support a finding that the witness has personal knowledge of the matter. Evidence to 

prove personal knowledge may consist of the witness’s own testimony.” He claims the 

Government failed to establish that Hughes had personal knowledge of the events 

surrounding the murder. Gerard’s interpretation is incorrect because Rule 602 creates a 

low threshold for admissibility, and a judge should admit witness testimony if the jury 
7

could reasonably find that the witness perceived the event. See United States v. Hickey, 

917 F.2d 901, 904 (6th Cir. 1990) (“Testimony should not be excluded for lack of 

personal knowledge unless no reasonable juror could believe that the witness had the 

ability and opportunity to perceive the event that he testifies about.” (citation omitted)). 

Based on the detailed nature of Hughes’s grand jury testimony and her about-face on the 

witness stand at trial, a reasonable juror could determine that she was lying during trial 

and that she did, in fact, personally witness Gerard’s actions in Mon Bijou on May 6, 

2009. Therefore, Rule 602 does not bar Hughes’s grand jury testimony and we find no 

abuse of discretion in its admission as a prior inconsistent statement under Rule 

801(d)(1)(A).

B

Because Gerard’s argument regarding the sufficiency of the evidence was largely 

predicated on Hughes’s grand jury testimony having been erroneously admitted, we will 

only briefly address it here. When deciding whether a jury verdict rests on legally 

sufficient evidence, “we must view the evidence in the light most favorable to the 

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

and we will sustain the verdict if “any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307, 319 

(1979) (citation omitted).

Several witnesses testified that Gerard was involved in an altercation with the 
8

victim just before the murder occurred. Hughes testified that just prior to hearing 

gunshots, she saw Gerard retrieve a handgun and walk back to the area where the victim 

was later found dead. Multiple witnesses also saw Gerard leaving the scene of the crime 

immediately after hearing shots fired. Gerard was injured following the shooting, and he 

acted evasively while speaking with police. This and other evidence presented at trial 

provided a sufficient basis for a rational juror to find Gerard guilty of murder.

The same holds true for the weapons charges. Gerard stipulated that he was a 

convicted felon, that there was proof beyond a reasonable doubt that there was a pending 

information charging him with felony robbery, and that there were no firearm 

manufacturers in the Virgin Islands, so the weapon necessarily travelled in interstate 

commerce. Considering these stipulations and the testimony indicating that Gerard 

murdered the victim with a handgun, there was sufficient evidence to convict him of the 

three firearms charges.

C

Lastly, Gerard contends that the Court erred when it denied his request for a new 

trial. The Court found that Rock’s post-trial declaration that Hughes was not present in 

Mon Bijou on May 6, 2009, was not newly discovered evidence because Hughes said as 

much while she was on the witness stand. Though we normally review a District Court’s 

denial of a motion for a new trial for abuse of discretion, Hook v. Ernst & Young, 28 F.3d 

366, 370 (3d Cir. 1994), we determine de novo whether a witness’s declaration 
9

constitutes “newly discovered evidence,” see United States v. Jasin, 280 F.3d 355, 360 

(3d Cir. 2002).

Federal Rule of Criminal Procedure 33 provides that a District Court “may vacate 

any judgment and grant a new trial if the interest of justice so requires.” A new trial 

should be granted only if “there is a serious danger that a miscarriage of justice has 

occurred—that is, that an innocent person has been convicted.” United States v. Johnson, 

302 F.3d 139, 150 (3d Cir. 2002) (quoting United States v. Santos, 20 F.3d 280, 285 (7th 

Cir. 1994)) (internal quotation marks omitted). “There are five requirements that must be 

met before a court may grant a new trial on the basis of newly discovered evidence,” 

including that “the evidence must be in fact newly discovered, i.e. discovered since trial.” 

United States v. Quiles, 618 F.3d 383, 388 (3d Cir. 2010) (citation omitted). We agree 

with the District Court that there is nothing in Rock’s declaration that constitutes new 

evidence. Hughes repeatedly claimed at trial that she was not actually present at the time 

of the murder, an assertion that led to extensive impeachment with her grand jury 

testimony. Therefore, Rock’s declaration does not constitute new evidence and the Court 

correctly denied Gerard’s motion for a new trial.

III

For the reasons stated, we will affirm the judgment of the District Court in all 

respects.