Gov VI v. Gregory Turbe , 304 F. App'x 76 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-23-2008
Gov VI v. Gregory Turbe
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1692
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-1692
_____________
GOVERNMENT OF VIRGIN ISLANDS
v.
GREGORY TURBE,
Appellant
On Appeal from the District Court
of the Virgin Islands - Appellate Division
(D.C. No. 04-cr-179-001)
District Judges: Raymond L. Finch and Curtis V. Gomez
_______________
Argued December 9, 2008
Before: FISHER, JORDAN and STAPLETON, Circuit Judges,
(Filed: December 23, 2008)
_______________
Samuel H. Hall, Jr. [ARGUED]
Hall & Griffith
P.O. Box 305587
Charlotte Amalie, St. Thomas
Virgin Islands 00803
Counsel for Appellant
Pamela R. Tepper [ARGUED]
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindesens Gade, GERS Complet, 2 nd Fl.
Charlotte Amalie, St. Thomas
Virgin Islands 00802
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Gregory Turbe challenges his jury conviction on charges of possession of an
unlicensed firearm, in violation of 23 V.I.C. § 451(d) and 14 V.I.C. § 2253(a) (Count III),
possession of ammunition, in violation of 14 V.I.C. § 2256(a) (Count IV), and possession
of stolen property, in violation of 14 V.I.C. § 2101(a) (Count V). As to all three
convictions, he alleges that the Superior Court1 erred in denying his motion for a mistrial
based on prosecutorial misconduct and that his trial counsel was ineffective for failing to
take adequate steps to prevent the presentation of harmful evidence to the jury. In
addition, Turbe argues that, in light of our recent decision in United States v. Daniel, 518
F.3d 205 (3d Cir. 2008), the government failed to provide sufficient evidence to support
his conviction on the ammunition charge.
1
Turbe was tried in the Virgin Islands Territorial Court. In 2004, however, all
references to “Territorial Court” throughout the Virgin Islands Code were changed to
“Superior Court.” 2004 V.I. Sess. Laws 6687. For consistency, we will refer to the trial
court as the Superior Court.
2
For the following reasons, we will affirm Turbe’s convictions on Counts III and V
but reverse his conviction on Count IV.
I. Background
On the evening of September 12, 2003, the Virgin Islands Police Department took
Turbe into custody after receiving a complaint from Andrew Julien that Turbe had hit him
in the head with a gun. It was later determined that the gun was loaded, was valued at
about $850, and had been reported stolen about a year earlier. Following his arrest, Turbe
was charged in a five-count information filed on September 24, 2003. In addition to the
aforementioned counts, Turbe was charged with two counts of third degree assault, in
violation of 14 V.I.C. § 297(2) (Counts I and II). Following a three-day trial in 2004, the
jury acquitted Turbe of the assault charges but found him guilty of the remaining counts.
Turbe was ultimately sentenced to 15 years’ imprisonment on the firearm count (plus a
$25,000 fine); 7 years’ imprisonment on the ammunition count (plus a $10,000 fine); and
10 years’ imprisonment on the stolen property count (plus a $7,000 fine), all of the
sentences to be served concurrently.
Turbe appealed to the Appellate Division of the District Court of the Virgin
Islands, which affirmed the convictions and sentences and dismissed his appeal insofar as
it alleged ineffective assistance of counsel, preserving the latter claim for a collateral
motion. This timely appeal followed.
3
II. Discussion 2
A. Denial of Motion for Mistrial
Turbe argues on appeal that the prosecution engaged in misconduct at trial and that
the Superior Court erred by not granting Turbe’s motion for a mistrial following the
alleged misconduct. We review a trial court’s denial of a mistrial for abuse of discretion,
but we must first be convinced that the prosecution did in fact commit some misconduct.
United States v. Rivas, 493 F.3d 131, 139 (3d Cir. 2007).
Turbe alleges that the prosecution asked Sergeant Dwayne DeGraffe, the arresting
officer, improper questions and that Sergeant DeGraffe provided improper answers
relating to an earlier and unrelated encounter between Turbe and the FBI. At trial, Turbe
testified on his own behalf and stated that he had told the police around the time of his
arrest that he wanted to talk to the FBI. On rebuttal, the prosecution asked Sergeant
DeGraffe about Turbe’s request:
Q. Now, Sergeant DeGraffe, at the time that you arrested Mr. Gregory
Turbe, did he ask you to call the F.B.I. for him?
A. No, he didn’t ask me to call the F.B.I. for him. He said he was going
to call the F.B.I.
Q. And did he so call them?
A. Not on his own, he didn’t call them. He just rambled about talking
about calling the F.B.I. in reference to a case where guns were found
in his house and bullet proof vests and stuff.
2
The Appellate Division of the District Court of the Virgin Islands had jurisdiction over
the judgment of the Superior Court pursuant to 48 U.S.C. § 1613a(a) and (d). We have
jurisdiction over final decisions of the Appellate Division pursuant to 48 U.S.C. §
1613a(c) and 28 U.S.C. § 1291.
4
Q. Were you present when those items were taken from his home?
A. Yes, I was.
Q. Do you recall what they were?
A. It had [sic] six guns and one or two bullet proof vests taken from his
home.
(App. 412.) Turbe’s counsel objected on the ground that the line of questioning was
beyond the scope of Turbe’s testimony.
We are convinced that this line of questioning was improper both for the reason
given in defense counsel’s objection and as being irrelevant to the charges in this case.
The similarity between the allegation that Turbe unlawfully possessed six guns at his
home and the allegation that he unlawfully possessed the stolen firearm at issue here
makes the prosecutor’s questions especially troubling. Nevertheless, we are persuaded
that the trial judge acted within his discretion when he denied Turbe’s motion for a
mistrial. Following a brief conference with counsel outside of the jury’s presence, the
judge instructed the jury “not [to] consider anything that Sergeant DeGraffe said beyond
when he said ... that the defendant said he will call the F.B.I.,” and then explicitly struck
from the record “anything that Sergeant DeGraffe said after that that concerns finding
anything in the defendant’s home or anything to do with guns or what not.” (App. 422-
23.) Those steps were adequate here, in part because the episode was brief and
immediately addressed by the court. Compare United States v. Morena, 547 F.3d 191,
194 (3d Cir. 2008) (ordering new trial where “time and again, the government introduced
prejudicial drug evidence with no proper purpose”).
5
In addition, Turbe himself had already made a series of remarkably damning
admissions to the jury, including that he had previously used a firearm during a robbery,
that he had previously been incarcerated for a robbery conviction, that he possessed
cocaine at the time of his arrest because he was a drug dealer, that he smoked about 15
joints of marijuana a day, including the day of his arrest, and that he had no intention of
turning over the gun to the police prior to his arrest. Most importantly, the uncontested
evidence presented to the jury—that Turbe possessed the loaded firearm, that he was not
licensed to carry it, and that it was stolen property worth more than $100—was
overwhelming and untethered to Turbe’s credibility. While Turbe did try to persuade the
jury that he only possessed the gun because a youth had handed it to him and he wanted to
get it out of his neighborhood, he did not contest the central factual arguments leading to
his convictions.3 Thus, the misconduct here was harmless, and, under these particular
facts, the judge was within his discretion in deciding not to declare a mistrial.
B. Unlawful Possession of Ammunition
As to the ammunition count, Turbe makes the additional argument that the
government failed to adduce sufficient evidence to sustain that charge. We apply a
3
Even if the jury had believed Turbe’s argument that he was given the gun immediately
prior to his arrest, it has dubious legal significance because of his testimony that he had
no intention of turning it over to the police. See 23 V.I.C. § 470(a) (“Any person ... who
... obtains any firearms or ammunition from any source ... shall report such fact in writing
or in person to the Commissioner immediately after receipt of the firearm or ammunition
... .”).
6
particularly deferential standard of review to arguments based on sufficiency of the
evidence: we must view the evidence in the light most favorable to the government, 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. United States v. Kellogg, 510 F.3d 188,
202 (3d Cir. 2007). To succeed on the ammunition count, the government was required
to prove, as an element of the offense, that Turbe was not “authorized by law” to possess
firearm ammunition. 14 V.I.C. § 2256(a); United States v. Daniel, 518 F.3d at 209.
In Daniel, we reversed the defendant’s conviction under section 2256(a) after
holding that the government’s evidence, which consisted of the defendant’s lack of a
firearm license, was insufficient to prove that a defendant was unauthorized to possess
ammunition. Id. At Turbe’s trial, which occurred before our decision in Daniel, the
prosecution similarly relied only on Turbe’s lack of a firearm license to support its
possession of ammunition charge. Given our holding in Daniel, we are bound to say that
the evidence here is likewise insufficient to sustain Turbe’s conviction on the ammunition
count.
The government argues on appeal that Turbe’s status as a convicted felon was
sufficient to show that he was unauthorized to possess ammunition. But, as the
government all but conceded at oral argument, it has no legal basis to support that
contention. Indeed, the defendant in Daniel also appeared to have been convicted of a
prior felony. See id. at 206 (noting charges included felon in possession of a firearm, in
7
violation of 18 U.S.C. §§ 922(g)(1) and 924 (a)(2)). Additionally, while Daniel may be
factually distinguishable on the ground that the defendant in that case was convicted for
ammunition found separate and apart from the unlicensed firearm, we can discern no
legal distinction in that factual difference. As in Daniel, there was no indication at the
time of Turbe’s arrest that the Virgin Islands legislature had defined a type of ammunition
possession that was presumptively unauthorized. See id. at 208 (“[W]e are loath to
construe [the firearm licensing] provisions to create an offense relating to unlawful
possession of ammunition not enunciated by the Virgin Islands legislature.”). Although
the legislature has since enacted a statute that prevents a felon from obtaining a license to
possess or carry ammunition, see 23 V.I.C. § 456a, that law was not enacted until 2005,
nearly two years after Turbe’s arrest. 2005 V.I. Sess. Laws 6730 § 29.4
III. Conclusion
For the foregoing reasons, we will affirm Turbe’s convictions for possession of an
unlicensed firearm and for possession of stolen property, but we will reverse his
conviction for possession of ammunition. Because all three of the sentences imposed by
the Superior Court arose from the same criminal transaction, we will vacate Turbe’s
sentence as to Counts III and V and remand to the Appellate Division of the District
Court with directions to remand to the Superior Court for resentencing on those counts.
4
We commend the candor of the government’s counsel in acknowledging at argument
the timing of the enactment.
8
See United States v. Levy, 865 F.2d 551, 559 n.5 (3d Cir. 1989) (“[W]here the sentences
imposed on two of the three counts are vacated and all three sentences arise from the
same criminal transaction, it is appropriate to vacate the third, valid sentence in order to
afford the trial judge an opportunity to properly exercise his sentencing discretion ... .”
(citations omitted)).5
5
It would be inappropriate for us to decide the merits of Turbe’s ineffective assistance
of counsel claim at this time. See United States v. Headley, 923 F.2d 1079, 1083 (3d Cir.
1991) (“[T]he proper avenue for pursuing [ineffective assistance of counsel claims] is
through a collateral proceeding in which the factual basis for the claim may be
developed.” (citation omitted)). We therefore will dismiss that portion of his appeal.
9