United States v. Orlando Carino , 596 F. App'x 88 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-1121
_____________
UNITED STATES OF AMERICA
v.
ORLANDO CARINO,
Appellant
_______________
On Appeal from the District Court of the
Virgin Islands
(D.C. No. 10-cr-009-03)
District Judge: Hon. Raymond L. Finch
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 9, 2014
Before: CHAGARES, JORDAN and SHWARTZ, Circuit Judges.
(Filed: December 16, 2014)
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OPINION*
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JORDAN, Circuit Judge.
Orlando Carino was convicted by a jury of Possession of an Unlicensed Firearm,
in violation of Virgin Islands law. He appeals an order of the District Court of the Virgin
*
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Islands denying his Motion for Judgment of Acquittal or New Trial or, in the alternative,
Motion to Arrest Judgment. Because the District Court did not err when it retained
jurisdiction over the local charge after dismissing all federal charges against Carino or
when it allowed lay-witness testimony regarding the operability of Carino’s firearm at
trial, we will affirm.
I. Background
On January 30, 2009, Federal Bureau of Investigation (“FBI”) Agent Thomas
Drummond received an anonymous tip that a package containing drugs was being sent
from El Paso, Texas, to St. Croix. Agent Drummond relayed that information to Drug
Enforcement Administration (“DEA”) Agent James Semrick, who then tracked the
package through the United States Postal Service and found that it was scheduled to be
delivered on January 31, 2009, to a Mr. Luis Castillo at a store called “Mailboxes ‘N
More” located in St. Croix. On the day of delivery, Agent Semrick, along with other
agents, established surveillance at Mailboxes ‘N More, awaiting retrieval of the package.
At approximately 1:00 p.m., the agents observed Carino enter the store and leave
with a large box matching the description of the suspected package. Agent Semrick then
stopped Carino to question him. Carino told the agents that he picked up the package for
Stephen Garvey, who was already the subject of a criminal investigation. With Carino’s
consent, Agent Semrick opened the package and found two sealed 5-gallon buckets
containing over twenty-five pounds of marijuana. Agent Semrick asked Carino if he had
anything else in his vehicle and Carino directed him to a shotgun stored under the
floorboard in the rear back seat area of his car. Although Carino had a license to carry
2
the shotgun, it had expired over four months earlier, and the license only permitted him to
use the shotgun for home protection, meaning that carrying it outside of the home was
prohibited. The agents arrested Carino and took him to the local DEA office for
questioning.
Carino was eventually charged in a Second Superseding Indictment with
Conspiracy to Possess and Distribute a Controlled Substance, in violation of 21 U.S.C.
§ 846 (Count I); Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in
violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count II); Possession with Intent to Distribute
Marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D) and 18 U.S.C. § 2
(Count IV); and Possession of an Unlicensed Firearm, in violation of 14 V.I.C. § 2253(a)
(Count V).1 Carino went to trial with two co-defendants, Christopher Jacobs and the
already-mentioned Stephen Garvey.2 At the close of the Government’s case-in-chief,
Carino made a motion under Federal Rule of Criminal Procedure 29 to dismiss all
charges against him. The District Court determined that there was insufficient evidence
to link Carino to the conspiracy to distribute marijuana and therefore granted his motion
with respect to the federal charges (Counts I, II, and IV). The Court nevertheless denied
Carino’s motion with respect to the local offense of Possession of an Unlicensed Firearm
(Count V). After the dismissal of the federal charges, Carino moved to dismiss the local
1
The original Indictment was filed on March 16, 2010 and the first Superseding
Indictment was filed on August 19, 2010. The local charge against Carino was not added
until the Second Superseding Indictment was filed on October 21, 2010.
2
Carino was one of six defendants charged in an eight-count indictment as part of
a larger drug conspiracy. Only Carino, Garvey, and Jacobs went to trial, and only Count
V is relevant for the purposes of this appeal.
3
offense for lack of subject matter jurisdiction, arguing that the District Court no longer
had concurrent jurisdiction of the local charge pursuant to 48 U.S.C. §1612(c), but the
Court summarily denied that motion.
The jury convicted Carino on the local firearm charge. He filed a Motion for
Judgment of Acquittal or New Trial, or, in the alternative, Motion to Arrest Judgment, all
of which the District Court denied on June 13, 2013. Carino timely appealed.
II. Discussion3
Carino contends that the District Court erred by retaining jurisdiction over the
local charge of unauthorized possession of a firearm after all of the federal charges had
been dismissed and by allowing testimony regarding the operability of his firearm at trial.
Because neither argument is meritorious, we will affirm.
A. District Court’s Exercise of Jurisdiction Over Local Charge
The District Court of the Virgin Islands derives its jurisdiction from congressional
action based on Article IV of the United States Constitution. See Parrot v. Government
of the Virgin Islands, 230 F.3d 615, 622-23 (3d Cir. 2000) (“The District Court’s power
3
Ultimately we conclude that the District Court had jurisdiction pursuant to 48
U.S.C. § 1612 and 18 U.S.C. § 3231 and we have appellate jurisdiction pursuant to 28
U.S.C. § 1291. We exercise plenary review over the question of a district court’s
jurisdiction. United States v. Gillette, 738 F.3d 63, 70 (3d Cir. 2013). We likewise give
plenary review to a motion for judgment of acquittal, viewing the record in the light
“most favorable to the prosecution to determine whether any rational trier of fact could
have found proof beyond a reasonable doubt.” United States v. Boria, 592 F.3d 476, 480
(3d Cir. 2010) (internal quotation marks omitted). We review a denial of a motion for a
new trial for abuse of discretion. United States v. Silveus, 542 F.3d 993, 1005 (3d Cir.
2008).
4
originates under Article IV, [§] 3, which authorizes Congress to regulate the various U.S.
territories.”). Congress enacted the “Revised Organic Act,” 48 U.S.C. § 1541 et seq., for
the Virgin Islands to provide a basis for territorial government and 48 U.S.C. § 1612 to
define the scope of the District Court’s jurisdiction. Following the amendments in 1984
to the Revised Organic Act, the District Court has jurisdiction over all federal offenses
and retains concurrent jurisdiction over local offenses “which are of the same or similar
character or part of, or based on, the same act or transactions connected together or
constituting part of a common scheme or plan” as a federal crime. 48 U.S.C. § 1612(c);
see also United States v. Gillette, 738 F.3d 63, 71 (3d Cir. 2013) (“Congress specifically
provided that the District Court would retain concurrent jurisdiction over charges alleging
local crimes that are related to federal crimes.”). In other words, “all that is required is
that there be a sufficient nexus between the local charges and ‘an offense or offenses
against one or more of the statutes over which the District Court of the Virgin Islands has
jurisdiction.’” Gillette, 738 F.3d at 71-72 (quoting 48 U.S.C. § 1612(c)).
Carino argues that the District Court did not have jurisdiction over the local
offense of Possession of an Unlicensed Firearm because there was an insufficient nexus
between that offense and the federal offenses – Possession with Intent to Distribute
Marijuana and Possession of a Firearm in Furtherance of a Drug Trafficking Crime.4
4
Carino also argues that the District Court improperly retained jurisdiction over
the local offense after it dismissed the federal charges. He contends that in United States
v. Kember, 685 F.2d 451 (D.C. Cir. 1982), the D.C. Circuit held that, when determining
whether a federal court should retain jurisdiction over a local offense after the federal
charges have been dismissed, the district court should “consider several factors”
including whether “retention of the case is warranted by remaining matters of legitimate
5
According to Carino, the local offense arose not out of conduct relating to a drug
conspiracy, but out of his failure to renew his firearm license and his failure to abide by
the restriction on his license, which required the firearm to be maintained only in his
home. He is, however, ignoring crucial facts that the local and federal charges have in
common: he carried an operable firearm in his vehicle without proper authorization,
drove to Mailboxes ‘N More where he retrieved a box containing twenty-five pounds of
marijuana, and placed the contraband in his vehicle and drove away. It is a sad truth that
guns and drugs frequently and not by chance are possessed together, United States v.
Bonner, 874 F.2d 822, 824 (D.C. Cir. 1989) (“[S]ubstantial dealers in narcotics possess
firearms and ... such weapons are as much tools of the trade as more commonly
recognized drug paraphernalia.”(internal quotation marks omitted)). Carino possessed
both here, in violation of territorial and federal laws. The District Court could properly
view the local firearm offense as being closely related to at least the charge of Possession
of a Firearm in Furtherance of a Drug Trafficking Crime. The Court therefore did not err
in exercising concurrent jurisdiction over the firearm offense.
B. District Court’s Admission of Firearm Testimony
Whether a firearm is operable is an essential element of the charge of Possession
of an Unlicensed Firearm, for which Carino was convicted. 23 V.I.C. § 451(d) (defining
federal concern.” Kember, 685 F.2d at 454. But Kember explicitly stated that federal
courts have the power to retain jurisdiction; the case simply provided a framework to
guide lower courts as to when they should exercise that power. Id. (“We underscore,
however, that this is a matter of sound exercise of the court’s discretion, not a question of
its power.” (internal citation omitted)). Indeed, as we explained in United States v.
Gillette, “the subsequent dismissal of federal charges does not impact the District Court’s
concurrent jurisdiction” over local offenses. 738 F.3d at 72.
6
firearm as a device “capable of discharging ammunition by means of gas generated from
an explosive composition”). Carino argues that the District Court’s admission at trial of
testimony regarding the operability of his shotgun was improper because he was
prejudiced by the untimely testing of the gun and disclosure of evidence concerning its
operability and because expert testimony should have been required to establish
operability.5
On March 23, 2010, about seven months before the government charged Carino
with the local firearm offense, Carino had requested discovery on “all forensic or other
tests or experiments, including but not limited to the test or experiments made of clothing
of any person for the investigation of this case, and of any weapons alleged to be
involved in this case.” (App. at 537.) The government did not supplement its discovery
responses after charging Carino with the local offense, claiming that it did not test the
firearm until the evening after jury selection. Carino therefore argues that he was
prejudiced at trial when Agent Semrick testified about operability of the firearm.
Carino’s counsel objected to the untimely disclosure at trial, arguing that the
defense was being “ambush[ed]” by the firearm operability testimony and that the
prejudice stemmed from its inability to “verify and double check” the operability of the
5
The standard of review of this latter argument is plain error, as Carino did not
present this specific argument to the District Court. See United States v. Syme, 276 F.3d
131, 143 n.4 (3d Cir. 2002) (applying plain error review where defendant-appellant
presented a new argument on appeal after moving for acquittal or for a new trial before
the district court); Fed. R. Crim. P. 52(b) (permitting courts to consider plain error even if
not brought to the court’s attention). “Under the plain error standard, a reviewing court
may reverse the district court only if it finds that (1) an error was committed; (2) the error
was plain, that is, clear and obvious; and (3) the error affected the defendant’s substantial
rights.” Syme, 276 F.3d at 143 n.4 (internal quotation marks and alterations omitted).
7
firearm with its own expert. (App. at 123, 129.) The District Court responded by asking
Carino’s counsel how long a continuance would be necessary to allow the defense to
retain an expert and independently test the firearm. The defense asked for a day to
prepare and the District Court granted a half-day continuance. As it turned out, the
continuance was sufficient for the defense to test the firearm, and any prejudice that may
have existed as a result of the government’s untimely disclosure was cured.6
Carino’s second argument is also unpersuasive. He says that the District Court
erred in allowing Agent Semrick to testify as to the operability of the firearm because
Virgin Islands courts have required expert testimony to establish that element of the
offense. The two cases he cites for that proposition, however, do not hold or even
suggest that expert testimony is required. Instead, as the District Court noted, Agent
Semrick’s testimony as to the operability of the firearm – namely that he inserted two 12-
gauge shotgun shells into the firearm, pulled the trigger, and witnessed the explosion
when the shots were fired – was sufficient for a rational juror to find that Carino’s firearm
was “capable of discharging ammunition” as required by § 451(d). See United States v.
Mike, 655 F.3d 167, 174 (3d Cir. 2011) (concluding that testimony by postal inspectors at
trial that they “dry-fired” the firearm was sufficient to show operability); United States v.
6
While the prejudice here was, in the end, mitigated, that does not mean that the
government was without fault in delaying the testing of the shotgun. Carino could have,
and should have, pressed the point earlier, but we agree with the District Court that the
government knew that the firearm’s operability was an element of the charged offense,
and should have prepared and provided relevant discovery to the defense prior to trial.
(See App. at 130 (“You’re both at fault. You knew well what the element was. It’s
assumed that you would have prepared that. It’s assumed that they would have asked for
that specific piece of evidence before. You’re both at fault.”).)
8
Allen, 235 F.3d 482, 492-93 (10th Cir. 2000) (upholding conviction where agent test-
fired firearm with blank ammunition).
III. Conclusion
We will therefore affirm the District Court’s order denying Carino’s Motion for a
Judgment of Acquittal or New Trial, or, in the alternative, Motion to Arrest Judgment.
9