Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-22-2004

USA v. Charles
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2485




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                                                                  NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 01-2485




                           UNITED STATES OF AMERICA

                                            v.

                           MICHAEL EDWARD CHARLES,

                                                 Appellant


                 On Appeal from the District Court of the Virgin Islands
                           (D.C. Criminal No. 00-cr-00377)
                       District Judge: Hon. Thomas K. Moore


                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 17, 2004

          Before: SLOVITER, FUENTES and GREENBERG, Circuit Judges

                               (Filed: December 22, 2004)


                              OPINION OF THE COURT


SLOVITER, Circuit Judge.

      Appellant Michael Edward Charles was convicted of burglary and armed robbery

in the District Court of the Virgin Islands, Division of St. Thomas and St. John. On
appeal, he challenges several evidentiary rulings of the District Court. 1 For the reasons

that follow, we affirm the District Court’s judgment of conviction and sentence.

                                              I.

         The prosecution’s evidence at trial showed that on February 15, 1998, two men

burglarized a rental villa in Estate Peterborg, St. Thomas, and robbed its occupants while

one held a sawed-off shotgun. Latent fingerprints were lifted from areas in the bathroom

which was the entry point and from a drinking glass, which was handled by one of the

perpetrators.

         In August 1998, Charles, an illegal alien and police informant, became a suspect in

the armed robbery. On July 12, 1999, four Virgin Islands police officers followed

Charles to his apartment complex, detained him, and brought him to a police station to be

fingerprinted. Charles’ fingerprints matched the latent prints gathered from the crime

scene.

         On June 27, 2000, Charles was lured to the Virgin Islands Safe Streets Task Force

(VISSTF) office under the pretense of receiving a work permit, and was placed under

arrest. Warrington Tyson, a Virgin Islands police officer assigned to the VISSTF,

testified that he read Charles his rights as required by Miranda v. Arizona, 

(1966), and then presented him with an advice of rights form. Charles refused to sign the



   1
      The District Court had jurisdiction over the criminal trial under 18 U.S.C. § 3231
and 48 U.S.C. § 1612; this court has jurisdiction pursuant to 28 U.S.C. § 1291, 48 U.S.C.
§ 1613 and 18 U.S.C. § 3742(a).

                                              2
form, stating he was unable to read. Accordingly, Officer Tyson noted on the form,

“[u]nable to read and refuse [sic] to sign. However, the rights was read to the

Defendant.” Supp. App. at 188. Officer Tyson testified that Charles answered “yes”

when asked if he was willing to give a statement. He then confessed to his participation

in the February 15, 1998 burglary. At no time during the interview did Charles attempt to

stop the questioning, ask for an attorney, or state that he did not understand any of the

questions.

       On July 27, 2000, the grand jury returned a five-count indictment charging Charles

in count I with unlawful possession of a firearm by an alien, in violation of 18 U.S.C. §§

922(g)(5) and 924(a)(2); in count II with unlawful possession of a firearm, in violation of

14 V.I. Code § 2253(a); in count III with burglary in the first degree and aiding and

abetting, in violation of 14 V.I. Code §§ 442(1) and 11; in count IV with robbery in the

first degree and aiding and abetting, in violation of 14 V.I. Code §§ 1862(2) and 11; and

in count V with grand larceny and aiding and abetting, in violation of 14 V.I. Code §§

1083(1) and 11.

       On December 7, 2000 Charles filed a motion to suppress his June 27, 2000

confession. He claimed that his statements were obtained without properly advising him

of his Miranda rights and without obtaining proper waiver. The District Court denied the

suppression motion.

       Charles’ trial commenced on December 11, 2000 and concluded on December 12,



                                              3
2000, when the jury returned a verdict of guilty on all counts. On June 4, 2001 the

District Court sentenced Charles to 87 months imprisonment on count I; five years

imprisonment on the territorial charges in counts II and V; and ten years imprisonment on

the territorial charges in counts III and IV. The sentence on count I was to be served

concurrently with the sentences on counts II, III, IV and V. The sentences imposed on

counts II and III were to be served consecutively with each other and concurrently with

the sentences on counts IV and V. A supervised release term of three years was imposed

and the District Court ordered Charles to pay restitution of $ 2,764.

       Charles filed a timely notice of appeal, and the District Court appointed appellate

counsel. By motion and supporting memorandum of law dated December 18, 2002,

appointed appellate counsel moved to withdraw from representation pursuant to Anders v.

California, 

(1967). On or about June 20, 2003, Charles served and filed a

brief pro se. The Government filed a brief responding to the Anders brief and to Charles’

pro se brief. On March 11, 2004, this Court declined to accept the Anders brief,

discharged appellate counsel and directed the clerk to appoint new counsel for Charles.

       On appeal, Charles raises three issues. He claims:

       A.

              The district court committed plain error when at trial it
              admitted into evidence the July 12, 1999 fingerprints that the
              Virgin Islands Police Department/FBI Virgin Islands Safe
              Streets Task Force took of Mr. Charles, in their office, as a
              result of an unlawful detention, in violation of his Fourth
              Amendment Rights to freedom of movement.

                                             4
                                              ...

       B.

               The district court committed clear error in denying Mr.
               Charles’ Motion to suppress his June 27, 2000 alleged
               confession when it reasoned that if rights were read to Mr.
               Charles when he was brought to the INS on July 15, 1999,
               then it’s assumed that his rights were read to him at his arrest
               on June 27, 2000 by the officers of the Virgin Islands Police
               Department/Virgin Islands Safe Streets Task Force.

                                              ...

       C.

               The district court abused its discretion when it limited Mr.
               Charles’ Sixth Amendment right to cross examine INS Agent
               Nash to impeach Special Agent Warrington O. Tyson for bias.

Appellant’s Br. at i-ii.

                                              II.

A. The Fingerprint Evidence

        For the first time on appeal, Charles claims that because the police acted without

probable cause or proper judicial authorization, his Fourth Amendment rights were

violated by his July 12, 1999 detention and the attendant seizure of his fingerprint

impressions. Accordingly, he asserts that the District Court committed plain error by

admitting the July 12, 1999 fingerprint card at trial.

       Rule 12(b)(3)(C) of the Federal Rules of Criminal Procedure requires that motions

to suppress evidence be made before trial. See, e.g., United States v. Frank, 

992, 1006 (3d Cir. 1988) (holding that objection to manner in which search warrant was

issued and executed was waived where not raised in suppression motion); United States v.

Martinez-Hidalgo, 

, 1057 (3d Cir. 1993), cert. denied, 

(1994) (same). Parties who fail to raise such motions before the deadline established by

the district court waive the right to challenge the admission of such evidence. See Fed. R.

Crim. P. 12(e). The court may, however, grant relief from waiver if the party who missed

the deadline shows good cause. 

instant case, Charles has not attempted to show good cause for his failure to

submit a timely motion. His claim has accordingly been waived.

B. Charles’ Confession

       Charles next contends that the District Court erred by denying his motion to

suppress his confession, which was allegedly obtained by the police who failed to advise

him of his Miranda rights. “This Court reviews the District Court's denial of a motion to

suppress for clear error as to the underlying factual findings and exercises plenary review

of the District Court's application of the law to those facts.” United States v. Perez, 

, 336 (3d Cir. 2002).

       During the suppression hearing, the District Court weighed the conflicting factual

recitations of Officer Tyson, who testified that he read Charles his rights, and Charles,

who denied that he was informed of his rights. The District Court concluded that Charles

had been read his Miranda rights, and furthermore that he made a knowing, willing and



                                              6
voluntary waiver of those rights. “It is the law of this Circuit, as well as many others, that

a fact-finder's determination of credibility is not subject to appellate review.” Gov’t of

the V.I. v. Gereau, 

, 921 (3d Cir. 1974). Accordingly, we uphold the

credibility determination of the District Court, and its decision to deny the motion to

suppress. See, e.g., United States v. Harris, 

, 198 (3d Cir. 1975).

C. Right to Confrontation

       Prior to Charles’ arrest, Officer Tyson and Charles had an agent-informant

relationship; Officer Tyson described Charles as someone that could provide “information

with respect to some criminal activity that was happening on the street.” Supp. App. at

74. Charles contends that at some point, prior to his arrest, this relationship “sour[ed].”

Supp. App. at 86.

       During cross examination of Immigration and Naturalization Special Agent Joan

Nash, called by the prosecution for the sole purpose of establishing the element of

Charles’ alienage, Charles attempted to illicit testimony of this failed relationship in order

to impeach Officer Tyson’s earlier testimony for bias. The District Court sustained the

government’s objection to this line of questioning, finding it irrelevant. Charles now

contends that his inability to cross examine M s. Nash with regards to Officer Tyson’s

inherent bias violated his Sixth Amendment right to confrontation.

       In Delaware v. Van Arsdall, the Supreme Court established that the exposure of a

“witness’ motivation in testifying is a proper and important function of the



                                              7
constitutionally protected right of cross-examination.” 

, 678-79 (1986)

(internal quotations omitted). The Confrontation Clause of the Sixth Amendment,

however does not prevent a trial judge from imposing a limit on defense counsel’s inquiry

into the potential bias of a prosecution witness. 

This court has held that

“whether a trial court has abused its discretion in limiting the cross-examination of a

witness for bias depends on whether the jury had sufficient other information before it,

without the excluded evidence, to make a discriminating appraisal of the possible biases

and motivation of the witness[].” United States v. Chandler, 

, 219 (3d Cir.

2003) (internal quotations omitted).

         In the present case, Charles was given ample opportunity to explore this alleged

bias during cross examination of Officer Tyson.2 Thus, Charles exercised his right to

   2
         The following exchange occurred during Charles’ cross examination of Officer
Tyson:

         Defense: In fact, you had more than one contact with Mr. Charles before
         June 27th of 2000?
         Tyson: Yes, I did.
         Defense: And isn’t it correct that in those contacts you attempted to gain his
         help in your line of work; isn’t that correct?
         Tyson: Yes, I did.
         Defense: And you were unhappy with the help that he had given you; isn’t
         that correct?
         Tyson: No.
         Defense: You were not unhappy?
         Tyson: No.
         Defense: You did not find his help useful; isn’t that correct?
         Tyson: That is correct.

Supp. App. at 71-72.

                                               8
confrontation in a meaningful manner, and the jury had ample information before it,

without the cross examination of Ms. Nash, to discern any latent motivations present in

Officer Tyson’s testimony. Accordingly, we hold that Charles’ Sixth Amendment right to

confrontation was not violated.

                                           III.

      For the reasons set forth above, we will affirm the District Court’s judgment of

conviction and sentence.