                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-5-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5089




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No: 05-5089

                                    UNITED STATES

                                                 Appellee

                                              v.

                                      BRYAN FELIX

                                              Appellant

                        Appeal from the United States District Court
                           for the District of the Virgin Islands
                                 (Civ. No. 04-CR-00108)
                          District Judge: Hon. Curtis V. Gomez


                        Submitted Under Third Circuit LAR 34.1(a)
                                   December 4, 2006

                        Before: MCKEE, BARRY, STAPLETON,
                                   Circuit Judges.

                               (Opinion filed: April 5, 2007 )


MAUREEN PHELAN, ESQ.
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade, GERS Building, 2nd Floor
Charlotte Amalie, St. Thomas
USVI, 00802

Attorney for Appellee

                                             1
ERIC S. CHANCELLOR, ESQ.
Suite 7
2111 Company Street
Christiansted, St. Croix
USVI 00820

Attorney for Appellant


                                             OPINION

McKEE, Circuit Judge.

       Bryan Felix appeals a decision of the Appellate Division of the District Court of the

Virgin Islands. That court affirmed the Territorial Court’s denial of Felix’s motion for a new

trial based upon an alleged Brady violation. For the following reasons, we will affirm.

       Because we write primarily for the parties, we need not recite the underlying facts or

background of this appeal except insofar as may be helpful to our discussion. Felix has the

burden of establishing a Brady violation. Strickler v. Greene, 527 U.S. 263, 289 (1999). To do

so, he must show: (1) the evidence was favorable to him because it was either exculpatory or

impeaching; (2) the evidence was suppressed by the government, whether willfully or

inadvertently; and (3) the withheld evidence was material. Id. at 281-82.

       Here, the Government concedes that it suppressed the evidence. Therefore, Felix’s

appeal focuses on the first and third prongs. Felix argues that the arrest warrant was favorable to

him because he could have used it to impeach Rodriguez. He also relies upon this impeachment

value to argue that he has satisfied the third prong. According to Felix, “[t]he government’s case

against [him] rises and falls with the testimony of Rodriguez,” Felix’s Br. as Appellant at 15.




                                                  2
Felix claims that there is a reasonable probability that the verdict would have been different.1

           Withheld evidence is material “only if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been different.”

United States v. Bagley, 473 U.S. 667, 682 (1985). The phrase “reasonable probability” refers to

a “probability sufficient to undermine confidence in the outcome.” Id. Here, even assuming that

the withheld evidence qualifies as Brady material, we would still have confidence in the jury’s

verdict.

           Rodriguez initially identified Felix a few days after the shooting. This was ten months

before the robbery, and fourteen months before the arrest warrant issued. Thus, the arrest

warrant has absolutely no bearing on the strength of that initial identification. In addition,

Rodriguez’s trial testimony was corroborated by other evidence that had nothing to do with

Rodriguez. For example, Felix apologized to Mercado, and a witness at the food van gave a

description of the shooter that fit Felix. This included his relatively short stature, and his

dreadlocks.

           Felix argues that the arrest warrant could have been used to impeach Rodriguez in at least

two ways. Felix first appears to argue that the arrest warrant would have been useful to

demonstrate Rodriguez’s character for untruthfulness. The Government, on the other hand, states

that Federal Rules of Evidence 608 and 609 generally preclude impeachment by evidence of an

arrest or pending charge. However, we need not determine if the Government’s interpretation of



           1
         Toward the end of his brief, Felix appears to argue that an affidavit Rodriguez signed
recanting his trial testimony somehow establishes the materiality of Rodriguez’s credibility. See
Felix’s Br. at 15-16. We disagree. This affidavit did not exist at the time of trial, and Rodriguez
has disavowed its accuracy since Felix came forward with it.

                                                      3
Rules 608 and 609 is correct because we have concluded that robbery is not a crime of dishonesty

for purposes of impeachment. See Walker v. Horn, 385 F.3d 321, 334 (3d Cir. 2004) (stating that

robbery in general does not involve expressive dishonesty and is therefore not automatically

admissible under 609(a)(2));2 Mueller & Kirkpatrick, 3 F EDERAL E VIDENCE § 264 (stating that

cross-examination on robbery seems improper in the context of Rule 608 because “forced taking

is the main fact”). Moreover, an arrest is not admissible. See, Michaelson v. United States, 335

U.S. 469, 482 (1948). Since Rodriguez’s participation in the robbery did not involve dishonesty,

it is not probative of his character for truthfulness and could not have been inquired into on

cross-examination under Rule 608(b).

        Felix’s second argument is that Rodriguez had a motive to help the government in order

to receive favorable treatment in his own case.3 However, that argument is seriously undermined

by the fact that he identified Felix before the robbery and therefore before the motive existed.

Moreover, as noted above, it does not alter the fact that Rodriguez’s testimony was consistent

with, and corroborated by, other testimony; including his apology to Mercado. Thus, the bias

that arguably did exist when Rodriguez testified does not undermine the jury’s verdict.

Accordingly, we must reject Felix’s Brady claim.



        2
           See Cree v. Hatcher, 969 F.2d 34, 37 (3d Cir. 1992) (“Because the district court lacks
the discretion to engage in balancing, 609(a)(2) must be interpreted narrowly to apply to only
those crimes that, in the words of the Conference Committee, bear on a witness’s propensity to
testify truthfully.”).
        3
         The Government admits that arrest or pending prosecution may show bias but counters
by arguing that before Felix can demonstrate bias through a pending arrest warrant he must first
demonstrate that Rodriguez was aware of the arrest warrant’s existence. Felix claims that is an
issue for the jury to determine. Since the integrity of the verdict has not been undermined, we
need not address this facet of the dispute.

                                                   4
        Accordingly, for the reasons stated above, we will affirm the Appellate Division’s denial

of Felix’s motion for a new trial.




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