Government of the Virgin Islands v. Swaleh Muiruri

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-4166
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GOVERNMENT OF THE VIRGIN ISLANDS
v.
SWALEH MUIRURI,
Appellant
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On Appeal from the District Court of the Virgin Islands,
Division of St. Thomas & St. John,
Appellate Division
(D.C. Crim App. No. 2002-36)
Honorable Raymond L. Finch,
Honorable Curtis V. Gomez,
Honorable Patricia D. Steele
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Argued April 21, 2009
Before: BARRY, HARDIMAN and COWEN, Circuit Judges.
(Filed: August 14, 2009)
Tiffany V. Robinson, Esq. [Argued]
Dolace McLean, Esq.
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade, GERS Complex, 2nd Floor
Charlotte Amalie
St. Thomas, VI 00802
Attorneys for Appellee
Adam K. Gusman, Esq. [Argued]
Christopher A. Kroblin, Esq.

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Law Offices of Karin A. Bentz
18 Dronningens Gade
Suite 8
St. Thomas, VI 00802
Attorneys for Appellant
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Swaleh Muiruri appeals his judgment of conviction, arguing that the District Court
committed reversible error when it admitted hearsay testimony into evidence. We agree
that the trial court erred in this regard and that these errors were not harmless. Since
Muiruri had been incarcerated for some eight years, on April 22, 2009, the day after oral
argument, we vacated Muiruri’s conviction and ordered his release. We now explain the
reasons in support of our judgment.
I.
On the night of August 7, 2000, Dawn Fiscus stormed out of a bar in the Red Hook
area of St. Thomas, U.S. Virgin Islands, following an argument with her husband. While
Fiscus was walking down the road, Muiruri pulled alongside and offered her a ride in his
unlicensed “taxi.” Fiscus declined Muiruri’s offer. Soon thereafter, Muiruri returned and
implored Fiscus to allow him to drive her home. Fiscus entered the vehicle and the pair
drove to several locations where they repeatedly had sexual intercourse.

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The jury acquitted Muiruri of two kidnapping charges, apparently crediting his1
testimony over Fiscus’s testimony in this respect.
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Muiruri testified that Fiscus freely got into his vehicle and that the sex was
consensual. Fiscus, on the other hand, claims that Muiruri forced her into his vehicle at
gunpoint and then raped her repeatedly. At trial, Fiscus admitted that she told Muiruri
that the sex was “very good,” “wonderful,” and “the best [she] ever had.” App. 319.
Fiscus also made other statements consistent with a consensual sexual encounter,
including thanking Muiruri “for a lovely evening,” App. 328, 332, and instructed him to
drop her off outside the entrance to her condominium complex so Muiruri would not be
seen by the security guard and so Fiscus’s husband would not learn of their encounter. As
soon as Muiruri dropped her off, however, Fiscus ran to the guard shack screaming that
she had been raped and shouting out Muiruri’s license plate number.
Fiscus testified that the statements she made consistent with a consensual sexual
encounter were merely a facade to pacify her attacker, as she had been taught in nursing
school. She testified that Muiruri abducted her at gunpoint and physically restrained her
from escaping several times. 1
In sum, the case presented contradictory factual scenarios that required the jury to
discern whether the accuser’s testimony that the encounter was not consensual was
credible and, if so, whether guilt had been proven beyond a reasonable doubt.
Over Muiruri’s repeated objections, the trial judge admitted into evidence: (1) a
written statement by Fiscus detailing her version of the encounter; (2) a security guard’s

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out-of-court statement to Fiscus’s husband that she had been raped; and (3) testimony
about the investigation from a law enforcement officer who visited the crime scene with
Fiscus. The jury returned a mixed verdict, convicting Muiruri of unlawful sexual contact,
one count of assault, and two counts of rape, but acquitting him of false imprisonment
and kidnapping, kidnapping for rape, another count of assault, and two other counts of
rape.
Pursuant to 48 U.S.C. §§ 1613a(a)-(b), Muiruri appealed his conviction to the
Appellate Division of the District Court of the Virgin Islands. Six years later, the
Appellate Division affirmed and Muiruri appealed to this Court pursuant to 28
U.S.C. § 1291 and 48 U.S.C. § 1613a(c).
II.
Muiruri argues that the aforementioned out-of-court statements were inadmissible
under the hearsay rule. “Whether a statement is hearsay is a legal question subject to
plenary review. If the district court correctly classifies a statement as hearsay, its
application of the relevant hearsay exceptions is subject to review for abuse of
discretion.” United States v. Price, 458 F.3d 202, 205 (3d Cir. 2006) (citations omitted).
The deferential abuse of discretion standard is met only when “the district court’s action
was arbitrary, fanciful or clearly unreasonable”; in other words, when “no reasonable
person would adopt the district court’s view.” United States v. Frazier, 469 F.3d 85, 87-
88 (3d Cir. 2006).

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A.
The first question presented is whether the written statement Fiscus gave to the
police the day after the encounter was admissible under Federal Rule of Evidence
801(d)(1)(B), which excludes prior consistent statements from the definition of hearsay.
Although Rule 801 defines hearsay and we generally conduct plenary review of hearsay
determinations, Price, 458 F.3d at 205, we have held that a trial court’s ruling on the
admissibility of prior consistent statements is reviewed for abuse of discretion because
“[t]his inherently factual inquiry does not have a sufficient legal component to warrant
plenary review.” Frazier, 469 F.3d at 87.
Under Rule 801(d)(1)(B), an out-of-court statement is not hearsay if it is
“consistent with the declarant’s testimony and is offered to rebut an express or implied
charge against the declarant of recent fabrication or improper influence or motive.” Id. at
88. The following requirements must be satisfied for a prior consistent statement to be
admitted into evidence: “(1) the declarant must testify at trial and be subject to cross-
examination; (2) there must be an express or implied charge of recent fabrication or
improper influence or motive of the declarant’s testimony; (3) the proponent must offer a
prior consistent statement that is consistent with the declarant’s challenged in-court
testimony; and (4) the prior consistent statement must be made prior to the time that the
supposed motive to falsify arose.” Id.

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Fiscus testified at trial, her testimony was generally consistent with her written
statement, and the defense impugned her testimony by suggesting that the rape allegations
were concocted to garner sympathy from her husband after a fight. Only the “pre-motive
requirement” is at issue here. “[T]he premotive inquiry is interrelated with the
fabrication/motive/influence inquiry, and should for the most part be left to the sound
discretion of the district court.” Id. at 93.
The Supreme Court squarely addressed the pre-motive requirement in Tome v.
United States, 513 U.S. 150 (1995), stating: “Prior consistent statements may not be
admitted to counter all forms of impeachment or to bolster the witness merely because she
has been discredited.” Id. at 157. The question is whether an out-of-court statement
rebuts the alleged link between the declarant’s purported motive to lie and her subsequent
testimony. Id. The pre-motive requirement exists because “[a] consistent statement that
predates the motive is a square rebuttal of the charge that the testimony was contrived as a
consequence of that motive . . . [but] out-of-court statements that postdate the alleged
fabrication . . . refute the charged fabrication in a less direct and forceful way.” Id. at
158. This distinction is necessary because “[i]f . . . Rule [801(d)(1)(B)] were to permit
the introduction of prior statements as substantive evidence to rebut every implicit charge
that a witness’ in-court testimony results from recent fabrication or improper influence or
motive, the whole emphasis of the trial could shift to the out-of-court statements, not the
in-court ones.” Id. at 165. Tome acknowledged that “it may be difficult to ascertain

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when a particular fabrication, influence, or motive arose,” but concluded that courts are
nevertheless capable of making the determination. Id. at 165-66. Following Tome, we
held in Frazier that “[t]he premotive requirement will be satisfied if a district court can
reasonably determine from the record a range of time when a motive to fabricate could
have arisen after the prior consistent statement.” 469 F.3d at 93-94.
In this case, the trial judge initially ruled that Fiscus’s written statement was
inadmissible. After a sidebar conference, he abruptly reversed course:
I am going to reconsider my ruling. I believe this is a prior statement that
has been offered as consistent with the two prior statements to rebut and to
challenge the declarant to a recent fabrication and motive or one of the
identification of the persons made after receiving that statement, and the
person she described to the defendant. And regardless to what the theory is
. . . at least as to her motive, you’re arguing that her motive for doing this is
that she complained to her husband, so I’m going to allow it. I will allow
the statement.
App. 363-64.
The Appellate Division affirmed the trial judge’s ruling in cursory fashion,
concluding that Fiscus’s written statement was not hearsay under Rule 801(d)(1)(B)
because “Muiruri’s entire defense was premised on the theory that [Fiscus] fabricated the
rape and lied to the police.” App. 55-56.
The trial judge and the Appellate Division failed to address the determinative
issue: whether Fiscus’s purported motive to falsify her testimony arose before or after she
gave her statement to the police. On appeal, the Government claims that “[t]he record
does not support the Appellant’s contention that the victim had a motive to accuse him of

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rape prior to her statement to the police to get sympathy from her husband or conceal an
affair with the Appellant.” Appellee’s Br. at 16. Yet Muiruri’s defense has always been
that Fiscus was motivated by a fight with her husband that occurred shortly before her
encounter with Muiruri, the day before her statement to police. This theory has plain
support in the record; neither the fact that Fiscus had a fight with her husband nor the
relative timing of the fight and her encounter with Muiruri are in dispute. Thus, Muiruri
has alleged a motive to fabricate arising before Fiscus gave her statement to the police.
Accordingly, Fiscus’s written statement constituted inadmissible hearsay under Rule
801(d)(1)(B) and its admission constituted an abuse of discretion.
B.
We next consider the testimony of John Hawkins, who overheard the security
guard at Fiscus’s condominium complex tell Mr. Fiscus: “Your wife has been raped.”
App. 682.
The trial judge and the Appellate Division accepted the Government’s contention
that the security guard’s out-of-court statement was not offered to prove the truth of the
matter asserted because it was offered to explain why Mr. Fiscus stopped searching for
his wife and went to the hospital. Whether hearsay evidence is offered to prove the truth
of the matter asserted is “a question of law subject to plenary review.” United States v.
Sallins, 993 F.2d 344, 346 (3d Cir. 1993). In Sallins, we noted:
Whether a disputed statement is hearsay frequently turns on the purpose for
which it is offered. If the hearsay rule is to have any force, courts cannot

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accept without scrutiny an offering party’s representation that an out-of-
court statement is being introduced for a material non-hearsay purpose.
Rather, courts have a responsibility to assess independently whether the
ostensible non-hearsay purpose is valid.
Id.
In this case, the Government’s justification is nothing more than a thinly veiled
pretext. The Government claims that the out-of-court statement was offered to explain
Mr. Fiscus’s activities after his wife’s encounter with Muiruri, but those activities are
utterly irrelevant. The fact that Mr. Fiscus was searching for his wife and eventually
found her at the hospital has no bearing on the question whether the sexual encounter
between Muiruri and Fiscus was consensual. To the extent that the witness’s testimony
provided context for the jury, its marginal utility could have been achieved without the
hearsay statement — which expressed a third-hand opinion regarding the ultimate issue in
the case — that Fiscus had been raped. On appeal, the Government makes no attempt to
explain how Mr. Fiscus’s actions were relevant, or why the hearsay statement was so
necessary to provide context that it was not intended to prove the truth of the matter
asserted.
In Sallins, the Government similarly argued that a radio conversation between
police officers was offered as context for the officer’s actions, not for the truth of the
assertion that a suspect fitting the defendant’s description was in the area. Id. We
concluded that the radio conversation was not admissible to provide context because the
information was of little relevance and, in any event, could have been provided without

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the potentially prejudicial hearsay statement. Id. Morever, we held that even if the radio
conversation were admissible to provide context, it was clearly not offered for that
purpose: “The absence of a tenable non-hearsay purpose for offering the contents of the
police radio call establishes that the evidence could have been offered only for its truth
value.” Id. at 347.
As in Sallins, we are unable to discern a tenable non-hearsay purpose for the
security guard’s statement that Fiscus had been raped. We therefore conclude that the
statement was offered to prove the truth of the matter asserted. In light of the statement’s
obviously prejudicial character, the trial court abused its discretion in this regard as well.
III.
Having concluded that two hearsay statements were erroneously admitted into
evidence, we must determine whether these errors were harmless. Erroneously admitted
evidence is harmless if “it is highly probable that the improperly admitted evidence did
not contribute to the jury’s judgment of conviction.” Id. at 348. But “if one cannot say
. . . that the judgment was not substantially swayed by the error, it is impossible to
conclude that substantial rights were not affected,” and reversal is required. United States
v. Lopez, 340 F.3d 169, 177 (3d Cir. 2003) (quoting Government of the Virgin Islands v.
Toto, 529 F.2d 278, 283 (3d Cir.1976)).
The trial of this case hinged almost entirely on conflicting versions of events given
by Muiruri and Fiscus. The jury convicted Muiruri of unlawful sexual contact and two

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In light of our holding, we need not address Muiruri’s argument that an2
investigator’s testimony regarding her visit to the alleged crime scene constituted
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counts of rape but acquitted him of two other counts of rape. Excluding the inadmissible
hearsay, the other evidence in the record would have sufficed to support the jury’s
verdict. But “[t]he inquiry cannot be merely whether, notwithstanding the error, there
was enough to support the conviction.” Lopez, 340 F.3d at 177 (quotations omitted).
Where evidence is, as it was in this case, less than overwhelming, “we cannot help but
harbor a grave doubt that the erroneous admission of [hearsay] substantially influenced
the jury’s verdict.” United States v. Green, 556 F.3d 151, 158 (3d Cir. 2009). See also
Lopez, 340 F.3d at 177 (reversal required when the appellate court is “not confident that
the improperly admitted hearsay statements did not help to ‘cement’ the jury’s judgment
of conviction”).
Given the substantial weight that the jury had to place on Fiscus’s testimony to
convict Muiruri, the potential prejudice caused by inadmissible hearsay reinforcing her
version of events was great. A written report by the alleged victim and the conclusion of
a security guard that Fiscus had been raped likely tainted the jury’s decisionmaking
process. Therefore, we cannot hold that the trial court’s evidentiary rulings were
harmless.
IV.
For the foregoing reasons, we hold that the trial court’s evidentiary rulings
constituted reversible error, which required vacatur of Muiruri’s judgment of conviction.2

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reversible error. We note, however, that should the Government subject Muiruri to
another trial, the trial court should ensure that any testimony by the investigator is limited
to her observations without repeating inadmissible hearsay statements made to her by
Fiscus during their visit to the alleged crime scene.
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