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       Filed March 5, 2002


Nos. 00-2803 and 00-2804



Appellant No. 00-2803



Appellant No. 00-2804


(D.C. Nos. 99-cr-00033-1, 99-cr-00033-2)
District Judge: The Honorable Thomas K. Moore

Argued: DECEMBER 3, 2001

Before: BECKER, Chief Judge, NYGAARD and COWEN,
Circuit Judges.

(Filed: March 5, 2002).

       William J. Glore, Esq. (Argued)
       Hymes & Zebedee
       P.O. Box 990
       Charlotte Amalie, St. Thomas
       USVI, 00804

        Counsel for Appellant Casseus

       Erik E. Woodbury
       Dudley Clerk & Chan
       9720 Estate Thomas, Suite 1
       Charlotte Amalie, St. Thomas
       USVI, 00802

        Counsel for Appellant Fleurantin

       Hugh P. Mabe, III, Esq.
       Office of United States Attorney
       United States Courthouse
       5500 Veterans Building, Suite 260
       Charlotte Amalie, St. Thomas
       USVI, 00802-6924

        Counsel for Appellee


NYGAARD, Circuit Judge.

Renel Casseus and Chrisleme Fleurantin appeal from
their convictions of five counts of alien smuggling resulting
in a death, in violation of 8 U.S.C. S 1324(a)(1)(A)(i) and
(B)(iv), and of five counts of alien smuggling in which the
life of a person was put in jeopardy, in violation of 8 U.S.C.
S 1324(a)(1)(A)(i) and (B)(iii). Casseus was also convicted of
reentry of a deported alien, in violation of 8 U.S.C.
S 1326(a). Casseus was sentenced to 120 months of
incarceration followed by a five-year term of supervised
release. Fleurantin was sentenced to 80 months of
incarceration followed by a five-year term of supervised

Appellants raise the same three issues on appeal. First,
they contend that because violation of 8 U.S.C.S


1324(a)(1)(B)(iv) is a capital crime, under 18 U.S.C. S 3005
the District Court erred by failing to appoint, upon their
request, death-penalty qualified counsel to assist in their
defense. Second, they contend that they were deprived of a
fair trial because the District Court refused to order pretrial
discovery of the government's witness list, and refused to
order the prosecution to make the eyewitnesses, whom the
prosecution was detaining, available for the defendants to
interview within a reasonable period of time before trial.
Finally, they contend that the District Court erred by
admitting the testimony of an Immigration and
Naturalization Service agent that the beach upon which the
aliens were offloaded was not a lawful point of entry
pursuant to 8 C.F.R. S 100.4 (2001). We will affirm.


Renel Casseus was the captain and Chrisleme Fleurantin
was a crewman on board the Confiance Endieu, a twenty-
five foot, open wooden boat. One stormy night, appellants,
for a fee, brought thirty-one Haitian nationals on this boat
from St. Martin, F.W.I., to Lindqvist Beach, St. Thomas,
Virgin Islands. According to witnesses, the boat was
overloaded, but appellants made the voyage nonetheless.
When the boat approached Lindqvist Beach, the sea
conditions were rough and the boat became grounded on a
reef. While still in deep water, Casseus told the passengers
to disembark and make their own way to shore. One
passenger did not make it, and drowned.

Appellants were arrested within a few days, and indicted
for five counts each of alien smuggling. Later, a
superceding indictment was returned, setting forth
sentencing enhancements, and including the five counts
each of alien smuggling resulting in death, in violation of 8
U.S.C. S 1324(a)(1)(A)(i) and (B)(iv). This crime is punishable
by death.

From the time of their initial arraignments, both
appellants requested that the District Court appoint death-
penalty qualified counsel for them. The District Court
refused, waiting instead for the government to decide
whether it would seek the death penalty. During this


waiting period, plea negotiations were ongoing, although
unsuccessful. One month after the superceding indictment,
the government announced that it would not seek the death
penalty in either case. Both appellants were tried by a jury
and found guilty as to all counts.


Title 8 of the United States Code, S 1324(a)(1)(A) makes it
a federal crime to bring, or attempt to bring, an alien into
the United States through a port other than a "designated
port of entry." 8 U.S.C. 1324(a)(1)(B)(iv) states that a
violation of (a)(1)(A) that results in the death of any person,
may be punished by death. At issue here is 18 U.S.C.
S 3005, which states in relevant part:

       Whoever is indicted for treason or other capital crime
       shall be allowed to make his full defense by counsel;
       and the court before which the defendant is to be tried,
       or a judge thereof, shall promptly, upon the
       defendant's request, assign 2 such counsel, of whom at
       least 1 shall be learned in the law of capital cases. . . .

Appellants were indicted for a capital crime on March 25,
1999, and they promptly requested death-penalty qualified
counsel. The District Court did not act upon their requests
until May 12, 1999, when the requests were rendered moot
by the government's decision not to seek the death penalty.
As noted, appellants argue that by failing to appoint "2
such counsel, of whom at least 1 shall be learned in the
law of capital cases . . . ," the court erred. We will not
decide, however, whether the District Court so erred,
because, even if we assume the court erred, we hold that
the error was harmless.

Federal Rule of Criminal Procedure 52(a) instructs that
"any error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded." Fed. R. Crim.
P. 52(a); see also 28 U.S.C. S 2111. We have held that a
non-constitutional error committed at trial does not
warrant reversal where "it is highly probable that the error
did not contribute to the judgment." United States v.
Helbling, 209 F.3d 226, 241 (3d Cir. 2000) (quoting United
States v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en


banc). "`High probability' requires that we have a sure
conviction that the error did not prejudice the defendants."
United States v. Mathis, 264 F.3d 321, 342 (3d Cir. 2001)
(quoting United States v. Jannotti, 729 F.2d 213, 220 n.2
(3d Cir. 1984)).

Because this right to additional counsel is created by
statute, and not coterminous with the right to counsel
contained in the Sixth Amendment, the essential question
is whether there is a "high probability" that the error did
not prejudice the appellants. Here, we conclude that the
error did not prejudice the appellants at all. Although the
possibility of the death penalty was hanging over the
appellants' heads during plea negotiations, they were not
pressured by that fact to enter into plea agreements with
the government, nor to provide it with statements or
information prejudicial to them at their trial. As the statute
itself states, the purpose of 18 U.S.C. S 3005 is to allow a
capital defendant to "make his full defense by counsel."
This, they were fully able to do. Moreover, after the
government declared that it would not seek the death
penalty, the appellants were no longer capital defendants.
Because appellants were not harmed in any way, we
conclude that even if the District Court erred, that error
does require that we reverse their convictions. 1


Appellants' final two issues do not require much analysis.
Appellants argue that the District Court erred by refusing
to order the prosecution, within a reasonable time before
trial, to disclose and allow the defense to interview the only
available eyewitnesses, who were in the prosecution's
custody. We disagree. First, it is clear that a criminal
defendant does not have the right to full discovery of the
government's case. See, e.g. United States v. Addonizio, 451

1. In so holding, we note that our departure from the Fourth Circuit's
conclusion that "harmless error review is not applicable to a violation of
18 U.S.C. S 3005 because S 3005 provides an absolute statutory right to
two attorneys." United States v. Boone, 245 F.3d 352, 361 n.8 (4th Cir.
2001). We disagree, and for, inter alia, the reasons stated above we
believe that harmless error review is appropriate.


F.2d 49, 62 (3d Cir. 1972) ("in no event is the government
required to divulge the identity of its witnesses in a
noncapital case"); 18 U.S.C. S 3432 (a person charged with
a capital offense must be furnished with a list of witnesses
at least three days prior to trial). Second, none of the cases
relied upon by the appellants are applicable. Brady v.
Maryland, 373 U.S. 83, 87 (1963) requires the prosecution
to disclose "evidence favorable to the accused." Here, the
record is clear that the witnesses had no exculpatory
information to offer the appellants. Furthermore,
appellants' reliance on Rovario v. United States , 353 U.S. 53
(1957) and United States v. Jiles, 658 F.2d 194 (3d Cir.
1981), is inappropriate. These cases address the duty of the
prosecution to disclose the identity of confidential
informants who will not testify. Here, all witnesses did
testify, and appellants were actually allowed to interview
these witnesses before trial. We conclude that the Court did
not abuse its discretion by denying discovery.

Finally, we conclude that the District Court did not err by
admitting the testimony of an INS agent that Lindqvist
Beach was not a designated port of entry. There is really no
dispute that Lindqvist Beach is not a designated port of
entry according to the Code of Federal Regulations. 8 C.F.R.
S 100.4 (2001). Agent Nash testified based on her
knowledge, training, and eleven years of experience in the
INS that Lindqvist Beach was not a designated port of
entry. The fact that there is a regulation designating ports
of entry does not preclude a properly credentialed expert
from testifying to this fact based on her knowledge and
experience. As the trial judge noted, he could have taken
judicial notice of the designation had he so desired, he just
did not do so. The simple fact is that Lindqvist Beach is not
a valid port of entry, which fact was properly proven at
trial. Appellants were not prejudiced by Nash's testimony.


In summary, we hold that even if the District Court erred
by refusing to appoint death-penalty qualified counsel for
appellants promptly after their indictments for a capital
offense, that the error was harmless. Next, we find no merit


in the appellants' remaining arguments. We will therefore
affirm the judgments and convictions.

A True Copy:

       Clerk of the United States Court of Appeals
       for the Third Circuit