                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-1997

Govt of V.I. v. Blake
Precedential or Non-Precedential:

Docket 96-7769




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Recommended Citation
"Govt of V.I. v. Blake" (1997). 1997 Decisions. Paper 149.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/149


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Filed July 8, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7769

GOVERNMENT OF THE VIRGIN ISLANDS,
Appellant

v.

ZACCHAEAS BLAKE; LEON NISBETT

On Appeal from the United States
District Court of the Virgin Islands,
Division of St. Croix
(D.C. Criminal Action No. 95-cr-00004)

Argued: April 8, 1997

Before: BECKER, ROTH and
WEIS, Circuit Judges

(Opinion Filed July 8, 1997)
Alva A. Swan
Acting Attorney General
Paul L. Gimenez
Solicitor General
Maureen Phelan Cormier
(Argued)
Assistant Attorney General
Office of the Attorney General
of the Virgin Islands
Department of Justice
48B-50 Kronprindsens Gade
Charlotte Amalie, St. Thomas
USVI, 00802

Attorneys for Appellant

Harold W. Willocks, Esq. (Argued)
Chief Territorial Public Defender
1-B Estate Clifton Hill
Kingshill, St. Croix
USVI, 00850

Kathryn D. Slade, Esq.
Territorial Public Defender
46-47 Company Street
Christiansted, St. Croix
USVI

Attorneys for Appellee Nisbett

Michael A. Joseph, Esq.
Suite 1
52A Company Street
Christiansted, St. Croix
USVI, 00820

Attorney for Appellee Blake

OPINION OF THE COURT

ROTH, Circuit Judge:

                   2
This case requires us to interpret a Virgin Islands statute
permitting the government to appeal, during a criminal
trial, a ruling "involving a substantial and recurring
question of law which requires appellate resolution." 4
V.I.C. § 39(d) (Supp. 1996-1997). During the trial of
defendants Zacchaeas Blake and Leon Nisbett, who were
charged with third degree assault and possession of a
firearm during a crime of violence, the Territorial Court of
the Virgin Islands excluded certain of the government's
evidence. In order to challenge these evidentiary rulings,
the government moved for, and the trial court granted,
leave for an immediate appeal under 4 V.I.C. § 39(d). The
District Court of the Virgin Islands, however, dismissed the
appeal for lack of jurisdiction, reasoning that the issues
presented on appeal did not come within the ambit of the
statute. This appeal presents us with the question whether
the trial court's rulings involve a "substantial and recurring
question of law which requires appellate resolution" within
the meaning of 4 V.I.C. § 39(d). Because we conclude that
they do not, we affirm the district court's order and remand
the case to the district court for remand to the territorial
court.

I. FACTS

According to the government, early in the morning of
April 29, 1994, Wilson David and his four-year old son were
driving home from David's sister's house. As they got out of
their truck, four shots were fired at them. Neither was
injured. David identified the man who fired the shots as
Zacchaeas Blake and the man who accompanied him as
Leon Nisbett, both of whom he knew previously. David's
niece, who came out of David's apartment after hearing the
gunfire, identified Blake as holding a gun and Nesbitt as
sitting inside a maroon Honda. Blake allegedly asked David,
before shooting, why David was "looking" at him. Nisbett
and Blake were arrested and charged with four counts each
of third degree assault under 14 V.I.C. §§ 297(2) and (3)
(1996), and one count each of possession of a firearm
during the commission of a crime of violence in violation of
14 V.I.C. § 2253(a) (1996).

                    3
On the morning of trial, the court asked to hear pretrial
motions. The defense moved to exclude some photographs,
apparently of the crime scene, that the government had
produced for the first time that morning. After some
discussion about the motion, but before ruling, the
territorial court decided first to select a jury and then to
consider the pretrial motions.

The judge selected the jury, had it sworn in, and then
recessed for lunch. During the recess the court considered
the motions. It first excluded the photographs on the
grounds that they were not provided to the defendants
before the morning of trial. Defendants also moved to
exclude testimony by David, the complaining witness, that
Blake "used to hang out with a guy that shot me[David]
once." After inquiring whether the statement in question
went to a possible motive by Blake for the alleged shooting,
the court excluded the evidence because "the prejudice that
it will form in the minds of this jury will outweigh the
probative value." Nisbett then moved to exclude the
introduction of certain physical evidence on the ground that
it was not relevant. Blake moved to exclude the same
evidence because the government had not produced it
during discovery. The evidence -- a 9 millimeter live round,
knife casings, a projectile, knives, and one billy club -- was
found in the maroon Honda, which was registered in
Joshua Blake's name, but the government had not charged
that the evidence was used in the commission of the
present offense. The court accordingly concluded that this
evidence was "going to unduly prejudice this jury," and
excluded it as to Nisbett. The court granted Blake's motion
as well. Finally, the court excluded expert testimony by
Officer Hitesman because the defense had requested the
results of any scientific tests, and the government had
identified none.

The government sought an immediate appeal under 4
V.I.C. § 39(d), which provides for appeals by the government
during criminal trials if the government certifies that the
appeal involves "a substantial and recurring question of law
which requires appellate resolution." The court granted the
motion and then declared a mistrial. It noted that the
statute calls for adjournment of the trial but reasoned that

                    4
an appeal would last too long to keep the same jury.
Counsel for Blake's attorney stated that he had no
objection to declaring a mistrial. After the trial, the
government submitted written certification, and on
November 18, 1994, the court entered a written order that
"the Government's Motion for Leave to Appeal from
Interlocutory Rulings Suppressing Evidence is hereby
GRANTED."

The district court dismissed the appeal for lack of
jurisdiction. It reasoned that the case did not involve
substantial and recurring questions of law and that the
appeal was accordingly not permitted under 4 V.I.C. § 39.
The court also noted that it "seriously questions whether a
statute allowing the Government such an appeal during a
criminal trial after jeopardy attached can withstand
constitutional analysis." For these two reasons, and
because of the "general bias" against interlocutory appeals
in criminal cases, the district court concluded that the
territorial court erred in giving leave to appeal under 4
V.I.C. § 39, and it dismissed the case. This appeal followed.

II. JURISDICTION

Before exploring the specific jurisdictional question that
this case presents, we outline the general jurisdictional
framework for appeals from decisions of the district courts
of the Virgin Islands.

Federal law provides that this Court has jurisdiction over
"appeals from all final decisions of the district court on
appeal from the courts established by local law." 48 U.S.C.
§ 1613a(c); see 28 U.S.C. § 1291. In this case, the decision
of the district court was on appeal from a court established
by local law; if that decision was "final," this Court has
jurisdiction. In In re Alison, 837 F.2d 619 (3d Cir. 1988), we
considered a decision of the district court which reversed a
territorial court's ruling that the plaintiff had failed to state
a cause of action. The district court's order was not "final,"
because that order merely concluded that the plaintiff had
stated a cause of action and remanded the case for further
proceedings. See generally, Caitlin v. United States, 324
U.S. 229, 233 (1945); Quackenbush v. Allstate, 116 S.Ct.
1712, 1718-1719 (1996).

                     5
In this case, however, we are called upon only to decide
the scope of the district court's own jurisdiction. The
district court did not reach the merits of the dispute, and
neither do we. Under these circumstances review is
appropriate under the collateral order doctrine. See In re.
Ford Motor Co., 110 F.3d 954, 959 (3d Cir. 1997). The
Virgin Island's legislature explicitly permits appeals during
criminal trials, thus the efficiency interests that animate
the final judgment rule are not at work here. Id. at
959-961. Moreover, this issue is separable from the merits,
was conclusively decided by the district court, is
unreviewable on appeal, and involves an unresolved
question of law -- the scope of § 39(d). The problems that
generally accompany application of the collateral order
doctrine in criminal cases, see, e.g. , United States v.
McVeigh, 106 F.3d 325, 330 (10th Cir. 1997), are not at
work here because we are applying a statute that itself calls
for interlocutory appeals. See also, In re A.M., 34 F.3d 153,
156 (3d Cir. 1994) (applying the collateral order doctrine in
a criminal case in which the district court decision affirmed
a territorial court's order that a minor be transferred for
prosecution as an adult).

The district court's jurisdiction over the appeal from the
territorial court is derived from a federal law providing that
the district courts of the Virgin Islands shall have "such
appellate jurisdiction over the courts of the Virgin Islands
as established by local law to the extent now or hereafter
prescribed by local law." 48 U.S.C. § 1613a(a). Turning to
the local law, the Virgin Islands Code, in a section entitled
"Appellate jurisdiction," states that the "district court has
appellate jurisdiction to review the judgments and orders of
the territorial court. . .in all criminal cases in which the
defendant has been convicted, other than on a plea of
guilty." 4 V.I.C. § 33 (Supp. 1996-1997).

Section 33 would preclude an appeal to the district court
in this case, because the defendant has not been convicted.
The territorial court relied, however, on section 39 of the
Virgin Islands Code, entitled "Appeals by the United States
and the Government of the Virgin Islands." 4 V.I.C. § 39.
Section 39 provides for appeals in situations where the
defendant has not been convicted, but does not explicitly

                    6
mention to which court the appeal may be taken. We
nonetheless conclude that, where applicable, § 39 does
grant appellate jurisdiction to the district courts of the
Virgin Islands. To conclude otherwise would seriously
circumscribe the availability of an appeal under this section.1
Moreover, before the enactment of § 39, § 33 included the
sentence "appeals in criminal cases may be taken only by
the defendant." This sentence was eliminated when§ 39
was added to the Code. Act No. 3321, 1972 V.I. Sess. Laws
464, 464 (October 25, 1972). It was thus the obvious intent
of the legislature to ensure that the district courts did have
jurisdiction over appeals by the government if so permitted
under § 39.

III. A SUBSTANTIAL AND RECURRING QUESTION OF
LAW

We now turn to the issue in this case -- whether this
appeal to the district court was permissible pursuant to
§ 39. The section reads:

§ 39. Appeals by the United States and the
Government of the Virgin Islands

(a)(1) The United States or the Government of the
Virgin Islands may appeal an order, entered before the
trial of a person charged with a criminal offense under
the laws of the Virgin Islands, which directs the return
of seized property, suppresses evidence, or otherwise
denies the prosecutor the use of evidence at trial, if the
United States Attorney or the Attorney General
conducting the prosecution for such violation certifies
to the Judge who granted such motion that the appeal
_________________________________________________________________

1. Under such a reading of § 39, appeals would be permitted in cases
that were tried in the district court, but appeals would not be permitted
to the district court from trials in the territorial court. See, Government
of the Virgin Islands v. Testamark, 570 F.2d 482, 483 n.2 (3d Cir. 1978)
(permitting an appeal from a trial in the district court under 4 V.I.C.
§ 39(c)), but see Government of the Virgin Islands v. David, 741 F.2d 653,
654 n.2 (3d Cir. 1984) (expressing doubt as to whether this provision of
the Virgin Islands Code applies to appeals from trials in the district
court). If the dicta in David is correct,§ 39 would have no force
whatsoever if it did not apply to trials in the territorial court.

                    7
is not taken for the purpose of delay and the evidence
is a substantial proof of the charge pending against the
defendant.

(2) A motion for the return of seized property or to
suppress evidence shall be made before trial unless
opportunity therefor did not exist or the defendant was
not aware of the grounds for the motion.

(b) The United States or the Government of the Vir gin
Islands may appeal a ruling made during the trial of a
person charged with a criminal offense under the laws
of the Virgin Islands which suppresses or otherwise
denies the prosecutor the use of evidence on the
ground that it was invalidly obtained, if the United
States Attorney or the Attorney General conducting the
prosecution for such violation certifies to the Judge
who made the ruling that the appeal is not taken for
the purpose of delay and that the evidence is a
substantial proof of the charge being tried against the
defendant. The trial court shall adjourn the trial until
the appeal shall be resolved.

(c) The United States or the Government of the Vir gin
Islands may appeal an order dismissing an information
or otherwise terminating a prosecution in favor of a
defendant or defendants as to one or more counts
thereof, except where there is an acquittal on the
merits.

(d) The United States or the Government of the Virgin
Islands may appeal any other ruling made during the
trial of a person charged with an offense under the laws
of the Virgin Islands which the United States Attorney or
the Attorney General certifies as involving a substantial
and recurring question of law which requires appellate
resolution. Such an appeal may be taken only during
trial and only with the leave of the court. The trial court
shall adjourn the trial until the appeal shall be
resolved.

(e) Any appeal taken pursuant to this section eith er
before or during trial shall be expedited. If an appeal is
taken pursuant to subsections (b) or (d) during the

                    8
trial, the appellate court shall, to the extent practicable,
give the appeal priority over all other pending appeals.

(f) Pending the prosecution and determination of a n
appeal taken pursuant to this section, the defendant
shall be detained or released in accordance with
applicable law.

4 V.I.C. § 39 (emphasis added).

The territorial court gave the government leave to appeal
under subsection (d), without considering on the record
whether an appeal of its rulings would involve "a
substantial and recurring question of law which requires
appellate resolution." The Virgin Islands Attorney General
certified that the evidentiary rulings did involve such a
question. The district court disagreed and dismissed the
case for lack of jurisdiction. We exercise plenary review over
whether the territorial court's evidentiary rulings presented
a "substantial and recurring question of law" because this
is an issue of statutory interpretation, Christian v. Joseph,
15 F.3d 296, 297 (3d Cir. 1994), and because it involves
the jurisdiction of the federal courts. Government of the
Virgin Islands v. Warner, 48 F.3d 688, 691 (3d Cir. 1995).2

In interpreting § 39(d), familiar canons of statutory
interpretation direct that we begin with the text of the
statute. Hartford Acc. & Indem. Co. v. Sharp, 87 F.3d 89, 92
(3d Cir. 1996) (citations omitted). We are mindful that in
considering subsection (d), we must look to the entirety of
§ 39 because the text of the statute "is to be read as a
whole. . . .since the meaning of statutory language, plain, or
_________________________________________________________________

2. Although the statute is not clear, we believe that § 39(d) requires that
the court review the certification that there exists a "substantial and
recurring question of law requiring appellate resolution." If the issue did
present a "substantial and recurring question of law requiring appellate
resolution," the territorial court's decision to grant leave to appeal would
be reviewed by us only for an abuse of discretion. We would apply this
standard of review because the statute vests the trial court with the
discretion to grant or deny leave to appeal, presumably based on its
familiarity with the course of the litigation. See United States v. Criden,
648 F.2d 814, 817-818 (3d Cir. 1981) (where trial court has a "superior
vantage point" from which to resolve the question, its decision "merits a
high degree of insulation for appellate revision").

                     9
not, depends on context." Hudson United Bank v. Chase
Manhattan Bank of Conn., 43 F.3d 843, 848 n.11 (3d Cir.
1994 ) (quoting King v. St. Vincent's Hosp., 502 U.S. 215,
221 (1991) (further citation omitted)). This is consistent
with Virgin Islands law which provides that in interpreting
its statutes "words and phrases" must be read "with their
context" and "construed according to the common and
approved usage of the English language." 4 V.I.C. § 42
(1921). Terms that are "technical" or that have "acquired a
peculiar and appropriate meaning in the law," are to be
"construed and understood according to their peculiar and
appropriate meaning." Id.

None of the terms in the phrase "substantial and
recurring question of law which requires appellate
resolution" are defined by the statute. The term "question of
law" does, however, at least in one sense, have a particular
meaning in the law, where questions of law are
distinguished from questions of fact. We thus understand a
"question of law" as something other than a question of
fact. Virgin Islands statutes on the books before the
enactment of § 39 confirm this reading. Title 30, section 35,
of the Virgin Islands Code, governing public utilities, for
example, distinguishes between "questions of law" and
"findings of fact" in appeals from the findings of the
Commission. 30 V.I.C. § 35. Although this helps frame our
inquiry, it by no means ends it. As many courts have
remarked, distinguishing questions of fact from those of law
is often no simple task. Thompson v. Keohane, 116 S.Ct.
457, 464 n.10 (1995) (collecting cases).

The rulings at issue in this case were made under Fed.
R. Evid. 403 and Fed. R. Civ. Proc. 16. There is no question
that these rules applied to this case, that the court used
the correct standard in applying the rules,3 and that the
district court ordered relief specifically contemplated by
both rules -- exclusion of the evidence. Under these
circumstances, trial court orders made pursuant to these
_________________________________________________________________

3. The government has suggested that the territorial court acted with an
improper motive when it excluded the evidence. For the reasons set forth
infra note 5, we reject this characterization of the issues presented by
this appeal.

                    10
two rules lie entirely within the court's discretion and are
only reviewed for an abuse of that discretion. Abrams v.
Lightolier, Inc., 50 F.3d 1204, 1213 (3d Cir. 1995); United
States v. Adams, 759 F.2d 1099, 1111 (3d Cir. 1985); see
also, 25 Moore's Federal Practice, § 616.02[4][e] (Matthew
Bender 3d ed. 1997). Indeed, "if judicial restraint is ever
desirable it is when a Rule 403 analysis of a trial court is
reviewed by an appellate tribunal." United States v. Balter,
91 F.3d 427, 442 (3d Cir.) (quoting United States v. Scarfo,
850 F.2d 1015, 1019 (3d Cir. 1988)), cert. denied, 117 S.Ct.
517 (1996). This is so in large part because the trial court
sits in a unique position to evaluate the evidentiary and
discovery questions, including the selection of sanctions,
which suggests that the application of these rules in a
particular case is unlikely to involve "substantial" or
"recurring" "questions of law."

The issues presented here confirms this conclusion.
Application of Fed. R. Crim. P. 16 involved determining
what discovery the district court had ordered; whether,
when, and to what extent the government had complied
with such orders; the importance of compliance to the case;
and the appropriateness of various sanctions. Similarly, the
orders made under Fed. R. Civ. P. 403 required the court
to determine the purpose of the evidence, its value to the
government, and its potential prejudice to the defendant in
the context of the other evidence that the parties would
introduce. Because these inquiries hinged almost entirely
on the facts of this particular case, we conclude that the
trial court's rulings presented no "substantial" question of
law. For the same reason, any questions of law that the
rulings raise are not "recurring"-- this case has unfolded in
a unique way, and the evidentiary and discovery rulings
from which appeal is sought present questions that are
specific to this case.

In its post-argument brief, the government characterizes
the question for review as "where the defendant has not
been prejudiced, does a trial court have the power under
Rule 16(d)(2)4 to, in effect, dismiss a serious criminal
_________________________________________________________________

4. It is unclear whether the government, by asserting that this is the
question on appeal, was abandoning its argument that the Rule 403
rulings were appealable under the statute. Because the government
made no explicit concession and because their earlier briefs argue that
the Rule 403 rulings were appealable, we nonetheless considered this
question.

                    11
charge as a sanction for discovery violations?"5 But
defendants have not conceded, and the trial court did not
find, that the "defendants have not been prejudiced" and
that excluding the evidence in this case was "in effect,
dismiss[ing]" the charges against the defendants. Indeed,
the trial court was clearly concerned with prejudice when it
stated, with reference to the physical evidence that "what if
after seeing this billy club he wanted to hire an expert
witness? He wouldn't be able to because at the last minute
you are springing on him at least six items." As to the
assertion that the exclusion of the evidence was equivalent
to "dismissing" the case, both the victim and his niece
identified the defendants, who were known to them
previously. Indeed, Blake's attorney stated at trial that this
is what he thought the whole case was about -- the
testimony of the government's witnesses versus that of the
defendants. Because the victim, who witnessed the crime,
and his niece, who saw the scene immediately after shots
were fired, were both prepared to identify the defendants as
_________________________________________________________________

5. The government formulated the question differently in its first brief to
this court: "to what extent may a trial court penalize the Government for
the carelessness or confusion of an individual prosecutor?" At oral
argument two other versions of the this question were offered by the
government: "the propriety of the sanction in this case," and "whether or
not, simply because the trial court is annoyed with counsel, whether she
can effectively gut the government's entire case?" These questions
incorrectly characterize the issue presented by this appeal. The trial
court excluded evidence under Rule 403 because it was not sufficiently
probative in light of the unfair prejudice it could cause. Evidence was
excluded under Rule 16 because the government failed to comply with
the court's discovery orders. Although the discovery sanctions may
penalize the government for the "carelessness and confusion" of one
prosecutor who failed to follow discovery rules, this is entirely
appropriate under Rule 16. Moreover, we do not read the transcript to
suggest that the judge ruled as she did because she was "annoyed,"
instead the record shows that she ruled after considering the appropriate
factors under the rules in question. Finally, the government never stated
to the trial court that this was the issue for which it sought review; we
thus have no reason to think that this was the issue which the trial
court gave the government leave to appeal. Appeals under § 39(d) require
leave from the trial court.

                    12
the perpetrators, the characterization of the exclusion of
the evidence as a "dismissal" is entirely without merit.6

The balance of the statute also supports our conclusion
that the Virgin Islands legislature did not intend to permit
this appeal when it enacted the statute. Subsections (b)
and (d) of § 39 provide the circumstances under which the
government may appeal a ruling made during trial. Under
(b) the government may appeal rulings made during trial
that exclude government evidence "on the ground that it
was invalidly obtained." 4 V.I.C. § 39(b). The government
must certify, however, that "the evidence is a substantial
proof of the charge being tried against the defendant." Id.

Subsection (d) works the same way. It begins, however,
with a broader set of rulings. Under it the government may
appeal "any other ruling made during trial." This is limited,
however, by the language that requires government
certification that the ruling involve "a substantial and
recurring question of law that requires appellate
resolution." 4 V.I.C. § 39(d). Thus while subsection (b) is
concerned with the importance of the evidence to the trial
at hand, different concerns animate subsection (d). It is
focused not on the role that the evidence plays in the
specific trial but instead with the importance of the legal
question that the trial court's ruling presents. This intent is
made clear with the terms "substantial" and "recurring"
which modify the phrase "question of law." Thus it is not
enough, under subsection (d) that the ruling excluded
evidence that was important to the government's case--
the ruling must also present a question of law that has
import in other cases as well. There is no issue on appeal
which meets this standard.

IV. CONCLUSION

For the reasons stated above, we will affirm the order of
_________________________________________________________________

6. For this reason we also reject the government's argument that an
appeal lies under 48 U.S.C. § 1493(a). Nor was an appeal available under
subsection (b) because the order of trial court was made "after the
defendant had been put in jeopardy." 48 U.S.C.§ 1493(b). See also, 18
U.S.C. § 3731.

                     13
the district court, dismissing the appeal for lack of
jurisdiction, and remand this case to the district court for
remand to the territorial court.7

A True Copy:
Teste:

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

_________________________________________________________________



7. Because the issue of double jeopardy was not fully briefed to us, we
will not in this appeal decide whether double jeopardy bars retrial of the
defendants.

                    14
