                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2003

Govt of VI v. Marsham
Precedential or Non-Precedential: Non-Precedential

Docket 01-3129




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"Govt of VI v. Marsham" (2003). 2003 Decisions. Paper 670.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/670


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                     NOT-PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 01-3129




                       GOVERNMENT OF THE VIRGIN ISLANDS

                                            v.

                              WARRINGTON MARSHAM,

                                                     Appellant




  ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS (APPELLATE
                               DIVISION)

                                Dist. Court No. 99-cr-00173)
     District Court Judges: Raymond L. Finch, Thomas K. Moore and Maria M. Cabret


                               Submitted November 14, 2002

                  Before: SCIRICA, ALITO and RENDELL, Circuit Judges.

                             (Opinion Filed: March 13, 2003)




                               OPINION OF THE COURT




PER CURIAM:
                   Appellant Warrington Marsham was indicted on fourteen counts of grand

larceny, burglary and attempted larceny. He rejected a plea agreement that offered him a

five-year prison term in exchange for guilty pleas to two counts of grand larceny. Two days

into his trial in the Territorial Court, having heard the testimony of two of his former

accomplices, he offered to accept the pretrial agreement. The trial judge declined but later

accepted a plea agreement under which Marsham pled guilty to three counts of grand

larceny with a maximum possible sentence of 30 years. The judge then sentenced Marsham

to 27 years’ imprisonment.1 Marsham appeals the decision of the Appellate Division of the

District Court affirming this prison sentence.2 He argues that, by refusing to accept the

pretrial plea agreement at trial, and by imposing a significantly longer prison term than that

offered in the pretrial agreement, the trial judge punished him for choosing to go to trial, in

violation of his Fifth Amendment right to due process. He also contends that his 27 year

sentence violates the Eighth Amendment’s prohibition against cruel and unusual

punishment. For the reasons given below, we vacate Marsham’s sentence with instructions

that the case be remanded to the Territorial Court for a new sentencing hearing before a

different judge.



        1
          Marsham’s chief accomplice was sentenced to three years in jail, with another two
years of supervised release, and two other accomplices each received two-year prison
sentences. All three received credit for time served.
        2
           Marsham was also sentenced to pay restitution. The Appellate Division reversed
the restitution order. In a separate appeal from the Government, we reversed the decision
of the Appellate Division vacating the restitution order. Government of the Virgin Islands
v. Marsham, 293 F.3d 114, 120 (2002).

                                                      2
                 In reviewing the decision of the Territorial Court, we apply the same standard

of review as that used by the Appellate Division. Government of the Virgin Islands v.

Albert, 241 F.3d 344, 347 n.7 (3d Cir. 2000); Semper v. Santos, 845 F.2d 1233, 1235-

36.(3d Cir. 1988). Accordingly, we exercise plenary review over Marsham’s claims that

the Territorial Court violated his rights to due process and against cruel and unusual

punishment. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 766 (3d Cir. 1994);

United States v. Barnhart, 980 F.2d 219,

222 (3d Cir. 1992).

                 Rule 11 of the Federal Rules of Criminal Procedure vests the judges of the

Territorial Court with discretion to accept or reject a plea of guilty offered at trial. 3 United

States v. Hecht, 638 F.2d 651, 656 (3d Cir. 1981). Accordingly, a judge may reject the

results of a plea negotiation if the judge concludes that the resulting agreement “is not in

the best interests of justice.” Government of the Virgin Islands v. Walker, 261 F.3d 370,

375 (3d Cir. 2001). However, a judge “must not use the sentencing power as a carrot and

stick to clear congested calenders, and must not create an appearance of such practice.” Id.

at 376 quoting United States v. Walker, 124 F. Supp.2d 933, 938 (D.V.I. App. Div. 2000).

“[I]mpartiality and the appearance of impartiality are the sine qua non of the American

legal system.” Alexander v. Primerica Holdings, 10 F.3d 155, 167 (3d Cir. 1993). On the


        3
          Under Rule 7 of the Territorial Court Rules, the Federal Rules of Criminal
Procedure govern, because there is no Territorial Court Rule that addresses a judge’s
discretion to reject a plea offered after a trial has begun.


                                                       3
other hand, judicial partiality or bias cannot be inferred solely from a judge’s “expressions

of impatience, dissatisfaction, annoyance, and even anger.” Liteky v. United States, 510

U.S. 540, 555-56 (1994).

                Marsham argues that the trial judge rejected his offer to plead guilty in order

to punish him for wasting the Government’s and the Court’s time. The judge was, of

course, free to reject a plea agreement that he believed to be “not in the best interests of

justice.” Walker, 261 F.3d at 375. Indeed, the judge indicated his belief, based on

information that he had heard at trial, that the five-year sentence provided in the pretrial

agreement would not be appropriate in view of the seriousness of Marsham’s crimes.4

Furthermore, at the sentencing hearing, the judge made no reference to Marsham's failure

to accept a pretrial plea agreement; instead, he carefully listed the factors that he had

considered in his determination of the appropriate sentence.5

                Notwithstanding the trial judge’s thoughtful justification of Marsham’s 27

year sentence and his earlier comments that showed his belief that five years was an

insufficient sentence in light of the seriousness of Marsham’s crimes, other comments

made by the judge, immediately upon hearing Marsham’s offer to plead, create the

        4
           Shortly after learning of Marsham's decision to plead guilty, the judge stated that
"[t]here's no five years in this, not even ten years in this." App. 5. The following day, the
judge commented that, "[a]t this point in time, from the evidence I've heard, if he's willing to
plea to three 10-year felonies, then I'll take the plea." App. 16-17.
        5
          The judge noted that Marsham was the mastermind and driving force behind the
burglaries, that the burglaries were all premeditated, that Marsham had previously appeared
before the Court, and his belief that Marsham would continue to commit crimes if he were
not imprisoned. App. 70-73.

                                                      4
appearance of impartiality. On learning of Marsham’s offer, the judge stated:

    If he is going to wait until now, after two days of trial; after we have gone through the
    preparation of the case–and I could see that the Government did a tremendous amount
    of work . . . . I will not accept a plea now at this stage that's only going to talk about ten
    years, because the defendant knew from day one . . . that the others were going to plea.
    App. 4-6.

The judge further opined that “[m]aybe now when the Government makes the offers people

will take the Government seriously about that.” App. 7. The following day, the judge

rejected a modified plea agreement, stating: ”[Y]ou know, he was offered a decent plea last

November like all the others and he held out.” App. 15.

               The judge can hardly be faulted for expressing his irritation at Marsham’s

opportunistic attempt to resuscitate the pretrial plea agreement. However, the judge’s

comments, that Marsham rejected a “decent” plea agreement, that the Government had done

a “tremendous amount of work,” and that “[m]aybe now . . . people will take the Government

seriously,” when coupled with the 27 year sentence, create the appearance that he punished

Marsham for exercising his constitutional right to go to trial. Because “public confidence

in the judicial system mandates, at a minimum, the appearance of neutrality and impartiality

in the administration of justice,” Alexander, 10 F.3d at 157, we are compelled to vacate

Marsham’s sentence and remand for a new sentencing hearing before a different judge.6

We emphasize that we do this in order to remove the appearance of partiality, not because

we believe that the trial judge, in fact, punished Marsham for going to trial. Accordingly,


        6
         We do this under our inherent powers. Walker, 261 F.3d at 376; Primerica
Holdings, 10 F.3d at 167; Haines, 975 F.2d at 97-98.

                                                     5
we leave it to the discretion of the Territorial Court to assign a sentence that is consistent

with the terms of Marsham’s plea agreement.

                Marsham further argues that his 27 year sentence for three counts of grand

larceny constitutes cruel and unusual punishment, in violation of the Eighth Amendment.

We disagree. Even under the liberal “proportionality” standard set forth in Solem v. Helm,

463 U.S. 277, 290 (1983), Marsham’s sentence is not unconstitutional. 7

                For the foregoing reasons, we will vacate the order of the District Court dated

June 13, 2001, and remand to the Territorial Court for resentencing before a different

judge.




         7
         Solem directs that we consider objective factors such as "the gravity of the offense
and the harshness of the penalty." Id. at 292. Marsham's offenses were serious: he
organized and led a series of commercial burglaries, recruited others, damaged property,
and took large sums of cash. See also Lockyer v. Andrade, No. 01-1127, slip op. at 8 (U.S. Mar.
5, 2003).


                                                      6
7
