                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-16-2001

Virgin Islands v. Walker
Precedential or Non-Precedential:

Docket 00-1943




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Recommended Citation
"Virgin Islands v. Walker" (2001). 2001 Decisions. Paper 182.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/182


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Filed August 16, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1943

GOVERNMENT OF THE VIRGIN ISLANDS,
       Appellant

v.

CHARLES WALKER

Appellate Division of the District Court
for the Virgin Islands
Criminal Action No. 98-cr-00196-1
District Judge: Honorable Thomas K. Moore

Submitted Pursuant to Third Circuit LAR 34.1(a)
May 18, 2001

Before: McKEE, RENDELL & BARRY, Circuit Judges

(Filed: August 16, 2001)

       Maureen P. Cormier, Esq.
       Office of Attorney General of
        Virgin Islands
       Department of Justice
       48B-50C Kronprindsens Gade,
       GERS Building
       Charlotte Amalie, St. Thomas
       USVI, 00802

        Attorney for Appellant
       Gary M. Alizzeo, Esq.
       Dudley, Topper & Feuerzeig
       P.O. Box 756,
        1A Fredericksberg Gade
       Charlotte Amalie, St. Thomas
       USVI, 00804

        Attorney for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

The Appellate Division of the Virgin Islands vacated
Charles Walker's sentence and reversed his convictions
after a jury found him guilty on all five counts of an
indictment charging him with credit card fraud and
possession of stolen property. The Government of the Virgin
Islands appeals. For the reasons set forth herein, we will
reverse in part and affirm in part.

I.

Briefly stated, the circumstances leading to Walker's
arrest and conviction are as follows:1

Walker arrived in the Virgin Islands from his home in
Atlanta, Georgia on November 5, 1996 with another man,
Earl Gunn. While in the Virgin Islands, the men purchased
approximately $16,889 worth of jewelry with fraudulent
credit cards. The day after the purchases, police
apprehended Walker and Gunn at the airport after a
customs official there discovered nine credit cards bearing
different names in Walker's carry-on-luggage during a
routine search. Walker and Gunn were thereafter charged
with credit card fraud and possession of stolen property.
_________________________________________________________________

1. Inasmuch as a detailed recitation of the facts can be found in the
opinion of the Appellate Division of the District Court of the Virgin
Islands, see Walker v. Government of the Virgin Islands, 124 F. Supp.2d
933 (D.V.I., 2000), we need only reiterate those facts to the extent they
may be helpful to our brief discussion.

                                2
Gunn subsequently pleaded guilty to one count of credit
card fraud. Walker proceeded to trial where he testified in
his own defense. He admitted committing the acts that gave
rise to the charges against him. However, he claimed that
he acted under duress. According to his testimony, a group
of unknown men had threatened to harm his daughter if he
did not fly to the Virgin Islands, pick up a Rolex watch and
bracelet, fly back to Atlanta, and deliver the goods.
Although the jurors may have been amused by Walker's
testimony, they were not persuaded by it. The jury was
apparently more impressed by the proof of Walker's guilt
than by his credibility. He was convicted on all counts.

He thereafter appealed to the Appellate Division of the
Virgin Islands which reversed the convictions and sentence.
The Government of the Virgin Islands now appeals that
reversal to us. We have jurisdiction under 18 U.S.C.S 3731,
and 48 U.S.C. S 1613. See Government of Virgin Islands v.
Charleswell, 24 F.3d 571, 574-75 (3d Cir. 1994). We review
the sentence that was imposed for abuse of discretion
inasmuch as it did not exceed the statutory limits of the
applicable statute. United States v. Pollen, 978 F.2d 78 (3d
Cir. 1993). We exercise plenary review over the district
court's determination of questions of law. United States v.
Bennett, 100 F.3d 1105, 1108 (3d Cir. 1996).

II.

Walker was convicted of two counts of violating 14 V.I.C.
S 2101(a), possession of stolen property (Counts III and V),
and three counts of violating 14 V.I.C. S 3004, credit card
fraud (Counts I, II, and IV). The Appellate Division found 14
V.I.C. SS 3004 and 3010, the respective Credit Card Crimes
Act ("CCCA") charging and penalty provisions, to be
inconsistent with 14 V.I.C. S 2101. The Appellate Division
reasoned that the "[t]wo provisions are `inconsistent' if they
are `mutually repugnant or contradictory,' that is, if the
`establishment of one implies the abrogation of the other.' "
Walker, 124 F. Supp.2d at 941 (citing BLACK'S LAW DICTIONARY
766 (6th ed. 1991)). The court found an inconsistency with
respect to the specific manner in which each statute
determines the value of the property received. The court
noted that while "the CCCA aggregates the total value of

                               3
property and services received within a six-month period
into a single offense" and is accompanied by a more lenient
maximum penalty, section 2101 "defines each instance of
buying, receiving, or possessing stolen property during that
same six-month period as a separate offense" punishable
by a significantly harsher maximum penalty. In
determining that the CCCA imposed a limit on the number
of convictions that can be obtained under the statute, the
Appellate Division dismissed our language in Gov't of Virgin
Islands v. Graves, 593 F.2d 223 (3d Cir. 1979), to the
contrary, as "pure dictum." In Graves, we stated that
"Nothing in our construction of section 3004 precludes the
government from prosecuting each separate violation of
section 3004 and obtaining multiple convictions based on
proof of each separate use." Graves, 593 F.2d at 223, n. 11.

The Appellate Division thus concluded that Walker's
credit card offense could be charged only as an offense
under the CCCA. However, the Appellate Division then
determined that "the Government [had] confessed error in
that, inter alia, it failed to charge and prove an essential
element of [14 V.I.C. S 3004] to wit: Walker's intent to
defraud." Walker, 124 F. Supp.2d at 942. The court
therefore vacated his convictions on counts I, II, and IV, the
counts that charged a violation of section 3004.

III.

The Government argues that the Appellate Division erred
in two respects: (1) it incorrectly ruled that Walker could be
charged and convicted under only the CCCA; and (2) it
ruled that there is a limit on the number of convictions that
can be obtained under the CCCA. We agree with the
government on both points.

The Appellate Division concluded that the CCCA is the
exclusive statute governing credit card offenses, so that
Walker was improperly charged under the more general
statute that criminalizes the possession of stolen property
as well. However, this view of the scope of the CCCA is
directly contrary to the clear language of the CCCA. Section
3014 of the CCCA reads:

                               4
       This chapter (sections 3001-16) shall not be construed
       to preclude the applicability of any other provision of
       the criminal law of the Virgin islands which presently
       applies or may in the future apply to any transaction
       which violates this chapter, unless such provision is
       inconsistent with the terms of this chapter.

14 V.I.C. S 3014. In the face of this language, we cannot
conclude that the Legislature intended to make the CCCA
exclusive.

The only issue, then, is whether the stolen property
statute is "inconsistent with the terms" of the CCCA. The
Appellate Division found the statutes to be inconsistent
based upon the charging and penalty provisions of the two
statutes. It viewed section 3004 as limiting a court to
imposing a single penalty for the sum of all acts described
thereunder occurring within a six-month period. Section
2101, on the other hand, allows separate penalties for each
act of buying, receiving, or possessing stolen property.
Accordingly, it reasoned, the penalty provisions of the two
statutes are inconsistent. However, we do not believe that
because the provisions of the two statutes are different,
they are necessarily inconsistent. Rather, inconsistency
means that they cannot coexist or be reconciled. Here,
there is nothing inconsistent between the two crimes, and
neither one allows conduct that is barred by the other or
bars conduct that is allowed by the other. We cannot
conclude that the provisions of the two statutes are
"inconsistent" merely because they treat instances of crime
and punishment in different ways, with different policies
underlying each criminal provision.

The Appellate Division's reasoning regarding
inconsistency depends in some measure on its reading of
our opinion in Graves. The Appellate Division "held" that
section 3004's six-month limitation was a charging
provision that defines the crime. Because section 3004
limits the charging in this fashion, while section 2101
allows separate penalties for each act of buying, receiving
or possessing stolen property, the Appellate Division
concluded that the statutes were inconsistent. However, we
note that in Graves, we reasoned to the contrary and --
notwithstanding the Appellate Division's view -- concluded

                               5
that the Government could prosecute each separate
violation of section 3004 and obtain multiple convictions
based on proof of each separate use. Thus, Graves
seriously undermines the Appellate Division's reasoning as
to how section 3004 should be interpreted and, accordingly,
lends little support for the "inconsistency" that it found.

Therefore, we reject the analysis of the Appellate Division
with respect to the exclusivity of the CCCA and the way the
provisions are to be interpreted, and we hold that section
3004 of the CCCA is not inconsistent with section 2101(a).

Accordingly, because we conclude that Walker could be
charged with violations of both statutes, we will reverse the
District Court's "voiding" of Walker's convictions on Counts
III and V, charging possession of stolen property. However
we will not reinstate his convictions for violating section
3004, because in its reply brief the Government stated:

       The Government has confessed that, applying the
       Blockburger test to the specific facts of this case as
       charged, the defendant could not be sentenced for the
       three counts of fraudulent use of a credit card in
       addition to the two counts of possession of stolen
       property. Therefore, the Government has agreed that
       on remand, it will move to vacate and dismiss the three
       credit card counts, pursuant to the procedure set forth
       in Ball v. United States, 470 U.S. 856 (1985) (citation
       omitted).

Reply Br. at 4. Given this concession, we will not reinstate
the convictions for violating section 3004 set forth in the
remaining counts.

IV.

The Government also argues that the Appellate Division
erred in vacating Walker's sentence. The Appellate Division
vacated the sentence because it concluded that the trial
judge punished Walker for exercising his constitutional
right to proceed to trial and thereby denied him his Fifth
Amendment right to due process of law. Walker, a first-
time, nonviolent offender, received the maximum 23 years
in prison after he was convicted of these offenses.

                               6
The record of the pretrial conference reveals that the trial
judge inappropriately injected himself into the plea
negotiations to the extent of reformulating the offer that the
Government made to Walker and his co-defendant, Gunn.
Even though the Government had offered both defendants
a "deal," the trial judge announced:

       If one plea and he wants some consideration to testify
       and go for broke against the other, I will. Whoever
       wants to plea and take the two years, credit for time
       served and suspended sentence provided he testify
       against the other person, yeah, I would go with that. I
       would go with that. Whoever wants to plea and testify
       against the other one, I would go with that.

App. at 90. The following exchange occurred when defense
counsel tried to remind the court that the Government's
offer extended to both defendants:

       Defense: But the plea was offered to both, Your
       Honor.

       The Court: But I'm not going to accept the plea for
       both. I'll accept the plea for one and on
       the condition that the other one testify
       against the other. If not, then the two of
       them go for broke and call it that. I have
       no problems with that.

       Defense: But in actuality, you're only saying one
       person can accept the deal that the
       Government offers?

       The Court: Because whoever comes in first gets the
       deal.

       Gov't: But there's nothing barring the
       Government from making a second offer,
       maybe not as sweet but --

       The Court: Well, I know it can't be too sweet the
       second time around.

       Gov't: I understand that, but the Government--
       if the Government would make that offer.

                               7
       The Court: Whoever comes in first that's it. If they
       don't come in then we go to trial, go for
       broke.

Id. at 94-96. This intrusion into the plea negotiations would
be sufficient by itself to raise serious issues about the
propriety of the trial court's actions and the impact of the
court's "activism" on Walker's Fifth Amendment rights.
However, the trial court did not stop there. Gunn accepted
the Government's offer, and Walker was present during his
change of plea proceeding. During that proceeding the trial
court appeared to become irritated when defense counsel
argued for a lower fine for Gunn.

       The Court: I might want to scuttlebutt the deal. I
       might want to reject the plea offer and go
       for broke with the big 12.

       Counsel: No, no, sir. I would concede 1,500
       [dollars] is in order.

       The Court: The big 12 would be ready October 31st if
       Mr. Gunn wants to take a chance with
       the big 12. Ask him if he wants to take a
       chance with the big 12 and go for broke
       for everything.

       Counsel: We already discussed that. He said, no.

       The Court: He's facing 30 something years. If he's
       going for broke, that's fine with me.

Id. at 129. The court finally accepted Gunn's plea of guilty
to violating 14 V.I.C. S 3004, and sentenced him to time
served and a $1500 fine. The judge then told Gunn, in
Walker's presence, that Gunn was "very lucky," and that
his attorney could tell him that "had you gone to trial on
this, no way you were going to get this kind of sentence."
Id. at 142. After Walker exercised his right to a jury trial
and was convicted, the court reminded him that he had
been offered a "sweety deedie plea," but failed to accept it.
App. at 507.

After a careful examination of the record, we conclude
that the Appellate Division correctly determined that the
sentencing court sentenced Walker to the maximum of two

                               8
consecutive ten-year terms, followed by three concurrent
three-year terms and a fine of $13,000, primarily because
Walker exercised his constitutional right to a jury trial. As
the Appellate Division stated: "[t]he harsh sentence imposed
on Walker violated his due process right to a fair
sentencing procedure, because the sentence constituted
punishment for his assertion of his right to a trial." Walker,
124 F. Supp.2d at 943.

A sentencing court can, of course, reject the results of a
plea negotiation if it concludes that the resulting agreement
is not in the best interest of justice. Here, however, the trial
court's actions exceeded all conceivable limitations of
propriety. As the Appellate Division correctly observed, the
trial court's involvement merged into the "prosecutorial
function properly left to the executive branch." Walker, 124
F. Supp.2d at 938. "Even the appearance of siding with the
government to dissuade a defendant from asserting his
constitutional right to a trial is prohibited." Id., citing United
States v. Stockwell, 472 F.2d 1186, 1187-88 (9th Cir. 1973)
("[C]ourts must not use the sentencing power as a carrot
and stick to clear congested calendars, and they must not
create an appearance of such a practice."). In Longval v.
Meachum, 651 F.2d 818 (1st Cir. 1981), the Court of
Appeals for the First Circuit stated: "[a] judge who
participates in plea bargaining `is no longer a judicial officer
or a neutral arbiter. Rather, he becomes or seems to
become an advocate for the resolution he has suggested to
the defendant.' " Id. at 821. After reviewing this record, the
Appellate Division concluded that:

       [t]he extreme disparity of sentences imposed on Walker
       and Gunn, the harshness of Walker's sentence for a
       first-time, nonviolent offense, the judge's implicit
       threats and coercive involvement in plea negotiations,
       . . . all raise the inference that [the trial judge] gave
       undue consideration to Walker's refusal to plead guilty,
       and that his insistence on a jury trial impermissibly
       influenced [the trial judge's] imposition of the
       maximum sentence of twenty-three years. Such abuse
       of discretion, regardless of what other, legitimate
       factors the judge may have considered in sentencing
       Walker, was constitutional error.

                               9
Walker 124 F. Supp.2d at 938. We agree. Accordingly, the
defendant is entitled to resentencing for the convictions
that we reinstate.

V.

Walker asks that we assign this matter to a different
judge upon remand. Although "[i]t is the standard practice
in the district courts and in this circuit that a case on
remand is assigned to the judge who originally heard it," we
can, in the exercise of our supervisory power, reassign this
case to a different judge upon remand. United States v.
Baylin, 696 F.2d 1030, 1043 n.30 (3d Cir. 1982). Although
we have not formulated a specific test for determining when
reassignment to a different judge is in order, in Alexander
v. Primerica Holdings, 10 F.3d 155 (3d Cir. 1993), we
stated:

       impartiality and the appearance of impartiality in a
       judicial officer are the sine quo non of the American
       legal system. Because justice must satisfy the
       appearance of justice, it is our responsibility to exercise
       our supervisory authority, as reluctant as we always
       are to do so when it requires the reassignment of a
       case . . . . We must preserve not only the reality but
       also the appearance of the proper functioning of the
       judiciary as a neutral, impartial administrator of
       justice.

Id. at 167 (internal citations, quotations omitted). Inasmuch
as the aforementioned conduct and comments of the trial
judge here make it exceedingly difficult to resurrect an
appearance of impartiality without remand to a different
sentencing judge, we conclude that Walker's request for
reassignment must be granted.

VI.

In his brief to the Appellate Division, Walker raised, inter
alia, additional arguments including his assertion that the
trial court erred by placing the burden of proving duress on
him rather than on the Government. The Government did
not respond to these issues and the Appellate Division did

                               10
not reach them, as it based its reversal of the Territorial
Court on the Government's confession of error as to Counts
I, II, and IV. Inasmuch as the Appellate Division has not
ruled on these additional grounds for relief, we will not now
address them in the first instance. See Charleswell, 24 F.3d
at 573 ("The arguments that [defendant] raises in his cross-
appeal were . . . not addressed by [the Appellate Division],
and we decline to address these arguments in the first
instance. Instead, we will remand so that they can be
decided initially by the Appellate Division."). Accordingly,
we will remand to that court so that it may consider
Walker's remaining arguments.

VII.

For the reasons set forth above, the June 5, 2000
decision of the Appellate Division is reversed insofar as it
vacated Walker's convictions for violating 14 V.I.C.S 2101,
possession of stolen property. In all other respects, that
order of the Appellate Division will be affirmed. As
explained above, we will remand this case to the Appellate
Division for further proceedings. If the Appellate Division
should rule against the defendant, that court shall remand
Walker's case to the Territorial Court with instructions that
the case be assigned to a different judge for resentencing.

A True Copy:
Teste:

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

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