                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-1994

Gov't of the Virgin Islands v. Charleswell
Precedential or Non-Precedential:

Docket 93-7372




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           UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ____________

              Nos. 93-7372 and 93-7391
                    ____________

          GOVERNMENT OF THE VIRGIN ISLANDS,
               Appellant in No. 93-7372

                         v.

                 JUNIEL CHARLESWELL,
              Appellant in No. 93-7391
                ____________________

     ON APPEAL FROM THE APPELLATE DIVISION OF
     THE DISTRICT COURT OF THE VIRGIN ISLANDS
        Division of St. Thomas and St. John

            (D.C. Criminal No. 91-00056)
                ____________________

               Argued: April 21, 1994
Before:   STAPLETON, ALITO, and WEIS, Circuit Judges

           (Opinion Filed: May 20, l994 )
                 ____________________

                   ROSALIE SIMMONDS BALLENTINE
                   Attorney General

                   PAUL L. GIMENEZ
                   Solicitor General

                   FREDERICK HANDLEMAN (Argued)
                   Assistant Attorney General

                   DARLENE C. GRANT
                   Office of the Attorney General
                   8050 Kronprindsens Gade, Ste. 1
                   St. Thomas, U.S.V.I. 00803

Attorneys for the Government of the Virgin Islands


                   RHYS S. HODGE, ESQ. (Argued)
                   19 Norre Gade
                   P. O. Box 6520
                   St. Thomas, U.S.V.I. 00804


                         1
               Attorney for Juniel Charleswell




                        OPINION OF THE COURT
                        ____________________

ALITO, Circuit Judge:


          Juniel Charleswell was convicted on various criminal

charges in the Territorial Court of the Virgin Islands, but the

Appellate Division of the District Court of the Virgin Islands

reversed and held that he was entitled to a new trial.   The

Appellate Division concluded that the Territorial Court committed

plain error because it gave a curative instruction, instead of

declaring a mistrial sua sponte, when the prosecutor made

improper remarks during rebuttal summation.    The Government of

the Virgin Islands has appealed this decision, and Charleswell

has cross-appealed.   We hold that the Territorial Court did not

commit plain error in failing to grant a mistrial sua sponte

based on the prosecutor's comments.   We do not reach the

arguments raised in Charleswell's cross-appeal because those

arguments, although raised before the Appellate Division, were

not addressed by that court.   We therefore reverse the decision

of the Appellate Division and remand to that court so that it can

consider Charleswell's remaining arguments.



                                 I.

          In 1990, Charleswell was charged by information with

(count I) assault on a peace officer with a deadly weapon, in


                                 2
violation of 14 V.I.C. § 297(5); (count II) possession of a

deadly weapon with intent to use it during the commission of a

crime of violence, in violation of 14 V.I.C. § 2251(a)(2)(B);

(count III) drawing and exhibiting a deadly weapon, in violation

of 14 V.I.C. § 621(1); and (count IV) destruction of personal

property, in violation of 14 V.I.C. § 1266.

          Charleswell was tried on these charges before a jury in

the Territorial Court.    The evidence showed the following.     At

about 2:00 or 3:00 a.m. on the morning of September 24, 1990,

Charleswell, an off-duty police officer, called the police

dispatcher in St. Thomas and stated, using code, that the police

station at Four Winds Plaza was under attack.       Charleswell then

drove to that station armed with his service revolver.       According

to Officer Milton Petersen, who was on duty at the time,

Charleswell pointed the revolver at Petersen's chest.       Petersen

stated that he pushed Charleswell's hand away just before

Charleswell pulled the trigger.       As a result, the bullet was

fired into the ceiling.    Charleswell told Petersen that he did

not want to hurt him, and Petersen left the station.       Charleswell

then went upstairs and obtained a shotgun.       After telephoning

Central Command and demanding that the dispatcher send more

officers to the Four Winds Plaza station, Charleswell fired

several shotgun blasts into the wall.       He then walked downstairs

and outside, where he fired the shotgun once into the ground.

After speaking with the officers assembled outside, he entered

his vehicle and drove to Central Command.




                                  3
            When Charleswell arrived, Central Command had been

evacuated.    Charleswell entered the building and fired rounds

into the walls.    At about 6:00 a.m., after speaking with several

officers, he surrendered.

            At trial, the "primary thrust" of Charleswell's defense

was that, because of diminished capacity, he lacked the specific

intent necessary to commit the offenses charged in counts I and

II.    App. Div. Op. at 4.    Charleswell took the stand and

testified that he had been mistreated on the job because he had

arrested the son of the chief of police.      This mistreatment, he

said, had caused great stress and had induced him to "do a lot of

drinking," to attempt suicide, and to obtain psychiatric

counseling.    App. 246-47.   He testified that the stress had built

up on him for two days and had then "somewhat exploded."       Id. at

249.    He also testified that he had consumed "a couple of beers"

before driving to the Four Winds Plaza station.      Id. at 251.

             During rebuttal summation, the prosecutor made the

following comments:
          We know he's [Charleswell] not crazy
          otherwise he would have pleaded insanity. So,
          what is this? It's just -- he's asking
          "excuse me for what I did." Now, if the
          defendant does need help to cope with stress,
          then acquitting him, finding him not guilty
          of all of those charges is not going to get
          him that help. It's just not.


App. at 386.

             Defense counsel did not object when the prosecutor made

these comments but instead waited until the court had instructed

the jury.     The court and both attorneys then engaged in a lengthy


                                   4
discussion concerning the need for and the phrasing of curative

instructions (see App. 436-44), and the court gave detailed

curative instructions.     With respect to the prosecutor's

reference to the defendant's failure to raise an insanity

defense, the court stated:     "I just want to remind you that the

defendant has no obligation to raise any particular defense or to

produce any evidence or even call any witnesses," and the court

therefore instructed the jury "to disregard that comment."     Id.

at 445.   With respect to the prosecutor's statement regarding the

defendant's alleged need for help to cope with stress, the court

stated:   "Now, that might lead to the wrong conclusion, that you

have to find him guilty to get him help.     Okay, and we didn't

want to leave you with that impression."    Id.   The court then

reminded the jurors that if they did not find that all of the

elements of the offenses had been established beyond a reasonable

doubt, they were required to find the defendant not guilty.     Id.

at 446.   After giving these instructions, the court stated:    "All

right, Attorney Hodge [Charleswell's counsel] and Miss Counts

[the prosecutor]?"   Id.   Charleswell's counsel responded:   "Yes."

Id.   At no time did Charleswell's attorney request that the court

grant a mistrial based on the prosecutor's remarks.

           The jury found Charleswell guilty on all four counts.

After sentencing, Charleswell appealed to the Appellate Division

of the District Court, contending that he was entitled to

judgment of acquittal on counts I and II and that the Territorial

Court had erred in refusing to grant a continuance, in excluding

certain expert testimony, and in failing to declare a mistrial

                                  5
based on the prosecutor's remarks in rebuttal summation.   Without

reaching Charleswell's other arguments, the Appellate Division

held that the prosecutor's comments had resulted in plain error.

The court explained:
          The prosecutor's remarks pertained to a
          central issue at trial, namely appellant's
          purported diminished capacity. It was
          entirely inappropriate to discuses
          appellant's choice of plea and to predict
          that an acquittal would serve to deny
          appellant's the psychiatric treatment he
          needs. We hold that these comments severely
          prejudiced appellant's right to a fair trial
          and that the curative instructions were
          insufficient to remedy this particularly
          egregious misconduct.


          The Government of the Virgin Islands subsequently filed

a notice of appeal to this court, and Charleswell then filed

notice of cross-appeal.



                               II.

          Before reaching the merits of the appeal or cross-

appeal, we must decide whether we have appellate jurisdiction.
          A.   Charleswell argues that we lack jurisdiction over

the Government of the Virgin Islands' appeal because the

Appellate Division's decision granting a new trial was not a

"final" decision under 28 U.S.C. § 1291.   Charleswell relies on

In the Matter of Alison, 837 F.2d 619 (3d Cir. 1988), in which we

held that a particular order of the Appellate Division remanding

a civil case for trial in the Territorial Court was not "final"

under 28 U.S.C. § 1291.




                                6
          In this case, however, our jurisdiction over the

Government of the Virgin Islands' appeal is not dependent on 28

U.S.C. § 1291.    Instead, we have jurisdiction over that appeal

under 18 U.S.C. § 3731, which provides in pertinent part:
               In a criminal case, an appeal by the
          United States shall lie to a court of appeals
          from a decision, judgment, or order of a
          district court . . . granting a new trial
          after verdict or judgment, as to any one or
          more counts . . . .


          While this provision refers to an appeal by "the United

States," we have held that it applies to appeals taken by the

Government of the Virgin Islands.     Government of the Virgin

Islands v. Christensen, 673 F.2d 713, 716 (3d Cir. 1982).

Moreover, in Government of the Virgin Islands v. Mills, 935 F.2d

591, 595-97 (3d Cir. 1991), we specifically held that this

provision authorizes the Government of the Virgin Islands to

appeal a district court order granting a new trial.     Although the

district court in Mills had sat in its capacity as a trial court,

rather than in its capacity as an appellate tribunal reviewing

decisions of the Territorial Court, the language of 18 U.S.C.

§3731 provides no basis for holding that our jurisdiction varies

depending on the capacity in which the district court sat.       Thus,

we conclude that we have jurisdiction over the Government of the

Virgin Islands' appeal pursuant to 18 U.S.C. § 3731.

          B.     We also hold that the Government of the Virgin

Islands' notice of appeal was timely.     The Federal Rules of

Appellate Procedure govern appeals to our court from the District

Court of the Virgin Islands.     Vasquez v. Fleming, 617 F.2d 334


                                  7
(3d Cir. 1980).1   Therefore, the time limits for the filing of a

notice of appeal in a criminal case are those set out in Fed. R.

App. P. 4(b).   At the time in question here,2 this provision

stated in relevant part:

1
In Vasquez we relied on language in 48 U.S.C. § 1615 (1982)
(amended 1984) stating that such appeals were subject to "[t]he
rules of practice and procedure" promulgated by the Supreme Court
pursuant to the Rules Enabling Act, 28 U.S.C. § 2072. We wrote
(617 F.2d at 335):

          The Federal Rules of Appellate Procedure were
          promulgated under section 2072 and thus by
          the text of section 1615 would appear to
          apply to appeals from the District Court of
          the Virgin Islands.

After the Vasquez decision, this language was deleted from 48
U.S.C. § 1615, and similar language was placed in 48 U.S.C.
§1614(b), which provides in pertinent part as follows:

          Where appropriate . . . the rules of practice
          heretofore or hereafter promulgated and made
          effective by the Congress or the Supreme
          Court of the United States pursuant to Titles
          11, 18, and 28 shall apply to the district
          court and appeals therefrom . . . .

Under this language, it remains clear, in our view, that the
Federal Rules of Appellate Procedure apply to appeals to our
court from the District Court of the Virgin Islands.
2
 By amendment effective on December 1, 1993, Rule 4(b) was
reworded to provide in pertinent part as follows:

          In a criminal case, a defendant shall file
          the notice of appeal in the district court
          within 10 days after the entry either of the
          judgment or order appealed from, or a notice
          of appeal by the Government. . . . When an
          appeal by the government is authorized by
          statute, the notice of appeal must be filed
          in the district court within 30 days after
          the entry of (i) the entry of the judgment or
          order appealed from or (ii) the filing of a
          notice of appeal by any defendant.



                                 8
            In a criminal case, the notice of appeal by a
            defendant shall be filed in the district
            court within 10 days after the entry of (i)
            the judgment or order appealed from, or (ii)
            a notice of appeal by the Government. . . .
            When an appeal by the government is
            authorized by statute, the notice of appeal
            shall be filed in the district court within
            30 days after the entry of (i) judgment or
            order appealed from or (ii) a notice of
            appeal by any defendant.


            We conclude for two reasons that the references to the

"government" in this rule applies to the Government of the Virgin

Islands.    First, we believe that circuit precedent weighs in

favor of this interpretation.    In Christensen, as previously

noted, we held that an appeal by the Government of the Virgin

Islands is an appeal by "the United States" under 18 U.S.C.

§3731.     An appeal under 18 U.S.C. § 3731 is, in the language of

Fed. R. App. P. 4(b), an instance in which "an appeal by the

government is authorized by statute."    Consequently, Christensen

suggests that the term "government" in Fed. R. App. P. 4(b)

should be interpreted to include the Government of the Virgin

Islands.    Second, if the term "government" in Fed. R. App. P.
4(b) is not interpreted to include the Government of the Virgin

Islands, then Rule 4(b) does not seem to provide any time period

for the filing of a notice of appeal by the Government of the

Virgin Islands.    Rule 4(b) sets out only two time periods:   10

days for the "defendant" and 30 days for the "government" -- and

the Government of the Virgin Islands is certainly not the


Even if this version of Rule 4(b) were applicable to this case,
the rewording would not affect our disposition of the issues
presented in this appeal.


                                  9
"defendant."     Accordingly, we hold that, in an appeal to our

court from the Appellate Division in a criminal case, the

Government of the Virgin Islands must file its notice of appeal

within 30 days after the entry of the order from which the appeal

is taken.

            The Government of the Virgin Islands complied with this

requirement here.     The order of the Appellate Division was

entered on April 21, 1993, and the Government of the Virgin

Islands filed its notice of appeal 28 days later, on May 19.

            C.   The remaining jurisdictional question that we must

consider concerns Charleswell's cross-appeal.     At the time in

question here, Fed. R. App. P. 4(b) stated that a defendant in a

criminal case was required to file notice of appeal "within 10

days after the entry of (i) the judgment or order appealed from,

or (ii) a notice of appeal by the Government"     (emphasis added).3

In this case, since the "Government" filed a notice of appeal,

Charleswell was required to file his notice of appeal "within ten

days after the entry" of the Government's notice of appeal -- in

other words, within ten days after the filing of the Government

of the Virgin Islands' notice of appeal was entered on the

district court docket.     See United States v. Cantero, 995 F.2d
1407, 1408 n.1 (7th Cir. 1993) (entry of order means entry on

docket); United States v. Cooper, 876 F.2d 1192, 1195 (5th Cir.

1989) (same); United States v. Zuleta-Molina, 840 F.2d 157, 158


3
As previously noted, Rule 4(b) has now been reworded, but this
change would not alter our decision. See page 9, footnote 2,
supra.


                                  10
n.1 (1st Cir. 1988) (same).    Charleswell complied with this

requirement.    The Government of the Virgin Islands' notice of

appeal was entered on the district court docket on May 26, 1993,

and Charleswell filed his notice of appeal seven days later, on

June 2, 1993.   Accordingly, Charleswell's notice of appeal was

timely.



                                III.

           We now turn to the merits of the Government of the

Virgin Islands' appeal.   We agree with the Territorial Court and

the Appellate Division that the challenged remarks made by the

prosecutor during rebuttal summation were improper.    Neither

Charleswell's decision not to raise an insanity defense nor his

likelihood of obtaining help for stress if acquitted had any

bearing on the issues before the jury.   However, the Territorial

Court's failure to grant a mistrial sua sponte was not "plain

error" under Fed. R. Crim. P. 52(b).

           Even if Charleswell's attorney had moved for a

mistrial, we could not reverse Charleswell's convictions based on

the prosecutor's remarks, unless those remarks, "taken in the

context of the trial as a whole, were sufficiently prejudicial to

have deprived [him] of his right to a fair trial."    United States
v. DiPasquale, 740 F.2d 1282, 1297 (3d Cir. 1984), cert. denied,

469 U.S. 1228 (1985); see also, e.g., United States v. Gambino,

926 F.2d 1355, 1365 (3d Cir.), cert. denied, 112 S. Ct. 415

(1991).   Among the factors that must be considered in assessing

prejudice are the nature of the comments in question and the

                                 11
effect of curative instructions.      See, e.g., United States v.

Homer, 545 F.2d 864, 867-68 (3d Cir. 1976), cert. denied, 431

U.S. 954 (1977).    Here, the challenged comments, while

inappropriate, do not appear to us highly prejudicial.     In

addition, these remarks were apparently "not so shocking as to

suggest to the defense that it seek curative instructions

immediately.    Moreover, in response to the defendant's subsequent

complaint, the trial judge admonished the jury" to disregard

these comments.    Homer, 545 F.2d at 868.

            In any event, even if the defense would have been

entitled to a mistrial upon request, the trial court's failure to

grant a mistrial on its own initiative was not plain error.     The

"plain error" doctrine "is to be used sparingly, solely in those

circumstances in which a miscarriage of justice would otherwise

result."    United States v. Frady, 456 U.S. 152, 163 & n.14

(1982).    Its proper role is "to correct particularly egregious

errors" and to "redress . . . miscarriages of justice."     Id. at

163.   It is intended to correct errors that are "obvious" or that

"otherwise seriously affect the fairness, integrity or public

reputation of judicial proceedings."      United States v. Atkinson,
297 U.S. 157, 160 (1936).    "By its terms, recourse may be had to

[Rule 52(b)] only on appeal from a trial infected with error so

`plain' the trial judge [was] derelict in countenancing it, even

absent the defendant's timely assistance in detecting it." Frady,

456 U.S. at 163; see also United States v. Young, 470 U.S. 1, 15

(1985); Government of Virgin Islands v. Knight, 989 F.2d 619,
630-31 (3d Cir.), cert. denied 114 S. Ct. 556 (1993); Government


                                 12
of Virgin Islands v. Smith, 949 F.2d 677, 681 (3d Cir. 1991);

United States v. Wright, 921 F.2d 42, 46 (3d Cir. 1990), cert.

denied 111 S. Ct. 2803; United States v. Sandini, 888 F.2d 300,

309 (3d Cir. 1989), cert. denied, 494 U.S. 1089.

          In this case, the trial judge was not "derelict" in

failing to grant a mistrial.   As we have said, it is far from

clear that the prosecutor's remarks were so prejudicial that they

could not be remedied by curative instructions.    Furthermore,

since the defense requested curative instructions rather than a

mistrial, the trial judge was entitled to assume that the defense

did not want a mistrial.   Under such circumstances, the test for

granting a mistrial is "manifest necessity."   See, e.g., Oregon

v. Kennedy, 456 U.S. 667, 672 (1982); Arizona v. Washington, 434

U.S. 497, 509 (1978).   There was no "manifest necessity" here.

Consequently, we hold that the Territorial Court did not commit

plain error in failing to declare a mistrial sua sponte.



                               IV.

          We turn finally to Charleswell's cross-appeal.    The

arguments that Charleswell raises in his cross-appeal4 were
4
If accepted, Charleswell's argument that he was entitled to
judgment of acquittal on counts I and II would result in
alteration of the district court's judgment. It is therefore a
proper subject for cross-appeal. Charleswell's remaining
arguments, if accepted, would merely provide alternative grounds
for affirming the district court's order granting a new trial,
and consequently Charleswell could have raised them without
cross-appealing. See 15A Charles A. Wright et al., Federal
Practice and Procedure § 3904 (1992 & Supp. 1994). (citing
cases). In any event, since the district court did not reach any
of these arguments, we find it appropriate to remand so that that
court can consider them in the first instance.


                                13
raised before the Appellate Division, but they were not addressed

by that court, 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.

          For these reasons, the order of the Appellate Division

of the District Court is reversed, and the case is remanded for

further proceedings consistent with this opinion.




                                14
