                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-26-2004

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Precedential or Non-Precedential: Precedential

Docket No. 02-1136




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Govt of VI v. Hodge" (2004). 2004 Decisions. Paper 938.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/938


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 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
             PRECEDENTIAL             _______________________

  IN THE UNITED STATES                       NO. 02-1222
    COURT OF APPEALS
  FOR THE THIRD CIRCUIT           GOVERNMENT OF THE VIRGIN
      _______________                    ISLANDS

       NO. 02-1136                                v.

GOVERNMENT OF THE VIRGIN               ELADIO CAMACHO,
       ISLANDS                                  Appellant
                                _________________________________
            v.
                                 On Appeal From The District Court Of
     SELVIN HODGE,               The Virgin Islands, Appellate Division
            Appellant           (D.C. Nos. 01-cr-00256-2, 01-cr-00256-
                                   1, 01-cr-00256-4, 01-cr-00256-3)
  ______________________         Hon. Raymond L. Finch, Chief Judge
                                 Hon. Thomas K. Moore, District Judge
       NO. 02-1137                    Hon. Darryl Dean Donohue,
                                            Territorial Judge
GOVERNMENT OF THE VIRGIN
       ISLANDS                  _________________________________

            v.                         Argued December 8, 2003

     OTTICE BRYAN,              Before: NYGAARD, BECKER, and
            Appellant           STAPLETON, Circuit Judges.

  ______________________               (Filed February 26, 2004)

       NO. 02-1221
                                HAROLD W.L. WILLOCKS
GOVERNMENT OF THE VIRGIN        DEBRA SMITH-WATLINGTON
       ISLANDS                  (Argued)
                                LESLIE L. PAYTON
            v.                  Territorial Public Defender
                                P.O. Box 6040
  KIRSTEN GREENAWAY,            St. Thomas, USVI 00804
            Appellant
                                Attorneys for Appellant Selvin Hodge

                            1
GEORGE H. HODGE, JR.                        BECKER, Circuit Judge
P.O. Box 803                                       This is an appeal by four
St. Thomas, USVI 00804                      codefendants, Selvin Hodge, Ottice Bryan,
                                            Kirsten Greenaway, and Eladio Camacho,
Attorney for Appellant Ottice Bryan         of an order of the District Court of the
                                            Virgin Islands, Appellate Division in an
BRUCE STREIBICH                             interlocutory appeal brought by the
Law Offices of Bruce W. Steibich            Government of the Virgin Islands from the
No. 21A Berge Gade                          Territorial Court of the Virgin Islands.
P.O. Box 302009-VDS                         Seeking reversal, pursuant to 4 V.I. Code
St. Thomas, USVI 00803-2009                 § 39(a)(1), the Government sought review
                                            of the Territorial Court’s pretrial order
Attorney for Appellant Kirsten              redacting the confessions that the
Greenaway                                   Government planned to use against the
                                            defendants. The Appellate Division held
STEPHEN A. BRUSCH (Argued)                  that the Territorial Court had erred in
The Brusch Law Firm                         redacting the confessions more stringently
28-29 Norre Gade, 2nd Floor                 than required by the Supreme Court’s
P.O. Box 988                                holdings in Bruton v. United States, 391
St. Thomas, USVI 00804                      U.S. 123 (1968), Richardson v. Marsh,
                                            481 U.S. 200 (1987), and Gray v.
Attorney for Appellant Eladio Camacho       Maryland, 523 U.S. 185 (1998).
                                            Accordingly, the Appellate Division
IVER A. STRIDIRON                           vacated the Territorial Court’s order and
ELLIOTT M. DAVIS                            remanded for that Court to reconsider the
DOUGLAS J. JUERGENS (Argued)                redactions in the first instance.
Department of Justice
                                                   Having lost before the Appellate
48B-50C Kronprindsens Gade
                                            Division, the defendants seek review in
GERS Building, 2nd Floor
                                            this Court, arguing that the Appellate
St. Thomast, USVI 00802
                                            Division either (1) lacked jurisdiction over
                                            the Government’s interlocutory appeal
Attorneys for Appellee, Government of
                                            (and hence that the Territorial Court’s
the Virgin Islands
                                            order should stand for now), or (2) erred
                                            on the merits in vacating the Territorial
      ______________________
                                            Court’s order. This being an interlocutory
                                            appeal from an order entered in an
             OPINION
                                            interlocutory appeal, the threshold issue is
      ______________________
                                            our own appellate jurisdiction.          We
                                            conclude that we have appellate
                                            jurisdiction over the Appellate Division’s


                                        2
determination of its own jurisdiction under         District Court come to this Court under the
the collateral order doctrine. We also              familiar provisions of 28 U.S.C. §§ 1291-
conclude that we lack appellate                     1292 and other special-purpose statutes.
jurisdiction to review the merits of the            Until the Virgin Islands establishes a local
Appellate Division’s ruling. Most notably,          intermediate appellate tribunal, appeals
we decide that a certification by the               from the Territorial Court go to a three-
Government that the Territorial Court’s             judge panel known as the District Court of
grant of a pretrial suppression motion              the Virgin Islands, Appellate Division (the
deprives the Government of “substantial             “Appellate Division”). 1 See 48 U.S.C. §
proof of the charge pending against the             1613a(a). Though established by federal
defendant” satisfies the requirements of 4          law, the Appellate Division exercises
V.I. Code § 39(a)(1), without a separate            “such appellate jurisdiction over the courts
substantiality determination by the court.          of the Virgin Islands established by local
Accordingly, in this case we hold that the          law [i.e., the Territorial Court] to the
Appellate Division had jurisdiction under           extent now or hereafter prescribed by local
4 V.I. Code § 39(a)(1) to hear the                  law.” Id. In other words, the Virgin
Gov ernmen t’s interlocutory appeal,                Islands Legislature decides (subject to
dismiss the appeals in all other respects,          some reservations in 48 U.S.C. § 1613a(a))
and remand to the Territorial Court for             who can appeal to the Appellate Division,
further proceedings in accordance with the          and when they can appeal. At issue in this
Appellate Division’s opinion.                       case is a provision regarding interlocutory
                                                    appeals by the Government of certain
                                                    pretrial orders in criminal cases, 4 V.I.
I. Procedural History                               Code § 39(a)(1). Appeals from decisions
                                                    of the Appellate Division may be taken to
       A.     The Virgin Islands Court
                                                    this Court under 48 U.S.C. § 1613a(c).
              System
                                                           B. The Proceedings in the
        We have recently described the
                                                           Territorial Court and Before
structure of the court system in the Virgin
                                                           the Appellate Division
Islands in some detail, see Gov’t of V.I. v.
Rivera, 333 F.3d 143, 145-46 (3d Cir.                     In November 1999, Duvalier
2003), cert. denied, 72 U.S.L.W. 3373               Basquin was lured to a lonely road in the
(U.S. Jan. 26, 2004) (No. 03-736), and              Bolongo Bay area of St. Thomas. There,
need not recount it here, though some               he was robbed and murdered. Following
details bear repeating. There are two trial
courts: The Territorial Court is comparable           1
to a state court of general jurisdiction, see          The three-judge panel is composed of
4 V.I. Code § 76, while the District Court          the two Judges of the District Court of
of the Virgin Islands has “the jurisdiction         the Virgin Islands, and a judge of the
of a District Court of the United States,”          Territorial Court designated by the Chief
48 U.S.C. § 1612(a). Appeals from the               Judge of the District Court. See 48
                                                    U.S.C. § 1613a(b).

                                                3
an investigation by the Virgin Islands            the Territorial Court, the Government
Police, the Government of the Virgin              offered proposed redactions of the
Islands (the “Government”) charged                statements, but after lengthy argument,
Selvin Hodge, Ottice Bryan, Kirsten               the Territorial Court concluded that the
Greenaway, and Eladio Camacho                     Government’s proposal did not satisfy
(collectively, the “defendants”) with             Bruton and its progeny. Ruling from the
robbery, felony murder, and conspiracy            bench, the Territorial Court described the
to commit murder. During the                      further redactions that would be required
investigation, Hodge and Camacho gave             to admit the confessions.3
statements inculpating themselves and
                                                         Title 4, section 39(a)(1) of the
the other defendants in Basquin’s
                                                  Virgin Islands Code provides:
murder. Greenaway gave a statement
exculpating herself, but potentially                     The United States or the
inculpating the other defendants. Bryan                  Government of the Virgin
gave no statement.                                       Islands may appeal an
                                                         order, entered before the
        The Government sought to use
                                                         trial of a person charged
these statements at trial. However, since
                                                         with a criminal offense
the Government proposed to try the
                                                         under the laws of the
defendants jointly, and none of the
                                                         Virgin Islands, which
defendants who offered statements would
                                                         directs the return of seized
testify, the statements would have to be
                                                         property, suppresses
redacted—or even rewritten—to preserve
                                                         evidence, or otherwise
the defendants’ Sixth Amendment
                                                         denies the prosecutor the
Confrontation Clause rights. See Bruton
                                                         use of evidence at trial, if
v. United States, 391 U.S. 123 (1968),
                                                         the United States Attorney
Richardson v. Marsh, 481 U.S. 200
                                                         or the Attorney General
(1987), and Gray v. Maryland, 523 U.S.
                                                         conducting the prosecution
185 (1998). 2 At a pretrial hearing before
                                                         for such violation certifies
                                                         to the Judge who granted
  2
    The issue in cases raising a Bruton
issue is that the prosecution would like to       them—in this situation, the nontestifying
introduce confessions by nontestifying            defendant who made the confession.
defendants in joint trials. While such
                                                    3
statements may of course be admitted                 In its opinion, the Appellate Division
against the defendants who made them,             summarized the Territorial Court’s order
admitting such statements in a joint trial        from the bench as requiring “that any
would deprive any codefendants                    sentences [in the confessions] containing
implicated in those statements of their           direct references to the defendants,
right under the Confrontation Clause to           nicknames, physical descriptions, and . . .
cross-examine witnesses against                   substituted pronouns be omitted.”

                                              4
       such motion that the appeal                Court, arguing that either the Appellate
       is not taken for purpose of                Division did not have jurisdiction under
       delay and the evidence is a                4 V.I. Code § 39(a)(1) to review the
       substantial proof of the                   Territorial Court’s order, or else that the
       charge pending against the                 Appellate Division erred on the merits in
       defendant.                                 holding that the Territorial Court went
                                                  further than required by Bruton and its
        The Government, relying on 4
                                                  progeny. Under the former disposition,
V.I. Code § 39(a)(1), noticed its appeal
                                                  we would simply reinstate the Territorial
to the Appellate Division and on the
                                                  Court’s order. Under the latter
same day provided the certification that
                                                  disposition, we would confront the merits
the statute requires. On appeal, the
                                                  of the defendants’ Bruton argument.
Appellate Division opined that the
Government’s proposed redaction was
insufficient to protect the defendants’
                                                  II. This Court’s Appellate Jurisdiction
Confrontation Clause rights, but
concluded that the Territorial Court had                  At the threshold, we must
directed more redaction than necessary.           examine whether we have appellate
It offered some illustrations of how, on          jurisdiction over one, both, or neither of
remand, the Territorial Court could solve         the questions that the defendants present.
the “Goldilocks problem” of crafting              See Gov’t of V.I. v. Marsham, 293 F.3d
altered confessions that were not too             114, 116 (3d Cir. 2002) (quoting
lightly redacted, not too heavily redacted,       Collinsgru v. Palmyra Bd. of Educ., 161
but just right.                                   F.3d 225, 229 (3d Cir. 1998) (“we have
                                                  an independent obligation to examine our
        The defendants were disappointed
                                                  jurisdiction to hear this appeal.”)). Three
in the outcome before the Appellate
                                                  of the four defendants invoke this
Division; they would have much
                                                  Court’s jurisdiction under 28 U.S.C. §
preferred the redactions ordered by the
                                                  1291. Although some of our cases are
Territorial Court. 4 They appealed to this
                                                  imprecise about the statutory source of
                                                  our jurisdiction over the Appellate
  4
    It appears that the Territorial Court’s       Division, we take this opportunity to
order would have eviscerated the                  clarify that, as a technical matter, it is 48
confessions to the point that they might          U.S.C. § 1613a(c), and not 28 U.S.C. §
have lost all value to the prosecution.           1291, that confers jurisdiction on this
We observe this only to emphasize the             Court over appeals from the Appellate
high stakes of this litigation; because of        Division. However, the distinction is
our holding regarding our own appellate           only technical—our cases have
jurisdiction, we of course express no             uniformly held that 48 U.S.C. § 1613a(c)
view as to the correctness of the                 has the same requirements for
Territorial Court’s or Appellate                  appealability as 28 U.S.C. § 1291. See,
Division’s Bruton rulings.                        e.g., Rivera, 333 F.3d at 147; Ortiz v.

                                              5
Dodge, 126 F.3d 545, 547 (3d Cir. 1997).           1613a(c). In re Alison, 837 F.2d 619 (3d
                                                   Cir. 1988), considered our appellate
        Turning to the substance of our
                                                   jurisdiction over an order of the
appellate jurisdiction, we consider
                                                   Appellate Division reversing the
whether we have jurisdiction over some
                                                   Territorial Court’s grant of a Fed. R. Civ.
or all of this case as a “final decision” of
                                                   P. 12(b)(6) motion to dismiss. Since the
the Appellate Division within the
                                                   Appellate Division had reversed, it
meaning of 48 U.S.C. § 1613a(c). W e
                                                   remanded the case to the Territorial
conclude that we do not in the usual
                                                   Court for further proceedings. W e
sense. We then consider whether we
                                                   concluded that such a remand was not a
have appellate jurisdiction over some or
                                                   final decision under § 1613a(c). Remand
all of this case under the collateral order
                                                   orders are not generally appealable
doctrine. We conclude that we do have
                                                   because they are not final decisions
jurisdiction under the collateral order
                                                   within the meaning of 28 U.S.C. § 1291
doctrine to review the Appellate
                                                   and 48 U.S.C. § 1613a(c). W e recently
Division’s determination of its own
                                                   reiterated that “[a] final decision ‘ends
jurisdiction.
                                                   the litigation on the merits and leaves
       A. Not a Final Decision                     nothing . . . to do but execute the
                                                   judgment.’” Rivera, 333 F.3d at 150
        We are the second appellate court
                                                   (alteration in original) (quoting Catlin v.
to address this case. Nonetheless— to
                                                   United States, 324 U.S. 229, 233 (1945)).
reiterate the point made above about the
                                                   The remand in Alison left more to do
parallel construction of 48 U.S.C. §
                                                   than mere execution of the judgment, and
1613a(c) and 28 U.S.C. § 1291—“with
                                                   thus the remand order was not
regard to the question of finality, we
                                                   appealable.
have treated appeals from the Appellate
Division . . . no differently than appeals                 A second, independent reason
taken from any other federal district              leads us to conclude that the Appellate
court.” Ortiz, 126 F.3d at 548 (citing as          Division’s order was not a final decision:
examples Gov’t of V.I. v. Blake, 118 F.3d          The first appeal (i.e., the appeal to the
972 (3d Cir. 1997); In re A.M., 34 F.3d            Appellate Division) was interlocutory,
153 (3d Cir. 1994)).                               but, as we explain in Part III below, was
                                                   nonetheless proper. The subsequent
         The key question is whether the
                                                   appeal to this Court asks us, in effect, to
vacate-and-remand order of the
                                                   (re)consider an interlocutory order of a
Appellate Division was a final decision
                                                   trial court. But, in view of the finality
under 48 U.S.C. § 1613a(c). It was not a
                                                   policy of 28 U.S.C. § 1291 and 48 U.S.C.
“final decision” in the most common
                                                   § 1613a(c), this is something which we
sense of the term—for two reasons.
                                                   do not generally engage in (absent
First, it was a remand order, and we have
explained in a similar context that
remand orders are not final under §

                                               6
specific statutory authorization).5 Such             decision” in the most common sense
statutory authorization comes from                   under 48 U.S.C. § 1613a(c), and
Congress. See U.S. Const. Art III. § 1               therefore this Court does not have
(“The judicial Power of the United                   appellate jurisdiction in the normal sense.
States, shall be vested in . . . such inferior       We next consider whether this Court has
Courts as the Congress may from time to              jurisdiction under the collateral order
time ordain and establish.”). If we were             doctrine.
to blithely take jurisdiction over appeals
                                                            B. Collateral Order Doctrine
of decisions that the Appellate Division
rendered on interlocutory appeal, we                         This Court’s recent definitive
would in practice be allowing our                    treatment of the collateral order doctrine
jurisdiction to expand based on the                  is In re Ford Motor Co., 110 F.3d 954
Virgin Islands Legislature’s exercise of             (3d Cir. 1997). There we explained:
its authority, under 48 U.S.C. §1613a(a),
                                                            [T]he collateral order
to determine the appellate jurisdiction of
                                                            doctrine, first enunciated
the Appellate Division. Of course, the
                                                            by the Supreme Court in
scheme in § 1613a means that, for a
                                                            Cohen v. Beneficial Indus.
Territorial Court case to appear on our
                                                            Loan Corp., 337 U.S. 541
docket on appeal, it is necessary that the
                                                            (1949), provides a narrow
Virgin Islands Legislature confer
                                                            exception to the general
intermediate appellate jurisdiction on the
                                                            rule permitting appellate
Appellate Division; but it does not follow
                                                            review only of final orders.
that such a jurisdictional statute is
                                                            An appeal of a nonfinal
sufficient to confer jurisdiction, in turn,
                                                            order will lie if (1) the
on this Court. Hence we decline to
                                                            order from which the
conclude that in enacting § 1613a
                                                            appellant appeals
Congress intended to cede to the Virgin
                                                            conclusively determines
Islands Legislature such control over this
                                                            the disputed question; (2)
Court’s jurisdiction.
                                                            the order resolves an
       Thus we hold that the Appellate                      important issue that is
Division’s decision is not a “final                         completely separate from
                                                            the merits of the dispute;
                                                            and (3) the order is
  5                                                         effectively unreviewable
    One such statute allowing for
interlocutory appeal to this court is 18                    on appeal from a final
U.S.C. § 3731, which is comparable to                       judgment. See
the interlocutory appeal statute at issue in                Rhone-Poulenc Rorer Inc.
this case, 4 V.I. Code § 39(a)(1). Both                     v. Home Indem. Co., 32
allow, in a proper case, the prosecution                    F.3d 851, 860 (3d Cir.
to immediately appeal a pretrial order                      1994).
suppressing evidence.

                                                 7
Id. at 958. As the Cohen Court                   resolve much of anything. To be sure, it
explained, 28 U.S.C. § 1291 has been             established some guideposts for “too
given a “practical rather than a technical       much” and “too little” redaction, but at
construction.” 337 U.S. at 546. To this          bottom, it remanded the issue to the
end, as a doctrinal matter, orders that          Territorial Court to settle on the exact
meet the three prongs described above            redaction to use.
are deemed to be “final decisions” within
                                                        On the second prong, the
the meaning of the statute.
                                                 redaction question is clearly separable
        Ford Motor Co. paid special              from the merits, and this favors
attention to the question of what makes          appealability. The question about the
an issue “important” under the second            redactions goes to how much identifying
prong. We described the task as one of           information can be contained in a
“compar[ing] the apple of the desire to          nontestifying codefendant’s statement
avoid piecemeal litigation to the orange         and still preserve the other defendants’
of, for example, federalism.” Ford               Confrontation Clause rights. This is an
Motor Co., 110 F.3d at 960. In cases             exercise in applied constitutional law, as
where the Supreme Court has blessed              it were, and it does not implicate the
interlocutory appeals, we observed, it           merits of whether some or all of the
was because “the imperative of                   defendants did or did not participate in
preventing impairment of some                    the robbery-murder of the victim. As for
institutionally significant status or            the importance of the question, there are
relationship” made “the danger of                mixed signals. On the one hand, the
denying justice by reason of delay in            Confrontation Clause articulates a
appellate adjudication outweigh[] the            fundamental constitutional right, and one
inefficiencies flowing from interlocutory        might assume that such rights cry out
appeal.” Id.                                     most strongly for vindication on
                                                 interlocutory appeal. Cf., e.g., P.R.
       We will apply the doctrine
                                                 Aqueduct & Sewer Auth. v. Metcalf &
separately to both of the questions that
                                                 Eddy, Inc., 506 U.S. 139, 145 (1993)
the defendants urge us to consider: (1)
                                                 (holding that determination of sovereign
the merits of the Appellate Division’s
                                                 immunity was a proper subject for
decision, and (2) the Appellate
                                                 interlocutory appeal because it “involves
Division’s determination of its own
                                                 a claim to a fundamental constitutional
jurisdiction.
                                                 protection”). On the other hand,
             1. Appellate Jurisdiction to        Confrontation Clause rights are
Review The Merits of the Appellate               vindicated through evidentiary rulings,
Division’s Decision                              and a prime target of the policy against
                                                 interlocutory appeals is the avoidance of
       As to the first prong of the
                                                 piecemeal review of the many
collateral order doctrine, the Appellate
                                                 evidentiary rulings in a typical case.
Division’s order did not conclusively
                                                 Thus we find this factor inconclusive.

                                             8
       The third prong strongly disfavors        this Court does not have appellate
appealability. Practice alone—in Bruton          jurisdiction to hear an appeal of the
and Gray themselves—suggests that                merits of the Appellate Division’s order.
interlocutory appeal is unwarranted
                                                              2. Appellate Jurisdiction to
because the constitutional defect in
                                                 Review the Appellate Division’s
Bruton’s and Gray’s trials were, in fact,
                                                 Determination of Its Own Jurisdiction
remedied by vacating their convictions
and remanding for a new trial.6                          Turning to the question of the
                                                 reviewability of the Appellate Division’s
       In sum, the prongs range from
                                                 determination of its own jurisdiction, it is
inconclusive to strongly disfavoring
                                                 clear that we may at least review this
appealability. As the collateral order
                                                 limited question. This Court’s
doctrine is a “narrow” exception and the
                                                 indistinguishable precedent in
Supreme Court has “described the
                                                 Government of the Virgin Islands v.
conditions for collateral order appeal as
                                                 Blake, 118 F.3d 972 (3d Cir. 1997),
stringent,” Digital Equip. Corp. v.
                                                 compels this conclusion. In that case, the
Desktop Direct, Inc., 511 U.S. 863, 868
                                                 Government had taken an interlocutory
(1994), failure to meet one prong makes
                                                 appeal from the Territorial Court to the
the doctrine inapplicable no matter how
                                                 Appellate Division under 4 V.I. Code §
compelling the other prongs may be (and
                                                 39(d), a provision which allows an
here, not even one prong is in favor of
                                                 interlocutory appeal during trial under
appealability). Thus we conclude that
                                                 some circumstances. (In Blake, the
                                                 Territorial Court had suppressed—during
  6
                                                 motions decided after the jury had been
    Bruton and his codefendant were tried        selected and sworn—a variety of
and convicted in federal court, apparently       testimony and other evidence the
with no interlocutory appeals. Bruton’s          Government sought to present.) The
conviction was reversed and remanded             Appellate Division in Blake decided that
for retrial (where he was again                  it did not have jurisdiction to hear the
convicted). United States v. Bruton, 416         Government’s appeal. On appeal we
F.2d 310 (8th Cir. 1969). Though Gray’s          held that although we had no jurisdiction
case was in state court in Maryland (and         to reach the merits, we did have
thus presented no opportunity for                jurisdiction under the collateral order
interlocutory appeal in the federal              doctrine to review the Appellate
system), the same remedy was of course           Division’s jurisdiction over the appeal.
available: The Supreme Court vacated             Blake, 118 F.3d at 975-76. We of course
his conviction and remanded. In                  adhere to Blake in this case, see Third
Richardson, the Supreme Court did not            Circuit IOP 9.1, but we do add a few
find in Richardson’s favor, but there was        words of analysis since the discussion in
no doubt that even in the habeas corpus          Blake was quite summary.
posture of that case it would have been
possible to afford him relief.                          The first prong of the collateral

                                             9
order doctrine is clearly satisfied here            want of subject matter jurisdiction are
because the Appellate Division did                  not ordinarily entitled to interlocutory
finally determine its own jurisdiction              review.” Merritt v. Shuttle, Inc., 187
over this sort of interlocutory appeal.             F.3d 263, 268 (2d Cir. 1999) (citing
The third prong is also clearly satisfied           Catlin, 324 U.S. at 236).
because such a determination cannot be
                                                            The dispositive differences in this
effectively reviewed on appeal from a
                                                    case are twofold. First, we are
final judgment because, by hypothesis,
                                                    considering the ability to appeal an
the Appellate Division’s jurisdiction to
                                                    interlocutory determination of appellate
hear interlocutory (i.e., not final) appeals
                                                    jurisdiction, not original jurisdiction,
would not be implicated in that posture.
                                                    making cases like Merritt
        The second prong is more                    distinguishable. Second, the order at
complex, but it too favors our                      issue here is not so much effectively
jurisdiction. Part of it is clear: The issue        unreviewable as it is procedurally
of the Appellate Division’s jurisdiction is         unreviewable if we do not take
separate from the merits. Whether the               jurisdiction now. “Effective”
question is important enough requires               unreviewability arises because a party’s
some discussion. On the one hand,                   putative rights will be irreparably
issues involving the scope of federal               harmed. For example, a party may have
jurisdiction are good candidates for the            to forego an injunction guarding against
collateral order doctrine. See, e.g.,               irreparable harm because the security
Quackenbush v. Allstate Ins. Co., 517               bond that is the price of the injunction
U.S. 706 (1996) (holding that an                    may have been made too costly by the
abstention-based remand to state court              lower court; or a party wrongly
was immediately appealable under                    determined to lack qualified immunity
collateral order doctrine). On the other            may be subjected to a trial. In such
hand, a vague reference to the “scope of            situations, although the aggrieved party
federal jurisdiction” may denominate the            cannot be made whole after the fact, the
category too broadly, for the cases                 legal question will, as a matter of
involving the collateral order doctrine             procedure, still be preserved for the
and the scope of federal jurisdiction are           appellate court’s review at a later time.
by and large abstention cases, see id. at           In contrast, only in the most convoluted
712-15 (canvassing cases), which “put               and improbable of hypotheticals will the
the litigants ‘effectively out of court,’”          jurisdictional issue presented here ever
id. at 713 (quoting Moses H. Cone Mem’l             make its way to this Court on appeal
Hosp. v. Mercury Contr. Corp., 460 U.S.             from a final decision.7 As
1, 11 n.11 (1983) (quoting Idlewild Bon
Voyage Liquor Corp. v. Epstein, 370
                                                      7
U.S. 713, 715 n.2 (1962))), and some                   The dissent “see[s] no reason why we
courts have explicitly held that “non-              could not [after trial] consider whether
immunity based motions to dismiss for               the Appellate Division had jurisdiction to

                                               10
                                                    a procedural matter, now is this Court’s
                                                    only opportunity to pass on the issue.
render its decision.” Dissenting Op. post
at —. In one sense, this is a truism, but                   This reasoning also explains why
in practical terms it is a half-truth. The          our holding here would not apply to the
whole tenor and dynamic of a                        issue in Merritt, i.e., why a district
trial—here, for murder no less—can be               court’s determination of its subject
radically altered by a decision like that of        matter jurisdiction is not generally
the Appellate Division here. We think it            reviewable under the collateral order
imprudent to let pass a ruling of such              doctrine.8 Questions of original
moment without examining, if we can,                jurisdiction are always automatically
whether the court making the ruling even            before this Court on appellate review.
had jurisdiction.                                   See, e.g., Wujick v. Dale & Dale, Inc., 43
         Second, the dissent’s offhand              F.3d 790, 792 (3d Cir. 1994) (“‘[E]very
statement about easy reviewability after            federal appellate court has a special
trial is also unsupported by an analysis of         obligation to satisfy itself not only of its
the posture in which the question might             own jurisdiction, but also that of lower
actually arise. On appeal from a                    courts in a cause under review.’”
conviction (the dissent is quite right that         (alteration in original) (quoting Spring
the point is moot if there is a plea or             Garden Assoc., L.P. v. Resolution Trust
acquittal), the question will be whether            Corp., 26 F.3d 412, 415 (3d Cir. 1994)
the redaction actually used was                     (quoting Employers Ins. of Wausau v.
constitutionally sound. If it was, we               Crown Cork & Seal Co., 905 F.2d 42 (3d
would have no occasion to consider the              Cir. 1990)))). In other words, there is no
Appellate Division’s jurisdiction, for it           procedural posture where a question of
will have made the right decision                   original jurisdiction will escape this
(whether it was empowered to or not). If            Court’s review in an appeal from a (non-
the redaction used was unsound (and not             interlocutory) final decision. In
harmless), the Appellate Division’s
jurisdiction is beside the point—the case
must go back for a new trial.                       review after trial.
         This analysis also explains why
                                                      8
the dissent’s efforts to distinguish Blake              The dissent criticizes the distinction
are unconvincing. While there may have              here as inconsistent with our earlier
been factors present in Blake that are              pronouncement that we must “treat[]
absent here, the core concern remains:              appeals from the Appellate Division no
How are we to review the Appellate                  differently from appeals from any other
Division’s jurisdiction if not through the          district court.” Dissenting Op. post at —.
collateral order doctrine? Both in Blake            But of course, that greatly overstates our
(as the dissent explains) and in this case          earlier point, which was confined to the
(as the preceding paragraph illustrates),           issue of how we treat questions of
the question cannot be addressed on                 finality.

                                               11
contrast—as this case itself                        is the very sort of inefficiency that the
illustrates—there are procedural postures           collateral order doctrine should not
which render permanently unreviewable               countenance. We are underwhelmed by
the judgment of a hierarchically inferior           the dissent’s in terrorem argument. First,
appellate court,9 and thereby prevent the           it is a dubious empirical proposition that
automatic review of jurisdiction                    the holding here will increase the
described in Wujick. Because review of              quantity of this sort of appeal. As the
a question of appellate jurisdiction is a           citations in the opinion in this case
now-or-never proposition, interlocutory             suggest, this Court has seen but a handful
review of a jurisdictional question is              of cases like this in the past decade.
warranted here where it is not warranted            Second, the fact that we here take the
in the case of a district court’s                   opportunity to give some guidance (both
determination of its own original                   to litigants and to the Appellate Division)
jurisdiction.                                       should decrease, not increase, the
                                                    number of appeals taken in good faith.
        In brief, coupled with the
institutional importance of the question,                   Third, the dissent claims that
the absolute unreviewability of the                 “[t]he majority’s decision effectively
Appellate Division’s jurisdiction in this           grants an appeal as of right.” But it is the
case makes the question an important                Congress, not this Court, that has granted
one. Thus this prong too favors                     litigants an appeal as of right from the
appealability. Because all three prongs             Appellate Division. Even if we did
are satisfied, the collateral order doctrine        dismiss this appeal in its entirety for lack
affords us a basis for reviewing the                of jurisdiction, as the dissent would, little
Appellate Division’s determination                  efficiency would be gained as a practical
regarding its jurisdiction under 4 V.I.             matter: In a subsequent case, a litigant
Code § 39(a)(1).                                    could still file a notice of appeal (as a
                                                    matter of statutory right), and he could
       In reaching this conclusion, we
                                                    still advance a good faith argument in
have considered the dissent’s contention
                                                    favor of review under the collateral order
that our “decision effectively grants an
                                                    doctrine. A motions panel would likely
appeal as of right to question an appellate
                                                    refer the jurisdictional question to the
court’s jurisdiction whenever it makes an
                                                    merits panel, and the merits panel would
interlocutory ruling,” and that this result
                                                    address the question (hopefully in less
                                                    extended fashion than we have had to
  9
    The judgment of the Appellate                   here). In other words, the decision here
Division is permanently unreviewable                makes it neither easier nor harder for a
only in the sense that it will never be             party who is dissatisfied with the ruling
specifically reviewed by this Court; the            of the Appellate Division to drag out the
Bruton question in general is preserved
for this Court’s review. See supra note
4.

                                               12
process by appealing to this Court. 10                      The United States or the
                                                            Government of the Virgin
        At bottom, it seems to us that the
                                                            Islands may appeal an
dissent’s problem is the presence of a
                                                            order, entered before the
system of two-tier appellate review as of
                                                            trial of a person charged
right. In fact, the dissent states explicitly
                                                            with a criminal offense
that “[t]his type of review is wisely not
                                                            under the laws of the
found elsewhere in the federal system,
                                                            Virgin Islands, which
and should not exist here.” Dissenting
                                                            directs the return of seized
Op. post at —. While we might agree
                                                            property, suppresses
with the dissent if we were drafting 48
                                                            evidence, or otherwise
U.S.C. § 1613a, that simply is not our
                                                            denies the prosecutor the
task. Congress has provided that we
                                                            use of evidence at trial, if
have appellate jurisdiction (until such
                                                            the United States Attorney
time as the conditions for certiorari
                                                            or the Attorney General
jurisdiction are met, see 48 U.S.C. §
                                                            conducting the prosecution
1613), and accordingly, we will turn our
                                                            for such violation certifies
attention to the substance of the appeal.
                                                            to the Judge who granted
                                                            such motion that the appeal
                                                            is not taken for purpose of
III. The Appellate Division’s
                                                            delay and the evidence is a
Jurisdiction
                                                            substantial proof of the
        We exercise plenary review in                       charge pending against the
determining whether a court                                 defendant.
hierarchically below us had subject
                                                     There do not appear to be any
matter jurisdiction. Wujick v. Dale &
                                                     cases—either from this Court or from the
Dale, Inc., 43 F.3d 790, 792 (3d Cir.
                                                     Appellate Division—considering this
1994) (citing Nat’l Union Fire Ins. Co. v.
                                                     provision in any depth.11 We are,
City Savings, F.S.B., 28 F.3d 376, 383
(3d Cir. 1994)). As previously noted, we
look to local law to determine the                     11
jurisdiction of the Appellate Division.                      The government points to the one
See 48 U.S.C. § 1613a(a); Gov’t of V.I. v.           case of the Appellate Division which
Warner, 48 F.3d 688 (3d Cir. 1995). The              expressly stated that that Court had
asserted basis for the Appellate                     jurisdiction under section 39(a)(1),
Division’s subject matter jurisdiction is 4          Government of the Virgin Islands v.
V.I. Code § 39(a)(1), which provides:                Christopher, 990 F. Supp. 391 (D.V.I.
                                                     App. Div. 1997) (per curiam). In that
                                                     case, the Territorial Court had suppressed
  10
    Indeed, this decision might even                 before trial an unmirandized confession
discourage appeals by settling the                   and the Government took an
underlying merits questions.                         interlocutory appeal to the Appellate

                                                13
however, fortunate to be guided in this                   The defendants’ challenges to the
novel exercise by interpretations of 18           Appellate Division’s jurisdiction are
U.S.C. § 3731, the analogous provision            fourfold: First, they argue that the
for interlocutory appeals by the                  Territorial Court’s redactions were not
government of suppression motions                 “an order . . . suppress[ing] evidence.”
decided in federal district courts.12             Second, they submit that the
                                                  Government’s certification was
                                                  inadequate because the Territorial Court
Division. The Appellate Division simply           was not afforded an opportunity to
stated that “[t]his Court has jurisdiction        review it before the Government noticed
under V.I. Code. Ann. tit. 4, § 39(a)(1).”        its appeal to the Appellate Division.
Id. at 393. No mention was made of any            Third, they contend that the statements in
certification by the Government or of             question, even unredacted, are not
whether the suppressed confession was             “substantial proof of the charge pending
“substantial proof of the charge pending          against [them].” Fourth, they assert that
against the defendant.”                           the statute denies them equal protection
  12
                                                  of the laws, by permitting the
    That section is similarly (but not            government to appeal adverse orders but
identically) worded, and appears to have          not affording a similar opportunity to
provided the basis for 4 V.I. Code §              defendants facing adverse orders. We
39(a)(1): The Virgin Islands statute was          will treat each of these challenges in turn.
enacted in 1972, while the relevant
portion of the federal statute was added                A. “An Order Suppressing
in 1971. The federal statute reads:               Evidence”
       An appeal by the United                           The defendants contend that the
       States shall lie to a court of             Territorial Court’s redaction order was
       appeals from a decision or                 not “an order suppress[ing] evidence”
       order of a district court                  within the meaning of 4 V.I. Code §
       suppressing or excluding                   39(a)(1). But it would be a terribly
       evidence or requiring the                  crabbed reading of the statute to hold that
       return of seized property in               admitting a statement subject to
       a criminal proceeding, not                 redactions does not amount to a
       made after the defendant                   suppression of evidence. The statute
       has been put in jeopardy                   finishes its list of appealable orders with
       and before the verdict or                  a catch-all category—those orders which
       finding on an indictment or                “otherwise den[y] the prosecutor the use
       information, if the United                 of the evidence at trial.” Id. Even if the
       States attorney certifies to
       the district court that the
       appeal is not taken for                          substantial proof of a fact
       purpose of delay and that                        material in the proceeding.
       the evidence is a                          18 U.S.C. § 3731, ¶2.

                                             14
redaction order is not an order                      generally held that the “substantial
suppressing evidence, it surely denies               proof” requirement of 18 U.S.C. § 3731
the Government the use of the full                   is a requirement of the certification, not a
confessions at trial. Thus we reject the             requirement of actual fact. See In re
defendants’ contention that the                      Grand Jury Investigation, 599 F.2d at
Territorial Court’s order was not a proper           1226.13 The certification under 18
subject for appeal.
                                                       13
       B. Territorial Court Review of                     In his brief, Camacho cites United
the Certification                                    States v. Poulsen, 41 F.3d 1330 (9th Cir.
        The defendants next argue that the           1994), for the proposition that mere
Territorial Court should have had an                 certification is insufficient. A review of
opportunity to review the certification              1970s decisions following the enactment
provided by the Government. While as a               of the relevant portion of 18 U.S.C. §
policy matter, one might conclude that               3731 reveals an early split among the
the Territorial Court should be given an             circuits on this score. Compare In re
opportunity to review the certification,             Grand Jury Investigation, 599 F.2d at
there is at present simply no basis in the           1226 (3d Cir.), and Comiskey, 460 F.2d
statute for such a requirement. W e                  at 1297-98 (7th Cir.), with United States
decline to read one in.                              v. Loud Hawk, 628 F.2d 1139 (9th Cir.
                                                     1979) (en banc). The Court of Appeals
        Moreover, this Court has decided             for the Eleventh Circuit has implied that
in interpreting 18 U.S.C. § 3731 that that           it sides with us and the Seventh Circuit.
statute requires nothing more than the               See United States v. C.G., 736 F.2d 1474,
delivery of the certification to the district        1478 (11th Cir. 1984). The Court of
court in question. See In re Grand Jury              Appeals for the First Circuit has
Investigation, 599 F.2d 1224, 1226 (3d               acknowledged the split, but has declined
Cir. 1979) (adopting United States v.                to decide the issue. See United States v.
Comiskey, 460 F.2d 1293, 1297-98 (7th                Bouthot, 878 F.2d 1506, 1510 (1st Cir.
Cir. 1972) (holding that no evidence was             1989).
required to support a certification under                    More recently, the Court of
18 U.S.C. § 3731)). We hold, by                      Appeals for the Ninth Circuit has
analogy, that 4 V.I. Code § 39(a)(1) is              expressly declined to hold that
also completely satisfied by simple                  subsequent Supreme Court decisions
delivery of the certification to the                 have implicitly overruled Loud Hawk,
Territorial Court. Thus the                          see United States v. Adrian, 978 F.2d
Government’s certification in this case              486, 490-91 (9th Cir. 1992), and
was adequate.                                        continues to require the government to
      C. “Substantial Proof of the                   establish by more than mere certification
Charge Pending”                                      that the suppressed evidence constitutes
                                                     “substantial proof.” The Court of
       The Courts of Appeals have                    Appeals for the Eighth Circuit recently

                                                15
U.S.C. § 3731 must state both (1) that the           federal statute as a guide. Second, if the
appeal is not taken for the purpose of               Virgin Islands Legislature actually
delay; and (2) that the evidence is a                wanted the statute to operate as the
substantial proof of a material fact in the          defendants would have it, there were far
proceeding. The United States                        less cryptic ways of communicating that
Attorney’s word is enough; the                       intent. For example, the Virgin Islands
reviewing court does not consider the                Legislature could have put the
truth of the certification.                          “substantial proof” requirement before
                                                     the certification clause. Third, the statute
        If 4 V.I. Code § 39(a)(1) were
                                                     is silent on what court would evaluate the
worded identically to 18 U.S.C. § 3731,
                                                     substantiality of the proof, or on how that
on which In re Grand Jury Investigation
                                                     court would go about the evaluation,
is binding precedent, this would certainly
                                                     suggesting that no such review is to be
be the end of it. But the Virgin Islands
                                                     undertaken. Fourth, review of the
statute is not clearly drafted: It is missing
                                                     substantiality of the proof necessarily
an additional “that” immediately before
                                                     entails a look at the other evidence that
“the evidence is a substantial proof,”
                                                     the Government has available to it, an
which would make it grammatically
                                                     inquiry that could both take considerable
unambiguous. As it now stands, it could
                                                     time and prejudice the Government’s
be read to require essentially the same
                                                     case. Both of these seem at odds with
two certification elements that 18 U.S.C.
                                                     the expedited interlocutory appellate
§ 3731 does; or it could be read (as the
                                                     review contemplated by the statute.14
defendants urge) to require a certification
that the appeal is not taken for delay, and
                                                       14
also require that, in actual fact, the                    Moreover, we find 4 V.I. Code §
evidence be “substantial proof.”                     39(a)(1) (the statute at issue here)
        We decline to read it as the                 distinguishable from 4 V.I. Code § 39(d)
defendants would have it, for four                   (the mid-trial interlocutory appeal
reasons. First, the Virgin Islands statute           provision at issue in Blake). The latter
is plainly modeled on the federal statute,           requires more than the prosecutor’s mere
and we conclude it is best to follow the             certification that the question involves “a
                                                     substantial and recurring question of law
                                                     which requires appellate resolution.” 4.
acknowledged this continuing split, and              V.I. Code § 39(d). We held the merits of
sided with this Circuit and the Seventh              this certification to be a question for the
Circuit. See United States v. Johnson,               court because it is “an issue of statutory
228 F.3d 920, 923-24 (8th Cir. 2000).                interpretation, and because it involves the
We of course adhere to our precedent in              jurisdiction of the federal courts.” Blake,
In re Grand Jury Investigation, and                  118 F.3d at 977 (citations omitted). In
recognize no requirement in 18 U.S.C. §              sharp contrast, the certification required
3731 aside from the certification paper              for appeals taken under subsection (a)(1)
itself.                                              addresses the substantiality of evidence,

                                                16
Thus, we conclude that the Appellate                only rational basis review of the
Division did not need to evaluate the               legislation).
substantiality of the proof in order to
                                                           The Virgin Islands Legislature
accept the certification.
                                                    certainly had a rational basis for
       D. Equal Protection                          distinguishing between the Government
                                                    and defendants on the question of appeal
        The defendants object that the
                                                    rights. To identify only one such basis,
statute affords the Government an appeal
                                                    the Virgin Islands Legislature could
right that it does not confer on
                                                    rationally conclude that the efficient
defendants, and that this disparity
                                                    administration of criminal justice
amounts to a violation of the equal
                                                    demanded that the Government have
protection component of the Fifth
                                                    expansive pre-trial appeal rights, and the
Amendment’s Due Process Clause. But
                                                    defendant have expansive post-trial
this argument is foreclosed by United
                                                    appeal rights. Thus we find no merit in
States v. Heinze, 218 U.S. 532, 545-46
                                                    the defendants’ equal protection
(1910), which held that the Act of March
                                                    challenge.
2, 1907, ch. 2564 (which was later
codified at 18 U.S.C. § 682, which in                      In sum, we conclude that the
turn was the forerunner of 18 U.S.C. §              Government followed the procedures set
3731) did not violate equal protection or           out in 4 V.I. Code § 39(a)(1), and that the
due process principles.                             Appellate Division had jurisdiction over
                                                    the appeal.
        Moreover, even under more recent
equal protection jurisprudence, Heinze              IV. Conclusion
reached the right result: The Supreme
                                                           We have concluded that the
Court has not announced that the status
                                                    Appellate Division had jurisdiction over
of “criminal defendant” is a suspect
                                                    the appeal, and we will affirm the
classification, nor has it held the right to
                                                    Appellate Division’s holding regarding
appeal in a criminal case to be a
                                                    its own jurisdiction. Having determined
fundamental right. Thus we subject this
                                                    that we lack jurisdiction over the other
legislation to rational basis review. See,
                                                    questions in this appeal, we will dismiss
e.g., Ramsgate Court Townhome Ass’n v.
                                                    the appeal with respect to those
W. Chester Borough, 313 F.3d 157, 160
                                                    questions. The case will be remanded to
(3d Cir. 2002) (reiterating that equal
                                                    the Territorial Court to revise the
protection challenges to legislation not
                                                    redacted statements in conformity with
based on a suspect classification or
                                                    the Appellate Division’s opinion.
implicating a fundamental right require
                                                    Because we do not reach the merits of
                                                    the defendants’ Bruton claims, this
                                                    opinion is without any preclusive effect
a factual or strategic matter that—for the          to the defendants asserting on direct
reasons we identify above— a court is ill-          appeal, should they be convicted, that the
equipped to evaluate.

                                               17
redacted confessions used at trial were             time we take an interlocutory appeal.
insufficiently altered to secure their Sixth
                                                            This type of review is wisely not
Amendment Confrontation Clause rights.
                                                    found elsewhere in the federal system,
                                                    and should not exist here. Under the
                                                    majority’s holding, we pile an extra layer
NYGAARD, J. dissenting.
                                                    of interlocutory appellate review solely
        I respectfully dissent and would            onto cases that stem from the Virgin
dismiss this appeal for lack of                     Islands, without explaining why this
jurisdiction. I agree with the majority             extra layer is necessary – and why the
that we do not have jurisdiction to                 delay it engenders is justified. I find the
consider the merits of the decision of the          extra layer unnecessary and the delay
District Court of the Virgin Islands,               unjustified.
Appellate Division. I disagree, however,
                                                            The majority correctly concludes
that we may consider whether the
                                                    that the issue of the Appellate Division’s
Appellate Division had jurisdiction to
                                                    jurisdiction is not reviewable as an
hear the interlocutory appeal. The
                                                    ordinary final decision. It also uses the
majority asserts that its resolution of this
                                                    correct test for determining whether,
issue is “clear” and compelled by the
                                                    nevertheless, we may pretend it is a final
“indistinguishable precedent” of
                                                    decision and review it under the
Government of Virgin Islands v. Blake,
                                                    collateral order doctrine. It is the manner
118 F.3d 972 (3d Cir. 1997). Maj. Op. at
                                                    in which the majority applies this test
*9. I agree the issue is clear, but
                                                    where they and I part company.
conclude that the precedent of Blake is
first, quite distinguishable, and                            At the outset, I think it important
moreover, not germane to our decision.              to emphasize what the majority only
                                                    notes in passing – that the collateral
       The majority insists that we
                                                    order doctrine is meant to provide a
should treat appeals from the Appellate
                                                    “narrow exception” to the general rule
Division “no differently than appeals
                                                    that permits appellate review only of
taken from any other federal district
                                                    truly final orders. See Digital Equip.
court.” Maj. Op. at *6. W hile I agree in
                                                    Corp. v. Desktop Direct, Inc., 511 U.S.
general, I do not believe this means we
                                                    863, 868 (1994). This exception is to be
can simply be blind to the differences.
                                                    made only when required to preserve “a
The majority’s decision effectively
                                                    healthy legal system,” and should “never
grants an appeal as of right to question an
                                                    be allowed to swallow the general rule.”
appellate court’s jurisdiction whenever it
                                                    Id. at 867-68 (internal citation and
makes an interlocutory ruling. The
                                                    quotations omitted). Thus, the three
procedural equivalent is not our routine
                                                    prongs of the collateral order doctrine are
review of a decision by a typical district
                                                    “stringent,” and each of them must be
court, but review by some hypothetical
                                                    met in order for a decision to be
higher court of our jurisdiction every
                                                    reviewable. Id. at 868. With this in mind,

                                               18
it seems clear that in this case the               of justice require that we take an
requirements of the second and third               interlocutory appeal to second-guess the
prongs have not been met, and we                   jurisdictional conclusions of the
therefore may not review the Appellate             Appellate Division when it is sitting in
Division’s decision as to its own                  the same posture.
jurisdiction.
                                                           In distinguishing holdings that
        In addition to being separate from         find issues of subject-matter jurisdiction
the merits of the case, as this                    ineligible for interlocutory review, the
jurisdictional question admittedly is, the         majority points out that this case is
second prong also requires that the issue          different because it presents a question of
be sufficiently “important.” Discussing            appellate, not original, jurisdiction.15 The
the meaning of “important,” the United             majority does not, however, indicate why
States Supreme Court has explained that            this distinction weighs in favor of
it involves an examination of the “value           review. Nor does the majority explain
of the interests that would be lost through        how the interests of justice implicated by
rigorous application of a final judgment           an interlocutory jurisdictional issue are
requirement.” Digital Equip. Corp., 511            so weighty that they overcome the
U.S. at 878-79. Similarly, we have                 “inefficiencies flowing from
required a showing of the “impairment of           interlocutory appeal.” Notably, the
some institutionally significant status or         majority actually has very little to say
relationship” presenting the “danger of            about the “importance” of reviewing the
denying justice.” In re Ford Motor                 jurisdictional issue, blurring its
Co., 110 F.3d 954, 960 (3d Cir. 1997).             discussion of this condition with its
To qualify as “important,” these interests         insistence that the order is “procedurally
must also outweigh the “inefficiencies             unreviewable,” a factor that is properly
flowing from interlocutory appeal.” Id.            evaluated under the third prong. Maj. Op.
                                                   at *10.
       It is difficult for me to see how we
can conclude that an extra layer of                       In my view, this third requirement
appellate review, of a kind that does not          has also not been fulfilled. I fail to see
exist anywhere else in the federal system,         why the question of interlocutory
qualifies as “important” under this
standard. When this Court takes                      15
jurisdiction over an interlocutory appeal              It is worth noting that earlier in its
from a typical district court’s                    opinion the majority observed the
proceedings, our decision to do so is not          necessity of treating appeals from the
subject to automatic review, and yet we            Appellate Division no differently from
do not find that this deprivation presents         appeals from any other district court, but
the “danger of denying justice.” It is             when the occasion arises, it is quick to
incongruous, and more than a bit                   point out that they really are different,
patronizing, to conclude that the interests        because they involve questions of
                                                   appellate, and not original, jurisdiction.

                                              19
appellate jurisdiction as presented in this         hypotheticals.” Maj. Op. at *11. True, if
case is “effectively unreviewable on                we were to reverse, at that point we
appeal from a final judgment.” Ford                 could not rewrite history and pretend that
Motor Co., 110 F.3d at 958. As the                  the Appellate Division had never
Supreme Court notes, most interlocutory             rendered its interlocutory ruling, but as
orders are “only imperfectly reparable by           the Supreme Court has emphasized,
appellate reversal,” and if this prong              effective reviewability of a decision does
were to be interpreted too broadly, it              not require that we be able to unring the
would render it meaningless. Digital                “law’s proverbial bell.” Id.
Equip. Corp., 511 U.S. at 872. “A fully
                                                            It is in regard to reviewability that
litigated case can no more be untried
                                                    this case is most easily distinguishable
than the law’s proverbial bell can be
                                                    from Blake. 118 F.3d 972. In Blake, the
unrung, and almost every pretrial or trial
                                                    Appellate Division had found that it did
order might be called ‘effectively
                                                    not have jurisdiction to consider the
unreviewable’ in the sense that relief
                                                    government’s interlocutory appeal, and it
from error can never extend to rewriting
                                                    was the government, not the defendants,
history.” Id.
                                                    who sought to appeal that ruling to us. Id.
       It is indeed likely that the issue of        at 974. This denial of jurisdiction could
the Appellate Division’s interlocutory              not have been effectively reviewed after
appellate jurisdiction will be made                 final judgment, especially because it is
irrelevant by further proceedings. If the           unlikely the government would have
Appellants reach a plea agreement or are            been able to appeal at all had it lost and
acquitted, for example, then the question           the trial resulted in an acquittal. In
would be moot. In the larger context of a           contrast, here Appellants would have an
murder trial, the issue may be rendered             automatic right to appeal upon
immaterial. But these possibilities only            conviction.
indicate that our consideration of the
                                                            These distinctions also make our
issue at this point may well be a waste of
                                                    finding that the interlocutory issue was
time and resources.
                                                    sufficiently “important” more palatable
       If the Appellants are convicted,             in the Blake case, since the denial of
however, and the decision of the                    jurisdiction there meant the challenged
Appellate Division is material to the               order would not be reviewed by any
outcome of the trial, I see no reason why           court, and a miscarriage of justice was
we could not then consider whether the              therefore more likely to result. In
Appellate Division had jurisdiction to              contrast, in a case such as this in which
render its decision. In fact, it seems that         the Appellate Division took jurisdiction,
the issue could be raised rather                    the underlying issue has already been
straightforwardly upon appeal, without              reviewed and decided by an appellate
requiring, as the majority suggests, “the           court.
most convoluted and improbable of


                                               20
        This case implicates all of the            we need look no farther than the case
interests that justify the existence of the        now before us. The trial of Appellants for
final judgment rule, and illustrates why           a brutal 1999 murder was set to begin in
exceptions to this rule should be few. As          September 2001, when the case was
the Supreme Court explained:                       brought to a grinding halt by the
                                                   government’s appeal on the eve of trial.
       An interlocutory appeal
                                                   Memories of witnesses have surely faded
       can make it more
                                                   and evidence gone stale as the case has
       difficult for trial judges
                                                   wended its way through two appellate
       to do their basic job –
                                                   courts, producing what will be at least a
       supervising trial
                                                   three-year delay in trial. There is no
       proceedings. It can
                                                   doubt that when this trial is eventually
       threaten those
                                                   held, it will be less coherent than it
       proceedings with delay,
                                                   would have been three or more years
       adding costs and
                                                   earlier, and less likely to achieve a just
       diminishing coherence.
                                                   result. It is unfortunate that there has
       It also risks additional,
                                                   been such a delay in this case; we should
       and unnecessary,
                                                   not encourage its recurrence.
       appellate court work . . .
       when it brings them                                 The government’s original
       appeals that, had the                       interlocutory appeal was brought under a
       trial simply proceeded,                     statute passed by the Virgin Islands
       would have turned out                       legislature, which made a measured
       to be unnecessary.                          decision that the interests of justice
                                                   warrant the delay caused by allowing
Johnson v. Jones, 515 U.S. 304, 309
                                                   interlocutory appeals in a few specified
(1995).
                                                   instances. Now, in making any such
       Fortunately, the scope of the               decision, the local legislature must weigh
majority’s decision is limited to the              the interests of justice against far more
unique appellate position of the courts of         delay, since this Court must now intrude
the Virgin Islands, but even within this           on every interlocutory appeal. From now
narrow arena today’s holding seems                 on, every interlocutory appeal allowed by
certain to encourage more unnecessary              statute will come stapled to a right to
delay while this Court wades through               appeal to us the Appellate Division’s
more unnecessary appeals. With this                decision to take the interlocutory appeal.
holding, every ruling by the Appellate             This extra layer is not only unnecessary,
Division becomes appealable to this                but also conveys an unjustified lack of
Court, since every such ruling must                confidence in the decisions of the
necessarily contain at least an implicit           Appellate Division, and creates a further
finding of jurisdiction.                           delay that can only serve to jeopardize
                                                   the ultimate attainment of justice at trial.
       To see the harm in this decision,


                                              21
