                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No. 10-1754

                     GOVERNMENT OF THE VIRGIN ISLANDS

                                            v.

                                KENDALL WILLIAMS,

                                             Appellant

      On Appeal from the District Court of the Virgin Islands – Appellate Division
                        (D.C. Crim. No. 3-05-cr-00061-001)
                         Chief Judge: Hon. Curtis V. Gomez
                       District Judge: Hon. Raymond L. Finch
                    Superior Court Judge: Hon. Patricia D. Steele

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                  December 13, 2010

                 Before: McKEE, Chief Judge, FUENTES and SMITH,
                                  Circuit Judges

                            (Opinion filed: February 8, 2011)

                                            OPINION

McKEE, Chief Judge.

       Kendall Williams was convicted by a jury in the Superior Court of the Virgin

Islands of first degree murder and related charges arising from the killing of Khoy Smith,

Jr. He was sentenced to life in prison without parole. He appealed his conviction to the

Appellate Division of the District Court , which affirmed the convictions. He then filed

this appeal. For the reasons that follow, we will reverse and remand for a new trial.


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       Inasmuch as we write primarily for the parties who are familiar with the

background of this case, we will recite only as much of the history of this case as is

necessary for our disposition of the appeal.

       Kendall Williams was charged with aiding and abetting Gregory Williams on the

first five counts of an indictment: first degree murder, carrying an unlicensed firearm

during the commission of first degree murder, first degree assault, carrying an unlicensed

firearm during the commission of first degree assault and possession of ammunition.

Kendall Williams was also charged as a principal, who was aided and abetted by Gregory

Williams, on the same charges in counts six through ten, the two were tried together. A

jury found Kendall Williams guilty on counts six through ten. He was sentenced to life

without parole on count six, with prison time for the other counts to run concurrently.

Gregory Williams was also convicted of first degree murder and related charges and was

sentenced to life in prison without parole.

       Gregory Williams, Kendall Williams’ co-defendant, also filed an appeal to the

Appellate Division of the District Court, which affirmed his convictions. Gregory

Williams then filed an appeal to this court. In his appeal, we reversed Gregory Williams’

convictions , and remanded for a new trial, based on our conclusion that certain remarks

made by the Superior Court trial judge denied Gregory Williams a fair trial. See Gov’t of

the Virgin Islands v. Gregory Williams, 2010 WL 939916 (3d Cir. Mar. 17, 2010). The

government correctly concedes that, if we have jurisdiction here, our decision in Gov’t of

the Virgin Islands v. Gregory Williams must also apply to Kendall Williams and that he



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would also be entitled to a new trial. 1 However, the government maintains that Kendall

Williams’ appeal is untimely and, therefore, we do not have jurisdiction over his appeal.

       The Appellate Division of the District Court’s order affirming Kendall Williams’

convictions was dated June 26, 2009, and was entered on the docket on June 26, 2009.

Kendall Williams filed his Notice of Appeal on July 7, 2009. The government contends:

              Pursuant to Third Circuit Local Appellate Rule 4(b)(1)(A)(i),
              in a criminal case, a defendant’s notice of appeal must be
              filed in the district court within 10 days after the entry of
              judgment or the order being appealed.

Gov’t. Br. at 1. According to the government: “It is 12 days from, and including, Friday,

June 26, 2009, to, and including, Tuesday, July 7, 2009.”          Id. (footnote omitted).

Therefore, the government submits that Kendall Williams’ appeal is out of time and we

lack appellate jurisdiction. 2 We disagree.

       “The Federal Rules of Appellate Procedure govern appeals to our court from the

District Court of the Virgin Islands.” Gov’t of the Virgin Islands v. Charleswell, 24 F.3d

571, 575 (3d Cir. 1994) (citation omitted). “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).” Id. At the


1
 The government disputes Kendall Williams’ claim that the evidence was insufficient to
sustain his convictions. We have reviewed the record and conclude that the evidence was
sufficient to support the jury’s verdict against Kendall Williams and his claim to the
contrary is meritless.
2
  The government also contends that the timely filing of a notice of appeal is
jurisdictional. Gov’t. Br. at 2. However, Rule 4(b) is not jurisdictional and is subject to
forfeiture. See Gov’t of the Virgin Islands v. Martinez, 620 F.3d 321, 327 (3d Cir. 2010).
Forfeiture is not at issue here.


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time in question here, Rule 4(b) required Williams to file a notice of appeal within 10

days of the entry of the Appellate Division’s final order. 3 In addition, at the time in

question here, under Fed.R.App.P. 26(a) the day of the “act, event or default that begins

the period” was excluded from computing the time and also, for time periods less than

eleven days, intermediate Saturdays, Sundays and legal holidays were excluded. 4

       As noted, the Appellate Division’s order affirming the convictions was entered on

Friday, June 26, 2009, so that day is excluded. June 27th and 28th were Saturday and

Sunday, respectively, so those days are also excluded. June 29th, June 30th, July 1st,

July 2nd, were Monday, Tuesday, Wednesday and Thursday, respectively, and are

counted. Thus, 4 days had run on the 10 day period. July 3rd, was a Friday, but was the

day when Independence Day was celebrated, so that day is excluded. July 4th and July

5th were Saturday and Sunday, respectively, and are excluded. July 6th and July 7th

were Monday and Tuesday, respectively and are counted. Accordingly, when Kendall

Williams filed his Notice of Appeal on July 7, 6 days had run on the 10 day period. 5

Thus, his notice of appeal was timely filed and we have appellate jurisdiction.

       Because, as noted above, we have already decided that the trial judge’s remarks

3
 Rule 4(b) now prescribes a 14 day window for a criminal defendant to file a notice of
appeal.
4
 Effective December 1, 2009, the rules for calculating time were amended. Gov’t of the
Virgin Islands v. Hodge, 2010 WL 3449137 at *1, n.1 (3d Cir. Sept. 3, 2010). Amended
Rule 26(a), while still excluding the day that “triggers the period,” now says to “count
every day, including intermediate Saturdays, Sundays and legal holidays.”
5
 Under Rule 26(a) in effect at the time, the last day of the period was included unless it
was a Saturday, Sunday or a legal holiday. The New Rule 26(a) also includes the last day
of the period unless it is a Saturday, Sunday or a legal holiday.
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were unduly prejudicial and warrant a new trial, we will vacate the judgment of

conviction and sentence, and remand for a new trial.




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