213 F.3d 773 (3rd Cir. 2000), 99-3234, In re In Re: Leroy Richards

Docket Nº:99-3234
Citation:213 F.3d 773
Party Name:IN RE: LEROY RICHARDS Nominal Respondent, Hon. Ive A. Swan, Appellant
Case Date:May 31, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 773

213 F.3d 773 (3rd Cir. 2000)

IN RE: LEROY RICHARDS Nominal Respondent, Hon. Ive A. Swan, Appellant

No. 99-3234

United States Court of Appeals, Third Circuit

May 31, 2000

Argued: December 8, 1999

On Appeal From the District Court of the Virgin Islands-Appellate Division (D.C. Civ. No. 97-cv-00123) Honorable Raymond L. Finch and Honorable Thomas K. Moore, Judges of the District Court Honorable Edgar D. Ross, Judge of the Territorial Court[*]

Page 774

[Copyrighted Material Omitted]

Page 775

LEON A. KENDALL, ESQUIRE, (ARGUED) General Counsel Territorial Court of the Virgin Islands Alexander Farrelly Justice Center P.O. Box 70 St. Thomas United States Virgin Islands 00804, Counsel for Appellant Ive A. Swan

A. JEFFREY WEISS, ESQUIRE A.J. Weiss & Associates 9618 Estate Thomas Tramway Building No. 2, Suite 1 Charlotte Amalie, St. Thomas United States Virgin Islands 00802, Counsel for Appellee Leroy Richards

IVER A. STRIDIRON, ESQUIRE Attorney General PAMELA R. TEPPER, ESQUIRE Solicitor General MAUREEN P. CORMIER, ESQUIRE (ARGUED) Assistant Attorney General Office of the Attorney General of the Virgin Islands Department of

Page 776

Justice 48B-50 Kronprindsens Gade GERS Building, 2nd Floor Charlotte Amalie, St. Thomas United States Virgin Islands 00802, Counsel for Appellee Government of the Virgin Islands

Before: BECKER, Chief Judge, SCIRICA and GARTH, Circuit Judges.


BECKER, Chief Judge.

After the Government of the Virgin Islands had brought criminal charges in the Territorial Court of the Virgin Islands against Leroy Richards for sexual misconduct, the Attorney General attempted to exercise the traditional common law power of nolle prosequi and moved to dismiss. However, the Territorial Court, suspicious of the Government's motives, resisted and scheduled a hearing to explore further the underlying facts. Before that hearing could be held, but after the submission of an affidavit from the original complainant indicating her desire to terminate the matter, Richards sought a writ of mandamus from the Appellate Division of the District Court of the Virgin Islands, seeking to compel the Territorial Court to dismiss the charges against Richards. The District Court granted the writ, concluding that the local court rule under which the Territorial Court pursued the hearing violated the Revised Organic Act ("ROA"), 48 U.S.C. S 1541 et seq., because it trammeled upon the prosecutor's substantive authority under local law. The court reasoned that the ROA did not accord local courts the authority to promulgate such substantive laws, rendering the local rule used to justify the Territorial Court's conduct null and void. This appeal followed.

The appeal presents several important questions of judicial governance in the Virgin Islands. First, does the District Court have mandamus jurisdiction over the Territorial Court? We conclude that it does. The local legislature, acting under the authority granted it by the ROA, has extended appellate jurisdiction to the District Court over criminal matters other than those resolved by guilty plea. The jurisprudence is clear that jurisdiction to issue writs of mandamus lies in cases where potential jurisdiction exists, as it does here. Moreover, both local statute, see 4 V.I.C. S 34, and the All Writs Act, 48 U.S.C. S 1651, give the District Court the authority to issue writs of mandamus. We further conclude that the ROA's command that the relationship between the District Court and local courts mirror the one between state and federal courts is not a bar to the District Court's exercise of mandamus power because the District Court retains appellate jurisdiction over the Territorial Court of the Virgin Islands.

Having cleared the jurisdictional hurdle, Richards next faces the challenge of establishing that the Territorial Court exceeded its authority in scheduling a hearing on the matter of Richards's prosecution rather than promptly dismissing it as requested by the parties. We conclude that Richards has not met this burden. The Territorial Court offers two procedural rules to justify its conduct. The first justification, reliance on Local Rule 128(b), which precludes dismissal of criminal cases absent a judicial finding that the dismissal is in good faith, in the public interest, and in the interests of justice, fails because the rule explicitly allows the local court to substitute its judgment for that of local prosecutors in deciding which cases should be prosecuted. Because this judgment is reserved to prosecutors under the old common law power of nolle prosequi, Rule 128(b) is a substantive rule of law rather than a procedural rule that the local court is authorized to promulgate under the ROA. While the Virgin Islands legislature may enact such a rule, the local court may not, making Rule 128(b) a violation of the separation of powers among the three branches of government of the Virgin Islands as delineated by Congress.

The local rules of the Territorial Court apply the Federal Rules in circumstances in which there are no valid rules to the contrary, and hence the Territorial Court's actions may possibly be justified by Fed. R. Crim. P. 48(a), which provides that prosecutions shall only be dismissed by leave

Page 777

of the court. In light of the traditional common law power of nolle prosequi that allowed prosecutors total discretion in determining which cases to pursue, the argument that this rule also has a substantive component is not without force. We believe, however, that though Rule 48(a) does not confer unfettered discretion upon courts to resist motions to dismiss, it does have a procedural component that allows inquiry into the circumstances surrounding a dismissal in a manner that does not sufficiently intrude upon the prosecutorial domain to be viewed as a substantive rule.

In this case, the Territorial Court did not deny the motion to dismiss but merely scheduled a hearing. In light of a court's ability to use Rule 48(a) to let "sunshine" into areas where local authorities may be suspected of inappropriate dealings, we are not persuaded that the Territorial Court behaved in a manner that required the extraordinary remedy of mandamus. Accordingly, we will vacate the order of the District Court with directions to remand the matter to the Territorial Court. We do not do so, however, to give that court carte blanche over prosecutorial decisions. The Territorial Court may conduct a hearing on the circumstances surrounding the Government's requested dismissal before it surrenders jurisdiction, but it lacks the power to compel the Government to take further steps to prosecute Richards.


In October 1995, Richards was charged by information with the felony of second degree rape under 14 V.I.C. S 1702. In April 1997, the Government amended the information to include the misdemeanor of unlawful sexual contact under 14 V.I.C. S 1709. On April 29, 1997, the parties entered into a plea agreement pursuant to which Richards would plead to the misdemeanor in return for dismissal of the felony charges. The agreement was presented to Judge Ive Swan of the Territorial Court, but, based on the seriousness of the conduct initially alleged, he rejected it and set the case for jury selection on June 2.

On May 21, the Government filed a new complaint, arising out of the same incident, that contained only the misdemeanor charge. At arraignment on the new complaint, Richards attempted to enter a plea of guilty. The presiding judge, Territorial Court Judge Brenda Hollar, became aware of the parallel case pending before Judge Swan. Displeased with what she perceived to be judge shopping, she referred the matter to Judge Swan. On the same day, the Government filed a motion requesting that Judge Swan dismiss the original charges because the Government lacked the ability to prove all the elements beyond a reasonable doubt. Several weeks later, the Government moved to dismiss the newer (misdemeanor only) charge as well.

On June 12, Judge Swan held a hearing at which the prosecutor requested that the charges be dropped in the "interests of justice." Judge Swan refused to do so without first examining the purported victim and prosecutors, though he indicated that if the victim made clear that she did not want the case to proceed and was aware of the Government's plans to drop the case, he would end the matter. He also expressed concern with the seriousness of the crime charged and about what he perceived to be the Government's attempt to circumvent his refusal to accept the earlier plea agreement. Judge Swan scheduled a hearing for July 17. On June 18, the Government and Richards filed a joint motion to dismiss that reiterated the prosecutor's conclusion that the case lacked merit. The motion was accompanied by supporting affidavits from the purported victim and her mother that made clear that they did not wish the case to be prosecuted and that the purported victim would not testify against Richards.

On July 2, Richards moved to stay the July 17 hearing and to dismiss the case. He also claimed that the original facts, as alleged, had been determined to be false. The Government's response, filed on July 14, concurred with Richards's motion and

Page 778

urged the court to not require the purported victim and her mother to face the burden of having to appear in court.

On July 15, 1997, the Territorial Court promulgated a new local rule that amended Local Rule 128 to include new subsections (b) and (c). These amendments empowered the Territorial Court to refuse to dismiss cases unless the local court determined that the dismissal is "in good faith, in the public interest, and in the interest of justice." Also on July 15, Richards filed a petition in the District Court of the...

To continue reading