Ballantine v. Hendricks, Civ. No. 479/1972.

• Citation: 351 F. Supp. 208
• Decision Date: 03 November 1972
• Docket Number: Civ. No. 479/1972.
• Parties: Warren BALLANTINE et al., Relators, v. Jens HENDRICKS, Acting Commissioner of the Department of Public Safety for the Virgin Islands and The Official in Charge of the Prison Facilities at Fort Christian in St. Thomas, Virgin Islands, Respondent.
• Court: U.S. District Court — Virgin Islands

351 F. Supp. 208

Warren BALLANTINE et al., Relators, v. Jens HENDRICKS, Acting Commissioner of the Department of Public Safety for the Virgin Islands and The Official in Charge of the Prison Facilities at Fort Christian in St. Thomas, Virgin Islands, Respondent.

Civ. No. 479/1972.

District Court, Virgin Islands, D. St. Thomas and St. John.

November 3, 1972.

COPYRIGHT MATERIAL OMITTED

Thomas Ireland, St. Thomas, V. I., for Ballantine.

Frank Padilla, Frederiksted, V. I., for Joseph.

Leroy Mercer, Christiansted, St. Croix, V. I., for Smith.

Mario N. deChabert, Christiansted, St. Croix, V. I., for Gereau.

Mitchell & Hunter, Charlotte Amalie, St. Thomas, V. I., for La Beet.

Joel D. Sacks, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for respondent.

MEMORANDUM OPINION AND ORDER

WARREN H. YOUNG, District Judge.

The relators have petitioned this Court for a Writ of Habeas Corpus. In substance they have claimed five separate grounds for relief: (1) The conditions of their present confinement constitute cruel and unusual punishment. (2) They were denied their right to be prosecuted only upon a Grand Jury indictment. (3) They were denied a preliminary hearing, including the cross-examination of witnesses, to determine probable cause for their continued detention. (4) Bail is excessive. (5) There was unreasonable delay in bringing the relators before a magistrate to be advised of their rights.

This matter was heard on October 24, 1972, at which time the Court took the above contentions under advisement. That afternoon, however, the Court held a conference to inquire into the single issue of the alleged unfair treatment of the relators as pretrial detainees. Believing that this matter would more appropriately be dealt with by Order rather than by habeas corpus, the Court on October 27 entered an Order to govern certain conditions of the relators' confinement. I now address myself to the remaining four grounds for relief. After giving the matter prolonged consideration, I am convinced that all four must be denied at this time.

I

The defendants urge first that they may be prosecuted only after indictment by a Grand Jury. In support of this proposition they refer to 28 U.S.C. § 1861, which states:

It is the policy of the United States that all litigants in Federal Courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes. (Emphasis added)

28 U.S.C. § 1869, the definitional section, goes on to state that the term "Courts" in this statute includes the District Court of the Virgin Islands.¹

For two reasons, however, this contention is wide of the mark. In the first place, this statute does not affirmatively extend a grand jury requirement to the Virgin Islands. Sections 1861 et seq. are instead intended to establish standards to assure proper cross-sectional representation on the jury lists that are drawn up. The Virgin Islands are assuredly subject to these requirements. However, there is no inconsistency in following these jury-list selection criteria while at the same time declining to adopt the Grand Jury as an institution.

Secondly, even if there is an implication in this statute that use of a Grand Jury is itself intended, by its terms it is no more than a general "policy" statement which would be overridden by an Act of Congress specifically drawn to exempt the Virgin Islands from such a requirement.² On several occasions Congress has legislated to this effect. Rule 54(a)(1) of the Federal Rules of Criminal Procedure specifically provides that:

All offenses shall continue to be prosecuted . . . in the District Court of the Virgin Islands by information as heretofore except such as may be required by local law to be prosecuted by indictment by Grand Jury.

Similarly, section 3 of the Revised Organic Act of 1954 provides in pertinent part:

That all offenses shall continue to be prosecuted in the District Court by information as heretofore, except such as may be required by local law to be prosecuted . . . by grand jury.

This last provision was contained in an amendment of August 23, 1968, Pub.L. 90-496, § 11, 82 Stat. 841. It was therefore passed by Congress some five months after the Jury Selection and Service Act relied upon by the defendants. Congress thereby clearly intended that there be no change in the judicial procedures of the Virgin Islands. Moreover, the 1968 amendment also contains a clause repealing all inconsistent legislation. Therefore, even if section 1861 is inconsistent with the provisions of the amended Organic Act — which it is not — the Organic Act would be the most recent and hence the governing law.

Congress thus left the establishment of Grand Juries in the hands of the Virgin Islands Government, to be established or not as they saw fit. The Territorial Legislature has not provided for Grand Juries, but on the contrary stated in 5 V.I.C. § 3581(a) that: "Every felony and every criminal action in the district court shall be prosecuted by information."

The constitutionality of this procedure is well-settled. In Rivera v. Government of Virgin Islands, 375 F.2d 988, 991 (3rd Cir. 1967), the Court of Appeals held that:

The right of presentment by grand jury is merely a remedial right which is not among the fundamental rights which Congress is legislating for a territory not incorporated into the United States, such as the Virgin Islands, must secure to its inhabitants.

This holding has been consistently followed. See, e. g., Soto v. United States, 273 F. 628, 633 (3rd Cir. 1921); Government of the Virgin Islands v. Rijos, 285 F.Supp. 126, 128 (D.V.I.1968); Government of the Virgin Islands v. Bell, 423 F.2d 692 (3rd Cir. 1970), cert. denied, 398 U.S. 937, 90 S.Ct. 1839, 26 L.Ed.2d 269 (1970). This last case, it should be noted, was decided subsequent to the passage of both the Organic Act amendment and the Jury Selection and Service Act of 1968. Moreover, the due process clause was applicable to the Virgin Islands at all relevant times and was therefore found not to be infringed. See the Organic Act of 1936, § 34; Revised Organic Act of 1954, § 3.

II

The defendants claim next that they were deprived of their right to a preliminary hearing, at which they could cross-examine adverse witnesses and challenge the probable cause for their detention before a judicial officer. They rely principally on Rule 5 of the Federal Rules of Criminal Procedure, which establishes procedures for such a hearing, and more generally on the contention that without this step in their prosecution they have been denied the due process of law. For two reasons, however, I must disagree. First, a preliminary hearing is not required where an action is properly initiated by the filing of an information. And secondly, even if the requirement for a preliminary hearing did extend to the Virgin Islands, a sufficient hearing was in fact held.

A. Preliminary Hearing Not Required.

It should be noted first that Rule 5 does not apply to the Virgin Islands. Rule 54(a)(2) instead establishes an exception as follows:

The rules applicable to criminal proceedings before commissioners . . . do not apply to criminal proceedings before other officers empowered to commit persons charged with offenses against the United States.

Rule 5 is thus inapplicable here, since preliminary proceedings are generally held before judges of the Municipal Court. See Rivera v. Government of the Virgin Islands, 375 F.2d 988, 990 n. 1 (3rd Cir. 1967). The relevant procedures are therefore those established by Rule 123 of the Rules Governing the Municipal Courts of the Virgin Islands, 5 V.I.C. App. IV, Rule 123.

While Rule 123 is generally similar to the federal Rule 5, it nonetheless establishes only a

procedural right which is not within the constitutional concept of due process of law and which may, therefore, be cut off by the filing of an indictment or information.

Rivera, supra, at 990. As noted in the first section of this opinion, an information is used in the Virgin Islands as the device equivalent to the Grand Jury indictment in other federal courts. It is also settled that this information is "the full equivalent" of an indictment, and for all purposes. Id.; accord, Government of the Virgin Islands v. Bolones, 7 V.I. 516, 519, 427 F.2d 1135 (3rd Cir. 1970). One function served by an indictment is that it establishes probable cause and cuts off any right to a separate hearing directed to that issue. See, e. g., United States v. Farries, 459 F.2d 1057 (3rd Cir. 1972); Sciortino v. Zampano, 385 F.2d 132 (2nd Cir. 1967), cert. denied, 390 U.S. 906, 88 S.Ct. 820, 19 L. Ed.2d 872 (1968); United States v. Smith, 343 F.2d 847, 850 (6th Cir. 1965). Thus the Court of Appeals unanimously held of the Virgin Islands that

it follows that a preliminary examination is not required as a condition precedent to a prosecution by information citation omitted and that an information may be filed, as was done here, during the pendency of the preliminary proceedings and before a finding of probable cause has been made therein. (Citations omitted)

Rivera, supra, 375 F.2d at 990.

Further support for this position may be found in analogies to other statutes. For example, the proposed new Rule 5 of the Federal Rules of Criminal Procedure would codify the case law and provide that "the preliminary examination shall not be held if the defendant is indicted or, in appropriate cases, if information against the defendant is filed in district court before the date set for the preliminary examination." Proposed Rule 5(d)(2), printed in 48 F.R.D. 563 (1970). Moreover, a similar provision already exists in the Federal Magistrate's Act, 18 U.S.C. § 3060(e):

No preliminary examination . . . shall be required . . . if at any time subsequent to the initial appearance of such person before a judge or magistrate and prior to the

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