Gov't of the Virgin Islands v. Vanterpool
| Decision Date | 12 September 2014 |
| Docket Number | No. 13–4400.,13–4400. |
| Citation | 61 V.I. 817,767 F.3d 157 |
| Parties | GOVERNMENT OF the VIRGIN ISLANDS v. Earl A. VANTERPOOL, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
OPINION TEXT STARTS HERE
On Appeal from the District Court of the Virgin Islands (D.C. Cr. No. 3–05–cr–00064–001) Chief Judge: Hon. Curtis v. Gómez 1, District Judge: Hon. Raymond Finch.2
Kyle R. Waldner, Esq., [argued], Quintairos, Prieto, Wood & Boyer, St. Thomas, VI, for Appellant.
Kimberley L. Salisbury, Esq., [argued], Office of Attorney General of Virgin Islands, Department of Justice, St. Thomas, VI, for Appellee.
Before: RENDELL, FUENTES, GREENAWAY, JR., Circuit Judges.
Earl Vanterpool was prosecuted and convicted under V.I.Code Ann. tit. 14, § 706(1) (“Section 706”) for obsessive phone calls and faxes to his ex-girlfriend, Jacqueline Webster. On appeal, we are asked to consider three issues: (1) whether Section 706 is unconstitutional under the First Amendment; (2) whether Vanterpool has shown that his trial counsel's performance amounted to an ineffective assistance of counsel under the Sixth Amendment; and (3) whether there was sufficient evidence in the record to support Vanterpool's multiple convictions.
While we find that the First Amendment challenge would have been viable had it been raised during trial, the plain error standard that we are obligated to apply in this case precludes any grant of the relief sought. By virtue of trial counsel's failure to preserve the First Amendment challenge, however, the prejudice prong of the Strickland test is satisfied. Because the record is insufficiently developed for us regarding whether trial counsel's performance fell below professional norms, we shall remand and order that an evidentiary hearing be held to determine whether the performance of Vanterpool's trial counsel did indeed fall below the Strickland standard.
In May 2004, Jacqueline Webster expressed a desire to end her relationship with Earl Vanterpool because Vanterpool had become possessive and called her frequently. Despite this issue, the two continued to be in contact with each other and did not officially end their relationship until November 2004.
After the end of the relationship, Vanterpool continued to make numerous calls to Webster's phone, and started sending her faxes. Vanterpool would, at times, call Webster as often as six or seven times an hour. (App.49, 52.) Webster informed Vanterpool that she wanted him to stop communicating with her, to no avail.
Following her unsuccessful attempts to stop Vanterpool's communications, Webster went to the police station to file a report. At the police station, Webster was assisted by Sergeant Boynes of the Virgin Islands Police Department. While Webster was speaking with Boynes at the station, Vanterpool called her multiple times. During one such call, Webster handed the phone to Sergeant Boynes, who informed Vanterpool that he was not supposed to be calling Webster and that if he continued to call her, he would be arrested. Vanterpool continued to contact Webster through both phone and fax.
As a result of his behavior, the Government of the U.S. Virgin Islands (“Government”) brought four charges against Vanterpool: (1) one count of harassment by telephone occurring on or about January 6, 2005, in violation of V.I.Code Ann. tit. 14, § 706(1) and V.I.Code Ann. tit. 16, § 91(b)(10); (2) one count of harassment by telephone occurring on or about December 21, 2004, in violation of V.I.Code Ann. tit. 14, § 706(1) and V.I.Code Ann. tit. 16, § 91(b)(10); (3) one count of harassment by written communication occurring on or about January 6, 2006, in violation of V.I.Code Ann. tit. 14, § 706(1) and V.I.Code Ann. tit. 16, § 91(b)(10); and (4) one count of harassment by written communication on or about December 21, 2004, in violation of V.I.Code Ann. tit. 14, § 706(1) and V.I.Code Ann. tit. 16, § 91(b)(10).
Vanterpool and Webster both testified at the ensuing bench trial presided over by Judge Brenda Heller of the Superior Court of the Virgin Islands. The Superior Court found Vanterpool guilty on all four counts; thereafter, Vanterpool filed a timely appeal. The Appellate Division of the District Court of the Virgin Islands (“District Court”), in a per curiam opinion, affirmed Vanterpool's convictions. Vanterpool filed this timely appeal.
The District Court had jurisdiction under V.I.Code Ann. tit. 4, § 33 and this Court has jurisdiction under 28 U.S.C. § 1291 and 48 U.S.C. § 1613a(c).
III. ANALYSISA. First Amendment Challenge
Vanterpool argues that Section 706 is unconstitutional under the First Amendment of the Constitution of the United States. Section 706, in relevant parts, criminalizes the actions of anyone who “with intent to harass or alarm another person ... communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to harass or alarm[.]” V.I.Code Ann. tit. 14, § 706(1). It is uncontested that this constitutional challenge was not raised in the proceedings below, and therefore, the standard of review is plain error. See United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010). Because this standard substantially limits the type of scrutiny that we may apply to Vanterpool's First Amendment challenge, we now review the plain error standard in detail.
Federal Rule of Criminal Procedure 52(b) provides a court of appeals with a limited power to correct errors that were forfeited because they were not timely raised in district court. Fed.R.Crim.P. 52(b) (). Under this standard, “an appellate court may, in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the appellant's substantial rights, which in the ordinary case means' it ‘affected the outcome of the district court proceedings'; and (4) ‘the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Marcus, 560 U.S. at 262, 130 S.Ct. 2159.
The Supreme Court has elaborated upon the “clear or obvious” standard in the seminal case of United States v. Olano, 507 U.S. 725, 731–37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). There, the Court clarified that a “court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.” Id. at 734, 113 S.Ct. 1770. Applied to the present case, if the statute was unconstitutional, then the District Court would have committed error when it applied the statute; but even so, we could reverse only if the error were plain under current law.
While this Court has not expressly commented on this issue, our sister circuits have denied relief when an appellant has raised a constitutional challenge to a statute for the first time on appeal. See, e.g., United States v. Dedman, 527 F.3d 577, 592 (6th Cir.2008) (); United States v. Gore, 154 F.3d 34, 42–43 (2d Cir.1998) () (internal quotation marks omitted); United States v. Wright, 466 F.2d 1256, 1259 (2d Cir.1972) ( ). We find these cases to be persuasive. 3
Here, even if the Virgin Islands statute is unconstitutional, it was far from being “clear under current law.” See Olano, 507 U.S. at 734, 113 S.Ct. 1770. From a review of reported cases, it appears that Section 706 had never been challenged before, let alone construed by a court at the time of Vanterpool's trial.4 Therefore, the plain error review standard does not permit us to reach the constitutional challenge.5
B. Ineffective Assistance of Counsel Claim
Vanterpool argues that his trial lawyer's performance fell below the standard of effective assistance in violation of the Sixth Amendment of the Constitution of the United States.
We first discuss whether we will review the ineffective assistance claim on direct appeal, given that this Court, in general, does not entertain a claim of ineffective assistance of counsel on direct appeal. See, e.g., United States v. Givan, 320 F.3d 452, 464 (3d Cir.2003). Among the reasons that such a claim is not usually cognizable on direct appeal is the very important fact that there will not, in the typical case, exist a record developed enough to assess the efficacy of defense counsel. See United States v. Jake, 281 F.3d 123, 132 n. 7 (3d Cir.2002).
Although we re-affirm this Court's general practice, we find that the unique circumstances here warrant review on direct appeal. Specifically, Vanterpool is unlikely to meet the “in custody” requirement to bring a collateral habeas petition pursuant to a 28 U.S.C. § 2254 claim.6 The Supreme Court has interpreted the statutory language under § 2254 as requiring that the habeas petitioner be “in custody” under the conviction or sentence under “attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490–91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (emphasis added). Here, Vanterpool is no longer “in custody” within the meaning of the habeas statute. Vanterpool was never incarcerated, as his sentence was suspended, and he...
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