Government of the Virgin Islands v. Christensen, 80-2525

Decision Date16 March 1982
Docket NumberNo. 80-2525,80-2525
PartiesGOVERNMENT OF THE VIRGIN ISLANDS, Appellant, v. CHRISTENSEN, Arthur, Appellee.
CourtU.S. Court of Appeals — Third Circuit

Ann T. Wallace (argued), U. S. Dept. of Justice, Washington, D. C., Ishmael A. Meyers, U. S. Atty. for the District of the Virgin Islands, Charlotte Amalie, V. I., Martha Ellen Dennis, Asst. U. S. Atty. for the Eastern Dist. of Mich., Detroit, Mich., for appellant.

R. Eric Moore (argued), O'Brien & Moore, Christiansted, V. I., for appellee.

Before HUNTER, VAN DUSEN and SLOVITER, Circuit Judges.

OPINION OF THE COURT

HUNTER, Circuit Judge.

INTRODUCTION

1. Appellee Arthur Christensen was charged with murder in the second degree, in violation of 14 V.I.C. § 922(b)(1957). 1 Following his trial in the District Court for the District of the Virgin Islands, the jury found appellee guilty of the lesser included offense of voluntary manslaughter (14 V.I.C. § 924(1) (1957)). 2

FACTS

2. Between six o'clock and six-thirty on the morning of April 23, 1980, appellee discovered the body of his twenty-three year old common-law wife, Ivelice Grullon de la Cruz ("Grullon"), in the bathtub of her apartment in Frederiksted, St. Croix. Water was running into the bathtub, which was overflowing. An autopsy revealed that death was caused by drowning.

3. In the months preceding the death, the relationship between appellee and Grullon was marked by frequent arguments and fights. The government contends that Grullon's drowning was caused by appellee at the end of one such fight. Appellee asserts that, although he had seen Grullon early on the evening of April 22, he was sleeping at his own apartment at the time of her death.

4. The evidence at trial showed that Grullon had suffered several lacerations and contusions of the head and neck immediately prior to her death. Expert testimony suggested that these injuries were consistent with either an accidental fall, or

intentionally inflicted blows. The remaining evidence consisted primarily of accounts of appellee's relationship with Grullon, testimony regarding appellee's conduct on the evening of April 22, and testimony concerning the evidence found at the scene of the alleged killing.

PROCEDURAL HISTORY

5. After the jury rendered its guilty verdict, appellee filed a motion for a judgment of acquittal under Fed.R.Crim.P. 29(c). No motion for a new trial was made. The district court ruled, during a hearing on the motion for a judgment of acquittal, that much of the oral testimony and physical evidence introduced by the government had not been connected with the appellee, as had been promised by the prosecution. The court ruled that this evidence would not have been admitted had it known that no foundation would be provided. The court also found evidence of prosecutorial and police misconduct before and during appellee's trial. After excluding the evidence that had been improperly exposed to the jury, the court ruled that the remaining evidence was insufficient to support a finding by a reasonable juror that appellee was guilty beyond a reasonable doubt. The court granted appellee's motion, entered a judgment of acquittal, and the Government of the Virgin Islands brought the instant appeal from the district court's order.

ISSUES

6. This appeal raises three issues:

a) Does 18 U.S.C. § 3731 (1976) provide authority for the appeal of an acquittal by the Government of the Virgin Islands?

b) Does this appeal violate the double jeopardy clause within the meaning of § 3731?

c) Did the lower court err in granting appellee's motion for a judgment of acquittal?

7. We have reached the following conclusions:

a) In enacting and enforcing its criminal laws, a territory, unlike a state, acts as an arm of the federal government. Thus, the statute authorizing appeal of an acquittal by the United States also authorizes appeal of an acquittal by the Government of the Virgin Islands.

b) Under the decisional law of the Supreme Court and of this circuit, we have authority under § 3731 to hear government appeals from judgments of acquittal unless the double jeopardy clause precludes such an appeal. Because reversal of the judgment of acquittal here would result in reinstatement of the jury's guilty verdict, rather than retrial of the appellee, the double jeopardy clause is not violated and we may hear the appeal.

c) Viewing the evidence in the light most favorable to the government, we agree with the district court's conclusion that the evidence was insufficient to support the jury's verdict. Therefore, the district court did not err in granting appellee's motion for a judgment of acquittal.

8. Accordingly, the judgment of the district court will be affirmed.

DISCUSSION
Applicability of 18 U.S.C. § 3731 to the Government of the Virgin Islands

9. It is well settled that express statutory authorization is required for an appeal by the government in a criminal case. United States v. DiFrancesco, 449 U.S. 117, 131, 101 S.Ct. 426, 434, 66 L.Ed.2d 328 (1980); United States v. Scott, 437 U.S. 82, 84-85, 98 S.Ct. 2187, 2190-2191, 57 L.Ed.2d 65 (1978). The Government of the Virgin Islands asserts that it has the requisite authority to appeal in this case under 18 U.S.C. § 3731 (1976). Section 3731 provides in part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

Appellee, the defendant below, asserts that this statute provides authority for an appeal only "by the United States," and not by the Government of the Virgin Islands.

10. We disagree. In United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), the Supreme Court was confronted by a claim that federal prosecution of a defendant for a given offense violated the double jeopardy clause when it followed an Indian tribe's prosecution of the defendant for the same offense. Because the tribe's prosecutorial authority derived from a different sovereign than that of the federal prosecutor, the Court held, successive prosecution was allowable, as it would be if the first trial were conducted by a state. The Court contrasted the relationship of the United States to an Indian tribe with that of the United States to a territory:

(A) territorial government is entirely the creation of Congress, "and its judicial tribunals exert all their powers by authority of the United States." (Citations omitted.) When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as an independent political community like a State, but as "an agency of the federal government."

435 U.S. at 321, 98 S.Ct. at 1085, quoting Domenech v. National City Bank, 294 U.S. 199, 204-05, 55 S.Ct. 366, 368-369, 79 L.Ed. 857 (1935) (footnote omitted). The Court continued:

Thus, in a federal Territory and the Nation ... "(t)here is but one system of government, or of laws operating within (its) limits." (Citation omitted.) ... Territory and Nation ... are not two separate sovereigns to whom the citizen owes separate allegiance in any meaningful sense, but one alone.

435 U.S. at 321, 98 S.Ct. at 1085 (footnote omitted).

11. Our recent decision in Government of the Virgin Islands v. Dowling, 633 F.2d 660 (3d Cir.), cert. denied, 449 U.S. 960, 101 S.Ct. 374, 66 L.Ed.2d 228 (1980), recognized the relationship between the federal government and a territory. There we noted a state's right, as an independent sovereign, to punish a criminal defendant for an offense although the federal government has done so previously. We then stated:

This is not true, however, in the case of a territory, since the latter does not have independent sovereignty but derives such powers as its government possesses directly from congressional grant ....

633 F.2d at 669.

12. Treating the Government of the Virgin Islands as a prosecutorial arm of the federal government is consistent with the Supreme Court's recent decision in Arizona v. Manypenny, 451 U.S. 232, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981). In Manypenny, the defendant was prosecuted by the state of Arizona; the case was removed to federal court because the defendant asserted a federal immunity defense. The state sought to appeal the judgment of acquittal entered by the district court, asserting 18 U.S.C. § 3731 as authorization. The Ninth Circuit dismissed the appeal, holding that the statute's authorization of appeals by the United States did not apply to a state. Arizona v. Manypenny, 608 F.2d 1197 (9th Cir. 1979). The court of appeals also rejected the suggestion that the general appeals statute, 28 U.S.C. § 1291 (1976), provided authorization for Arizona's appeal. 608 F.2d at 1199 n.3.

13. The Supreme Court reversed. It stated that

the Court's prior decisions restricting the availability of § 1291 in a criminal context flow from a tradition of requiring that a prosecutorial appeal be affirmatively sanctioned by the same sovereign that sponsors the prosecution.

Manypenny, 451 U.S. at 249, 101 S.Ct. at 1668. Thus, the Court held, § 1291 permits a state's appeal in federal court if the appeal is also authorized by state law. 3

14. Appellee urges us to confine our inquiry to the Virgin Islands Code in seeking authorization for this appeal. This position ignores the import of Wheeler and Dowling-that the United States is the relevant sovereign in this case. Thus, the rule of Manypenny-that a state may appeal in federal court when a state statute would permit its appeal in state court-does not apply here. The prosecutorial authority here is a creation of the federal government; it acts on behalf of the United States. Therefore, a statute authorizing appeal by the United States authorizes appeal by...

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