Government of Virgin Islands v. Rijos

• Decision Date: 06 June 1968
• Docket Number: Crim. No. 4 of 1968,55 of 1967.
• Citation: 285 F. Supp. 126
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. Juan Colon RIJOS. UNITED STATES of America v. Juan Colon RIJOS.
• Court: U.S. District Court — Virgin Islands

285 F. Supp. 126

GOVERNMENT OF the VIRGIN ISLANDS v. Juan Colon RIJOS.

UNITED STATES of America v. Juan Colon RIJOS.

Crim. Nos. 4 of 1968, 55 of 1967.

District Court, Virgin Islands, D. Saint Croix.

June 6, 1968.

COPYRIGHT MATERIAL OMITTED

Almeric L. Christian, U. S. Atty., United States District Court, Christiansted, V. I., for plaintiff.

Ronald H. Tonkin, James, Hodge & Tonkin, Christiansted, V. I., for defendant.

OPINION AND ORDER

CLARY, Chief Judge (sitting by special designation).

The defendant, Juan Colon Rijos, a resident of the Virgin Islands, is charged by the United States with the unlawful importation of a narcotic drug (heroin) into the Virgin Islands, in violation of a Federal statute which forbids such importation. 21 U.S.C. § 174 (No. 55 of 1967). He is also charged by the Government of the Virgin Islands on three other counts, namely: (1) the unlawful possession of 74 packets of a narcotic drug (heroin), 19 V.I.C. § 631(b); (2) the unlawful possession of 1 hypodermic syringe and 5 hypodermic needles, with the intent to use same in the administering of narcotic drugs, 19 V.I.C. § 632(c), and (3) the unlawful possession of an unregistered and unlicensed firearm, in violation of 23 V.I.C. § 451 (No. 4 of 1968).

With respect to the first charge, the unlawful importation of narcotics, the defendant has moved to dismiss on the grounds that he was proceeded against on the basis of an information filed by the United States Attorney, rather than by indictment of a Grand Jury. He alleges that the Fifth Amendment to the Constitution of the United States guarantees this right as to all infamous Federal crimes.¹

It is clear that the crime charged against Rijos is infamous since it carries. with it imprisonment for more than one year, upon conviction. See Rule 7(a) of the Federal Rules of Criminal Procedure; Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909 (1886). Thus, the issue before us is narrowed to the question whether a person who commits an infamous Federal crime in the territory of the Virgin Islands is entitled to a Grand Jury indictment pursuant to the Fifth Amendment.

Although Section 25 of the Revised Organic Act of 1954 (48 U.S.C. § 1615) and Rule 54(a) (1) of the Federal Rules of Criminal Procedure specifically provide that all offenses shall continue to be prosecuted in the District Court of the Virgin Islands by information, except such as may be required by local law to be prosecuted by indictment by Grand Jury, defendant contends that this authorization does not refer to prosecutions of Federal crimes committed in the Virgin Islands. It is true that heretofore cases which have sanctioned this procedure have involved only offenses against the Virgin Islands and not the United States. Soto v. United States, 273 F. 628 (3 Cir. 1921); Rivera v. Government of Virgin Islands, 375 F.2d 988 (3 Cir. 1967). The Circuit Court, in Rivera, held that the right of presentment by the Grand Jury is merely a remedial right which is not among the fundamental rights which Congress must secure for the inhabitants of an unincorporated territory of the United States, such as the Virgin Islands. No distinction between Federal and local offenses was made in Rivera, and in view of the all-embracing language of the Federal Rules and the Organic Act, no such distinction is warranted. This conclusion is further buttressed by the Third Circuit's decision in Government of Virgin Islands v. Solis, 334 F.2d 517 (3 Cir. 1964) where the Court, in applying the Mallory Rule to the Virgin Islands, ruled at 519:

"Considerations of logic and policy underlie the requirement that the Federal Rules be applied to all criminal proceedings in the District Court of the Virgin Islands, whether the crime is proscribed by local or Federal law." (Emphasis supplied)

It is apparent, therefore, that Rule 54(a) (1) applies, whether the crime is local or Federal in nature.

We must now examine whether Rule 54(a) (1) and Section 25 of the Revised Organic Act, which authorize the procedure of information in all offenses against the United States or the Virgin Islands, are constitutional. Such an inquiry must first begin with an examination of the status of the Islands in question. The Virgin Islands are an unincorporated territory of the United States. Smith v. Government of Virgin Islands, 375 F.2d 714 (3 Cir. 1967). As an unincorporated territory, it is subject to the power of Congress which is empowered to make suitable rules and regulations to govern the territory, pursuant to Article 4, Section 3, of the United States Constitution.² All aspects of the Constitution do not ex proprio vigore become operative in these territories, but require positive Congressional action in order for the Constitution to fully apply. It is only those basic fundamental principles inherent in the Constitution which apply automatically. Soto v. United States, 273 F. 628 (3 Cir. 1921). It is settled that the right to trial by jury and Grand Jury presentments are not among those fundamental rights and therefore do not apply to the Virgin Islands without Congressional approval. Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1903); Rasmussen v. United States, 197 U.S. 516, 25 S.Ct. 514, 49 L. Ed. 862 (1905); Balzac v. People of Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922); Rivera v. Government of Virgin Islands, supra. Thus, until a territory is incorporated into the United States, full constitutional guarantees remain in abeyance.

Although the question of whether the Constitution follows the flag in unincorporated territories has been a controversial one, the answer must still remain in the negative in view of these precedents. The rationale for Congressional control over the legal structure and procedure of these unincorporated territories is that Congress should have a free hand in dealing with peoples of an alien and different civilization. This is sensible since it would be unrealistic for a territory accustomed to its own legal traditions and customs to be forced to accept an alien brand of jurisprudence overnight.

The cases of Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1956) and Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L. Ed.2d 268 (1960), cited by defendant in support of his motion, have not impliedly overruled the incorporation doctrine, nor have they diluted its rationale. Both cases involved the power of Congress to expose civilians to trial by military tribunals under military regulations and procedures for offenses against the United States. They were concerned with the effect of a distinct and different constitutional standard, that of Article I, Section 8, Clause 14, which gives Congress the power to "make Rules for the Government and Regulation of the Land and naval Forces * * *." Furthermore, the "Insular Cases", such as Downes and Dorr, were distinguished by the Supreme Court in Reid and Kinsella on the basis that they involved the power of Congress to provide rules and regulations to govern territories with wholly dissimilar traditions and institutions. Reid, supra, 354 U.S. at p. 14, 77 S.Ct. 1222. Although the Court concluded that the "Insular Cases" should not be given any further expansion, this is not to say that they are no longer of any constitutional validity.

Therefore, defendant's motion to dismiss is denied and the Government of the United States is authorized to institute criminal proceedings by information.

The defendant has also moved, pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, to suppress evidence which he alleges was gained from an illegal search of his person and his apartment. In support of this motion, defendant contends that he was arrested without a warrant and without probable cause, in violation of the Fourth Amendment, and therefore the search incident to that unlawful arrest was illegal. With respect to the search of his apartment, defendant alleges that the search warrant was defective because it was based upon an affidavit which claimed that the informant was a reliable source, when, in fact, he was not. Secondly, defendant alleges that the police failed to execute the search warrant properly in that the proper warnings and notice were not given to the apartment's occupants.

A hearing on defendant's motion to suppress was held by this Court on March 29, 1968 at which the following relevant facts were adduced.

On October 13, 1967, Patrolman Carlton Wakefield, a Virgin Islands police officer, secured a warrant to search apartment 242, Building 38, in the Ralph de Chabert Project. Defendant was listed as the lessee of that apartment. The warrant was issued on the basis of an affidavit signed by Patrolman Wakefield in which he stated that a reliable and named informant had told him that he had purchased marijuana from defendant in the past. At Wakefield's request, the informant purchased more of the same on October 13, 1967 which Wakefield examined and determined to be similar to other known quantities of marijuana which affiant had previously examined. The affidavit also recited the fact that the informant has proved reliable in the past.

Pursuant to this warrant, Wakefield, accompanied by five other police officers, arrived at defendant's residence, after securing a key to his apartment from the house project manager. At this juncture, the facts are somewhat in dispute as to whether the officers did in fact knock on the apartment door before inserting the key, and as to whether the door was opened from the inside before the key was turned and the door pushed open. The police maintain that after knocking quite loudly on the door for approximately two minutes and no answer forthcoming, the procured key was inserted to gain entrance. At this time, the police assert that the door was opened from the inside by an...