United States v. Benjamin
| Decision Date | 22 January 2020 |
| Docket Number | Criminal Action No. 2016-0021 |
| Parties | UNITED STATES OF AMERICA v. JOANNE BENJAMIN, et al., Defendants. |
| Court | U.S. District Court — Virgin Islands |
Attorneys:
St. Croix, U.S.V.I.
For the United States
Kye Walker, Esq.,
St. Croix, U.S.V.I.
For Defendant Joanne Benjamin
Edward L. Barry, Esq.,
St. Croix, U.S.V.I.
St. Croix, U.S.V.I.
For Defendant Lynell Hughes
Yohana M. Manning, Esq.,
St. Croix, U.S.V.I.
For Defendant Thema Liverpool
Renee D. Dowling, Esq.,
St. Croix, U.S.V.I.
St. Croix, U.S.V.I.
For Defendant Indica Greenidge
Mark L. Milligan, Esq.,
St. Croix, U.S.V.I.
For Defendant Nisha Brathwaite
St. Croix, U.S.V.I.
For Defendant Darleen Thompson
John K. Dema, Esq.,
St. Croix, U.S.V.I.
For Defendant Nicolette Alexander
Anthony R. Kiture, Esq.,
St. Croix, U.S.V.I.
THIS MATTER comes before the Court as a result of Defendant Nicolette Alexander's ("Alexander") interlocutory Notice of Appeal (Dkt. No. 754) from this Court's Order of October 5, 2019 (Dkt. No. 742) and her "Emergency Motion for Stay of Trial Pending Interlocutory Appeal" ("Emergency Motion for Stay") (Dkt. No. 826).1 The October 5, 2019 Order denied Defendant Joanne Benjamin's "Emergency Motion to Dismiss Original and Superseding Indictments" (Dkt. No. 491) and Alexander's "Supplemental Motion for Joinder to Joanne Benjamin's Emergency Motion to Dismiss" (Dkt. No. 517) ("Motions to Dismiss"). As discussed below, this Court finds that Alexander's Notice of Appeal is premature given the absence of a final order or judgment, and is thus inadequate to divest this Court of jurisdiction. Accordingly, Alexander's Emergency Motion for Stay (Dkt. No. 826) will be denied and the trial currently scheduled for January 27, 2020 shall proceed, including the counts against Alexander.
A detailed account of the factual background of the pretrial issues in this case is contained in the Court's October 5, 2019 Memorandum Opinion. (Dkt. No. 743). Only the facts necessary for the resolution of the instant matter will be discussed here.
The Defendants' Motions to Dismiss were filed following the Government's disclosure to certain Defendants that an alleged victim of the charged tax fraud scheme was empaneled as a member of the grand jury which issued the Original Indictment in September 2016. (Dkt. No. 743 at 6). The Government asserted that it learned of the grand juror's status as an alleged victim several months after the Original Indictment was returned. Id. at 7. After some delay, the Government presented evidence to a newly constituted grand jury that did not include any alleged victims, and to which no challenge has been made. This resulted in the return of a Superseding Indictment which contained the same charges as the Original Indictment, with minor alterations. Id. at 7.
In its October 5, 2019 Memorandum Opinion, this Court rejected the Defendants' arguments challenging whether the Original Indictment was a "validly pending" Indictment for purposes of its effect on the timeliness of the Superseding Indictment. (Dkt. No. 743). The Court concluded that any defect in the original grand jury proceeding did not constitute structural error requiring dismissal of the Original Indictment without a showing of prejudice. Id. at 16-22. In the absence of structural error, the Court analyzed Defendants' various arguments under the harmless error standard. Id. at 22-24. In so doing, the Court concluded that the issuance of a valid Superseding Indictment—without the taint that allegedly infected the Original Indictment—was an appropriate remedy to cure any prejudice that could have arisen from the original grand jury proceeding. Id. at 22-23.
The Court also rejected Defendants' claims that alleged prosecutorial misconduct warranted the dismissal of the Original Indictment with prejudice. The Court found that the Government's negligence in failing to ascertain the grand juror's conflict did not rise to the level of the "shocking, outrageous, and clearly intolerable" standard set forth in United States v. House, 2015 WL 4111457, at *24 (W.D. Pa. July 8, 2015) (citing United States v. Nolan-Cooper, 115 F.3d 221, 230-31 (3d Cir. 1998)). (Dkt. No. 743 at 25-32).
Defendants also asserted that the Original Indictment was returned in violation of Fed. R. Crim. P. 6(d)(2), which prohibits any person, other than grand jurors, from being present during grand jury deliberations and voting. (Dkt. Nos. 517 at 6-7; 567 at 5-6). In rejecting this argument, the Court found that the grand juror in question was technically "qualified" under Rule 6(b) standards. (Dkt. No. 743 at 33). The Court further found that, even if the grand juror's status as an alleged victim resulted in a violation of Rule 6(d), the issue was subject to harmless error review under Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988), and the Superseding Indictment cured any prejudice. Id.
Finally, this Court rejected Defendants' argument that the Superseding Indictment should be dismissed because it was filed after the statute of limitations expired. (Dkt. No. 743 at 35-41). Applying the reasoning of United States v. Grady, 544 F.2d 598 (2d Cir 1976) and United States v. Friedman, 649 F.2d 199, 203 (3d Cir. 1981), the Court concluded that the due process concerns underpinning the statute of limitations—providing defendants timely notice of the charges and the ability to prepare a defense to the same—were not impaired, and that the Original Indictment was "validly pending" at the time the Superseding Indictment was returned. (Dkt. No. 743 at 34-40). Consequently, under Grady and Friedman, the Court found that the Superseding Indictment related back to the filing of the Original Indictment for statute of limitations purposes. Id.
On October 18, 2019, Alexander filed a Notice of Appeal from the October 5, 2019 Order denying the Motions to Dismiss. (Dkt. No. 754). On October 23, 2019, the Clerk of Court of the Third Circuit issued an Order stating that this Court's Order from which Alexander appealed "may not be final and may not otherwise be appealable at this time," citing United States v. Fisher, 871 F.2d 444 (3d Cir. 1989). (Case No. 19-3423, Doc. No. 003113382594). The parties were ordered to file written responses addressing the finality issue. Id. The Government filed a "Motion to Dismiss Appeal for Lack of Jurisdiction" asserting that Alexander was attempting to appeal from a non-final Order and that the Order in question did not qualify for the narrow exception of the collateral order doctrine. (Case No. 19-3423, Doc. No. 003113395337 at 2-6). In response, Alexander asserted that her appeal did, in fact, fall within the collateral order doctrine, emphasizing the arguments made under Fed. R. Crim. P. 6(d). (Case No. 19-3423, Doc. No. 003113405867 at 10-15). Alexander also asserted that, due to the absence of a valid Indictment, she had the "right not to be tried." (Case No. 19-3423, Doc. No. 003113405867 at 16-22).
As of the date of this Memorandum Opinion, the Third Circuit has not ruled on the Government's Motion to Dismiss. In view of the impending trial of this matter, which is scheduled to commence on January 27, 2020, and the Emergency Motion for Stay, the Court renders this Opinion as the basis for its decision to deny the Emergency Motion for Stay and to proceed with the trial notwithstanding Alexander's appeal.
While the filing of a notice of appeal ordinarily divests the trial court of jurisdiction, the Third Circuit Court of Appeals has concluded that a "notice of appeal from a non-appealable order does not render void for lack of jurisdiction acts of the district court performed during the intervalbetween the filing of the notice and the dismissal of the appeal." United States v. Leppo, 634 F.2d 101, 104 (3d Cir. 1980) (citing United States v. Hitchmon, 602 F.2d 689, 691 (5th Cir.1979)); see also Venen v. Sweet, 758 F.2d 117, 120-21 (3d Cir. 1985) (). The Third Circuit in Leppo, like many other appellate courts, has recognized that to allow the filing of a notice of appeal of a non-appealable order would "leave[] the [trial] court powerless to prevent intentional dilatory tactics, foreclose[] without remedy the nonappealing party's right to continuing trial court jurisdiction, and inhibit[] the smooth and efficient functioning of the judicial process." Leppo, 634 F.2d at 104-05 (citations omitted).2 As noted by the Eighth Circuit, "the delays and disruption attendant upon intermediate appeals are especially inimical to the effective and fair administration of the criminal law." United States v. Grabinski, 674 F.2d 677, 679 (8th Cir. 1982); see also United States v. Fattah, 83 F. Supp. 3d 632, 634 (E.D. Pa. 2015) ()."3
The reasoning underlying this body of law is based on the narrowly interpreted "collateral order" doctrine first recognized in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). Under the collateral order exception to the final judgment rule for appeals, a court of appeals may exercise immediate review of non-final orders that: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) are effectively unreviewable on appeal from a final judgment. United States v. Credico, 646 F. App'x 248,...
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