United States v. Defreitas

• Decision Date: 21 March 2022
• Docket Number: No. 20-3115,20-3115
• Citation: 29 F.4th 135
• Parties: UNITED STATES of America v. Robert DEFREITAS, Appellant
• Court: U.S. Court of Appeals — Third Circuit

29 F.4th 135

UNITED STATES of America

v.Robert DEFREITAS, Appellant

No. 20-3115

United States Court of Appeals, Third Circuit.

Argued December 8, 2021

Filed: March 21, 2022

Richard F. Della Fera [Argued], Suite 1710, 500 East Broward Boulevard, Fort Lauderdale, FL 33394, Counsel for Appellant

Nathan Brooks, Adam Sleeper [Argued], Office of United States Attorney, 5500 Veterans Drive, United States Courthouse, Suite 260, St. Thomas, VI 00802, Counsel for Appellee

Before: McKEE, RESTREPO, and SMITH Circuit Judges

OPINION OF THE COURT

SMITH, Circuit Judge

Robert Defreitas, an enforcement officer for the United States Virgin Islands (U.S.V.I.) Department of Licensing and Consumer Affairs, asked for sexual favors in exchange for not reporting a female immigrant who was unlawfully present in the U.S.V.I. In a one-day trial, the jury convicted Defreitas of soliciting a bribe, V.I. CODE ANN. tit. 14, § 403, and violating the Travel Act, 18 U.S.C. § 1952(a)(3). He was acquitted of a blackmail charge, 18 U.S.C. § 873.

Defreitas appeals his convictions. He asks us to vacate the District Court's judgment, or in the alternative, to certify several questions to the Supreme Court of the Virgin Islands. We decline the invitation to certify any questions, but we take this opportunity to identify several considerations that should guide a court's decision of whether to certify questions to a state's highest court. Additionally, we hold that the evidence presented was insufficient to prove that Defreitas engaged in an "official act" under V.I. CODE ANN. tit. 14, § 403. As a result, we will vacate the judgment of conviction for both offenses and remand to the District Court to enter a judgment of acquittal.

I. BACKGROUND

Defreitas was employed by the Virgin Islands Government as an officer for the Department of Licensing and Consumer Affairs. The Department engages in a variety of consumer protection measures, including ensuring compliance with licensure requirements for workers such as barbers and manicurists. See generally VI CODE ANN. tit. 3, § 272 (describing role of the Department). As a law enforcement officer, Defreitas had the power to issue citations to individuals who were working without a required license.

In August of 2018, Defreitas and his on-duty partner, Tiffany Grosvenor Stevens, visited Deluxe Nail Spa in St. Thomas. There, Defreitas met Lissette Yahaira Cuevas Herrera. Defreitas was wearing a white shirt with the word "Police" emblazoned on the front. After he asked Herrera for her "work papers," she walked to the back of the store. Defreitas followed her, and Herrera then admitted that she did not have a manicurist license and was only helping in the salon temporarily due to some worker absences. Herrera also told Defreitas that she was from the Dominican Republic and did not enter the Virgin Islands through a legal port of entry. When Defreitas followed up by asking for a passport, Herrera admitted that she did not have one.

Defreitas responded by telling Herrera, "we can fix this." Supp. App. at 46. He then touched Herrera on the shoulder and said: "You have a pretty body. I think you have a way of paying." Supp. App. at 54. He asked for her phone number, but Herrera responded by intentionally giving Defreitas an incorrect number. Defreitas tested the phone number and quickly realized it was not correct. He then asked Herrera to give him her actual number, and she did so.

After Defreitas left the salon, Herrera downloaded a call-recording application on her phone. Later that day, when Defreitas called Herrera, she recorded the call—and the recording of that call was eventually played for the jury at trial. The call clearly revealed Defreitas to be soliciting sexual favors in exchange for his not reporting Herrera for a legal violation.¹ After the phone call, Herrera went to the police.

Defreitas was indicted under 18 U.S.C. § 1952(a)(3) ; 18 U.S.C. § 873 ; and V.I. CODE ANN. tit. 14, § 403. The indictment specified that the unlawful activity required to prove a violation of the Travel Act was bribery as defined in § 403. Appellant App. at 12 ("Robert Defreitas used a facility in interstate commerce ... with the intent to ... carry on ... an unlawful activity, that is Solicitation of a Bribe by a Public Employee."). At trial, Herrera testified along with other employees from the salon, as did an expert from AT&T Inc., and Defreitas's partner, Stevens. Of particular import on appeal is Stevens's testimony. When asked by the prosecutor to describe department practice for an officer who encountered someone the officer learned had entered the country illegally, she responded that "[t]he enforcement officer would have to make contact in order to have communication via report to his immediate supervisor. Then the immediate supervisor would make contact with the [sic] immigration." Supp. App. at 114.

At trial, Defreitas did not contest that he asked for sex in exchange for not reporting Herrera.

At the close of the Government's evidence, Defreitas moved for acquittal on three grounds relevant to this appeal.² First, Defreitas argued that he did not commit an "official act" because he did not actually do anything; rather, he refused to do something. Second, he asserted that sexual favors are not an "emolument, gratuity, or reward" under Virgin Islands law. Third, he claimed that § 403 is void for vagueness under the Due Process Clause. The Court denied his motion.

The District Court instructed the jury that before they could find Defreitas guilty of bribery under § 403, the Government needed to prove that he "asked for or received any emolument, gratuity, or reward, or any promise thereof that was not provided by law ... in exchange for an official act." Supp. App. at 189. The Court did not provide the jury with a definition of "official act," nor did either party even attempt to provide a definition of "official act" to the Court prior to its jury charge.

The jury returned a verdict convicting Defreitas of bribery pursuant to V.I. CODE ANN. tit. 14, § 403 and violating the Travel Act pursuant to 19 U.S.C. § 1952(a)(3). As we have noted, the jury acquitted Defreitas of blackmail. In a post-trial motion for acquittal, Defreitas again raised the grounds he presented in his prior motion. And at this juncture, he asked the court to certify questions to the Supreme Court of the Virgin Islands.³ The Court denied this motion as well.

II. JURISDICTION

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and 48 U.S.C. § 1612. We have jurisdiction pursuant to 28 U.S.C. § 1291.

III. CERTIFICATION

In addition to challenging his convictions on the merits, Defreitas asks us to certify questions on the interpretation of V.I. CODE ANN. tit. 14, § 403 to the Supreme Court of the Virgin Islands. That Court's appellate rules provide that we may certify a question of local law for it to resolve if the question "may be determinative of the cause then pending in the certifying court and concerning which it appears there is no controlling precedent in the decisions of the Supreme Court." V.I. R. APP. P. 38. Our local rules similarly provide that we may certify a controlling question of Virgin Islands' law to the Supreme Court of the Virgin Islands for immediate resolution. 3d Cir. L.A.R. Misc. 110.1 (2011) ("When the procedures of the highest court of a state provide for certification ... of questions arising under the laws of that state which will control the outcome of a case pending in the federal court, this court, sua sponte or on motion of a party, may certify such a question to the state court ....")⁴

While our rules provide for certification, we have not identified what considerations our court should take into account when deciding if certification is appropriate. Clearly, it is inappropriate to certify any state-law question solely because its outcome may control a case; federal courts are often required to make faithful predictions of how a state supreme court will rule. See City of Houston, Tex. v. Hill , 482 U.S. 451, 470–71, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) ; Erie R.R. Co. v. Tompkins , 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). But we must always be mindful of the purpose behind certification: that it "does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism." Lehman Bros. v. Schein , 416 U.S. 386, 391, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974). Thus, when faced with the question, a court should consider several factors which will counsel whether certification is appropriate.

First, the relevant question's eventual resolution should be unclear and control an issue in the case. Certifying a question where the answer is clear is inappropriate and unnecessary. See City of Houston , 482 U.S. at 470–71, 107 S.Ct. 2502. But, as we have observed, certifying a question is appropriate if we determine that we cannot predict how a state court would rule. Oberdorf v. Amazon.com Inc. , 818 F. App'x 138, 143 (3d Cir. 2020) (en banc) (certifying a question when we were "unable to predict how the Pennsylvania Supreme Court would rule in this dispute"). Similarly, an immaterial question should not be certified. These first-order considerations will often be dispositive. In fact, our local rules require that the question "control the outcome of a case," 3d Cir. L.A.R. Misc. 110.1 (2011), and jurisdictions within our circuit stress the importance of uncertainty in the determination of whether to accept a certified question. See, e.g. , N.J. CT. R. 2:12A-1 (requiring "no controlling appellate decision, or statute in this case"); DEL. R. SUP. CT. 31 (listing examples of when certification is appropriate including questions of first impression and questions where there are conflicting decisions among state trial courts); PA. R.A.P. 3341 (same).

Second, courts should consider what we will broadly refer to as the "importance" of the question. These "importance" factors...