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. e du/thir dc ir c uit_2002/76Filed January 31, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-1204

THE UNITED STATES OF AMERICA,

Appellant,

v.

ABRAHAM NEE NTREH.

APPEAL FROM THE DISTRICT COURT

OF THE VIRGIN ISLANDS

(D.C. No. 00-cr-00045) District Judge: The Honorable Raymond L. Finch

Argued December 4, 2001

BEFORE: BECKER, Chief Judge, NYGAARD and COWEN, Circuit Judges.

(Filed January 31, 2002)

Carl F. Morey, Esq. (Argued) Office of United States Attorney 1108 King Street, Suite 201 Christiansted, St. Croix USVI, 00820 Counsel for Appellant

Abraham N. Ntreh (Argued) Pro Se AppelleeOPINION OF THE COURT

NYGAARD, Circuit Judge.

The sole issue in this appeal is whether Appellant, the United States of America, can prosecute a federal f elony offense in the District Court of the Virgin Islands by
information. The District Court below dismissed an information against Appellee, ruling that the Gover nment must proceed by grand jury indictment. Because we f ind the law clear that federal felonies may be pursued by information in the Virgin Islands, we reverse.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Appellee, Abraham Nee Ntreh, was arrested by the Immigration and Naturalization Service in St. Croix and was charged by information with one count of illega l reentry into the United States after having been deported, in violation of 8 U.S.C. S 1326. On August 25, 2000, t he Government filed an eight-count superseding informa tion charging Ntreh with three counts of illegal reentry into the United States, in violation of 8 U.S.C. S 1326; two counts of making false statements to INS agents, in violation of 18 U.S.C. S 1001; one count of illegal entry into the United States, in violation of 8 U.S.C. S 1325; and two co unts of misuse of immigration documents, in violation of 18 U.S.C. S 1546. The case was never investigated by, nor pre sented to, a grand jury.

On the day Ntreh's trial was scheduled to begin, hi s counsel orally moved to dismiss the Information. Nt reh's attorney stated that she "recognize[d] the wording of the Revised Organic Act and the cases that follow," but argued that "the policy and practice . . . since we starte d using a grand jury . . . has been that if the Government is going to proceed to trial that we proceed by indictment." Th e prosecutor responded that Rule 54 of the Federal Ru les of Criminal Procedure permits the Government to procee d by

2indictment or information in the Virgin Islands. Ap parently

perceiving a conflict between Rule 54 and Rule 7, w hich requires proceeding by indictment for an offense wh ich may be punished by imprisonment for a term exceeding on e year, the District Court dismissed the Information with little explanation. The Government filed a Motion t o Reconsider Dismissal of the Information, which the District Court denied without addressing the Government's arguments. The Government appeals.

II.

DISCUSSION

As a preliminary matter, we note that residents of the Virgin Islands have no constitutional right to indi ctment by a grand jury. We recognized in Government of the Vi rgin Islands v. Dowling, 633 F.2d 660, 667 (3d Cir. 1980 ) that "[i]n the unincorporated Territory of the Virgin Is lands the requirement of the Fifth Amendment for indictment o f a grand jury is not applicable." Similarly, the Supre me Court in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), discussed the application of the Constitution to unincorporated territories. The Court stated that i ts
decisions in The Insular Cases

held that not every constitutional provision applies to governmental activity even where the United States has sovereign power. See, e.g., Balzac v. Porto Rico, 258 U.S. 298, 42 S. Ct. 343, 66 L. Ed. 627 (1922 ) (Sixth Amendment right to jury trial inapplicable i n Puerto Rico); Ocampo v. United States, 234 U.S. 91, 34 S. Ct. 712, 58 L. Ed. 1231 (1914) (Fifth Amendment grand jury provision inapplicable in Philippines); Dorr v. United States, 195 U.S. 138, 24 S. Ct. 808, 49 L. Ed. 128 (1904) (jury trial provision inapplicabl e in Philippines); Hawaii v. Mankichi, 190 U.S. 1 97, 23 S. Ct. 787, 47 L. Ed. 1016 (1903) (provision s on indictment by grand jury and jury trial inap plicable in Hawaii); Downes v. Bidwell, 182 U.S. 244, 21 S. Ct. 770, 45 L. Ed. 1088 (1901) (Revenue Clauses of Constitution inapplicable to Puerto Rico). I n Dorr, we

3declared the general rule that in an unincor porated

territory--one not clearly destined for stat ehood-- Congress was not required to adopt "a system of laws which shall include the right of trial by ju ry, and that the Constitution does not, without legislati on and of its own force, carry such right to territory so situated ." 195 U.S., at 149, 24 S. Ct., at 813 (emphasis ad ded). Only "fundamental" constitutional rights are guar anteed to inhabitants of those territories. Id., at 14 8, 24 S. Ct., at 812; Balazc, supra, 258 U.S., at 312-313, 42 S. Ct., at 348; see Examining Board of Engineers, Archi tects and Surveyors v. Flores de Otero, 426 U.S. 572, 599, n. 30, 96 S. Ct. 2264, 2280 n. 30, 49 L. Ed. 2d 65 (1976).

Verdugo-Urquidez, 494 U.S. at 268. Thus, Ntreh has no constitutional right to indictment by a grand jury.

If Ntreh has any right to indictment by a grand jur y in a federal prosecution, it would have to emanate from a federal statute. In the "Revised Organic Act," Cong ress created a bill of rights for the Virgin Islands. 48 U.S.C. S 1561. That act allows offenses against the United States which are prosecuted in the District Court of the V irgin Islands to proceed by either indictment or informat ion. It provides, in part:

The following provisions of and amendments t o the Constitution of the United States are hereby extended to the Virgin Islands to the extent that the y have not been previously extended to that territory a nd shall
have the same force and effect there as in t he United States or in any State of the United States: article I, section 9, clauses 2 and 3; article IV, sect ion 1 and section 2, clause 1; article VI, clause 3; t he first to ninth amendments inclusive; the thirteenth amendment; the second sentence of section 1 of the fourteenth amendment; and the fifteenth and nineteenth amendments: Provided, That all of fenses against the laws of the United States and th e laws of the Virgin Islands which are prosecuted in t he district court pursuant to sections 1612(a) and (c) o f this title may be had by indictment by grand jury or by information, and that all offenses against t he laws of the Virgin Islands which are prosecuted in t he district

4court pursuant to section 1612(b) of this ti tle or in the

courts established by local law shall contin ue to be prosecuted by information, except such as ma y be required by local law to be prosecuted by in dictment by grand jury.

48 U.S.C. S 1561 (emphasis added). The present case
, involving a violation of federal law, was brought i n the District Court pursuant to 48 U.S.C. S 1612(a) whic h vests the District Court of the Virgin Islands with the j urisdiction
of a District Court of the United States. As made c lear in the italicized language above, Congress has clearly stated that offenses which are prosecuted pursuant to S 16 12(a) may be had by indictment or information. Thus, Ntre h had no right to demand indictment by a grand jury, and the Government was well within its statutory authority in choosing to proceed by information.

Further evidence that Congress intended federal cri minal violations in the Virgin Islands to be prosecuted b y either
indictment or information is found in 48 U.S.C.S 16 14(b), titled "Criminal offenses; procedure; definitions; indictment and information," which states:

Where appropriate, the provisions of part II of Title 18 and of Title 28, and, notwithstanding the pr ovisions of rule 7(a) and of rule 54(a) of the Federal R ules of Criminal Procedure relating to the requireme nt of indictment and to the prosecution of crimina l offenses in the Virgin Islands by information, respec tively, the rules of practice heretofore or hereafter pr omulgated and made effective by the Congress or the Su preme Court of the United States pursuant to Title s 11, 18 and 28 shall apply to the district court and appeals therefrom: Provided, That the terms "Attorne y for the government" and "United States attorney" as used in the Federal Rules of Criminal Procedure, sha ll, when applicable to causes arising under the incom e tax laws applicable to the Virgin Islands, mean the A ttorney General of the Virgin Islands or such other person or persons as may be authorized by the laws of the Virgin Islands to act therein: Provided further, Th at in the district court all criminal prosecutions und er the laws of the United States, under local law under sec tion

51612(c) of this title, and under the income tax laws

applicable to the Virgin Islands may be had by indictment by grand jury or by information: Provided further, That an offense which has been inve stigated by or presented to a grand jury may be prosecut ed by information only by leave of court or with t he consent of the defendant. All criminal prosecutions arising
under local law which are tried in the distr ict court pursuant to section 1612(b) of this title sh all continue to be had by information, except such as may be required by the local law to be prosecuted b y indictment by grand jury.

48 U.S.C. S 1614(b) (emphasis added). This section reiterates that federal criminal prosecutions in th e District Court of the Virgin Islands may be commenced by indictment or by information, except that once a ca se has been presented to a grand jury, the case may be pro secuted by information only by leave of court or with the defendant's consent. Ntreh's case never was present ed to a grand jury, so that exception does not apply here.

When Ntreh's counsel made her oral motion to dismis s the information before the District Court, she cont ended
that there is a conflict between Federal Rules of C riminal Procedure 7(a) and 54(a). It appears that the Distr ict Court accepted her argument, although it provided little explanation for its ruling. Rule 7(a), entitled"Use of
Indictment or Information" states:

An offense which may be punished by death sh all be prosecuted by indictment. An offense which m ay be punished by imprisonment for a term exceedin g one year or at hard labor shall be prosecuted by indictment or, if indictment is waived, it may be prose cuted by information. Any other offense may be prosec uted by indictment or by information. An information may be
filed without leave of court.

Fed. R. Crim. P. 7(a). Rule 54, entitled "Applicati on and Exception," states, in part:

These rules apply to all criminal proceeding s in the United States District Courts; in the Distri ct Court of Guam; in the District Court for the Northern Mariana

6Islands, except as otherwise provided in art icles IV and

V of the covenant provided by the Act of Mar ch 24, 1976 (90 Stat. 263); and in the District Cou rt of the Virgin Islands; in the United States Courts of Appeals; and in the Supreme Court of the United State s; except that the prosecution of offenses in the Dist rict Court of the Virgin Islands shall be by indictment or information as otherwise provided by law.

Fed. R. Crim. P. 54(a) (emphasis added). The Govern ment argues, and we agree, there is no conflict between these two rules. Rule 54(a) creates an exception to Rule 7(a) which allows certain offenses in the Virgin Islands to be prosecuted by indictment or information. The phrase "as otherwise provided by law" appears to be a referenc e to 48 U.S.C. SS 1561 and 1614(b). Indeed, the Advisory
Committee Notes to the 1991 Amendment to Rule 54 support this understanding of that language. They s tate:

The amendment to 54(a) conforms the Rule to legislative changes affecting the prosecutio n of federal cases in Guam and the Virgin Islands by indi ctment or information. The "except" clause in Rule 54( a) addressing the availability of indictments b y grand jury [in] Guam has been effectively repealed by P ublic Law 98-454 (1984), 48 U.S.C. S 1424-4 which made the Federal Rules of Criminal Procedure (includi ng Rule 7, relating to use of indictments) applicable i n Guam notwithstanding Rule 54(a). That legislation apparently codified what had been the actual practice i n Guam for a number of years. See 130 Cong. Rec., H2547 6 (daily ed. Sept. 14, 1984). With regard to the Virg in Islands, Public Law 98-454 (1984) also amended 48 U.S .C. SS 1561 and 1614(b) to permit (but not requi re) use of indictments in the Virgin Islands.

Fed. R. Crim. P. 54 advisory committee's note (emph asis added). These Advisory Committee Notes clearly indi cate that indictments may be used in the Virgin Islands, but they are not required. Thus, Ntreh has no right to demand that he be prosecuted only by grand jury indictment

.

The transcript of the hearing before the District C ourt seems to indicate that there may be a local practic e in the

7Virgin Islands of proceeding by information only wh en a

defendant is expected to plead guilty, and this may help explain the District Court's ruling. But any purpor ted local practice certainly cannot negate the clear Congress ional authorization to proceed by information as expresse d in 48 U.S.C. S 1561, 48 U.S.C. S 1614(b), and Fed. R. Cri m. P. 54(a).

III.

CONCLUSION

In sum, and for the above reasons, we hold that the United States of America may prosecute a federal fe lony offense in the District Court of the Virgin Islands by information, and the District Court erred by dismis sing the
Information. We reverse the District Court's dismis sal, and we will remand so the Information may be reinstated

.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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