2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-31-2002

USA v. Ntreh

Precedential or Non-Precedential:

Docket 1-1204

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Ntreh" (2002). 2002 Decisions. Paper 76.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/76
Filed 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 Appellee 
OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

The sole issue in this appeal is whether Appellant, the 

United States of America, can prosecute a federal felony 

offense in the District Court of the Virgin Islands by 

information. The District Court below dismissed an 

information against Appellee, ruling that the Government 

must proceed by grand jury indictment. Because we find 

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 illegal reentry 

into the United States after having been deported, in 

violation of 8 U.S.C. S 1326. On August 25, 2000, the 

Government filed an eight-count superseding information 

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 counts of 

misuse of immigration documents, in violation of 18 U.S.C. 

S 1546. The case was never investigated by, nor presented 

to, a grand jury. 

On the day Ntreh's trial was scheduled to begin, his 

counsel orally moved to dismiss the Information. Ntreh'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 started using a 

grand jury . . . has been that if the Government is going to 

proceed to trial that we proceed by indictment." The 

prosecutor responded that Rule 54 of the Federal Rules of 

Criminal Procedure permits the Government to proceed by 

 2 
indictment or information in the Virgin Islands. Apparently 

perceiving a conflict between Rule 54 and Rule 7, which 

requires proceeding by indictment for an offense which may 

be punished by imprisonment for a term exceeding one 

year, the District Court dismissed the Information with 

little explanation. The Government filed a Motion to 

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 indictment by 

a grand jury. We recognized in Government of the Virgin 

Islands v. Dowling, 633 F.2d 660, 667 (3d Cir. 1980) that 

"[i]n the unincorporated Territory of the Virgin Islands the 

requirement of the Fifth Amendment for indictment of a 

grand jury is not applicable." Similarly, the Supreme 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 its 

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 in 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 inapplicable in 

 Philippines); Hawaii v. Mankichi, 190 U.S. 197, 23 

 S. Ct. 787, 47 L. Ed. 1016 (1903) (provisions on 

 indictment by grand jury and jury trial inapplicable 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). In Dorr, we 

 3 
 declared the general rule that in an unincorporated 

 territory--one not clearly destined for statehood-- 

 Congress was not required to adopt "a system of laws 

 which shall include the right of trial by jury, and that 

 the Constitution does not, without legislation and of its 

 own force, carry such right to territory so situated ." 195 

 U.S., at 149, 24 S. Ct., at 813 (emphasis added). Only 

 "fundamental" constitutional rights are guaranteed to 

 inhabitants of those territories. Id., at 148, 24 S. Ct., at 

 812; Balazc, supra, 258 U.S., at 312-313, 42 S. Ct., at 

 348; see Examining Board of Engineers, Architects 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 jury in a 

federal prosecution, it would have to emanate from a 

federal statute. In the "Revised Organic Act," Congress 

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 Virgin 

Islands to proceed by either indictment or information. It 

provides, in part: 

 The following provisions of and amendments to the 

 Constitution of the United States are hereby extended 

 to the Virgin Islands to the extent that they have not 

 been previously extended to that territory and shall 

 have the same force and effect there as in the United 

 States or in any State of the United States: article I, 

 section 9, clauses 2 and 3; article IV, section 1 and 

 section 2, clause 1; article VI, clause 3; the 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 offenses 

 against the laws of the United States and the laws of 

 the Virgin Islands which are prosecuted in the district 

 court pursuant to sections 1612(a) and (c) of this title 

 may be had by indictment by grand jury or by

 information, and that all offenses against the laws of 

 the Virgin Islands which are prosecuted in the district 

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

 courts established by local law shall continue to be 

 prosecuted by information, except such as may be 

 required by local law to be prosecuted by indictment by 

 grand jury. 

48 U.S.C. S 1561 (emphasis added). The present case, 

involving a violation of federal law, was brought in the 

District Court pursuant to 48 U.S.C. S 1612(a) which vests 

the District Court of the Virgin Islands with the jurisdiction 

of a District Court of the United States. As made clear in 

the italicized language above, Congress has clearly stated 

that offenses which are prosecuted pursuant to S 1612(a) 

may be had by indictment or information. Thus, Ntreh 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 criminal 

violations in the Virgin Islands to be prosecuted by either 

indictment or information is found in 48 U.S.C.S 1614(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 provisions of 

 rule 7(a) and of rule 54(a) of the Federal Rules of 

 Criminal Procedure relating to the requirement of 

 indictment and to the prosecution of criminal offenses 

 in the Virgin Islands by information, respectively, the 

 rules of practice heretofore or hereafter promulgated 

 and made effective by the Congress or the Supreme 

 Court of the United States pursuant to Titles 11, 18 

 and 28 shall apply to the district court and appeals 

 therefrom: Provided, That the terms "Attorney for the 

 government" and "United States attorney" as used in 

 the Federal Rules of Criminal Procedure, shall, when 

 applicable to causes arising under the income tax laws 

 applicable to the Virgin Islands, mean the Attorney 

 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, That in the 

 district court all criminal prosecutions under the laws of 

 the United States, under local law under section 

 5 
 1612(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 investigated by 

 or presented to a grand jury may be prosecuted by 

 information only by leave of court or with the consent 

 of the defendant. All criminal prosecutions arising 

 under local law which are tried in the district court 

 pursuant to section 1612(b) of this title shall continue 

 to be had by information, except such as may be 

 required by the local law to be prosecuted by 

 indictment by grand jury. 

48 U.S.C. S 1614(b) (emphasis added). This section 

reiterates that federal criminal prosecutions in the District 

Court of the Virgin Islands may be commenced by 

indictment or by information, except that once a case has 

been presented to a grand jury, the case may be prosecuted 

by information only by leave of court or with the 

defendant's consent. Ntreh's case never was presented to a 

grand jury, so that exception does not apply here. 

When Ntreh's counsel made her oral motion to dismiss 

the information before the District Court, she contended 

that there is a conflict between Federal Rules of Criminal 

Procedure 7(a) and 54(a). It appears that the District 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 shall be 

 prosecuted by indictment. An offense which may be 

 punished by imprisonment for a term exceeding one 

 year or at hard labor shall be prosecuted by indictment 

 or, if indictment is waived, it may be prosecuted by 

 information. Any other offense may be prosecuted by 

 indictment or by information. An information may be 

 filed without leave of court. 

Fed. R. Crim. P. 7(a). Rule 54, entitled "Application and 

Exception," states, in part: 

 These rules apply to all criminal proceedings in the 

 United States District Courts; in the District Court of 

 Guam; in the District Court for the Northern Mariana 

 6 
 Islands, except as otherwise provided in articles IV and 

 V of the covenant provided by the Act of March 24, 

 1976 (90 Stat. 263); and in the District Court of the 

 Virgin Islands; in the United States Courts of Appeals; 

 and in the Supreme Court of the United States; except 

 that the prosecution of offenses in the District 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 Government 

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 reference 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 state: 

 The amendment to 54(a) conforms the Rule to 

 legislative changes affecting the prosecution of federal 

 cases in Guam and the Virgin Islands by indictment or 

 information. The "except" clause in Rule 54(a) 

 addressing the availability of indictments by grand jury 

 [in] Guam has been effectively repealed by Public Law 

 98-454 (1984), 48 U.S.C. S 1424-4 which made the 

 Federal Rules of Criminal Procedure (including Rule 7, 

 relating to use of indictments) applicable in Guam 

 notwithstanding Rule 54(a). That legislation apparently 

 codified what had been the actual practice in Guam for 

 a number of years. See 130 Cong. Rec., H25476 (daily 

 ed. Sept. 14, 1984). With regard to the Virgin Islands, 

 Public Law 98-454 (1984) also amended 48 U.S.C. 

 SS 1561 and 1614(b) to permit (but not require) use of 

 indictments in the Virgin Islands. 

Fed. R. Crim. P. 54 advisory committee's note (emphasis 

added). These Advisory Committee Notes clearly indicate 

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 Court 

seems to indicate that there may be a local practice in the 

 7 
Virgin Islands of proceeding by information only when a 

defendant is expected to plead guilty, and this may help 

explain the District Court's ruling. But any purported local 

practice certainly cannot negate the clear Congressional 

authorization to proceed by information as expressed in 48 

U.S.C. S 1561, 48 U.S.C. S 1614(b), and Fed. R. Crim. P. 

54(a). 

III. 

CONCLUSION 

In sum, and for the above reasons, we hold that the

United States of America may prosecute a federal felony 

offense in the District Court of the Virgin Islands by 

information, and the District Court erred by dismissing the 

Information. We reverse the District Court's dismissal, 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 

 8