NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 09-1747 

___________ 

GOVERNMENT OF THE VIRGIN ISLANDS 

v. 

STACEY AMBROSE, 

 Petitioner 

______________________________________ 

On Writ of Certiorari from the Supreme Court 

of the Virgin Islands 

(S. Ct. No. 2007-00041) 

_______________________________________ 

Argued: December 15, 2010 

Before: McKEE, Chief Judge, FUENTES and 

SMITH, Circuit Judges

(Opinion filed: July 21, 2011) 

PAMELA LYNN COLON, ESQ. (Argued) 

Law Office of Pamela Lynn Colon, Esq. 

27 & 28 King Cross Street, 1st Floor 

Christiansted, St. Croix 

United States Virgin Islands 

Attorney for Petitioner

VINCENT F. FRAZER, ESQ. 

Attorney General 

ELLIOTT M. DAVIS, ESQ. 

Solicitor General 

MATTHEW PHELAN, ESQ. (Argued) 

Assistant Attorney General 

3439 Kronprindsens Gade 

1 
GERS Complex, 2nd Floor 

St. Thomas, United States Virgin Islands 

Attorneys for Respondent

OPINION 

PER CURIAM 

 We granted Stacey Ambrose’s petition for a writ of certiorari to review a decision 

of the Supreme Court of the Virgin Islands which reversed his convictions for third 

degree assault and unlawful possession of a firearm during the commission of a crime of 

violence. The Supreme Court remanded his case to the Superior Court of the Virgin 

Islands for a new trial. However, for the reasons that follow, we find that the writ of 

certiorari was improvidently granted and we will therefore dismiss the writ for lack of 

jurisdiction. 

I.

 Following a jury trial in the Superior Court, Ambrose was convicted of third 

degree assault (Count 1) and unlawful possession of a firearm during the commission of a 

crime of violence (Count 2). The trial judge sentenced Ambrose to 5 years imprisonment 

on Count 1 and 15 years imprisonment on Count 2, consecutive to Count 1. 

 Thereafter, Ambrose appealed to the Supreme Court of the Virgin Islands. He 

raised four issues: (1) a Sixth Amendment jury unanimity argument; (2) a Sixth 

Amendment argument based on the variance between the amended and superseding 

amended informations and the verdict; (3) an argument that there was insufficient 

evidence to convict him of the weapon possession charge; and (4) a Confrontation Clause 

challenge to that same conviction based on the admission of a handgun license report 

2 
prepared by a police officer who did not testify at trial. Ambrose sought a remand to the 

Superior Court with instructions to enter judgments of acquittal on Counts 1 and 2. 

 The Supreme Court reversed the convictions on Counts 1 and 2 and remanded for 

a new trial, after finding a lack of juror unanimity. Ambrose v. People of the Virgin 

Islands, 2008 WL 5422862 (V.I. Dec. 18, 2008). In doing so, the Court noted that 

Ambrose had raised other arguments but concluded that “it is not necessary” to address 

them in light of its favorable ruling on the juror unanimity issue. Id. at *1 n.2 and n.4. 

 Ambrose then filed this petition for a writ of certiorari pursuant to 48 U.S.C. § 

1613 and Third Circuit LAR 112.2.1

 We granted the writ by an order dated May 29, 

2009. The order reads as follows: 

The foregoing petition for a writ of certiorari is granted 

limited to the following questions: (1) whether petitioner was 

entitled to relief on the merits of his arguments based on the 

filing of multiple criminal informations against him and that 

his conviction on Count Two (weapon possession) was not 

supported by sufficient evidence; (2) whether relief on either 

of those arguments would have entitled petitioner to a remand 

with an instruction to enter a judgment of acquittal instead of 

a remand for a new trial, see, e.g., Burks v. United States, 437 

U.S. 1, 15-18 (1978); McMullen v. Tennis, 562 F.3d 231, 237 

(3d Cir. 2009); Government of the Virgin Islands v. Joseph, 

765 F.2d 394, 396, 399 (3d Cir. 1985); and (3) whether the 

Virgin Islands Supreme Court erred in declining to address 

those arguments. In addition to these questions, the parties 

are directed to brief the issue of whether this Court has 

jurisdiction pursuant to 48 U.S.C.§ 1613 given the Virgin 

Islands Supreme Court’s decision to remand this matter for 

retrial. 

 48 U.S.C. § 1613 provides as follows: 

 

1

 Third Circuit LAR 112.2 explains how to petition for a writ of certiorari. 

3 
The relations between the courts established by the 

Constitution or laws of the United States and the courts 

established by local law with respect to appeals, certiorari, 

removal of causes, the issuance of writs of habeas corpus, and 

other matters or proceedings shall be governed by the laws of 

the United States pertaining to the relations between the 

courts of the United States, including the Supreme Court of 

the United States, and the courts of the several States in such 

matters and proceedings: Provided, That for the first fifteen 

years following the establishment of the appellate court 

authorized by section 1611(a) of this title,2 the United States 

Court of Appeals for the Third Circuit shall have jurisdiction 

to review by writ of certiorari all final decisions of the highest 

court of the Virgin Islands from which a decision could be 

had. The Judicial Council of the Third Circuit shall submit 

reports to the Committee on Energy and Natural Resources of 

the Senate and the Committee on Natural Resources of the 

House of Representatives at intervals of five years following 

the establishment of such appellate court as to whether it has 

developed sufficient institutional traditions to justify direct 

review by the Supreme Court of the United States from all 

such final decisions. The United States Court of Appeals for 

the Third Circuit shall have jurisdiction to promulgate rules 

necessary to carry out the provisions of this section. 

(emphasis added). 

For our purposes, the emphasized portion of the text of § 1613 is crucial because it 

limits our jurisdiction to reviewing “final decisions of the highest court of the Virgin 

Islands from which a decision could be had.” 48 U.S.C. § 1613. The Supreme Court’s 

order here is not a “final decision” because it remands Ambrose’s case to the Superior 

Court for further proceedings, i.e., a retrial on Counts 1 and 2. The remand for a new 

 

2

 Which provides: “The judicial power of the Virgin Islands shall be vested in a court of 

record designated the ‘District Court of the Virgin Islands’ established by Congress, and 

in such appellate court and lower local courts as may have been or may hereafter be 

established by local law.” 48 U.S.C. § 1611(a). 

4 
trial creates a particularly serious problem when considering finality. As we have just 

noted, the Supreme Court reversed both convictions and remanded for a new trial, and 

therefore concluded that it did not have to address the other issues Ambrose raised in his 

appeal. The Court’s failure to address the remaining issues is problematic given the 

remand for a new trial. 

 The remedy for most kinds of trial error is a new trial, not a judgment of acquittal, 

because the Double Jeopardy Clause usually does not bar a new trial when a conviction is 

set aside on appeal. See, e.g., McMullen v. Tennis, 562 F.3d 231, 237 (3d Cir. 2009). 

This principle clearly applies to Ambrose’s arguments regarding juror unanimity, see 

Evans v. Court of Common Pleas, 959 F.2d 1227, 1236 (3d Cir. 1992) (double jeopardy 

clause does not bar retrial when jury fails to reach unanimous verdict), and the 

Confrontation Clause. See United States v. Chandler, 326 F.3d 210, 225 (3d Cir. 2003) 

(remanding for a new trial following Confrontation Clause violation). This principle, 

however, does not apply when an appellate court sets aside a verdict because it is not 

supported by sufficient evidence. See McMullen, 562 F.3d at 237 (discussing, inter alia, 

Burks v. United States, 437 U.S. 1 (1978)). There, the proper remedy is a remand with an 

instruction to enter a judgment of acquittal. See id. This follows from the fact that an 

appellate ruling that the evidence submitted to the jury was insufficient to convict is the 

functional equivalent of an acquittal for double jeopardy purposes; thus, no retrial can 

occur without violating the prohibition against Double Jeopardy. Id. 

 As noted, in his appeal to the Supreme Court, Ambrose claimed that there was 

insufficient evidence to sustain his weapon possession conviction, but the claim was not 

5 
addressed because of the Court’s favorable ruling on his challenge to the jury’s 

unanimity. However, remanding for a new trial under the circumstances here was 

inconsistent with the protection against Double Jeopardy because Ambrose was thereby 

exposed to a retrial even though the original guilty verdict may not have been supported 

by evidence that was sufficient to establish his guilt beyond a reasonable doubt. If he 

could have established such a failure of proof, he would have been entitled to a judgment 

of acquittal, not a retrial which would have allowed the government the proverbial 

“second bite of the apple.” See, e.g., United States v. Dotson, 871 F.2d 1318, 1324 (6th 

Cir. 1989) (“While we have determined that the jury charge on these counts was 

inadequate, we find it necessary to consider the sufficiency-of-the-evidence issue in order 

to determine the proper scope of our remand. If the evidence at trial was insufficient to 

support [defendant’s] conviction . . . then we would be compelled to remand for an entry 

of judgment of acquittal. If, on the other hand, the evidence was sufficient . . . we would 

merely remand for further consistent proceedings. The sufficiency-of-the-evidence issue 

is therefore necessary for the resolution of our case.”) (citations omitted). 

 The Court’s failure to address Ambrose’s claim of a variance between the 

informations and the verdict creates a similar problem. On two occasions, we have 

remanded for the entry of a judgment of acquittal instead of a new trial after granting 

relief on variance arguments similar to Ambrose’s. See Government of the Virgin Islands 

v. Joseph, 765 F.2d 394, 399 (3d Cir. 1985); Government of the Virgin Islands v. Aquino, 

378 F.2d 540, 554 (3d Cir. 1967). Once again, the Supreme Court’s remand for a new 

trial is in potential violation of Ambrose’s Double Jeopardy rights. 

6 
 We are therefore faced with reviewing an order of the Virgin Islands Supreme 

Court that is not final on its face as it remands for further proceedings. Yet, which may 

be final insofar as it allows Ambrose to be subjected to a retrial that would violate his 

Fifth Amendment guarantee against Double Jeopardy from which he would have no 

appeal because any appeal would necessarily come after the very trial that would violate 

his Fifth Amendment protection. It is within this procedural context that we must 

determine if the Supreme Court’s order remanding for a new trial is a “final decision” 

over which we have certiorari review. 

 To further complicate things, the order granting the writ of certiorari specifically 

directed the parties to “brief the issue of whether this Court has jurisdiction pursuant to 

48 U.S.C. § 1613 given the Virgin Islands Supreme Court’s decision to remand this 

matter for retrial.” However, for reasons known only to defense counsel and the 

government, neither Ambrose nor the Government of the Virgin Islands has bothered to 

address that all important issue.3

 Rather, both counsel completely ignored that portion of 

our order. Instead, they simply pasted boilerplate into their briefs stating that we have 

jurisdiction pursuant to 48 U.S.C. § 1613 and Third Circuit LAR 112.2. 

Nevertheless, “we have a special obligation to satisfy ourselves of our own 

jurisdiction even if the parties agree that we have jurisdiction.” In re Seven Fields 

Development Corp., 505 F.3d 237, 244 n.4 (3d Cir. 2007) (citation, internal quotation 

 

3

 The parties also did not bother to brief the issue of whether the Supreme Court of the 

Virgin Islands erred in declining to address the first two issues upon which the writ was 

granted. 

7 
marks and brackets omitted). 

Here, we cannot conclude that the order of the Supreme Court is final because it 

contemplates additional proceedings on remand to the trial court. Accordingly, we find 

that the writ of certiorari was improvidently granted and will dismiss the writ of lack of 

jurisdiction. 

8 
9 

McKEE, Chief Judge, concurring. 

 Because we must dismiss the writ of certiorari as improvidently granted, the order 

of the Supreme Court of the Virgin Islands remains in place. See Alvarez v. Smith, 

U.S. , 130 S.Ct. 576, 584 (2009) (Stevens, J., concurring in part and dissenting in part). 

However, as explained, that order, remanding for a new trial on Counts 1 and 2, 

implicates Ambrose’s important constitutional right under the Double Jeopardy Clause 

not to again stand trial on charges for which he contends he is entitled to judgments of 

acquittal. Therefore, in order to avoid a violation of that important right, I strongly 

suggest that the Supreme Court of the Virgin Islands vacate sua sponte its December 18, 

2008 remand order, reopen Ambrose’s appeal and address his arguments that he is 

entitled to judgments of acquittal on Counts 1 and 2. That is the only way to rescue this 

appeal from the procedural limbo that could otherwise result as any further proceeding in 

the trial court to resolve the questions left unanswered by the Supreme Court would pose 

a serious conflict with the Double Jeopardy Clause if either of his two unanswered 

claims is determined to have merit.