1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-8-1997

Govt of V.I. v. Blake

Precedential or Non-Precedential:

Docket 96-7769

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Recommended Citation

"Govt of V.I. v. Blake" (1997). 1997 Decisions. Paper 149.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/149
Filed July 8, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-7769 

GOVERNMENT OF THE VIRGIN ISLANDS, 

Appellant 

v. 

ZACCHAEAS BLAKE; LEON NISBETT 

On Appeal from the United States 

District Court of the Virgin Islands, 

Division of St. Croix 

(D.C. Criminal Action No. 95-cr-00004) 

Argued: April 8, 1997 

Before: BECKER, ROTH and 

WEIS, Circuit Judges

(Opinion Filed July 8, 1997) 
Alva A. Swan 

Acting Attorney General 

Paul L. Gimenez 

Solicitor General 

Maureen Phelan Cormier 

 (Argued) 

Assistant Attorney General 

Office of the Attorney General 

 of the Virgin Islands 

Department of Justice 

48B-50 Kronprindsens Gade 

Charlotte Amalie, St. Thomas 

USVI, 00802 

 Attorneys for Appellant 

Harold W. Willocks, Esq. (Argued) 

Chief Territorial Public Defender 

1-B Estate Clifton Hill 

Kingshill, St. Croix 

USVI, 00850 

Kathryn D. Slade, Esq. 

Territorial Public Defender 

46-47 Company Street 

Christiansted, St. Croix 

USVI 

 Attorneys for Appellee Nisbett 

Michael A. Joseph, Esq. 

Suite 1 

52A Company Street 

Christiansted, St. Croix 

USVI, 00820 

 Attorney for Appellee Blake 

OPINION OF THE COURT 

ROTH, Circuit Judge: 

 2 
This case requires us to interpret a Virgin Islands statute 

permitting the government to appeal, during a criminal 

trial, a ruling "involving a substantial and recurring 

question of law which requires appellate resolution." 4 

V.I.C. § 39(d) (Supp. 1996-1997). During the trial of 

defendants Zacchaeas Blake and Leon Nisbett, who were 

charged with third degree assault and possession of a 

firearm during a crime of violence, the Territorial Court of 

the Virgin Islands excluded certain of the government's 

evidence. In order to challenge these evidentiary rulings, 

the government moved for, and the trial court granted, 

leave for an immediate appeal under 4 V.I.C. § 39(d). The 

District Court of the Virgin Islands, however, dismissed the 

appeal for lack of jurisdiction, reasoning that the issues 

presented on appeal did not come within the ambit of the 

statute. This appeal presents us with the question whether 

the trial court's rulings involve a "substantial and recurring 

question of law which requires appellate resolution" within 

the meaning of 4 V.I.C. § 39(d). Because we conclude that 

they do not, we affirm the district court's order and remand 

the case to the district court for remand to the territorial 

court. 

I. FACTS 

According to the government, early in the morning of 

April 29, 1994, Wilson David and his four-year old son were 

driving home from David's sister's house. As they got out of 

their truck, four shots were fired at them. Neither was 

injured. David identified the man who fired the shots as 

Zacchaeas Blake and the man who accompanied him as 

Leon Nisbett, both of whom he knew previously. David's 

niece, who came out of David's apartment after hearing the 

gunfire, identified Blake as holding a gun and Nesbitt as 

sitting inside a maroon Honda. Blake allegedly asked David, 

before shooting, why David was "looking" at him. Nisbett 

and Blake were arrested and charged with four counts each 

of third degree assault under 14 V.I.C. §§ 297(2) and (3) 

(1996), and one count each of possession of a firearm 

during the commission of a crime of violence in violation of 

14 V.I.C. § 2253(a) (1996). 

 3 
On the morning of trial, the court asked to hear pretrial 

motions. The defense moved to exclude some photographs, 

apparently of the crime scene, that the government had 

produced for the first time that morning. After some 

discussion about the motion, but before ruling, the

territorial court decided first to select a jury and then to 

consider the pretrial motions. 

The judge selected the jury, had it sworn in, and then 

recessed for lunch. During the recess the court considered 

the motions. It first excluded the photographs on the 

grounds that they were not provided to the defendants 

before the morning of trial. Defendants also moved to 

exclude testimony by David, the complaining witness, that 

Blake "used to hang out with a guy that shot me[David] 

once." After inquiring whether the statement in question 

went to a possible motive by Blake for the alleged shooting, 

the court excluded the evidence because "the prejudice that 

it will form in the minds of this jury will outweigh the 

probative value." Nisbett then moved to exclude the

introduction of certain physical evidence on the ground that 

it was not relevant. Blake moved to exclude the same 

evidence because the government had not produced it

during discovery. The evidence -- a 9 millimeter live round, 

knife casings, a projectile, knives, and one billy club -- was 

found in the maroon Honda, which was registered in 

Joshua Blake's name, but the government had not charged 

that the evidence was used in the commission of the

present offense. The court accordingly concluded that this 

evidence was "going to unduly prejudice this jury," and 

excluded it as to Nisbett. The court granted Blake's motion 

as well. Finally, the court excluded expert testimony by 

Officer Hitesman because the defense had requested the 

results of any scientific tests, and the government had 

identified none. 

The government sought an immediate appeal under 4 

V.I.C. § 39(d), which provides for appeals by the government 

during criminal trials if the government certifies that the 

appeal involves "a substantial and recurring question of law 

which requires appellate resolution." The court granted the 

motion and then declared a mistrial. It noted that the 

statute calls for adjournment of the trial but reasoned that 

 4 
an appeal would last too long to keep the same jury. 

Counsel for Blake's attorney stated that he had no 

objection to declaring a mistrial. After the trial, the 

government submitted written certification, and on 

November 18, 1994, the court entered a written order that 

"the Government's Motion for Leave to Appeal from 

Interlocutory Rulings Suppressing Evidence is hereby 

GRANTED." 

The district court dismissed the appeal for lack of

jurisdiction. It reasoned that the case did not involve 

substantial and recurring questions of law and that the 

appeal was accordingly not permitted under 4 V.I.C. § 39. 

The court also noted that it "seriously questions whether a 

statute allowing the Government such an appeal during a 

criminal trial after jeopardy attached can withstand 

constitutional analysis." For these two reasons, and 

because of the "general bias" against interlocutory appeals 

in criminal cases, the district court concluded that the 

territorial court erred in giving leave to appeal under 4 

V.I.C. § 39, and it dismissed the case. This appeal followed. 

II. JURISDICTION 

Before exploring the specific jurisdictional question that 

this case presents, we outline the general jurisdictional 

framework for appeals from decisions of the district courts 

of the Virgin Islands. 

Federal law provides that this Court has jurisdiction over 

"appeals from all final decisions of the district court on 

appeal from the courts established by local law." 48 U.S.C. 

§ 1613a(c); see 28 U.S.C. § 1291. In this case, the decision 

of the district court was on appeal from a court established 

by local law; if that decision was "final," this Court has 

jurisdiction. In In re Alison, 837 F.2d 619 (3d Cir. 1988), we 

considered a decision of the district court which reversed a 

territorial court's ruling that the plaintiff had failed to state 

a cause of action. The district court's order was not "final," 

because that order merely concluded that the plaintiff had 

stated a cause of action and remanded the case for further 

proceedings. See generally, Caitlin v. United States, 324 

U.S. 229, 233 (1945); Quackenbush v. Allstate, 116 S.Ct. 

1712, 1718-1719 (1996). 

 5 
In this case, however, we are called upon only to decide 

the scope of the district court's own jurisdiction. The 

district court did not reach the merits of the dispute, and 

neither do we. Under these circumstances review is 

appropriate under the collateral order doctrine. See In re.

Ford Motor Co., 110 F.3d 954, 959 (3d Cir. 1997). The 

Virgin Island's legislature explicitly permits appeals during 

criminal trials, thus the efficiency interests that animate 

the final judgment rule are not at work here. Id. at 

959-961. Moreover, this issue is separable from the merits, 

was conclusively decided by the district court, is 

unreviewable on appeal, and involves an unresolved 

question of law -- the scope of § 39(d). The problems that 

generally accompany application of the collateral order 

doctrine in criminal cases, see, e.g. , United States v.

McVeigh, 106 F.3d 325, 330 (10th Cir. 1997), are not at 

work here because we are applying a statute that itself calls 

for interlocutory appeals. See also, In re A.M., 34 F.3d 153, 

156 (3d Cir. 1994) (applying the collateral order doctrine in 

a criminal case in which the district court decision affirmed 

a territorial court's order that a minor be transferred for 

prosecution as an adult). 

The district court's jurisdiction over the appeal from the 

territorial court is derived from a federal law providing that 

the district courts of the Virgin Islands shall have "such 

appellate jurisdiction over the courts of the Virgin Islands 

as established by local law to the extent now or hereafter 

prescribed by local law." 48 U.S.C. § 1613a(a). Turning to 

the local law, the Virgin Islands Code, in a section entitled 

"Appellate jurisdiction," states that the "district court has 

appellate jurisdiction to review the judgments and orders of 

the territorial court. . .in all criminal cases in which the 

defendant has been convicted, other than on a plea of 

guilty." 4 V.I.C. § 33 (Supp. 1996-1997). 

Section 33 would preclude an appeal to the district court 

in this case, because the defendant has not been convicted. 

The territorial court relied, however, on section 39 of the 

Virgin Islands Code, entitled "Appeals by the United States 

and the Government of the Virgin Islands." 4 V.I.C. § 39. 

Section 39 provides for appeals in situations where the 

defendant has not been convicted, but does not explicitly 

 6 
mention to which court the appeal may be taken. We 

nonetheless conclude that, where applicable, § 39 does 

grant appellate jurisdiction to the district courts of the 

Virgin Islands. To conclude otherwise would seriously 

circumscribe the availability of an appeal under this section.1 

Moreover, before the enactment of § 39, § 33 included the 

sentence "appeals in criminal cases may be taken only by 

the defendant." This sentence was eliminated when§ 39 

was added to the Code. Act No. 3321, 1972 V.I. Sess. Laws 

464, 464 (October 25, 1972). It was thus the obvious intent 

of the legislature to ensure that the district courts did have 

jurisdiction over appeals by the government if so permitted 

under § 39. 

III. A SUBSTANTIAL AND RECURRING QUESTION OF 

LAW 

We now turn to the issue in this case -- whether this 

appeal to the district court was permissible pursuant to 

§ 39. The section reads: 

§ 39. Appeals by the United States and the 

Government of the Virgin Islands

(a)(1) The United States or the Government of the 

Virgin Islands may appeal an order, entered before the 

trial of a person charged with a criminal offense under 

the laws of the Virgin Islands, which directs the return 

of seized property, suppresses evidence, or otherwise 

denies the prosecutor the use of evidence at trial, if the 

United States Attorney or the Attorney General 

conducting the prosecution for such violation certifies 

to the Judge who granted such motion that the appeal 

_________________________________________________________________ 

1. Under such a reading of § 39, appeals would be permitted in cases 

that were tried in the district court, but appeals would not be permitted 

to the district court from trials in the territorial court. See, Government

of the Virgin Islands v. Testamark, 570 F.2d 482, 483 n.2 (3d Cir. 1978) 

(permitting an appeal from a trial in the district court under 4 V.I.C. 

§ 39(c)), but see Government of the Virgin Islands v. David, 741 F.2d 653, 

654 n.2 (3d Cir. 1984) (expressing doubt as to whether this provision of 

the Virgin Islands Code applies to appeals from trials in the district 

court). If the dicta in David is correct,§ 39 would have no force 

whatsoever if it did not apply to trials in the territorial court. 

 7 
is not taken for the purpose of delay and the evidence 

is a substantial proof of the charge pending against the 

defendant. 

(2) A motion for the return of seized property or to 

suppress evidence shall be made before trial unless

opportunity therefor did not exist or the defendant was 

not aware of the grounds for the motion. 

(b) The United States or the Government of the Vir gin 

Islands may appeal a ruling made during the trial of a 

person charged with a criminal offense under the laws 

of the Virgin Islands which suppresses or otherwise

denies the prosecutor the use of evidence on the 

ground that it was invalidly obtained, if the United 

States Attorney or the Attorney General conducting the 

prosecution for such violation certifies to the Judge 

who made the ruling that the appeal is not taken for 

the purpose of delay and that the evidence is a 

substantial proof of the charge being tried against the 

defendant. The trial court shall adjourn the trial until 

the appeal shall be resolved. 

(c) The United States or the Government of the Vir gin 

Islands may appeal an order dismissing an information 

or otherwise terminating a prosecution in favor of a 

defendant or defendants as to one or more counts 

thereof, except where there is an acquittal on the 

merits. 

(d) The United States or the Government of the Virgin

Islands may appeal any other ruling made during the

trial of a person charged with an offense under the laws

of the Virgin Islands which the United States Attorney or

the Attorney General certifies as involving a substantial

and recurring question of law which requires appellate

resolution. Such an appeal may be taken only during 

trial and only with the leave of the court. The trial court 

shall adjourn the trial until the appeal shall be 

resolved. 

(e) Any appeal taken pursuant to this section eith er 

before or during trial shall be expedited. If an appeal is 

taken pursuant to subsections (b) or (d) during the 

 8 
trial, the appellate court shall, to the extent practicable, 

give the appeal priority over all other pending appeals. 

(f) Pending the prosecution and determination of a n 

appeal taken pursuant to this section, the defendant 

shall be detained or released in accordance with 

applicable law. 

4 V.I.C. § 39 (emphasis added). 

The territorial court gave the government leave to appeal 

under subsection (d), without considering on the record 

whether an appeal of its rulings would involve "a 

substantial and recurring question of law which requires 

appellate resolution." The Virgin Islands Attorney General 

certified that the evidentiary rulings did involve such a 

question. The district court disagreed and dismissed the 

case for lack of jurisdiction. We exercise plenary review over 

whether the territorial court's evidentiary rulings presented 

a "substantial and recurring question of law" because this 

is an issue of statutory interpretation, Christian v. Joseph, 

15 F.3d 296, 297 (3d Cir. 1994), and because it involves 

the jurisdiction of the federal courts. Government of the

Virgin Islands v. Warner, 48 F.3d 688, 691 (3d Cir. 1995).2 

In interpreting § 39(d), familiar canons of statutory 

interpretation direct that we begin with the text of the 

statute. Hartford Acc. & Indem. Co. v. Sharp, 87 F.3d 89, 92 

(3d Cir. 1996) (citations omitted). We are mindful that in 

considering subsection (d), we must look to the entirety of 

§ 39 because the text of the statute "is to be read as a 

whole. . . .since the meaning of statutory language, plain, or 

_________________________________________________________________ 

2. Although the statute is not clear, we believe that § 39(d) requires that 

the court review the certification that there exists a "substantial and 

recurring question of law requiring appellate resolution." If the issue did 

present a "substantial and recurring question of law requiring appellate 

resolution," the territorial court's decision to grant leave to appeal would 

be reviewed by us only for an abuse of discretion. We would apply this 

standard of review because the statute vests the trial court with the 

discretion to grant or deny leave to appeal, presumably based on its 

familiarity with the course of the litigation. See United States v. Criden, 

648 F.2d 814, 817-818 (3d Cir. 1981) (where trial court has a "superior 

vantage point" from which to resolve the question, its decision "merits a 

high degree of insulation for appellate revision").

 9 
not, depends on context." Hudson United Bank v. Chase

Manhattan Bank of Conn., 43 F.3d 843, 848 n.11 (3d Cir. 

1994 ) (quoting King v. St. Vincent's Hosp., 502 U.S. 215, 

221 (1991) (further citation omitted)). This is consistent 

with Virgin Islands law which provides that in interpreting 

its statutes "words and phrases" must be read "with their 

context" and "construed according to the common and

approved usage of the English language." 4 V.I.C. § 42 

(1921). Terms that are "technical" or that have "acquired a 

peculiar and appropriate meaning in the law," are to be 

"construed and understood according to their peculiar and 

appropriate meaning." Id. 

None of the terms in the phrase "substantial and 

recurring question of law which requires appellate 

resolution" are defined by the statute. The term "question of 

law" does, however, at least in one sense, have a particular 

meaning in the law, where questions of law are 

distinguished from questions of fact. We thus understand a 

"question of law" as something other than a question of 

fact. Virgin Islands statutes on the books before the 

enactment of § 39 confirm this reading. Title 30, section 35, 

of the Virgin Islands Code, governing public utilities, for 

example, distinguishes between "questions of law" and 

"findings of fact" in appeals from the findings of the 

Commission. 30 V.I.C. § 35. Although this helps frame our 

inquiry, it by no means ends it. As many courts have 

remarked, distinguishing questions of fact from those of law 

is often no simple task. Thompson v. Keohane, 116 S.Ct. 

457, 464 n.10 (1995) (collecting cases). 

The rulings at issue in this case were made under Fed. 

R. Evid. 403 and Fed. R. Civ. Proc. 16. There is no question 

that these rules applied to this case, that the court used 

the correct standard in applying the rules,3 and that the 

district court ordered relief specifically contemplated by 

both rules -- exclusion of the evidence. Under these 

circumstances, trial court orders made pursuant to these 

_________________________________________________________________ 

3. The government has suggested that the territorial court acted with an 

improper motive when it excluded the evidence. For the reasons set forth 

infra note 5, we reject this characterization of the issues presented by 

this appeal. 

 10 
two rules lie entirely within the court's discretion and are 

only reviewed for an abuse of that discretion. Abrams v.

Lightolier, Inc., 50 F.3d 1204, 1213 (3d Cir. 1995); United

States v. Adams, 759 F.2d 1099, 1111 (3d Cir. 1985); see

also, 25 Moore's Federal Practice, § 616.02[4][e] (Matthew 

Bender 3d ed. 1997). Indeed, "if judicial restraint is ever 

desirable it is when a Rule 403 analysis of a trial court is 

reviewed by an appellate tribunal." United States v. Balter, 

91 F.3d 427, 442 (3d Cir.) (quoting United States v. Scarfo, 

850 F.2d 1015, 1019 (3d Cir. 1988)), cert. denied, 117 S.Ct. 

517 (1996). This is so in large part because the trial court 

sits in a unique position to evaluate the evidentiary and 

discovery questions, including the selection of sanctions, 

which suggests that the application of these rules in a 

particular case is unlikely to involve "substantial" or 

"recurring" "questions of law." 

The issues presented here confirms this conclusion.

Application of Fed. R. Crim. P. 16 involved determining 

what discovery the district court had ordered; whether, 

when, and to what extent the government had complied 

with such orders; the importance of compliance to the case; 

and the appropriateness of various sanctions. Similarly, the 

orders made under Fed. R. Civ. P. 403 required the court 

to determine the purpose of the evidence, its value to the 

government, and its potential prejudice to the defendant in 

the context of the other evidence that the parties would 

introduce. Because these inquiries hinged almost entirely 

on the facts of this particular case, we conclude that the 

trial court's rulings presented no "substantial" question of 

law. For the same reason, any questions of law that the 

rulings raise are not "recurring"-- this case has unfolded in 

a unique way, and the evidentiary and discovery rulings 

from which appeal is sought present questions that are 

specific to this case. 

In its post-argument brief, the government characterizes 

the question for review as "where the defendant has not 

been prejudiced, does a trial court have the power under 

Rule 16(d)(2)4 to, in effect, dismiss a serious criminal 

_________________________________________________________________ 

4. It is unclear whether the government, by asserting that this is the 

question on appeal, was abandoning its argument that the Rule 403 

rulings were appealable under the statute. Because the government 

made no explicit concession and because their earlier briefs argue that 

the Rule 403 rulings were appealable, we nonetheless considered this 

question. 

 11 
charge as a sanction for discovery violations?"5 But 

defendants have not conceded, and the trial court did not 

find, that the "defendants have not been prejudiced" and 

that excluding the evidence in this case was "in effect, 

dismiss[ing]" the charges against the defendants. Indeed, 

the trial court was clearly concerned with prejudice when it 

stated, with reference to the physical evidence that "what if 

after seeing this billy club he wanted to hire an expert 

witness? He wouldn't be able to because at the last minute 

you are springing on him at least six items." As to the 

assertion that the exclusion of the evidence was equivalent 

to "dismissing" the case, both the victim and his niece 

identified the defendants, who were known to them 

previously. Indeed, Blake's attorney stated at trial that this 

is what he thought the whole case was about -- the 

testimony of the government's witnesses versus that of the 

defendants. Because the victim, who witnessed the crime, 

and his niece, who saw the scene immediately after shots 

were fired, were both prepared to identify the defendants as 

_________________________________________________________________ 

5. The government formulated the question differently in its first brief to 

this court: "to what extent may a trial court penalize the Government for 

the carelessness or confusion of an individual prosecutor?" At oral 

argument two other versions of the this question were offered by the 

government: "the propriety of the sanction in this case," and "whether or 

not, simply because the trial court is annoyed with counsel, whether she 

can effectively gut the government's entire case?" These questions 

incorrectly characterize the issue presented by this appeal. The trial 

court excluded evidence under Rule 403 because it was not sufficiently 

probative in light of the unfair prejudice it could cause. Evidence was 

excluded under Rule 16 because the government failed to comply with 

the court's discovery orders. Although the discovery sanctions may 

penalize the government for the "carelessness and confusion" of one 

prosecutor who failed to follow discovery rules, this is entirely 

appropriate under Rule 16. Moreover, we do not read the transcript to 

suggest that the judge ruled as she did because she was "annoyed," 

instead the record shows that she ruled after considering the appropriate 

factors under the rules in question. Finally, the government never stated 

to the trial court that this was the issue for which it sought review; we 

thus have no reason to think that this was the issue which the trial 

court gave the government leave to appeal. Appeals under § 39(d) require 

leave from the trial court. 

 12 
the perpetrators, the characterization of the exclusion of 

the evidence as a "dismissal" is entirely without merit.6 

The balance of the statute also supports our conclusion 

that the Virgin Islands legislature did not intend to permit 

this appeal when it enacted the statute. Subsections (b) 

and (d) of § 39 provide the circumstances under which the 

government may appeal a ruling made during trial. Under 

(b) the government may appeal rulings made during trial 

that exclude government evidence "on the ground that it 

was invalidly obtained." 4 V.I.C. § 39(b). The government 

must certify, however, that "the evidence is a substantial 

proof of the charge being tried against the defendant." Id. 

Subsection (d) works the same way. It begins, however, 

with a broader set of rulings. Under it the government may 

appeal "any other ruling made during trial." This is limited, 

however, by the language that requires government 

certification that the ruling involve "a substantial and 

recurring question of law that requires appellate 

resolution." 4 V.I.C. § 39(d). Thus while subsection (b) is 

concerned with the importance of the evidence to the trial 

at hand, different concerns animate subsection (d). It is 

focused not on the role that the evidence plays in the 

specific trial but instead with the importance of the legal 

question that the trial court's ruling presents. This intent is 

made clear with the terms "substantial" and "recurring" 

which modify the phrase "question of law." Thus it is not 

enough, under subsection (d) that the ruling excluded 

evidence that was important to the government's case-- 

the ruling must also present a question of law that has 

import in other cases as well. There is no issue on appeal 

which meets this standard. 

IV. CONCLUSION 

For the reasons stated above, we will affirm the order of 

_________________________________________________________________ 

6. For this reason we also reject the government's argument that an 

appeal lies under 48 U.S.C. § 1493(a). Nor was an appeal available under 

subsection (b) because the order of trial court was made "after the 

defendant had been put in jeopardy." 48 U.S.C.§ 1493(b). See also, 18 

U.S.C. § 3731. 

 13 
the district court, dismissing the appeal for lack of 

jurisdiction, and remand this case to the district court for 

remand to the territorial court.7 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________ 

7. Because the issue of double jeopardy was not fully briefed to us, we 

will not in this appeal decide whether double jeopardy bars retrial of the 

defendants. 

 14