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. e du/thir dc ir c uit_1997/149Filed 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 :

2This case requires us to interpret a Virgin Islands statute

permitting the government to appeal, during a crimi nal trial, a ruling "involving a substantial and recurr ing 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 we re 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 governme nt's evidence. In order to challenge these evidentiary r ulings, the government moved for, and the trial court grant ed, leave for an immediate appeal under 4 V.I.C. § 39(d ). The District Court of the Virgin Islands, however, dism issed the appeal for lack of jurisdiction, reasoning that the issues presented on appeal did not come within the ambit o f the statute. This appeal presents us with the question whether the trial court's rulings involve a "substantial an d recurring question of law which requires appellate resolution " within the meaning of 4 V.I.C. § 39(d). Because we conclud e that they do not, we affirm the district court's order a nd remand
the case to the district court for remand to the te rritorial

court.

I. FACTS

According to the government, early in the morning o f April 29, 1994, Wilson David and his four-year old son were driving home from David's sister's house. As they g ot out of their truck, four shots were fired at them. Neither was injured. David identified the man who fired the sho ts as Zacchaeas Blake and the man who accompanied him as Leon Nisbett, both of whom he knew previously. Davi d's niece, who came out of David's apartment after hear ing the gunfire, identified Blake as holding a gun and Nesb itt as sitting inside a maroon Honda. Blake allegedly aske d David, before shooting, why David was "looking" at him. Ni sbett and Blake were arrested and charged with four count s each of third degree assault under 14 V.I.C. §§ 297(2) a nd (3) (1996), and one count each of possession of a firea rm during the commission of a crime of violence in vio lation of 14 V.I.C. § 2253(a) (1996).

3On the morning of trial, the court asked to hear pr etrial

motions. The defense moved to exclude some photogra phs, apparently of the crime scene, that the government had produced for the first time that morning. After som e discussion about the motion, but before ruling, the territorial court decided first to select a jury an d then to consider the pretrial motions.

The judge selected the jury, had it sworn in, and t hen recessed for lunch. During the recess the court con sidered the motions. It first excluded the photographs on t he grounds that they were not provided to the defendan ts 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[Dav id] once." After inquiring whether the statement in que stion went to a possible motive by Blake for the alleged shooting, the court excluded the evidence because "the prejud ice that it will form in the minds of this jury will outweig h the probative value." Nisbett then moved to exclude the introduction of certain physical evidence on the gr ound that
it was not relevant. Blake moved to exclude the sam e evidence because the government had not produced it during discovery. The evidence -- a 9 millimeter li ve 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 cha rged
that the evidence was used in the commission of the present offense. The court accordingly concluded th at 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 testimo ny 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 g overnment during criminal trials if the government certifies that the appeal involves "a substantial and recurring questi on of law which requires appellate resolution." The court gra nted the
motion and then declared a mistrial. It noted that the statute calls for adjournment of the trial but reas oned that

4an 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 orde r that "the Government's Motion for Leave to Appeal from Interlocutory Rulings Suppressing Evidence is hereb y GRANTED."

The district court dismissed the appeal for lack of jurisdiction. It reasoned that the case did not inv olve 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 w hether a statute allowing the Government such an appeal duri ng a criminal trial after jeopardy attached can withstan d constitutional analysis." For these two reasons, an d because of the "general bias" against interlocutory appeals in criminal cases, the district court concluded tha t the territorial court erred in giving leave to appeal u nder 4 V.I.C. § 39, and it dismissed the case. This appeal followed.

II. JURISDICTION

Before exploring the specific jurisdictional questi on that this case presents, we outline the general jurisdic tional framework for appeals from decisions of the distric t courts of the Virgin Islands.

Federal law provides that this Court has jurisdicti on over "appeals from all final decisions of the district c ourt on appeal from the courts established by local law." 4 8 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 es tablished by local law; if that decision was "final," this Co urt has jurisdiction. In In re Alison , 837 F.2d 619 (3d Cir. 1988), we
considered a decision of the district court which r eversed a territorial court's ruling that the plaintiff had f ailed to state
a cause of action. The district court's order was n ot "final," because that order merely concluded that the plaint iff 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).

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

the scope of the district court's own jurisdiction. The district court did not reach the merits of the disp ute, and
neither do we. Under these circumstances review is appropriate under the collateral order doctrine. Se e In re.
Ford Motor Co. , 110 F.3d 954, 959 (3d Cir. 1997). The Virgin Island's legislature explicitly permits appe als 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 proble ms that generally accompany application of the collateral o rder 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 it self calls for interlocutory appeals. See also , In re A.M. , 34 F.3d 153, 156 (3d Cir. 1994) (applying the collateral order d octrine in
a criminal case in which the district court decisio n affirmed
a territorial court's order that a minor be transfe rred for prosecution as an adult).

The district court's jurisdiction over the appeal f rom the territorial court is derived from a federal law pro viding that the district courts of the Virgin Islands shall hav e "such appellate jurisdiction over the courts of the Virgi n Islands as established by local law to the extent now or he reafter prescribed by local law." 48 U.S.C. § 1613a(a). Tur ning to the local law, the Virgin Islands Code, in a sectio n 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 co nvicted. The territorial court relied, however, on section 3 9 of the Virgin Islands Code, entitled "Appeals by the Unite d 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 expl icitly

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

nonetheless conclude that, where applicable, § 39 d oes grant appellate jurisdiction to the district courts of the Virgin Islands. To conclude otherwise would serious ly circumscribe the availability of an appeal under th is section.1 Moreover, before the enactment of § 39, § 33 includ ed the sentence "appeals in criminal cases may be taken on ly 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 obviou s intent of the legislature to ensure that the district cour ts did have jurisdiction over appeals by the government if so p ermitted under § 39.

III. A SUBSTANTIAL AND RECURRING QUESTION OF
LAW

We now turn to the issue in this case -- whether th is appeal to the district court was permissible pursua nt 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 u nder the laws of the Virgin Islands, which directs the r eturn of seized property, suppresses evidence, or otherwi se denies the prosecutor the use of evidence at trial, if the United States Attorney or the Attorney General conducting the prosecution for such violation certi fies to the Judge who granted such motion that the appea l

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1. Under such a reading of § 39, appeals would be p ermitted in cases that were tried in the district court, but appeals would not be permitted
to the district court from trials in the territoria l 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 whet her this provision of the Virgin Islands Code applies to appeals from tri als 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 ter ritorial court.

7is not taken for the purpose of delay and the evide nce

is a substantial proof of the charge pending agains t the
defendant.

(2) A motion for the return of seized property or t o 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 o f a person charged with a criminal offense under the la ws 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 Unite d States Attorney or the Attorney General conducting the prosecution for such violation certifies to the Jud ge who made the ruling that the appeal is not taken fo r 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 informati on 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 Vir gin 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 Attor ney or the Attorney General certifies as involving a subst antial and recurring question of law which requires appell ate
resolution. Such an appeal may be taken only during trial and only with the leave of the court. The tri al 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 ap peal is taken pursuant to subsections (b) or (d) during th e

8trial, the appellate court shall, to the extent pra cticable,

give the appeal priority over all other pending app eals.

(f) Pending the prosecution and determination of a n appeal taken pursuant to this section, the defendan t
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 re cord whether an appeal of its rulings would involve "a substantial and recurring question of law which req uires appellate resolution." The Virgin Islands Attorney General certified that the evidentiary rulings did involve such a question. The district court disagreed and dismisse d 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" becau se this is an issue of statutory interpretation, Christian v. Joseph

, 15 F.3d 296, 297 (3d Cir. 1994), and because it inv olves 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 statuto ry interpretation direct that we begin with the text o f 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 ent irety 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 th at § 39(d) requires that
the court review the certification that there exist s a "substantial and recurring question of law requiring appellate resol ution." If the issue did present a "substantial and recurring question of la w requiring appellate resolution," the territorial court's decision to gr ant 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 tr ial court with the discretion to grant or deny leave to appeal, presum ably 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 c ourt has a "superior vantage point" from which to resolve the question, its decision "merits a high degree of insulation for appellate revision").

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

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 con sistent with Virgin Islands law which provides that in inte rpreting 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 "ac quired a peculiar and appropriate meaning in the law," are t o be "construed and understood according to their peculi ar 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 "q uestion of law" does, however, at least in one sense, have a p articular meaning in the law, where questions of law are distinguished from questions of fact. We thus under stand a "question of law" as something other than a questio n of fact. Virgin Islands statutes on the books before t he enactment of § 39 confirm this reading. Title 30, s ection 35, of the Virgin Islands Code, governing public utilit ies, for example, distinguishes between "questions of law" a nd "findings of fact" in appeals from the findings of the Commission. 30 V.I.C. § 35. Although this helps fra me our inquiry, it by no means ends it. As many courts hav e remarked, distinguishing questions of fact from tho se 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 F ed.
R. Evid. 403 and Fed. R. Civ. Proc. 16. There is no question that these rules applied to this case, that the cou rt used the correct standard in applying the rules,3 and th at the district court ordered relief specifically contempl ated by
both rules -- exclusion of the evidence. Under thes e circumstances, trial court orders made pursuant to these

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3. The government has suggested that the territoria l 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 iss ues presented by this appeal.

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

only reviewed for an abuse of that discretion. Abra ms 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 tr ial court sits in a unique position to evaluate the evidentia ry and discovery questions, including the selection of san ctions, 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 determi ning what discovery the district court had ordered; whet her, when, and to what extent the government had complie d with such orders; the importance of compliance to t he case; and the appropriateness of various sanctions. Simil arly, 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 defe ndant in the context of the other evidence that the parties would introduce. Because these inquiries hinged almost en tirely on the facts of this particular case, we conclude t hat the trial court's rulings presented no "substantial" qu estion of law. For the same reason, any questions of law that the rulings raise are not "recurring"-- this case has u nfolded in a unique way, and the evidentiary and discovery rul ings from which appeal is sought present questions that are specific to this case.

In its post-argument brief, the government characte rizes 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 cri minal

___________________________________________________ ______________

4. It is unclear whether the government, by asserti ng that this is the question on appeal, was abandoning its argument tha t the Rule 403 rulings were appealable under the statute. Because the government made no explicit concession and because their earli er briefs argue that the Rule 403 rulings were appealable, we nonetheles s considered this question.

11charge as a sanction for discovery violations?"5 Bu t

defendants have not conceded, and the trial court d id not find, that the "defendants have not been prejudiced " and that excluding the evidence in this case was "in ef fect, dismiss[ing]" the charges against the defendants. I ndeed, the trial court was clearly concerned with prejudic e when it stated, with reference to the physical evidence tha t "what if after seeing this billy club he wanted to hire an e xpert
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 eq uivalent to "dismissing" the case, both the victim and his n iece identified the defendants, who were known to them previously. Indeed, Blake's attorney stated at tria l 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 c rime, and his niece, who saw the scene immediately after shots were fired, were both prepared to identify the defe ndants as

___________________________________________________ ______________

5. The government formulated the question different ly in its first brief to this court: "to what extent may a trial court penal ize the Government for the carelessness or confusion of an individual pros ecutor?" At oral argument two other versions of the this question we re 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 thi s appeal. The trial
court excluded evidence under Rule 403 because it w as not sufficiently probative in light of the unfair prejudice it could cause. Evidence was excluded under Rule 16 because the government faile d to comply with the court's discovery orders. Although the discover y sanctions may penalize the government for the "carelessness and c onfusion" of one prosecutor who failed to follow discovery rules, th is 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 consi dering the appropriate factors under the rules in question. Finally, the g overnment never stated
to the trial court that this was the issue for whic h it sought review; we
thus have no reason to think that this was the issu e which the trial court gave the government leave to appeal. Appeals under § 39(d) require
leave from the trial court.

12the perpetrators, the characterization of the exclu sion of

the evidence as a "dismissal" is entirely without m erit.6

The balance of the statute also supports our conclu sion that the Virgin Islands legislature did not intend to permit this appeal when it enacted the statute. Subsection s (b) and (d) of § 39 provide the circumstances under whi ch the government may appeal a ruling made during trial. U nder (b) the government may appeal rulings made during t rial that exclude government evidence "on the ground tha t it was invalidly obtained." 4 V.I.C. § 39(b). The gove rnment must certify, however, that "the evidence is a subs tantial proof of the charge being tried against the defenda nt." Id

.

Subsection (d) works the same way. It begins, howev er, with a broader set of rulings. Under it the governm ent may appeal "any other ruling made during trial." This i s limited, however, by the language that requires government certification that the ruling involve "a substantia l and recurring question of law that requires appellate resolution." 4 V.I.C. § 39(d). Thus while subsectio n (b) is concerned with the importance of the evidence to th e 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 t he legal question that the trial court's ruling presents. Th is intent is
made clear with the terms "substantial" and "recurr ing" which modify the phrase "question of law." Thus it is not enough, under subsection (d) that the ruling exclud ed evidence that was important to the government's cas e-- 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 or der of

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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 a ppeal available under subsection (b) because the order of trial court was made "after the defendant had been put in jeopardy." 48 U.S.C.§ 149 3(b). See also , 18 U.S.C. § 3731.

13the 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 ful ly briefed to us, we will not in this appeal decide whether double jeopa rdy bars retrial of the
defendants.

14