On Appeal from the District Court of the Virgin Islands, Division of St. Croix; D.C. Crim. Nos. 89-00139-1, 89-00139-3.
Higginbotham, Chief Judge, and Greenberg and Cowen, Circuit Judges.
Appellants, Theodore Joseph and Leroy Davis, appeal from judgments of conviction and sentence in this criminal case. A four-count information was filed in the District Court of the Virgin Islands charging them as well as Vernon Nesbitt with conspiracy to possess cocaine with intent to distribute, possession of cocaine with intent to distribute, knowing use of a firearm, a submachine gun, during and in relation to a drug crime, and knowing use of a firearm, a semi-automatic pistol, during and in relation to a drug crime. 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. §§ 2, 924(c). At the ensuing jury trial between December 11 and December 14, 1989, appellants were convicted on all counts but Nesbitt was found not guilty. On December 19, 1989, Joseph filed a motion for a new trial or, in the alternative for a judgment of acquittal, which is still outstanding.
The prosecution's case was largely predicated on eye witness evidence from police officers who claimed to have seen appellants engaged in illegal drug transactions on September 6, 1989, prior to their arrest on that day. Following the trial the appellants obtained police reports and affidavits from another case which tend to show that at the time the officers claimed to be observing appellants the officers were at a different location involved in another investigation. Consequently, on March 2 and March 6, 1990, respectively, Joseph and Davis filed motions for continuance of sentencing and for an evidentiary hearing to demonstrate that the prosecution, by its failure to disclose the reports and affidavits, violated their due process rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). They alleged that they had been convicted on the basis of false testimony from the police officers and, in a supporting brief, asserted that they were entitled to a new trial.*fn1
At the sentencing on March 7, 1990, Joseph, joined by Davis, asked for a postponement so that a transcript of the trial could be obtained and an evidentiary hearing held on the Brady matter. Inasmuch as the court had not received the motion papers it recessed to review them following which it said that:
I have taken the time to read the papers and the first problem I have is that I don't know what this is. I suppose it should be a motion for a new trial based on newly discovered evidence, but I don't have a motion for a new trial before me. All I have is a motion for a continuance of the sentencing and a motion for an evidentiary hearing. If you filed a motion for a new trial based on newly discovered evidence, you may be entitled to an evidentiary hearing. But just preliminarily, I've looked over these papers that you have submitted and there would be an apparent conflict in the testimony as to whether or not Agent Olive was at Smith Bay at 6:10, or whether or not he was at the gut at 6:10. I think the report with respect to the gut buy, that is the buy where -- the feed store buy is ambiguous because it doesn't say whether it was Agent Olive that was there at 6:10, but it says Charleswell or one of the others was there at 6:10.
But, in any event, my recollection of the trial in this case is that there was all kinds of cross examination and development of apparent inconsistencies between the report of the agents' testimony during the course of the trial. So, there was a full opportunity to cross examine the witness and to develop inconsistencies. That does not mean to say, however, that I would rule out an evidentiary hearing or an opportunity to file a motion. So, I see no reason to postpone sentencing you. Because under the Rule, Rule 33, I believe it is, if your motion is on the basis of newly discovered evidence, you can file that at any time. Any other post-trial motion must be filed within ten days.
At that point Joseph indicated that he had filed a motion for a new trial or judgment of acquittal on December 19, 1989. The court, however, declined to consider the motion, apparently because it was only filed with the clerk and Joseph had not sent a copy directly to the judge.*fn2
Thus, appellants were sentenced on March 7, 1990, even though Joseph's original motion for a new trial and the later motions for an evidentiary hearing remained open. Appellants received very long custodial sentences and each then filed an appeal which would have been timely if measured from March 7, 1989, when the judgments were entered following the sentencing. On these appeals Davis' only contention is that by reason of a Brady violation he is entitled to a new trial. Joseph raises that issue and makes other contentions as well.
At oral argument we pointed out that the open matters in the district court might deprive this court of jurisdiction on principles akin to those explicated in the civil case of Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S. Ct. 400, 74 L. Ed. 2d 225 (1982). Appellants stated that they were aware of the problem but nevertheless appealed because they were concerned, understandably, that if they did not appeal within ten days of the entry of the judgments of conviction and the sentence, their later appeals might be barred as untimely under Fed. R. App. P. 4(b).
Preliminarily in our discussion of whether we have jurisdiction we note that the appellants did not consider the evidentiary hearing an end in itself and that the district court could not reasonably think that the hearing could have no purpose with respect to the convictions. Rather, as appellants hoped to develop information to bolster their not insubstantial assertions that there was a Brady violation, their motions were the functional equivalent of motions for new trials, which, of course, are what they claimed to be entitled to in their brief submitted with the motions in the district court. Furthermore, when Joseph appealed, ...