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Government of the Virgin Islands v. Rivera

U.S. Court of Appeals, Third Circuit


June 18, 2003

GOVERNMENT OF THE VIRGIN ISLANDS, APPELLANT
v.
JAMEL RIVERA

On Appeal from the Appellate Division of the District Court of the Virgin Islands, Division of St. Thomas and St. John D.C. Criminal No. 00-cr-00228 (Honorable Raymond L. Finch and Honorable Thomas K. Moore, United States District Judges, and Honorable Edgar D. Ross, Territorial Court Judge)

Before: Scirica, Chief Judge,*fn1 Alito and Rendell, Circuit Judges

The opinion of the court was delivered by: Scirica, Chief Judge.

PRECEDENTIAL

Argued November 8, 2002

OPINION OF THE COURT

The Appellate Division of the District Court of the Virgin Islands remanded this criminal case for resentencing to the Territorial Court of the Virgin Islands. The Government of the Virgin Islands has appealed. At issue is whether we have jurisdiction to hear the government's appeal.

I.

On May 22, 1997, a jury convicted Jamel R. Rivera of assault in the first degree in violation of 14 V.I. Code Ann. § 295(1). The Territorial Court of the Virgin Islands sentenced Rivera to eight years imprisonment with credit for time served, followed by two years supervised probation. Rivera appealed both his conviction and sentence to the Appellate Division of the District Court of the Virgin Islands. The Appellate Division affirmed the conviction, but held the sentence was illegal because "the trial court could not impose probation on [Rivera] without suspending all but six months of his prison term or staying the execution of his sentence." Rivera v. Gov't of the V.I., 42 V.I. 203, 211 (D.V.I. App. Div. 2000).*fn2 The Appellate Division vacated Rivera's sentence and remanded to the Territorial Court for resentencing.

On remand, the Territorial Court resentenced Rivera to "a term of incarceration for a period of ten years, with credit for time served prior to June 19, 1997, from May 22, 1997 to June 19, 1997." Gov't of the V.I. v. Rivera, No. F416/1996, at 2 (Terr. Ct. Apr. 12, 2000) (amended judgment and commitment order). The Territorial Court also assessed seventy-five dollars in court costs, an amount higher than that imposed by the original sentence.

Rivera again appealed. The Appellate Division held the resentencing was barred by the Double Jeopardy Clause. See North Carolina v. Pearce, 395 U.S. 711 (1969). The Appellate Division vacated the amended judgment and commitment order and remanded to the Territorial Court for resentencing. Rivera v. Gov't of the V.I., 183 F. Supp. 2d 770, 773 (D.V.I. App. Div. 2002).*fn3

The Government of the Virgin Islands now seeks review of the Appellate Division's judgment remanding for resentencing.

II.

Before we review the merits of an appeal, we must determine whether we have jurisdiction. To do so here, we must focus on the Virgin Islands court structure and the territorial prosecutor's authority.

A. The Virgin Islands Court Structure

The United States Constitution grants Congress the authority to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." U.S. Const. art. IV, § 3, cl. 2. Under this constitutional authority, Congress enacted the Revised Organic Act of the Virgin Islands. 48 U.S.C. §§ 1541 et seq.*fn4 The Revised Organic Act is "the Virgin Islands' equivalent of a constitution," Brow, 994 F.2d at 1032, and vests the judicial power of the Virgin Islands in local courts established by local law and in the District Court of the Virgin Islands, 48 U.S.C. § 1611. In 1984, Congress made significant amendments to the Revised Organic Act. See Act of Oct. 5, 1984, Pub. L. No. 98-454, 98 Stat. 1732. These amendments, along with certain more recent changes in Virgin Islands law, have shaped the current court structure in the Virgin Islands.

The Virgin Islands court structure consists of the Territorial Court of the Virgin Islands, which has original jurisdiction over local civil actions, local criminal actions, and certain other matters, 4 V.I. Code Ann. § 76; 1993 V.I. Sess. Laws 5890,*fn5 and the District Court of the Virgin Islands, which has "the jurisdiction of a District Court of the United States," as well as jurisdiction over certain other matters, 48 U.S.C. § 1612.*fn6 Appeals from the Territorial Court are heard by the Appellate Division of the District Court of the Virgin Islands. The Appellate Division functions as an appellate tribunal for local matters until such time as the Virgin Islands legislature creates a local appellate court. See 48 U.S.C. § 1613a; 4 V.I. Code Ann. § 33.*fn7

The UNITED STATES COURT OF APPEALS for the Third Circuit has "jurisdiction of appeals from all final decisions" of the District Court when the District Court acts as a trial court and also in its capacity as the Appellate Division. 28 U.S.C. § 1291 ("The court[ ] of appeals... shall have jurisdiction of appeals from all final decisions of... the District Court of the Virgin Islands...."); 48 U.S.C. § 1613a(c) ("The United States Court of Appeals for the Third Circuit shall have jurisdiction of appeals from all final decisions of the district court on appeal from the courts established by local law.").

The Virgin Islands court structure, incorporating the Appellate Division of the District Court as an appellate tribunal for local law, reflects Congress's intent to encourage "the development of a local Virgin Islands appellate structure with greater autonomy with respect to issues of Virgin Islands law." In re Alison, 837 F.2d 619, 622 (3d Cir. 1988). The Appellate Division "represents a step" toward such an autonomous appellate structure. Id. At the same time, the Appellate Division is "not an insular [local] appellate court," but is "essentially a federal creature." BA Props. Inc. v. Gov't of the V.I., 299 F.3d 207, 212 (3d Cir. 2002). Thus, in many contexts, we "treat[ ] appeals from the Appellate Division of the District Court of the Virgin Islands no differently than appeals taken from any other federal district court." Ortiz v. Dodge, 126 F.3d 545, 548 (3d Cir. 1997); see also BA Props., 299 F.3d at 212 ("We will... exercise plenary review over the Appellate Division's order, much as we would when reviewing a district court...."). It is within this context, where the Government of the Virgin Islands appeals a judgment of the Appellate Division of the District Court in a local criminal action, that we consider our jurisdiction.

B. Prosecutorial Authority To Appeal

It is axiomatic that a prosecutor has "no right to appeal an adverse criminal judgment unless expressly authorized by statute to do so." Arizona v. Manypenny, 451 U.S. 232, 245 (1981); see also United States v. Wilson, 420 U.S. 332, 336 (1975) ("This Court early held that the Government could not take an appeal in a criminal case without express statutory authority."); Gov't of the V.I. v. Christensen, 673 F.2d 713, 715 (3d Cir. 1982). Thus, a legislature must "speak with a clear voice" in order to authorize a prosecutorial appeal in a criminal action. Manypenny, 451 U.S. at 247; see also id. at 246 ("[T]he presumption [is] that the prosecution lacks appellate authority absent express legislative authorization to the contrary."). Here, the Government of the Virgin Islands asserts that its authority to appeal is supplied by 48 U.S.C. § 1493(c). The statute provides, "The prosecution in a territory... is authorized— unless precluded by local law—to seek review or other suitable relief in the appropriate... federal appellate court... from... an adverse decision, judgment, or order of an appellate court." 48 U.S.C. § 1493(c). While 48 U.S.C. § 1493(c) appears to grant broad authority to the Government of the Virgin Islands to pursue an appeal, it is silent on whether an adverse decision, judgment, or order of the Appellate Division must be final in order for the government to perfect an appeal to this court.*fn8 At issue is whether finality is required for appeals under 48 U.S.C. § 1493(c).

1. The Finality Requirement

Generally, federal courts of appeals are limited to reviewing final decisions, judgments, and orders. Under 28 U.S.C. § 1291, courts of appeals "have jurisdiction of appeals from all final decisions of the district courts." More specifically, finality is required by 48 U.S.C. § 1613a(c), which provides jurisdiction for this court over appeals from the Appellate Division. 48 U.S.C. § 1613a(c) ("The United States Court of Appeals for the Third Circuit shall have jurisdiction of appeals from all final decisions of the district court on appeal from the courts established by local law."); see also Ortiz, 126 F.3d at 547 ("Under 28 U.S.C. § 1291 and 48 U.S.C. § 1613a(c), our jurisdiction is limited to 'final decisions' from the District Court of the Virgin Islands.").

Under this finality requirement, "a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated." Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994). The requirement "descends from the Judiciary Act of 1789 where the First Congress established the principle that only final judgments and decrees of the federal district courts may be reviewed on appeal." Cunningham v. Hamilton County, 527 U.S. 198, 203 (1999) (quotations omitted). It serves "several salutary purposes," including "promoting efficient judicial administration" and avoiding "the harassment and cost of a succession of separate appeals." Id. at 203-04 (quotations omitted).

We recognize that there are limited departures from the finality requirement. For example, Congress may "authorize[ ], through... statutory provisions, immediate appeals... in certain classes of cases." Johnson v. Jones, 515 U.S. 304, 310 (1995).*fn9 But, "interlocutory appeals... are the exception, not the rule." Id. at 309.

One exception to the finality requirement is found in 18 U.S.C. § 3731. The statute authorizes prosecutorial appeals in criminal actions.*fn10 Parts of 18 U.S.C. § 3731 specifically provide for appeals of certain non-final orders, including orders granting new trials and suppressing or excluding evidence. Thus, courts have heard appeals of certain interlocutory orders under this statute. See, e.g., Charleswell, 24 F.3d at 574 ("[O]ur jurisdiction over the [prosecutor's] appeal is not dependent on 28 U.S.C. § 1291. Instead, we have jurisdiction... under 18 U.S.C. § 3731...."). But, we have held that "18 U.S.C. § 3731 does not authorize an appeal of a sentencing order." Gov't of the V.I. v. Douglas, 812 F.2d 822, 829 (3d Cir. 1987). Thus, the Government of the Virgin Islands concedes 18 U.S.C. § 3731 is not applicable here.*fn11 Instead, the government contends 48 U.S.C. § 1493(c) authorizes its appeal.

But unlike 18 U.S.C. § 3731, the text of 48 U.S.C. § 1493(c) does not expressly provide for appeals of non-final orders.*fn12 As noted, 48 U.S.C. § 1493(c) is silent on finality. With no contrary authorization, we apply the general finality rule. Moreover, there is a "presumption that the prosecution lacks appellate authority absent express legislative authorization." Manypenny, 451 U.S. at 246. Thus, absent Congressional authorization permitting the Government of the Virgin Islands to appeal non-final orders to this court, appeals under 48 U.S.C. § 1493(c) are limited to final decisions, judgments, and orders.

2. Accord With Existing Jurisprudence

Requiring finality for appeals under 48 U.S.C. § 1493(c) accords with the role of the Appellate Division within the

While the statute specifically refers to prosecutorial appeals "by the United States," we have held that it also "applies to appeals taken by the Government of the Virgin Islands." Gov't of the V.I. v. Charleswell, 24 F.3d 571, 574 (3d Cir. 1994). Moreover, 18 U.S.C. § 3731 applies to appeals from the District Court of the Virgin Islands sitting both as a trial court and as an appellate court. Id. at 574-75.

Virgin Islands court structure. As noted, we generally treat appeals from the Appellate Division of the District Court of the Virgin Islands the same as appeals from any other federal district court. See Ortiz, 126 F.3d at 548 ("[W]ith regard to the question of finality, we have treated appeals from the Appellate Division of the District Court of the Virgin Islands no differently than appeals taken from any other federal district court."). In order to maintain consistency between appeals from the Appellate Division and other federal district courts, an appeal from the Appellate Division should either meet the finality requirement or satisfy a generally applicable finality exception. Allowing an exception to finality for appeals under 48 U.S.C. § 1493(c) would treat appeals from the Appellate Division differently than appeals from other federal district courts.

Requiring finality also corresponds with another decision of this court. Recently, in Government of the Virgin Islands v. Marsham, we addressed a similar situation. 293 F.3d 114 (3d Cir. 2002). In Marsham, the defendant had appealed to the Appellate Division his sentence and restitution order imposed by the Territorial Court. The Appellate Division affirmed the sentence, but "remanded the case to the Territorial Court, ordering... that the restitution order be vacated." Id. at 116. The Government of the Virgin Islands then appealed "the Appellate Division's vacatur of the restitution order" to this court. Id. In addressing appellate jurisdiction over the government's appeal, we held the Appellate Division's decision must be final in order to be appealable. Id. at 117 ("The issue here is whether the Appellate Division's decision is a final order.").*fn13

Moreover, the United States Court of Appeals for the Ninth Circuit has read 48 U.S.C. § 1493(c) in conjunction with 48 U.S.C. § 1424-3(c), an analog of 48 U.S.C. § 1613a(c) providing "jurisdiction of appeals from all final decisions of the appellate division of the district court" of Guam. 48 U.S.C. § 1424-3(c). Under 48 U.S.C. § 1493(c), the territorial prosecutor in "Guam has the authority to appeal to [the Ninth Circuit] from an adverse final decision or order of the Guam Appellate Division." Territory of Guam v. Borja, 983 F.2d 914, 916 (9th Cir. 1992); see also Territory of Guam v. Estrebor, 848 F.2d 1014, 1015 (9th Cir. 1988) ("48 U.S.C. § 1493(c), enacted after Okada, authorizes the prosecution in a territory to seek review of an adverse decision of an appellate court, and 48 U.S.C. § 1424-3(c) provides that this court has jurisdiction over appeals from all final decisions of the appellate division of the district court of Guam.").

In sum, there is no statutory authorization that would permit the prosecutor to appeal and to breach the traditional finality requirement. We hold that the Government of the Virgin Islands may only appeal final decisions, judgments, or orders under 48 U.S.C. § 1493(c).*fn14

C. No Final Decision

Our inquiry shifts to whether there is a final decision. A final decision "ends the litigation on the merits and leaves nothing... to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945). In a criminal case, the sentence is the final judgment. Douglas, 812 F.2d at 831; see also Berman v. United States, 302 U.S. 211, 212 (1937) ("Final judgment in a criminal case means sentence. The sentence is the judgment."). Thus, generally, "[i]n a criminal case... appellate review [is prohibited] until conviction and imposition of sentence." Flanagan v. United States, 465 U.S. 259, 263 (1984).

The Government of the Virgin Islands has not contended the Appellate Division judgment is final.*fn15 This is understandable. The judgment neither ended the litigation nor left only the execution of judgment. Instead, it vacated the sentence and remanded to the Territorial Court. At this time, Rivera is under no sentence. There is no final judgment to provide us with appellate jurisdiction.

Our caselaw confirms this lack of finality. In Marsham, we suggested that generally an order remanding for resentencing is not final. 293 F.3d at 117.*fn16 But, in Marsham, we heard the appeal because "the Appellate Division's order conclusively and finally determined the issue of [the defendant's] sentence and restitution, and sent the matter back simply for a ministerial entry" to vacate the restitution order. Id. As noted, the Appellate Division here has vacated the Territorial Court order and remanded for resentencing, leaving Rivera's sentence undetermined. Because the remand requires a new sentencing judgment by the Territorial Court, there is no final decision here.*fn17

D. Other Considerations

In concluding its supplemental brief, the Government of the Virgin Islands argues that finding no jurisdiction here is problematic because it will never again be able to seek our review of the Appellate Division's ruling. The government contends that, upon resentencing by the Territorial Court, it will not have the authority to appeal the new sentence and challenge alleged defects with the resentencing before this court.*fn18

But this is a matter for Congress or the Virgin Islands legislature. That the Government of the Virgin Islands may not be able to appeal from a future judgment in this case is a consequence of a legislative decision restricting government appeals of sentences. See Gov't of the V.I. v. Hamilton, 475 F.2d 529, 531 (3d Cir. 1973) (The conclusion that this court was without jurisdiction to hear the Government of the Virgin Islands's appeal of a criminal matter from the District Court serving as an appellate tribunal was "reinforced by the fact that [at the time] under... local law... the defendant alone ha[d] the right in a criminal case to appeal to the District Court from a judgment of the [local] court.").

III.

For the reasons discussed, we lack appellate jurisdiction and will dismiss this appeal.


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