United States v. Ronald Gillette

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-2853

_____________

UNITED STATES OF AMERICA

v.

RONALD EDWARD GILLETTE,

Appellant

___________

On Appeal from the District Court

of the Virgin Islands

(D.C. Criminal No. 1-07-cr-00050-001)

District Judge: Honorable Raymond L. Finch

___________

Argued April 24, 2013

Before: McKEE, Chief Judge, SCIRICA and VANASKIE,

Circuit Judges

(Filed: December 6, 2013)

Joseph A. DiRuzzo, III, Esq. [ARGUED]

Fuerst Ittleman David & Joseph, PL

1001 Brickell Bay Drive, 32nd Floor

Miami, FL 33131

Counsel for Appellant

Ronald W. Sharpe, Esq., United States Attorney

Alphonso G. Andrews, Jr., Esq. [ARGUED]

Office of United States Attorney

1108 King Street, Suite 201

St. Croix, U.S. V. I. 00820

Counsel for Appellee

___________

OPINION OF THE COURT

___________

VANASKIE, Circuit Judge.

At the heart of this appeal is whether the District Court

of the Virgin Islands retains concurrent jurisdiction over local

Virgin Islands crimes when the federal crimes giving rise to

that jurisdiction are dismissed midtrial. Ronald Edward

Gillette was tried in the District Court for failing to register as

a sex offender in violation of federal law, and for numerous

counts of aggravated rape and unlawful sexual contact in

violation of Virgin Islands law. After the Government rested

its case, the District Court dismissed the federal charges but

proceeded to verdict on the local charges, with Gillette being

found guilty of those charges. Gillette appeals his conviction,

contending the District Court lacked jurisdiction over the

local crimes. We hold that, under these circumstances, the

District Court retained concurrent jurisdiction over the local

2

crimes notwithstanding its dismissal of the federal charges.

Gillette also challenges several aspects of his trial and

sentence. Finding no error, we will affirm.

I. Background

In the spring of 2007, the U.S. Marshal Service for the

District of the Virgin Islands received a tip that Gillette, an

unregistered sex offender, might be residing in St. Croix.

Believing that Gillette was required to register with local

officials as a consequence of his 1983 conviction in New

Mexico for Criminal Sexual Penetration and Contributing to

the Delinquency of a Minor—crimes for which Gillette

served eighteen years of a twenty-seven year sentence in

prison—law enforcement authorities followed up on the lead.

They discovered that, indeed, Gillette had not registered as a

sex offender, and, further, that he was living in St. Croix with

a teenage boy.

The authorities went to arrest Gillette at his apartment

on charges of failure to register as a sex offender, in violation

of the Sex Offender Registration and Notification Act

(“SORNA”), 42 U.S.C. § 16901 et seq., and failure to register

as a sex offender within ten days of establishing residency in

a state other than the state within which he was convicted, in

violation of the Jacob Wetterling Crimes Against Children

and Sexually Violent Offender Registration Act (the

“Wetterling Act”), 42 U.S.C. § 14072(g)(3) (repealed 2009).

When Gillette was arrested, the authorities found him with

M.B., a fifteen-year-old boy. Upon interviewing M.B., the

authorities learned that he had been living with Gillette since

he was approximately twelve years old, and that the two had

been sexually involved during that time. The authorities later

3

learned that Gillette had also victimized another minor boy,

M.B.’s younger cousin, A.A..

On October 15, 2007, a federal grand jury handed

down a thirty-count superseding indictment charging Gillette

with numerous crimes related to his failure to register as a sex

offender and his unlawful sexual contact with M.B. and A.A..

Counts 1 and 2 of the indictment alleged violations of the

U.S. Code related to Gillette’s failure to register as a sex

offender.1 The remaining counts alleged violations of the

Virgin Islands Code.2 Both the federal and local charges

1

Count 1 charged Gillette with failure to register as a

sex offender in violation of SORNA, 18 U.S.C. § 2250(a);

Count 2 charged him with failure to register as a sex offender

within ten days of establishing residency in the Virgin Islands

in violation of the Wetterling Act, 42 U.S.C. §§ 14072(g)(3)

and (i).

2

Count 3 charged Gillette with Aggravated Rape in

the First Degree in violation of V.I. Code Ann. tit.14, §§

1700(a)(1) and (a)(2)(c); Count 4 charged him with Unlawful

Sexual Contact in the First Degree in violation of V.I. Code

Ann. tit. 14 § 1708(2); Counts 5 through 11 charged him with

Aggravated Rape in the First Degree in violation of V.I. Code

Ann. tit. 14, §§ 1700(a)(2); Counts 12 through 18 charged

him with Unlawful Sexual Contact in the First Degree in

violation of V.I. Code Ann. tit.14, § 1708(3); Counts 19

through 23 charged him with Aggravated Rape in the Second

Degree in violation of V.I. Code Ann. tit.14, § 1700a(a);

Counts 24 through 28 charged him with Unlawful Sexual

Contact in the Second Degree in violation of V.I. Code Ann.

tit. 14, § 1709; and Counts 29 and 30 charged him with

4

were brought in the District Court of the Virgin Islands. The

District Court exercised jurisdiction over the local crimes

pursuant to 48 U.S.C. § 1612(c), which grants the District

Court concurrent jurisdiction with the Virgin Islands courts

over certain local crimes “which are of the same or similar

character or part of, or based on, the same act or transaction”

that constitutes a violation of federal law. 48 U.S.C. §

1612(c).

The Magistrate Judge presided over the initial

proceedings against Gillette. After difficulties arose between

Gillette and his first court-appointed attorney, Gillette moved

for substitution of counsel. The Magistrate Judge granted

Gillette’s motion, and appointed Eszart Wynter to represent

Gillette.

Wynter became concerned Gillette might be

incompetent to stand trial, and on September 19, 2007, he

moved for a psychological evaluation. The Magistrate Judge

granted the request, and a forensic psychologist evaluated

Gillette. The psychologist concluded Gillette was competent,

notwithstanding a diagnosis of Delusional Disorder, because

Gillette demonstrated an understanding of the nature and

consequences of the charges against him, as well as an ability

to assist in his own defense. After receiving the competency

report, Gillette did not request a competency hearing, and the

Magistrate Judge did not order one sua sponte. Thereafter,

neither Gillette, the Magistrate Judge, nor the District Court

revisited the issue of Gillette’s competency.

Unlawful Sexual Contact in the First Degree in violation of

V.I. Code Ann. tit. 14, § 1708(5).

5

Before the trial commenced, Gillette filed a motion to

dismiss Counts 1 and 2 of the indictment, arguing that he was

not obligated to register under either SORNA or the

Wetterling Act. First, Gillette argued that he did not meet the

requirements of SORNA set out at 18 U.S.C. § 2250(a)

because that statute requires interstate travel in addition to

failure to register, see § 2250(a)(2)(B), and he had not

traveled across state lines since SORNA became effective on

July 27, 2006.3 Second, Gillette argued that the Wetterling

3

18 U.S.C. § 2250(a) provides that:

(a) In general.--Whoever

(1) is required to register

under the Sex Offender

Registration and

Notification Act;

(2)(A) is a sex offender as

defined for the purposes of

the Sex Offender

Registration and

Notification Act by reason

of a conviction under

Federal law (including the

Uniform Code of Military

Justice), the law of the

District of Columbia,

Indian tribal law, or the

law of any territory or

possession of the United

States; or

6

Act did not apply to him because it only required individuals

to register with the FBI if they lived in a state that had “not

established a minimally sufficient sexual offender registration

program,” see 42 U.S.C. § 14072(c), and, he argued, the

Virgin Islands registration program qualified as a minimally

sufficient registration program that did not require him to

register. See V.I. Code Ann. tit. 14, § 1722.

The District Court denied Gillette’s motion to dismiss

Count 2, finding that he was subject to the Wetterling Act’s

registration requirements. As to Count 1, the District Court

ordered the Government to produce evidence that Gillette had

traveled interstate after SORNA’s passage. The Government

responded that it had “no evidence tending to indicate post

2003 interstate travel of the defendant.” (Joint Appendix

[“J.A.”] 0210.) Despite the Government’s response, the

District Court denied Gillette’s motion as to Count 1 as well,

deeming it “premature to find the fact that Gillette has not

(B) travels in interstate or

foreign commerce, or

enters or leaves, or resides

in, Indian country; and

(3) knowingly fails to

register or update a

registration as required by

the Sex Offender

Registration and

Notification Act;

shall be fined under this title or

imprisoned not more than 10

years, or both.

7

traveled in interstate commerce after July 27, 2006 without

hearing the evidence at trial.” (J.A. 0008.)

The District Court conducted a bench trial on all

charges. After the Government rested its case in chief,

Gillette moved for a judgment of acquittal pursuant to Federal

Rule of Criminal Procedure 29. The District Court granted

the motion as to Count 1 due to the absence of evidence of

interstate travel by Gillette after SORNA’s effective date.

The District Court also dismissed Count 2, finding that

Gillette’s failure to register as a sex offender after relocating

to the Virgin Islands did not violate the Wetterling Act

because the Virgin Islands is not a “State” as contemplated by

the statute.4 (J.A. 0218.) The District Court, however,

refused to dismiss the remaining local charges.

The District Court ultimately found Gillette guilty of

Counts 3 through 18, 22, 23, 27, and 28. On June 19, 2009,

the District Court sentenced Gillette to 15 years imprisonment

on Counts 3 through 11 (Counts 12 through 18 merged with

Counts 5 through 11), 10 years on Counts 22 and 23, and 1

year on Counts 27 and 28, with the prison term on Counts 27

and 28 to run concurrently to the prison terms on Counts 22

and 23, respectively, and the remainder to run consecutively,

for a total sentence of 155 years. The District Court also

4

The Wetterling Act provided, in pertinent part, that

any person required to register as a sex offender, “who

changes address to a State other than the State in which the

person resided at the time of the immediately preceding

registration shall, not later than 10 days after that person

establishes a new residence, register a current address . . . .”

42 U.S.C. § 14072(g)(3).

8

imposed a fine of $50,000 and restitution in the amount of

$220,000 ($110,000 each for M.B. and A.A.). Gillette filed a

timely notice of appeal.

II. Discussion

A. Subject Matter Jurisdiction

We have jurisdiction over this appeal pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We must decide

whether the District Court had jurisdiction over the counts of

conviction pursuant to 48 U.S.C. § 1612(c). We exercise

plenary review over the question of whether the District Court

had jurisdiction. Solis v. Local 234, Transp. Workers Union,

585 F.3d 172, 176 (3d Cir. 2009).

1.

The District Court of the Virgin Islands derives its

jurisdiction from Article IV, § 3 of the United States

Constitution, which authorizes Congress to regulate the

territories of the United States. Parrot v. Gov’t of V.I., 230

F.3d 615, 622-23 (3d Cir. 2000). This distinguishes it from

other federal courts, whose jurisdiction is grounded in Article

III. Id. at 623. Because Congress establishes the scope of the

Virgin Islands District Court’s jurisdiction by statute, we

must determine whether § 1612(c) was intended to confer on

the District Court the authority to adjudicate charges of local

crimes when the related federal counts are dismissed.

Congress enacted § 1612(c) as part of its 1984

amendments to the Revised Organic Act of 1954 (“the

Revised Organic Act”), 48 U.S.C. §§ 1541-1645. See 48

9

U.S.C. §§ 1611-1615 (West 1987 & Supp. 2000) (codifying

1984 amendments). Prior to the 1984 amendments, the

District Court exercised broad jurisdiction over Virgin Islands

crimes pursuant to the Revised Organic Act, which vested the

District Court with jurisdiction over all matters arising under

local Virgin Islands law, except civil cases in which the

amount in controversy was less than $500 and criminal cases

in which the maximum punishment did not exceed six months

in prison or a $100 fine. Act of July 22, 1954, ch. 558, 68

Stat. 506 (1954); Callwood v. Enos, 230 F.3d 627, 630 (3d

Cir. 2000). Under this framework, the District Court was

“more like a state court of general jurisdiction than a United

States district court.” Carty v. Beech Aircraft Corp., 679 F.2d

1051, 1057 (3d Cir. 1982).5

Three decades later, Congress passed the 1984

amendments to the Revised Organic Act in an effort to

“establish[] the framework for a dual system of local and

federal judicial review.” Parrott, 230 F.3d at 619; 48 U.S.C.

§§ 1611-1616 (codifying amendments). Seeking to put an

end to the “situation of both the district court and the local

court having jurisdiction over strictly local causes,” 130

Cong. Rec. S. 23789 (Aug. 10, 1984), Congress provided the

Virgin Islands legislature with a mechanism to divest the

District Court of jurisdiction over cases arising under Virgin

Islands law.6 See 48 U.S.C. §§ 1611(b), 1612(b). In doing

5

We have thoroughly examined the evolution of the

Virgin Islands District Court’s jurisdiction in prior decisions.

See, e.g., Parrott, 231 F.3d at 619 n.3; Carty, 679 F.2d at

1053-57; United States v. George, 625 F.2d 1081, 1087-88

(3d Cir. 1980).

10

so, however, Congress specifically provided that the District

Court would retain concurrent jurisdiction over charges

alleging local crimes that are related to federal crimes. See 48

U.S.C. § 1612(c). Accordingly, when the Virgin Islands

legislature vested original jurisdiction over local criminal

actions in the local courts of the Virgin Islands, the District

Court retained concurrent jurisdiction pursuant to § 1612(c).

One of the explicit purposes in creating the concurrent

jurisdiction statute was “to obviate the need for trying in

different courts separate aspects of the same offense or of

closely related offenses.” 130 Cong. Rec. S. 23789 (Aug. 10,

1984). To that end, 48 U.S.C. § 1612(c) provides:

The District Court of the Virgin

Islands shall have concurrent

jurisdiction with the courts of the

Virgin Islands established by local

law over those offenses against

the criminal laws of the Virgin

Islands, whether felonies or

misdemeanors or both, which are

of the same or similar character or

6

The Virgin Islands legislature vested original

jurisdiction in its local courts effective January 1, 1994. See

V.I. Code Ann. tit. 4, § 76(b). At that time, the local court

was known as the Territorial Court. On September 30, 2004,

however, the Virgin Islands legislature passed Bill No. 25-

0213, renaming the Territorial Court the Superior Court of the

Virgin Islands, effective October 20, 2004. Pichardo v. V.I.

Comm’r of Labor, 613 F.3d 87, 90 n.1 (3d Cir. 2010).

11

part of, or based on, the same act

or transaction or two or more acts

or transactions connected together

or constituting part of a common

scheme or plan, if such act or

transaction or acts or transactions

also constitutes or constitute an

offense or offenses against one or

more of the statutes over which

the District Court of the Virgin

Islands has jurisdiction . . . .

Id. Here, the parties do not dispute that Gillette’s federal and

local charges were sufficiently related to trigger concurrent

jurisdiction under § 1612(c). Gillette maintains, however,

that the District Court’s dismissal of the federal charges

deprived it of jurisdiction over the local charges.

2.

Gillette asserts that “if the actions which create

liability under Virgin Islands local law do not create criminal

liability under federal law, then the District Court lacks

concurrent jurisdiction.” (Reply Br. 3.) Gillette’s argument

is based on the text of § 1612(c), which grants concurrent

jurisdiction where violations of local law also “constitute an

offense or offenses” against federal law. 48 U.S.C. § 1612(c).

Section 1612(c), however, does not condition the

exercise of concurrent jurisdiction over local charges on

whether the related federal offenses are proven. Indeed,

unlike the grant of concurrent jurisdiction to the United States

District Court for the District of Columbia in criminal cases,

12

see D.C. Code § 11-502(3), or the civil supplemental

jurisdiction statute, 28 U.S.C. § 1367, section 1612(c) does

not even require that a sufficiently related federal offense be

included in the indictment in order for the District Court to

exercise jurisdiction over the local charges.7 Instead, all that

7

D.C. Code § 11-502 provides:

In addition to its jurisdiction as a

United States district court and

any other jurisdiction conferred

on it by law, the United States

District Court for the District of

Columbia has jurisdiction of the

following:

....

(3) Any offense under any law

applicable exclusively to the

District of Columbia which

offense is joined in the same

indictment with any Federal

offense.” (Emphasis added).

28 U.S.C. § 1367 provides, in pertinent part:

[I]n any civil action of which the

district courts have original

jurisdiction, the district courts

shall have supplemental

jurisdiction over all other claims

that are so related to claims in the

action within such original

jurisdiction that they form part of

13

is required is that there be a sufficient nexus between the local

charges and “an offense or offenses against one or more of

the statutes over which the District Court of the Virgin

Islands has jurisdiction. . . .” 48 U.S.C. § 1612(c). Gillette’s

concession that there was the requisite nexus between the

local crimes and the federal offenses that were charged is

sufficient to end the jurisdictional inquiry, notwithstanding

the dismissal of the federal charges.

Even if joinder of a federal offense in the instrument

charging local crimes was required for exercise of concurrent

jurisdiction under § 1612(c), the subsequent dismissal of

federal charges does not impact the District Court’s

concurrent jurisdiction. Cf., United States v. Johnson, 46

F.3d 1166, 1171-72 (D.C. Cir. 1995) (holding that under the

District of Columbia Code the dismissal of federal charges

did not deprive the District Court for the District of Columbia

of jurisdiction over local charges). The seminal case

establishing that dismissal of properly joined federal charges

does not divest the District Court for the District of Columbia

of jurisdiction over local District of Columbia charges is

the same case or controversy

under Article II of the United

States Constitution. . . .

(Emphasis added).

Thus, exercise of jurisdiction over claims or charges

otherwise outside the authority of the district courts is

conditioned upon the existence of a claim or charge

over which the federal court has original jurisdiction.

Section 1612(c) is not similarly phrased.

14

United States v. Shepard, 515 F.2d 1324 (D.C. Cir. 1975). In

Shepard, the appellant was indicted on charges of robbery of

a federally insured state savings and loan association, in

violation of the United States Code, and armed robbery,

robbery, and assault with a dangerous weapon, in violation of

the District of Columbia Code. Shepard, 515 F.2d at 1326-

27. The appellant was tried before a jury in the United States

District Court for the District of Columbia, which exercised

jurisdiction over the District of Columbia Charges under D.C.

Code § 11-502. Id. Section 11-502 grants the District Court

for the District of Columbia jurisdiction over “[a]ny offense

under any law applicable exclusively to the District of

Columbia which offense is joined in the same information or

indictment with any Federal offense.” D.C. Code § 11-

502(3). Before the case was submitted to the jury, the

government dismissed the federal offense – robbery of a

savings and loan association. Shepard, 515 F.2d at 1327.

The jury subsequently found the appellant guilty of armed

robbery and assault with a deadly weapon. Id. at 1328. The

appellant challenged his conviction, arguing that the district

court’s jurisdiction over the District of Columbia Code

offenses “lapsed when the federal count in the indictment was

dismissed.” Id.

The Court of Appeals for the District of Columbia

disagreed, holding that “where federal and local offenses have

been properly joined in one indictment and jeopardy has

attached, the District Court may proceed to a determination of

the local offenses regardless of any intervening disposition of

the federal counts.” Id. at 1331. In reaching this conclusion,

the Shepard court looked to the civil law doctrine of

supplemental jurisdiction, which allows federal courts to

exercise jurisdiction over claims arising under state law if

15

those claims share “a common nucleus of operative fact” with

claims arising under federal law. United Mine Workers of

America v. Gibbs, 383 U.S. 715, 725 (1966). As the Shepard

court noted, once a U.S. District Court has properly acquired

supplemental jurisdiction, “it may determine all questions

arising, irrespective of the disposition of the federal claim.”

Shepard, 515 F.2d at 1330; see also Henglein v. Informal

Plan for Plant Shutdown Benefits for Salaried Emps., 974

F.2d 391, 398 (3d Cir. 1992) (“[I]t is well settled that, after

disposal of a federal claim, a district court has discretion to

hear, dismiss, or remand a supplemental claim for which there

is no independent basis for federal subject matter

jurisdiction.”).

Using this doctrine as “a model for the resolution of

[its] case,” the Shepard court observed that a goal of

supplemental jurisdiction is to promote efficiency and

conservation of judicial resources, and that this goal is

particularly significant when a district court has received

evidence on both claims prior to dismissal of the federal

claims. Shepard, 515 F.2d at 1330. Similarly, the court

reasoned, Congress’s goal in passing § 11-502(3) was to

“minimize . . . the burdens on the courts and prosecution,”

and this goal would be served “where an indictment charging

offenses arising from a single factual situation [could] be tried

in a single proceeding rather than in two proceedings in

separate courts.” Id. at 1330-31. Given the “serious

duplication of effort” that would result if the District Court

for the District of Columbia were forced to relinquish

jurisdiction over District of Columbia charges even after a

trial commenced, the Shepard court concluded that mid-trial

dismissal of federal charges did not divest the federal court of

its jurisdiction. Id. at 1331.

16

We are persuaded by Shepard’s reasoning. Congress’s

purpose in enacting 48 U.S.C. § 1612(c) was the same as its

purpose in passing D.C. Code § 11-502(3): to prevent the

need for multiple trials in different courts of “separate aspects

of the same offense or of closely related offenses.” 130

Cong. Rec. S. 23789 (Aug. 10, 1984). Gillette’s

interpretation of § 1612(c) would eviscerate this express

congressional purpose. Instead of conserving judicial

resources by providing for one trial on all related counts,

Gillette’s interpretation of § 1612(c) would force the

government to either bring the charges in two different trials,

or risk investing significant energy in proving local charges in

the District Court, only to see them dismissed if it was

unsuccessful in proving the federal charges. Nothing in the

legislative history nor the plain language of § 1612(c)

supports the conclusion that Congress intended to make “the

disposition of the local charges turn upon the strength of the

Government’s case in support of the federal counts.” See

Shepard, 515 F.2d at 1329. On the contrary, § 1612(c) does

not make District Court jurisdiction depend on the existence

of a federal charge. It merely requires that the local charge be

of the same or similar character as a federal crime over which

the District Court of the Virgin Islands has jurisdiction, or

that the local charge be based upon acts or transactions that

also constitute a federal offense. As this requisite relationship

concededly existed at the inception of the Gillette’s criminal

case, the mid-trial disposition of the federal charges is simply

irrelevant to the exercise of jurisdiction over the local

charges.

3.

17

Gillette, however, argues that the federal charges

should not have made it to trial, asserting that the District

Court should have dismissed them pursuant to his pre-trial

motion to dismiss. The premise of Gillette’s argument – that

the motion to dismiss the federal charges should have been

granted before trial – is unsound.8

Gillette moved to dismiss Count 1 of the indictment on

the basis that he had not traveled in interstate commerce after

SORNA became effective. Because interstate travel is a

necessary element of that statute, see 18 U.S.C. §

2250(a)(2)(b), he argued that applying SORNA to him would

violate the Ex Post Facto Clause of the United States

Constitution. After considering Gillette’s motion to dismiss

Count 1, the District Court ordered the government to

“represent to the Court when Gillette last traveled in interstate

commerce.” (J.A. 0209.) The Government complied,

explaining that it “ha[d] no evidence tending to indicate post

2003 interstate travel . . . .” (Id. 0210.) Nevertheless, the

District Court denied the motion without prejudice,

“believ[ing] it to be premature to find the fact that Gillette

ha[d] not traveled in interstate commerce after July 27, 2006,

without hearing the evidence at trial.” (Id. 0008.)

It is well-established that an indictment “is enough to

call for a trial of the charge on the merits” so long as it is

facially sufficient. Huet, 665 F.3d at 594-95 (citing United

States v. Vitillo, 490 F.3d 314, 320 (3d Cir. 2007)). An

indictment is facially sufficient if it:

8

Our review of the District Court’s legal conclusions

as to the motion to dismiss is plenary. United States v. Huet,

665 F.3d 588, 594 (3d Cir. 2012).

18

(1) contains the elements of the

offense intended to be charged,

(2) sufficiently apprises the

defendant of what he must be

prepared to meet, and (3) allows

the defendant to show with

accuracy to what extent he may

plead a former acquittal or

conviction in the event of a

subsequent prosecution.

Id. at 595 (quoting Vitillo, 490 F.3d at 321). We have

explained that, in general, “an indictment will satisfy these

requirements where it informs the defendant of the statute he

is charged with violating, lists the elements of a violation

under the statute, and specifies the time period during which

the violations occurred.” Id. Here, the indictment met each

of these three requirements: it charged Gillette with failure to

register as a sex offender in violation of 18 U.S.C. § 2250(a),

it listed the elements of that statute—including the interstate

travel element, alleged that Gillette violated each of the

elements, and set forth a time period during which the alleged

violations occurred. Thus, the indictment was facially valid.

Gillette moved to dismiss Count 1 by arguing that the

Government could not make out a necessary element of the

charge. However, our precedents make clear that a pretrial

motion to dismiss pursuant to Federal Rule of Criminal

Procedure 12(b)(3) “allows a district court to review the

sufficiency of the government’s pleadings,” Huet, 665 F.3d at

595 (emphasis added), but it is “not a permissible vehicle for

addressing the sufficiency of the government’s evidence.” Id.

19

(emphasis added) (quoting United States v. DeLaurentis, 230

F.3d 659, 660 (3d Cir. 2000)). Indeed, a district court is

prohibited from examining the sufficiency of the

government’s evidence in a pretrial motion to dismiss

because “[t]he government is entitled to marshal and present

its evidence at trial, and have its sufficiency tested by a

motion for acquittal pursuant to Federal Rule of Criminal

Procedure 29.” Id. Thus, as we explained in Huet, a district

court considering a pretrial motion to dismiss is “limited to

determining whether, assuming all of [the facts alleged in the

indictment] as true, a jury could find that the defendant

committed the offense for which he was charged.” Id. at 596.

Gillette contends that the Government stipulated

before trial that he had not traveled in interstate commerce

after SORNA became effective. We have suggested in past

cases that there may be an exception to the general rule

barring a court from addressing sufficiency of the evidence

before trial where “there is a stipulated record.” DeLaurentis,

230 F.3d at 659. However, as we noted in Huet, “we have

never explicitly held that such an exception exists, much less

defined its contours.” Huet, 665 F.3d at 598 n.8. We

declined to define such an exception in Huet, and we also

decline to do so now, particularly because the appeal before

us does not present a stipulated record. A stipulation is “[a]

voluntary agreement between opposing parties concerning the

same relevant point.” Black’s Law Dictionary 1550 (9th ed.

2009). Here, there was no voluntary agreement between

Gillette and the Government that he had not traveled

interstate. Instead, the Government answered truthfully that,

at the time the District Court inquired pretrial, it could not

come forward with evidence of that travel. This

representation did not strip the Government of its right to

20

“marshal and present its evidence at trial.” Huet, 665 F.3d at

595. Accordingly, the District Court did not err in denying

Gillette’s pretrial motion to dismiss Count 1.

Even if Count 1 should have been dismissed before

trial, the District Court did not err in denying Gillette’s

pretrial motion as to Count 2. Gillette had argued that the

Wetterling Act did not apply to him because the Virgin

Islands sex offender registration law, V.I. Code Ann. tit. 14 §

1722, allegedly did not require him to register. The District

Court was unpersuaded, finding that Gillette violated the

Wetterling Act if he was required to register under New

Mexico’s sexual offender program and later changed his

residence to the Virgin Islands without registering with the

Virgin Islands and the FBI.9

Although the District Court ultimately dismissed

Count 2 midtrial, it did so on an entirely different basis. The

District Court dismissed Count 2 for failing to state an

offense because the Court concluded that the Virgin Islands—

a territory of the United States—is not a State as

contemplated by the Wetterling Act.10 The District Court

raised this issue sua sponte, as Gillette did not assert it in

either his pretrial motion or Rule 29 motion.11 Thus, the

9

For the text of the relevant portion of the Wetterling

Act, see supra note 4.

10

We express no opinion as to the merits of the

District Court’s interpretation of the Wetterling Act.

21

District Court committed no error by denying Gillette’s

pretrial motion to dismiss Count 2 on a basis it found

unpersuasive, and Gillette cannot claim error in the District

Court’s failure to dismiss Count 2 before trial on a ground

never presented by Gillette.

Finally, Gillette’s contention that the District Court’s

dismissal of the federal charges means that the District Court

lacked subject matter jurisdiction is without merit. Gillette’s

argument conflates the grounds upon which the District Court

dismissed Counts 1 and 2 with a lack of subject matter

jurisdiction. Neither insufficiency of the evidence nor failure

to state an offense means that the charged conduct was

outside the authority of the District Court to adjudicate.

11

In fact, Gillette’s attorney all but conceded that the

Virgin Islands is a State within the meaning of the Wetterling

Act, asserting at the Rule 29 hearing:

I do not have an issue with

the fact that the statute applies to

the Virgin Islands by definition,

and might have been intended by

statute.

If I give – and if the Court

finds that I’m wrong, I will be

happy to accept that, okay, so I’m

not conceding it, but as I said, I do

not have a problem with that

interpretation. . . .

(J.A. 1104-05.)

22

Thus, the District Court’s dismissal of Counts 1 for

insufficiency of the evidence and Count 2 for failure to state

an offense has no bearing on the question of the District

Court’s subject matter jurisdiction over those counts. For this

reason, we reject Gillette’s argument that the District Court

could not have obtained concurrent jurisdiction over the local

Virgin Islands charges because it lacked such jurisdiction

over the federal charges at the inception of the case.

B. Competency

Gillette argues that both the Magistrate Judge and the

District Court erred by failing to hold a hearing to determine

his competency, and that there is a reasonable probability that

he was tried while incompetent. We exercise plenary review

over a district court’s interpretation and application of the

standards for determining competency, but we review for

clear error a district court’s decision not to hold a competency

hearing. United States v. Leggett, 162 F.3d 237, 241 (3d. Cir.

1998).

Due process prohibits the conviction of a legally

incompetent person. Pate v. Robinson, 383 U.S. 375, 378

(1966). A defendant is legally incompetent if the defendant

“lacks the capacity to understand the nature and object of the

proceedings[,] . . . to consult with counsel, and to assist in

preparing a defense.” Leggett, 162 F.3d at 241 (quoting

Drope v. Missouri, 420 U.S. 162, 171 (1975)).

The procedure for determining competency is set forth

in 18 U.S.C. § 4241, which provides, in relevant part:

23

(a) Motion to determine

competency of defendant.--

At any time after the

commencement of a

prosecution for an offense and

prior to the sentencing of the

defendant . . . the defendant or

the attorney for the

Government may file a motion

for a hearing to determine the

mental competency of the

defendant. The court shall

grant the motion, or shall order

such a hearing on its own

motion, if there is reasonable

cause to believe that the

defendant may presently be

suffering from a mental

disease or defect rendering

him mentally incompetent to

the extent that he is unable to

understand the nature and

consequences of the

proceedings against him or to

assist properly in his defense.

(b) Psychiatric or psychological

examination and report.--

Prior to the date of the

hearing, the court may order

that a psychiatric or

psychological examination of

the defendant be conducted,

24

and that a psychiatric or

psychological report be filed

with the court . . . .

§ 4241. As the text of § 4241 makes clear, a court must

conduct a competency hearing if there is “reasonable cause”

to believe the defendant is incompetent, whether or not either

party requests it.

To determine whether such reasonable cause exists, a

court must consider the unique circumstances of each case to

decide if the defendant “(1) has the capacity to assist in her or

his own defense and (2) comprehends the nature and possible

consequences of trial. If either prong is not met, a court has

reasonable cause to order a competency hearing.” United

States v. Jones, 336 F.3d 245, 256 (3d Cir. 2003). In making

this determination, “a district court must consider a number of

factors, including ‘evidence of a defendant’s irrational

behavior, his demeanor at trial, and any prior medical opinion

on competence to stand trial.’” Id. (citing Leggett, 162 F.3d

at 242).

Gillette’s attorney made a motion requesting a

competency evaluation on September 19, 2007. The

Magistrate Judge granted the request, and a forensic

psychologist evaluated Gillette. The psychologist concluded

Gillette was competent to stand trial, explaining:

While Mr. Gillette has been

diagnosed with a thought

disorder, Delusional Disorder

should not be expected to

significantly compromise his

25

perception or comprehension of

reality related to his legal

circumstances. . . . He has

demonstrated a rational and

factual understanding of the

proceedings against him, and

sufficient ability to consult with

his attorney with a reasonable

degree of rational understanding. .

. . Mr. Gillette is not currently

suffering from a mental disease or

defect rendering him mentally

incompetent to the extent he is

unable to understand the nature

and consequences of the

proceedings against him or

properly assist in his defense.

(J.A. 1621.) After receiving the competency report, Gillette

did not request a hearing on competency, and the District

Court did not order one.

Gillette now contends it was error not to hold a hearing

on competency, asserting that § 4241 “always contemplates

that a competency hearing will be held where a court has

ordered a psychological evaluation.” (Appellant’s Br. 26.)

He points to § 4241(b), which states that the court may order

a psychiatric or psychological evaluation “[p]rior to the date

of the hearing,” reasoning that this language assumes a

hearing will be held where a competency evaluation is

ordered. Gillette also points to § 4241(a), which states that a

court “shall” order a hearing. Gillette fails to note, however,

that the obligation to hold a competency hearing is triggered

26

only when a court finds that there is reasonable cause to doubt

competency. See § 4241(a) (“[T]he court shall grant the

motion, or shall order such a hearing on its own motion, if

there is reasonable cause to believe that the defendant [is

incompetent].”) (emphasis added). In addition, § 4241(b)

discusses the court’s authority to order an evaluation after

having already ordered a competency hearing. In other

words, the obligation to order a hearing is not triggered under

§ 4241(a) unless the court has reasonable cause to doubt a

defendant’s competency, and § 4241(b) does not apply unless

a court has already ordered a hearing under § 4241(a).

Moreover, nothing in the text of § 4241 prohibits a court from

ordering a psychological evaluation without finding it has

reasonable cause to doubt competency. Thus, a district court

errs in failing to hold a competency hearing only if there is

reasonable cause to believe that the defendant is incompetent.

After carefully examining the record, we hold that

neither the Magistrate Judge nor the District Court clearly

erred in failing to order a competency hearing. Both judges

had before them a report by a qualified medical professional

concluding that, although Gillette suffered from Delusional

Disorder, he was legally competent. The psychologist’s

conclusion comports with the behavior Gillette exhibited

throughout the case, during which Gillette testified that he

was employed by the CIA,12 suffered from a traumatic brain

12

Testifying before the Magistrate Judge on October

1, 2007, Gillette stated that he had worked for the CIA since

1974. When questioned, he responded: “Before I answer

your question, sir, I must ask that I be granted all rights,

privileges, immunities and guarantees covered by me by the

CIA and the White House.” (J.A. 87.)

27

injury,13 was currently a semi-professional pool player,14 and

was “disabled a hundred percent,”15 but nevertheless also

13

Gillette testified before the District Court that he

suffered a traumatic brain injury while serving in the military

in Vietnam. When asked on direct examination what the

effect of the brain injury was, Gillette responded:

For example, we all at some time

wake up in the morning. We

don’t know if it’s a, say a Tuesday

or a Wednesday. Well, not often,

but at times, I will wake up and

not even know the day. I

wouldn’t know Sunday, Monday,

Tuesday, Wednesday, Thursday,

Friday, Saturday. And I will have

to take and go out to the computer

and look at the computer to jog

my memory.

(J.A. 1237-38.)

14

Testifying to the activities he did with M.B., Gillette

stated that he taught M.B. how to play pool, because he was

“a semi-professional pool player.” (J.A. 1252.)

15

Gillette testified that he was retired and “disabled a

hundred percent” in response to questioning on direct

examination about why he began helping M.B. with his

homework. Gillette’s testimony seems to have been intended

28

exhibited an ability to understand the charges against him and

to assist in his defense. Indeed, Gillette’s communications

with his lawyer demonstrated that he understood the legal

proceedings against him. One note Gillette wrote to his

counsel during trial explained “[b]ecause I might testify, she

will bring up the 1983 conviction; therefore, you need to

study three areas. . . .” (S.A. 298.) Furthermore, Gillette’s

attorney made statements to the court indicating that Gillette

was involved in preparing his defense. Requesting that the

court order the Bureau of Corrections to provide Gillette with

reading glasses and writing materials, trial counsel explained

“it gives him the opportunity to research, because this

gentleman is not stupid to me, the things them (sic) he’s

telling me, but he wants to research and verify certain things

for himself.” (S.A. 280-81.) Taken as a whole, the record

does not establish reasonable cause to believe Gillette was

incompetent. Therefore, we find that the District Court

committed no error in failing to hold a competency hearing.

C. Counsel’s Motions to Withdraw

Gillette next argues the Magistrate Judge and District

Court erred by denying his trial counsel’s requests for

withdrawal in violation of his Sixth Amendment right to

counsel. This argument is unavailing.

The Sixth Amendment guarantees indigent defendants

the right to appointed counsel, but that right is “not without

limit and cannot be the justification for . . . manipulation of

the appointment system.” Fischetti v. Johnson, 384 F.3d 140,

to explain why he had extra time in his schedule to get

involved with M.B.. (J.A. 1254.)

29

145 (3d Cir. 2004). A district court’s refusal to substitute

counsel is reviewed for abuse of discretion. United States v.

Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995). We have held

that a district court abuses its discretion only if “good cause is

shown for the defendant’s dissatisfaction with his current

attorney.” Id. (citing United States v. Welty, 674 F.2d 185,

187 (3d Cir. 1982)) (internal quotation marks omitted). We

have defined “good cause” as “a conflict of interest, a

complete breakdown of communication, or an irreconcilable

conflict with an attorney.” Id. Relying on these cases,

Gillette argues it was an abuse of discretion to deny Wynter’s

motions to withdraw because, in his view, Wynter’s

representation that “[a] breakdown in the attorney client

relationship exist[ed],” constituted good cause for

substitution. (J.A. 0215.)

As an initial matter, we note that Gillette appeals the

District Court’s denial of his attorney’s motions to withdraw,

not the denial of any motion for substitution filed by Gillette

himself. Therefore, the case law Gillette cites does not neatly

apply here. Although Wynter testified at the February 4,

2008 hearing that Gillette had asked him to withdraw, it is not

clear that the remaining motions were filed at Gillette’s

request. However, even if we construe Wynter’s motions to

withdraw as requests by Gillette for substitution of counsel,

we conclude that neither the Magistrate Judge nor the District

Court erred in determining that “good cause” for substitution

was lacking.

Both the Magistrate Judge and the District Court made

extensive inquiries into Wynter’s pretrial motions to

withdraw. The Magistrate Judge held a hearing after

Wynter’s first motion, during which Gillette himself testified

30

at length. In denying the motion for withdrawal, the

Magistrate Judge expressed concern that Gillette was seeking

to “manipulate the Court” and “frustrate the process,” by

alleging that his lawyers were incompetent. (S.A. 264-65.)

He also observed that Gillette had already successfully

received substitute counsel once. Accordingly, he denied

Wynter’s motion for withdrawal. On March 17, 2008, the

District Court presided over a subsequent withdrawal hearing,

where Gillette again testified at length. Gillette’s testimony

at that hearing was equivocal, and at one point he stated that

he “would have no objection” to further representation by

Wynter provided he filed certain motions. (S.A. 337.)

While it was clear at both hearings that the relationship

between Gillette and Wynter was not without friction, it was

also clear that the relationship had not suffered a complete

breakdown requiring substitution of counsel. In addition,

Gillette had already substituted counsel once in the case, and

both the Magistrate Judge and the District Court had reason to

find that substitution would unduly delay the proceedings.

Accordingly, we conclude that there was no abuse of

discretion in denying Wynter’s motions to withdraw.

D. Reasonableness of Gillette’s Sentence

Gillette next argues his sentence was substantively

unreasonable because the District Court “effectively

sentence[ed him] to death,” without properly considering his

age and history of mental illness. (Appellant’s Br. 51.) We

are not persuaded.

Our review of the substantive reasonableness of a

district court’s sentence is highly deferential, and we will

31

affirm “unless no reasonable sentencing court would have

imposed the same sentence on that particular defendant for

the reasons the district court provided.” United States v.

Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). Further,

because Gillette did not object to the imposition of

consecutive sentences at sentencing, “we review the matter

only to assure that ‘plain error’ was not committed.” United

States v. Pollen, 978 F.2d 78, 88 (3d Cir. 1992). Under either

standard, we find the District Court’s sentence to be

substantively reasonable.

First, Gillette was convicted of several counts of both

Aggravated Rape in the First Degree and Aggravated Rape in

the Second Degree, V.I. Code Ann. tit. 14, §§ 1700, 1700a,

and the statutory maximum under both provisions is life

imprisonment.16 Thus, the District Court had discretion to

sentence Gillette to a term of life imprisonment under either

statutory provision, even without imposing consecutive

sentences.

Second, we agree with the District Court that its

sentence served several purposes, including protecting the

16

Gillette was convicted of eight counts of

Aggravated Rape in the First Degree, V.I. Code Ann. tit. 14, §

1700, which provides that a person convicted under that

statute “shall be imprisoned for life or for any term of years,

but not less than fifteen years,” and two counts of

Aggravated Rape in the Second Degree, V.I. Code. Ann. tit.

14, § 1700a(a), which provides that whoever is convicted

under that provision “shall be imprisoned for life or for any

term in years, but not less than 10 years.”

32

public and providing just punishment for the severity of

Gillette’s crimes. Explaining its sentence, the District Court

stated:

The acts of this defendant are

morally repulsive. He has in a

very heinous and devious fashion

violated two young boys in this

territory. This is Mr. Gillette’s

second conviction involving

sexually violating minors. He

served about twenty-seven years

of incarceration,17 and again finds

himself before us, this court

system, for substantially the same

offenses. The sentence which I

am about to impose will certainly

reflect how serious these offenses

are. I hope they provide a respect

for the law, and it’s a just

punishment for the offenses for

which he has been found guilty,

and hope that they would provide

deterrence from further crimes.

And also protect the public from

further crimes of this type.

17

The District Court appears to have been mistaken

about the number of years Gillette was incarcerated. The

record indicates that he served eighteen years of incarceration

for a twenty-seven year sentence. (J.A. 0055, 1404.)

33

(J.A. 1556-57.) As the District Court noted, Gillette was a

repeat sexual offender who previously spent eighteen years in

prison for his unlawful sexual contact with a minor in New

Mexico only to move to the Virgin Islands and victimize two

other children. Given this history, the District Court

reasonably determined that Gillette posed a continuing danger

to the public. Additionally, the District Court’s sentence

properly reflects the seriousness and extent of the harm

Gillette’s crimes caused to his victims.

Gillette contends the District Court failed to

adequately explain its sentence, and erred by failing to

discuss or account for Gillette’s age and history of mental

illness. We disagree. As set forth above, the District Court

adequately explained the reasons for its sentence, and we find

the record abundantly supports the sentence. Therefore, we

will affirm the substantive reasonableness of the District

Court’s sentence.

E. Restitution

Finally, Gillette challenges the District Court’s

restitution order. He argues that he should not have been

ordered to pay restitution because he was not convicted of a

property crime; the expenses for which restitution was

imposed are speculative; there is no record of his ability to

pay restitution; and a reasonable payment schedule was not

established. We review the District Court’s imposition of

restitution for plain error because Gillette did not challenge it

at sentencing. United States v. Hawes, 523 F.3d 245, 255 (3d

Cir. 2008).

34

The District Court ordered restitution pursuant to Title

34, Section 203 of the Virgin Islands Code, which is

commonly referred to as the “Victims’ and Witness’ Bill of

Rights.” Gillette’s argument that restitution is proper only in

cases involving property crimes is foreclosed by this statute,

which provides in pertinent part:

A victim has a right to receive

restitution for expenses or

property loss incurred as a result

of the crime. The judge shall

order restitution at every

sentencing for a crime against

person or property . . . unless the

court finds a substantial and

compelling reason not to order

restitution. . . .

34 V.I. Code Ann. § 203(d)(3). This provision clearly states

that restitution is proper for crimes “against person or

property.” Id. (emphasis added). We therefore reject

Gillette’s argument that restitution may only be ordered as

punishment for property crimes.

We also reject Gillette’s argument that restitution in

this case is inappropriate because calculation of the financial

harm Gillette’s victims will likely suffer is speculative. We

have held that, in calculating restitution, courts “must point to

the evidence in the record supporting the calculation of loss to

the victims,” based on “specific findings regarding the factual

issues.” United States v. Graham, 72 F.3d 352, 356-57 (3d

Cir. 1995). The District Court satisfied this requirement, as

the amount of restitution was based on itemized reports

35

prepared by a developmental and forensic pediatrician.

Because the District Court’s restitution order was based on

specific calculations of harm, it was not impermissibly

speculative.

Gillette also argues the District Court should have

conducted an inquiry into his ability to pay and established a

reasonable payment schedule as contemplated by 18 U.S.C. §

3663. This provision of the United States Code, however,

applies only to violations of federal law, and no similar

Virgin Islands legislation exists. To be sure, we have

“strongly recommended” that the Virgin Islands District

Court nevertheless conduct the type of inquiry set forth in 18

U.S.C. § 3663 as “a better, if not essential, practice.” Gov’t

of V.I. v. Marsham, 293 F.3d 114, 119 (3d Cir. 2002).

Indeed, in Marsham, we explicitly recommended an inquiry

into the defendant’s ability to pay restitution, even though 18

U.S.C. § 3663 no longer required it. Id. at 119 n.5.

Significantly, in recommending that the District Court

conduct such an inquiry, we did so “with the full

acknowledgement that although we deem this a most

desirable practice, a failure to initiate such an inquiry does not

at this stage constitute reversible error unless and until our

Court so holds.” Id. at 119. Since we decided Marsham in

2002, we have not held that failure to conduct this inquiry is

mandated, and we do not hold so now. Accordingly, we

conclude that the District Court did not plainly err in failing

to assess Gillette’s ability to pay restitution or to establish a

payment schedule.

III.

36

For the foregoing reasons, we will affirm the judgment

and sentence of the District Court.

37