In Re: LeRoy Richards

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

5-31-2000

In Re: LeRoy Richards

Precedential or Non-Precedential:

Docket 99-3234

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Filed May 31, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 99-3234

IN RE: LEROY RICHARDS

Nominal Respondent, Hon. Ive A. Swan, Appellant

On Appeal From the District Court of the Virgin Islands--

Appellate Division

(D.C. Civ. No. 97-cv-00123)

Honorable Raymond L. Finch and

Honorable Thomas K. Moore, Judges of the District Court

Honorable Edgar D. Ross, Judge of the Territorial Court*

Argued: December 8, 1999

Before: BECKER, Chief Judge, SCIRICA and GARTH,

Circuit Judges.

(Filed May 31, 2000)

LEON A. KENDALL, ESQUIRE,

(ARGUED)

General Counsel

Territorial Court of the Virgin

Islands

Alexander Farrelly Justice Center

P.O. Box 70

St. Thomas

United States Virgin Islands 00804

Counsel for Appellant Ive A. Swan

_________________________________________________________________

* Sitting by designation.

A. JEFFREY WEISS, ESQUIRE

A.J. Weiss & Associates

9618 Estate Thomas

Tramway Building No. 2, Suite 1

Charlotte Amalie, St. Thomas

United States Virgin Islands 00802

Counsel for Appellee Leroy Richards

IVER A. STRIDIRON, ESQUIRE

Attorney General

PAMELA R. TEPPER, ESQUIRE

Solicitor General

MAUREEN P. CORMIER,

ESQUIRE (ARGUED)

Assistant Attorney General

Office of the Attorney General of

the Virgin Islands

Department of Justice

48B-50 Kronprindsens Gade

GERS Building, 2nd Floor

Charlotte Amalie, St. Thomas

United States Virgin Islands 00802

Counsel for Appellee Government of

the Virgin Islands

OPINION OF THE COURT

BECKER, Chief Judge.

After the Government of the Virgin Islands had brought

criminal charges in the Territorial Court of the Virgin

Islands against Leroy Richards for sexual misconduct, the

Attorney General attempted to exercise the traditional

common law power of nolle prosequi and moved to dismiss.

However, the Territorial Court, suspicious of the

Government's motives, resisted and scheduled a hearing to

explore further the underlying facts. Before that hearing

could be held, but after the submission of an affidavit from

the original complainant indicating her desire to terminate

the matter, Richards sought a writ of mandamus from the

Appellate Division of the District Court of the Virgin

2

Islands, seeking to compel the Territorial Court to dismiss

the charges against Richards. The District Court granted

the writ, concluding that the local court rule under which

the Territorial Court pursued the hearing violated the

Revised Organic Act ("ROA"), 48 U.S.C. S 1541 et seq.,

because it trammeled upon the prosecutor's substantive

authority under local law. The court reasoned that the ROA

did not accord local courts the authority to promulgate

such substantive laws, rendering the local rule used to

justify the Territorial Court's conduct null and void. This

appeal followed.

The appeal presents several important questions of

judicial governance in the Virgin Islands. First, does the

District Court have mandamus jurisdiction over the

Territorial Court? We conclude that it does. The local

legislature, acting under the authority granted it by the

ROA, has extended appellate jurisdiction to the District

Court over criminal matters other than those resolved by

guilty plea. The jurisprudence is clear that jurisdiction to

issue writs of mandamus lies in cases where potential

jurisdiction exists, as it does here. Moreover, both local

statute, see 4 V.I.C. S 34, and the All Writs Act, 48 U.S.C.

S 1651, give the District Court the authority to issue writs

of mandamus. We further conclude that the ROA's

command that the relationship between the District Court

and local courts mirror the one between state and federal

courts is not a bar to the District Court's exercise of

mandamus power because the District Court retains

appellate jurisdiction over the Territorial Court of the Virgin

Islands.

Having cleared the jurisdictional hurdle, Richards next

faces the challenge of establishing that the Territorial Court

exceeded its authority in scheduling a hearing on the

matter of Richards's prosecution rather than promptly

dismissing it as requested by the parties. We conclude that

Richards has not met this burden. The Territorial Court

offers two procedural rules to justify its conduct. The first

justification, reliance on Local Rule 128(b), which precludes

dismissal of criminal cases absent a judicial finding that

the dismissal is in good faith, in the public interest, and in

the interests of justice, fails because the rule explicitly

3

allows the local court to substitute its judgment for that of

local prosecutors in deciding which cases should be

prosecuted. Because this judgment is reserved to

prosecutors under the old common law power of nolle

prosequi, Rule 128(b) is a substantive rule of law rather

than a procedural rule that the local court is authorized to

promulgate under the ROA. While the Virgin Islands

legislature may enact such a rule, the local court may not,

making Rule 128(b) a violation of the separation of powers

among the three branches of government of the Virgin

Islands as delineated by Congress.

The local rules of the Territorial Court apply the Federal

Rules in circumstances in which there are no valid rules to

the contrary, and hence the Territorial Court's actions may

possibly be justified by Fed. R. Crim. P. 48(a), which

provides that prosecutions shall only be dismissed by leave

of the court. In light of the traditional common law power

of nolle prosequi that allowed prosecutors total discretion in

determining which cases to pursue, the argument that this

rule also has a substantive component is not without force.

We believe, however, that though Rule 48(a) does not confer

unfettered discretion upon courts to resist motions to

dismiss, it does have a procedural component that allows

inquiry into the circumstances surrounding a dismissal in

a manner that does not sufficiently intrude upon the

prosecutorial domain to be viewed as a substantive rule.

In this case, the Territorial Court did not deny the motion

to dismiss but merely scheduled a hearing. In light of a

court's ability to use Rule 48(a) to let "sunshine" into areas

where local authorities may be suspected of inappropriate

dealings, we are not persuaded that the Territorial Court

behaved in a manner that required the extraordinary

remedy of mandamus. Accordingly, we will vacate the order

of the District Court with directions to remand the matter

to the Territorial Court. We do not do so, however, to give

that court carte blanche over prosecutorial decisions. The

Territorial Court may conduct a hearing on the

circumstances surrounding the Government's requested

dismissal before it surrenders jurisdiction, but it lacks the

power to compel the Government to take further steps to

prosecute Richards.

4

I.

In October 1995, Richards was charged by information

with the felony of second degree rape under 14 V.I.C.

S 1702. In April 1997, the Government amended the

information to include the misdemeanor of unlawful sexual

contact under 14 V.I.C. S 1709. On April 29, 1997, the

parties entered into a plea agreement pursuant to which

Richards would plead to the misdemeanor in return for

dismissal of the felony charges. The agreement was

presented to Judge Ive Swan of the Territorial Court, but,

based on the seriousness of the conduct initially alleged, he

rejected it and set the case for jury selection on June 2.

On May 21, the Government filed a new complaint,

arising out of the same incident, that contained only the

misdemeanor charge. At arraignment on the new complaint,

Richards attempted to enter a plea of guilty. The presiding

judge, Territorial Court Judge Brenda Hollar, became aware

of the parallel case pending before Judge Swan. Displeased

with what she perceived to be judge shopping, she referred

the matter to Judge Swan. On the same day, the

Government filed a motion requesting that Judge Swan

dismiss the original charges because the Government

lacked the ability to prove all the elements beyond a

reasonable doubt. Several weeks later, the Government

moved to dismiss the newer (misdemeanor only) charge as

well.

On June 12, Judge Swan held a hearing at which the

prosecutor requested that the charges be dropped in the

"interests of justice." Judge Swan refused to do so without

first examining the purported victim and prosecutors,

though he indicated that if the victim made clear that she

did not want the case to proceed and was aware of the

Government's plans to drop the case, he would end the

matter. He also expressed concern with the seriousness of

the crime charged and about what he perceived to be the

Government's attempt to circumvent his refusal to accept

the earlier plea agreement. Judge Swan scheduled a

hearing for July 17. On June 18, the Government and

Richards filed a joint motion to dismiss that reiterated the

prosecutor's conclusion that the case lacked merit. The

motion was accompanied by supporting affidavits from the

5

purported victim and her mother that made clear that they

did not wish the case to be prosecuted and that the

purported victim would not testify against Richards.

On July 2, Richards moved to stay the July 17 hearing

and to dismiss the case. He also claimed that the original

facts, as alleged, had been determined to be false. The

Government's response, filed on July 14, concurred with

Richards's motion and urged the court to not require the

purported victim and her mother to face the burden of

having to appear in court.

On July 15, 1997, the Territorial Court promulgated a

new local rule that amended Local Rule 128 to include new

subsections (b) and (c). These amendments empowered the

Territorial Court to refuse to dismiss cases unless the local

court determined that the dismissal is "in good faith, in the

public interest, and in the interest of justice." Also on July

15, Richards filed a petition in the District Court of the

Virgin Islands for a writ of mandamus and for a stay of the

July 17 hearing. The District Court granted the stay the

next day.

On March 19, 1998, the Appellate Division of the District

Court heard argument. Eleven months later, the court

granted the writ and ordered the counts against Richards

dismissed. It also declared the new Territorial Court Rule

128(b) to be null and void, holding that the Territorial Court

had exceeded its rulemaking authority when it promulgated

Rule 128(b). The Court concluded that the executive branch

in the Virgin Islands has exclusive control of the

prosecutorial function and that by transferring discretion

over the termination of prosecutions to the local court, Rule

128(b) was a substantive rule that was disallowed by the

ROA, which allows local courts to promulgate only

procedural rules. The District Court also rejected the

alternative argument that the refusal to dismiss could be

justified by Federal Rule of Criminal Procedure 48(a),

applied under Territorial Court Rule 7, which invokes the

federal rules of procedure in the absence of local rules to

the contrary. The court concluded that the Territorial

Court's application of Rule 48(a) would have similarly been

in excess of its rulemaking power. Having determined that

Judge Swan's conduct overstepped his authority, the

6

District Court ruled that Richards had met the other

conditions for receiving the extraordinary remedy of

mandamus and issued the writ. This appeal followed.

Our jurisdiction is based on 28 U.S.C. S 1291. We

discuss the District Court's jurisdiction to issue the

mandamus petition below. Our review of the jurisdictional

matters raised by this case is plenary. See Anthuis v. Colt

Indus. Operating Corp., 971 F.2d 999, 1002 (3d Cir. 1992).

We review the discretionary elements of the District Court's

grant of a writ of mandamus for abuse of discretion; our

review over the non-discretionary elements of the grant is

plenary. See Stehney v. Perry, 101 F.3d 925, 929 (3d Cir.

1996).

II.

Determining whether the Appellate Division of the

District Court possessed the jurisdiction to issue the writ in

the first instance requires three levels of analysis. We must

first consider whether the District Court has the requisite

jurisdiction over the Territorial Court to sustain the

exercise of mandamus power. If so, we need to decide

whether it possesses the statutory authority to issue writs

of mandamus. Finally, we must determine whether the

issuance of a writ of mandamus comports with the ROA's

dictate that the relations between the District Court and

the Territorial Court reflect those between federal and state

courts.

A.

Courts established by the Congress have authority to

issue "all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the usages and

principles of law." 28 U.S.C. S 1651. Thefirst question

before us is whether the District Court has any jurisdiction

in aid of which it could have issued a writ of mandamus

upon the Territorial Court. Untangling the issue requires

that we examine the ROA, which governs the territory's

court structure. See 48 U.S.C. S 1541 et seq. We have

elucidated the architecture of the ROA elsewhere, see Brow

7

v. Farrelly, 994 F.2d 1027 (3d Cir. 1993), and need not

rescribe that discussion save for a brief summary.

The ROA extends appellate jurisdiction over local courts

to the Appellate Division of the District Court to the extent

allowed by local law (subject to the proviso that the

legislature may not preclude District Court review of federal

matters). See 48 U.S.C. S 1613a(a). The Appellate Division

is generally composed of the two judges of the District

Court plus a third judge sitting by designation, who usually

comes from the Territorial Court. See 48 U.S.C. SS 1613a,

1614. Though the local legislature has the right to establish

a territorial appellate court, it has thus far not elected to do

so. In criminal matters, the Virgin Islands legislature has

extended appellate jurisdiction to the District Court in

"cases in which the defendant has been convicted, other

than on a plea of guilty." 4 V.I.C. S 33.

The Territorial Court, appearing here through Judge

Swan and represented by the Court's General Counsel,

contends that the District Court lacked subject matter

jurisdiction to issue the writ. More specifically, because

Richards was never convicted, it maintains that the District

Court lacked potential jurisdiction and, consequently, the

ability to issue a writ in aid of non-existent jurisdiction. We

disagree. Appellate courts have the power to issue writs of

mandamus prior to the filing of appealable orders when the

conditions requiring the writ exist. Cf. Helstoski v. Meanor,

442 U.S. 500, 506-08 (1979) (mandamus does not lie when

direct appeal is available); Pennsylvania v. Newcomer, 618

F.2d 246, 249 (3d Cir. 1980) (declaring mandamus should

be avoided when appeal is available through collateral order

doctrine). Indeed, the mandamus power would mean little if

it could not be invoked until the filing of an appealable

order. Were that so, litigants would rely exclusively on the

right to appeal, and mandamus power would be

superfluous. More specifically, jurisdiction to issue writs of

mandamus under 28 U.S.C. S 1651 lies in cases in which

potential appellate jurisdiction exists. See, e.g., In re

Chambers Dev. Co., 148 F.3d 214, 223 n.6 (3d Cir. 1998)

("Under the All Writs Act, the writ of mandamus can be

issued where `necessary or appropriate in aid of[the

court's] jurisdiction.' 28 U.S.C. S 1651(a). However, to

8

satisfy the jurisdictional prerequisite, it is not necessary

that the action in which the writ is sought be pending in

the court asked to issue the writ. Rather, it is only required

that the case may at some future time come within the

court's appellate jurisdiction.") (citation omitted);

Hahnemann v. Univ. Hosp., 74 F.3d 456, 460 (3d Cir.

1996); Glenmede Trust Co. v. Thompson, 56 F.3d 476, 482

(3d Cir. 1995).

Though mandamus is usually difficult to obtain, courts

sitting in their appellate capacity have heard mandamus

petitions filed by defendants over pretrial criminal

proceedings. See, e.g., Hilbert v. Dooling, 476 F.2d 355, 362

(2d Cir. 1973) (en banc) (employing mandamus to compel

district court to dismiss indictment); 16 Wright, Miller, &

Cooper, Federal Practice and Procedure S 3936.1 (2d ed.

1996) (collecting cases). Once jurisdiction is established,

the ability to issue writs in aid of potential appellate

jurisdiction sweeps broadly. "The power to issue such writs

in aid of our potential appellate jurisdiction comprehends

our responsibility for the orderly and efficient

administration of justice within the circuit." New York v.

U.S. Metals Ref. Co., 771 F.2d 796, 801 (3d Cir. 1985)

(quoting Rodgers v. U.S. Steel Corp., 508 F.2d 152, 161 (3d

Cir. 1975)).

The Territorial Court suggests that such authority should

be curtailed in this case, given the District Court's inability

to prescribe rules of practice and procedure for the

Territorial Court and its inability to regulate the admission

of attorneys to the Virgin Islands bar. As important as these

functions are, we do not consider them as relevant to the

question at hand as the District Court's main role with

respect to the Territorial Court, that of hearing appeals. It

is this authority that gives rise to the mandamus power,

not the authority referred to by the Territorial Court.

In sum, the District Court had potential appellate

jurisdiction over the case as Richards could have gone to

trial and been convicted. The Territorial Court points to no

cases that distinguish the current facts from the general

rule that potential appellate jurisdiction is sufficient for the

exercise of mandamus power.

9

B.

The next question is whether the District Court, as a

non-Article III court, had the statutory authority necessary

to issue a writ of mandamus in light of the structure

established by the Revised Organic Act. The issue seems

quite straightforward insofar as the Virgin Islands

legislature plainly intended to extend all writs power to the

District Court. See 4 V.I.C. S 34 ("The district court may

from time to time prescribe rules, consistent with law and

with the rules adopted by the Supreme Court, for the

conduct of its business and may issue writs of habeas

corpus, review and prohibition and all other writs and make

mandatory orders and all other orders necessary or

appropriate in aid of its original or appellate jurisdiction and

agreeable to the usages and principles of law.") (emphasis

added). Moreover, we have previously assumed that

mandamus authority properly lies with the District Court of

the Virgin Islands, see Brow v. Farrelly, 994 F.2d 1027,

1036 n.9 (3d Cir. 1993), and the District Court has so

exercised it, see Dawsey v. Gov't of the Virgin Islands, 931

F. Supp. 397 (V.I. App. Div.), aff 'd 106 F.3d 384 (3d Cir.

1996).

The Territorial Court contends, however, that the Virgin

Islands legislature lacked the authority to extend all writs

power to the District Court. This argument is based on the

fact that the ROA only permits the legislature to prescribe

the District Court's appellate jurisdiction. See 48 U.S.C.

S 1613a. The Territorial Court maintains that this limitation

is fatal to the exercise of mandamus power because

appellate jurisdiction is not inclusive of mandamus power.

For support of this proposition, it points to Congress's

making separate provisions for all writs jurisdiction and the

appellate power when it established the authority of the

federal courts of appeals. Compare 28 U.S.C.SS 1291, 1292

(delineating appellate jurisdiction of courts of appeals), with

28 U.S.C. S 1651 (delineating all writs power of federal

courts).

The thrust of the Territorial Court's objection, that all

writs power in aid of the appellate power is not

synonymous with the appellate power and therefore

requires an independent statutory basis, carries surface

10

appeal. We note in this regard that we have been reluctant

to recognize extensions to the District Court by the Virgin

Islands legislature of powers not explicitly permitted by the

ROA. See Moravian Sch. Advisory Bd. of St. Thomas v.

Rawlins, 70 F.3d 270 (3d Cir. 1995) (holding, in light of

Federal Rule of Civil Procedure that required dismissal and

absence of authority in ROA, district court lacked power to

transfer power case improperly filed in District and not

Territorial Court notwithstanding authorization by the

territorial legislature). We need not, however, grapple with

this issue. Whether appellate power inherently includes

mandamus power, is irrelevant to the outcome, for

Congress has granted all writs authority to all courts

"established by Act of Congress." The law makes no

distinction between Article III courts and those with

jurisdiction over territories that are established pursuant to

Congress's authority under Article IV S 3 of the

Constitution.

We discern no reason to doubt that the All Writs Act

means what it says, and therefore applies to all courts

established by Congress, even if they are not of the Article

III variety. This conclusion is not mere intuition. In an

analogous setting, the Supreme Court has declared that

military courts have all writs power because they are courts

created by congressional statute. See Noyd v. Bond, 395

U.S. 683, 695 n.7 (1969).1 The same has been held of the

Court of Veterans Appeals. See Cox v. West, 149 F.3d 1360,

1363 (Fed. Cir. 1998) ("[T]here is no qualifying language in

_________________________________________________________________

1. The Court noted:

Since the All Writs Act applies by its terms to any`courts

established by Act of Congress,' and since the Revisers of 1948

expressly noted that `[t]he revised section extends the power to

issue

writs in aid of jurisdiction, to all courts established by Act of

Congress, thus making explicit the right to exercise powers implied

from the creation of such courts,' we do not believe that there can

be any doubt as to the power of the Court of Military Appeals to

issue an emergency writ of habeas corpus in cases . . . which may

ultimately be reviewed by that court. A different question would,

of

course, arise in a case which the Court of Military Appeals is not

authorized to review under the governing statutes.

Id.

11

title 28 which limits the term `all courts established by Act

of Congress' to Article III courts or specifically excludes the

Court of Veterans Appeals. On the contrary, when Congress

wishes to specify a subset of courts, it does so explicitly.").

Similarly, the Court of Appeals for the Ninth Circuit has

recognized that the appellate division of the District Court

of Guam has authority to issue a writ of mandamus to the

Guam Superior Court under the All Writs Act. See Apusento

Garden (Guam), Inc. v. Superior Court of Guam, 94 F.3d

1346, 1349 (9th Cir. 1996) (citing Cruz v. Abbate, 812 F.2d

571, 573 (9th Cir. 1987)). In sum, it is clear that the

Appellate Division of the District Court of the Virgin Islands

has the power to issue writs of mandamus when it

possesses the requisite appellate jurisdiction.

C.

The final alleged barrier to the District Court's

mandamus jurisdiction raised by the Territorial Court

emerges from the ROA's mandate that relations between

the District Court and the Territorial Court mirror that

between federal and state courts.

The ROA states:

The relations between the courts established by the

Constitution or laws of the United States and the

courts established by local law with respect to appeals,

certiorari, removal of causes, the issuance of writs of

habeas corpus, and other matters or proceedings shall

be governed by the laws of the United States pertaining

to the relations between the courts of the United

States, including the Supreme Court of the United

States, and the courts of the several States in such

matters and proceedings . . . .

48 U.S.C. S 1613.

The Territorial Court argues that because federal courts

generally cannot issue mandamus orders to their state

counterparts, see In re Grand Jury Proceedings , 654 F.2d

268, 278 (3d Cir. 1981), the District Court could not visit

a mandamus order upon the Territorial Court. This

argument is unpersuasive. As explained supra in Part II.A,

12

the jurisdiction to issue writs of mandamus to another

court exists when a court has potential appellate

jurisdiction. While in the ordinary course of events, federal

courts (except for the Supreme Court) lack appellate

jurisdiction over their state counterparts, thus making

writs of mandamus generally inappropriate, the

relationship between the District Court of the Virgin Islands

and the Territorial Court of the Virgin Islands differs from

that between a federal and state court in one key respect--

until the Virgin Islands legislature creates a local appellate

court, the District Court has appellate jurisdiction over the

Territorial Court. Because mandamus lies in aid of

potential appellate jurisdiction, the District Court can issue

a writ of mandamus to the local court notwithstanding the

ROA's command that their relations be those of state and

federal courts.

Any lingering doubt in this regard is resolved by

precedent from the United States Supreme Court. That

federal court also has appellate jurisdiction over the state

courts. Consistent with this jurisdiction, the Supreme

Court has permitted the filing of writs of mandamus

against state courts. See General Atomic Co. v. Felter, 436

U.S. 493, 497 (1978) (granting leave to file writ of

mandamus against state court). In a similar vein, the

Supreme Court has proclaimed its ability to issue

injunctions to stay state court proceedings in

circumstances where lower federal courts cannot. See

Atlantic Coast R.R. Co. v. Bhd. of Locomotive Eng'rs , 398

U.S. 281, 296 (1970) ("Unlike the Federal District Court,

this Court does have potential appellate jurisdiction over

federal questions raised in state court proceedings, and

that broader jurisdiction allows this Court correspondingly

broader authority to issue injunctions `necessary in aid of

its jurisdiction.' "). Under certain circumstances, the Court

has also issued stays of state court injunctions in matters

that could eventually reach the Supreme Court on appeal.

See, e.g., CBS, Inc. v. Davis, 510 U.S. 1315, 1318

(Blackmun, Circuit Justice, 1994) (declaring that stay of

state lower court injunction is appropriate under All Writs

Act because injunction conflicts with Court precedent,

could warrant certiorari, and would cause irreparable harm

if it took effect).

13

For these reasons, we are satisfied that the District Court

had the requisite jurisdiction necessary to issue a writ of

mandamus to the Territorial Court. We now turn to the

question whether the writ was properly granted.

III.

Given their extraordinary character, writs of mandamus

are not to be issued lightly. "[O]nly exceptional

circumstances amounting to a judicial `usurpation of power'

will justify the invocation of this extraordinary remedy."

Citibank, N.A. v. Fullam, 580 F.2d 82, 86 (3d Cir. 1978)

(quoting Will v. United States, 389 U.S. 90, 95 (1967)). "The

traditional use of the writ in aid of appellate jurisdiction

both at common law and in the federal courts has been to

confine an inferior court to a lawful exercise of its

prescribed jurisdiction or to compel it to exercise its

authority when it is its duty to do so." Mallard v. U.S. Dist.

Court for the S. Dist. of Iowa, 490 U.S. 296, 308 (1989)

(quoting Roche v. Evaporated Milk Assn., 319 U.S. 21, 26

(1943)). Therefore, only clear errors of law that"at least

approach the magnitude of an unauthorized exercise of

judicial power, or a failure to use that power when there is

a duty to do so" require the writ. Lusardi v. Lechner, 855

F.2d 1062, 1069 (3d Cir. 1988).

A.

The contention that the Territorial Court usurped power

in not dismissing the charges against Richards is founded

on the venerable common law doctrine of nolle prosequi.

Under this doctrine, prosecutors have the power to decide

whether to proceed with the prosecution of a charged

defendant. Absent a controlling statute or rule to the

contrary, this power resides solely in the prosecutor's

hands until the impanelment and swearing of a jury. See

21 Am. Jur. 2d S 779 (1998). This common law power of

prosecutors had long been the rule in federal courts. For

example, in Confiscation Cases, 74 U.S. (7 Wall.) 454, 457

(1868), the Supreme Court declared:

Public prosecutions, until they come before the court to

which they are returnable, are within the exclusive

14

direction of the district attorney, and even after they

are entered in court, they are so far under his control

that he may enter a nolle prosequi at any time before

the jury is empaneled for the trial of the case, except in

cases where it is otherwise provided in some act of

Congress.

We discuss the impact the promulgation of Fed. R. Crim. P.

48(a) has had on this principle infra in Part III.C.

The Territorial Court argues that substantive common

law does not govern the issuance of dismissals in the Virgin

Islands. Our analysis of the Territory's laws and precedents

persuades us otherwise. In the absence of superseding

rules to the contrary, the common law prevails in the Virgin

Islands. See 1 V.I.C. S 4. The common law's vesting of

discretion in the hands of the prosecutor has been

previously recognized in Virgin Islands jurisprudence. See

Tonkin v. Michael, 349 F. Supp. 78 (D. V.I. 1972). Tonkin is

also notable insofar as it rescribes a wonderful--and highly

apposite--anecdote from the English Common Law, which

we set forth in the margin.2 Of course, the Virgin Islands

legislature could enact a law or rule to alter or eradicate the

nolle prosequi power. Until it does so, however, local

prosecutors retain the common law nolle prosequi power.

_________________________________________________________________

2. The Tonkin opinion recounts:

An incident related in 2 Campbell's Lives of the Chancellors 173 is

of interest in this connection. After he had ordered the

imprisonment of a group of fanatics called "Prophets" for seditious

language, Lord Holt was visited by Lacy, one of their friends, who

informed a servant that he carried a message "from the Lord God."

Lacy was admitted and told Lord Holt: "I come to you a prophet from

the Lord God, who has sent me to thee, and would have thee grant

a nolle prosequi for John Atkins, his servant, whom thou has cast

into prison." Lord Holt replied: "Thou art a false prophet, and a

lying

knave. If the Lord God had sent thee it would have been to the

Attorney-General, for He knows that it belongeth not to the Chief

Justice to grant a nolle prosequi; but I, as Chief Justice, can

grant

a warrant to commit thee to bear him company."

Tonkin, 349 F.Supp. at 81-82 n.9 (citing Justice Traynor in People v.

Sidener, 375 P.2d 641, 642, n.4 (Cal. 1962)).

15

The Territorial Court rejoins that Judge Swan's conduct

was justified by Local Rule 128(b) and, alternatively, Fed. R.

Crim. P. 48(a), which applies to the Territorial Court

through operation of Local Rule 7. We turn first to

consideration of Rule 128(b).

B.

On July 15, 1997, prior to the District Court's stay of

Judge Swan's hearing, the Territorial Court amended local

Rule 128 to include subsection (b), which states:

No criminal case filed in the court, including traffic

citations, shall be dismissed upon motion by any party

except upon a determination by the Court that the

dismissal is in good faith, in the public interest, and in

the interest of justice.

The Territorial Court submits that Rule 128(b) justifies

Judge Swan's conduct in not dismissing the charges and in

scheduling the July 17 hearing. The Government responds

that Rule 128(b) exceeds the Territorial Court's power

under the ROA. This argument demands contemplation of

the lines separating substance from procedure and the

legislative from the judicial.

The ROA provides that "[t]he rules governing the practice

and procedure of the courts established by local law. . .

shall be governed by local law or the rules promulgated by

those courts." 48 U.S.C. S 1611(c). It is clear from this

provision that the rules promulgated by the Territorial

Court must be respectful of the legislature's power to enact

substantive law. We have held that "the doctrine of

separation of powers applies with respect to the coordinate

branches of government in the Virgin Islands." Smith v.

Magras, 124 F.3d 457, 465 (3d Cir. 1997). It naturally

follows that the Territorial Court cannot exercise legislative

powers. "[A]s a general rule inherent in the American

constitutional system . . . unless otherwise expressly

provided or incidental to the powers conferred . . . the

judiciary cannot exercise either executive or legislative

power." Id. at 465-66 (quoting Springer v. Gov't of the

Philippine Islands, 277 U.S. 189, 201-02 (1928)). Even if it

could, the Virgin Islands legislature has not ceded any of its

16

substantive lawmaking power to the Territorial Court.3

Therefore the question is whether Rule 128(b) is an

impermissible substantive rule of law or a procedural rule

that is authorized by the Revised Organic Act.

As discussed above, see supra Part III.A, at common law

the power of prosecutors to determine whether to try a

defendant prior to the impanelment of a jury bordered on

the absolute. Under both statute and precedent, that would

appear to be the rule that holds in the territory. See 1

V.I.C. S 4 ("The rules of the common law, as expressed in

the restatements of the law . . . and to the extent not so

expressed, as generally understood and applied in the

United States, shall be the rules of decision in the courts of

the Virgin Islands in the cases to which they apply, in the

absence of local laws to the contrary."); Tonkin v. Michael,

349 F. Supp. 78 (D. V.I. 1972). By commanding and

empowering a court to determine whether the dismissal of

a prosecution would be in the public interest and the

interest of justice, Rule 128(b) licenses the substitution of

the Territorial Court's judgment for that of the prosecutor.

This is not, therefore, a rule of "practice and procedure"

within the scope of the local courts' rulemaking ability

under the ROA, but a substantive rule of law. The ROA

vests the authority to enact such laws in the legislature.

While the local judiciary may certainly petition the

legislature for expanded powers, it may not unilaterally vest

them upon itself.

To be sure, the line separating procedure from substance

is often unclear. "The test must be whether a rule really

regulates procedure,--the judicial process for enforcing

rights and duties recognized by substantive law . . . ."

Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941). Rule 128(b),

however, does not enforce a right or duty recognized by

substantive law, but rather transfers discretion that was

_________________________________________________________________

3. The Territorial Court cites to 4 V.I.C. S 243(8), but that statute only

grants the local courts power "[t]o amend and control its process and

orders so as to make them conformable to law and justice." Adjusting

process to conform with "law" gives no hint that any lawmaking

functions have been transferred to the judicial branch, and indeed,

suggests that they continue to reside solely with legislative authorities.

17

once wielded by the local prosecutor into judicial hands

under novel standards promulgated in Rule 128(b) itself:

the court must determine that dismissal "is in good faith,

in the public interest, and in the interest of justice." In

other words, the rule's standard of judgment does not look

to preexisting rights and duties that Rule 128(b) may have

been designed to enforce. Rather, it looks to the judgments

of the same court that promulgated the rule. The Territorial

Court thus seeks to expand its own power at the expense

of local prosecutors. This it cannot do, and the District

Court properly held Rule 128(b) to be void.

C.

Because Rule 128(b) is a nullity, Territorial Court Rule 7,

which applies the Federal Rules of Criminal Procedure to

cases in which there is no local rule to the contrary, points

us to Fed. R. Crim. P. 48(a). First promulgated in 1944,

Rule 48(a) provides (with emphasis added): "The Attorney

General or the United States attorney may by leave of court

file a dismissal of an indictment, information or complaint

and the prosecution shall thereupon terminate. Such a

dismissal may not be filed during the trial without the

consent of the defendant."

Like Rule 128(b), Rule 48(a) appears to alter the

traditional common law nolle prosequi power of executive

authorities by requiring "leave of the court" to dismiss a

prosecution. In contrast to Rule 128(b), and as discussed in

further detail below, the actual standards for when a court

may refuse a motion to dismiss under Rule 48(a) are

unclear. In the Government of the Virgin Islands' view,

whatever the standards are, Rule 48(a) also ventures into

the substantive realm. The Government argues that Rule

48(a) cannot justify the Territorial Court's failure to dismiss

the charges against Richards for the same reasons that

Rule 128(b) cannot: If Rule 128(b) violates the Virgin

Islands' separation-of-powers scheme, then the same can

also be said of the application of Rule 48(a) as a rule

promulgated by the Territorial Court, because it too

18

eliminates the absolute discretion of prosecutors to decide

whether or not to pursue their cases.4

The Territorial Court contends that even if the common

law practice of nolle prosequi has been the substantive

common law of the Virgin Islands, it has been displaced by

past practices to the contrary (as reflected by District

Court's use of Rule 48(a) in its opinion in Dawsey v. Gov't

of the Virgin Islands, 931 F. Supp. 397 (V.I. App. Div.),

aff 'd 106 F.3d 384 (3d Cir. 1996)). This argument is

unavailing, however, because if Rule 48(a) cannot be

promulgated by a Virgin Islands court, past practices to the

contrary are irrelevant. More importantly, whatever the

adherence to the common law in the Virgin Islands in the

past, local statute expressly provides that common law

practices are to prevail in the absence of law to the

contrary. See 1 V.I.C. S 4.

Though recognizing the common law background, we

must acknowledge the force of the argument that Rule 48(a)

must be a procedural rule because rules promulgated

under the aegis of the federal Rules Enabling Act ("REA")

are to be procedural, rather than substantive, in character.

See 28 U.S.C. S 2072 (providing that promulgated

procedural rules "shall not abridge, enlarge or modify any

substantive right.").5 Rule 48(a), like all federal rules of

_________________________________________________________________

4. The Territorial Court argues that to hold Rule 48(a) inapplicable would

violate the Supremacy Clause. This argument is plainly mistaken.

Congress never applied the rule to the Virgin Islands courts. Rather, the

Territorial Court chose to adopt the federal standard and thus we

interpret Rule 48(a) in accordance with federal precedent. Any authority

the federal rules have over territorial courts is a function of

territorial

law that must be consistent with the ROA. There is no conflict with

federal law because federal law has delegated to the territory the ability

to determine its rules for itself. Although the Territorial Court may

adopt

whatever rules it chooses, those rules must still comport with the ROA.

5. At the time Rule 48(a) was promulgated, the enabling statutory

language was contained in 18 U.S.C. S 687 (1946) (current version at 28

U.S.C. S 2072) and read: "The Supreme Court of the United States shall

have the power to prescribe, from time to time, rules of pleading,

practice, and procedure with respect to any or all proceedings prior to

and including verdict . . . ." Though the law lacked the later caveat

concerning the contraction or enlargement of substantive rights, its

focus remained on enacting rules of "procedure" not substance. In this

regard, the law resembled the relevant portions of the ROA, which only

allows local courts to enact rules that govern "practice and procedure."

48 U.S.C. S 1611(c).

19

procedure that have been applied by the courts since the

passage of the REA, enjoys an arguable presumption of

regularity as a procedural rule. Moreover, the Territorial

Court conceded at oral argument that there is likely little a

court can do to compel action even if it denies a Rule 48(a)

motion. Cf. United States v. Hamm, 659 F.2d 624, 632 (5th

Cir. Unit A Oct. 1981) (en banc). Even if we were to uphold

the Territorial Court's failure to grant the motion to

dismiss, therefore, that court would seem to have few

options if the day of trial came, and the prosecution refused

to call witnesses or otherwise go forward with its case. The

substantive bite of the rule, therefore, appears to be

hampered by the dullness of its teeth.

Yet Rule 48(a) is commonly seen as affecting the common

law power of prosecutors, irrespective of whether it is

authorized solely as a procedural rule. See 1944 Advisory

Committee Notes on Adopting Rule 48; 3A Wright, Fed.

Practice & Procedure S 812 (2d ed. 1982). One possible

route out of this conundrum is to argue that whatever

substantive effect the Rule possesses emanates from

Congress because the Rules Enabling Act contains a

procedure through which proposed new rules are submitted

to Congress and require at least a seven-month delay before

they can take effect, thus providing some check on

Congress's potential delegation of its substantive

lawmaking authority to the judiciary. See 28 U.S.C. S 2074.6

In contrast, no similar mechanism exists in the Virgin

Islands. But this argument is unsatisfactory. The Rules

Enabling Act's provision for submission to Congress does

not give Congress any authority that it does not already

have. Congress can always vote to abrogate a rule

promulgated by the judiciary. Neither the delay in the rules'

taking effect nor the submission to Congress requirement

creates a veto by silence. Congress must affirmatively

legislate to obviate a properly submitted rule.

The upshot is that Rule 48(a) is a strange animal. It

reads like a procedural rule, but by interposing a

_________________________________________________________________

6. At the time of Rule 48(a)'s promulgation, the rule was not to take

effect until after the conclusion of the session of Congress in which it

had been submitted. See 18 U.S.C. S 687 (1946).

20

discretionary act by a court between a prosecutor's decision

to drop a case and ultimate dismissal, it is adorned with

unmistakable substantive trappings. Though this potential

problem with Rule 48(a) is not a constitutional separation-

of-powers problem but one of a possible violation of the

Rules Enabling Act, it is a problem nonetheless.

We need not, however, engage the full expanse of Rule

48(a) in this case. First, as discussed above, the

substantive reach of the rule appears to be effectively

curtailed by the fact that even if the judge denies the

motion to dismiss, there seems to be no way to compel the

prosecutor to proceed. Second, this case does not present

a facial challenge to local rule 7, which applies Rule 48(a)

to the Territorial Court. Rather, we are reviewing the

conduct of the Territorial Court and determining whether it

rose to a level necessitating the extraordinary remedy of

mandamus. We must therefore consider the viability of Rule

48(a) within a specific factual context, which may contain

elements that give Rule 48(a)'s application in this instance

a procedural character because the rule was employed in

service of substantive rights and duties that exist

independently of the rule's text.

D.

Rule 48(a)'s text does not share the flaw of Rule 128(b)

insofar as it does not set forth substantive standards that

allow the Territorial Court to apply its judgment for what

constitutes the public interest in contravention of the

judgment of local prosecutors. Indeed, courts have

generally viewed their role in granting leave to dismiss

under 48(a) to be a limited one, because "[f]ew subjects are

less adapted to judicial review than the exercise by the

Executive of his discretion in deciding when and whether to

institute criminal proceedings, or what precise charge shall

be made or whether to dismiss a proceeding once brought."

Newman v. United States, 382 F.2d 479, 480 (D.C. Cir.

1967).

Though this Court has not ruled on the standards that

should be employed in determining whether a judge abuses

his or her discretion in denying a motion under Rule 48(a),

21

other courts have opined on the subject. The Supreme

Court has suggested that the rule exists to prevent

harassment by prosecutors, though it has been vague on

what other circumstances may justify its application.

While [Rule 48(a)] obviously vest[s] some discretion in

the court, the circumstances in which that discretion

may properly be exercised have not been delineated by

this Court. The principal object of the `leave of court'

requirement is apparently to protect a defendant

against prosecutorial harassment . . . . But the Rule

has also been held to permit the court to deny a

Government dismissal motion to which the defendant

has consented if the motion is prompted by

considerations clearly contrary to the public interest.

Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977) (per

curiam) (citations omitted).

The jurisprudence in the courts of appeals has not been

significantly clearer, save for the proposition that refusal to

dismiss is appropriate only in the rarest of cases. As one of

our sister courts has summarized:

Rule 48(a) is primarily intended to protect a defendant

from prosecutorial harassment, Rinaldi v. United

States, 434 U.S. 22, 31, 98 S.Ct. 81, 86, 54 L.Ed.2d

207 (1977) (per curiam), but it also permits courts

faced with dismissal motions to consider the public

interest in the fair administration of criminal justice

and the need to preserve the integrity of the courts. See

United States v. Hamm, 659 F.2d 624, 628-29 (5th

Cir.1981); United States v. Cowan, 524 F.2d 504, 512-

13 (5th Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct.

2168, 48 L.Ed.2d 795 (1976); cf. United States v. Derr,

726 F.2d 617, 619 (10th Cir.1984). A court is generally

required to grant a prosecutor's Rule 48(a) motion to

dismiss unless dismissal is `clearly contrary to

manifest public interest.' Cowan, 524 F.2d at 513; see

also [United States v.] Miller , 722 F.2d [562,] 566 [9th

Cir. 1983]; United States v. Salinas, 693 F.2d 348, 352

(5th Cir.1983); Hamm, 659 F.2d at 628.

United States v. Carrigan, 778 F.2d 1454, 1463 (10th Cir.

1985).

22

The concern of prosecutorial harassment speaks to the

danger that a prosecutor will engage in a cycle of levying

and dismissing charges against a particular defendant. The

other concerns are harder to describe. Courts have equated

a dismissal that is clearly contrary to the public interest

with one in which the prosecutor appears motivated by

bribery, animus towards the victim, or a desire to attend a

social event rather than trial. See Hamm, 659 F.2d at 630.

But Judge Swan's concerns in this case were not of an

unfairly harassed defendant. Rather, his suspicions appear

to have been aroused by the Government's shift in position

as to the merits of Richards's prosecution after Richards

switched from a public defender to private counsel. These

suspicions were compounded by the Government's

perceived attempt at judge-shopping.7

If one adheres to the view that Rule 48(a) exists solely to

prevent harassment of a defendant, then the Territorial

Court may have exceeded its authority in not promptly

dismissing the case against Richards. Indeed, several

courts have reserved the question of whether, under Rule

48(a), a judge may ever deny an uncontested motion to

dismiss. See Rinaldi, 434 U.S. at 30; United States v.

Gonzalez, 58 F.3d 459, 461 (9th Cir. 1995). We note,

however, that when the mandamus petition was presented

to the District Court, the Territorial Court had not denied

the motion for dismissal. This is significant. Several courts

have indicated that mandamus is not the proper vehicle for

challenging a lower court's refusal to dismiss under Rule

48(a) when the challenged court has actually issued an

order susceptible to review through other means. For

example, the Eighth Circuit employed the collateral order

doctrine, rather than mandamus, to reverse a district court

order that denied a Rule 48(a) motion to dismiss in United

States v. Dupris, 664 F.2d 169, 172-73 (8th Cir. 1981).

Similarly, in United States v. Cowan, 524 F.2d 504, 505

(5th Cir. 1975), the Fifth Circuit reversed a district court

order denying a Rule 48(a) dismissal motion on appeal and

did not reach the question whether mandamus could be

employed for the same purpose. This case, however,

presents different facts from cases where review occurred

_________________________________________________________________

7. In chronicling these suspicions, we intimate no view on their merits.

23

on appeal. Here, Richards moved for a writ of mandamus

before the Territorial Court issued any rulings. Judge Swan

never actually ruled, either adversely or positively, on the

motions to dismiss the charges against Richards. Rather,

he merely scheduled a hearing to probe further into the

circumstances surrounding the Government's reasons for

seeking dismissal.

The question before us under the circumstances,

therefore, is not whether Judge Swan could properly have

used his power under Rule 48(a) to deny a motion to

dismiss, but whether Judge Swan's power under that rule

was so circumscribed as to prohibit his conducting a

hearing on the circumstances surrounding the

Government's requested dismissal. We think that it was

not. We conclude that even if it would have been an abuse

of discretion on his part to ultimately deny the motion to

dismiss, Judge Swan had discretion to hold a hearing on

the parties' claims, especially in light of the checkered

course of the case up to that point. See United States v.

Salinas, 693 F.2d 348, 352 (5th Cir. 1982) ("Although the

burden of proof is not on the prosecutor to prove that

dismissal is in the public interest, the prosecutor is under

an obligation to supply sufficient reasons--reasons that

constitute more than `a mere conclusory interest.' ")

(citation and footnote omitted); 3A Wright, Federal Practice

& Procedure S 812 (2d ed. 1982) ("Since the court must

exercise a sound judicial discretion in considering a request

for dismissal, it must have factual information supporting

the recommendation."); United States v. Greater Blouse,

Skirt & Neckwear Contractors Assoc., Inc., 228 F. Supp.

483, 486 (S.D.N.Y. 1964); United States v. Shanahan, 168

F. Supp. 225, 229 (S.D. Ind. 1959); United States v. Doe,

101 F. Supp. 609, 611 (D. Conn. 1951). Moreover, we are

unaware of any binding precedent that a mandamus order

can or should issue before the court has ruled on the 48(a)

issue.8

_________________________________________________________________

8. That does appear to have been the procedural posture in Dawsey v.

Gov't of the Virgin Islands, 931 F. Supp. 397 (V.I. App. Div.), aff 'd 106

F.3d 384 (3d Cir. 1996). This Court affirmed Dawsey without opinion,

hence that case does not bind us under our Internal Operating

Procedures. See, e.g., United States v. Breyer, 41 F.3d 884, 892 n.11 (3d

Cir. 1994).

24

The Government contends that Judge Swan made clear

that he would not dismiss the matter unless he

independently reached the conclusion that the initial

allegations were untrue, and that he was, therefore,

substituting his judgment for that of the prosecutor. We do

not, however, view a judge's statements in the course of

proceedings as a final determination of a motion. How the

judge initially perceived the case is irrelevant to the

question whether he had issued an appealable order. While

Judge Swan's comments may have been premature and

perhaps reflected an overestimation of his authority (along

with his irritation with the Government), the facts clearly

demonstrate that he had not ruled on the Government's

motion when the writ of mandamus was filed. We conclude

that a court should have the opportunity to consider and

issue its order before a mandamus petition is filed. By

granting first a stay of the scheduled hearing and then

issuing a writ of mandamus, the District Court deprived

Judge Swan of the opportunity to issue a ruling.

On the facts before us, therefore, application of Rule

48(a) does not violate the separation-of-powers system of

the ROA. We conclude that the Territorial Court's mere

effort to obtain information surrounding the prosecution's

attempted dismissal of Richards's information does not

suffice to work a substantive change in the prosecution's

power of nolle prosequi. This conclusion is informed by the

explanation of how Rule 48(a) can properly be used to

justify a judge's scheduling a hearing on the motion before

ruling, a matter to which we now turn.

E.

Even though a judge's discretion under Rule 48(a) is

severely cabined, the rule may serve an important interest

as an information- and accountability-producing vehicle. A

judge who hears a Rule 48(a) motion has independent

responsibilities that may bear on his or her decision on the

requested dismissal. In other words, there are independent

rights, interests, and duties that a court may protect, see

Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941), through

using Rule 48(a) as a "sunshine" provision that exposes the

reasons for prosecutorial decisions.

25

As discussed above, one such right is that of the

defendant to not be harassed by repeated prosecutions that

are dismissed before jeopardy attaches. Another interest

that could be served by a hearing is the court's inherent

authority to ensure that its processes are not being abused.

Cf. Chambers v. Nasco, Inc., 501 U.S. 32, 44 (1991) ("[A]

court has the power to conduct an independent

investigation in order to determine whether it has been the

victim of fraud."); Eash v. Riggins Trucking, Inc., 757 F.2d

557, 567 (3d Cir. 1985) (en banc) (discussing courts'

inherent power to deter abuse of the judicial process

through sanctions). In holding the hearing that he so long

ago scheduled, Judge Swan may therefore appropriately

inquire into whether there were any improprieties attending

the Government's petition to dismiss the Richards's

prosecution.

Additionally, the public has a generalized interest in the

processes through which prosecutors make decisions about

whom to prosecute that a court can serve by inquiring into

the reasons for a requested dismissal. See United States v.

Cowan, 524 F.2d 504, 512-13 (5th Cir. 1975) ("We think

[Rule 48(a)] should and can be construed to preserve the

essential judicial function of protecting the public interest

in the evenhanded administration of criminal justice

without encroaching on the primary duty of the Executive

to take care that the laws are faithfully executed."). While

this interest cannot rise to the substantive ability to compel

a prosecution to proceed, it does argue in favor of allowing

a court to force prosecutors to publicly reveal their reasons

for not proceeding before granting a requested dismissal.

Bringing these decisions into the open may, in turn, lead to

attempts by the public to influence these decisions through

democratic channels.

In sum, we are not prepared to rule that a judge who

suspects wrongful behavior in the proceedings of the

individuals before it has no power to inquire into what the

true circumstances are. Rather, a "sunshine" rule that

requires prosecutors to disclose the reasons for their

actions and allows limited additional inquiry is sufficiently

procedural that it does not run afoul of the dictates of the

ROA. Any doubt in this regard would seem to be resolved

26

by the fact that, as discussed above, Judge Swan had no

apparent power to force the Attorney General to proceed

with a prosecution of Richards.

For all the foregoing reasons, we conclude that the

District Court erred in granting the writ of mandamus.

Therefore, its order granting the writ will be reversed, with

instructions to remand the case to the Territorial Court for

further proceedings consistent with this opinion. The

parties shall bear their own costs.9

_________________________________________________________________

9. Although we do not have before us the question whether mandamus

would be appropriate if, having conducted the hearing, Judge Swan then

refused to dismiss the charges against Richards, we must note that on

the facts currently in the record, we strongly doubt that a refusal to

dismiss would be justifiable. As the discussion of Rule 48(a) indicates,

Judge Swan's ordering a hearing on the facts before him took him to the

outer limits of his authority. Should he deny the motion on remand, or

refuse to rule promptly one way or another, see In re Sharon Steel Corp.,

918 F.2d 434, 436-37 (3d Cir. 1990), Richards or the Government may

then either file an interlocutory appeal or request a writ of mandamus.

27

GARTH, Circuit Judge, dissenting:

The majority opinion in the instant matter has much to

commend it, as it presents a detailed and masterful

analysis of an extremely complex area of law. Indeed, I

concur with the majority's conclusion (1) that the Appellate

Division of the District Court of the Virgin Islands

possessed the authority to issue a writ of mandamus

against the Territorial Court of the Virgin Islands; and (2)

that Territorial Court Rule 128(b) violates the Revised

Organic Act (ROA).

I part company with the majority opinion, however, with

respect to its bottom line: its overly-ingenious interpretation

that Federal Rule of Criminal Procedure 48(a) is nothing

more than a "Sunshine" provision -- a panacea that can

provide both the courts and the general public with the

reasons behind the United States Attorney's decision to

dismiss pending charges against a particular defendant.1

Contrary to the majority, in my view, Rule 48(a) is a

substantive rule that alters the common law in order to

allow the district courts to prevent a prosecutor from

dismissing criminal charges without the courts' consent.

As a result, Rule 48(a) cannot be imported into the rules

of the Territorial Court through its Rule 7 because only

procedural -- and not substantive -- rules may be

promulgated by the Territorial Court. Accordingly, I would

hold that the Attorney General of the Virgin Islands is

correct in his interpretation of Rule 48(a) as a substantive

rule and that accordingly, Richards's charge must be

dismissed without court interference. It is for this reason

that I respectfully dissent.

I

The ROA empowers "the courts established by local law"

(i.e., the Territorial Court of the Virgin Islands) to prescribe

their own "rules governing practice and procedure." 48

_________________________________________________________________

1. The majority terms Rule 48(a) "a sunshine provision that exposes the

reasons for prosecutorial decisions," Majority Op., at 25, presumably in

line with the Government in the Sunshine Act, 5 U.S.C. S 552b, which

seeks to open local government meetings for citizen observation.

28

U.S.C. S 1611(c). Purporting to use this statutory provision

as authority, the Territorial Court promulgated a rule

patterned after Rule 48(a) -- its Rule 128(b), which states

that

[n]o criminal case filed in the court . . . shall be

dismissed upon motion by any party except upon a

determination by the Court that the dismissal is in

good faith, in the public interest, and in the interest of

justice.

The Appellate Division of the District Court of the Virgin

Islands held this rule to be void. See In re Richards, 52 F.

Supp. 2d 522, 528-29 (D.V.I. 1999). That court also held

that Rule 48(a), which states that

the United States attorney may by leave of courtfile a

dismissal of an indictment, information or complaint

and the prosecution shall thereupon terminate,

could not be applied in the Territorial Courts of the Virgin

Islands, notwithstanding the effect of Territorial Court Rule

7.2 Id. at 529-30. The Appellate Division premised this

holding on the fact that, pursuant to the ROA, any rule

promulgated or adopted by the Territorial Court, including

Rule 7, must be procedural, and not substantive, in nature.

See id. at 528-30. The majority in the instant case, as

opposed to my view, holds that Rule 48(a) is not a

substantive rule, although it admits that the rule"is

adorned with unmistakable substantive trappings." Majority

Op., at 21. In my opinion, there is no difference between

Rule 128(b), which even the majority rejects as being in

violation of the ROA, and Rule 48(a). The contents of both

rules are substantively identical and obviously, therefore, if

one rule is ineffective to condition a prosecutor's

recommendation of dismissal, then so too is the other.

Hence, my position in this regard is straight-forward and

rather simple: neither Rule 128(b) nor Rule 48(a) is effective

_________________________________________________________________

2. Territorial Court Rule 7 provides that "[t]he practice and procedure in

the Territorial Court shall be governed by the Rules of the Territorial

Court and, to the extent not inconsistent therewith, by the Rules of the

District Court, the Federal Rules of Civil Procedure, the Federal Rules of

Criminal Procedure and the Federal Rules of Evidence." Terr. Ct. R. 7.

29

in the courts of the Virgin Islands because both are

substantive rules.

A

The difference between rules that are "substantive" and

cannot be promulgated or adopted in the Virgin Islands and

those that merely regulate "practice and procedure" must

initially be explored. The starting point for this inquiry

must be the Supreme Court's watershed decision in

Sibbach & Co. v. Wilson, 312 U.S. 1 (1941). 3 In Sibbach, the

Court held that "the test must be whether a rule really

regulates procedure[ ] -- the judicial process for enforcing

rights and duties recognized by substantive law and for

justly administering remedy and redress for disregard or

infraction of them." Id. at 14.

As numerous commentators have indicated, however, the

Sibbach test alone is of little help in determining whether a

given rule is procedural or substantive in nature. See

Wright, Miller & Cooper, Federal Practice & Procedure:

Jurisdiction, S 4509, at 264 (stating that the Sibbach

formula "is no test at all -- in a sense, it is little more than

the statement that a matter is procedural if, by revelation,

it is procedural"). As a result, in order to derive a proper

standard to delineate between procedure and substance,

_________________________________________________________________

3. I acknowledge that Sibbach and its progeny concern not the ROA, but

the Rules Enabling Act (REA), presently codified at 28 U.S.C. S 2072. The

REA, quite similar to the ROA, authorizes the Supreme Court of the

United States to promulgate rules of practice and procedure for use in

the federal courts, so long as such rules do not impair the substantive

rights of any litigant. See 28 U.S.C. S 2072. Although the REA is not

directly implicated in the instant matter, resort to the jurisprudence

emanating from the REA is necessary because of the lack of interpretive

guidance concerning the virtually identical provisions of the ROA.

Indeed, the majority implicitly recognizes such. Majority Op., at 19 n.5.

Both the majority and I hold that the Supreme Court cannot

promulgate substantive rules under the REA. Even though neither party

to the present appeal has raised the specific issue of whether Rule 48(a)

violates the REA's provisions because it is substantive and not

procedural, I suggest that the propriety of Rule 48(a) with respect to all

federal courts be re-examined.

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something must be added to the Sibbach Court's analysis.

Hart and Wechsler, the oft-cited civil procedure scholars,

have opined that substantive rules are those that

"characteristically and reasonably affect people's conduct at

the stage of primary private activity." Hart & Wechsler, The

Federal Courts & the Federal System 678 (1953); see also

Paul D. Carrington, "Substance" and "Procedure" in the

Rules Enabling Act, 1989 Duke L.J. 281. With this

understanding of the procedure vs. substance "dichotomy,"

I am satisfied that both Rule 128(b) and Rule 48(a) are

substantive rules, and therefore violate the provisions of the

ROA.

B

As the majority acknowledges, both Rule 128(b) and Rule

48(a) implicate decisions that the common law exclusively

granted (and still grants, in many jurisdictions) to the

prosecutor -- decisions regarding whether to dismiss

pending criminal charges against a particular defendant.

This prosecutorial right, known as nolle prosequi, was

absolute at common law -- no entity, including the

judiciary, could challenge the prosecutor's decision to end

a criminal proceeding. See Confiscation Cases , 74 U.S. (7

Wall.) 454, 457 (1868) ("Under the rules of the common law

it must be conceded that the prosecuting party may

relinquish his suit at any stage of it, and withdraw from

court at his option . . . ."); 3 Charles E. Torcia, Wharton's

Criminal Procedure S 445, at 926 (13th ed. 1991).

Notwithstanding this common law principle, both Rule

128(b) and Rule 48(a) restrict a prosecutor's right to

dismiss criminal charges.

The nolle prosequi tradition goes to the very heart of the

prosecutorial role and function. As such, any restriction on

the prosecutor's right of nolle prosequi would necessarily

enter the substantive arena, and thus not be available for

regulation by the Territorial Court. Given that such

interference with a prosecutor's discretion "transfers

discretion that was once wielded by the local prosecutor

into judicial hands," Majority Op., at 17-18 (emphasis

added), it is obvious that both rules must be deemed

substantive.

31

The majority, which holds that Rule 128(b) is

substantive, but that Rule 48(a), despite its "substantive

trappings," Majority Op., at 21, is not, gives an

unwarranted life to Rule 48(a) in the Virgin Islands. It does

so by grafting onto Rule 48(a)'s substantive provisions a

"Sunshine" gloss that runs counter to Rule 48(a)'s history

and that nowhere appears in Rule 48(a)'s jurisprudence. It

is not surprising, therefore, that I find the Appellate

Division's analysis persuasive in finding that Rule 48(a)

cannot be applied in the Virgin Islands.

i.

The majority first attempts to justify its inconsistency in

characterizing identical rules differently by explaining that

Rule 128(b), unlike Rule 48(a), contains specific standards.

See Majority Op., at 23-24. Those standard s (i.e., good

faith, public interest, and the interest of justice) inform a

judge's decision whether to grant a prosecutor's motion to

dismiss pending charges. Terming such principles

"substantive standards," the majority reasons that Rule

48(a)'s lack of such standards is an indication that the

courts' "role in granting leave to dismiss under 48(a) [is] a

limited one," Id. at 21, and as such, does not wrongfully

venture beyond the procedural domain.

Building upon this purported lack of standards, the

majority then fashions its own interpretation of Rule 48(a)

-- the "Sunshine" principle to which I alluded earlier. More

specifically, the majority opines that Rule 48(a)"ensures

that [the courts'] processes are not being abused," and

allows the public to gain an insight into "the processes

through which prosecutors make decisions about whom to

prosecute." Id. at 26.

As an initial matter, although the majority is correct that

the express terms of Rule 48(a) do not indicate that a

judge's decision to grant or deny a prosecutorial motion to

dismiss pending criminal charges are subject to the

standards of good faith, public interest and the interest of

justice, those courts that have sought to interpret Rule

48(a) have imputed those standards to the rule itself. The

lone Supreme Court discussion of Rule 48(a), United States

32

v. Rinaldi, 434 U.S. 22 (1977) (per curiam), states that Rule

48(a) was primarily intended to protect against

prosecutorial harassment, but that a court would likely be

within its discretion in rejecting a Rule 48(a) motion where

dismissal was not in the public interest. See id. at 29 n.15.

Picking up on this theme, the Fourth Circuit in United

States v. Smith, 55 F.3d 157 (4th Cir. 1995), held that "the

disposition of a government's motion to dismiss an

indictment should be decided by determining whether the

prosecutor acted in good faith at the time he moved for

dismissal." Id. at 159. The Smith court cited a "prosecutor's

acceptance of a bribe, personal dislike of the victim, and

dissatisfaction with the jury impaneled" as examples of

prosecutorial misconduct that would warrant denial of a

Rule 48(a) motion. See id.

Perhaps the most extensive treatment of Rule 48(a) can

be found in the Fifth Circuit's opinion in United States v.

Cowen, 524 F.2d 504 (5th Cir. 1975). In Cowen, the court

held that Rule 48(a) was a "manifest" attempt on the part

of the Supreme Court to vest "in the courts the power and

the duty to exercise a discretion for the protection of the

public interest." Id. at 511. Although the Fifth Circuit

believed that such discretion was extremely limited, in that

the prosecutorial decision "should not be judicially

disturbed unless clearly contrary to the public interest,"

Rule 48(a), in its view, did provide for "a discretion broad

enough to protect the public interest in the fair

administration of justice." Id. at 512.

As such, each of the so-called "substantive standards"

identified by the majority as contained within Rule 128(b)

and ostensibly missing from the provisions of Rule 48(a)

have been considered part and parcel of Rule 48(a)'s"leave

of court" requirement. Rule 48(a) thus vests the district

judge with decisionmaking power as to whether pending

criminal charges against a defendant should be dismissed

pursuant to the standards noted above -- specific

standards that prior to the promulgation of Rule 48(a) were

weighed solely within the province of the prosecutor

himself.

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ii.

The majority's self-avowed purpose that it attributes to

Rule 48(a) -- to air the rationale(s) behind the sought-for

dismissal of a criminal proceeding -- suffers from serious

flaws. See Majority Op., at 25-27. First, such an

interpretation is belied by the very history behind the

Supreme Court's promulgation of the rule. According to the

late Professor Lester Orfield,4 the Advisory Committee's

proposed version of what now appears as Rule 48(a) did not

contain the phrase "with leave of court" that presently

appears in the rule. Rather, the original rule provided that

in order to obtain a dismissal of pending criminal charges,

a prosecutor would be required to provide the district court

"with a statement of the reasons therefor." See Mark S.

Rhodes, Orfield's Criminal Procedure Under the Federal

Rules S 48:11, at 251 (2d ed. 1987); see also 4 Drafting

History of the Federal Rules of Criminal Procedure 178

(Madeline J. Wilken & Nicholas Triffen, eds.) (1991)

(reprinting the original version of Rule 48(a) that the

Advisory Committee transmitted to the Supreme Court).

Before the Supreme Court promulgated Rule 48(a) in its

present form, however, it deleted the requirement for a

"statement of the reasons therefor," and replaced that

phrase with the language currently found in the rule--

"with leave of court." Id.; see also United States v. Hamm,

659 F.2d 624, 631 n.23 (5th Cir. Unit A 1981) (stating that

the initial version of Rule 48(a) drew sharp criticism from

prosecutors, and therefore was modified to its present

form).

If Rule 48(a)'s language had remained unchanged from

its original Advisory Committee format, the majority would

have more license for its "Sunshine" interpretation of the

rule. The fact that the Supreme Court eliminated express

language that would support this "Sunshine" purpose for

Rule 48(a), however, is fatal to the majority's creative

attempt to distinguish or differentiate between Rule 48(a)

and Rule 128(b). Indeed, as Professor Orfield wrote, "a

dismissal [of prosecution] might [now] be filed without any

statement of reasons." Id.

_________________________________________________________________

4. Orfield was a member of the Original Advisory Committee to the

Supreme Court with respect to the Federal Rules of Criminal Procedure.

34

The majority therefore is plainly incorrect is its novel

assertion that the Supreme Court intended Rule 48(a) as a

"Sunshine" rule in order to assist the court system and the

public to understand a prosecutor's reasons for seeking a

dismissal of a criminal proceeding. It inexorably follows

that because Rule 128(b) and Rule 48(a) are spun from an

identical cloth, if Rule 128(b) is void because it is

substantive, then so too is Rule 48(a).

C

Moreover, I also believe that the majority's "Sunshine"

interpretation of Rule 48(a) is not as innocuous as my

colleagues may in fact believe. The majority claims that "the

substantive reach of the rule [48(a)] appears to be

effectively curtailed" because the court cannot compel a

prosecutor to proceed if the motion to dismiss were denied.

Majority Op., at 21. Indeed, the majority states that

interpreting Rule 48(a) as a "Sunshine" rule"is sufficiently

procedural that it does not run afoul of the dictates of the

ROA," and that "[a]ny doubt in this regard would seem to

be resolved by the fact that . . . Judge Swan had no

apparent power to force the Attorney General to proceed

with a prosecution." Id. at 36. I believe that the majority's

theoretical analysis misses a crucial point with respect to

the procedure/substance dichotomy.

As stated above, the very essence of the common law

right of nolle prosequi was that the prosecutor enjoyed

absolute control over the course of a specific prosecution.

Although most of the preceding discussion is framed in

terms of the ultimate decision as to whether to prosecute a

particular offender at all, included within this broad power

are a multitude of prosecutorial decisions bearing on the

institution and maintenance of criminal proceedings. As an

example, once a prosecutor is confronted with alleged

wrongdoing on the part of a purported defendant, the

prosecutor must determine under which statute(s) to seek

criminal sanctions, and the proper evidence to introduce in

order to obtain a conviction. Because the majority's

"Sunshine" interpretation severely impacts on such

decisions -- those that go to the very core of the

35

prosecutorial function -- Rule 48(a) has a much more

significant reach than the majority envisages.

The facts of the instant matter demonstrate this problem.

The Government of the Virgin Islands initially filed -- via an

information -- a felony rape charge against Richards in the

Territorial Court, and then amended that information to

include a misdemeanor charge. The Government thereafter

agreed to allow Richards to plead guilty to the misdemeanor

charge in return for dismissal of the felony charge. Judge

Swan refused to allow the Government to dismiss the felony

charge. After this initial refusal, however, Judge Swan

scheduled a hearing to determine whether such a dismissal

was consistent with the "public interest."

This "public interest" hearing would have been no

different from the novel "Sunshine" hearing now advocated

by the majority. Indeed, because of the prospect of such a

hearing, the Government disclosed that it sought a

dismissal of the felony charges because the evidence did

not support a felony conviction. The government also

claimed that the primary witnesses against Richards (the

alleged victim and her mother) would not testify. With this

information revealed, it would surprise me if Richards were

to continue to plead guilty to the misdemeanor charge,

particularly because he now has been informed that the

two main witnesses who could implicate him will not

provide any assistance to the Government in its

prosecution.

As a result, Judge Swan's "public interest" hearing, much

like the "Sunshine" hearing the majority now urges upon

us, essentially forced the Government to play out its hand

and disclose information that it normally would seek to

keep confidential.5 Indeed, the simple knowledge on the

part of the prosecutor that such a hearing would be held if

he were to seek dismissal of a defendant's charges could

not help but impact the manner by which the prosecutor

would conduct the course of the criminal litigation. In other

_________________________________________________________________

5. I, of course, am not suggesting that a prosecutor would be entitled to

keep exculpatory evidence from disclosure. See, e.g., Brady v. Maryland,

373 U.S. 83 (1963).

36

words, the allegedly innocuous "Sunshine" hearing could

irreparably impair day-to-day prosecutorial decisionmaking.

The ability to hold such a hearing under the auspices of

Rule 48(a) therefore provides a district court judge with the

opportunity to commandeer the entire prosecutorial process

-- a process that the common law provided to the

prosecutor exclusively through the nolle prosequi doctrine.

Given that such consequences reach far beyond the

courtroom and intrusively into each and every prosecutorial

decision, I do not understand how the majority's

"Sunshine" interpretation of Rule 48(a) can be deemed

either harmless or procedural.

II

I have gone to great lengths to point out that in an effort

to save Rule 48(a) from a substantive characterization, the

majority not only errs, but is inconsistent in its analysis of

two identical rules -- Rule 128(b) of the Territorial Court of

the Virgin Islands and Rule 48(a) of the Federal Rules of

Criminal Procedure. The majority cannot hold one rule void

and still uphold the other. I can understand the majority's

desire to have Rule 48(a) provide for a district court's

oversight of a prosecutor's decision to dismiss pending

criminal charges. When the adoption of this rule goes

beyond the authority that Congress has given to the

Territorial Court of the Virgin Islands, however, it is neither

appropriate nor wise to finesse its adoption by a subterfuge

such as the seemingly benign "Sunshine" gloss that the

majority has imparted to Rule 48(a).

The Appellate Division of the District Court of the Virgin

Islands was quite correct in its analysis and in its issuance

of a writ of mandamus. Because logic, precedent, history,

and reason compel such a result, I would affirm that

decision. In doing so, I must respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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