Government of the Virgin Islands v. Hodge

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

2-26-2004

Govt of VI v. Hodge

Precedential or Non-Precedential: Precedential

Docket No. 02-1136

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PRECEDENTIAL _______________________

IN THE UNITED STATES NO. 02-1222

COURT OF APPEALS

FOR THE THIRD CIRCUIT GOVERNMENT OF THE VIRGIN

_______________ ISLANDS

NO. 02-1136 v.

GOVERNMENT OF THE VIRGIN ELADIO CAMACHO,

ISLANDS Appellant

_________________________________

v.

On Appeal From The District Court Of

SELVIN HODGE, The Virgin Islands, Appellate Division

Appellant (D.C. Nos. 01-cr-00256-2, 01-cr-00256-

1, 01-cr-00256-4, 01-cr-00256-3)

______________________ Hon. Raymond L. Finch, Chief Judge

Hon. Thomas K. Moore, District Judge

NO. 02-1137 Hon. Darryl Dean Donohue,

Territorial Judge

GOVERNMENT OF THE VIRGIN

ISLANDS _________________________________

v. Argued December 8, 2003

OTTICE BRYAN, Before: NYGAARD, BECKER, and

Appellant STAPLETON, Circuit Judges.

______________________ (Filed February 26, 2004)

NO. 02-1221

HAROLD W.L. WILLOCKS

GOVERNMENT OF THE VIRGIN DEBRA SMITH-WATLINGTON

ISLANDS (Argued)

LESLIE L. PAYTON

v. Territorial Public Defender

P.O. Box 6040

KIRSTEN GREENAWAY, St. Thomas, USVI 00804

Appellant

Attorneys for Appellant Selvin Hodge

1

GEORGE H. HODGE, JR. BECKER, Circuit Judge

P.O. Box 803 This is an appeal by four

St. Thomas, USVI 00804 codefendants, Selvin Hodge, Ottice Bryan,

Kirsten Greenaway, and Eladio Camacho,

Attorney for Appellant Ottice Bryan of an order of the District Court of the

Virgin Islands, Appellate Division in an

BRUCE STREIBICH interlocutory appeal brought by the

Law Offices of Bruce W. Steibich Government of the Virgin Islands from the

No. 21A Berge Gade Territorial Court of the Virgin Islands.

P.O. Box 302009-VDS Seeking reversal, pursuant to 4 V.I. Code

St. Thomas, USVI 00803-2009 § 39(a)(1), the Government sought review

of the Territorial Court’s pretrial order

Attorney for Appellant Kirsten redacting the confessions that the

Greenaway Government planned to use against the

defendants. The Appellate Division held

STEPHEN A. BRUSCH (Argued) that the Territorial Court had erred in

The Brusch Law Firm redacting the confessions more stringently

28-29 Norre Gade, 2nd Floor than required by the Supreme Court’s

P.O. Box 988 holdings in Bruton v. United States, 391

St. Thomas, USVI 00804 U.S. 123 (1968), Richardson v. Marsh,

481 U.S. 200 (1987), and Gray v.

Attorney for Appellant Eladio Camacho Maryland, 523 U.S. 185 (1998).

Accordingly, the Appellate Division

IVER A. STRIDIRON vacated the Territorial Court’s order and

ELLIOTT M. DAVIS remanded for that Court to reconsider the

DOUGLAS J. JUERGENS (Argued) redactions in the first instance.

Department of Justice

Having lost before the Appellate

48B-50C Kronprindsens Gade

Division, the defendants seek review in

GERS Building, 2nd Floor

this Court, arguing that the Appellate

St. Thomast, USVI 00802

Division either (1) lacked jurisdiction over

the Government’s interlocutory appeal

Attorneys for Appellee, Government of

(and hence that the Territorial Court’s

the Virgin Islands

order should stand for now), or (2) erred

on the merits in vacating the Territorial

______________________

Court’s order. This being an interlocutory

appeal from an order entered in an

OPINION

interlocutory appeal, the threshold issue is

______________________

our own appellate jurisdiction. We

conclude that we have appellate

jurisdiction over the Appellate Division’s

2

determination of its own jurisdiction under District Court come to this Court under the

the collateral order doctrine. We also familiar provisions of 28 U.S.C. §§ 1291-

conclude that we lack appellate 1292 and other special-purpose statutes.

jurisdiction to review the merits of the Until the Virgin Islands establishes a local

Appellate Division’s ruling. Most notably, intermediate appellate tribunal, appeals

we decide that a certification by the from the Territorial Court go to a three-

Government that the Territorial Court’s judge panel known as the District Court of

grant of a pretrial suppression motion the Virgin Islands, Appellate Division (the

deprives the Government of “substantial “Appellate Division”). 1 See 48 U.S.C. §

proof of the charge pending against the 1613a(a). Though established by federal

defendant” satisfies the requirements of 4 law, the Appellate Division exercises

V.I. Code § 39(a)(1), without a separate “such appellate jurisdiction over the courts

substantiality determination by the court. of the Virgin Islands established by local

Accordingly, in this case we hold that the law [i.e., the Territorial Court] to the

Appellate Division had jurisdiction under extent now or hereafter prescribed by local

4 V.I. Code § 39(a)(1) to hear the law.” Id. In other words, the Virgin

Gov ernmen t’s interlocutory appeal, Islands Legislature decides (subject to

dismiss the appeals in all other respects, some reservations in 48 U.S.C. § 1613a(a))

and remand to the Territorial Court for who can appeal to the Appellate Division,

further proceedings in accordance with the and when they can appeal. At issue in this

Appellate Division’s opinion. case is a provision regarding interlocutory

appeals by the Government of certain

pretrial orders in criminal cases, 4 V.I.

I. Procedural History Code § 39(a)(1). Appeals from decisions

of the Appellate Division may be taken to

A. The Virgin Islands Court

this Court under 48 U.S.C. § 1613a(c).

System

B. The Proceedings in the

We have recently described the

Territorial Court and Before

structure of the court system in the Virgin

the Appellate Division

Islands in some detail, see Gov’t of V.I. v.

Rivera, 333 F.3d 143, 145-46 (3d Cir. In November 1999, Duvalier

2003), cert. denied, 72 U.S.L.W. 3373 Basquin was lured to a lonely road in the

(U.S. Jan. 26, 2004) (No. 03-736), and Bolongo Bay area of St. Thomas. There,

need not recount it here, though some he was robbed and murdered. Following

details bear repeating. There are two trial

courts: The Territorial Court is comparable 1

to a state court of general jurisdiction, see The three-judge panel is composed of

4 V.I. Code § 76, while the District Court the two Judges of the District Court of

of the Virgin Islands has “the jurisdiction the Virgin Islands, and a judge of the

of a District Court of the United States,” Territorial Court designated by the Chief

48 U.S.C. § 1612(a). Appeals from the Judge of the District Court. See 48

U.S.C. § 1613a(b).

3

an investigation by the Virgin Islands the Territorial Court, the Government

Police, the Government of the Virgin offered proposed redactions of the

Islands (the “Government”) charged statements, but after lengthy argument,

Selvin Hodge, Ottice Bryan, Kirsten the Territorial Court concluded that the

Greenaway, and Eladio Camacho Government’s proposal did not satisfy

(collectively, the “defendants”) with Bruton and its progeny. Ruling from the

robbery, felony murder, and conspiracy bench, the Territorial Court described the

to commit murder. During the further redactions that would be required

investigation, Hodge and Camacho gave to admit the confessions.3

statements inculpating themselves and

Title 4, section 39(a)(1) of the

the other defendants in Basquin’s

Virgin Islands Code provides:

murder. Greenaway gave a statement

exculpating herself, but potentially The United States or the

inculpating the other defendants. Bryan Government of the Virgin

gave no statement. Islands may appeal an

order, entered before the

The Government sought to use

trial of a person charged

these statements at trial. However, since

with a criminal offense

the Government proposed to try the

under the laws of the

defendants jointly, and none of the

Virgin Islands, which

defendants who offered statements would

directs the return of seized

testify, the statements would have to be

property, suppresses

redacted—or even rewritten—to preserve

evidence, or otherwise

the defendants’ Sixth Amendment

denies the prosecutor the

Confrontation Clause rights. See Bruton

use of evidence at trial, if

v. United States, 391 U.S. 123 (1968),

the United States Attorney

Richardson v. Marsh, 481 U.S. 200

or the Attorney General

(1987), and Gray v. Maryland, 523 U.S.

conducting the prosecution

185 (1998). 2 At a pretrial hearing before

for such violation certifies

to the Judge who granted

2

The issue in cases raising a Bruton

issue is that the prosecution would like to them—in this situation, the nontestifying

introduce confessions by nontestifying defendant who made the confession.

defendants in joint trials. While such

3

statements may of course be admitted In its opinion, the Appellate Division

against the defendants who made them, summarized the Territorial Court’s order

admitting such statements in a joint trial from the bench as requiring “that any

would deprive any codefendants sentences [in the confessions] containing

implicated in those statements of their direct references to the defendants,

right under the Confrontation Clause to nicknames, physical descriptions, and . . .

cross-examine witnesses against substituted pronouns be omitted.”

4

such motion that the appeal Court, arguing that either the Appellate

is not taken for purpose of Division did not have jurisdiction under

delay and the evidence is a 4 V.I. Code § 39(a)(1) to review the

substantial proof of the Territorial Court’s order, or else that the

charge pending against the Appellate Division erred on the merits in

defendant. holding that the Territorial Court went

further than required by Bruton and its

The Government, relying on 4

progeny. Under the former disposition,

V.I. Code § 39(a)(1), noticed its appeal

we would simply reinstate the Territorial

to the Appellate Division and on the

Court’s order. Under the latter

same day provided the certification that

disposition, we would confront the merits

the statute requires. On appeal, the

of the defendants’ Bruton argument.

Appellate Division opined that the

Government’s proposed redaction was

insufficient to protect the defendants’

II. This Court’s Appellate Jurisdiction

Confrontation Clause rights, but

concluded that the Territorial Court had At the threshold, we must

directed more redaction than necessary. examine whether we have appellate

It offered some illustrations of how, on jurisdiction over one, both, or neither of

remand, the Territorial Court could solve the questions that the defendants present.

the “Goldilocks problem” of crafting See Gov’t of V.I. v. Marsham, 293 F.3d

altered confessions that were not too 114, 116 (3d Cir. 2002) (quoting

lightly redacted, not too heavily redacted, Collinsgru v. Palmyra Bd. of Educ., 161

but just right. F.3d 225, 229 (3d Cir. 1998) (“we have

an independent obligation to examine our

The defendants were disappointed

jurisdiction to hear this appeal.”)). Three

in the outcome before the Appellate

of the four defendants invoke this

Division; they would have much

Court’s jurisdiction under 28 U.S.C. §

preferred the redactions ordered by the

1291. Although some of our cases are

Territorial Court. 4 They appealed to this

imprecise about the statutory source of

our jurisdiction over the Appellate

4

It appears that the Territorial Court’s Division, we take this opportunity to

order would have eviscerated the clarify that, as a technical matter, it is 48

confessions to the point that they might U.S.C. § 1613a(c), and not 28 U.S.C. §

have lost all value to the prosecution. 1291, that confers jurisdiction on this

We observe this only to emphasize the Court over appeals from the Appellate

high stakes of this litigation; because of Division. However, the distinction is

our holding regarding our own appellate only technical—our cases have

jurisdiction, we of course express no uniformly held that 48 U.S.C. § 1613a(c)

view as to the correctness of the has the same requirements for

Territorial Court’s or Appellate appealability as 28 U.S.C. § 1291. See,

Division’s Bruton rulings. e.g., Rivera, 333 F.3d at 147; Ortiz v.

5

Dodge, 126 F.3d 545, 547 (3d Cir. 1997). 1613a(c). In re Alison, 837 F.2d 619 (3d

Cir. 1988), considered our appellate

Turning to the substance of our

jurisdiction over an order of the

appellate jurisdiction, we consider

Appellate Division reversing the

whether we have jurisdiction over some

Territorial Court’s grant of a Fed. R. Civ.

or all of this case as a “final decision” of

P. 12(b)(6) motion to dismiss. Since the

the Appellate Division within the

Appellate Division had reversed, it

meaning of 48 U.S.C. § 1613a(c). W e

remanded the case to the Territorial

conclude that we do not in the usual

Court for further proceedings. W e

sense. We then consider whether we

concluded that such a remand was not a

have appellate jurisdiction over some or

final decision under § 1613a(c). Remand

all of this case under the collateral order

orders are not generally appealable

doctrine. We conclude that we do have

because they are not final decisions

jurisdiction under the collateral order

within the meaning of 28 U.S.C. § 1291

doctrine to review the Appellate

and 48 U.S.C. § 1613a(c). W e recently

Division’s determination of its own

reiterated that “[a] final decision ‘ends

jurisdiction.

the litigation on the merits and leaves

A. Not a Final Decision nothing . . . to do but execute the

judgment.’” Rivera, 333 F.3d at 150

We are the second appellate court

(alteration in original) (quoting Catlin v.

to address this case. Nonetheless— to

United States, 324 U.S. 229, 233 (1945)).

reiterate the point made above about the

The remand in Alison left more to do

parallel construction of 48 U.S.C. §

than mere execution of the judgment, and

1613a(c) and 28 U.S.C. § 1291—“with

thus the remand order was not

regard to the question of finality, we

appealable.

have treated appeals from the Appellate

Division . . . no differently than appeals A second, independent reason

taken from any other federal district leads us to conclude that the Appellate

court.” Ortiz, 126 F.3d at 548 (citing as Division’s order was not a final decision:

examples Gov’t of V.I. v. Blake, 118 F.3d The first appeal (i.e., the appeal to the

972 (3d Cir. 1997); In re A.M., 34 F.3d Appellate Division) was interlocutory,

153 (3d Cir. 1994)). but, as we explain in Part III below, was

nonetheless proper. The subsequent

The key question is whether the

appeal to this Court asks us, in effect, to

vacate-and-remand order of the

(re)consider an interlocutory order of a

Appellate Division was a final decision

trial court. But, in view of the finality

under 48 U.S.C. § 1613a(c). It was not a

policy of 28 U.S.C. § 1291 and 48 U.S.C.

“final decision” in the most common

§ 1613a(c), this is something which we

sense of the term—for two reasons.

do not generally engage in (absent

First, it was a remand order, and we have

explained in a similar context that

remand orders are not final under §

6

specific statutory authorization).5 Such decision” in the most common sense

statutory authorization comes from under 48 U.S.C. § 1613a(c), and

Congress. See U.S. Const. Art III. § 1 therefore this Court does not have

(“The judicial Power of the United appellate jurisdiction in the normal sense.

States, shall be vested in . . . such inferior We next consider whether this Court has

Courts as the Congress may from time to jurisdiction under the collateral order

time ordain and establish.”). If we were doctrine.

to blithely take jurisdiction over appeals

B. Collateral Order Doctrine

of decisions that the Appellate Division

rendered on interlocutory appeal, we This Court’s recent definitive

would in practice be allowing our treatment of the collateral order doctrine

jurisdiction to expand based on the is In re Ford Motor Co., 110 F.3d 954

Virgin Islands Legislature’s exercise of (3d Cir. 1997). There we explained:

its authority, under 48 U.S.C. §1613a(a),

[T]he collateral order

to determine the appellate jurisdiction of

doctrine, first enunciated

the Appellate Division. Of course, the

by the Supreme Court in

scheme in § 1613a means that, for a

Cohen v. Beneficial Indus.

Territorial Court case to appear on our

Loan Corp., 337 U.S. 541

docket on appeal, it is necessary that the

(1949), provides a narrow

Virgin Islands Legislature confer

exception to the general

intermediate appellate jurisdiction on the

rule permitting appellate

Appellate Division; but it does not follow

review only of final orders.

that such a jurisdictional statute is

An appeal of a nonfinal

sufficient to confer jurisdiction, in turn,

order will lie if (1) the

on this Court. Hence we decline to

order from which the

conclude that in enacting § 1613a

appellant appeals

Congress intended to cede to the Virgin

conclusively determines

Islands Legislature such control over this

the disputed question; (2)

Court’s jurisdiction.

the order resolves an

Thus we hold that the Appellate important issue that is

Division’s decision is not a “final completely separate from

the merits of the dispute;

and (3) the order is

5 effectively unreviewable

One such statute allowing for

interlocutory appeal to this court is 18 on appeal from a final

U.S.C. § 3731, which is comparable to judgment. See

the interlocutory appeal statute at issue in Rhone-Poulenc Rorer Inc.

this case, 4 V.I. Code § 39(a)(1). Both v. Home Indem. Co., 32

allow, in a proper case, the prosecution F.3d 851, 860 (3d Cir.

to immediately appeal a pretrial order 1994).

suppressing evidence.

7

Id. at 958. As the Cohen Court resolve much of anything. To be sure, it

explained, 28 U.S.C. § 1291 has been established some guideposts for “too

given a “practical rather than a technical much” and “too little” redaction, but at

construction.” 337 U.S. at 546. To this bottom, it remanded the issue to the

end, as a doctrinal matter, orders that Territorial Court to settle on the exact

meet the three prongs described above redaction to use.

are deemed to be “final decisions” within

On the second prong, the

the meaning of the statute.

redaction question is clearly separable

Ford Motor Co. paid special from the merits, and this favors

attention to the question of what makes appealability. The question about the

an issue “important” under the second redactions goes to how much identifying

prong. We described the task as one of information can be contained in a

“compar[ing] the apple of the desire to nontestifying codefendant’s statement

avoid piecemeal litigation to the orange and still preserve the other defendants’

of, for example, federalism.” Ford Confrontation Clause rights. This is an

Motor Co., 110 F.3d at 960. In cases exercise in applied constitutional law, as

where the Supreme Court has blessed it were, and it does not implicate the

interlocutory appeals, we observed, it merits of whether some or all of the

was because “the imperative of defendants did or did not participate in

preventing impairment of some the robbery-murder of the victim. As for

institutionally significant status or the importance of the question, there are

relationship” made “the danger of mixed signals. On the one hand, the

denying justice by reason of delay in Confrontation Clause articulates a

appellate adjudication outweigh[] the fundamental constitutional right, and one

inefficiencies flowing from interlocutory might assume that such rights cry out

appeal.” Id. most strongly for vindication on

interlocutory appeal. Cf., e.g., P.R.

We will apply the doctrine

Aqueduct & Sewer Auth. v. Metcalf &

separately to both of the questions that

Eddy, Inc., 506 U.S. 139, 145 (1993)

the defendants urge us to consider: (1)

(holding that determination of sovereign

the merits of the Appellate Division’s

immunity was a proper subject for

decision, and (2) the Appellate

interlocutory appeal because it “involves

Division’s determination of its own

a claim to a fundamental constitutional

jurisdiction.

protection”). On the other hand,

1. Appellate Jurisdiction to Confrontation Clause rights are

Review The Merits of the Appellate vindicated through evidentiary rulings,

Division’s Decision and a prime target of the policy against

interlocutory appeals is the avoidance of

As to the first prong of the

piecemeal review of the many

collateral order doctrine, the Appellate

evidentiary rulings in a typical case.

Division’s order did not conclusively

Thus we find this factor inconclusive.

8

The third prong strongly disfavors this Court does not have appellate

appealability. Practice alone—in Bruton jurisdiction to hear an appeal of the

and Gray themselves—suggests that merits of the Appellate Division’s order.

interlocutory appeal is unwarranted

2. Appellate Jurisdiction to

because the constitutional defect in

Review the Appellate Division’s

Bruton’s and Gray’s trials were, in fact,

Determination of Its Own Jurisdiction

remedied by vacating their convictions

and remanding for a new trial.6 Turning to the question of the

reviewability of the Appellate Division’s

In sum, the prongs range from

determination of its own jurisdiction, it is

inconclusive to strongly disfavoring

clear that we may at least review this

appealability. As the collateral order

limited question. This Court’s

doctrine is a “narrow” exception and the

indistinguishable precedent in

Supreme Court has “described the

Government of the Virgin Islands v.

conditions for collateral order appeal as

Blake, 118 F.3d 972 (3d Cir. 1997),

stringent,” Digital Equip. Corp. v.

compels this conclusion. In that case, the

Desktop Direct, Inc., 511 U.S. 863, 868

Government had taken an interlocutory

(1994), failure to meet one prong makes

appeal from the Territorial Court to the

the doctrine inapplicable no matter how

Appellate Division under 4 V.I. Code §

compelling the other prongs may be (and

39(d), a provision which allows an

here, not even one prong is in favor of

interlocutory appeal during trial under

appealability). Thus we conclude that

some circumstances. (In Blake, the

Territorial Court had suppressed—during

6

motions decided after the jury had been

Bruton and his codefendant were tried selected and sworn—a variety of

and convicted in federal court, apparently testimony and other evidence the

with no interlocutory appeals. Bruton’s Government sought to present.) The

conviction was reversed and remanded Appellate Division in Blake decided that

for retrial (where he was again it did not have jurisdiction to hear the

convicted). United States v. Bruton, 416 Government’s appeal. On appeal we

F.2d 310 (8th Cir. 1969). Though Gray’s held that although we had no jurisdiction

case was in state court in Maryland (and to reach the merits, we did have

thus presented no opportunity for jurisdiction under the collateral order

interlocutory appeal in the federal doctrine to review the Appellate

system), the same remedy was of course Division’s jurisdiction over the appeal.

available: The Supreme Court vacated Blake, 118 F.3d at 975-76. We of course

his conviction and remanded. In adhere to Blake in this case, see Third

Richardson, the Supreme Court did not Circuit IOP 9.1, but we do add a few

find in Richardson’s favor, but there was words of analysis since the discussion in

no doubt that even in the habeas corpus Blake was quite summary.

posture of that case it would have been

possible to afford him relief. The first prong of the collateral

9

order doctrine is clearly satisfied here want of subject matter jurisdiction are

because the Appellate Division did not ordinarily entitled to interlocutory

finally determine its own jurisdiction review.” Merritt v. Shuttle, Inc., 187

over this sort of interlocutory appeal. F.3d 263, 268 (2d Cir. 1999) (citing

The third prong is also clearly satisfied Catlin, 324 U.S. at 236).

because such a determination cannot be

The dispositive differences in this

effectively reviewed on appeal from a

case are twofold. First, we are

final judgment because, by hypothesis,

considering the ability to appeal an

the Appellate Division’s jurisdiction to

interlocutory determination of appellate

hear interlocutory (i.e., not final) appeals

jurisdiction, not original jurisdiction,

would not be implicated in that posture.

making cases like Merritt

The second prong is more distinguishable. Second, the order at

complex, but it too favors our issue here is not so much effectively

jurisdiction. Part of it is clear: The issue unreviewable as it is procedurally

of the Appellate Division’s jurisdiction is unreviewable if we do not take

separate from the merits. Whether the jurisdiction now. “Effective”

question is important enough requires unreviewability arises because a party’s

some discussion. On the one hand, putative rights will be irreparably

issues involving the scope of federal harmed. For example, a party may have

jurisdiction are good candidates for the to forego an injunction guarding against

collateral order doctrine. See, e.g., irreparable harm because the security

Quackenbush v. Allstate Ins. Co., 517 bond that is the price of the injunction

U.S. 706 (1996) (holding that an may have been made too costly by the

abstention-based remand to state court lower court; or a party wrongly

was immediately appealable under determined to lack qualified immunity

collateral order doctrine). On the other may be subjected to a trial. In such

hand, a vague reference to the “scope of situations, although the aggrieved party

federal jurisdiction” may denominate the cannot be made whole after the fact, the

category too broadly, for the cases legal question will, as a matter of

involving the collateral order doctrine procedure, still be preserved for the

and the scope of federal jurisdiction are appellate court’s review at a later time.

by and large abstention cases, see id. at In contrast, only in the most convoluted

712-15 (canvassing cases), which “put and improbable of hypotheticals will the

the litigants ‘effectively out of court,’” jurisdictional issue presented here ever

id. at 713 (quoting Moses H. Cone Mem’l make its way to this Court on appeal

Hosp. v. Mercury Contr. Corp., 460 U.S. from a final decision.7 As

1, 11 n.11 (1983) (quoting Idlewild Bon

Voyage Liquor Corp. v. Epstein, 370

7

U.S. 713, 715 n.2 (1962))), and some The dissent “see[s] no reason why we

courts have explicitly held that “non- could not [after trial] consider whether

immunity based motions to dismiss for the Appellate Division had jurisdiction to

10

a procedural matter, now is this Court’s

only opportunity to pass on the issue.

render its decision.” Dissenting Op. post

at —. In one sense, this is a truism, but This reasoning also explains why

in practical terms it is a half-truth. The our holding here would not apply to the

whole tenor and dynamic of a issue in Merritt, i.e., why a district

trial—here, for murder no less—can be court’s determination of its subject

radically altered by a decision like that of matter jurisdiction is not generally

the Appellate Division here. We think it reviewable under the collateral order

imprudent to let pass a ruling of such doctrine.8 Questions of original

moment without examining, if we can, jurisdiction are always automatically

whether the court making the ruling even before this Court on appellate review.

had jurisdiction. See, e.g., Wujick v. Dale & Dale, Inc., 43

Second, the dissent’s offhand F.3d 790, 792 (3d Cir. 1994) (“‘[E]very

statement about easy reviewability after federal appellate court has a special

trial is also unsupported by an analysis of obligation to satisfy itself not only of its

the posture in which the question might own jurisdiction, but also that of lower

actually arise. On appeal from a courts in a cause under review.’”

conviction (the dissent is quite right that (alteration in original) (quoting Spring

the point is moot if there is a plea or Garden Assoc., L.P. v. Resolution Trust

acquittal), the question will be whether Corp., 26 F.3d 412, 415 (3d Cir. 1994)

the redaction actually used was (quoting Employers Ins. of Wausau v.

constitutionally sound. If it was, we Crown Cork & Seal Co., 905 F.2d 42 (3d

would have no occasion to consider the Cir. 1990)))). In other words, there is no

Appellate Division’s jurisdiction, for it procedural posture where a question of

will have made the right decision original jurisdiction will escape this

(whether it was empowered to or not). If Court’s review in an appeal from a (non-

the redaction used was unsound (and not interlocutory) final decision. In

harmless), the Appellate Division’s

jurisdiction is beside the point—the case

must go back for a new trial. review after trial.

This analysis also explains why

8

the dissent’s efforts to distinguish Blake The dissent criticizes the distinction

are unconvincing. While there may have here as inconsistent with our earlier

been factors present in Blake that are pronouncement that we must “treat[]

absent here, the core concern remains: appeals from the Appellate Division no

How are we to review the Appellate differently from appeals from any other

Division’s jurisdiction if not through the district court.” Dissenting Op. post at —.

collateral order doctrine? Both in Blake But of course, that greatly overstates our

(as the dissent explains) and in this case earlier point, which was confined to the

(as the preceding paragraph illustrates), issue of how we treat questions of

the question cannot be addressed on finality.

11

contrast—as this case itself is the very sort of inefficiency that the

illustrates—there are procedural postures collateral order doctrine should not

which render permanently unreviewable countenance. We are underwhelmed by

the judgment of a hierarchically inferior the dissent’s in terrorem argument. First,

appellate court,9 and thereby prevent the it is a dubious empirical proposition that

automatic review of jurisdiction the holding here will increase the

described in Wujick. Because review of quantity of this sort of appeal. As the

a question of appellate jurisdiction is a citations in the opinion in this case

now-or-never proposition, interlocutory suggest, this Court has seen but a handful

review of a jurisdictional question is of cases like this in the past decade.

warranted here where it is not warranted Second, the fact that we here take the

in the case of a district court’s opportunity to give some guidance (both

determination of its own original to litigants and to the Appellate Division)

jurisdiction. should decrease, not increase, the

number of appeals taken in good faith.

In brief, coupled with the

institutional importance of the question, Third, the dissent claims that

the absolute unreviewability of the “[t]he majority’s decision effectively

Appellate Division’s jurisdiction in this grants an appeal as of right.” But it is the

case makes the question an important Congress, not this Court, that has granted

one. Thus this prong too favors litigants an appeal as of right from the

appealability. Because all three prongs Appellate Division. Even if we did

are satisfied, the collateral order doctrine dismiss this appeal in its entirety for lack

affords us a basis for reviewing the of jurisdiction, as the dissent would, little

Appellate Division’s determination efficiency would be gained as a practical

regarding its jurisdiction under 4 V.I. matter: In a subsequent case, a litigant

Code § 39(a)(1). could still file a notice of appeal (as a

matter of statutory right), and he could

In reaching this conclusion, we

still advance a good faith argument in

have considered the dissent’s contention

favor of review under the collateral order

that our “decision effectively grants an

doctrine. A motions panel would likely

appeal as of right to question an appellate

refer the jurisdictional question to the

court’s jurisdiction whenever it makes an

merits panel, and the merits panel would

interlocutory ruling,” and that this result

address the question (hopefully in less

extended fashion than we have had to

9

The judgment of the Appellate here). In other words, the decision here

Division is permanently unreviewable makes it neither easier nor harder for a

only in the sense that it will never be party who is dissatisfied with the ruling

specifically reviewed by this Court; the of the Appellate Division to drag out the

Bruton question in general is preserved

for this Court’s review. See supra note

4.

12

process by appealing to this Court. 10 The United States or the

Government of the Virgin

At bottom, it seems to us that the

Islands may appeal an

dissent’s problem is the presence of a

order, entered before the

system of two-tier appellate review as of

trial of a person charged

right. In fact, the dissent states explicitly

with a criminal offense

that “[t]his type of review is wisely not

under the laws of the

found elsewhere in the federal system,

Virgin Islands, which

and should not exist here.” Dissenting

directs the return of seized

Op. post at —. While we might agree

property, suppresses

with the dissent if we were drafting 48

evidence, or otherwise

U.S.C. § 1613a, that simply is not our

denies the prosecutor the

task. Congress has provided that we

use of evidence at trial, if

have appellate jurisdiction (until such

the United States Attorney

time as the conditions for certiorari

or the Attorney General

jurisdiction are met, see 48 U.S.C. §

conducting the prosecution

1613), and accordingly, we will turn our

for such violation certifies

attention to the substance of the appeal.

to the Judge who granted

such motion that the appeal

is not taken for purpose of

III. The Appellate Division’s

delay and the evidence is a

Jurisdiction

substantial proof of the

We exercise plenary review in charge pending against the

determining whether a court defendant.

hierarchically below us had subject

There do not appear to be any

matter jurisdiction. Wujick v. Dale &

cases—either from this Court or from the

Dale, Inc., 43 F.3d 790, 792 (3d Cir.

Appellate Division—considering this

1994) (citing Nat’l Union Fire Ins. Co. v.

provision in any depth.11 We are,

City Savings, F.S.B., 28 F.3d 376, 383

(3d Cir. 1994)). As previously noted, we

look to local law to determine the 11

jurisdiction of the Appellate Division. The government points to the one

See 48 U.S.C. § 1613a(a); Gov’t of V.I. v. case of the Appellate Division which

Warner, 48 F.3d 688 (3d Cir. 1995). The expressly stated that that Court had

asserted basis for the Appellate jurisdiction under section 39(a)(1),

Division’s subject matter jurisdiction is 4 Government of the Virgin Islands v.

V.I. Code § 39(a)(1), which provides: Christopher, 990 F. Supp. 391 (D.V.I.

App. Div. 1997) (per curiam). In that

case, the Territorial Court had suppressed

10

Indeed, this decision might even before trial an unmirandized confession

discourage appeals by settling the and the Government took an

underlying merits questions. interlocutory appeal to the Appellate

13

however, fortunate to be guided in this The defendants’ challenges to the

novel exercise by interpretations of 18 Appellate Division’s jurisdiction are

U.S.C. § 3731, the analogous provision fourfold: First, they argue that the

for interlocutory appeals by the Territorial Court’s redactions were not

government of suppression motions “an order . . . suppress[ing] evidence.”

decided in federal district courts.12 Second, they submit that the

Government’s certification was

inadequate because the Territorial Court

Division. The Appellate Division simply was not afforded an opportunity to

stated that “[t]his Court has jurisdiction review it before the Government noticed

under V.I. Code. Ann. tit. 4, § 39(a)(1).” its appeal to the Appellate Division.

Id. at 393. No mention was made of any Third, they contend that the statements in

certification by the Government or of question, even unredacted, are not

whether the suppressed confession was “substantial proof of the charge pending

“substantial proof of the charge pending against [them].” Fourth, they assert that

against the defendant.” the statute denies them equal protection

12

of the laws, by permitting the

That section is similarly (but not government to appeal adverse orders but

identically) worded, and appears to have not affording a similar opportunity to

provided the basis for 4 V.I. Code § defendants facing adverse orders. We

39(a)(1): The Virgin Islands statute was will treat each of these challenges in turn.

enacted in 1972, while the relevant

portion of the federal statute was added A. “An Order Suppressing

in 1971. The federal statute reads: Evidence”

An appeal by the United The defendants contend that the

States shall lie to a court of Territorial Court’s redaction order was

appeals from a decision or not “an order suppress[ing] evidence”

order of a district court within the meaning of 4 V.I. Code §

suppressing or excluding 39(a)(1). But it would be a terribly

evidence or requiring the crabbed reading of the statute to hold that

return of seized property in admitting a statement subject to

a criminal proceeding, not redactions does not amount to a

made after the defendant suppression of evidence. The statute

has been put in jeopardy finishes its list of appealable orders with

and before the verdict or a catch-all category—those orders which

finding on an indictment or “otherwise den[y] the prosecutor the use

information, if the United of the evidence at trial.” Id. Even if the

States attorney certifies to

the district court that the

appeal is not taken for substantial proof of a fact

purpose of delay and that material in the proceeding.

the evidence is a 18 U.S.C. § 3731, ¶2.

14

redaction order is not an order generally held that the “substantial

suppressing evidence, it surely denies proof” requirement of 18 U.S.C. § 3731

the Government the use of the full is a requirement of the certification, not a

confessions at trial. Thus we reject the requirement of actual fact. See In re

defendants’ contention that the Grand Jury Investigation, 599 F.2d at

Territorial Court’s order was not a proper 1226.13 The certification under 18

subject for appeal.

13

B. Territorial Court Review of In his brief, Camacho cites United

the Certification States v. Poulsen, 41 F.3d 1330 (9th Cir.

The defendants next argue that the 1994), for the proposition that mere

Territorial Court should have had an certification is insufficient. A review of

opportunity to review the certification 1970s decisions following the enactment

provided by the Government. While as a of the relevant portion of 18 U.S.C. §

policy matter, one might conclude that 3731 reveals an early split among the

the Territorial Court should be given an circuits on this score. Compare In re

opportunity to review the certification, Grand Jury Investigation, 599 F.2d at

there is at present simply no basis in the 1226 (3d Cir.), and Comiskey, 460 F.2d

statute for such a requirement. W e at 1297-98 (7th Cir.), with United States

decline to read one in. v. Loud Hawk, 628 F.2d 1139 (9th Cir.

1979) (en banc). The Court of Appeals

Moreover, this Court has decided for the Eleventh Circuit has implied that

in interpreting 18 U.S.C. § 3731 that that it sides with us and the Seventh Circuit.

statute requires nothing more than the See United States v. C.G., 736 F.2d 1474,

delivery of the certification to the district 1478 (11th Cir. 1984). The Court of

court in question. See In re Grand Jury Appeals for the First Circuit has

Investigation, 599 F.2d 1224, 1226 (3d acknowledged the split, but has declined

Cir. 1979) (adopting United States v. to decide the issue. See United States v.

Comiskey, 460 F.2d 1293, 1297-98 (7th Bouthot, 878 F.2d 1506, 1510 (1st Cir.

Cir. 1972) (holding that no evidence was 1989).

required to support a certification under More recently, the Court of

18 U.S.C. § 3731)). We hold, by Appeals for the Ninth Circuit has

analogy, that 4 V.I. Code § 39(a)(1) is expressly declined to hold that

also completely satisfied by simple subsequent Supreme Court decisions

delivery of the certification to the have implicitly overruled Loud Hawk,

Territorial Court. Thus the see United States v. Adrian, 978 F.2d

Government’s certification in this case 486, 490-91 (9th Cir. 1992), and

was adequate. continues to require the government to

C. “Substantial Proof of the establish by more than mere certification

Charge Pending” that the suppressed evidence constitutes

“substantial proof.” The Court of

The Courts of Appeals have Appeals for the Eighth Circuit recently

15

U.S.C. § 3731 must state both (1) that the federal statute as a guide. Second, if the

appeal is not taken for the purpose of Virgin Islands Legislature actually

delay; and (2) that the evidence is a wanted the statute to operate as the

substantial proof of a material fact in the defendants would have it, there were far

proceeding. The United States less cryptic ways of communicating that

Attorney’s word is enough; the intent. For example, the Virgin Islands

reviewing court does not consider the Legislature could have put the

truth of the certification. “substantial proof” requirement before

the certification clause. Third, the statute

If 4 V.I. Code § 39(a)(1) were

is silent on what court would evaluate the

worded identically to 18 U.S.C. § 3731,

substantiality of the proof, or on how that

on which In re Grand Jury Investigation

court would go about the evaluation,

is binding precedent, this would certainly

suggesting that no such review is to be

be the end of it. But the Virgin Islands

undertaken. Fourth, review of the

statute is not clearly drafted: It is missing

substantiality of the proof necessarily

an additional “that” immediately before

entails a look at the other evidence that

“the evidence is a substantial proof,”

the Government has available to it, an

which would make it grammatically

inquiry that could both take considerable

unambiguous. As it now stands, it could

time and prejudice the Government’s

be read to require essentially the same

case. Both of these seem at odds with

two certification elements that 18 U.S.C.

the expedited interlocutory appellate

§ 3731 does; or it could be read (as the

review contemplated by the statute.14

defendants urge) to require a certification

that the appeal is not taken for delay, and

14

also require that, in actual fact, the Moreover, we find 4 V.I. Code §

evidence be “substantial proof.” 39(a)(1) (the statute at issue here)

We decline to read it as the distinguishable from 4 V.I. Code § 39(d)

defendants would have it, for four (the mid-trial interlocutory appeal

reasons. First, the Virgin Islands statute provision at issue in Blake). The latter

is plainly modeled on the federal statute, requires more than the prosecutor’s mere

and we conclude it is best to follow the certification that the question involves “a

substantial and recurring question of law

which requires appellate resolution.” 4.

acknowledged this continuing split, and V.I. Code § 39(d). We held the merits of

sided with this Circuit and the Seventh this certification to be a question for the

Circuit. See United States v. Johnson, court because it is “an issue of statutory

228 F.3d 920, 923-24 (8th Cir. 2000). interpretation, and because it involves the

We of course adhere to our precedent in jurisdiction of the federal courts.” Blake,

In re Grand Jury Investigation, and 118 F.3d at 977 (citations omitted). In

recognize no requirement in 18 U.S.C. § sharp contrast, the certification required

3731 aside from the certification paper for appeals taken under subsection (a)(1)

itself. addresses the substantiality of evidence,

16

Thus, we conclude that the Appellate only rational basis review of the

Division did not need to evaluate the legislation).

substantiality of the proof in order to

The Virgin Islands Legislature

accept the certification.

certainly had a rational basis for

D. Equal Protection distinguishing between the Government

and defendants on the question of appeal

The defendants object that the

rights. To identify only one such basis,

statute affords the Government an appeal

the Virgin Islands Legislature could

right that it does not confer on

rationally conclude that the efficient

defendants, and that this disparity

administration of criminal justice

amounts to a violation of the equal

demanded that the Government have

protection component of the Fifth

expansive pre-trial appeal rights, and the

Amendment’s Due Process Clause. But

defendant have expansive post-trial

this argument is foreclosed by United

appeal rights. Thus we find no merit in

States v. Heinze, 218 U.S. 532, 545-46

the defendants’ equal protection

(1910), which held that the Act of March

challenge.

2, 1907, ch. 2564 (which was later

codified at 18 U.S.C. § 682, which in In sum, we conclude that the

turn was the forerunner of 18 U.S.C. § Government followed the procedures set

3731) did not violate equal protection or out in 4 V.I. Code § 39(a)(1), and that the

due process principles. Appellate Division had jurisdiction over

the appeal.

Moreover, even under more recent

equal protection jurisprudence, Heinze IV. Conclusion

reached the right result: The Supreme

We have concluded that the

Court has not announced that the status

Appellate Division had jurisdiction over

of “criminal defendant” is a suspect

the appeal, and we will affirm the

classification, nor has it held the right to

Appellate Division’s holding regarding

appeal in a criminal case to be a

its own jurisdiction. Having determined

fundamental right. Thus we subject this

that we lack jurisdiction over the other

legislation to rational basis review. See,

questions in this appeal, we will dismiss

e.g., Ramsgate Court Townhome Ass’n v.

the appeal with respect to those

W. Chester Borough, 313 F.3d 157, 160

questions. The case will be remanded to

(3d Cir. 2002) (reiterating that equal

the Territorial Court to revise the

protection challenges to legislation not

redacted statements in conformity with

based on a suspect classification or

the Appellate Division’s opinion.

implicating a fundamental right require

Because we do not reach the merits of

the defendants’ Bruton claims, this

opinion is without any preclusive effect

a factual or strategic matter that—for the to the defendants asserting on direct

reasons we identify above— a court is ill- appeal, should they be convicted, that the

equipped to evaluate.

17

redacted confessions used at trial were time we take an interlocutory appeal.

insufficiently altered to secure their Sixth

This type of review is wisely not

Amendment Confrontation Clause rights.

found elsewhere in the federal system,

and should not exist here. Under the

majority’s holding, we pile an extra layer

NYGAARD, J. dissenting.

of interlocutory appellate review solely

I respectfully dissent and would onto cases that stem from the Virgin

dismiss this appeal for lack of Islands, without explaining why this

jurisdiction. I agree with the majority extra layer is necessary – and why the

that we do not have jurisdiction to delay it engenders is justified. I find the

consider the merits of the decision of the extra layer unnecessary and the delay

District Court of the Virgin Islands, unjustified.

Appellate Division. I disagree, however,

The majority correctly concludes

that we may consider whether the

that the issue of the Appellate Division’s

Appellate Division had jurisdiction to

jurisdiction is not reviewable as an

hear the interlocutory appeal. The

ordinary final decision. It also uses the

majority asserts that its resolution of this

correct test for determining whether,

issue is “clear” and compelled by the

nevertheless, we may pretend it is a final

“indistinguishable precedent” of

decision and review it under the

Government of Virgin Islands v. Blake,

collateral order doctrine. It is the manner

118 F.3d 972 (3d Cir. 1997). Maj. Op. at

in which the majority applies this test

*9. I agree the issue is clear, but

where they and I part company.

conclude that the precedent of Blake is

first, quite distinguishable, and At the outset, I think it important

moreover, not germane to our decision. to emphasize what the majority only

notes in passing – that the collateral

The majority insists that we

order doctrine is meant to provide a

should treat appeals from the Appellate

“narrow exception” to the general rule

Division “no differently than appeals

that permits appellate review only of

taken from any other federal district

truly final orders. See Digital Equip.

court.” Maj. Op. at *6. W hile I agree in

Corp. v. Desktop Direct, Inc., 511 U.S.

general, I do not believe this means we

863, 868 (1994). This exception is to be

can simply be blind to the differences.

made only when required to preserve “a

The majority’s decision effectively

healthy legal system,” and should “never

grants an appeal as of right to question an

be allowed to swallow the general rule.”

appellate court’s jurisdiction whenever it

Id. at 867-68 (internal citation and

makes an interlocutory ruling. The

quotations omitted). Thus, the three

procedural equivalent is not our routine

prongs of the collateral order doctrine are

review of a decision by a typical district

“stringent,” and each of them must be

court, but review by some hypothetical

met in order for a decision to be

higher court of our jurisdiction every

reviewable. Id. at 868. With this in mind,

18

it seems clear that in this case the of justice require that we take an

requirements of the second and third interlocutory appeal to second-guess the

prongs have not been met, and we jurisdictional conclusions of the

therefore may not review the Appellate Appellate Division when it is sitting in

Division’s decision as to its own the same posture.

jurisdiction.

In distinguishing holdings that

In addition to being separate from find issues of subject-matter jurisdiction

the merits of the case, as this ineligible for interlocutory review, the

jurisdictional question admittedly is, the majority points out that this case is

second prong also requires that the issue different because it presents a question of

be sufficiently “important.” Discussing appellate, not original, jurisdiction.15 The

the meaning of “important,” the United majority does not, however, indicate why

States Supreme Court has explained that this distinction weighs in favor of

it involves an examination of the “value review. Nor does the majority explain

of the interests that would be lost through how the interests of justice implicated by

rigorous application of a final judgment an interlocutory jurisdictional issue are

requirement.” Digital Equip. Corp., 511 so weighty that they overcome the

U.S. at 878-79. Similarly, we have “inefficiencies flowing from

required a showing of the “impairment of interlocutory appeal.” Notably, the

some institutionally significant status or majority actually has very little to say

relationship” presenting the “danger of about the “importance” of reviewing the

denying justice.” In re Ford Motor jurisdictional issue, blurring its

Co., 110 F.3d 954, 960 (3d Cir. 1997). discussion of this condition with its

To qualify as “important,” these interests insistence that the order is “procedurally

must also outweigh the “inefficiencies unreviewable,” a factor that is properly

flowing from interlocutory appeal.” Id. evaluated under the third prong. Maj. Op.

at *10.

It is difficult for me to see how we

can conclude that an extra layer of In my view, this third requirement

appellate review, of a kind that does not has also not been fulfilled. I fail to see

exist anywhere else in the federal system, why the question of interlocutory

qualifies as “important” under this

standard. When this Court takes 15

jurisdiction over an interlocutory appeal It is worth noting that earlier in its

from a typical district court’s opinion the majority observed the

proceedings, our decision to do so is not necessity of treating appeals from the

subject to automatic review, and yet we Appellate Division no differently from

do not find that this deprivation presents appeals from any other district court, but

the “danger of denying justice.” It is when the occasion arises, it is quick to

incongruous, and more than a bit point out that they really are different,

patronizing, to conclude that the interests because they involve questions of

appellate, and not original, jurisdiction.

19

appellate jurisdiction as presented in this hypotheticals.” Maj. Op. at *11. True, if

case is “effectively unreviewable on we were to reverse, at that point we

appeal from a final judgment.” Ford could not rewrite history and pretend that

Motor Co., 110 F.3d at 958. As the the Appellate Division had never

Supreme Court notes, most interlocutory rendered its interlocutory ruling, but as

orders are “only imperfectly reparable by the Supreme Court has emphasized,

appellate reversal,” and if this prong effective reviewability of a decision does

were to be interpreted too broadly, it not require that we be able to unring the

would render it meaningless. Digital “law’s proverbial bell.” Id.

Equip. Corp., 511 U.S. at 872. “A fully

It is in regard to reviewability that

litigated case can no more be untried

this case is most easily distinguishable

than the law’s proverbial bell can be

from Blake. 118 F.3d 972. In Blake, the

unrung, and almost every pretrial or trial

Appellate Division had found that it did

order might be called ‘effectively

not have jurisdiction to consider the

unreviewable’ in the sense that relief

government’s interlocutory appeal, and it

from error can never extend to rewriting

was the government, not the defendants,

history.” Id.

who sought to appeal that ruling to us. Id.

It is indeed likely that the issue of at 974. This denial of jurisdiction could

the Appellate Division’s interlocutory not have been effectively reviewed after

appellate jurisdiction will be made final judgment, especially because it is

irrelevant by further proceedings. If the unlikely the government would have

Appellants reach a plea agreement or are been able to appeal at all had it lost and

acquitted, for example, then the question the trial resulted in an acquittal. In

would be moot. In the larger context of a contrast, here Appellants would have an

murder trial, the issue may be rendered automatic right to appeal upon

immaterial. But these possibilities only conviction.

indicate that our consideration of the

These distinctions also make our

issue at this point may well be a waste of

finding that the interlocutory issue was

time and resources.

sufficiently “important” more palatable

If the Appellants are convicted, in the Blake case, since the denial of

however, and the decision of the jurisdiction there meant the challenged

Appellate Division is material to the order would not be reviewed by any

outcome of the trial, I see no reason why court, and a miscarriage of justice was

we could not then consider whether the therefore more likely to result. In

Appellate Division had jurisdiction to contrast, in a case such as this in which

render its decision. In fact, it seems that the Appellate Division took jurisdiction,

the issue could be raised rather the underlying issue has already been

straightforwardly upon appeal, without reviewed and decided by an appellate

requiring, as the majority suggests, “the court.

most convoluted and improbable of

20

This case implicates all of the we need look no farther than the case

interests that justify the existence of the now before us. The trial of Appellants for

final judgment rule, and illustrates why a brutal 1999 murder was set to begin in

exceptions to this rule should be few. As September 2001, when the case was

the Supreme Court explained: brought to a grinding halt by the

government’s appeal on the eve of trial.

An interlocutory appeal

Memories of witnesses have surely faded

can make it more

and evidence gone stale as the case has

difficult for trial judges

wended its way through two appellate

to do their basic job –

courts, producing what will be at least a

supervising trial

three-year delay in trial. There is no

proceedings. It can

doubt that when this trial is eventually

threaten those

held, it will be less coherent than it

proceedings with delay,

would have been three or more years

adding costs and

earlier, and less likely to achieve a just

diminishing coherence.

result. It is unfortunate that there has

It also risks additional,

been such a delay in this case; we should

and unnecessary,

not encourage its recurrence.

appellate court work . . .

when it brings them The government’s original

appeals that, had the interlocutory appeal was brought under a

trial simply proceeded, statute passed by the Virgin Islands

would have turned out legislature, which made a measured

to be unnecessary. decision that the interests of justice

warrant the delay caused by allowing

Johnson v. Jones, 515 U.S. 304, 309

interlocutory appeals in a few specified

(1995).

instances. Now, in making any such

Fortunately, the scope of the decision, the local legislature must weigh

majority’s decision is limited to the the interests of justice against far more

unique appellate position of the courts of delay, since this Court must now intrude

the Virgin Islands, but even within this on every interlocutory appeal. From now

narrow arena today’s holding seems on, every interlocutory appeal allowed by

certain to encourage more unnecessary statute will come stapled to a right to

delay while this Court wades through appeal to us the Appellate Division’s

more unnecessary appeals. With this decision to take the interlocutory appeal.

holding, every ruling by the Appellate This extra layer is not only unnecessary,

Division becomes appealable to this but also conveys an unjustified lack of

Court, since every such ruling must confidence in the decisions of the

necessarily contain at least an implicit Appellate Division, and creates a further

finding of jurisdiction. delay that can only serve to jeopardize

the ultimate attainment of justice at trial.

To see the harm in this decision,

21