Amicus Curiae Brief — Commonwealth v. Valle, 136 S. Ct. 28 (2015) (No. 15-108)

No. 15-108

In the

Supreme Court of the Gnited States

——————e 0/94 8_3 6c eee —_—_-

COMMONWEALTH OF PUERTO RICO,

Petitioner,

in

LUIS M. SANCHEZ VALLE and

JAIME GOMEZ VAZQUEZ,

Respondents.

On Writ of Certiorari to the

Supreme Court of Puerto Rico

BRIEF OF AMICUS CURIAE

VIRGIN ISLANDS BAR ASSOCIATION (VIBA)

IN SUPPORT OF RESPONDENTS

J. RUSSELL B. PATE DANA M. HRELIC

PRESIDENT COUNSEL OF RECORD

VIRGIN ISLANDS BAR ASSOCIATION WESLEY W. HORTON

2155 KING Cross STREET, BRENDON P. LEVESQUE

SUITE 2 HORTON, SHIELDS & KNOX, P.C.

CHRISTIANSTED, USVI 00820 90 GILLETT STREET

(340) 778-7497 HARTFORD, CT 06105

(860) 522-8338

EDWARD L. BARRY DHRELIC@HORTONSHIELDSKNOX.COM

JOSEPH A. DIRUZzo, IT

Co-CHAIRS

VIBA LITIGATION COMMITTEE

DECEMBER 22, 2015 COUNSEL FOR AMICUS CURIAE

SUPREME COURT PRESS . (888) 958-5705 + BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED

Whether the Commonwealth of Puerto Rico and

the Federal Government are separate sovereigns for

purposes of the Double Jeopardy Clause of the United

States Constitution.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .....0..........cccccccceeeteteeeeeeeeee i

TABLE OF AUTHORITIES .................ccccccceeeeeceeeeeees ill

STATEMENT OF INTEREST ...0000.0... eee eeeeeee 1

SUMMARY OF ARGUMENT. 0000... cecceccccceeeeeeeeeees 3

ET snicntcciecnierscepsenainasnieniininitindiinanbiigmmnesaninn 7

I. THIS COURT LACKS APPELLATE JURISDICTION

TO HEAR THE PETITIONER’S INTERLOCUTORY

Il. THE COMMONWEALTH OF PUERTO RICO AND

THE FEDERAL GOVERNMENT ARE NOT

SEPARATE SOVEREIGNS ..............cseccecceeeeeececeees 17

eee erctnnssccmnensninnnsinsinsicnnnemmmnsenniemanannen 28

TABLE OF AUTHORITIES

Page

CASES

Abdul-Akbar v. McKelvie,

239 F.3d 307 (3d Cir. 2001).............cccccceceeeeeeeees 25

Abney v. United States,

I iain passim

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) ..............ccccceceseseescsseeeeeeeeeeeees 7

Arizona State Legislature v. Arizona

Independent Redistricting Comm'n,

__U.S._, 135 S.Ct. 2652 (2015)... 20

Arizona v. Rumsey,

I laa 17

Ashe v. Swenson,

aera Ene . 16

Ball v. United States,

I il 17

Barnard v. Thorstenn,

489 U.S. 546 (1989) ............ccccccsscescsscerseresnceecerees 2

Calero-Toledo v. Pearson Yacht Leasing Co.,

SSE: SR ean 20

Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949).............ccccsccssesseceees 11, 14,17

Commonwealth v. Mills,

286 A.2d 638 (Pa. 1971) ..........cccccccceeeeeeeceeeeeeeees 27

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) ..........cccccccceeeeeeeeeeees 14, 15, 17

iv

TABLE OF AUTHORITIES—Continued

Page

DiBella v. United States,

BN i I so cicsccncinindnnmmnsieeeceennsnensonenntes 10

Examining Bd. of Engineers, Architects &

Surveyors v. Flores de Otero,

426 U.S. 572 (1976) .......ccccccccccccccsecsccceeeeeeees 20, 22

Figueroa v. People of Puerto Rico,

232 F.2d 615 (1st Cir. 1956) ............ccccccccceeeeeeeeeee 3

Flanagan v. United States,

ee BD cecceectnseevnsetesermnessessserennsenens 10

Florida v. Thomas,

I 14

Fornaris v. Ridge Tool Co.,

I ie 15

Franklin California Tax-Free Trust v.

Puerto Rico,

805 F.3d 322 (1st Cir. 2015).........ccccccccccceceeeeeees 26

Gov't of the VI. v. Brathwaite,

782 F.2d 399 (3d Cir. 1986)..............0000cceceeeeeeeeeee 5

Guam v. Okada,

715 F.2d 1347 (9th Cir. 1982) ............ccccccceeeeeees 12

In re Holcombe,

S. Ct. Civ. No. 2015-0007, __ V.I.__, 2015

WL 7576037 (V.I. Nov. 25, 2015) .........cccccecceeceees 2

Jefferson v. City of Tarrant,

Be Re 16

Kansas v. Marsh,

ss cestiensemeniions ae

TABLE OF AUTHORITIES—Continued

Page

Lacap v. INS,

138 F.3d 518 (3d Cir. 1998)...................ccccccceeee 25

Nolos v. Holder,

611 F.3d 279 (5th Cir. 2010)............................. 25

Puerto Rico v. Sanchez Valle, et al.,

No. 15-108 (U.S. Oct. 19, 2015 &

ESI A ee ee eee 1

Rabang v. Boyd,

Ee ee ee 25

Rabang v. INS,

35 F.3d 1449 (9th Cir. 1994) 0.0... 25

Reichelderfer v. Quinn,

ET ee Ee 25

Rivera-Moreno v. Gov't of the V.1.,

a ci 5, 14

Tuua v. United States,

788 F.3d 300 (D.C. Cir. 2015) ..........ccccccceeeees 4, 25

United States v. Burroughs,

ET nae 12

United States v. Gillette,

738 F.3d 63 (3d Cir. 2013)...............cccccccccsesseeee 27

United States v. Ginyard,

G11 F.3d BOS W.C. Cir. BOGE) .......c0ccccccecccccccceee 13

United States v. Hyde,

Be ee Be es Bi irccccccccicncteccccccccoccoccocees 5

United States v. MacDonald,

I iicilacaipeitiinsinstgismnniiainadincinatiiial 10

TABLE OF AUTHORITIES—Continued

Page

United States v. Marino,

re Oe icccccciicccecicstecesoccccsnnse 13

United States v. Scott,

ETE IN a ee TE RL 17

United States v. Thoms,

684 F.3d 893 (9th Cir. 2012) ...........ccccecceeeeeeeeees 14

United States v. Tom,

TER FBa GB GRE Cle. 19 DGD ...cccccccccccccceccecccccsesses 13

United States v. Witten,

OOS F.De TIS Bite Cle. 1GGED .ncccccccocccccccccccccoccces 13

Valmonte v. INS,

136 F.3d 914 (2d Cir. 1998)............cccccecceeeeeeeeees 25

Water Isle Hotel & Beach Club, Ltd. v.

Kon Tiki St. Thomas, Inc.,

Pe I, a eicccccsccntecconsivorens 19

CONSTITUTIONAL PROVISIONS

I a ceabimesenneniie saiadactiaiaieaadll 8

U.S. ‘CONST. _SERIEASS EARS a ane ese aee ra Peer 26

an eee a oe renee 24

a I TT ies icetencsiensaiinidinneicapnae 24

FEDERAL STATUTES

sii rcetndiilincieiinnibinstshadaiitsaid 24

I a lalalieilelel 25

aL eRe Se as 25

TABLE OF AUTHORITIES—Continued

Page

SES ee Oe Oe eR Ee An 25

| E __ ERASE Ree en enn en er eT 19

| ACEI oe TELL TR TTT TET 19

ETT ACE eR Ce MRR TD 12

I cciicstali id al arin decsid eniatibanimniaiitanibdidiantniaatiials 19

| kT ES ne ee ee 8

ETT SNC Sam 14, 15, 17

| Xk | ESE Sitaciaamueandinbiabici 7,10, 15

a iis cs iniaiciinkcicestehtileiibdenetaeinieeibaidindoianle 26

| Ee cn a a 18, 19

EET eee ene ee EE 19

EES S SEES a wR rR oe 19

Pub. L. 90-496, 73 Stat. 569 (1968) ..............ccceeeeees 22

Pub. L. 90-496, 82 Stat. 837 (1968)... eee 22

Pub. L. 92-270, 86 Stat. 118 (1972) ...0......cceeceeeeeeee 22

Pub. L. 98-454, 98 Stat. 1732 (1984)... 22

Pub. L. 110-229, 122 Stat. 754 (2008)...................... 23

PUERTO RICO STATUTES

P.R. Laws Ann. tit. 25, § 458.0... 8, 9, 15, 16

P.R. Laws Ann. tit. 25, § 458c ...............c.c.eeeee 8, 15, 16

P.R. Laws Ann. tit. 25, § 458f............... a 8, 15, 16

P.R. Laws Ann. tit. 25, § 4687......................... 8, 15, 16

Vill

TABLE OF AUTHORITIES—Continued

Page

LEGISLATIVE HISTORY

U.S. House of Representatives, Committee on

Insular Affairs, Hearings on H.R. 11751,

74th Cong., 2d sess. (1936) .............ccccececeseeeeeees 21

JUDICIAL RULES

tana erate laine 1

OTHER AUTHORITIES

William W. Boyer,

America’s Virgin Islands: A History of

Human Rights and Wrongs (2d ed. 2010) ........ 21

N.Y. TIMES, Aug. 18, 1916........c.cccceccesceccecsessesseceeeees 20

>>The

STATEMENT OF INTEREST!

The Virgin Islands Bar Association (“VIBA”) as

amicus curiae respectfully submits this brief in support

of the Respondents. The VIBA is an integrated bar

association with approximately 1000 members

practicing within the territory of the United States

Virgin Islands.2 The Virgin Islands is located in the

Lesser Antilles of the Caribbean and consists primarily

of the islands of St. Croix, St: John, St. Thomas, and

Water Island, along with numerous lesser cays.

The VIBA, along with the Supreme Court of the

Virgin Islands, governs the practice of law there and

brings together attorneys of all levels of experience in

all fields of practice. The mission of the VIBA is to

promote advancements and improvements in the

administration of justice and access to justice, to

improve and remain connected to its community

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae certifies that no counsel for a party authored this brief in

whole or in part, and no person or entity other than amicus

curiae, its members, or its counsel made a monetary contribution

intended to fund the preparation or submission of this brief. All

parties have filed with this Court blanket consents to the filing

of amicus curiae briefs in support of either party or neither party.

See Docket in Commonwealth of Puerto Rico v. Sanchez Valle, et

al., No. 15-108 (U.S. Oct. 19, 2015 & Oct. 20, 2015).

2 Neither this brief nor the decision to file it should be construed

to reflect the view of any individual member of the VIBA.

Moreover, some of the members of the VIBA are judges. No

judicial members participated in the adoption or endorsement of

the positions in this brief, nor was it circulated to any judicial

member before filing.

through public education and public service outreach,

and to monitor and advocate for any public policy

issues affecting the judicial system, its servants, and

their clients. These goals are accurately reflected in its

motto: “Striving for Justice Serving our Community.”

This case touches upon several areas relevant to

these vital goals. The practice of law in the Virgin

Islands, as well as the structure of the judicial system

itself, has developed and advanced in large part based

on and because of its status as a Territory, and not a

State. Active VIBA members regularly represent

indigent criminal] defendants in the Virgin Islands on

both a compulsory and voluntary basis, and are

therefore intimately familiar with the current

interplay between local and federal criminal laws in

the Territory. See Barnard v. Thorstenn, 489 U.S. 546,

557 (1989); Jn re Holcombe, S. Ct. Civ. No. 2015-0007,

__V.1.__, 2015 WL 7576037 (V.I. Nov. 25, 2015). In this

capacity, VIBA members must routinely consider

whether, and to what extent, portions of the United

States Constitution apply to the Virgin Islands.

Based upon these strong interests in the stability

and vitality of the practice and enforcement of law in

the Virgin Islands, the VIBA urges this Court to either

dismiss this matter for lack of appellate jurisdiction,

or affirm the judgment of the Supreme Court of Puerto

Rico and hold that the Commonwealth of Puerto Rico

and the federal government are not separate sovereigns

for purposes of the Double Jeopardy Clause of the

United States Constitution.

ate

SUMMARY OF ARGUMENT

The first matter before this Court is that of

appellate jurisdiction; that is, whether this Court has

appellate jurisdiction to hear the Petitioner’s

interlocutory appeal from the dismissal of a single

count of a multi-count indictment? based on double

jeopardy where the other counts, unaffected by the

dismissal, are currently pending. It does not.

The second matter before this Court concerns the

question presented on the merits. It raises issues that

could have a tremendous effect not only on the legal

relationship between the United States and the

Territory of the Virgin Islands but also on the rights

and privileges of Virgin Islanders in their everyday

lives. The critical, if not dispositive, point to consider

is that the laws and courts of the Virgin Islands owe

their existence to the same authority as do those of the

federal government: the United States. The same

holds true for the Commonwealth of Puerto Rico. It

may have adopted its own constitution in 1952, but

not without (1) the grant of authority to do so by

Congress, (2) the imposition of certain requirements

in that constitution by Congress, and (3) the approval

of said constitution by Congress. Figueroa v. People of

Puerto Rico, 232 F.2d 615, 620 (1st Cir. 1956). Puerto

3 The record reflects that the Petitioner filed three single-count

Complaints, or indictments, against each Respondent, but that

each set of three was effectively consolidated and treated as one,

as each was part and parcel of the same proceeding against each

respective Respondent. JA7-10.

Rico has never received the equal status that is

provided to the true dual sovereigns in our federalist

system of government: the fifty states, and the various

Native American tribes. That Puerto Rico has adopted

an illusory constitution that Congress may amend or

overrule at any time does not make it a separate

sovereign for the purposes of the Double Jeopardy

Clause of the United States Constitution; the fact that

Congress may transfer or cede Puerto Rico, as has

been done with other territories in the past—including

the Commonwealth of the Philippines—itself demon-

strates that it cannot be a sovereign.

Should this Court recognize Puerto Rico as a

separate sovereign, it will be imposing on its people a

entitled. Those who ——? in -— Rico, the Virgin

Islands, and other territories face many extraordinary

challenges. Territories have no voting voice in the

federal government that oversees so many aspects of

their lives. They receive no electoral votes for

President. No territory has representation in the

United States Senate, and each receives only one non-

voting delegate in the House of Representatives.

Several courts have held that those born in the

territories are citizens only by operation of statute, and

not the United States Constitution, see, e.g., Tuaua v.

United States, 788 F.3d 300, 307-08 & n.7 (D.C. Cir.

2015), while another has held that individuals leaving

the territories for one of the fifty states may undergo

a full search of their person and belongings even “in

the absence of any degree of suspicion that the

individual is engaged in wrongdoing.” United States

v. Hyde, 37 F.3d 116, 118 (3d Cir. 1994). But because

of the single-sovereign doctrine, the right to be free

from double jeopardy is one of the very rare instances

where residents of America’s territories receive

greater protection than those afforded to residents of

the fifty states: an individual acquitted of a crime in

federal court is protected from further harassment by

the territorial government (and vice versa) with

respect to the same act.

Notwithstanding the Petitioner’s representations

to the contrary, the decision in this case will necessarily

extend to the Territory of the Virgin Islands, where its

people are subject to the same federal legislative

oversight as their counterparts in Puerto Rico, and

where the same principle of single-sovereignty has

been accepted by both the Supreme Court of the Virgin

Islands and the United States Court of Appeals for the

Third Circuit. Rivera-Moreno v. Gov't of the V.I, 61

V.I. 279, 305 (V.I. 2014); Govt of the VI v.

Brathwaite, 782 F.2d 399, 406 (3d Cir. 1986). The

existence of a constitution in Puerto Rico does not

change the fact that it was only created with the

legislative permission and approval of Congress;

although the Virgin Islands has not adopted its own

constitution in the Virgin Islands, it has undergone a

similar process through which the fundamental

provisions of its governing Organic Act were proposed

by the people or their elected representatives and

ultimately approved by Congress.

The reach of this Court’s decision, should it address

the question presented on the merits, extends beyond

the borders of Puerto Rico and further than the four

corners of the Puerto Rico Constitution. It includes, at

the very least, the Virgin Islands, by virtue of its

identical territorial status. If this Court should

recognize Puerto Rico as a separate sovereign for

double jeopardy purposes—in the process providing

the citizens of Puerto Rico with fewer rights than they

are presently entitled—but continue to deny the direct

applicability of other constitutional provisions, it will

set dangerous precedent illustrative of the kind of

inconsistent application that could render parts of the

Constitution meaningless. After all, what good is a

constitutional right that is not constitutionally applied?

The VIBA suggests that if this Court feels inclined to

recognize Puerto Rico as a dual sovereign for the

purposes of the Double Jeopardy Clause, then it

should also consider whether the provision of

representation and voting rights equivalent to those

received by citizens of States is the better option for

Puerto Rico, and therefore the Virgin Islands, and its

citizens.

The VIBA, on behalf of its members, their clients

and their prospective clients, urges this Court to

affirm the judgment of the Puerto Rico Supreme Court

in dismissing the relevant charges against the

Respondents as barred by the Double Jeopardy Clause

of the United States Constitution.

atin

ARGUMENT

I. THis Court LACKS APPELLATE JURISDICTION TO

HEAR THE PETITIONER’S INTERLOCUTORY APPEAL

The Petitioner claims that this Court has

jurisdiction over this appeal under 28 U.S.C. § 1258,

which provides that

Final judgments or decrees rendered by the

Supreme Court of the Commonwealth of

Puerto Rico may be reviewed by the Supreme

Court by writ of certiorari where the validity

of a treaty or statute of the United States is

drawn in question or whether the validity of

a statute of the Commonwealth of Puerto

Rico is drawn in question on the ground of its

being repugnant to the Constitution, treaties,

or laws of the United States, or where any title,

right, privilege, or immunity is specially set

up or claimed under the Constitution or the

treaties or statutes of, or any commission

held or authority exercised under, the United

States.

Id. (emphasis added). Because the decision rendered

by the Puerto Rico Supreme Court is not a final

judgment, this Court should dismiss this case for lack

of subject matter jurisdiction.4

4“The objection that a federal court lacks subject-matter

jurisdiction may be raised by a party, or by a court on its own

initiative, at any stage in the litigation.” Arbaugh v. Y&H Corp.,

546 U.S. 500, 506-07 (2006).

The relevant facts are fairly straightforward. The

Respondents were charged at the territorial level with

violating several sections of the Puerto Rico Weapons

Act, including P.R. Laws Ann. tit. 25, § 458, which

bars the sale of weapons and ammunition without a

license, as well as P.R. Laws Ann. tit. 25, §§ 458c,

458f, 458i. (Pet.App.10a). In federal court, however,

the Respondents were only prosecuted for illegally

selling weapons and ammunition without a license, in

violation of 18 U.S.C. § 922(a)(1)(A)—an offense that

subsumes the lesser included offense of that in § 458

of the Puerto Rico Weapons Act. (Pet.App.10a). The

Respondents were not prosecuted at the federal level

for offenses similar to or including any of the other

separate and different charges pending in territorial

court. (Pet.App.10a).

After both Respondents were separately convicted

and sentenced to the charges in federal court, they

each filed a motion to dismiss the entire case against

them, claiming that the Double Jeopardy Clause of the

Fifth Amendment to the United States Constitution

protected them from being prosecuted in Puerto Rico.

The trial court, over the government’s objection in

each case, granted the motions to dismiss, ruling that

the sovereignty of Puerto Rico to criminally prosecute

its citizens resided and emanated from the federal

government through Congress. (Pet.App.3a, 6a). It

therefore concluded that the charges filed against the

Respondents violated their constitutional protection

against double jeopardy provided by the United States

Constitution and the Puerto Rico Constitution,

dismissing the entirety of both indictments.

(Pet.App.3a, 6a). The government appealed and, after

consolidating both cases, the Court of Appeals

reversed the trial court’s rulings, holding that the

Respondents could be submitted to criminal

prosecution both in federal court and in territorial

court in Puerto Rico for the same criminal behavior

without violating the constitutional safeguard against

double jeopardy. (Pet.App.6a).

The Puerto Rico Supreme Court then partially

reversed the decision of the Puerto Rico Court of

Appeals. In its decision, the Supreme Court ordered

dismissal of only the count in each indictment related

to § 458 of the Puerto Rico Weapons Act. (Pet.App.69a).

Notably, the remaining counts in the indictments

were untouched by the Supreme Court’s decision and

therefore, once reinstated by the Court of Appeals,

they remain pending after the Supreme Court’s

decision. The government then petitioned for writ of

certiorari, which this Court granted.

The record thus reflects that the constitutional

question in this case is limited to a single count in each

of the multi-count indictments against tlie

Respondents. Because the Supreme Court’s decision

affected some but not all of the counts against the

Respondents, it was not a final judgment. The

question then arises as to whether the Petitioner’s

interlocutory appeal is permissible under some

exception to the final-judgment rule or whether, to the

contrary, this Court is without jurisdiction to hear it.

Because the Court’s judgment fits no exception to the

final judgment rule, this Court has no appellate

jurisdiction over this matter and should dismiss the

Petitioner’s appeal.

10

It is well established that there exists in criminal

cases “a firm congressional policy against inter-

locutory or ‘piecemeal’ appeals and courts have

consistently given effect to that policy.” Abney v.

United States, 431 U.S. 651, 656 (1977). Finality of

judgment is generally required “as a predicate for

federal appellate jurisdiction.” Jd. “Adherence to this

rule of finality has been particularly stringent in

criminal prosecutions because ‘the delays and

disruptions attendant upon intermediate appeal,’

which the rule is designed to avoid, ‘are especially

inimical to the effective and fair administration of the

criminal law.” Jd. at 657 (quoting DiBella v. United

States, 369 U.S. 121, 126 (1962)); see also United

States v. MacDonald, 435 U.S. 850, 853-54 (1978)

“(t]he rule of finality has particular force in criminal

prosecutions because encouragement of delay is fatal

to the vindication of the criminal law’ [internal

quotation marks omitted]). “The importance of the

final judgment rule has led the Court to permit

departures from the rule only when observance of it

would practically defeat the right to any review at all.”

Flanagan v. United States, 465 U.S. 259, 265 (1984)

(internal quotation marks omitted). The right of

appeal in criminal cases “is purely a creature of

statute”; Abney, 431 U.S. at 656; and, consistent with

that principle, a party must satisfy the terms of the

applicable statute—in this case, 28 U.S.C. § 1258—in

order to exercise that statutory right in the present

case.

This Court previously has addressed pretrial

orders regarding a motion to dismiss an indictment on

the ground of double jeopardy, but only insofar as (1)

the defendant moved to dismiss an entire one-count

ll

indictment, (2) the pretrial orders denied that motion

to dismiss, and (3) the defendant sought to appeal

immediately rather than at the close of trial. In

Abney, this Court held that otherwise interlocutory

pretrial orders in such cases fall within the “collateral

order” exception to the final-judgment rule articulated

in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

(1949), and thus constitute an immediately appealable

final judgment.5 Abney, 431 U.S. at 659.

The Abney Court analyzed a pretrial denial of a

motion to dismiss an indictment on double jeopardy

grounds in accordance with these three factors and

ultimately concluded that the denial of a motion to

dismiss an indictment based on double jeopardy

grounds is an immediately appealable final judgment.

Id. It emphasized that the protection against double

jeopardy, if denied at first, “would be significantly

undermined if appellate review were postponed

until after conviction and sentence.” /d. at 660. The

Court explained that the right that the Double

Jeopardy Clause protects is the right not to be “twice

put to trial for the same offense,” and the protections

of the Clause

would be lost if the accused were forced to

“run the gauntlet” a second time before an

appeal could be taken; even if the accused is

5 The Court in Cohen recognized that an otherwise interlocutory

order qualifies as an effectively “final” one when it (1) fully and

finally decides (2) a separate question collateral to the merits of

the underlying proceeding, and (3) the decision involves an

important right and must be appealed immediately or else the

right will be “lost, probably irreparably” if appellate review is

deferred to the end of the case. 337 U.S. at 546-47.

12

acquitted, or, if convicted, has his conviction

ultimately reversed on double jeopardy

grounds, he has still been forced to endure a

trial that the Double Jeopardy Clause was

designed to prohibit.

Id. at 661-62. “Consequently, if a criminal defendant

is to avoid exposure to double jeopardy and thereby

enjoy the full protection of the Clause, his double

jeopardy challenge to the indictment must be reviewable

before that subsequent exposure occurs.” /d. at 662.

This Court has not subsequently addressed

whether the rule in Abney extends to an appeal by the

government from the granting of a motion to dismiss

a single count of a multi-count indictment. As a

practical matter, this may be because 18 U.S.C. § 3731

permits the United States to appeal from an order

“dismissing an indictment or information as to any

one or more counts.” But by its own terms, this statute

only applies to proceedings in federal district courts in

which the United States is a party; it cannot authorize

an appeal by a territorial government from a non-final

decision of a territorial supreme court. United States

v. Burroughs, 289 U.S. 159, 163-64 (1933) (held that

predecessor to 18 U.S.C. § 3731 did not permit appeal

from District of Columbia local court system to United

States Supreme Court); Guam v. Okada, 715 F.2d

1347 (9th Cir. 1982) (“We find nothing in the language

of section 3731 or its legislative history to indicate an

intent to authorize an appeal in a criminal case by a

territorial government.”).

Several federal Courts of Appeal, however, have

considered whether the reasoning from Adney should

extend to an appeal taken by the defendant from the

13

denial of a motion to dismiss a single count of a multi-

count indictment. Compare United States v. Witten,

965 F.2d 774, 776 (9th Cir. 1992) (“Abney does not

provide a basis for finding jurisdiction here. The

appellants moved to dismiss an alleged predicate act,

not an entire indictment, or even an entire count.

Even if the alleged predicate act were dismissed, the

appellants would still facetrial ”); United States v.

Tom, 787 F.2d 65, 68 (2d Cir. 1986) (held that Abney

does not apply to permit an interlocutory appeal from

District Court’s order refusing to dismiss a portion of

one count in a multi-count indictment because

defendant would be tried on the remainder of the

count anyway; dismissed for lack of appellate

jurisdiction); with, United States v. Ginyard, 511 F.3d

203, 208 (D.C. Cir. 2008) (applied Abney and found

appellate jurisdiction, holding that a defendant may

not be put to trial twice on a single count of an

indictment just as he may not be put to trial twice on

an entire indictment under Double Jeopardy Clause);

see also United States v. Marino, 200 F.3d 6, 11-12

(ist Cir. 1999) (found no appellate jurisdiction to

review defendant’s appeal from denial of motion in

limine to exclude evidence as to a certain count because

even if motion was granted a retrial on that count

would still have been necessary and postponement of

the appeal would not have “irretrievably deprive[d]”

defendant of any double jeopardy protection).

As these cases illustrate, “in the context of a

double jeopardy claim, an interlocutory appeal is

available under the collateral order doctrine only

where the asserted right would be ‘lost, probably

irreparably,’ if review had to await final judgment.”

Tom, 787 F.2d at 68 (quoting Abney, 431 U.S. at 658)

14

(internal quotation marks omitted). Where a motion

to dismiss a single count of a multi-count indictment

is denied in its entirety, and but for the opportunity to

appeal the denial immediately, the defendant will lose

his double jeopardy protections, such an immediate

appeal is permissible. Where, however, a motion to

dismiss a portion of a count in a multi-count

indictment is denied (or even granted) and the

defendant would have to face trial on the challenged

count anyway, the order is not immediately appealable

and must be deferred to the end of the case. What

follows is that a defendant is not entitled to take an

interlocutory appeal from a pretrial order concerning

a motion to dismiss a count on which trial will in any

event occur; in other words, he cannot immediately

appeal an order on a count when waiting until the end

of the case to appeal it will not deprive him of any

double jeopardy rights. The same holds true with even

greater force with respect to an interlocutory appeal

by the government,. since the United States

Constitution confers rights on criminal defendants,

and not the prosecution. United States v. Thoms, 684

F.3d 893, 902-03 (9th Cir. 2012); Rivera-Moreno v.

Gov't of the V.I, 61 V.I. 279, 321 (V.I. 2014).

Finally, in addition to Abney and the collateral

order doctrine from Coden, this Court has applied the

rule set forth in Cox Broad. Corp. v. Cohn, 420 U.S.

469 (1975), to limited circumstances in the criminal

context involving appeals taken from state court

judgments rendered before the conclusion of all

proceedings in state court under 28 U.S.C. § 1257

See, e.g., Florida v. Thomas, 532 U.S. 774, 777-81

(2001) (dismissing writ of certiorari for want of

jurisdiction after applying Cox). In Cox, the Court

15

construed § 1257, which authorizes the Court’s review

of final judgments rendered by the highest court of a

state, to treat those judgments as final in cases where

(1) there are further proceedings yet to occur but

where the federal issue is conclusive or the outcome of

further proceedings preordained; (2) the federal issue

will survive and require decision regardless of the

outcome of the future state-court proceedings; (3) the

federal claim has been finally decided and later review

of the federal issue cannot be had, whatever the

outcome of the case; or (4) the state court has

conclusively decided a federal issue but the party

seeking review might prevail on the merits on

nonfederal grounds. Cox, 420 U.S. at 479-83.

First, arguably, Cox does not apply, as a

judgment rendered in the Puerto Rico Supreme Court

is not a state court judgment under § 1257.6 See, e.z.,

Fornaris v. Ridge Tool Co., 400 U.S. 41, 42 n.1 (1970).

Moreover, even if Cox does apply, only the first three

categories are relevant to the present matter, and the

Petitioner’s interlocutory appeal does not fall into any

of them. Because the Puerto Rico Supreme Court left

untouched the judgment of the Puerto Rico Court of

Appeals reinstating the charges arising under

Sections 458c, 458f and 4581 of the Puerto Rico

Weapons Act, its conclusion that the counts brought

under Section 458 are barred by double jeopardy does

not conclusively end the litigation or render the

6 Section 1257(b) expressly includes the District of Columbia

Court of Appeals as within the term “highest court of a State,”

but omits mention of the Puerto Rico Supreme Court. This makes

sense, as jurisdiction over appeals from the Puerto Rico Supreme

Court is governed by 28 U.S.C. § 1258.

16

outcome preordained.’? Jefferson v. City of Tarrant,

522 U.S. 75, 83 (1997) (‘Far from terminating the

litigation, the court answered a single certified

question that affected only two of the four counts in

Petitioners’ complaint.”). Nor will the federal issue

necessarily survive regardless of the outcome of the

case; if the Respondents are ultimately acquitted on

the remaining charges—Sections 458c (illegally carrying

a firearm), 458f (illegally carrying a rifle), and 458i

(transferring a mutilated weapon) charges—then

collateral estoppel would likely prevent a prosecution

under Section 458 (illegally selling and transferring a

firearm), since the jury would have necessarily found

that the Respondents never possessed a firearm. Ashe

v. Swenson, 397 U.S. 436, 443 (1970). And this is not

a case in which later review of the double jeopardy

issue can never be had regardless of the outcome of

the case; if the Respondents are ultimately convicted on

the remaining charges, Puerto Rico could still appeal

the dismissal of the Section 458 counts, since the

dismissal was “on a basis unrelated to factual guilt of,

7 Moreover, as this Court implied in Jefferson, the Puerto Rico

Supreme Court may, as part of future appellate proceedings in

this case, choose to overturn or reexamine its double jeopardy

decision. 522 U.S. at 83. In fact, the decision in this case itself

overturned a prior precedent of that court. And as the

respondents noted in their opposition to certiorari, the United

States Court of Appeals for the First Circuit is currently

considering similar issues in other cases, the disposition of which

may cause the Puerto Rico Supreme Court to reconsider its own

decision.

17

innocence.”8 United States v. Scott, 437 U.S. 82, 99

(1978).

In sum, the Petitioner’s interlocutory appeal fails

to fit into either the collateral order exception to the

fina] judgment rule articulated in Cohen and applied

in Abney or the factors listed in Cox for state court

judgments under § 1257 It is premature and therefore

should be dismissed for lack of jurisdiction.

Il. THE COMMONWEALTH OF PUERTO RICO AND THE

FEDERAL GOVERNMENT ARE NoT SEPARATE

SOVEREIGNS

The Petitioner offers, as the essence of this case,

the question of whether Puerto Rico law emanates

from a different source of authority than federal law.

(Pet.Br.1). The answer, the Petitioner resoundingly

states, is yes:

Puerto Rico law emanates from authority

delegated by the people of Puerto Rico, who

engaged in an exercise of popular sovereignty

in 1952 by adopting their own Constitution

establishing their own government to enact

8 The fact that there is a situation in which Puerto Rico could

appeal the decision after entry of final judgment distinguishes

this case from Kansas v. Marsh, 548 U.S. 163 (2006), where the

nature of the state supreme court’s decision—holding the state

death penalty statute unconstitutional while simultaneously

requiring a new trial on the underlying offense—truly prevented

the prosecution from obtaining review at a future date under any

circumstances, given the prohibition on the prosecution

appealing a jury's acquittal, see Ball v. United States, 163 U.S.

662, 671 (1896), or the prosecution seeking capital punishment

after a lesser sentence has already been imposed, see Arizona v.

Rumsey, 467 U.S. 203, 212 (1984).

18

their own laws. The Commonwealth of Puerto

Rico is a creature of the people of Puerto Rico,

not of Congress. That point resolves this case.

(Pet.Br.1-2, emphasis in original). For support, the

Petitioner points to the people of Puerto Rico’s adoption

of their own Constitution, which it proclaims “is a

democratic manifestation of the will of the people of

Puerto Rico.” (Pet.Br.2). Since Congress’s 1952 approval

and ratification of the Puerto Rico Constitution (after

conditioning that approval on certain minor changes),

the Petitioner characterizes Puerto Rico’s status as

something between a state and a territory—a sovereign

territory, so to say—whose laws emanate from the

people of Puerto Rico and not the federal government.

(Pet.Br.17-18).

In order to make this argument, the Petitioner

exalts its own constitution over the organic acts of

Congress that permit self-governance by the other

territories, including the Virgin Islands (and the

Virgin Islands Revised Organic Act of 1954). In so

doing, the Petitioner elevates form over substance.

The essential flaw in the Petitioner’s argument is that

the characteristics it derives from the Puerto Rico

Constitution upon which it relies to demonstrate

Puerto Rico’s dual sovereignty apply equally to the

United States Virgin Islands and the Virgin Islands

Revised Organic Act of 1954, which the Petitioner

classifies as a single-sovereign territory.9 (Pet.Br.28)

9 The Petitioner cites to 48 U.S.C. § 1704 for the proposition that

a federal statute provides that the Virgin Islands, Guam, and

American Samoa and the federal government are a single

sovereign for federal double jeopardy purposes. (Pet.Br.39 n.4).

This proposition is both incomplete and inaccurate. Section 1704

19

(proposition that Puerto Rico law emanates from

different source than federal law “may not have been

true prior to the adoption of the Puerto Rico

Constitution in 1952, insofar as the Puerto Rico

legislature at that time exercised authority delegated

by Congress through organic acts”); (Pet.Br.38 n.4)

(District of Columbia, Guam, the Virgin Islands, and

American Samoa all self-governed pursuant to organic

acts of Congress; lower courts have held that these

territories and the federal government are a single

sovereign for federal double jeopardy purposes).

Specifically, the Petitioner notes that in light

of the Puerto Rico Constitution, the

Commonwealth now elects its Governor and

legislature; appoints its judges, all cabinet

officials, and lesser officials in -——the

executive branch; sets its own educational

states that the Virgin Islands, Guam, and American Samoa

“shall have concurrent civil and ame nase goa with -

United States with pe} C od.

controlled by the United States i in the Virgin Islands, Guam, ond

American Samoa respectively.” § 1704(a) (emphasis added).

Section 1704 is limited to dual prosecutions related to United

States property. See, e.g., Water Isle Hotel & Beach Club, Ltd. v.

Kon Tiki St. Thomas, Inc., 795 F.2d 325, 328 (3d Cir. 1986) (“The

legislative grant to the Virgin Islands was broadened further in

1982 when the United States conveyed certain submerged and

filled lands to the Virgin Islands government. 48 U.S.C. §§ 1701-

1708.”). Moreover, other statutes contain similar language as

§ 1704 with respect to the fifty states, indicating that Congress,

in promulgating such laws, was not intending to establish a

policy on double jeopardy. See, e.g. 18 U.S.C. §2117 (“A

judgment of conviction or acquittal on the merits under the laws

of any State shall be a bar to any prosecution. ”); 18 U.S.C.

§ 660 (same); 15 U.S.C. § 80a-36 (same); 49 U.S.C. § 80501(b).

20

policies; determines its own budget; and

amends its own civil and criminal code.

(Pet.Br.37), quoting Calero-Toledo v. Pearson Yacht

Leasing Co., 416 U.S. 663, 671 (1974); see also

Examining Bd. of Engineers, Architects & Surveyors

v. Flores de Otero, 426 U.S. 572, 594 (1976) (same).

The Petitioner continues: “Since 1952, the Federal

Government has told the people of Puerto Rico and the

world that the people of Puerto Rico democratically

adopted and approved their own Constitution. That

Constitution, which Congress reviewed and approved,

establishes a government of the people, by the people,

and for the people of Puerto Rico.” (Pet.Br.37-38)

(citation omitted). Puerto Rico’s Constitution,

therefore, in the eyes of the Petitioner, distinguishes

it from the other territories and is key in making it a

uniquely separate sovereign.

Like Puerto Rico, however, the Virgin Islands has

achieved all of these milestones, and has done so with

the express approval of the Virgin Islands people—

even without a constitution. Just last Term, this Court

recognized direct lawmaking, in the form of initiative

and referendum, as a means for the people to exercise

popular sovereignty. Arizona State Legislature v.

Arizona Independent Redistricting Comm'n, _U.S._,

135 S.Ct. 2652, 2659-60, 2671 (2015). These forms of

direct democracy have a long history in the Virgin

Islands. While Puerto Rico opted to delegate drafting

of a formal constitution to an elected constitutional

convention, the people of the Virgin Islands have

instead used the initiative and referendum procedure

to alter the relationship between the Virgin Islands

and the United States.

21

On August 17, 1916, the Virgin Islands—then

known as the Danish West Indies—held a referendum

on the sale of the islands to the United States, which

passed with a vote of 4,727 in favor and only seven

against. N.Y. TIMES, Aug. 18, 1916, p. 1, col. 5. For

approximately 20 years after the transfer from

Denmark to the United States, the Virgin Islands

operated under a temporary government consisting of

two popularly-elected local legislatures—one for St.

Croix, the other for St. Thomas and St. John—and a

Governor appointed by the President of the United

States.

When Congress considered establishing a

permanent government for the Virgin Islands, U.S.

Senator Millard E. Tydings, the Chair of the Senate

Committee on Territories and Insular Possessions,

rejected a draft organic act prepared by the

Presidentially-appointed governor, and _ instead

demanded that another bill be drafted “which would

meet with approval of the local people.” U.S. House of

Representatives, Committee on Insular Affairs,

Hearings on H.R. 11751 to Provide a Civil

Government for the Virgin Islands of the United

States, 74th Cong., 2d sess. (1936), p.1. In response,

the two democratically-elected Virgin Islands

legislatures drafted a bill, which, with some minor

changes, eventually became the Virgin Islands

Organic Act of 1936. William W. Boyer, America’s

Virgin Islands: A History of Human Rights and

Wrongs 185-86 (2d ed. 2010).

In 1953, the Virgin Islands held a referendum on

several questions, including whether to combine the

two legislatures into a single legislature and to elect a

22

governor and a resident commissioner to Congress,

which provided an impetus for Congress to replace the

Organic Act of 1936 with the Revised Organic Act of

1954. BOYER 234. Although only the combined

legislature was included in the original version of the

Revised Organic Act, Congress subsequently amended

the Revised Organic Act to provide for a

democratically-elected Governor and Lieutenant

Governor, see Pub. L. 90-496, 73 Stat. 569 (1968), and

Delegate to Congress, see Pub. L. 92-270, 86 Stat. 118

(1972). Those amendments also abolished the

Presidential veto of territorial legislation. See Pub. L.

90-496, 82 Stat. 837 (1968). Congress also included

provisions in the Revised Organic Act allowing the

Virgin Islands Legislature the discretion—which it

subsequently exercised—to expand the jurisdiction of

the local court system, including establishing the

insular appellate court that would become the

Supreme Court of the Virgin Islands. Pub. L. 98-454,

98 Stat. 1732 (1984).

Like Puerto Rico at the time of the Flores de

Otero decision, the Virgin Islands exercises “the

degree of autonomy and independence normally

associated with States of the Union.” The Virgin Islands

elects its own Governor, Lieutenant Governor, Delegate

to Congress, and members of the Legislature. The

Governor appoints all lesser executive branch

officials. Justices of the Virgin Islands Supreme Court

and judges of the Virgin Islands Superior Court are

nominated by the Governor with the advice and

consent of the Legislature. The Virgin Islands sets its

own budget, and amends its own civil and criminal

codes pursuant to the same democratic process

employed in the 50 States. While these reforms did not

23

occur through a constitutional convention, the history

of the Virgin Islands makes it clear that these reforms

were initiated either directly through the people or

their democratically-elected representatives. And

although Congress had to ultimately acquiesce, the

same is true of the Puerto Rico Constitution, which

required congressional approval before becoming

operative. Thus, the Petitioner’s acknowledgement of

federal legislative oversight of the Virgin Islands is

interesting, where Congress made the same

delegations and has the same oversight in Puerto

Rico, but through a constitution rather than a body of

statutes. 10

The significance of these similarities is twofold:

first, as noted briefly above, the characteristics upon

which the Petitioner relies to set Puerto Rico apart

from the other territories in support of separate

sovereignty do not accomplish that purpose: if anything,

they accomplish the opposite. Second, they reflect that

this Court’s decision in the present matter will have

critical import not only to Puerto Rico but also to the

other United States territories—including, at the very

10 The Petitioner maintains that Congress may not unilaterally

repeal or alter the Puerto Rico Constitution or its “compact” with

Puerto Rico. However, as the Petitioner acknowledges, “[iln 1976,

the Northern Mariana Islands and the United States,” like

Puerto Rico, “entered into a Covenant to establish a

Commonwealth and the people of the Northern Mariana

Islands thereafter adopted their own Constitution.” (Pet.Br.38

n.4). What the Petitioner fails to note is that Congress has

unilaterally amended its Covenant with the Northern Mariana

Islands, most recently when it passed Public Law 110-229, 122

Stat. 754 (2008), which eliminated that territory's ability to

administer its own immigration system.

24

least, the Virgin Islands. If this Court decides that

Puerto Rico is a separate sovereign for the purposes of

the Double Jeopardy Clause, that decision arguably

could be extended to the Virgin Islands and its

citizens.

The VIBA’s concerns with the extension of this

decision to the Virgin Islands mirror its issue with the

position that the Petitioner has taken in this appeal:

it saddles the territories with the burdens that go

along with being a state but awards them none of the

benefits. Tiktis is where Puerto Rico and the Virgin

Islands share additional similarities, though

somewhat less glamorous. Neither territory has

representation in the United States Senate and each

has only one non-voting delegate in the House of

Representatives. Neither territory is entitled to

electoral votes for President.11 See U.S. CONST. ART.

II, § 1, cl. 2 (providing for appointment of electors by

“Each State”). Some federal Courts of Appeal have

held that birth in a United States territory does not

constitute birth “in the United States” under the

Citizenship Clause of the United States Constitution

and thus does not constitutionally give rise to United

11 This is in contrast to Indian tribes, whose members have the

right to vote in presidential, congressional, state and local, and

tribal elections. See 8 U.S.C. § 1401 (granting American Indians

citizenship) and U.S. CONST. AMEND. XV (providing that citizens

of United States shall have right to vote). The Petitioner's

analogy of Puerto Rico to Indian tribes falls short, as American

Indians have many of the rights that Puerto Rico and Virgin

Islands citizens do not, including the very basic right to vote for

President.

25

States citizenship.12 See, e.g. Nolos v. Holder, 611

F.3d 279, 283-84 (5th Cir. 2010) “([iJt is —_ incorrect

to extend citizenship to persons living in United

States territories simply because the territories are

‘subject to the jurisdiction’ or ‘within the dominion’ of

the United States, because those persons are not born

‘in the United States’ within the meaning of the

Fourteenth Amendment”); Lacap v. INS, 138 F.3d

518, 518-19 (3d Cir. 1998) (same); Val/monte v. INS,

136 F.3d 914, 915-21 (2d Cir. 1998) (same); Rabang v.

INS, 35 F.3d 1449, 1450-54 (9th Cir. 1994) (same); see

also Tuaua, 788 F.3d at 307-08 & n.7 (“This Court, like

the lower court, is [also] mindful of the years of past

practice in which territorial citizenship has been

treated as a statutory, and not a constitutional

right.”). This Court has even observed, without

deciding, that individuals born in the Philippines at

the time that the Philippines were a territory of the

United States were not United States citizens. See

Rabang v. Boyd, 353 U.S. 427, 430-31 (1957) (“The

inhabitants of the Islands acquired by the United

States during the late war with Spain, not being

citizens of the United States, do not possess right of

12 Of course, Congress can extend, and has extended, the

statutory right to citizenship by birth to various United States

territories. See 8 U.S.C. § 1402 (Puerto Rico); 8 U.S.C. § 1406 (the

Virgin Islands); 8 U.S.C. § 1407 (Guam). What one Congress has

given, however, can be taken away by a subsequent Congress.

See Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932) (“[T]he will

of a particular Congress does not impose itself upon those to

follow in succeeding years.”); see also Abdul-Akbar v. McKelvie,

239 F.3d 307, 316 (2d Cir. 2001) (“What Congress gives it may

also take away.”).

26

free entry into the United States.” (citation and

quotation marks omitted)).

Finally, the Tenth Amendment, which provides

that “[t]he powers not delegated to the United States

by the Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the

people,” does not apply to either Puerto Rico or the

Virgin Islands. Franklin California Tax-Free Trust v.

Puerto Rico, 805 F.3d 322, 344-45 (1st Cir. 2015), cert.

granted, No. 15-233 (U.S. Dec. 4, 2015) (“[t]he limits

of the Tenth Amendment do not apply to Puerto Rico,

which is ‘constitutionally a territory,’ because Puerto

Rico’s powers are not ‘[those] reserved to the States’

but those specifically granted to it by Congress under

its constitution”) (emphasis in original; citation

omitted); 48 U.S.C. § 1561 (“The following provisions

of and amendments to the Constitution of the United

States are hereby extended to the Virgin Islands to the

extent that they have not been previously extended to

that territory and shall have the same force and effect

there as in the United States or in any State of the

United States the first to ninth amendments

inclusive. ”).

The VIBA also takes issue with the Petitioner’s

position because it strips the territories of one of the

benefits of their current status as a territory: single

sovereignty with the federal government for the

purposes of double jeopardy. When the Petitioner

advocates for awarding its citizens with the protect-

ions of the Double Jeopardy Clause, it ignores that

double jeopardy protections already apply. What dual

sovereignty in accordance with the Petitioner’s claim

will actually accomplish is the creation of a second

27

avenue for the prosecution of the territory’s citizens

for an offense where only one such avenue previously

existed. See, e.g., Commonwealth v. Mills, 286 A.2d

638, 641 (Pa. 1971) (“We are talking about the two

governments protecting their interests, when we

really should be talking about the individual, since by

focusing on the individual we see that it matters little

where he is confined—in a federal or state prison—the

fact is that his liberty is taken away twice for the same

offense.”). Thus, while Puerto Rico and Virgin Island

citizens cannot vote for President, have a voting voice

in Congress, or have a constitutional right to

citizenship by birth, they will now be subject to being

put to trial twice for an offense stemming from the

same conduct, once by the federal government and

once by the territorial government. 13

In sum, this Court’s decision on the question

presented will have a long-standing effect that goes

beyond the borders of Puerto Rico and the will of the

Puerto Rico people. Because Puerto Rico, like the Virgin

Islands, is still a territory, it is a single sovereign with

the federal government. The judgment of the Puerto

13 Notably, the Petitioner ignores that there are methods—well

short of treating it as a single sovereign—for it to vindicate its

authority to prosecute violations of Puerto Rico law even when

the United States has initiated a similar prosecution. For

example, the Virgin Islands recognizes the concept of

supplemental criminal jurisdiction when a territorial offense

relates to a federal crime, in which the United States Attorney

for the District of the Virgin Islands and the Virgin Islands

Attorney General jointly prosecute the territorial and federal

charges in the District Court of the Virgin Islands as part of a

single proceeding. United States v. Gillette, 738 F.3d 63, 70-73

(3d Cir. 2013).

28

Rico Supreme Court saying as much should be

affirmed.

aie

CONCLUSION

Amicus curiae Virgin Islands Bar Association

respectfully urges that the judgment of the Supreme

Court of Puerto Rico be affirmed.

DECEMBER 22, 2015

Respectfully submitted,

DANA M. HRELIC

COUNSEL OF RECORD

WESLEY W. HORTON

BRENDON P LEVESQUE

HORTON, SHIELDS & KNOX, P.C.

90 GILLETT STREET

HARTFORD, CT 06105

(860) 522-8338

DHRELIC@HORTONSHIELDSKNOX.COM

J. RUSSELL B. PATE

PRESIDENT

VIRGIN ISLANDS BAR

ASSOCIATION

2155 KING CROSS STREET, SUITE 2

CHRISTIANSTED, USVI 00820

(340) 778-7497

EDWARD L. BARRY

JOSEPH A. DIRUZzo, II

Co-CHAIRS |

VIBA LITIGATION COMMITTEE

COUNSEL FOR AMICUS CURIAE