United States v. Robert Defreitas
29 F.4th 135
3rd Cir.2022Background
- Robert Defreitas, an enforcement officer for the U.S. Virgin Islands Department of Licensing and Consumer Affairs, visited a nail salon and met Lissette Herrera, who admitted she lacked a manicurist license and entered the territory illegally.
- Defreitas solicited sexual favors in exchange for not reporting Herrera; Herrera recorded a follow-up phone call and reported the incident to police.
- A jury convicted Defreitas of soliciting a bribe under V.I. Code Ann. tit. 14, § 403 and of violating the Travel Act, 18 U.S.C. § 1952(a)(3); he was acquitted of blackmail under 18 U.S.C. § 873.
- At trial the district court instructed the jury on § 403 without defining the critical term “official act”; Defreitas moved for acquittal arguing (inter alia) no official act occurred, sexual favors are not an emolument, and the statute is vague.
- On appeal the Third Circuit (1) declined to certify the controlling state-law question to the Virgin Islands Supreme Court, explaining factors courts should weigh when considering certification, and (2) held the evidence insufficient to prove Defreitas committed an “official act” under § 403, vacating the § 403 and Travel Act convictions and directing entry of acquittal.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Defreitas) | Held |
|---|---|---|---|
| Whether refusing to report Herrera’s immigration status constituted an "official act" under 14 V.I.C. § 403 | Agency statute §272(a)(8) and customary practice authorize referral to federal agencies; withholding a report can be an official act | No statutory, regulatory, or authorized duty to report immigration violations; refusing to act is not an official act | Reversed: insufficient evidence that withholding a report was an "official act"; no statutory/regulatory duty shown and custom alone was inadequate |
| Whether federal precedent should inform the meaning of "official act" in § 403 | Argued limited applicability of some federal cases (citing Ferriero) but relied on common-law roots | Urged courts would follow Supreme Court guidance (e.g., McDonnell) | Court applied federal precedents (McDonnell, Repak) as persuasive authority given common-law origins of the term |
| Whether the Third Circuit should certify controlling state-law questions to the Virgin Islands Supreme Court | Opposed certification; argued federal court can and should decide here | Requested certification of multiple questions about § 403 and vagueness | Court declined to certify: articulated factors (uncertainty, importance, judicial economy, timing) and found certification unwarranted here |
| Whether the Travel Act conviction (18 U.S.C. § 1952(a)(3)) stands when § 403 bribery predicate fails | Travel Act conviction depends on the § 403 bribery predicate charged in the indictment | Argued bribery predicate lacking, so Travel Act conviction must fall | Vacated Travel Act conviction as insufficient because the underlying § 403 element (official act) was not proved |
Key Cases Cited
- McDonnell v. United States, 136 S. Ct. 2355 (2016) (defines "official act" as a decision or action on a specific, pending or potentially pending matter within official duties)
- United States v. Repak, 852 F.3d 230 (3d Cir. 2017) (applies McDonnell and looks to an agency's assigned duties to determine what constitutes an official act)
- United States v. Birdsall, 233 U.S. 223 (1914) (custom or settled departmental practice may inform official duties when not fully defined by statute or regulation)
- United States v. Ferriero, 866 F.3d 107 (3d Cir. 2017) (declines to import federal bribery definitions into a differently worded state statute)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error review framework for unpreserved claims)
- United States v. Fountain, 792 F.3d 310 (3d Cir. 2015) (discusses reasonable-payor belief in Hobbs Act contexts; distinguished here from § 403 analysis)