*1 RICHARDS, IN RE Appellant LEROY No. 99-3234 United States Court Of For The Third Circuit Appeals 31,
May *2 U.S.V.I., Thomas, Counsel, St. A. General for Kendall, Esq., Leon Appellant Thomas, Associates, St. A. Weiss& U.S.V.I.,for A.J. Weiss, Esq., Jeffrey Appellee General, R. Attorney Iver A. Tepper, Esq., Stridiron, Esq., Pamela Attorney General, Assistant Solicitor Cormier, Esq., P. Maureen Islands,Depart- Virgin General, the Attorney the Generalof Officeof U.S.V.I., Appellee ment Justice, GARTH, Judges, BECKER, Circuit and Judge, SCIRICA Chief GARTH, Judge,dissenting Circuit OPINION OF THE COURT brought Islands had criminal Virgin the Government of the After Leroy Virgin against the charges in the Territorial Court of misconduct, attempted General Attorney the Richards for sexual and power prosequi law of nolle the traditional common exercise Court, However, suspicious the Territorial moved to dismiss. hearing motives, to ex- resisted and scheduled Government's hearing could be underlying further the facts. Before plore held, original an affidavit from the but after the submission of matter, Richards terminate the complainant indicating her desire to the Appellate Division of a writ of mandamus from sought Islands, the Territo- seeking compel Virgin District Court of the The District charges against Richards. rial Court to dismiss writ, rule under concluding the local court granted pursued hearing violated which the Territorial Court ("ROA"), it seq., because 48 U.S.C. 1541et Organic § Revised Act under authority prosecutor's substantive upon trammeled did accord local that the ROA law. The court reasoned local laws, render- such substantive authority promulgate courts null Court's conduct justify rule used to the Territorial ing the local appeal and void. This followed. important questions judicial appeal presents
The several First, have the District Court Islands. does governance We conclude the Territorial Court? jurisdiction mandamus over acting under legislature, that it does. The local ROA, appellate jurisdiction it has extended granted other than those resolved District Court over criminal matters to issue plea. jurisprudence jurisdiction is clear guilty exists, potential jurisdiction of mandamus lies cases where writs Moreover, statute, 4 V.I.C. § here. both local see as does Act, give All 48 U.S.C. the District Court the Writs that the authority to issue writs of mandamus. We further conclude relationship between the District Court ROA's command mirror the one between state and federal courts is local courts bar exercise of mandamus not a to the District Court's over the appellate jurisdiction because the District Court retains Islands. Territorial Court of *3 hurdle, Having jurisdictional cleared the Richards next faces the that the Court exceeded its challenge establishing of Territorial in the matter of Richards's scheduling hearing on dismissing requested by than it as prosecution promptly rather We that Richards has not met this burden. The parties. conclude procedural justify Territorial Court offers two rules to its conduct. 128(b), pre- which justification, The first reliance on Local Rule finding judicial cludes dismissal of criminal cases absent faith, interest, good is in the interests dismissal the local court to justice, explicitly fads because the rule allows in deciding that judgment prosecutors substitute its of local prosecuted. judgment which cases should be Because this power under the old common law of nolle prosecutors reserved to 128(b) is a rule of law rather than a prosequi, Rule substantive promulgate procedural rule that the local court is authorized legislature may enact under the ROA. While not, rule, may making court a violation such the local separation powers among govern- the three branches of by Congress. ment of the Islands as delineated apply the Federal Rules The local rules of Territorial contrary, and in which there are no valid rules to the circumstances may possibly justified by be hence the Territorial Court's actions Fed. R. Crim. P. which that shall 48(a), provides prosecutions only be dismissed leave of the court. In of the traditional light law that common of nolle allowed prosecutors power prosequi total discretion which cases to determining pursue, argu- ment that this rule not without also has substantive component believe, however, that force. We does not confer though dismiss, unfettered discretion courts to resist motions to it upon does have a that allows into the procedural component inquiry circumstances a dismissal in a manner that does not surrounding intrude domain to be viewed as sufficiently upon prosecutorial rule. substantive case, In did this Territorial Court the motion to deny dismiss but scheduled a In of a court's merely hearing. light ability to use Rule to let "sunshine" into areas where local author- ities we are not may suspected inappropriate dealings, the Territorial Court behaved in a manner persuaded of mandamus. we required extraordinary remedy Accordingly, will vacate the order of the District Court with directions . so,
remand the matter to the Territorial Court. We do not do however, carte blanche court over give prosecutorial decisions. The Territorial Court conduct a on the hearing circumstances the Government's dismissal surrounding requested it before surrenders but lacks the jurisdiction, compel the Government to take further Richards. steps prosecute
In October Richards was information charged by of second under V.I.C. 1702. In felony degree rape April *4 the Government amended the information to include the misde- unlawful meanor of sexual contact under V.I.C. 1709. On April 29, 1997, the entered into to parties plea pursuant agreement which Richards would to the misdemeanor return for plead the dismissal of The was to felony charges. agreement presented Court, but, Ive Swan of the Territorial based on the serious- Judge and ness of the conduct he set the case initially alleged, rejected 2. for selection on jury June 21, the a new
On Government filed out May complaint, arising incident, of the that same contained the misdemeanor only charge. attempted to enter complaint, Richards arraignment At on the new Judge Territorial Court presiding judge, The plea guilty. Hollar, before parallel pending the case became aware of Brenda judge be perceived with what she Displeased Judge Swan. day, On the same Judge the matter to Swan. shopping, she referred Swan dismiss requesting Judge the Government filed motion ability to the Government lacked the charges because original the weeks a reasonable doubt. Several beyond all the elements prove (misdemeanor later, to dismiss the newer the Government moved only) charge as well. 12, hearing prosecutor at which the Judge
On Swan held June justice." in the "interests of requested charges dropped examining purported first Swan refused to do so without Judge that if the victim though and he indicated prosecutors, victim proceed did want the case and was made clear that she case, he would end plans drop aware the Government's with the expressed the matter. He also concern seriousness be the Govern- charged perceived and about what he crime accept plea refusal to the earlier attempt ment's to circumvent his 17. hearing July scheduled a On agreement. Judge Swan June 18, to dismiss joint and Richards filed motion the Government that the case lacked prosecutor's conclusion reiterated by supporting affidavits from accompanied merit. The motion was they did and her mother that made clear purported victim victim purported and that the prosecuted not wish the case to be testify against would not Richards. July hearing and to July stay Richards moved to
On facts, alleged, as original He also claimed that dismiss the case. response, filed had determined to be false. Government's been urged with Richards's motion and court July on concurred face the victim and her mother to require purported to not appear in court. having burden of 15, 1997, promulgated a new local the Territorial Court July
On (b) include new subsections that amended Local Rule 128 to (c). Territorial Court to empowered These amendments determined that the unless the local court refuse to dismiss cases interest, faith, "'in good dismissal is petition Richards filed a July Also on justice." interest of *5 the Islands for a writ of mandamus and for District Court of hearing. granted stay the The District Court the the stay July day. next 1998, Appellate Division of the District Court
On March later, granted Eleven months the court the writ argument. heard against the counts Richards dismissed. It also declared ordered 128(b) void, holding Court Rule to be null and new Territorial had rulemaking authority that the Territorial Court exceeded its 128(b). that promulgated when it The Court concluded executive branch Islands has exclusive control of prosecutorial by transferring function and that discretion over the court, prosecutions to the local termination of was ROA, which substantive rule was disallowed allows promulgate only procedural local courts to rules. The District rejected argument Court also the alternative the refusal to justified by dismiss could be Federal Rule of Criminal Procedure 48(a), applied under Territorial Court Rule which invokes procedure federal rules of the absence of local rules to contrary. applica- The court concluded the Territorial Court's similarly tion of Rule have been in excess of its would rulemaking power. Having Judge determined that Swan's conduct authority, ruled that overstepped his the District Court Richards extraordinary had met the conditions for receiving other writ. remedy appeal of mandamus issued the This followed. jurisdiction Our is based on 28 U.S.C. 1291. We discuss jurisdiction petition District Court's to issue the mandamus below. jurisdictional Our review of the matters raised this case is 999, 1002 v. plenary. OperatingCorp., See Anthuis ColtIndus. 971F.2d (3d 1992). discretionary Cir. We review the elements of the District discretion; a writ grant Court's of mandamus for abuse of our non-discretionary grant plenary. review over the elements of the 1996). Stehney Perry, See 101 F.3d II. Determining Appellate whether the Division of the District writ in the first possessed jurisdiction to issue the requires analysis. instance three levels of We must first consider requisite jurisdiction whether the District Court has the over the *6 so, If power. mandamus the exercise of Court to sustain Territorial authority to statutory whether it the possesses we need to decide the we determine whether Finally, writs of mandamus. must issue dictate comports with the ROA's of a writ of mandamus issuance and District Court the Territorial that the relations between the and courts. reflect those between federal state Court issue "all Congress the have Courts established respective aid appropriate jurisdic- of their necessary writs U.S.C. agreeable principles and to the and of law." 28 usages tions the Court The us is whether District question 1651. first before § a writ of in aid which have issued any jurisdiction has could re- Untangling the Court. the issue upon mandamus Territorial ROA, territory's governs that we examine the which quires et have elucidated the seq. structure. See48 U.S.C. 1541 We § court elsewhere, Family, see v. 28 V.I. architecture of the ROA Brown (3d 1993),and need that discussion F.2d 1027 Cir. not describe summary. for a brief save appellate ROA over local courts to the jurisdiction
The extends of the District Court to the extent allowed Appellate Division may not proviso legislature law to the (subject local matters). See48 U.S.C. § District Court review of federal preclude 1613a(a). composed generally two Appellate Division designa- sitting by plus judge of the District Court third judges tion, Court. U.S.C. usually § comes the Territorial See 48 who right 1613a, establish legislature has Though 1614. local court, so. In it has thus far not elected to do appellate a territorial ap- matters, has extended legislature criminal "cases in which Court in jurisdiction to District pellate plea convicted, guilty." other than on defendant been has 33. § V.I.C. through Court, Swan Judge here appearing
The Territorial
Counsel,
contends
by the Court's General
represented
the writ.
subject
jurisdiction
matter
issue
District Court lacked
convicted, it main
because Richards was never
specifically,
More
and,
jurisdiction
potential
District
lacked
tains
to issue a writ
in aid of non-existent
consequently,
ability
We
courts have the
to issue
jurisdiction.
disagree. Appellate
power
writs of mandamus
orders when
prior
filing
appealable
Meanor,
conditions
the writ exist.
Helstoski v.
requiring
Cf.
500, 506-08,
U.S.
L.
61 Ed. 2d
Though courts usually sitting their have heard appellate mandamus capacity filed petitions by defendants See, over criminal Hilbert v. pretrial proceedings. e.g., 476 F.2d 362 (2d Cir. 1973) (en Dooling, banc) (employing mandamus to district court to dismiss compel indictment); 16 Miller, & Federal Practice and Procedure Wright, 3936.1 Cooper, (2d § ed. 1996) cases). established, Once (collecting jurisdiction to issue writs in aid of ability potential appellate jurisdiction "The to issue such writs in sweeps broadly. aid of our power potential our appellate for jurisdiction comprehends responsibility and efficient administration within orderly justice circuit." New Co., Yorkv. U.S. Metals 771 F.2d Cir. (3d Ref. 1985) 152, 161 v. U.S. Steel 508 F.2d (quoting Rodgers Corp., 1975)). authority should suggests
The such Territorial case, inability Court's to given in this the District curtailed the Territorial Court procedure rules of for prescribe practice inability regulate attorneys its the admission of are, we do not important As as these functions Islands bar. question at hand as District consider them as relevant to the Court, that of main to the Territorial respect Court's role rise the mandamus authority gives It is this hearing appeals. Court. referred to the Territorial power, not sum, appellate jurisdic had potential In the District Court gone could have to trial and been tion over the case as Richards points distinguish no cases that convicted. The Territorial Court potential appellate general the current facts from the power. mandamus is sufficient the exercise of jurisdiction B. Court, a non-Article question The is whether the District as next authority necessary court, a writ of statutory III had to issue established Revised light mandamus structure straightforward insofar as Organic quite Act. issue seems all writs intended extend legislature plainly ("The district court the District Court. See V.I.C. *8 rules, prescribe with law and may time to time consistent Court, for its by Supreme with rules the conduct of adopted and corpus, of habeas review and issue writs business and all mandatory and writs and make orders prohibition all other original in aid its or necessary appropriate of other orders and of usages principles to the appellate jurisdiction agreeable added). law.") Moreover, previously we have assumed (emphasis with the District Court of authority properly mandamus lies that Farrelly, Islands, Brow V.I. 994 F.2d see 28 Virgin 1993), it, (3d see has exercised Cir. and the District Court so 1036n.9 (V.I. Islands, V.I. 174, 931F. Supp. 397 Dawsey Virgin 34 v. Gov't the of (3d 1996). Div.), aff'd F.3d Cir. App. 384 however, contends, Islands Territorial Court power all to the authority to extend writs legislature lacked the fact that the ROA argument is based on District Court. This permits legislature prescribe only the District Court's appellate jurisdiction. See § 48 U.S.C. 1613a.The Territorial Court
maintains that limitation fatal to the of this exercise mandamus power appellate jurisdiction because of not inclusive mandamus power. For support proposition, points of this to Congress's making separate all provisions jurisdiction for writs and the appellate power authority when it established of the federal Compare of appeals. courts (delineating § § U.S.C. of appellate jurisdiction appeals), courts of with 28 U.S.C. 1651 § courts). all (delineating power writs of federal The thrust of the Territorial objection, Court's all writs power appellate in aid power synonymous is not with the appellate power requires and therefore an independent statutory basis, appeal. carries surface We note this that we regard have recognize reluctant been to the by extensions District Court powers legislature explicitly by permitted Rawlins, See Advisory ROA. MoravianSch. Bd. St. Thomasv. 33 V.I. 1995) 280, 70 F.3d (holding, light Federal Rule of required Civil Procedure that dismissal and authority absence ROA, power district court lacked transfer case improp- filed in erly District and not notwithstanding Territorial Court not, however, by authorization legislature). the territorial We need issue. grapple appellate this Whether power inherently power, outcome, includes mandamus is irrelevant has all Congress granted writs to all courts "established Congress." Act of The law no makes between distinction Article III courts and with jurisdiction those over territories that are pursuant established to Congress's authority under Article IV 3 of the Constitution.
We discern no reason to
doubt
the All Writs Act means
it says,
what
all
applies
therefore
courts established
they
Congress, even if
are
variety.
not of
Article III
This
In
conclusion is not mere
an analogous setting,
intuition.
Supreme Court
military
has declared that
have all
courts
writs
*9
power
by
because
are
they
congressional
courts created
statute. See
Bond,
631,
v.
Noyd
n.7, L.
395 U.S.
695
23 Ed. 2d
The relations between by United States and the courts or laws Constitution of certio- local law established appeals, by respect rari, causes, of habeas the issuance of writs removal of shall be and other matters proceedings gov- corpus, noted: 1 The Court of by established Act any the Writs its terms to 'courts applies by Since All Act that 'the revised section the Revisers of 1948 noted expressly and since
Congress/ all in aid of courts established issue writs power jurisdiction, extends to exercise powers implied of thus making explicit right Act Congress, do can be doubt as to any we not believe there creation of such courts/ of an writ habeas Military emergency Court to issue Appeals A that court. different ultimately . . . be reviewed cases which corpus would, course, Military Appeals arise in a case which question statutes. authorized to review under the governing Id.
erned the laws of the United States pertaining States, between the relations courts the United includ- States, the the United the ing Supreme the courts of several States in such matters and proceed- .... ings
48 U.S.C. 1613.
The Territorial Court federal because courts argues gener cannot mandamus issue orders to their state see ally counterparts, In Grand re 654 F.2d the 1981), Jury Proceedings, District Court could visit a mandamus order the Terri upon torial Court. This As in argument unpersuasive. explained supra II.A, Part to issue writs of mandamus to another jurisdiction court exists when a court has potential appellate jurisdiction. events, inWhile course of federal courts ordinary (except Court) lack over their state Supreme appellate jurisdiction thus writs mandamus counterparts, making generally inappro between District Court of the priate, relationship Virgin Islands and the Territorial Court of the Islands differs from that between a federal and state court one key respect-until court, creates a local the District legislature appellate Court has over the Territorial Court. Because appellate jurisdiction mandamus lies aid of potential appellate jurisdiction, District Court can a writ issue of mandamus local court the ROA's command that their relations be those notwithstanding of state and federal courts. doubt this is resolved
Any lingering
regard
by precedent
from the United States
Court. That federal court also has
Supreme
over the state courts. Consistent with this
appellate jurisdiction
Court has
of writs of
jurisdiction,
Supreme
permitted
filing
mandamus
Belter,
state courts. See
Atomic
General
Co.
against
493, 497,
U.S.
L. Ed. 2d
S.
98 Ct.
(1978)
leave
(granting
writ
vein,
to file
of mandamus
state
In a
court).
similar
against
Court has
its
to issue
Supreme
proclaimed
ability
injunctions
state court
in circumstances
lower
where
federal
stay
proceedings
courts cannot. SeeAtlantic Coast R.R. Co. v. Bhd. LocomotiveEng'rs,
281, 296, 26
234, 90
398 U.S.
L. Ed. 2d
S. Ct. 1739
("Unlike the
(1970)
Court,
Federal District
this Court does have potential appellate
proceed-
in state court
raised
questions
federal
jurisdiction over
correspond-
this Court
allows
jurisdiction
and that broader
ings,
in aid of its
'necessary
injunctions
issue
broader
ingly
circumstances,
also
the Court has
Under certain
jurisdiction.'").
that could
in matters
court injunctions
of state
stays
issued
CBS,
See,e.g.,
Inc.
appeal.
Court on
Supreme
reach the
eventually
*11
358,
1318,
HI. character, mandamus are not extraordinary writs of their Given amounting to exceptional circumstances lightly. "Only issued invocation of this 'usurpation justify will judicial power' (3d 82, Citibank, Fullam, F.2d 86 remedy." N.A. v. 580 extraordinary 90, 95, 19 1978) States, Ed. 2d L. United 389 U.S. (quoting Cir. Willv. (1967)). in aid of the writ 305, S. traditional use 88 Ct. 269 "The courts law and in the federal at common jurisdiction both appellate of its to a lawful exercise confine an inferior court been to has its compel it to exercise prescribed jurisdiction v. U.S. Dist. Court S. duty to do so." Mallard when is its 1814, 296, L. 2d Iowa, 308, Ct. Ed. 318 109 S. 104 490 U.S. Dist. of 26, Assn., (1989) 87 L. Evaporated v. 319 U.S. (quotingRoche Milk (1943)). Therefore, of law only clear errors S. 938 Ed. 63 Ct. an exercise unauthorized magnitude "at approach least there power when or a failure to use power, of judicial Lechner, F.2d 855 require the writ. Lusardi duty to do so" 1988). A. in usurped power that the Territorial The contention on is founded Richards dismissing charges against venerable common law nolle doctrine of Under this prosequi. doctrine, have decide whether prosecutors power proceed with the of a defendant. Absent a prosecution charged controlling statute or rule to the this resides in the. contrary, power solely hands until the of a prosecutor's impanelment swearing jury. See 21 Am. 2d This (1998). common law Jur. had been the federal courts. For
prosecutors long example, Cases, 454, 457, in Confiscation (7 U.S. L. Wall.) Ed. 196 (1868), Court declared: Supreme
Public until come before the court to prosecutions, they returnable, which are are within the exclusive direc- they tion of the and even after district are attorney, they court, entered so are far under his control he they enter a nolle at time before the prosequi any jury case, for the trial of the in cases where empaneled except it is otherwise some act of provided Congress.
We the discuss the of Fed. R. P. Crim. impact promulgation had has on this infra in Part III.C. principle The Territorial Court that substantive law does common argues the issuance of in dismissals the Islands. Our govern Virgin of the laws and us analysis Territory's precedents persuades otherwise. In the absence of rules the the superseding contrary, common law in the Islands. 1See V.I.C. 4. The prevails Virgin § common law's in the discretion hands of the vesting prosecutor has been in Islands previously recognized jurisprudence. Michael, See Tonkin v. 349 F. (D. V.I. 1972). Tonkin is also Supp. notable insofar it a as rescribes wonderful-and highly Law, from the Common which setwe apposite-anecdote English course, forth in the Of could margin.2 legislature 2 The Tonkin recounts: opinion
An incident related in 2 Lives Campbell's of the Chancellors 173 is of in interest this connection. After he had ordered of a of fanatics imprisonment group called for Lord by "Prophets" seditious Holt was visited language, one of their Lacy, friends, who informed a servant that he carried "from the Lord God." message Lacy was admitted and told Lord Holt: "I come to you from Lord prophet God, thee, who has sent me to and would have thee grant nolle prosequi John Atkins, servant, his whom thou cast has into Lord Holt "Thou prison." replied: art a false and a knave. If the prophet, lying Lord God had sent thee it would have power. prosequi eradicate the nolle rule to alter or enact law or so, however, common law prosecutors retain the local Until does Judge rejoins Territorial Court power. The prosequi nolle 128(b) and, alterna- by Local Rule justified conduct was Swan's 48(a), Territorial Court applies P. Fed. R. Crim. which tively, consideration of Rule 7. We turn first to through of Local operation 128(b). B. stay 15, 1997, Judge Court's July prior to the District On amended local Rule hearing, Territorial Court Swan's (b), which states: include subsection court, including
No criminal case filed traffic any citations, upon by party be motion shall dismissed Court that except upon determination faith, interest, and in the good dismissal justice. interest 128(b) justifies Judge that Rule
The Territorial Court submits charges scheduling dismissing Swan's conduct in not that Rule July responds The Government hearing. argu- power under ROA. This the Territorial Court's exceeds separating substance contemplation of the lines ment demands judicial. from the legislative and the procedure practice and governing that "the rules provides The ROA law. . . shall be established local procedure of the courts by those courts." promulgated law or the rules governed by local 1611(c). provision this rules It clear from 48 U.S.C. respectful must by the Territorial Court promulgated *13 have held that We to enact substantive law. power legislature's respect to the powers with applies doctrine of of separation "the Smithv. Virgin Islands." government branches of coordinate 1997). naturally 464, 457, It 465 37 V.I. 124 F.3d Magras, to Chief that it not the belongeth for He knows been to the Attorney-General, I, Justice, a warrant but as Chief can grant nolle prosequi; to grant Justice thee to bear him company." commit Tonkin, [375] P.2d 349 F. Supp. n.4, at 25 Cal. 81-82 n.9 (citing Rptr. [697] Justice (Cal. 1962)). Traynor in People Sidener, [58] Cal. 2d 645, 483 legislative pow- follows Territorial Court cannot exercise general ers. "As a in rule inherent the American constitutional . . system expressly . unless otherwise provided or incidental to . . . powers judiciary conferred cannot either exercise legislative 124 power." (quotingSpringer executive or F.3d at 465-66 Islands, 189,201-02, Philippine v. Gov't 277 72 U.S. L. Ed. of (1928)). could, Ct. 48 S. Even if it legislature Islands any its power has ceded of substantive lawmaking 128(b) Territorial question Court.3 Therefore the is whether Rule impermissible an a procedural substantive rule of law rule that is authorized the Revised Act. Organic above, III.A, supra As discussed see Part at common law the power prosecutors try determine whether to a defendant prior to the of a impanelment jury bordered on the absolute. Under precedent, both and statute that would appear to be rule that ("The territory. in holds See V.I.C. 4§ rules of the common law, in expressed as . . restatements of the law . and to the expressed, generally extent not so as applied understood and in States, the United shall be the rules of decision in the courts of the apply, the cases to which they in the absence of (D. Michael, contrary."); local laws Tonkinv. Supp. 349 F. 1972). V.I. By commanding and empowering court to determine prosecution whether the dismissal of a would justice, interest and the interest licenses the substi- tution the Territorial Court's judgment prosecutor. for that of the not, therefore, This is a rule of "practice procedure" and within the scope rulemaking ROA, the local courts' ability under the but a substantive rule of law. The ROA vests the enact such legislature. laws While the local judiciary certainly petition the legislature expanded powers, it may not unilater- ally upon vest them itself. sure,
To be separating procedure the line substance often unclear. "The must really test be whether regulates 243(8), The Territorial Court cites to 4 V.I.C. but that statute only the local courts grants "to amend and its process control as to orders so make them conformable to law and process conform justice." Adjusting with "law" no hint gives any branch, indeed, functions have been transferred to lawmaking judicial suggests that they continue to reside solely legislative authorities. *14 and duties for enforcing rights judicial process procedure, —the Co., Sibbachv. Wilson & substantive law recognized by however, 1, 14, Ed. S. Rule (1941). 128(b), U.S. 85 L. 61 Ct. law, but substantive not enforce or does by right duty recognized the local that was once wielded transfers discretion rather by under novel standards into hands promulgated prosecutor judicial dismissal court must determine that "is in Rule itself: the 128(b) interest, faith, of In and in the interest justice." good words, look to of does not other the rule's standard judgment have been that Rule 128(b) duties may preexisting rights Rather, the same it looks to of enforce. judgments designed thus the rule. The Territorial Court seeks court that promulgated at the of local This its own expense prosecutors. expand do, Rule held 128(b) and the District Court cannot properly void.
C. 7, which is a Territorial Court Rule 128(b) Because Rule nullity, Procedure to cases which the Federal Rules of Criminal applies Fed. R. Crim. P. us to is no local there contrary, points 48(a) (with Rule First 48(a). empha- promulgated provides General or the United States sis "The added): attorney Attorney indictment, leave court file dismissal of an information may terminate. Such shall and the thereupon complaint prosecution filed the trial without the consent not be dismissal during may the defendant." the traditional Rule to alter 128(b), 48(a) Rule
Like appears executive authorities law nolle common prosequi power In contrast of the court" to dismiss "leave prosecution. requiring below, the actual in further detail and as discussed 128(b), to Rule under refuse a motion dismiss for when a court standards Islands' unclear. In the Government Rule are 48(a) are, into the view, 48(a) also ventures whatever the standards that Rule cannot The Government realm. substantive argues dismiss the Court's failure to the Territorial against charges justify If Rule that Rule cannot: 128(b) for the same reasons Richards scheme, Islands' violates separation-of-powers as a be said of then the same can also application *15 Court, rule the it promulgated Territorial because too eliminates the prosecutors absolute discretion of to decide whether not to pursue their cases.4 Territorial contends that even if the common law
practice
prosequi
of nolle
has been the substantive
law
common
of
Islands, it
Virgin
displaced by past practices
the
has been
to the
(as
48(a)
contrary
reflected
use Rule
in
District Court's
of
its
Islands,
v.
opinion Dawsey
in
Gov't
the
V.I.
34
931 F.
of
(V.I.
Div.),
1996)).
Supp. 397
App.
Yet as affecting commonly it is authorized of whether of prosecutors, irrespective *17 adapted judicial to review than the by exercise the Executive of his in deciding discretion when and whether to institute criminal proceedings, precise or what charge shall be made or whether to States, a proceeding dismiss once v. brought." Newman United 127 (D.C. 1967). 263, 479, App. U.S. D.C. F.2d 382 480 Cir.
Though this Court has not on ruled the standards that should be employed determining whether a judge abuses his or her 48(a),other a denying discretion motion under Rule courts have opined the subject. Supreme on The suggested has prevent exists to prosecutors, harassment though has vague been on what other may circumstances justify applica- its tion. 48(a)] [Rule
While obviously vests some discretion in the court, the circumstances in which that discretion properly be exercised have not been delineated this
488 require- court" of the "leave of principal object Court. The against protect is to defendant apparently ment .... the Rule has also harassment But prosecutorial to a Government permit deny the court been held to if has consented dismissal to which the defendant motion con- prompted by clearly considerations the motion is trary interest. public 207, States, 22, n.15, Ed. S. 29 L. 2d 98 v. United 434 U.S. 54
Rinaldi (1977) curiam) (citations omitted). (per Ct. 81 appeals signifi- in the has not been The courts jurisprudence clearer, is that refusal to dismiss cantly proposition save for the courts cases. of our sister only rarest of As one appropriate has summarized: a defendant primarily protect is intended States, harassment, v. United prosecutorial Rinaldi (1977) 22, 31, 98 81, 86, 54L. 2d 207 (per
434U.S.
S. Ct.
Ed.
curiam),
permits
but it also
courts faced
dismissal
in the fair admin
motions
consider the
interest
justice
preserve
and the need to
istration of criminal
Hamm,
E2d
the courts. SeeUnited Statesv.
659
integrity of
Cir.1981);
Cowan,
(5th
624,
F.2d
States v.
524
628-29
United
(5th Cir.1975),
denied,
971,
504,
S.
cert.
425 U.S.
96
512-13
(1976);
Derr,
2168,
2d
States
L. Ed.
795
United
v.
Ct.
48
cf.
(10th Cir.1984).
generally
A
F.2d
619
court
motion to
required
grant
prosecutor's
'clearly contrary to
manifest
dismiss unless dismissal
[United
Cowan,
513;
also
524 F.2d at
see
public interest.'
v.] Miller,
1983];
[562,]
[9th
722 F.2d
Cir.
United
States
Cir.1983);
(5th
Hamm,
Salinas,
693 F.2d
States
F.2d
at 628.
1985).
(10th
Carrigan,
States v.
778 F.2d
United
speaks
danger
prosecutorial
harassment
concern
charges
dismissing
engage
cycle levying
will
prosecutor
are harder
defendant. The other concerns
particular
against
*18
contrary
equated
clearly
a dismissal that
describe. Courts have
appears
prosecutor
in which the
interest
one
victim,
or a desire
towards the
bribery,
motivated
animus
Hamm,
a
than
attend social event rather
trial. See
If one view that solely adheres to the Rule exists prevent defendant, a harassment of then the Territorial Court may have exceeded its in not promptly dismissing the case against Indeed, Richards. courts question several have reserved the 48(a), whether, judge deny under Rule an may ever uncontested Rinaldi, 30; at motion dismiss. See 434 U.S. United States (9th 1995). Gonzalez, note, however, 58 F.3d Cir. We Court, when the petition presented mandamus was to the District the Territorial Court had not denied the motion for dismissal. This significant. Several courts have indicated is not mandamus proper challenging vehicle for lower court's refusal to dismiss 48(a) the challenged under when has an actually court issued susceptible through order to review other means. For example, the doctrine, Eighth employed Circuit the collateral order rather than mandamus, to reverse district court order denied a Rule motion to in United v. Dupris, dismiss States 664 F.2d (8th 1981). Cowan, 172-73 Similarly, Cir. States v. United F.2d (5th 1975), 504, 505 the Fifth reversed a Circuit district court denying order dismissal on appeal motion and did not question reach the whether be employed mandamus could for case, however, purpose. same presents This different facts from Here, cases where review on appeal. occurred Richards moved of writ mandamus before the any rulings. Territorial Court issued ruled, actually Swan never Judge adversely either or positively, on Rather, the motions to the charges against dismiss Richards. he merely hearing probe scheduled a further into the circumstances surrounding the seeking Government's reasons for dismissal. circumstances, question therefore, us under before is not Judge whether Swan properly could have used his under 7 In these we intimate their chronicling suspicions, no view on merits. *19 dismiss, Swan's Judge but whether a motion to deny to his prohibit as to that rule was so circumscribed
power under
surrounding
Gov
hearing
a
on the circumstances
conducting
it
not. We
dismissal. We think that was
requested
ernment's
of
if it
been an abuse
discretion on
that even
would have
conclude
dismiss,
had
Judge
to
Swan
part
ultimately deny
his
the motion
claims,
in
parties'
especially
a
on the
hearing
discretion to hold
point.
up
case
to that
SeeUnited
light of the checkered course of the
1982)
(5th
Salinas,
("Although
348,
F.2d
352
Cir.
States v.
693
prove
that dismissal is
proof
prosecutor
burden
is not on the
of
interest,
obligation
is under an
prosecutor
'a
that constitute more than mere
supply sufficient reasons-reasons
interest.'") (citation
omitted); Wright,
and
3A
conclusory
footnote
1982) ("Since
(2d ed.
the court
FederalPractice & Procedure 812
considering
a
a
judicial
request
must
discretion
exercise sound
dismissal,
supporting
must
factual information
have
recommendation.");
Blouse,
United
v. Greater
Skirt & Neckwear
States
1964);
(S.D.N.Y.
Inc.,
483, 486
Assoc.,
Supp.
F.
United
Contractors
228
1959);
(S.D.
Shanahan,
Supp.
F.
229
Ind.
United
States v.
168
1951).
(D.
Moreover,
Doe,
we
Supp.
101 F.
Conn.
States
that mandamus order can
any binding precedent
unaware of
are
ruled
issue.8 text
should issue before the court has
on
clear that he
Judge
contends that
Swan made
Government
reached the
independently
the matter
he
would not dismiss
unless
was,
untrue,
were
and that he
allegations
that the initial
conclusion
We
prosecutor.
therefore,
for that of the
substituting
judgment
his
not, however,
view
statements
the course
judge's
do
the judge
final
of motion. How
as a
determination
proceedings
whether he
question
irrelevant to the
perceived the case is
initially
comments
Judge
an
order. While
Swan's
appealable
had issued
an
perhaps
reflected
overestimation
premature
have been
Government),
his irritation with the
authority (along
his
ruled
the Govem-
clearly
that he had not
on
demonstrate
facts
That does
Islands, V.I. 174, 931 F.
Internal
Court affirmed
1994).
appear
Operating
to have
Dawsey
Procedures.
been the procedural posture
without
Supp.
See,
opinion,
(V.I.
e.g.,
App.
United States v.
hence that case
Div.),
aff'd
Breyer,
On the facts before of Rule does not violate the separation-of-powers system of the ROA. We conclude that the Territorial Court's mere effort to obtain informa tion surrounding prosecution's the attempted dismissal of Richards's does information not suffice to work a substantive change prosecution's power the prosequi. of nolle This conclusion 48(a) by is informed explanation properly how can be used a justify judge's to scheduling hearing on the motion before ruling, a matter to which we now turn.
E. 48(a) though a judge's Even discretion under Rule is severely cabined, rule may important an an serve interest as informa tion-and accountability-producing A judge vehicle. who hears a independent motion has responsibilities may bear on his or her requested words, decision on the dismissal. In other independent interests, there are rights, may duties that court protect, Co., 1, 14, see v. Sibbach Wilson& U.S. 312 L. Ed. 61 (1941), S. Ct. 422 through using Rule as a "sunshine" provision exposes prosecutorial the reasons for decisions. above,
As discussed such right one is that of the defendant to not by repeated prosecutions harassed that are dismissed before jeopardy attaches. Another interest that could be served by a hearing is the court's inherent to processes ensure that its Nasco,Inc., are not being 32, 44, 115 abused. Chambersv. 501U.S. Cf. (1991) ("[A] L. Ed. 2d S. Ct. 2123 court has the to conduct an independent investigation order to determine fraud."); whether it has been the victim of Eash Riggins v. Trucking, 1985) banc) Inc., (en 757 F.2d Cir. (discussing courts' inherent power judicial to deter abuse process through sanctions). holding scheduled, In hearing that he so long ago into whether inquire appropriately Judge Swan therefore petition improprieties attending were Government's any there prosecution. dismiss the Richards's to pro public has a interest
Additionally, generalized to make decisions about whom prosecutors which through cesses into the reasons for inquiring a court can serve prosecute that 504, 512-13 Cowan, F.2d SeeUnitedStates requested dismissal. ("We 48(a)] (5th 1975) can be [Rule think should and construed public protecting essential function of preserve judicial justice administration of criminal interest in the evenhanded to take encroaching primary duty on the the Executive without executed."). faithfully While this interest laws are care prosecution ability compel cannot rise to substantive a court to force argue allowing does in favor of proceed, it proceeding reveal their reasons for prosecutors publicly Bringing dismissal. these decisions granting requested before turn, attempts may, lead to open into *21 through democratic channels. influence these decisions sum, suspects that a who prepared judge In are not to rule we it the individuals before wrongful proceedings behavior the are. into the true circumstances power inquire has no what Rather, the prosecutors to disclose requires rule that "sunshine" inquiry and limited additional reasons for their actions allows run of the dictates of sufficiently that does not afoul procedural regard seem to be resolved Any the ROA. doubt in this would that, above, no Judge apparent Swan had the fact as discussed prosecution proceed with Attorney General to force of Richards. reasons, conclude that the District
For all the we foregoing Therefore, its order erred in the writ of mandamus. granting Court reversed, to remand the will with instructions granting the writ with consistent proceedings to the Territorial Court for further case parties The bear their own costs.9 opinion. this shall mandamus would be appropriate have us the whether question we do not before Although if, then dismiss the charges Swan refused to hearing, Judge conducted having record, Richards, strongly that on we currently we must note the facts against 48(a) Rule As the discussion of doubt a refusal to would be justifiable. dismiss GARTH, Judge, dissenting Circuit majority opinion The the instant matter has much to com- it, presents analysis mend as it a detañed and masterful of an Indeed, extremely complex area of law. I with the majority's concur (1) AppeUate conclusion Division the District Court of possessed to issue writ of Islands; against mandamus the Virgin Territorial Court of (2) that Territorial Court Organic Rule violates Revised (ROA). Act however,
I part company with the majority opinion, respect with overly-ingenious interpretation its bottom line: its that Federal 48(a) nothing Rule of Criminal Procedure than a more "Sun- — a provision panacea shine" can provide both the courts and general the reasons behind the United States Attorney's pending charges against particular decision dismiss 48(a) view, Contrary my defendant.1 majority, Riñe is a substantive rule that alters the common law in order to allow the prevent dismissing district courts to a prosecutor from criminal charges without the courts' consent. result, As a be imported cannot into rules — through only procedural Territorial its Rule because —
not substantive rules bemay promulgated by Territorial I Accordingly, Court. would Attorney hold General Virgin Islands is correct in interpretation his as substantive rule and that accordingly, Richards's charge must be dismissed without court interference. It is for this that I reason respectfuñy dissent.
I (i.e., ROA empowers "the courts established local law" *22 Islands) the Territorial Court of the Virgin prescribe their own Richards or the Government indicates, one limits writ of mandamus. way of his or Judge authority. another, Swan's see Should he ordering In re may then Sharon Steel deny hearing on the facts before him the motion on either file an Corp., remand, interlocutory appeal E2d 434, or refuse to 436-37 took him to the rule or promptly request 1990), outer 48(a) 1 nl The terms Rule "a that majority provision sunshine the reasons exposes for decisions," 25, at prosecutorial Majority Op., presumably line with the Government Act, 552b, in the Sunshine 5 U.S.C. which local seeks to open government meetings § citizen observation. 1611(c). U.S.C. practice procedure." and governing "rules authority the Terri- statutory provision use as Purporting to this —48(a) Rule its a rule after promulgated patterned torial Court 128(b), Rule which states . . in the shall be dismissed
no criminal case filed court. upon a determination upon by any party except motion faith, in the good is by the Court that the dismissal interest, justice. in the and interest Court of the Appellate The Division of District Richards, Supp. 52 F. be In re 40 V.I. held this rule to void. See 48(a), (D.V.I.1999). 2d That court also held Rule 528-29 which states attorney by court file a States leave of United indictment, complaint an and
dismissal of information or terminate, the prosecution thereupon shall Islands, applied in the Courts of the could not be Territorial Supp. 7.252 F. notwithstanding the Court Rule effect Territorial premised holding 2d at this on Appellate 529-30. Division ROA, that, promulgated adopted pursuant any fact Court, procedural, Rule by including the Territorial must substantive, in majority nature. See id. at 528-30. The not view, case, not opposed my holds that is instant as rule, it admits that rule "is adorned although substantive my at 21. In Majority Op., substantive trappings." unmistakable 128(b), which no between Rule even opinion, there is difference 48(a). ROA, and Rule being as violation of majority rejects are identical and obvi- substantively The contents of both rules therefore, prosecutor's ously, if rule is ineffective to condition one Hence, dismissal, my too the other. recommendation of then so simple: and rather regard straight-forward in this position in the courts of the is effective neither Rule nor are both rules. Virgin Islands because substantive 2 Territorial Court Rule Procedure, inconsistent shall be governed Terr. Ct. R. 7. the Federal Rules of Criminal Procedure therewith, provides the Rules the Rules of the District that "the the Territorial Court practice and the Federal procedure Court, the Federal Rules of Civil and, in the Territorial Court Rules Evidence." to the extent *23 A The difference between rules that are and "substantive" cannot be in or Islands and those promulgated adopted and must be ex merely regulate "practice procedure" initially for this must be the plored. starting point inquiry Supreme Wilson, 1, 85 in Court's watershed decision Sibbach & Co. 312 U.S. 479, 61 Sibbach, Ed. L. In (1941).3 S. Ct. 422 the Court held that "the — must be test whether really procedure[ regulates ] for and duties judicial process enforcing rights recognized substantive law and for and redress justly administering remedy or infraction of them." 14. Id. at disregard indicated,
As however, numerous commentators have test Sibbach alone is of little in whether a help determining given rule is in nature. See substantive &Miller procedural Wright, Federal Practice & Procedure: Jurisdiction, at Cooper, § — sense, formula at all Sibbach "is no test in a it is (stating little more than if, the statement that a matter is procedural revelation, result, it is As a order to derive procedural"). substance, standard to delineate between and proper procedure must be added to the Sibbach Court's Hart something analysis. Wechsler, scholars, the oft-cited civil have procedure opined that substantive rules are those that and reason- "characteristically affect conduct at ably people's stage primary private Wechsler, Hart & The Federal Courts & the Federal activity." System see also D. (1953); Paul "Substance" and "Proce- Carrington, Act, dure" the Rules Duke 281. With this Enabling L.J. ROA, 3 1 acknowledge Sibbach and its concern progeny not the but the Enabling Rules REA, (REA), ROA, Act at codified 28 U.S.C. presently 2072. The similar quite to the § authorizes the Supreme Court United States to rules promulgate of practice courts, procedure for use in the federal so such rules long as do not impair substantive See rights any litigant. 28 U.S.C. 2072. REA Although directly is not matter, implicated the instant resort to the jurisprudence emanating the REA necessary because of the lack interpretive guidance concerning virtually identical Indeed, provisions of the ROA. the majority such. at implicitly recognizes Majority Op., 19 n.5. Both the and I majority hold that the Supreme cannot promulgate substantive rules under the REA. Even neither though party present has raised the appeal specific issue of whether Rule violates REA's it is provisions because substantive and I procedural, tire of Rule suggest propriety respect to all federal courts re-examined. *24 I am "dichotomy," vs. substance procedure understanding of rules, 48(a) 128(b)and Rule are substantive that Rule satisfied both provisions of the ROA. therefore violate and
B 48(a) 128(b) Rule and acknowledges, both Rule majority As the (and exclusively law granted decisions common implicate — decisions prosecutor many jurisdictions) in grants, still against pending charges criminal whether to dismiss regarding known as nolle right, This particular prosecutorial defendant. — entity, including the was at law no absolute common prosequi, decision to end challenge prosecutor's could judiciary, (7 Wall.) 454, Cases, 74 U.S. See proceeding. criminal Confiscation ("Under (1868) law it 457, the common L. Ed. the rules of his relinquish that the prosecuting party must be conceded it, option withdraw court at his any at and stage suit ."); Torcia, at . E. Wharton'sCriminalProcedure§ . . 3 Charles 1991). (13th principle, law Notwithstanding ed. this common 48(a) 128(b) prosecutor's right Rule Rule restrict both charges. dismiss criminal goes very heart prosequi
The nolle tradition such, any on and function. As restriction prosecutorial role enter prosequi necessarily of nolle would prosecutor's right regulation by arena, and thus not be available for substantive a prosecutor's Court. Given that such interference Territorial was the local discretion that once wielded discretion "transfers hands," (emphasis at Majority Op., 17-18 prosecutor judicial into added), that rules be deemed substantive. is obvious both must substantive, but that Rule majority, which holds 48(a), Op., despite trappings," Majority Rule its "substantive 48(a) not, life an unwarranted to Rule gives at 48(a)'s substantive by grafting It so onto Islands. does 48(a)'s to Rule runs counter provisions gloss "Sunshine" 48(a)'s It jurisprudence. appears history that nowhere therefore, Appellate I find Division's surprising, is not applied that Rule cannot be analysis persuasive finding Islands. i. The majority attempts first justify its inconsistency in charac- terizing 128(b), identical rules differently by explaining that Rule 48(a), unlike Rule specific contains standards. See Majority Op., at (i.e., faith, 23-24. Those standard good interest, s and the interest of justice) inform a judge's decision whether grant prosecutor's motion to dismiss pending charges. Terming such standards," principles "substantive majority reasons that Rule 48(a)'s lack of such standards is an indication that the courts' "role in granting leave to one," dismiss under [is] a limited Id. at such, and as does wrongfully beyond venture proce- *25 dural domain.
Building upon purported standards, this lack of the majority — then 48(a) fashions its interpretation own of Rule the "Sun- shine" principle to which I alluded earlier. More specifically, the 48(a)"ensures majority opines that Rule that [the courts'] processes abused," are being public allows the an gain insight into processes "the through which prosecutors make decisions about prosecute." whom to Id. at 26. matter,
As an initial
although the majority is
correct
48(a)
express terms of Rule
do not indicate that a judge's decision
grant
deny
prosecutorial
motion to dismiss pending
criminal charges are subject
faith,
to the standards
good
public
interest and the
justice,
interest of
those
courts
have sought to
48(a)
interpret Rule
imputed
have
those standards to the rule itself.
48(a),
The lone Supreme Court discussion of Rule
United States v.
Rinaldi,
(1977)
U.S.
54 L. Ed. 2d
Perhaps the most extensive treatment Rule can be found Cowan, opinion in the Fifth Circuit's in UnitedStatesv. 524 F.2d504 (5th 1975). 48(a) Cowen, In held that Rule court was a attempt part Supreme "manifest" on the of the vest "in the courts and the duty exercise discretion for the protection public Id. at Although interest." 511. the Fifth limited, Circuit believed that such discretion was in that extremely prosecutorial judicially decision "should not be disturbed 48(a), interest," clearly contrary unless to the public in its view, provide did for "a enough discretion broad to protect the interest the fair at justice." administration Id. 512. such,
As each of the so-called "substantive standards" identified majority as contained within Rule and ostensibly missing from the provisions of Rule have been considered 48(a)'s part parcel requirement. of Rule "leave of court" 48(a) thus judge vests the district with decisionmaking power as to whether pending charges against criminal a defendant should be — pursuant dismissed to the standards noted above specific standards that prior to the promulgation of Rule were weighed solely within province prosecutor himself.
ii. The majority's purpose it self-avowed that attributes to Rule - 48(a) rationale(s) to air the behind the sought-for dismissal of a - criminal proceeding suffers from serious flaws. Majority Op., See First, at 25-27. such an interpretation very is belied history Supreme behind the promulgation Court's of the rule. According Orfield,4 to the late Professor Advisory Lester Committee's 48(a) proposed version of what now appears as Rule did not the phrase contain "with leave presently appears of court" that Rather, the rule. the original provided that in order to obtain pending charges, dismissal of criminal a prosecutor would be required to provide the district court "with statement of the 4 Orfield was a member of the Original Advisory Committee to the Court with Supreme respect the Federal of Rules Criminal Procedure. Rhodes, Procedure Criminal Mark S. therefor." See
reasons Orfield's 48:11, ed. see also 1987); at 251 the Federal Rules Under Procedure 178 Rules Criminal the Federal Drafting History of of Triffen, (1991) eds.) & Nicholas Wilken (Madeline (reprinting J. trans- Committee of Rule 48(a) version Advisory original Court Before Court). mitted promul- Supreme Supreme form, however, it deleted the in its 48(a) Rule present gated therefor," the reasons a "statement of for replaced requirement in the rule —"with found currently phrase language Hamm, Id.; F.2d United States see also leave of court." that the initial version Rule 1981) Unit A (5th n.23 (stating and therefore was drew criticism 48(a) prosecutors, sharp form). modified its present from its
If had remained Rule 48(a)'s unchanged language format, would have Committee Advisory majority original the rule. The fact "Sunshine" more license for its interpretation that would eliminated Court express language Supreme however, Rule is fatal to 48(a), this "Sunshine" purpose support or differentiate creative attempt distinguish majority's Indeed, Orfíeld 128(b). and Rule as Professor between Rule 48(a) wrote, be filed without "a dismissal might [now] prosecution] [of Id. statement reasons." any its is incorrect is novel assertion therefore
The majority plainly as "Sunshine" rule 48(a) intended Rule that the Supreme to understand a and the the court order assist system dismissal of a criminal reasons for proceed- seeking prosecutor's and Rule 128(b) that because It follows inexorably ing. cloth, void an if Rule because are from identical spun substantive, 48(a). is Rule then so too
C Moreover, "Sunshine" I also believe interpre- majority's innocuous as is not as tation my colleagues may reach of the claims that "the substantive believe. The fact majority *27 the court because to be curtailed' rule [48(a)] effectively appears the motion to dismiss if a cannot proceed compel prosecutor Indeed, states at 21. were denied. majority Majority Op., as a 'Sunshine' rule "is sufficiently proce- interpreting ROA," that it run dural does not afoul of the of the dictates "any doubt in regard this would seem to be resolved . Judge fact that . . apparent power Swan had no to force the Attorney proceed prosecution." General to with a Id. at 36.1believe majority's analysis point theoretical misses a crucial respect procedure/substance dichotomy. above,
As stated very essence right common law prosequi nolle prosecutor enjoyed was absolute control over specific prosecution. of a Although course of the preced- most ing discussion is framed terms of the ultimate decision as to all, prosecute particular whether to a offender at included within this broad are a of prosecutorial multitude bearing decisions on the institution and maintenance proceedings. of criminal anAs example, a prosecutor once alleged confronted with wrongdoing defendant, on a part purported prosecutor must deter- statute(s) sanctions, mine under which to seek criminal and the proper evidence to introduce order to a obtain conviction. majority's Because the interpretation "Sunshine" severely impacts — on such decisions that go those to the very core of the — 48(a) prosecutorial function significant has a much more reach than the majority envisages.
The facts of the instant matter demonstrate this problem. The — Government of the Virgin initially filed via an informa- — felony rape tion a charge against Richards the Territorial Court, and then amended that information to include misde- charge. meanor agreed Government thereafter to allow plead Richards to guilty charge to the misdemeanor in return charge. dismissal of the felony Judge Swan refused to allow the refusal, charge. Government to dismiss the felony After this initial however, Judge Swan a hearing scheduled to determine whether "public such dismissal was consistent with the interest." This "public interest" would hearing have been no different from the novel hearing "Sunshine" now advocated by majority. Indeed, because of the prospect hearing, of such the Government sought felony disclosed that charges dismissal because support felony evidence did not The government conviction. (the primary also claimed that against witnesses Richards mother) victim and alleged testify. her would not With this *28 revealed, if were to surprise me Richards it would information charge, particularly to the misdemeanor guilty to plead continue two main witnesses informed that the he now has been because any provide assistance to implicate him will not who could prosecution. in its Government hearing, much like "public result, interest" Judge Swan's
As us, essen- urges upon now hearing majority the "Sunshine" hand and disclose out its play tially forced Government keep confidential.5 normally that it would seek information prosecutor that part Indeed, on the of the simple knowledge seek dismissal of a be held if he were to hearing would such impact the manner help not but charges could defendant's of the criminal would conduct the course prosecutor which the words, allegedly innocuous "Sunshine" hi litigation, other prosecutorial day-to-day irreparably impair could hearing decisionmaking. auspices of Rule hearing under ability
The to hold such 48(a) opportunity with the judge court provides therefore district - prosecutorial process process the entire to commandeer exclusively prosecutor through provided law common far consequences reach Given that such prosequi doctrine. nolle intrusively every into each the courtroom and beyond majority's decision, I how the do not understand prosecutorial 48(a) can be deemed either of Rule interpretation "Sunshine" procedural. harmless
!! in an effort save lengths to out that gone great point I have characterization, majority a substantive — errs, two rules analysis in its identical only but is inconsistent Islands and Rule Territorial Court of majority Criminal Rules of Procedure. Federal I can uphold the other. rule void and still cannot hold one 48(a) provide for a desire to have Rule majority's understand the 5 1, S. Ct. 1194 evidence course, from disclosure. am not suggesting (1963). See, that a e.g., Brady Maryland, prosecutor would be entitled to keep exculpatory U.S. 83, 10 L. Ed. 2d district court's oversight of a prosecutor's decision to dismiss pending charges. criminal adoption When the of this goes beyond the authority that Congress given has to the Territorial Islands, however, Court of the it is appropriate neither nor wise to its adoption finesse by a subterfuge such the seemingly as *29 benign "Sunshine" gloss that the majority has imparted to Rule 48(a).
The Appellate Division of the District Court of the quite was correct in analysis its and in its issuance of a writ of mandamus. logic, precedent, Because history, and reason compel result, such a I would affirm so, In doing decision. I must respectfully dissent. *16 Notes Committee on a rule. See as Advisory solely procedural 48; & Fed. Practice Procedure 812 ed. Rule 3A Adopting Wright, § is that of conundrum to route out this 1982). One argue possible the Rule emanates whatever substantive effect possesses Act a contains because the Rules Enabling procedure Congress rules are submitted to which new Congress through proposed effect, before can take at least a seven-month they delay require of thus check on some potential delegation providing Congress's 28 U.S.C. to See its substantive judiciary. lawmaking contrast, In no mechanism exists 2074.6 similar § The Rules But is Islands. this unsatisfactory. Enabling argument not does Act's for submission Congress give Congress provision it have. can that does not always already Congress any authority Neither a vote to promulgated by judiciary. abrogate the submission to effect nor in rules' Congress delay taking must a creates veto silence. Congress affirmatively by requirement a submitted rule. to obviate properly legislate It animal. reads like a 48(a) is that Rule strange upshot a court rule, act but discretionary by interposing procedural ultimate a case and decision to between a drop prosecutor's dismissal, it is with unmistakable substantive adorned trappings. a constitu- Rule is not 48(a) this potential problem Though viola- but of one tional possible problem separation-of-powers Act, it nonetheless. tion of the Rules problem Enabling
Notes
[6] after the was to take effect until 48(a)'s the rule At the time of Rule promulgation, had See 18 U.S.C. in which it been submitted. Congress conclusion session (1946).
[687] 48(a) not, however, We need the full engage expanse of Rule First, above, this as case. discussed substantive reach the rule appears effectively to be judge curtailed the fact even if the dismiss, way denies the motion to there seems be no compel Second, prosecutor proceed. this present case does not 48(a) facial challenge to local rule which Rule applies Rather, Court. reviewing Territorial we are the conduct of the determining Court and Territorial whether rose a level necessitating remedy the extraordinary of mandamus. We must therefore consider the of Rule viability specific within a 48(a)'s context, factual give which contain elements application in procedural this instance a character because the rule was employed rights service of substantive duties exist independently of the rule's text. D. 48(a)'s text does not share the flaw Rule insofar as it does not set forth substantive standards that allow the Territorial apply Court to its judgment for what constitutes the interest prosecutors. Indeed, contravention of the judgment local courts have generally viewed their role in granting leave to dismiss one, under to be a limited because "few subjects are less