GOVERNMENT OF the VIRGIN ISLANDS
v.
Bеaumont GEREAU, Appellant in Nos. 73-1775 and 73-1873, et al.
Appeal of Ishmael La BEET in No. 73-1776 and No. 73-1874.
Appeal of Warren BALLANTINE, in No. 73-1777 and No. 73-1875.
Appeal of Meral SMITH, in No. 73-1778 and No. 73-1876.
Appeal of Raphael JOSEPH, in No. 73-1779 and No. 73-1877.
Nos. 73-1775 to 73-1779 and Nos. 73-1873 to 73-1877.
United States Court of Appeals, Third Circuit.
Argued May 13, 1974.
Decided Aug. 15, 1974.
William M. Kunstler, New York City, for appellant Beaumont Gereau.
Margaret L. Ratner, New York City, for appellant Warren Ballantine.
Chauncey Eskridge, McCoy, Ming & Black, Chicago, Ill., for appellant Ishmael La Beet.
Leroy A. Mercer, Christiansted, St. Croix, V.I., for appellant Meral Smith.
Ronald T. Mitchell, Mitchell & Hunter, Charlotte Amalie, St. Thomas, V.I., for appellant Raphael Joseph.
Julio A. Brady, U.S. Atty., Christiansted, St. Croix, V.I., John Barry, Richard S. Zackin, Asst. U.S. Attys., for appellee.
Before SEITZ, Chief Judge, and VAN DUSEN and GIBBONS, Circuit Judges.
OPINION OF THE COURT
SEITZ, Chief Judge.
Appeals are taken here from defendants-appellants' conviction, after trial to a jury in the District Court of the Virgin Islands, and sentencing for murder, assault and robbery1 and from denial of their motion for a new trial. Because the factual basis for the appeals is somewhat complex, we will elaborate the facts, as relevant, in our discussion of the various issues raised by defendants and set forth here only those facts necessary to a basic understanding of this case.
On the afternoon of September 6, 1972, a group of young men entered the clubhouse area of the Fountain Valley Golf Course in St. Croix. Sixteen persons, including guests and staff, were in the clubhouse area at that time. The intruders, armed with a variety of weapons including a machine gun and shotguns, took cash from a clubhouse shop and snack bar, robbed some of the guests and killed eight persons. Four others were wounded while trying to escape and the remaining four were able to escape unharmed. The survivors reported seeing various numbers of gunmen, agreeing that the men wore masks and fatigue-type shirts and perhaps also fatigue pants.
Prior to the incident at Fountain Valley, arrest warrants had been issued for three of the defendants in this case, Ishmael La Beet, Warren Ballantine and Raphael Joseph, on charges including first degree assault, simple assault and battery, and failure to appear in court after release on bond. La Beet, Ballantine and Joseph had reportedly been seen in the general vicinity of Fountain Valley wearing fatigue shirts, a short time before the crimes with which they are charged here took place. The three immediately became suspects. Police also sought associates of La Beet, Ballantine and Joseph for questioning, among them the remaining defendants in the case, Meral Smith and Beaumont Gereau, who were seen with the trio the night before and afternoon of the Fountain Valley killings.
During the week following the killings, Virgin Islands police working with agents of the Federal Bureau of Investigation arrested all five of the defendants and seized all the weapons used in the killings along with articles of clothing identified as having been worn by the gunmen and various items taken from guests at the time of the shootings. Before dealing with the defendants' specific contentions, we will summarize the series of arrests, searches and confessions that produced the bulk of the evidence introduced at trial and all of the evidence use of which is challenged by defendants.
Early on September 7, Smith was arrested at 160 Estate Grove Place, where he had been observed little more than a day earlier with the other defendants. Police engaged in a warrantless search of 160 Estate Grove Place, at the time of Smith's arrest and again a few hours later. On September 8, a police officer attempting to locate another associate of defendants, one McIntosh, got into an altercation with yet another young man who answered the door at 46 Prince Street, Fredriksted, in front of which McIntosh had been seen earlier. The fight between the police officer and the young man started at the front door and progressed through the house, ending in a room in which Gereau had taken refuge. The policeman arrested Gereau, who he believed was wanted for failure to appear and answer to an assault charge. Later that day, police returned to and, with the owner-occupant's consent, searched 46 Prince Street. On September 8 and 9, after questioning, Smith and Gereau gave statements to F.B.I. agents regarding their and the other defendants' participation in the Fountain Valley incident. Also on September 9, agents and police conducted a warranted search of 160 Estate Grove Place. Late in the afternoon of September 9, Smith and Gereau were arraigned.
Warrants issued on September 10 for the arrest of defendants La Beet, Ballantine and Joseph for murder, robbery and assault at Fountain Valley. Warrants also were issued for the arrests of two described and partially named Puerto Ricans implicated in the statements given by Smith and Gereau. The three defendants were arrested during the afternoon of September 12 at 527 Hospital Street, Fredriksted. F.B.I. agents and police searched the Hospital Street premises, with a search warrant, at the time of defendants' arrest and again, with a warrant, a few hours later. Statements regarding their participation in the Fountain Valley killings were given by La Beet, prior to the second Hospital Street search, and by Ballantine and Joseph on September 12 before their arraignment that evening. On September 14, Gereau gave another statement, later suppressed, admitting that the two Puerto Ricans he and Smith had implicated in the crimes were fictional.
I. SUPPRESSION ISSUES
Before trial, defendants moved to suppress the statements given by them and the evidence sеized in the searches noted above. The District Judge suppressed the statements given by defendants Smith and Joseph, finding that they had requested to see a lawyer and were denied an opportunity to do so until, after further questioning, their statements were obtained.2 The district court also suppressed Gereau's statement of September 14, which was not immediately preceded by warning Gereau of his right to have counsel present. In all other respects the motion to suppress was denied. Crim. No. 97/1972 (D.V.I. July 23, 1973). Defendants contend that the Court erred in denying suppression of other statements and tangible evidence. We turn now to those contentions.
Statements of Gereau, La Beet and Ballantine: Brutality Claims
The first line of attack on admission of statements by defendants Gereau, La Beet and Ballantine is the defense claim that the statements were obtained as a result of brutal police treatment. Defendants allege that they were beaten, shocked with electric shock batons, burned with cigar stubs, partially suffocated by police placing plastic bags over their heads and by covering their mouths while dripping water into their nostrils, hung from certain trees, and otherwise mistreated. Testimony by various witnesses is pointed to by defendants as supporting portions of defendnats' testimony regarding police brutality directed at them. They admit that a wealth of conflicting testimony was introduced by the government and that defendants' testimony along with the testimony relied on by defendants as corroborating their stories was found by the District Judge not to be credible. Defendants contend, however, that the court below used improper legal standards to judge credibility.
It is the law of this Circuit, as well as many others, that a fact-finder's determination of credibility is not subject to appellate review. United States v. Brown,
Accepting the district court's credibility determinations, we cannot say its finding that the statements by Gereau, La Beet and Ballantine were not products of police brutality is clearly erroneous. See Krasnov v. Dinan,
Statements: Presentment Delay
Defendants next contend that the statements given by Gereau, Ballantine and La Beet should have been suppressed because defendants were not presented to a magistrate within six hours of their arrests. This argumеnt rests on the interpretation of Rule 5(a) of the Federal Rules of Criminal Procedure4 adopted in Mallory v. United States,
Mallory interpreted Rule 5(a) as allowing 'arresting officers little more leeway than the interval between arrest and the ordinary administrative steps required to bring a suspect before the nearest available magistrate.'
Rule 54(a) makes the Federal Rules of Criminal Procedure applicable to all criminal proceedings in the District Court of the Virgin Islands, and the Rules have been held to apply even in prosecutions for local crimes. Government of the Virgin Islands v. Solis,
Section 3501 provides that confessions are admissible if voluntarily given and that in determining voluntariness the trial judge shall take into consideration all relevant circumstances including the time between arrest and arraignment (where, as here, the challenged statements were made within that time), whether defendant knew he was suspected of the crime concerned when he made his statement, whether defendant was informed that he was not required to make a statement and that he had a right to counsel. 18 U.S.C. 3501(a) and (b) (1970). The section then declares that a statement shall not be inadmissible solely because of delay if (1) the trial judge finds the statement to have been made voluntarily, (2) the weight to be given the statement is left to the jury, and (3) the statement was made within six hours of arrest, noting further that a statement after more than six hours following a defendant's arrest shall not be excluded if the delay beyond six hours was reasonable considering the means of transportation available and distance to the nearest magistrate. 18 U.S.C. 3501(c) (1970).
In admitting statements by La Beet, Ballantine and Gereau, the District Judge expressly found them to have been made voluntarily. All three defendants were advised of their rights before questioning and before making their statements. The District Judge found that the Government had satisfied its burden of showing that defendants had waived those rights, and defendants have not demonstrated that this finding was clearly erroneous. The judge also noted that the defendants were not questioned continuously for long periods; they were given food and drink on request and when Gereau indicated he was tired, he was allowed to sleep overnight before questioning resumed the next morning. La Beet's statement was started and completed within six hours of his arrest and Ballantine's statement was begun within six hours of his arrest. Onе statement of Gereau's was given well within the six hour period although his statements on September 9 were not. In light of the surrounding circumstances, we find no clear error in the district court's decision that the challenged statements were given by defendants voluntarily. See United States v. Moore,
Defendants, however, contend that since La Beet, Balantine and Gereau were not arraigned until more than six hours after arrest and the delays were not related to difficulties in transporting defendants to a magistrate, 3501(c) requires their statements to be excluded. We reject this contention. The express declaration of 3501(c) makes clear that a statement voluntarily given within six hours of arrest is not excludable because of delay in presentment after the statement was given. United States v. McCormick,
Statements: Challenge to Arrests
Finally, defendants argue that the statements of Gereau, La Beet and Ballantine should have been suppressed as the fruits of illegal arrests. We turn first to Gereau's arrest. As described previously, at the time of his arrest no warrant had issued in connection with the Fountain Valley killings. Various persons, Gereau among them, were bеing sought by the Virgin Islands police for questioning concerning La Beet, Ballantine and Joseph. One such person was Rupert McIntosh, who had reportedly been seen near 46 Prince Street the morning of September 8. A police officer, Sergeant Hodge, went to the home at that address, knocked and asked the man who opened the door, Edwin Joseph (no relation to Raphael Joseph), if McIntosh was in the house. Hodge testified that Edwin Joseph denied any Knowledge of McIntosh, told Hodge, expletives included, to let go of the door and shoved Hodge. At that point Hodge told Edwin Joseph that he was 'under arrest,' and Joseph then ran back into the house. Hodge pursued him through numerous rooms in the house, the chase ending in a room where Gereau was present. Hodge knew that Gereau earlier had been charged with simple assault and battery but had failed to appear in court at the time set for him to answer the charge. Believing that an arrest warrant had issued in connection with Gereau's unsanctioned absence from court, Hodge arrested Gereau. The District Judge, however, found that the warrant for Gereau's arrest in fact issued on September 8 following the arrest.
It is clear that the warrantless arrest was illegal under Virgin Islands law. The Virgin Islands Code, as relevant, authorizes a police officer to effect a warrantless arrest if he knows that a felony was committed and has probable cause to suspect the person arrested of its commission. 5 V.I.C. 3562 (1967). Both simple assault and battery and failure to appear to answer a criminal charge are misdemeanors. 14 V.I.C. 299, 585 (1964). Hence, neither could support Gereau's arrest and no claim is advanced that at the time of Gereau's arrest police had probable cause to believe Gereau participated in the Fountain Valley crimes.
Although the initial arrest of Gereau was, thus, illegal, the district court found that Gereau was 'rearrested' when the warrant issued for his arrest for failure to appear in court. Defendants do not contest the findings that Gereau was charged with assault and battery, that he failed to appear as required to answer the charge, that a warrant was issued on September 8, shortly after his arrest, authorizing Gereau's arrest for failure to appear and answer criminal charges and that his statements were given after the issuance of the warrant. Defendants do urge us, as a prophylactic measure to insure against improper arrests, to hold that statements taken from an improperly arrested defendant are inadmissible unless the defendant was released from custody before giving the statement. Cf. Wong Sun v. United States,
Defendants argue that, nonetheless, the statements should have been suppressed because Gereau's arrest for his non-attendance at court proceedings was only a pretext on which to hold Gereau while questioning him regarding the Fountain Valley killings. Where police have arrested persons suspected of serious crimes on the pretext of some minor offense so that the suspects could be searched, the fruits of the search have been suppressed. See Amador-Gonzalez v. United States,
Defendants contend that the warrants authorizing the arrests of La Beet and Ballantine failed to satisfy the Fourth Amendment's requirement that warrants issue only if supported by probable cause.7 This contention rests on defendants' assertion that Gereau's statements implicating La Beet and Ballantine in the Fountain Valley crimes should have been suppressed and, therefore, could not be used to support issuance of warrants for their arrest. We need not decide whether, if Gereau's statements should have been suppressed, this contention would have merit, or whether La Beet and Ballantine have standing to raise this matter. Cf. Wong Sun v. United States, supra. Having found no error in denying suppression of Gereau's statements, we reject defendants' argument that the arrest warrants for La Beet and Ballantine were not based on the probable cause requisite under the Fourth Amendment.
Searches: 160 Estate Grove Place
Defendants challenge the District Judge's refusal to suppress the evidence seized in each of the searches described earlier. The first such search occurred at 160 Estate Grove Place immediately following the arrest of defendant Smith. That site was subsequently searched two more times. The first two searches at Grove Place were made without warrants and the third search was pursuant to a search warrant obtained on the basis of evidence gathered in the first two. The Government has advanced several theories to support these searches, each of which is contested by defendants. One argument put forward by the Government is that all these searches were based on the voluntary consent of Smith's uncle, James Tuitt.
While exceptions to the Fourth Amendment's warrant requirement are 'few in number and carefully delineated,' United States v. United States District Court,
The district court here found that Smith must have assumed the risk that Tuitt would consent to a search of the room he used at 160 Estate Grove Place because Smith was a trespasser on his uncle's property. It seems clear to us that, as a general matter, a trespasser must be deemed to assume the risk that the owner of the property will consent to its search. Defendants do not dispute this proposition, but vehemently contest the court's finding that Smith was in fact a trespasser. That finding by the district court binds us unless clearly erroneous-- the finding must be accepted unless 'the reviewing court is convinced on the whole record that a mistake has been committed.' Fisher v. United States,
Defendants argue that even if we sustain admission of the items taken in searches of 160 Estate Grove Place, we must find that the district court erred in refusing to suppress a luger found nearby. The luger, which tests determined was used in the Fountain Valley killings, was found on September 9, 1972, on a rooftop near 160 Estate Grove Place after Smith had given a statement admitting that he had thrown a gun out of the rear window of 160 Estate Grоve Place at the time of his arrest. Smith's statement was suppressed because it was given following his indication of a desire to have an attorney present, and defendants contend the luger should be suppressed as the product of this statement. To sustain admission of the luger, the Government must prove, by clear and convincing evidence, that the evidence was not found as a result of Smith's improperly obtained statement. United States v. Archie, supra,
Searches: 527 Hospital Street
Police and F.B.I. agents conducted two searches at 527 Hospital Street, one at the time La Beet, Ballantine and Joseph were arrested there and the second a few hours later. The first of these searches was conducted without a warrant, and, therefore, the burden of justifying the search is on the Government. E.g., United States v. Gamble,
Among the factors the U.S. Court of Appeals for the District of Columbia Circuit has identified as relevant to 'exigent circumstances' are that a grave offense has been committed, that the suspect sought is reasonably believed armed, that a strong reason exists to believe the suspect is on the premises and a likelihood that the suspect might escape if not caught quickly. Dorman v. United States,
On September 12, 1972, police had in custody Smith and Gereau, who had given statements declaring that five other persons were involved in the Fountain Valley crimes. Arrest warrants were obtained for all five persons. Police had been attempting, unsuccessfully, to locate three of these persons, La Beet, Ballantine and Joseph, since before the incident at Fountain Valley. They had every reason to believe that the five suspects were fugitives who would not tarry long in any place accessible to the local and federal authorities and had reasonable ground to believe that the suspects had committed grave offenses and were heavily armed.9 In this setting the police received a tip, from an informant who previously had given them information leading to suspects' arrests, that the suspects, still at large, sought in connection with the Fountain Valley killings, were in the vicinity of 527 Hospital Street. These circumstances satisfy the test of exigency-- it was imperative that police move quickly, without waiting for a search warrant to be secured, to arrest the five suspects.
Police and F.B.I. agents proceeded to 527 Hospital Street, at which address four structures are clustered: an outhouse and three larger buildings, one apparently marked 527 and two adjacent to it. When agents identified themselves and called for the suspects to come out, La Beet, Ballantine and Joseph exited from one of the buildings. Agents then entered that building and the other two adjacent buildings to search for the two Puerto Ricans for whom they had warrants.10 At the time the police officers arrived at 527 Hospitаl Street, the circumstances noted above provided the required exigency necessary to a valid warrantless, unconsented search. Although occurrences after police have arrived to effect an arrest may create or destroy the necessary exigency, see United States v. Holiday,
While not making the circumstances prompting the search less exigent, the emergence of La Beet, Balantine and Joseph did support the agents' belief that the remaining suspects were present on the Hospital Street premises. The agents could reasonably assume that if three persons suspected of the same crimes were found together, the remaining participants in those crimes could very well be found on the same premises, and further, finding La Beet, Ballantine and Joseph at the Hospital Street address corroborated the informant's tip that the suspects were there. See Draper v. Unitеd States,
The second search of the Hospital Street premises was made after issuance of a search warrant. Appellants challenge this search on three grounds, the first two of which mirror contentions we have rejected above. Defendants claim that the search warrаnt was obtained in part on the basis of items seen in the first search, and they argue that the asserted invalidity of the first search infected the second. We have held that the first, warrantless, search was lawful. All of the items seen by the agents during the course of that search, and used to support issuance of the warrant for the subsequent search, were in plain view to law enforcement officers engaged in the lawful execution of their duties. See, e.g., United States v. Novick,
The final ground for attacking the search is that it exceeded the scope of the warrant. The search warrant specifically describes each of the buildings to be searched and the nature of the items to be seized but fails exрressly to mention the outhouse and machine gun. We think that the description in the warrant, authorizing search of 'the premises on Hospital Street described as 527 Hospital Street' and identifying the adjacent buildings as included within the warrant's authorization, was sufficiently precise and did not need to state separately that search of the outhouse located on the same property was authorized. Similarly, the description of 'rifles, shotguns, pistols . . .' should not be read over-literally as placing the machine gun beyond the warranted scope of the search-- the warrant makes clear that a number of weapons police believed were used in the killings were being sought. It would be unrealistic, particularly where so many weapons are involved, to demand more precise identification of the items to be seized. The warrant at issue here does not authorize a general search for evidence but lists various items, some by individual and some by generic descriptions, that police had seen or believed were on the premises. Absent any reason for requiring more particularity here, we hold that the warrant was sufficiently explicit in its description of the place to be searched and items to be seized and that the search and seizure did not exceed the warrant's authorization.
II. SUFFICIENCY OF EVIDENCE
Before trial, Gereau moved to have the information against him dismissed. At the close of the Government's case, Smith moved for acquittal, and both Smith and Gereau moved for acquittal at the end of trial. The District Judge denied all four of these motions. Smith and Gereau contend that denial of these motions was error and that their convictions should be set aside because based on insufficient evidence.
In reviewing appeals from criminal convictions, we must view the evidence, and reasonable inferences therefrom in the light most favorable to the Government and sustain the conviction if there is substantial evidence to support it. Glasser v. United States,
The Government produced a plethora of evidence against defendants La Beet, Ballantine, and Joseph, and linked the activities of Smith and Gereau at the time of the Fountain Valley killings to them. Tuitt testified that he had seen all five defendants together the night before and afternoon of the murders, that they were all dressed in fatigues of the sort worn by the Fountain Valley gunmen, and that he had overheard the defendants say they were 'going on a raid.' From the room Smith used at 160 Estate Grove Place, police took, among other things, a golf ball, a box of matches inscribed 'Fountain Valley Golf Course,' and bullets matching those used in the luger found on a nearby rooftop. Officers testified to the seizure of these items, which are attributable to Smith, cf. United States v. Bamberger,
III. DISQUALIFICATION
All five defendants assert that the District Judge improperly failed to disqualify himself and erred in denying four motions by defendants for disqualification. At the outset, we must determine what law governs disqualification in the District Court of the Virgin Islands. The relevant federal disqualification provision, 28 U.S.C. 144 (1970), is made applicable to 'any proceeding in a district court.' The district courts are specifically enumerated, identified as 'United States District Courts' and their attributes set forth in the sections of the Judicial Code immediately preceeding the disqualification provision. 28 U.S.C. 81-143 (1970). The District Court of the Virgin Islands is not among the district courts enumerated in the Judicial Code but, instead, is created by the Revised Organic Act of the Virgin Islands, ch. 558, 21, 68 Stat. 506; it is given a different name and both the court and its judges possess attributes different from those of federal district courts and district judges. The mere appellation 'district court,' therefore, does not compel its inclusion within the scope of 144. See In re Webster,
In testing the propriety of the challenged denials of disqualification motions, then, we shall look to 4 V.I.C. 284 and 286 (1967). Section 286 states that challenges to the competency of a judge are permissible only when his disqualification is clear, and provides that the objecting party in such case may file his written objection with the judge, who is allowed to pass on his own competency, subject only to review on appeal after final judgment. The grounds for disqualification are set forth in 284. The sole ground relevant here is the probability 'that, by reason of bias or prejudice of such judge, a fair and impartial trial cannot be had before him.' 4 V.I.C. 284(4) (1967). The procedural requirements of these sections are substantially less rigorous than those of 28 U.S.C. 144, see, e.g., Note, Disqualification of Judges for Bias in the Federal Courts, 79 Harv.L.Rev. 1435, 1441-45 (1966), and consequently it appears that a more persuasive showing of probable bias must be made under the Virgin Islands statute than under the federal law-- reading sections 284 and 286 together, we view the Virgin Islands Code as requiring the facts alleged by the party arguing disqualification to reflect a clear probability that the judge is biased against that party. The Government indicates a belief that the Virgin Islands statute permits a judge to consider the truth or falsity of the claim of bias made against him, but we find no support for this argument. The local provision concerning bias, as noted by the Reviser, was 'suggested by' the federal statute, which requires allegations to be taken as true. See United States v. Thompson,
Applying these principles, we find no error in the District Judge's denial of defendants' disqualification motions. The first such motion was made under 28 U.S.C. 144, which we have held inapplicable here. The second motion, a day later, asked that the allegations of the first disqualification motion be treated as having been advanced under 4 V.I.C. 284 and 286 as well as 28 U.S.C. 144. The District Judge indicated that he had done so, and we shall treat the two motions together. The main contention of these motions was that the District Judge, Judge Young, had held an ex parte conference with prosecution attorneys.12 Defendants aver that during this conference Judge Young expressed anger at the way in which a Government attorney was cross-examining a witness and asked that another attorney take over the examination.
Federal courts, uniformly have held that an ex parte meeting of the judge with one of the parties is not, of itself, a sufficient indication of bias or prejudice to warrant disqualification. E.g., United States v. Tropiano,
We need not pause long on defendants' third motion. That motion was made orally and thus failed to comply with the sole procedural requirement of 286. The provision's requirement of written objections is not a matter of merely technical importance. If allegations are to be taken as true, there must be some sanction available to deter parties from making patently false allegations, and it has long been believed that such sanctions are strengthened by requiring allegations to be in writing. See Berger v. United States,
The fourth motion for disqualification was made in writing after the trial had ended, the verdicts rendered and sentences imposed. Although in light of the time it was made the motion could not allege facts strictly within 284's ground for disqualification that 'a fair and impartial trial cannot be had before (the judge),' we shall, nonetheless, consider the last disqualification because a motion for new trial was then pending before Judge Young. We cannot read 284 so narrowly as to make a judge's bias irrelevant to his ruling on a new trial for defendants.
The fourth disqualification motion alleged that Judge Young had caused a letter to him from a Baltimore City judge to be published in the St. Croix Avis. This letter, according to defendants, commented unfavorably on the actions taken in another case by two of defendants' counsel. This allegation, like those of the first and second motions, fails to show the clear probability of bias required by sections 284 and 286. The letter itself was merely an expression of another person's opinion about defense counsel. There is no claim that any opinion or statements about defendants' attorneys were made by Judge Young, nor is there any claim that Judge Young acquiesced in or agreed with any statements made in the letter. We cannot infer such agreement with the probability required by Virgin Islands law merely from the publication of the letter, even if caused by Judge Young.13
In addition to the grounds asserted in their motions for disqualification which we hold were properly denied, defendants in their brief discuss numerous points that they claim support their argument that Judge Young should have disqualified himself. Only those matters set forth in writing as the bases fоr disqualification motions are, however, properly before us. See Green v. Murphy,
IV. RULINGS BEFORE AND DURING TRIAL
Juror Torres
Beyond the issues dealt with above, defendants challenge only three of Judge Young's rulings rendered prior to delivery of the jury's verdict. The first of these rulings was that a juror, Mrs. Torres, should not be excused for cause. The cause claimed by defendants to require excusing Mrs. Torres is her relationship to a prosecution witness. Mrs. Torres is the divorced wife of a police officer who testified at trial. They had been divorced for seven years but still saw each other occasionally, although apparently these meetings were infrequent and related only to the care of their child. The child lived with Mrs. Torres. Her husband contributed to the child's support.
In assessing a challenge to a juror's competency, such as that advanced here, the question to be resolved by the trial court is not whether a prior connection exists between the juror and a prospective witness but whether that connection is likely to affect the juror's decision, given the nature of the connection and the witness' relation to the case. See Kelly v. Gulf Oil Corp.,
The court below found that Mrs. Torres' husband would not be a critical witness and that Mrs. Torres would not be influenced by the fact that her husband appeared as a witness for the Government. Contrary to defendants' contentions, it appears clear that Detective Torres, whose testimony is almost entirely cumulative, was not a critical witness, and neither the fact of Mrs. Torres' former marriage to the detective nor her answers on voir dire mandate reversal of the District Judge's ruling. Defendants claim that, as a matter of logic, Mrs. Torres' admission that she receives child-support payments from her ex-husband is sufficient cause to excuse her: any divorcee with some financial dependence on her former husband will, defendants assert, vote for the verdict her ex-husband's testimony would support. Viewed in the light of common experience, which discloses feelings of enmity as often as expressions of financial concern among persons situated similarly to Mrs. Torres, we find defendants' argument unpersuasive and certainly not evidence of a manifest abuse of discretion in this case.
Voluntariness Instruction
Defendants next challenge the instruction of the district court regarding consideration of the defendants' confessions. The portion of the charge to which objection is taken states:
The jury may consider evidence as to the voluntariness of the confessions which have been admitted into evidence, and then give the confessions such weight as you believe they deserve under all the circumstances. If you decide that one or more, or all of these confessions which have been admitted into evidence are entitled to no weight, because you find that they have been obtained as a result of brutalities practiced upon the defendants concerned then you may disregard them totally.
Defendants contend that this charge allows the jury to consider and give weight to a confession it finds to be involuntary. It is clear, at least since Jackson v. Denno,
Having determined before trial and after a full evidentiary hearing that the confessions were voluntary, the District Judge followed the mandate of 3501 in allowing evidence concerning the confessions' voluntariness to be presented to the jury and in leaving to the jury the weight to be given the confession. See 18 U.S.C. 3501(a) (1970). This practice does not share the vice attacked in Jackson of allowing a confession to be introduced, and hence almost assuredly given some weight, although the court did not first decide that it was given voluntarily. Further, the remainder of the charge given below dictates that if the jury found that defendants' confessions were not voluntary, it was required to disregard them. It seems probable from the entirety of the chargе given in this case that the jury employed the standard argued for by defendants, and the portion of the charge attacked, while it may have led the jury to assign a different weight to the confessions, comports with the requirements of 3501 and with those of due process as interpreted by the Supreme Court.
Continuing Deliberations
Finally, defendants contend that the district court improperly instructed the jurors to continue deliberations when they indicated that an impasse had been reached. After ten hours of deliberation, the jury asked whether their verdict needed to be unanimous and how long they had to stay. The Court's response to these queries, not reproduced in the record, is not challenged here. Three days later, the jurors asked to have certain testimony read to them and on August 11, 1973, two days following this request, the jury informed the judge that it was unable to reach a unanimous verdict and asked, 'What happens next?' The jury at that point had deliberated for thirty-nine and one-half hours. The District Judge instructed the jurors that although they need not reach a verdict and could continue to disagree, this was an important case and the jurors should try to reach a verdict if they could. The jurors were instructed to continue deliberations the afternoon of August 11 and, if they desired, the next afternoon. Judge Young stated that further action would be considered on August 13 if no verdict had been rеached. The jury arrived at unanimous verdicts on August 12.
How long jury deliberations should continue is a matter entrusted to the discretion of the trial judge. United States v. Grosso,
Defendants argue, however, that the instruction was coercive in light of the long hours the jury had already deliberated and its two prior communications with the court. The hours deliberated, while long, were not so great as to make any court-ordered continuation of deliberations an abuse of discretion. And the prior communications were not, as defendаnts contend, indications of deadlock. We conclude that defendants have failed to show that the District Judge abused his discretion by ordering the jury to continue deliberations.
V. SENTENCING AND NEW TRIAL
Thirty minutes after the verdicts were returned and the jury polled, Judge Young reconvened court and imposed sentences on the defendants. No pre-sentence report was utilized, but each defendant was asked if he wished to offer anything in mitigation. Defendants contend that the court abused its discretion in failing to utilize presentence reports as authorized by Rule 32 of the Federal Rules of Criminal Procedure. Although many courts have noted the benefits of pre-sentence reports and encouraged their use, e.g., United States v. Warren,
Defendants' burden on appeal, however, is to persuade us not that the District Judge followed a disfavored course but that he abused his discretion. See United States v. Williams,
The final contentions advanced by the defendants concern their motion for a new trial. Defendants claim that the verdicts here were influenced by various improper communications with jurors. This claim, which defendants spell out in considerable detail, formed the basis of their motion for a new trial. Defendants asked for a hearing on their 'jurytampering' allegations at a time when Judge Young was off the island and Chief Judge Christian of the District Court was involved in another trial. Government and defense attorneys consented to the appointment of a municipal judge, Judge Marsh, by Chief Judge Christian to preside over the hearing. The understanding of the parties apparently was that the testimony would be sealed and turned over to Judge Young to make findings and rule on the motion on his return.
Judge Marsh, however, entered findings of his own which Judge Young reviewed by a clearly erroneous standard. These findings are vital to a decision of the new trial motion, and defendants challenge reliance on Judge Marsh's findings as violative of their understanding with Judge Christian. They also argue that the use of findings by Judge Marsh violates federal law. 28 U.S.C. 455 (1970) provides that a judge shall disqualify himself in any case when he has been a material witness. This section is expressly made applicable to proceedings in the District Court of the Virgin Islands. 28 U.S.C. 460 (1970). Because Judge Marsh was a material witness for the Government at the suppression hearing in this case, testifying to matters relevant to the admissibility of defendants' statements (the treatment of defendants, their appearance and statements by them at their presentment before him), defendants contend that Judge Marsh was disqualified from making any findings in this case or otherwise participating in it in his judicial capacity except to the limited extent of defendants' consent.
The Government advances no substantial argument to counter defendants' contention, but instead claims that any error here was harmless. The Government urges us to find that Judge Young really afforded defendants de novo review on each key finding, despite the explicit statement in his opinion denying defendants' motion for a new trial that he was using a 'clearly erroneous' standard to review Judge Marsh's findings. A fair reading of Judge Young's decision does not, however, convince us that a standard was used other than that Judge Young purported to apply. It is clear that Judge Marsh's entry of findings violated 455 of the Judicial Code, and the Government has not satisfied its burden of proving this error harmless. See Chapman v. California,
In addition to the contentions discussed above, defendants advanced several claims for the first time at oral argument. Apart from defendants' tardiness in asserting these claims, findings necessary to provide the factual predicate for their resolution were neither sought nor made below. Further treatment of these claims, therefore, is unnecessary.
The order of the District Court denying defendants' motion for new trial will be vacated and the matter remanded to the District Court for further proceedings in accordance with this opinion.15 The judgment of the District Court will be affirmed subject to the District Court's ruling, on remand, on defendants' motion for new trial.
Notes
The provisions of the Virgin Islands Code defining these offenses are 14 V.I.C. 295 (1964) (assault), 14 V.I.C. 922 (1964) (murder), 14 V.I.C. 1861 (1964) (robbery). Trial was pursuant to an information filed by the United States Attorney for the Virgin Islands, as authorized by 3 of the Organic Act, as revised by the Act of August 23, 1968, Pub.L. 90-496, 11, 82 Stat. 841
The District Court also suppressed weapons found as a result of Joseph's statement
Several such claims that the district court improperly determined witnesses' credibility or incredibility form the basis for defendants' contention that the District Judge erred in refusing to grant their renewed motion to suppress. We reject this contention fоr the reasons given above in sustaining the District Judge's credibility findings
The Federal Rules of Criminal Procedure are made applicable to proceedings in the District Court of the Virgin Islands by Rule 54(a)
While the Federal Rules' provision regarding presentation before a magistrate is 'procedural,' unlike the 'substantive' rule of 3501, the sanction imposed by federal courts for failure to comply with Rule 5(a) is suppression of statements taken during the period of 'unnecessary delay.' Since 3501 regulates suppression of such statements, it should be viewed as amending the meaning of 'unnecessary delay' as used in Rule 5(a), rather than leaving that term's meaning unchanged and simply allowing the Rule to be violated without sanction
In Amador-Gonzalez, reversing defendant's conviction for narcotics possession, the Fifth Circuit held that a statement given by defendant should have been suppressed. The ground for requiring suppression, however, was that the statement was the fruit not of defendant's pretextual arrest for a minor traffic violation but of the search incident to that arrest and for the purpose of which the arrest was made.
The Fourth Amendment to the Constitution is made applicable to the Virgin Islands by 3 of the Organic Act of 1954, as revised by Act of August 23, 1968, Pub.L. 90-496, 11, 82 Stat. 841, and by 48 U.S.C. 1406g (1970)
We note that the Government had the burden of proving by a preponderance of the evidence that Tuitt possessed the requisite authority. United States v. Matlock,
While courts sometimes speak only in terms of the knowledge of the arresting officer, we are in fact concerned with the knowledge possessed, at the time of the search, by both the arresting and authorizing officers. Whiteley v. Warden,
Defendants claim additionally that the search was tainted because the warrants for the two Puerto Ricans were defective. Contrary to defendants' contention, the warrants did not fail to specifically describe the persons to be arrested. Reasonably complete physical descriptions were provided along with the suspects' first names. Failure to give a suspect's last name does not automatically invalidate an arrest warrant. United States v. Ferrone,
We note also that the buildings involved here were small dwellings, not large buildings сontaining numerous apartments or other separate living quarters
Defendants' first disqualification motion alleged other grounds of bias. We have considered these additional allegations and, finding them far short of the type necessary to show clear disqualification, deem it unnecessary to discuss them separately
While we are bound by the factual allegations of defendants' motion, we note that Judge Young denied having caused the letter to be published or having acquiesced in the letter's publication
Defendants also contend that we should appoint a judge other than Judge Young to enter new findings because Judge Young has previously entered findings and, implicitly, will feel bound by them. We find no legal basis for disqualifying Judge Young and cannot assume that on remand Judge Young will not apply proper standards for de novo fact-finding. On remand, Judge Young may decide that he cannot enter appropriate findings without a new hearing and the opportunity to observe witnesses and assess the credibility of those giving conflicting testimony. Nothing in this opinion should be viewed as limiting Judge Young's authority to order a second hearing on defendants' motion for a new trial, nor do we decide that such a hearing is required
Defendants have made four motions to augment the record. The first, second and fourth of these will be denied. The third motion to augment is moot, in light of our decision on defendants' contention regarding new trial