UNITED STATES OF AMERICA v. ROBERT DEFREITAS
No. 20-3115
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
March 21, 2022
PRECEDENTIAL. Argued December 8, 2021. Before: McKEE, RESTREPO, and SMITH Circuit Judges.
On Appeal from the District Court of the Virgin Islands
District Court No. 3-19-cr-00010-001
District Judge: Honorable Robert A. Molloy
Richard F. Della Fera [Argued]
Suite 1710
500 East Broward Boulevard
Fort Lauderdale, FL 33394
Counsel for Appellant
Nathan Brooks
Adam Sleeper [Argued]
Office of United States Attorney
5500 Veterans Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802
Counsel for Appellee
SMITH, Circuit Judge
Robert Defreitas, an enforcement officer for the United States Virgin Islands (U.S.V.I.) Department of Licensing and Consumer Affairs, asked for sexual favors in exchange for not reporting a female
Defreitas appeals his convictions. He asks us to vacate the District Court‘s judgment, or in the alternative, to certify several questions to the Supreme Court of the Virgin Islands. We decline the invitation to certify any questions, but we take this opportunity to identify several considerations that should guide a court‘s decision of whether to certify questions to a state‘s highest court. Additionally, we hold that the evidence presented was insufficient to prove that Defreitas engaged in an “official act” under
I. BACKGROUND
Defreitas was employed by the Virgin Islands Government as an officer for the Department of Licensing and Consumer Affairs. The Department engages in a variety of consumer protection measures, including ensuring compliance with licensure requirements for workers such as barbers and manicurists. See generally
In August of 2018, Defreitas and his on-duty partner, Tiffany Grosvenor Stevens, visited Deluxe Nail Spa in St. Thomas. There, Defreitas met Lissette Yahaira Cuevas Herrera. Defreitas was wearing a white shirt with the word “Police” emblazoned on the front. After he asked Herrera for her “work papers,” she walked to the back of the store. Defreitas followed her, and Herrera then admitted that she did not have a manicurist license and was only helping in the salon temporarily due to some worker absences. Herrera also told Defreitas that she was from the Dominican Republic and did not enter the Virgin Islands through a legal port of entry. When Defreitas followed up by asking for a passport, Herrera admitted that she did not have one.
Defreitas responded by telling Herrera, “we can fix this.” Supp. App. at 46. He then touched Herrera on the shoulder and said: “You have a pretty body. I think you have a way of paying.” Supp. App. at 54. He asked for her phone number, but Herrera responded by intentionally giving Defreitas an incorrect number. Defreitas tested the phone number and quickly realized it was not correct. He then asked Herrera to give him her actual number, and she did so.
After Defreitas left the salon, Herrera downloaded a call-recording application on her phone. Later that day, when Defreitas called Herrera, she recorded the call—and the recording of that call was eventually played for the jury at trial. The call clearly revealed Defreitas to be soliciting sexual favors in exchange for his not reporting Herrera for a legal violation.1 After the phone call, Herrera went to the police.
employees from the salon, as did an expert from AT&T Inc., and Defreitas‘s partner, Stevens. Of particular import on appeal is Stevens‘s testimony. When asked by the prosecutor to describe department practice for an officer who encountered someone the officer learned had entered the country illegally, she responded that “[t]he enforcement officer would have to make contact in order to have communication via report to his immediate supervisor. Then the immediate supervisor would make contact with the [sic] immigration.” Supp. App. at 114.
At trial, Defreitas did not contest that he asked for sex in exchange for not reporting Herrera.
At the close of the Government‘s evidence, Defreitas moved for acquittal on three grounds relevant to this appeal.2 First, Defreitas argued that he did not commit an “official act” because he did not actually do anything; rather, he refused to do something. Second, he asserted that sexual favors are not an “emolument, gratuity, or reward” under Virgin Islands law. Third, he claimed that
The District Court instructed the jury that before they could find Defreitas guilty of bribery under
Supp. App. at 189. The Court did not provide the jury with a definition of “official act,” nor did either party even attempt to provide a definition of “official act” to the Court prior to its jury charge.
The jury returned a verdict convicting Defreitas of bribery pursuant to
The District Court had jurisdiction pursuant to
III. CERTIFICATION
In addition to challenging his convictions on the merits, Defreitas asks us to certify questions on the interpretation of
While our rules provide for certification, we have not identified what considerations our court should take into
account when deciding if certification is appropriate. Clearly, it is inappropriate to certify any state-law question solely because its outcome may control a case; federal courts are often required to make faithful predictions of how a state supreme court will rule. See City of Houston, Tex. v. Hill, 482 U.S. 451, 470-71 (1987); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). But we must always be mindful of the purpose behind certification: that it “does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism.” Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). Thus, when faced with the question, a court should consider several factors which will counsel whether certification is appropriate.
First, the relevant question‘s eventual resolution should be unclear and control an issue in the case. Certifying a question where the answer is clear is inappropriate and unnecessary. See City of Houston, 482 U.S. at 470-71. But, as we have observed, certifying a question is appropriate if we determine that we cannot predict how a state court would rule. Oberdorf v. Amazon.com Inc., 818 F. App‘x 138, 143 (3d Cir. 2020) (en banc) (certifying a question when we were “unable to predict how the Pennsylvania Supreme Court would rule in this dispute“). Similarly, an immaterial question should not be certified. These first-order considerations will often be dispositive. In fact, our local rules require that the question “control the outcome of a case,” 3d Cir. L.A.R. Misc. 110.1 (2011), and jurisdictions within our circuit stress the importance of uncertainty in the determination of whether to accept a certified question. See, e.g., N.J. CT. R. 2:12A-1 (requiring “no
certification is appropriate including questions of first impression and questions where there are conflicting decisions among state trial courts); PA. R.A.P. 3341 (same).
Second, courts should consider what we will broadly refer to as the “importance” of the question. These “importance” factors demonstrate a state‘s interest in the interpretation of its own law as well as our interest in supporting cooperative judicial federalism. For example, open questions of state constitutional law should nearly always be left to the state courts. Blue Cross & Blue Shield of Ala., Inc. v. Nielsen, 116 F.3d 1406, 1413 (11th Cir. 1997) (“It is . . . imperative that any state constitutional law issues in this case be decided by the state supreme court.“). Likewise, a state‘s high court is the most appropriate forum to weigh competing state public policy interests. See, e.g., Chauca v. Abraham, 841 F.3d 86, 93 (2d Cir. 2017) (“[I]mportant state issues require value judgments and important public policy choices that the New York Court of Appeals is better situated than we to make.” (quoting Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 74 (2d Cir. 2012))) (internal quotation marks omitted); Schuchart v. La Taberna Del Alabardero, Inc., 365 F.3d 33, 37 (D.C. Cir. 2004). Further, issues that are likely to recur or which could lead to forum shopping should be certified for an immediate and dispositive resolution. Schuchart, 365 F.3d at 37; In re Badger Lines, 140 F.3d 691, 698 (7th Cir. 1998).
Finally, courts should consider judicial economy. Our consideration of judicial economy encompasses the actions of the parties as well as the cost effectiveness of certification. And while such concerns may not be as weighty as federalism
concerns, they are necessary to ensure that certification remains an efficient method to resolve disputes instead of a delay tactic in the hands of sophisticated litigants. For example, a court should view with skepticism a party‘s request for certification when that party had originally invoked federal jurisdiction. Powell v. U.S. Fid. & Guar. Co., 88 F.3d 271, 273 n.3 (4th Cir. 1996); 17A VIKRAM D. AMAR, CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 4248 (3d ed. 2021). Another factor to consider is the timeliness of a request for certification. See Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1892 n.7 (2018) (declining to certify when request was made “very late in the day“). After all, certification is not an opportunity for a do-over. Requests to certify made by a party only after an adverse decision compel a court to inquire of the party: Why now? State Auto Prop. & Cas. Ins. Co. v. Hagris, 785 F.3d 189, 194 (6th Cir. 2015) (“[C]ertification is disfavored when it is sought only after the district court has entered an adverse judgment.“); Thompson v. Paul, 547 F.3d 1055, 1065 (9th Cir. 2008) (“A party should not be allowed ‘a second chance at victory’ through certification by the appeals court after an adverse district court ruling.” (quoting In re Complaint of McLinn, 744 F.2d 677, 681 (9th Cir. 1984))).5
We do not suggest that the foregoing list is exhaustive, nor that any one of the
With all of these factors in mind, we confront the primary legal question presented: whether Defreitas‘s decision to not report Herrera for an immigration violation was an “official act” as used in
Further, we know of no case in which the Virgin Islands Supreme Court has addressed the “official act” question, but we find sufficient guidance from the federal courts.7 As we explain below, “official act” is a term with common law roots, and federal precedent interpreting “official act” serves as a
useful guide when interpreting
But because our resolution of the question will be determinative of this case, we now consider its importance. This case does not call on us to interpret an issue of state constitutional law,8 nor does the issue seem to be one that will commonly recur. In fact, the parties present no precedent from the local courts of the Virgin Islands that has interpreted this statute. Such silence in the Virgin Islands’ jurisprudence suggests that the statute is not commonly utilized by prosecutors there. In addition, as a criminal statute, our resolving this question carries little risk of forum shopping by litigants. And while there are some policy interests at play, such as providing sufficient notice to defendants, we see no question of state public policy which would be better resolved by the Supreme Court of the Virgin Islands.
Finally, the timing of the request to certify gives us pause. At oral argument, counsel for Defreitas admitted that the request to certify could have been made in a pretrial motion. Oral Arg. Tr. at 12. It was not. Indeed, counsel did not raise
the issue of certification during his pre-verdict motion for acquittal even though in that same motion he directly challenged the interpretation of “official act” as used in
In short, we have a question the resolution of which is uncertain. Yet as a federal court, we are institutionally well-situated to resolve it and to provide a well-informed interpretation of
IV. “OFFICIAL ACT”
Defreitas argues that the evidence presented was insufficient to prove that he engaged in an “official act” under
As with any question of statutory interpretation, we begin by examining the text. In re Adoption of L.O.F., 62 V.I. 655, 661 (2015). To be convicted for soliciting a bribe under this statute, the prosecution must prove that an individual is (1) “a judicial or other public officer or employee;” (2) who “asks or receives an emolument, gratuity, or reward, or any promise thereof, except such as may be authorized by law;” (3) “for doing any official act.”
refraining from reporting Herrera was an “official act” under
“Official act” is a term of art with its roots in the common law. See generally United States v. Birdsall, 233 U.S. 223, 230 (1914); State v. Ellis, 33 N.J.L. 102, 106-07 (1868); James Lindgren, The Elusive Distinction Between Bribery and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. REV. 2355, 2373 (1988). Thus, we must assume that the legislators who chose to use the term “official act” meant to adopt its meaning as derived from common law. Morissette v. United States, 342 U.S. 246, 263 (1952). We expect that the interpretation of “official act” will remain consistent even when it is used in other federal or state statutes.11
The Supreme Court has defined an “official act” in McDonnell as “a decision or action on a ‘question, matter, cause, suit or controversy,‘” and that “question, matter, cause, suit or controversy [must] be something specific and focused that is ‘pending’ or ‘may by law be brought’ before a public official.” McDonnell, 136 S. Ct. at 2371-72. The Court11 cont
further clarified that the terms “pending” or “may by law be brought”
suggest something that is relatively circumscribed—the kind of thing that can be put on an agenda, tracked for progress, and then checked off as complete. In particular, “may by law be brought” conveys something within the specific duties of an official‘s position—the function conferred by the authority of his office.
Id. at 2369. In other words, an “official act” must be a part of an official‘s legal duties.
The conclusion that an official act must be an action encompassed by an official‘s legal duties is confirmed by our Court‘s analysis in United States v. Repak, 852 F.3d 230, 254 (3d Cir. 2017). In that case the defendant, a director of a local government redevelopment agency tasked with the responsibility of awarding contracts, accepted free services from corporations. In return, he continued to award the corporations new contracts. Id. at 238. When the defendant argued that he did not commit an “official act,” we noted that the agency he directed was “undisputedly tasked with the responsibility of awarding contracts,” and as a result, his decision to influence the awarding of contracts was clearly an “official act.” Id. at 254. Thus, our precedent demonstrates that we look to both the official powers of the relevant agency and the defendant‘s role in that agency to determine if the actions alleged were “something within the specific duties
an official‘s position.” Id. (quoting McDonnell, 136 S. Ct. at 2369).12
The Government argues that Defreitas‘s duty to report immigration violations derives from
enforce all laws relating to the advertising, offering for sale and the sale of commodities, goods, wares and services; receive and evaluate complaints and initiate its own investigations
relating to these matters and take appropriate action, including referral to a federal or territorial department or agency.
The Government concerns itself only with the latter half of that subsection, “including referral to a federal . . . department or agency.” That is far too narrow a view of this clause. “[T]ake appropriate action,” necessarily refers back to the first part of the subsection, “laws relating to the advertising, offering for sale, and the sale of commodities, goods, wares and services.” So a plain reading of the text leads us to conclude that an officer has a duty to act only when required by a “law[] relating to” consumer protection. See One St. Peter, LLC v. Bd. of Land Appeals, 67 V.I. 920, 924 (2017) (“[W]e read the words and phrases of the statute in their context, and construe them according to the common and approved usage of the English language.“).
Our reading comports with the rest of the Section, which requires the Department to protect the rights of consumers by recommending legislation, promoting quality standards, and representing consumers before private or public boards.
rest of
The Government then takes a fallback position: It argues that custom is sufficient to establish an agency‘s duties. To reach this conclusion, the Government relies on Birdsall, yet Birdsall cannot bear the weight the Government places upon it. Birdsall was an attorney who represented individuals accused of illegally selling alcohol to American Indians. 233 U.S. at 227-28. In an attempt to obtain a recommendation of clemency for his
The Court concluded that “[e]very action that is within the range of official duty comes within the purview of these sections.” Id. at 230 (emphasis added). But it provided a gloss on that conclusion, stating:
To constitute it official action, it was not necessary that it should be prescribed by statute; it was sufficient that it was governed by a lawful requirement of the Department under whose
authority the officer was acting. Nor was it necessary that the requirement should be prescribed by a written rule or regulation. It might also be found in an established usage which constituted the common law of the Department and fixed the duties of those engaged in its activities. In numerous instances, duties not completely defined by written rules are clearly established by settled practice, and action taken in the course of their performance must be regarded as within the provisions of the above-mentioned statutes against bribery.
Id. at 230-31 (citations omitted). In other words, custom may inform the understanding of official duties when those “duties [are] not completely defined by written rules,” but custom alone cannot establish what constitutes an “official act.” Id. at 231 (emphasis added). In Birdsall, advising on clemency was “within the range of [the relevant official‘s] official duty,” so the Court reversed the dismissal of his indictment and remanded for further prosecution.
Here, even assuming that the testimony of Defreitas‘s partner established a custom, that evidence was insufficient to prove that Defreitas‘s decision not to report Herrera was an “official act.” There existed no internal regulation, guideline, or statute that advised the Department to engage in any activity related to the policing of immigration laws. No evidence of any such authority was provided to the jury, and therefore, no reasonable juror could have found that Defreitas committed an “official act.” The evidence here was insufficient to prove that
Defreitas violated
V. CONCLUSION
As the evidence was insufficient to prove bribery under
Notes
Even a brief excerpt from the call demonstrates that Defreitas asked for sexual favors:
Defreitas (D): You know . . . you are in trouble . . . You would have been in trouble if I-I didn‘t save you today.
Herrera (H): No, I know that. That is why I got out.
D: Okay, so, you know you owe me one?
D: So, I am going to call you a little bit later . . . and we could see if we could meet up, okay?
H: Okay, no problem . . .
D: . . . Wait do you live with somebody?
H: No, no, no.
D: Do you live by yourself?
H: No I live with my son. . . .
D: Okay. So, you don‘t live with a man or anything?
H: Yeah, I-I-I have a husband.
D: Oh, so if I ask you for something then you probably cannot give it to me because you have a husband.
H: Oh. I don‘t know. I-I don‘t know. I just don‘t want any problems.
D: Well, listen. He doesn‘t have to know and I am not going to tell anybody.
Appellant App. at 15-18.
Defreitas asked to certify the following four questions:
(1) What is an “Official Act” that may be punished as a crime under
Supp. App. at 299.