UNITED STATES OF AMERICA, Appellee v. RONALD EDWARD GILLETTE, Appellant
No. 09-2853
United States Court of Appeals for the Third Circuit
December 6, 2013
855
RONALD W. SHARPE, ESQ., United States Attorney, ALPHONSO G. ANDREWS, JR., ESQ., Office of United States Attorney, St. Croix, USVI, Counsel for Appellee.
McKEE, Chief Judge, SCIRICA and VANASKIE, Circuit Judges.
OPINION OF THE COURT
(December 6, 2013)
VANASKIE, Circuit Judge
At the heart of this appeal is whether the District Court of the Virgin Islands retains concurrent jurisdiction over local Virgin Islands crimes when the federal crimes giving rise to that jurisdiction are dismissed midtrial. Ronald Edward Gillette was tried in the District Court for failing to register as a sex offender in violation of federal law, and for numerous counts of aggravated rape and unlawful sexual contact in violation of Virgin Islands law. After the Government rested its case, the District Court dismissed the federal charges but proceeded to verdict on the local charges, with Gillette being found guilty of those charges. Gillette appeals his conviction, contending the District Court lacked jurisdiction over the local crimes. We hold that, under these circumstances, the District Court retained concurrent jurisdiction over the local crimes notwithstanding its dismissal of the federal charges. Gillette also challenges several aspects of his trial and sentence. Finding no error, we will affirm.
I. Background
In the spring of 2007, the U.S. Marshal Service for the District of the Virgin Islands received a tip that Gillette, an unregistered sex offender, might be residing in St. Croix. Believing that Gillette was required to register with local officials as a consequence of his 1983 conviction in New Mexico for Criminal Sexual Penetration and Contributing to the Delinquency of a Minor — crimes for which Gillette served eighteen years of a twenty-seven year sentence in prison — law enforcement authorities followed up on the lead. They discovered that, indeed, Gillette had not registered as a sex offender, and, further, that he was living in St. Croix with a teenage boy. The authorities went to arrest Gillette at his apartment on charges of failure to register as a sex offender, in violation of the Sex Offender Registration and Notification Act (“SORNA“),
On October 15, 2007, a federal grand jury handed down a thirty-count superseding indictment charging Gillette with numerous crimes related to his failure to register as a sex offender and his unlawful sexual contact with M.B. and A.A. Counts 1 and 2 of the indictment alleged violations of the U.S. Code related to Gillette‘s failure to register as a sex offender.1 The remaining counts alleged violations of the Virgin Islands Code.2 Both the federal and local charges were brought in the District Court of the Virgin Islands. The District Court exercised jurisdiction over the local crimes pursuant to
the same act or transaction” that constitutes a violation of federal law.
The Magistrate Judge presided over the initial proceedings against Gillette. After difficulties arose between Gillette and his first court-appointed attorney, Gillette moved for substitution of counsel. The Magistrate Judge granted Gillette‘s motion, and appointed Eszart Wynter to represent Gillette.
Wynter became concerned Gillette might be incompetent to stand trial, and on September 19, 2007, he moved for a psychological evaluation. The Magistrate Judge granted the request, and a forensic psychologist evaluated Gillette. The psychologist concluded Gillette was competent, notwithstanding a diagnosis of Delusional Disorder, because Gillette demonstrated an understanding of the nature and consequences of the charges against him, as well as an ability to assist in his own defense. After receiving the competency report, Gillette did not request a competency hearing, and the Magistrate Judge did not order one sua sponte. Thereafter, neither Gillette, the Magistrate Judge, nor the District Court revisited the issue of Gillette‘s competency.
Before the trial commenced, Gillette filed a motion to dismiss Counts 1 and 2 of the indictment, arguing that he was not obligated to register under either SORNA
required individuals to register with the FBI if they lived in a state that had “not established a minimally sufficient sexual offender registration program,” see
The District Court denied Gillette‘s motion to dismiss Count 2, finding that he was subject to the Wetterling Act‘s registration requirements. As to Count 1, the District Court ordered the Government to produce evidence that Gillette had traveled interstate after SORNA‘s passage. The Government responded that it had “no evidence tending to indicate post 2003 interstate travel of the defendant.” (Joint Appendix [“J.A.“] 0210.) Despite the Government‘s response, the District Court denied Gillette‘s motion as to Count 1 as well, deeming it “premature to find the fact that Gillette has not traveled in interstate commerce after July 27, 2006 without hearing the evidence at trial.” (J.A. 0008.)
The District Court conducted a bench trial on all charges. After the Government rested its case in chief, Gillette moved for a judgment of acquittal pursuant to
The District Court ultimately found Gillette guilty of Counts 3 through 18, 22, 23, 27, and 28. On June 19, 2009, the District Court sentenced Gillette to 15 years imprisonment on Counts 3 through 11 (Counts 12 through 18 merged with Counts 5 through 11), 10 years on Counts 22 and 23, and 1 year on Counts 27 and 28, with the prison term on Counts 27 and 28 to run concurrently to the prison terms on Counts 22 and 23, respectively, and the remainder to run consecutively, for a total
of 155 years. The District Court also imposed a fine of $50,000 and restitution in the amount of $220,000 ($110,000 each for M.B. and A.A.). Gillette filed a timely notice of appeal.
II. Discussion
A. Subject Matter Jurisdiction
We have jurisdiction over this appeal pursuant to
1.
The District Court of the Virgin Islands derives its jurisdiction from
Congress enacted
Three decades later, Congress passed the 1984 amendments to the Revised Organic Act in an effort to “establish[ ] the framework for a dual system of local and federal judicial review.” Parrott, 230 F.3d at 619;
One of the explicit purposes in creating the concurrent jurisdiction statute was “to obviate the need for trying in different courts separate aspects of the same offense or of closely related offenses.” 130 Cong. Rec. S. 23789 (Aug. 10, 1984). To that end,
The District Court of the Virgin Islands shall have concurrent jurisdiction with the courts of the Virgin Islands established by local law over those offenses against the criminal laws of the Virgin Islands, whether felonies or misdemeanors or both, which are of the same or similar character or part of, or based on, the same act or transaction or two or more acts or transactions connected together or constituting part of a common scheme or plan, if such act or transaction or acts or transactions also constitutes or constitute an offense or offenses
against one or more of the statutes over which the District Court of the Virgin Islands has jurisdiction....
Id. Here, the parties do not dispute that Gillette‘s federal and local charges were sufficiently related to trigger concurrent jurisdiction under
2.
Gillette asserts that “if the actions which create liability under Virgin Islands local law do not create criminal liability under federal law, then the District Court lacks concurrent jurisdiction.” (Reply Br. 3.) Gillette‘s argument is based on the text of
Section 1612(c), however, does not condition the exercise of concurrent jurisdiction over local charges on whether the related federal offenses are proven. Indeed, unlike the grant of concurrent jurisdiction to the United States District Court for the District of Columbia in criminal cases, see
local charges and “an offense or offenses against one or more of the statutes over which the District Court of the Virgin Islands has jurisdiction....”
Even if joinder of a federal offense in the instrument charging local crimes was required for exercise of concurrent jurisdiction under
The Court of Appeals for the District of Columbia disagreed, holding that “where federal and local offenses have been properly joined in one indictment and jeopardy has attached, the District Court mayproceed to a determination of the local offenses, regardless of any intervening disposition of the federal counts.” Id. at 1331. In reaching this conclusion, the Shepard court looked to the civil law doctrine of supplemental jurisdiction, which allows federal courts to exercise jurisdiction over claims arising under state law if those claims share “a common nucleus of operative fact” with claims arising under federal law. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). As the Shepard court noted, once a U.S. District Court has properly acquired supplemental jurisdiction, “it may determine all questions arising, irrespective of the disposition of the federal claim.” Shepard, 515 F.2d at 1330; see also Henglein v. Informal Plan for Plant Shutdown Benefits for Salaried Emps., 974 F.2d 391, 398 (3d Cir. 1992) (“[I]t is well settled that, after disposal
Using this doctrine as “a model for the resolution of [its] case,” the Shepard court observed that a goal of supplemental jurisdiction is to promote efficiency and conservation of judicial resources, and that this goal is particularly significant when a district court has received evidence on both claims prior to dismissal of the federal claims. Shepard, 515 F.2d at 1330. Similarly, the court reasoned, Congress‘s goal in passing
We are persuaded by Shepard‘s reasoning. Congress‘s purpose in enacting
3.
Gillette, however, argues that the federal charges should not have made it to trial, asserting that the District Court should have dismissed them pursuant to his pre-trial motion to dismiss. The premise of Gillette‘s argument — that the motion to dismiss the federal charges should have been granted before trial — is unsound.8
Gillette moved to dismiss Count 1 of the indictment on the basis that he had not traveled in interstate commerce after SORNA became effective. Because interstate travel is a necessary element of that statute, see
interstate travel . . . .” (Id. 0210.) Nevertheless, the District Court denied the motion without prejudice, “believ[ing] it to be premature to find the fact that Gillette ha[d] not traveled in interstate commerce after July 27, 2006, without hearing the evidence at trial.” (Id. 0008.)
It is well-established that an indictment “is enough to call for a trial of the charge on the merits” so long as it is facially sufficient. Huet, 665 F.3d at 594-95 (citing United States v. Vitillo, 490 F.3d 314, 320 (3d Cir. 2007)). An indictment is facially sufficient if it:
(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.
Id. at 595 (quoting Vitillo, 490 F.3d at 321). We have explained that, in general, “an indictment will satisfy these requirements where it informs the defendant of the statute he is charged with violating, lists the elements of a violation under the statute, and specifies the time period during which the violations occurred.” Id. Here, the indictment met each of these three requirements: it charged Gillette with failure to register as a sex offender in violation of
Gillette moved to dismiss Count 1 by arguing that the Government could not make out a necessary element of the charge. However, our precedents make clear that a pretrial motion to dismiss pursuant to
Gillette contends that the Government stipulated before trial that he had not traveled in interstate commerce after SORNA became effective. We have suggested in past cases that there may be an exception to the general rule barring a court from addressing sufficiency of the evidence before trial where “there is a stipulated record.” DeLaurentis, 230 F.3d at 659. However, as we noted in Huet, “we have never explicitly held that such an exception exists, much less defined its contours.” Huet, 665 F.3d at 598 n.8. We declined to define such an exception in
Even if Count 1 should have been dismissed before trial, the District Court did not err in denying Gillette‘s pretrial motion as to Count 2. Gillette had argued that the Wetterling Act did not apply to him because the Virgin Islands sex offender registration law,
Although the District Court ultimately dismissed Count 2 midtrial, it did so on an entirely different basis. The District Court dismissed Count 2 for failing to state an offense because the Court concluded that the
Virgin Islands — a territory of the United States — is not a State as contemplated by the Wetterling Act.10 The District Court raised this issue sua sponte, as Gillette did not assert it in either his pretrial motion or Rule 29 motion.11 Thus, the District Court committed no error by denying Gillette‘s pretrial motion to dismiss Count 2 on a basis it found unpersuasive, and Gillette cannot claim error in the District Court‘s failure to dismiss Count 2 before trial on a ground never presented by Gillette.
Finally, Gillette‘s contention that the District Court‘s dismissal of the federal charges means that the District Court lacked subject matter jurisdiction is without merit. Gillette‘s argument conflates the grounds upon which the District Court dismissed Counts 1 and 2 with a lack of subject matter jurisdiction. Neither insufficiency of the evidence nor failure to state an offense means that the charged conduct was outside the authority of the District Court to adjudicate. Thus, the District Court‘s dismissal of Counts 1 for insufficiency of the evidence and Count 2 for failure to state an offense has no bearing on the question of the District Court‘s subject matter jurisdiction over those counts. For this reason, we reject Gillette‘s argument that the District Court could not have obtained concurrent jurisdiction over the local Virgin Islands
B. Competency
Gillette argues that both the Magistrate Judge and the District Court erred by failing to hold a hearing to determine his competency, and that there is a reasonable probability that he was tried while incompetent. We exercise plenary review over a district court‘s interpretation and
application of the standards for determining competency, but we review for clear error a district court‘s decision not to hold a competency hearing. United States v. Leggett, 162 F.3d 237, 241 (3d. Cir. 1998).
Due process prohibits the conviction of a legally incompetent person. Pate v. Robinson, 383 U. S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). A defendant is legally incompetent if the defendant “lacks the capacity to understand the nature and object of the proceedings[,] ... to consult with counsel, and to assist in preparing a defense.” Leggett, 162 F.3d at 241 (quoting Drope v. Missouri, 420 U. S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975)).
The procedure for determining competency is set forth in
(a) Motion to determine competency of defendant.---At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant ... the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.
(b) Psychiatric or psychological examination and report. – Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court....
To determine whether such reasonable cause exists, a court must consider the unique circumstances of each case to decide if the defendant “(1) has the capacity to assist in her or his own defense and (2) comprehends the nature and possible consequences of trial. If either prongis not met, a court has reasonable cause to order a competency hearing.” United States v. Jones, 336 F.3d 245, 256 (3d Cir. 2003). In making this determination, “a district court must consider a number of factors, including ‘evidence of a defendant‘s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial.’ ” Id. (citing Leggett, 162 F.3d at 242).
Gillette‘s attorney made a motion requesting a competency evaluation on September 19, 2007. The Magistrate Judge granted the request, and a forensic psychologist evaluated Gillette. The psychologist concluded Gillette was competent to stand trial, explaining:
While Mr. Gillette has been diagnosed with a thought disorder, Delusional Disorder should not be expected to significantly
compromise his perception or comprehension of reality related to his legal circumstances.... He has demonstrated a rational and factual understanding of the proceedings against him, and sufficient ability to consult with his attorney with a reasonable degree of rational understanding. . . . Mr. Gillette is not currently suffering from a mental disease or defect rendering him mentally incompetent to the extent he is unable to understand the nature and consequences of the proceedings against him or properly assist in his defense.
(J.A. 1621.) After receiving the competency report, Gillette did not request a hearing on competency, and the District Court did not order one.
Gillette now contends it was error not to hold a hearing on competency, asserting that
After carefully examining the record, we hold that neither the Magistrate Judge nor the District Court clearly erred in failing to order a competency hearing. Both judges had before them a report by a qualified medical professional concluding that, although Gillette suffered from Delusional Disorder, he was legally competent. The psychologist‘s conclusion comports with the behavior Gillette exhibited throughout the case, during which Gillette testified that he was employed by the CIA,12 suffered from a traumatic brain injury,13 was currently a semi-professional
him. One note Gillette wrote to his counsel during trial explained “[b]ecause I might testify, she will bring up the 1983 conviction; therefore, you need to study three areas. . . .” (S.A. 298.) Furthermore, Gillette‘s attorney made statements to the court indicating that Gillette was involved in preparing his defense. Requesting that the court order the Bureau of Corrections to provide Gillette with reading glasses and writing materials, trial counsel explained “it gives him the opportunity to research, because this gentleman is not stupid to me, the things them (sic) he‘s telling me, but he wants to research and verify certain things for himself.” (S.A. 280-81.) Taken as a whole, the record does not establish reasonable cause to believe Gillette was incompetent. Therefore, we find that the District Court committed no error in failing to hold a competency hearing.
C. Counsel‘s Motions to Withdraw
Gillette next argues the Magistrate Judge and District Court erred by denying his trial counsel‘s requests for withdrawal in violation of his Sixth Amendment right to counsel. This argument is unavailing.
The
As an initial matter, we note that Gillette appeals the District Court‘s denial of his attorney‘s motions to withdraw, not the denial of any motion for substitution filed by Gillette himself. Therefore, the case law Gillette cites does not neatly apply here. Although Wynter testified at the February4, 2008 hearing that Gillette had asked him to withdraw, it is not clear that the remaining motions were filed at Gillette‘s request. However, even if we construe Wynter‘s motions to withdraw as requests by Gillette for substitution of
Both the Magistrate Judge and the District Court made extensive inquiries into Wynter‘s pretrial motions to withdraw. The Magistrate Judge held a hearing after Wynter‘s first motion, during which Gillette himself testified at length. In denying the motion for withdrawal, the Magistrate Judge expressed concern that Gillette was seeking to “manipulate the Court” and “frustrate the process,” by alleging that his lawyers were incompetent. (S.A. 264-65.) He also observed that Gillette had already successfully received substitute counsel once. Accordingly, he denied Wynter‘s motion for withdrawal. On March 17, 2008, the District Court presided over a subsequent withdrawal hearing, where Gillette again testified at length. Gillette‘s testimony at that hearing was equivocal, and at one point he stated that he “would have no objection” to further representation by Wynter provided he filed certain motions. (S.A. 337.)
While it was clear at both hearings that the relationship between Gillette and Wynter was not without friction, it was also clear that the relationship had not suffered a complete breakdown requiring substitution of counsel. In addition, Gillette had already substituted counsel once in the case, and both the Magistrate Judge and the District Court had reason to find that substitution would unduly delay the proceedings. Accordingly, we conclude that there was no abuse of discretion in denying Wynter‘s motions to withdraw.
D. Reasonableness of Gillette‘s Sentence
Gillette next argues his sentence was substantively unreasonable because the District Court “effectively sentenc[ed him] to death,” without properly considering his age and history of mental illness. (Appellant‘s Br. 51.) We are not persuaded.
Our review of the substantive reasonableness of a district court‘s sentence is highly deferential, and we will affirm “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” United States v.Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). Further, because Gillette did not object to the imposition of consecutive sentences at sentencing, “we review the matter only to assure that ‘plain error’ was not committed.” United States v. Pollen, 978 F.2d 78, 88 (3d Cir. 1992). Under either standard, we find the District Court‘s sentence to be substantively reasonable.
First, Gillette was convicted of several counts of both Aggravated Rape in the First Degree and Aggravated Rape in the Second Degree,
Second, we agree with the District Court that its sentence served several purposes, including protecting the public and
The acts of this defendant are morally repulsive. He has in a very heinous and devious fashion violated two young boys in this territory. This is Mr. Gillette‘s second conviction involving sexually violating minors. He served about twenty-seven years of incarceration,17 and again finds himself before us, this court system, for substantially the same offenses. The sentence which I am about to impose will certainly reflect how serious these offenses are. I hope they provide a respect for the law, and it‘s a just punishment for the offenses for which he has been found guilty, and hope that they would provide deterrence from further crimes. And also protect the public from further crimes of this type.
(J.A. 1556-57.) As the District Court noted, Gillette was a repeat sexual offender who previously spent eighteen years in prison for his unlawful
sexual contact with a minor in New Mexico only to move to the Virgin Islands and victimize two other children. Given this history, the District Court reasonably determined that Gillette posed a continuing danger to the public. Additionally, the District Court‘s sentence properly reflects the seriousness and extent of the harm Gillette‘s crimes caused to his victims.
Gillette contends the District Court failed to adequately explain its sentence, and erred by failing to discuss or account for Gillette‘s age and history of mental illness. We disagree. As set forth above, the District Court adequately explained the reasons for its sentence, and we find the record abundantly supports the sentence. Therefore, we will affirm the substantive reasonableness of the District Court‘s sentence.
E. Restitution
Finally, Gillette challenges the District Court‘s restitution order. He argues that he should not have been ordered to pay restitution because he was not convicted of a property crime; the expenses for which restitution was imposed are speculative; there is no record of his ability to pay restitution; and a reasonable payment schedule was not established. We review the District Court‘s imposition of restitution for plain error because Gillette did not challenge it at sentencing. United States v. Hawes, 523 F.3d 245, 255 (3d Cir. 2008).
The District Court ordered restitution pursuant to
A victim has a right to receive restitution for expenses or property loss incurred as a result of the crime. The judge shall order restitution at every sentencing for a crime against person or property... unless the court finds a substantial and compelling reason not to order restitution. . . .
Gillette also argues the District Court should have conducted an inquiry into his ability to pay and established a reasonable payment schedule as contemplated by
III.
For the foregoing reasons, we will affirm the judgment and sentence of the District Court.
880
Notes
(a) In general.—Whoever
- is required to register under the Sex Offender Registration and Notification Act;
- (A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or
- (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
- knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;
In addition to its jurisdiction as a United States district court and any other jurisdiction conferred on it by law, the United States District Court for the District of Columbia has jurisdiction of the following:
...
(3) Any offense under any law applicable exclusively to the District of Columbia which offense is joined in the same indictment with any Federal offense. (Emphasis added).
[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.... (Emphasis added).
Thus, exercise of jurisdiction over claims or charges otherwise outside the authority of the district courts is conditioned upon the existence of a claim or charge over which the federal court has original jurisdiction. Section 1612(c) is not similarly phrased.
(J.A. 1104-05.)I do not have an issue with the fact that the statute applies to the Virgin Islands by definition, and might have been intended by statute.
If I give — and if the Court finds that I‘m wrong, I will be happy to accept that, okay, so I‘m not conceding it, but as I said, I do not have a problem with that interpretation....
(J.A. 1237-38.)For example, we all at some time wake up in the morning. We don‘t know if it‘s a, say a Tuesday or a Wednesday. Well, not often, but at times, I will wake up and not even know the day. I wouldn‘t know Sunday, Monday, Tuesday, Wednesday, Thursday, Friday, Saturday. And I will have to take and go out to the computer and look at the computer to jog my memory.