Government of the Virgin Islands v. Hodge

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
2-26-2004
Govt of VI v. Hodge
Precedential or Non-Precedential: Precedential
Docket No. 02-1136
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PRECEDENTIAL _______________________
IN THE UNITED STATES NO. 02-1222
COURT OF APPEALS
FOR THE THIRD CIRCUIT GOVERNMENT OF THE VIRGIN
_______________ ISLANDS
NO. 02-1136 v.
GOVERNMENT OF THE VIRGIN ELADIO CAMACHO,
ISLANDS Appellant
_________________________________
v.
On Appeal From The District Court Of
SELVIN HODGE, The Virgin Islands, Appellate Division
Appellant (D.C. Nos. 01-cr-00256-2, 01-cr-00256-
1, 01-cr-00256-4, 01-cr-00256-3)
______________________ Hon. Raymond L. Finch, Chief Judge
Hon. Thomas K. Moore, District Judge
NO. 02-1137 Hon. Darryl Dean Donohue,
Territorial Judge
GOVERNMENT OF THE VIRGIN
ISLANDS _________________________________
v. Argued December 8, 2003
OTTICE BRYAN, Before: NYGAARD, BECKER, and
Appellant STAPLETON, Circuit Judges.
______________________ (Filed February 26, 2004)
NO. 02-1221
HAROLD W.L. WILLOCKS
GOVERNMENT OF THE VIRGIN DEBRA SMITH-WATLINGTON
ISLANDS (Argued)
LESLIE L. PAYTON
v. Territorial Public Defender
P.O. Box 6040
KIRSTEN GREENAWAY, St. Thomas, USVI 00804
Appellant
Attorneys for Appellant Selvin Hodge
1
GEORGE H. HODGE, JR. BECKER, Circuit Judge
P.O. Box 803 This is an appeal by four
St. Thomas, USVI 00804 codefendants, Selvin Hodge, Ottice Bryan,
Kirsten Greenaway, and Eladio Camacho,
Attorney for Appellant Ottice Bryan of an order of the District Court of the
Virgin Islands, Appellate Division in an
BRUCE STREIBICH interlocutory appeal brought by the
Law Offices of Bruce W. Steibich Government of the Virgin Islands from the
No. 21A Berge Gade Territorial Court of the Virgin Islands.
P.O. Box 302009-VDS Seeking reversal, pursuant to 4 V.I. Code
St. Thomas, USVI 00803-2009 § 39(a)(1), the Government sought review
of the Territorial Court’s pretrial order
Attorney for Appellant Kirsten redacting the confessions that the
Greenaway Government planned to use against the
defendants. The Appellate Division held
STEPHEN A. BRUSCH (Argued) that the Territorial Court had erred in
The Brusch Law Firm redacting the confessions more stringently
28-29 Norre Gade, 2nd Floor than required by the Supreme Court’s
P.O. Box 988 holdings in Bruton v. United States, 391
St. Thomas, USVI 00804 U.S. 123 (1968), Richardson v. Marsh,
481 U.S. 200 (1987), and Gray v.
Attorney for Appellant Eladio Camacho Maryland, 523 U.S. 185 (1998).
Accordingly, the Appellate Division
IVER A. STRIDIRON vacated the Territorial Court’s order and
ELLIOTT M. DAVIS remanded for that Court to reconsider the
DOUGLAS J. JUERGENS (Argued) redactions in the first instance.
Department of Justice
Having lost before the Appellate
48B-50C Kronprindsens Gade
Division, the defendants seek review in
GERS Building, 2nd Floor
this Court, arguing that the Appellate
St. Thomast, USVI 00802
Division either (1) lacked jurisdiction over
the Government’s interlocutory appeal
Attorneys for Appellee, Government of
(and hence that the Territorial Court’s
the Virgin Islands
order should stand for now), or (2) erred
on the merits in vacating the Territorial
______________________
Court’s order. This being an interlocutory
appeal from an order entered in an
OPINION
interlocutory appeal, the threshold issue is
______________________
our own appellate jurisdiction. We
conclude that we have appellate
jurisdiction over the Appellate Division’s
2
determination of its own jurisdiction under District Court come to this Court under the
the collateral order doctrine. We also familiar provisions of 28 U.S.C. §§ 1291-
conclude that we lack appellate 1292 and other special-purpose statutes.
jurisdiction to review the merits of the Until the Virgin Islands establishes a local
Appellate Division’s ruling. Most notably, intermediate appellate tribunal, appeals
we decide that a certification by the from the Territorial Court go to a three-
Government that the Territorial Court’s judge panel known as the District Court of
grant of a pretrial suppression motion the Virgin Islands, Appellate Division (the
deprives the Government of “substantial “Appellate Division”). 1 See 48 U.S.C. §
proof of the charge pending against the 1613a(a). Though established by federal
defendant” satisfies the requirements of 4 law, the Appellate Division exercises
V.I. Code § 39(a)(1), without a separate “such appellate jurisdiction over the courts
substantiality determination by the court. of the Virgin Islands established by local
Accordingly, in this case we hold that the law [i.e., the Territorial Court] to the
Appellate Division had jurisdiction under extent now or hereafter prescribed by local
4 V.I. Code § 39(a)(1) to hear the law.” Id. In other words, the Virgin
Gov ernmen t’s interlocutory appeal, Islands Legislature decides (subject to
dismiss the appeals in all other respects, some reservations in 48 U.S.C. § 1613a(a))
and remand to the Territorial Court for who can appeal to the Appellate Division,
further proceedings in accordance with the and when they can appeal. At issue in this
Appellate Division’s opinion. case is a provision regarding interlocutory
appeals by the Government of certain
pretrial orders in criminal cases, 4 V.I.
I. Procedural History Code § 39(a)(1). Appeals from decisions
of the Appellate Division may be taken to
A. The Virgin Islands Court
this Court under 48 U.S.C. § 1613a(c).
System
B. The Proceedings in the
We have recently described the
Territorial Court and Before
structure of the court system in the Virgin
the Appellate Division
Islands in some detail, see Gov’t of V.I. v.
Rivera, 333 F.3d 143, 145-46 (3d Cir. In November 1999, Duvalier
2003), cert. denied, 72 U.S.L.W. 3373 Basquin was lured to a lonely road in the
(U.S. Jan. 26, 2004) (No. 03-736), and Bolongo Bay area of St. Thomas. There,
need not recount it here, though some he was robbed and murdered. Following
details bear repeating. There are two trial
courts: The Territorial Court is comparable 1
to a state court of general jurisdiction, see The three-judge panel is composed of
4 V.I. Code § 76, while the District Court the two Judges of the District Court of
of the Virgin Islands has “the jurisdiction the Virgin Islands, and a judge of the
of a District Court of the United States,” Territorial Court designated by the Chief
48 U.S.C. § 1612(a). Appeals from the Judge of the District Court. See 48
U.S.C. § 1613a(b).
3
an investigation by the Virgin Islands the Territorial Court, the Government
Police, the Government of the Virgin offered proposed redactions of the
Islands (the “Government”) charged statements, but after lengthy argument,
Selvin Hodge, Ottice Bryan, Kirsten the Territorial Court concluded that the
Greenaway, and Eladio Camacho Government’s proposal did not satisfy
(collectively, the “defendants”) with Bruton and its progeny. Ruling from the
robbery, felony murder, and conspiracy bench, the Territorial Court described the
to commit murder. During the further redactions that would be required
investigation, Hodge and Camacho gave to admit the confessions.3
statements inculpating themselves and
Title 4, section 39(a)(1) of the
the other defendants in Basquin’s
Virgin Islands Code provides:
murder. Greenaway gave a statement
exculpating herself, but potentially The United States or the
inculpating the other defendants. Bryan Government of the Virgin
gave no statement. Islands may appeal an
order, entered before the
The Government sought to use
trial of a person charged
these statements at trial. However, since
with a criminal offense
the Government proposed to try the
under the laws of the
defendants jointly, and none of the
Virgin Islands, which
defendants who offered statements would
directs the return of seized
testify, the statements would have to be
property, suppresses
redacted—or even rewritten—to preserve
evidence, or otherwise
the defendants’ Sixth Amendment
denies the prosecutor the
Confrontation Clause rights. See Bruton
use of evidence at trial, if
v. United States, 391 U.S. 123 (1968),
the United States Attorney
Richardson v. Marsh, 481 U.S. 200or the Attorney General
(1987), and Gray v. Maryland, 523 U.S.
conducting the prosecution
185 (1998). 2 At a pretrial hearing before
for such violation certifies
to the Judge who granted
2
The issue in cases raising a Bruton
issue is that the prosecution would like to them—in this situation, the nontestifying
introduce confessions by nontestifying defendant who made the confession.
defendants in joint trials. While such
3
statements may of course be admitted In its opinion, the Appellate Division
against the defendants who made them, summarized the Territorial Court’s order
admitting such statements in a joint trial from the bench as requiring “that any
would deprive any codefendants sentences [in the confessions] containing
implicated in those statements of their direct references to the defendants,
right under the Confrontation Clause to nicknames, physical descriptions, and . . .
cross-examine witnesses against substituted pronouns be omitted.”
4
such motion that the appeal Court, arguing that either the Appellate
is not taken for purpose of Division did not have jurisdiction under
delay and the evidence is a 4 V.I. Code § 39(a)(1) to review the
substantial proof of the Territorial Court’s order, or else that the
charge pending against the Appellate Division erred on the merits in
defendant. holding that the Territorial Court went
further than required by Bruton and its
The Government, relying on 4
progeny. Under the former disposition,
V.I. Code § 39(a)(1), noticed its appeal
we would simply reinstate the Territorial
to the Appellate Division and on the
Court’s order. Under the latter
same day provided the certification that
disposition, we would confront the merits
the statute requires. On appeal, the
of the defendants’ Bruton argument.
Appellate Division opined that the
Government’s proposed redaction was
insufficient to protect the defendants’
II. This Court’s Appellate Jurisdiction
Confrontation Clause rights, but
concluded that the Territorial Court had At the threshold, we must
directed more redaction than necessary. examine whether we have appellate
It offered some illustrations of how, on jurisdiction over one, both, or neither of
remand, the Territorial Court could solve the questions that the defendants present.
the “Goldilocks problem” of crafting See Gov’t of V.I. v. Marsham, 293 F.3d
altered confessions that were not too 114, 116 (3d Cir. 2002) (quoting
lightly redacted, not too heavily redacted, Collinsgru v. Palmyra Bd. of Educ., 161
but just right. F.3d 225, 229 (3d Cir. 1998) (“we have
an independent obligation to examine our
The defendants were disappointed
jurisdiction to hear this appeal.”)). Three
in the outcome before the Appellate
of the four defendants invoke this
Division; they would have much
Court’s jurisdiction under 28 U.S.C. §
preferred the redactions ordered by the
1291. Although some of our cases are
Territorial Court. 4 They appealed to this
imprecise about the statutory source of
our jurisdiction over the Appellate
4
It appears that the Territorial Court’s Division, we take this opportunity to
order would have eviscerated the clarify that, as a technical matter, it is 48
confessions to the point that they might U.S.C. § 1613a(c), and not 28 U.S.C. §
have lost all value to the prosecution. 1291, that confers jurisdiction on this
We observe this only to emphasize the Court over appeals from the Appellate
high stakes of this litigation; because of Division. However, the distinction is
our holding regarding our own appellate only technical—our cases have
jurisdiction, we of course express no uniformly held that 48 U.S.C. § 1613a(c)
view as to the correctness of the has the same requirements for
Territorial Court’s or Appellate appealability as 28 U.S.C. § 1291. See,
Division’s Bruton rulings. e.g., Rivera, 333 F.3d at 147; Ortiz v.
5
Dodge, 126 F.3d 545, 547 (3d Cir. 1997). 1613a(c). In re Alison, 837 F.2d 619 (3d
Cir. 1988), considered our appellate
Turning to the substance of our
jurisdiction over an order of the
appellate jurisdiction, we consider
Appellate Division reversing the
whether we have jurisdiction over some
Territorial Court’s grant of a Fed. R. Civ.
or all of this case as a “final decision” of
P. 12(b)(6) motion to dismiss. Since the
the Appellate Division within the
Appellate Division had reversed, it
meaning of 48 U.S.C. § 1613a(c). W e
remanded the case to the Territorial
conclude that we do not in the usual
Court for further proceedings. W e
sense. We then consider whether we
concluded that such a remand was not a
have appellate jurisdiction over some or
final decision under § 1613a(c). Remand
all of this case under the collateral order
orders are not generally appealable
doctrine. We conclude that we do have
because they are not final decisions
jurisdiction under the collateral order
within the meaning of 28 U.S.C. § 1291doctrine to review the Appellate
and 48 U.S.C. § 1613a(c). W e recently
Division’s determination of its own
reiterated that “[a] final decision ‘ends
jurisdiction.
the litigation on the merits and leaves
A. Not a Final Decision nothing . . . to do but execute the
judgment.’” Rivera, 333 F.3d at 150
We are the second appellate court
(alteration in original) (quoting Catlin v.
to address this case. Nonetheless— to
United States, 324 U.S. 229, 233 (1945)).
reiterate the point made above about the
The remand in Alison left more to do
parallel construction of 48 U.S.C. §
than mere execution of the judgment, and
1613a(c) and 28 U.S.C. § 1291—“with
thus the remand order was not
regard to the question of finality, we
appealable.
have treated appeals from the Appellate
Division . . . no differently than appeals A second, independent reason
taken from any other federal district leads us to conclude that the Appellate
court.” Ortiz, 126 F.3d at 548 (citing as Division’s order was not a final decision:
examples Gov’t of V.I. v. Blake, 118 F.3d The first appeal (i.e., the appeal to the
972 (3d Cir. 1997); In re A.M., 34 F.3d Appellate Division) was interlocutory,
153 (3d Cir. 1994)). but, as we explain in Part III below, was
nonetheless proper. The subsequent
The key question is whether the
appeal to this Court asks us, in effect, to
vacate-and-remand order of the
(re)consider an interlocutory order of a
Appellate Division was a final decision
trial court. But, in view of the finality
under 48 U.S.C. § 1613a(c). It was not a
policy of 28 U.S.C. § 1291 and 48 U.S.C.
“final decision” in the most common
§ 1613a(c), this is something which we
sense of the term—for two reasons.
do not generally engage in (absent
First, it was a remand order, and we have
explained in a similar context that
remand orders are not final under §
6
specific statutory authorization).5 Such decision” in the most common sense
statutory authorization comes from under 48 U.S.C. § 1613a(c), and
Congress. See U.S. Const. Art III. § 1 therefore this Court does not have
(“The judicial Power of the United appellate jurisdiction in the normal sense.
States, shall be vested in . . . such inferior We next consider whether this Court has
Courts as the Congress may from time to jurisdiction under the collateral order
time ordain and establish.”). If we were doctrine.
to blithely take jurisdiction over appeals
B. Collateral Order Doctrine
of decisions that the Appellate Division
rendered on interlocutory appeal, we This Court’s recent definitive
would in practice be allowing our treatment of the collateral order doctrine
jurisdiction to expand based on the is In re Ford Motor Co., 110 F.3d 954Virgin Islands Legislature’s exercise of (3d Cir. 1997). There we explained:
its authority, under 48 U.S.C. §1613a(a),
[T]he collateral order
to determine the appellate jurisdiction of
doctrine, first enunciated
the Appellate Division. Of course, the
by the Supreme Court in
scheme in § 1613a means that, for a
Cohen v. Beneficial Indus.
Territorial Court case to appear on our
Loan Corp., 337 U.S. 541docket on appeal, it is necessary that the
(1949), provides a narrow
Virgin Islands Legislature confer
exception to the general
intermediate appellate jurisdiction on the
rule permitting appellate
Appellate Division; but it does not follow
review only of final orders.
that such a jurisdictional statute is
An appeal of a nonfinal
sufficient to confer jurisdiction, in turn,
order will lie if (1) the
on this Court. Hence we decline to
order from which the
conclude that in enacting § 1613a
appellant appeals
Congress intended to cede to the Virgin
conclusively determines
Islands Legislature such control over this
the disputed question; (2)
Court’s jurisdiction.
the order resolves an
Thus we hold that the Appellate important issue that is
Division’s decision is not a “final completely separate from
the merits of the dispute;
and (3) the order is
5 effectively unreviewable
One such statute allowing for
interlocutory appeal to this court is 18 on appeal from a final
U.S.C. § 3731, which is comparable to judgment. See
the interlocutory appeal statute at issue in Rhone-Poulenc Rorer Inc.
this case, 4 V.I. Code § 39(a)(1). Both v. Home Indem. Co., 32
allow, in a proper case, the prosecution F.3d 851, 860 (3d Cir.
to immediately appeal a pretrial order 1994).
suppressing evidence.
7
Id. at 958. As the Cohen Court resolve much of anything. To be sure, it
explained, 28 U.S.C. § 1291 has been established some guideposts for “too
given a “practical rather than a technical much” and “too little” redaction, but at
construction.” 337 U.S. at 546. To this bottom, it remanded the issue to the
end, as a doctrinal matter, orders that Territorial Court to settle on the exact
meet the three prongs described above redaction to use.
are deemed to be “final decisions” within
On the second prong, the
the meaning of the statute.
redaction question is clearly separable
Ford Motor Co. paid special from the merits, and this favors
attention to the question of what makes appealability. The question about the
an issue “important” under the second redactions goes to how much identifying
prong. We described the task as one of information can be contained in a
“compar[ing] the apple of the desire to nontestifying codefendant’s statement
avoid piecemeal litigation to the orange and still preserve the other defendants’
of, for example, federalism.” Ford Confrontation Clause rights. This is an
Motor Co., 110 F.3d at 960. In cases exercise in applied constitutional law, as
where the Supreme Court has blessed it were, and it does not implicate the
interlocutory appeals, we observed, it merits of whether some or all of the
was because “the imperative of defendants did or did not participate in
preventing impairment of some the robbery-murder of the victim. As for
institutionally significant status or the importance of the question, there are
relationship” made “the danger of mixed signals. On the one hand, the
denying justice by reason of delay in Confrontation Clause articulates a
appellate adjudication outweigh[] the fundamental constitutional right, and one
inefficiencies flowing from interlocutory might assume that such rights cry out
appeal.” Id. most strongly for vindication on
interlocutory appeal. Cf., e.g., P.R.
We will apply the doctrine
Aqueduct & Sewer Auth. v. Metcalf &
separately to both of the questions that
Eddy, Inc., 506 U.S. 139, 145 (1993)
the defendants urge us to consider: (1)
(holding that determination of sovereign
the merits of the Appellate Division’s
immunity was a proper subject for
decision, and (2) the Appellate
interlocutory appeal because it “involves
Division’s determination of its own
a claim to a fundamental constitutional
jurisdiction.
protection”). On the other hand,
1. Appellate Jurisdiction to Confrontation Clause rights are
Review The Merits of the Appellate vindicated through evidentiary rulings,
Division’s Decision and a prime target of the policy against
interlocutory appeals is the avoidance of
As to the first prong of the
piecemeal review of the many
collateral order doctrine, the Appellate
evidentiary rulings in a typical case.
Division’s order did not conclusively
Thus we find this factor inconclusive.
8
The third prong strongly disfavors this Court does not have appellate
appealability. Practice alone—in Bruton jurisdiction to hear an appeal of the
and Gray themselves—suggests that merits of the Appellate Division’s order.
interlocutory appeal is unwarranted
2. Appellate Jurisdiction to
because the constitutional defect in
Review the Appellate Division’s
Bruton’s and Gray’s trials were, in fact,
Determination of Its Own Jurisdiction
remedied by vacating their convictions
and remanding for a new trial.6 Turning to the question of the
reviewability of the Appellate Division’s
In sum, the prongs range from
determination of its own jurisdiction, it is
inconclusive to strongly disfavoring
clear that we may at least review this
appealability. As the collateral order
limited question. This Court’s
doctrine is a “narrow” exception and the
indistinguishable precedent in
Supreme Court has “described the
Government of the Virgin Islands v.
conditions for collateral order appeal as
Blake, 118 F.3d 972 (3d Cir. 1997),
stringent,” Digital Equip. Corp. v.
compels this conclusion. In that case, the
Desktop Direct, Inc., 511 U.S. 863, 868
Government had taken an interlocutory
(1994), failure to meet one prong makes
appeal from the Territorial Court to the
the doctrine inapplicable no matter how
Appellate Division under 4 V.I. Code §
compelling the other prongs may be (and
39(d), a provision which allows an
here, not even one prong is in favor of
interlocutory appeal during trial under
appealability). Thus we conclude that
some circumstances. (In Blake, the
Territorial Court had suppressed—during
6
motions decided after the jury had been
Bruton and his codefendant were tried selected and sworn—a variety of
and convicted in federal court, apparently testimony and other evidence the
with no interlocutory appeals. Bruton’s Government sought to present.) The
conviction was reversed and remanded Appellate Division in Blake decided that
for retrial (where he was again it did not have jurisdiction to hear the
convicted). United States v. Bruton, 416 Government’s appeal. On appeal we
F.2d 310 (8th Cir. 1969). Though Gray’s held that although we had no jurisdiction
case was in state court in Maryland (and to reach the merits, we did have
thus presented no opportunity for jurisdiction under the collateral order
interlocutory appeal in the federal doctrine to review the Appellate
system), the same remedy was of course Division’s jurisdiction over the appeal.
available: The Supreme Court vacated Blake, 118 F.3d at 975-76. We of course
his conviction and remanded. In adhere to Blake in this case, see Third
Richardson, the Supreme Court did not Circuit IOP 9.1, but we do add a few
find in Richardson’s favor, but there was words of analysis since the discussion in
no doubt that even in the habeas corpus Blake was quite summary.
posture of that case it would have been
possible to afford him relief. The first prong of the collateral
9
order doctrine is clearly satisfied here want of subject matter jurisdiction are
because the Appellate Division did not ordinarily entitled to interlocutory
finally determine its own jurisdiction review.” Merritt v. Shuttle, Inc., 187
over this sort of interlocutory appeal. F.3d 263, 268 (2d Cir. 1999) (citing
The third prong is also clearly satisfied Catlin, 324 U.S. at 236).
because such a determination cannot be
The dispositive differences in this
effectively reviewed on appeal from a
case are twofold. First, we are
final judgment because, by hypothesis,
considering the ability to appeal an
the Appellate Division’s jurisdiction to
interlocutory determination of appellate
hear interlocutory (i.e., not final) appeals
jurisdiction, not original jurisdiction,
would not be implicated in that posture.
making cases like Merritt
The second prong is more distinguishable. Second, the order at
complex, but it too favors our issue here is not so much effectively
jurisdiction. Part of it is clear: The issue unreviewable as it is procedurally
of the Appellate Division’s jurisdiction is unreviewable if we do not take
separate from the merits. Whether the jurisdiction now. “Effective”
question is important enough requires unreviewability arises because a party’s
some discussion. On the one hand, putative rights will be irreparably
issues involving the scope of federal harmed. For example, a party may have
jurisdiction are good candidates for the to forego an injunction guarding against
collateral order doctrine. See, e.g., irreparable harm because the security
Quackenbush v. Allstate Ins. Co., 517 bond that is the price of the injunction
U.S. 706 (1996) (holding that an may have been made too costly by the
abstention-based remand to state court lower court; or a party wrongly
was immediately appealable under determined to lack qualified immunity
collateral order doctrine). On the other may be subjected to a trial. In such
hand, a vague reference to the “scope of situations, although the aggrieved party
federal jurisdiction” may denominate the cannot be made whole after the fact, the
category too broadly, for the cases legal question will, as a matter of
involving the collateral order doctrine procedure, still be preserved for the
and the scope of federal jurisdiction are appellate court’s review at a later time.
by and large abstention cases, see id. at In contrast, only in the most convoluted
712-15 (canvassing cases), which “put and improbable of hypotheticals will the
the litigants ‘effectively out of court,’” jurisdictional issue presented here ever
id. at 713 (quoting Moses H. Cone Mem’l make its way to this Court on appeal
Hosp. v. Mercury Contr. Corp., 460 U.S. from a final decision.7 As
1, 11 n.11 (1983) (quoting Idlewild Bon
Voyage Liquor Corp. v. Epstein, 370
7
U.S. 713, 715 n.2 (1962))), and some The dissent “see[s] no reason why we
courts have explicitly held that “non- could not [after trial] consider whether
immunity based motions to dismiss for the Appellate Division had jurisdiction to
10
a procedural matter, now is this Court’s
only opportunity to pass on the issue.
render its decision.” Dissenting Op. post
at —. In one sense, this is a truism, but This reasoning also explains why
in practical terms it is a half-truth. The our holding here would not apply to the
whole tenor and dynamic of a issue in Merritt, i.e., why a district
trial—here, for murder no less—can be court’s determination of its subject
radically altered by a decision like that of matter jurisdiction is not generally
the Appellate Division here. We think it reviewable under the collateral order
imprudent to let pass a ruling of such doctrine.8 Questions of original
moment without examining, if we can, jurisdiction are always automatically
whether the court making the ruling even before this Court on appellate review.
had jurisdiction. See, e.g., Wujick v. Dale & Dale, Inc., 43
Second, the dissent’s offhand F.3d 790, 792 (3d Cir. 1994) (“‘[E]very
statement about easy reviewability after federal appellate court has a special
trial is also unsupported by an analysis of obligation to satisfy itself not only of its
the posture in which the question might own jurisdiction, but also that of lower
actually arise. On appeal from a courts in a cause under review.’”
conviction (the dissent is quite right that (alteration in original) (quoting Spring
the point is moot if there is a plea or Garden Assoc., L.P. v. Resolution Trust
acquittal), the question will be whether Corp., 26 F.3d 412, 415 (3d Cir. 1994)
the redaction actually used was (quoting Employers Ins. of Wausau v.
constitutionally sound. If it was, we Crown Cork & Seal Co., 905 F.2d 42 (3d
would have no occasion to consider the Cir. 1990)))). In other words, there is no
Appellate Division’s jurisdiction, for it procedural posture where a question of
will have made the right decision original jurisdiction will escape this
(whether it was empowered to or not). If Court’s review in an appeal from a (non-
the redaction used was unsound (and not interlocutory) final decision. In
harmless), the Appellate Division’s
jurisdiction is beside the point—the case
must go back for a new trial. review after trial.
This analysis also explains why
8
the dissent’s efforts to distinguish Blake The dissent criticizes the distinction
are unconvincing. While there may have here as inconsistent with our earlier
been factors present in Blake that are pronouncement that we must “treat[]
absent here, the core concern remains: appeals from the Appellate Division no
How are we to review the Appellate differently from appeals from any other
Division’s jurisdiction if not through the district court.” Dissenting Op. post at —.
collateral order doctrine? Both in Blake But of course, that greatly overstates our
(as the dissent explains) and in this case earlier point, which was confined to the
(as the preceding paragraph illustrates), issue of how we treat questions of
the question cannot be addressed on finality.
11
contrast—as this case itself is the very sort of inefficiency that the
illustrates—there are procedural postures collateral order doctrine should not
which render permanently unreviewable countenance. We are underwhelmed by
the judgment of a hierarchically inferior the dissent’s in terrorem argument. First,
appellate court,9 and thereby prevent the it is a dubious empirical proposition that
automatic review of jurisdiction the holding here will increase the
described in Wujick. Because review of quantity of this sort of appeal. As the
a question of appellate jurisdiction is a citations in the opinion in this case
now-or-never proposition, interlocutory suggest, this Court has seen but a handful
review of a jurisdictional question is of cases like this in the past decade.
warranted here where it is not warranted Second, the fact that we here take the
in the case of a district court’s opportunity to give some guidance (both
determination of its own original to litigants and to the Appellate Division)
jurisdiction. should decrease, not increase, the
number of appeals taken in good faith.
In brief, coupled with the
institutional importance of the question, Third, the dissent claims that
the absolute unreviewability of the “[t]he majority’s decision effectively
Appellate Division’s jurisdiction in this grants an appeal as of right.” But it is the
case makes the question an important Congress, not this Court, that has granted
one. Thus this prong too favors litigants an appeal as of right from the
appealability. Because all three prongs Appellate Division. Even if we did
are satisfied, the collateral order doctrine dismiss this appeal in its entirety for lack
affords us a basis for reviewing the of jurisdiction, as the dissent would, little
Appellate Division’s determination efficiency would be gained as a practical
regarding its jurisdiction under 4 V.I. matter: In a subsequent case, a litigant
Code § 39(a)(1). could still file a notice of appeal (as a
matter of statutory right), and he could
In reaching this conclusion, we
still advance a good faith argument in
have considered the dissent’s contention
favor of review under the collateral order
that our “decision effectively grants an
doctrine. A motions panel would likely
appeal as of right to question an appellate
refer the jurisdictional question to the
court’s jurisdiction whenever it makes an
merits panel, and the merits panel would
interlocutory ruling,” and that this result
address the question (hopefully in less
extended fashion than we have had to
9
The judgment of the Appellate here). In other words, the decision here
Division is permanently unreviewable makes it neither easier nor harder for a
only in the sense that it will never be party who is dissatisfied with the ruling
specifically reviewed by this Court; the of the Appellate Division to drag out the
Bruton question in general is preserved
for this Court’s review. See supra note
4.
12
process by appealing to this Court. 10 The United States or the
Government of the Virgin
At bottom, it seems to us that the
Islands may appeal an
dissent’s problem is the presence of a
order, entered before the
system of two-tier appellate review as of
trial of a person charged
right. In fact, the dissent states explicitly
with a criminal offense
that “[t]his type of review is wisely not
under the laws of the
found elsewhere in the federal system,
Virgin Islands, which
and should not exist here.” Dissenting
directs the return of seized
Op. post at —. While we might agree
property, suppresses
with the dissent if we were drafting 48
evidence, or otherwise
U.S.C. § 1613a, that simply is not our
denies the prosecutor the
task. Congress has provided that we
use of evidence at trial, if
have appellate jurisdiction (until such
the United States Attorney
time as the conditions for certiorari
or the Attorney General
jurisdiction are met, see 48 U.S.C. §
conducting the prosecution
1613), and accordingly, we will turn our
for such violation certifies
attention to the substance of the appeal.
to the Judge who granted
such motion that the appeal
is not taken for purpose of
III. The Appellate Division’s
delay and the evidence is a
Jurisdiction
substantial proof of the
We exercise plenary review in charge pending against the
determining whether a court defendant.
hierarchically below us had subject
There do not appear to be any
matter jurisdiction. Wujick v. Dale &
cases—either from this Court or from the
Dale, Inc., 43 F.3d 790, 792 (3d Cir.
Appellate Division—considering this
1994) (citing Nat’l Union Fire Ins. Co. v.
provision in any depth.11 We are,
City Savings, F.S.B., 28 F.3d 376, 383
(3d Cir. 1994)). As previously noted, we
look to local law to determine the 11
jurisdiction of the Appellate Division. The government points to the one
See 48 U.S.C. § 1613a(a); Gov’t of V.I. v. case of the Appellate Division which
Warner, 48 F.3d 688 (3d Cir. 1995). The expressly stated that that Court had
asserted basis for the Appellate jurisdiction under section 39(a)(1),
Division’s subject matter jurisdiction is 4 Government of the Virgin Islands v.
V.I. Code § 39(a)(1), which provides: Christopher, 990 F. Supp. 391 (D.V.I.
App. Div. 1997) (per curiam). In that
case, the Territorial Court had suppressed
10
Indeed, this decision might even before trial an unmirandized confession
discourage appeals by settling the and the Government took an
underlying merits questions. interlocutory appeal to the Appellate
13
however, fortunate to be guided in this The defendants’ challenges to the
novel exercise by interpretations of 18 Appellate Division’s jurisdiction are
U.S.C. § 3731, the analogous provision fourfold: First, they argue that the
for interlocutory appeals by the Territorial Court’s redactions were not
government of suppression motions “an order . . . suppress[ing] evidence.”
decided in federal district courts.12 Second, they submit that the
Government’s certification was
inadequate because the Territorial Court
Division. The Appellate Division simply was not afforded an opportunity to
stated that “[t]his Court has jurisdiction review it before the Government noticed
under V.I. Code. Ann. tit. 4, § 39(a)(1).” its appeal to the Appellate Division.
Id. at 393. No mention was made of any Third, they contend that the statements in
certification by the Government or of question, even unredacted, are not
whether the suppressed confession was “substantial proof of the charge pending
“substantial proof of the charge pending against [them].” Fourth, they assert that
against the defendant.” the statute denies them equal protection
12
of the laws, by permitting the
That section is similarly (but not government to appeal adverse orders but
identically) worded, and appears to have not affording a similar opportunity to
provided the basis for 4 V.I. Code § defendants facing adverse orders. We
39(a)(1): The Virgin Islands statute was will treat each of these challenges in turn.
enacted in 1972, while the relevant
portion of the federal statute was added A. “An Order Suppressing
in 1971. The federal statute reads: Evidence”
An appeal by the United The defendants contend that the
States shall lie to a court of Territorial Court’s redaction order was
appeals from a decision or not “an order suppress[ing] evidence”
order of a district court within the meaning of 4 V.I. Code §
suppressing or excluding 39(a)(1). But it would be a terribly
evidence or requiring the crabbed reading of the statute to hold that
return of seized property in admitting a statement subject to
a criminal proceeding, not redactions does not amount to a
made after the defendant suppression of evidence. The statute
has been put in jeopardy finishes its list of appealable orders with
and before the verdict or a catch-all category—those orders which
finding on an indictment or “otherwise den[y] the prosecutor the use
information, if the United of the evidence at trial.” Id. Even if the
States attorney certifies to
the district court that the
appeal is not taken for substantial proof of a fact
purpose of delay and that material in the proceeding.
the evidence is a 18 U.S.C. § 3731, ¶2.
14
redaction order is not an order generally held that the “substantial
suppressing evidence, it surely denies proof” requirement of 18 U.S.C. § 3731the Government the use of the full is a requirement of the certification, not a
confessions at trial. Thus we reject the requirement of actual fact. See In re
defendants’ contention that the Grand Jury Investigation, 599 F.2d at
Territorial Court’s order was not a proper 1226.13 The certification under 18
subject for appeal.
13
B. Territorial Court Review of In his brief, Camacho cites United
the Certification States v. Poulsen, 41 F.3d 1330 (9th Cir.
The defendants next argue that the 1994), for the proposition that mere
Territorial Court should have had an certification is insufficient. A review of
opportunity to review the certification 1970s decisions following the enactment
provided by the Government. While as a of the relevant portion of 18 U.S.C. §
policy matter, one might conclude that 3731 reveals an early split among the
the Territorial Court should be given an circuits on this score. Compare In re
opportunity to review the certification, Grand Jury Investigation, 599 F.2d at
there is at present simply no basis in the 1226 (3d Cir.), and Comiskey, 460 F.2d
statute for such a requirement. W e at 1297-98 (7th Cir.), with United States
decline to read one in. v. Loud Hawk, 628 F.2d 1139 (9th Cir.
1979) (en banc). The Court of Appeals
Moreover, this Court has decided for the Eleventh Circuit has implied that
in interpreting 18 U.S.C. § 3731 that that it sides with us and the Seventh Circuit.
statute requires nothing more than the See United States v. C.G., 736 F.2d 1474,
delivery of the certification to the district 1478 (11th Cir. 1984). The Court of
court in question. See In re Grand Jury Appeals for the First Circuit has
Investigation, 599 F.2d 1224, 1226 (3d acknowledged the split, but has declined
Cir. 1979) (adopting United States v. to decide the issue. See United States v.
Comiskey, 460 F.2d 1293, 1297-98 (7th Bouthot, 878 F.2d 1506, 1510 (1st Cir.
Cir. 1972) (holding that no evidence was 1989).
required to support a certification under More recently, the Court of
18 U.S.C. § 3731)). We hold, by Appeals for the Ninth Circuit has
analogy, that 4 V.I. Code § 39(a)(1) is expressly declined to hold that
also completely satisfied by simple subsequent Supreme Court decisions
delivery of the certification to the have implicitly overruled Loud Hawk,
Territorial Court. Thus the see United States v. Adrian, 978 F.2d
Government’s certification in this case 486, 490-91 (9th Cir. 1992), and
was adequate. continues to require the government to
C. “Substantial Proof of the establish by more than mere certification
Charge Pending” that the suppressed evidence constitutes
“substantial proof.” The Court of
The Courts of Appeals have Appeals for the Eighth Circuit recently
15
U.S.C. § 3731 must state both (1) that the federal statute as a guide. Second, if the
appeal is not taken for the purpose of Virgin Islands Legislature actually
delay; and (2) that the evidence is a wanted the statute to operate as the
substantial proof of a material fact in the defendants would have it, there were far
proceeding. The United States less cryptic ways of communicating that
Attorney’s word is enough; the intent. For example, the Virgin Islands
reviewing court does not consider the Legislature could have put the
truth of the certification. “substantial proof” requirement before
the certification clause. Third, the statute
If 4 V.I. Code § 39(a)(1) were
is silent on what court would evaluate the
worded identically to 18 U.S.C. § 3731,
substantiality of the proof, or on how that
on which In re Grand Jury Investigation
court would go about the evaluation,
is binding precedent, this would certainly
suggesting that no such review is to be
be the end of it. But the Virgin Islands
undertaken. Fourth, review of the
statute is not clearly drafted: It is missing
substantiality of the proof necessarily
an additional “that” immediately before
entails a look at the other evidence that
“the evidence is a substantial proof,”
the Government has available to it, an
which would make it grammatically
inquiry that could both take considerable
unambiguous. As it now stands, it could
time and prejudice the Government’s
be read to require essentially the same
case. Both of these seem at odds with
two certification elements that 18 U.S.C.
the expedited interlocutory appellate
§ 3731 does; or it could be read (as the
review contemplated by the statute.14
defendants urge) to require a certification
that the appeal is not taken for delay, and
14
also require that, in actual fact, the Moreover, we find 4 V.I. Code §
evidence be “substantial proof.” 39(a)(1) (the statute at issue here)
We decline to read it as the distinguishable from 4 V.I. Code § 39(d)
defendants would have it, for four (the mid-trial interlocutory appeal
reasons. First, the Virgin Islands statute provision at issue in Blake). The latter
is plainly modeled on the federal statute, requires more than the prosecutor’s mere
and we conclude it is best to follow the certification that the question involves “a
substantial and recurring question of law
which requires appellate resolution.” 4.
acknowledged this continuing split, and V.I. Code § 39(d). We held the merits of
sided with this Circuit and the Seventh this certification to be a question for the
Circuit. See United States v. Johnson, court because it is “an issue of statutory
228 F.3d 920, 923-24 (8th Cir. 2000). interpretation, and because it involves the
We of course adhere to our precedent in jurisdiction of the federal courts.” Blake,
In re Grand Jury Investigation, and 118 F.3d at 977 (citations omitted). In
recognize no requirement in 18 U.S.C. § sharp contrast, the certification required
3731 aside from the certification paper for appeals taken under subsection (a)(1)
itself. addresses the substantiality of evidence,
16
Thus, we conclude that the Appellate only rational basis review of the
Division did not need to evaluate the legislation).
substantiality of the proof in order to
The Virgin Islands Legislature
accept the certification.
certainly had a rational basis for
D. Equal Protection distinguishing between the Government
and defendants on the question of appeal
The defendants object that the
rights. To identify only one such basis,
statute affords the Government an appeal
the Virgin Islands Legislature could
right that it does not confer on
rationally conclude that the efficient
defendants, and that this disparity
administration of criminal justice
amounts to a violation of the equal
demanded that the Government have
protection component of the Fifth
expansive pre-trial appeal rights, and the
Amendment’s Due Process Clause. But
defendant have expansive post-trial
this argument is foreclosed by United
appeal rights. Thus we find no merit in
States v. Heinze, 218 U.S. 532, 545-46
the defendants’ equal protection
(1910), which held that the Act of March
challenge.
2, 1907, ch. 2564 (which was later
codified at 18 U.S.C. § 682, which in In sum, we conclude that the
turn was the forerunner of 18 U.S.C. § Government followed the procedures set
3731) did not violate equal protection or out in 4 V.I. Code § 39(a)(1), and that the
due process principles. Appellate Division had jurisdiction over
the appeal.
Moreover, even under more recent
equal protection jurisprudence, Heinze IV. Conclusion
reached the right result: The Supreme
We have concluded that the
Court has not announced that the status
Appellate Division had jurisdiction over
of “criminal defendant” is a suspect
the appeal, and we will affirm the
classification, nor has it held the right to
Appellate Division’s holding regarding
appeal in a criminal case to be a
its own jurisdiction. Having determined
fundamental right. Thus we subject this
that we lack jurisdiction over the other
legislation to rational basis review. See,
questions in this appeal, we will dismiss
e.g., Ramsgate Court Townhome Ass’n v.
the appeal with respect to those
W. Chester Borough, 313 F.3d 157, 160
questions. The case will be remanded to
(3d Cir. 2002) (reiterating that equal
the Territorial Court to revise the
protection challenges to legislation not
redacted statements in conformity with
based on a suspect classification or
the Appellate Division’s opinion.
implicating a fundamental right require
Because we do not reach the merits of
the defendants’ Bruton claims, this
opinion is without any preclusive effect
a factual or strategic matter that—for the to the defendants asserting on direct
reasons we identify above— a court is ill- appeal, should they be convicted, that the
equipped to evaluate.
17
redacted confessions used at trial were time we take an interlocutory appeal.
insufficiently altered to secure their Sixth
This type of review is wisely not
Amendment Confrontation Clause rights.
found elsewhere in the federal system,
and should not exist here. Under the
majority’s holding, we pile an extra layer
NYGAARD, J. dissenting.
of interlocutory appellate review solely
I respectfully dissent and would onto cases that stem from the Virgin
dismiss this appeal for lack of Islands, without explaining why this
jurisdiction. I agree with the majority extra layer is necessary – and why the
that we do not have jurisdiction to delay it engenders is justified. I find the
consider the merits of the decision of the extra layer unnecessary and the delay
District Court of the Virgin Islands, unjustified.
Appellate Division. I disagree, however,
The majority correctly concludes
that we may consider whether the
that the issue of the Appellate Division’s
Appellate Division had jurisdiction to
jurisdiction is not reviewable as an
hear the interlocutory appeal. The
ordinary final decision. It also uses the
majority asserts that its resolution of this
correct test for determining whether,
issue is “clear” and compelled by the
nevertheless, we may pretend it is a final
“indistinguishable precedent” of
decision and review it under the
Government of Virgin Islands v. Blake,
collateral order doctrine. It is the manner
118 F.3d 972 (3d Cir. 1997). Maj. Op. at
in which the majority applies this test
*9. I agree the issue is clear, but
where they and I part company.
conclude that the precedent of Blake is
first, quite distinguishable, and At the outset, I think it important
moreover, not germane to our decision. to emphasize what the majority only
notes in passing – that the collateral
The majority insists that we
order doctrine is meant to provide a
should treat appeals from the Appellate
“narrow exception” to the general rule
Division “no differently than appeals
that permits appellate review only of
taken from any other federal district
truly final orders. See Digital Equip.
court.” Maj. Op. at *6. W hile I agree in
Corp. v. Desktop Direct, Inc., 511 U.S.
general, I do not believe this means we
863, 868 (1994). This exception is to be
can simply be blind to the differences.
made only when required to preserve “a
The majority’s decision effectively
healthy legal system,” and should “never
grants an appeal as of right to question an
be allowed to swallow the general rule.”
appellate court’s jurisdiction whenever it
Id. at 867-68 (internal citation and
makes an interlocutory ruling. The
quotations omitted). Thus, the three
procedural equivalent is not our routine
prongs of the collateral order doctrine are
review of a decision by a typical district
“stringent,” and each of them must be
court, but review by some hypothetical
met in order for a decision to be
higher court of our jurisdiction every
reviewable. Id. at 868. With this in mind,
18
it seems clear that in this case the of justice require that we take an
requirements of the second and third interlocutory appeal to second-guess the
prongs have not been met, and we jurisdictional conclusions of the
therefore may not review the Appellate Appellate Division when it is sitting in
Division’s decision as to its own the same posture.
jurisdiction.
In distinguishing holdings that
In addition to being separate from find issues of subject-matter jurisdiction
the merits of the case, as this ineligible for interlocutory review, the
jurisdictional question admittedly is, the majority points out that this case is
second prong also requires that the issue different because it presents a question of
be sufficiently “important.” Discussing appellate, not original, jurisdiction.15 The
the meaning of “important,” the United majority does not, however, indicate why
States Supreme Court has explained that this distinction weighs in favor of
it involves an examination of the “value review. Nor does the majority explain
of the interests that would be lost through how the interests of justice implicated by
rigorous application of a final judgment an interlocutory jurisdictional issue are
requirement.” Digital Equip. Corp., 511 so weighty that they overcome the
U.S. at 878-79. Similarly, we have “inefficiencies flowing from
required a showing of the “impairment of interlocutory appeal.” Notably, the
some institutionally significant status or majority actually has very little to say
relationship” presenting the “danger of about the “importance” of reviewing the
denying justice.” In re Ford Motor jurisdictional issue, blurring its
Co., 110 F.3d 954, 960 (3d Cir. 1997). discussion of this condition with its
To qualify as “important,” these interests insistence that the order is “procedurally
must also outweigh the “inefficiencies unreviewable,” a factor that is properly
flowing from interlocutory appeal.” Id. evaluated under the third prong. Maj. Op.
at *10.
It is difficult for me to see how we
can conclude that an extra layer of In my view, this third requirement
appellate review, of a kind that does not has also not been fulfilled. I fail to see
exist anywhere else in the federal system, why the question of interlocutory
qualifies as “important” under this
standard. When this Court takes 15
jurisdiction over an interlocutory appeal It is worth noting that earlier in its
from a typical district court’s opinion the majority observed the
proceedings, our decision to do so is not necessity of treating appeals from the
subject to automatic review, and yet we Appellate Division no differently from
do not find that this deprivation presents appeals from any other district court, but
the “danger of denying justice.” It is when the occasion arises, it is quick to
incongruous, and more than a bit point out that they really are different,
patronizing, to conclude that the interests because they involve questions of
appellate, and not original, jurisdiction.
19
appellate jurisdiction as presented in this hypotheticals.” Maj. Op. at *11. True, if
case is “effectively unreviewable on we were to reverse, at that point we
appeal from a final judgment.” Ford could not rewrite history and pretend that
Motor Co., 110 F.3d at 958. As the the Appellate Division had never
Supreme Court notes, most interlocutory rendered its interlocutory ruling, but as
orders are “only imperfectly reparable by the Supreme Court has emphasized,
appellate reversal,” and if this prong effective reviewability of a decision does
were to be interpreted too broadly, it not require that we be able to unring the
would render it meaningless. Digital “law’s proverbial bell.” Id.Equip. Corp., 511 U.S. at 872. “A fully
It is in regard to reviewability that
litigated case can no more be untried
this case is most easily distinguishable
than the law’s proverbial bell can be
from Blake. 118 F.3d 972. In Blake, the
unrung, and almost every pretrial or trial
Appellate Division had found that it did
order might be called ‘effectively
not have jurisdiction to consider the
unreviewable’ in the sense that relief
government’s interlocutory appeal, and it
from error can never extend to rewriting
was the government, not the defendants,
history.” Id.who sought to appeal that ruling to us. Id.It is indeed likely that the issue of at 974. This denial of jurisdiction could
the Appellate Division’s interlocutory not have been effectively reviewed after
appellate jurisdiction will be made final judgment, especially because it is
irrelevant by further proceedings. If the unlikely the government would have
Appellants reach a plea agreement or are been able to appeal at all had it lost and
acquitted, for example, then the question the trial resulted in an acquittal. In
would be moot. In the larger context of a contrast, here Appellants would have an
murder trial, the issue may be rendered automatic right to appeal upon
immaterial. But these possibilities only conviction.
indicate that our consideration of the
These distinctions also make our
issue at this point may well be a waste of
finding that the interlocutory issue was
time and resources.
sufficiently “important” more palatable
If the Appellants are convicted, in the Blake case, since the denial of
however, and the decision of the jurisdiction there meant the challenged
Appellate Division is material to the order would not be reviewed by any
outcome of the trial, I see no reason why court, and a miscarriage of justice was
we could not then consider whether the therefore more likely to result. In
Appellate Division had jurisdiction to contrast, in a case such as this in which
render its decision. In fact, it seems that the Appellate Division took jurisdiction,
the issue could be raised rather the underlying issue has already been
straightforwardly upon appeal, without reviewed and decided by an appellate
requiring, as the majority suggests, “the court.
most convoluted and improbable of
20
This case implicates all of the we need look no farther than the case
interests that justify the existence of the now before us. The trial of Appellants for
final judgment rule, and illustrates why a brutal 1999 murder was set to begin in
exceptions to this rule should be few. As September 2001, when the case was
the Supreme Court explained: brought to a grinding halt by the
government’s appeal on the eve of trial.
An interlocutory appeal
Memories of witnesses have surely faded
can make it more
and evidence gone stale as the case has
difficult for trial judges
wended its way through two appellate
to do their basic job –
courts, producing what will be at least a
supervising trial
three-year delay in trial. There is no
proceedings. It can
doubt that when this trial is eventually
threaten those
held, it will be less coherent than it
proceedings with delay,
would have been three or more years
adding costs and
earlier, and less likely to achieve a just
diminishing coherence.
result. It is unfortunate that there has
It also risks additional,
been such a delay in this case; we should
and unnecessary,
not encourage its recurrence.
appellate court work . . .
when it brings them The government’s original
appeals that, had the interlocutory appeal was brought under a
trial simply proceeded, statute passed by the Virgin Islands
would have turned out legislature, which made a measured
to be unnecessary. decision that the interests of justice
warrant the delay caused by allowing
Johnson v. Jones, 515 U.S. 304, 309
interlocutory appeals in a few specified
(1995).
instances. Now, in making any such
Fortunately, the scope of the decision, the local legislature must weigh
majority’s decision is limited to the the interests of justice against far more
unique appellate position of the courts of delay, since this Court must now intrude
the Virgin Islands, but even within this on every interlocutory appeal. From now
narrow arena today’s holding seems on, every interlocutory appeal allowed by
certain to encourage more unnecessary statute will come stapled to a right to
delay while this Court wades through appeal to us the Appellate Division’s
more unnecessary appeals. With this decision to take the interlocutory appeal.
holding, every ruling by the Appellate This extra layer is not only unnecessary,
Division becomes appealable to this but also conveys an unjustified lack of
Court, since every such ruling must confidence in the decisions of the
necessarily contain at least an implicit Appellate Division, and creates a further
finding of jurisdiction. delay that can only serve to jeopardize
the ultimate attainment of justice at trial.
To see the harm in this decision,
21