Government of the Virgin Islands v. Santiago

OPINION OF THE COURT

I. INTRODUCTION

This is an appeal¹ from a final judgment of criminal contempt² entered by the Territorial Court of the Virgin Islands. This Court exercised plenary review^ in addressing the constitutional and legal issues advanced by the appellants. See Government of the Virgin Islands v. Etienne, 28 V.I. 121, 127, 810 F. Supp. 659, 662 (D.V.I. App. 1992); Ross v. Bricker, 26 V.I. 314, 318, 770 F. Supp. 1038, 1042 (D.V.I. App. 1991). For reasons which follow, the judgments) of criminal contempt entered by the Territorial Court of the Virgin Islands are reversed.

II. FACTUAL AND PROCEDURAL HISTORY

On Friday, May 13, 1994, Daniel and Leonico Santiago, ("Santiago Brothers" or "Santiagos"), were arrested and charged with interfering with an officer in the discharge of his duty, disturbing the peace and resisting arrest. In lieu of Six Hundred Dollars and 00/100 ($600.00) bail, the Santiago brothers were incarcerated at the Bureau of Corrections in St. Croix. App. at 7. Upon granting the motion for release filed by Attorney Amelia Joseph, App. at 6, Judge Brady, on Saturday, May 14, 1994, telephonically instructed Police Officer Edna Encarnación to release the Santiagos on their own recognizance. App. at 15. Because the Santiago brothers had already been transferred to Anna's Hope and were no longer in the custody of the Virgin Islands Police, Officer Encarnación telephoned the Bureau of Corrections and notified Officer Diana Jack that Judge Brady had ordered the release of the Santiago brothers. App. at 16. Shortly after speaking with Officer Encarnación, Judge Brady prepared a handwritten Order, addressed to the Bureau of Corrections, reducing to writing his telephone directive to release the Santiago brothers. Emad Rabieh, the Santiagos' employer, carried the handwritten Order to the Bureau of Corrections. App. at 1, 18, 28. Warden Walcott and Chief Harris reviewed the handwritten Order, App. at 35, 41 however, both Warden Walcott and Chief Harris were unfamiliar with Judge Brady's signature. Consequently, they determined that, absent authentication of the Order by means of a seal or certification from the court, they lacked authority to release the Santiago brothers. App. at 39, 46.³ The Santiago brothers, therefore, were denied release until Monday, May 16,1994, when the Bureau of Corrections received the typewritten, duly executed and certified court Order. App. at 11, 35, 41.

On May 16, 1994, in reaction to the delayed release, Attorney Amelia Joseph, on behalf of the Santiagos, filed a motion to show cause why certain correctional officers and officials should not be held in contempt of court. App. at 6-8. In immediate response to that motion, Judge Brady, on May 17,1994, ordered certain named correctional officers and officials to appear before this court to show cause why they should not be held in contempt for their failure to follow the court's handwritten Order to release the Santiagos. App. 9-10. The Order to Show Cause initiated a criminal contempt proceeding against five (5) correction officers and officials,⁴ including Warden Walcott and Chief Harris, which was separate and apart from the underlying prosecution of the Santiago brothers. The named correction officers and officials, as employees of the Bureau of Corrections, were represented by the Attorney General's Office. Amelia Joseph was ostensibly appointed by the Court as special private prosecutor.⁵ After the hearing, only Warden Walcott and Chief Harris were found guilty of criminal contempt and each was issued a fine. On May 23, 1994, Warden Walcott and Chief Harris instituted this appeal. On August 26, 1994, the Government, on behalf of Warden Kurt Walcott and Chief Ewin Harris, filed an appellants' brief. The brief had a double caption, with one caption designating, for the first time, Judge Julio Brady and the Territorial Court of the Virgin Islands as appellees.⁶ On December 2,1994, Amelia Joseph filed a notice of intention not to file an appellees' brief.

III. DISCUSSION

Warden Kurt Walcott and Chief Ewin Harris ("Warden Walcott and Chief Harris" or collectively "Appellants") assert that their respective convictions, entered on May 19, 1994, and accompanying fines should be overturned as a result of procedural error. They argue specifically that: (a) the trial court denied appellants their Sixth and Fourteenth Amendment Rights, guaranteed under the U.S. Constitution, as made applicable to residents and constituents of the Territory of the U.S. Virgin Islands, through Section 3 of the Revised Organic Act of 1954, as amended;⁷ and (b) the trial court abused its discretion by appointing an interested private counsel as special prosecutor in the criminal contempt proceedings.

In addition to the procedural challenges, appellants contend that the prosecution failed to prove beyond a reasonably doubt "wilful" disobedience of a court order. This Court will not address this issue since the matter is disposed of on grounds that: (1) the trial judge's failure to disqualify himself from presiding in the contempt proceedings; and (2) the appointment or ratification of Attorney Amelia Joseph, as a special private prosecutor, constituted reversible error.

This Court will independently address the disqualification of Judge Brady from presiding over the criminal contempt proceedings, absent consent by the correctional officials. Additionally, we are constrained to address the inappropriateness of appellants' sudden and inexplicable designation of the trial court and the trial judge as "appellees", although never raised on appeal since the special counsel, who prosecuted the criminal contempt proceeding at trial, declined to file a brief on appeal.

A. SIXTH AND FOURTEEN AMENDMENT CHALLENGES

The appellant vehemently asserts that the manner in which the criminal contempt hearing was conducted violated their rights guaranteed to them by the Sixth and Fourteenth Amendment to the United States Constitution.⁸

In further elaborating upon their constitutional challenges, the appellants contend that their Sixth Amendment right to confront witnesses against them was violated when the trial judge "testified" about facts and circumstances that gave rise to the charges, without subjecting himself to cross-examination.

Additionally, appellants insisted that their Fourteenth Amendment due process rights to a fair and impartial tribunal were compromised when the trial judge initiated the criminal contempt charges, prosecuted the charge and then presided over the proceedings.

Although the appellants may have raised constitutional issue(s), it is well settled that this Court can avoid determining constitutional questions, although properly presented by the record, if there is also present some other grounds upon which the case may be disposed. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 80 L. Ed. 688, 56 S. Ct. 466 (1936). Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the court will decide only the latter. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 53 L. Ed. 753, 29 S. Ct. 451 (1909).

Because the inappropriateness of the contempt proceedings was decided by an application of Terr. Ct. R. 138 and 139 and/or Fed. R. Crim. R 42 and the case law interpreting the Rules, the constitutional issues and challenges raised will not be addressed.

B. APPOINTMENT OF PRIVATE COUNSEL AS SPECIAL PROSECUTOR

Although the territorial judiciary may designate the Attorney General or the United States Attorney to prosecute criminal contempt proceedings, it is equally authorized to designate a private attorney to do so. See Fed. R. Crim. P.42(b) and Terr. Ct. R. 139(c). While the territorial court would ordinarily seek first to appoint the appropriate prosecuting authority, Young v. United States ex rel. Vuitton Et. Fils, S.A., 481 U.S. 787, 801, 95 L. Ed. 2d 740, 107 S. Ct. 2124 (1987), such a designation in this case would have created a conflict of interest since the Virgin Islands Department of Justice had the inherent obligation to defend the correctional officers and officials charged with criminal contempt of court.⁹ Because of the unavailability of the Virgin Islands Department of Justice to prosecute the criminal contempt action, the court was free to exercise its powers, under Terr. Ct. R. 139(c) or Fed. R. Crim. P. 42(b) to appoint private counsel to prosecute the criminal contempt action. In exercising its powers to appoint or designate private counsel, the court is required nonetheless to appoint a "disinterested" prosecutor. See Young, at 787, 808, 809-810 (1987).

Notwithstanding the limitations placed upon the court's exercise of power, the territorial court judge, by appointment or ratification, permitted Attorney Amelia Joseph to specially prosecute the contempt proceeding against the correctional officials, although:

1. Attorney Amelia Joseph was counsel for Mr. Emad Rabieh, the employer of the defendants Daniel and Leonico Santiago. App. at 6,14.

2. Attorney Joseph was retained to represent the Santiago brothers following their arrest on May 13, 1994. App. at 6.

3. Amelia Joseph moved the court on May 14,1994 to release the Santiago brothers on their own recognizance.

4. Attorney Joseph's motion was agreed upon during a telephone conversation she had on Saturday, May 14, 1994 with Assistant Attorney General Wallace Capel, and Judge Julio Brady.

5. Mr. Rabieh and the Santiagos, to whom Attorney Joseph represented, were the beneficiaries of the court's initial May 14,1994 telephonic Order, its May 14,1994 handwritten Order and its ultimate May 16, 1994 certified and sealed Order.

6. In furtherance of her clients' interest, Attorney Joseph filed a Motion to Show Cause against various correction officers and officials on Monday, May 16, 1994.

7. In response to Attorney Joseph's Motion to Show Cause, on May 17, 1994, the court issued an Order to Show Cause against the correction officers and officials contained in Attorney Joseph's motion. App. at 8, 10.

Under the analogous authority of Young v. Vuitton Et. Fil, 481 U.S. 787, 95 L. Ed. 2d 740, 107 S. Ct. 2124 (1987), the Supreme Court held that "counsel for a party that is the beneficiary of a court order may not be appointed to undertake criminal contempt prosecutions for alleged violations of the order". If counsel to an interested party is appointed, the doctrine of harmless error cannot be invoked because the error is so fundamental and pervasive.

Since Attorney Amelia Joseph was undeniably counsel for parties who were the beneficiaries of the Court Order under review, her appointment or ratification to act as special private prosecutor by the Court constituted reversible error, regardless of the facts and circumstances.

C. DISQUALIFICATION OF JUDGE FROM PRESIDING AT CONTEMPT PROCEEDING

Terr. Ct. R. 7 states:

"The practice and procedure in the Territorial Court shall be governed by the rules of the Territorial Court and, to the extent not inconsistent therewith, by the Rules of the District Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence."

A fair reading of the Federal Rules of Criminal Procedure and the Territorial Court Rules disclose no inconsistencies regarding criminal contempt procedures. Neither Fed.R.Crim.P.42(a) nor Terr. Ct. R. 138 permits summary contempt proceedings if the contempt was not committed in the actual presence of the court. U.S. v. Wilson, 421 U.S. 309, 44 L. Ed. 2d 186, 95 S. Ct. 1802 (1975). Rule 42 does, however, permit the judge to act summarily when the contempt involves disrespect to or criticism of the judge, provided it occurs in the judge's presence.

To evoke the rule governing summary criminal contempt, the contempt must not only be committed directly under the eye or within the view of the court, but must be an open threat to the orderly procedure of the court and a flagrant defiance of the person and presence of the judge before the public. U.S. v. Marra, 482 F.2d 1196 (1973); Sacher v. U.S., 343 U.S. 1, 96 L. Ed. 717, 72 S. Ct. 451 (1952). Moreover, in the rare instances in which summary contempt proceedings are appropriate, the judge must prepare a certificate, asserting that he saw or heard the conduct constituting the contempt and it was committed in the actual presence of the court. The certificate, or order of contempt, must recite the facts constituting the contempt and must be signed by the judge and entered of record. 3 Wright, C.A. Federal Practice and Procedure § 708, p. 843 (1982).

Because the contempt in this case involves disrespect to a judge, committed outside his presence, the matter was prosecuted "on notice" but not in accordance with Terr. Ct. R. 139(d) and/or Fed. R. Crim. P. 42(b).¹⁰

Terr. Ct. R. 139(d) provides as follows:

Except as provided in Rule 138, if the contempt charge involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the consent of the person charged with contempt. (Emphasis added).

Fed. R. Crim. P 42(b) in pertinent part:

A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. ... If the contempt charged involves disrespect to or criticism of a judge, that judge is disqualified from presiding at the trial or hearing except with the defendant's consent. (Emphasis added).

While the refusal by the correctional officers and follow the court's handwritten Order, dated May 14, 1994 constituted disrespect to Judge Brady, the act was done outside of his presence. Absent consent by the correctional officers and officials charged, permitting Judge Brady to preside over the contempt proceedings Judge Brady was required by federal and local rule to disqualify himself from presiding over the criminal contempt proceedings. Failure to disqualify himself constituted reversible error. Cooke v. U.S., 267 U.S. 517, 69 L. Ed. 767, 45 S. Ct. 390 (1925).

D. APPROPRIATE DESIGNATION OF PARTIES TO CRIMINAL CONTEMPT HEARING AND SUBSEQUENT APPEAL

The caption presently utilized in this appeal designates Walcott and Harris as "Appellants" and the Territorial Court of the Virgin Islands and Julio A. Brady, Judge as "Appellees". At issue is the appropriate designation of the parties in this criminal contempt appeal.

In order to determine the appropriate parties to this appeal and the proper caption in a contempt proceeding, a distinction must be made between civil contempt and criminal contempt. The objective of civil contempt is to coerce the person to do what he is supposed to do and is thus remedial in nature. On the other hand, criminal contempt is punitive in nature with the objective of "vindicating the authority of the Court". Carbon Fuel Co. v. United Mine Workers of America, 517 F.2d 1348, 1349 (4th Cir. 1975) (quoting Shillitani v. U.S., 384 U.S. 364, 370, 16 L. Ed. 2d 622, 86 S. Ct. 1531 (1966)). Furthermore, proceedings for civil contempt are between the original parties and are instituted and tried as a part of the main cause. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445, 55 L. Ed. 797, 31 S. Ct. 492 (1911). As a continuation of the underlying civil action, the civil contempt caption should so indicate. 3 Wright, C.A., Federal Practice and Procedure, § 704, p. 823 (1982).

Conversely, proceedings for criminal contempt are between the public and the persons being cited for contempt. The proceedings are not a part of the original case, and can arise from a criminal action or a civil action. Additionally, the criminal contempt proceedings, unlike civil contempt proceedings, are not abated by termination of the main action.

In order to "vindicate the authority of the court", an order to show cause was served upon designated correctional officers and officials. The issuance of the order to show cause established notice of the initiation of a separate criminal action.¹¹ Because the criminal contempt was a separate criminal action, utilization of the caption "Government of the Virgin Islands v. Daniel Santiago and Leonico Santiago, Crim. No. 371/1994" to prosecute the criminal contempt charge was both misleading and erroneous. While the Government attorneys eventually corrected the caption to reflect the correctional officials as appellants, the sudden and inexplicable designation of the Territorial Court of the Virgin Islands and Judge Brady as appellees was totally unwarranted and without authority. The appellants' brief should have been entitled, "Government of the Virgin Islands v. Warden Kurt Walcott and Chief Ewin Harris et al" or "In re: Warden Kurt Walcott et al."

In emphasizing the long standing significance of having an appropriate designation of parties in a criminal contempt proceeding, the United States Supreme Court in Gompers v. Bucks Stove & P. Co., 221 U.S. 418, 446, 55 L. Ed. 797, 31 S. Ct. 492 (1911) said:

In the first place the petition was not entitled "United States v. Samuel Gompers et al" or "In re: Samuel Gompers et al., as would have been proper, and, according to some decision, necessary, if the proceedings had been at law for criminal contempt. This is not a mere matter of form, for manifestly every citizen, however unlearned in the law, by mere inspection of the papers in contempt proceedings ought to be able to see whether it was instituted for private litigation or for public prosecution, whether it sought to benefit the complainant or vindicate the Court's authority. He should not be left in doubt as to whether relief or punishment was the object in view. He is not only entitled to be informed of the nature of the charge against him but to know that it is a charge, and not a suit, United States v. Cruikshank, 92 U.S. 542, 559, 23 L. Ed. 588, 593. (Emphasis Added.)

The Appellants herein impermissibly attempted to join the Territorial Court of the Virgin Islands and Judge Brady as parties to this appeal by merely designating them as appellees, knowing that neither Judge Brady not the Territorial Court participated as litigants at the trial level. Additionally, a judge is not required to personally defend his/her decision when rendered in his or her judicial capacity, absent the filing of a writ of mandamus or prohibition, authorized pursuant to Fed. R. App. P. 21. No such application for writ of mandamus or writ of prohibition was made in this case.

De Parcq v. U.S. District Court for Southern District of Iowa, 235 F.2d 692 (8th Cir. 1956) is readily distinguishable from the case sub judice. The petitioner in Deparcq appropriately made an application pursuant to Fed.R.App. P. 21 for a writ of prohibition directed to the U.S. District Court for the Southern District of Iowa and Judge Riley to prohibit the court from holding him in contempt for failure to respond to the Order to Show Cause, thus authorizing a caption designating the court and the presiding judge as respondents or appellees.

Accordingly, in the absence of any application of writ of mandamus or prohibition filed in this case pursuant to Fed.R.App.P. 21, Judge Brady and the Territorial Court of the Virgin Islands must be stricken as appellees in this appeal.

IV. CONCLUSION

Notwithstanding the fact that the appellants erroneously and impermissibly named Judge Brady and the Territorial Court as appellees without filing a writ of mandamus or prohibition pursuant to Fed.R.App.P. 21, the judgment of criminal contempt against Warden Walcott and Chief Harris must be reversed and dismissed because: (1) the trial court judge committed reversible error by appointing counsel for parties who were beneficiaries of the Order under review to prosecute the contempt proceedings, and (2) the trial judge failed to disqualify himself from presiding over the criminal proceeding, as required by Fed.R.Crim. P. 42(b) and Terr.Ct.R.139(d), where the contempt charge involved disrespect to him and where the persons being charged did not consent for him to preside over the case.

1 This appeal was decided on the Appellants' brief, without oral argument.

2 V.I. Code Ann. tit. 14, § 581 provides in pertinent part:

"Every court of the Virgin Islands shall have power to punish by fines or imprisonment, at its discretion, such contempt of its authority, and none other as —•

(3) disobedience or resistance of its lawful writ, process, order, rule, decree or command."

3 Although Warden Walcott spoke to Judge Brady and recognized his voice over the telephone, Walcott questioned the authenticity of the Order given the fact that one of the detainees had a previous encounter with the law, that the purported Order was handwritten on a yellow sheet of paper, and the Order was delivered by a male "Arab" and not a Marshal. Trans, pgs. 73-86.

4 Mitchelle v. Fiore, 470 F.2d 1149, 1153 (3rd Cir. 1972), certiorari denied, 93 S. Ct. 1899, 411 U.S. 938, 36 L. Ed. 2d 399 (1973) (a criminal contempt proceeding need not be initiated by an indictment. An order to show cause furnishes defendant with notice under Fed. R. Crim. P. 42(b) and this meets the requirements of due process).

5 See Order dated November 9, 1994, by Judge Magistrate Resnick, referring to Attorney Amelia Joseph as such.

6 A discussion as to Judge Brady's and the Territorial Court's designation is discussed in § IIID infra.

7 48 U.S.C. § 1561.

8 Substantive rights, including the Sixth and Fourteenth Amendments to the U.S. Constitution, are made applicable to residents and constituents of the Territory of the Virgin Islands through Section 3 of the Revised Organic Act, as amended, and codified at 48 U.S.C. § 1561.

9 According to V.I. Code Ann. tit. 5, § 4503(a), "[a] Bureau of Corrections is established as a division of the Department of Justice."

10 Notice was in the form of the Court's issuance of an Order To Show Cause upon the various correctional officers and officials.

11 While the correctional officers and officials named in the Order to Show Cause were not the defendants in the underlying action, they did become the defendants in the criminal contempt proceedings.