Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-31-2002

USA v. Ntreh
Precedential or Non-Precedential:

Docket 1-1204




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Recommended Citation
"USA v. Ntreh" (2002). 2002 Decisions. Paper 76.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/76


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Filed January 31, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1204

THE UNITED STATES OF AMERICA,

       Appellant,

v.

ABRAHAM NEE NTREH.

APPEAL FROM THE DISTRICT COURT
OF THE VIRGIN ISLANDS

(D.C. No. 00-cr-00045)
District Judge: The Honorable Raymond L. Finch

Argued December 4, 2001

BEFORE: BECKER, Chief Judge, NYGAARD and
COWEN, Circuit Judges.

(Filed January 31, 2002)

       Carl F. Morey, Esq. (Argued)
       Office of United States Attorney
       1108 King Street, Suite 201
       Christiansted, St. Croix
       USVI, 00820
        Counsel for Appellant

       Abraham N. Ntreh (Argued)
        Pro Se Appellee
OPINION OF THE COURT

NYGAARD, Circuit Judge.

The sole issue in this appeal is whether Appellant, the
United States of America, can prosecute a federal felony
offense in the District Court of the Virgin Islands by
information. The District Court below dismissed an
information against Appellee, ruling that the Government
must proceed by grand jury indictment. Because we find
the law clear that federal felonies may be pursued by
information in the Virgin Islands, we reverse.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Appellee, Abraham Nee Ntreh, was arrested by the
Immigration and Naturalization Service in St. Croix and
was charged by information with one count of illegal reentry
into the United States after having been deported, in
violation of 8 U.S.C. S 1326. On August 25, 2000, the
Government filed an eight-count superseding information
charging Ntreh with three counts of illegal reentry into the
United States, in violation of 8 U.S.C. S 1326; two counts of
making false statements to INS agents, in violation of 18
U.S.C. S 1001; one count of illegal entry into the United
States, in violation of 8 U.S.C. S 1325; and two counts of
misuse of immigration documents, in violation of 18 U.S.C.
S 1546. The case was never investigated by, nor presented
to, a grand jury.

On the day Ntreh's trial was scheduled to begin, his
counsel orally moved to dismiss the Information. Ntreh's
attorney stated that she "recognize[d] the wording of the
Revised Organic Act and the cases that follow," but argued
that "the policy and practice . . . since we started using a
grand jury . . . has been that if the Government is going to
proceed to trial that we proceed by indictment." The
prosecutor responded that Rule 54 of the Federal Rules of
Criminal Procedure permits the Government to proceed by

                               2
indictment or information in the Virgin Islands. Apparently
perceiving a conflict between Rule 54 and Rule 7, which
requires proceeding by indictment for an offense which may
be punished by imprisonment for a term exceeding one
year, the District Court dismissed the Information with
little explanation. The Government filed a Motion to
Reconsider Dismissal of the Information, which the District
Court denied without addressing the Government's
arguments. The Government appeals.

II.

DISCUSSION

As a preliminary matter, we note that residents of the
Virgin Islands have no constitutional right to indictment by
a grand jury. We recognized in Government of the Virgin
Islands v. Dowling, 

, 667 (3d Cir. 1980) that
"[i]n the unincorporated Territory of the Virgin Islands the
requirement of the Fifth Amendment for indictment of a
grand jury is not applicable." Similarly, the Supreme Court
in United States v. Verdugo-Urquidez, 

(1990),
discussed the application of the Constitution to
unincorporated territories. The Court stated that its
decisions in The Insular Cases

       held that not every constitutional provision applies to
       governmental activity even where the United States has
       sovereign power. See, e.g., Balzac v. Porto Rico, 

, 

, 

(1922) (Sixth
       Amendment right to jury trial inapplicable in Puerto
       Rico); Ocampo v. United States, 

, 

, 

(1914) (Fifth Amendment grand
       jury provision inapplicable in Philippines); Dorr v.
       United States, 

, 

, 

(1904) (jury trial provision inapplicable in
       Philippines); Hawaii v. Mankichi, 

, 

, 

(1903) (provisions on
       indictment by grand jury and jury trial inapplicable in
       Hawaii); Downes v. Bidwell, 

, 

, 

(1901) (Revenue Clauses of
       Constitution inapplicable to Puerto Rico). In Dorr, we

                               3
       declared the general rule that in an unincorporated
       territory--one not clearly destined for statehood--
       Congress was not required to adopt "a system of laws
       which shall include the right of trial by jury, and that
       the Constitution does not, without legislation and of its
       own force, carry such right to territory so situated 

, 24 S. Ct., at 813 (emphasis added). Only
       "fundamental" constitutional rights are guaranteed to
       inhabitants of those territories. 

24 S. Ct., at
       812; 

, 258 U.S., at 

; see Examining Board of Engineers, Architects and
       Surveyors v. Flores de Otero, 

, 599, n. 30,
       

, 2280 n. 30, 

(1976).

. Thus, Ntreh has no
constitutional right to indictment by a grand jury.

If Ntreh has any right to indictment by a grand jury in a
federal prosecution, it would have to emanate from a
federal statute. In the "Revised Organic Act," Congress
created a bill of rights for the Virgin Islands. 48 U.S.C.
S 1561. That act allows offenses against the United States
which are prosecuted in the District Court of the Virgin
Islands to proceed by either indictment or information. It
provides, in part:

       The following provisions of and amendments to the
       Constitution of the United States are hereby extended
       to the Virgin Islands to the extent that they have not
       been previously extended to that territory and shall
       have the same force and effect there as in the United
       States or in any State of the United States: article I,
       section 9, clauses 2 and 3; article IV, section 1 and
       section 2, clause 1; article VI, clause 3; the first to
       ninth amendments inclusive; the thirteenth
       amendment; the second sentence of section 1 of the
       fourteenth amendment; and the fifteenth and
       nineteenth amendments: Provided, That all offenses
       against the laws of the United States and the laws of
       the Virgin Islands which are prosecuted in the district
       court pursuant to sections 1612(a) and (c) of this title
       may be had by indictment by grand jury or by
       information, and that all offenses against the laws of
       the Virgin Islands which are prosecuted in the district

                                4
       court pursuant to section 1612(b) of this title or in the
       courts established by local law shall continue to be
       prosecuted by information, except such as may be
       required by local law to be prosecuted by indictment by
       grand jury.

48 U.S.C. S 1561 (emphasis added). The present case,
involving a violation of federal law, was brought in the
District Court pursuant to 48 U.S.C. S 1612(a) which vests
the District Court of the Virgin Islands with the jurisdiction
of a District Court of the United States. As made clear in
the italicized language above, Congress has clearly stated
that offenses which are prosecuted pursuant to S 1612(a)
may be had by indictment or information. Thus, Ntreh had
no right to demand indictment by a grand jury, and the
Government was well within its statutory authority in
choosing to proceed by information.

Further evidence that Congress intended federal criminal
violations in the Virgin Islands to be prosecuted by either
indictment or information is found in 48 U.S.C.S 1614(b),
titled "Criminal offenses; procedure; definitions; indictment
and information," which states:

       Where appropriate, the provisions of part II of Title 18
       and of Title 28, and, notwithstanding the provisions of
       rule 7(a) and of rule 54(a) of the Federal Rules of
       Criminal Procedure relating to the requirement of
       indictment and to the prosecution of criminal offenses
       in the Virgin Islands by information, respectively, the
       rules of practice heretofore or hereafter promulgated
       and made effective by the Congress or the Supreme
       Court of the United States pursuant to Titles 11, 18
       and 28 shall apply to the district court and appeals
       therefrom: Provided, That the terms "Attorney for the
       government" and "United States attorney" as used in
       the Federal Rules of Criminal Procedure, shall, when
       applicable to causes arising under the income tax laws
       applicable to the Virgin Islands, mean the Attorney
       General of the Virgin Islands or such other person or
       persons as may be authorized by the laws of the Virgin
       Islands to act therein: Provided further, That in the
       district court all criminal prosecutions under the laws of
       the United States, under local law under section

                               5
       1612(c) of this title, and under the income tax laws
       applicable to the Virgin Islands may be had by
       indictment by grand jury or by information: Provided
       further, That an offense which has been investigated by
       or presented to a grand jury may be prosecuted by
       information only by leave of court or with the consent
       of the defendant. All criminal prosecutions arising
       under local law which are tried in the district court
       pursuant to section 1612(b) of this title shall continue
       to be had by information, except such as may be
       required by the local law to be prosecuted by
       indictment by grand jury.

48 U.S.C. S 1614(b) (emphasis added). This section
reiterates that federal criminal prosecutions in the District
Court of the Virgin Islands may be commenced by
indictment or by information, except that once a case has
been presented to a grand jury, the case may be prosecuted
by information only by leave of court or with the
defendant's consent. Ntreh's case never was presented to a
grand jury, so that exception does not apply here.

When Ntreh's counsel made her oral motion to dismiss
the information before the District Court, she contended
that there is a conflict between Federal Rules of Criminal
Procedure 7(a) and 54(a). It appears that the District Court
accepted her argument, although it provided little
explanation for its ruling. Rule 7(a), entitled"Use of
Indictment or Information" states:

       An offense which may be punished by death shall be
       prosecuted by indictment. An offense which may be
       punished by imprisonment for a term exceeding one
       year or at hard labor shall be prosecuted by indictment
       or, if indictment is waived, it may be prosecuted by
       information. Any other offense may be prosecuted by
       indictment or by information. An information may be
       filed without leave of court.

Fed. R. Crim. P. 7(a). Rule 54, entitled "Application and
Exception," states, in part:

       These rules apply to all criminal proceedings in the
       United States District Courts; in the District Court of
       Guam; in the District Court for the Northern Mariana

                               6
       Islands, except as otherwise provided in articles IV and
       V of the covenant provided by the Act of March 24,
       1976 (90 Stat. 263); and in the District Court of the
       Virgin Islands; in the United States Courts of Appeals;
       and in the Supreme Court of the United States; except
       that the prosecution of offenses in the District Court of
       the Virgin Islands shall be by indictment or information
       as otherwise provided by law.

Fed. R. Crim. P. 54(a) (emphasis added). The Government
argues, and we agree, there is no conflict between these two
rules. Rule 54(a) creates an exception to Rule 7(a) which
allows certain offenses in the Virgin Islands to be
prosecuted by indictment or information. The phrase"as
otherwise provided by law" appears to be a reference to 48
U.S.C. SS 1561 and 1614(b). Indeed, the Advisory
Committee Notes to the 1991 Amendment to Rule 54
support this understanding of that language. They state:

       The amendment to 54(a) conforms the Rule to
       legislative changes affecting the prosecution of federal
       cases in Guam and the Virgin Islands by indictment or
       information. The "except" clause in Rule 54(a)
       addressing the availability of indictments by grand jury
       [in] Guam has been effectively repealed by Public Law
       98-454 (1984), 48 U.S.C. S 1424-4 which made the
       Federal Rules of Criminal Procedure (including Rule 7,
       relating to use of indictments) applicable in Guam
       notwithstanding Rule 54(a). That legislation apparently
       codified what had been the actual practice in Guam for
       a number of years. See 130 Cong. Rec., H25476 (daily
       ed. Sept. 14, 1984). With regard to the Virgin Islands,
       Public Law 98-454 (1984) also amended 48 U.S.C.
       SS 1561 and 1614(b) to permit (but not require) use of
       indictments in the Virgin Islands.

Fed. R. Crim. P. 54 advisory committee's note (emphasis
added). These Advisory Committee Notes clearly indicate
that indictments may be used in the Virgin Islands, but
they are not required. Thus, Ntreh has no right to demand
that he be prosecuted only by grand jury indictment.

The transcript of the hearing before the District Court
seems to indicate that there may be a local practice in the

                               7
Virgin Islands of proceeding by information only when a
defendant is expected to plead guilty, and this may help
explain the District Court's ruling. But any purported local
practice certainly cannot negate the clear Congressional
authorization to proceed by information as expressed in 48
U.S.C. S 1561, 48 U.S.C. S 1614(b), and Fed. R. Crim. P.
54(a).

III.

CONCLUSION

In sum, and for the above reasons, we hold that the
United States of America may prosecute a federal felony
offense in the District Court of the Virgin Islands by
information, and the District Court erred by dismissing the
Information. We reverse the District Court's dismissal, and
we will remand so the Information may be reinstated.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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