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Government of Virgin Islands v. Ortiz

decided: June 9, 1970.

GOVERNMENT OF THE VIRGIN ISLANDS
v.
SALVADOR SANTIAGO ORTIZ, JR., APPELLANT



Hastie, Chief Judge, and Ganey and Stahl,*fn* Circuit Judges.

Author: Hastie

Opinion OF THE COURT

HASTIE, Chief Judge.

The appellant Ortiz is being held without bail under an information filed by the United States Attorney in the District Court of the Virgin Islands charging Ortiz with first degree murder under section 922(a) (1) of title 14 of the Virgin Islands Code. After the information issued, Ortiz petitioned for a writ of habeas corpus on the ground that his arrest in Puerto Rico and return to the Virgin Islands were illegal. At the hearing on his petition, he also argued that the district court was required to set bail in accordance with the Bail Reform Act of 1966, 18 U.S.C. §§ 3146-52 (Supp. IV, 1969). The district court refused to issue the writ or to set bail, and Ortiz has appealed.

The victim of the alleged murder died of gunshot wounds inflicted on July 8, 1967 in St. Croix. The evidence developed at the habeas corpus hearing showed that Ortiz was implicated in the crime by statements taken from two alleged accomplices nearly two years later. At that time, Ortiz was living with his father in Puerto Rico. Two F.B.I. agents arrested him there and took him to La Princessa jail in San Juan. The next day, two Virgin Islands detectives removed Ortiz from La Princessa jail and took him to the Virgin Islands without a warrant and, so far as appears from the record, without extradition or removal proceedings of any kind. Ortiz was taken before a municipal court judge in St. Croix and held on a complaint for first degree murder. Before a preliminary hearing was held, the United States Attorney filed an information in the district court charging Ortiz with the same crime. He is now held for trial on that information.

At the habeas corpus hearing, Ortiz indicated in response to questions posed by the court that he had submitted to arrest and removal from Puerto Rico in order to comply with the wishes of his father, who is a bodyguard for the Governor of Puerto Rico:

"Q. All right, did you at any time tell them that you didn't want to come back to St. Croix? Did you protest being taken back here?

A. No, sir.

Q. You did what they told you to do?

A. I must do what my father told me to do. Father is the law."

The government presented no evidence, and the district court made no finding, on the legality of the arrest and removal.*fn1 However, the district court found that Ortiz had returned to the Virgin Islands voluntarily, "in the sense that he did not express opposition to returning * * *." Although there is some evidence that Ortiz did not consent to his return to the Virgin Islands, the district court's finding is not clearly erroneous. Moreover, even if Ortiz had been illegally arrested and forcibly brought within the jurisdiction, there are decisions of the United States Supreme Court which support the proposition that his detention and trial thereafter under a valid information would violate no constitutional guarantee. See Frisbie v. Collins, 1952, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541; Mahon v. Justice, 1888, 127 U.S. 700, 8 S. Ct. 1204, 32 L. Ed. 283; Ker v. Illinois, 1886, 119 U.S. 436, 7 S. Ct. 225, 30 L. Ed. 421.*fn2

At the hearing on his petition for a writ of habeas corpus, Ortiz urged the district court to set bail in accordance with the Bail Reform Act of 1966. Since first degree murder is not punishable by death in the Virgin Islands,*fn3 application of the Bail Reform Act would have required the district court to release Ortiz on such conditions as reasonably would have assured his appearance at trial. 18 U.S.C. § 3146 (Supp. IV, 1969). However, the government took the position that the Bail Reform Act should not apply when it conflicts with the bail provision contained in section 3 of the Revised Organic Act, 48 U.S.C. § 1561 (1964):

"* * *

All persons shall be bailable by sufficient sureties in the case of criminal offenses, except for first-degree murder or any capital offense when the ...


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