APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS; DIVISION OF ST. CROIX
Before Rosenn, Hunter and Higginbotham, Circuit Judges.
We review here the denial of the motions filed under Rule 35 of the Federal Rules of Criminal Procedure by Beaumont Gereau and Warren Ballentine for reduction of sentence. We will conclude that the court below had jurisdiction to decide these motions and that the court below acted within its discretion in denying these motions. Therefore, we will affirm.
On August 13, 1973 appellants, along with three other co-defendants, were convicted of eight counts of first degree murder, four counts of first degree assault and two counts of robbery. On that same day, the district judge sentenced each of the defendants to eight consecutive life terms of imprisonment on the murder counts and four fifteen year terms of imprisonment on the other counts to be served concurrently with the sentences on the murder counts. Two days later, the defendants filed a motion under Federal Rule of Criminal Procedure 33 for a new trial. This motion was subsequently denied.
This court affirmed the convictions, but remanded for further proceedings with respect to the new trial motion. See Government of the Virgin Islands v. Gereau, 502 F.2d 914 (3d Cir. 1974) (Gereau I). The Supreme Court denied certiorari on January 27, 1975. 420 U.S. 909, 95 S. Ct. 829, 42 L. Ed. 2d 839 (1975) (the 1975 denial). Upon remand, the new trial motion was again denied and we affirmed that denial. See Government of the Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975) (Gereau II). The Supreme Court denied certiorari on February 23, 1976. 424 U.S. 917, 96 S. Ct. 1119, 47 L. Ed. 2d 323 (1976) (the 1976 denial).
On December 30, 1975, the district court docketed a letter from one of the defendants, Meral Smith, requesting a reduction of sentence. On April 12, 1976, the court entered an order stating that this letter would be treated as a motion for reduction of sentence under Rule 35, but suggesting that formal motions be filed by all local attorneys of record. That the court considered the letter as a motion on behalf of all the co-defendants is made clear in a letter of record dated January 7, 1976 from the district court to the Virgin Islands Department of Probation and Parole in which the court stated:
You will learn from the attached copies of correspondence between Meral X (Smith) and myself that he has applied for a reduction of sentence. You will also note that I am treating this as formal motion (sic) under Rule 35. Since all of the defendants were tried together as a group and sentenced on the same occasion with identical sentences, I feel that I should treat this motion on behalf of all five defendants. Therefore, will you please make arrangements to furnish the court presentence reports on all five defendants of the Fountain Valley murder case.
Formal motions on behalf of appellants were filed in June, 1976. The exact date of these motions is not clear from the record. For the reasons discussed later, we do not deem this date crucial.
The district court denied the motions of all defendants in a Memorandum Opinion and Order issued February 9, 1978.
The initial question we must face is whether the court below had jurisdiction to hear the Rule 35 motions. More specifically, we must determine whether ...