APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX; CHRISTIANSTED JURISDICTION (D.C. Crim. No. 80-00072)
Before Hunter, Van Dusen and Sloviter, Circuit Judges.
1. Appellee Arthur Christensen was charged with murder in the second degree, in violation of 14 V.I.C. § 922(b)(1957).*fn1 Following his trial in the District Court for the District of the Virgin Islands, the jury found appellee guilty of the lesser included offense of voluntary manslaughter (14 V.I.C. § 924(1) (1957)).*fn2
2. Between six o'clock and six-thirty on the morning of April 23, 1980, appellee discovered the body of his twenty-three year old common-law wife, Ivelice Grullon de la Cruz ("Grullon"), in the bathtub of her apartment in Frederiksted, St. Croix. Water was running into the bathtub, which was overflowing. An autopsy revealed that death was caused by drowning.
3. In the months preceding the death, the relationship between appellee and Grullon was marked by frequent arguments and fights. The government contends that Grullon's drowning was caused by appellee at the end of one such fight. Appellee asserts that, although he had seen Grullon early on the evening of April 22, he was sleeping at his own apartment at the time of her death.
4. The evidence at trial showed that Grullon had suffered several lacerations and contusions of the head and neck immediately prior to her death. Expert testimony suggested that these injuries were consistent with either an accidental fall, or intentionally inflicted blows. The remaining evidence consisted primarily of accounts of appellee's relationship with Grullon, testimony regarding appellee's conduct on the evening of April 22, and testimony concerning the evidence found at the scene of the alleged killing.
5. After the jury rendered its guilty verdict, appellee filed a motion for a judgment of acquittal under Fed.R.Crim.P. 29(c). No motion for a new trial was made. The district court ruled, during a hearing on the motion for a judgment of acquittal, that much of the oral testimony and physical evidence introduced by the government had not been connected with the appellee, as had been promised by the prosecution. The court ruled that this evidence would not have been admitted had it known that no foundation would be provided. The court also found evidence of prosecutorial and police misconduct before and during appellee's trial. After excluding the evidence that had been improperly exposed to the jury, the court ruled that the remaining evidence was insufficient to support a finding by a reasonable juror that appellee was guilty beyond a reasonable doubt. The court granted appellee's motion, entered a judgment of acquittal, and the Government of the Virgin Islands brought the instant appeal from the district court's order.
6. This appeal raises three issues:
a) Does 18 U.S.C. § 3731 (1976) provide authority for the appeal of an acquittal by the Government of the Virgin Islands?
b) Does this appeal violate the double jeopardy clause within the meaning of § 3731?
c) Did the lower court err in granting appellee's motion for a judgment of acquittal?
7. We have reached the following conclusions:
a) In enacting and enforcing its criminal laws, a territory, unlike a state, acts as an arm of the federal government. Thus, the statute authorizing appeal of an acquittal by the United States also authorizes appeal of an acquittal by the Government of the Virgin Islands.
b) Under the decisional law of the Supreme Court and of this circuit, we have authority under § 3731 to hear government appeals from judgments of acquittal unless the double jeopardy clause precludes such an appeal. Because reversal of the judgment of acquittal here would result in reinstatement of the jury's guilty verdict, rather than retrial of the appellee, the double jeopardy clause is not violated and we may hear the appeal.
c) Viewing the evidence in the light most favorable to the government, we agree with the district court's conclusion that the evidence was insufficient to support the jury's verdict. Therefore, the district court did not err in granting appellee's motion for a judgment of acquittal.
8. Accordingly, the judgment of the district court will be affirmed.
Applicability of 18 U.S.C. § 3731 to the Government of the Virgin Islands
9. It is well settled that express statutory authorization is required for an appeal by the government in a criminal case. United States v. DiFrancesco, 449 U.S. 117, 131, 101 S. Ct. 426, 434, 66 L. Ed. 2d 328 (1980); United States v. Scott, 437 U.S. 82, 84-85, 98 S. Ct. 2187, 2190-2191, 57 L. Ed. 2d 65 (1978). The Government of the Virgin Islands asserts that it has the requisite authority to appeal in this case under 18 U.S.C. § 3731 (1976). Section 3731 provides in part:
In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
Appellee, the defendant below, asserts that this statute provides authority for an appeal only "by the United States," and not by ...