On Appeal from the United States District Court of the Virgin Islands; D.C. Criminal Nos. 89-00119-1/2.
Greenberg, Cowen and A. Leon Higginbotham, Jr.,*fn* Circuit Judges.
HIGGINBOTHAM, Circuit Judge
Following their acquittal on several Virgin Islands charges arising from an alleged assault on May 19, 1989, Anthony Blyden and Allen Van Putten appeal the denial, by the District Court of the Virgin Islands, of their motion to dismiss a federal information arising from the same incident. Appellants argue that trial on the federal charges will violate the Double Jeopardy Clause because all of the crimes charged in the federal information are identical to the two gun possession charges prosecuted under Virgin Islands law for which they were acquitted. The district court held that appellants had waived their double jeopardy claim because they had precipitated the severance of the two trials. The court also considered appellants' double jeopardy claim and predicted that the claim would have failed in any case. Although it is a close question, we find that appellants "waived" their double jeopardy claim. Therefore, we will affirm the district court's order denying the motion to dismiss the federal charges.
This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and Abney v. United States, 431 U.S. 651, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977), as this is an appeal from an order of the district court denying appellant's motion to dismiss a criminal information on double jeopardy grounds.
On May 20, 1989, appellants were arrested in St. Thomas and various firearms seized from them in response to a complaint that they had attempted to murder Clarence Husband and Parris Nicholas. On May 31, 1989, the United States Attorney for the District of the Virgin Islands filed a 10-count information, Criminal No. 1989-89, that charged appellants with violations of Virgin Islands law. The first six counts related to appellants' attempted murder of Husband and Nicholas on May 19, 1989;*fn1 the remaining four counts charged Van Putten with offenses relating to his separate assault on Husband on May 18, 1989.*fn2
Shortly after appellants' arrest, the Bureau of Alcohol, Tobacco, and Firearms ("ATF") conducted a federal investigation to determine whether appellants had violated federal firearms laws. The investigation revealed that Blyden was a fugitive, having fled from the state of New York in 1982 following his release on bail on first-degree robbery and related weapons charges. At a July 28, 1989 status conference, the prosecutor informed the district court*fn3 that it intended to file additional charges if the pending ATF report supported such action. The court directed the government that it had until August 4, 1989 to file any additional charges or else the "information would proceed as constituted." (Blyden App. at 5). By August 1, 1989, the ATF had conducted ballistics tests on the weapons and verified that Blyden and Van Putten were not authorized to transport or possess a machine gun. (Blyden App. at 9-12). On August 4, 1989, the United States Attorney filed a four-count information, Criminal No. 1989-119, against appellants, which alleged offenses in relation to the May 19, 1989 incident.*fn4
On August 25, 1989, Blyden filed a motion to require the government to elect between one of the two informations and dismiss the other one on the grounds that the Virgin Islands gun possession counts were identical to the federal gun possession charges and thus placed him in danger of double jeopardy. (Blyden App. at 170-171). On November 7, 1989, the trial judge conducted an in-chambers conference prior to the trial scheduled for that day. The judge indicated that his understanding was that the government had consolidated the informations for simultaneous trial, in accordance with the practice in the District of the Virgin Islands, and was prepared to proceed to trial on both informations that day. Counsel for Blyden, Mr. Francis, pointed out that the government's motion for consolidation was still open and pending because a formal ruling consolidating the matters had not been made. According to Blyden's counsel, because there had been no formal ruling and because his client had not received a detention hearing regarding the later filed federal charges, he "really did not know" what action the court would be proceeding on that day and had assumed that the federal information would not proceed. (Blyden App. at 33-4). The district court then conducted an inquiry into the prejudice Blyden might suffer from a consolidated trial. The transcript indicates that the conversation included discussion of Blyden's double jeopardy arguments as well as the alleged prejudice before the jury on the Virgin Islands charges that would result from references to his fugitive status and aliases in the federal information:
THE COURT: What's the prejudice to Defendant Blyden from a consolidation?
MR. FRANCIS: Number one, in regards to [the] single sovereign, Mr. Bonner [the United States Attorney] is representing the Government of the Virgin Islands in 89-89 . . . [and] is using the same evidence, the same facts, when in fact the Virgin Islands [and the United States] are one sovereign.
The question is by Mr. Bonner proceeding in this manner [it] can only in fact result in prejudice to Mr. Blyden after the evidence starts to unfold. It's two sovereigns ...