On Appeal from the District Court of the Virgin Islands; D.C. Crim. Nos. 90-00035-01, 90-00040.
Becker, Scirica and Alito, Circuit Judges.
The Government of the Virgin Islands seeks review of two orders granting new trials under Fed. R. Crim. P. 25(b),*fn1 which specifies the applicable procedures when the trial judge in a criminal case is unable to complete the remaining duties following a verdict or finding of guilt. Rule 25(b) permits another judge to perform those duties but also authorizes this judge to grant a new trial if he is satisfied that he cannot perform the remaining duties required or that a new trial is "appropriate" for some other reason. We will reverse the orders granting new trials in the cases before us.
A. Paul Mills was charged in the District Court of the Virgin Islands with third degree burglary (14 V.I.C. § 444), which is punishable by imprisonment for not more than five years, and grand larceny (14 V.I.C. § 1083(1)), which is punishable by imprisonment for not more than ten years. Because the District Court of the Virgin Islands has had no permanent judges for some time, judges from other courts have been sitting by designation in the Virgin Islands on a rotating basis. The presiding judge at Mills' jury trial was Judge Leland C. Nielsen of the United States District Court for the Southern District of California. The evidence at Mills' trial showed that he broke into a hotel room in St. Thomas and that the occupants, two tourists from England, returned and surprised him while he was ransacking the room. One of the tourists testified at trial and identified Mills, who was convicted on both charges.
After the verdict, Mills moved for a new trial under Fed. R. Crim. P. 33. Judge Nielsen denied this motion before returning to his home district. The United States Attorney subsequently filed a habitual offender information against Mills pursuant to 14 V.I.C. § 61(a). The information alleged that Mills had been convicted in the same court in 1989 for third degree robbery, which is classified as a crime of violence for purposes of the habitual offender statute. 14 V.I.C. § 61; 23 V.I.C. § 451. Under the habitual offender statute, a defendant who is convicted of a felony in the Virgin Islands and who has a prior felony conviction must be incarcerated for at least ten years and may be incarcerated for life. If the prior felony was a crime of violence, service of the mandatory minimum may not be avoided by suspension of the sentence, probation, or parole. 14 V.I.C. § 61(a).
After Judge Nielsen's departure, Mills' case was reassigned to Judge Clifford Scott Green of the United States District Court for the Eastern District of Pennsylvania. At a court proceeding following the reassignment, Judge Green asked the prosecutor whether the government intended to persist with the habitual offender information. When the prosecutor responded in the affirmative, Judge Green stated that he would grant a new trial under Rule 25(b) unless the government withdrew the habitual offender information. Judge Green explained that it was his "personal view" that he should not sentence on matters that he "did not hear" and about which he had "some reservations." He elaborated that he did not know whether Judge Nielsen's ruling on the Rule 33 motion would have been affected had Judge Nielsen known that a habitual offender information would be filed. Judge Green stated, however, that Judge Nielsen had left no notes regarding the Mills case, and Judge Green added that he had "no idea what Judge [Nielsen's] intentions [were]." Judge Green then continued the matter, promising to inquire whether Judge Nielsen would return to the Virgin Islands to conclude the case.
At the next proceeding one week later, Judge Green reported that Judge Nielsen was unavailable. Judge Green again asked whether the prosecution was willing to withdraw the habitual offender information. When the prosecutor declined, the court granted a new trial under Rule 25(b).
B. Lynn Smith was charged in the District Court of the Virgin Islands with offenses related to a shooting, and his case, like Mills', was assigned to Judge Nielsen. After a jury trial, Smith was found guilty of attempted murder in the second degree, which is punishable by imprisonment for not more than 25 years (14 V.I.C. §§ 922, 331, 332), first degree assault, which is punishable by imprisonment for not more than 15 years (14 V.I.C. § 295(1),(3)), and possession of a dangerous weapon during a crime of violence, which is punishable by imprisonment for 5 to 10 years (14 V.I.C. § 2253(a)).
After the verdict, the government filed a habitual offender information, alleging that Smith had been convicted in the Virgin Islands in 1983 for two felonies: unlawful carrying of firearms (14 V.I.C. § 2253(a)) and selling firearms without a license (23 V.I.C. § 467). As in Mills' case, Judge Nielsen departed from the Virgin Islands before sentencing, and the case was reassigned to Judge Green. At a hearing after the reassignment, Judge Green revealed that Judge Nielsen had left him a note stating that he would not have sentenced Smith to more than five years' imprisonment. Judge Green stated that he felt it would be inappropriate for him to impose a greater sentence since he had not heard the case. He continued the hearing to determine whether Judge Nielsen would return to the Virgin Islands to sentence Smith. After ascertaining that Judge Nielsen would not return, Judge Green continued the matter again, and the case was reassigned to the next visiting judge, Judge Barbara K. Hackett of the United States District Court for the Eastern District of Michigan. Judge Hackett suggested that Judge Nielsen conduct the sentencing by telephone, a procedure to which both parties consented, but for reasons that do not appear in the record this procedure was not employed.
Smith's case was then reassigned to the next visiting judge, Judge Joseph Farnan, Jr., of the United States District Court for the District of Delaware. At Smith's request, Judge Farnan entered an order granting a new trial under Rule 25(b). The order recited, among other things, that "both the Honorable Clifford Scott Green and the Honorable Barbara K. Hackett declined to sentence Defendant in the absence of Judge Nielsen" and that "the court conclude[d] that Defendant should not be sentenced by a judge who did not preside at his trial, especially in view of the Government's application that Defendant be sentenced as an habitual offender." At the court proceeding, Judge Farnan ...