People of the Virgin Islands v. Jerris T. Browne, Gregory Christian, and Syed Gilani

Opinion

FOR OFFICIAL PUBLICATION

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

PEOPLE OF THE VIRGIN ISLANDS ) CASE NO 8X 17 CR 174 ) CASE NO SX 17 CR 175 Plaintiff ) CASE NO SX 17 CR 189 l V J I lERRIS T BROWNE ) GREGORY CHRISTIAN and ) SYED GILANI ) ) Defendants ) ) Cite as 2020 V1 Super 41

Appearances

JOSEPH PONTEEN ESQ Chief Deputy Attorney General Virgin Islands Department ofJustice Kingshill V100851 For PIamtzfl‘People of the Virgin Islands

MARTIAL A WEBTER SR ESQ Law Offices of Martial A Webster Sr P C Frederiksted V100840 For Defendantjerrzs T Browne

H HANNIBALO BRYAN ESQ Deputy Chief Territorial Public Defender Office of the Territorial Public Defender Kingshill V100850 For Defendant Gregory Christian

PAMELA LYNN COLON ESQ Law Offices of Pamela Lynn Colon LLC Christiansted VI 00820 For Defendant Syed Gilam

MEMORANDUM OPINI N MOLLOY judge 111 BEFORE THE COURT is a motion filed by Defendant Syed Gilani ( Gilani ] to revoke the People v Browne / People v Christian/ People v Gilani 2020 VI Super 41 5x 17 CR 174/Sx 17 CR 17S/SX 17 CR 189 MEMORANDUM OPINION Page 2 of 7 order dismissing these cases without prejudice or in the alternative for reconsideration and dismissal with prejudice Defendant lerris T Browne ( Browne’) joined in Gilani s motion Defendant Gregory Christian [ Christian ) did not respond nor did the People ofthe Virgin islands ( the People ) For the reasons stated below, Gilani s motion will be denied

1 FACTUAL AND PROCEDURAL BACKGROUND 1l2 The People charged Browne Christian and Gilani with several crimes including embezzlement obtaining money by false pretenses and conversion of government property allegedly involving a scheme to defraud the Government of the Virgin Islands out ofapproximately

$2 million in grant funding awarded to the Virgin Islands Bureau of Motor Vehicles ( BMV ) to become compliant with the REAL ID Act Following a delay in which [n]0 fewer than seven different prosecutors appeared during the two and a half years approximately that these cases were pending In re McRae 2020 Vi Super 26 11 2, the People filed a motion on February 10, 2020 to dismiss all charges because the People will not be able to maintain its burden of proof at trial at this time (Pl 5 Mot to Dismiss Without Prej 1, filed Feb 10 2020) However, the People reserve[d] its statutory right to pursue all causes of action in accordance with the provisions of Title 5 of the Virgin Islands Code Section 3541(a](1) Id For that reason the People moved to dismiss without prejudice Four days later, on Friday February 14 2020 the Court granted the motion and dismissed the charges the same day that Gilani filed a response in opposition to the People 3 motion 113 The Order was not entered until the next business day Tuesday February 18 2020 Additionally because the related civil contempt proceeding was still pending see generally In re McRae 2020 VI Super 26 the Court directed the Clerk 5 Office notwithstanding the dismissal to not close these cases until Attorney Quincy G McRae informed the Court whether he would pay the fine or chose to develop and implement a formal plan 1d at 1i 24, to ensure ‘ proper notice to the courts when assistant attorneys general withdraw resign, retire or are assigned to work on other matters Id at 1T 25 Attorney McRae notified the Court through counsel on February 26, 2020 that he consented to the alternative to paying the fine and would submit a plan outlining the process and procedures for notifying the Superior Court when an Assistant Attorney General of record in a case is substituted by another Assistant Attorney General or is no longer associated with the Virgin People v Browne / People v Christian/ People v Gilani 2020 VI Super 41 5X 17 CR 174/SX 17 CR 175/SX 17 CR 189 MEMORANDUM OPINION Page 3 of 7

Islands Department of justice (Notice of Consent to Ct s Order dated Feb 14 2020 at 2, filed Feb 28, 2020) On March 9, 2020 the Court acknowledged Attorney McRae 5 notice and directed the Clerks Office to assign a miscellaneous civil number so that these cases could be closed In the interim Gilani filed his motion on February 19 2020 to set aside the dismissal Browne joined Gilani s motion the same day The People 3 time to respond passed on March 10, 2020 See VI R Crim P 10) see alsoVI R Civ P 6 2[f](1] Neither the People nor Christian responded I] DISCUSSION 114 Rule 48 of the Virgin Islands Rules of Criminal Procedure provides that the People may file a dismissal or nolle prosequl of an information Such a dismissal is without prejudice unless otherwise stated The government may not dismiss the prosecution during trial without the defendants consent VI R Crim P 48(a) The rule embodies both the common law authority of prosecutors and the separation of the powers of prosecutor and judge C]? In re Richards 42 V I 469 481 82 [3d Cir 2000] (discussing the venerable common law doctrine of nolle prosequi which power resides solely in the prosecutor 3 hands until the impanelment and swearing ofa jury ) Few subjects are less adapted to j udicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal proceedings, or what precise charge shall be made or whether to dismiss a proceeding once brought Phillip v People 58 VI 569 600 (2013) [brackets omitted) (quoting Richards 42 VI at 488) It is for this reason that [t]he trial court should refuse to grant the People 5 dismissal request only in the rarest of cases, for it is the People who are presumed to be the best judge of where the public interest lies with respect to a criminal prosecution Id as Gilani s first argument for vacating the dismissal is because the Court had ruled on the People's motion without givjing] an appropriate period of time to respond (Def Gilani s Mot to Revoke 1 filed Feb 19 2020] On this point Gilani may be correct The Court granted the Peoples motion four days after it was filed The Defendants would have had fourteen days to respond 1 The Order did issue before the time to respond had passed But Gilani filed his response on February 14th, the same day the Order issued and before it was entered So his argument lacks

l Assuming Rule 6 2(f)[1) of the Virgin Islands Rules of Civil Procedure applies in criminal cases through Rule 1(e) of the Virgin Islands Rules of Criminal Procedure The time for filing responses and replies to motions is not specified in the Virgin Islands Rules of Criminal Procedure People v Browne / People v Christian/ People v Gilani 2020 VI Super 41 8X 17 CR 174/sx 17 CR 17S/SX 17 CR 189 MEMORANDUM OPINION Page 4 of 7

merit as to him It might have merit as to Browne insofar as Browne joined Gilani's motion But Gilani 5 concern is not really that the Court ruled prematurely Rather Gilani 5 concern is that the Court did not address the points he raised in his opposition (See Def 5 Mot to Revoke Order 2, filed Feb 19 2020 ( Presumably the Court was not aware of the Opposition as it did not address the same in any ofthe Orders it has issued closing this case ) ) His arguments against dismissal without prejudice concerned the delay and the fact that a second motion to dismiss for speedy trial violation was pending when the People moved to dismiss without prejudice But Gilani s motion and the opposition he wants the Court to consider presume that a defendant in a criminal case has a right to be heard in opposition to a Rule 48(a) motion And on that point, it is not clear that he is correct 116 Rule 48(a] provides that the People may file a dismissal [And sluch dismissal is without prejudice unless otherwise stated ' Vl R Crim P 48(a) Consent of the defendant is required only when the prosecution moves to dismiss during trial See id ( The government may not dismiss the prosecution during trial without the defendant 3 consent ) Leave of court is not required in either scenario Gilani overlooks that Rule 48(a) of the Virgin Islands Rules of Criminal Procedure differs in one very important respect from Rule 48(a) of the Federal Rules of Criminal Procedure the phrase with leave of court was omitted when the Virgin islands rule was promulgated See In re Adoption ofthe VI Rules ofCrim P S Ct Prom No 2017 010 2017 VI Supreme LEXIS 68 *168 69 (VI Oct 16 2017) Compare Fed R Crim P 48(a) ( The government may with leave of court dismiss an indictment, information or complaint The government may not dismiss the prosecution during trial without the defendant 3 consent ) With VI R Crim P 48(a) ( The government may file a dismissal or nolle prosequi of an information Such a dismissal is without prejudice unless otherwise stated The government may not dismiss the prosecution during trial without the defendant 5 consent ) 117 Before Rule 48(a) was promulgated the Supreme Court of the Virgin Islands had held that courts could read a limitation into court rules on the Executive Branch 5 authority to dismiss criminal cases without prejudice in order to protect the integrity of the judicial system and ensure fairness for the defendant Phillip 58 V l at 598 n 34 2 Yet when the Supreme Court promulgated

Z The issue in Phillip was whether Federal Rule 48(a) applied through Superior Court Rule 7 or whether the Superior Court 3 own rules namely Rule 128(b] or Rule 131 governed to the exclusion of the federal rule See generally Phillip 58V! at598n34 People v Browne / People v Christian/ People v Gilani 2020 VI Super 41 8X 17 CR 174/SX 17 CR 17S/SX 17 CR 189 MEMORANDUM OPINION Page 5 of 7

Rule 48 the Court borrowed the federal rules but omitted the phrase with leave of court [T]h[e Virgin Islands Supreme] Court does not abandon its collective knowledge when it exercises its rulemaking authority and surely it would not knowingly promulgate any rule it regarded as invalid Mills Williams v Mapp 67 V I 574 585 n 6 (2017) (brackets and ellipsis omitted) (quoting State Bar ofTexas v Gomez 891 S W 2d 243 249 50 [Tex 1994) [(Hightower I dissenting)}) Since the Court was certainly aware of its prior precedents yet nevertheless chose to adopt a [different] rule id it is possible that Phillip must yield to Rule 48(a) Cf. id 118 Thus Gilani s remedy may be to appeal, not to seek reconsideration The February 14, 2020 Order entered February 18 2020 was a final order as it dismissed the charges Although the Court did direct the Clerks Office to keep these cases open until the civil contempt proceedings were addressed, that would not render the dismissal non final Yet Gilani failed to cite any authority regarding the Superior Court 5 authority to set aside a dismissal in a criminal case Courts in other jurisdictions are divided Compare Smith v Super Ct ofAlameda Cty 171 Cal Rptr 387 388 [Ct App 1981) ( We conclude that at least where no actual fraud has been perpetrated upon the court a criminal court has no authority to vacate a dismissal entered deliberately but upon an erroneous factual basis ) With State v Brown 2014 Ohio 5824 11 72 (Ct App) ( Civ R 60(3) exists in order for a party to seek relief from final orders due to allegations that cannot be raised on appeal Civ R 57 (B) says that the Civil Rules can be used when there is no applicable Criminal Rule Accordingly a Civ R 60(B) motion to vacate a dismissal order can be filed by the state via Crim R 57(3) ) See also eg State v Boyden 441 P 3d 737 745 n 7 [Utah 20019) ( This may be the first time we have considered whether the State can move for relief under rule 60(b) in a criminal matter ) The Virgin Islands Rules of Criminal Procedure do not include a Rule 60(b) equivalent to that found in the Virgin Islands Rules of Civil Procedures Presumably, like in Brown the Court could apply Rule 60(b) of the Virgin Islands Rules of Civil Procedure through Rule 1(f) of the Virgin Islands Rules of Criminal Procedure See VI R Crim P 1(f) ( When procedure is not prescribed by these Virgin Islands Rules of Criminal Procedure, precedent from the Supreme Court of the Virgin Islands or the Virgin Islands Code a judge may regulate practice in a criminal proceeding in any manner consistent with law of the Virgin Islands ) But that too is unclear People v Browne / People v Christian/ People v Gilam 2020 Vi Super 41 sx 17 CR 174/SX 17 CR 175/SX 17 CR 189 MEMORANDUM OPINION Page 6 of 7

1T9 Nonetheless even if the Superior Court has the authority to set aside a voluntary dismissal in a criminal case and even if Rule 48(a) implies a leave of court requirement notwithstanding the rule 5 plain language the Court cannot find that this is the rarest ofcases in which [t]he trial court should refuse to grant the People 5 dismissal request Phillip 58 V l at 600 (quoting In re Richards 213 F 3d 787 786 (3d Cir 2000)) It is self evident that dismissal with prejudice always sends a stronger message than dismissal without prejudice and is more likely to induce salutary changes in procedures reducing pretrial delays United States v Taylor 487 U S 326 342 [1988) But [d]ismissal without prejudice is not a toothless sanction Id The Court is well versed in the history of these cases including the procedural background and factual allegations The Court is also aware that approximately three years passed since charges were filed But this case is complex and [i]n complex multidefendant cases speedy trial rights are [often] stretched about as far as can be without making a mockery of that constitutional protection United States v Mosquera 813 F Supp 962 964 (E D N Y 1993) [quoting United States v Gallo 668 F Supp 736 [E D N Y 1987)) The Court cannot find such a mockery was made here nor can the Court find bad faith in seeking a dismissal now which is [tlhe salient issue Phillip 58 Vi at 600 (quoting Rmaldi v United States 434 U S 22 30 (1977)) 1110 [T]he People are presumed to be the best judge of where the public interest lies with respect to a criminal prosecution Id And it is entirely possible here that the People chose to dismiss not for altogether no reason [or to] gain [a] tactical advantage, 1d at 601 but rather (as the Defendants themselves repeatedly suggested) because the FBI analysis which was partly the cause of the delay was exculpatory True this Courts concern regarding mismanagement in the Attorney General 5 office which prejudices defendants [and] interferes with the administration of justice, Id at 602 resulted in the civil contempt proceedings against Attorney McRae But that alone does not support a finding of bad faith Furthermore the statute of limitations on several of the charges have passed which means the dismissal [even though it is without prejudice) will effectively be with prejudice as to those charges The Court cannot find that manifest public interest 1d at 600 01 or the integrity of the judicial system requires countermanding the prosecutor 5 exercise of executive authority id at 600 (citation omitted) and dismissing these cases with prejudice particularly considering the seriousness of the People v Browne / People v Christian/ People v Gilam 2020 V] Super 41 8x 17 CR 174/Sx 17 CR 175/sx 17 CR 189 MEMORANDUM OPINION Page 7 of 7

allegations that corporations with identical (or nearly identical) officers and directors bid on the same contract, that government employees engaged in corruption and that federal funds were involved [1! CONCLUSiON 1111 Assuming that the Superior Court has authority to set aside a dismissal without prejudice in a criminal case and dismiss with prejudice instead, the Court cannot find that a dismissal with

prejudice is warranted here Accordingly, for the reasons stated above the Court will deny Gilani s motion to vacate An appropriate order follows ‘ P /

Date March 13 2020 4 " // ROBERT MOLL ATTEST judge of the Superi Court TAMARA CHARLES Clerk ofthe Cour 1‘

By Gen-rt er Dated m SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

PEOPLE OF THE VIRGIN ISLANDS ) CASE NO 5X 17 CR 174 ) CASE NO SX 17 CR 175 Plaintiff ) CASE NO 5X 17 CR 189 l V l ] JERRIS T BROWNE ) GREGORY CHRISTIAN and ] SYED GILANI ) ] Defendants ] ]

ORDER

AND NOW for the reasons stated in the Memorandum Opinion dated March 13, 2020, it is hereby ORDERED that the Motion to Revoke Order Dismissing Case Without Prejudice or in the Alternative, Reconsideration and Dismissal With Prejudice filed by Defendant Syed Gilani on February 19 2020 and joined by Defendant Jerris T Browne on February 19 2020, is DENIED DONE AND SO ORDERED \ / Date March 13 2020 M ROBERT A OLLO ATTE‘ST judge of the uperior Court TAMARA CHARLES Clerk of the COurt

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