United States v. Ronald Gillette

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 09-2853
_____________

UNITED STATES OF AMERICA

v.

RONALD EDWARD GILLETTE,

Appellant

___________

On Appeal from the District Court
of the Virgin Islands
(D.C. Criminal No. 1-07-cr-00050-001)
District Judge: Honorable Raymond L. Finch
___________

Argued April 24, 2013

Before: McKEE, Chief Judge, SCIRICA and VANASKIE,
Circuit Judges

(Filed: December 6, 2013)
Joseph A. DiRuzzo, III, Esq. [ARGUED]
Fuerst Ittleman David & Joseph, PL
1001 Brickell Bay Drive, 32nd Floor
Miami, FL 33131
Counsel for Appellant

Ronald W. Sharpe, Esq., United States Attorney
Alphonso G. Andrews, Jr., Esq. [ARGUED]
Office of United States Attorney
1108 King Street, Suite 201
St. Croix, U.S. V. I. 00820
Counsel for Appellee
___________

OPINION OF THE COURT
___________

VANASKIE, Circuit Judge.

At the heart of this appeal is whether the District Court
of the Virgin Islands retains concurrent jurisdiction over local
Virgin Islands crimes when the federal crimes giving rise to
that jurisdiction are dismissed midtrial. Ronald Edward
Gillette was tried in the District Court for failing to register as
a sex offender in violation of federal law, and for numerous
counts of aggravated rape and unlawful sexual contact in
violation of Virgin Islands law. After the Government rested
its case, the District Court dismissed the federal charges but
proceeded to verdict on the local charges, with Gillette being
found guilty of those charges. Gillette appeals his conviction,
contending the District Court lacked jurisdiction over the
local crimes. We hold that, under these circumstances, the
District Court retained concurrent jurisdiction over the local

2
crimes notwithstanding its dismissal of the federal charges.
Gillette also challenges several aspects of his trial and
sentence. Finding no error, we will affirm.

I. Background

In the spring of 2007, the U.S. Marshal Service for the
District of the Virgin Islands received a tip that Gillette, an
unregistered sex offender, might be residing in St. Croix.
Believing that Gillette was required to register with local
officials as a consequence of his 1983 conviction in New
Mexico for Criminal Sexual Penetration and Contributing to
the Delinquency of a Minor—crimes for which Gillette
served eighteen years of a twenty-seven year sentence in
prison—law enforcement authorities followed up on the lead.
They discovered that, indeed, Gillette had not registered as a
sex offender, and, further, that he was living in St. Croix with
a teenage boy.

The authorities went to arrest Gillette at his apartment
on charges of failure to register as a sex offender, in violation
of the Sex Offender Registration and Notification Act
(“SORNA”), 42 U.S.C. § 16901 et seq., and failure to register
as a sex offender within ten days of establishing residency in
a state other than the state within which he was convicted, in
violation of the Jacob Wetterling Crimes Against Children
and Sexually Violent Offender Registration Act (the
“Wetterling Act”), 42 U.S.C. § 14072(g)(3) (repealed 2009).
When Gillette was arrested, the authorities found him with
M.B., a fifteen-year-old boy. Upon interviewing M.B., the
authorities learned that he had been living with Gillette since
he was approximately twelve years old, and that the two had
been sexually involved during that time. The authorities later

3
learned that Gillette had also victimized another minor boy,
M.B.’s younger cousin, A.A..

On October 15, 2007, a federal grand jury handed
down a thirty-count superseding indictment charging Gillette
with numerous crimes related to his failure to register as a sex
offender and his unlawful sexual contact with M.B. and A.A..
Counts 1 and 2 of the indictment alleged violations of the
U.S. Code related to Gillette’s failure to register as a sex
offender.1 The remaining counts alleged violations of the
Virgin Islands Code.2 Both the federal and local charges

1
Count 1 charged Gillette with failure to register as a
sex offender in violation of SORNA, 18 U.S.C. § 2250(a);
Count 2 charged him with failure to register as a sex offender
within ten days of establishing residency in the Virgin Islands
in violation of the Wetterling Act, 42 U.S.C. §§ 14072(g)(3)
and (i).
2
Count 3 charged Gillette with Aggravated Rape in
the First Degree in violation of V.I. Code Ann. tit.14, §§
1700(a)(1) and (a)(2)(c); Count 4 charged him with Unlawful
Sexual Contact in the First Degree in violation of V.I. Code
Ann. tit. 14 § 1708(2); Counts 5 through 11 charged him with
Aggravated Rape in the First Degree in violation of V.I. Code
Ann. tit. 14, §§ 1700(a)(2); Counts 12 through 18 charged
him with Unlawful Sexual Contact in the First Degree in
violation of V.I. Code Ann. tit.14, § 1708(3); Counts 19
through 23 charged him with Aggravated Rape in the Second
Degree in violation of V.I. Code Ann. tit.14, § 1700a(a);
Counts 24 through 28 charged him with Unlawful Sexual
Contact in the Second Degree in violation of V.I. Code Ann.
tit. 14, § 1709; and Counts 29 and 30 charged him with

4
were brought in the District Court of the Virgin Islands. The
District Court exercised jurisdiction over the local crimes
pursuant to 48 U.S.C. § 1612(c), which grants the District
Court concurrent jurisdiction with the Virgin Islands courts
over certain local crimes “which are of the same or similar
character or part of, or based on, the same act or transaction”
that constitutes a violation of federal law. 48 U.S.C. §
1612(c).

The Magistrate Judge presided over the initial
proceedings against Gillette. After difficulties arose between
Gillette and his first court-appointed attorney, Gillette moved
for substitution of counsel. The Magistrate Judge granted
Gillette’s motion, and appointed Eszart Wynter to represent
Gillette.

Wynter became concerned Gillette might be
incompetent to stand trial, and on September 19, 2007, he
moved for a psychological evaluation. The Magistrate Judge
granted the request, and a forensic psychologist evaluated
Gillette. The psychologist concluded Gillette was competent,
notwithstanding a diagnosis of Delusional Disorder, because
Gillette demonstrated an understanding of the nature and
consequences of the charges against him, as well as an ability
to assist in his own defense. After receiving the competency
report, Gillette did not request a competency hearing, and the
Magistrate Judge did not order one sua sponte. Thereafter,
neither Gillette, the Magistrate Judge, nor the District Court
revisited the issue of Gillette’s competency.

Unlawful Sexual Contact in the First Degree in violation of
V.I. Code Ann. tit. 14, § 1708(5).

5
 Before the trial commenced, Gillette filed a motion to
dismiss Counts 1 and 2 of the indictment, arguing that he was
not obligated to register under either SORNA or the
Wetterling Act. First, Gillette argued that he did not meet the
requirements of SORNA set out at 18 U.S.C. § 2250(a)
because that statute requires interstate travel in addition to
failure to register, see § 2250(a)(2)(B), and he had not
traveled across state lines since SORNA became effective on
July 27, 2006.3 Second, Gillette argued that the Wetterling

3
18 U.S.C. § 2250(a) provides that:

(a) In general.--Whoever
(1) is required to register
under the Sex Offender
Registration and
Notification Act;
(2)(A) is a sex offender as
defined for the purposes of
the Sex Offender
Registration and
Notification Act by reason
of a conviction under
Federal law (including the
Uniform Code of Military
Justice), the law of the
District of Columbia,
Indian tribal law, or the
law of any territory or
possession of the United
States; or

6
Act did not apply to him because it only required individuals
to register with the FBI if they lived in a state that had “not
established a minimally sufficient sexual offender registration
program,” see 42 U.S.C. § 14072(c), and, he argued, the
Virgin Islands registration program qualified as a minimally
sufficient registration program that did not require him to
register. See V.I. Code Ann. tit. 14, § 1722.

The District Court denied Gillette’s motion to dismiss
Count 2, finding that he was subject to the Wetterling Act’s
registration requirements. As to Count 1, the District Court
ordered the Government to produce evidence that Gillette had
traveled interstate after SORNA’s passage. The Government
responded that it had “no evidence tending to indicate post
2003 interstate travel of the defendant.” (Joint Appendix
[“J.A.”] 0210.) Despite the Government’s response, the
District Court denied Gillette’s motion as to Count 1 as well,
deeming it “premature to find the fact that Gillette has not

(B) travels in interstate or
foreign commerce, or
enters or leaves, or resides
in, Indian country; and
(3) knowingly fails to
register or update a
registration as required by
the Sex Offender
Registration and
Notification Act;
shall be fined under this title or
imprisoned not more than 10
years, or both.

7
traveled in interstate commerce after July 27, 2006 without
hearing the evidence at trial.” (J.A. 0008.)

The District Court conducted a bench trial on all
charges. After the Government rested its case in chief,
Gillette moved for a judgment of acquittal pursuant to Federal
Rule of Criminal Procedure 29. The District Court granted
the motion as to Count 1 due to the absence of evidence of
interstate travel by Gillette after SORNA’s effective date.
The District Court also dismissed Count 2, finding that
Gillette’s failure to register as a sex offender after relocating
to the Virgin Islands did not violate the Wetterling Act
because the Virgin Islands is not a “State” as contemplated by
the statute.4 (J.A. 0218.) The District Court, however,
refused to dismiss the remaining local charges.

The District Court ultimately found Gillette guilty of
Counts 3 through 18, 22, 23, 27, and 28. On June 19, 2009,
the District Court sentenced Gillette to 15 years imprisonment
on Counts 3 through 11 (Counts 12 through 18 merged with
Counts 5 through 11), 10 years on Counts 22 and 23, and 1
year on Counts 27 and 28, with the prison term on Counts 27
and 28 to run concurrently to the prison terms on Counts 22
and 23, respectively, and the remainder to run consecutively,
for a total sentence of 155 years. The District Court also

4
The Wetterling Act provided, in pertinent part, that
any person required to register as a sex offender, “who
changes address to a State other than the State in which the
person resided at the time of the immediately preceding
registration shall, not later than 10 days after that person
establishes a new residence, register a current address . . . .”
42 U.S.C. § 14072(g)(3).

8
imposed a fine of $50,000 and restitution in the amount of
$220,000 ($110,000 each for M.B. and A.A.). Gillette filed a
timely notice of appeal.

II. Discussion

A. Subject Matter Jurisdiction

We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We must decide
whether the District Court had jurisdiction over the counts of
conviction pursuant to 48 U.S.C. § 1612(c). We exercise
plenary review over the question of whether the District Court
had jurisdiction. Solis v. Local 234, Transp. Workers Union,
585 F.3d 172, 176 (3d Cir. 2009).

1.

The District Court of the Virgin Islands derives its
jurisdiction from Article IV, § 3 of the United States
Constitution, which authorizes Congress to regulate the
territories of the United States. Parrot v. Gov’t of V.I., 230
F.3d 615, 622-23 (3d Cir. 2000). This distinguishes it from
other federal courts, whose jurisdiction is grounded in Article
III. Id. at 623. Because Congress establishes the scope of the
Virgin Islands District Court’s jurisdiction by statute, we
must determine whether § 1612(c) was intended to confer on
the District Court the authority to adjudicate charges of local
crimes when the related federal counts are dismissed.

Congress enacted § 1612(c) as part of its 1984
amendments to the Revised Organic Act of 1954 (“the
Revised Organic Act”), 48 U.S.C. §§ 1541-1645. See 48

9
U.S.C. §§ 1611-1615 (West 1987 & Supp. 2000) (codifying
1984 amendments). Prior to the 1984 amendments, the
District Court exercised broad jurisdiction over Virgin Islands
crimes pursuant to the Revised Organic Act, which vested the
District Court with jurisdiction over all matters arising under
local Virgin Islands law, except civil cases in which the
amount in controversy was less than $500 and criminal cases
in which the maximum punishment did not exceed six months
in prison or a $100 fine. Act of July 22, 1954, ch. 558, 68
Stat. 506 (1954); Callwood v. Enos, 230 F.3d 627, 630 (3d
Cir. 2000). Under this framework, the District Court was
“more like a state court of general jurisdiction than a United
States district court.” Carty v. Beech Aircraft Corp., 679 F.2d
1051, 1057 (3d Cir. 1982).5

Three decades later, Congress passed the 1984
amendments to the Revised Organic Act in an effort to
“establish[] the framework for a dual system of local and
federal judicial review.” Parrott, 230 F.3d at 619; 48 U.S.C.
§§ 1611-1616 (codifying amendments). Seeking to put an
end to the “situation of both the district court and the local
court having jurisdiction over strictly local causes,” 130
Cong. Rec. S. 23789 (Aug. 10, 1984), Congress provided the
Virgin Islands legislature with a mechanism to divest the
District Court of jurisdiction over cases arising under Virgin
Islands law.6 See 48 U.S.C. §§ 1611(b), 1612(b). In doing

5
We have thoroughly examined the evolution of the
Virgin Islands District Court’s jurisdiction in prior decisions.
See, e.g., Parrott, 231 F.3d at 619 n.3; Carty, 679 F.2d at
1053-57; United States v. George, 625 F.2d 1081, 1087-88
(3d Cir. 1980).

10
so, however, Congress specifically provided that the District
Court would retain concurrent jurisdiction over charges
alleging local crimes that are related to federal crimes. See 48
U.S.C. § 1612(c). Accordingly, when the Virgin Islands
legislature vested original jurisdiction over local criminal
actions in the local courts of the Virgin Islands, the District
Court retained concurrent jurisdiction pursuant to § 1612(c).

One of the explicit purposes in creating the concurrent
jurisdiction statute was “to obviate the need for trying in
different courts separate aspects of the same offense or of
closely related offenses.” 130 Cong. Rec. S. 23789 (Aug. 10,
1984). To that end, 48 U.S.C. § 1612(c) provides:

The District Court of the Virgin
Islands shall have concurrent
jurisdiction with the courts of the
Virgin Islands established by local
law over those offenses against
the criminal laws of the Virgin
Islands, whether felonies or
misdemeanors or both, which are
of the same or similar character or

6
The Virgin Islands legislature vested original
jurisdiction in its local courts effective January 1, 1994. See
V.I. Code Ann. tit. 4, § 76(b). At that time, the local court
was known as the Territorial Court. On September 30, 2004,
however, the Virgin Islands legislature passed Bill No. 25-
0213, renaming the Territorial Court the Superior Court of the
Virgin Islands, effective October 20, 2004. Pichardo v. V.I.
Comm’r of Labor, 613 F.3d 87, 90 n.1 (3d Cir. 2010).

11
 part of, or based on, the same act
or transaction or two or more acts
or transactions connected together
or constituting part of a common
scheme or plan, if such act or
transaction or acts or transactions
also constitutes or constitute an
offense or offenses against one or
more of the statutes over which
the District Court of the Virgin
Islands has jurisdiction . . . .

Id. Here, the parties do not dispute that Gillette’s federal and
local charges were sufficiently related to trigger concurrent
jurisdiction under § 1612(c). Gillette maintains, however,
that the District Court’s dismissal of the federal charges
deprived it of jurisdiction over the local charges.

2.

Gillette asserts that “if the actions which create
liability under Virgin Islands local law do not create criminal
liability under federal law, then the District Court lacks
concurrent jurisdiction.” (Reply Br. 3.) Gillette’s argument
is based on the text of § 1612(c), which grants concurrent
jurisdiction where violations of local law also “constitute an
offense or offenses” against federal law. 48 U.S.C. § 1612(c).

Section 1612(c), however, does not condition the
exercise of concurrent jurisdiction over local charges on
whether the related federal offenses are proven. Indeed,
unlike the grant of concurrent jurisdiction to the United States
District Court for the District of Columbia in criminal cases,

12
see D.C. Code § 11-502(3), or the civil supplemental
jurisdiction statute, 28 U.S.C. § 1367, section 1612(c) does
not even require that a sufficiently related federal offense be
included in the indictment in order for the District Court to
exercise jurisdiction over the local charges.7 Instead, all that

7
D.C. Code § 11-502 provides:

In addition to its jurisdiction as a
United States district court and
any other jurisdiction conferred
on it by law, the United States
District Court for the District of
Columbia has jurisdiction of the
following:
....
(3) Any offense under any law
applicable exclusively to the
District of Columbia which
offense is joined in the same
indictment with any Federal
offense.” (Emphasis added).

28 U.S.C. § 1367 provides, in pertinent part:

[I]n any civil action of which the
district courts have original
jurisdiction, the district courts
shall have supplemental
jurisdiction over all other claims
that are so related to claims in the
action within such original
jurisdiction that they form part of

13
is required is that there be a sufficient nexus between the local
charges and “an offense or offenses against one or more of
the statutes over which the District Court of the Virgin
Islands has jurisdiction. . . .” 48 U.S.C. § 1612(c). Gillette’s
concession that there was the requisite nexus between the
local crimes and the federal offenses that were charged is
sufficient to end the jurisdictional inquiry, notwithstanding
the dismissal of the federal charges.

Even if joinder of a federal offense in the instrument
charging local crimes was required for exercise of concurrent
jurisdiction under § 1612(c), the subsequent dismissal of
federal charges does not impact the District Court’s
concurrent jurisdiction. Cf., United States v. Johnson, 46
F.3d 1166, 1171-72 (D.C. Cir. 1995) (holding that under the
District of Columbia Code the dismissal of federal charges
did not deprive the District Court for the District of Columbia
of jurisdiction over local charges). The seminal case
establishing that dismissal of properly joined federal charges
does not divest the District Court for the District of Columbia
of jurisdiction over local District of Columbia charges is

the same case or controversy
under Article II of the United
States Constitution. . . .
(Emphasis added).

Thus, exercise of jurisdiction over claims or charges
otherwise outside the authority of the district courts is
conditioned upon the existence of a claim or charge
over which the federal court has original jurisdiction.
Section 1612(c) is not similarly phrased.

14
United States v. Shepard, 515 F.2d 1324 (D.C. Cir. 1975). In
Shepard, the appellant was indicted on charges of robbery of
a federally insured state savings and loan association, in
violation of the United States Code, and armed robbery,
robbery, and assault with a dangerous weapon, in violation of
the District of Columbia Code. Shepard, 515 F.2d at 1326-
27. The appellant was tried before a jury in the United States
District Court for the District of Columbia, which exercised
jurisdiction over the District of Columbia Charges under D.C.
Code § 11-502. Id. Section 11-502 grants the District Court
for the District of Columbia jurisdiction over “[a]ny offense
under any law applicable exclusively to the District of
Columbia which offense is joined in the same information or
indictment with any Federal offense.” D.C. Code § 11-
502(3). Before the case was submitted to the jury, the
government dismissed the federal offense – robbery of a
savings and loan association. Shepard, 515 F.2d at 1327.
The jury subsequently found the appellant guilty of armed
robbery and assault with a deadly weapon. Id. at 1328. The
appellant challenged his conviction, arguing that the district
court’s jurisdiction over the District of Columbia Code
offenses “lapsed when the federal count in the indictment was
dismissed.” Id.

The Court of Appeals for the District of Columbia
disagreed, holding that “where federal and local offenses have
been properly joined in one indictment and jeopardy has
attached, the District Court may proceed to a determination of
the local offenses regardless of any intervening disposition of
the federal counts.” Id. at 1331. In reaching this conclusion,
the Shepard court looked to the civil law doctrine of
supplemental jurisdiction, which allows federal courts to
exercise jurisdiction over claims arising under state law if

15
those claims share “a common nucleus of operative fact” with
claims arising under federal law. United Mine Workers of
America v. Gibbs, 383 U.S. 715, 725 (1966). As the Shepard
court noted, once a U.S. District Court has properly acquired
supplemental jurisdiction, “it may determine all questions
arising, irrespective of the disposition of the federal claim.”
Shepard, 515 F.2d at 1330; see also Henglein v. Informal
Plan for Plant Shutdown Benefits for Salaried Emps., 974
F.2d 391, 398 (3d Cir. 1992) (“[I]t is well settled that, after
disposal of a federal claim, a district court has discretion to
hear, dismiss, or remand a supplemental claim for which there
is no independent basis for federal subject matter
jurisdiction.”).

Using this doctrine as “a model for the resolution of
[its] case,” the Shepard court observed that a goal of
supplemental jurisdiction is to promote efficiency and
conservation of judicial resources, and that this goal is
particularly significant when a district court has received
evidence on both claims prior to dismissal of the federal
claims. Shepard, 515 F.2d at 1330. Similarly, the court
reasoned, Congress’s goal in passing § 11-502(3) was to
“minimize . . . the burdens on the courts and prosecution,”
and this goal would be served “where an indictment charging
offenses arising from a single factual situation [could] be tried
in a single proceeding rather than in two proceedings in
separate courts.” Id. at 1330-31. Given the “serious
duplication of effort” that would result if the District Court
for the District of Columbia were forced to relinquish
jurisdiction over District of Columbia charges even after a
trial commenced, the Shepard court concluded that mid-trial
dismissal of federal charges did not divest the federal court of
its jurisdiction. Id. at 1331.

16
 We are persuaded by Shepard’s reasoning. Congress’s
purpose in enacting 48 U.S.C. § 1612(c) was the same as its
purpose in passing D.C. Code § 11-502(3): to prevent the
need for multiple trials in different courts of “separate aspects
of the same offense or of closely related offenses.” 130
Cong. Rec. S. 23789 (Aug. 10, 1984). Gillette’s
interpretation of § 1612(c) would eviscerate this express
congressional purpose. Instead of conserving judicial
resources by providing for one trial on all related counts,
Gillette’s interpretation of § 1612(c) would force the
government to either bring the charges in two different trials,
or risk investing significant energy in proving local charges in
the District Court, only to see them dismissed if it was
unsuccessful in proving the federal charges. Nothing in the
legislative history nor the plain language of § 1612(c)
supports the conclusion that Congress intended to make “the
disposition of the local charges turn upon the strength of the
Government’s case in support of the federal counts.” See
Shepard, 515 F.2d at 1329. On the contrary, § 1612(c) does
not make District Court jurisdiction depend on the existence
of a federal charge. It merely requires that the local charge be
of the same or similar character as a federal crime over which
the District Court of the Virgin Islands has jurisdiction, or
that the local charge be based upon acts or transactions that
also constitute a federal offense. As this requisite relationship
concededly existed at the inception of the Gillette’s criminal
case, the mid-trial disposition of the federal charges is simply
irrelevant to the exercise of jurisdiction over the local
charges.

3.

17
 Gillette, however, argues that the federal charges
should not have made it to trial, asserting that the District
Court should have dismissed them pursuant to his pre-trial
motion to dismiss. The premise of Gillette’s argument – that
the motion to dismiss the federal charges should have been
granted before trial – is unsound.8

Gillette moved to dismiss Count 1 of the indictment on
the basis that he had not traveled in interstate commerce after
SORNA became effective. Because interstate travel is a
necessary element of that statute, see 18 U.S.C. §
2250(a)(2)(b), he argued that applying SORNA to him would
violate the Ex Post Facto Clause of the United States
Constitution. After considering Gillette’s motion to dismiss
Count 1, the District Court ordered the government to
“represent to the Court when Gillette last traveled in interstate
commerce.” (J.A. 0209.) The Government complied,
explaining that it “ha[d] no evidence tending to indicate post
2003 interstate travel . . . .” (Id. 0210.) Nevertheless, the
District Court denied the motion without prejudice,
“believ[ing] it to be premature to find the fact that Gillette
ha[d] not traveled in interstate commerce after July 27, 2006,
without hearing the evidence at trial.” (Id. 0008.)

It is well-established that an indictment “is enough to
call for a trial of the charge on the merits” so long as it is
facially sufficient. Huet, 665 F.3d at 594-95 (citing United
States v. Vitillo, 490 F.3d 314, 320 (3d Cir. 2007)). An
indictment is facially sufficient if it:

8
Our review of the District Court’s legal conclusions
as to the motion to dismiss is plenary. United States v. Huet,
665 F.3d 588, 594 (3d Cir. 2012).

18
 (1) contains the elements of the
offense intended to be charged,
(2) sufficiently apprises the
defendant of what he must be
prepared to meet, and (3) allows
the defendant to show with
accuracy to what extent he may
plead a former acquittal or
conviction in the event of a
subsequent prosecution.

Id. at 595 (quoting Vitillo, 490 F.3d at 321). We have
explained that, in general, “an indictment will satisfy these
requirements where it informs the defendant of the statute he
is charged with violating, lists the elements of a violation
under the statute, and specifies the time period during which
the violations occurred.” Id. Here, the indictment met each
of these three requirements: it charged Gillette with failure to
register as a sex offender in violation of 18 U.S.C. § 2250(a),
it listed the elements of that statute—including the interstate
travel element, alleged that Gillette violated each of the
elements, and set forth a time period during which the alleged
violations occurred. Thus, the indictment was facially valid.

Gillette moved to dismiss Count 1 by arguing that the
Government could not make out a necessary element of the
charge. However, our precedents make clear that a pretrial
motion to dismiss pursuant to Federal Rule of Criminal
Procedure 12(b)(3) “allows a district court to review the
sufficiency of the government’s pleadings,” Huet, 665 F.3d at
595 (emphasis added), but it is “not a permissible vehicle for
addressing the sufficiency of the government’s evidence.” Id.

19
(emphasis added) (quoting United States v. DeLaurentis, 230
F.3d 659, 660 (3d Cir. 2000)). Indeed, a district court is
prohibited from examining the sufficiency of the
government’s evidence in a pretrial motion to dismiss
because “[t]he government is entitled to marshal and present
its evidence at trial, and have its sufficiency tested by a
motion for acquittal pursuant to Federal Rule of Criminal
Procedure 29.” Id. Thus, as we explained in Huet, a district
court considering a pretrial motion to dismiss is “limited to
determining whether, assuming all of [the facts alleged in the
indictment] as true, a jury could find that the defendant
committed the offense for which he was charged.” Id. at 596.

Gillette contends that the Government stipulated
before trial that he had not traveled in interstate commerce
after SORNA became effective. We have suggested in past
cases that there may be an exception to the general rule
barring a court from addressing sufficiency of the evidence
before trial where “there is a stipulated record.” DeLaurentis,
230 F.3d at 659. However, as we noted in Huet, “we have
never explicitly held that such an exception exists, much less
defined its contours.” Huet, 665 F.3d at 598 n.8. We
declined to define such an exception in Huet, and we also
decline to do so now, particularly because the appeal before
us does not present a stipulated record. A stipulation is “[a]
voluntary agreement between opposing parties concerning the
same relevant point.” Black’s Law Dictionary 1550 (9th ed.
2009). Here, there was no voluntary agreement between
Gillette and the Government that he had not traveled
interstate. Instead, the Government answered truthfully that,
at the time the District Court inquired pretrial, it could not
come forward with evidence of that travel. This
representation did not strip the Government of its right to

20
“marshal and present its evidence at trial.” Huet, 665 F.3d at
595. Accordingly, the District Court did not err in denying
Gillette’s pretrial motion to dismiss Count 1.

Even if Count 1 should have been dismissed before
trial, the District Court did not err in denying Gillette’s
pretrial motion as to Count 2. Gillette had argued that the
Wetterling Act did not apply to him because the Virgin
Islands sex offender registration law, V.I. Code Ann. tit. 14 §
1722, allegedly did not require him to register. The District
Court was unpersuaded, finding that Gillette violated the
Wetterling Act if he was required to register under New
Mexico’s sexual offender program and later changed his
residence to the Virgin Islands without registering with the
Virgin Islands and the FBI.9

Although the District Court ultimately dismissed
Count 2 midtrial, it did so on an entirely different basis. The
District Court dismissed Count 2 for failing to state an
offense because the Court concluded that the Virgin Islands—
a territory of the United States—is not a State as
contemplated by the Wetterling Act.10 The District Court
raised this issue sua sponte, as Gillette did not assert it in
either his pretrial motion or Rule 29 motion.11 Thus, the

9
For the text of the relevant portion of the Wetterling
Act, see supra note 4.
10
We express no opinion as to the merits of the
District Court’s interpretation of the Wetterling Act.

21
District Court committed no error by denying Gillette’s
pretrial motion to dismiss Count 2 on a basis it found
unpersuasive, and Gillette cannot claim error in the District
Court’s failure to dismiss Count 2 before trial on a ground
never presented by Gillette.

Finally, Gillette’s contention that the District Court’s
dismissal of the federal charges means that the District Court
lacked subject matter jurisdiction is without merit. Gillette’s
argument conflates the grounds upon which the District Court
dismissed Counts 1 and 2 with a lack of subject matter
jurisdiction. Neither insufficiency of the evidence nor failure
to state an offense means that the charged conduct was
outside the authority of the District Court to adjudicate.

11
In fact, Gillette’s attorney all but conceded that the
Virgin Islands is a State within the meaning of the Wetterling
Act, asserting at the Rule 29 hearing:

I do not have an issue with
the fact that the statute applies to
the Virgin Islands by definition,
and might have been intended by
statute.

If I give – and if the Court
finds that I’m wrong, I will be
happy to accept that, okay, so I’m
not conceding it, but as I said, I do
not have a problem with that
interpretation. . . .

(J.A. 1104-05.)

22
Thus, the District Court’s dismissal of Counts 1 for
insufficiency of the evidence and Count 2 for failure to state
an offense has no bearing on the question of the District
Court’s subject matter jurisdiction over those counts. For this
reason, we reject Gillette’s argument that the District Court
could not have obtained concurrent jurisdiction over the local
Virgin Islands charges because it lacked such jurisdiction
over the federal charges at the inception of the case.

B. Competency

Gillette argues that both the Magistrate Judge and the
District Court erred by failing to hold a hearing to determine
his competency, and that there is a reasonable probability that
he was tried while incompetent. We exercise plenary review
over a district court’s interpretation and application of the
standards for determining competency, but we review for
clear error a district court’s decision not to hold a competency
hearing. United States v. Leggett, 162 F.3d 237, 241 (3d. Cir.
1998).

Due process prohibits the conviction of a legally
incompetent person. Pate v. Robinson, 383 U.S. 375, 378
(1966). A defendant is legally incompetent if the defendant
“lacks the capacity to understand the nature and object of the
proceedings[,] . . . to consult with counsel, and to assist in
preparing a defense.” Leggett, 162 F.3d at 241 (quoting
Drope v. Missouri, 420 U.S. 162, 171 (1975)).

The procedure for determining competency is set forth
in 18 U.S.C. § 4241, which provides, in relevant part:

23
(a) Motion to determine
competency of defendant.--
At any time after the
commencement of a
prosecution for an offense and
prior to the sentencing of the
defendant . . . the defendant or
the attorney for the
Government may file a motion
for a hearing to determine the
mental competency of the
defendant. The court shall
grant the motion, or shall order
such a hearing on its own
motion, if there is reasonable
cause to believe that the
defendant may presently be
suffering from a mental
disease or defect rendering
him mentally incompetent to
the extent that he is unable to
understand the nature and
consequences of the
proceedings against him or to
assist properly in his defense.

(b) Psychiatric or psychological
examination and report.--
Prior to the date of the
hearing, the court may order
that a psychiatric or
psychological examination of
the defendant be conducted,

24
 and that a psychiatric or
psychological report be filed
with the court . . . .

§ 4241. As the text of § 4241 makes clear, a court must
conduct a competency hearing if there is “reasonable cause”
to believe the defendant is incompetent, whether or not either
party requests it.

To determine whether such reasonable cause exists, a
court must consider the unique circumstances of each case to
decide if the defendant “(1) has the capacity to assist in her or
his own defense and (2) comprehends the nature and possible
consequences of trial. If either prong is not met, a court has
reasonable cause to order a competency hearing.” United
States v. Jones, 336 F.3d 245, 256 (3d Cir. 2003). In making
this determination, “a district court must consider a number of
factors, including ‘evidence of a defendant’s irrational
behavior, his demeanor at trial, and any prior medical opinion
on competence to stand trial.’” Id. (citing Leggett, 162 F.3d
at 242).

Gillette’s attorney made a motion requesting a
competency evaluation on September 19, 2007. The
Magistrate Judge granted the request, and a forensic
psychologist evaluated Gillette. The psychologist concluded
Gillette was competent to stand trial, explaining:

While Mr. Gillette has been
diagnosed with a thought
disorder, Delusional Disorder
should not be expected to
significantly compromise his

25
 perception or comprehension of
reality related to his legal
circumstances. . . . He has
demonstrated a rational and
factual understanding of the
proceedings against him, and
sufficient ability to consult with
his attorney with a reasonable
degree of rational understanding. .
. . Mr. Gillette is not currently
suffering from a mental disease or
defect rendering him mentally
incompetent to the extent he is
unable to understand the nature
and consequences of the
proceedings against him or
properly assist in his defense.

(J.A. 1621.) After receiving the competency report, Gillette
did not request a hearing on competency, and the District
Court did not order one.

Gillette now contends it was error not to hold a hearing
on competency, asserting that § 4241 “always contemplates
that a competency hearing will be held where a court has
ordered a psychological evaluation.” (Appellant’s Br. 26.)
He points to § 4241(b), which states that the court may order
a psychiatric or psychological evaluation “[p]rior to the date
of the hearing,” reasoning that this language assumes a
hearing will be held where a competency evaluation is
ordered. Gillette also points to § 4241(a), which states that a
court “shall” order a hearing. Gillette fails to note, however,
that the obligation to hold a competency hearing is triggered

26
only when a court finds that there is reasonable cause to doubt
competency. See § 4241(a) (“[T]he court shall grant the
motion, or shall order such a hearing on its own motion, if
there is reasonable cause to believe that the defendant [is
incompetent].”) (emphasis added). In addition, § 4241(b)
discusses the court’s authority to order an evaluation after
having already ordered a competency hearing. In other
words, the obligation to order a hearing is not triggered under
§ 4241(a) unless the court has reasonable cause to doubt a
defendant’s competency, and § 4241(b) does not apply unless
a court has already ordered a hearing under § 4241(a).
Moreover, nothing in the text of § 4241 prohibits a court from
ordering a psychological evaluation without finding it has
reasonable cause to doubt competency. Thus, a district court
errs in failing to hold a competency hearing only if there is
reasonable cause to believe that the defendant is incompetent.

After carefully examining the record, we hold that
neither the Magistrate Judge nor the District Court clearly
erred in failing to order a competency hearing. Both judges
had before them a report by a qualified medical professional
concluding that, although Gillette suffered from Delusional
Disorder, he was legally competent. The psychologist’s
conclusion comports with the behavior Gillette exhibited
throughout the case, during which Gillette testified that he
was employed by the CIA,12 suffered from a traumatic brain

12
Testifying before the Magistrate Judge on October
1, 2007, Gillette stated that he had worked for the CIA since
1974. When questioned, he responded: “Before I answer
your question, sir, I must ask that I be granted all rights,
privileges, immunities and guarantees covered by me by the
CIA and the White House.” (J.A. 87.)

27
injury,13 was currently a semi-professional pool player,14 and
was “disabled a hundred percent,”15 but nevertheless also

13
Gillette testified before the District Court that he
suffered a traumatic brain injury while serving in the military
in Vietnam. When asked on direct examination what the
effect of the brain injury was, Gillette responded:

For example, we all at some time
wake up in the morning. We
don’t know if it’s a, say a Tuesday
or a Wednesday. Well, not often,
but at times, I will wake up and
not even know the day. I
wouldn’t know Sunday, Monday,
Tuesday, Wednesday, Thursday,
Friday, Saturday. And I will have
to take and go out to the computer
and look at the computer to jog
my memory.

(J.A. 1237-38.)
14
Testifying to the activities he did with M.B., Gillette
stated that he taught M.B. how to play pool, because he was
“a semi-professional pool player.” (J.A. 1252.)
15
Gillette testified that he was retired and “disabled a
hundred percent” in response to questioning on direct
examination about why he began helping M.B. with his
homework. Gillette’s testimony seems to have been intended

28
exhibited an ability to understand the charges against him and
to assist in his defense. Indeed, Gillette’s communications
with his lawyer demonstrated that he understood the legal
proceedings against him. One note Gillette wrote to his
counsel during trial explained “[b]ecause I might testify, she
will bring up the 1983 conviction; therefore, you need to
study three areas. . . .” (S.A. 298.) Furthermore, Gillette’s
attorney made statements to the court indicating that Gillette
was involved in preparing his defense. Requesting that the
court order the Bureau of Corrections to provide Gillette with
reading glasses and writing materials, trial counsel explained
“it gives him the opportunity to research, because this
gentleman is not stupid to me, the things them (sic) he’s
telling me, but he wants to research and verify certain things
for himself.” (S.A. 280-81.) Taken as a whole, the record
does not establish reasonable cause to believe Gillette was
incompetent. Therefore, we find that the District Court
committed no error in failing to hold a competency hearing.

C. Counsel’s Motions to Withdraw

Gillette next argues the Magistrate Judge and District
Court erred by denying his trial counsel’s requests for
withdrawal in violation of his Sixth Amendment right to
counsel. This argument is unavailing.

The Sixth Amendment guarantees indigent defendants
the right to appointed counsel, but that right is “not without
limit and cannot be the justification for . . . manipulation of
the appointment system.” Fischetti v. Johnson, 384 F.3d 140,

to explain why he had extra time in his schedule to get
involved with M.B.. (J.A. 1254.)

29
145 (3d Cir. 2004). A district court’s refusal to substitute
counsel is reviewed for abuse of discretion. United States v.
Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995). We have held
that a district court abuses its discretion only if “good cause is
shown for the defendant’s dissatisfaction with his current
attorney.” Id. (citing United States v. Welty, 674 F.2d 185,
187 (3d Cir. 1982)) (internal quotation marks omitted). We
have defined “good cause” as “a conflict of interest, a
complete breakdown of communication, or an irreconcilable
conflict with an attorney.” Id. Relying on these cases,
Gillette argues it was an abuse of discretion to deny Wynter’s
motions to withdraw because, in his view, Wynter’s
representation that “[a] breakdown in the attorney client
relationship exist[ed],” constituted good cause for
substitution. (J.A. 0215.)

As an initial matter, we note that Gillette appeals the
District Court’s denial of his attorney’s motions to withdraw,
not the denial of any motion for substitution filed by Gillette
himself. Therefore, the case law Gillette cites does not neatly
apply here. Although Wynter testified at the February 4,
2008 hearing that Gillette had asked him to withdraw, it is not
clear that the remaining motions were filed at Gillette’s
request. However, even if we construe Wynter’s motions to
withdraw as requests by Gillette for substitution of counsel,
we conclude that neither the Magistrate Judge nor the District
Court erred in determining that “good cause” for substitution
was lacking.

Both the Magistrate Judge and the District Court made
extensive inquiries into Wynter’s pretrial motions to
withdraw. The Magistrate Judge held a hearing after
Wynter’s first motion, during which Gillette himself testified

30
at length. In denying the motion for withdrawal, the
Magistrate Judge expressed concern that Gillette was seeking
to “manipulate the Court” and “frustrate the process,” by
alleging that his lawyers were incompetent. (S.A. 264-65.)
He also observed that Gillette had already successfully
received substitute counsel once. Accordingly, he denied
Wynter’s motion for withdrawal. On March 17, 2008, the
District Court presided over a subsequent withdrawal hearing,
where Gillette again testified at length. Gillette’s testimony
at that hearing was equivocal, and at one point he stated that
he “would have no objection” to further representation by
Wynter provided he filed certain motions. (S.A. 337.)

While it was clear at both hearings that the relationship
between Gillette and Wynter was not without friction, it was
also clear that the relationship had not suffered a complete
breakdown requiring substitution of counsel. In addition,
Gillette had already substituted counsel once in the case, and
both the Magistrate Judge and the District Court had reason to
find that substitution would unduly delay the proceedings.
Accordingly, we conclude that there was no abuse of
discretion in denying Wynter’s motions to withdraw.

D. Reasonableness of Gillette’s Sentence

Gillette next argues his sentence was substantively
unreasonable because the District Court “effectively
sentence[ed him] to death,” without properly considering his
age and history of mental illness. (Appellant’s Br. 51.) We
are not persuaded.

Our review of the substantive reasonableness of a
district court’s sentence is highly deferential, and we will

31
affirm “unless no reasonable sentencing court would have
imposed the same sentence on that particular defendant for
the reasons the district court provided.” United States v.
Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). Further,
because Gillette did not object to the imposition of
consecutive sentences at sentencing, “we review the matter
only to assure that ‘plain error’ was not committed.” United
States v. Pollen, 978 F.2d 78, 88 (3d Cir. 1992). Under either
standard, we find the District Court’s sentence to be
substantively reasonable.

First, Gillette was convicted of several counts of both
Aggravated Rape in the First Degree and Aggravated Rape in
the Second Degree, V.I. Code Ann. tit. 14, §§ 1700, 1700a,
and the statutory maximum under both provisions is life
imprisonment.16 Thus, the District Court had discretion to
sentence Gillette to a term of life imprisonment under either
statutory provision, even without imposing consecutive
sentences.

Second, we agree with the District Court that its
sentence served several purposes, including protecting the

16
Gillette was convicted of eight counts of
Aggravated Rape in the First Degree, V.I. Code Ann. tit. 14, §
1700, which provides that a person convicted under that
statute “shall be imprisoned for life or for any term of years,
but not less than fifteen years,” and two counts of
Aggravated Rape in the Second Degree, V.I. Code. Ann. tit.
14, § 1700a(a), which provides that whoever is convicted
under that provision “shall be imprisoned for life or for any
term in years, but not less than 10 years.”

32
public and providing just punishment for the severity of
Gillette’s crimes. Explaining its sentence, the District Court
stated:

The acts of this defendant are
morally repulsive. He has in a
very heinous and devious fashion
violated two young boys in this
territory. This is Mr. Gillette’s
second conviction involving
sexually violating minors. He
served about twenty-seven years
of incarceration,17 and again finds
himself before us, this court
system, for substantially the same
offenses. The sentence which I
am about to impose will certainly
reflect how serious these offenses
are. I hope they provide a respect
for the law, and it’s a just
punishment for the offenses for
which he has been found guilty,
and hope that they would provide
deterrence from further crimes.
And also protect the public from
further crimes of this type.

17
The District Court appears to have been mistaken
about the number of years Gillette was incarcerated. The
record indicates that he served eighteen years of incarceration
for a twenty-seven year sentence. (J.A. 0055, 1404.)

33
(J.A. 1556-57.) As the District Court noted, Gillette was a
repeat sexual offender who previously spent eighteen years in
prison for his unlawful sexual contact with a minor in New
Mexico only to move to the Virgin Islands and victimize two
other children. Given this history, the District Court
reasonably determined that Gillette posed a continuing danger
to the public. Additionally, the District Court’s sentence
properly reflects the seriousness and extent of the harm
Gillette’s crimes caused to his victims.

Gillette contends the District Court failed to
adequately explain its sentence, and erred by failing to
discuss or account for Gillette’s age and history of mental
illness. We disagree. As set forth above, the District Court
adequately explained the reasons for its sentence, and we find
the record abundantly supports the sentence. Therefore, we
will affirm the substantive reasonableness of the District
Court’s sentence.

E. Restitution

Finally, Gillette challenges the District Court’s
restitution order. He argues that he should not have been
ordered to pay restitution because he was not convicted of a
property crime; the expenses for which restitution was
imposed are speculative; there is no record of his ability to
pay restitution; and a reasonable payment schedule was not
established. We review the District Court’s imposition of
restitution for plain error because Gillette did not challenge it
at sentencing. United States v. Hawes, 523 F.3d 245, 255 (3d
Cir. 2008).

34
 The District Court ordered restitution pursuant to Title
34, Section 203 of the Virgin Islands Code, which is
commonly referred to as the “Victims’ and Witness’ Bill of
Rights.” Gillette’s argument that restitution is proper only in
cases involving property crimes is foreclosed by this statute,
which provides in pertinent part:

A victim has a right to receive
restitution for expenses or
property loss incurred as a result
of the crime. The judge shall
order restitution at every
sentencing for a crime against
person or property . . . unless the
court finds a substantial and
compelling reason not to order
restitution. . . .

34 V.I. Code Ann. § 203(d)(3). This provision clearly states
that restitution is proper for crimes “against person or
property.” Id. (emphasis added). We therefore reject
Gillette’s argument that restitution may only be ordered as
punishment for property crimes.

We also reject Gillette’s argument that restitution in
this case is inappropriate because calculation of the financial
harm Gillette’s victims will likely suffer is speculative. We
have held that, in calculating restitution, courts “must point to
the evidence in the record supporting the calculation of loss to
the victims,” based on “specific findings regarding the factual
issues.” United States v. Graham, 72 F.3d 352, 356-57 (3d
Cir. 1995). The District Court satisfied this requirement, as
the amount of restitution was based on itemized reports

35
prepared by a developmental and forensic pediatrician.
Because the District Court’s restitution order was based on
specific calculations of harm, it was not impermissibly
speculative.

Gillette also argues the District Court should have
conducted an inquiry into his ability to pay and established a
reasonable payment schedule as contemplated by 18 U.S.C. §
3663. This provision of the United States Code, however,
applies only to violations of federal law, and no similar
Virgin Islands legislation exists. To be sure, we have
“strongly recommended” that the Virgin Islands District
Court nevertheless conduct the type of inquiry set forth in 18
U.S.C. § 3663 as “a better, if not essential, practice.” Gov’t
of V.I. v. Marsham, 293 F.3d 114, 119 (3d Cir. 2002).
Indeed, in Marsham, we explicitly recommended an inquiry
into the defendant’s ability to pay restitution, even though 18
U.S.C. § 3663 no longer required it. Id. at 119 n.5.
Significantly, in recommending that the District Court
conduct such an inquiry, we did so “with the full
acknowledgement that although we deem this a most
desirable practice, a failure to initiate such an inquiry does not
at this stage constitute reversible error unless and until our
Court so holds.” Id. at 119. Since we decided Marsham in
2002, we have not held that failure to conduct this inquiry is
mandated, and we do not hold so now. Accordingly, we
conclude that the District Court did not plainly err in failing
to assess Gillette’s ability to pay restitution or to establish a
payment schedule.

III.

36
 For the foregoing reasons, we will affirm the judgment
and sentence of the District Court.

37