In Re: LeRoy Richards

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

5-31-2000

In Re: LeRoy Richards
Precedential or Non-Precedential:

Docket 99-3234

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Filed May 31, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-3234

IN RE: LEROY RICHARDS
Nominal Respondent, Hon. Ive A. Swan, Appellant

On Appeal From the District Court of the Virgin Islands--
Appellate Division
(D.C. Civ. No. 97-cv-00123)
Honorable Raymond L. Finch and
Honorable Thomas K. Moore, Judges of the District Court
Honorable Edgar D. Ross, Judge of the Territorial Court*

Argued: December 8, 1999

Before: BECKER, Chief Judge, SCIRICA and GARTH,
Circuit Judges.

(Filed May 31, 2000)

LEON A. KENDALL, ESQUIRE,
(ARGUED)
General Counsel
Territorial Court of the Virgin
Islands
Alexander Farrelly Justice Center
P.O. Box 70
St. Thomas
United States Virgin Islands 00804

Counsel for Appellant Ive A. Swan

_________________________________________________________________
* Sitting by designation.
 A. JEFFREY WEISS, ESQUIRE
A.J. Weiss & Associates
9618 Estate Thomas
Tramway Building No. 2, Suite 1
Charlotte Amalie, St. Thomas
United States Virgin Islands 00802

Counsel for Appellee Leroy Richards

IVER A. STRIDIRON, ESQUIRE
Attorney General
PAMELA R. TEPPER, ESQUIRE
Solicitor General
MAUREEN P. CORMIER,
ESQUIRE (ARGUED)
Assistant Attorney General
Office of the Attorney General of
the Virgin Islands
Department of Justice
48B-50 Kronprindsens Gade
GERS Building, 2nd Floor
Charlotte Amalie, St. Thomas
United States Virgin Islands 00802

Counsel for Appellee Government of
the Virgin Islands

OPINION OF THE COURT

BECKER, Chief Judge.

After the Government of the Virgin Islands had brought
criminal charges in the Territorial Court of the Virgin
Islands against Leroy Richards for sexual misconduct, the
Attorney General attempted to exercise the traditional
common law power of nolle prosequi and moved to dismiss.
However, the Territorial Court, suspicious of the
Government's motives, resisted and scheduled a hearing to
explore further the underlying facts. Before that hearing
could be held, but after the submission of an affidavit from
the original complainant indicating her desire to terminate
the matter, Richards sought a writ of mandamus from the
Appellate Division of the District Court of the Virgin

2
Islands, seeking to compel the Territorial Court to dismiss
the charges against Richards. The District Court granted
the writ, concluding that the local court rule under which
the Territorial Court pursued the hearing violated the
Revised Organic Act ("ROA"), 48 U.S.C. S 1541 et seq.,
because it trammeled upon the prosecutor's substantive
authority under local law. The court reasoned that the ROA
did not accord local courts the authority to promulgate
such substantive laws, rendering the local rule used to
justify the Territorial Court's conduct null and void. This
appeal followed.

The appeal presents several important questions of
judicial governance in the Virgin Islands. First, does the
District Court have mandamus jurisdiction over the
Territorial Court? We conclude that it does. The local
legislature, acting under the authority granted it by the
ROA, has extended appellate jurisdiction to the District
Court over criminal matters other than those resolved by
guilty plea. The jurisprudence is clear that jurisdiction to
issue writs of mandamus lies in cases where potential
jurisdiction exists, as it does here. Moreover, both local
statute, see 4 V.I.C. S 34, and the All Writs Act, 48 U.S.C.
S 1651, give the District Court the authority to issue writs
of mandamus. We further conclude that the ROA's
command that the relationship between the District Court
and local courts mirror the one between state and federal
courts is not a bar to the District Court's exercise of
mandamus power because the District Court retains
appellate jurisdiction over the Territorial Court of the Virgin
Islands.

Having cleared the jurisdictional hurdle, Richards next
faces the challenge of establishing that the Territorial Court
exceeded its authority in scheduling a hearing on the
matter of Richards's prosecution rather than promptly
dismissing it as requested by the parties. We conclude that
Richards has not met this burden. The Territorial Court
offers two procedural rules to justify its conduct. The first
justification, reliance on Local Rule 128(b), which precludes
dismissal of criminal cases absent a judicial finding that
the dismissal is in good faith, in the public interest, and in
the interests of justice, fails because the rule explicitly

3
allows the local court to substitute its judgment for that of
local prosecutors in deciding which cases should be
prosecuted. Because this judgment is reserved to
prosecutors under the old common law power of nolle
prosequi, Rule 128(b) is a substantive rule of law rather
than a procedural rule that the local court is authorized to
promulgate under the ROA. While the Virgin Islands
legislature may enact such a rule, the local court may not,
making Rule 128(b) a violation of the separation of powers
among the three branches of government of the Virgin
Islands as delineated by Congress.

The local rules of the Territorial Court apply the Federal
Rules in circumstances in which there are no valid rules to
the contrary, and hence the Territorial Court's actions may
possibly be justified by Fed. R. Crim. P. 48(a), which
provides that prosecutions shall only be dismissed by leave
of the court. In light of the traditional common law power
of nolle prosequi that allowed prosecutors total discretion in
determining which cases to pursue, the argument that this
rule also has a substantive component is not without force.
We believe, however, that though Rule 48(a) does not confer
unfettered discretion upon courts to resist motions to
dismiss, it does have a procedural component that allows
inquiry into the circumstances surrounding a dismissal in
a manner that does not sufficiently intrude upon the
prosecutorial domain to be viewed as a substantive rule.

In this case, the Territorial Court did not deny the motion
to dismiss but merely scheduled a hearing. In light of a
court's ability to use Rule 48(a) to let "sunshine" into areas
where local authorities may be suspected of inappropriate
dealings, we are not persuaded that the Territorial Court
behaved in a manner that required the extraordinary
remedy of mandamus. Accordingly, we will vacate the order
of the District Court with directions to remand the matter
to the Territorial Court. We do not do so, however, to give
that court carte blanche over prosecutorial decisions. The
Territorial Court may conduct a hearing on the
circumstances surrounding the Government's requested
dismissal before it surrenders jurisdiction, but it lacks the
power to compel the Government to take further steps to
prosecute Richards.

4
I.

In October 1995, Richards was charged by information
with the felony of second degree rape under 14 V.I.C.
S 1702. In April 1997, the Government amended the
information to include the misdemeanor of unlawful sexual
contact under 14 V.I.C. S 1709. On April 29, 1997, the
parties entered into a plea agreement pursuant to which
Richards would plead to the misdemeanor in return for
dismissal of the felony charges. The agreement was
presented to Judge Ive Swan of the Territorial Court, but,
based on the seriousness of the conduct initially alleged, he
rejected it and set the case for jury selection on June 2.

On May 21, the Government filed a new complaint,
arising out of the same incident, that contained only the
misdemeanor charge. At arraignment on the new complaint,
Richards attempted to enter a plea of guilty. The presiding
judge, Territorial Court Judge Brenda Hollar, became aware
of the parallel case pending before Judge Swan. Displeased
with what she perceived to be judge shopping, she referred
the matter to Judge Swan. On the same day, the
Government filed a motion requesting that Judge Swan
dismiss the original charges because the Government
lacked the ability to prove all the elements beyond a
reasonable doubt. Several weeks later, the Government
moved to dismiss the newer (misdemeanor only) charge as
well.

On June 12, Judge Swan held a hearing at which the
prosecutor requested that the charges be dropped in the
"interests of justice." Judge Swan refused to do so without
first examining the purported victim and prosecutors,
though he indicated that if the victim made clear that she
did not want the case to proceed and was aware of the
Government's plans to drop the case, he would end the
matter. He also expressed concern with the seriousness of
the crime charged and about what he perceived to be the
Government's attempt to circumvent his refusal to accept
the earlier plea agreement. Judge Swan scheduled a
hearing for July 17. On June 18, the Government and
Richards filed a joint motion to dismiss that reiterated the
prosecutor's conclusion that the case lacked merit. The
motion was accompanied by supporting affidavits from the

5
purported victim and her mother that made clear that they
did not wish the case to be prosecuted and that the
purported victim would not testify against Richards.

On July 2, Richards moved to stay the July 17 hearing
and to dismiss the case. He also claimed that the original
facts, as alleged, had been determined to be false. The
Government's response, filed on July 14, concurred with
Richards's motion and urged the court to not require the
purported victim and her mother to face the burden of
having to appear in court.

On July 15, 1997, the Territorial Court promulgated a
new local rule that amended Local Rule 128 to include new
subsections (b) and (c). These amendments empowered the
Territorial Court to refuse to dismiss cases unless the local
court determined that the dismissal is "in good faith, in the
public interest, and in the interest of justice." Also on July
15, Richards filed a petition in the District Court of the
Virgin Islands for a writ of mandamus and for a stay of the
July 17 hearing. The District Court granted the stay the
next day.

On March 19, 1998, the Appellate Division of the District
Court heard argument. Eleven months later, the court
granted the writ and ordered the counts against Richards
dismissed. It also declared the new Territorial Court Rule
128(b) to be null and void, holding that the Territorial Court
had exceeded its rulemaking authority when it promulgated
Rule 128(b). The Court concluded that the executive branch
in the Virgin Islands has exclusive control of the
prosecutorial function and that by transferring discretion
over the termination of prosecutions to the local court, Rule
128(b) was a substantive rule that was disallowed by the
ROA, which allows local courts to promulgate only
procedural rules. The District Court also rejected the
alternative argument that the refusal to dismiss could be
justified by Federal Rule of Criminal Procedure 48(a),
applied under Territorial Court Rule 7, which invokes the
federal rules of procedure in the absence of local rules to
the contrary. The court concluded that the Territorial
Court's application of Rule 48(a) would have similarly been
in excess of its rulemaking power. Having determined that
Judge Swan's conduct overstepped his authority, the

6
District Court ruled that Richards had met the other
conditions for receiving the extraordinary remedy of
mandamus and issued the writ. This appeal followed.

Our jurisdiction is based on 28 U.S.C. S 1291. We
discuss the District Court's jurisdiction to issue the
mandamus petition below. Our review of the jurisdictional
matters raised by this case is plenary. See Anthuis v. Colt
Indus. Operating Corp., 971 F.2d 999, 1002 (3d Cir. 1992).
We review the discretionary elements of the District Court's
grant of a writ of mandamus for abuse of discretion; our
review over the non-discretionary elements of the grant is
plenary. See Stehney v. Perry, 101 F.3d 925, 929 (3d Cir.
1996).

II.

Determining whether the Appellate Division of the
District Court possessed the jurisdiction to issue the writ in
the first instance requires three levels of analysis. We must
first consider whether the District Court has the requisite
jurisdiction over the Territorial Court to sustain the
exercise of mandamus power. If so, we need to decide
whether it possesses the statutory authority to issue writs
of mandamus. Finally, we must determine whether the
issuance of a writ of mandamus comports with the ROA's
dictate that the relations between the District Court and
the Territorial Court reflect those between federal and state
courts.

A.

Courts established by the Congress have authority to
issue "all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law." 28 U.S.C. S 1651. Thefirst question
before us is whether the District Court has any jurisdiction
in aid of which it could have issued a writ of mandamus
upon the Territorial Court. Untangling the issue requires
that we examine the ROA, which governs the territory's
court structure. See 48 U.S.C. S 1541 et seq. We have
elucidated the architecture of the ROA elsewhere, see Brow

7
v. Farrelly, 994 F.2d 1027 (3d Cir. 1993), and need not
rescribe that discussion save for a brief summary.

The ROA extends appellate jurisdiction over local courts
to the Appellate Division of the District Court to the extent
allowed by local law (subject to the proviso that the
legislature may not preclude District Court review of federal
matters). See 48 U.S.C. S 1613a(a). The Appellate Division
is generally composed of the two judges of the District
Court plus a third judge sitting by designation, who usually
comes from the Territorial Court. See 48 U.S.C. SS 1613a,
1614. Though the local legislature has the right to establish
a territorial appellate court, it has thus far not elected to do
so. In criminal matters, the Virgin Islands legislature has
extended appellate jurisdiction to the District Court in
"cases in which the defendant has been convicted, other
than on a plea of guilty." 4 V.I.C. S 33.

The Territorial Court, appearing here through Judge
Swan and represented by the Court's General Counsel,
contends that the District Court lacked subject matter
jurisdiction to issue the writ. More specifically, because
Richards was never convicted, it maintains that the District
Court lacked potential jurisdiction and, consequently, the
ability to issue a writ in aid of non-existent jurisdiction. We
disagree. Appellate courts have the power to issue writs of
mandamus prior to the filing of appealable orders when the
conditions requiring the writ exist. Cf. Helstoski v. Meanor,
442 U.S. 500, 506-08 (1979) (mandamus does not lie when
direct appeal is available); Pennsylvania v. Newcomer, 618
F.2d 246, 249 (3d Cir. 1980) (declaring mandamus should
be avoided when appeal is available through collateral order
doctrine). Indeed, the mandamus power would mean little if
it could not be invoked until the filing of an appealable
order. Were that so, litigants would rely exclusively on the
right to appeal, and mandamus power would be
superfluous. More specifically, jurisdiction to issue writs of
mandamus under 28 U.S.C. S 1651 lies in cases in which
potential appellate jurisdiction exists. See, e.g., In re
Chambers Dev. Co., 148 F.3d 214, 223 n.6 (3d Cir. 1998)
("Under the All Writs Act, the writ of mandamus can be
issued where `necessary or appropriate in aid of[the
court's] jurisdiction.' 28 U.S.C. S 1651(a). However, to

8
satisfy the jurisdictional prerequisite, it is not necessary
that the action in which the writ is sought be pending in
the court asked to issue the writ. Rather, it is only required
that the case may at some future time come within the
court's appellate jurisdiction.") (citation omitted);
Hahnemann v. Univ. Hosp., 74 F.3d 456, 460 (3d Cir.
1996); Glenmede Trust Co. v. Thompson, 56 F.3d 476, 482
(3d Cir. 1995).

Though mandamus is usually difficult to obtain, courts
sitting in their appellate capacity have heard mandamus
petitions filed by defendants over pretrial criminal
proceedings. See, e.g., Hilbert v. Dooling, 476 F.2d 355, 362
(2d Cir. 1973) (en banc) (employing mandamus to compel
district court to dismiss indictment); 16 Wright, Miller, &
Cooper, Federal Practice and Procedure S 3936.1 (2d ed.
1996) (collecting cases). Once jurisdiction is established,
the ability to issue writs in aid of potential appellate
jurisdiction sweeps broadly. "The power to issue such writs
in aid of our potential appellate jurisdiction comprehends
our responsibility for the orderly and efficient
administration of justice within the circuit." New York v.
U.S. Metals Ref. Co., 771 F.2d 796, 801 (3d Cir. 1985)
(quoting Rodgers v. U.S. Steel Corp., 508 F.2d 152, 161 (3d
Cir. 1975)).

The Territorial Court suggests that such authority should
be curtailed in this case, given the District Court's inability
to prescribe rules of practice and procedure for the
Territorial Court and its inability to regulate the admission
of attorneys to the Virgin Islands bar. As important as these
functions are, we do not consider them as relevant to the
question at hand as the District Court's main role with
respect to the Territorial Court, that of hearing appeals. It
is this authority that gives rise to the mandamus power,
not the authority referred to by the Territorial Court.

In sum, the District Court had potential appellate
jurisdiction over the case as Richards could have gone to
trial and been convicted. The Territorial Court points to no
cases that distinguish the current facts from the general
rule that potential appellate jurisdiction is sufficient for the
exercise of mandamus power.

9
B.

The next question is whether the District Court, as a
non-Article III court, had the statutory authority necessary
to issue a writ of mandamus in light of the structure
established by the Revised Organic Act. The issue seems
quite straightforward insofar as the Virgin Islands
legislature plainly intended to extend all writs power to the
District Court. See 4 V.I.C. S 34 ("The district court may
from time to time prescribe rules, consistent with law and
with the rules adopted by the Supreme Court, for the
conduct of its business and may issue writs of habeas
corpus, review and prohibition and all other writs and make
mandatory orders and all other orders necessary or
appropriate in aid of its original or appellate jurisdiction and
agreeable to the usages and principles of law.") (emphasis
added). Moreover, we have previously assumed that
mandamus authority properly lies with the District Court of
the Virgin Islands, see Brow v. Farrelly, 994 F.2d 1027,
1036 n.9 (3d Cir. 1993), and the District Court has so
exercised it, see Dawsey v. Gov't of the Virgin Islands, 931
F. Supp. 397 (V.I. App. Div.), aff 'd 106 F.3d 384 (3d Cir.
1996).

The Territorial Court contends, however, that the Virgin
Islands legislature lacked the authority to extend all writs
power to the District Court. This argument is based on the
fact that the ROA only permits the legislature to prescribe
the District Court's appellate jurisdiction. See 48 U.S.C.
S 1613a. The Territorial Court maintains that this limitation
is fatal to the exercise of mandamus power because
appellate jurisdiction is not inclusive of mandamus power.
For support of this proposition, it points to Congress's
making separate provisions for all writs jurisdiction and the
appellate power when it established the authority of the
federal courts of appeals. Compare 28 U.S.C.SS 1291, 1292
(delineating appellate jurisdiction of courts of appeals), with
28 U.S.C. S 1651 (delineating all writs power of federal
courts).

The thrust of the Territorial Court's objection, that all
writs power in aid of the appellate power is not
synonymous with the appellate power and therefore
requires an independent statutory basis, carries surface

10
appeal. We note in this regard that we have been reluctant
to recognize extensions to the District Court by the Virgin
Islands legislature of powers not explicitly permitted by the
ROA. See Moravian Sch. Advisory Bd. of St. Thomas v.
Rawlins, 70 F.3d 270 (3d Cir. 1995) (holding, in light of
Federal Rule of Civil Procedure that required dismissal and
absence of authority in ROA, district court lacked power to
transfer power case improperly filed in District and not
Territorial Court notwithstanding authorization by the
territorial legislature). We need not, however, grapple with
this issue. Whether appellate power inherently includes
mandamus power, is irrelevant to the outcome, for
Congress has granted all writs authority to all courts
"established by Act of Congress." The law makes no
distinction between Article III courts and those with
jurisdiction over territories that are established pursuant to
Congress's authority under Article IV S 3 of the
Constitution.

We discern no reason to doubt that the All Writs Act
means what it says, and therefore applies to all courts
established by Congress, even if they are not of the Article
III variety. This conclusion is not mere intuition. In an
analogous setting, the Supreme Court has declared that
military courts have all writs power because they are courts
created by congressional statute. See Noyd v. Bond, 395
U.S. 683, 695 n.7 (1969).1 The same has been held of the
Court of Veterans Appeals. See Cox v. West, 149 F.3d 1360,
1363 (Fed. Cir. 1998) ("[T]here is no qualifying language in
_________________________________________________________________

1. The Court noted:

Since the All Writs Act applies by its terms to any`courts
established by Act of Congress,' and since the Revisers of 1948
expressly noted that `[t]he revised section extends the power to
issue
writs in aid of jurisdiction, to all courts established by Act of
Congress, thus making explicit the right to exercise powers implied
from the creation of such courts,' we do not believe that there can
be any doubt as to the power of the Court of Military Appeals to
issue an emergency writ of habeas corpus in cases . . . which may
ultimately be reviewed by that court. A different question would,
of
course, arise in a case which the Court of Military Appeals is not
authorized to review under the governing statutes.

Id.

11
title 28 which limits the term `all courts established by Act
of Congress' to Article III courts or specifically excludes the
Court of Veterans Appeals. On the contrary, when Congress
wishes to specify a subset of courts, it does so explicitly.").
Similarly, the Court of Appeals for the Ninth Circuit has
recognized that the appellate division of the District Court
of Guam has authority to issue a writ of mandamus to the
Guam Superior Court under the All Writs Act. See Apusento
Garden (Guam), Inc. v. Superior Court of Guam, 94 F.3d
1346, 1349 (9th Cir. 1996) (citing Cruz v. Abbate, 812 F.2d
571, 573 (9th Cir. 1987)). In sum, it is clear that the
Appellate Division of the District Court of the Virgin Islands
has the power to issue writs of mandamus when it
possesses the requisite appellate jurisdiction.

C.

The final alleged barrier to the District Court's
mandamus jurisdiction raised by the Territorial Court
emerges from the ROA's mandate that relations between
the District Court and the Territorial Court mirror that
between federal and state courts.

The ROA states:

The relations between the courts established by the
Constitution or laws of the United States and the
courts established by local law with respect to appeals,
certiorari, removal of causes, the issuance of writs of
habeas corpus, and other matters or proceedings shall
be governed by the laws of the United States pertaining
to the relations between the courts of the United
States, including the Supreme Court of the United
States, and the courts of the several States in such
matters and proceedings . . . .

48 U.S.C. S 1613.

The Territorial Court argues that because federal courts
generally cannot issue mandamus orders to their state
counterparts, see In re Grand Jury Proceedings , 654 F.2d
268, 278 (3d Cir. 1981), the District Court could not visit
a mandamus order upon the Territorial Court. This
argument is unpersuasive. As explained supra in Part II.A,

12
the jurisdiction to issue writs of mandamus to another
court exists when a court has potential appellate
jurisdiction. While in the ordinary course of events, federal
courts (except for the Supreme Court) lack appellate
jurisdiction over their state counterparts, thus making
writs of mandamus generally inappropriate, the
relationship between the District Court of the Virgin Islands
and the Territorial Court of the Virgin Islands differs from
that between a federal and state court in one key respect--
until the Virgin Islands legislature creates a local appellate
court, the District Court has appellate jurisdiction over the
Territorial Court. Because mandamus lies in aid of
potential appellate jurisdiction, the District Court can issue
a writ of mandamus to the local court notwithstanding the
ROA's command that their relations be those of state and
federal courts.

Any lingering doubt in this regard is resolved by
precedent from the United States Supreme Court. That
federal court also has appellate jurisdiction over the state
courts. Consistent with this jurisdiction, the Supreme
Court has permitted the filing of writs of mandamus
against state courts. See General Atomic Co. v. Felter, 436
U.S. 493, 497 (1978) (granting leave to file writ of
mandamus against state court). In a similar vein, the
Supreme Court has proclaimed its ability to issue
injunctions to stay state court proceedings in
circumstances where lower federal courts cannot. See
Atlantic Coast R.R. Co. v. Bhd. of Locomotive Eng'rs , 398
U.S. 281, 296 (1970) ("Unlike the Federal District Court,
this Court does have potential appellate jurisdiction over
federal questions raised in state court proceedings, and
that broader jurisdiction allows this Court correspondingly
broader authority to issue injunctions `necessary in aid of
its jurisdiction.' "). Under certain circumstances, the Court
has also issued stays of state court injunctions in matters
that could eventually reach the Supreme Court on appeal.
See, e.g., CBS, Inc. v. Davis, 510 U.S. 1315, 1318
(Blackmun, Circuit Justice, 1994) (declaring that stay of
state lower court injunction is appropriate under All Writs
Act because injunction conflicts with Court precedent,
could warrant certiorari, and would cause irreparable harm
if it took effect).

13
For these reasons, we are satisfied that the District Court
had the requisite jurisdiction necessary to issue a writ of
mandamus to the Territorial Court. We now turn to the
question whether the writ was properly granted.

III.

Given their extraordinary character, writs of mandamus
are not to be issued lightly. "[O]nly exceptional
circumstances amounting to a judicial `usurpation of power'
will justify the invocation of this extraordinary remedy."
Citibank, N.A. v. Fullam, 580 F.2d 82, 86 (3d Cir. 1978)
(quoting Will v. United States, 389 U.S. 90, 95 (1967)). "The
traditional use of the writ in aid of appellate jurisdiction
both at common law and in the federal courts has been to
confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so." Mallard v. U.S. Dist.
Court for the S. Dist. of Iowa, 490 U.S. 296, 308 (1989)
(quoting Roche v. Evaporated Milk Assn., 319 U.S. 21, 26
(1943)). Therefore, only clear errors of law that"at least
approach the magnitude of an unauthorized exercise of
judicial power, or a failure to use that power when there is
a duty to do so" require the writ. Lusardi v. Lechner, 855
F.2d 1062, 1069 (3d Cir. 1988).

A.

The contention that the Territorial Court usurped power
in not dismissing the charges against Richards is founded
on the venerable common law doctrine of nolle prosequi.
Under this doctrine, prosecutors have the power to decide
whether to proceed with the prosecution of a charged
defendant. Absent a controlling statute or rule to the
contrary, this power resides solely in the prosecutor's
hands until the impanelment and swearing of a jury. See
21 Am. Jur. 2d S 779 (1998). This common law power of
prosecutors had long been the rule in federal courts. For
example, in Confiscation Cases, 74 U.S. (7 Wall.) 454, 457
(1868), the Supreme Court declared:

Public prosecutions, until they come before the court to
which they are returnable, are within the exclusive

14
 direction of the district attorney, and even after they
are entered in court, they are so far under his control
that he may enter a nolle prosequi at any time before
the jury is empaneled for the trial of the case, except in
cases where it is otherwise provided in some act of
Congress.

We discuss the impact the promulgation of Fed. R. Crim. P.
48(a) has had on this principle infra in Part III.C.

The Territorial Court argues that substantive common
law does not govern the issuance of dismissals in the Virgin
Islands. Our analysis of the Territory's laws and precedents
persuades us otherwise. In the absence of superseding
rules to the contrary, the common law prevails in the Virgin
Islands. See 1 V.I.C. S 4. The common law's vesting of
discretion in the hands of the prosecutor has been
previously recognized in Virgin Islands jurisprudence. See
Tonkin v. Michael, 349 F. Supp. 78 (D. V.I. 1972). Tonkin is
also notable insofar as it rescribes a wonderful--and highly
apposite--anecdote from the English Common Law, which
we set forth in the margin.2 Of course, the Virgin Islands
legislature could enact a law or rule to alter or eradicate the
nolle prosequi power. Until it does so, however, local
prosecutors retain the common law nolle prosequi power.
_________________________________________________________________

2. The Tonkin opinion recounts:

An incident related in 2 Campbell's Lives of the Chancellors 173 is
of interest in this connection. After he had ordered the
imprisonment of a group of fanatics called "Prophets" for seditious
language, Lord Holt was visited by Lacy, one of their friends, who
informed a servant that he carried a message "from the Lord God."
Lacy was admitted and told Lord Holt: "I come to you a prophet from
the Lord God, who has sent me to thee, and would have thee grant
a nolle prosequi for John Atkins, his servant, whom thou has cast
into prison." Lord Holt replied: "Thou art a false prophet, and a
lying
knave. If the Lord God had sent thee it would have been to the
Attorney-General, for He knows that it belongeth not to the Chief
Justice to grant a nolle prosequi; but I, as Chief Justice, can
grant
a warrant to commit thee to bear him company."

Tonkin, 349 F.Supp. at 81-82 n.9 (citing Justice Traynor in People v.
Sidener, 375 P.2d 641, 642, n.4 (Cal. 1962)).

15
The Territorial Court rejoins that Judge Swan's conduct
was justified by Local Rule 128(b) and, alternatively, Fed. R.
Crim. P. 48(a), which applies to the Territorial Court
through operation of Local Rule 7. We turn first to
consideration of Rule 128(b).

B.

On July 15, 1997, prior to the District Court's stay of
Judge Swan's hearing, the Territorial Court amended local
Rule 128 to include subsection (b), which states:

No criminal case filed in the court, including traffic
citations, shall be dismissed upon motion by any party
except upon a determination by the Court that the
dismissal is in good faith, in the public interest, and in
the interest of justice.

The Territorial Court submits that Rule 128(b) justifies
Judge Swan's conduct in not dismissing the charges and in
scheduling the July 17 hearing. The Government responds
that Rule 128(b) exceeds the Territorial Court's power
under the ROA. This argument demands contemplation of
the lines separating substance from procedure and the
legislative from the judicial.

The ROA provides that "[t]he rules governing the practice
and procedure of the courts established by local law. . .
shall be governed by local law or the rules promulgated by
those courts." 48 U.S.C. S 1611(c). It is clear from this
provision that the rules promulgated by the Territorial
Court must be respectful of the legislature's power to enact
substantive law. We have held that "the doctrine of
separation of powers applies with respect to the coordinate
branches of government in the Virgin Islands." Smith v.
Magras, 124 F.3d 457, 465 (3d Cir. 1997). It naturally
follows that the Territorial Court cannot exercise legislative
powers. "[A]s a general rule inherent in the American
constitutional system . . . unless otherwise expressly
provided or incidental to the powers conferred . . . the
judiciary cannot exercise either executive or legislative
power." Id. at 465-66 (quoting Springer v. Gov't of the
Philippine Islands, 277 U.S. 189, 201-02 (1928)). Even if it
could, the Virgin Islands legislature has not ceded any of its

16
substantive lawmaking power to the Territorial Court.3
Therefore the question is whether Rule 128(b) is an
impermissible substantive rule of law or a procedural rule
that is authorized by the Revised Organic Act.

As discussed above, see supra Part III.A, at common law
the power of prosecutors to determine whether to try a
defendant prior to the impanelment of a jury bordered on
the absolute. Under both statute and precedent, that would
appear to be the rule that holds in the territory. See 1
V.I.C. S 4 ("The rules of the common law, as expressed in
the restatements of the law . . . and to the extent not so
expressed, as generally understood and applied in the
United States, shall be the rules of decision in the courts of
the Virgin Islands in the cases to which they apply, in the
absence of local laws to the contrary."); Tonkin v. Michael,
349 F. Supp. 78 (D. V.I. 1972). By commanding and
empowering a court to determine whether the dismissal of
a prosecution would be in the public interest and the
interest of justice, Rule 128(b) licenses the substitution of
the Territorial Court's judgment for that of the prosecutor.
This is not, therefore, a rule of "practice and procedure"
within the scope of the local courts' rulemaking ability
under the ROA, but a substantive rule of law. The ROA
vests the authority to enact such laws in the legislature.
While the local judiciary may certainly petition the
legislature for expanded powers, it may not unilaterally vest
them upon itself.

To be sure, the line separating procedure from substance
is often unclear. "The test must be whether a rule really
regulates procedure,--the judicial process for enforcing
rights and duties recognized by substantive law . . . ."
Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941). Rule 128(b),
however, does not enforce a right or duty recognized by
substantive law, but rather transfers discretion that was
_________________________________________________________________

3. The Territorial Court cites to 4 V.I.C. S 243(8), but that statute only
grants the local courts power "[t]o amend and control its process and
orders so as to make them conformable to law and justice." Adjusting
process to conform with "law" gives no hint that any lawmaking
functions have been transferred to the judicial branch, and indeed,
suggests that they continue to reside solely with legislative authorities.

17
once wielded by the local prosecutor into judicial hands
under novel standards promulgated in Rule 128(b) itself:
the court must determine that dismissal "is in good faith,
in the public interest, and in the interest of justice." In
other words, the rule's standard of judgment does not look
to preexisting rights and duties that Rule 128(b) may have
been designed to enforce. Rather, it looks to the judgments
of the same court that promulgated the rule. The Territorial
Court thus seeks to expand its own power at the expense
of local prosecutors. This it cannot do, and the District
Court properly held Rule 128(b) to be void.

C.

Because Rule 128(b) is a nullity, Territorial Court Rule 7,
which applies the Federal Rules of Criminal Procedure to
cases in which there is no local rule to the contrary, points
us to Fed. R. Crim. P. 48(a). First promulgated in 1944,
Rule 48(a) provides (with emphasis added): "The Attorney
General or the United States attorney may by leave of court
file a dismissal of an indictment, information or complaint
and the prosecution shall thereupon terminate. Such a
dismissal may not be filed during the trial without the
consent of the defendant."

Like Rule 128(b), Rule 48(a) appears to alter the
traditional common law nolle prosequi power of executive
authorities by requiring "leave of the court" to dismiss a
prosecution. In contrast to Rule 128(b), and as discussed in
further detail below, the actual standards for when a court
may refuse a motion to dismiss under Rule 48(a) are
unclear. In the Government of the Virgin Islands' view,
whatever the standards are, Rule 48(a) also ventures into
the substantive realm. The Government argues that Rule
48(a) cannot justify the Territorial Court's failure to dismiss
the charges against Richards for the same reasons that
Rule 128(b) cannot: If Rule 128(b) violates the Virgin
Islands' separation-of-powers scheme, then the same can
also be said of the application of Rule 48(a) as a rule
promulgated by the Territorial Court, because it too

18
eliminates the absolute discretion of prosecutors to decide
whether or not to pursue their cases.4

The Territorial Court contends that even if the common
law practice of nolle prosequi has been the substantive
common law of the Virgin Islands, it has been displaced by
past practices to the contrary (as reflected by District
Court's use of Rule 48(a) in its opinion in Dawsey v. Gov't
of the Virgin Islands, 931 F. Supp. 397 (V.I. App. Div.),
aff 'd 106 F.3d 384 (3d Cir. 1996)). This argument is
unavailing, however, because if Rule 48(a) cannot be
promulgated by a Virgin Islands court, past practices to the
contrary are irrelevant. More importantly, whatever the
adherence to the common law in the Virgin Islands in the
past, local statute expressly provides that common law
practices are to prevail in the absence of law to the
contrary. See 1 V.I.C. S 4.

Though recognizing the common law background, we
must acknowledge the force of the argument that Rule 48(a)
must be a procedural rule because rules promulgated
under the aegis of the federal Rules Enabling Act ("REA")
are to be procedural, rather than substantive, in character.
See 28 U.S.C. S 2072 (providing that promulgated
procedural rules "shall not abridge, enlarge or modify any
substantive right.").5 Rule 48(a), like all federal rules of
_________________________________________________________________

4. The Territorial Court argues that to hold Rule 48(a) inapplicable would
violate the Supremacy Clause. This argument is plainly mistaken.
Congress never applied the rule to the Virgin Islands courts. Rather, the
Territorial Court chose to adopt the federal standard and thus we
interpret Rule 48(a) in accordance with federal precedent. Any authority
the federal rules have over territorial courts is a function of
territorial
law that must be consistent with the ROA. There is no conflict with
federal law because federal law has delegated to the territory the ability
to determine its rules for itself. Although the Territorial Court may
adopt
whatever rules it chooses, those rules must still comport with the ROA.
5. At the time Rule 48(a) was promulgated, the enabling statutory
language was contained in 18 U.S.C. S 687 (1946) (current version at 28
U.S.C. S 2072) and read: "The Supreme Court of the United States shall
have the power to prescribe, from time to time, rules of pleading,
practice, and procedure with respect to any or all proceedings prior to
and including verdict . . . ." Though the law lacked the later caveat
concerning the contraction or enlargement of substantive rights, its
focus remained on enacting rules of "procedure" not substance. In this
regard, the law resembled the relevant portions of the ROA, which only
allows local courts to enact rules that govern "practice and procedure."
48 U.S.C. S 1611(c).
19
procedure that have been applied by the courts since the
passage of the REA, enjoys an arguable presumption of
regularity as a procedural rule. Moreover, the Territorial
Court conceded at oral argument that there is likely little a
court can do to compel action even if it denies a Rule 48(a)
motion. Cf. United States v. Hamm, 659 F.2d 624, 632 (5th
Cir. Unit A Oct. 1981) (en banc). Even if we were to uphold
the Territorial Court's failure to grant the motion to
dismiss, therefore, that court would seem to have few
options if the day of trial came, and the prosecution refused
to call witnesses or otherwise go forward with its case. The
substantive bite of the rule, therefore, appears to be
hampered by the dullness of its teeth.

Yet Rule 48(a) is commonly seen as affecting the common
law power of prosecutors, irrespective of whether it is
authorized solely as a procedural rule. See 1944 Advisory
Committee Notes on Adopting Rule 48; 3A Wright, Fed.
Practice & Procedure S 812 (2d ed. 1982). One possible
route out of this conundrum is to argue that whatever
substantive effect the Rule possesses emanates from
Congress because the Rules Enabling Act contains a
procedure through which proposed new rules are submitted
to Congress and require at least a seven-month delay before
they can take effect, thus providing some check on
Congress's potential delegation of its substantive
lawmaking authority to the judiciary. See 28 U.S.C. S 2074.6
In contrast, no similar mechanism exists in the Virgin
Islands. But this argument is unsatisfactory. The Rules
Enabling Act's provision for submission to Congress does
not give Congress any authority that it does not already
have. Congress can always vote to abrogate a rule
promulgated by the judiciary. Neither the delay in the rules'
taking effect nor the submission to Congress requirement
creates a veto by silence. Congress must affirmatively
legislate to obviate a properly submitted rule.

The upshot is that Rule 48(a) is a strange animal. It
reads like a procedural rule, but by interposing a
_________________________________________________________________

6. At the time of Rule 48(a)'s promulgation, the rule was not to take
effect until after the conclusion of the session of Congress in which it
had been submitted. See 18 U.S.C. S 687 (1946).

20
discretionary act by a court between a prosecutor's decision
to drop a case and ultimate dismissal, it is adorned with
unmistakable substantive trappings. Though this potential
problem with Rule 48(a) is not a constitutional separation-
of-powers problem but one of a possible violation of the
Rules Enabling Act, it is a problem nonetheless.

We need not, however, engage the full expanse of Rule
48(a) in this case. First, as discussed above, the
substantive reach of the rule appears to be effectively
curtailed by the fact that even if the judge denies the
motion to dismiss, there seems to be no way to compel the
prosecutor to proceed. Second, this case does not present
a facial challenge to local rule 7, which applies Rule 48(a)
to the Territorial Court. Rather, we are reviewing the
conduct of the Territorial Court and determining whether it
rose to a level necessitating the extraordinary remedy of
mandamus. We must therefore consider the viability of Rule
48(a) within a specific factual context, which may contain
elements that give Rule 48(a)'s application in this instance
a procedural character because the rule was employed in
service of substantive rights and duties that exist
independently of the rule's text.

D.

Rule 48(a)'s text does not share the flaw of Rule 128(b)
insofar as it does not set forth substantive standards that
allow the Territorial Court to apply its judgment for what
constitutes the public interest in contravention of the
judgment of local prosecutors. Indeed, courts have
generally viewed their role in granting leave to dismiss
under 48(a) to be a limited one, because "[f]ew subjects are
less adapted to judicial 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."
Newman v. United States, 382 F.2d 479, 480 (D.C. Cir.
1967).

Though this Court has not ruled on the standards that
should be employed in determining whether a judge abuses
his or her discretion in denying a motion under Rule 48(a),

21
other courts have opined on the subject. The Supreme
Court has suggested that the rule exists to prevent
harassment by prosecutors, though it has been vague on
what other circumstances may justify its application.

While [Rule 48(a)] obviously vest[s] some discretion in
the court, the circumstances in which that discretion
may properly be exercised have not been delineated by
this Court. The principal object of the `leave of court'
requirement is apparently to protect a defendant
against prosecutorial harassment . . . . But the Rule
has also been held to permit the court to deny a
Government dismissal motion to which the defendant
has consented if the motion is prompted by
considerations clearly contrary to the public interest.

Rinaldi v. United States, 434 U.S. 22, 29 n.15 (1977) (per
curiam) (citations omitted).

The jurisprudence in the courts of appeals has not been
significantly clearer, save for the proposition that refusal to
dismiss is appropriate only in the rarest of cases. As one of
our sister courts has summarized:

Rule 48(a) is primarily intended to protect a defendant
from prosecutorial harassment, Rinaldi v. United
States, 434 U.S. 22, 31, 98 S.Ct. 81, 86, 54 L.Ed.2d
207 (1977) (per curiam), but it also permits courts
faced with dismissal motions to consider the public
interest in the fair administration of criminal justice
and the need to preserve the integrity of the courts. See
United States v. Hamm, 659 F.2d 624, 628-29 (5th
Cir.1981); United States v. Cowan, 524 F.2d 504, 512-
13 (5th Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct.
2168, 48 L.Ed.2d 795 (1976); cf. United States v. Derr,
726 F.2d 617, 619 (10th Cir.1984). A court is generally
required to grant a prosecutor's Rule 48(a) motion to
dismiss unless dismissal is `clearly contrary to
manifest public interest.' Cowan, 524 F.2d at 513; see
also [United States v.] Miller , 722 F.2d [562,] 566 [9th
Cir. 1983]; United States v. Salinas, 693 F.2d 348, 352
(5th Cir.1983); Hamm, 659 F.2d at 628.

United States v. Carrigan, 778 F.2d 1454, 1463 (10th Cir.
1985).

22
The concern of prosecutorial harassment speaks to the
danger that a prosecutor will engage in a cycle of levying
and dismissing charges against a particular defendant. The
other concerns are harder to describe. Courts have equated
a dismissal that is clearly contrary to the public interest
with one in which the prosecutor appears motivated by
bribery, animus towards the victim, or a desire to attend a
social event rather than trial. See Hamm, 659 F.2d at 630.
But Judge Swan's concerns in this case were not of an
unfairly harassed defendant. Rather, his suspicions appear
to have been aroused by the Government's shift in position
as to the merits of Richards's prosecution after Richards
switched from a public defender to private counsel. These
suspicions were compounded by the Government's
perceived attempt at judge-shopping.7

If one adheres to the view that Rule 48(a) exists solely to
prevent harassment of a defendant, then the Territorial
Court may have exceeded its authority in not promptly
dismissing the case against Richards. Indeed, several
courts have reserved the question of whether, under Rule
48(a), a judge may ever deny an uncontested motion to
dismiss. See Rinaldi, 434 U.S. at 30; United States v.
Gonzalez, 58 F.3d 459, 461 (9th Cir. 1995). We note,
however, that when the mandamus petition was presented
to the District Court, the Territorial Court had not denied
the motion for dismissal. This is significant. Several courts
have indicated that mandamus is not the proper vehicle for
challenging a lower court's refusal to dismiss under Rule
48(a) when the challenged court has actually issued an
order susceptible to review through other means. For
example, the Eighth Circuit employed the collateral order
doctrine, rather than mandamus, to reverse a district court
order that denied a Rule 48(a) motion to dismiss in United
States v. Dupris, 664 F.2d 169, 172-73 (8th Cir. 1981).
Similarly, in United States v. Cowan, 524 F.2d 504, 505
(5th Cir. 1975), the Fifth Circuit reversed a district court
order denying a Rule 48(a) dismissal motion on appeal and
did not reach the question whether mandamus could be
employed for the same purpose. This case, however,
presents different facts from cases where review occurred
_________________________________________________________________

7. In chronicling these suspicions, we intimate no view on their merits.

23
on appeal. Here, Richards moved for a writ of mandamus
before the Territorial Court issued any rulings. Judge Swan
never actually ruled, either adversely or positively, on the
motions to dismiss the charges against Richards. Rather,
he merely scheduled a hearing to probe further into the
circumstances surrounding the Government's reasons for
seeking dismissal.

The question before us under the circumstances,
therefore, is not whether Judge Swan could properly have
used his power under Rule 48(a) to deny a motion to
dismiss, but whether Judge Swan's power under that rule
was so circumscribed as to prohibit his conducting a
hearing on the circumstances surrounding the
Government's requested dismissal. We think that it was
not. We conclude that even if it would have been an abuse
of discretion on his part to ultimately deny the motion to
dismiss, Judge Swan had discretion to hold a hearing on
the parties' claims, especially in light of the checkered
course of the case up to that point. See United States v.
Salinas, 693 F.2d 348, 352 (5th Cir. 1982) ("Although the
burden of proof is not on the prosecutor to prove that
dismissal is in the public interest, the prosecutor is under
an obligation to supply sufficient reasons--reasons that
constitute more than `a mere conclusory interest.' ")
(citation and footnote omitted); 3A Wright, Federal Practice
& Procedure S 812 (2d ed. 1982) ("Since the court must
exercise a sound judicial discretion in considering a request
for dismissal, it must have factual information supporting
the recommendation."); United States v. Greater Blouse,
Skirt & Neckwear Contractors Assoc., Inc., 228 F. Supp.
483, 486 (S.D.N.Y. 1964); United States v. Shanahan, 168
F. Supp. 225, 229 (S.D. Ind. 1959); United States v. Doe,
101 F. Supp. 609, 611 (D. Conn. 1951). Moreover, we are
unaware of any binding precedent that a mandamus order
can or should issue before the court has ruled on the 48(a)
issue.8
_________________________________________________________________

8. That does appear to have been the procedural posture in Dawsey v.
Gov't of the Virgin Islands, 931 F. Supp. 397 (V.I. App. Div.), aff 'd 106
F.3d 384 (3d Cir. 1996). This Court affirmed Dawsey without opinion,
hence that case does not bind us under our Internal Operating
Procedures. See, e.g., United States v. Breyer, 41 F.3d 884, 892 n.11 (3d
Cir. 1994).

24
The Government contends that Judge Swan made clear
that he would not dismiss the matter unless he
independently reached the conclusion that the initial
allegations were untrue, and that he was, therefore,
substituting his judgment for that of the prosecutor. We do
not, however, view a judge's statements in the course of
proceedings as a final determination of a motion. How the
judge initially perceived the case is irrelevant to the
question whether he had issued an appealable order. While
Judge Swan's comments may have been premature and
perhaps reflected an overestimation of his authority (along
with his irritation with the Government), the facts clearly
demonstrate that he had not ruled on the Government's
motion when the writ of mandamus was filed. We conclude
that a court should have the opportunity to consider and
issue its order before a mandamus petition is filed. By
granting first a stay of the scheduled hearing and then
issuing a writ of mandamus, the District Court deprived
Judge Swan of the opportunity to issue a ruling.

On the facts before us, therefore, application of Rule
48(a) does not violate the separation-of-powers system of
the ROA. We conclude that the Territorial Court's mere
effort to obtain information surrounding the prosecution's
attempted dismissal of Richards's information does not
suffice to work a substantive change in the prosecution's
power of nolle prosequi. This conclusion is informed by the
explanation of how Rule 48(a) can properly be used to
justify a judge's scheduling a hearing on the motion before
ruling, a matter to which we now turn.

E.

Even though a judge's discretion under Rule 48(a) is
severely cabined, the rule may serve an important interest
as an information- and accountability-producing vehicle. A
judge who hears a Rule 48(a) motion has independent
responsibilities that may bear on his or her decision on the
requested dismissal. In other words, there are independent
rights, interests, and duties that a court may protect, see
Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941), through
using Rule 48(a) as a "sunshine" provision that exposes the
reasons for prosecutorial decisions.

25
As discussed above, one such right is that of the
defendant to not be harassed by repeated prosecutions that
are dismissed before jeopardy attaches. Another interest
that could be served by a hearing is the court's inherent
authority to ensure that its processes are not being abused.
Cf. Chambers v. Nasco, Inc., 501 U.S. 32, 44 (1991) ("[A]
court has the power to conduct an independent
investigation in order to determine whether it has been the
victim of fraud."); Eash v. Riggins Trucking, Inc., 757 F.2d
557, 567 (3d Cir. 1985) (en banc) (discussing courts'
inherent power to deter abuse of the judicial process
through sanctions). In holding the hearing that he so long
ago scheduled, Judge Swan may therefore appropriately
inquire into whether there were any improprieties attending
the Government's petition to dismiss the Richards's
prosecution.

Additionally, the public has a generalized interest in the
processes through which prosecutors make decisions about
whom to prosecute that a court can serve by inquiring into
the reasons for a requested dismissal. See United States v.
Cowan, 524 F.2d 504, 512-13 (5th Cir. 1975) ("We think
[Rule 48(a)] should and can be construed to preserve the
essential judicial function of protecting the public interest
in the evenhanded administration of criminal justice
without encroaching on the primary duty of the Executive
to take care that the laws are faithfully executed."). While
this interest cannot rise to the substantive ability to compel
a prosecution to proceed, it does argue in favor of allowing
a court to force prosecutors to publicly reveal their reasons
for not proceeding before granting a requested dismissal.
Bringing these decisions into the open may, in turn, lead to
attempts by the public to influence these decisions through
democratic channels.

In sum, we are not prepared to rule that a judge who
suspects wrongful behavior in the proceedings of the
individuals before it has no power to inquire into what the
true circumstances are. Rather, a "sunshine" rule that
requires prosecutors to disclose the reasons for their
actions and allows limited additional inquiry is sufficiently
procedural that it does not run afoul of the dictates of the
ROA. Any doubt in this regard would seem to be resolved

26
by the fact that, as discussed above, Judge Swan had no
apparent power to force the Attorney General to proceed
with a prosecution of Richards.

For all the foregoing reasons, we conclude that the
District Court erred in granting the writ of mandamus.
Therefore, its order granting the writ will be reversed, with
instructions to remand the case to the Territorial Court for
further proceedings consistent with this opinion. The
parties shall bear their own costs.9
_________________________________________________________________

9. Although we do not have before us the question whether mandamus
would be appropriate if, having conducted the hearing, Judge Swan then
refused to dismiss the charges against Richards, we must note that on
the facts currently in the record, we strongly doubt that a refusal to
dismiss would be justifiable. As the discussion of Rule 48(a) indicates,
Judge Swan's ordering a hearing on the facts before him took him to the
outer limits of his authority. Should he deny the motion on remand, or
refuse to rule promptly one way or another, see In re Sharon Steel Corp.,
918 F.2d 434, 436-37 (3d Cir. 1990), Richards or the Government may
then either file an interlocutory appeal or request a writ of mandamus.

27
GARTH, Circuit Judge, dissenting:

The majority opinion in the instant matter has much to
commend it, as it presents a detailed and masterful
analysis of an extremely complex area of law. Indeed, I
concur with the majority's conclusion (1) that the Appellate
Division of the District Court of the Virgin Islands
possessed the authority to issue a writ of mandamus
against the Territorial Court of the Virgin Islands; and (2)
that Territorial Court Rule 128(b) violates the Revised
Organic Act (ROA).

I part company with the majority opinion, however, with
respect to its bottom line: its overly-ingenious interpretation
that Federal Rule of Criminal Procedure 48(a) is nothing
more than a "Sunshine" provision -- a panacea that can
provide both the courts and the general public with the
reasons behind the United States Attorney's decision to
dismiss pending charges against a particular defendant.1
Contrary to the majority, in my view, Rule 48(a) is a
substantive rule that alters the common law in order to
allow the district courts to prevent a prosecutor from
dismissing criminal charges without the courts' consent.

As a result, Rule 48(a) cannot be imported into the rules
of the Territorial Court through its Rule 7 because only
procedural -- and not substantive -- rules may be
promulgated by the Territorial Court. Accordingly, I would
hold that the Attorney General of the Virgin Islands is
correct in his interpretation of Rule 48(a) as a substantive
rule and that accordingly, Richards's charge must be
dismissed without court interference. It is for this reason
that I respectfully dissent.

I

The ROA empowers "the courts established by local law"
(i.e., the Territorial Court of the Virgin Islands) to prescribe
their own "rules governing practice and procedure." 48
_________________________________________________________________

1. The majority terms Rule 48(a) "a sunshine provision that exposes the
reasons for prosecutorial decisions," Majority Op., at 25, presumably in
line with the Government in the Sunshine Act, 5 U.S.C. S 552b, which
seeks to open local government meetings for citizen observation.

28
U.S.C. S 1611(c). Purporting to use this statutory provision
as authority, the Territorial Court promulgated a rule
patterned after Rule 48(a) -- its Rule 128(b), which states
that

[n]o criminal case filed in the court . . . shall be
dismissed upon motion by any party except upon a
determination by the Court that the dismissal is in
good faith, in the public interest, and in the interest of
justice.

The Appellate Division of the District Court of the Virgin
Islands held this rule to be void. See In re Richards, 52 F.
Supp. 2d 522, 528-29 (D.V.I. 1999). That court also held
that Rule 48(a), which states that

the United States attorney may by leave of courtfile a
dismissal of an indictment, information or complaint
and the prosecution shall thereupon terminate,

could not be applied in the Territorial Courts of the Virgin
Islands, notwithstanding the effect of Territorial Court Rule
7.2 Id. at 529-30. The Appellate Division premised this
holding on the fact that, pursuant to the ROA, any rule
promulgated or adopted by the Territorial Court, including
Rule 7, must be procedural, and not substantive, in nature.
See id. at 528-30. The majority in the instant case, as
opposed to my view, holds that Rule 48(a) is not a
substantive rule, although it admits that the rule"is
adorned with unmistakable substantive trappings." Majority
Op., at 21. In my opinion, there is no difference between
Rule 128(b), which even the majority rejects as being in
violation of the ROA, and Rule 48(a). The contents of both
rules are substantively identical and obviously, therefore, if
one rule is ineffective to condition a prosecutor's
recommendation of dismissal, then so too is the other.
Hence, my position in this regard is straight-forward and
rather simple: neither Rule 128(b) nor Rule 48(a) is effective
_________________________________________________________________

2. Territorial Court Rule 7 provides that "[t]he practice and procedure in
the Territorial Court shall be governed by the Rules of the Territorial
Court and, to the extent not inconsistent therewith, by the Rules of the
District Court, the Federal Rules of Civil Procedure, the Federal Rules of
Criminal Procedure and the Federal Rules of Evidence." Terr. Ct. R. 7.

29
in the courts of the Virgin Islands because both are
substantive rules.

A

The difference between rules that are "substantive" and
cannot be promulgated or adopted in the Virgin Islands and
those that merely regulate "practice and procedure" must
initially be explored. The starting point for this inquiry
must be the Supreme Court's watershed decision in
Sibbach & Co. v. Wilson, 312 U.S. 1 (1941). 3 In Sibbach, the
Court held that "the test must be whether a rule really
regulates procedure[ ] -- the judicial process for enforcing
rights and duties recognized by substantive law and for
justly administering remedy and redress for disregard or
infraction of them." Id. at 14.

As numerous commentators have indicated, however, the
Sibbach test alone is of little help in determining whether a
given rule is procedural or substantive in nature. See
Wright, Miller & Cooper, Federal Practice & Procedure:
Jurisdiction, S 4509, at 264 (stating that the Sibbach
formula "is no test at all -- in a sense, it is little more than
the statement that a matter is procedural if, by revelation,
it is procedural"). As a result, in order to derive a proper
standard to delineate between procedure and substance,
_________________________________________________________________

3. I acknowledge that Sibbach and its progeny concern not the ROA, but
the Rules Enabling Act (REA), presently codified at 28 U.S.C. S 2072. The
REA, quite similar to the ROA, authorizes the Supreme Court of the
United States to promulgate rules of practice and procedure for use in
the federal courts, so long as such rules do not impair the substantive
rights of any litigant. See 28 U.S.C. S 2072. Although the REA is not
directly implicated in the instant matter, resort to the jurisprudence
emanating from the REA is necessary because of the lack of interpretive
guidance concerning the virtually identical provisions of the ROA.
Indeed, the majority implicitly recognizes such. Majority Op., at 19 n.5.

Both the majority and I hold that the Supreme Court cannot
promulgate substantive rules under the REA. Even though neither party
to the present appeal has raised the specific issue of whether Rule 48(a)
violates the REA's provisions because it is substantive and not
procedural, I suggest that the propriety of Rule 48(a) with respect to all
federal courts be re-examined.

30
something must be added to the Sibbach Court's analysis.
Hart and Wechsler, the oft-cited civil procedure scholars,
have opined that substantive rules are those that
"characteristically and reasonably affect people's conduct at
the stage of primary private activity." Hart & Wechsler, The
Federal Courts & the Federal System 678 (1953); see also
Paul D. Carrington, "Substance" and "Procedure" in the
Rules Enabling Act, 1989 Duke L.J. 281. With this
understanding of the procedure vs. substance "dichotomy,"
I am satisfied that both Rule 128(b) and Rule 48(a) are
substantive rules, and therefore violate the provisions of the
ROA.

B

As the majority acknowledges, both Rule 128(b) and Rule
48(a) implicate decisions that the common law exclusively
granted (and still grants, in many jurisdictions) to the
prosecutor -- decisions regarding whether to dismiss
pending criminal charges against a particular defendant.
This prosecutorial right, known as nolle prosequi, was
absolute at common law -- no entity, including the
judiciary, could challenge the prosecutor's decision to end
a criminal proceeding. See Confiscation Cases , 74 U.S. (7
Wall.) 454, 457 (1868) ("Under the rules of the common law
it must be conceded that the prosecuting party may
relinquish his suit at any stage of it, and withdraw from
court at his option . . . ."); 3 Charles E. Torcia, Wharton's
Criminal Procedure S 445, at 926 (13th ed. 1991).
Notwithstanding this common law principle, both Rule
128(b) and Rule 48(a) restrict a prosecutor's right to
dismiss criminal charges.

The nolle prosequi tradition goes to the very heart of the
prosecutorial role and function. As such, any restriction on
the prosecutor's right of nolle prosequi would necessarily
enter the substantive arena, and thus not be available for
regulation by the Territorial Court. Given that such
interference with a prosecutor's discretion "transfers
discretion that was once wielded by the local prosecutor
into judicial hands," Majority Op., at 17-18 (emphasis
added), it is obvious that both rules must be deemed
substantive.

31
The majority, which holds that Rule 128(b) is
substantive, but that Rule 48(a), despite its "substantive
trappings," Majority Op., at 21, is not, gives an
unwarranted life to Rule 48(a) in the Virgin Islands. It does
so by grafting onto Rule 48(a)'s substantive provisions a
"Sunshine" gloss that runs counter to Rule 48(a)'s history
and that nowhere appears in Rule 48(a)'s jurisprudence. It
is not surprising, therefore, that I find the Appellate
Division's analysis persuasive in finding that Rule 48(a)
cannot be applied in the Virgin Islands.

i.

The majority first attempts to justify its inconsistency in
characterizing identical rules differently by explaining that
Rule 128(b), unlike Rule 48(a), contains specific standards.
See Majority Op., at 23-24. Those standard s (i.e., good
faith, public interest, and the interest of justice) inform a
judge's decision whether to grant a prosecutor's motion to
dismiss pending charges. Terming such principles
"substantive standards," the majority reasons that Rule
48(a)'s lack of such standards is an indication that the
courts' "role in granting leave to dismiss under 48(a) [is] a
limited one," Id. at 21, and as such, does not wrongfully
venture beyond the procedural domain.

Building upon this purported lack of standards, the
majority then fashions its own interpretation of Rule 48(a)
-- the "Sunshine" principle to which I alluded earlier. More
specifically, the majority opines that Rule 48(a)"ensures
that [the courts'] processes are not being abused," and
allows the public to gain an insight into "the processes
through which prosecutors make decisions about whom to
prosecute." Id. at 26.

As an initial matter, although the majority is correct that
the express terms of Rule 48(a) do not indicate that a
judge's decision to grant or deny a prosecutorial motion to
dismiss pending criminal charges are subject to the
standards of good faith, public interest and the interest of
justice, those courts that have sought to interpret Rule
48(a) have imputed those standards to the rule itself. The
lone Supreme Court discussion of Rule 48(a), United States

32
v. Rinaldi, 434 U.S. 22 (1977) (per curiam), states that Rule
48(a) was primarily intended to protect against
prosecutorial harassment, but that a court would likely be
within its discretion in rejecting a Rule 48(a) motion where
dismissal was not in the public interest. See id. at 29 n.15.
Picking up on this theme, the Fourth Circuit in United
States v. Smith, 55 F.3d 157 (4th Cir. 1995), held that "the
disposition of a government's motion to dismiss an
indictment should be decided by determining whether the
prosecutor acted in good faith at the time he moved for
dismissal." Id. at 159. The Smith court cited a "prosecutor's
acceptance of a bribe, personal dislike of the victim, and
dissatisfaction with the jury impaneled" as examples of
prosecutorial misconduct that would warrant denial of a
Rule 48(a) motion. See id.

Perhaps the most extensive treatment of Rule 48(a) can
be found in the Fifth Circuit's opinion in United States v.
Cowen, 524 F.2d 504 (5th Cir. 1975). In Cowen, the court
held that Rule 48(a) was a "manifest" attempt on the part
of the Supreme Court to vest "in the courts the power and
the duty to exercise a discretion for the protection of the
public interest." Id. at 511. Although the Fifth Circuit
believed that such discretion was extremely limited, in that
the prosecutorial decision "should not be judicially
disturbed unless clearly contrary to the public interest,"
Rule 48(a), in its view, did provide for "a discretion broad
enough to protect the public interest in the fair
administration of justice." Id. at 512.

As such, each of the so-called "substantive standards"
identified by the majority as contained within Rule 128(b)
and ostensibly missing from the provisions of Rule 48(a)
have been considered part and parcel of Rule 48(a)'s"leave
of court" requirement. Rule 48(a) thus vests the district
judge with decisionmaking power as to whether pending
criminal charges against a defendant should be dismissed
pursuant to the standards noted above -- specific
standards that prior to the promulgation of Rule 48(a) were
weighed solely within the province of the prosecutor
himself.

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ii.

The majority's self-avowed purpose that it attributes to
Rule 48(a) -- to air the rationale(s) behind the sought-for
dismissal of a criminal proceeding -- suffers from serious
flaws. See Majority Op., at 25-27. First, such an
interpretation is belied by the very history behind the
Supreme Court's promulgation of the rule. According to the
late Professor Lester Orfield,4 the Advisory Committee's
proposed version of what now appears as Rule 48(a) did not
contain the phrase "with leave of court" that presently
appears in the rule. Rather, the original rule provided that
in order to obtain a dismissal of pending criminal charges,
a prosecutor would be required to provide the district court
"with a statement of the reasons therefor." See Mark S.
Rhodes, Orfield's Criminal Procedure Under the Federal
Rules S 48:11, at 251 (2d ed. 1987); see also 4 Drafting
History of the Federal Rules of Criminal Procedure 178
(Madeline J. Wilken & Nicholas Triffen, eds.) (1991)
(reprinting the original version of Rule 48(a) that the
Advisory Committee transmitted to the Supreme Court).
Before the Supreme Court promulgated Rule 48(a) in its
present form, however, it deleted the requirement for a
"statement of the reasons therefor," and replaced that
phrase with the language currently found in the rule--
"with leave of court." Id.; see also United States v. Hamm,
659 F.2d 624, 631 n.23 (5th Cir. Unit A 1981) (stating that
the initial version of Rule 48(a) drew sharp criticism from
prosecutors, and therefore was modified to its present
form).

If Rule 48(a)'s language had remained unchanged from
its original Advisory Committee format, the majority would
have more license for its "Sunshine" interpretation of the
rule. The fact that the Supreme Court eliminated express
language that would support this "Sunshine" purpose for
Rule 48(a), however, is fatal to the majority's creative
attempt to distinguish or differentiate between Rule 48(a)
and Rule 128(b). Indeed, as Professor Orfield wrote, "a
dismissal [of prosecution] might [now] be filed without any
statement of reasons." Id.
_________________________________________________________________

4. Orfield was a member of the Original Advisory Committee to the
Supreme Court with respect to the Federal Rules of Criminal Procedure.

34
The majority therefore is plainly incorrect is its novel
assertion that the Supreme Court intended Rule 48(a) as a
"Sunshine" rule in order to assist the court system and the
public to understand a prosecutor's reasons for seeking a
dismissal of a criminal proceeding. It inexorably follows
that because Rule 128(b) and Rule 48(a) are spun from an
identical cloth, if Rule 128(b) is void because it is
substantive, then so too is Rule 48(a).

C

Moreover, I also believe that the majority's "Sunshine"
interpretation of Rule 48(a) is not as innocuous as my
colleagues may in fact believe. The majority claims that "the
substantive reach of the rule [48(a)] appears to be
effectively curtailed" because the court cannot compel a
prosecutor to proceed if the motion to dismiss were denied.
Majority Op., at 21. Indeed, the majority states that
interpreting Rule 48(a) as a "Sunshine" rule"is sufficiently
procedural that it does not run afoul of the dictates of the
ROA," and that "[a]ny doubt in this regard would seem to
be resolved by the fact that . . . Judge Swan had no
apparent power to force the Attorney General to proceed
with a prosecution." Id. at 36. I believe that the majority's
theoretical analysis misses a crucial point with respect to
the procedure/substance dichotomy.

As stated above, the very essence of the common law
right of nolle prosequi was that the prosecutor enjoyed
absolute control over the course of a specific prosecution.
Although most of the preceding discussion is framed in
terms of the ultimate decision as to whether to prosecute a
particular offender at all, included within this broad power
are a multitude of prosecutorial decisions bearing on the
institution and maintenance of criminal proceedings. As an
example, once a prosecutor is confronted with alleged
wrongdoing on the part of a purported defendant, the
prosecutor must determine under which statute(s) to seek
criminal sanctions, and the proper evidence to introduce in
order to obtain a conviction. Because the majority's
"Sunshine" interpretation severely impacts on such
decisions -- those that go to the very core of the

35
prosecutorial function -- Rule 48(a) has a much more
significant reach than the majority envisages.

The facts of the instant matter demonstrate this problem.
The Government of the Virgin Islands initially filed -- via an
information -- a felony rape charge against Richards in the
Territorial Court, and then amended that information to
include a misdemeanor charge. The Government thereafter
agreed to allow Richards to plead guilty to the misdemeanor
charge in return for dismissal of the felony charge. Judge
Swan refused to allow the Government to dismiss the felony
charge. After this initial refusal, however, Judge Swan
scheduled a hearing to determine whether such a dismissal
was consistent with the "public interest."

This "public interest" hearing would have been no
different from the novel "Sunshine" hearing now advocated
by the majority. Indeed, because of the prospect of such a
hearing, the Government disclosed that it sought a
dismissal of the felony charges because the evidence did
not support a felony conviction. The government also
claimed that the primary witnesses against Richards (the
alleged victim and her mother) would not testify. With this
information revealed, it would surprise me if Richards were
to continue to plead guilty to the misdemeanor charge,
particularly because he now has been informed that the
two main witnesses who could implicate him will not
provide any assistance to the Government in its
prosecution.

As a result, Judge Swan's "public interest" hearing, much
like the "Sunshine" hearing the majority now urges upon
us, essentially forced the Government to play out its hand
and disclose information that it normally would seek to
keep confidential.5 Indeed, the simple knowledge on the
part of the prosecutor that such a hearing would be held if
he were to seek dismissal of a defendant's charges could
not help but impact the manner by which the prosecutor
would conduct the course of the criminal litigation. In other
_________________________________________________________________

5. I, of course, am not suggesting that a prosecutor would be entitled to
keep exculpatory evidence from disclosure. See, e.g., Brady v. Maryland,
373 U.S. 83 (1963).

36
words, the allegedly innocuous "Sunshine" hearing could
irreparably impair day-to-day prosecutorial decisionmaking.

The ability to hold such a hearing under the auspices of
Rule 48(a) therefore provides a district court judge with the
opportunity to commandeer the entire prosecutorial process
-- a process that the common law provided to the
prosecutor exclusively through the nolle prosequi doctrine.
Given that such consequences reach far beyond the
courtroom and intrusively into each and every prosecutorial
decision, I do not understand how the majority's
"Sunshine" interpretation of Rule 48(a) can be deemed
either harmless or procedural.

II

I have gone to great lengths to point out that in an effort
to save Rule 48(a) from a substantive characterization, the
majority not only errs, but is inconsistent in its analysis of
two identical rules -- Rule 128(b) of the Territorial Court of
the Virgin Islands and Rule 48(a) of the Federal Rules of
Criminal Procedure. The majority cannot hold one rule void
and still uphold the other. I can understand the majority's
desire to have Rule 48(a) provide for a district court's
oversight of a prosecutor's decision to dismiss pending
criminal charges. When the adoption of this rule goes
beyond the authority that Congress has given to the
Territorial Court of the Virgin Islands, however, it is neither
appropriate nor wise to finesse its adoption by a subterfuge
such as the seemingly benign "Sunshine" gloss that the
majority has imparted to Rule 48(a).

The Appellate Division of the District Court of the Virgin
Islands was quite correct in its analysis and in its issuance
of a writ of mandamus. Because logic, precedent, history,
and reason compel such a result, I would affirm that
decision. In doing so, I must respectfully dissent.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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