United States v. Robert Defreitas

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_______________________

No. 20-3115
_______________________

UNITED STATES OF AMERICA

v.

ROBERT DEFREITAS,
Appellant
_______________________

On Appeal from the District Court
of the Virgin Islands
District Court No. 3-19-cr-00010-001
District Judge: Honorable Robert A. Molloy
__________________________

Argued December 8, 2021

Before: McKEE, RESTREPO, and SMITH Circuit Judges

(Filed: March 21, 2022)

Richard F. Della Fera [Argued]
Suite 1710
500 East Broward Boulevard
Fort Lauderdale, FL 33394
Counsel for Appellant

Nathan Brooks
Adam Sleeper [Argued]
Office of United States Attorney
5500 Veterans Drive
United States Courthouse, Suite 260
St. Thomas, VI 00802
Counsel for Appellee

__________________________

OPINION OF THE COURT
__________________________

SMITH, Circuit Judge

Robert Defreitas, an enforcement officer for the United
States Virgin Islands (U.S.V.I.) Department of Licensing and
Consumer Affairs, asked for sexual favors in exchange for not
reporting a female immigrant who was unlawfully present in
the U.S.V.I. In a one-day trial, the jury convicted Defreitas of
soliciting a bribe, V.I. CODE ANN. tit. 14, § 403, and violating
the Travel Act, 18 U.S.C. § 1952(a)(3). He was acquitted of a
blackmail charge, 18 U.S.C. § 873.

Defreitas appeals his convictions. He asks us to vacate
the District Court’s judgment, or in the alternative, to certify
several questions to the Supreme Court of the Virgin Islands.
We decline the invitation to certify any questions, but we take
this opportunity to identify several considerations that should
2
guide a court’s decision of whether to certify questions to a
state’s highest court. Additionally, we hold that the evidence
presented was insufficient to prove that Defreitas engaged in
an “official act” under V.I. CODE ANN. tit. 14, § 403. As a
result, we will vacate the judgment of conviction for both
offenses and remand to the District Court to enter a judgment
of acquittal.

I. BACKGROUND

Defreitas was employed by the Virgin Islands
Government as an officer for the Department of Licensing and
Consumer Affairs. The Department engages in a variety of
consumer protection measures, including ensuring compliance
with licensure requirements for workers such as barbers and
manicurists. See generally VI CODE ANN. tit. 3, § 272
(describing role of the Department). As a law enforcement
officer, Defreitas had the power to issue citations to individuals
who were working without a required license.

In August of 2018, Defreitas and his on-duty partner,
Tiffany Grosvenor Stevens, visited Deluxe Nail Spa in St.
Thomas. There, Defreitas met Lissette Yahaira Cuevas
Herrera. Defreitas was wearing a white shirt with the word
“Police” emblazoned on the frontAfter he asked Herrera for her
“work papers,” she walked to the back of the store. Defreitas
followed her, and Herrera then admitted that she did not have
a manicurist license and was only helping in the salon
temporarily due to some worker absences. Herrera also told
Defreitas that she was from the Dominican Republic and did
not enter the Virgin Islands through a legal port of entry. When

3
Defreitas followed up by asking for a passport, Herrera
admitted that she did not have one.

Defreitas responded by telling Herrera, “we can fix
this.” Supp. App. at 46. He then touched Herrera on the
shoulder and said: “You have a pretty body. I think you have
a way of paying.” Supp. App. at 54. He asked for her phone
number, but Herrera responded by intentionally giving
Defreitas an incorrect number. Defreitas tested the phone
number and quickly realized it was not correct. He then asked
Herrera to give him her actual number, and she did so.

After Defreitas left the salon, Herrera downloaded a
call-recording application on her phone. Later that day, when
Defreitas called Herrera, she recorded the call—and the
recording of that call was eventually played for the jury at trial.
The call clearly revealed Defreitas to be soliciting sexual
favors in exchange for his not reporting Herrera for a legal
violation.1 After the phone call, Herrera went to the police.

1
Even a brief excerpt from the call demonstrates that Defreitas
asked for sexual favors:

Defreitas (D): You know . . . you are in trouble
. . . You would have been in trouble if I-I didn’t
save you today.
Herrera (H): No, I know that. That is why I got
out.
D: Okay, so, you know you owe me one?
...

4
 Defreitas was indicted under 18 U.S.C. § 1952(a)(3); 18
U.S.C. § 873; and V.I. CODE ANN. tit. 14, § 403. The
indictment specified that the unlawful activity required to
prove a violation of the Travel Act was bribery as defined in
§ 403. Appellant App. at 12 (“Robert Defreitas used a facility
in interstate commerce . . . with the intent to . . . carry on . . .
an unlawful activity, that is Solicitation of a Bribe by a Public
Employee.”). At trial, Herrera testified along with other

D: So, I am going to call you a little bit later . . .
and we could see if we could meet up, okay?
H: Okay, no problem
...
D: . . . Wait do you live with somebody?
H: No, no, no.
D: Do you live by yourself?
H: No I live with my son.
...
D: Okay. So, you don’t live with a man or
anything?
H: Yeah, I-I-I have a husband.
...
D: Oh, so if I ask you for something then you
probably cannot give it to me because you have
a husband.
H: Oh. I don’t know. I-I don’t know. I just don’t
want any problems.
D: Well, listen. He doesn’t have to know and I
am not going to tell anybody.

Appellant App. at 15–18.

5
employees from the salon, as did an expert from AT&T Inc.,
and Defreitas’s partner, Stevens. Of particular import on
appeal is Stevens’s testimony. When asked by the prosecutor
to describe department practice for an officer who encountered
someone the officer learned had entered the country illegally,
she responded that “[t]he enforcement officer would have to
make contact in order to have communication via report to his
immediate supervisor. Then the immediate supervisor would
make contact with the [sic] immigration.” Supp. App. at 114.

At trial, Defreitas did not contest that he asked for sex
in exchange for not reporting Herrera.

At the close of the Government’s evidence, Defreitas
moved for acquittal on three grounds relevant to this appeal.2
First, Defreitas argued that he did not commit an “official act”
because he did not actually do anything; rather, he refused to
do something. Second, he asserted that sexual favors are not
an “emolument, gratuity, or reward” under Virgin Islands law.
Third, he claimed that § 403 is void for vagueness under the
Due Process Clause. The Court denied his motion.

The District Court instructed the jury that before they
could find Defreitas guilty of bribery under § 403, the
Government needed to prove that he “asked for or received any
emolument, gratuity, or reward, or any promise thereof that
was not provided by law . . . in exchange for an official act.”

2
One additional ground pertained to the blackmail charge. As
Defreitas was later acquitted of that charge, it has no bearing
on the appeal before us.

6
Supp. App. at 189. The Court did not provide the jury with a
definition of “official act,” nor did either party even attempt to
provide a definition of “official act” to the Court prior to its
jury charge.

The jury returned a verdict convicting Defreitas of
bribery pursuant to V.I. CODE ANN. tit. 14, § 403 and violating
the Travel Act pursuant to 19 U.S.C. § 1952(a)(3). As we have
noted, the jury acquitted Defreitas of blackmail. In a post-trial
motion for acquittal, Defreitas again raised the grounds he
presented in his prior motion. And at this juncture, he asked the
court to certify questions to the Supreme Court of the Virgin
Islands.3 The Court denied this motion as well.

3
Defreitas asked to certify the following four questions:

(1) What is an “Official Act” that may be
punished as a crime under 14 V.I.C. [§] 403; (2)
Whether 14 V.I.C. [§] 403 criminalizes the
failure to do an official act?; (3) Whether under
Virgin Islands Law, sexual favors constitute an
emolument, gratuity, or reward? and (4) Whether
14 U.S.C. [§] 403 is void for vagueness as
applied, for failure of the statute to provide
notice of the answers to these very questions.

Supp. App. at 299.

7
 II. JURISDICTION

The District Court had jurisdiction pursuant to 18
U.S.C. § 3231 and 48 U.S.C. § 1612. We have jurisdiction
pursuant to 28 U.S.C. § 1291.

III. CERTIFICATION

In addition to challenging his convictions on the merits,
Defreitas asks us to certify questions on the interpretation of
V.I. CODE ANN. tit. 14, § 403 to the Supreme Court of the
Virgin Islands. That Court’s appellate rules provide that we
may certify a question of local law for it to resolve if the
question “may be determinative of the cause then pending in
the certifying court and concerning which it appears there is no
controlling precedent in the decisions of the Supreme Court.”
V.I. R. APP. P. 38. Our local rules similarly provide that we
may certify a controlling question of Virgin Islands’ law to the
Supreme Court of the Virgin Islands for immediate resolution.
3d Cir. L.A.R. Misc. 110.1 (2011) (“When the procedures of
the highest court of a state provide for certification . . . of
questions arising under the laws of that state which will control
the outcome of a case pending in the federal court, this court,
sua sponte or on motion of a party, may certify such a question
to the state court . . ..”)4

While our rules provide for certification, we have not
identified what considerations our court should take into

4
Because our local rules are to be read in conformity with the
Federal Rules of Appellate Procedure, “state” includes any
territory. FED. R. APP. P. 1(b).
8
account when deciding if certification is appropriate. Clearly,
it is inappropriate to certify any state-law question solely
because its outcome may control a case; federal courts are often
required to make faithful predictions of how a state supreme
court will rule. See City of Houston, Tex. v. Hill, 482 U.S. 451,
470–71 (1987); Erie R.R. Co. v. Thompkins, 304 U.S. 64, 78
(1938). But we must always be mindful of the purpose behind
certification: that it “does, of course, in the long run save time,
energy, and resources and helps build a cooperative judicial
federalism.” Lehman Bros. v. Schein, 416 U.S. 386, 391
(1974). Thus, when faced with the question, a court should
consider several factors which will counsel whether
certification is appropriate.

First, the relevant question’s eventual resolution should
be unclear and control an issue in the case. Certifying a
question where the answer is clear is inappropriate and
unnecessary. See City of Houston, 482 U.S. at 470–71. But,
as we have observed, certifying a question is appropriate if we
determine that we cannot predict how a state court would rule.
Oberdorf v. Amazon.com Inc., 818 F. App’x 138, 143 (3d Cir.
2020) (en banc) (certifying a question when we were “unable
to predict how the Pennsylvania Supreme Court would rule in
this dispute”). Similarly, an immaterial question should not be
certified. These first-order considerations will often be
dispositive. In fact, our local rules require that the question
“control the outcome of a case,” 3d Cir. L.A.R. Misc. 110.1
(2011), and jurisdictions within our circuit stress the
importance of uncertainty in the determination of whether to
accept a certified question. See, e.g., N.J. CT. R. 2:12A-1
(requiring “no controlling appellate decision, or statute in this
case”); DEL. R. SUP. CT. 31 (listing examples of when
9
certification is appropriate including questions of first
impression and questions where there are conflicting decisions
among state trial courts); PA. R.A.P. 3341 (same).

Second, courts should consider what we will broadly
refer to as the “importance” of the question. These
“importance” factors demonstrate a state’s interest in the
interpretation of its own law as well as our interest in
supporting cooperative judicial federalism. For example, open
questions of state constitutional law should nearly always be
left to the state courts. Blue Cross & Blue Shield of Ala., Inc.
v. Nielsen, 116 F.3d 1406, 1413 (11th Cir. 1997) (“It is . . .
imperative that any state constitutional law issues in this case
be decided by the state supreme court.”). Likewise, a state’s
high court is the most appropriate forum to weigh competing
state public policy interests. See, e.g., Chauca v. Abraham, 841
F.3d 86, 93 (2d Cir. 2017) (“[I]mportant state issues require
value judgments and important public policy choices that the
New York Court of Appeals is better situated than we to
make.” (quoting Licci ex rel. Licci v. Lebanese Canadian Bank,
SAL, 673 F.3d 50, 74 (2d Cir. 2012))) (internal quotation marks
omitted); Schuchart v. La Taberna Del Alabardero, Inc., 365
F.3d 33, 37 (D.C. Cir. 2004). Further, issues that are likely to
recur or which could lead to forum shopping should be
certified for an immediate and dispositive resolution.
Schuchart, 365 F.3d at 37; In re Badger Lines, 140 F.3d 691,
698 (7th Cir. 1998).

Finally, courts should consider judicial economy. Our
consideration of judicial economy encompasses the actions of
the parties as well as the cost effectiveness of certification.
And while such concerns may not be as weighty as federalism
10
concerns, they are necessary to ensure that certification
remains an efficient method to resolve disputes instead of a
delay tactic in the hands of sophisticated litigants. For
example, a court should view with skepticism a party’s request
for certification when that party had originally invoked federal
jurisdiction. Powell v. U.S. Fid. & Guar. Co., 88 F.3d 271, 273
n.3 (4th Cir. 1996); 17A VIKRAM D. AMAR, CHARLES A.
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &
PROCEDURE § 4248 (3d ed. 2021). Another factor to consider
is the timeliness of a request for certification. See Minn. Voters
All. v. Mansky, 138 S. Ct. 1876, 1892 n.7 (2018) (declining to
certify when request was made “very late in the day”). After
all, certification is not an opportunity for a do-over. Requests
to certify made by a party only after an adverse decision
compel a court to inquire of the party: Why now? State Auto
Prop. & Cas. Ins. Co. v. Hagris, 785 F.3d 189, 194 (6th Cir.
2015) (“[C]ertification is disfavored when it is sought only
after the district court has entered an adverse judgment.”);
Thompson v. Paul, 547 F.3d 1055, 1065 (9th Cir. 2008) (“A
party should not be allowed ‘a second chance at victory’
through certification by the appeals court after an adverse
district court ruling.” (quoting In re Complaint of McLinn, 744
F.2d 677, 681 (9th Cir. 1984))).5

5
Just because a court has entered judgment, however, does not
by itself mean that certification was requested out of time or as
an “insurance policy.” We are mindful that every state has
different procedures and several states do not allow
certification from district courts. See Jason A. Cantone &
Carly Griffin, Certified Questions of State Law: An

11
 We do not suggest that the foregoing list is exhaustive,
nor that any one of the considerations we have set forth should
be considered dispositive. Yet the presence of even one may
weigh on the decision to certify. See generally Metz v. BAE
Sys. Tech. Sols. & Servs. Inc., 774 F.3d 18 (D.C. Cir. 2014).

With all of these factors in mind, we confront the
primary legal question presented: whether Defreitas’s decision
to not report Herrera for an immigration violation was an
“official act” as used in V.I. CODE ANN. tit. 14, § 403.6 That
question is likely dispositive of the entire litigation.

Further, we know of no case in which the Virgin Islands
Supreme Court has addressed the “official act” question, but
we find sufficient guidance from the federal courts. 7 As we
explain below, “official act” is a term with common law roots,
and federal precedent interpreting “official act” serves as a

Examination of State and Territorial Authorizing Statutes,
FED. JUDICIAL CTR. (June 2020).
6
We examine this question now because if we were to certify,
it is the question (or a close correlate) that we would be asking
the Supreme Court of the Virgin Islands to resolve. The other
questions were not pressed in this litigation. Additionally,
whether the statute is void for vagueness is a question of
federal law and thus not appropriate for certification.
7
We apply the Erie Doctrine to criminal statutes within the
Virgin Islands. United States v. Fontaine, 697 F.3d 221, 227
(3d Cir. 2012).

12
useful guide when interpreting § 403. Infra Section IV.
Indeed, counsel for Defreitas conceded that it was unlikely the
Supreme Court of the Virgin Islands would fail to follow
United States Supreme Court teachings on “official act”—
precedent that we are in at least the same position as the
Supreme Court of the Virgin Islands to accurately interpret.
Oral Arg. Tr. at 6–7. So our Erie guess is hardly an
inappropriate intrusion into Virgin Islands’ jurisprudence.

But because our resolution of the question will be
determinative of this case, we now consider its importance.
This case does not call on us to interpret an issue of state
constitutional law,8 nor does the issue seem to be one that will
commonly recur. In fact, the parties present no precedent from
the local courts of the Virgin Islands that has interpreted this
statute. Such silence in the Virgin Islands’ jurisprudence
suggests that the statute is not commonly utilized by
prosecutors there. In addition, as a criminal statute, our
resolving this question carries little risk of forum shopping by
litigants. And while there are some policy interests at play,
such as providing sufficient notice to defendants, we see no
question of state public policy which would be better resolved
by the Supreme Court of the Virgin Islands.

Finally, the timing of the request to certify gives us
pause. At oral argument, counsel for Defreitas admitted that
the request to certify could have been made in a pretrial motion.
Oral Arg. Tr. at 12. It was not. Indeed, counsel did not raise

8
The Virgin Islands does not have a constitution, though an
equivalent would be the Organic Act. 48 U.S.C. § 1541.

13
the issue of certification during his pre-verdict motion for
acquittal even though in that same motion he directly
challenged the interpretation of “official act” as used in § 403.
The request for certification came only after the jury found
Defreitas guilty.

In short, we have a question the resolution of which is
uncertain. Yet as a federal court, we are institutionally well-
situated to resolve it and to provide a well-informed
interpretation of § 403. The question does not implicate
important issues of state policy nor of federalism interests.
And—again—it was requested only after an adverse judgment.
We therefore decline to certify this question to the Supreme
Court of the Virgin Islands and now consider the merits.9

9
Our decision not to certify is by no means a reflection on the
Supreme Court of the Virgin Islands. We hold that Court in
high regard, and we have no doubt that it would efficiently
resolve the question. Indeed, we noted in our Report on the
Virgin Islands Supreme Court, "[t]he Court's opinions
objectively define the issues before it with precision,
thoroughly review the relevant case law, and explain its
resolution of those issues in a manner that facilitates appellate
review, provides helpful guidance to trial court judges, and
promotes public confidence in the work of the Court." Judicial
Council of the U.S. Court of Appeals for the Third Circuit,
Report on the Virgin Islands Supreme Court, 15 (2012),
available at
https://www.vicourts.org/publication_and_reports/reports.
14
 IV. “OFFICIAL ACT”

Defreitas argues that the evidence presented was
insufficient to prove that he engaged in an “official act” under
V.I. CODE ANN. tit. 14, § 403. Specifically, he argues that as
an enforcement officer for the Department of Licensing and
Consumer Affairs he had no duty to report that Herrera was
unlawfully present in the United States. He reasons, then, that
his refusal to report Herrera cannot be an “official act.”
Defreitas failed to raise this argument before the District Court,
so we review this sufficiency question for plain error. FED. R.
CRIM. P. 51. We use the familiar four-part framework from
Olano, reversing only when there is an (1) “error;” (2) “that is
plain;” (3) “that affect[ed] substantial rights;” and (4) that
failure to correct the error would “seriously affect[] the
fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732 (1993) (quoting
United States v. Young, 470 U.S. 1, 15 (1985)) (internal
quotation marks omitted). “Ordinarily, when the government
has failed to prove each essential element of the crime charged,
we will reverse under Olano’s fourth prong.” United States v.
Johnson, 19 F.4th 248, 256 (3d Cir. 2021).

As with any question of statutory interpretation, we
begin by examining the text. In re Adoption of L.O.F., 62 V.I.
655, 661 (2015). To be convicted for soliciting a bribe under
this statute, the prosecution must prove that an individual is (1)
“a judicial or other public officer or employee;” (2) who “asks
or receives an emolument, gratuity, or reward, or any promise
thereof, except such as may be authorized by law;” (3) “for
doing any official act.” V.I. CODE ANN. tit. 14, § 403. At this
stage of the litigation, the only argument before us is whether
15
refraining from reporting Herrera was an “official act” under
V.I. CODE ANN. tit. 14, § 403.10

“Official act” is a term of art with its roots in the
common law. See generally United States v. Birdsall, 233 U.S.
223, 230 (1914); State v. Ellis, 33 N.J.L. 102, 106–07 (1868);
James Lindgren, The Elusive Distinction Between Bribery and
Extortion: From the Common Law to the Hobbs Act, 35 UCLA
L. REV. 2355, 2373 (1988). Thus, we must assume that the
legislators who chose to use the term “official act” meant to
adopt its meaning as derived from common law. Morissette v.
United States, 342 U.S. 246, 263 (1952). We expect that the
interpretation of “official act” will remain consistent even
when it is used in other federal or state statutes.11

10
While a question was raised at oral argument regarding
whether refraining from performing an “official act” is
prohibited by this statute, that issue was not preserved in
Defreitas’s briefs and is not before us. Oral Arg. Tr. at 34–36.
11
Many federal statutes either use the term “official act” or are
interpreted through the use of the term. For example, the
federal bribery statute, 18 U.S.C. § 201(b)(2)(A), provides that
a public official who accepts anything of value “in return for
. . . being influenced in the performance of any official act” is
guilty of bribery. Honest Services Fraud is defined in reference
to the federal bribery statute. Skilling v. United States, 561 U.S.
358, 412–14 (2010); United States v. Silver, 948 F.3d 358, 551
(2d Cir. 2020). Courts have recognized that extraction of a
payment in return for performance of an official act can support

16
 The Government, relying on United States v. Ferriero,
866 F.3d 107, 127–28 (3d Cir. 2017), argues that we should
not consider federal law when interpreting § 403. In Ferriero,
we refused to import the definition of federal bribery into New
Jersey’s bribery statute. 866 F.3d at 127–28. Our refusal was
hardly surprising though, since the New Jersey statute does not
include the term “official act.” N.J. STAT. ANN. § 2C:27-2
(defining bribery as accepting “[a]ny benefit as consideration
for a decision, opinion, recommendation, vote or exercise of
discretion of a public servant, party official or voter on any
public issue or in any public election”). Additionally, the
Ferriero panel noted that the specificity of the New Jersey
statute obviated the vagueness concern discussed in
McDonnell v. United States which rendered much of
McDonnell’s analysis inapplicable. Ferriero, 866 F.3d at 128
(citing McDonnell v. United States, 136 S. Ct. 2355, 2373
(2016)). Section 403, however, is significantly less detailed
than the New Jersey statute. Thus, while this Court correctly
concluded that federal law was unhelpful in Ferriero, federal
law does provide us with helpful guidance.

The Supreme Court has defined an “official act” in
McDonnell as “a decision or action on a ‘question, matter,
cause, suit or controversy,’” and that “question, matter, cause,
suit or controversy . . . [must] be something specific and
focused that is ‘pending’ or ‘may by law be brought’ before a
public official.” McDonnell, 136 S. Ct. at 2371–72. The Court

a Hobbs Act extortion conviction. 18 U.S.C. § 1951(b)(2);
Evans v. United States, 504 U.S. 255, 268 (1992); United
States v. Repak, 852 F.3d 230, 252–53 (3d Cir. 2017).

17
further clarified that the terms “pending” or “may by law be
brought”

suggest something that is relatively
circumscribed—the kind of thing that can be put
on an agenda, tracked for progress, and then
checked off as complete. In particular, “may by
law be brought” conveys something within the
specific duties of an official’s position—the
function conferred by the authority of his office.

Id. at 2369. In other words, an “official act” must be a part of
an official’s legal duties.

The conclusion that an official act must be an action
encompassed by an official’s legal duties is confirmed by our
Court’s analysis in United States v. Repak, 852 F.3d 230, 254
(3d Cir. 2017). In that case the defendant, a director of a local
government redevelopment agency tasked with the
responsibility of awarding contracts, accepted free services
from corporations. In return, he continued to award the
corporations new contracts. Id. at 238. When the defendant
argued that he did not commit an “official act,” we noted that
the agency he directed was “undisputedly tasked with the
responsibility of awarding contracts,” and as a result, his
decision to influence the awarding of contracts was clearly an
“official act.” Id. at 254. Thus, our precedent demonstrates
that we look to both the official powers of the relevant agency
and the defendant’s role in that agency to determine if the
actions alleged were “something within the specific duties of

18
an official’s position.” Id. (quoting McDonnell, 136 S. Ct. at
2369).12

The Government argues that Defreitas’s duty to report
immigration violations derives from V.I. CODE ANN. tit. 3,
§ 272, which identifies the general authority of the Department
of Licensing and Consumer Affairs. Specifically, the
Government relies on § 272(a)(8) which states the Department
must

enforce all laws relating to the advertising,
offering for sale and the sale of commodities,
goods, wares and services; receive and evaluate
complaints and initiate its own investigations

12
The fact that an “official act” must be part of an official’s
duties coincides with how the term was defined in early state-
court cases. See, e.g., People v. Jackson, 191 N.Y. 293, 299
(1908) (holding that an act was an “official action” as the
official could only solicit a bribe because “[h]e dealt with a
subject over which he had jurisdiction.”); Selvidge v. State, 72
S.W.2d 1079, 1080 (Tex. Crim. App. 1934) (“To constitute
bribery of a public official it must be made to appear that the
official for a valuable consideration or reward agreed to refrain
from an official act imposed upon him by law.”) (emphasis
added) cited with approval by Gandara v. State, 527 S.W.3d
261, 269 (Tex. 2016). This further demonstrates that federal
precedent has interpreted “official act” consistent with its
common law roots. That buttresses our strong view that the
Supreme Court of the Virgin Islands would not depart from the
common law reasoning of McDonnell.

19
 relating to these matters and take appropriate
action, including referral to a federal or territorial
department or agency.

The Government concerns itself only with the latter half of that
subsection, “including referral to a federal . . . department or
agency.” That is far too narrow a view of this clause. “[T]ake
appropriate action,” necessarily refers back to the first part of
the subsection, “laws relating to the advertising, offering for
sale, and the sale of commodities, goods, wares and services.”
So a plain reading of the text leads us to conclude that an
officer has a duty to act only when required by a “law[] relating
to” consumer protection. See One St. Peter, LLC v. Bd. of Land
Appeals, 67 V.I. 920, 924 (2017) (“[W]e read the words and
phrases of the statute in their context, and construe them
according to the common and approved usage of the English
language.”).

Our reading comports with the rest of the Section,
which requires the Department to protect the rights of
consumers by recommending legislation, promoting quality
standards, and representing consumers before private or public
boards. V.I. CODE ANN. tit. 3, § 272(a). The Department,
however, does not have some freestanding duty to report any
conceivable or possible violation of federal law, no matter its
connection to consumer rights.13 To accept the Government’s
reading would untether the “including referral” phrase from the

13
Indeed, the Government makes no attempt here to connect
policing immigration laws to other consumer protection
measures.

20
rest of § 272 and subsection (a)(8). It would also make the
Department responsible for the enforcement of all federal laws,
everything from the Endangered Species Act to the False
Claims Act. We refuse to accept that the legislature intended
to create such roving commissions.

The Government then takes a fallback position: It
argues that custom is sufficient to establish an agency’s duties.
To reach this conclusion, the Government relies on Birdsall,
yet Birdsall cannot bear the weight the Government places
upon it. Birdsall was an attorney who represented individuals
accused of illegally selling alcohol to American Indians. 233
U.S. at 227–28. In an attempt to obtain a recommendation of
clemency for his clients, he paid two officials who worked for
the Commissioner of Indian Affairs, who was in turn under the
supervision of the Department of the Interior. Id. at 228. The
Supreme Court, citing the regulations of the Department of the
Interior, declared that the relevant officers had a duty “to
inform the said Commissioner whether or not the effective
suppression of the liquor traffic with and among Indians would
be furthered or prejudiced by [e]xecutive or judicial clemency
in any particular case.” Id. (internal quotation marks omitted).

The Court concluded that “[e]very action that is within
the range of official duty comes within the purview of these
sections.” Id. at 230 (emphasis added). But it provided a gloss
on that conclusion, stating:

To constitute it official action, it was not
necessary that it should be prescribed by statute;
it was sufficient that it was governed by a lawful
requirement of the Department under whose
21
 authority the officer was acting. Nor was it
necessary that the requirement should be
prescribed by a written rule or regulation. It
might also be found in an established usage
which constituted the common law of the
Department and fixed the duties of those
engaged in its activities. In numerous instances,
duties not completely defined by written rules
are clearly established by settled practice, and
action taken in the course of their performance
must be regarded as within the provisions of the
above-mentioned statutes against bribery.

Id. at 230–31 (citations omitted). In other words, custom may
inform the understanding of official duties when those “duties
[are] not completely defined by written rules,” but custom
alone cannot establish what constitutes an “official act.” Id. at
231 (emphasis added). In Birdsall, advising on clemency was
“within the range of [the relevant official’s] official duty,” so
the Court reversed the dismissal of his indictment and
remanded for further prosecution.

Here, even assuming that the testimony of Defreitas’s
partner established a custom, that evidence was insufficient to
prove that Defreitas’s decision not to report Herrera was an
“official act.” There existed no internal regulation, guideline,
or statute that advised the Department to engage in any activity
related to the policing of immigration laws. No evidence of
any such authority was provided to the jury, and therefore, no
reasonable juror could have found that Defreitas committed an
“official act.” The evidence here was insufficient to prove that

22
Defreitas violated V.I. CODE ANN. tit. 14, § 403 and 18 U.S.C.
§ 1952(a)(3).14

14
In Hobbs Act extortion cases, we have held that the absence
of authority to perform an “official act” is not a defense when
the bribe payor has a reasonable belief about an official’s
power to perform or withhold such an act. See, e.g., United
States v. Fountain, 792 F.3d 310, 316-17 (3d Cir. 2015)
(upholding a Hobbs Act extortion conviction where the
evidence proves “(1) that the payor made a payment to the
defendant because the payor held a reasonable belief that the
defendant would perform official acts in return, and (2) that the
defendant knew the payor made that payment because of that
belief.”); United States v. Bencivengo, 749 F.3d 205, 212-13
(3d Cir. 2014) (concluding that where an official agrees to, or
his position would allow him to influence, a government
decision, and the victim reasonably believes that the official
“wields such influence, that is sufficient to sustain a
conviction, regardless of whether the official holds any de jure
or de facto power over the decision”); United States v. Mazzei,
521 F.2d 639, 643 (3d Cir. 1975) (en banc). While we doubt
that these cases are applicable to § 403, we do not reach that
conclusion here because the Government did not charge
Defreitas with Hobbs Act extortion and failed to argue that
these cases govern our analysis of § 403. Rather, it charged
Defreitas with a Travel Act violation under 18 U.S.C. § 1952
and the territorial offense of bribery in § 403. As we pointed
out in Bencivengo, in rejecting the defendant’s double jeopardy

23
 Therefore, we return to Olano. 507 U.S. at 732. The
first three factors are met by the error in this case. See Johnson,
19 F.4th at 256. And when the evidence is insufficient to
sustain a conviction, we generally will reverse under the fourth
factor. Id. We see no reason to depart from that general rule
here and will therefore vacate the judgment of conviction.15

claim, the elements necessary to prove a Hobbs Act violation
and a Travel Act violation are not the same. 749 F.3d at 225.
Here, the Travel Act violation based on bribery did not require
proof of extortion and that a public official received some
payment, emolument or gratuity. Rather, it actually required
proof that Defreitas received payment, an emolument or
gratuity “for doing any official act.” V.I. CODE ANN. tit. 14. §
403. As a result, Herrera’s reasonable belief of Defreitas’s
authority as a public official may be sufficient to establish a
Hobbs Act violation, see Fountain, 792 F.3d at 316–17, but it
is not sufficient to establish that Defreitas’s actions were
“official acts” for purposes of § 403 bribery charge, which was
the predicate of the Travel Act violation.

15
Defreitas made several other challenges to his conviction,
but our conclusion that the evidence presented was insufficient
to convict him makes it unnecessary for us to reach those
issues.

24
 V. CONCLUSION

As the evidence was insufficient to prove bribery under
V.I. CODE ANN. tit. 14, § 403, it is also insufficient to prove a
violation of the Travel Act under 18 U.S.C. § 1952(a)(3). We
note that blackmail as defined by 18 U.S.C. § 873 seemed to
be a fairly applicable charge. But by bringing the bribery
charge, the Government complicated the evidence and law
even though it made no effort to define “official act,” an
essential element of § 403. Its charging decision did not pay
off. Defreitas’s conduct—targeting a vulnerable individual in
an attempt to receive sexual favors—was despicable and may
have well been illegal. But it was not bribery. We will vacate
the judgment below and direct the District Court to enter a
judgment of acquittal.

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