IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
PEOPLE OF THE VIRGIN ISLANDS
SX 2021 CR 201
Plaintiff,
vs
NAHJEEB ACEVEDO CITE AS 2023 VI SUPER l &
Defendant
Appearances
Jared W Burke, Esq
Virgin Islands Department of Justice
St Croix U S Virgin Islands
For People ofthe Virgm Islands
H Hannibal O’Bryan, Esq'
Office of the Territorial Public Defender
St Croix, U S Virgin Islands
For Nahjeeb Acevedo
MEMORANDUM OPINION AND ORDER
WILLOCKS, Senior Sitting Judge
T 1 THIS MATTER came before the Court on Defendant Nahjeeb Acevedo’s (hereinafter
“Defendant ’) motion to dismiss filed on November I6, 202],‘ and the People of the Virgin
Islands’ (hereinafter ‘ People”) motion to file their opposition to Defendant’s motion to dismiss
out of time, filed on January 28, 2022 3
‘ Yolan Brow Ross Esq was the counsel of record at the time that the motion was filed but she has since left the
Office of Territorial Public Defender and is currently sitting as a magistrate judge in the Superior Court of the Virgin
Islands
In response to Defendant s motion to dismiss the People filed an opposition, Defendant filed a reply thereafter and
the People filed a supplement to their opposition to Defendant s motion to dismiss thereafter
‘ In response to the People’s motion to file document out of time, Defendant filed an opposition
Peoplc ofthe V I 1 Acei ado
SX 2021 CR 201 \9\
Memorandum Opinion and Order 2023 V1 SUPER
Page 2 of 10
BACKGROI ND
‘11 2 On August 31 2021 the People filed an eleven count information against Defendant based
on events that allegedly took place on or about July 30, 2021, in the vicinity of LaGrange
Frederiksted, U S Virgin Islands, as set forth in the affidavit of Police Detective Teaclla Buckley
(hereinafter “Detective Buckley ) dated August 31 2021 The information charged Defendant
with the following counts
Count One NAHJEEB ACEVEDO acting with malice aforethought did willfully
deliberately and with premeditated design attempt to kill Police Officer Almont King by
shooting at him in violation of Title 14 V I C § 922(a)(1) 331(1) (ATTEMPTED
MURDER IN THE FIRST DEGREE)
Count Two NAHJEEB ACEVEDO acting with malice aforethought did willfully
deliberately and with premeditated design attempt to kill Police Officer Nick Felicien by
shooting at him in violation of Title 14 V I C § 922(a)(1) 331(1) (ATTEMPTED
MURDER IN THE FIRST DEGREE)
Count Three NAHJEEB ACEVEDO, when not authorized by law possessed a firearm
during the commission or attempted commission of a crime of violence to wit attempted
murder and or assault in the third degree in violation of Title 14 V l C § 2253(a)
(UNAUTHORIZED POSSESSION OF A FIREARM DURING THE COMMISSION OF
A CRIME 0F VIOLENCE)
Count Four NAHJEEB ACEVEDO, when not authorized by law possessed a firearm
within a vehicle during the commission or attempted commission of a crime of violence to
wit a white four door Kia Sportage with no rear 1icense plate displayed in violation of Title
14 V l C § 2253(a) (UNAUTHORIZED POSSESSION OF A FIREARM WITHIN A
VEHICLE)
Count Five NAHJEEB ACEVEDO, when not authorized by law possessed a firearm
during the commission or attempted commission of a crime of violence and did so within
1000 feet of a housing community to wit Marley Homes in violation of Title 14 V I C §
2253(f) (UNAUTHORIZED POSSESSION OF A FIREARM WI 1000 FEET OF A
HOUSING COMMUNITY)
Count Six NAHJEEB ACEVEDO did assault Police Officer Almont King and Police
Officer Nick Felicien with a deadly weapon by shooting at them with a firearm in violation
ofTitle 14 V I C § 297(a)(2) (ASSAULT IN THE THIRD DEGREE)
People ofthe V I v Acevedo
sx 2021 CR 201
Memorandum Opinion and Order 2023 VI SUPER l a
Page 3 of 10
Count Seven NAHJEEB ACEVEDO did assault Police Officer Almont King and Police
Officer Nick Felicien fully uniformed police officers acting in their official capacity with
a deadly weapon by shooting at them with a firearm in violation of Title 14 V I C § 297(b)
(ASSAULT IN THE THIRD DEGREE)
Count Eight NAHJEEB ACEVEDO when not in self defense or in the discharge of
official duty did willfully discharge a firearm in a place where there was a person who may
be in] ured thereby to wit on or about a public roadway with other people present in violation
of Title 23 V I C § 479(a) (DISCHARGING OR AlMIING FIREARMS)
Count Nine NAHJEEB ACEVEDO when not entitled to possession of a vehicle without
the consent of the owner and with intent to deprive him temporarily or otherwise of the
vehicle or its possession used and/or drove a white four door Kia Sportage with no rear
license plate displayed in violation of Title 14 V I C § 1382 (UNAUTHORIZED USE OF
A VEHICLE)
Count Ten NAHJEEB ACEVEDO, under circumstances evidencing a depraved
indifference to human life did recklessly engage in conduct in a public place which created
a grave risk of death to others to wit discharging a firearm on or about a public roadway
with other people present including uniformed police officers in violation of 14 V I C §
625(a) (RECKLESS ENDANGERMENT FIRST DEGREE)
Count Eleven NAHJEEB ACEVEDO, when not authorized by law did possess firearm
ammunition in violation of Title 14 V I C § 2256 (a) (UNAUTHORIZED POSSESSION
OF AMMUNITION)
A copy of Detective Buckley 5 affidavit was filed with the information In his affidavit, Detective
Buckley essentially stated (i) On July 30, 2021, at approximately 8 16 p m while working in the
capacity as a Police Detective for the Virgin Islands Police Department, the 91 l dispatcher
“relay[ed] that the Special Operations officers transmitted via radio that they were attempting to
conduct a traffic stop in La Grande vicinity of Frederikshaab Frederiksted, St Croix and that
shots were fired and that there were two individuals trapped inside of the vehicle [and] requested
via radio for ambulance and to have additional units travel to assist ’ (Buckley Aff 1] 2); (ii)
Detective Buckley arrived at the scene to assist, observed the scene, and interviewed Officer 1 and
Officer 2 Officer I and Officer 2 essentially stated to Detective Buckley that they recognized a
stolen vehicle while on foot patrol, that they entered their police unit (with the words “POLICE
People ofthe V] l Acevedo
[airfifialmifinzioépinion and Order 2023 VI SUPER Ji‘
Page 4 of 10
displayed on the unit) and attempted to conduct a traffic stop, that the operator of the stolen vehicle
led them on a high speed chase which resulted in the stolen vehicle running off the road and rolling
onto its side, that shots were discharged at them from inside the stolen vehicle as they approached
the stolen vehicle, that they returned fire, that Defendant fled from the stolen vehicle, that
Defendant disobeyed their verbal commands to show his hands, that Defendant stated he was shot
and subsequently crawled back to the stolen vehicle and was handcuffed, and that three other 17
year old minors from the vehicle were also handcuffed (Buckley Aff 1m 48 4H); (iii) At the
hospital Detective Buckley mirandized Defendant and then interviewed Defendant Defendant
essentially stated that he got a ride after leaving the Marley Homes basketball court, that he didn’t
know the driver or the occupants of the vehicle, that he got in the front passenger seat and took a
nap, that he saw the police blue lights when he opened his eyes, that the driver began to speed that
the vehicle eventually flipped, that he heard shots being discharged from outside of the vehicle,
that he broke the windshield to exit the vehicle, that he began running until he was shot, that no
shots were discharged from inside the vehicle, that the only shots fired were from the police
officers, that he does not own a firearm, and that he does not have a license to carry one (Buckley
Aff ‘l 4]); and (iv) A check was made in the area and evidence was collected Subsequently, the
stolen vehicle was processed and evidence was collected (Buckley Aff 1111 41, 4M )
113 On September 4 2021 a scheduling order was entered in this matter According to the
scheduling order oppositions are due fifieen (15) days afier the motions are filed (Sched Order)
114 On November I6 2021 Defendant filed a motion to dismiss On January 28, 2022, the
People filed an opposition to Defendant s motion to dismiss and a motion to file document out of
time In response Defendant filed a reply to the People’s opposition and an opposition to the
People ofthe V] i Artwdo
SX 2021 CR 201 \
Memorandum Opinion and Order 2023 V1 SUPER
Page 5 of 10
People’s motion Thereafter the People filed a supplement to their opposition to Defendant s
motion to dismiss
DISCUSSION
1 The People’s Motion to File Document Out of Time
fl5 On January 28, 2022, the People filed their opposition to Defendant’s motion to dismiss
and contemporaneously filed a motion to file their opposition out of time in their motion, the
People explained that the “[u]ndersigned counsel has been tasked with preparing the Government’s
response but has been extremely busy meeting numerous court obligations ’4 (Motion 1 )
1| 6 In his opposition, Defendant argued that the Court should deny the People 3 motion ‘ along
with any other relief deemed necessary and appropriate (Opp 3) Defendant made the following
assertions in support of his argument (i) ‘In this matter Attorney Simpson [sic] sole excuse for
her beyond untimely filing of the People’s opposition However, in both criminal and civil forums,
the Court has consistently held that a busy schedule does not rise to the level of excusable
neglect ”5 (Id , at 2), and (ii) “The People 5 busy schedule assertion does not rise to the level of
excusable neglect ’ (Id , at 3 )
A Standard of Review
1] 7 Rule 45(b)(1) of the Virgin Islands Rules of Criminal Procedure (hereinafter ‘ Rule
45(b)(l)’) provides that ‘ [w]hen an act must or may be done within a specified period, the court
on its own may extend the time, or for good cause may do so on a party's motion made (A) before
" Amie M Simpson, Esq was the counsel for the People that filed the motion to file document out of time However
Amie M Simpson, Esq has not filed a notice of appearance for the People in this matter Esther R Walters, Esq filed
a notice of appearance for the People on October 19 2021 and no other notice of appearance has been filed
5 Defendantreferenced V1 R CRIM P 45(b)(l) HIIIS\ Whitecap 1m estment COIp 2016 VI LEXIS ll *6 (Sup
Ct February 8 2016) Bwshmget v Legislature of(he Vugm Islands 2014 VI LEXIS 99 *7 *8 (Sup Ct November
10 2014) People i Rnem 54 V l 116 [24 (Sup Ct November 17 2010)
People ofthe V] v Ace udo
fiégiimcdinzloépinion and Order 2023 VI SUPER | A
Page 6 of 10
the originally prescribed or previously extended time expires or (B) afier the time expires if the
party failed to act because of excusable neglect V I R CRIM P 45(b)(1)
B Analysis
fl8 The Court must note at the outset that the People’s motion to file document out of time was
perfunctory and made without supporting authority to wit, the People failed to cite any relevant
authority showing that counsel’s ‘ extremely busy” schedule warrants an extension of deadline In
fact, the People failed to even cite the relevant rule upon which they relied on for the motion “It
is not the Court's Job to research and construct legal arguments open to parties In order to
develop a legal argument effectively, the facts at issue must be bolstered by relevant legal
authority; a perfunctory and undeveloped assertion is inadequate ” V 1 Tan Assoczatzon v West
[ndzan Company Limited 2016 VI LEXIS 170 *4 (Super Ct Oct 18 2016) (citing Charles v
CB] Acqmsztzons LLC 2016 VI LEXIS 62 *27 n 66) The Court declines to make such
argument on the People 5 behalf See Joseph 1 Joseph 2015 V I LEXIS 43 *5 (V I Super Ct
Apr 23, 2015) (‘ [[]n general, the Court will not make a movant's arguments for him when he has
failed to do so ) Furthermore, as Defendant correctly pointed out in his opposition, being
extremely busy, by itself, does not establish excusable neglect “[C]ourts in the Virgin Islands have
consistently held that a busy schedule ofcounsel, by itself, does not establish excusable neglect ’
Edwards v Hess 011 VI Corp 69 V l 136 142 (V I Super Ct June 28 2017) (quoting
Barshmger v Legislature ofthe V I ofthe U S 2014 V I LEXIS 99 *7 (V I Super Ct Nov 10
2014) (footnote omitted) (unreported) (quoting Peoplev Rivera 54 VI 116 124 (VI Super Ct
2010)) “A moving party must show more than merely being ‘too busy’ to have
responded Edwards 69 VI at 142 (quoting GRS Dev Co v Jarrett 45 VI 21l 216(VI Terr
Ct 2003) (citing Kan Packing Co v Lavzlla
39 VI 71 (VI Terr Ct 1998)) In this instance
People ofthe V I v At ewdo
SK 202] CR 201 ‘3
Memorandum Opinion and Order 2023 VI SUPER
Page 7 of 10
the People failed to provide any other basis to establish that they failed to act because of excusable
neglect Additionally, the People also failed to provide any basis to establish good cause for the
Court to extend the deadline As such, the Court will deny Plaintiff’s motion to file document out
of time and strike from the record the People‘s opposition to Defendant s motion to dismiss See
V l R CRIM P 45(b)(l)
2 Defendant’s Motion to Dismiss
1] 9 In his motion,6 Defendant moved to dismiss the Information for failure to state an offense
pursuant to Rule 12(b)(3)(B)(v) of the Virgin Islands Rules of Criminal Procedure Defendant
made the following assertions in support of his motion 7 (i) [T]he People 5 pleading fails to set
forth any particularized criminal act on his part [and] if the People were to prove every fact alleged
in its supporting Affidavit the People would fail to satisfy the elements of any offense listed in the
Information (Memo of Law 2), (ii) ‘ [T]he People’s Information merely recites the language of
the various statutes ” (Memo of Law 2); (iii) “The information herein alleges that Mr Acevedo
was in a motor vehicle with three other individuals When the police attempted to stop the vehicle,
the driver increased speed and led them on a high speed chase Nothing in the affidavit claims or
" As noted above, the Coun will strike from the record the People 5 opposition to Defendant’s motion to dismiss
Thus the Court will not address Defendant 3 reply thereto Additionally the Court will also not address the People 8
supplement to their opposition to Defendant s motion to dismiss, which was filed Without motion therefor and without
the permission of the Court
Defendant referenced V I R CRIM P 3(b) (the information “must be a plain, concise, and definite written statement
of the essential facts constituting the offense charged ) United State.“ Rankin 8’0 F 2d 109 112 (3d 1989) (The
test provides that the Information must (1) include the elements of the offense charged, (2) inform the defendant of
what he must prepare to meet, and (3) give the defendant an opportunity to accurately demonstrate to what extent he
may plead a former acquittal or conviction in case of a subsequent prosecution ); Russell 1 United States, 369 U S
749 765 (1962) (quoting United Staten Simmons 96 U S 360 362 (1878))( An [information] not framed to apprise
the defendant with reasonable certainty, of the nature of the accusation against him is defective, although it may
follow the language of the statute )‘ Gonsalies \ People 70 V1 812 848 (V1 2019) ( Since the charging
information and probable cause affidavit are filed together, they should be viewed in tandem to determine if they
satisfy the goal of putting the defendant on notice of the crimes with which [he] is charged ), People \ Whyte 62
V1 95 102 (Sup Ct Jan 22 2015) (quoting U S v Besnajian 910 F 2d 1153 1154 (3d 1990)( In considering a
defense motion to dismiss an [information], the [trial] court accepts as true the factual allegations set forth in the
[information] )
People ofthe V I v Acevedo
SX 202] CR 201
Memorandum Opinion and Order 2023 VI SUPER ll
Page 8 of 10
even suggests that Mr Acevedo was the driver of the vehicle or that he in any way aided, abetted,
or even encouraged the unnamed driver’s actions ’ (Id at 3); (iv) “The People further allege that
when the police attempted to approach the vehicle afier it crashed, they encountered gunfire
coming from the vehicle Nothing in the affidavit suggests that Mr Acevedo was in any way
responsible for this alleged act (Id ) (v) The only actions actually attributed to Mr Acevedo in
the affidavit, based upon the officers observations and Mr Acevedo’s alleged statement, are that
he 1) exited the vehicle afier crash 2) attempted to leave the scene of the accident, 3) was shot at
some time during the incident; and 4) reported that the police was responsible for the gunfire
(Id ); (vi) Nowhere in the affidavit does not [sic] allege that Mr Acevedo ever possessed a
firearm, much less any of the attendant charges Moreover, Mr Acevedo is not charged as a
principal for any of the alleged conduct (Id , at 4), and (vii) “Given the incongruities between
the Information and the supporting affidavit, Mr Acevedo waited to see if the discovery would
provide some clarity Unfortunately, the discovery consists primarily of Mr Acevedo’s medical
records regarding the injuries sustained in the incident and reports regurgitating the same
noninformation as the affidavit ” (Id )
A Standard of Review
1! 10 Rule 12(b)(3)(B) of the Virgin Islands Rules of Criminal Procedure allows the defendant
to challenge the defect in the charging document such as “failure to state an offense ’ V I R
CRlM P 12(b)(3)(B)(v) The Advisory Committee Comment to Rule 12(b) of the Virgin Islands
Rules of Criminal Procedure provides that ‘ [s]ubpart (b) identifies a range of pretrial motions that
may raise any defense objection, or request that the court can determine without a trial on the
merits In other words, in determining a motion to dismiss for failure to state an offense the Court
is only addressing Defendant’s facial attack of the information‘s deficiency in the charges and not
People ofthe V I 1 Acevedo
8X 2021 CR 201
Memorandum Opinion and Order 2023 VI SUPER Q
Page 9 of 10
addressing the merits of the information See People of the V I v Whyte 62 V I 95 102 (V I
Super Ct Jan 22 2015) (quoting United States v DeLaurentzs 230 F 3d 659 (3d Cir 2000))
(“Unless there is a stipulated record, or unless immunity issues are implicated, a pretrial motion to
dismiss an [information] is not a permissible vehicle for addressing the sufficiency of the
government's evidence ); see also, United States v Bergrm, 650 F 3d 257, 265 (3d Cir 2011)
(“Evidentiary questions such as credibility determinations and the weighing of proof should
not be determined" on a motion to dismiss for failure to state an offense) In considering a
defense motion to dismiss an [infomation], the [trial] court accepts as true the factual allegations
set forth in the [information] ” Whyte, 62 V I at 102 (quoting Umted States v Besmajlan, 910
F 2d 1153 1154 (3d Cir 1990))
B Analysis
7 11 In this instance, Defendant argued in broad strokes that the information must be dismissed
for failure to state an offense pursuant to Rule 12(b)(3)(B)(v) of the Virgin Islands Rules of
Criminal Procedure (hereinafter ‘ Rule 12(b)(3)(B)(v) ’) to wit rather than explaining why each
count of the information failed to state an offense, Defendant simply claimed that “[n]othing in the
affidavit claims or even suggests that Mr Acevedo was the driver of the vehicle; or that he in any
way aided abetted or even encouraged the unnamed driver’s actions,” that [n]othing in the
affidavit suggests that Mr Acevedo was in any way responsible for this alleged act,” that
“[n]owhere in the affidavit does not [sic] allege that Mr Acevedo ever possessed a firearm, much
less any of the attendant charges ’ and that ‘Mr Acevedo is not charged as a principal for any of
the alleged conduct” without any argument as to why such information was necessary for which
specific count(s) to state an offense or any supporting authority thereto As noted above, “[i]t is
not the Court's job to research and construct legal arguments open to parties In order to develop
People ofthe V I 1 Acet edo
SX 2021 CR 201
Memorandum Opinion and Order 2023 VI SUPER I ; 2
Page 10 of 10
a legal argument effectively, the facts at issue must be bolstered by relevant legal authority, a
perfunctory and undeveloped assertion is inadequate V 1 Tax: Assoczatzon, 2016 V I LEXIS 170
at *4 The Court declines to make such argument on Defendant s behalf See Joseph, 2015 V I
LEXIS 43 at *5 As such the Court will deny Defendant s motion to dismiss for failure to state an
offense 8
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the People’s motion to file their opposition to Defendant s motion to
dismiss out of time filed on January 28, 2022 is DENIED, and the People’s opposition to
Defendant s motion to dismiss is STRICKEN FROM THE RECORD And it is further
ORDERED that Defendant s motion to dismiss filed on November 16 2021, is DENIED
ilk
DONE and so ORDERED this .9 day of April 2023
ATTEST E 3% : ; Egg Xégié :i
Tamara Charles HAROLD W L WILLOCKS
Clerk of the Court Senior Sitting Judge of the Superior Court
By 92/246“A
Court Cler
I
r [7
Dated 5 M
8 The Court must note that while Rule 12(b)(3)(B)(v) permits a defendant to bring a motion alleging a defect in the
information for failure to state an offense at any time before trial Defendant s arguments seem to challenge the
sufficiency of the People‘s evidence underlying the various counts in the infomatlon rather than challenge the facial
validity of the information itself To address Defendant 5 claims as to these issues the sufficiency of the People 3
evidence and the People’s ability to prove their case would require fact finding, witness testimony, and credibility
determinations which is not permitted at this present procedural stage To put it another way Defendant is attempting
to dismiss the information by way of summary judgment which is not the purpose of Rule 12(b)(3)(B)(v) If
Defendant wants to challenge the information for lack of specificity or sufficiency, Defendant may move for a bill of
particulars Sce V l R CRIM P 3(e) ("The court may direct the government to file a bill of particulars The defendant
may move for a bill of particulars before or within 14 days after arraignment or at a later time if the court permits ")
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
People of the Virgin Islands v. Nahjeeb Case Number: SX-2021-CR-00201
Acevedo Charges: 14 V.I.C. 922(a) - Murder 1st
Degree
14 V.I.C. 922(a) - Murder 1st Degree
14 V.I.C. 2253(a) - Possession Of An
Unlicense Firearm
14 V.I.C. 2253(E) - Unauthorized
Possession of a Firearm in a Vehicle
14 V.I.C. 2253(f) - Poss. Of An Unlicense
Firearm W. A 100 Ft Of Sch.
14 V.I.C. 297(2) - Assaults Another With
Deadly Weapon
14 V.I.C. 297 - Assault Third Degree
23 V.I.C. 479(a) - Illegal Discharge of a
Firearms
14 V.I.C. 1382 - Unauthorized Use Of A
Vehicle
14 V.I.C. 625 (a) - Reckless
Endangerment In The 1st Degree
14 V.I.C. 2256(a) - Possession Or Sale Of
Ammunition
NOTICE of ENTRY
of
Memorandum Opinion and Order
To Jared William Burke, Esq. H. Hannibal O'Bryan, Esq.
:
Please take notice that on April 06, 2023
a(n) Memorandum Opinion and Order
dated April 5, 2023 was/were entered
by the Clerk in the above-titled matter.
Dated April 06, 2023 Tamara Charles
:
Clerk of the Court
By:
Janeen Maranda
Court Clerk II