IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

Yo ate ate ate ate ate ate ale ale ale ale of

~~. PEOPLE OF THE VIRGIN ISLANDS, _ )
) CASE NO. ST-2014-CR-00091
Plaintiff, )
vs. ) 14. V.LC. §§ 605(a), 604(e)(19);
) 1091 (13 Counts); 835(a)(1); 834(2) (2 Counts)
ROSEMARY SAUTER FRETT,

— sr

Defendant.

Cite as: 

MEMORANDUM OPINION & ORDER

ql THIS MATTER is before the Court on Defendant, Rosemary Sauter Frett’s (‘Frett”),
Motion for a Bill of Particulars, which was filed February 24, 2021. The People of the Virgin
Islands did not file a response. The Information in this matter was filed on February 26, 2014, and
Frett was arraigned on April 24, 2014. Rule 3(e) of the Virgin Islands Rules of Criminal Procedure
provides, in pertinent part, that “[t]he defendant may move for a bill of particulars before or within
14 days after arraignment or at a later time if the court permits.” Therefore, Frett’s Motion is
untimely and she has not moved the court for leave to file it several years later. Nonetheless, due
to the many intervening events such as an appeal to the Supreme Court regarding court-appointed
counsel, two Category-5 hurricanes in two weeks, and an ongoing pandemic, the Court will
consider Frett’s Motion on the merits. Finding that the Information herein does not
significantly impair Frett’s ability to prepare her defense, nor is it likely to lead to prejudicial
surprise at trial, the Motion for a Bill of Particulars will be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

q2 On February 4, 2010, the Government of the Virgin Islands petitioned this Court for the
issuance of a warrant for the arrest of Frett. The request for the arrest warrant was based upon the
affidavit of Kenneth Schulterbrandt, Jr., Special Agent with the V. I. Department of Justice,
Special Investigations Division, which detailed the factual basis for charging Defendant with
violations of V. I. CODE ANN. tit, 14 § 835(a)(1) (Drawing and Delivering Worthless Checks), 14
V.LC. § 834(2) (Obtaining Money by False Pretense), 14 V.I.C. § 1091 (Embezzlement by
Fiduciaries) and 14 V.I.C. § 605(a) (Operating a Criminal Enterprise). On the basis of the affidavit,
which also alleged that Frett misappropriated, embezzled or obtained by false pretense the sum of
$122,900.00, a warrant was issued on February 4, 2010.

q3 After he received the February 4, 2010 arrest warrant, Schulterbrandt learned that Frett
had left the island a day or so before. Schulterbrandt continued his investigation which included
People v. Rosemary Sauter Frett 

Case No. ST-2014-CR-00091

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Page 2 of 12

tracking down various leads and contacting the Federal Bureau of Investigation (“FBI”) to assist
in locating the Defendant.

q4 On September 14, 2010, the Government of the Virgin Islands petitioned for the issuance
of a second warrant for the arrest of Frett. The request for the second arrest warrant was based
upon another affidavit of Schulterbrandt which detailed the factual basis for charging Frett with
violations of 14 V.LC. § 834(2) (Obtaining Money by False Pretense), 14 V.I.C. § 1091
(Embezzlement by Fiduciaries) and 14 V.I.C. § 605(a) (Operating a Criminal Enterprise). On the
basis of Schulterbrandt’s second affidavit, which alleged that Frett misappropriated, obtained by
false pretense, and embezzled the sum of $886,625.00, a warrant for her arrest was issued on
September 29, 2010.

q5 In both instances, the petitions for the warrants were filed under seal on the grounds that
the matter was of a sensitive nature and pre-execution disclosure would likely compromise the
investigation and apprehension of the suspect.!

q6 In late January 2014, Frett was arrested by the FBI in San Diego County, California. After
initially resisting extradition, the Defendant executed a Waiver of Extradition on March 21, 2014,
and was extradited to the U. S. Virgin Islands where the two arrest warrants were served.
Defendant was advised of her rights on April 4, 2014 and her bail set at $1,250,000.00, with no
ten percent provision.

q7 In an Information filed February 26, 2014, Frett was charged with one (1) count of violating
14 V.LC. § 605(a) and 604(e)(19) (Criminally Influenced and Corrupt Organizations Act and
Embezzlement of Fiduciaries), thirteen (13) counts of violating 14 V.I.C. § 1091 (Embezzlement
by Fiduciaries), one (1) count of violating 14 V.I.C. § 835(a)(1), and two (2) counts of 14 V.L.C.
§ 834(2) (Obtaining Money by False Pretense).

q8 On February 24, 2021, the Defendant filed Motion for a Bill of Particulars requesting that
this Court order the People of the Virgin Islands to amend the Information.

I. APPLICABLE LEGAL STANDARD.
a. The Information

qo Pursuant to the Revised Organic Act of 1954, offenses against the laws of the Virgin Islands
are prosecuted in the Superior Court by Information.” The “information is a written statement of
the essential facts constituting a charged felony offense and is signed by the Attorney General or
an authorized representative of that office.’ Virgin Islands Rules of Criminal Procedure, Rule 3
governs the Information. Specifically, Rule 3(b) sets forth content requirements:

' The arrest warrants and affidavits were unsealed upon motion by the People after the Defendant was apprehended
on a fugitive warrant.

* People of the V.1. v. Whyte, 62 V.1. 95, 100-01 (Super. Ct. 2015).

3'V.I. R. CRIM. PRO. R. 3(a).
People v. Rosemary Sauter Frett 

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The information must be a plain, concise, and definite written statement of the
essential facts constituting the offense. It need not contain a formal introduction or
conclusion. A count may incorporate by reference an allegation made in another
count. A count may allege that the means by which the defendant committed the
offense are unknown or that the defendant committed it by one or more specified
means. For each count, the information must give the official or customary citation
of the statute, rule, regulation, or other provision of law that the defendant is alleged
to have violated. Unless the defendant was misled and thereby prejudiced, neither
an error in a citation nor a citation’s omission is a ground to dismiss the
information or to reverse a conviction.*

q10 Consistent with the requirements set forth in rule 3(b), “the Third Circuit Court of Appeals
stated that to sufficiently allege an offense, a charging document must: (1) contain the elements of
the offense intended to be charged; (2) sufficiently apprise the defendant of what she must be
prepared to meet; and (3) allow the defendant to show with accuracy to what extent she may plead
aformer acquittal in the event of a subsequent prosecution.”> “To determine whether an
[information] ‘contains the elements of the offense intended to be charged,’ [the Court] may look
for more than a mere ‘recitation in general terms of the essential elements of the offense.’” © An
Information must allege more than just the essential elements of the offense, but “so long as there
is sufficient factual orientation to permit a defendant to prepare his defense and invoke double
jeopardy,”’ “no greater specificity than the statutory language is required.”

qi1 = “A criminal information should be construed as a whole using common sense to interpret
the information to include facts that are logically and rationally implied.”? “While each charge
must be established by legal proof, the sufficiency of the charging document in substance and form
is a matter of law, upon which, if drawn in question, it is the duty of the court to give an opinion.”!
“A charge in an information generally provides sufficient notice to a defendant if the offense is
alleged in the very terms of the statute.”'' “The Court must find that the ‘charging document fails
to state an offense as a matter of statutory interpretation.”'? “However, ‘detailed allegations are

unnecessary.’”!?

4V I. R. CRIM. PRO. R. 3(b).

° Whyte, 62 V.1. at 95, 100-01 (citing United States v. Vitillo, 

 (3d Cir. 2007); see also Gov't
of the Virgin Islands v. Moolenaar, 

, 

 (3d Cir. 1998) (applying the above test to
charging documents alleging offenses against the Virgin Islands).

° Whyte, 62 V.I. at 95, 100-01 (quoting United States v. Bergrin, 

 (3d Cir. 2002)).

7 

 (quoting United States v. Huet, 

 (3d Cir. 2012))(citations omitted).

8 United States v. Kemp, 

 (3d Cir. 2007).

° Gonsalves v. People of the V.I., 70 V.1. 812, 844 (2019).

10 Td,

'! United States v. Gooding, 

, 

 (1827).

"2 United States v. Bergrin, 

 (3d Cir. 2002)

'’ Whyte, 62 V.I. at 95, 100-01 (quoting United States v. Stock, 

 (3d Cir. 2013).
People v. Rosemary Sauter Frett 

Case No. ST-2014-CR-00091

Memorandum Opinion & Order

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b. Bill of Particulars

412 The principle purpose of a bill of particulars is to “inform the defendant of the nature of
the charges brought against him to adequately prepare his defense, to avoid surprise during the
trial and to protect him against a second prosecution for an inadequately described offense.”'* The
use of a bill of particulars is only necessary when the charging document is too vague and indefinite
to accomplish these aims.'° The decision of whether to issue a bill of particulars is within the
discretion of the court.'° In determining whether to grant the bill of particulars, the degree of
discovery available to the defendant is important.'’ Virgin Islands Rules of Criminal Procedure
Rule 3(e) governs a Bill of Particulars:

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. The government may amend a bill of particulars subject
to conditions as justice requires.'®

413 “The burden is on the defendant to prove he is entitled to a bill of particulars because there
will be a surprise trial that is so substantial it ‘will prejudice his substantial rights.’”!? Further,
“[b]ills of particulars may not be used merely as a discovery device, but are designed to protect
the accused from double jeopardy, to enable adequate preparation of a defense, and to avoid
surprise at trial.”?°

q14 “A motion seeking a bill of particulars should be granted only when the lack of information
‘significantly impairs the defendant’s ability to prepare his defense or is likely to lead to prejudicial
surprise at trial.’”?'! However, a motion seeking a bill of particulars “ is properly denied where the
record as a whole demonstrates that ample opportunity exists for adequate preparation of the
defense.”?? The Court may consider any discovery provided to the defendant in determining
whether a bill of particulars is warranted.?? However, a “defendant is not entitled to a list of

'* United States v. Addonizio, 

 (3d Cir. 1971) (quoting United States v. Tucker, 

 (S.D.N.Y. 1966).

'S [d.,

; See also United States v. Salazar, 

 (2d Cir. 1973) (bill of particulars is
ordered in situations where charging document is cast in general terms).

'6 United States v. Walsh, 

 (2d Cir. 1999).

'7 United States v. Canino, 

 (7th Cir. 1991) (open file form of discovery obviated need for bill of
particulars).

'8 VT. R. CRIM. PRO. R. 3(e).

'° People of the V.1. v. James, No. ST-09-CR-624, 

, at *4-5 (Super. Ct. Mar. 11, 2010) (quoting
United States v. Plaskett, et al, 50 V.1. 548, 561 (D.V.I. 2008).

°° People of the V.I. v. Saldana, No. ST-14-CR-187, 

, at *3 (Super. Ct. Feb. 10, 2017) See,

e.g., Rodella v. United States, 

 (9th Cir. 1960), cert. den., 

 (1961).

*! United States v. Sanders, No. 19-354, 

, at *3-6 (W.D. Pa. Sep. 2, 2020) (quoting
Rosa, 891 F.2d at 1066).

2 Id. (quoting United States v. Kenny, 

 (3d Cir. 1972)).

*3 United States v. Urban, 

 (3d Cir. 2005); See e.g., Kenny, 

 (court affirmed
denial of bill of particulars where trial court afforded defendant liberal discovery).
People v. Rosemary Sauter Frett 

Case No. ST-2014-CR-00091

Memorandum Opinion & Order

Page 5 of 12

uncharged overt acts and uncharged criminal conduct, nor is he entitled to a list of the identities of
Government witnesses.” 74

Il. ANALYSIS

(15 Frett’s Motion for a Bill of Particulars requests numerous items “of what the government
intends to prove” and argues that “without answers to requests for the specifics in this case it is
impossible to determine whether any defenses are available.””> Her Motion further contends that
“(t]he particulars requested are also necessary because the allegations set forth in the Information
are wholly conclusory, vague, overbroad and further, failed to set forth with specificity the time,
place, and manner it is alleged that the defendant engaged in criminal activity.”*° Frett makes these
claims pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure and Due Process Clause
of the Fifth Amendment of the United States Constitution.

416 = Frett’s Motion erroneously cites to Rule 7(f) of the Federal Rules of Criminal Procedure
which has not applied to proceedings in the Superior Court since December 1, 2017 when the
Virgin Islands Rules of Criminal Procedure were adopted. Therefore, the applicable rule governing
the sufficiency of the Information in this matter is V.I. R. Crim. P. 3. Specifically, subsection (e)
governs Bill of Particulars.

A. Count One of the Information satisfies Virgin Islands Rules of Criminal
Procedure, Rule 3(b).

417 Count One charges Embezzlement by Fiduciaries pursuant to 14 V.I.C. § 605(a), which
sets forth that “[i]t is unlawful for any person employed by, or associated with, any enterprise, as
that term is defined herein, to conduct or participate in, directly or indirectly, the affairs of the
enterprise through.a pattern of criminal activity.” Section 605(a) prohibits a “pattern of criminal
activity.” which is defined as “two or more occasions of conduct...that...constitute criminal!
activity[.] are related to the affairs of the enterprise[, and] are not isolated.”?* In People v. Adams,
the Court held that “the People must allege that [the Defendant] played some part in the ‘operation
or management of [an] enterprise’ in order to satisfy the element of conducting or participating in
the affairs of an enterprise.”’” The Court stated that “the People must also allege that [the
Defendant] participated in a pattern of racketeering activity.”°’ Moreover, in Adams, the Court
explained that the People had to show that the racketeering acts were related and “amount/ed] to
or pose[d] a threat of continued criminal activity.”>!

1 James, No. ST-09-CR-624, 2010 V.L. LEXIS 16, at *4-5 (referencing United States v. Cardillo, No. CRIM.A. 13-
121-2 JBS, 

, 

, at *5 (D.N.J. May 27, 2015) (citations omitted).

°5 Mot. for a Bill of Particulars at 1.

76 Te.

77 14 V.LC. § 605(a).

*8 People v. Adams, No. ST-08-CR-424, 

, at *7 (Super. Ct. Nov. 12, 2010) (“By the use of the
word “pattern,” the statute clearly prohibits a course of conduct.”).

° Adams, at *7 (referencing Reves v. Ernst & Young, 

 (1993)).

30 Id:

31 Td.
People v. Rosemary Sauter Frett 

Case No. ST-2014-CR-00091

Memorandum Opinion & Order

Page 6 of 12

q18 In the instant matter, the Information alleges that on or between January 1, 2008 to
February 4, 2010, while working as a real estate broker, “owner and operator of REMAX Dream
Properties, and the sole signatory on the REMAX Dream Properties Escrow Account,” on several
occasions “took funds from the escrow account...and fraudulently appropriated said funds totally
valued in excess of 1.1 million dollars, to her own use or the use of others.”32

q19  Frett’s Motion requests that the Information include the “exact manner in which it is
alleged that the defendant ‘took’ funds from the escrow account,” “whether the Defendant acted
as a principal or an accomplice,” “ the location of the depository account,” “the dates that the
defendant ‘took’ funds,” the exact dates, times, and amount taken for such violations, “names and
addresses to witnesses,” “all withdrawal slips, cancelled checks or other indica of Defendant
removing or taking funds,” and requests that the Information “set forth each and every manner it
is alleged that the defendant fraudulently appropriated funds.”*

4720 The Court finds that Count One of the Information sufficiently alleges facts that go to the
essential elements necessary to charge Frett with a violation of 14 V.L.C. § 605(a). The Information
includes a date range, alleges a pattern of criminal activity, and identifies Frett’s position in relation
to the affairs of the criminal charge. As set forth in People of the V.L. v. Saldana, “[t]he People are
not required to describe in detail the [sic] every ‘exact act ...alleged to constitute the charged
crime[s].’ Nor are the People required to disclose the exact place/location ... [where] any acts were
allegedly committed in furtherance of the charged crime.”** A “bill of particulars is not a discovery
vehicle through which Defendant can require the People to provide him with a detailed roadmap
to its case nor details concerning the prosecution’s witnesses.”?° Under the circumstances here, the
Court finds that Count One of the Information satisfies Virgin Islands Rules of Criminal Procedure,
Rule 3 (b). A “bill of particulars is not a method for delving into the People’s trial strategy’?° and
the Court will not order an amendment of Count One.

a. Counts Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve,
Thirteen, and Fourteen of the Information satisfy Virgin Islands Rules of
Criminal Procedure, Rule 3(b) and sufficiently charge Defendant with
violating 14 V.I.C. §1091.

q21 Counts Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen,
and Fourteen charge Embezzlement by Fiduciaries pursuant to 14 V.I.C. §1091; which states:

Whoever, being a trustee, banker, merchant, broker, attorney, agent, assignee in
trust, executor, administrator, or collector, or person otherwise intrusted with or
having in his control property for the use of any other person, fraudulently
appropriates it to any use or purpose not in the due and lawful execution of his trust,

>? Information at 1.

33 Mot. for Bill of Particulars at 2.

4 Saldana, at *10 (Super. Ct. Feb. 10, 2017).

33 Id. (quoting United States v. Lipari, 

, 

, at 15 (S.D.N.J. 1987).
°° 

 (quoting United States v. Castillo-Rodriguez,

, at *7 (N.D.N.Y. 1999).
People v. Rosemary Sauter Frett 

Case No. ST-2014-CR-00091

Memorandum Opinion & Order

Page 7 of 12

q22

or secretes it with a fraudulent intent to appropriate it to such use or purpose, is
guilty of embezzlement.?’

Counts Two through Fourteen of the Information allege that on or about January 1, 2008

through February 4, 2010, Frett, as an owner and operator of REMAX Dream Properties and in
sole control and signatory of the Escrow account, “fraudulently appropriated to her own use, funds
in the account representing an earnest money deposit valued over $100.00” from multiple named
individuals, to be held in trust or escrow on their behalf, in violation of § 1091.

q23

Frett’s Motion requests numerous items for each of the thirteen charges under § 1091.

Collectively, she is requesting for the following:

1.

The Information should “set forth in precise manner it is alleged that the Defendant was a
trustee, banker attorney agent, assignee in trust, executor administrator, collector or person
otherwise entrusted with the property for the use of another person to wit”

Information as to whether the Defendant acted as a principal or accomplice in the crime
charged

The “exact conduct of the Defendant that is encompassed” in each applicable count

The full name and addresses of the alleged victims or witnesses

The identity of “any documents establishing a trustee, banker, attorney agent, assignee in
trust, executor, administrator, collector or person otherwise entrusted with the property for

the use of another person” between the alleged victims and the Defendant

The particularity in which the Defendant fraudulently appropriated property of each named
victim or witness

The exact date, manner, and exact amount of property “in which the Defendant fraudulently
appropriated”

“Set forth with specificity how the Defendant used said funds for her own use”

The “exact location and identity of any documents, records, statements or notes
demonstrating that the Defendant fraudulently appropriated the property” of another

10. The exact date, time, place, and manner that the Defendant violated § 1091

qj24

Here, the Court finds Counts Two through Fourteen of the Information sufficiently allege

facts that go to the essential elements necessary to charge Frett with Embezzlement by Fiduciaries

714 V.LC. § 1091
People v. Rosemary Sauter Frett 

Case No. ST-2014-CR-00091

Memorandum Opinion & Order

Page 8 of 12

pursuant to 14 V.I.C. §1091. The Supreme Court of the Virgin Islands has identified two
constitutional requirements when assessing the sufficiency of an information:*°

First, an information must contain the elements of the offense charged and fairly
inform a defendant of the charge against which he must defend. Second, an
information must enable him to plead an acquittal or conviction in bar of future
prosecutions for the same offense.*?

q25 The crime of embezzlement, “requires (1) proof of a fraudulent taking of property by one
(2) to whom it was entrusted by virtue of a position of trust.”*° The Information may not merely
“regurgitate the words of the statute and omits the facts and essential elements necessary to apprise
Defendant of the crime he is being charged with.’*! Further, the defendant in People of the V.L y.
Hatchett, was charged with aiding and abetting to commit the crime of Embezzlement by
Fiduciaries in violation of 14 V.LC. § 1091.° The defendant in that case “argues that the
information does not set out the elements or facts indicating fraud or entrustment|;] and contends
that the information is defective because “it does not sufficiently put the Defendant on notice of
the charge against him so that he may prepare a proper defense’’*? The court found the information
defective because although it “reiterates the statute[, it] fails to allege facts that go to the essential
elements necessary to charge embezzlement.’”*+

{726 Information in this case sets forth the prescribed date and location, facts alleging that the
Defendant “fraudulently appropriated [the funds in question] to her own use,” and identifies to
whom the amount in question was entrusted by virtue of a possession of an escrow account. As
stated above, “bill of particulars is not a method for delving into the People’s trial strategy” and
the People are not required to disclose the “exact place/location ... [where] any acts were allegedly
committed in furtherance of the charged crime.’*° Accordingly, this Court finds that Frett “has
sufficient notice to guard against future prosecution against double jeopardy’*’ and is not
prejudiced by the current Information.

b. Count Fifteen of the Information satisfies Virgin Islands Rules of Criminal
Procedure, Rule 3(b) and sufficiently charge Defendant with violating 14
V.LC. § 835(a)(1).

427 Count Fifteen charges Drawing and Delivering Worthless Checks in violation of 14 V.LC.
§ 835(a)(1); which states:

8 Charles v. People, 60 V.1. 823, 837 (V.I. 2014).

* Id. (quoting Hamling v. United States, 

 (1974))(citations omitted).

*° Carmichael v. Gov't of the Virgin Islands, 46 V.1. 391, 

, at *3 (D.V.I. 2004).

4! People of the V.1. v. Hatchett, Nos. SX-14-CR-88, 

, at *8-9 (Super. Ct. Feb. 9, 2015)
? Td. at *2.

‘8 

 (quoting Amend. Mot. to Dismiss 2-5).

4 Td. at *8-9.

* Saldana, at *10 (quoting United States v. Castillo-Rodriguez, 

, 

, at
*7 (N.D.N.Y. 1999).

46 Td.

” Whyte, at *4-5.
People v. Rosemary Sauter Frett 

Case No. ST-2014-CR-00091

Memorandum Opinion & Order

Page 9 of 12

(a) Whoever makes, draws, utters, or delivers any check, draft or order for the
payment of money—

(1) to the value of $100 or more upon any bank or other depository knowing at the
time of such making, drawing, uttering or delivering that the maker or drawer has
not sufficient funds in, or credit with, such bank or other depositary for the payment
of such check, draft or order, in full, upon its presentation, shall be fined not more
than $1,000 or imprisoned not more than 5 years, or both*®

4728 Violations of 14 V.LC. § 835 (a)(1) are “limited to checks, drafts or order for the payment
of money” and “is euphemistically called ‘bouncing a check.’ “[T]he cornerstone of section
835(a)(1) violation is the absence of sufficient funds in the account upon which the check is drawn
at the time the check is presented for payment.”*°

429 Count Fifteen of the Information, charging a violation of 14 V.LC. § 835(a)(1), alleges that
Frett “did make, draw, utter, or deliver’ a check in the amount of $65,000.00 to D. Williams while
knowing that there were insufficient funds for the payment of such check.

q30 ~~ Frett’s Motion requests that the Information should provide “the exact manner that the
Defendant allegedly made, drew, utter or delivered a check draft or order of the payment of money
of value[;]” “the name of the financial institution and bank account number upon which any check
or money order was drawn{:]” and the “exact manner” that the Defendant violated § 835(a)(1).°!

q31 = The court in United States v. Plaskett held that “an indictment containing the ‘approximate
location, month, and year of the conduct at the heart of each count’ provides enough information
for the defendant to understand the offense he is required to defend.”** Furthermore, “a motion
seeking the when, where, and how of overt acts is tantamount to a request for wholesale discovery
of the government’s evidence and properly denied.”°? Accordingly, the Court will deny
Defendant's request for amending Count Fifteen of the Information. The Court finds that Count
Fifteen provides enough information necessary for the Defendant to prepare a defense and
therefore the Court will not order the People to amend the Information.

c. Counts Sixteen and Seventeen of the Information satisfies Virgin Islands Rules
of Criminal Procedure, Rule 3(b) and sufficiently charge Defendant with
violating 14 V.LC. § 834 (2).

432 Counts Sixteen and Seventeen of the Information charge the defendant with obtaining
money by false pretense, pursuant to 14 V.I.C. § 834(2). which states:

B14 VLC. § 835 (a)(1)

® DeGroot v. People of the V.L, No. 2008-0107, 2013 V.L Supreme LEXIS 16, at *40-41 (Apr. 29, 2013)

0 Td.

>! Mot. for a Bill of Particulars at 12.

°° People of the V.I. v. James, No. ST-09-CR-624, 

, at *7-8 (Super. Ct. Mar. 11, 2010) (quoting
Plaskett, at 562 (D.V.I. Aug. 13, 2008)).

° 

 (citing Hawkins, at *2 (citations omitted).
People v. Rosemary Sauter Frett 

Case No. ST-2014-CR-00091

Memorandum Opinion & Order

Page 10 of 12

Whoever knowingly and designedly, by false or fraudulent representation or
pretenses, defrauds any other person of money or property, shall—

(2) if such property or money was $100 or more in value, be imprisoned not more
than 10 years.™4

33 Violations of 14 V.I.C. § 834 (2) require “that another conferred a benefit or turned over
something of value to the actor in reliance on the misrepresentation; mere utterance of a false
statement is insufficient.”°> “A person ‘defrauds’ another if he makes a misrepresentation of an
existing material fact, knowing it to be false, intending one to rely and under circumstances in
which such person does rely to his damage.”*° “Pursuant to 14 V.LC. § 834, the People must show
Defendants ‘knowingly or designedly, by false or fraudulent representation or pretenses,
defraud[ed] another person of money or property.’”>”

434 With regards to the Information, “[t]o hold that an accused should be charged under a
statute where none or only part of the evidence confirms the elements of the offense would generate
an absurd result and constitute an injustice to the accused.”°® Virgin Islands v. Adams-Tutein
explains the following:

There is no bright-line rule requiring, in all cases, direct documentary evidence that
the defendant received payment or evidence corroborating trial testimony to satisfy
the proof required for a charge under 14 V.I.C. § 834(2); the evidence in each case,
including circumstantial evidence, must be individually assessed to determine
whether the government met its burden to prove the essential elements of the crime
beyond a reasonable doubt.*?

435 Frett requests that Count Sixteen and Seventeen of the Information “[1]set forth the exact
manner that the Defendant allegedly made, drew, utter or delivered a check draft or order of the
payment of money of value[; 2]set forth the name of the financial institution and bank account
number for the account upon which any check draft or money order was drawn[; and 3] set forth
the exact manner it is alleged” that the Defendant knew “that insufficient funds or credit with the
bank or depository existed.”

{36 Count Sixteen of the Information alleges the following:

On or about January 1, 2008 through February 4, 2010, Frett knowingly and
designedly by false or fraudulent representation or pretenses, defrauded another

414 VLC. § 834 (2)

°° Virgin Islands v. Adams-Tutein, 47 V1. 514 (D.V.I. 2005).

6 Td.

°7 Adams, at *11-12 (Super. Ct. Nov. 12, 2010).

*8 DeGroot v. People of the V.I., No. 2008-0107, 

, at *44 (Apr. 29, 2013)
*° Adams-Tutein, at 514 (D.V.L. 2005).

6° Mot. for Bill of Particulars at 12-13.
People v. Rosemary Sauter Frett 

Case No. ST-2014-CR-00091

Memorandum Opinion & Order

Page 11 of 12

person or money or property valued at over one hundred dollars, by fraudulently
inducing G. and M. Moe to transfer $99,000.00 dollars to REMAX Dream
Properties Escrow Account as an earnest deposit on the purchase of real estate, on
the false pretense that a seller of real estate had accepted their offer to purchase and
by showing them a false and forged contract of sale from the purported sellers.

37 Count Seventeen of the Information charging Frett with a violation of 14 V.LC. § 834(2)
alleges that Frett “fraudulently induced J. and B. Beal to deposit $700,000.00 dollars to REMAX
Dream Properties Escrow Account on the false pretense of earning 20% interest on the funds held
in the account, which in actuality was not an interest bearing account.”*!

38 Here, the Court finds Counts Sixteen and Seventeen of the Information satisfy Virgin
Islands Rules of Criminal Procedure, Rule 3(b) and sufficiently charge Frett with violating 14
V.I.C. § 834 (2). The Information includes a plain, concise, and definite written statement of the
essential facts constituting the offense. Additionally, Counts Sixteen and Seventeen of the
Information sufficiently apprise the Defendant of what she is being charged with in order to
adequately prepare her defense. The Court will not order the People to amend these counts of the
Information.

Ill. CONCLUSION

439 In conclusion, the Court finds the Information in this case is a “plain, concise, and definite
written statement of the essential facts constituting” each charge of the offense.°” Although the
Information does not contain a formal introduction or conclusion, it sufficiently alleges “the means
by which the defendant committed the offense” and apprises “the defendant of what she must be
prepared to meet.”°* The Court finds that the Information provides enough elements for the
Defendant to prepare her defense. The burden of proof for a bill of particulars is on Frett. Under
these circumstances, the Court finds that she has not met her burden. Frett has failed to show the
Court that any purported lack of information ‘significantly impairs the defendant’s ability to
prepare his defense or is likely to lead to prejudicial surprise at trial.”’°> The Information, the
Affidavits in support of the warrants for the arrest of Frett, the discovery produced in this matter
render a bill of particulars of the Information unnecessary. The record as a whole “demonstrates
that ample opportunity exists for adequate preparation of the defense.”®° Accordingly, it is hereby

ORDERED that Defendant’s Motion for a Bill of Particulars, filed on February 24, 2021,
is DENIED; and it is further

6! Information at 9-10.

& VJ. R. CRIM. PRO. R. 3(b).

8 Td.

64 Whyte, at 95.

® United States v. Sanders, No. 19-354, 

, at *3-6 (W.D. Pa. Sep. 2, 2020) (quoting
Rosa, 891 F.2d at 1066).

% Id. (quoting United States v. Kenny, 

 (3d Cir. 1972)).
People v. Rosemary Sauter Frett 

Case No. ST-2014-CR-00091

Memorandum Opinion & Order

Page 12 of 12

ORDERED that a copy of this Memorandum Opinion and Order shall be directed to
counsel of record.

DATED: (2 [20/21 OLUWUALIN, NAL UY)

DENISE M. FRANCOIS
Judge of the Superior Court of the Virgin Islands

ATTEST:

TAMARA CHARLES
Clerk of the Court

\ fatova CAMACHO
Court Clerk Supervisor / /