IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. CROIX

THE PEOPLE OF THE VIRGIN ISLANDS —. CASE NO. $X-17-CR-0000174
Plaintiff }

ve ACTION FOR: 14 V.LC. 834(2)
)
JERRIS THOMAS BROWNE )
Defendant }

NOTICE OF ENTRY OF
MEMORANDUM
OPINION

To: TAMARA CHARLES CLERK OF THE SUPERIOR COURT
"PAMELA R. TEPPER, ESQ.
MARTIAL A. WEBSTER, ESQ.
MAGISTRATES OF THE SUPERIOR COURT
LAW CLERKS
JUDGES OF THE SUPERIOR COURT
JOSEPH PONTEEN, ESQ.
IT DEPARTMENT
H. HANNIBAL O'BRYAN, ESQ.

Please take notice that on February 14, 2020 a(n) MEMORANDUM OPINION
dated February 14,2020 was entered by the Clerk in the above-entitled matter.

Dated: February 14, 2020 Tamara Charlies

COURT CLERK II
FOR OFFICIAL PUBLICATION

SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX

IN RE: QUINCY G. MCRAE, )
)
)
PEOPLE OF THE VIRGIN ISLANDS, ) CASE NO. SX-17-CR-174
) CASE NO. SX-17-CR-175
Plaintiff, ) CASE NO. SX-17-CR-189
}
v )
)
JERRIS T. BROWNE, )
GREGORY CHRISTIAN, and )
SYED GILANI, )
)
Defendants. )
)
Cite as: 2020 VI Super
Appearances:

PAMELA R TEPPER, ESQ

Solicitor General

Virgin Islands Department of Justice
St. Thomas, VI 00802

For Quincy G. McRae, Esq.

JOSEPH PONTEEN, ESQ.

Chief Deputy Attorney General

Virgin Islands Department of Justice
Kingshill, VI 00851

For Plaintiff People of the Virgin Islands

MARTIAL A WEBTER, SR., ESQ.

Law Offices of Martial A. Webster, Sr., P.C.
Frederiksted, VI 00840

For Defendant Jerris T. Browne

H. HANNIBAL O’BRYAN, ESQ.

Deputy Chief Territorial Public Defender
Office of the Territorial Public Defender
Kingshill, VI 00850

For Defendant Gregory Christian
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MEMORANDUM OPINION

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PAMELA LYNN COLON, ESQ.
Law Offices of Pamela Lynn Colon, LLC
Christiansted, VI 00820
For Defendant Syed Gilani
M RAND PINION

MOLLOY, Judge.
q1 THIS MATTER came before the Court on an order directing Quincy G. McRae, Esq. (“Attorney
McRae”), Chief of the St. Thomas Criminal Division of Virgin Islands Department of Justice, to show
cause why he should not be held in contempt for failing to comply with an order directing the People
of the Virgin Islands to file bimonthly status reports. At the conclusion of the hearing, the Court
found Attorney McRae in contempt and fined him $250.00 to compensate the Superior Court “for
the harm it suffered from the contemnor's non-compliance.” In re: Meade, 

 (2015).
This Opinion memorializes the bench ruling.

I. FACTUAL AND PROCEDURAL BACKGROUND
72 The People of the Virgin Islands charged Jerris T. Browne (“Browne”), Gregory Christian
(“Christian”), and Syed Gilani (“Gilani”) with several crimes, including embezzlement, obtaining
money by false pretenses, and conversion of government property, among others, allegedly through
a scheme to defraud the Government of the Virgin Islands of some $2 million in grant funding
awarded to the Virgin Islands Bureau of Motor Vehicles (“BMV”) to become compliant with the REAL
ID Act. No fewer than seven different prosecutors appeared during the two-and-a-half years,
approximately, that these cases were pending.! Attorney McRae petitioned the St. Thomas/St. John
Division of the Superior Court of the Virgin Islands for the arrest warrants. Assistant Attorney
General Brenda Scales filed the charging document that formally opened these cases. Assistant
Attorney General John E. Tolud, former director of the White Collar Crime Division, appeared by
notice of appearance filed on December 4, 2017, and was later succeeded by Attorney McRae, who
filed a notice of appearance on July 18, 2018. Assistant Attorney General Alexandra Bynum worked

on these cases outside court and had appeared with Attorney Tolud at a January 25, 2018 pretrial

1 The People of the Virgin Islands filed motions on February 10, 2020, to dismiss all charges without prejudice,
explaining that “[t]he People will not be able to maintain its burden of proof at trial... .” (Pl.’s Mot. to Dismiss without
Prej. 1, filed Feb. 10, 2020.)
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conference. Approximately three weeks after Attorney McRae formally appeared by notice,
Assistant Attorney General Tiffany A. McLean, as the new director of the White Collar Crime
Division, appeared by notice filed on August 8, 2018. And Assistant Attorney General Joseph
Ponteen was the last prosecutor to appear. He formally noticed his appearance on February 6, 2020
but had also been involved earlier: attending an August 9, 2018 site visit and standing in for the
People at a January 30, 2020 hearing. Finally, because the cases were filed on St. Croix, Assistant
Attorney General Damon Watson-Willis appeared at advice of rights and arraignment, and later on
behalf of Attorney Tolud at an October 26, 2017 pretrial conference.2

13 Progress in these cases was, for the most part, uneventful at first. Discovery was due to be
completed by October 27, 2017, with jury selection and trial scheduled for May 14, 2018. Because
of the impact of Hurricanes Irma and Maria, which struck the Virgin Islands in early September
2017, deadlines to complete discovery and file motions had to be extended. By beginning of 2018,
however, the pace began to slow. The People had “dumped,” as Gilani called it, “a large box full of
documents, none of which were Bates stamped, marked or identified in any other manner.” (Def.
Giliani’s Mot. to Be Relieved from Doc. Dump, for Witness & Exh. List & Other Relief 1, filed Jan. 4,
2018.) Finding merit in Gilani’s motion, which the other Defendants joined, the Court ordered the
People to re-produce discovery in an orderly format and continued jury selection and trial to
December 10, 2018. The People were given until May 30, 2018 to allow the Defendants to inspect
physical and intangible items, including the computer hardware at the center of these cases.

14 On June 1, 2018, Giliani filed a motion to conduct a site visit of the BMV Offices on St. Croix
“to view the current state of certain computer hardware ... in the custody of the [BMV] ....” (Order
2, entered Aug. 13, 2018.) “Gilani specifically requested that ‘the visit take place before any of the

hardware is relocated, and that nothing be altered prior to the judicial visit, so that it can be viewed

? Attorney Watson-Willis’ appearance had caused some unease because Attorney Tolud had represented, in a motion
for permission to appear telephonically, that “[t]he St. Croix office of the Department of Justice has a conflict with this
matter and therefore, the St. Thomas Office has been assigned to handle this case.” (Pl.’s Mot. to Appear Telephonically
1, filed Oct. 23, 2017.) When the motion was not ruled on prior to the status conference, Attorney Watson-Willis
appeared for Attorney Tolud, promoting Gilani to object - because of the “conflict” with the St. Croix office, which the
Court and defense counsel understood to mean a “conflict of interest.” Gilani moved the Court to direct Attorney Tolud
to detail the basis of the conflict in writing, which Christian joined, and which the Court granted Attorney Tolud later
explained: “Simply put, there is no ‘conflict of interest’ between the (2) two DOJ offices.” (PI.’s Info. Mot. 1, filed Nov. 21,
2017.) Instead, “the term ‘conflict’ was used to refer to one of attorney staffing and scheduling - and not a ‘conflict of
interest’ in the legal sense." /d. A month later, Attorney Tolud formally appeared by notice, dated December 4, 2017.
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in the same circumstances and conditions as the site inspection done by the parties on May 31,
2018." fd. (brackets, ellipsis, and citation omitted). “The People neither filed a response nor objected
to Gilani's motion. ... and instead offered to make arrangements to facilitate the site visit.” 

(footnote omitted). That changed one day before the site visit.

Despite the imposition of the July 10, 2018 court-ordered deadline, by which the
People were to inform the Court of the date certain for the site visit, the People did
not respond until July 18, 2018. On that date, Attorney Quincy G. McRae, Chief of the
Criminal Division, filed an Informational Motion, on behalf of the People, notifying the
Court that it was unable to meet the Court's deadline outlined in its July 16, 2018
Order. Attorney McRae indicated in that filing that “undersigned Counsel will discuss
all outstanding issues with Atty. Tolud on instant date and provide the Court with the
information requested in its July 16, 2018 Order, ie location and date of the Court's
site visit by July 16, 2018.” Subsequently, on July 25, 2018, Attorney McRae, on behalf
of the People, filed another Informational Motion informing the Court "that all of the
Attorneys involved in the above referenced matter confirmed that they are available
for August 9, 2018. The request is made for this Honorable Court to set the time for
the Judicial Site visit, whereby we can bring this site inspection to a close.” The Court,
thereafter, officially scheduled the site visit for August 9, 2018, at 10:00 a.m. Despite
having knowledge since July 5, 2018, that a site visit would be conducted, and despite
making arrangements with defense counsel and confirming with the Court on July 25,
2018, that August 9, 2018 would be the date for the site visit, the People [through
Attorney Ponteen purportedly on behalf of Attorney McRae] filed an Objection to
Judicial Site Visit on the eve of the date set for the site visit.

Id, at 3 (footnotes, ellipsis, citations, and paragraph breaks omitted). The Court proceeded with the
site visit and reduced to writing its reasons for overruling the objection.

q5 Because the heart of this case is about computers, servers, printers, and other hardware
equipment to print REAL IDs and the compatible software, and because the Defendants had asked
to inspect and obtain copies of the tangible and intangible items within the Government's control,
the Court ordered the People to clone the servers and provide copies of the cloned servers to the
Defendants. The deadline to clone the servers was August 31, 2018. On the due date, Attorney
McLean filed a motion for an extension of time, detailing the Department’s efforts including
coordination efforts between Assistant Bynum and agents with the Federal Bureau of Investigation
(“FBI”). Attorney McLean represented that the FBI anticipated travelling to the Territory in
September or October 2018, that cloning the servers would take a week, and that making copies of
the cloned servers for the Defendants would take another two weeks after that, but the forensic

analysis would take between six and twelve months to complete. The Court granted the People’s
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request and held a status conference on October 9, 2018, after which the People were ordered to
notify the Court in writing how they intended to proceed. By now the Defendants had moved to
dismiss for lack of a speedy trial.

16 On October 19, 2018, the People moved to continue the December 2018 trial date,
specifically to ensure that the People have

adequate time to provide the defendants with the best cloning and forensic analysis
in this case, by the FBI, in protection of the defendants' right to a fair trial, under state
and federal law, and to ensure that the defense is equipped with the evidence
required for the zealous and adequate representation of the defendants in this case.

(Pl.’s Mot. to Continue Jury Trial Date 3, filed Oct. 19, 2018.) The Court found good cause to grant
the motion because

[based on the representations made by the People's counsel, there is a possibility
that the information contained on the servers may contain Brady material. Thus, the
People cannot proceed on those counts directly relating to the servers until the
information has been disclosed to the defense. Furthermore, if there is exculpatory
evidence contained in the servers, the defense has indicated that any testimony
pertaining to prosecution witnesses on those charges that have no direct connection
to any server evidence may be subject to impeachment. Thus, there is a probability
that a forensic analysis on those servers would contain [Brady] material and
exculpatory evidence pertaining to all of the counts charged in this case.

(Order 2, entered Dec. 6, 2018 (footnote omitted).) The Court cautioned that a continuance did not
ensure that the charges were not subject to dismissal and scheduled a hearing on January 29, 2019
on Gilani’s motion to dismiss. The Court further ordered the People to file a notice to advise how
long it would take the FBI to complete the forensic analysis and provide a date certain when the
People will be ready to proceed te trial.

17 Attorney McRae, on behalf of Attorney McLean, filed a notice on December 14, 2018,
reiterating the 6-12 month deadline for the FBI to complete the forensic analysis, and advised that
the People “will immediately inform the Court and all parties upon completion of the completed
date.” (Pl.’s Notice of Completion of Date of FBI Forensic Analysis 2, filed Dec. 14, 2018.) However,
the notice failed to give a date when the People would be ready for trial. Accordingly, the Court
ordered Attorney McLean to show cause in writing why she should not be held in contempt and
scheduled the show cause hearing on the same day as the hearing on Giliani’s motion to dismiss. In

a second Order issued on December 14, 2018, the Court concluded that, if “the forensic analysis
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would not be completed until sometime between June 5, 2019, and December 5, 2019... [and] the
defense w[ould] need at least three (3) months to adequately analyze the information,” the cases
would not “be ready to proceed to trial until March 5, 2020.” (Order 1 n.1, entered Jan. 18, 2019.)
Out of an abundance of caution, the Court rescheduled jury selection and trial for March 9, 2020. See
id. at 1.

78 | Attorney McLean did not appear at the January 29, 2019 show cause hearing. Attorney
McRae appeared instead, represented that Attorney McLean was out on medical leave, and said he
would assume responsibility for prosecuting these cases. The Court continued the show cause
hearing without date as to Attorney McLean, heard argument on Gilani’s motion to dismiss, denied
it without prejudice, and directed Attorney McRae to file a report every two months regarding the
status of the completion of the FBI's forensic analysis. The bench rulings were reduced to writing in
a February 1, 2019 Order directed to Attorney McRae and Attorney McLean {even though she was
on leave) and to defense counsel. That Order directed that “the People of the Virgin Islands shall,
every two months, beginning on February 15, 2019, file with the Court, a notice on the status of
the completion of the report on the forensic analysis of the servers... .” (Order 2, entered Feb. 1,
2019.) Attorney McRae filed the first status report, titled informational motion, one day early, on
February 14, 2019. And two weeks later, not two months later, Attorney McLean filed a second
status report. Ten months passed. No further status reports were filed.

1? Accordingly, the Court issued an Order, sua sponte, on January 10, 2020, to schedule a status
conference on January 30, 2020. That Order was directed to Attorney McLean but not Attorney
McRae. However, a subsequent order dated January 29, 2020, entered January 30, 2020, denying a
motion for a continuance by Christian due to a conflict of counsel, was directed to Attorney McRae
and emailed to him as a courtesy. Neither Attorney McLean nor Attorney McRae appeared at the
January 30, 2020 status conference. Instead, Attorney Ponteen appeared but not formally as
counsel. (That would come seven days later.) Instead, Attorney Ponteen was standing in for the
People. And even though, according to him, he was not the prosecutor assigned to these cases, he

nonetheless represented that the People would be ready for trial on March 9, 2020.3 The Court and

’ The Court notes documents submitted later by Attorney McRae show that Attorney Ponteen was copied on
communications pertaining to these cases since at least March 2019.
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counsel expressed their doubts, however. Since Attorney McLean failed to appear, and Attorney
McLean and Attorney McRae failed to file the bimonthly status reports, the Court issued a Show
Cause Order on January 30, 2020, entered January 31, 2020, directing both Attorney McRae and
Attorney McLean to show cause in person on February 7, 2020, why they should not each be held
in contempt for not filing the status reports. Attorney McLean was further ordered to show cause
why she should not be held in contempt for not appearing. The December 29, 2018 show cause
hearing, which had been continued because Attorney McLean was on medical leave, was also
reinstated.

710 Acopy of the Show Cause Order was emailed to counsel as a courtesy after it was signed but
before it was entered, which prompted Attorney McRae, on January 30, 2020 at 4:41 p.m., to file a
motion to withdraw as counsel and have “all correspondence directed to Department of Justice St.
Croix’s office.” (Pl.’s Mot. to Withdraw as Counsel 1, filed Jan. 30, 2020.) At 4:46 p.m. on Wednesday,
February 5, 2020, Attorney McRae filed a motion to reconsider and quash the Show Cause Order
and a motion for leave to appear telephonically. Leave to appear telephonically was denied on
February 6, 2020, the same day that Attorney McRae, through Solicitor General Pamela R. Tepper,
filed an amended motion to reconsider and quash the Show Cause Order. Attorney McRae appeared
personally and with the Solicitor General as counsel, at the show cause hearing. Attorney Ponteen
also appeared as did the Defendants, personally and through counsel.* Attorney McLean did not
appear. The Court was notified that she had resigned at the beginning of January 2020.5 After
hearing from all sides, the Court, from the bench, found Attorney McRae in civil contempt and fined
him $250.00. Attorney McRae, individually, immediately moved for reconsideration, asking that the
Court instead find the People of the Virgin Islands in contempt rather than him. The Court took
Attorney McRae’s reconsideration request under advisement.

ll. DISCUSSION
{11 “The Superior Court has both statutory and inherent power to compel obedience to its

at

orders by way of contempt.” In re: Meade, 

 (brackets and citation omitted). At the

outset, the Court informed Attorney McRae that the Court had no intent to hold him in criminal

4 Gilani was allowed to participate telephonically.

* Because Attorney McLean was not present to defend herself, having relocated to the mainland, the Court did not
address any matters pertaining to whether she should be held in contempt.
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contempt.

“A party may be held in civil contempt for failure to comply with a court order if (1)
the order the contemnor failed to comply with is clear and unambiguous, (2) the proof
of noncompliance is clear and convincing, and (3) the contemnor has not diligently
attempted to comply in a reasonable manner.”

Id, (citation omitted). Civil contempt sanctions can serve to vindicate the dignity and authority of
the court and may be imposed to compensate the court rather than punish the contemnor. See id,
at 686 (“[I]t is well-established that a court may hold an individual in civil contempt for past
misconduct if the purpose is to compensate rather than to punish... .”).

qi2 Attorney McRae offered several reasons why he should not be held in civil contempt. First,
his supervisor, Carol Thomas-Jacobs, Esq, in her former capacity as Acting Attorney General, had
transferred the “BIZVI cases” to the St. Croix office for further handling, His reconsideration motion
corroborates his belief in that, sometime after he and Attorney McLean filed their respective status
updates in February and March 2019, respectively,

this matter was reassigned to the St. Croix Office. Specifically [on] or about March 28,
2019, Ms. Laverne Callwood, the Executive Officer for the Bureau of
Investigations/White Collar Crime Division, emailed Chief Deputy Ponteen and stated
the following: “] have been instructed by Atty. McRae to forward the BIZVI Case to be
handled by the DOJ ST. Croix Office.

(Pi.s’ Mot. to Recons. & Quash Its Order to Show Cause 2, filed Feb. 5, 2020.) To his mind, the transfer
absolved him of all further responsibilities to the Court and to the People regarding these cases.
Second, Ms. Callwood had emailed a court clerk in the St. Croix Division of the Superior Court on
April 26, 2019, to advise her that for the BIZVI cases, “all correspondence - Orders, motions, etc.
should be forwarded to the Department of Justice in St. Croix.” 

 Third, whenever defense counsel
contacted the People, either though Attorney Tolud and Attorney McLean, Ms. Callwood replied and
advised them that the cases had been transferred to the St. Croix Office. Fourth, In re: Najawicz, 

 (2009), and In re: Joseph, 65 V.1. 217 (2016), preclude him from being held in contempt since
he genuinely believed that he was no longer counsel of record once the Acting Attorney General
transferred the cases. And lastly, the appearances of later prosecutors in these cases superseded his
appearance, effectively withdrawing him from these cases. The Court was unpersuaded.

713 = Najawiczis not on point with this case. Najawicz was a consolidated appeal filed by a criminal

defendant and his attorneys. The Virgin Islands Supreme Court dismissed the portion of the appeal
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alleging civil contempt against the attorneys for lack of jurisdiction. See 55 V.I. at 327 (“‘Civil
contempt becomes appealable only when the contemnor has refused to comply with the remedial
order and the court has exercised its authority either to punish or to coerce compliance.” (citation
omitted)}. The attorneys had not been held in contempt; instead, they were warned they could be if
they failed to comply with a court order. And while the Supreme Court did reverse the civil contempt
finding as to the criminal defendant, see id. at 349, the reversal stemmed from the ambiguity of the
order the contemnor supposedly failed to comply with. See id. at 341-42.

714 Unlike Najawicz, the February 1, 2019 Order was not ambiguous. It directed the People to
file a report regarding the status of the FBI's forensic analysis every two months. Attorney McRae
was present in court on January 29, 2019 when the Court directed the People to file bimonthly status
reports. He received a copy of the February 1, 2019 Order, memorializing the January 29, 2019
bench ruling, And he responded to that Order by filing the first status report on February 14, 2019.
Attorney McLean filed the second status report on March 3, 2019. No status reports were filed in
April, June, August, October, or December of 2019. There is no dispute that the February 1, 2019
Order was clear and unambiguous, and Attorney McRae’s noncompliance is clear and convincing.
715 Likewise, Joseph is also not on point. joseph involved a collateral order appointing the Chief
Public Defender to represent an indigent criminal defendant. The Chief Public Defender appealed
and challenged the authority of the Judiciary to decide which public defender is assigned to a case.
The Virgin Islands Supreme Court reversed, holding that “the legislature empowered the court[s] to
appoint the Office of the Territorial Public Defender to represent indigent defendants....” 65 V.L. at
227-28. “With the exception of indigency determinations, the statutes simply do not authorize the
court to be involved in the managerial decisions of the Office of the Territorial Public Defender,
which includes case assignments to specific attorneys in its employ,” the Court explained. /d. at 228.
{16 Unlike Joseph, this Court is not endeavoring to keep Attorney McRae on these cases or
prevent him from withdrawing. The Virgin Islands Judiciary “cannot compel the Governor to retain
a particular assistant attorney general or refuse to allow an assistant attorney general to withdraw
her or his representation.” Joseph v. Pub. Emples. Rels. Bd., 

, 429 (Super. Ct. 2018). In other
words, just as the separation of powers doctrine bars the courts from selecting a specific public

defender to represent a defendant, the separation of powers doctrine also precludes the courts from
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selecting a specific prosecutor to prosecute the defendant. Accord 

 The difference here is that
Attorney McRae has been involved in these cases from their inception, filing the petition for arrest
warrants and the motions to keep the warrants under seal. He also filed a notice to formally enter
his appearance. And most importantly, he never withdrew that appearance. But see id. at 430
(construing motion filed by assistant attorney general to withdraw as notice of withdrawal).
Attorneys appear by notice and should also “disappear” by notice.

117 ~=©And this is the crux of the issue here. Attorney McRae never informed the Court that he was
no longer assigned to these cases or that the cases had been transferred to the St. Croix Office. He
implies that the Court did have notice, however. But an email from an office assistant to a court
clerk—one that did not reference the defendants by name or the cases by number—does not
constitute notice that an attorney has withdrawn his appearance from a case. Paralegals and office
assistants are not attorneys and do not represent parties. They may prepare court documents and
bring or transmit those documents to court. But they cannot file papers in cases. The email from Ms.
Callwood does not constitute notice to the court that Attorney McRae is no longer assigned to these
cases.

718 Attorney McRae’s assertion that his appearance was superseded when other attorneys
appeared after him is rejected. But following Attorney McRae’s own logic, his appearance in these
cases was withdrawn on August 8, 2018, when Attorney McLean filed a notice of appearance. So, if
that is correct, then he had no authority to appear at the January 29, 2019 hearing or to file any
other papers in this case subsequently. But the reality is that multiple attorneys do appear in the
same case on behalf of the same party either as co-counsel or a junior associate, especially in
complex cases. “Without doubt there are complex cases that demand more than one prosecutor.”
State ex rel. Johnson v. Robinson, 

 (W. Va. 1979). And “[d]ecisions about
indictment or trial prosecution will often involve more than one prosecutor within an office.” Van
de Kamp v. Goldstein, 

 (2009). But no court can direct that a particular prosecutor
be assigned to a case. “Assistant attorneys general are appointed by the Governor of the Virgin
Islands and may be removed by the Governor of the Virgin Islands at any time.” Joseph, 68 V.I. at
428. Once a prosecutor enters his appearance, however, the attorney remains associated with the

case and subject to the court’s contempt power until he withdraws, or another prosecutor enters
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her appearance and substitutes in his place. This Court joins the Joseph court and “holds that
assistant attorneys general withdrawing their representation shall designate substitute counsel in
their notices of withdrawal.” Id. at 431.

919 Whether an assistant attorney general resigns, retires, or his employment is terminated, that
individual, as an officer of the court and an attorney subject to the rules of professional
responsibility, still retains the responsibility to file a notice of withdrawal. “[A]n assistant attorney
general does not need court approval to withdraw — because counsel of record is the Virgin Islands
Department of Justice....” /d. at 430. But the assistant attorney general still must give notice to the
Court and opposing counsel, And it is this broad point that Attorney McRae fails to appreciate. “[T]he
administration of justice is inherently disrupted when an attorney for one party fails to attend a
mandatory court proceeding.” In re: Meade, 

. Attorney McRae’s contention that the
directive of his superiors to transfer these cases to the St. Croix Office absolved him of all further
responsibility is rejected. The administration of justice would grind to a halt if the Virgin Islands
Department of Justice could effectively evade all deadlines and court orders by simply moving the
case from one attorney to another and, once reassigned, the prior attorney retains no responsibility
to the court. This Court is unwilling to hold that it has the authority to prevent an attorney still
employed with the Department of Justice from withdrawing his representation. Cf Joseph, 68 V.L. at
429-30 (noting that the power to grant a motion to withdraw implies the power to deny it). The
Supreme Court may conclude that Virgin Islands courts have such authority. But this Court does
hold that the bare minimum a lawyer with the Virgin Islands Department of Justice must do is notify
the Court if he or she is no longer assigned to a case or employed by the Department.

720 Several months passed without status updates from the People, and the March 2020 trial
deadline was approaching. Accordingly, the Court scheduled the January 30, 2020 hearing. After
Attorney Ponteen appeared, but not formally, and clearly was not briefed on the status of these
cases, and could not meaningfully report on their progress, the Court scheduled the February 7,
2020 show cause hearing. Neither of those hearings had to happen if Attorney McRae had notified
the Court that he was no longer assigned to these cases. Had he done so, and no one from the
Department of Justice appeared in his place, it would have been incumbent upon the Court to act at

that point. Instead the Court was left in the dark. And what is further troubling is that, Attorney
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McRae did not take any steps, after his superior directed him to transfer these cases, to brief
prosecutors on St. Croix, to inform them of the People’s continuing obligation under the February 1,
2019 Order to file bimonthly status reports, or to inform the Court and defense counsel when the
FBI's forensic analysis was completed. And the show cause hearing revealed that the FBI had
completed their analysis several months ago. Had Attorney McRae attempted to comply with the
February 1, 2019 Order, the Court might have found that he “diligently attempted to comply in a
reasonable manner,” In re: Meade, 63 V.\. at 685, notwithstanding that his supervisor had instructed
him to transfer these cases. But Attorney McRae presented no such evidence and conceded that he
took no such steps.

721 +A Virgin Islands court clearly “can access its contempt powers. In addition, where the
prosecutors’ conduct violates an applicable ethical rule, the court can ‘call the prosecutors’ conduct

ou

to the attention of the appropriate disciplinary authorities.” People v. Rodriguez, S. Ct. Crim. No.
2009-028, 

, *22 (V.I. Apr. 14, 2010); accord United States v. Sarcinelli,

 (Sth Cir. 1982) (“On this record, the district judge could have cited the prosecutor for
civil contempt and put her in jail, if that would have been necessary to coerce her into obeying the
magistrate's discovery orders. The court could have called the United States Attorney to task as well;
for, after all, he bears the ultimate responsibility for ensuring that his lawyers conduct themselves
in conformance with the law.”). For the reasons given from the bench, as explained further herein,
the Court found the February 1, 2019 Order clear, the proof of Attorney McRae’s noncompliance
clear and convincing, and no attempt to comply with it. Therefore, the Court held Attorney McRae
in civil contempt and ordered him to pay $250.00 to compensate the Superior Court.

722 Attorney McRae immediately moved the Court to reconsider the contempt finding and find
the People of the Virgin Islands in contempt instead of him individually. And the Court initially
expressed its reluctance, explaining that institutions act through individuals and behavior changes
when individuals are held accountable. But the Court took it under advisement. Upon further
reflection the Court does note that Attorney McRae is not alone here. Attorney Tolud never formally
withdrew from these cases or notified the Court that he was no longer assigned to them. And
Attorney McLean resigned from the Virgin Islands Department of Justice without withdrawing or

notifying the Court that she is no longer associated with the Department. None of this is acceptable
in re: McRae { Peaple v. Browne People v. Christian/ People v. Gilani 

SX-17-CR-174 / SX-17-CR-175 / SX-17-CR-189

MEMORANDUM OPINION

Page 13 of 15

because it impacts on the trial court’s ability to manage its caseload. Accord Greene v. V.L Water &
Power Auth., 

 (2017). It cannot be acceptable practice in the Virgin Islands for
attorneys to come and go from cases as they please and be held to lesser standard because they are
public attorneys not private attorneys. To be clear, public attorneys are not immune from a court's
contempt power. Instead, Virgin Islands courts can

endeavor[] to conduct contempt proceedings against the Attorney General of the
Virgin Islands, the chief of the criminal division of the Department of Justice, and the
individual assistant attorney general who was the People's last counsel of record. ...
If any of these three individuals failed to comply with the court's order, the offending
individual would be held in contempt of court and appropriate sanctions imposed.

Rodriguez, 

 at *53-53 (Swan, J., concurring in part and dissenting in
part). More importantly, the attorneys involved here are supervisory attorneys. Compliance with
court orders would mean nothing if a supervisory attorney could just transfer a case to another
attorney. Supervisory attorneys must be held to a higher standard than “rank and file” attorneys.

723 Orders are directed to attorneys when parties appear through counsel. The Virgin Islands
Department of Justice represents the People of the Virgin Islands and the People of the Virgin
islands can only act through individual attorneys. “The People” must be accountable when orders
issue. The Court rejects the implication offered by Attorney McRae that individual assistant
attorneys general should not be held in contempt but instead the Office of the Attorney General
should. Rodriguez undermines that assertion. Based on experience and anecdotal reports, accord In
re: Holcombe, 

, 838 n.25 (2015), this Court finds the lack of notice regarding the
succession of attorneys within the Virgin Islands Department of Justice to be a recurring problem.
Cf. Prentice v. People, 68 V.1. 458, 462 n.1 (Super. Ct. App. Div. 2018) (“Regrettably, the Virgin Islands
Department of Justice has had a pattern of abandoning criminal and petty offense cases appealed to
the Appellate Division in the District of St Croix.” (collecting cases)); see also, e.g., joseph, 68 V.1. at
403 (“Courts should not have to order the Virgin Islands Department of Justice to have counsel enter
an appearance on behalf of the Government of the Virgin Islands in a civil case or on behalf of the
People of the Virgin Islands ina criminal case.”); In re: Wilson, SX-2009-CR-544, 2014 V.L LEXIS 129,
*2 & n.2 (V.I. Super. Ct. Apr. 11, 2014) (noting that substitute counsel for the People had not
appeared on remand and the assigned attorney resigned while the case was on appeal). Justice

cannot be administered in this fashion. And the fact a Superior Court judge felt compelled to weigh
In re: McRae / People v. Browne People v. Christian/ People v. Gilani 

§X-17-CR-174 / SX-17-CR-175 / SX-17-CR-189

MEMORANDUM OPINION

Page 14 0f 15

in on a similar issue, albeit for assistant attorneys general assigned to civil cases, does not go
unnoticed. Cf Joseph, 68 V.I. at 427 (over a year passed after motion to withdraw filed and no
successor government attorney had appeared yet).

124 Accordingly, considering that Attorney McRae genuinely believed that he was no longer
counsel of record on this case, and further considering that Attorney McRae and Attorney Ponteen
were the Chiefs of the Criminal Divisions, St. Thomas and St. Croix Offices, respectively, and lastly,
considering that Attorney McRae moved for reconsideration and asked that the People be held in
contempt instead of him, the Court will grant the motion to reconsider and hold the $250.00
sanction in abeyance, provided that Attorney McRae, as a supervisory attorney with the Virgin
Islands Department of Justice, works with the other supervisors within the Department of Justice to
develop and implement a formal plan, which may take the form of a recommendation to the
Advisory Committee on Rules to propose a rule to the Supreme Court of the Virgin Islands for
promulgation, accord Joseph, 68 V.I. at 431, to ensure what occurred here—several public attorneys
“disappeared” without notice and without designating successor counsel—does not happen again.
Cf. Rodriguez, 

 *22 (“Ifa court is concerned about future compliance...
it may not only grant a continuance, but may access its contempt powers... [or] ‘call the
prosecutors’ conduct to the attention of the appropriate disciplinary authorities.” (citation
omitted)). Accord People v. Aleem, 

 (Colo. 2007) (“A court’s duty to invoke the
contempt power with caution and self-restraint includes a duty to consider less drastic alternatives
to contempt sanctions.” (citations omitted)); Singh v. Capital Univ. Law & Graduate Ctr., No. 00-3244,

, at *2-3 (6th Cir. Nov. 7, 2000) (affirming alternative sanction to
perform community service in lieu of paying fine).

Il. CONCLUSION

725 Accordingly, for the reason stated on the bench and as explained above, the Court found
Attorney McRae in contempt and ordered him to pay $250.00 to compensate the Superior Court for
the wasted time holding unnecessary hearings. Attorney McRae moved for reconsideration,
however. Having considered that request, the Court will grant Attorney McRae’s motion and hold
the sanction in abeyance, provided that he confers with the Attorney General and other supervisory

attorneys and stakeholders within the Virgin Islands Department of Justice and come up with a plan
In re: McRae / People v. Browne People v. Christian/ People v. Gilani 

SX-17-CR-174 / SX-17-CR-175 / SX-17-CR-189

MEMORANDUM OPINION

Page 15 of 15

to ensure proper notice to the courts when assistant attorneys general withdraw, resign, retire, or
are assigned to work on other matters. Leaving the courts in the dark interferes with the
administration of justice. Should Attorney McRae decline the alternative relief, then he must pay the

fine.

Date: February 14, 2020 Ml
ROBED RA M OY
ATTEST: Judge ofthe Supérior Court
Vip