FOR OFFICIAL PUBLICATION
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
PEOPLE OF THE VIRGIN ISLANDS ) CASE NO 8X 17 CR 174
) CASE NO SX 17 CR 175
Plaintiff ) CASE NO SX 17 CR 189
l
V J
I
lERRIS T BROWNE )
GREGORY CHRISTIAN and )
SYED GILANI )
)
Defendants )
)
Cite as 2020 V1 Super 41
Appearances
JOSEPH PONTEEN ESQ
Chief Deputy Attorney General
Virgin Islands Department ofJustice
Kingshill V100851
For PIamtzfl‘People of the Virgin Islands
MARTIAL A WEBTER SR ESQ
Law Offices of Martial A Webster Sr P C
Frederiksted V100840
For Defendantjerrzs T Browne
H HANNIBALO BRYAN ESQ
Deputy Chief Territorial Public Defender
Office of the Territorial Public Defender
Kingshill V100850
For Defendant Gregory Christian
PAMELA LYNN COLON ESQ
Law Offices of Pamela Lynn Colon LLC
Christiansted VI 00820
For Defendant Syed Gilam
MEMORANDUM OPINI N
MOLLOY judge
111 BEFORE THE COURT is a motion filed by Defendant Syed Gilani ( Gilani ] to revoke the
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MEMORANDUM OPINION
Page 2 of 7
order dismissing these cases without prejudice or in the alternative for reconsideration and
dismissal with prejudice Defendant lerris T Browne ( Browne’) joined in Gilani s motion
Defendant Gregory Christian [ Christian ) did not respond nor did the People ofthe Virgin islands
( the People ) For the reasons stated below, Gilani s motion will be denied
1 FACTUAL AND PROCEDURAL BACKGROUND
1l2 The People charged Browne Christian and Gilani with several crimes including
embezzlement obtaining money by false pretenses and conversion of government property
allegedly involving a scheme to defraud the Government of the Virgin Islands out ofapproximately
$2 million in grant funding awarded to the Virgin Islands Bureau of Motor Vehicles ( BMV ) to
become compliant with the REAL ID Act Following a delay in which [n]0 fewer than seven different
prosecutors appeared during the two and a half years approximately that these cases were
pending In re McRae 2020 Vi Super 26 11 2, the People filed a motion on February 10, 2020 to
dismiss all charges because the People will not be able to maintain its burden of proof at trial at
this time (Pl 5 Mot to Dismiss Without Prej 1, filed Feb 10 2020) However, the People
reserve[d] its statutory right to pursue all causes of action in accordance with the provisions of
Title 5 of the Virgin Islands Code Section 3541(a](1) Id For that reason the People moved to
dismiss without prejudice Four days later, on Friday February 14 2020 the Court granted the
motion and dismissed the charges the same day that Gilani filed a response in opposition to the
People 3 motion
113 The Order was not entered until the next business day Tuesday February 18 2020
Additionally because the related civil contempt proceeding was still pending see generally In re
McRae 2020 VI Super 26 the Court directed the Clerk 5 Office notwithstanding the dismissal to not
close these cases until Attorney Quincy G McRae informed the Court whether he would pay the fine
or chose to develop and implement a formal plan 1d at 1i 24, to ensure ‘ proper notice to the courts
when assistant attorneys general withdraw resign, retire or are assigned to work on other
matters Id at 1T 25 Attorney McRae notified the Court through counsel on February 26, 2020 that
he consented to the alternative to paying the fine and would submit a plan outlining the process
and procedures for notifying the Superior Court when an Assistant Attorney General of record in a
case is substituted by another Assistant Attorney General or is no longer associated with the Virgin
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MEMORANDUM OPINION
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Islands Department of justice (Notice of Consent to Ct s Order dated Feb 14 2020 at 2, filed Feb
28, 2020) On March 9, 2020 the Court acknowledged Attorney McRae 5 notice and directed the
Clerks Office to assign a miscellaneous civil number so that these cases could be closed In the
interim Gilani filed his motion on February 19 2020 to set aside the dismissal Browne joined
Gilani s motion the same day The People 3 time to respond passed on March 10, 2020 See VI R
Crim P 10) see alsoVI R Civ P 6 2[f](1] Neither the People nor Christian responded
I] DISCUSSION
114 Rule 48 of the Virgin Islands Rules of Criminal Procedure provides that the People may file
a dismissal or nolle prosequl of an information Such a dismissal is without prejudice unless
otherwise stated The government may not dismiss the prosecution during trial without the
defendants consent VI R Crim P 48(a) The rule embodies both the common law authority of
prosecutors and the separation of the powers of prosecutor and judge C]? In re Richards 42 V I 469
481 82 [3d Cir 2000] (discussing the venerable common law doctrine of nolle prosequi which
power resides solely in the prosecutor 3 hands until the impanelment and swearing ofa jury )
Few subjects are less adapted to j udicial review than the exercise by the Executive of his discretion
in deciding when and whether to institute criminal proceedings, or what precise charge shall be
made or whether to dismiss a proceeding once brought Phillip v People 58 VI 569 600 (2013)
[brackets omitted) (quoting Richards 42 VI at 488) It is for this reason that [t]he trial court should
refuse to grant the People 5 dismissal request only in the rarest of cases, for it is the People who
are presumed to be the best judge of where the public interest lies with respect to a criminal
prosecution Id
as Gilani s first argument for vacating the dismissal is because the Court had ruled on the
People's motion without givjing] an appropriate period of time to respond (Def Gilani s
Mot to Revoke 1 filed Feb 19 2020] On this point Gilani may be correct The Court granted the
Peoples motion four days after it was filed The Defendants would have had fourteen days to
respond 1 The Order did issue before the time to respond had passed But Gilani filed his response
on February 14th, the same day the Order issued and before it was entered So his argument lacks
l Assuming Rule 6 2(f)[1) of the Virgin Islands Rules of Civil Procedure applies in criminal cases through Rule 1(e) of
the Virgin Islands Rules of Criminal Procedure The time for filing responses and replies to motions is not specified in
the Virgin Islands Rules of Criminal Procedure
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MEMORANDUM OPINION
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merit as to him It might have merit as to Browne insofar as Browne joined Gilani's motion But
Gilani 5 concern is not really that the Court ruled prematurely Rather Gilani 5 concern is that the
Court did not address the points he raised in his opposition (See Def 5 Mot to Revoke Order 2, filed
Feb 19 2020 ( Presumably the Court was not aware of the Opposition as it did not address the
same in any ofthe Orders it has issued closing this case ) ) His arguments against dismissal without
prejudice concerned the delay and the fact that a second motion to dismiss for speedy trial violation
was pending when the People moved to dismiss without prejudice But Gilani s motion and the
opposition he wants the Court to consider presume that a defendant in a criminal case has a right
to be heard in opposition to a Rule 48(a) motion And on that point, it is not clear that he is correct
116 Rule 48(a] provides that the People may file a dismissal [And sluch dismissal is without
prejudice unless otherwise stated ' Vl R Crim P 48(a) Consent of the defendant is required only
when the prosecution moves to dismiss during trial See id ( The government may not dismiss the
prosecution during trial without the defendant 3 consent ) Leave of court is not required in either
scenario Gilani overlooks that Rule 48(a) of the Virgin Islands Rules of Criminal Procedure differs
in one very important respect from Rule 48(a) of the Federal Rules of Criminal Procedure the
phrase with leave of court was omitted when the Virgin islands rule was promulgated See In re
Adoption ofthe VI Rules ofCrim P S Ct Prom No 2017 010 2017 VI Supreme LEXIS 68 *168 69
(VI Oct 16 2017) Compare Fed R Crim P 48(a) ( The government may with leave of court
dismiss an indictment, information or complaint The government may not dismiss the prosecution
during trial without the defendant 3 consent ) With VI R Crim P 48(a) ( The government may file
a dismissal or nolle prosequi of an information Such a dismissal is without prejudice unless
otherwise stated The government may not dismiss the prosecution during trial without the
defendant 5 consent )
117 Before Rule 48(a) was promulgated the Supreme Court of the Virgin Islands had held that
courts could read a limitation into court rules on the Executive Branch 5 authority to dismiss
criminal cases without prejudice in order to protect the integrity of the judicial system and ensure
fairness for the defendant Phillip 58 V l at 598 n 34 2 Yet when the Supreme Court promulgated
Z The issue in Phillip was whether Federal Rule 48(a) applied through Superior Court Rule 7 or whether the Superior
Court 3 own rules namely Rule 128(b] or Rule 131 governed to the exclusion of the federal rule See generally Phillip
58V! at598n34
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MEMORANDUM OPINION
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Rule 48 the Court borrowed the federal rules but omitted the phrase with leave of court [T]h[e
Virgin Islands Supreme] Court does not abandon its collective knowledge when it exercises its
rulemaking authority and surely it would not knowingly promulgate any rule it regarded as
invalid Mills Williams v Mapp 67 V I 574 585 n 6 (2017) (brackets and ellipsis omitted) (quoting
State Bar ofTexas v Gomez
891 S W 2d 243 249 50 [Tex 1994) [(Hightower I dissenting)}) Since
the Court was certainly aware of its prior precedents yet nevertheless chose to adopt a
[different] rule id it is possible that Phillip must yield to Rule 48(a) Cf. id
118 Thus Gilani s remedy may be to appeal, not to seek reconsideration The February 14, 2020
Order entered February 18 2020 was a final order as it dismissed the charges Although the Court
did direct the Clerks Office to keep these cases open until the civil contempt proceedings were
addressed, that would not render the dismissal non final Yet Gilani failed to cite any authority
regarding the Superior Court 5 authority to set aside a dismissal in a criminal case Courts in other
jurisdictions are divided Compare Smith v Super Ct ofAlameda Cty 171 Cal Rptr 387 388 [Ct
App 1981) ( We conclude that at least where no actual fraud has been perpetrated upon the court
a criminal court has no authority to vacate a dismissal entered deliberately but upon an erroneous
factual basis ) With State v Brown
2014 Ohio 5824 11 72 (Ct App) ( Civ R 60(3) exists in order
for a party to seek relief from final orders due to allegations that cannot be raised on appeal Civ R
57 (B) says that the Civil Rules can be used when there is no applicable Criminal Rule Accordingly
a Civ R 60(B) motion to vacate a dismissal order can be filed by the state via Crim R 57(3) )
See also eg State v Boyden
441 P 3d 737 745 n 7 [Utah 20019) ( This may be the first time we
have considered whether the State can move for relief under rule 60(b) in a criminal matter ) The
Virgin Islands Rules of Criminal Procedure do not include a Rule 60(b) equivalent to that found in
the Virgin Islands Rules of Civil Procedures Presumably, like in Brown the Court could apply Rule
60(b) of the Virgin Islands Rules of Civil Procedure through Rule 1(f) of the Virgin Islands Rules of
Criminal Procedure See VI R Crim P 1(f) ( When procedure is not prescribed by these Virgin
Islands Rules of Criminal Procedure, precedent from the Supreme Court of the Virgin Islands or the
Virgin Islands Code a judge may regulate practice in a criminal proceeding in any manner consistent
with law of the Virgin Islands ) But that too is unclear
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MEMORANDUM OPINION
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1T9 Nonetheless even if the Superior Court has the authority to set aside a voluntary dismissal
in a criminal case and even if Rule 48(a) implies a leave of court requirement notwithstanding
the rule 5 plain language the Court cannot find that this is the rarest ofcases in which [t]he trial
court should refuse to grant the People 5 dismissal request Phillip 58 V l at 600 (quoting In re
Richards 213 F 3d 787 786 (3d Cir 2000)) It is self evident that dismissal with prejudice always
sends a stronger message than dismissal without prejudice and is more likely to induce salutary
changes in procedures reducing pretrial delays United States v Taylor 487 U S 326 342 [1988)
But [d]ismissal without prejudice is not a toothless sanction Id The Court is well versed in the
history of these cases including the procedural background and factual allegations The Court is
also aware that approximately three years passed since charges were filed But this case is complex
and [i]n complex multidefendant cases speedy trial rights are [often] stretched about as far as can
be without making a mockery of that constitutional protection United States v Mosquera
813 F
Supp 962 964 (E D N Y 1993) [quoting United States v Gallo
668 F Supp 736 [E D N Y 1987))
The Court cannot find such a mockery was made here nor can the Court find bad faith in seeking a
dismissal now which is [tlhe salient issue Phillip 58 Vi at 600 (quoting Rmaldi v United
States 434 U S 22 30 (1977))
1110 [T]he People are presumed to be the best judge of where the public interest lies with
respect to a criminal prosecution Id And it is entirely possible here that the People chose to
dismiss not for altogether no reason [or to] gain [a] tactical advantage, 1d at 601 but rather
(as the Defendants themselves repeatedly suggested) because the FBI analysis which was partly
the cause of the delay was exculpatory True this Courts concern regarding mismanagement in
the Attorney General 5 office which prejudices defendants [and] interferes with the
administration of justice, Id at 602 resulted in the civil contempt proceedings against Attorney
McRae But that alone does not support a finding of bad faith Furthermore the statute of limitations
on several of the charges have passed which means the dismissal [even though it is without
prejudice) will effectively be with prejudice as to those charges The Court cannot find that
manifest public interest 1d at 600 01 or the integrity of the judicial system requires
countermanding the prosecutor 5 exercise of executive authority id at 600 (citation omitted)
and dismissing these cases with prejudice particularly considering the seriousness of the
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MEMORANDUM OPINION
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allegations that corporations with identical (or nearly identical) officers and directors bid on the
same contract, that government employees engaged in corruption and that federal funds were
involved
[1! CONCLUSiON
1111 Assuming that the Superior Court has authority to set aside a dismissal without prejudice in
a criminal case and dismiss with prejudice instead, the Court cannot find that a dismissal with
prejudice is warranted here Accordingly, for the reasons stated above the Court will deny Gilani s
motion to vacate An appropriate order follows ‘ P /
Date March 13 2020 4 " //
ROBERT MOLL
ATTEST judge of the Superi Court
TAMARA CHARLES
Clerk ofthe Cour 1‘
By
Gen-rt er
Dated m
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
PEOPLE OF THE VIRGIN ISLANDS ) CASE NO 5X 17 CR 174
) CASE NO SX 17 CR 175
Plaintiff ) CASE NO 5X 17 CR 189
l
V l
]
JERRIS T BROWNE )
GREGORY CHRISTIAN and ]
SYED GILANI )
]
Defendants ]
]
ORDER
AND NOW for the reasons stated in the Memorandum Opinion dated March 13, 2020, it is
hereby ORDERED that the Motion to Revoke Order Dismissing Case Without Prejudice or in the
Alternative, Reconsideration and Dismissal With Prejudice filed by Defendant Syed Gilani on
February 19 2020 and joined by Defendant Jerris T Browne on February 19 2020, is DENIED
DONE AND SO ORDERED \ /
Date March 13 2020 M
ROBERT A OLLO
ATTE‘ST judge of the uperior Court
TAMARA CHARLES
Clerk of the COurt
8)
Court C erk 4»;
Dated an 55"”