IN THE SUPREME COURT OF THE VIRGIN ISLANDS
PETER R NAJAWICZ
)
S Ct Crim No 2019 0098
Appellant/Defendant
)
Re Super Ct Crim No 425 2008 (STT)
)
V
)
)
PEOPLE OF THE VIRGIN ISLANDS
)
Appellee/Plaintiff
)
)
On Appeal from the Superior Court of the Virgin Islands
Division of St Thomas St John
Superior Court Judge Hon Michael C Dunston
Argued October 12 2021
Filed February 24 2022
Cite as 2022 V14
BEFORE
RHYS S HODGE Chief Justice MARIA M CABRET Associate Justice and
CURTIS V GOMEZ Designated Justice '
APPEARANCES
Robert L King, Esq
The King Law Firm P C
St Thomas U S V I
Attorneyfor Appellant
[an S A Clement, Esq
Assistant Attorney General
St Thomas U S VI
Attorneyfor Appellee
OPINION OF THE COURT
HODGE, Chief Justice
' The Honorable Ive Arlington Swan is recused from this matter The Honorable Curtis V Gomez,
a formerjudge ofthe United States District Court ofthe Virgin Islands, sits by designation pursuant
1] 1
Appellant Peter R Najawicz appeals from the Superior Court 3 January 9 2020 judgment
and commitment, which adjudicated him guilty of numerous offenses stemming from his
employment at the Roy L Schneider Hospital ( RLSH )
For the reasons that follow, we affirm
Najawicz s convictions for violation of the certifying officer statute 33 V I C § 3404, but reverse
all other convictions due to the People 5 failure to support them with sufficient evidence This case
will be remanded for resentencing
I BACKGROUND
1] 2
In 2002, the St
Thomas St
John District Governing Board of the Virgin Islands
Government Hospitals and Health Facilities Corporation hired Rodney E Miller, Sr as the Chief
Executive Officer of RLSH
In 2004, the District Governing Board appointed Najawicz as the
RLSH’s Chief Financial Officer and he commenced his employment on April 19 2004
Miller
executed an agreement with Najawicz providing him with an annual stipend that exceeded his
salary, as well as various other incentives and perquisites, as Miller had done previously with
Amos W Cany, Jr , who served as the RLSH 3 General Counsel and Chief Operating Officer
Although Miller, Carty, and Najawicz had their salaries processed by the Executive Branch
through its Department of Finance, their stipends and bonuses were paid from a separate RLSH
account and were not reflected on the Notice of Personnel Action (“NOPA”) form maintained by
the Executive Branch
1] 3
In advance of Miller 5 employment contract expiring, the District Governing Board
now
led by June A Adams, who succeeded Beverly Chongasing as Chair—established a Compensation
Committee and retained a consulting firm to recommend a salary and benefits package
On May
14, 2005, Miller and Adams signed a new two year contract
However, in a letter dated June 21,
RLSH and Miller which Miller accepted
In September 2005, Miller and Adams signed another
contract, backdated to May 14, 2005, which incorporated the terms ofthe June 21, 2005 agreement,
as well as various other terms
While all three documents were signed by Adams in her capacity
as Chair of the Board, the record contains no evidence that the District Governing Board held a
formal vote to ratify any of these agreements
Nevertheless, Najawicz, as Chief Financial Officer,
disbursed payments purportedly pursuant to those agreements
11 4
Over the next two years, Miller received various payments pursuant to these agreements
which were distributed directly to him by Najawicz from RLSH accounts rather than through
payroll processed by the Department of Finance
Moreover, in February 2006 Najawicz received
permission from Miller to
write off a $10,768 debt Carty owed to RLSH, in the form of an
unpaid salary advance
T. 5
At an unspecified point between May 17 2007, and August 13, 2007, Miller and Adams
executed another new contract for Miller to remain as Chief Executive Officer
Again, the
compensation provided to Miller under this agreement exceeded the salary on his NOPA form,
and such excess compensation was paid from RLSH accounts rather than through the payroll
process conducted by the Department of Finance
As with the 2005 agreement
the District
Governing Board never held a vote to approve the 2007 agreement
Again, Najawicz, as Chief
Financial Officer, disbursed payments to Miller purportedly pursuant to that agreement
‘16
Despite signing the 2007 agreement, on September 19, 2007, Miller announced that he
would resign as Chief Executive Officer effective November 3, 2007 to take a position at another
hospital
The District Governing Board appointed Carty to succeed him effective November 5,
2007
During this period, Miller received multiple payments to his personal account from RLSH
1| 7
During Carty’s tenure as Chief Executive Office, the Virgin Islands Office of Inspector
General conducted an audit of the RLSH’s finances
The Inspector General issued its final report
on July 28, 2008, identifying numerous instances where it concluded that payments to Miller,
Carty, and Najawicz were made without authorization or were excessive The District Governing
Board terminated Carty as Chief Executive Officer on August 5, 2008, and terminated Najawicz 5
employment in September 2008
1| 8
On October 6, 2008, the People charged Carty
Miller and Najawicz with numerous
offenses stemming from their tenure with the RLSH
After more than a decade of proceedings,
including a trial that resulted in a mistrial, a six week jury trial commenced on October 9, 2019,
and concluded on November 14, 2019
Ultimately the jury found all the defendants guilty of all
charges totaling 44 counts between them
1 9
The Superior Court held a forfeiture and sentencing hearing on December 13, 2019
At
the conclusion ofthe hearing, the Superior Court orally sentenced all the defendants The Superior
Court dismissed several convictions pursuant to title 14, section 104 of the Virgin Islands Code,
and with respect to the remaining convictions sentenced him to a combined period of one year of
incarceration and ordered certain collateral consequences, such as forfeiture of certain funds and
disqualification from public office The Superior Court memorialized its oral decision in a January
2, 2020 special verdict and order of forfeiture and a January 9, 2020 judgment and commitment
Najawicz timely filed a notice of appeal with this Court on December 23, 2020
See V I R APP
P 5000)
11 DISCUSSION
A
Jurisdiction and Standard of Review
appeals from the decisions ofthe courts ofthe Virgin Islands established by local law[ ] 48 U S C
§ l613a(d) Title 4, section 32(a) of the Virgin Islands Code vests this Court with jurisdiction over
all appeals arising from final judgments, final decrees, [and] final orders of the Superior Court
Because the Superior Court's January 9, 2020 judgment and commitment resolved all of the
charges presented in the People 3 seventh amended information, it is a finaljudgment under section
32(a) Joseph v Dally News Publishing Co
Inc
57 V I 566 578 (V I 2012) see also 48 U S C
§ 16l3a(d)
'! 1 1
This Court exercises plenary review over all questions of law, including the sufficiency of
the evidence
Bram» aite v People 60 V I 419 426 (V I 2014)
B Sufficiency of the Evidence
T, 12
Najawicz challenges the sufficiency of the evidence for all his remaining convictions
Each conviction is addressed in turn
However, given the nature of the charged conduct, we first
consider the legal framework that governed the operations of public hospitals during the pertinent
period
1
The Virgin Islands Government Hospitals and Health Facilities Comoration
1] 13
Between 1986 and 1994 the RLSI-l, along with other medical facilities, was owned and
operated by the Government of the Virgin Islands through two Government Hospital Facilities
Boards, one on St Croix and one on St Thomas and St John, which were established within the
Department of Health
See Governor Juan F Luis Hosp & Medical Ctr v Titan Medical Group
LLC 69 V I 873 880 (V I 2018)
In 1994 the Legislature dissatisfied with the separate facilities
boards within the Department of Health see 19 V I C § 240(d) enacted Act No 6012 to dissolve
those boards and replace them with the Virgin Islands Government Hospitals and Health Facilities
corporate and politic constituting a public health corporation of the Government of the Virgin
Islands,
and vested it with ‘ those powers and duties expressly provided by law and no others
’
19 V I C §243(a)
11 14
Act No 60l2 also set forth the purposes of the Corporation
In addition to providing
quality and comprehensive health care,
attain[ing] grater self sufficiency in health care delivery
through enhanced collection of health care costs
demonstrat[ing] through fiscal responsibility
and efficient management its ability to effectively operate the territorial health care delivery
system,
and “maintain[ing] a partnership with the V I govemment for as long as a significant
portion of the cost of health care delivery constitutes uncompensated care were all identified as
express purposes of the Corporation
19 V I C § 242
1] l5
Consistent with the description of its relationship with the Government as a “partnership,”
Act No 6012 granted the Corporation significant independence from the Executive Branch
The
Corporation was authorized to employ its own legal counsel, see 19 V I C
§ 245(d), and to
establish and maintain its own personnel administration system based on merit principles separate
from that utilized for the Executive Branch, see 19 V I C
§ 245(c)(1)
The Government was
directed to “continue to include in its Executive Budget Acts an appropriation for the operation of
the hospitals and health facilities under the jurisdiction of the corporation,
19 V I C
§ 245(b),
and the Corporation was prohibited from
commit[ting] unappropriated Government fitnds,
see
19 V I C § 247(c) However, the Corporation was expressly authorized to
establish and maintain
separate bank accounts and [to] make direct fiscal disbursement from such accounts to pay all
necessary costs and obligations of the health care facilities under its jurisdictions,
and the
Legislature directed that
[r]evenues generated by each hospital and health facility under its
provided that
the Department of Finance shall continue to be responsible for the payrolls of [the
hospitals] subject to the appropriation and allotment process
19 V I C § 261(b), and that ‘ [a]ll
deposits and disbursements from the accounts created herein shall comply with the appliable
provisions of the Virgin Islands Code regarding the deposit and disbursements of funds from
government bank accounts
19 V I C § 261(c)
1] 16
At all times pertinent to this appeal,2 the Corporation was administered by a 15 member
Board of Directors, who were empowered to elect a chairman and other officers as it may deem
appropriate, and which was required to meet not less than once a quarter See 19 V I C § 242(b),
(e) (t)
However, the Corporation also
ha[d] two district governing boards, one for the District
of St Croix and one for the District of St Thomas St
John,” consisting of nine members
representing their respective district
19 V I C § 243(g)
‘1 17
Under this bifurcated governance system, the Board of Directors had the authority to
formulate and determine hospital policy and planning for health care delivery at the territorial
level, ’ including “coordinat[ing] hospital policy, planning and decisions between the two districts
to ensure efficient and coordinated hospital policy direction between the districts ”
19 V I C
(3}
2430)
The District Governing Boards, however, were given the authority to “formulate and
determine hospital policy and planning for health care delivery for their respective districts
consistent with the hospital policy and planning established by the Board of Directors for the
Territory
Id “In the event of a dispute between the District Boards, or between a District Board
2 Effective December 30, 2020, the Legislature enacted Act No
8438, which made several
structural changes to the operation of the Corporation, including changing the composition of the
Board of Directors and eliminating the district governing boards
Because the conduct at issue in
this case all occurred between 2002 and 2008, all quotations and citations are to the version of the
and the Board of Directors the Board of Directors [would] resolve the dispute by majority vote
1d
1118
Among the enumerated duties of the Corporation is the power to
manage, operate,
superintend, control, and maintain the hospitals and health facilities of the Government of the
Virgin Islands in partnership with the Government,” 19 V I C § 244(6), and to “make and execute
contracts and leases and all other agreements or instruments necessary or convenient for the
exercise of its powers and the fulfillment of its corporate purposes
19 V I C
§ 244(d) However,
Act No 6012 did not contemplate that the Board of Directors or the District Boards would directly
manage the Territory 5 public hospitals
In fact the Legislature expressly provided that
[n]o
Board member or District Board member shall become involved in the day to day management
operations of the hospitals or health care facilities
19 V I C
§ 2430)
Rather, the Legislature
directed the “[t]he Board of Directors and the District Governing Boards [to] delegate management
operations to the appropriate staff and hold the staff accountable for the execution of hospital
policy decisions
[d
1] 19
To that end, the Corporation possessed the power to
employ and remove through the
District Governing Boards the Chief Executive Officers
19 V I C § 244(h)
Similarly, the Chief
Executive Officer, serving
as the head of the hospital to which he is appointed
possessed the
statutory duty to
appoint and remove the Medical Director, and the Chief Financial Officer with
the advice and consent ofthe respective District Board, and to “appoint and remove all managerial
personnel, health care providers and all other professional and nonprofessional personnel” subject
to various provisions of Virgin Islands law
19 V I C § 244a(a) (b)
'l 20
The Corporation was also given the express power to “adopt, alter, amend or repeal bylaws
with [its enabling statute] and all other applicable law
19 V I C § 244(c)
The St Thomas St
John District Governing Board adopted such bylaws pursuant to this statutory grant of authority
Pursuant to Article VI, section 8(a) of those bylaws,
The Chairperson [of the District Governing Board] shall be the official head of the
Board and shall have general care, supervision, and direction of its affairs, subject
to the authority of the Board
He’she shall be responsible for carrying into effect
the policies, programs, and resolutions approved or adopted by the Board for the
conduct and management of the affairs of the Board, for coordinating all phases of
its professional and business activities, and for directing the preparation of the
annual operating plans and longer term objectives of the Board
Subject to hisxher
overall executive control, he’she shall delegate operating management functions
and medical functions to appropriate officers, appointees, agents and employees of
the Hospital
(J A 3267)
In addition, section 8(0) of Article VI authorized the Chairperson to appoint all
Standing and Special Committees subject to the approval ofthe Board, while section 8(d) provided
that
Whenever the execution of deeds or other legal instruments is directed by the
Board, or becomes necessary and proper in canying out the business of the Board,
the Chairperson is authorized and empowered, in the name of the Board, to execute
the same and to have the Board’s seal affixed thereto
(J A 3268 )
With respect to such legal instruments, section 10(b) granted the Treasurer of the
Board to sell securities and take certain other specified actions in the name of the Board
Article
XVI provided further guidance on execution of such instruments, providing that
In the absence of any action by the Board or unless otherwise determined by the
Board, the Chairperson and the Treasure[r] of the Board shall have the power, in
the name and on behalfofthe Board, to execute and deliver any and all instruments,
except to the extent otherwise required by law in the ease of the purchase, sale,
mortgage or lease of real property
(J A 3294)
1] 21
Article V, section 50) (l) of the bylaws also addressed the relationship between the Chief
District Governing Board to the Chief Executive Office
(j) The Board shall appoint a full time Chief Executive Officer, who shall be
continuously responsible for the management of the Hospital, commensurate with
the authority conferred upon him by the Board and consistent with its expressed
aims and policies
(k) The Board shall, through the Chief Executive Officer, take all reasonable steps
to conform to
all applicable federal and local
laws, ordinances, codes and
regulations, including but not limited to licensure, fire inspection and other safety
measures
(1) The Board shall, through the Chief Executive Officer, provide for control and
use of the physical and financial resources of the Hospital
(J A 3264 65)
And while Article VII
section 10 of the bylaws provides for the Executive
Committee of the District Governing Board
whose members include the Chairperson
to
cooperate and consult
with the Chief Executive Officer with respect to matters such as
appointments and salary levels,
it expressly provides that “[n]o individual member of the
Committee shall have any veto power over decisions of Chief Executive Officer
’ (J A 3274 )
1] 22
Article VIII of the bylaws titled Chief Executive Officer,
further delineates the duties of
the Chief Executive Officer and that position 5 relationship with the District Governing Board
Section
1 of Article VIII reiterates that the Chief Executive Officer is selected and appointed by
the Board
while section 2(a) provides that the Chief Executive Officer shall
receive such
compensation, as the Board shall detennine
(J A 3280)
2
No Deference to the Jug 0n Pure Questions of Law
'|23
Ordinarily, when reviewing a challenge to the sufficiency of the evidence supporting a
conviction, this Court views all issues of credibility in the light most favorable to the People
Latalladz v People 51 VI [37 I45 (VI 2009) If any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt,
this Court will affirm DeStlvza v
People 55 VI 859 865 (V I 2011) (quoting Mendo a v People 55 V I 660 667 (V I 2011))
The evidence offered in support of a conviction “need not be inconsistent with every conclusion
save that of guilt, so long as it establishes a case from which a jury could find the defendant guilty
beyond a reasonable doubt
Mulley v People 51 V I 404 409 (V I 2009) (quoting UnitedSrates
v Carr 25 F 3d
I 194, 1201 (3d Cir 1996)) A defendant seeking to overturn his conviction on
this basis thus bears
a very heavy burden
Latalladz 51 VI at 145 (quoting United States v
Losada 674 F 2d 167 173 (2d Cir 1982))
T 24
This extraordinary deference to the jury when assessing the sufficiency of the evidence is
due to the well established principle in the American criminal justice system that juries decide
questions of fact while judges resolve questions of law
See Sparfv United States 156 U S 51,
100 03 (1895)
see also People v
Bruner
175 N E
400
403 04
(Ill
1931)
( The great
preponderance of authority in the courts of the several states likewise denies that by the common
law jurors in criminal cases are the judgers of law ”) (collecting cases)
This division of
responsibilities between jury and judge is necessary to ensure due process and equal protection,
for ifjuries were permitted to conclusively decide both the law and the facts “the result would be
that the enforcement of the law against criminals, and the protection of citizens against unjust and
groundless prosecutions would depend entirely upon juries uncontrolled by any settled, fixed,
legal principles,” which “would bring confusion and uncertainty in the administration of the
criminal law
Spar] 156 U S at 101 02
1| 25
This necessary separation, however, did not occur in this case
Throughout trial, the jury
heard substantial testimony on disputed issues of law, almost exclusively elicited by the People
and largely relating to the legal relationship between the Corporation and the Executive Branch
Governing Board, and the Board Chair
In fact, at one point the prosecution even read portions of
the Virgin Islands Code to a lay witness
Kenneth Hermon
and asked him whether that language
authorized the defendants to take the specific actions that formed the basis for the charged offenses
(Trial Tr
10 10 19 at 101)
Perhaps most significantly, the Superior Court seemingly believed
these purely legal questions were properly before the jury, and during final jury instructions
restated, sometimes verbatim, many of the pertinent provisions ofAct No 6012 without providing
any instruction on what that language meant
in effect conveying to the jury that it was their
responsibility to determine the law and decide for themselves how Act No 6012 and other statutes
and legal doctrines allocated the powers of the District Governing Board, the Board Chair, the
Chief Executive Officer, and other employees vis a vis each other and the Executive Branch
But
this contravenes the well established principles that lay testimony offering a legal conclusion is
generally not helpful to the jury and is thus usually inadmissible as evidence, e g
United States v
Noel 581 F 3d 490 496 (7th Cir 2009) and that it is exclusively the role of the judge to instruct
the jury on the applicable principles of law in a case Untied States v Tarlaghone, 815 Fed Appx
648, 650 (3d Cir 2020) (observing that
the articulation of governing law is within the sole
province of the judge ) Commodores Entmt Corp v McClary 879 F 3d 1114 1128 (11th Cir
2018) (admonishing that the court must be the jury's only source oflaw ); UmtedStates v Milton,
555 F 2d 1198
1203 (5th Cir 1977) (a
witness may not substitute for the court in charging the
jury regarding the applicable law”)
Accordingly, when assessing the sufficiency of the evidence
on appeal in this case, the Court will not exacerbate the Superior Court’s error, but instead
comports with the proper allocation of authority between judge and jury deciding all questions of
law independently without defen‘ing to how the jury may or may not have interpreted the law
3
Obtaining Money by False Pretenses
1| 26
Counts 22, 23, and 34 of the seventh amended information charged Najawicz with
obtaining money by false pretenses in violation of title [4, section 834(2) of the Virgin Islands
Code That statute provides, in pertinent part, that
Whoever knowingly and designedly, by false or fraudulent representation or
pretenses, defrauds any other person of money or property shall
(1) ifsuch property or money was 8 100 or more in value, be imprisoned not
more than 10 years
In Counts 22 and 23, the People alleged that Najawicz defrauded the RLSH through, respectively,
receipt ofbonuses and stipends authorized by Miller which exceeded the salary listed on his NOPA
form
In Count 34
the People alleged that Najawicz defrauded the RLSH
by fraudulently
arranging the write off” ofa $10 000 00 debt owed by Amos Carty, Jr to RLSH, without authority
of law on the false pretenses that this debt was not collectable
(J A 1073 ) Each act is addressed
in turn
a
Ccunts 22 and 23 Compensation Exceeding (he Salary on the NOPA Farm
1] 27
The People maintain that Najawicz fraudulently obtained bonuses and stipend payments
that he was not entitled to receive as compensation
First, the People contend that Miller, as Chief
Executive Officer, lacked the authority to set Najawicz s compensation
Furthermore, the People
assert that even if Miller could determine Najawicz’s compensation, it was illegal for Najawicz to
accept these payments from the RLSH account without having that compensation reflected on his
NOPA form and paid by the Executive Branch through its payroll process To determine whether
these disbursements were lawful, it is necessary to again examine the structure, powers, and duties
of the Corporation, as well as its relationship with the Executive Branch
1] 28
Act No
6012 established the Corporation as a public corporation that possesses a
substantial degree of autonomy and independence from the Executive Branch
The Legislature
did so intentionally to divest the Department of Health of its direct administration of the territory’s
public hospitals
19 V I C § 240(d)
In addition to granting the Corporation significant autonomy
from the Executive Branch, Act No 6012 provides each hospital 3 Chief Executive Officer and
staff with considerable independence from both the Corporation 5 Board of Directors as well as
its District Governing Board
While each District Governing Board possesses the statutory
authority to
employ and remove
a Chief Executive Officer, see 19 VIC
§ 244(h), the
Legislature expressly and unambiguously provided that
[n]o Board member or District Board
member shall become involved in the day to day management operations ofthe hospitals or health
care facilities”
and instead directed the “[t]he Board of Directors and the District Governing
Boards [to] delegate management operations to the appropriate staff and hold the staff accountable
for the execution of hospital policy decisions
19 V I C § 2430)
ii 29
Title 19, section 244a of the Virgin Islands Code, at the time of all events pertinent to this
appeal, read, in its entirety, as follows
The Chief Executive Officer shall serve as the head of the hospital to which
he is appointed and shall
(a) appoint and remove the Medical Director, and the Chief Financial
Officer with the advice and consent of the respective District Board;
(b) appoint and remove all managerial personnel, health care providers and
all other professional and nonprofessional personnel, subject to the provisions of
Title 3
chapter 25, section 530 relating to procedures for employee dismissals,
demotions
and
suspensions
and
531
relating
to
the
prohibition
against
discrimination on account of non merit factors, the rules and regulations of the
Corporation promulgated pursuant to section 245(c)(2) of this chapter, any
collective bargaining agreements and subject to the VI
Governments budget
constraints and allotment process, and
(c) with the assistance of the Chief Negotiator, negotiate all non economic
provisions of collective bargaining agreements which affect the management and
Executive Officers, shall negotiate all economic provisions of collective bargaining
agreements which obligate the General Fund All collective bargaining agreements
shall be subject to the approval of the Governor The Chief Executive Officers and
the Chief Negotiator shall develop administrative policies and procedures to
implement the provisions of this subsection
At trial and in their appellate brief, the People place extraordinary emphasis on the fact that section
244a does not expressly state that the Chief Executive Officer may set the salaries for hospital
employees
According to the People the failure of the Legislature to enact a statute specifically
stating that the Chief Executive Officer may do so means that the Chief Executive Officer lacks
that authority
The People base this highly restrictive interpretation on a single sentence in title
19, section 243 of the Virgin Islands Code stating that the Corporation
shall have those powers
and duties expressly provided by law and no others
19 V I C § 243(a)
1| 30
The People have grossly misinterpreted the pertinent statutory provisions
Section 243(3),
by its own terms, limits the power of the Comoration
As explained earlier, the Corporation is a
complex organization where various authority is allocated internally
both through statutes and
bylaws
between a Board of Directors, two District Governing Boards, and Chief Executive
Officers and other managerial staff for each public hospital and health facility
Title 19 section
244 ofthe Virgin Islands Code, which delineates the powers ofthe Corporation expressly provides
that
The V I Government Hospitals and Health Facilities Corporation shall have
the power to
(d) make and execute contracts and leases and all other agreements or
instruments necessary or convenient for the exercise of its powers and the
fiilfillment of its corporate purposes [and]
(e) manage, operate, superintend, control, and maintain the hospitals and
health facilities of the Government of the Virgin Islands in partnership with the
Govemment[ ]
determine the compensation of the employees hired to manage a hospital under its jurisdiction
11 3|
The question,
then,
is who w (thin the Corporation
is authorized
to exercise the
Corporation’s power to set the compensation for hospital employees While the People place great
emphasis on the omission of the power to set salaries from the powers of the Chief Executive
Officer delineated in section 2443, there is nothing in section 244a that provides that the Chief
Executive Officer may only exercise the powers enumerated in that statute
1] 32
On the contrary, section 2443 does not even appear to enumerate powers at all
The first
sentence of the statute identifies the Chief Executive Officer as
the head of the hospital to which
he is appointed
19 V I C
§ 244a
However, the enumerated list that follows does not gm
powers to the Chief Executive Officer
Subsection (a) provides that the Chief Executive Officer
may appoint and remove the Medical Director and Chief Financial Officer only with the advice
and consent of the District Governing Board
Subsection (b) provides that the Chief Executive
Officer may appoint and remove personnel subject to complying with numerous specific
limitations in the Virgin Islands Code, such as the prohibition against discrimination on account
of non merit factors
Subsection (c) permits the Chief Executive Officer to negotiate the non
economic provisions ofcollective bargaining agreements, but only with the assistance ofthe Chief
Negotiator, and for the Chief Negotiator to negotiate the economic provisions of collective
bargaining agreements which obligate the General Fund in consultation with the Chief Executive
Officer 3 In other words, these are all affirmative limitations on powers that would otherwise be
inherent to the position of Chief Executive Officer as head ofthe hospital
19 V I C § 244a As
‘ Notably, that the Chief Executive Officer lacks the power to unilaterally negotiate the economic
provisions of collective bargaining agreements which obligate the General Fund would seem to
imply that the Chief Executive Officer would have the power to unilaterally negotiate economic
such, section 244a effectively provides that the Chief Executive Officer may exercise the powers
stemming from his or her position as head ofthe RLSH, except for the enumerated situations where
that power is restricted in some manner
11 33
This construction of section 244a is also consistent with the overall statutory framework
established by Act No 6012
Since it is a power of the Corporation to enter into contracts for
managerial
personnel,
that power must necessarily be exercised by someone within
the
Corporation
But Act No 6012 expressly and unambiguously precludes the Board of Directors,
the District Governing Boards, and individual Board members from participating in the day to
day management operations of the hospitals, and mandates that they delegate such duties to
appropriate staff
[9 V I C § 2430)
Since the Chief Executive Officer serves as
the head of
the hospital,
19 V I C § 244a, it stands to reason that this and other managerial functions would
be within the purview of the Chief Executive Officer or his or her authorized designees
1| 34
Yet to the extent any doubt remains as to the power of the Chief Executive Officer to set
employee compensation, it is resolved by the bylaws ofthe St Thomas St John District Governing
Board
Article VII, Section 10 of the bylaws, titled
‘Personnel Practices and Compensation
meetings of the Executive Committee,” reads, in its entirety as follows
(a) The
Personnel
Practices
and Compensation meetings of the
Executive
Committee
shall
cooperate
and
consult
with
the
Chief
Executive
Officer’Administrator of the Hospital and other administrative officers in
regard to appointments, welfare, and working conditions of employees, labor
relations recommendations for establishment and revision from time to time of
salary levels, and the maintenance of proper relations between employees and
the Board
(b) No individual member of the Committee shall have any veto power over
decisions of Chief Executive Officer’Medical Director of the Hospital or the
Administrative Staff of the Hospital (nor shall any Director make or maintain
contact with employees except through the Chief Executive Officer’Medical
Director or the Administrative Staff)
(J A 3274 75 ) The plain language of this bylaws provision clearly contemplates that the District
Governing Board, acting through its Executive Committee, would only “consult
and ‘ make
recommendations ’ to the Chief Executive Officer with respect to “salary levels” and other
conditions of employment, subject to the District Governing Board’s statutory authority to
hold
the staff accountable for the execution of hospital policy decisions
19 V I C § 2430)
'13s
Consequently, as a matter of law, Miller, as Chief Executive Officer of the Schneider
Hospital, possessed the legal authority to set compensation for subordinate hospital employees,
subject only to the retained authority of the District Governing Board as the policy making body
for the RLSH
To hold otherwise would not only be inconsistent with the plain language of Act
No 6012 and the St Thomas St John District Governing Board bylaws, but effectively render the
territory 8 hospitals unmanageable 4
ii
Authority of the Executive Branch With Respect to Hospital Salaries
‘, 36
The People further argue that even if Miller as Chief Executive Officer had the requisite
legal
authority
to
determine
the compensation of subordinate employees
that Najawicz
nevertheless obtained money by false pretenses
Specifically, they allege that Najawicz violated
section 834(2) by receiving those payments from a hospital account without having the additional
compensation reflected on the NOPA form maintained by the Executive Branch
1] 37
As a threshold matter
the People are correct that Virgin Islands law required all of
Najawicz s compensation to be included on his NOPA form and not just his salary
Title 3,
4 It is important to emphasize that the People 3 interpretation of Act No 6012 with respect to
salaries
that any action taken by the Chief Executive Officer that is not affirmatively vested in
that position by statute is illegal and unauthorized until and unless it is approved by a fomial vote
ofthe District Governing Board
would appear to apply to any situation where Act No 6012 does
section 452 of the Virgin Islands Code provides that
[t]he Director of Personnel under the general
supervision of the Governor
shall
establish and maintain a roster of all employees in the
Government Service, in which there shall be set forth as to each employee, the class title of the
position held, the compensation
any change in pay or status, and any other necessary data,
including the enrollment of the employees in the Group Health Insurance Program
3 V I C
§
452(b)(4)
As used in section 452, “‘Govemment Service’ means the Government of the United
States Virgin Islands, including governmental activities administered by boards, commissions, and
authorities ’ 3 V IC § 451 (emphasis added)
Therefore, Miller was unquestionably required to
inform the Director of Personnel ofthe total amount ofcompensation given to Najawicz, including
the value of any bonuses or stipends in addition to his salary
11 38
Counts 22 and 23 however, do not charge Najawicz with simply accepting stipends and
bonuses that were not reported to the Director of Personnel
Nor could the People have charged
Najawicz on this basis since section 834(2) requires that one “knowingly and designedly, by false
or fraudulent representation or pretenses, defraud[] any other person of money or property "
[4
V I C § 834(2)
Consequently Count 23 of the Seventh Amended Information charged Najawicz
with “fraudulently circumventing the government employee payroll” when receiving these
stipends and bonuses
(J A 1067 ) While Count 22 does not allege that Najawicz fraudulently
circumvented the payroll process, it would appear from the act charged
receipt of several lump
sum payments of $10 000 00 or $26 070 00
apart from his authorized (NOPA) salary
that
circumventing the payroll process would necessarily be the factual predicate for that charge, given
that, as explained above Miller possessed the authority to set Najawicz s compensation
f 39
Even though Najawicz received payments that exceeded the salary identified on the NOPA
to prove that he circumvented the employee payroll process to receive those payments
Act No
6012 mandated the Corporation to “establish and maintain separate bank accounts and [to] make
direct fiscal disbursement from such accounts to pay all necessary costs and obligations of the
health care facilities under its jurisdictions ’ 19 V I C § 261(a)
Moreover, Act No 6012 provided
for “[r]evenues generated by each hospital and health facility under its jurisdiction [to] be
deposited in its account(s)
Id
‘1 40
The establishment of separate bank accounts and for disbursements to be made from such
accounts to pay necessary costs and obligations is consistent with the overall purpose of Act No
6012, which was to make the public hospital system achieve ‘ financial self sufficiency
with the
goal of having the hospitals funded to the greatest extent possible through patient care revenue
rather than the General Fund or other accounts maintained by the Executive Branch
19 V I C §§
240, 242
However, because financial self sufficiency was the ultimate goal rather than the then
existing reality
Act No
6012 directed the Executive Branch to
‘ continue to include in its
Executive Budget an appropriation for the operation of the hospitals and health facilities under the
jurisdiction ofthe corporation
19 V I C § 245(b) Consequently, the clear intent ofthis statutory
scheme is for the Executive Branch, through the appropriation it receives for the Executive Budget
from the General Fund and other funding sources to fund the costs that the Corporation is unable
to pay from its own accounts
1] 41
In addition to requiring the Executive Branch to continue to fund the hospitals, Act No
6012 provides that
[n]otwithstanding the establishment of separate bank accounts under this section,
the Department of Finance shall continue to be responsible for the payrolls of the
Governor Juan F Luis and Roy L Schneider Hospitals subject to the appropriation
and allotment process[,]
19 V I C § 26l(b) The People maintain that this provision requires the Department ofFinance to
process all payrolls of the hospitals and that Najawicz therefore circumvented the payroll process
by not receiving the additional compensation from the Department of Finance
1] 42
Again the Pe0ple have misinterpreted these statutory provisions
If section 26l(b) simply
stated that
the Department of Finance shall continue to be responsible for the payrolls of the
Governor Juan F Luis and Roy L Schneider Hospitals,
the People would likely be correct that
all payrolls for both hospitals must be processed by the Department of Finance
But that is not
what section 261(b) says
after that language
it contains the additional phrase
subject to the
appropriation and allotment process ”
1] 43
Under traditional rules of English grammar, the phrase “subject to" modifies only the noun
it immediately follows, and not the entire sentence
In legal parlance, this principle, as it applies
in the context of statutory construction, is known as
the rule of the last antecedent
Under this
rule, “a limiting clause or phrase [in a sentence within a statute]
should ordinarily be read as
modifying only the noun or phrase that it immediately follows ” Fontame v People, 59 V I 1004,
1009 (V I 2013) (quoting Barnharl v Thomas 540 U S 20 26 (2003)) And while this rule
is
not an absolute and can assuredly be overcome by other indicia of meaning,” 1d at 1010 (quoting
UnitedStates v Hayes, 555 U S 415 425 (2009)) the People have neither argued nor established
that the phrase subject to the appropriation and allotment process
in section 26l(b)
is applicable
as much to the first and other words [in that section] as to the last,
Id (quoting Porto RICO Ry
nghl & Power Co v Mar 253 U S 345 348 (1920) and citing Govtofthe V] v Thomas 9 V I
I7, 24 (V I Super Ct 1971) (same)), such that the interpretive presumption embodied in the rule
does not limit the applicability of the phrase to just the last antecedent
See
e g , Payless
th[e] last antecedent principle is
an interpretive presumption based on the grammatical rule
against misplaced modifiers
) Nor have the People contended that a related rule, the
‘series
qualifier canon,” which applies to a statutory term or phrase at the end of a series “when there is a
straightforward, parallel construction that involves all nouns or verbs in a series,” should apply to
permit the phrase ‘ subject to the appropriation and allotment process ’ in section 261(b) to act as
a modifier that would apply to the entirety of the language in section 261(b), rather than to solely
the last antecedent Facebook Inc v Dugmd 141 S Ct 1163
l 169 (2021) (acknowledging this
canon) (citing Parolme v United States 572 U S 434 447 (2014) Porto RICO Railway Light &
P014 er C0
253 U S at 348 and UnitedStatest Bass 404 U S 336 339 40 (1971))
1| 44
Thus section 261(b) does not make the Department of Finance responsible for all payrolls
rather, it only makes it
responsible for the payrolls
subject to the appropriation and allotment
process
In other words, section 261(b) mandates that the Department of Finance process the
payrolls that are to be paid from the appropriation the Executive Branch receives from the General
Fund for the purpose of hospital operations pursuant to section 245(b) but does not mandate that
the Department of Finance process any payrolls that are funded from sources other than the
General Fund, such as the separate hospital accounts in which patient care revenue is deposited
This construction of section 261(b) is consistent with how this Court and other courts have applied
the last antecedent rule See e g Fontame, 59 V I at lOl0 (holding that by operation of the rule,
‘the language in [5 V I C
§] 3524 [that the territorial Public Defender] relies on
that he
considers to be in the interest of justice’
would only modify ‘other remedies before or after
conviction,’ and not ‘appeals’ or every stage of the proceedings against him’”), Dennis v Watco
Companies Inc
631 F 3d 1303
1305 06 (10th Cir 2011) (holding that in the statutory phrase
IV of Title 49,” the phrase “subject to part A’ modifies “rail carrier” and not
‘employer”),
Northwest Forest Resource Counczl v Glickman 82 F 3d 825 831 32 (9th Cir 1996) (holding
that in a statute stating that
all timber sale contracts offered or awarded before that date in any
unit ofthe National Forest System or district ofthe Bureau ofLand Management subject to section
318” the phrase “subject to section 3 l8
modifies “any unit
or district, ’ and not
all timber
sales contracts”)
1] 45
In this case, the undisputed evidence in the record established that the stipend and bonus
payments received by Najawicz which exceeded the salary indicated on his NOPA form did not
come from the General Fund or any other account maintained by the Department of Finance or the
Executive Branch
but from the separate hospital accounts the Corporation is authorized to
maintain and make disbursements from pursuant to section 26 1(a) Because Miller was authorized
by law to set Najawicz s compensation, and the Department of Finance is not responsible for
payrolls which are not subject to the appropriation and allotment process
the People failed to
introduce sufficient evidence that Najawicz circumvented the payroll process or otherwise
fraudulently obtained these funds to himself in violation of law
Consequently, we reverse
Najawicz s convictions for Counts 22 and 23
b
Count 3-!
Write Offor Waiver 0f$10 000 Salary Advance to Carty
1] 46
Count 34 ofthe seventh amended information alleges that Najawicz violated section 834(2)
by arranging a
write off of a $10 000 debt owed by Carty to the RLSH
The $l0 000 debt
referred to is a $10,768 salary advance payment that Carty received from the RLSH 3 operating
account shortly after he first commenced his employment as General Counsel on October 25, 1999
At the time this salary advance payment was made, a policy had been in place
since rescinded
form has been fillly processed
It is undisputed that the purpose of the $10,768 salary advance
payment from the RLSH operating account was to allow Carty to get paid while the Executive
Branch processed his NOPA form, and that Carty was to repay the $ 10,768 advance to the RLSH
once he began to receive salary payments from the Executive Branch after his NOPA form had
been processed
1| 47
The People failed to introduce sufficient evidence to sustain this conviction
The Bylaws
of the District Board granted the Chief Financial Officer the power to write off a debt in
accordance with policies ofthe Board and the approval ofthe Chief Executive Officer
(J A 1261 )
The uncontradicted evidence at trial established that Carty s $10,768 debt had not been waived but
only written off as provided for in the Bylaws and accompanying policies
In the emails Miller
and Najawicz exchanged with each other on February 6, 2006, Najawicz had requested that the
RLSH
write of? ten employee receivables, including Carty 3 $10 768 debt, to which Miller
replied, “You may proceed in writing off these accounts ” (J A 2771 ) At trial, every witness
including prosecution witnesses
asked about the effect of a
write off testified that it is a term
of art in accounting which does not forgive, waive, or otherwise extinguish a debt, but only
designates it as unlikely to be collected, so that it does not appear as an active account receivable
Moreover, Carty himself testified that the $10,768 debt had not been forgiven and was still owed
by him to the RLSH, and that he had not repaid it because he believed the RLSH owed him a
greater amount of money
This is supported by a May 24, 2001 resolution passed by the St
Thomas St John District Governing Board, which states that it is “customary to remove inactive
and uncollected account balances periodically,
that ‘ on average, industry standards for active
account receivables do not exceed two (2) years,’ that “old account receivables inflate the gross
therefore
authorize[d] the Hospital Administration to establish a write off policy, for accounting
purposes only, for all outstanding account receivables that exceed two (2) years in age ” (J A 247
48 )
1] 48
In fact, the only evidence
that term being used loosely
the People cite in their appellate
brief to support the idea that the $10 768 debt had been forgiven is a February 23 2006 email
exchange between Carty and Najawicz in which Najawicz states that he wishes to “forgive” a
$45,500 housing allowance to Miller to get it
off the books
and asks Carty for language to
effectuate that intent, to which Carty suggested language that the housing advance be ‘ waived
(Appellee 3 Br 26 ) Not only is this not evidence that the $10,768 salary advance debt had been
waived, but it supports the opposite proposition, in that Carty, when asked for language to provide
language to ‘ forgive” Miller’s debt, chose the word “waived’ rather than
written off, ’ fithher
emphasizing that these are different concepts
Accordingly, we reverse Najawicz s conviction on
Count 34
4
Embezzlement by Fiduciaries
1] 49
Counts 21, 29, and 35 of the seventh amended information charged Najawicz with
embezzlement by fiduciaries in violation of title l4, section 109! ofthe Virgin Islands Code That
statute, provides, in its entirety, that
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 ofhis trust,
or secretes it with a fraudulent intent to appropriate it to such use or purpose, is
guilty of embezzlement
Each charge is addressed in turn
a
Count 21 Payments to Miller BerweenAugust 3 2005 andJune 30 2006
1] 50
The People charged Najawicz. with while serving as the RLSH 5 Chief Financial Officer,
“fraudulently mak[ing] several electronic transfers totaling over $400,000 in RLSH fill‘ldS from a
RLSH bank account to Rodney E Miller, Sr , through the false and fraudulent premise of a ‘June
21, 2005 employment agreement not known to exist
(J A 1066 ) In both their trial presentation
and their appellate brief, the People appear to alternate between two different theories of guilt (I)
that the June 21, 2005 agreement was a complete fabrication; and (2) that the June 2|, 2005
agreement, even if it existed, was not authorized by law Regardless ofwhich theory the jury relied
upon in convicting Najawicz on this charge, the People failed to introduce sufficient evidence to
sustain the conviction
i
Existence of June 21, 2005 Agreement
{I 51
Like at trial in their appellate brief the People imply that the June 21 2005 agreement did
not exist because (arty, in response to a June 13 2008 subpoena, stated that he “found no June
21 2005 agreement between [RLSH] and Rodney Miller Sr
and that
{i]t is [his] belief that the
reference to a June 21, 2005, agreement [in other documents] [is] erroneous,
J A 3247 50, with
Najawicz similarly responding that he “found no June 21, 2005, employment agreement between
Schneider Regional Medical Center and Rodney E Miller Sr
(J A 3251 57)
But the fact that
Carty and Najawicz said in a pretrial subpoena response that the agreement could not be
found ’
and that Carty had a
belief
that references to that agreement in other documents may be
erroneous is not evidence that the agreement never existed
Accord State v McFall, 439 P 2d
805 807 (Ariz 1968)
1] 52
Of course, if a June 21, 2005 agreement had never been produced, a jury certainly could
reasonably infer that Najawicz’s response to the June 13, 2008 subpoena was not truthful and was
all a jury possesses the right to disbelieve a witness 5 statement in whole or in part See Ostalaza
v People 58 V I 531
556 (V I 2013)
However
neither the court nor the jury should be
permitted to stubbome ignore and refiise to be guided by competent, credible and uncontradicted
evidence
Amold Machinery Co v Intruston Prepak! Inc , 357 P 2d 496, 497 (Utah 1960)
Indeed,
although a trier of fact must determine the weight of the testimony and the credibility of
witnesses, it may not arbitrarily disregard uncontradicted evidence of unimpeached witnesses
which is not inherently incredible and not inconsistent with facts in the record, even though such
Wirnesses are Interested In the outcome 0fthe case
’ Bradner v Mitchell, 362 S E 2d 718 723 (Va
1987) (emphasis added)‘ Chealham v Gregory 313 S E 2d 368 370 (Va
1984) (same) (citing
cases) As the Supreme Court of the United States has explained,
A jury cannot arbitrarily discredit a witness and disregard his testimony in
the absence of any equivocation, confusion, or aberration in it
It is not proper to
submit uncontradicted testimony to a jury for the sole purpose of giving the jury an
opportunity to nullify it by discrediting the witness, when nothing more than mere
interest in the case exists upon which to discredit such witness
[Rather, t]he
testimony must inherently contain some element of confusion or contrariety, or
must be attended by some circumstance which would render a total disregard of it
by a jury reasonable rather than capricious
Chesapeake & Ohio Ry Co v Martin 283 U S 209 219 20 (1931) In other words a jury is not
permitted “to reach [a] conclusion [that] is entirely too tenuous” given the evidence actually
presented
and goes beyond reasonable inferences to mere speculation ” People v Clarke, 55 V I
473 478 (V I 2011)
1] 53
Here, the June 21 2005 agreement was actually introduced into evidence by the People at
trial Although taking the form ofan offer letter from Adams to Miller, the document is dated June
21, 2005, sets forth numerous terms and conditions of employment, including bonuses, incentive
payments, and cost of living increases on top ofbase salary The letter states that the offer is being
made by the Board, is signed by Adams in her capacity as Chair of the District Governing Board
and contains a signature by Miller under the text “Please signify your acceptance of the terms
outlined herein by signing below
(J A
1740)
It is clear, therefore
that a June 21, 2005
agreement did in fact exist
As such, a rational jury could not convict Najawicz of embezzlement
on a theory that this agreement never existed
ii
Legalig; of June 21, 2005 Agreement
1| 54
The People also failed to introduce sufficient evidence to prove that the June 21, 2005
agreement was invalid as a matter of law The June 21, 2005 agreement was signed by Adams in
her capacity as Chair, issued on hospital letterhead, expressly states that it is an official offer from
the Board, repeatedly uses the pronoun we when explaining its terms, and is signed by Miller
under a sentence stating that his signature signifies his acceptance
Nevertheless, the People
maintain that the June 21, 2005 agreement was not legally valid because it had never been
approved by the St Thomas St John District Governing Board
1] 55
We disagree
It is well established that contract construction that is, the legal operation
of the contract, is a question of law ’ reserved for the court, and not the jury See Phllllp v Marsh
Monsanto 66 V I 612 624 (V I 2017) see also Gaede v SKInvs
Inc
38 S W 3d 753 757 (Tex
App 2001)
This principle, while typically arising in civil suits for breach of contract, remains
applicable even in criminal cases
See e g szth v State 68 N E 2d 549 436 37 (Ind 1946)
(rejecting testimony that the defendant had ‘ sold’ a controlled substance since it
was a legal
conclusion of no evidentiary value as to the nature of the transaction, ’ and instead analyzing the
sufficiency of the evidence by determining whether the facts, when viewed in the light most
favorable to the prosecution, met the legal definition of a ‘ sale )
Therefore, this Court is not
that various prosecution witnesses testified to at trial
1] 56
As outlined earlier Act No 6012 granted each District Governing Board the statutory
authority to employ and remove
the Chief Executive Officer 19 V I C § 244(h), and the bylaws
of the St Thomas St John District Governing Board gave it the power to set the Chief Executive
Officer 5 compensation
(J A 3280)
But while there is no direct evidence that the District
Governing Board formally approved by an official vote at a duly noticed meeting, the terms of
the June 21, 2005 agreement neither Act No 6012 nor any other provision of Virgin Islands law
required the District Governing Board to affirmatively approve, by formal vote, the salary or other
conditions of employment of the Chief Executive Officer However, the June 21 , 2005 agreement
is signed by Adams in her capacity as Board Chair, and says that ‘ we are pleased to officially offer
you the following terms
(.1 A
1739)
The question, then, is whether this was sufficient to
constitute a legally binding contract between Miller and the District Governing Board
1| 57
In addition to granting the District Governing Board the authority to employ and remove
the Chief Executive Officer, Act No 6012 authorizes the Boards to “make and execute contracts
and leases and all other agreements or instruments necessary or convenient for the exercise of its
powers and the fiilfillment of its corporate purposes
19 V I C
§ 244(d)
But Act No 6012 does
not set forth a procedure for how the District Governing Boards may exercise this power to create
contracts Nevertheless, the bylaws ofthe St Thomas St John District Governing Board expressly
and unambiguously grant this authority to the Chairperson
Whenever the execution of deeds or other legal instruments is directed by the
Board, or becomes necessary and proper in carrying out the business of the Board,
the Chairperson is authorized and empowered, in the name ofthe Board, to execute
the same and to have the Board 5 seal affixed thereto
(J A 3268 ) Certainly, entering into an employment agreement with the individual selected by the
Board to serve as Chief Executive Officer is “necessary and proper in carrying out the business of
the Board
But even if this were not the case, section 1 0f Atticle XVI expressly provides that
In the absence of any action by the Board, or unless otherwise determined by the
Board, the Chairperson and the Treasure[r] 0f the Board shall have the power, in
the name and on behalfof the Board to execute and deliver any and all instruments
except to the extent otherwise required by law in the case of the purchase, sale,
mortgage, or lease of real property
(J A 3294 (emphasis added))
In these provisions the bylaws establish a default rule where the
Chairperson (or the Treasurer, in the case of securities and other legal instruments which the
bylaws permit the Treasurer to buy, sell, or otherwise dispose of) may exercise his or her authority
to execute a contract in the name of the Board when the Board has not taken a contrary action 5
‘ 58
The uncontradicted evidence in the record established that the District Governing Board
had established a Compensation Committee as a special committee pursuant to Article VII of the
5 None of the parties have challenged as part of this appeal the authority of the District Governing
Board to enact bylaws which delegate these duties to individual members such as the Chair
However, it is well established that “[w]hen a statute delegates authority to a [public] officer or
agency, subdelegation to a subordinate [public] officer or agency is presumptively permissible
absent affirmative evidence of a contrary [legislative] intent ” See United States Telecom Ass'n v
FCC 359 F 3d 554 565 (D C Cir 2004) (collecting cases)
Such subdelegation is permissible
“even in the absence of explicit statutory authorization permitting delegation of a particular
fianction” due to ‘ the impossibility of personal performance of every statutory duty
People v
Murrell 56 VI 796 803 04 (VI 2012) (collecting cases)
Certainly, the authority to delegate is not without limits, most significantly, a delegation
cannot “constitute[] divesting or transferring a fundamental responsibility of the office ” Murrell
56 V I at 804
Here, no such divestment or transfer occurred since the District Governing Board
delegated certain powers internally to individual board members and subcommittees, which is a
practice consistent with well established law in the Virgin Islands and elsewhere governing
corporations and boards See [3 V I C § 32(5); Schoonejongen v Curtiss Wright Corp , 143 F 3d
120 127 (3d Cir 1998) San Antonio Jomt Stock Land Bank v Taylor 105 S W 2d 650 654 (Tex
1937) see also 2 JAMES D Cox & THOMAS Ln: HAZEN TREATISE ON THE LAW OF CORPORATIONS
§ 9 17 (3d ed 2010)
The Legislature was therefore certainly aware that in choosing such a
governance structure, a District Governing Board would have the authority to enact bylaws that
further delegate certain powers to one of its officers or committees
bylaws, and delegated to it various duties including approval ofexecutive compensation contracts,
and that the Compensation Committee would routinely exercise this authority to approve contracts
without presenting those contracts to the entire Board for approval
Importantly, Adams testified
that the June 21, 2005 agreement
reflects what the Compensation Committee recommended
Moreover, the bylaws do not require that the entire District Governing Board approve each contract
or other legal instrument signed by the Chairperson or approved by the Compensation Committee
or other standing or special committee pursuant to this bylaws provision
Under these provisions,
testimony by Chongasing and other Board members that they had not seen the June 2|
2005
agreement, even if credited by the jury, is not relevant to the question of whether that agreement
was authorized by law
1] 59
The record further contains absolutely no indication that Adams or anyone else concealed
the existence of the June 21, 2005 agreement from the District Governing Board so as to prevent
it from disavowing the agreement On the contrary, the uncontradicted evidence—elicited by the
People during their direct examination of Chongasing—established the opposite
Chongasing
testified that the Compensation Committee advised the full Board at its June [5, 2005 session that
it was negotiating with Miller
She further testified that the District Governing Board had been
infomed of the agreement and had the opportunity to discuss it, testifying that at an executive
session held on July 20 2005, “we were given an update as to what it was, ’ with her even stating,
“I remember voicing my opinion that I thought it was wrong ”
{I 60
That the District Governing Board apparently took no formal vote on the June 21, 2005
agreement at the July 20, 2005 executive session is of no legal significance, since Article XVI,
section 1 of the bylaws permits the Chairperson to execute a contract in the absence of any action
formal vote taken in order to validate acts done at the meeting, unless so required by statute, the
articles of incorporation, or the bylaws,’ and
[t]he ratification or adoption of a contract by a
corporation through its board of directors may be implied,” including ‘ by conversation, without
formal votes
2 WILLIAM MEADE FLETCHER CYCLOPEDIA 0F CORPORATIONS § 418 (Perm Ed
1990) (collecting cases)‘ see also CDB Squ are Inc v Kroll 902 S W 2d 31 39 (Tex App I998)
(“The ratification or adoption of a contract by a corporation through its board of directors may be
implied
)
As such, the failure of the Board to formally vote on the June 21 2005 agreement did
not render the agreement invalid
on the contrary, the Board 5 failure to take action is precisely
what authorized Adams to sign the contract pursuant to her powers under Article XVI of the
bylaws
Therefore, we reverse Najawicz’s conviction on Count 21
b
Conn! 29 Automobile Allowance
‘] 61
Count 29 of the seventh amended information charged Najawicz with embezzlement by
authorizing and accepting monthly payments of $400 from an RLSH account as an ‘ automobile
allowance” that he had
fraudulently arranged with Rodney Miller, Sr without authority of law ”
(J A 1070 ) The record reflects that this automobile allowance for Najawicz had been authorized
by Miller in an August 24 2004 letter retroactive to July 15 2004
(J A 213 ) As explained
earlier in the context of the stipends and bonuses awarded to Najawicz, Miller, as Chief Executive
Officer, possessed the authority to set the compensation for Najawicz and other subordinate
employees
Because the entire basis of Count 29 is the erroneous premise that Miller lacked the
legal authority to determine Najawicz s compensation, we reverse Count 29 for the same reasons
we reverse Counts 22 and 23
c
Count 35 Payments to Miller Between May I
200’ and September 30 200”
fraudulently transferring approximately $1 5 million to Miller from RLSH accounts from May 17,
2007
through September 30 2007
Although not specifically identified
it appears that the
transfers referred to in the seventh amended information are transfers to Miller of ( 1) $966,456 45
on May 17 2007 (2) $1 1 1 759 62 on August 13 2007 as well as bi weekly payments 0f$6 153 84
effective the pay period ending August 18 2007, and monthly payments of $3,333 33 beginning
on September 1 2007 and (3) $789,660 on October 24 2007
Each transfer is addressed in turn
1
May 17, 2007 Transfer
' 63
The record reflects that on May 16, 2007, Adams signed a letter directing Najawicz to pay
all outstanding monies due to Miller pursuant to his 2005 contract
Although Adams did not
specify a specific amount in her May 16, 2007 letter, Miller directed Najawicz in a May 17, 2007
letter to transfer $966 456 45 to him, which he represented as the outstanding amount owed While
the People maintain that the 2005 agreement was unauthorized by law, the contract was in fact
authorized, for the reasons given earlier
Therefore, to determine if the People introduced
sufficient evidence to prove embezzlement, we must first ascertain whether this $966,456 45 was
in fact authorized by the 2005 agreement
1 64
Miller s May 17 2007 letter did not explain how he arrived at the $966 456 45 figure
However, the evidence introduced at trial established that it represented a $55,650 retention
incentive, a $83,475 annual incentive, a $13,250 cost of living increase, a $41,660 one time
retirement plan contribution for December 2005; a $22,260 retirement plan contribution for 2005,
a $23,373 retirement plan contribution for 2006, $20,384 61 representing the value of unused
vacation in 2005, $21,403 07 representing the value of unused vacation in 2006; a $30,000
contribution to his 403(b) plan for 2005 a $30 000 contribution to his 403(b) plan for 2006 and
$625,000 representing five years of annual $125 000 payments to a so called Rabbi Trust 6
1] 65
While it appears that many of these payments were in fact authorized by the 2005 contact,
several were not
Although the 2005 agreement provided Miller with the opportunity to earn an
annual incentive of up to 30% of annual base salary, the payment of the annual incentive was to
be determined by the Compensation Committee
(J A 17434 ) The record contains no evidence
that the Compensation Committee ever determined that Miller was entitled to receive any
incentive, let alone the full 30% incentive provided for in the agreement
And while Adams, as
Chair of the Board possessed the authority to act on the Board 3 behalf, her May 16 2007 letter
to Najawicz did not state that the Compensation Committee approved an incentive or that Miller
should receive the incentive provided for in the agreement, but only that Miller be paid “all
outstanding amounts due
’ (J A
1784 ) Consequently Miller was not authorized to receive the
$83,475 annual incentive
1] 66
Likewise, Miller was not
entitled
to receive $625,000 representing payments that
purportedly should have been made to the Rabbi Trust
The 2005 agreement provided for
[a]nnual contributions of $l25,000 00 to an Irrevocable Rabbi Trust in the name of Mr Miller
(with Miller s named beneficiaries) for the next five years
(J A 1757 ) However at the time
Najawicz made the May 17, 2007 transfer, Miller had only been employed under the 2005 contract
for two years Moreover, the agreement required that the contributions be made to the trust, rather
than to Miller directly
For similar reasons, Miller was not entitled to have the $60 000 in 403(b)
plan contributions deposited into his personal bank account, for the agreement expressly directed
6 A rabbi trust, so called because its tax treatment was first addressed in an IRS letter ruling on a
trust for the benefit ofa rabbi, is a trust created by a corporation or other institution for the benefit
of one or more of its executives (the rabbi, in the IRS’s original ruling)
Bank ofAmerica N A
that the contributions be made “to a 403(b)(7) individual retirement account in the name of Mr
Miller
(JA 1757)
ii
Transfers Based on August [3, 2007 Letter
1| 67
The record reflects that on August 13, 2007, Miller submitted a letter to Najawicz directing
him to transfer $1 I l 759 62 to him from the appropriate RLSH bank account, to transfer $6 153 84
to him bi weekly beginning with the conclusion of the August 18, 2007 pay period, and to transfer
$3,333 33 to him on a monthly basis beginning on September 1 2007
In that letter, Miller stated
that these payments were
[i]n accordance with the May 14, 2007 employment agreement”
between him and the RLSH
(J A 1786 ) While the People maintain that the 2007 agreement was
unauthorized by law, the contract was in fact authorized, for the reasons discussed earlier in this
opinion
Therefore, to determine whether the People introduced sufficient evidence to prove
embezzlement, this Court must first ascertain whether these transfers were authorized by the 2007
agreement
11 68
Miller did not indicate in the letter what any of these payments represented
However, the
uncontradicted evidence at trial established that monthly $3,333 33 payment represented a housing
allowance of $40 000 annually, payable in equal monthly installments,
J A
[782 while the
biweekly payments of $6,153 84 represented the portion of his $310 000 annual salary
$160,000
that was paid from RLSH accounts rather than processed through the Department of
Finance
Because this compensation was expressly provided for in the 2007 agreement, Miller
was authorized to receive these funds
11 69
As with the earlier request for $966,456 45, Miller did not explain in his letter what the
$111,759 62 payment represented
However, at trial, it was established that it represented a
$3,875 cost of living adjustment and $10 384 62 in retroactive pay
The signing bonus and cost
of living adjustment were expressly provided for in the 2007 agreement and $10 384 62 properly
represents retroactive payment of his increased salary under the agreement retroactive to its May
14, 2007, effective date
Consequently, these payments were authorized by law
1] 70
The same cannot be said however, for the $10,000 educational allowance and $10,000
spousal travel allowance
While the 2007 agreement provided for a $10,000 educational
allowance,
it also provided that the allowance was “[s]ubject to Compensation Committee
approval
(J A
1770)
Moreover, the 2007 agreement did not provide Miller with a $l0,000
spousal travel allowance, but instead stated that
Miller shall receive a spouse travel allowance of
M $|0 000 annually
(J A
1782 (emphasis added) )
Importantly
the 2007 agreement
expressly mandated that
Miller shall submit to Schneider Regional such vouchers or expense
statements that satisfactorily and reasonably evidence such expense in accordance with Schneider
Regional 5 travel and expense reimbursement policy ” (J A I770 ) Here, the record contains no
evidence
indicating
that the Compensation Committee approved
the $10,000 educational
allowance, or that Miller submitted vouchers or expense statements to support that he had already
incurred
the maximum
educational
and
spousal
travel
expenses
by
August
13,
2007
Consequently, these $20,000 payments were not authorized by law
iii
October 24, 2007 Transfer
1] 71
The record reflects that on October 24, 2007, Miller submitted a letter to Najawicz directing
him to transfer $789,660 to him from the appropriate RLSH bank account
[i]n accordance with
the May 14 2007 employment agreement
(J A 1787 ) As with the May [7 2007 and August
13 2007 letters
the October 24 2007 letter did not explain what the $789 660 represented
$30,000 contribution to his 403(b) plan, $93,000 in annual incentive pay‘ and a $41,660 retirement
plan contribution
11 72
The evidence, when viewed in the light most favorable to the People, established that none
of these payments were authorized by the 2007 agreement
Like the 2005 agreement, the 2007
agreement provided for ‘ [a]nnual contributions of $125,000 00 to an Irrevocable Rabbi Trust in
the name of Mr Miller (with Mr Miller’s named beneficiaries) for the next five years,
and for
‘ [a]nnual contributions of $30,000 to a 403(b)(7) individual retirement account in the name of Mr
Miller
(J A 1781 ) In addition to these provisions requiring that payments be made, respectively,
to the trust and to the retirement account rather than to Miller personally, at the time of the October
24 2007 letter, Miller had only been employed under the terms of the 2007 agreement for
approximately five months
Moreover, the 2007 agreement specified that Miller would receive
‘ [c]ontributions equal to $41,660 in December 2007
(J A
I781 (emphasis added )
Not only
had the obligation to pay the $41,660 not yet been triggered, but it would not trigger, since Miller
had already announced on September [9, 2007, that he would resign as Chief Executive Officer
effective November 3, 2007, to take a position at another hospital
And like the 2005 agreement,
the 2007 agreement did not make payment of his 30% annual incentive award a matter of right,
but only to be “determined by the Compensation Committee
’ (J A 1769 ) Not only did the record
lack any evidence that the Compensation Committee authorized an annual incentive award, but it
is also not clear how it even could have, given that Miller had only been employed under the 2007
agreement for five months at the time of the October 24 2007 letter
In fact, the 2007 agreement
expressly provided that “[n]o Incentive Compensation will be paid to Miller following the date of
a Voluntary Resignation other than Incentive Compensation earned but not paid
(J A 1774 )
iv
Fraudulent Intent
$1 73
It is not enough, however that the People prove that Najawicz disbursed monies to Miller
that Miller was not entitled to receive
Section 1091, by its own terms, requires that one
“fraudulently appropriate[]” property “with a fraudulent intent
’ Therefore, to sustain a conviction
for embezzlement, the People were also required to prove that Najawicz made these transfers with
the intent to defraud the RLSH
11 74
It is often extraordinarily rare to obtain direct evidence that an individual acted with
fraudulentintent See Redemption Holdings Inc v Gov (of the VI 65 VI 243 254 (VI 2016)
Thus, “the People are not required to submit direct evidence of fraudulent intent to sustain a
conviction,” but may rely on circumstantial evidence from which a jury could infer the requisite
intent
Todmann v People, 59 V I 926, 944 (V I 2013)
Such circumstantial evidence may come
by providing evidence consistent with commonly recognized badges of fraud
Redemption
Holdings 65 VI at 254 see also (mted States v
Voorhles 658 F 2d 710 715 (9th Cir 1981)
(determining intent in a criminal case by considering “the so called badges of fraud which may
be probative of the defendant 5 state of mind)
These badges of fraud include, but are not limited
to, considerations such as “suspicious timing,”
the general chronology of the events and
transactions under inquiry,” and
the
secrecy,
haste
or unusualness of the
transaction ”
Redemption Holdings 65 VI
at 254 (quoting In re 11varo ( orp
524 B R 536 556 (Bankr
S D N Y 2015))
1] 75
Here, the People failed to introduce sufficient evidence from which the jury could properly
infer that Najawicz acted with a fraudulent intent
The People emphasize the general chronology
of events Najawicz transferring large sums ofmoney to Miller after receiving a request from him,
of independent inquiry whatsoever
However, mere negligence or the failure to use reasonable
care is insufficient to establish that one acted with fraudulent intent See Florenzano v Olson, 387
N W 2d 168, 173 (Minn 1986)
While Najawicz failed in his duties as Chief Financial Officer in
approving these transfers to Miller without reviewing Miller s contracts or conducting any other
inquiry, ‘ [t]hese actions are just as likely to be due to incompetence and poor record keeping as to
fraudulent intent
In re Calm 561 B R 476 488 (Bankr N D
Ill 2016)
1] 76
In addition to this general chronology, the People point to the fact that Adams testified that
Najawicz had given her the May 16, 2007 letter to sign at a District Board meeting Had Najawicz
surreptitiously given Adams this letter and asked for her signature without any context, it certainly
could provide evidence of fraudulent intent
But that is not what occurred here
While Adams
testified that Najawicz gave her the letter to sign, she also testified that he presented her with the
letter only after the Board had discussed the issue of paying whatever monies it owed to Miller,
with Adams testifying that “the general consensus of the Board was we owed him, let’s pay him,”
and that Najawicz presented the letter to her
after the Board had authorized the payment to Mr
Miller
And while the May 16, 2007 letter did not specify a specific amount of monies owed,
Adams testified that the Board had not spoken about how much money Miller was owed, and that
it did not occur to her to ask for a specific figure
In other words, Najawicz submitting this letter
to Adams appears to have simply been Najawicz attempting to comply with the will ofthe District
Board
1] 77
Finally, the People note that on May 18
2007, Miller approved Najawicz 5 annual
incentive bonus of$26,070, which was ordinarily supposed to be due on August 1 As noted earlier,
suspicious timing may constitute circumstantial evidence of fraudulent intent, particularly with
Najawicz was not entitled to receive a $26,070 bonus under his employment agreement or that the
amount ofthe bonus was in Miller 5 discretion And while the bonus had not been due until August
1, the People had also introduced testimony that it had not been consistently paid on that date, with
Najawicz not receiving his bonus for the prior year until October 26, 2006
Perhaps most
significantly, at qmdpro qua by its very nature requires an exchange
that is, one party receives
something of value in exchange for doing or omitting some act that they would not have done
anyway See UnztedStates v Hawkins 777 F 3d 880 883 (7th Cir 2015) (citing Skilllng v Untied
States 561 U S 358 (2010)) As noted above the District Board had determined that Miller was
to be paid whatever funds were outstanding under his 2005 employment agreement, and thus
Najawicz would have been required to make some disbursement to Miller And while Najawicz
paid Miller an amount greater than he was entitled to receive, the People fail to explain how the
jury could infer that receipt of a bonus that Najawicz was already entitled to receive constituted
sufficient motivation for him to fraudulently transfer hundreds of thousands of dollars to Miller
Therefore, we reverse Najawicz’s conviction on Count 35
5
Certifying Officer Statute
1| 78
Counts 31 and 33 ofthe seventh amended information charged Najawicz with violating the
certifying officer accountability statute codified at title 33, section 3204 ofthe Virgin Islands Code
That statute reads, in its entirety, as follows
(a) The officer or employee certifying a voucher shall
(1) be held responsible for the existence and correctness of the facts recited
on the certificate or otherwise stated on the voucher or its supporting papers and for
the legality of the proposed payments under the appropriation or fund involved, and
(2) be required to give bond in favor of the Government of the Virgin
Islands pursuant to the provisions of chapter 31 of Title 3
(b) An officer or employee who certifies a voucher knowing that such certification
may result in an illegal, improper, or incorrect payment shall
illegal, improper, or incorrect payment and shall be suspended without pay for
thirty (30) days and
(2) for a second or subsequent offense, be fined an amount of the illegal,
improper, or incorrect payment and shall be imprisoned for at least thirty (30) days
but not more than one (1) year
(c) An officer or employee convicted under subsection (b)(2) of this section shall
be immediately discharged from his employment with the Government of the
United States Virgin Islands
(d) An officer or employee shall not be in violation of this section if
(I) the certification was based on official records and he did not know, and
by reasonable diligence and inquiry could not have ascertained the actual facts, or
(2) the certification was based upon and consistent with acts of the
Legislature, executive orders of the Governor, or in accordance with a written
opinion of the Attorney General
Thus, unlike the embezzlement statute, to obtain a conviction under section 3204, the People are
not required to prove fraudulent intent, but only that the certifying officer knew that “certification
may result in an illegal, improper, or incorrect payment ” 33 V I C § 3204(b) (emphasis added)
{I 79
In Count 31
the People charged Najawicz with violating section 3204 by
certify[ing]
vouchers knowing that such certifications may result in an illegal, improper, or incorrect payments
of ‘housing allowances
to Rodney Miller
Sr , in that [Najawicz] certified and approved an
excessive housing allowance payments, including an ‘advance’ of $45,500 00, as well as several
subsequent housing allowance quarterly payments following the advance , without regard to the
legality of correctness of said transaction, resulting in unlawfiJI payments to Miller in excess of
$60,000 00
(J A 1071 72 ) Count 33 charges Najawicz with identical conduct with respect to
his certification of vouchers for Miller 5 educational reimbursements, which was allegedly done
without any supporting documentation or substantiation and without any lawful authority
(J A
1072 ) Each charge is addressed in turn
a
Count 31 HousmgAllowance Payments to Miller
‘ 80
The People introduced sufficient evidence to sustain Najawicz’s conviction on Count 31
Section 3 of Miller 5 April
17, 2002 employment agreement provided
in addition to other
compensation, that he would receive temporary housing upon arrival in St Thomas for a period
not to exceed three months, and thereafter would “receive an annual housing allowance of$20 000
which shall be payable in monthly installments to commence upon the termination of the
temporary housing period
(J A 1709 ) Prior to October 1, 2004, Miller had received $29,999 97
in housing allowance payments under that agreement
T. 8i
On October I, 2004, Adams authorized a payment to Miller in
the amount of $45,000
from his housing allowance,
noting 0n the check request voucher that this was authorized
pursuant to section 3 of Miller s April 17, 2002 employment agreement
(J A I840 43 ) Najawicz
certified the voucher on October [3, 2004, and signed the check that would issue to Miller on
October 14, 2004 Because Miller 5 contract was for a three year tenn, he would have been entitled
to collect a combined total of $60,000 00 in housing advance payments over the term of the
contract
Yet the $45 000 00 advance when combined with the $29,999 97 in housing allowance
payments already received resulted in Miller receiving nearly $15,000 more in housing allowance
payments than he was entitled to under that agreement
‘ 82
Nevertheless, despite receiving this advance and already receiving more housing allowance
compensation than he was entitled to, Adams continued to authorize additional housing allowance
payments to Miller between November 18, 2004, and July 2|, 2005, for a combined amount of
$37,500 Najawicz certified each and every one of these vouchers and signed each of these checks
issued to Miller
As a result, Miller received a combined total of nearly $120,000 in housing
allowance payments over the life of the 2002 employment agreement, more than double the
$60,000 he had been entitled to receive
11 83
Najawicz does not dispute that he was a certifying officer for the RLSH, that he certified
these payments to Miller, or that Miller was not entitled to receive nearly $120,000 in housing
allowance payments when his three year contract only authorized $60,000
Nor does he allege
that any of the defenses provided for in section 3204(d) applied to this conduct
In fact, Najawicz
concedes in his own appellate brief that the overwhelming evidence at trial demonstrated that he
had never seen any of Miller 5 employment agreements and therefore
could not be expected to
police the contract
(Appellant 5 Br 24 )
Rather, Najawicz merely states
without citing to any
legal authority
that his conduct did not constitute a crime under section 3204 because
[t]he
record is devoid of facts that support the requirement that a voucher be submitted to a disbursing
officer within the Department of Finance ” (Appellant 8 Br 20 )
T, 84
It is not clear what precisely Najawicz is attempting to argue in making this statement To
the extent he is asserting that vouchers certified for payment from the separate accounts maintained
by the RLSH need not be submitted to the Department of Finance for approval and disbursement,
that is certainly correct, for the reasons explained earlier in the context of his convictions for
obtaining money by false pretenses But Count 31 does not charge Najawicz with failing to submit
the vouchers he certified to the Department of Finance
rather, it expressly charges him with
certifying those vouchers in the first place without making any attempt to determine whether the
payments he was certifying were illegal, improper, or incorrect
7 It is worth noting that the 2002 employment agreement had given the District Governing Board
the option to retain Miller for an additional two years after the expiration of his three year term
However, even if these optional two years were included, Miller still received approximately
$120 000 in housing allowances when he would only have been entitled to receive $100,000 over
1} 85
It also appears that Najawicz is attempting to argue that section 3204 only applies to
certifying officers within the Executive Branch because a related statute in the same chapter of the
Virgin Islands Code authorizes the Commissioner of Finance to designate employees in the
Department of Finance as disbursing officers
See 33 V I C
§ 3202
However, the Legislature
has decreed that “[t]he classification and organization of the titles, parts, chapters, subchapters,
and sections of this Code, and the headings thereto, are made for the purpose of convenient
reference and orderly arrangement, and no implication, inference, 0r presumption of a legislative
construction shall be drawn therefrom ”
l V I C
§ 44
Importantly, section 3202 grants the
Commissioner of Finance the authority to designate disbursing officers within the Department of
Finance, while section 3204 governs the conduct of certifying officers
Significantly, nothing in
section 3204 or any other provision of law even remotely gives the indication that the criminal
accountability provisions codified in section 3204(b) only extend to certifying officers employed
by the Department of Finance
Accordingly, we reject Najawicz s argument and affirm his
conviction on Count 31
b
Count 33 Educational Payments to Miller
1|86
Whether the People introduced sufficient evidence to sustain Najawicz’s conviction on
Count 33 represents a more difficult question
The record reflects that Miller received $78,772 in
educational payments between August 9, 2004, and October 1 1, 2007
While the People maintain
that all of these payments were unauthorized, Count 33 only charged Najawicz with certifying
vouchers between January 13, 2005, through October 11
2007, which in the aggregate would
represent $69 084 in payments
It is not surprising that the People did not charge Najawicz with
the payments made prior to January I3, 2005, in that his signature does not appear on those voucher
Miller between January [3, 2005 and October 1 l 2007, only three ofthose vouchers—ones issued
on January 13, 2005, July 24, 2006, and October 11, 2007
were certified by Najawicz
Since
section 3204 criminalizes the ‘ certification] [of] a voucher knowing that such cenification may
result in an illegal, improper, or incorrect payment, ’ 33 V I C
§ 3204(b), this Court may only
sustain a conviction on Count 33 if the People introduced sufficient evidence to support a finding
by the jury that Najawicz violated section 3204 when he certified one or more of those three
vouchers
1] 87
Upon review the evidence establishes that Najawicz violated section 3204 with respect to
all these vouchers
Miller’s initial 2002 employment agreement, which governed his employment
through May 13, 2005, provided that he
shall be entitled to administrative leave to attend two (2)
professional conferences each year, for which the Hospital shall pay all expenses, not exceeding
$2,500 per conference,” but did not provide for educational reimbursements
(J A
1709 ) The
January 13, 2005 voucher submitted by Miller and certified by Najawicz, however, states that it is
reimbursement for “tuition expenses,’ J A 1977, and testimony at trial established that Miller had
attended an academic course at the Medical University of South Carolina
1] 88
Unlike the 2002 employment agreement, Miller s 2005 and 2007 agreements provided for
educational reimbursements
However, the 2005 and 2007 agreements only provided that ‘ Miller
shall be entitled to receive an educational allowance of $10,000 annually,” and, even then, only
[s]ubject to Compensation Committee approval
(I A 1744; 1770 ) Nevertheless, the voucher
Najawicz certified on July 24, 2006, paid $10,069 to Miller as
‘Reimbursement for Tuition
Expenses ’
(J A 1989 ) Not only was this reimbursement itself for an amount greater than the
$l0,000 provided for in the 2005 agreement, but
it was in addition to an earlier tuition
voucher Najawicz certified on October I l, 2007, was for $ 10,055, an amount that again on its face
exceeded Miller 5 $10,000 annual educational allowance and was paid in addition to an earlier
$10,054 educational reimbursement made on February 28 2007
1| 89
As noted above, Najawicz does not dispute that he was a certifying officer for the RLSH,
that he certified these payments to Miller, or that Miller was not entitled to receive the educational
reimbursements he certified
Nor does he allege that any of the defenses provided for in section
3204(d) applied to this conduct
In fact Najawicz concedes in his own appellate brief that the
overwhelming evidence at trial demonstrated that he had never seen any of Miller 5 employment
agreements and therefore
could not be expected to police the contract
(Appellant 5 Br 24)
Accordingly, we affinn Najawicz’s conviction on Count 33
c
EfleCI ofPurported Board Ratification
1| 90
Although not directly asserted with respect to his convictions for Counts 31 and 33,
throughout his brief, Najawicz maintains that at a January 7, 2008 meeting, the District Board
purportedly passed8 a resolution that contained the following language
The Board hereby ratifies and approves
all past actions of the Chief
Executive Officer
in executing
all
past minimum value
contracts,
medical
equipment and supply contracts, and personal services contracts
(1 A 536 ) Najawicz maintains that this resolution served to ratify all the financial transactions at
8 The evidence introduced at trial reflects that whether the District Board actually adopted the
January 7, 2008 resolution remains in serious dispute
At trial, the parties elicited testimony that
the resolution had not been attached to the minutes of the January 7, 2008 meeting
as was the
practice of the District Board with respect to enacted resolutions
and the minutes themselves
contain no mention that such a resolution had been introduced or discussed, let alone passed
Moreover, the document itself is signed only by Adams, and does not appear to bear the Seal of
the Board ofwhich the Secretary is the custodian
(J A [248 ) We need not determine the validity
of the resolution, however, for as we explain below, the resolution, even if properly enacted, did
issue in this prosecution The People, however, argue in their appellate brief that this vote “was
vozd ab mmo because it is axiomatic that the Board could not ratify Appellants
illegal acts ”
(Appellee 3 Br 78 )
1191
We conclude that the District Board had the authority to retroactively ratify Miller’s
actions
It is well established that unauthorized acts by employees or agents of a corporation can
be retroactively ratified by its board and that such ratification has the same effect as if the act had
been originally authorized See e g , Yaeger v nguerre, 23 N W 2d 22, 23 (Minn 1946) Appel
v State ex rel Shutter Camel] 61 P 1015, 1019 (Wyo 1900)‘ see also RESTATEMENT (THIRD) OF
AGENCY § 4 01
Although the People are correct that illegal acts may not be ratified, the very
authorities the People cite in support reflect that the illegal act must be something other than the
act not being duly authorized
See e g McConmco v Third Nat [Bank m Nashville, 499 S W 2d
874, 886 (Tenn 1973) (“A corporation may ratify only unauthorized acts of its officer which are
within the scope of the corporate powers and which might have previously been authorized
However, it cannot ratify an act which it does not have the power to legally do
It is clear that it is
not within the corporate power to forge an endorsement
")
Because the District Board had
the authority to order the Chief Executive Officer to ‘execut[e] all past minimum value contracts,
medical equipment and supply contracts, and personal services contracts,” it certainly possessed
the authority to ratify them retroactively
1] 92
That the District Board possessed this authority, however, has no impact on Najawicz’s
convictions for violating the certifying officer statute As a threshold matter, the resolution, by its
own terms, only ratifies and approves actions ofthe ChiefExecutive Officer and makes no mention
of ratifying or approving any actions by the Chief Financial Officer or any other employee
But
bearing on whether he violated the certifying officer statute Unlike the embezzlement statute, to
obtain a conviction under section 3204, the People are not required to prove that an illegal,
improper, or incorrect payment occurred
only that the certifying officer knew that ‘certification
may result in an illegal, improper, or incorrect payment ” 33 V I C § 3204(b) (emphasis added)
As noted earlier, Najawicz concedes that he did not review Miller’s contracts before issuing
substantial payments pursuant to those contracts, even though as a certifying officer he was
“responsible for the existence and correctness of the facts recited on the certificate or otherwise
stated on the voucher or its supporting papers and for the legality of the proposed payments under
the appropriation or fund involved
33 V I C § 3204(a) Given this, ratification ofthe underlying
transactions
even if it did occur9—does not change the fact that Najawicz certified payments to
Miller that he knew or should have known “may result in an illegal, improper, or incorrect
payment,
33 V I C
§ 3204(b) due to his complete failure to determine whether Miller was
entitled to those funds
Accordingly, the January 7, 2008 District Board resolution has no effect
upon the validity of the convictions of Najawicz
6
Criminally Influenced and Corrupt Organizations Act
11 93
In Count 20 the People charged Najawicz with violating title 14, section 605(a) of the
Virgin Islands Code, the Criminally Influenced and Con‘upt Organizations Act
( CICO ’)
Pursuant to CICO, ‘[i]t is unlawful for any person employed by, or associated with, any enterprise
to conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern
of criminal activity
Gumbs v People 59 VI 784 788 (VI 2013) (quoting 14V I C §605(a))
9 As we explain in leler v People, 2022 VI 3, we conclude that the January 7, 2008 resolution
did not retroactively ratify Miller s unauthorized excess housing allowance or educational
CICO defines “criminal activity ’ as
engaging in, attempting to engage in, conspiring to engage in, or soliciting,
coercing, or intimidating another person to engage in the crimes, offenses,
violations or the prohibited conduct as variously described in the laws governing
this jurisdiction including any Federal criminal law, the violation of which is a
felony and, in addition, those crimes, offenses, violations or prohibited conduct as
found in the Virgin Islands Code as follows
(l6) Title 14, chapter 41
Virgin Islands Code, relating to fraud and false
statements,
(19) Title 14, chapter 55, Virgin Islands Code, relating to larceny and
embezzlement;
(38) Any conspiracy to commit any violation of the laws of this Territory
relating to the crimes specifically enumerated above
14 V I C
§ 604(e)
And CICO further defines a ‘pattem of criminal activity
as two or more
occasions of conduct (1) that (A) constitute criminal activity; (B) are related to the affairs of the
enterprise, and (C) are not isolated; and (2) where
at least one of the occasions of conduct
constituted a felony under the Virgin Islands Code
Gumbs, 59 V I at 788 (quoting 14 V I C
§ 6040))
1] 94
In this case, the seventh amended information identified the RLSH as the enterprise, and
Najawicz does not dispute that characterization
Rather, he maintains that the People failed to
introduce sufficient evidence to prove that he engaged in a pattern ofcriminal activity The seventh
amended information alleged that the following acts constituted the pattern of criminal activity
Najawicz engaged in
a Defendant having in control money for the use of RLSH secreted RLSH money
to himself making numerous wire transfers from the Scotia Bank RLSH account
over which he controlled, directly to his personal bank accounts, on the pretext of
employee compensation payments, salaries or so called “stipends” which were in
gross and made while circumventing the government employee paygoll process
without authority of law and not in the due and lawful execution of his trust to
b Defendant purposefully circumvented the government employee payroll process
and repeatedly made electronic transfers of money in gross payments of over $100
each, from the RLSH bank account to his own personal bank account and t0 the
personal bank accounts of Defendant Rodney Miller Sr , and/or Defendant Amos
Carty under the guise of compensation or so called “stipends ’, salaries or
‘ bonuses
, or other employment perks, without legal authority, without any
substantiation or regard to the legality or correctness of said payments, and contrary
to the due and lawfiJI execution of his trust to RLSH; or
0 Between August 3 2005 through May 24 2006 Defendant approved and made
four wire transfers of money from the RLSH hospital Scotia Bank account to the
personal account of Rodney Miller, Sr, each of which were gross lump sum
payments in excess of $100, totaling $409 788 46, under the false pretense of a
June 21, 2005 employment agreement
which did not exist or without any
supporting documentation justifying said payment of RLSH funds or without
regard to its legality and correctness, and contrary to the due and lawful execution
of his trust to RLSH; or
d Defendant fraudulently appropriated to Defendant Rodney Miller, Sr , in excess
of a hundred thousand dollars from RLSH bank accounts, by fraudulently making
numerous electronic transfers and disbursements of money from RLSH bank
accounts directly to Miller 5 personal accounts
and
fraudulently approving
vouchers and unauthorized payments
to Miller for housing allowances and
educational reimbursements without any substantiation or regard to the legality or
correctness of said payments and contrary to the due and lawfiJl execution of his
trust to RLSH or
6 Over a seven month period between May 16, 2007 and November 30, 2007,
Defendant paid to Rodney Miller, Sr , a total of over 1 5 million dollars, to which
he was not lawfully
entitled,
in several
wire
transfers, each
in excess of
$ 100,000 00, from the RLSH Bank of Nova Scotia account to Rodney Miller, St
5
personal bank account, on the false pretense of monies owed
without any
substantiation justification or regard as to its legality or accuracy, without authority
of law, without the knowledge approval or consent of the Board of Directors
(.1 A 1064 66 )
'1 95
Before proceeding to the merits, we note that it is impossible to determine what acts the
jury found constituted the pattern of criminal activity required under the CICO statute During
final jury instructions on the CICO charge, the Superior Court did not provide the jury with the
‘charge a predicate [CICO] offense by a generic description rather than giving thejury the elements
in full, even though fully setting forth the elements ‘is the best practice
Gumbs, 59 V I at 790
n 2 (quoting United States v Carrillo 229 F 3d 177 (2d Cir 2000))
But in this case the seventh
amended information never expressly stated which provisions of federal or Virgin Islands law
were violated, and the Superior Court did not even provide a generic description of the elements
of the predicate offenses
Rather the Superior Court simply read the language from the seventh
amended infomation nearly verbatim
This is problematic since many of the acts identified could
potentially violate more than one of the laws identified in the CICO statute
1| 96
More significant, however, is that we do not know which of the numerous acts set forth in
Count 36 the jury determined constituted a pattern of criminal activity
Although the Superior
Court stated in its preliminary jury instructions at the start of trial on October 9, 2019, that a pattern
of criminal activity is two or more occasions ofconduct that constitutes criminal activity under the
CICO statute, it failed to include this instruction in its final instructions to the jury on November
13 2019 But even if we were to make the highly unlikely assumption that the jury remembered
the definition of pattern of criminal activity more than a month later and applied it despite its
omission from the final jury instructions, the jury was not required to list in its verdict form which
of the conduct charged in the seventh amended information constituted criminal activity and
which
if any—did not
Because
the [information] was sufficiently broad and the evidence
sufficiently complex as to create a risk that differentjurors voted to convict on the basis ofdifferent
facts establishing different offenses,
the failure of the Superior Court to properly instruct the jury
and direct them to identify the underlying acts that constituted the pattern of criminal activity
creates an extraordinarily high likelihood that the jury did not issue a unanimous verdict on this
11 97
Nevertheless, it is not necessary for us to divine whether the jury unanimously agreed on
the pattern of criminal activity element because the core premise of most of the acts
that RLSH
funds were distributed without authority of law
is incorrect as a matter of law
While Counts
20(a) and (b) allege that Najawicz was without authority to obtain stipends or bonuses more than
his NOPA salary, such payments were authorized, for the reasons set forth above in the discussion
of Counts 22 and 23
Although Count 20(c) alleges that payments made to Miller were illegal
because the June 21, 2005 employment agreement did not exist, the evidence established that such
an agreement did in fact exist and was authorized by law, for the reasons set forth in the discussion
of Count 21
And while Count 20(d) and (e) alleges that payments to Miller were fraudulently
made without authority of law, for the reasons explained in the context of Count 35, the People
failed to prove that Najawicz acted with fraudulent intent in making these transfers Consequently,
the People failed to introduce sufficient evidence that Najawicz engaged in a pattern of criminal
activity in violation of CICO
Accordingly, we reverse his conviction on Count 20
7
Consgiracy
'l 98
In Count 2, the People charged Najawicz with conspiracy in violation of title 14, section
551(1) of the Virgin Islands Code
Specifically, Count 2 alleged that Najawicz conspired with
Miller and Carty
to commit crimes of embezzlement by conspiring to appropriate thousands of
dollars from RLSH bank accounts to their own use and benefit, without authority
of law or not in the due and lawful execution of their trust
To wit through
agreements, arrangements and authorizations made with one another, without
authority of law, Defendants circumvented the government employee payroll
process and disbursed thousands of dollars of RLSH money in gross payments to
themselves or to one another from RLSH bank accounts to their personal bank
accounts, apart from their authorized (NOPA) compensation, without authority of
law or without regard to their legality or correctness of payments, and contrary to
the due and lawful execution of their trust to RLSH
(J A 1053 )
1] 99
[T]he essential elements for a section 551 conspiracy are an agreement and an overt act
done in furtherance of the conspiracy
Franczs v People, 52 V I 381, 389 (V I 2009)
While
the People may use circumstantial evidence to satisfy these elements,
[t]his circumstantial
evidence must be sufficient to create a reasonable and logical inference that the activities of the
participants could not have been carried on except as the result of a preconceived scheme or
common understanding
Id (internal citations and quotation marks omitted)
And while not
binding on this Court, the Supreme Court of the United States, in construing a federal conspiracy
statute containing similar language, persuasively held that “[t]he overt act
may be that of only
a single one of the conspirators and need not be itself a crime ’ Braverman v United States, 317
U S 49, 52 (1942) Because the overt act is an element of the offense and need not be a criminal
act, we agree that an information which charges a violation of section 551 must specify both the
crime and the overt act, so as to meaningfully apprise the defendant of the factual predicate of the
offense
Bigby v Gov I 0fthe VI
125 F Supp 2d 709 712 13 716 17(DVI App Div 2000)
See also VI R CRIM P 3(a) (b)
‘ 100
As a threshold matter, we again note the extraordinarily high risk that the jury rendered a
non unanimous verdict on this charge The crime that is the subject of the conspiracy is only
referred
to
as “embezzlement
despite
the
three
defendants
having been charged with
embezzlement under different statutes And while Count 2 appears to identify “circumvent[ing]
the government employee payroll process
as the overt act, J A
1053, the theory of the case
presented by the People had been that this had occurred in different ways by the conduct of
different defendants over the course of approximately six years While it is certainly permissible
jury that
[y]our verdict must represent the collective judgment of the jury and in order to return
a verdict, each juror must agree,
and that “your verdict must be unanimous ” Such an instruction,
however, is insufficient in a case where the People present multiple theories of liability to support
the same charge, in that it gives no indication to the jury that they were required to unanimously
agree on the facts that support its verdict, as opposed to only unanimously agreeing only on the
verdict
United States v Holley 942 F 2d 916 926 (5th Cir 199l) And while the Superior Court
did instruct the jury, in the context of the conspiracy charge, that “[y]ou must unanimously agree
on the overt act that was committed,
it failed to extend that instruction to cover all the elements
of conspiracy and did not give such an instruction for any other charge
This makes it effectively
impossible for this Court to review the sufficiency of the evidence with respect to those elements
since there is no way to determine what the jury actually found See e g
United States v Caddy,
174 Fed Appx 123
125 (3d Cir 2006) United States i Sayan 968 F 2d 55 65 (D C Cir 1992)
United States v Sanderson 966 F 2d 184
I87 (6th Cir 1992) United States v Gilley 836 F 2d
1206 l211 (9th Cir 1988)
1] 101
Despite the inability of this Court to meaningfiilly review the sufficiency of the evidence
on those elements, we nevertheless reverse the conspiracy conviction As explained earlier, it is
not illegal for a RLSH employee to receive compensation that exceeds that listed on the NOPA
form maintained by the Executive Branch
Rather, Virgin Islands law permits employees of the
RLSH and other hospitals under the control of the Corporation to receive compensation
including compensation in the form of stipends and bonuses
from accounts maintained by the
Corporation, regardless of whether such compensation exceeds the salary listed on the NOPA
form
Thus, virtually all of the conduct alleged in Count 2 does not constitute a crime at all,
1] 102 We recognize, however, there were at least a few transactions which did constitute a crime
For the reasons explained earlier in this opinion, Miller was not entitled to receive many of the
payments that were made to him by Najawicz between May 17, 2007 and November 30, 2007
But as we explain in Carty v People, 2022 VI 2, there is no evidence that Carty was a part of that
conspiracy
This
is significant because the seventh amended information charged an all
encompassing large conspiracy involving all three defendants
Both this Court and the federal
courts have recognized that proof of smaller conspiracies involving some, but not all, of the same
actors is not sufficient to establish a single, large conspiracy between all the actors when the
defendants had been charged only with the latter and not the former
See Duggms v People, 56
VI 295 309 |0(VI 2012)‘ Kotteakom
UniledSIaIes 328 U S 750 765 (1946) UnitedStates
1
Perez
28 F 3d 318
345 (3d Cir 2002)
As the United States Supreme Court eloquently
explained,
Numbers are vitally important in trial, especially in criminal matters Guilt
with us remains individual and personal, even as respects conspiracies
It is not a
matter ofmass application There are times when ofnecessity, because ofthe nature
and scope of the particular federation, large numbers of persons taking part must
be tried together or perhaps not at all
at any rate as respects some When many
conspire, they invite mass trial by their conduct Even so, the proceedings are
exceptional to our tradition and call for use ofevery safeguard to individualize each
defendant in his relation to the mass Wholly different is it with those who join
together with only a few, though many others may be doing the same and though
some of them may line up with more than one group
Criminal they may be, but it is not the criminality of mass conspiracy They
do not invite mass trial by their conduct Nor does our system tolerate it That way
lies the drift toward totalitarian institutions
True, this may be inconvenient for
prosecution But our Government is not one of mere convenience or efficiency
It
too has a stake, with every citizen, in his being afforded our historic individual
protections, including those surrounding criminal trials About them we dare not
become careless or complacent when that fashion has become rampant over the
earth
Kotteakos 328 U S at 773
1| 103
But even if this Court were inclined to hold that evidence of a smaller conspiracy between
Miller and Najawicz could sustain a conspiracy conviction for Najawicz, we hold that the People
failed to meet their burden in proving such a conspiracy
The evidence the People rely on to
support the existence of such a conspiracy
is circumstantial, and largely identical
to the
circumstantial evidence it pointed to in its attempt to establish fraudulent intent that Najawicz
gave Adams the unsigned May 16, 2007 letter and asked her to sign it; that Miller drafted and
signed letters to Najawicz requesting payments; that Najawicz disbursed the funds; and that Miller
awarded Najawicz a bonus a month and a half before it was due
But while the People may use
circumstantial evidence to satisfy the elements of a conspiracy,
[t]his circumstantial evidence
must be sufficient to create a reasonable and logical inference that the activities of the participants
could not have been carried on except as the result of a preconceived scheme or common
understanding ’
Franczs, 52 V l at 389
For the same reasons that the above evidence is not
sufficient to establish fraudulent intent, it is not sufficient to prove the existence of a preconceived
scheme or common understanding
Therefore, we reverse Najawicz’s conviction on Count 2 '0
‘0 As noted earlier, the Superior Court dismissed several of Najawicz’s other convictions pursuant
to title [4, section 104 of the Virgin Islands Code
The People did not cross appeal from the
dismissal of those convictions, Najawicz does not challenge the sufficiency of the dismissed
convictions in his appellate brief and neither the People nor Najawicz discuss how this Court
should proceed in the event it reverses some, but not all, ofNajawicz s convictions
However, for
the reasons set forth in Carry v People, 2022 VI 2, issued of even date herewith, we decline to
reinstate any ofthe dismissed convictions, in that they suffer from the same infirmity as Najawicz’s
other convictions
We also note that Najawicz 5 co defendants Miller and Carty, raised other issues in their
respective appeals which we have held warrant a new trial in the case of Miller See Miller v
People, 2022 VI 3
However, due to our decision to reverse, on sufficiency of the evidence
grounds all ofNajawicz’s convictions other than those for Counts 31 and 33, we decline to remand
for a new trial under the rule announced in Boston v People, 56 V I 634, 644 45 (V I 2012)
because those errors have no bearing on these two convictions but are relevant only to convictions
C Sentence
1] 104
Although not raised by any of the parties we note that the Superior Court imposed an
illegal sentence on Counts 31 and 33, the only convictions we affirm
Counts 31 and 33 both
entailed violations of the certifying officer statute, which provides in pertinent part, that
(b) An officer or empioyee who certifies a voucher knowing that such certification
may result in an illegal, improper, or incorrect payment shall
(1) for the first offense, be fined an amount equal to the amount of the
illegal, improper, or incorrect payment and shall be suspended without pay for
thirty (30) days and
(2) for a second or subsequent offense be fined an amount of the illegal
improper, or incorrect payment and shall be imprisoned for at least thirty (30) days
but not more than one (1) year
(c) An officer or employee convicted under subsection (b)(2) of this section shall
be immediately discharged from his employment with the Govemment 0f the
United States Virgin Islands
33 V I C
§ 3404(b) (c)
In its January 9 2020 judgment and commitment the Superior Count
ordered
That Defendant Najawicz is sentenced to concurrent one year terms of
imprisonment on Counts Two, Twenty, Twenty one Twenty two, Twenty three,
Twenty nine, Thirty three, Thirty four, and Thirty five, is fined $50,000 on Count
Twenty, is suspended without pay on Count Thirty one, which the Court finds to
be moot, and is terminated on Count Thirty three, which the Court also finds to be
moot
(J A 963 ) However, at the December 19, 2020 sentencing hearing, the Superior Court announced
the following sentences
Regarding Count Thirty one
certification of illegal payments to Mr
Miller 5 housing allowance, I sentence Mr Najawicz to one year in the Bureau of
Corrections concurrent with Count Two
Count Thirty three related to that certification of an illegal payment related
to Mr Miller’s education expenses, I sentence Mr Najawicz to one year in the
Bureau of Corrections concurrent with the sentenced imposed in
Count Two
(J A 1495 96))
the one year sentence for Count 31 has been removed This is consistent with section 3404(b),
which provides for no incarcerative sentence for a
first offense
under that statute However, by
retaining a one year sentence for Count 33,
it appears the Superior Court has interpreted
Najawicz s conviction under Count 31 as a
first offense
under section 3404(b)(1) and his
conviction under Count 33 as a
second or subsequent offense” under section 3404(b)(2), even
though both convictions were obtained as part of the same proceeding
1] 106
The Superior Court’s treatment of Count 33 as a “second or subsequent offense
is not
supported by law
Because section 3404 does not define the phrase
second or subsequent
offense,” we construe it “according to the common and approved usage of the English language
1 V I C § 42
However, because section 3404 is a criminal statute, the mle of lenity requires that
any ambiguity be resolved in favor of the defendant
Gilbert v People, 52 V I 350 356 (V I
2009)
1| 107 We conclude that Najawicz’s conviction under Count 33 is not a
second or subsequent
offense, ’ but rather is also a “first offense’ like his conviction for Count 31
“[T]he uniform rule
has long been that the term ‘offense’ assumes a prior conviction
In re Torres, 861 A 2d 1055,
1059 (Vt 2004) see also Deal v Umted States 508 U S
129
135 (1993) ( It cannot legally be
known that an offense has been committed until there has been a conviction A second offense, as
used in the criminal statutes, is one that has been committed after conviction for a first offense
’)
(quoting Gonzalez v United States 224 F 2d 431 (lst Cir 1955))
Although the acts alleged in
Count 33 occurred after those charged in Count 31, they were charged in the same information,
tried as part of a single proceeding, and the convictions were entered as part of the same judgment
and commitment
Consequently, the Superior Court erred by sentencing Najawicz to one year of
(holding that sentence enhancement for committing a “second or subsequent offense
of
possession of child pornography did not apply to defendant with no prior convictions who was
convicted of eight separate counts of possessing child pornography as part of a single proceeding)
III CONCLUSION
1| 108
The People failed to introduce sufficient evidence to sustain Najawicz’s convictions for
obtaining money by
false pretenses, embezzlement of fiduciaries, violation of CICO, 0r
conspiracy However, the People introduced sufficient evidence to sustain his convictions under
the certifying officer statute
Accordingly, we reverse Najawicz s convictions for Counts 2, 20,
21, 22, 23, 29, 34, and 35, but affinn his convictions on Counts 31 and 33
However, because the
Superior Court illegally sentenced Najawicz to one year of incarceration on Count 33, we vacate
that portion of his sentence and remand the case for resentencing in a manner consistent with the
certifying officer statute
Dated this 24th day of February 2022
BY THE COURT
/s/ Rhys S Hodge
RHYS S HODGE
Chief Justice
ATTEST
VERONICA J HANDY ESQ
Clerk of the C
1'
By
Clerk
maam;