Lydia Magras v. GOVERNMENT OF THE VIRGIN ISLANDS On Appeal from the District Court of the Virgin…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-4531
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LYDIA MAGRAS,
Appellant
v.
GOVERNMENT OF THE VIRGIN ISLANDS
___________
On Appeal from the District Court
of the Virgin Islands, Appellate Division
(D.C. Crim. App. No. 2000-583)
District Judges: The Honorable Raymond L. Finch; the Honorable Thomas K. Moore;
and the Honorable Edgar D. Ross, Territorial Court Judge, sitting by designation
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Argued, Wednesday, May 15, 2002
Before: AMBRO and FUENTES, Circuit Judges, and GARTH, Senior Circuit Judge
(Opinion Filed: June 7, 2002)
IVER A. STRIDIRON
Attorney General
ELLIOTT McKIVER DAVIS
Solicitor General
MAUREEN P. CORMIER (argued)
Assistant Attorney General
Department of Justice
48B-50C Kronsprindsens Gade
GERS Building, 2nd Floor
St. Thomas, USVI 00802
Counsel for Appellee
TRESTON E. MOORE, ESQ. (argued)
CHARLES S. RUSSELL, JR. ESQ.
MOORE, DODSON & RUSSELL, P.C.
No. 14a Norre Gade
P.O. Box 310
St. Thomas, VI 00804
Counsel for Appellant
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OPINION OF THE COURT
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FUENTES, Circuit Judge:
Lydia Magras appeals her conviction in the Territorial Court on charges of
compounding the crime of embezzlement. Magras claims that the relevant Virgin
Islands’ statute, 14 V.I.C. 521(a), is unconstitutional, both on its face and as applied to

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her by the Territorial Court. Because we agree with the conclusions of the Territorial
Court, as well as the conclusions of the District Court on Magras’ prior appeal, we will
affirm.
I
Lydia Magras was the co-owner and co-founder of Bon Voyage Travel Agency,
Inc. in Frenchtown, St. Thomas, along with Evelyn Shoemaker. In 1996, Magras bought
out Shoemaker’s share of the business, and became the sole shareholder of the
corporation. Later that same year, Magras took on a new partner, her cousin Lorraine
Quetel. At that time, Quetel was employed full-time as a bookkeeper at Little
Switzerland, Inc. and was authorized to write checks for limited business-related
purposes.
On August 12, 1996, Quetel paid Magras the first installment of the $170,000 due
under their Partnership Agreement, with a $25,000 check drawn on a little-used deposit
account of Little Switzerland. Magras endorsed this check and deposited it in Bon
Voyage’s account at Banco Popular. This would be the first of twenty-eight alleged acts
of embezzlement, between August 14, 1996 and April 17, 1997, involving the same bank
accounts and the same sequence of events (including Magras’ individual endorsement of
many of the checks). The total amount involved was approximately $1.7 million. See
Gov’t’s Br. At 5-6 (individually listing the dates, check numbers and amounts of the
twenty checks endorsed by Magras and deposited in the Bon Voyage account).
On February 4, 1998, Quetel and Magras were arrested, and each was
subsequently charged with one count of violating the Virgin Islands’ Criminally
Influenced and Corrupt Organizations Act ("CICO" a local "RICO" type statute), 14
V.I.C. 600, et. seq., along with 28 counts of embezzlement against Quetel, and twenty
counts of aiding and abetting embezzlement against Magras, all pursuant to 14 V.I.C.
1093 & 1094(a)(2). However, on May 13, 1998, Quetel pled guilty to the reduced
charge of one count of embezzlement. At the same time, the Territorial Court agreed to
grant the Government’s motion to dismiss the initial charges against Magras without
prejudice. The Government subsequently filed separate charges against Magras,
including 2 counts alleging CICO violations, 20 counts of compounding the crime of
embezzlement, and five counts of embezzlement and forgery relating to the travel
agency’s business relationship with the airline industry’s Agent Reporting Plan.
On May 27, 2000, Magras, in an agreement with the Government, pled nolo
contedere to a single count ["Count III"] of compounding the crime of embezzlement, 14
V.I.C. 521(a), based solely upon the initial $25,000 check. That count alleged that
Magras had "knowledge of the actual commission of a crime of embezzlement, and
[took] the money of another upon an express or implied agreement to compound or
conceal said crime." App at 239. Specifically, Count III stated that Lorraine Quetel was a
bookkeeper at Little Switzerland, with care and control over certain Little Switzerland
property. Id. It further alleged that Quetel "fraudulently appropriated [the property of
Little Switzerland] to her own use" by writing a check for $25,000 from that account to
Magras’ company, Bon Voyage Travel. Count III also alleged that the money was
deposited into Bon Voyage Travel’s bank account with Magras’ knowledge and consent
in order to keep and conceal those funds, and that Magras, as an authorized signatory of
that account, had free access to those funds for her own purposes. Finally, it alleged that
Magras did in fact take some of those funds for agreeing to keep and conceal them, all in
violation of 14 V.I.C. 521(a)(2).
Magras received a sentence of 33 months of incarceration. Her plea agreement
explicitly preserved only Magras’ right to appeal the constitutionality of the
"compounding-a-crime" statute at 14 V.I.C. 521(a). Magras filed a timely appeal
with the Appellate Division of the District Court on this issue. In an order and opinion
dated December 21st, 2001, the District Court concluded that the statute is
constitutional, both on its face, and as applied to Magras. This appeal followed.
II
This Court has jurisdiction over appeals from all final decisions of the District
Court on appeal from the Territorial Court. 48 U.S.C. 1613. We exercise plenary
review over the District Court’s determination as to the constitutionality of a

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challenged statute. Gov’t of the Virgin Islands v. Steven 134 F.3d 526 (3d Cir. 1998).
III
14 V.I.C. 521(a) of the Virgin Islands Code states, in relevant part:
Whoever, having knowledge of the actual commission of a
crime, takes money or property of another or any gratuity or reward,
or an engagement or promise therefor, upon any agreement or
understanding, express or implied, to compound or conceal such
crime, or a violation of this title or other law, or to abstain from,
discontinue, or delay, a prosecution therefor, or to withhold any
evidence thereof, except in a case provided for by law in which the
crime may be compromised by leave of court, shall be imprisoned
not more than-- . . . (2) three years, where the agreement or
understanding relates to any other felony; . . ..
The charge of "compounding a crime" has been described as the acceptance of
anything of value under an unlawful agreement not to prosecute a known offender, to
conceal a crime, or to handicap the prosecution of a case. LaFave & Scott, Substantive
Criminal Law 6.9.
Magras’ plea of nolo contendere to Court III of the government’s information is
tantamount to an admission of the essential elements of the offense. See Lott v. United
States, 367 U.S. 421, 426 (1961). Count III alleged that on August 12, 1996, Magras
had actual knowledge of a crime of embezzlement and did take money upon an
express or implied agreement to compound or conceal the crime when she knowingly
consented to the deposit of a check for $25,000 fraudulently drawn on a Little
Switzerland account by Quetel and deposited in a Bon Voyage account, and when she
took some of those funds for agreeing to keep the funds and conceal the crime.
Therefore, for the purposes of this appeal, we must assume that the facts alleged in
Count III are already proven and only the legality of the statute is at issue.
On appeal, Magras claims that the Virgin Islands’ compounding crime statute is
unconstitutional both on its face and as it was applied to her by the Territorial Court.
Specifically, Magras argues that the law is constitutionally overbroad and therefore
infringes upon her First Amendment right of association, Fourth Amendment right of
privacy, and Fifth Amendment right not to incriminate herself. Additionally, she
argues that 14 V.I.C. 521(a) is unconstitutionally vague because it fails to adequately
warn the public of proscribed conduct and that it provides no safeguards against
arbitrary and discriminatory enforcement in violation of the Due Process Clause.
After a careful and thorough review of the record and the arguments presented
on appeal, we find no basis for disturbing the rulings of the Appellate Division of the
District Court. Therefore, we affirm the judgment of that Court substantially for the
reasons stated in its written opinion. Above all, we agree with the Appellate Division
that the "compounding crime" statute, 14 V.I.C. 521(a), is not unconstitutional, either
facially or as applied to Magras, and that the statute is not an anachronism or "dead-
letter" law requiring judicial nullification.
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TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
By the Court,

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/s/ Julio M. Fuentes
Circuit Judg

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