Government of the Virgin Islands v. Selvin Hodge

1
PRECEDENTIAL
IN THE UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
NO. 02-1136
GOVERNMENT OF THE VIRGIN
ISLANDS
v.
SELVIN HODGE,
Appellant
______________________
NO. 02-1137
GOVERNMENT OF THE VIRGIN
ISLANDS
v.
OTTICE BRYAN,
Appellant
______________________
NO. 02-1221
GOVERNMENT OF THE VIRGIN
ISLANDS
v.
KIRSTEN GREENAWAY,
Appellant
_______________________
NO. 02-1222
GOVERNMENT OF THE VIRGIN
ISLANDS
v.
ELADIO CAMACHO,
Appellant
_________________________________
On Appeal From The District Court Of
The Virgin Islands, Appellate Division
(D.C. Nos. 01-cr-00256-2, 01-cr-00256-
1, 01-cr-00256-4, 01-cr-00256-3)
Hon. Raymond L. Finch, Chief Judge
Hon. Thomas K. Moore, District Judge
Hon. Darryl Dean Donohue,
Territorial Judge
_________________________________
Argued December 8, 2003
Before: NYGAARD, BECKER, and
STAPLETON, Circuit Judges.
(Filed February 26, 2004)
HAROLD W.L. WILLOCKS
DEBRA SMITH-WATLINGTON
(Argued)
LESLIE L. PAYTON
Territorial Public Defender
P.O. Box 6040
St. Thomas, USVI 00804
Attorneys for Appellant Selvin Hodge

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GEORGE H. HODGE, JR.
P.O. Box 803
St. Thomas, USVI 00804
Attorney for Appellant Ottice Bryan
BRUCE STREIBICH
Law Offices of Bruce W. Steibich
No. 21A Berge Gade
P.O. Box 302009-VDS
St. Thomas, USVI 00803-2009
Attorney for Appellant Kirsten
Greenaway
STEPHEN A. BRUSCH (Argued)
The Brusch Law Firm
28-29 Norre Gade, 2nd Floor
P.O. Box 988
St. Thomas, USVI 00804
Attorney for Appellant Eladio Camacho
IVER A. STRIDIRON
ELLIOTT M. DAVIS
DOUGLAS J. JUERGENS (Argued)
Department of Justice
48B-50C Kronprindsens Gade
GERS Building, 2nd Floor
St. Thomast, USVI 00802
Attorneys for Appellee, Government of
the Virgin Islands
______________________
OPINION
______________________
BECKER, Circuit Judge
This is an appeal by four
codefendants, Selvin Hodge, Ottice Bryan,
Kirsten Greenaway, and Eladio Camacho,
of an order of the District Court of the
Virgin Islands, Appellate Division in an
interlocutory appeal brought by the
Government of the Virgin Islands from the
Territorial Court of the Virgin Islands.
Seeking reversal, pursuant to 4 V.I. Code
§ 39(a)(1), the Government sought review
of the Territorial Court’s pretrial order
redacting the confessions that the
Government planned to use against the
defendants. The Appellate Division held
that the Territorial Court had erred in
redacting the confessions more stringently
than required by the Supreme Court’s
holdings in Bruton v. United States, 391
U.S. 123 (1968), Richardson v. Marsh,
481 U.S. 200 (1987), and Gray v.
Maryland, 523 U.S. 185 (1998).
Accordingly, the Appellate Division
vacated the Territorial Court’s order and
remanded for that Court to reconsider the
redactions in the first instance.
Having lost before the Appellate
Division, the defendants seek review in
this Court, arguing that the Appellate
Division either (1) lacked jurisdiction over
the Government’s interlocutory appeal
(and hence that the Territorial Court’s
order should stand for now), or (2) erred
on the merits in vacating the Territorial
Court’s order. This being an interlocutory
appeal from an order entered in an
interlocutory appeal, the threshold issue is
our own appellate jurisdiction. W e
conclude that we have appellate
jurisdiction over the Appellate Division’s

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determination of its own jurisdiction under
the collateral order doctrine. We also
conclude that we lack appellate
jurisdiction to review the merits of the
Appellate Division’s ruling. Most notably,
we decide that a certification by the
Government that the Territorial Court’s
grant of a pretrial suppression motion
deprives the Government of “substantial
proof of the charge pending against the
defendant” satisfies the requirements of 4
V.I. Code § 39(a)(1), without a separate
substantiality determination by the court.
Accordingly, in this case we hold that the
Appellate Division had jurisdiction under
4 V.I. Code § 39(a)(1) to hear the
Gov ernmen t’s interlocutory appeal,
dismiss the appeals in all other respects,
and remand to the Territorial Court for
further proceedings in accordance with the
Appellate Division’s opinion.
I. Procedural History
A. The Virgin Islands Court
System
We have recently described the
structure of the court system in the Virgin
Islands in some detail, see Gov’t of V.I. v.
Rivera, 333 F.3d 143, 145-46 (3d Cir.
2003), cert. denied, 72 U.S.L.W. 3373
(U.S. Jan. 26, 2004) (No. 03-736), and
need not recount it here, though some
details bear repeating. There are two trial
courts: The Territorial Court is comparable
to a state court of general jurisdiction, see
4 V.I. Code § 76, while the District Court
of the Virgin Islands has “the jurisdiction
of a District Court of the United States,”
48 U.S.C. § 1612(a). Appeals from the
District Court come to this Court under the
familiar provisions of 28 U.S.C. §§ 1291-
1292 and other special-purpose statutes.
Until the Virgin Islands establishes a local
intermediate appellate tribunal, appeals
from the Territorial Court go to a three-
judge panel known as the District Court of
the Virgin Islands, Appellate Division (the
“Appellate Division”).1 See 48 U.S.C. §
1613a(a). Though established by federal
law, the Appellate Division exercises
“such appellate jurisdiction over the courts
of the Virgin Islands established by local
law [i.e., the Territorial Court] to the
extent now or hereafter prescribed by local
law.” Id. In other words, the Virgin
Islands Legislature decides (subject to
some reservations in 48 U.S.C. § 1613a(a))
who can appeal to the Appellate Division,
and when they can appeal. At issue in this
case is a provision regarding interlocutory
appeals by the Government of certain
pretrial orders in criminal cases, 4 V.I.
Code § 39(a)(1). Appeals from decisions
of the Appellate Division may be taken to
this Court under 48 U.S.C. § 1613a(c).
B. The Proceedings in the
Territorial Court and Before
the Appellate Division
In November 1999, Duvalier
Basquin was lured to a lonely road in the
Bolongo Bay area of St. Thomas. There,
he was robbed and murdered. Following
1The three-judge panel is composed of
the two Judges of the District Court of
the Virgin Islands, and a judge of the
Territorial Court designated by the Chief
Judge of the District Court. See 48
U.S.C. § 1613a(b).

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an investigation by the Virgin Islands
Police, the Government of the Virgin
Islands (the “Government”) charged
Selvin Hodge, Ottice Bryan, Kirsten
Greenaway, and Eladio Camacho
(collectively, the “defendants”) with
robbery, felony murder, and conspiracy
to commit murder. During the
investigation, Hodge and Camacho gave
statements inculpating themselves and
the other defendants in Basquin’s
murder. Greenaway gave a statement
exculpating herself, but potentially
inculpating the other defendants. Bryan
gave no statement.
The Government sought to use
these statements at trial. However, since
the Government proposed to try the
defendants jointly, and none of the
defendants who offered statements would
testify, the statements would have to be
redacted—or even rewritten—to preserve
the defendants’ Sixth Amendment
Confrontation Clause rights. See Bruton
v. United States, 391 U.S. 123 (1968),
Richardson v. Marsh, 481 U.S. 200
(1987), and Gray v. Maryland, 523 U.S.
185 (1998).2 At a pretrial hearing before
the Territorial Court, the Government
offered proposed redactions of the
statements, but after lengthy argument,
the Territorial Court concluded that the
Government’s proposal did not satisfy
Bruton and its progeny. Ruling from the
bench, the Territorial Court described the
further redactions that would be required
to admit the confessions.3
Title 4, section 39(a)(1) of the
Virgin Islands Code provides:
The United States or the
Government of the Virgin
Islands may appeal an
order, entered before the
trial of a person charged
with a criminal offense
under the laws of the
Virgin Islands, which
directs the return of seized
property, suppresses
evidence, or otherwise
denies the prosecutor the
use of evidence at trial, if
the United States Attorney
or the Attorney General
conducting the prosecution
for such violation certifies
to the Judge who granted
2The issue in cases raising a Bruton
issue is that the prosecution would like to
introduce confessions by nontestifying
defendants in joint trials. While such
statements may of course be admitted
against the defendants who made them,
admitting such statements in a joint trial
would deprive any codefendants
implicated in those statements of their
right under the Confrontation Clause to
cross-examine witnesses against
them—in this situation, the nontestifying
defendant who made the confession.
3In its opinion, the Appellate Division
summarized the Territorial Court’s order
from the bench as requiring “that any
sentences [in the confessions] containing
direct references to the defendants,
nicknames, physical descriptions, and . . .
substituted pronouns be omitted.”

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such motion that the appeal
is not taken for purpose of
delay and the evidence is a
substantial proof of the
charge pending against the
defendant.
The Government, relying on 4
V.I. Code § 39(a)(1), noticed its appeal
to the Appellate Division and on the
same day provided the certification that
the statute requires. On appeal, the
Appellate Division opined that the
Government’s proposed redaction was
insufficient to protect the defendants’
Confrontation Clause rights, but
concluded that the Territorial Court had
directed more redaction than necessary.
It offered some illustrations of how, on
remand, the Territorial Court could solve
the “Goldilocks problem” of crafting
altered confessions that were not too
lightly redacted, not too heavily redacted,
but just right.
The defendants were disappointed
in the outcome before the Appellate
Division; they would have much
preferred the redactions ordered by the
Territorial Court.4 They appealed to this
Court, arguing that either the Appellate
Division did not have jurisdiction under
4 V.I. Code § 39(a)(1) to review the
Territorial Court’s order, or else that the
Appellate Division erred on the merits in
holding that the Territorial Court went
further than required by Bruton and its
progeny. Under the former disposition,
we would simply reinstate the Territorial
Court’s order. Under the latter
disposition, we would confront the merits
of the defendants’ Bruton argument.
II. This Court’s Appellate Jurisdiction
At the threshold, we must
examine whether we have appellate
jurisdiction over one, both, or neither of
the questions that the defendants present.
See Gov’t of V.I. v. Marsham, 293 F.3d
114, 116 (3d Cir. 2002) (quoting
Collinsgru v. Palmyra Bd. of Educ., 161
F.3d 225, 229 (3d Cir. 1998) (“we have
an independent obligation to examine our
jurisdiction to hear this appeal.”)). Three
of the four defendants invoke this
Court’s jurisdiction under 28 U.S.C. §
1291. Although some of our cases are
imprecise about the statutory source of
our jurisdiction over the Appellate
Division, we take this opportunity to
clarify that, as a technical matter, it is 48
U.S.C. § 1613a(c), and not 28 U.S.C. §
1291, that confers jurisdiction on this
Court over appeals from the Appellate
Division. However, the distinction is
only technical—our cases have
uniformly held that 48 U.S.C. § 1613a(c)
has the same requirements for
appealability as 28 U.S.C. § 1291. See,
e.g., Rivera, 333 F.3d at 147; Ortiz v.
4It appears that the Territorial Court’s
order would have eviscerated the
confessions to the point that they might
have lost all value to the prosecution.
We observe this only to emphasize the
high stakes of this litigation; because of
our holding regarding our own appellate
jurisdiction, we of course express no
view as to the correctness of the
Territorial Court’s or Appellate
Division’s Bruton rulings.

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Dodge, 126 F.3d 545, 547 (3d Cir. 1997).
Turning to the substance of our
appellate jurisdiction, we consider
whether we have jurisdiction over some
or all of this case as a “final decision” of
the Appellate Division within the
meaning of 48 U.S.C. § 1613a(c). W e
conclude that we do not in the usual
sense. We then consider whether we
have appellate jurisdiction over some or
all of this case under the collateral order
doctrine. We conclude that we do have
jurisdiction under the collateral order
doctrine to review the Appellate
Division’s determination of its own
jurisdiction.
A. Not a Final Decision
We are the second appellate court
to address this case. Nonetheless— to
reiterate the point made above about the
parallel construction of 48 U.S.C. §
1613a(c) and 28 U.S.C. § 1291—“with
regard to the question of finality, we
have treated appeals from the Appellate
Division . . . no differently than appeals
taken from any other federal district
court.” Ortiz, 126 F.3d at 548 (citing as
examples Gov’t of V.I. v. Blake, 118 F.3d
972 (3d Cir. 1997); In re A.M., 34 F.3d
153 (3d Cir. 1994)).
The key question is whether the
vacate-and-remand order of the
Appellate Division was a final decision
under 48 U.S.C. § 1613a(c). It was not a
“final decision” in the most common
sense of the term—for two reasons.
First, it was a remand order, and we have
explained in a similar context that
remand orders are not final under §
1613a(c). In re Alison, 837 F.2d 619 (3d
Cir. 1988), considered our appellate
jurisdiction over an order of the
Appellate Division reversing the
Territorial Court’s grant of a Fed. R. Civ.
P. 12(b)(6) motion to dismiss. Since the
Appellate Division had reversed, it
remanded the case to the Territorial
Court for further proceedings. W e
concluded that such a remand was not a
final decision under § 1613a(c). Remand
orders are not generally appealable
because they are not final decisions
within the meaning of 28 U.S.C. § 1291
and 48 U.S.C. § 1613a(c). W e recently
reiterated that “[a] final decision ‘ends
the litigation on the merits and leaves
nothing . . . to do but execute the
judgment.’” Rivera, 333 F.3d at 150
(alteration in original) (quoting Catlin v.
United States, 324 U.S. 229, 233 (1945)).
The remand in Alison left more to do
than mere execution of the judgment, and
thus the remand order was not
appealable.
A second, independent reason
leads us to conclude that the Appellate
Division’s order was not a final decision:
The first appeal (i.e., the appeal to the
Appellate Division) was interlocutory,
but, as we explain in Part III below, was
nonetheless proper. The subsequent
appeal to this Court asks us, in effect, to
(re)consider an interlocutory order of a
trial court. But, in view of the finality
policy of 28 U.S.C. § 1291 and 48 U.S.C.
§ 1613a(c), this is something which we
do not generally engage in (absent

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specific statutory authorization).5 Such
statutory authorization comes from
Congress. See U.S. Const. Art III. § 1
(“The judicial Power of the United
States, shall be vested in . . . such inferior
Courts as the Congress may from time to
time ordain and establish.”). If we were
to blithely take jurisdiction over appeals
of decisions that the Appellate Division
rendered on interlocutory appeal, we
would in practice be allowing our
jurisdiction to expand based on the
Virgin Islands Legislature’s exercise of
its authority, under 48 U.S.C. §1613a(a),
to determine the appellate jurisdiction of
the Appellate Division. Of course, the
scheme in § 1613a means that, for a
Territorial Court case to appear on our
docket on appeal, it is necessary that the
Virgin Islands Legislature confer
intermediate appellate jurisdiction on the
Appellate Division; but it does not follow
that such a jurisdictional statute is
sufficient to confer jurisdiction, in turn,
on this Court. Hence we decline to
conclude that in enacting § 1613a
Congress intended to cede to the Virgin
Islands Legislature such control over this
Court’s jurisdiction.
Thus we hold that the Appellate
Division’s decision is not a “final
decision” in the most common sense
under 48 U.S.C. § 1613a(c), and
therefore this Court does not have
appellate jurisdiction in the normal sense.
We next consider whether this Court has
jurisdiction under the collateral order
doctrine.
B. Collateral Order Doctrine
This Court’s recent definitive
treatment of the collateral order doctrine
is In re Ford Motor Co., 110 F.3d 954
(3d Cir. 1997). There we explained:
[T]he collateral order
doctrine, first enunciated
by the Supreme Court in
Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541
(1949), provides a narrow
exception to the general
rule permitting appellate
review only of final orders.
An appeal of a nonfinal
order will lie if (1) the
order from which the
appellant appeals
conclusively determines
the disputed question; (2)
the order resolves an
important issue that is
completely separate from
the merits of the dispute;
and (3) the order is
effectively unreviewable
on appeal from a final
judgment. See
Rhone-Poulenc Rorer Inc.
v. Home Indem. Co., 32
F.3d 851, 860 (3d Cir.
1994).
5One such statute allowing for
interlocutory appeal to this court is 18
U.S.C. § 3731, which is comparable to
the interlocutory appeal statute at issue in
this case, 4 V.I. Code § 39(a)(1). Both
allow, in a proper case, the prosecution
to immediately appeal a pretrial order
suppressing evidence.

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Id. at 958. As the Cohen Court
explained, 28 U.S.C. § 1291 has been
given a “practical rather than a technical
construction.” 337 U.S. at 546. To this
end, as a doctrinal matter, orders that
meet the three prongs described above
are deemed to be “final decisions” within
the meaning of the statute.
Ford Motor Co. paid special
attention to the question of what makes
an issue “important” under the second
prong. We described the task as one of
“compar[ing] the apple of the desire to
avoid piecemeal litigation to the orange
of, for example, federalism.” Ford
Motor Co., 110 F.3d at 960. In cases
where the Supreme Court has blessed
interlocutory appeals, we observed, it
was because “the imperative of
preventing impairment of some
institutionally significant status or
relationship” made “the danger of
denying justice by reason of delay in
appellate adjudication outweigh[] the
inefficiencies flowing from interlocutory
appeal.” Id.
We will apply the doctrine
separately to both of the questions that
the defendants urge us to consider: (1)
the merits of the Appellate Division’s
decision, and (2) the Appellate
Division’s determination of its own
jurisdiction.
1. Appellate Jurisdiction to
Review The Merits of the Appellate
Division’s Decision
As to the first prong of the
collateral order doctrine, the Appellate
Division’s order did not conclusively
resolve much of anything. To be sure, it
established some guideposts for “too
much” and “too little” redaction, but at
bottom, it remanded the issue to the
Territorial Court to settle on the exact
redaction to use.
On the second prong, the
redaction question is clearly separable
from the merits, and this favors
appealability. The question about the
redactions goes to how much identifying
information can be contained in a
nontestifying codefendant’s statement
and still preserve the other defendants’
Confrontation Clause rights. This is an
exercise in applied constitutional law, as
it were, and it does not implicate the
merits of whether some or all of the
defendants did or did not participate in
the robbery-murder of the victim. As for
the importance of the question, there are
mixed signals. On the one hand, the
Confrontation Clause articulates a
fundamental constitutional right, and one
might assume that such rights cry out
most strongly for vindication on
interlocutory appeal. Cf., e.g., P.R.
Aqueduct & Sewer Auth. v. Metcalf &
Eddy, Inc., 506 U.S. 139, 145 (1993)
(holding that determination of sovereign
immunity was a proper subject for
interlocutory appeal because it “involves
a claim to a fundamental constitutional
protection”). On the other hand,
Confrontation Clause rights are
vindicated through evidentiary rulings,
and a prime target of the policy against
interlocutory appeals is the avoidance of
piecemeal review of the many
evidentiary rulings in a typical case.
Thus we find this factor inconclusive.

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The third prong strongly disfavors
appealability. Practice alone—in Bruton
and Gray themselves—suggests that
interlocutory appeal is unwarranted
because the constitutional defect in
Bruton’s and Gray’s trials were, in fact,
remedied by vacating their convictions
and remanding for a new trial.6
In sum, the prongs range from
inconclusive to strongly disfavoring
appealability. As the collateral order
doctrine is a “narrow” exception and the
Supreme Court has “described the
conditions for collateral order appeal as
stringent,” Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 868
(1994), failure to meet one prong makes
the doctrine inapplicable no matter how
compelling the other prongs may be (and
here, not even one prong is in favor of
appealability). Thus we conclude that
this Court does not have appellate
jurisdiction to hear an appeal of the
merits of the Appellate Division’s order.
2. Appellate Jurisdiction to
Review the Appellate Division’s
Determination of Its Own Jurisdiction
Turning to the question of the
reviewability of the Appellate Division’s
determination of its own jurisdiction, it is
clear that we may at least review this
limited question. This Court’s
indistinguishable precedent in
Government of the Virgin Islands v.
Blake, 118 F.3d 972 (3d Cir. 1997),
compels this conclusion. In that case, the
Government had taken an interlocutory
appeal from the Territorial Court to the
Appellate Division under 4 V.I. Code §
39(d), a provision which allows an
interlocutory appeal during trial under
some circumstances. (In Blake, the
Territorial Court had suppressed—during
motions decided after the jury had been
selected and sworn—a variety of
testimony and other evidence the
Government sought to present.) The
Appellate Division in Blake decided that
it did not have jurisdiction to hear the
Government’s appeal. On appeal we
held that although we had no jurisdiction
to reach the merits, we did have
jurisdiction under the collateral order
doctrine to review the Appellate
Division’s jurisdiction over the appeal.
Blake, 118 F.3d at 975-76. We of course
adhere to Blake in this case, see Third
Circuit IOP 9.1, but we do add a few
words of analysis since the discussion in
Blake was quite summary.
The first prong of the collateral
6Bruton and his codefendant were tried
and convicted in federal court, apparently
with no interlocutory appeals. Bruton’s
conviction was reversed and remanded
for retrial (where he was again
convicted). United States v. Bruton, 416
F.2d 310 (8th Cir. 1969). Though Gray’s
case was in state court in Maryland (and
thus presented no opportunity for
interlocutory appeal in the federal
system), the same remedy was of course
available: The Supreme Court vacated
his conviction and remanded. In
Richardson, the Supreme Court did not
find in Richardson’s favor, but there was
no doubt that even in the habeas corpus
posture of that case it would have been
possible to afford him relief.

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order doctrine is clearly satisfied here
because the Appellate Division did
finally determine its own jurisdiction
over this sort of interlocutory appeal.
The third prong is also clearly satisfied
because such a determination cannot be
effectively reviewed on appeal from a
final judgment because, by hypothesis,
the Appellate Division’s jurisdiction to
hear interlocutory (i.e., not final) appeals
would not be implicated in that posture.
The second prong is more
complex, but it too favors our
jurisdiction. Part of it is clear: The issue
of the Appellate Division’s jurisdiction is
separate from the merits. Whether the
question is important enough requires
some discussion. On the one hand,
issues involving the scope of federal
jurisdiction are good candidates for the
collateral order doctrine. See, e.g.,
Quackenbush v. Allstate Ins. Co., 517
U.S. 706 (1996) (holding that an
abstention-based remand to state court
was immediately appealable under
collateral order doctrine). On the other
hand, a vague reference to the “scope of
federal jurisdiction” may denominate the
category too broadly, for the cases
involving the collateral order doctrine
and the scope of federal jurisdiction are
by and large abstention cases, see id. at
712-15 (canvassing cases), which “put
the litigants ‘effectively out of court,’”
id. at 713 (quoting Moses H. Cone Mem’l
Hosp. v. Mercury Contr. Corp., 460 U.S.
1, 11 n.11 (1983) (quoting Idlewild Bon
Voyage Liquor Corp. v. Epstein, 370
U.S. 713, 715 n.2 (1962))), and some
courts have explicitly held that “non-
immunity based motions to dismiss for
want of subject matter jurisdiction are
not ordinarily entitled to interlocutory
review.” Merritt v. Shuttle, Inc., 187
F.3d 263, 268 (2d Cir. 1999) (citing
Catlin, 324 U.S. at 236).
The dispositive differences in this
case are twofold. First, we are
considering the ability to appeal an
interlocutory determination of appellate
jurisdiction, not original jurisdiction,
making cases like Merritt
distinguishable. Second, the order at
issue here is not so much effectively
unreviewable as it is procedurally
unreviewable if we do not take
jurisdiction now. “Effective”
unreviewability arises because a party’s
putative rights will be irreparably
harmed. For example, a party may have
to forego an injunction guarding against
irreparable harm because the security
bond that is the price of the injunction
may have been made too costly by the
lower court; or a party wrongly
determined to lack qualified immunity
may be subjected to a trial. In such
situations, although the aggrieved party
cannot be made whole after the fact, the
legal question will, as a matter of
procedure, still be preserved for the
appellate court’s review at a later time.
In contrast, only in the most convoluted
and improbable of hypotheticals will the
jurisdictional issue presented here ever
make its way to this Court on appeal
from a final decision.7 As
7The dissent “see[s] no reason why we
could not [after trial] consider whether
the Appellate Division had jurisdiction to

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a procedural matter, now is this Court’s
only opportunity to pass on the issue.
This reasoning also explains why
our holding here would not apply to the
issue in Merritt, i.e., why a district
court’s determination of its subject
matter jurisdiction is not generally
reviewable under the collateral order
doctrine.8 Questions of original
jurisdiction are always automatically
before this Court on appellate review.
See, e.g., Wujick v. Dale & Dale, Inc., 43
F.3d 790, 792 (3d Cir. 1994) (“‘[E]very
federal appellate court has a special
obligation to satisfy itself not only of its
own jurisdiction, but also that of lower
courts in a cause under review.’”
(alteration in original) (quoting Spring
Garden Assoc., L.P. v. Resolution Trust
Corp., 26 F.3d 412, 415 (3d Cir. 1994)
(quoting Employers Ins. of Wausau v.
Crown Cork & Seal Co., 905 F.2d 42 (3d
Cir. 1990)))). In other words, there is no
procedural posture where a question of
original jurisdiction will escape this
Court’s review in an appeal from a (non-
interlocutory) final decision. In
render its decision.” Dissenting Op. post
at —. In one sense, this is a truism, but
in practical terms it is a half-truth. The
whole tenor and dynamic of a
trial—here, for murder no less—can be
radically altered by a decision like that of
the Appellate Division here. We think it
imprudent to let pass a ruling of such
moment without examining, if we can,
whether the court making the ruling even
had jurisdiction.
Second, the dissent’s offhand
statement about easy reviewability after
trial is also unsupported by an analysis of
the posture in which the question might
actually arise. On appeal from a
conviction (the dissent is quite right that
the point is moot if there is a plea or
acquittal), the question will be whether
the redaction actually used was
constitutionally sound. If it was, we
would have no occasion to consider the
Appellate Division’s jurisdiction, for it
will have made the right decision
(whether it was empowered to or not). If
the redaction used was unsound (and not
harmless), the Appellate Division’s
jurisdiction is beside the point—the case
must go back for a new trial.
This analysis also explains why
the dissent’s efforts to distinguish Blake
are unconvincing. While there may have
been factors present in Blake that are
absent here, the core concern remains:
How are we to review the Appellate
Division’s jurisdiction if not through the
collateral order doctrine? Both in Blake
(as the dissent explains) and in this case
(as the preceding paragraph illustrates),
the question cannot be addressed on
review after trial.
8The dissent criticizes the distinction
here as inconsistent with our earlier
pronouncement that we must “treat[]
appeals from the Appellate Division no
differently from appeals from any other
district court.” Dissenting Op. post at —.
But of course, that greatly overstates our
earlier point, which was confined to the
issue of how we treat questions of
finality.

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12
contrast—as this case itself
illustrates—there are procedural postures
which render permanently unreviewable
the judgment of a hierarchically inferior
appellate court,9 and thereby prevent the
automatic review of jurisdiction
described in Wujick. Because review of
a question of appellate jurisdiction is a
now-or-never proposition, interlocutory
review of a jurisdictional question is
warranted here where it is not warranted
in the case of a district court’s
determination of its own original
jurisdiction.
In brief, coupled with the
institutional importance of the question,
the absolute unreviewability of the
Appellate Division’s jurisdiction in this
case makes the question an important
one. Thus this prong too favors
appealability. Because all three prongs
are satisfied, the collateral order doctrine
affords us a basis for reviewing the
Appellate Division’s determination
regarding its jurisdiction under 4 V.I.
Code § 39(a)(1).
In reaching this conclusion, we
have considered the dissent’s contention
that our “decision effectively grants an
appeal as of right to question an appellate
court’s jurisdiction whenever it makes an
interlocutory ruling,” and that this result
is the very sort of inefficiency that the
collateral order doctrine should not
countenance. We are underwhelmed by
the dissent’s in terrorem argument. First,
it is a dubious empirical proposition that
the holding here will increase the
quantity of this sort of appeal. As the
citations in the opinion in this case
suggest, this Court has seen but a handful
of cases like this in the past decade.
Second, the fact that we here take the
opportunity to give some guidance (both
to litigants and to the Appellate Division)
should decrease, not increase, the
number of appeals taken in good faith.
Third, the dissent claims that
“[t]he majority’s decision effectively
grants an appeal as of right.” But it is the
Congress, not this Court, that has granted
litigants an appeal as of right from the
Appellate Division. Even if we did
dismiss this appeal in its entirety for lack
of jurisdiction, as the dissent would, little
efficiency would be gained as a practical
matter: In a subsequent case, a litigant
could still file a notice of appeal (as a
matter of statutory right), and he could
still advance a good faith argument in
favor of review under the collateral order
doctrine. A motions panel would likely
refer the jurisdictional question to the
merits panel, and the merits panel would
address the question (hopefully in less
extended fashion than we have had to
here). In other words, the decision here
makes it neither easier nor harder for a
party who is dissatisfied with the ruling
of the Appellate Division to drag out the
9The judgment of the Appellate
Division is permanently unreviewable
only in the sense that it will never be
specifically reviewed by this Court; the
Bruton question in general is preserved
for this Court’s review. See supra note
4.

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13
process by appealing to this Court.10
At bottom, it seems to us that the
dissent’s problem is the presence of a
system of two-tier appellate review as of
right. In fact, the dissent states explicitly
that “[t]his type of review is wisely not
found elsewhere in the federal system,
and should not exist here.” Dissenting
Op. post at —. While we might agree
with the dissent if we were drafting 48
U.S.C. § 1613a, that simply is not our
task. Congress has provided that we
have appellate jurisdiction (until such
time as the conditions for certiorari
jurisdiction are met, see 48 U.S.C. §
1613), and accordingly, we will turn our
attention to the substance of the appeal.
III. The Appellate Division’s
Jurisdiction
We exercise plenary review in
determining whether a court
hierarchically below us had subject
matter jurisdiction. Wujick v. Dale &
Dale, Inc., 43 F.3d 790, 792 (3d Cir.
1994) (citing Nat’l Union Fire Ins. Co. v.
City Savings, F.S.B., 28 F.3d 376, 383
(3d Cir. 1994)). As previously noted, we
look to local law to determine the
jurisdiction of the Appellate Division.
See 48 U.S.C. § 1613a(a); Gov’t of V.I. v.
Warner, 48 F.3d 688 (3d Cir. 1995). The
asserted basis for the Appellate
Division’s subject matter jurisdiction is 4
V.I. Code § 39(a)(1), which provides:
The United States or the
Government of the Virgin
Islands may appeal an
order, entered before the
trial of a person charged
with a criminal offense
under the laws of the
Virgin Islands, which
directs the return of seized
property, suppresses
evidence, or otherwise
denies the prosecutor the
use of evidence at trial, if
the United States Attorney
or the Attorney General
conducting the prosecution
for such violation certifies
to the Judge who granted
such motion that the appeal
is not taken for purpose of
delay and the evidence is a
substantial proof of the
charge pending against the
defendant.
There do not appear to be any
cases—either from this Court or from the
Appellate Division—considering this
provision in any depth.11 We are,
10Indeed, this decision might even
discourage appeals by settling the
underlying merits questions.
11 The government points to the one
case of the Appellate Division which
expressly stated that that Court had
jurisdiction under section 39(a)(1),
Government of the Virgin Islands v.
Christopher, 990 F. Supp. 391 (D.V.I.
App. Div. 1997) (per curiam). In that
case, the Territorial Court had suppressed
before trial an unmirandized confession
and the Government took an
interlocutory appeal to the Appellate

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14
however, fortunate to be guided in this
novel exercise by interpretations of 18
U.S.C. § 3731, the analogous provision
for interlocutory appeals by the
government of suppression motions
decided in federal district courts.12
The defendants’ challenges to the
Appellate Division’s jurisdiction are
fourfold: First, they argue that the
Territorial Court’s redactions were not
“an order . . . suppress[ing] evidence.”
Second, they submit that the
Government’s certification was
inadequate because the Territorial Court
was not afforded an opportunity to
review it before the Government noticed
its appeal to the Appellate Division.
Third, they contend that the statements in
question, even unredacted, are not
“substantial proof of the charge pending
against [them].” Fourth, they assert that
the statute denies them equal protection
of the laws, by permitting the
government to appeal adverse orders but
not affording a similar opportunity to
defendants facing adverse orders. We
will treat each of these challenges in turn.
A. “An Order Suppressing
Evidence”
The defendants contend that the
Territorial Court’s redaction order was
not “an order suppress[ing] evidence”
within the meaning of 4 V.I. Code §
39(a)(1). But it would be a terribly
crabbed reading of the statute to hold that
admitting a statement subject to
redactions does not amount to a
suppression of evidence. The statute
finishes its list of appealable orders with
a catch-all category—those orders which
“otherwise den[y] the prosecutor the use
of the evidence at trial.” Id. Even if the
Division. The Appellate Division simply
stated that “[t]his Court has jurisdiction
under V.I. Code. Ann. tit. 4, § 39(a)(1).”
Id. at 393. No mention was made of any
certification by the Government or of
whether the suppressed confession was
“substantial proof of the charge pending
against the defendant.”
12That section is similarly (but not
identically) worded, and appears to have
provided the basis for 4 V.I. Code §
39(a)(1): The Virgin Islands statute was
enacted in 1972, while the relevant
portion of the federal statute was added
in 1971. The federal statute reads:
An appeal by the United
States shall lie to a court of
appeals from a decision or
order of a district court
suppressing or excluding
evidence or requiring the
return of seized property in
a criminal proceeding, not
made after the defendant
has been put in jeopardy
and before the verdict or
finding on an indictment or
information, if the United
States attorney certifies to
the district court that the
appeal is not taken for
purpose of delay and that
the evidence is a
substantial proof of a fact
material in the proceeding.
18 U.S.C. § 3731, ¶2.

-- 14 of 21 --

15
redaction order is not an order
suppressing evidence, it surely denies
the Government the use of the full
confessions at trial. Thus we reject the
defendants’ contention that the
Territorial Court’s order was not a proper
subject for appeal.
B. Territorial Court Review of
the Certification
The defendants next argue that the
Territorial Court should have had an
opportunity to review the certification
provided by the Government. While as a
policy matter, one might conclude that
the Territorial Court should be given an
opportunity to review the certification,
there is at present simply no basis in the
statute for such a requirement. W e
decline to read one in.
Moreover, this Court has decided
in interpreting 18 U.S.C. § 3731 that that
statute requires nothing more than the
delivery of the certification to the district
court in question. See In re Grand Jury
Investigation, 599 F.2d 1224, 1226 (3d
Cir. 1979) (adopting United States v.
Comiskey, 460 F.2d 1293, 1297-98 (7th
Cir. 1972) (holding that no evidence was
required to support a certification under
18 U.S.C. § 3731)). We hold, by
analogy, that 4 V.I. Code § 39(a)(1) is
also completely satisfied by simple
delivery of the certification to the
Territorial Court. Thus the
Government’s certification in this case
was adequate.
C. “Substantial Proof of the
Charge Pending”
The Courts of Appeals have
generally held that the “substantial
proof” requirement of 18 U.S.C. § 3731
is a requirement of the certification, not a
requirement of actual fact. See In re
Grand Jury Investigation, 599 F.2d at
1226.13 The certification under 18
13In his brief, Camacho cites United
States v. Poulsen, 41 F.3d 1330 (9th Cir.
1994), for the proposition that mere
certification is insufficient. A review of
1970s decisions following the enactment
of the relevant portion of 18 U.S.C. §
3731 reveals an early split among the
circuits on this score. Compare In re
Grand Jury Investigation, 599 F.2d at
1226 (3d Cir.), and Comiskey, 460 F.2d
at 1297-98 (7th Cir.), with United States
v. Loud Hawk, 628 F.2d 1139 (9th Cir.
1979) (en banc). The Court of Appeals
for the Eleventh Circuit has implied that
it sides with us and the Seventh Circuit.
See United States v. C.G., 736 F.2d 1474,
1478 (11th Cir. 1984). The Court of
Appeals for the First Circuit has
acknowledged the split, but has declined
to decide the issue. See United States v.
Bouthot, 878 F.2d 1506, 1510 (1st Cir.
1989).
More recently, the Court of
Appeals for the Ninth Circuit has
expressly declined to hold that
subsequent Supreme Court decisions
have implicitly overruled Loud Hawk,
see United States v. Adrian, 978 F.2d
486, 490-91 (9th Cir. 1992), and
continues to require the government to
establish by more than mere certification
that the suppressed evidence constitutes
“substantial proof.” The Court of
Appeals for the Eighth Circuit recently

-- 15 of 21 --

16
U.S.C. § 3731 must state both (1) that the
appeal is not taken for the purpose of
delay; and (2) that the evidence is a
substantial proof of a material fact in the
proceeding. The United States
Attorney’s word is enough; the
reviewing court does not consider the
truth of the certification.
If 4 V.I. Code § 39(a)(1) were
worded identically to 18 U.S.C. § 3731,
on which In re Grand Jury Investigation
is binding precedent, this would certainly
be the end of it. But the Virgin Islands
statute is not clearly drafted: It is missing
an additional “that” immediately before
“the evidence is a substantial proof,”
which would make it grammatically
unambiguous. As it now stands, it could
be read to require essentially the same
two certification elements that 18 U.S.C.
§ 3731 does; or it could be read (as the
defendants urge) to require a certification
that the appeal is not taken for delay, and
also require that, in actual fact, the
evidence be “substantial proof.”
We decline to read it as the
defendants would have it, for four
reasons. First, the Virgin Islands statute
is plainly modeled on the federal statute,
and we conclude it is best to follow the
federal statute as a guide. Second, if the
Virgin Islands Legislature actually
wanted the statute to operate as the
defendants would have it, there were far
less cryptic ways of communicating that
intent. For example, the Virgin Islands
Legislature could have put the
“substantial proof” requirement before
the certification clause. Third, the statute
is silent on what court would evaluate the
substantiality of the proof, or on how that
court would go about the evaluation,
suggesting that no such review is to be
undertaken. Fourth, review of the
substantiality of the proof necessarily
entails a look at the other evidence that
the Government has available to it, an
inquiry that could both take considerable
time and prejudice the Government’s
case. Both of these seem at odds with
the expedited interlocutory appellate
review contemplated by the statute.14
acknowledged this continuing split, and
sided with this Circuit and the Seventh
Circuit. See United States v. Johnson,
228 F.3d 920, 923-24 (8th Cir. 2000).
We of course adhere to our precedent in
In re Grand Jury Investigation, and
recognize no requirement in 18 U.S.C. §
3731 aside from the certification paper
itself.
14Moreover, we find 4 V.I. Code §
39(a)(1) (the statute at issue here)
distinguishable from 4 V.I. Code § 39(d)
(the mid-trial interlocutory appeal
provision at issue in Blake). The latter
requires more than the prosecutor’s mere
certification that the question involves “a
substantial and recurring question of law
which requires appellate resolution.” 4.
V.I. Code § 39(d). We held the merits of
this certification to be a question for the
court because it is “an issue of statutory
interpretation, and because it involves the
jurisdiction of the federal courts.” Blake,
118 F.3d at 977 (citations omitted). In
sharp contrast, the certification required
for appeals taken under subsection (a)(1)
addresses the substantiality of evidence,

-- 16 of 21 --

17
Thus, we conclude that the Appellate
Division did not need to evaluate the
substantiality of the proof in order to
accept the certification.
D. Equal Protection
The defendants object that the
statute affords the Government an appeal
right that it does not confer on
defendants, and that this disparity
amounts to a violation of the equal
protection component of the Fifth
Amendment’s Due Process Clause. But
this argument is foreclosed by United
States v. Heinze, 218 U.S. 532, 545-46
(1910), which held that the Act of March
2, 1907, ch. 2564 (which was later
codified at 18 U.S.C. § 682, which in
turn was the forerunner of 18 U.S.C. §
3731) did not violate equal protection or
due process principles.
Moreover, even under more recent
equal protection jurisprudence, Heinze
reached the right result: The Supreme
Court has not announced that the status
of “criminal defendant” is a suspect
classification, nor has it held the right to
appeal in a criminal case to be a
fundamental right. Thus we subject this
legislation to rational basis review. See,
e.g., Ramsgate Court Townhome Ass’n v.
W. Chester Borough, 313 F.3d 157, 160
(3d Cir. 2002) (reiterating that equal
protection challenges to legislation not
based on a suspect classification or
implicating a fundamental right require
only rational basis review of the
legislation).
The Virgin Islands Legislature
certainly had a rational basis for
distinguishing between the Government
and defendants on the question of appeal
rights. To identify only one such basis,
the Virgin Islands Legislature could
rationally conclude that the efficient
administration of criminal justice
demanded that the Government have
expansive pre-trial appeal rights, and the
defendant have expansive post-trial
appeal rights. Thus we find no merit in
the defendants’ equal protection
challenge.
In sum, we conclude that the
Government followed the procedures set
out in 4 V.I. Code § 39(a)(1), and that the
Appellate Division had jurisdiction over
the appeal.
IV. Conclusion
We have concluded that the
Appellate Division had jurisdiction over
the appeal, and we will affirm the
Appellate Division’s holding regarding
its own jurisdiction. Having determined
that we lack jurisdiction over the other
questions in this appeal, we will dismiss
the appeal with respect to those
questions. The case will be remanded to
the Territorial Court to revise the
redacted statements in conformity with
the Appellate Division’s opinion.
Because we do not reach the merits of
the defendants’ Bruton claims, this
opinion is without any preclusive effect
to the defendants asserting on direct
appeal, should they be convicted, that the
a factual or strategic matter that—for the
reasons we identify above— a court is ill-
equipped to evaluate.

-- 17 of 21 --

18
redacted confessions used at trial were
insufficiently altered to secure their Sixth
Amendment Confrontation Clause rights.
NYGAARD, J. dissenting.
I respectfully dissent and would
dismiss this appeal for lack of
jurisdiction. I agree with the majority
that we do not have jurisdiction to
consider the merits of the decision of the
District Court of the Virgin Islands,
Appellate Division. I disagree, however,
that we may consider whether the
Appellate Division had jurisdiction to
hear the interlocutory appeal. The
majority asserts that its resolution of this
issue is “clear” and compelled by the
“indistinguishable precedent” of
Government of Virgin Islands v. Blake,
118 F.3d 972 (3d Cir. 1997). Maj. Op. at
*9. I agree the issue is clear, but
conclude that the precedent of Blake is
first, quite distinguishable, and
moreover, not germane to our decision.
The majority insists that we
should treat appeals from the Appellate
Division “no differently than appeals
taken from any other federal district
court.” Maj. Op. at *6. W hile I agree in
general, I do not believe this means we
can simply be blind to the differences.
The majority’s decision effectively
grants an appeal as of right to question an
appellate court’s jurisdiction whenever it
makes an interlocutory ruling. The
procedural equivalent is not our routine
review of a decision by a typical district
court, but review by some hypothetical
higher court of our jurisdiction every
time we take an interlocutory appeal.
This type of review is wisely not
found elsewhere in the federal system,
and should not exist here. Under the
majority’s holding, we pile an extra layer
of interlocutory appellate review solely
onto cases that stem from the Virgin
Islands, without explaining why this
extra layer is necessary – and why the
delay it engenders is justified. I find the
extra layer unnecessary and the delay
unjustified.
The majority correctly concludes
that the issue of the Appellate Division’s
jurisdiction is not reviewable as an
ordinary final decision. It also uses the
correct test for determining whether,
nevertheless, we may pretend it is a final
decision and review it under the
collateral order doctrine. It is the manner
in which the majority applies this test
where they and I part company.
At the outset, I think it important
to emphasize what the majority only
notes in passing – that the collateral
order doctrine is meant to provide a
“narrow exception” to the general rule
that permits appellate review only of
truly final orders. See Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S.
863, 868 (1994). This exception is to be
made only when required to preserve “a
healthy legal system,” and should “never
be allowed to swallow the general rule.”
Id. at 867-68 (internal citation and
quotations omitted). Thus, the three
prongs of the collateral order doctrine are
“stringent,” and each of them must be
met in order for a decision to be
reviewable. Id. at 868. With this in mind,

-- 18 of 21 --

19
it seems clear that in this case the
requirements of the second and third
prongs have not been met, and we
therefore may not review the Appellate
Division’s decision as to its own
jurisdiction.
In addition to being separate from
the merits of the case, as this
jurisdictional question admittedly is, the
second prong also requires that the issue
be sufficiently “important.” Discussing
the meaning of “important,” the United
States Supreme Court has explained that
it involves an examination of the “value
of the interests that would be lost through
rigorous application of a final judgment
requirement.” Digital Equip. Corp., 511
U.S. at 878-79. Similarly, we have
required a showing of the “impairment of
some institutionally significant status or
relationship” presenting the “danger of
denying justice.” In re Ford Motor
Co., 110 F.3d 954, 960 (3d Cir. 1997).
To qualify as “important,” these interests
must also outweigh the “inefficiencies
flowing from interlocutory appeal.” Id.
It is difficult for me to see how we
can conclude that an extra layer of
appellate review, of a kind that does not
exist anywhere else in the federal system,
qualifies as “important” under this
standard. When this Court takes
jurisdiction over an interlocutory appeal
from a typical district court’s
proceedings, our decision to do so is not
subject to automatic review, and yet we
do not find that this deprivation presents
the “danger of denying justice.” It is
incongruous, and more than a bit
patronizing, to conclude that the interests
of justice require that we take an
interlocutory appeal to second-guess the
jurisdictional conclusions of the
Appellate Division when it is sitting in
the same posture.
In distinguishing holdings that
find issues of subject-matter jurisdiction
ineligible for interlocutory review, the
majority points out that this case is
different because it presents a question of
appellate, not original, jurisdiction.15 The
majority does not, however, indicate why
this distinction weighs in favor of
review. Nor does the majority explain
how the interests of justice implicated by
an interlocutory jurisdictional issue are
so weighty that they overcome the
“inefficiencies flowing from
interlocutory appeal.” Notably, the
majority actually has very little to say
about the “importance” of reviewing the
jurisdictional issue, blurring its
discussion of this condition with its
insistence that the order is “procedurally
unreviewable,” a factor that is properly
evaluated under the third prong. Maj. Op.
at *10.
In my view, this third requirement
has also not been fulfilled. I fail to see
why the question of interlocutory
15It is worth noting that earlier in its
opinion the majority observed the
necessity of treating appeals from the
Appellate Division no differently from
appeals from any other district court, but
when the occasion arises, it is quick to
point out that they really are different,
because they involve questions of
appellate, and not original, jurisdiction.

-- 19 of 21 --

20
appellate jurisdiction as presented in this
case is “effectively unreviewable on
appeal from a final judgment.” Ford
Motor Co., 110 F.3d at 958. As the
Supreme Court notes, most interlocutory
orders are “only imperfectly reparable by
appellate reversal,” and if this prong
were to be interpreted too broadly, it
would render it meaningless. Digital
Equip. Corp., 511 U.S. at 872. “A fully
litigated case can no more be untried
than the law’s proverbial bell can be
unrung, and almost every pretrial or trial
order might be called ‘effectively
unreviewable’ in the sense that relief
from error can never extend to rewriting
history.” Id.
It is indeed likely that the issue of
the Appellate Division’s interlocutory
appellate jurisdiction will be made
irrelevant by further proceedings. If the
Appellants reach a plea agreement or are
acquitted, for example, then the question
would be moot. In the larger context of a
murder trial, the issue may be rendered
immaterial. But these possibilities only
indicate that our consideration of the
issue at this point may well be a waste of
time and resources.
If the Appellants are convicted,
however, and the decision of the
Appellate Division is material to the
outcome of the trial, I see no reason why
we could not then consider whether the
Appellate Division had jurisdiction to
render its decision. In fact, it seems that
the issue could be raised rather
straightforwardly upon appeal, without
requiring, as the majority suggests, “the
most convoluted and improbable of
hypotheticals.” Maj. Op. at *11. True, if
we were to reverse, at that point we
could not rewrite history and pretend that
the Appellate Division had never
rendered its interlocutory ruling, but as
the Supreme Court has emphasized,
effective reviewability of a decision does
not require that we be able to unring the
“law’s proverbial bell.” Id.
It is in regard to reviewability that
this case is most easily distinguishable
from Blake. 118 F.3d 972. In Blake, the
Appellate Division had found that it did
not have jurisdiction to consider the
government’s interlocutory appeal, and it
was the government, not the defendants,
who sought to appeal that ruling to us. Id.
at 974. This denial of jurisdiction could
not have been effectively reviewed after
final judgment, especially because it is
unlikely the government would have
been able to appeal at all had it lost and
the trial resulted in an acquittal. In
contrast, here Appellants would have an
automatic right to appeal upon
conviction.
These distinctions also make our
finding that the interlocutory issue was
sufficiently “important” more palatable
in the Blake case, since the denial of
jurisdiction there meant the challenged
order would not be reviewed by any
court, and a miscarriage of justice was
therefore more likely to result. In
contrast, in a case such as this in which
the Appellate Division took jurisdiction,
the underlying issue has already been
reviewed and decided by an appellate
court.

-- 20 of 21 --

21
This case implicates all of the
interests that justify the existence of the
final judgment rule, and illustrates why
exceptions to this rule should be few. As
the Supreme Court explained:
An interlocutory appeal
can make it more
difficult for trial judges
to do their basic job –
supervising trial
proceedings. It can
threaten those
proceedings with delay,
adding costs and
diminishing coherence.
It also risks additional,
and unnecessary,
appellate court work . . .
when it brings them
appeals that, had the
trial simply proceeded,
would have turned out
to be unnecessary.
Johnson v. Jones, 515 U.S. 304, 309
(1995).
Fortunately, the scope of the
majority’s decision is limited to the
unique appellate position of the courts of
the Virgin Islands, but even within this
narrow arena today’s holding seems
certain to encourage more unnecessary
delay while this Court wades through
more unnecessary appeals. With this
holding, every ruling by the Appellate
Division becomes appealable to this
Court, since every such ruling must
necessarily contain at least an implicit
finding of jurisdiction.
To see the harm in this decision,
we need look no farther than the case
now before us. The trial of Appellants for
a brutal 1999 murder was set to begin in
September 2001, when the case was
brought to a grinding halt by the
government’s appeal on the eve of trial.
Memories of witnesses have surely faded
and evidence gone stale as the case has
wended its way through two appellate
courts, producing what will be at least a
three-year delay in trial. There is no
doubt that when this trial is eventually
held, it will be less coherent than it
would have been three or more years
earlier, and less likely to achieve a just
result. It is unfortunate that there has
been such a delay in this case; we should
not encourage its recurrence.
The government’s original
interlocutory appeal was brought under a
statute passed by the Virgin Islands
legislature, which made a measured
decision that the interests of justice
warrant the delay caused by allowing
interlocutory appeals in a few specified
instances. Now, in making any such
decision, the local legislature must weigh
the interests of justice against far more
delay, since this Court must now intrude
on every interlocutory appeal. From now
on, every interlocutory appeal allowed by
statute will come stapled to a right to
appeal to us the Appellate Division’s
decision to take the interlocutory appeal.
This extra layer is not only unnecessary,
but also conveys an unjustified lack of
confidence in the decisions of the
Appellate Division, and creates a further
delay that can only serve to jeopardize
the ultimate attainment of justice at trial.

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