The V.I. Supreme Court has rejected an appeal by former Bureau of Motor Vehicles Director Jerris Browne, leaving the door open for prosecutors to refile criminal charges against him.
Browne was one of three men accused in June 2017 of embezzling millions of dollars in federal funding intended to implement the Real ID Act in the Virgin Islands.
The V.I. Attorney General’s Office, however, badly botched the case and prosecutors dismissed charges against Browne and co-defendants — BIZVI President Syed Gilani and former Management Information Systems administrator for Motor Vehicles Gregory Christian.
The cases were dismissed in March 2020 “without prejudice,” meaning that prosecutors would reserve the right to refile certain charges in the future.
While there is a three-year statute of limitations on most crimes in the Virgin Islands, there is no statute of limitations in the V.I. Code for certain serious crimes, including murder, felony child abuse and neglect, felony sex crimes, embezzlement of public money and falsification of public records.
The men were charged with several crimes, including a variety of fraud charges, but only the embezzlement charges have no time restriction.
Supreme Court decision
Browne appealed the Superior Court’s dismissal order to the V.I. Supreme Court, arguing that the charges should be dismissed “with prejudice” so they could not be refiled. Attorney Martial Webster argued on behalf of Browne, and Assistant Attorney General Ian Clement argued on behalf of the People of the Virgin Islands.
In an opinion filed May 17, the justices upheld the lower court’s order, leaving prosecutors with the discretion to bring the cases again.
The initial prosecution did not go well, and the cases faltered after a series of missteps detailed in the Supreme Court’s opinion, written by Associate Justice Ive Arlington Swan.
The three men were arrested on June 19, 2017, but “the People’s case proceeded gradually and haphazardly because of unexpected natural occurrences similar to the 2017 hurricanes Irma and Maria, and numerous administrative conundrums in the Virgin Islands Department of Justice, which included substituting one assistant attorney general for another, reassigning the assistant attorney general of record to other cases, and transferring the case to DOJ’s St. Croix office despite it being originally assigned to DOJ’s St. Thomas Office,” Swan wrote.
Gilani filed a motion to dismiss the case, which Browne joined in June 2018. “The motion alleged that the people’s ineptitude was needlessly delaying the trial’s commencement, thereby violating the defendants’ Sixth Amendment right to a speedy trial and their Fifth Amendment due process rights,” according to the Supreme Court opinion.
Prosecutors asked to continue the trial date beyond Dec. 10, 2018, because they were still waiting for the FBI to analyze computer servers seized as evidence in the case, and “the People did not know how long the FBI would take to conduct the analysis. The People asked the FBI to forensically analyze the servers because DOJ lacked the funds to do so locally,” Swan wrote.
The court granted the motion, and in January 2019, the court denied Gilani and Browne’s prior motions to dismiss and ordered prosecutors to update the court every two months concerning the status of the FBI’s analysis of the computer servers. Another year later, in January 2020, Gilani and Browne renewed their motions to dismiss the charges, and the court found that prosecutors had failed to provide regular status updates as ordered.
On Feb. 6, 2020, Browne filed a motion to dismiss, “citing failure to prosecute” and the previous constitutional violations. Four days later, prosecutors filed a motion to dismiss the cases without prejudice, and “the people sought to preserve its right to refile some of the charges.” Gilani and Browne opposed prosecutors’ motion, but the court granted it on Feb. 14, 2020.
The men argued that prosecutors had mishandled their cases so badly, that they should not be allowed to refile charges. But the Supreme Court chalked the failures up to negligence, rather than intentional wrongdoing, and “we find the government did not engage in any deliberate misconduct that prejudiced Browne so gravely as to warrant a dismissal with prejudice,” Swan wrote.
In addition, “although the possibility that two charges can be refiled exists, there is also the possibility the people will elect not to refile,” and the Justice Department “had every right” to seek dismissal without prejudice, the justices found.
The $2 million in federal funding that Browne, Christian and Gilani were accused of stealing was granted between 2008 and 2011 to help Motor Vehicles become compliant with the Real ID Act. Passed by Congress in 2005, the law establishes minimum security standards for state-issued driver’s licenses and identification cards, and its implementation in the Virgin Islands was repeatedly delayed until it was finally completed in October.
Court sanction upheld
In a separate opinion filed May 27 by V.I. Supreme Court Chief Justice Rhys Hodge, the justices found that the lower court had the authority to sanction Quincy McRae, chief of the St. Thomas Criminal Division for the V.I. Justice Department, for his handling of the case.
“No fewer than seven different prosecutors appeared during the two-and-a-half years, approximately, that these cases were pending,” including McRae, according to an opinion filed by former V.I. Superior Court Judge Robert Molloy in February 2020.
Molloy fined McRae $250 after he failed to follow a February 2019 court order that he file bimonthly reports on the status of the FBI’s analysis of digital evidence. But Molloy subsequently found that McRae “genuinely believed that he was no longer counsel of record in this case,” and agreed to hold the $250 fine in suspension.
Molloy further ordered that as a supervisory attorney in the Justice Department, McRae must develop a formal plan with his colleagues “to ensure what occurred here — several public attorneys ‘disappeared’ without notice and without designating successor counsel — does not happen again.”
McRae appealed, and the Supreme Court ruled May 27 that the lower court “committed no error when it held McRae in civil contempt,” but “erred when it granted McRae the option to develop and implement a formal plan in lieu of a $250 fine, in that this alternative sanction bore no relation to the legitimate purpose compensating the Superior Court for the costs associated with McRae’s non-compliance with the February 1, 2019, order,” Hodge wrote.
The Supreme Court affirmed the civil contempt order and $250 fine.