On Appeal from the United States District Court of the Virgin Islands (St. Thomas and St. John) (D.C. Criminal No. 84-109)
Before: SLOVITER, STAPLETON, and ROSENN, Circuit Judges
Kelvin Derricks, who was a St. Thomas police officer at the time of the events in question, appeals from his conviction of one count of official oppression under 14 V.I.C. § 703. The charge arose out of the complaint of Marilyn Stires that Derricks threatened her with arrest, jail, a fine and inability to work again if she did not engage in sexual activities with him. Derricks, who admitted that he had engaged in sex with Stires after she had been picked up by the police who believed she had been smoking marijuana, claims that the government's evidence was factually and legally insufficient to make out a case of oppression.
Although there were different factual scenarios presented, the following facts are generally agreed upon. Derricks, who was not in the street crime unit, volunteered to ride with his friends, Officers Charleswell and Matthews, on August 31, 1981. In the early morning of September 1, 1984, they noticed Marilyn Stires sitting in a car parked outside a restaurant. Charleswell suspected that Stires was smoking a marijuana cigarette. Derricks, who was not in uniform, approached the car, showed his badge, and ordered Stires out of the car. The other officers searched the car but did not find the marijuana cigarette. Derricks then searched the car and, while Stires could not observe his movements, found a plastic bag filled with marijuana. Stires denied that the marijuana belonged to her.
All three officers testified that Charleswell, who was in charge, decided that there was not sufficient evidence to arrest Stires; instead, Stires was to be taken to the station house where a "contact card" would be filled out. Derricks rode to the station with Stires in her car. According to Stires' testimony, Derricks, both during the ride and at the station where he began filling out what he said was an arrest form, told her that she was going to jail for eight or ten years and that she would have to pay a twenty-five thousand dollar fine, told her that she would never work again, and asked her if she had a boyfriend and if she "liked to go to bed."
Although Stires was never placed under arrest, she believed she was and testified that she did not feel free to leave the police station and that Derricks would not allow her to call her lawyer. Derricks continued to make sexual references, told Stires that if she "said the right things" she could "get out of this", and also said that the last "white blond I did this to, did fellatio." App. at 30.
After forty-five minutes in the police station, Derricks rolled the supposed arrest report into a ball, placed it in Stires' pocketbook, and told her that she was going to be friendly and that he was going to forget about the whole thing. Derricks then told her that they were going to take a drive and that if her friend who was waiting for her at the police station did anything to interfere, she was going to jail.
According to Stires, Derricks then drove her from the station in an unmarked police car, stopped the car, kissed her and fondled her sexually, and then drove her to his apartment. There, after she used the bathroom, she found Derricks lying nude on the bed flipping a small gun back and forth between his hands. She testified that she did not feel free to leave. Derricks directed her to lie down, undressed her, and had sexual intercourse with her. Derricks gave a markedly different story than did Stires, testifying that it was Stires who had initiated the sexual encounter and that he displayed no gun.
Derricks was charged with one count each of kidnapping, kidnapping for ransom, solicitation of an emolument, gratuity, or reward for doing an official act, and official oppression. The kidnapping charges were dismissed by the court during the trial, and the solicitation count was dismissed after the jury was unable to reach a verdict. Derricks was convicted by the jury on the official oppression charge.
The Virgin Islands statute proscribing official oppression, 14 V.I.C. § 703, ...