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Government of Virgin Islands v. Pemberton

filed: March 13, 1987.

GOVERNMENT OF THE VIRGIN ISLANDS, APPELLANT
v.
ARTHUR PEMBERTON



On Appeal from the District Court of the Virgin Islands, D.C. Criminal No. 85/52.

Author: Sloviter

SLOVITER, STAPLETON and ROSENN, Circuit Judges.

Opinion OF THE COURT

SLOVITER, Circuit Judge

The Government of the Virgin Islands appeals from the order of the District Court of the Virgin Islands, Appellate Division, affirming the order of the Territorial Court of the Virgin Islands dismissing an information against appellee Arthur Pemberton on the ground that the delay in bringing Pemberton to trial violated the speedy trial guarantee of the Sixth Amendment. In its opinion, the Appellate Division also suggested that the information was defective.

I.

Facts

Pemberton was arrested on November 28, 1983 together with Sergio Figueroa following an incident that evening when Orville Holder, the Assistant Manager of the Marriott In Flight Services office at the Alexander Hamilton Airport, St. Croix, Virgin Islands, surprised two men on the Marriott premises. According to the affidavit filed in support of the information, the lock of an outer security gate had been broken off, and the knob to the office door had been removed and the door opened. In addition, the door to a tool room on the premises had been pried open. The two men were crouched in a doorway in the vicinity of the tool room. Holder shouted at the intruders who ran away.

A police officer responding to the call picked up Pemberton and Figueroa walking on the road near the airport, and they were identified by Holder as the intruders. That same night, present counsel, Douglas A. Brady, was appointed for Pemberton, and bail was set at $100,000. A motion to reduce bail was promptly filed with the Territorial Court, and Pemberton was released when bail was reduced to $10,000 the following day, November 29, 1983.

On December 1, 1983, the Attorney General of the Virgin Islands filed an information in the Territorial Court charging Pemberton with third degree burglary in violation of 14 V.I.C. ยง 444(1). There was a hearing on January 5, 1984, at which Pemberton was informed of his rights and given a copy of the information. On January 18, 1984, Pemberton pleaded not guilty and demanded a jury trial. Pemberton was represented at the January 5 and January 18 hearings by Joseph Ponteen, an attorney with the Office of the Public Defender.

On March 14, 1985, Pemberton, through his present counsel, filed a motion to dismiss all charges on the ground that the failure to try him or even set a trial date violated his Sixth Amendment right to a speedy trial. On June 6, 1985, the Territorial Court granted Pemberton's motion to dismiss the information and the government appealed to the District Court of the Virgin Islands, Appellate Division, which affirmed the order on January 27, 1986.

II.

Speedy Trial Right

The decisions of the Territorial Court and the Appellate Division in this case preceded the recent opinion of this court holding, under circumstances similar to those here, that a delay of 18 months between the filing of the information and trial did not deny defendant his constitutional right to a speedy trial. See ...


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