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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, Plaintiff, Vv. COLETTE U. BROWNE and LEROY LEMUEL BROWNE, JR.., Defendants. RREKKRER CHRISTINE D. THOMAS, ESQ. Assistant Attorney General U.S. Virgin Islands Department of Justice 34-38 Kronprindsens Gade GERS Bldg., 2nd Floor St. Thomas, VI 00802 Attorney for Plaintiff MATTHEW J. DUENSING, ESQ. Stryker, Duensing, Casner, and Dollison P.O. Box 6785 St. Thomas, VI 00804 CASE NOS. ST-10-CR-115 ST-10-CR-116 JURY TRIAL DEMANDED JOSEPH MINGOLLA, ESQ. Law Offices of Joseph Mingolla P.O. Box 11550 St. Thomas, VI 00801 Attorney for Defendant Colette U. Browne CHRISTIAN, ADAM G., Judge Attorney for Defendant Leroy L. Browne, Jr. MEMORANDUM OPINION (Filed: January 24, 2011) I. Summary The Federal Rules of Criminal Procedure allow for an information to be amended if no additional offenses are charged, and there is no prejudice to the defendant. In this case, the Court has to determine whether the proposed “Superseding Information” filed by the People of the Virgin Islands (the “People”) conforms with the Rules. Because the People’s proposed document charges the defendants with additional offenses in violation of the Rules, their Motion to File a Superseding Information will be denied. People of the Virgin Islands v. Colette U. Browne and Leroy Lemuel Browne, Jr. Case Nos. ST-10-CR-115 and ST-10-CR-116 Memorandum Opinion Il. Factual and procedural background On March 17, 2010, the People filed a nine-count Information against Leroy Browne, Jr. and Colette U. Browne. The four counts against Mr. Browne charge him with violating V.I. CODE ANN. tit. 14 § 551(1) (Conspiracy), and aiding and abetting Mrs. Browne in her alleged violations of V.I. CODE ANN. tit. 14 § 2206(a), (d)(E) (Identity Theft), V.I. CODE ANN. tit. 14 §§ 605(a), 604(e)(16) (Criminally Influenced and Corrupt Organizations Act), and V.I. CODE ANN. tit 14 §§ 605(a), 604(e)(16) (Criminally Influenced and Corrupt Organizations Act). The People allege in the present Information that from January 2003 to December 2008, Mr. Browne was involved in a fraudulent scheme of producing numerous false tax returns, and collecting and cashing tax refund checks generated from the false returns. There also are six counts against Defendant Collette U. Browne, including three alleged violations of V.I. CODE ANN. tit. 14 §§ 605(a), 604(e)(16) (Criminally Influenced and Corrupt Organizations Act), one violation of V.I. CODE ANN. tit. 14 § 2206(a), (d)(E) (Identity Theft), and one violation of V.I. CODE ANN. tit. 14 § 895(a) (Conversion of Government Property). The conspiracy count is asserted against both defendants. On November 2, 2010, the People submitted a Motion to File a Superseding Information to the Court to: 1) correct the dates or statutory citations for each count; 2) dismiss Count Seven from the previous Information; and 3) add to or amend the remaining counts. The proposed Superseding Information contains eighteen counts, including twelve counts against Mrs. Browne and seven counts against Mr. Browne. Again, there is a conspiracy count asserted against both defendants. Mr. Browne responded to the People’s motion by filing an opposition memorandum on November 15, 2010. Defendant argues that proposed Counts Thirteen, Fourteen, Sixteen and Seventeen should be dismissed because they do not provide the essential facts necessary to inform him of his wrongdoing, thus violating FED. R. CRIM. P. 7(c)(1). Mr. Brown further argues that proposed Counts Twelve, Thirteen, Fourteen, Fifteen, Sixteen and Eighteen are barred by the statute of limitations. Mrs. Browne has not filed any response to the People’s motion. Ill. Discussion Although Mr. Browne’s response incorporates a motion to dismiss the proposed amended information, the Court first has to determine whether amending the existing Information is permitted under U.S. Virgin Islands law. Criminal proceedings in the Superior Court are governed by the Federal Rules of Criminal Procedure to the extent they are not inconsistent with local rules.’ The Court first notes that the applicable rule does not authorize the filing of a “Superseding Information.” Rather, FED. R. CRIM. P. 7 addresses amending an information and SUPER. CT. R. 7. People of the Virgin Islands v. Colette U. Browne and Leroy Lemuel Browne, Jr. Case Nos. ST-10-CR-115 and ST-10-CR-116 Memorandum Opinion states that “[u]nless an additional or different offense is charged or a substantial right of the defendant is prejudiced, the court may permit an information to be amended at any time before the verdict or finding.” As detailed above, the existing Information charged Mr. Browne with four counts, and Mrs. Browne with six counts, of violations of the Virgin Islands Code. The proposed “Superseding Information” adds numerous additional counts against both defendants; specifically, embezzlement by public and private officers, conversion of government property (new only as against Mr. Browne), embezzlement or falsification of public accounts, and compounding a crime. As the Territorial Court of the Virgin Islands opined in Simon v. Government, Rule 7 “is explicit in its requirement that an information may be amended only if no additional or different offense is charged.” Importantly, the new charges are not lesser included offenses of the existing charges.* Thus, any proposed amended charging document cannot insert additional charges against Defendants under Rule 7(e). As the People’s proposed “Superseding Information” includes three additional charges against Mr. Browne and six more charges against Mrs. Browne, the Court cannot grant their motion. IV. Conclusion. Because the proposed “Superseding Information” proposed by the People violates Rule 7(e) by adding several offenses against both defendants, the People’s Motion to File a Superseding Information will be denied. The Court will enter an appropriate Order with this Opinion. Dated: January IS , 2011 = Hon. Adam G. Christian Judge of the Superior Court of the Virgin Islands ATTEST: CERTIFIED A TRUE COPY Venetia H. Velazquez, E -- Clerk ofithe Court Date: tol <i ella George Z Sy —Court Clerk Supervisor bees ety FED. R. CRIM. P. 7(e) (noting in Author’s Commentary that “{a]mendments may be made at any time prior to verdict as long as a different offense is not charged”) (emphasis added). 2 47 V.I. 3, 17 (Terr. Ct. 2002) (furthering that “Such straightforward language leaves no room for alternative interpretations.”’). ‘ See, Walters v. Government, 36 V.1. 101, 107, 172 F.R.D. 165, 169 (D.V.I. App. Div. 1997) (‘Because a lesser included offense is, by definition, composed exclusively of some, but not all, of the elements of the offense charged, it would never constitute a ‘different’ offense, and seldom an ‘additional’ offense within the meaning of Rule 7(e).”) (citations omitted), aff'd 135 F.3d 764 (3rd Cir. 1997) (Table). IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN KRREEKKESK PEOPLE OF THE VIRGIN ISLANDS, ) ) CASE NOS. ST-10-CR-115 Plaintiff, ) ST-10-CR-116 ) v. ) ) JURY TRIAL DEMANDED COLETTE U. BROWNE and ) LEROY LEMUEL BROWNE, JR., ) ) Defendants. ) ) CHRISTINE D. THOMAS, ESQ. JOSEPH MINGOLLA, ESQ. Assistant Attorney General Law Offices of Joseph Mingolla U.S. Virgin Islands Department of Justice P.O. Box 11550 34-38 Kronprindsens Gade St. Thomas, VI 00801 GERS Bldg., 2nd Floor Attorney for Defendant Colette U. Browne St. Thomas, VI 00802 Attorney for Plaintiff MATTHEW J. DUENSING, ESQ. CHRISTIAN, ADAM G., Judge Stryker, Duensing, Casner, and Dollison P.O. Box 6785 St. Thomas, VI 00804 Attorney for Defendant Leroy L. Browne, Jr. ORDER THIS MATTER is before the Court on the “Motion to File a Superseding Information” filed by the People of the Virgin Islands (the “People”). The Court having entered a Memorandum Opinion of even date, and in accordance with the same, it is hereby ORDERED that the People’s Motion to File a Superseding Information is DENIED; and it is further People of the Virgin Islands v. Colette U. Browne and Leroy Lemuel Browne, Jr. Case Nos. ST-10-CR-115 and ST-10-CR-116 Order ORDERED that copies of this Order and the accompanying Memorandum Opinion shall be served on Defendants Colette Browne and Leroy Browne, and also directed to all counsel of record. Dated: January }: >, 2011 ATTEST: Venetia H. Velazquez, Esq. ,; Clerk of the Court 45 a ‘caus Court Clerk oF cies / LI A! Ll~ZeE _ on. : AdanrG, Christian Judge of the Superior Court of the Virgin Islands CERTIFIED A TRUE COPY Date: / if Vensfia ia H, Velazquez, Es Jeroof the Cgurt , By: