DUDLEY, TOPPER

DUDLEY, TOPPER AND FEUERZEIG, UP 1000 Frederketerg 13.50e P.O. Box 756 7homee, US. VI 076060756 (344) 774-4422 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, v. JOHN P. DE JONGH, JR., Plaintiff, Defendant. Case No. ST-15-CR-309 Hon. Michael C. Dunston Presiding Judge :fl DEFENDANT'S MOTION TO DISMISS THE INFORMATION PURSUANT TO FED. R. CRIM. P. 12(b)(3)(B)(iv) Defendant, Gov. John P. de Jongh, Jr., respectfully moves this Honorable Court pursuant to Fed. R. Crim. P. 12(a)(3)(B)(iv) and Super. Ct. R. 7 for an order dismissing the Information dated September 2, 2015. (Exhibit A),I INTRODUCTION The fact that the People's entire case against Gov. de Jongh hinges on a matter of remedial English punctuation makes one thing perfectly clear: this case is not legitimately about the criminal law. Instead, it appears to be a politically -driven and poorly conceived vendetta initiated by the current Governor, whom Gov. de Jongh defeated handily in his last reelection campaign in 2010. This sham prosecution is a disgrace both upon the Virgin Islands Department of Justice and the Governor's Office. The current Administration accuses Gov. de Jongh of stealing approximately $490,000.00 from the public fisc and using the money to add value to his private home. Ironically, in the short time the current Governor has been in office he has apparently already I The instant motion is in addition to Gov. de Jongh's motion to dismiss the charges against him as time-barred, filed on September 3, 2015. The People filed no opposition to that motion, and it is far too late to do so now. EFTA01074706 People v. de Jongh Crim. No. ST- I5-CR-309 Defendant's Motion to Dismiss the Information Page 2 of 25 spent such an obscene amount of Virgin Islands taxpayer money on so-called "living expenses" — a $12,500.00 per month residential lease now superseded by the daily cost of a suite at the Virgin Islands' most expensive hotel, the Ritz-Carlton St. Thomas;2 $16,000.00 for limousine and car service on a recent trip to New York City;3 $18,000.00 for air travel in connection with said trip;4 $5,300.00 for sheets and bedclothes; 5 and $65,000.00 per year for the Governor's "personal chef,"6 to name but a few — that it will quickly dwarf the amount at issue here, which consists of security costs for the entire eight years that Gov. de Jongh was in office — and even then, much of which Gov. de Jongh had long ago offered to repay.7 2 See Virgin Islands Daily News, Villa Mapp Controversy (June 24, 2015); see also http://viconsortium.cornffeaturedkovernor-mapp-is-living-out-of-a-suitcase-at-the-ritz-carlton- when-in-st-thomas-2/ DUDLEY, TOPPER AND FEUERZEIG, LLP loot) Frederllateg Gide PO. Bak 758 Si.Thcoust U.S. V100804-075B (340) 774-4422 3 See Virgin Islands Daily News, Mapo, Party Run Up $16,000 in Limo. Car Service Charges (September 22, 2015). 4 See Virgin Islands Daily News, Jvlapp Uses Government Card for Beer. Hotels. Tickets (September 21, 2015). See id.; see also Si. Croix Source, Many Flying High on Taxpayers' Dime (Sept. 10, 2015) (describing $87,000.00 in travel expenses linked to use of private jet service). 6 See Virgin Islands Daily News, Map) Has $65K-a-Year Chef on Taxpayer's Dime (July 6, 2015). 7 There has been no abatement in this apparent pattern of abuse. It was reported that the current Administration leased a St. Thomas condominium for the personal use of our new Lieutenant Governor — who already resides on St. Thomas — paid for with public funds and blessed by the present Governor, who reportedly signed the lease. In a remarkable bit of hubris, the current Governor acted over the advice of his own Chief Legal Counsel that doing so was illegal. Virgin Islands Daily News, Potter Told in March Public Funds Not For Condo (Oct. 28, 2015). And most recently, a lawsuit was filed against the Governor and others by his own Deputy Legal Counsel alleging she was wrongfully terminated after responding to a request for public records reflecting the Governor's inappropriate spending habits. Virgin Islands Daily News, Attorney Sues Mapp Over Spending Records Fallout (Oct. 30, 2015). To the undersigned's knowledge, neither the Governor nor Lieutenant Governor has yet been charged with any criminal conduct. EFTA01074707 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 3 of 25 Just writing these words is infuriating. Doing so in defense of spurious criminal charges leveled against a good man who devoted eight years of his life to high public service pushes tolerance well beyond its reasonable limit. For the reasons set forth below, the Information does not state a crime against Governor de Jongh. The charges must be dismissed. Punishment of the individuals behind this sham prosecution must await another day. FACTS As explained in Gov. de Jongh's September 3, 2015, motion to dismiss the Information as time-barred pursuant to V.I. Code Ann. tit. 5, § 3541(a)(2), Gov. de Jongh is charged with one count each of violating V.I. Code Ann. tit. 14, § 1662(1) and V.I. Code Ann. tit. 14, § 1663(1). The allegations are based on events that took place in 2007-2008, that transpired entirely in the public eye, and that were widely reported in the Virgin Islands Daily News and other local media outlets. DUDLEY, TOPPER AND FEUEFIZEICL LLP WOO Fredeeketei Gado P.O. hoc 766 &llama US. VI 006040756 O40)774-4422 Shortly before he took office, Governor de Jongh decided to reside at his St. Thomas home instead of Government House or Estate Catherineberg, neither of which had been the residence of the Governor of the Virgin Islands for many years. He did so in large part because the former was no longer configured as a house and the latter would require the expenditure of millions of dollars in security and other improvements before it could be habitable by the de Jongh family. Security improvements to the de Jongh residence, on the other hand, could be constructed at a fraction of that cost. In early January 2007, when Gov. de Jongh made his housing plans public, the V.I. Department of Public Works solicited an opinion from Acting Attorney General Elliot "Mac" EFTA01074708 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 4 of 25 Davis questioning whether it was appropriate to expend public money on construction at Gov. de Jongh's personal residence to maintain an appropriate level of security and protection for the Governor and his family. Davis concluded that it was.8 On January 30, 2007, Robert L. Moorehead, Acting Commissioner of the V.I. Department of Public Works, wrote a letter to Gov. de Jongh in his capacity as Board Chairman of the V.I. Public Finance Authority. (Exhibit C.) Moorehead specified six construction projects that required funding and the estimated cost of each, including the de Jongh security project and the construction of vaults at the Eastern Cemetery in Red Hook. Moorehead requested that Act No. 6427 be amended to permit spending on these projects. Notably, Act No. 6427 itself had reprogrammed funds originally pledged to the Savan Gut Project (which was not "road" construction) for use on the Nadir Bridge Flood Control Project, Mon Bijou Flood Control Project and Blue Lightning/HIDTA Project — none of which involved the building or repair of "roads." 2001 V.I. Session Laws, Act No. 6427, Section 22, at 148-149. Copied on the letter was then-Senator Carlton Dowe, among others. On March 21, 2007, Omnibus Bill No. 27-0039 was put to a vote in the Senate. The bill containing the proposed amendment to Act No. 6427, designated Section 17, was sponsored by Sen. Dowe. The text reads: DUDLEY, TOPPER AND FEUERZEIG, LIS Fredolketerg Gado P.O. Box 758 Sl.lhomes. US. VI 00004475e (340) 774.4422 SECTION 17. The sum of $1,305,000.00 is appropriated for the fiscal year ending September 30, 2007, from the General Fund to the Department of Public Works for engineering designs, construction, repairs or the resurfacing or roads. The sum remains available until expended. A copy of the January 2, 2007, opinion letter (the "Davis Opinion") is attached hereto as Exhibit B. EFTA01074709 People v. de Jongh Crim. No. ST-I5-CR-309 Defendant's Motion to Dismiss the Information Page 5 of 25 (Exhibit D (copy of Bill No. 27-0039 with "roll call" Senate voting record) (bold and italics added).) Most relevant for the Court's purpose here is the structure of the highlighted portion: — No comma is placed between the noun "repairs" and the conjunction "or." Although any Senator present could have asked for debate before voting on Act No. 6917, none did. Bill No. 27-0039 was passed unanimously by voice vote. (Id.) As enacted into law, Act No. 6917 mirrors the language of Bill No. 27-0039: The sum of $1,305,000 is appropriated in the fiscal year ending September 30, 2007, from the savings realized in SECTION 16 to the Department of Public Works for engineering designs, construction, repairs or the resurfacing of roads. The sum remains available until expended. DUDLEY. TOPPER AND FEUERZEIG, LLP 1000 FrOdedaberg e•0e P.D. Da 756 St Thames. U.S. VA. 00804-0750 (S40) 774-4422 2007 V.I. Session Laws Act No. 6917, at 17 (bold and italics added). Unsurprisingly, the statute mirrors the bill in its punctuation: again, no comma is placed between the noun "repairs" and the conjunction "or." On April 25, 2007, after Act No. 6427 was amended, Commissioner Designate Darryl A. Smalls wrote to Julito Francis, Director of the V.I. Public Finance Authority, requesting that Francis notify Commissioner Lynn Millin of the V.I. Department of Property and Procurement that Act No. 6917 funds were available for use on the six projects previously identified by Moorehead. (Exhibit E.) Finally, on April 30, 2007, Director Francis wrote to Commissioner Millin that funding for the six projects was available and the Department of Property and Procurement was required to forward contracts, vendor certifications and the like per established procedure. (Exhibit F.) Once these were approved, the Department of Public Works could submit vendor invoices for EFTA01074710 People v. de Jongh Crim. No. ST-I5-CR-309 Defendant's Motion to Dismiss the Information Page 6 of 25 payment along with all appropriate certifications. The inclusion of "construction" and "engineering designs" in Act No. 6917 permitted the V.I. Department of Public Works to draw upon the $1,305,000.00 to pay for a variety of public projects, including vaults at the Eastern Cemetery and drainage improvements both on St. Thomas and St. Croix. As reported by local media at least as far back as 2009, approximately $490,000.00 of Act No. 6917 funds were used to construct the security improvements at the de Jongh residence. See Virgin Islands Daily News, Governor Points to Legal Review that OK'd Security Improvements at Mafolie Home (July 7, 2009). Realizing that the nature of some of the improvements were permanent and would last beyond his term of office, Gov. de Jongh publicly announced that he would pay the Government of the Virgin Islands the value of whatever remained permanently affixed to his property — i.e., the relocated and widened driveway and the perimeter fencing. See St. Croix Source, Gov. de jongh Condemns 1O Report, Says Security Spending was Proper (February 16, 2010).9 Soon thereafter, then-Senator Adlah "Foncie" Donastorg, Jr., an especially strident political opponent of Gov. de Jongh, initiated Senate hearings purportedly to investigate what the media colorfully coined "Mafoliegate." At the October 20, 2009, hearing in the Legislature, the Senate heard testimony from Nicole Turner-Wilkinson, Chief Engineer for the V.I. Department of Public Works, which had DUDLEY, TOPPER AND FEUERZEIG, LIP IW0 Froderlotwitg pa Box 756 Thognits, 05664015/ (340) 774.4422 9 Gov. de Jongh had made this same announcement as far back as November 2009. See Virgin Islands Daily News, De Jongh Mends Fences (Nov. 7, 2009) ("I will also be instructing the attorney general to prepare a legal and binding agreement that sets forth my commitment to do the following: at the end of my term in office and the removal of whatever physical improvements and equipment are removed, an appraisal of the value of what remains shall be provided to me and my wife as the owners of the real property upon which the improvements were made." (quoting Gov. de Jongh)). EFTA01074711 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 7 of 25 DUDLEY, TOPPER AND FEUERZEP3, LLP IMO Fnalsclaterg G464 P.0. Bac 756 Si. Thanes, U.S. Vi. 02604-0756 (340) 774.4422 put the work up for competitive bidding.10 Ms. Turner-Wilkinson explained that of the three options for housing Gov. de Jongh and his family, only one was economical: installing security measures at the de Jongh residence. The first option, Government House, was not viable, as it had been reconfigured into offices and meeting spaces and had limited space. The second, the WICO mansion, Estate Catherineberg, had fallen into disrepair. The remedial and security work necessary to house the de Jongh family there would have exceeded $2,000,000.00 in public funds and taken between twelve (12) to fifteen (15) months to complete — during which period the de Jongh family would have insufficient security. Improving the de Jongh property with a guardhouse, perimeter fencing and an expanded driveway was expected to cost far less than the Catherineberg project and the First Family would be able to reside there through the construction process. Finally, Turner-Wilkinson testified that all aspects of the project had been the subject of a competitive bidding process. The hearings did not result in the censure of Gov. de Jongh, let alone a call for his arrest and prosecution. Donastorg then called upon the Office of the Inspector General ("OIG"), a branch of the U.S. Department of the Interior, to audit the facts behind "Mafoligate." What the public did not know at the time was that Hannibal M. Ware, OIG's Regional Manager, is Donastorg's cousin, and Ware was instrumental in the OIG's decision to take up the matter and "fast track" the audit. In January 2010, the OIG issued its report, titled Security Improvements at Governor of the Virgin Islands Private Residence (hereinafter "OIG Report")." First, the OIG Report acknowledged that "security is a necessity for any sitting 10 A copy of Ms. Turner-Wilkinson's testimony is attached hereto as Exhibit G. EFTA01074712 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 8 of 25 Governor." OIG Report (cover letter from Acting Inspector General Mary L. Kendall); see also id. at 5 ("We recognize that security is a necessity for any sitting Governor. In fact, past Virgin Islands governors have had some level of security at their private residences regardless of where they officially resided while in office."). Second, the OIG Report took note of the Davis Opinion (written not at the request of Gov. de Jongh but that of Othniel Vanterpool, Director of Operations at the Department of Public Works). Acting Attorney General Davis had opined that "the cost of security related improvements to the Governor's residence may be properly incurred by the Government." Davis Opinion at 1. Of course, the Davis Opinion predated all of the construction performed at the de Jongh residence. (See OIG Report at 2.) Under the heading "Public Funds Used Improperly," the OIG Report addressed what would become the critical issue in this case: whether the Virgin Islands Legislature had authorized the expenditure of public funds for the de Jongh security project. O1O Report at 2-3. The OIG Report correctly notes that the funds had been reprogrammed by Act No. 6917. Inexplicably, the OIG Report then misquotes the statute, part of an omnibus appropriations bill, as follows: In April 2007, the Legislature passed Act No. 6917, reprogramming the $1.3 million [originally appropriated for the Nadir Flood Control Project] for the specific purpose of engineering design, construction, repair, or resurfacing of roads. DUDLEY,TOPPER AND FEUERZEIG, LIP 1000 Fre0wIlestarg GS* Box 756 SI.Thoffir. U8. VI 030040756 (340) 7744422 OIG Report at 2 (bold and italics in original). On this, the most crucial issue in the case now before the Court, the OIG Report gets this rather simple sentence materially wrong, resulting in an erroneous interpretation of its meaning: ti A copy of the O1O Report is attached hereto as Exhibit H. EFTA01074713 People v. de Jongh Crim. No. ST-I5-CR-309 Defendant's Motion to Dismiss the Information Page 9 of 25 DUDLEY, TOPPER AND FEUERZEIO, LLP 1000 Freclerkiteg Gado P.O. Bac 758 8/Thane& U8. Vi. 000040758 040) 7744422 — that the $1,305,000.00 could be used only for roads, to the exclusion of any other type of construction project.I2 As explained below, the addition in the OIG Report of a comma after the noun "repair" and before the conjunction "or" is highly material to the charges against Gov. de Jongh — and most regrettably, simply flat-out wrong. As the Court can see, Act No. 6917 itself inserts no comma after "repairs" (the plural form used in Act No. 6917, erroneously quoted in the singular in the OIG Report). In the context of this case, the significance of the OIG Report's error cannot be overstated. The OIG Report goes on to discuss the alleged "legislative process" behind Act No. 6917 as relayed to the OIG by six unidentified "senators." (OIG Report at 2.) These anonymous senators reportedly claimed that "the funds [reprogrammed by Act No. 6917] were intended for the purpose of Virgin Islands road improvements[,]" particularly on St. Croix. Id. From its erroneous reading of Act No. 6917's text and the post hoc comments of the anonymous legislators, the OIG Report concludes: "Clearly, no part of the $1.3 million was to be used for security improvements at the Governor's private residence — or for any other purpose." Id. (bold and italics added). As demonstrated below, the highlighted text shows either the depth of the OIG's misunderstanding of Act No. 6917, or that the OIG Report was published illegitimately, as deliberately inaccurate propaganda. After reiterating that ensuring the safety of Gov. de Jongh and his family is a legitimate 12 The OIG Report also erroneously uses the singular for "design" and "repair" instead of Act EFTA01074714 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 10 of 25 DUDLEY, TOPPER AND FEUERZEIO, LLP woo Freclerlksbem Gale P.O. Bac 756 Si. Thomas. U.S. V.I. 06034•07ft (340) 7744422 public concern, the OIG Report ends by proclaiming "[t]he Executive Branch of Government ... cannot independently determine the purpose for which public funds are used. Only the Legislature has the authority to appropriate public funds to pay for security improvements for any governor." (OIG Report at 5.) The OIG Report does not recommend that criminal charges be brought against Gov. de Jongh, nor even that Gov. de Jongh personally pay the cost of the security to the Government — rather, that responsibility is attributed to the "Executive Branch." (Id.) In the four years that followed the issuance of the OIG Report, the parties connected to "Mafoliegate" remained silent, save then-gubernatorial candidate Kenneth Mapp. Mapp repeatedly referred to the "Mafoliegate" controversy during his 2010 campaign. The voters of the Virgin Islands were unimpressed. In November 2010, Gov. de Jongh defeated Mapp and was elected to a second four-year term. After the election Mapp reportedly told Gov. de Jongh that "the voters have spoken" and had clearly rejected "Mafoliegate" as a basis for denying Gov. de Jongh a second term, and that he considered the matter closed. In July 2014, the Senate passed a Resolution criticizing Gov. de Jongh for the security measures constructed at his residence and "urging and requesting" that he pay all of the original cost of the security improvements at his residence, including approximately $50,000.00 for electronic security equipment that the V.I.P.D. Department of Executive Safety would remove from the de Jongh property as soon as his second term expired. Committee on Rules and No. 6917's use of the plural form in both cases. EFTA01074715 People v. de Jongh Crim. No. ST- I5-CR-309 Defendant's Motion to Dismiss the Information Page II of 25 Judiciary Bill No. 30-0042 (July 21, 2014).13 The Resolution did not suggest that the Attorney General bring criminal charges against Gov. de Jongh. In November 2014, Mapp was elected Governor of the Virgin Islands over the Democratic Party nominee Donna Christensen. In April 2015, his governorship over, Gov. de Jongh drew a check in favor of the Government of the Virgin Islands in the amount of $202,831.60 to fulfill the pledge he had made. The check was delivered to Government House along with an analysis of how the number was arrived at, which included three separate appraisals by local real estate companies as to the then-present value the construction added to the de Jongh property. In May 21, 2015, then-Acting Attorney •General Terri Griffiths, Esq.14 called a press conference announcing that her office was investigating criminal charges against Gov. de Jongh based on the security improvements at the de Jongh residence and that the $202,831.60 check had been returned as "rejected." In late May 2015, Griffiths stepped down (or, according to some sources, was forced out) as Acting Attorney General. Gov. Mapp then nominated former Superior Court Judge James S. Carroll III to the position. Judge Carroll and Gov. de Jongh's counsel spoke by telephone concerning Griffiths' press conference. Counsel reminded Judge Carroll that Gov. de Jongh had always intended and DUDLEY. TOPPER AND FEUERZEICL LLP 1000 Paristerg Oatla P.O. Box 756 St Thema 1St V.1.00631-0756 (040) 774-4422 13 A copy of the Resolution is attached hereto as Exhibit I. 14 Griffiths took the post after Gov. Mapp's first choice, Soraya Diase-Coffelt, abruptly resigned in January 2015, The nomination of Griffiths resulted in what has been described as an "open revolt" by the VIDOJ staff. See http://viconsortium.comifeatured/virain-islands-doi-in-open- revolt-after-mapp-appoints-terri-griffiths-as-acting-attomev-general/ . EFTA01074716 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 12 of 25 publically stated his intention to pay the Government the present value of the structures that remained on his property after he was out of office. Counsel asked Judge Carroll to examine the case file and to consider recommending to Gov. Mapp that the check be accepted and the matter dropped. Judge Carroll assured counsel he would look into the matter. Counsel never heard back from Judge Carroll. Instead, in early August 2015, Gov. Mapp asked Carroll to step down. The timing strongly suggests that Mapp did so because Judge Carroll had concluded that "Mafoliegate" was not a criminal matter. Mapp then nominated Attorney Claude Walker for the position of Acting Attorney General. St. Croix Source, Attorney General: Another One Bites the Dust (August 1, 2015). It appears that in Walker, Gov. Mapp found the right person to do his bidding. On August 18, 2015, Gov. de Jongh was arrested for purportedly violating V.I. Code Ann. tit. 14, § 1662(1) and V.I. Code Ann. tit. 14, § 1663(1). ARGUMENT DUDLEY, TOPPER AND FEUERZEIG, LLP 1000 Frodedlabeg Gels Box 756 St Thome& U.S. MI. 00004-0766 (340) 774-4422 A. Rule 12 Standard Simply put, the alleged facts contained in the Information drawn up at the leisure of the Attorney General must set forth all of the elements of the offense charged or the Information must be dismissed. See Fed. R. Crim. P. 12(a)(3)(B)(iv); United States v. Enmons, 410 U.S. 396, 400 (1973) (upholding dismissal of indictment alleging Hobbs Act violation where the defendant's conduct alleged by the government was not "wrongful" as defined by the statute); United States v. Schmidt, 2004 U.S. Dist. LEXIS 24628, •5-6 (D.S.D. Nov. 2, 2004) ("To convict Defendant under § 3146(a)(1), the Government must prove that: 1. He had been released EFTA01074717 People v. de Jongh Crim. No. ST-I5-CR-309 Defendant's Motion to Dismiss the Information Page I3 of 25 on bail pending trial; 2. He was required to appear before a court; and 3. He knowingly failed to appear. Neither 18 U.S.C. § 3141, et. seq. nor the Federal Rules of Criminal Procedure, see Fed. R. Crim. P. 46, authorize the United States Marshal's Service to grant bail or release a criminal defendant on conditions pending trial. Defendant is therefore correct that the Marshal's Service is not a `court' under § 3146(a)(1). Inasmuch as the Marshal's Service is not a 'court', failure to appear before it, as ordered by this Court, does not violate § 3146(aX1)." (citations omitted)). If the allegations do not support each and every element of the crime charged, the Information must be dismissed. See United States v. Brownfield, 130 F. Supp. 2d 1177, 1184 (C.D. Cal. 2001) (indictment under to 18 U.S.C. § 876 and 1 U.S.C. § 1 for sending letter to FBI via U.S. Mail containing threat to another person dismissed as "the text and legislative history of both section 876 and section 1, relevant case law, and the longstanding principles of statutory interpretation support prosecution under section 876 only when the threatening communication is addressed to a person and not an agency of the federal government."). As explained below, the allegations against Gov. de Jongh do not constitute a crime. B. The Relevant Statutes In this case, there are three statutes that must be examined. Count One charges Gov. de Jongh with violating Section 1662(1) of Title 14 of the Virgin Islands Code, which reads in relevant part: DUDLEY, TOPPER AND FEUERZEIG, LIP 1000 Fredetikoterg Gab P.O.ar; rse ahem's. u.s.vi. 0080/4786 (MD) 774-4412 Whoever, being a public officer or person charged with the receipts, safekeeping, transfer or disbursement of public monies — (1) appropriates the same, or any portion thereof to his own use or the use of another, without authority of law; ... shall be fined not more than ten thousand ($10,000) dollars or imprisoned not more than ten (10) years, or both, and shall be disqualified from holding any public office. EFTA01074718 People v. de Jongh Crim. No. ST-I 5-CR-309 Defendant's Motion to Dismiss the Information Page 14 of 25 V.I. Code Ann. tit. 14, § 1662(1) (bold and italics added). Count Two charges Gov. de Jongh with violating Section 1663(1) of Title 14 of the Virgin Islands Code, which reads in relevant part: Whoever — (1) being an officer charged with the receipt, safekeeping, or disbursement of public money, neglects or fails to keep and pay over the same in the manner prescribed by law; ... shall be fined not more than ten thousand ($10,000) dollars or imprisoned not more than ten (10) years, or both, and shall be disqualified from holding any public office. V.I. Code Ann. tit. 14, § 1663(1) (bold and italics added). Both statutes were adopted in the original 1921 Virgin Islands Code and have changed very little over the years except for the punishments for violation, which have been increased by amendment. I5 The third statute, of course, is Act No. 6917, which specifically provides that $1,305,000.00 in public funds are available to be spent "for engineering designs, construction, repairs or the resurfacing of roads." C. The Rules of Statutory Construction It is axiomatic that a statute must be enforced as written, because its plain language is most relevant in determining legislative intent: DUDLEY, TOPPER AND FEUERDEIG, LIP loco Frociseition, Gado RO. floc 756 Si. Tian's. U.S V.L 00604-0758 (340) 774-4422 In interpreting a statute, we commence with the plain language of the statute. If the language is clear and unambiguous, there is no need to resort to any other rule or statutory construction. Dodd v. United States, 545 U.S. 353, 359, 125 S. Ct. 2478, 162 L. Ed. 2d 343 (2005) (holding that when the statute's language is plain, the sole function of the Court, at least where the disposition required by the text is not absurd, is to enforce it according to its terms.) Accord Gilbert v. People, 52 V.I. 350, 356 (V.I. 2009). See also In re Adoption of Sherman, 49 V.I. 452, 468 (V.I. 2008) ("In IS A copy of Chapter 9 of the 1921 Code is attached hereto as Exhibit J. EFTA01074719 People v. de Jongh Crim. No. ST-I5-CR-309 Defendant's Motion to Dismiss the Information Page 15 of 25 interpreting a statute, the court looks first to the statute's plain meaning and, if statutory language is facially unambiguous, its inquiry comes to an end") (internal quotation marks and citations omitted). The United States Court of Appeals for the Third Circuit has held consistently that legislative intent is presumably expressed through ordinary meaning of the words it chose to use, and if the statutory language is unambiguous, the plain meaning of words is ordinarily regarded as conclusive. DUDLEY, TOPPER AND FEUERZEIO, LLP '000 Rocinsterg Gado PO. Box 756 Thomas. US. MI. 00804-0766 040 774.4412 Shoy v. People, 55 V.I. 919, 926-927 (V.I. 2011). Accord James v. de Jongh, 52 V.I. 202, 208 (Super. Ct. 2009) ("Courts must presume that a legislature says in a statute what it means and means in a statute what it says there. Consequently, the first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete." (citations and internal quotations omitted). "The plain meaning of a statute will typically heed the commands of its punctuation." Pawn 1st LLC v. City of Phoenix, 294 P.3d 147, 149 (Ariz. Ct. App. 2013) (internal quotation omitted). Analyzing a statute for its plain meaning, then, requires an examination of its punctuation. See In re Lehman Bros. Mortgage -Backed Securities Litig., 650 F.3d 167, 176 (2d Cir. 2011) (to interpret the statute at issue, "we begin, as we must, with the statute's text, considering the ordinary meaning of Congress's chosen language as informed by its punctuation."). The grammatical rule known as the "doctrine of last antecedent" is the concept most germane to this Court's analysis. "Under that principle, qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to and including others more remote." Elliot Coal Mining Co., Inc. v. Director, Office EFTA01074720 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 16 of 25 DUDLEY, TOPPER AND FEUERZEICL LLP 1000 Ft6961kiberg P.O. Box 756 64.11wma. U.S. V.L 000044)756 (940) 774-4422 of Workers Compensation Programs, 17 F.3d 616, 629 (3d Cir. 1994) (internal quotation omitted). "Under the normal rules of English punctuation for words in a series, it is the absence of a comma or other punctuation before the coordinate conjunction 'or' that would indicate it and its modifier, the limiting adjective clause, are to be treated separately rather than as part of the whole series. Conversely, the presence of a comma before the last clause in the statute suggests that the limiting clause applies to the entire series." Id. at 630 (citation and internal quotation omitted). Accord• State v. Kluessner, 389 N.W.2d 370, 371-372 (Iowa 1986) ("Ordinarily, qualifying words and phrases refer only to the immediately preceding antecedent. The absence of a comma following 'special verdict' also suggests that the phrase 'upon which a judgment of conviction is tendered' was intended to modify only 'special verdict' and was not intended to travel further forward in the sentence to modify 'plea of guilty' or 'verdict of guilty.' (citation omitted)); State v. Harm, 340 P.3d 1110, 1115 (Ariz. Ct. App. 2015) ("Here, the enhancer applies to 'any felony offense [committed] with the intent to promote, further or assist any criminal conduct by a criminal street gang.' A.R.S. § 13-714 (emphasis added). In contrast, the offense Harm was acquitted of penalizes commission of 'any felony offense, whether completed or preparatory for the benefit of, at the direction of or in association with any criminal street gang.' A.R.S. § 13-2321(B) (emphasis added). In the absence of a comma separating 'preparatory' from "for the benefit of,' we must read the singular, unitary provision, 'preparatory for the benefit of,' as a non-restrictive clause modifying 'any felony offense.'"); Pawn 1st LLC, 294 P.3d at 311-312 ("Among the rules of punctuation we consider is the 'last antecedent rule.' As applied in Arizona, the last antecedent rule requires that a qualifying phrase be applied to the word or phrase immediately preceding as long as there is no contrary intent indicated." (citation EFTA01074721 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 17 of 25 and internal quotation omitted). The Supreme Court of the Virgin Islands applied the doctrine of last antecedent in Fontaine v. People, 59 V.I. 1004 (V.1.2013). In Fontaine, the Office of the Territorial Defender ("OTD") moved the trial court for permission to withdraw from representation of an indigent defendant. The motion was denied. On appeal, OTD argued that it had the right to unilaterally withdraw under Virgin Islands Code Ann. tit. 5, § 3524 ("Section 3524"), which provides: "When representing an indigent client in a criminal proceeding before the Superior Court, the Public Defender shall counsel and defend such client at every stage of the proceedings against him, and at any appeals or other remedies before or after conviction that he considers to be in the interest of justice." Id. at 1009. Affirming the court below, our Supreme Court relied on the doctrine of last antecedent to interpret Section 3524: DUDLEY, TOPPER AND FEUERZEIG, LLP WOO Fr9191440,40 owe P.O. Bat 756 St. 77anas. U.S. V.I. 00604-0756 (340) 774.4422 Although not directly stating so, it appears that Onyejekwe believes that the language "that he considers to be in the interest of justice" modifies all language that precedes it. We disagree. When interpreting a statute, courts should consider the grammatical "rule of the last antecedent," under which `a limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediately follows." Barnhart v. Thomas, 540 U.S. 20, 26, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). "The last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence." Waid v. State ex reL Dept of Transportation, 996 P.2d 18, 23 (Wyo. 2000) (quoting 2A Sutherland Statutory Construction § 47.33 at 270 (5th ed. 1992)) (internal quotation marks omitted); accord Newberry Station Homeowners Ass'n v. Board of Supervisors, 285 Va. 604, 740 S.E.2d 548, 554 (2013). Applying the rule of the last antecedent, the language in section 3524 Onyejekwe relies on — "that he considers to be in the interest of justice" — would only modify "other remedies before or after conviction," and not "appeals" or "every stage of the proceedings against him." EFTA01074722 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 18 of 25 Fontaine, 59 V.I. at 1009-1010. Applying the doctrine of last antecedent in the matter at bar must lead to a dismissal of the Information. In this case, the probable cause affidavit signed by V.I.P.D. Special Agent Kenneth Schulterbrandt Jr. dated August 17, 2015 (the "Schulterbrandt Affidavit" (Exhibit K)), was used to support the charges in the Information. The Schulterbrandt Affidavit was obviously (but without attribution) cribbed directly from the OIG Report.16 Schulterbrandt alleges that Gov. de Jongh acted "without authority of law" (required under V.I. Code Ann. tit. 14, § 1662(a)) and "neglect[ed] or failed] to keep and pay over the same in the manner prescribed by law" (required under V.I. Code Ann. tit. 14, § 1662(a)) solely because the $490,000.00 used for the de Jongh construction project was dedicated exclusively for "territorial road projects," and not construction projects like the de Jongh security construction. (Schulterbrandt Affidavit ¶ 7.) Schulterbrandt concludes that Gov. de Jongh "unlawfully diverted ... Act No. 6917 [funds] to serve his own personal interests." (Id. ¶ 13.) Maddeningly, Schulterbrandt concludes by making the exact same error made in the OIG Report, asserting that Gov. de Jongh "willfully, knowingly and intentionally misappropriated specifically earmarked public funds that belonged to the United States Virgin Islands Government and were to be used solely for the purpose of engineering design, O1./DLEY, TOPPER AND FEUERZEIG, LLP IOW Frederiksberg OS. PO. Box 756 St Thomas. US V1006140756 (340) 774.4472 16 Compare Exhibit K to Exhibit H, the OIG Report. That Schulterbrandt simply copied the OIG Report for his probable cause affidavit is obvious. It is also deeply disturbing that Schulterbrandt did not perform his own independent investigation. When the Court grants Gov. de Jongh's pending motion for a probable cause hearing, the Court can ask Schulterbrandt under oath why he gave such a rubber-stamp to a document the contents of which he plainly had no personal knowledge. EFTA01074723 People v. de Jongh Crim. No. ST-I5-CR-309 Defendant's Motion to Dismiss the Information Page 19 of 25 DUDLEY, TOPPER AND FEUERZEIO, LLP 1000 Fnic1/44100mg 0.050 12.0. Bat 756 St Tres. U.S. VI 00604-0756 (310) 774.4422 construction, repair, or resurfacing of roads in the United States Virgin Islands." (Id. ¶ 14 (bold and italics added).) Like the OIG Report he plagiarized for his affidavit, Schulterbrandt misspells "design" and "repair," both of which are in plural form in Act No. 6917. More importantly, Schulterbrandt inserts a comma between the noun "repair" and the conjunction "of' that does not appear in Act No. 6917. As the Attorney General would have it, then, Act No. 6917 must be read as authorizing expenditure only on (1) engineering designs of roads; (2) construction Qf roads. (3) repair of roads. or (4) resurfacing of roads. Nonsense. First if the Senate had intended to limit the expenditure of Act No. 6917 funds only on roads, the statute would simply have read: "The sum of $1,305,000 is appropriated in the fiscal year ending September 30, 2007, ... to the Department of Public Works for roads." The rest — engineering designs, construction and repairs — would be mere surplusage. The law abhors such a result. See DelRio-Mocci v. Connolly Properties, Inc., 672 F.3d 241, 249 (3d Cir. 2010) ("It is a well known canon of statutory construction that courts should construe statutory language to avoid interpretations that would render any phrase superfluous." (internal quotation omitted)). As explained in detail above, the de Jongh construction project was not the only non-road "construction" paid for with Act No. 6917 funds. Hundreds of thousands of dollars were spent on vaults at Eastern Cemetery and for drainage projects on St. Croix and St. Thomas. (See Exhibits C, E, F.) Act No. 6917 is plainly broad in scope and does not limit use of the $1,305,000.00 appropriated only for "roads." Second the Attorney General's recitation of Act No. 6917 (and that of Special Agent EFTA01074724 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 20 of 25 Schulterbrandt and the OIG) fails to account for the actual words and punctuation of Act No. 6917.17 Indeed, the Attorney General goes beyond mere error by omission and writes into Act No. 6917 punctuation and words that do not appear in the statute. At best this amounts to recklessness on the part of the Attorney General; at worst, it exposes this case as a frame-up job by Gov. de Jongh's detractors. In any event, there is no comma after "repair" and before "or" in Act No. 6917. Applying the doctrine of last antecedent, each noun — "engineering designs," "construction," "repairs," and "resurfacing" stand apart, and the qualifying phrases "of roads" solely modifies the last antecedent in the sentence — i.e., "resurfacing." See Garza v. Sun Life Assur. Co. of Canada, 2013 U.S. Dist. LEXIS 60469, '23-24 (S.D. Tex. April 29, 2013) ("The Court can discern no reason, grammatical or otherwise, why the last antecedent rule does not apply in the case before it; the presence of a single comma between `infirmity or disease of any kind' and `infection unless due to an accidental cut or wound' indicates that the modifying language applies only to Infection.'"); Md. Dep't of the Env't v. Underwood, 792 A.2d 1130, 1139 (Md. Ct. App. 2002) ("Section 9-276(a) imposes liability for reimbursement on the 'owner or operator of the site or any other person who caused the tires to be stored or disposed of at the site in violation of this subtitle.' Respondents' interpretation of this section would have the clause 'who caused the tires to be stored or disposed of at the site in violation of this subtitle' modify all three categories of potential responsible parties described in the statute, i.e. the 'owner,' the 'operator,' DUDLEY, TOPPER AND FEUERZEIG, LLP 1000 FrodyloW49 ask pa Bac TM &Aleut V.1.00604-0756 (340) 7744422 17 Almost amusingly, Schulterbrandt swears that the V.I. Department of Public Works relied upon the January 2010 OIG Report when it told the V.I. Public Finance Authority in April 2007 that Act No. 6917 funds could be used for the de Jongh construction project. (Schulterbrandt Affidavit 117.) Clearly, the Schulterbrandt Affidavit was drafted and executed in a most slapdash fashion. EFTA01074725 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 21 of 25 DUDLEY, TOPPER AND FEUERZEIO, LLP 1000 Freckgloberg Gale P.O. Box 756 &Mows. US. V.1.006040756 (340) 774-4422 and `any other person.' That interpretation, however, ignores the clear meaning of the structure and relationship of the words as they appear in the statute and does not acknowledge the generally recognized rule of statutory construction that a qualifying clause ordinarily is confined to the immediately preceding words or phrase - particularly in the absence of a comma before the qualifying phrase. In consideration of that principle, we are unable to adopt Respondents' interpretation." (citations omitted)); Doe v. Michigan Dep't of Corrections, 236 Mich. App. 801, 811, 601 N.W.2d 696 (Mich. Ct. App. 1999) (White, J., concurring) ("The absence of a comma after 'private agency' in both the PWDCRA's and CRA's definitions of 'public service' supports that the phrase 'established to provide service to the public' modifies only 'a tax exempt private agency.' Qualifying words and phrases in a statute refer solely to the last antecedent in which no contrary intention appears. In this instance, the modifying clause ('established to provide service to the public') is confined to the last antecedent ('a tax exempt private agency'). Nothing in the subject matter or dominant purpose of the statute requires a different interpretation."). In sum, if there actually were a comma inserted into Act No. 6917 between the noun "repair" and the conjunction "or," the statute might be interpreted in a way that favors the Attorney General. It does not. And it is not the place of the Attorney General to rewrite Act No. 6917 to suit his fancy — or to advance someone's political or personal agenda. The plain language of Act No. 6917 confirms that the funds at issue were available to spend on the construction at the de Jongh residence. Therefore, Gov. de Jongh did not act "without authority of law." Governor de Jongh's actions were completely within "the manner prescribed by law." The Information does not state an offense. The charges under V.I. Code Ann. tit. 14, §§ 1662(a) and 1663(a) must be dismissed. EFTA01074726 People v. de Jongh Crim. No. ST-I5CR-309 Defendant's Motion to Dismiss the Information Page 22 of 25 DUDLEY, TOPPER AND FEUERZEIG, LLP 1003 Frecledubet5 Gede P.O. Box 756 St. WIGS US. VI 006050756 (340) 774-4422 Finally, Gov. de Jongh expects the Attorney General to offer in opposition statements by some or all of the six anonymous senators referred to in the OIG Report who (we assume) will attest to a contrary reading of Act No. 6917. The Court must not fall for the prosecution's tainted bait. "The general rule is that, in determining legislative intent, the views of individual drafters are not considered as grounds upon which to construe a statute." C-Y Devel. Co. v. City of Redlands, 187 Cal. Rptr. 370, 374 (Cal. Ct. App. 1982). When a statute is vague, courts sometimes turn to its legislative history to aid in its interpretation, but not, as here, when the statute at issue is plain and unambiguous. See People v. Lake, 59 V.I. 178, 184 (Super. Ct. 2013) ("A court may "presume that the legislature expresses its legislative intent through the ordinary meaning of the words it chooses to use, and if the statutory language is clear, it is not necessary to look for congressional intent from legislative history."); accord C-Y Devel. Co., 187 Cal. Rptr. at 374 ("An exception has sometimes been made where the drafters' views were clearly and prominently communicated to the legislators at the time the measure was being considered for enactment, on the theory that there was reason to believe that the other legislators were influenced in their view of the bill by the drafters' communicated views, but the exception has been largely confined to a setting in the Legislature where a limited number of legislators may clearly be expected to be so influenced. The exception is also clearly confined to views expressed while the measure was being considered, and does not concern expressions of individual motivation made after the fact." (italics added)). Act No. 6917 was not debated in the Senate. It was passed by voice vote as one section of a multiple-provision omnibus spending bill containing a plethora of amendments, each EFTA01074727 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 23 of 25 DUDLEY, TOPPER AND FEUERZEIO, LLP 1003 Frederksberg Gado P.0.B04 758 Si. Thomas. U.S. VL 038040793 (340) 774-4422 sponsored by particular senators. Act No. 6917 was sponsored by Sen. Dowe, who was copied on correspondence between the Department of Public Works, Department of Property and Procurement, and the V.I. Public Finance Authority, all of which contained references to the de Jongh security project. (See Exhibits C, E, F.) Apart from this correspondence, there is no legislative history of record. If the Attorney General proffers the statements of current and former senators who voted on Act No. 6917 concerning their understanding of it, the Court must reject the proffer out of hand as they are entitled to no weight. See Barber v. Thomas, 560 U.S. 474, 486 (2010) ("And whatever interpretive force one attaches to legislative history, the Court normally gives little weight to statements, such as those of the individual legislators, made after the bill in question has become law." (italics in original)); Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 579 (1995) ("Material not available to the lawmakers is not considered, in the normal course, to be legislative history. After-the-fact statements by proponents of a broad interpretation are not a reliable indicator of what Congress intended when it passed the law, assuming extratextual sources are to any extent reliable for this purpose."); Veasey v. Abbott, 796 F.3d 487, 502 (5th Cir. 2015) ("Moreover, the district court appeared to place inappropriate reliance upon the type of postenactment testimony which courts routinely disregard as unreliable."). The Court need not become embroiled in an unseemly debate over the credibility of senators who did not even bother to place their supposed understanding of Act No. 6917 in the legislative record. Such public servants as these have no business swearing to a purported secret "understanding" of a statute they did not bother to question before casting their votes in favor of — or in assisting the Attorney General in his quest for an illegal conviction. EFTA01074728 People v. de Jongh Crim. No. ST-15-CR-309 Defendant's Motion to Dismiss the Information Page 24 of 25 Fortunately, the language of Act No. 6917 is unambiguous. It includes "construction" as one of the permitted uses of its reprogrammed funds. Since the de Jongh security project involved construction, Gov. de Jongh, the Department of Public Works, the Department of Property and Procurement and the V.I. Public Financing Authority all acted with the appropriate legal authority. There is no reason to perpetuate the Attorney General's charade any longer. The Information must be dismissed. WHEREFORE, the Information date