EFTA01074706.pdf

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, Plaintiff, Case No. ST-15-CR-309 v. Hon. Michael C. Dunston JOHN P. DE JONGH, JR., Presiding Judge Defendant. :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 DUDLEY, TOPPER $490,000.00 from the public fisc and using the money to add value to his private home. AND FEUERZEIG, UP 1000 Frederketerg 13.50e Ironically, in the short time the current Governor has been in office he has apparently already P.O. Box 756 7homee, US.VI 076060756 (344) 774-4422 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amount of Virgin Islands taxpayer money on so-called "living expenses" — a $12,500.00 per month residential lease now superseded by the daily cost of a suite at the Virgin Islands' most expensive hotel, the Ritz-Carlton St. Thomas;2 $16,000.00 for limousine and car service on a recent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/ 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 DUDLEY, TOPPER present Governor, who reportedly signed the lease. In a remarkable bit of hubris, the current AND FEUERZEIG, LLP Governor acted over the advice of his own Chief Legal Counsel that doing so was illegal. Virgin loot) Frederllateg Gide Islands Daily News, Potter Told in March Public Funds Not For Condo (Oct. 28, 2015). And PO. Bak 758 most recently, a lawsuit was filed against the Governor and others by his own Deputy Legal Si.Thcoust U.S. V100804 -075B Counsel alleging she was wrongfully terminated after responding to a request for public records (340) 774-4422 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. 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 DUDLEY, TOPPER AND FEUEFIZEICL LLP constructed at a fraction of that cost. WOO Fredeeketei Gado P.O. hoc 766 &llama US. VI 006040756 In early January 2007, when Gov. de Jongh made his housing plans public, the V.I. O40)774-4422 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: 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, DUDLEY, TOPPER construction, repairs or the resurfacing or roads. The sum AND FEUERZEIG, LIS remains available until expended. Fredolketerg Gado P.O. Box 758 Sl.lhomes. US.VI 00004475e (340) 774.4422 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. 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 DUDLEY. TOPPER AND FEUERZEIG, LLP for the six projects was available and the Department of Property and Procurement was required 1000 FrOdedaberg e•0e P.D. Da 756 St Thames. U.S. VA. 00804-0750 to forward contracts, vendor certifications and the like per established procedure. (Exhibit F.) (S40) 774-4422 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 9 AND FEUERZEIG, LIP Gov. de Jongh had made this same announcement as far back as November 2009. See Virgin IW0 Froderlotwitg Islands Daily News, De Jongh Mends Fences (Nov. 7, 2009) ("I will also be instructing the pa Box 756 attorney general to prepare a legal and binding agreement that sets forth my commitment to do Thognits, 05664015/ the following: at the end of my term in office and the removal of whatever physical (340) 774.4422 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 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 DUDLEY, TOPPER AND FEUERZEP3, LLP the Virgin Islands Private Residence (hereinafter "OIG Report")." IMO Fnalsclaterg G464 P.0. Bac 756 Si. Thanes, U.S. Vi. 02604-0756 First, the OIG Report acknowledged that "security is a necessity for any sitting (340) 774.4422 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 ofroads. DUDLEY,TOPPER OIG Report at 2 (bold and italics in original). AND FEUERZEIG, LIP 1000 Fre0wIlestarg GS* Box 756 On this, the most crucial issue in the case now before the Court, the OIG Report gets this SI.Thoffir. U8.VI030040756 (340) 7744422 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 — 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 DUDLEY, TOPPER AND FEUERZEIO, LLP deliberately inaccurate propaganda. 1000 Freclerkiteg Gado P.O. Bac 758 8/Thane& U8. Vi.000040758 After reiterating that ensuring the safety of Gov. de Jongh and his family is a legitimate 040) 7744422 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 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 DUDLEY, TOPPER AND FEUERZEIO, LLP from the de Jongh property as soon as his second term expired. Committee on Rules and woo Freclerlksbem Gale P.O. Bac 756 Si. Thomas. U.S. V.I. 06034•07ft (340) 7744422 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 13 A copy of the Resolution is attached hereto as Exhibit I. 1000 Paristerg Oatla P.O. Box 756 14 Griffiths took the post after Gov. Mapp's first choice, Soraya Diase-Coffelt, abruptly resigned St Thema 1St V.1.00631-0756 in January 2015, The nomination of Griffiths resulted in what has been described as an "open (040) 774-4422 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 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, DUDLEY, TOPPER 400 (1973) (upholding dismissal of indictment alleging Hobbs Act violation where the AND FEUERZEIG, LLP 1000 Frodedlabeg Gels defendant's conduct alleged by the government was not "wrongful" as defined by the statute); Box 756 St Thome& U.S.MI. 00004-0766 (340) 774-4422 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: Whoever, being a public officer or person charged with the DUDLEY, TOPPER receipts, safekeeping, transfer or disbursement of public monies — AND FEUERZEIG, LIP (1) appropriates the same, or any portion thereof to his own use or 1000 Fredetikoterg Gab P.O.ar; rse the use of another, without authority of law; ... shall be fined not ahem's. u.s.vi. 0080/4786 more than ten thousand ($10,000) dollars or imprisoned not more (MD) 774-4412 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: 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 DUDLEY, TOPPER 343 (2005) (holding that when the statute's language is plain, the AND FEUERDEIG, LIP sole function of the Court, at least where the disposition required loco Frociseition, Gado RO. floc 756 by the text is not absurd, is to enforce it according to its terms.) Si. Tian's. U.S V.L 00604-0758 Accord Gilbert v. People, 52 V.I. 350, 356 (V.I. 2009). See also In (340) 774-4422 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. 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."). DUDLEY, TOPPER The grammatical rule known as the "doctrine of last antecedent" is the concept most AND FEUERZEIO, LLP '000 Rocinsterg Gado PO. Box 756 germane to this Court's analysis. "Under that principle, qualifying words, phrases, and clauses Thomas. US.MI. 00804-0766 040 774.4412 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 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.'"