The Third Circuit Court of Appeals has referred the U.S. Justice Department’s interlocutory appeal of an order striking the death penalty in the murder case of Richardson Dangleben Jr. — and the defense’s motion to dismiss that appeal on jurisdictional grounds — to a merits panel for consideration after expedited briefing, according to an order issued Friday.
Given the schedule outlined in the order, Dangleben’s trial, which was to start Oct. 6 in District Court on St. Thomas, will be delayed yet again. A jury trial was initially set for Dec. 11, 2023, and then Oct. 28, 2024, before the case was continued.
The order by Third Circuit Judges Thomas M. Hardiman, Stephanos Bibas and Arianna J. Freeman stipulates that the DOJ’s brief must be filed within 14 days of Friday’s order, the defense’s brief within 14 days after that, and the government’s reply brief within seven days thereafter.
The clerk will calendar the appeal before the panel scheduled to sit in the U.S. Virgin Islands during the week of Dec. 8, according to the order. Because the government has indicated it also plans to appeal an order dismissing two counts of Dangleben’s indictment, the court advised it to file notice of that as soon as possible so the related matters may be heard together.
A grand jury returned a 13-count indictment against Dangleben in October 2023, charging him with violations of federal and territorial laws in connection with the shooting death of V.I. Police Detective Delberth Phipps Jr. on July 4 that year, and the assault of another officer who also responded to the 911 call concerning a man with a gun in Hospital Ground on St. Thomas.
While the DOJ said in February 2024 that it would not seek the death penalty, it reversed course in May after an executive order from President Donald Trump lifting former President Joe Biden’s moratorium on federal executions. Dangleben’s attorney, Public Defender Matthew Campbell, filed a motion opposing the about-face and after briefing by both sides, V.I. District Court Chief Judge Robert Molloy struck the government’s notice from the record in August, ruling that the case will proceed as a non-capital case.
In a memorandum opinion issued Sept. 15 explaining his decision, Molloy listed a number of concerns regarding the timing of the government’s death notice so late in the process, including that it was not based on new information that wasn’t previously available to the government; it was filed 459 days after the Feb. 7, 2024 filing of the original “no-seek” notice; 22 months after Dangleben’s initial arrest; 19 months after the filing of the first indictment; and less than five months before trial.
“Even if the Government now seeks relief from the deadline, it has waived or forfeited any right it had or may have had to such relief,” he wrote.
Moreover, the “preparation for a death penalty case is dramatically different in approach and scope from a non-death penalty case. Clearly, the Government’s Death Notice, if allowed to stand, would require Defendant ‘to substantially alter his years-long preparations for trial,’” Molloy said.
The DOJ appealed that order to the Third Circuit on Sept. 15, raising jurisdictional questions as to whether it can do so while the case is ongoing. Campbell filed an emergency motion to dismiss, or to at least hear the appeal on an expedited basis, on Sept. 19.
Molloy also issued an order Thursday dismissing Counts 2 and 3 of the superseding indictment — discharge of a firearm in furtherance of a crime — that Campbell argued failed to state an offense under the United States Code because the predicate offenses upon which the charges are based are local territorial offenses.
The DOJ said in its response to Campbell’s motion to dismiss the death penalty appeal, filed Wednesday with the Third Circuit, that it also plans to appeal that ruling.
Campbell also sought to dismiss Count 1, use of a firearm during a crime of violence resulting in death, because it also was based on three territorial predicate offenses, but the government amended that to add a federal predicate offense when it filed a superseding indictment in April ahead of its “no-seek” notice reversal in May. Molloy instead dismissed the territorial offenses in Count 1.
The judge explained his decision in a memorandum opinion filed Thursday.
“Dangleben argues that even if the plain language of the statute can be read to allow local offenses to serve as predicate offenses under Section 924(c), such an interpretation would lead to the absurd result of Virgin Islands defendants being able to be prosecuted under a version of a federal offense not available in any other federal court. Consequently, Virgin Islands defendants would be subjected to harsher punishment under a version of Section 924(c) that could not be applied anywhere else in the United States. The Court agrees,” said Molloy.
The judge also noted that the Virgin Islands is a non-death penalty jurisdiction, capital punishment having been abolished in the territory since 1957.
“Of course, the federal government can seek the death penalty in federal court in any jurisdiction regardless as to whether that jurisdiction allows for this penalty under its local laws. Here, the United States is seeking the penalty of death pursuant to Count One. It would seem somewhat nonsensical, oxymoronic, and certainly inconsistent, that a Virgin Islands defendant could be subject to the death penalty in federal court for committing a Virgin Islands crime when the laws of the Virgin Islands do not allow for the penalty of death,” Molloy said.
“Stated another way is that a Virgin Islands defendant could be subject to the death penalty in federal court for violating a version of a federal statute with predicate offenses passed by the Virgin Islands Legislature and not by an act of Congress. There is no indication that this is what Congress intended,” the judge wrote.
