378 F.

2d 540

GOVERNMENT OF the VIRGIN ISLANDS

v.
Vidal Galdon AQUINO, Appellant.
GOVERNMENT OF the VIRGIN ISLANDS
v.
Ishmael Guillerma REYES, Appellant.
No. 16023.
No. 16024.

United States Court of Appeals Third Circuit.

Argued at Christiansted February 1, 1967.
Decided May 19, 1967.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED Alphonso A. Christian, Charlotte Amalie, St. Thomas, V. I.,
for appellants.
Almeric L. Christian, U. S. Atty., Charlotte Amalie, St. Thomas, V. I.
(John E. Stout, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., on
the brief), for appellee.
Before MARIS, FREEDMAN and COFFIN, * Circuit Judges.
OPINION OF THE COURT
FREEDMAN, Circuit Judge:

The defendants, Vidal Galdon Aquino and Ishmael Guillerma Reyes, were
jointly tried on two separate informations charging them with rape in the first
degree in violation of 14 V.I.Code 1701 (1) and (4).1 Reyes was found guilty
of rape in the first degree and Aquino was found guilty as an accessory after the
fact.

The complainant was a stewardess aboard a Norwegian freighter which arrived

in St. Thomas at about noon on March 15, 1966. That evening she went for

recreation to two night clubs or bars where she met a number of persons with
whom she drank and danced. One of them was Reyes.
3

Sometime between three and four o'clock on the morning of March 16th, the
complainant left the bar to seek a taxi on the main street. A number of
witnesses testified that she was intoxicated at the time. While she was waiting a
private car driven by Aquino in which Reyes was a passenger pulled up and
Reyes offered to take her to her ship. According to her testimony, Reyes
attempted to become familiar with her while they were in the car but she
resisted him and warned that she would call the police. She remembered
nothing thereafter and thought she must have fainted or become unconscious
from alcohol. Later in the morning she awoke to the barking of a dog and found
herself lying almost naked on the ground, her intimate undergarments ripped
and out of place on her person. She was hysterical and strangers who came to
her assistance called the police, who removed her to the hospital. A medical
examination showed the presence of live male sperm in the vagina, although
she herself had no recollection of having had sexual intercourse that night and
the physician who examined her could not say when the sperm had been
deposited.

I.
4

Appellants complain of the refusal by the district judge to suppress the

statement which Reyes is alleged to have made to Detective Lopez in which he
admitted having had intercourse with the complainant, but claimed that it had
been voluntary on her part. Since the complainant herself had no recollection of
having had intercourse and there was no outside witness to the fact, the
admission was the only evidence of his act which, of course, constituted an
essential element in the charge of rape. It was damaging in the highest degree
to Reyes and thus also to Aquino.

At the trial Reyes denied making the statement. In view of the verdict,
however, we must disregard his denial and consider whether the circumstances
in which the statement was given violated any fundamental right.

The complainant had identified a suspect at a police lineup, but shortly

thereafter informed the police that she had been mistaken. A day or so later she
stopped at an eating place and after a few words recognized the man who
served her as Reyes. She promptly reported this to the police. Detective Lopez,
in the company of Patrolman Heath and Chief of Police Freeman, called on
Reyes after Detective Lopez, who knew him, had learned from a car rental
agency that he had rented the car which the complainant had entered. It is not

clear whether Detective Lopez already knew that the complainant had
identified Reyes or made his visit solely because of the identification of Reyes
at the car rental agency. We shall therefore put aside the possibility that the
complainant's identification of Reyes had already been conveyed to the officers.
While Heath and Freeman waited in the police car, Lopez called on Reyes. He
first identified himself by showing him his badge and identification card. Since
they already were acquainted, this act obviously must have been intended at
least as a reminder of the official nature of Lopez's visit. The conversation
began on the subject of the car. Lopez asked Reyes if he had rented the car and
Reyes admitted that he had. Then Lopez repeated the original question, but now
in a more ominous setting; he said that he was investigating a charge of rape
and again asked Reyes if he had rented the car. Reyes again replied that he had.
Having thus obtained Reyes' confirmation that it was he who had rented the car
involved, Lopez then told him of the gravity of the charge and that he should
have counsel. In this indirect way Lopez informed Reyes that he was accused
of rape. Reyes replied that he would get a lawyer and said that he would try to
communicate with the attorney for his employer. At this point Lopez asked
Reyes where his "partner" was. Reyes pointed out Aquino, who was nearby,
and Lopez called to him, giving him the same advice as to the seriousness of
the charge and the need for counsel. Thus ended the portion of the discussion
between Lopez and the appellants which was preliminary to bringing them to
the police station.
7

When appellants entered the police car, further discussion ensued between
Lopez and Reyes in Spanish, which the other two officers did not understand.
Lopez explained to Reyes in Spanish what the complainant had reported to the
police and it was evidently then that, according to Patrolman Heath, Chief of
Police Freeman asked that they speak in English. At this point, when the
conversation was in English, Reyes, without having been asked any question on
the subject, responded to Lopez's statement of the complainant's claim by
saying that the sexual intercourse between them was voluntary on her part.
Lopez thereupon asked Reyes why he had thrown her out of the car if she had
voluntarily consented to intercourse, and Reyes replied that she had not wanted
to get out and the hour was late. According to Patrolman Heath, Lopez then
asked the Chief of Police if he wanted to know any more and the Chief of
Police replied that he did not and advised Reyes that when they got to the police
station he should get in touch with an attorney, and that he was not required to
make any further statements unless he wanted to do so on his own.

The police clearly exercised no coercion, physical or psychological, upon Reyes

in order to obtain his statement, beyond that which was inherent in the
notification that he was involved in the grave charge of rape and in the recital

of the complainant's claim. Cases which view confessions in circumstances of

physical or psychological coercion (see Davis v. State of North Carolina, 384
U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966)) therefore are not here
relevant. Also inapplicable is the doctrine of Miranda v. State of Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) that the failure to give
adequate notice, inter alia, of the rights to remain silent and to have the services
of counsel renders a harmful admission inadmissible against the declarant by a
kind of conclusive presumption of involuntariness. The trial in this case began
on May 17, 1966 and Miranda therefore does not apply. Johnson v. State of
New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). We are,
however, within the intermediate zone governed by Escobedo v. State of
Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), since the trial
here began after that decision. Johnson v. State of New Jersey, supra.
9

The limited reach of Escobedo is best stated in the words in which the Court
summarized it: "We hold, therefore, that where, as here, the investigation is no
longer a general inquiry into an unsolved crime but has begun to focus on a
particular suspect, the suspect has been taken into police custody, the police
carry out a process of interrogations that lends itself to eliciting incriminating
statements, the suspect has requested and been denied an opportunity to consult
with his lawyer, and the police have not effectively warned him of his absolute
constitutional right to remain silent, the accused has been denied `the
Assistance of Counsel' in violation of the Sixth Amendment to the Constitution
as `made obligatory upon the States by the Fourteenth Amendment,' Gideon v.
Wainwright, 372 U.S. 335, at 342, 83 S.Ct. 792, at 795, 9 L.Ed.2d 799, and that
no statement elicited by the police during the interrogation may be used against
him at a criminal trial." (490-91). See Johnson v. State of New Jersey, supra,
384 U.S. at 733-734, 86 S.Ct. 1772. See generally Developments in the Law
Confessions, 79 Harv.L.Rev. 935, 999-1023 (1966).

10

The facts leave no room for doubt that the investigation here had begun to
focus on Reyes at the time Lopez and the other officers came to take him to the
police station. It is equally clear that Reyes had been taken into police custody,
for the police were transporting him in a police car to the police station. It is
also clear that he had indicated that he wished to consult with counsel and that
he had been given no warning whatever of his constitutional right to remain
silent before he had consulted with him. The only question which remains is
whether the police were carrying on a process of interrogation that lent itself to
eliciting incriminating statements.2

11

The government asserts in effect that there was no process of interrogation

under way, but that instead a sympathetic officer who had come to take Reyes

to police headquarters thought it elementary justice to inform him what the

complainant had charged against him and that Reyes on hearing it had
spontaneously blurted out what he thought was an exculpatory statement, but
which turned out to be an essential link in the proof of his guilt. Reyes did not
know that in law intoxication deprives a victim of the capacity to consent,3 and
there can be no doubt that his admission of sexual intercourse with the
complainant was made in the belief that this absolved him of the charge of
rape, although ultimately he was cruelly disappointed in this. This admission,
however, was not made without any prompting by the police.4 Not only had
Detective Lopez implicitly challenged Reyes to deny the charge by detailing
the alleged offense, but he had also previously questioned him as to whether he
had rented the car, a piece of important circumstantial evidence, and as to the
identity of his "partner." That Lopez's statement was not a simple, friendly
explanation which would inform Reyes why he was being taken to the police
station is clear from the fact that he had already told the appellants before they
had entered the car that the charge involved was rape. To state this in further
detail to one who had already admitted the rental of the car was not to furnish
him orally with a bill of particulars, but rather to provoke him to deny or admit
the accusation against him.5 That this was the subjective attitude of Lopez as
well as the objective result of it is confirmed by what immediately followed.
For after Reyes had innocently convicted himself of intercourse, even as he
thought he was disproving the charge of rape by saying that it was voluntary on
the part of the complainant, Lopez asked why he had thrown her out of the car.
Here there is no indication of an innocent effort by an officer to put a defendant
on his guard or to supply him with knowledge of what is charged against him. It
was an argumentative challenge of the truth of what Reyes had said and was no
less than cross-examination. It contradicted Reyes' claim of consensual
intercourse and probed him with the barb that his conduct in throwing the
complainant out of the car would discredit his defense.
12

Thus, what occurred was a psychological trap by which a description of the

charge of rape produced a claim of innocence which had loaded in it, by the
admission of sexual intercourse, the one element which the complainant herself
could not provide. The presentation to the jury of the statement regarding the
brutal eviction of the victim not only forged the final link in the chain of Reyes'
guilt, but added an element of moral indignation at his offensive conduct after
the intercourse occurred, a factor which must have made the jury all the more
unsympathetic to his claim of innocence.

13

Moreover, the government's claim that Lopez had sympathetically counseled

the appellants in Spanish so that the other police officers would not understand
their conversation is unsupported by the testimony in so far as it deals with the

crucial portions of the conversation. For it was after the conversation had
turned to English that the critical admission was made. Finally, the testimony of
the other officers shows that they believed the right to remain silent and to
secure the services of counsel did not come into full play until the appellants
had arrived at the police station.
14

From these circumstances it clearly appears that seriously incriminating

information was obtained by questioning Reyes, who was arrested later that
day on the charge of rape, that no notice was given to him that he had the right
to remain silent, that the questioning proceeded while he was in the custody of
the police even though he had been informed that the charge was grave and he
should have counsel, and that he had not been given an opportunity to secure
counsel before reaching the police station, even though he had indicated that he
wished to secure an attorney. The case therefore falls within the principle of
Escobedo. It is true that here there was no express denial of a request to consult
with a lawyer, as there was in that case. Nevertheless, the press of continued
discussion with Reyes regarding the nature of the charge afer he had told the
police that he wished to have counsel and when he had not yet had the
opportunity to secure his services, as effectively deprived him of his right to
counsel as would a specific denial of a demand for counsel. There is nothing to
indicate any intention by Reyes to waive or abandon the right to the assistance
of counsel when the continued interrogation occurred. This deprivation by
questioning him after knowledge that he desired the assistance of counsel is
sharpened by the failure of the police to give him any warning of his right to
remain silent.6

15

Because Reyes' statement was illegally obtained, the judgment of conviction

against him will be reversed and a new trial awarded. Since Reyes must be
retried, it is necessary to consider his further claim that the district court erred
in admitting in evidence the testimony which the complainant gave at the
preliminary hearing. This is an important issue under the Sixth Amendment and
the Virgin Islands Bill of Rights.

II.
16

Appellants attack the district court's action in admitting into evidence and
permitting to be read to the jury the transcript of the testimony which the
complainant gave at the preliminary hearing before a judge of the municipal
court acting as a committing magistrate, where she was subjected to crossexamination by the same counsel who later represented them at the trial. They
allege that this violated their constitutional right to confront the witnesses
against them, guaranteed by the Sixth Amendment and by the identical

provision in the Bill of Rights of the Revised Organic Act of the Virgin
Islands,7 both of which provide:
17

"In all criminal prosecutions the accused shall enjoy the right * * * to be
confronted with the witnesses against him."

18

The complainant's testimony, which was read to the jury in her absence,
seriously affected appellants' rights. Although she had acknowledged that she
had no recollection of having had intercourse, she had identified the appellants
and claimed that she had entered their car and was with them until she lost
knowledge of her surroundings shortly after Reyes had made amorous advances
to her which she had rejected. Her testimony also contained admissions by
Reyes that he had torn her clothing, for which he had offered to pay, and had
thrown her out of the car.

19

The right of confrontation, literally construed, would destroy all exceptions to

the hearsay rule and would require the exclusion of all prior statements. But it
has always been recognized that the right of confrontation is not absolute, even
in instances where, as in some states, the constitutional provision is cast in
terms of a right to meet the witness "face to face."8 The constitutional guarantee
has been limited to the assurance of the right of cross-examination of the
witness before his testimony may be used at a later trial. See, e. g., Pointer v.
State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v.
State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). It has
been widely recognized, however, that in addition to the benefit which a
defendant has in testing the reliability of a witness against him by crossexamination, confrontation ordinarily secures a secondary advantage in making
it possible for the tribunal before whom the witness appears to judge from his
demeanor the credibility of his evidence. This advantage results, not from the
confrontation between the witness and the accused, but from the witness's
presence before the tribunal. See 5 Wigmore, Evidence, (3d ed. 1940), 1395;
McCormick, Evidence (1954), 231, p. 484. In Mattox v. United States, 156 U.
S. 237, 242-243, 15 S.Ct. 337, 339, 9 L.Ed. 409 (1895), the Supreme Court
early recognized these two benefits which confrontation confers on a defendant
in a criminal case: "The primary object of the constitutional provision in
question was to prevent depositions or ex parte affidavits, such as were
sometimes admitted in civil cases, being used against the prisoner in lieu of a
personal examination and cross-examination of the witness, in which the
accused has an opportunity, not only of testing the recollection and sifting the
conscience of the witness, but of compelling him to stand face to face with the
jury in order that they may look at him, and judge by his demeanor upon the
stand and the manner in which he gives his testimony whether he is worthy of

belief."
20

Demeanor is of the utmost importance in the determination of the credibility of

a witness. The innumerable telltale indications which fall from a witness during
the course of his examination are often much more of an indication to judge or
jury of his credibility and the reliability of his evidence than is the literal
meaning of his words. Even beyond the precise words themselves lies the
unexpressed indication of his alignment with one side or the other in the trial. It
is indeed rarely that a cross-examiner succeeds in compelling a witness to
retract testimony which is harmful to his client, but it is not infrequently that he
leads a hostile witness to reveal by his demeanor his tone of voice, the
evidence of fear which grips him at the height of cross-examination, or even his
defiance that his evidence is not to be accepted as true, either because of
partiality or overzealousness or inaccuracy, as well as outright untruthfulness.
The demeanor of a witness, as Judge Frank said, is "wordless language."
Broadcast Music, Inc. v. Havana Madrid Restaurant Corp., 175 F.2d 77, 80 (2
Cir. 1949).9 It is in recognition of the superior advantage which observation of
the demeanor of the witness confers on the fact finder that a reviewing court
must accept as true whatever evidence supports the verdict of a jury and that in
trials without a jury Rule 52(a) of the Federal Rules of Civil Procedure
provides: "Findings of fact shall not be set aside unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge of the
credibility of the witnesses."

21

The significance of demeanor evidence reaches heightened importance on a

charge such as rape, for there is now widespread recognition of the special
psychological elements inherent in charges of sexual abuse. Special caution
must be exercised in such cases, and the credibility of the complainant is of
crucial importance.10

22

Although demeanor evidence is in reality of such high significance, it is

nevertheless well settled that it is not an essential ingredient of the
confrontation privilege; the privilege is satisfied if the defendant is accorded
the right of cross-examination. See Pointer v. State of Texas, 380 U.S. 400, 85
S.Ct. 1065 (1965); Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074
(1965).11 That the opportunity for cross-examination at the time the original
testimony was taken is the essence of the constitutional guarantee of
confrontation was early recognized by the Supreme Court in Mattox v. United
States, supra, where the testimony of a witness at a prior trial at which there
had been full cross-examination was admitted at a subsequent trial because of
the witness's death. The Supreme Court said: "There is doubtless reason for
saying that the accused should never lose the benefit of any of these safeguards

[of cross-examination and the jury's opportunity to judge the witness's

credibility by his demeanor on the stand] even by the death of the witness; and
that, if notes of his testimony are permitted to be read, he is deprived of the
advantage of that personal presence of the witness before the jury which the
law has designed for his protection. But general rules of law of this kind,
however beneficent in their operation and valuable to the accused, must
occasionally give way to considerations of public policy and the necessities of
the case. To say that a criminal, after having once been convicted by the
testimony of a certain witness, should go scot free simply because death has
closed the mouth of that witness, would be carrying his constitutional
protection to an unwarrantable extent. The law, in its wisdom declares that the
rights of the public shall not be wholly sacrificed in order that an incidental
benefit may be preserved to the accused. * * *
23

"The substance of the constitutional protection is preserved to the prisoner in

the advantage he has once had of seeing the witness face to face, and of
subjecting him to the ordeal of a cross-examination." (156 U.S. 243-244, 15
S.Ct. 339).

24

The rule permitting the introduction of the prior testimony of a witness who
had been subject to cross-examination has been applied not only to testimony
given at a prior trial, but also to testimony given before a committing
magistrate at a preliminary hearing.12 Were the question one of first impression
it would seem that a clear distinction should be recognized between testimony
given at a prior trial and testimony given at a preliminary hearing. In the case
of a prior trial the goal of the cross-examiner is precisely the same as that
which he would have followed at the second trial acquittal of the defendant.
At the preliminary hearing, however, the cross-examiner is much more
narrowly confined by the nature of the proceeding. The government's aim is
merely to show a prima facie case and its tactic is to withhold as much of its
evidence as it can once it has crossed that line. The fear of adding to the
government's case by extensive cross-examination weighs heavily on a
defendant's counsel at a preliminary hearing, where much of the government's
case remains still in doubt. The cross-examiner therefore is in a far different
position than he would be at trial, where the government must go beyond its
prima facie case to convince the jury of the defendant's guilt beyond a
reasonable doubt. Everyday experience confirms the difference, for it is rare
indeed that on a preliminary hearing there will be that full and detailed crossexamination which the witness would undergo at the trial. Credibility is not the
issue at a preliminary hearing as it is in a trial. All the arts of cross-examination
which are exerted to impair the credibility of a witness are useless in a
preliminary hearing. Nevertheless, we must accept for present purposes the rule

which makes no distinction between testimony given at a prior trial and the
testimony given at a preliminary hearing.
25

The question remains, however, under what circumstances prior testimony of

an absent witness who was subject to cross-examination may be introduced into
evidence at a trial. The rule has been long settled that this may be done only
where the witness is unavailable at the time of the trial because of his death,
insanity, illness, absence beyond the jurisdiction, or because he was kept away
by the connivance of the other party.13 The requirement that such unavailability
be shown exists under the constitutional requirement of confrontation and
equally so as a rule of evidence, since the declarant's testimony ordinarily is
inadmissible as hearsay and can be admitted at the subsequent trial only out of
necessity as an exception to the hearsay rule. See Motes v. United States, 178
U.S. 458, 20 S.Ct. 993 (1900); Washington v. Holman, 245 F.Supp. 116, 122123 (M.D.Ala.1965), aff'd on this point, 364 F.2d 618, 622-624 (5 Cir. 1966).

26

The court below refused the motion of appellants to exclude the transcript of
the complainant's testimony at the preliminary hearing which was offered at the
trial on the ground that she was then unavailable. This action was under 5
V.I.Code 932(3) (b) (ii), taken from the Uniform Rules of Evidence, which
permits such testimony "if the judge finds that the declarant is unavailable as a
witness at the hearing, * * * when * * * the issue is such that the adverse party
on the former occasion had the right and opportunity for cross examination
with an interest and motive similar to that which the adverse party has in the
action in which the testimony is offered." This provision does not define
unavailability of a witness, and its draftsmen left open its constitutionality in
criminal cases.14

27

In determining whether unavailability was shown, it is necessary to consider

closely the nature of the doctrine, repeated in innumerable cases, that the
absence of the witness from the jurisdiction and his consequent immunity from
subpoena sufficiently establishes his unavailability.15 The foundation for the
rule is that a witness who is beyond the jurisdiction is as unavailable to the
party who wishes to call him as if he were dead. Since he is beyond the power
of subpoena in the jurisdiction where the trial is to be held, his testimony could
be produced afresh only by taking his deposition, which it would be idle to
prefer over the already recorded transcript of the prior trial. Absence beyond
the service of a subpoena, however, is not a full answer to the question. There
may be cases in which the witness might be willing to come into the
jurisdiction to testify if his expenses of travel are paid. Is it enough, then,
merely to prove that the witness is beyond reach of subpoena, without showing
any effort to secure his voluntary return and without any indication that if he

had been asked he would have refused to do so?

28

Recent statutory developments suggest a negative answer. The Uniform Act to

Secure the Attendance of Witnesses from Without a State in Criminal
Proceedings, has been adopted in forty-five states, the District of Columbia and
in three territories including the Virgin Islands. 16 Section 3 permits a judge of a
court of record in one jurisdiction to certify that in a prosecution pending before
the court a material witness will be required for a specified number of days and
is in any jurisdiction which has a reciprocal law. Thereupon, on presentation of
the certificate to a judge of a court of record in the county where the witness is
found, the witness may be required to testify in the first jurisdiction if he is
tendered the statutory travel expenses and compensation and daily subsistence.
With the prevalence of such a statute, there is now recognition of both the
power and the desirability of requiring a witness to come from one state to
another to testify in a criminal proceeding. The question would be rendered
acute in the present case if the complainant were now a resident in one of the
states of the United States which has a reciprocal law; even without such a law,
however, Rule 17(e) of the Federal Rules of Criminal Procedure, which is
applicable in the Virgin Islands,17 provides for service of a subpoena upon a
witness at any place within the United States, or, if the witness is a resident of
the United States, even in a foreign country. Here, however, the witness
apparently is not a citizen or resident of the United States, but a Norwegian.18
But even if the Uniform Act and the Rule of Criminal Procedure are both
inapplicable, they nevertheless indicate the modern recognition of the
desirability of securing the attendance of witnesses who are outside the
jurisdiction where the trial is held and the fairness of requiring the payment of
the travel and per diem subsistence of the witness by the party who calls him.

29

We turn then to the facts which appear in the record to determine whether they
justify the finding by the district court that the witness was truly unavailable.

30

At the preliminary examination seven days after the crime had been committed,
complainant testified that this had been her first position as a stewardess on a
vessel. The ship evidently had departed, for she said that it was to sail at 8
o'clock on the morning the offense occurred, and at the time of her testimony
she was living at a guest house in the Virgin Islands. At the trial, which began
on May 17, 1966, the prosecutor said that she had taken another ship and had
returned home, and apparently that she was not within the jurisdiction of the
court because its process could not reach her either on the high seas or in
Norway, "wherever she might be." Appellants' counsel at one point said that he
had understood from an earlier discussion that the only question was whether
the government would be willing to bear the expense "of trying to get her here."

The government's counsel, however, denied that such a statement had been
made.
31

So far as the record shows, therefore, the complainant might have been residing
continuously in the Virgin Islands ever since the preliminary hearing was held.
She might have been aboard a vessel which was in St. Thomas harbor at the
time of the trial. In these circumstances it cannot be said that the prosecution
satisfactorily established the burden which rested on it to show that she was
unavailable at the time of trial. We hold therefore that the finding by the district
court that the complainant was unavailable to the government as a witness is
not supported by the record and is clearly erroneous.

32

On retrial, if the complainant is shown to be beyond the jurisdiction of the

court there will remain the question of what the government must show to
prove that she is actually unavailable. We believe that in such a case, especially
where the absent witness is the complaining party, the government must show
diligent effort on its part to secure the complainant's voluntary return to testify.
See, e. g., State v. Weinrib, 140 Conn. 247, 99 A.2d 145 (1953). The Virgin
Islands are a center for tourists who may become important witnesses in actions
brought there. It is important, if the transcripts of their testimony in prior
proceedings such as preliminary hearings are to be presented at subsequent
trials when they are no longer present in the Islands, that a full and adequate
foundation be laid to justify the admission of the evidence. As the increasing
popularity of the Virgin Islands as a vacation resort attests, travel over long
distances is relatively swift and easy today. We may not exclude the important
evidence of demeanor without realistically taking into consideration the
opportunity which air travel now affords for bringing witnesses from long
distances into the Virgin Islands to testify. The new procedures under the
Uniform Act and the broad provisions of the Federal Rules of Criminal
Procedure make possible the compulsory attendance of witnesses who are
outside the jurisdiction. The reasonableness of efforts to secure attendance in
the Virgin Islands of a witness, whether he is in another state of the Union or in
a foreign country, must be judged by the standards of modern air travel and not
of the sailing vessel or even the steamship. Where the liberty of a defendant is
at stake the government which prosecutes him may not secure the benefit of
incriminating testimony against him unless it shows its genuine and bona fide
effort to secure the attendance of the witness. An effort which expires at the
shoreline of the Virgin Islands cannot be said to have inherently in it the proof
of its genuineness and its bona fide character. No effort can be deemed genuine
and bona fide which is not reasonable in its extent, and reasonableness must be
judged, not by artificial boundaries, but by limitations of time and distance.

33

It may be that on a retrial the government will prove its inability to ascertain the
whereabouts of the complainant or to secure her attendance. If the government
ascertains her whereabouts it would be required to reimburse her for her
expenses of travel and subsistence if this is necessary in order to secure her
voluntary appearance in the Virgin Islands. If the government should be
unwilling to reimburse her because it deems her demand excessive, the
reasonableness of its refusal would be determined by the trial judge at the time
the government offers her prior testimony in evidence on the ground of her
unavailability. Such a determination would call upon the exercise of a wise
judicial discretion, which would take into consideration the significance of the
particular witness's physical presence, the funds available to the prosecution,
and the trial judge's familiarity with the financial abilities of the government
and the frequency with which requirements for reimbursement may be made.
On the present record, however, it is impossible to determine whether this
element of expense will assume any significance, for the record does not
disclose what requirements the government might be required to meet in order
to secure the complainant's voluntary attendance if she is beyond the reach of
subpoena.

III.
34

The final question is whether Aquino, who was tried on an information

charging him as a principal, could be convicted as an accessory after the fact.
At the conclusion of the evidence, counsel for the government urged the jury in
his summation to find Aquino guilty as an accessory after the fact in the event
they did not believe him to be guilty as a principal. The jury in its verdict
expressly found Aquino "guilty of the lesser crime to wit accessory after the
fact."

35

The government argues that the conviction should be sustained because the
caption of the information refers to 11 of 14 V.I.Code. This section, however,
deals with principals and eliminates in the Virgin Islands the distinctions
between principals in the first and second degree and accessories before the
fact, as has been done in modern state statutes. The citation in the caption of the
information therefore is of no help to the government in sustaining the
conviction of Aquino as an accessory after the fact.

36

The distinction between an accessory after the fact who is defined in 12 of 14

V.I.Code, and an accessory before the fact, who is made a principal under 11,
is made clear both in the separate definitions of the offenses and by the
limitation of the punishment of the accessory after the fact to one-half that of
the accessory before the fact, who is punished as a principal.19 Section 11(a)

makes punishable as a principal whoever "commits a crime or offense or aids,

abets, counsels, commands, induces or procures its commission * * *," while
12(a) defines an accessory after the fact as one who, "knowing that a crime or
offense has been committed, receives, relieves, comforts or assists the offender
in order to hinder or prevent his apprehension, trial or punishment * * *."
37

In obliterating the common law distinctions between principals in the first and
second degree and accessories before the fact, these statutory provisions have
specifically retained the fundamental distinction between an accessory before
the fact now a principal and an accessory after the fact. This distinction
survives the reason for the elimination of the distinction between principals in
the first and second degree and accessories before the fact, for it rests upon a
substantive difference in the nature of the criminal conduct involved. An
accessory after the fact is one who, knowing that a crime has been committed,
obstructs justice by giving comfort or assistance to the offender in order to
hinder or prevent his apprehension or punishment.20 The offense thus can occur
only after the substantive crime has been committed and is in no way an
element of the crime. This fact should prevent any confusion between the
"aiding and abetting" by the accessory before the fact who is made a principal
under 11(a), and the "relieving, comforting or assisting" of the offender by an
accessory after the fact under 12. The "aiding and abetting" of the offender
under 11, which makes the accessory before the fact a principal, deals with
aiding and abetting in the commission of the crime; it renders him punishable
as a principal as if he himself had committed the crime. On the other hand,
"comforting and assisting" the offender, which makes one an accessory after
the fact under 12, does not relate to assistance in the commission of the crime,
but rather to assistance rendered the offender in order to hinder or prevent his
apprehension or punishment after he has already committed an offense.21

38

The giving of refuge or other assistance in escaping punishment to one who has
committed a crime bears no relation to the ingredients of the substantive crime.
By definition, an accessory after the fact is one who stands outside the
commission of the substantive crime, for his offense consists of what he does,
after he knows it has been committed, to aid the offender to avoid apprehension
or punishment.

39

It is in recognition of this clear distinction that one who is indicted as a

principal may not be convicted as an accessory after the fact.22 As early as
Blackstone's time it was conversely recognized that "one acquitted as principal
may be indicted as an accessory after the fact; since that is always an offense of
a different species of guilt, principally tending to evade the public justice, and is
subsequent in its commencement to the other." IV Blackstone, Commentaries,

*40.
40

The government urges, however, that the conviction is proper under Rule 31(c)
of the Federal Rules of Criminal Procedure which provides: "The defendant
may be found guilty of an offense necessarily included in the offense charged *
* *." This Rule does not lay down a novel principle of law; it carries out the
settled principle that there may be a conviction of a crime which is necessarily
included within the higher offense charged. Thus it has been recognized under
the Rule that the lesser offense must be such that it is impossible to commit the
greater offense without having first committed it.23 To give assistance in
avoiding apprehension or punishment of a crime knowing that it has been
committed has nothing in common with the elements essential to establish a
charge of rape.

41

Moreover, a serious question is raised by the Virgin Islands Bill of Rights,

which confers on a criminal defendant in the Virgin Islands, just as does the
Sixth Amendment, "the right * * * to be informed of the nature and cause of the
accusation."24 One who is charged with having committed the offense of rape
can hardly know that he should prepare a defense to a claim that he had assisted
someone else, who had committed the crime, to avoid apprehension or
punishment.25 Such a difference between the charge and the verdict involved
the substantive rights of Aquino and is not a variance which could be
eliminated by a simple amendment authorized by Rule 7(e) of the Federal Rules
of Criminal Procedure.26

42

Aquino therefore was convicted of a crime which had not been charged against
him and which was not a lesser offense necessarily included within the charge
against him. His conviction therefore must be set aside. In doing this we
express no opinion, however, on the question whether the evidence against him
would support a conviction on an information charging him as an accessory
after the fact.27

43

In Reyes' appeal (No. 16024) the judgment will be reversed and a new trial
awarded. In Aquino's appeal (No. 16023) the judgment will be reversed with
direction to enter a judgment of acquittal.

Notes:
*

Of the First Circuit, sitting by designation

Section 1701 provides:

"Whoever perpetrates an act of sexual intercourse with a female not his wife
"(1) when through idiocy, imbecility or any unsoundness of mind, either
temporary or permanent, she is incapable of giving consent, or, by reason of
mental or physical weakness or immaturity or any bodily ailment, she does not
offer resistance;
*****
"(4) when her resistance is prevented by stupor or weakness of mind produced
by an intoxicating, narcotic or anaesthetic agent, or when she is known by the
defendant to be in such state of stupor or weakness of mind from any cause; * *
* is guilty of rape in the first degree and shall be imprisoned not more than 20
years."

See generally Developments in the Law Confessions, supra, at 1007-1012,

1021

Similarly, Escobedo thought he was exculpating himself of guilt by accusing

his accomplice of the actual shooting, not knowing that under Illinois law a
mere participant was equally guilty

Compare United States v. Drummond, 354 F.2d 132, 141 (2 Cir. 1965), cert.
denied, 384 U.S. 1013, 86 S.Ct. 1968, 16 L.Ed.2d 1031 (1966); Long v. United
States, 119 U.S.App.D.C. 209, 338 F.2d 549 (1964)

Cf. Escobedo v. State of Illinois, supra 378 U.S. at 485-486, 84 S.Ct. 1758, 12
L.Ed.2d 977, quoting Bram v. United States, 168 U.S. 532, 562, 18 S.Ct. 183,
42 L.Ed. 568 (1897)

See Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967), holding
that any admission elicited by the police before warning a suspect of his right to
remain silent violates the rule of Escobedo

Section 3, 1 V.I.Code Annot. CII, 48 U. S.C. 1561

E. g., Commonwealth v. Gallo, 275 Mass. 320, 175 N.E. 718, 79 A.L.R. 1380
(1931)

See also Judge Frank's opinions in N. L. R. B. v. Dinion Coil Co., 201 F.2d 484
(2 Cir. 1952) and Arnstein v. Porter, 154 F. 2d 464 (2 Cir. 1946)

10

See 3 Wigmore, Evidence, (3d ed. 1940), 924a, 934a

11

Only in cases clearly within the well recognized exceptions to the hearsay rule,
such as dying declarations, has the Supreme Court allowed evidence to be
admitted against a criminal defendant where there had been no opportunity to
cross-examine the declarant. See, for a challenge to even this limited exception,
Note, Preserving the Right to Confrontation A New Approach to Hearsay
Evidence in Criminal Trials, 113 U.Pa.L.Rev. 741, 749-51 (1965)

12

Among the many cases where the testimony had been originally given at a
preliminary hearing and not at a trial, see e. g., West v. State of Louisiana, 194
U.S. 258, 24 S.Ct. 650, 48 L.Ed. 965 (1904); Motes v. United States, 178 U.S.
458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900)

13

5 Wigmore, Evidence (3d ed. 1940), 1396, 1401-18; McCormick, Evidence

(1954), 231, at pp. 484-85; Note, 113 U.Pa.L.Rev. 741, 757 (1965)

14

Section 932(3) dealing with depositions and prior testimony is taken from Rule
63 of the Uniform Rules of Evidence on which the Commissioners made the
following comment: "A question may be raised with respect to the use of
former testimony by the prosecution in a criminal case, whether such use would
violate the right of the accused to be confronted by his witnesses. As in several
other areas, the constitutional question may or may not be a barrier to the use of
the testimony. We are dealing in this rule with the question of hearsay and with
that subject only." Comment of Commissioners, 5 V.I.Code, 932, at 1
V.I.Code Annot., p. 466

15

See West v. State of Louisiana, supra; Commonwealth v. Gallo, supra.

Numerous cases are collected in 5 Wigmore, Evidence (3d ed. 1940) 1404

16

5 V.I.Code 3861-65. See 9 Uniform Laws Annot. 49 (1966 Supp.). See

generally Annotation, Uniform Act to Secure Attendance of Witnesses from
Without a State in Criminal Proceedings, 44 A.L.R. 2d 732 (1955)

17

Federal Rule of Criminal Procedure 54 (a) (1)

18

The record discloses only that she was a stewardess on a Norwegian vessel; her
citizenship has not been precisely described

19

14 V.I.Code 12(b), following 18 U.S. C. 3

20

Bishop's definition is: "An accessory after the fact is one who, knowing a
felony to have been committed, harbors the felon, or renders him any other
assistance to elude punishment." 1 Bishop, New Commentaries on the Criminal

Law (8th ed. 1892) 692. See also 695

21

"And, generally, any assistance whatever given to a felon, to hinder his being
apprehended, tried, or suffering punishment, makes the assistor an accessary
[after the fact]. As furnishing him with a horse to escape his pursuers, money or
victuals to support him, a house or other shelter to conceal him, or open force
and violence to rescue or protect him. So likewise to convey instruments to a
felon to enable him to break gaol, or to bribe the gaoler to let him escape,
makes a man an accessary to the felony." IV Blackstone, Commentaries, *37-8.
It is for this reason, Blackstone points out, that one who receives stolen goods
knowing them to be stolen could not be punished as an accessory after the fact,
because he only received the stolen goods and did nothing to receive the felon.
IV Blackstone, Commentaries, *38

22

State v. Sullivan, 77 N.J.Super. 81, 185 A.2d 410 (1962); Hill v. State, 221 Ga.
65, 142 S.E.2d 909 (1965); Wilson v. State, 94 Ga.App. 588, 95 S.E.2d 733
(1956); see People v. Galbo, 218 N.Y. 283, 112 N.E. 1041, 2 A.L.R. 1220
(1916)

23

Larson v. United States, 296 F.2d 80 (10 Cir. 1961); Giles v. United States, 144
F.2d 860, 10 Alaska 455 (9 Cir. 1944); United States v. Ciongoli, 358 F. 2d 439
(3 Cir. 1966). See also Sansone v. United States, 380 U.S. 343, 349-350, 85
S.Ct. 1004, 13 L.Ed.2d 882 (1965); Berra v. United States, 351 U.S. 131, 76
S.Ct. 685, 100 L.Ed. 1013 (1956)

24

Revised Organic Act, 3, 1 V.I.Code Annot. CII

25

See Russell v. United States, 369 U.S. 749, 763-766, 82 S.Ct. 1038, 8 L.Ed.2d
240 (1962); Stirone v. United States, 361 U.S. 212, 215, 217, 80 S.Ct. 270, 4 L.
Ed.2d 252 (1960)

26

Rule 7(e) provides: "The court may permit an information to be amended at

any time before a verdict or finding if no additional or different offense is
charged and if substantial rights of the defendant are not prejudiced."

27

Compare Smith v. United States, 113 U. S.App.D.C. 126, 306 F.2d 286 (1962)