Federal prosecutors are urging a judge to reject efforts by David and Sacha Charlemagne to have the fraud charges against them dismissed or otherwise limit the case because of publicity surrounding the U.S. Department of Housing and Urban Development’s suspension of the V.I. Housing Finance Authority from receiving additional federal funding.
The Charlemagnes filed several motions in August arguing that statements associated with HUD’s action violated court-imposed restrictions and generated prejudicial publicity severe enough to undermine their ability to receive a fair jury trial. Their motions followed HUD’s July announcement suspending VIHFA from further federal funding, an action that cited broader concerns about the territory’s disaster-recovery programs as well as an alleged contracting scheme involving former VIHFA Executive Director Darin Richardson.
In filings submitted this week, prosecutors told the District Court that HUD’s announcement neither introduced new evidence into the criminal case nor materially altered the circumstances confronting the defendants. The government argues that the HUD notice itself is not evidence in the case, nor are the news reports and public reaction that followed it.
“The Notice merely restates publicly-available information,” prosecutors wrote. The resulting media reports and public commentary, they said, “are not probative of any fact at issue in the case and are not capable of being presented at trial in a manner that would make any fact in dispute more or less likely.”
Citing precedent from the Third Circuit Court of Appeals, government lawyers argued that evidence must consist of “tangible, verifiable facts – such as physical markings on the backs of checks – not a party’s subsequent interpretation or subjective conclusion about those facts.”
Prosecutors also contend that HUD’s suspension of VIHFA is not material to the allegations against David and Sacha Charlemagne. According to the government, the alleged misconduct underlying their criminal case represents only one element of much broader problems HUD identified at the housing authority over a period of years. The administrative decision to suspend VIHFA therefore has no bearing on whether the Charlemagnes committed the offenses with which they have been charged, prosecutors argue.
The government also pointed to an existing court order restricting references to Mr. Richardson’s indictment, convictions and alleged improprieties. Against that backdrop, prosecutors characterized the Charlemagnes’ latest arguments as an “attempt to use the HUD notice as a vehicle to introduce new theories and relitigate an issue the Court has already decided.”
Government Disputes Claims of Irreparable Jury Prejudice
Prosecutors similarly rejected the defendants’ contention that publicity surrounding HUD’s action has so prejudiced potential jurors that dismissal of the case is warranted.
“Exposure to news reports – even pervasive, adverse publicity – does not by itself establish constitutional prejudice,” one government filing states. Prosecutors argue that even if some level of prejudice could be demonstrated, dismissal of the charges would not be the appropriate remedy because prospective jurors can be questioned about their knowledge and opinions and instructed to decide the case solely on evidence presented in court.
The government also challenged the Charlemagnes’ reliance on selected comments posted beneath online news reports as evidence that public sentiment throughout the Virgin Islands has become irreparably hostile toward them. Prosecutors said defense attorneys had not demonstrated that the people making those comments were members of the prospective jury pool or even Virgin Islands residents eligible to serve as jurors.
“A person may comment more than once, may reside outside the Territory, may be ineligible for jury service, or may use an assumed name,” prosecutors wrote. “The quoted comments therefore cannot be treated as a random sample of Virgin Islands residents.”
The government further argued that the defense motions depend heavily on speculation about events that have not yet occurred, including future media coverage, political developments and the potential impact of an ongoing administrative investigation.
“It anticipates future reporting, assumes the election will amplify it, and predicts that an ongoing administrative investigation will pressure jurors,” prosecutors wrote. “Constitutional relief cannot rest on predictions about reports not yet published or jurors not yet questioned.”
The Charlemagnes have since filed replies maintaining that their original motions correctly apply the law and that the relief they requested remains warranted.
The competing arguments are now before U.S. District Judge Mark Kearney, who will determine whether the defendants have established grounds to dismiss the charges or obtain other relief before the case proceeds toward trial.
