MEMORANDUM

PER CURIAM.

I. SUMMARY

The government has appealed the trial judge's decision to dismiss, with prejudice, the charges against the defendants as a sanction for the government's violation of a discovery deadline. For the reasons set forth below, we hold a less severe sanction should have been imposed and vacate the trial court's dismissal.

II. FACTUAL AND PROCEDURAL BACKGROUND

On November 11, 1999, the defendants were traveling in a motor vehicle that was stopped after Virgin Islands Police Officers allegedly observed that the driver of vehicle was not wearing a seat belt. (Appellant Br. at 8.) Upon stopping the vehicle, the officers on the scene allegedly smelled a strong odor of marijuana and, after ordering the defendants out of the vehicle, noticed a knife handle sticking out from under the front passenger seat. ( Id.) When one of the officers reached under the seat, he found a bag containing a handgun with an obliterated serial number. ( Id.) The defendants were placed under arrest and, on December 1, 1999, charged by information with possession of a firearm in violation of 23 V.I.C. § 451(d). (Appellee App. at 1.) The defendants entered not guilty pleas on December 2, 1999, and the trial judge set a discovery deadline of January 7, 2000. ( Id. at 4.)

On July 7, 2000, six months after the trial court's discovery deadline and three days before jury selection was scheduled to begin, the government produced supplemental discovery to the defendants. (J.A. at 48; Douglas Br. at 2.) In this supplemental discovery, the government disclosed for the first time that a forensics test had determined the firearm was operable, but the government did not produce the report of the forensics expert in this untimely disclosure. (J.A. at 48.) On July 10, 2000, the parties came before the Territorial Court for a pre-trial conference and for jury selection. Counsel for appellee Albert Douglas informed the trial judge that he had not received the forensics report and requested that the trial judge continue the trial until a later date, disallow admission of evidence related to the report, or dismiss the case with prejudice. ( Id. at 48, 55, 68, 89.) Rejecting these requests, the trial judge instead insisted that the trial would not be delayed and suggested several individuals who would be able to test the weapon for the defense attorneys that afternoon. ( Id. at 49-52.)

During this discussion, the attorney for the government claimed he had been trying to get the report for months but had only obtained it in the last week because Police Department officials were previously unwilling to enter the building where the report was stored as it had been declared unsafe due to asbestos contamination. (J.A. at 61-63; Appellant Br. at 13.) The government's attorney then distributed the report to the defendants and the trial judge. (J.A. at 62.) After reviewing the report, the trial judge noted that it was dated November 12, 1999, and ruled that it would not be admissible at trial given the length of time it had been in the government's possession. ( Id. at 62, 67-68, 72-73.) The government then moved for a dismissal without prejudice, whereas the defendants requested a dismissal with prejudice. ( Id. at 74, 89.) The trial judge ruled from the bench that he would dismiss the case, but reserved judgment on whether the dismissal would be with or without prejudice. ( Id. at 90.) On August 4, 2000, the trial judge entered an amended order of dismissal, specifying that the case was dismissed with prejudice as a sanction against the government for its failure to abide by the court's discovery deadlines and for its history of dilatory tactics. ( Id. at 4-5.)

III. ANALYSIS

A. Jurisdiction and Standards of Review

This Court has jurisdiction to review Territorial Court orders terminating a prosecution in a defendant's favor, except where there is an acquittal on the merits. See 4 V.I.C. § 39(c); Section 23A of the Revised Organic Act. The appellate court accords plenary review to the trial court's interpretation of legal precepts; however, factual findings are reviewed for clear error. Id.; see Poleon v. Government of the V.I., 184 F. Supp. 2d 428 (D.V.I. App. Div. 2002). A trial judge's decision to dismiss with prejudice as a sanction for failure to abide by discovery orders will only be reversed for abuse of discretion. See Gov't of the Virgin Islands v. Blake, 118 F.3d 972, 977 (3d Cir. 1997); United States v. Maples, 60 F.3d 244, 246 (6th Cir. 1995).

B. It Was An Abuse of Discretion to Dismiss With Prejudice

After noting "the Government's history of dilatory tactics, and its severe abuse of the January, 2000 discovery deadline," the trial judge's August 4, 2000 amended order dismissed the case with prejudice as a sanction against the government. Rule 16(d)(2) of the Federal Rules of Criminal Procedure allows trial courts to impose sanctions for discovery violations in criminal cases. It provides:

if a party fails to comply with this rule, the court may order that party to permit the discovery or inspection; specify its time, place, and manner; and prescribe other just terms and conditions; (b) grant a continuance; (c) prohibit the party from introducing the undisclosed evidence; (d) or enter any other order that is just under the circumstance.

We found no precedential opinion of the Third Circuit Court of Appeals providing clear guidance or standards regarding the imposition of sanctions under Rule 16(d)(2). Courts of Appeals in other Circuits, however, have identified the following factors for consideration in determining the appropriate sanction under Rule 16(d)(2) for noncompliance with a discovery order: (1) the reasons for the government's delay in producing the requested materials, including whether or not the government acted in bad faith when it failed to comply with the discovery order; (2) the extent of prejudice to the defendant as a result of the government's delay; and (3) the feasibility of curing the prejudice with a continuance. See, e.g., United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir. 1988); United States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir. 1985).

Following this framework, we find that the trial judge abused his discretion in imposing the most severe sanction,

dismissal with prejudice. The government's delay in turning over the forensics report was caused not by bad faith, but instead its inability or unwillingness to coordinate with the Police Department in retrieving the report from a condemned storage room. Moreover, it is not clear that the defendants were even prejudiced by the government's delay in turning over the report, as the trial judge initially suggested they could have the gun tested that afternoon and proceed with trial the following day as scheduled. (J.A. at 49-52.) Assuming, solely for the sake of argument, that the defendants were prejudiced, this prejudice could have been cured by a less severe sanction, such as by disallowing evidence of the report at trial or granting a brief continuance.

As this Appellate Division noted in a recent case where the government failed to disclose exculpatory, rather that inculpatory, evidence prior to trial, "a just remedy for a discovery violation under the circumstances of this case would have been . . . a continuance for the defendant to investigate and update his strategy," rather than a dismissal with prejudice. Fahie v. Government of the Virgin Islands, 304 F. Supp. 2d 669, 677 (D.V.I. App. Div. 2004).

IV. CONCLUSION

As the government's violation of the trial judge's discovery order could have been remedied by granting a continuance or some other sanction short of dismissing the case with prejudice, we hold the trial judge abused his discretion. Accordingly, we will vacate the order of dismissal and remand the case to Territorial Court for further proceedings consistent with this opinion.

ORDER

ORDERED that the trial judge's order of dismissal with prejudice is vacated; it is further

ORDERED that this case is remanded to the Territorial Court for proceedings consistent with this Court's decision.