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POTENTIALLY BIASED FRAUD SENTENCE VOIDED

A fraud sentence handed down by Territorial Court Judge Ive Arlington Swan in 1997 was excessive and potentially biased, the appeals court that annulled the decision last week has ruled.
In 1997, after being held on $2 million bail, St. Thomas contractor Nicholas Karpouzis pleaded guilty to two counts of obtaining money under false pretenses and, despite a more lenient plea agreement between his attorneys and the V.I. government, was sentenced to 15 years in jail.
But Thursday, a three-member District Appellate Court panel, made up of District Court Chief Judge Thomas K. Moore, District Judge Raymond Finch and Territorial Court Judge Patricia Steele, voided the decision and, because they found an appearance of bias, returned the case to the Territorial Court for re-sentencing by a judge other than Swan.
"The court concludes that the sentence imposed by Territorial Court Judge Ive A. Swan violated due process because it was not authorized by Virgin Islands law," the panel wrote in its opinion.
"Although the record does not contain explicit proof that personal animus motivated the trial judge in sentencing Karpouzis, the Appellate Division finds that the aforementioned excessive bail and violations of local sentencing provisions create the distinct suggestion that bias and prejudice played a role in the sentencing," the judges wrote.
In 1996, Karpouzis' construction company lost its business license because its only licensed contractor left the business. According to court documents, however, Karpouzis illegally continued to accept new business, obtaining about $102,000 in mostly hurricane repairs contracts.
Karpouzis did minimal work on those projects and was subsequently arrested and charged with obtaining money under false pretenses. Karpouzis has remained in custody since his arrest and is now serving time in a prison on the mainland.
Karpouzis' $2 million bail was the first problem the appellate court found with the case.
"The trial judge's action in setting an excessive bail of two million dollars was an early indication that Karpouzis was being singled out for special treatment," the judges wrote. "Cash bail of two million dollars for the nonviolent crime of obtaining money by false pretenses is unheard of in the Virgin Islands."
The judges said Karpouzis appeared to have been punished not only for his own crimes, but for those committed by other fraudulent contractors in the territory. In their opinion, they said that Karpouzis' attorney, Andrew Capdeville, in arguments at his May 1997 sentencing hearing, "recognized the apparent bias that we find implicit in the record."
"Nick Karpouzis seems to be having his head put on the block not only for the sins that he committed against these innocent victims, but because of the pain and suffering caused by so many other uncaptured, unlicenced and unqualified contractors in our community," Capdeville said at May 1997 hearing.
According to further court documents, Swan did not accept two plea agreements worked out between the V.I. government and Capdeville because he felt they were too lenient. At a change-of-plea hearing in April 1997, the government did not object to Capdeville's recommendation that his client be sentenced to six years in jail and pay $150,000 in restitution.
Swan's response was that he was considering a 15-year sentence. After the change-of-plea hearing, the government filed a memorandum requesting Swan consider a lesser sentence. During the same time period, Swan ordered Karpouzis to pay $110,000 in restitution.
At Karpouzis' sentencing on May 28, 1997, Swan disposed of the government's leniency request and, according to court documents, said:
"I said straight 15 years and straight 15 means one, two, three, four, five, six, seven, eight, nine, 10, 11, 12, 13, 14 15, and that is what I mean by straight 15. Now, if we're not going to agree to a straight 15, I would simply allow the defendant to withdraw his plea and we can try this case next Monday, or I can give a July 7 (trial) date in which we can go for broke."
In his sentence, Swan also recommended Karpouzis not be allowed any work release, parole or pardon, and ordered another $40,000 in restitution payments, according to court documents.
The appeals court found three instances where Swan's sentence violated due process.
First, Swan ordered Karpouzis to pay restitution without placing him on probation, as the law requires.
Second, Swan violated sentencing statutes by adding $40,000 to the previously ordered restitution payments. According to the appellate judges, V.I. law prohibits sentencing judges from ordering convicts to pay restitution from prison.
Third, Swan violated the V.I. Code when he added four years' probation to Karpouzis unsuspended 15-year sentence. Under V.I. law, probation is restricted to defendants incarcerated for six months or less.
The panel also found Swan broke the promise he made at an earlier hearing not to make a recommendation regarding work release. In sentencing Karpouzis, Swan recommended he be denied work release.
"By misleading Karpouzis at the plea (hearing), the sentencing judge violated the due-process requirement that a defendant who enters a guilty plea must do so with 'a full understanding of what the plea connotes and of its consequence,'" the judges wrote.
An employee in Swan's office said Monday that the judge would not comment publicly on the appellate court's decision.
Capdeville said he was pleased with the appellate panel's finding.
"I agree with the appellate division, since we filed the briefs for Mr. Karpouzis primarily because we felt the original sentence was unduly harsh," Capdeville said. "I hold Judge Swan in very high regard, but we also have a job do and we felt this sentence was too rough."
For the full text of the opinion, go to Community/Data.

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A fraud sentence handed down by Territorial Court Judge Ive Arlington Swan in 1997 was excessive and potentially biased, the appeals court that annulled the decision last week has ruled.
In 1997, after being held on $2 million bail, St. Thomas contractor Nicholas Karpouzis pleaded guilty to two counts of obtaining money under false pretenses and, despite a more lenient plea agreement between his attorneys and the V.I. government, was sentenced to 15 years in jail.
But Thursday, a three-member District Appellate Court panel, made up of District Court Chief Judge Thomas K. Moore, District Judge Raymond Finch and Territorial Court Judge Patricia Steele, voided the decision and, because they found an appearance of bias, returned the case to the Territorial Court for re-sentencing by a judge other than Swan.
"The court concludes that the sentence imposed by Territorial Court Judge Ive A. Swan violated due process because it was not authorized by Virgin Islands law," the panel wrote in its opinion.
"Although the record does not contain explicit proof that personal animus motivated the trial judge in sentencing Karpouzis, the Appellate Division finds that the aforementioned excessive bail and violations of local sentencing provisions create the distinct suggestion that bias and prejudice played a role in the sentencing," the judges wrote.
In 1996, Karpouzis' construction company lost its business license because its only licensed contractor left the business. According to court documents, however, Karpouzis illegally continued to accept new business, obtaining about $102,000 in mostly hurricane repairs contracts.
Karpouzis did minimal work on those projects and was subsequently arrested and charged with obtaining money under false pretenses. Karpouzis has remained in custody since his arrest and is now serving time in a prison on the mainland.
Karpouzis' $2 million bail was the first problem the appellate court found with the case.
"The trial judge's action in setting an excessive bail of two million dollars was an early indication that Karpouzis was being singled out for special treatment," the judges wrote. "Cash bail of two million dollars for the nonviolent crime of obtaining money by false pretenses is unheard of in the Virgin Islands."
The judges said Karpouzis appeared to have been punished not only for his own crimes, but for those committed by other fraudulent contractors in the territory. In their opinion, they said that Karpouzis' attorney, Andrew Capdeville, in arguments at his May 1997 sentencing hearing, "recognized the apparent bias that we find implicit in the record."
"Nick Karpouzis seems to be having his head put on the block not only for the sins that he committed against these innocent victims, but because of the pain and suffering caused by so many other uncaptured, unlicenced and unqualified contractors in our community," Capdeville said at May 1997 hearing.
According to further court documents, Swan did not accept two plea agreements worked out between the V.I. government and Capdeville because he felt they were too lenient. At a change-of-plea hearing in April 1997, the government did not object to Capdeville's recommendation that his client be sentenced to six years in jail and pay $150,000 in restitution.
Swan's response was that he was considering a 15-year sentence. After the change-of-plea hearing, the government filed a memorandum requesting Swan consider a lesser sentence. During the same time period, Swan ordered Karpouzis to pay $110,000 in restitution.
At Karpouzis' sentencing on May 28, 1997, Swan disposed of the government's leniency request and, according to court documents, said:
"I said straight 15 years and straight 15 means one, two, three, four, five, six, seven, eight, nine, 10, 11, 12, 13, 14 15, and that is what I mean by straight 15. Now, if we're not going to agree to a straight 15, I would simply allow the defendant to withdraw his plea and we can try this case next Monday, or I can give a July 7 (trial) date in which we can go for broke."
In his sentence, Swan also recommended Karpouzis not be allowed any work release, parole or pardon, and ordered another $40,000 in restitution payments, according to court documents.
The appeals court found three instances where Swan's sentence violated due process.
First, Swan ordered Karpouzis to pay restitution without placing him on probation, as the law requires.
Second, Swan violated sentencing statutes by adding $40,000 to the previously ordered restitution payments. According to the appellate judges, V.I. law prohibits sentencing judges from ordering convicts to pay restitution from prison.
Third, Swan violated the V.I. Code when he added four years' probation to Karpouzis unsuspended 15-year sentence. Under V.I. law, probation is restricted to defendants incarcerated for six months or less.
The panel also found Swan broke the promise he made at an earlier hearing not to make a recommendation regarding work release. In sentencing Karpouzis, Swan recommended he be denied work release.
"By misleading Karpouzis at the plea (hearing), the sentencing judge violated the due-process requirement that a defendant who enters a guilty plea must do so with 'a full understanding of what the plea connotes and of its consequence,'" the judges wrote.
An employee in Swan's office said Monday that the judge would not comment publicly on the appellate court's decision.
Capdeville said he was pleased with the appellate panel's finding.
"I agree with the appellate division, since we filed the briefs for Mr. Karpouzis primarily because we felt the original sentence was unduly harsh," Capdeville said. "I hold Judge Swan in very high regard, but we also have a job do and we felt this sentence was too rough."
For the full text of the opinion, go to Community/Data.