1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-8-1998

Virgin Islands v. Moolenaar

Precedential or Non-Precedential:

Docket 96-7766

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Recommended Citation

"Virgin Islands v. Moolenaar" (1998). 1998 Decisions. Paper 3.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/3
Filed January 8, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-7766 

GOVERNMENT OF THE VIRGIN ISLANDS, 

 Appellant 

v. 

ROY MOOLENAAR 

On Appeal from the District Court of the Virgin Islands 

(D.C. No. 95-cr-00112) 

Argued December 8, 1997 

Before: SLOVITER, Chief Judge, 

STAPLETON and MANSMANN, Circuit Judges 

(Filed January 8, 1998) 

 Carol S. Moore (Argued) 

 Maureen P. Cormier 

 Office of Attorney General 

 of Virgin Islands 

 Department of Justice 

 Charlotte Amalie, St. Thomas 00802 

 Attorneys for Appellant 

 Alan D. Smith (Argued) 

 Hodge & Francois 

 Charlotte Amalie, St. Thomas 00802 

 Attorney for Appellee 
OPINION OF THE COURT 

SLOVITER, Chief Judge. 

The Government of the Virgin Islands appeals from the 

decision of the District Court of the Virgin Islands Appellate 

Division holding that the Information charging Roy 

Moolenaar with Burglary in the Second Degree was 

insufficient and reversing Moolenaar's conviction. 

I. 

On March 1, 1994, Moolenaar was charged in a onecount Information with Burglary in the Second Degree, in 

violation of 14 V.I.C. S 443. 

The Information provided: 

 On or about February 18, 1994, in St. Thomas, U.S. 

 Virgin Islands, Roy Moolenaar, no known address, St. 

 Thomas, Virgin Islands, did with the intent to commit 

 the crime of theft therein, break and enter a dwelling 

 house, to wit Ross-Taaneberg #27, in which there was 

 present a human being, to wit Altagracia Hoheb, in 

 violation of 14 V.I.C. 443. 

App. at 3 (emphasis added). 

At trial the government presented evidence that on 

February 18, 1994, police received a report of breaking and 

entering at No. 27 Ross-Taaneberg, which was occupied at 

the time of the incident by Altagracia Hoheb, her three 

daughters and two grandchildren. Tr. Vol. I at 121, 127. 

According to police, an intruder entered through a window, 

removed his shoes, opened both the front and back doors 

to the house, took house keys from the dead bolt lock, and 

rummaged through the house. Tr. Vol. I at 114-115, 209, 

Tr. Vol. II at 45. Hoheb was awakened by her daughter, and 

instructed her to call the police. Tr. Vol. I at 102-103. One 

of Hoheb's daughters saw the intruder by her bedroom and 

screamed, and the intruder ran out of the house. Tr. Vol. I 

at 91. The police arrived at the residence and saw someone 

coming out the front door and after a chase they 

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apprehended Moolenaar. Tr. Vol. I at 130-131. During a 

subsequent search, Hoheb's keys were found in 

Moolenaar's jacket pocket. Tr. Vol. I at 136. 

Moolenaar did not testify at his trial, but he called as his 

only witness Jhon [sic] Parsons, who testified that he was 

with Moolenaar on the night in question and that they were 

both approached by a car, that an occupant of the car fired 

shots and that he and Moolenaar both fled in different 

directions. Tr. Vol. II at 97-100. Moolenaar's attorney later 

attempted to use this testimony to argue that Moolenaar 

had entered the house to seek refuge from his assailants, 

and not with the intent to commit a crime, which is a 

requisite to Burglary in the Second Degree. Tr. Vol. II at 

116. 

At the close of the government's case, Moolenaar made a 

motion under Rule 29 for a Judgment of Acquittal on the 

basis of insufficient evidence. At oral argument on that 

motion, he also contended that the Information was 

insufficient because it stated that the intent of the breaking 

and entering was to commit theft, whereas theft is not a 

specified crime in the Virgin Islands. The Territorial Court 

denied the motion, rejecting the challenge to the sufficiency 

of the Information on the ground that larceny, which is a 

crime in the Virgin Islands, is "almost synonymous" with 

theft, app. at 36, and that Moolenaar had been given ample 

notice. 

Moolenaar was convicted after a two-day jury trial, and 

was sentenced to 15 years incarceration and assessed $25 

as court costs. On appeal, the District Court of the Virgin 

Islands Appellate Division held that the Information was 

insufficient, reversed Moolenaar's conviction and remanded 

the case to the Territorial Court. 

II. 

The sufficiency of an information, like the sufficiency of 

an indictment, presents a question of law over which our 

review is plenary. See United States v. Henry, 29 F.3d 112, 

113 (3d Cir. 1994). 

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Federal Rule of Criminal Procedure 7(c), governing the 

nature and contents of indictments and informations, 

provides: 

 (1) In General. The indictment or the information 

 shall be a plain, concise and definite written statement 

 of the essential facts constituting the offense charged 

 . . . . The indictment or information shall state for each 

 count the official or customary citation of the statute, 

 rule, regulation or other provision of law which the 

 defendant is alleged therein to have violated. 

 * * * 

 (3) Harmless Error. Error in the citation or its 

 omission shall not be ground for dismissal of the 

 indictment or information or for reversal of a conviction 

 if the error or omission did not mislead the defendant 

 to the defendant's prejudice. 

Fed. R. Crim. P. 7(c). 

In Russell v. United States, 369 U.S. 749 (1962), the 

Supreme Court considered the sufficiency of an indictment 

of a defendant charged with refusing to answer a question 

in testifying before a congressional committee. The Court 

referred to a two-part test established in prior cases for 

measuring the sufficiency of an indictment, to wit 1) 

whether the indictment "contains the elements of the 

offense intended to be charged and sufficiently apprises the 

defendant of what he must be prepared to meet," and 2) 

enables the defendant to plead an acquittal or conviction in 

bar of future prosecutions for the same offense. Id. at 763- 

64 (citations omitted). We have applied the Russell test 

interchangeably to challenges to the sufficiency of an 

indictment and an information. See Government of the 

Virgin Islands v. Pemberton, 813 F.2d 626, 631 (3d Cir. 

1987). 

The Virgin Islands statute on Burglary in the Second 

Degree provides: 

 Whoever, with intent to commit some offense therein 

 breaks and enters the dwelling house, building, or 

 structure of another in which there is a human being, 

 under circumstances not amounting to burglary in the 

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 first degree, is guilty of burglary in the second degree. 

 . . . 

14 V.I.C. S 443 (emphasis added). 

Thus, the crime of Burglary in the Second Degree 

requires that the breaking and entering be with the intent 

to commit "some offense." An "offense" is defined in the 

Virgin Islands Code as an act committed in violation of a 

law of the Virgin Islands and punishable by, inter alia, a 

fine or imprisonment. 14 V.I.C. S 1. 

The Information charging Moolenaar describes the offense 

Moolenaar intended to commit when breaking and entering 

as "theft." However, there is no crime denominated "theft" 

in the Virgin Islands Code. Instead, the unlawful taking of 

property of another in the Virgin Islands is characterized as 

"larceny," defined as "the unlawful taking, stealing, 

carrying, leading, or driving away the personal property of 

another." 14 V.I.C. S 1081(a). We must thus determine 

whether the use of the word "theft" instead of "larceny" in 

the Information rendered the Information insufficient. 

In applying the Russell test, the Territorial Court held 

that the totality of the Information gave Moolenaar

sufficient notice of what he was charged with and what he 

had to defend. App. at 39. The court noted that Black's Law 

Dictionary states that theft is the "popular name" for 

larceny and that a dictionary that lay persons would use 

makes a similar connection. The court concluded that the 

common understanding of "theft" is almost synonymous 

with "larceny." App. at 36. 

In contrast, the Appellate Division held that the 

Information did not state the crime of burglary "because it 

does not recite an essential element of that crime, namely, 

the offense [the defendant] intended to commit once he got 

inside." App. at 12. The court reasoned that a charge which 

fails to state a crime is insufficient to apprise a defendant 

of what he must be prepared to meet. App. at 12. The 

Appellate Division stated that "[w]hether the word `theft' 

might have alerted Moolenaar of the gist of what he was 

facing is irrelevant because the single count information did 

not charge a crime." App. at 13. It stated that "theft" may 

be included in the concept of larceny, id., but also 

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suggested that "theft" is a more expansive term than 

"larceny." App. at 13 n.8. 

In addition, the Appellate Division concluded that the 

Information failed Russell's second requirement because, 

although the charge clearly delineated the time and place of 

the burglary, it failed to tell "what crime he is alleged to 

have intended to commit once he got inside" and would not 

protect Moolenaar from again being put in jeopardy. App. at 

13. 

On appeal, the government contends that the Appellate 

Division erred as a matter of law, and argues that the fact 

that the Information used a common law term to describe 

an element of burglary instead of using the statutory 

language did not render the Information insufficient. We 

agree. 

We know of no authority, and Moolenaar cites none, that 

supports the Appellate Division's holding that a charge of 

burglary will be insufficient unless the crime that was 

intended is framed in the exact statutory language. As set 

forth by one of the leading commentators, "[f]ailure to allege 

the statutory elements will not be fatal provided that 

alternative language is used or that the essential elements 

are charged in the indictment by necessary implication." 24 

Moore's Federal Practice, S 607.04[2][b][ii] (3d ed. 1997). 

This is particularly true in the context of burglary when 

the issue centers on the language used to describe the 

offense intended in breaking and entering. Thus, for 

example, in United States v. Dyba, 554 F.2d 417, 419 (10th 

Cir.), cert. denied, 434 U.S. 830 (1977), the indictment 

charged the defendant with "burglary of monies" as the 

underlying offense for a statute that criminalized entry into 

a bank with the intent to commit "any felony." The court 

held that although the correct term would have been

"larceny of monies," the use of the term "burglary of 

monies" was sufficient because the term `burglary' 

"imported an unlawful entry with intent to steal," and 

"provided the accused with adequate notice of the offense 

charged." Id. 

Similarly, in Johnson v. Turner, 429 F.2d 1152, 1154-55 

(10th Cir. 1970), a defendant who was convicted of grand 

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larceny contended in a petition for habeas corpus that the 

information was constitutionally defective because it 

charged merely that defendant "stole" a guitar and failed to 

identify the specific criminal statute alleged to have been 

violated. The court denied the petition, holding that the 

charge fully apprised the defendant of the nature of the 

charge and of the facts alleged by the prosecution. Id. at 

1155. 

The authorities on which Moolenaar relies to contend 

that the Information did not give him sufficient notice are 

not apposite. In Pemberton, 813 F.2d at 630, the 

information charging Burglary in the Third Degree alleged 

merely breaking and entering a building with "intent to 

commit an offense therein." We held the information was 

inadequate because it did not contain an essential element 

of the offense and insufficiently apprised the defendant of 

what he must be prepared to meet. Id. at 632. To the same 

effect, in United States v. Thomas, 444 F.2d 919 (D.C. Cir. 

1971), the court held insufficient an indictment charging 

defendant with burglary that merely alleged that he entered 

a dwelling "with intent to commit a criminal offense 

therein." Id. at 920. The court held that this language was 

"impermissibly broad and categorical." Id. at 922. 

Similarly, in United States v. Deutsch, 243 F.2d 435, 436 

(3d Cir. 1957), the indictment purported to charge a 

conspiracy to violate bankruptcy laws but merely stated in 

the relevant portion that the defendants "conspired to 

commit offenses against the United States." We held that 

the charge of conspiracy is "in itself a wholly inadequate 

generality." Id. 

The Information charging Moolenaar did more than use 

the generic term "offense," and instead specifically 

described the intent of the breaking and entering as to 

commit "theft." In the context of this case and this 

Information, we reject the narrow and constricted 

interpretation of the Appellate Division that because "theft" 

is not itself an "offense," no crime of burglary was charged. 

As the Territorial Court noted, the dictionary meanings of 

larceny and theft are very similar. 

"Theft" is neither a word in a foreign language nor a word 

that is unknown to the Virgin Islands legislature. The 

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Virgin Islands Code includes several other criminal statutes 

that refer to "theft" in a context that suggests that the term 

is being used to describe the unlawful taking of property. 

See, e.g., 14 V.I.C. S 3003 ("theft" by obtaining a credit card 

through fraudulent means); 14 V.I.C. S 1385 (crime to make 

a false report of "theft or conversion" of a vehicle); 14 V.I.C. 

S 1749 (regarding "[u]nauthorized presence on school 

premises" and providing for consecutive sentences"for 

conviction on any other count for the same incident of 

unauthorized presence, such as vandalism, theft or 

assault"). As the government argues, these references 

signify that the legislature assumes that the word is so 

commonplace that its meaning is obvious. 

In the context of an Information alleging breaking and 

entering of a dwelling, we can think of no reasonable 

interpretation of the phrase "crime of theft" other than 

larceny. Moolenaar has suggested none. While he argues 

that a "crime of theft" may encompass embezzlement and 

fraud, as well as larceny, when the phrase "crime of theft" 

is used in conjunction with a charge of breaking and 

entering, it is apparent that it is used to signify larceny. 

Fraud and embezzlement necessarily involve securing

possession of another's property by deception, not by 

breaking and entering his dwelling. The spirit of Fed. R. 

Crim. P. 7 requires that we read the Information as a whole 

and interpret it in a common sense manner. See 24 Moore's 

Federal Practice, S 607.04[2][b][ii]. 

We thus conclude that despite the Information's use of 

the word "theft" instead of the statutory term "larceny," 

Moolenaar was provided with sufficient notice to satisfy the 

first requirement of Russell. 

With respect to the second element of the Russell inquiry, 

we see no reason why Moolenaar would be at risk of double 

jeopardy based on this Information. Moolenaar merely 

argues that because the Information "fails to charge a 

crime" there is no way to determine what underlying offense 

the government sought to prove at trial and thus he would 

not be protected if he were to be tried again for a crime 

taking place at the same time and location as the one in 

the present Information. Appellee's Br. at 10-11. 

 8 
However, in Russell, in holding that the indictment was 

sufficient to prevent future prosecution, the Court relied on 

the fact that the indictment contained a description of the 

acts alleged and specifics such as the time and location of 

the events in question. Russell, 369 U.S. at 764. Here, too, 

the Information described the conduct and provided the 

date and location of the charged offense. Moreover, should 

any issue arise in the future, Moolenaar can use the entire 

record of the prosecution to prevent twice being tried for 

the same crime. Id. We see no realistic danger to Moolenaar 

of being placed again in jeopardy for the same crime. 

Finally, it is significant that Moolenaar does not contend 

that he was misled or surprised by the Information's use of 

the term "theft" instead of "larceny." Instead, he merely 

argues that prejudice to the accused is inherent whenever 

one is convicted on an information which fails to state a 

crime. 

Our decision in United States v. Hall, 979 F.2d 320 (3d 

Cir. 1992), provides some guidance. In that case, the 

indictment charged the defendant with "driv[ing] a motor 

vehicle upon a highway within [Gettysburg National 

Military] Park while under the influence of intoxicating 

liquor" in violation of a Pennsylvania statute through the 

application of the Assimilative Crimes Act (ACA). Id. at 322. 

We held that the trial court's jurisdiction should have been 

based on an applicable federal regulation, rather than the 

ACA, but concluded that "[t]he citation of the wrong statute 

in an indictment is not grounds for reversal of a conviction 

unless the defendant was misled to his or her prejudice. 

. . . There is no prejudice from the citation to an

inapplicable statute when the elements of the two crimes 

are the same and the defendant was adequately apprised of 

the charges." Id. at 323. 

Moolenaar does not allege any specific prejudice. 

Moreover, there is ample basis to conclude that Moolenaar 

was not prejudiced in any way by the technical irregularity 

in the Information as both the prosecution and the defense 

focused on whether Moolenaar had the intent to steal. At 

trial, the prosecution emphasized the taking of the keys 

from Hoheb's house and the defense sought to prove that 

Moolenaar entered the house to seek refuge rather than to 

 9 
steal. For example, during closing argument, Moolenaar's 

counsel focused on the fact that there was no "intent to 

steal a set of keys." Tr. Vol. II at 113. Further, at several 

times during cross examination of government witnesses, 

Moolenaar's counsel inquired into the chain of custody of 

the keys police found on Moolenaar and their identity. Tr. 

Vol. I at 166-69, 188. These questions and the strategy of 

the defense demonstrate that the defense focused on

larceny and refute any potential claim of surprise or 

prejudice. 

III. 

We therefore conclude that the Appellate Division erred in 

reversing Moolenaar's conviction. The Information 

sufficiently charged the Virgin Islands offense of Burglary in 

the Second Degree. 

In reversing Moolenaar's conviction, the Appellate 

Division focused only on the issue challenging the 

sufficiency of the Information, and never reached the 

additional claims raised by Moolenaar in his appeal to that 

court. The Appellate Division's opinion notes that it did not 

reach Moolenaar's contentions that the trial court 

committed plain error by failing to define the crime of theft 

or larceny and by failing to instruct the jury that larceny 

and the crime of theft are synonymous, and that he is 

therefore entitled to a new trial. See App. at 10 n.3. On 

remand, the Appellate Division will have the opportunity to 

address these issues. 

For the reasons set forth, we will reverse the judgment of 

the Appellate Division and remand this case to it for further 

proceedings consistent with this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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