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. e du/thir dc ir c uit_1998/3Filed 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 Isl ands (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 AppelleeOPINION OF THE COURT

SLOVITER, Chief Judge.

The Government of the Virgin Islands appeals from t he decision of the District Court of the Virgin Island s 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 Degre e, in
violation of 14 V.I.C. S 443.

The Information provided:

On or about February 18, 1994, in St. Thoma s, U.S. Virgin Islands, Roy Moolenaar, no known addr ess, 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 t here was present a human being, to wit Altagracia Hoh eb, 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 brea king and entering at No. 27 Ross-Taaneberg, which was occupi ed at the time of the incident by Altagracia Hoheb, her t hree 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 d oors to the house, took house keys from the dead bolt lo ck, and rummaged through the house. Tr. Vol. I at 114-115, 209, Tr. Vol. II at 45. Hoheb was awakened by her daught er, and instructed her to call the police. Tr. Vol. I at 10 2-103. One of Hoheb's daughters saw the intruder by her bedroo m 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

2apprehended Moolenaar. Tr. Vol. I at 130-131. Durin g 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 call ed as his only witness Jhon [sic] Parsons, who testified that he was with Moolenaar on the night in question and that th ey were both approached by a car, that an occupant of the c ar fired
shots and that he and Moolenaar both fled in differ ent
directions. Tr. Vol. II at 97-100. Moolenaar's atto rney later attempted to use this testimony to argue that Moole naar had entered the house to seek refuge from his assai lants, 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 ma de 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 t he breaking and entering was to commit theft, whereas theft is not a specified crime in the Virgin Islands. The Territor ial Court denied the motion, rejecting the challenge to the s ufficiency of the Information on the ground that larceny, whic h is a crime in the Virgin Islands, is "almost synonymous" with theft, app. at 36, and that Moolenaar had been give n ample
notice.

Moolenaar was convicted after a two-day jury trial, and was sentenced to 15 years incarceration and assesse d $25 as court costs. On appeal, the District Court of th e Virgin Islands Appellate Division held that the Informatio n was insufficient, reversed Moolenaar's conviction and r emanded
the case to the Territorial Court.

II.

The sufficiency of an information, like the suffici ency of an indictment, presents a question of law over whic h our review is plenary. See United States v. Henry, 29 F .3d 112, 113 (3d Cir. 1994).

3Federal Rule of Criminal Procedure 7(c), governing the

nature and contents of indictments and informations
, provides:

(1) In General. The indictment or the infor mation shall be a plain, concise and definite writt en statement of the essential facts constituting the offe nse 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 w hich the defendant is alleged therein to have violate d.

* * *

(3) Harmless Error. Error in the citation o r its omission shall not be ground for dismissal o f 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), t he Supreme Court considered the sufficiency of an indi ctment of a defendant charged with refusing to answer a qu estion in testifying before a congressional committee. The Court referred to a two-part test established in prior ca ses for measuring the sufficiency of an indictment, to wit 1)
whether the indictment "contains the elements of th e offense intended to be charged and sufficiently app rises the defendant of what he must be prepared to meet," and 2) enables the defendant to plead an acquittal or conv iction 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 th e Virgin Islands v. Pemberton, 813 F.2d 626, 631 (3d Cir. 1987).

The Virgin Islands statute on Burglary in the Secon d Degree provides:

Whoever, with intent to commit some offense therein breaks and enters the dwelling house, buildi ng, or structure of another in which there is a hum an being, under circumstances not amounting to burglar y in the

4first degree, is guilty of burglary in the s econd 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 i n the Virgin Islands Code as an act committed in violatio n 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 of fense Moolenaar intended to commit when breaking and ente ring as "theft." However, there is no crime denominated "theft" in the Virgin Islands Code. Instead, the unlawful t aking of property of another in the Virgin Islands is charac terized as "larceny," defined as "the unlawful taking, stealin g, carrying, leading, or driving away the personal pro perty of another." 14 V.I.C. S 1081(a). We must thus determi ne whether the use of the word "theft" instead of "lar ceny" in
the Information rendered the Information insufficie nt.

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 w hat he had to defend. App. at 39. The court noted that Bla ck's Law Dictionary states that theft is the "popular name" for larceny and that a dictionary that lay persons woul d use
makes a similar connection. The court concluded tha t the common understanding of "theft" is almost synonymou s with "larceny." App. at 36.

In contrast, the Appellate Division held that the Information did not state the crime of burglary "be cause 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 char ge which fails to state a crime is insufficient to apprise a defendant of what he must be prepared to meet. App. at 12. Th e 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 infor mation did not charge a crime." App. at 13. It stated that "th eft" may be included in the concept of larceny, id., but als o

5suggested that "theft" is a more expansive term tha n

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

In addition, the Appellate Division concluded that the Information failed Russell's second requirement bec ause, although the charge clearly delineated the time and place of the burglary, it failed to tell "what crime he is a lleged to have intended to commit once he got inside" and wou ld not protect Moolenaar from again being put in jeopardy. App. at
13.

On appeal, the government contends that the Appella te Division erred as a matter of law, and argues that the fact
that the Information used a common law term to desc ribe an element of burglary instead of using the statuto ry language did not render the Information insufficien t. We

agree.

We know of no authority, and Moolenaar cites none, that supports the Appellate Division's holding that a ch arge 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]ailur e to allege the statutory elements will not be fatal provided t hat alternative language is used or that the essential elements are charged in the indictment by necessary implicat ion." 24 Moore's Federal Practice, S 607.04[2][b][ii] (3d ed . 1997).

This is particularly true in the context of burglar y when the issue centers on the language used to describe the offense intended in breaking and entering. Thus, fo r example, in United States v. Dyba, 554 F.2d 417, 41 9 (10th Cir.), cert. denied, 434 U.S. 830 (1977), the indic tment 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 o ffense charged." Id.

Similarly, in Johnson v. Turner, 429 F.2d 1152, 115 4-55 (10th Cir. 1970), a defendant who was convicted of grand

6larceny contended in a petition for habeas corpus t hat the

information was constitutionally defective because it charged merely that defendant "stole" a guitar and failed to identify the specific criminal statute alleged to h ave been violated. The court denied the petition, holding th at the charge fully apprised the defendant of the nature o f the charge and of the facts alleged by the prosecution. Id. at

1155.

The authorities on which Moolenaar relies to conten d that the Information did not give him sufficient no tice are not apposite. In Pemberton, 813 F.2d at 630, the information charging Burglary in the Third Degree a lleged merely breaking and entering a building with "inten t 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 defe ndant of what he must be prepared to meet. Id. at 632. To th e same effect, in United States v. Thomas, 444 F.2d 919 (D .C. Cir. 1971), the court held insufficient an indictment ch arging defendant with burglary that merely alleged that he entered a dwelling "with intent to commit a criminal offens e therein." Id. at 920. The court held that this lang uage was "impermissibly broad and categorical." Id. at 922.

Similarly, in United States v. Deutsch, 243 F.2d 43 5, 436 (3d Cir. 1957), the indictment purported to charge a conspiracy to violate bankruptcy laws but merely st ated 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 ina dequate generality." Id.

The Information charging Moolenaar did more than us e the generic term "offense," and instead specificall y described the intent of the breaking and entering a s to
commit "theft." In the context of this case and thi s Information, we reject the narrow and constricted interpretation of the Appellate Division that becau se "theft" is not itself an "offense," no crime of burglary wa s charged. As the Territorial Court noted, the dictionary mean ings 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

7Virgin Islands Code includes several other criminal statutes

that refer to "theft" in a context that suggests th at the term is being used to describe the unlawful taking of pr operty. 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 vehicl e); 14 V.I.C. S 1749 (regarding "[u]nauthorized presence on schoo l premises" and providing for consecutive sentences"f or conviction on any other count for the same incident of unauthorized presence, such as vandalism, theft or assault"). As the government argues, these referenc es 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 reasonab le interpretation of the phrase "crime of theft" other than larceny. Moolenaar has suggested none. While he arg ues that a "crime of theft" may encompass embezzlement and fraud, as well as larceny, when the phrase "crime o f theft" is used in conjunction with a charge of breaking an d 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 F ed. R. Crim. P. 7 requires that we read the Information as a whole and interpret it in a common sense manner. See 24 M oore'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 "lar ceny," Moolenaar was provided with sufficient notice to sa tisfy the first requirement of Russell.

With respect to the second element of the Russell i nquiry, we see no reason why Moolenaar would be at risk of double jeopardy based on this Information. Moolenaar merel y argues that because the Information "fails to charg e 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 o ne in the present Information. Appellee's Br. at 10-11.

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

sufficient to prevent future prosecution, the Court relied on the fact that the indictment contained a descriptio n of the acts alleged and specifics such as the time and loc ation of the events in question. Russell, 369 U.S. at 764. H ere, 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 th e entire record of the prosecution to prevent twice being tr ied for the same crime. Id. We see no realistic danger to M oolenaar of being placed again in jeopardy for the same crim e.

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 wh enever one is convicted on an information which fails to s tate a
crime.

Our decision in United States v. Hall, 979 F.2d 320 (3d Cir. 1992), provides some guidance. In that case, t he indictment charged the defendant with "driv[ing] a motor vehicle upon a highway within [Gettysburg National Military] Park while under the influence of intoxic ating liquor" in violation of a Pennsylvania statute thro ugh the application of the Assimilative Crimes Act (ACA). I d. at 322. We held that the trial court's jurisdiction should have been based on an applicable federal regulation, rather t han the ACA, but concluded that "[t]he citation of the wron g statute in an indictment is not grounds for reversal of a c onviction unless the defendant was misled to his or her preju dice. . . . There is no prejudice from the citation to an inapplicable statute when the elements of the two c rimes are the same and the defendant was adequately appri sed of the charges." Id. at 323.

Moolenaar does not allege any specific prejudice. Moreover, there is ample basis to conclude that Moo lenaar was not prejudiced in any way by the technical irre gularity in the Information as both the prosecution and the defense
focused on whether Moolenaar had the intent to stea l. 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 t han to

9steal. For example, during closing argument, Moolen aar's

counsel focused on the fact that there was no "inte nt to steal a set of keys." Tr. Vol. II at 113. Further, at several times during cross examination of government witnes ses, Moolenaar's counsel inquired into the chain of cust ody of the keys police found on Moolenaar and their identi ty. Tr. Vol. I at 166-69, 188. These questions and the stra tegy 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 e rred 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 t he 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 crim e 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 opport unity to
address these issues.

For the reasons set forth, we will reverse the judg ment of the Appellate Division and remand this case to it f or 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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