2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-25-2000

United States v. Hodge

Precedential or Non-Precedential:

Docket 99-3247

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Recommended Citation

"United States v. Hodge" (2000). 2000 Decisions. Paper 84.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/84
Filed April 25, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 99-3247 

UNITED STATES OF AMERICA 

v. 

IRVINE HODGE, JR., 

 Appellant 

On Appeal from the District Court of the Virgin Islands 

(Division of St. Croix) 

(D.C. Criminal No. 98-cr-00122-1) 

District Judge: Honorable Thomas K. Moore 

Argued: Thursday, December 9, 1999 

Before: BECKER, Chief Judge, SCIRICA, Circuit Judge and 

GARTH, Senior Circuit Judge 

(Opinion Filed: April 25, 2000) 

 Leonard Bernard Francis, Jr. 

 (Argued) 

 #4A Dronningens Gade 

 P.O. Box 8838 

 Charlotte Amalie, St. Thomas 

 U.S. Virgin Islands 00801 

 Attorney for Appellant 
 James A. Hurd, Jr. 

 United States Attorney 

 Audrey L. Thomas-Francis (Argued) 

 Assistant U.S. Attorney 

 5500 Veterans Building 

 Federal Building & U.S. Courthouse 

 Suite 260 

 Charlotte Amalie, St. Thomas 

 U.S. Virgin Islands 00802 

 Attorneys for Appellee 

OPINION OF THE COURT 

GARTH, Circuit Judge. 

This appeal stems from Irvine Hodge's judgment and 

conviction entered on March 10, 1999, finding him guilty of 

violating federal law for "affect[ing] commerce" by robbery 

and for possession of a firearm during the commission of a 

crime of violence, as well as finding him guilty for robbery 

in the first degree in violation of Virgin Islands law. In 

affirming Hodge's conviction and sentence, we hold that a 

failure to include the element of specific intent in Hodge's 

robbery indictment was not reversible error; that Hodge was 

properly convicted of aiding and abetting even though the 

principal offender was never charged; and that although the 

United States and the Virgin Islands are considered one 

sovereign for purposes of convictions and sentencing, 

because the charged federal and Virgin Islands offenses 

require proofs of elements independent of each other. 

Hodge was properly convicted and sentenced on both 

counts without violating the double jeopardy clause of the 

United States Constitution.1 

_________________________________________________________________ 

1. The District Court properly exercised jurisdiction pursuant to 48 

U.S.C. S 1612 and 4 V.I.C. S 32; we exercise appellate jurisdiction 

pursuant to 28 U.S.C. S 1291 as an appeal from a final order. 

 2 
I. 

Two males robbed the Emerald Lady jewelry store in St. 

Thomas after it had closed on November 15, 1995. 2 By 

gunpoint, the robbers ordered the owners to lie on the floor 

while they stole more than 500 pieces of jewelry, valued at 

approximately $500,000, from a safe. Hodge was arrested 

for the robbery in March of 1996.3 A federal grand jury 

indicted Hodge on a three count indictment for interference 

with commerce in violation of 18 U.S.C. S 1951-52 ("Count 

I"); possession of a firearm during the commission of a 

crime of violence in violation of 18 U.S.C. S 924(c)(1) 

("Count II"); and robbery in the first degree in violation of 

14 V.I.C. S 1862(2) ("Count III"). 

On September 16, 1998, the jury returned a guilty 

verdict with respect to all three counts of the indictment. 

On October 5, 1998, the district court denied Hodge's 

motion for judgment of acquittal, which, because of the 

content of the motion, the court analyzed as a motion to 

seek arrest of the judgment pursuant to Federal Rule of 

Criminal Procedure 34. With an offense level of twenty-nine 

and a criminal history category of I, the District Court 

sentenced Hodge on February 17, 1999, to a term of 108 

months imprisonment on Count I; a mandatory consecutive 

term of sixty months imprisonment on Count II; and 

thirteen years imprisonment on Count III to be served 

concurrently with the sentences imposed in Counts I and II.4 

The District Court also imposed three years of supervised 

release, assessed Hodge $100, and ordered him to pay 

$20,000 in restitution. This appeal ensued. 

_________________________________________________________________ 

2. From the record we are unable to determine the fate of Derek George, 

the second individual involved in this robbery. All we can gather is that 

George testified at Hodge's trial to their joint involvement in the 

robbery 

of the Emerald Lady (App. A71-A111), and that George was testifying 

pursuant to the terms of a February 24, 1997, agreement with the 

government -- the terms of which we are unaware. Id. at A79-A81. 

3. Although Hodge was a juvenile (17) at the time of his arrest, he was 

transferred to adult status on March 31, 1998. 

4. The court credited Hodge for the time he served since May 29, 1998. 

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II. 

In the first issue raised by this appeal, Hodge contends 

that because his indictment on Count III -- robbery in 

violation of 14 V.I.C. S 1862 -- failed to allege the material 

element of specific intent, his conviction should have been 

dismissed. Hodge cites to a prior decision of this Court in 

which, as a preliminary matter, we held that specific intent 

to permanently deprive the rightful owner of the property 

taken is an element of the Virgin Islands robbery statute. 

See Government of the Virgin Islands v. Carmona, 422 F.2d 

95, 98 (3d Cir. 1970). Although Carmona required only that 

this element of specific intent be included in the jury 

charge, Hodge argues that the failure to include this 

element in his indictment as well constitutes reversible 

error. 

The Sixth Amendment of the United States Constitution 

requires that in criminal prosecutions, "the accused shall 

enjoy the right to be informed of the nature and cause of 

the accusation." To meet this requirement, Federal Rule of 

Criminal Procedure 7(c)(1) requires that an indictment be a 

"plain, concise and definite written statement of the 

essential facts constituting the offense charged." We 

consider a two part test to measure the sufficiency of an 

indictment: "(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." Government of the Virgin Islands v. 

Moolenaar, 133 F.3d 246, 248 (3d Cir. 1998) (quoting 

Russell v. United States, 369 U.S. 749, 763-64 (1962)). "The 

sufficiency of an information, like the sufficiency of an 

indictment, presents a question of law over which our 

review is plenary." Government of the Virgin Islands v. 

Moolenaar, 133 F.3d 246, 247 (3d Cir. 1998). 

In evaluating whether Hodge's indictment sufficiently sets 

forth the essential facts of the offense charged, we review 

the indictment using a common sense construction. See id. 

at 250. Under Virgin Islands law, robbery is defined as: "the 

unlawful taking of personal property in the possession of 

another, from his person or immediate presence and 

 4 
against his will, by means of force or fear." 14 V.I.C. S 1861. 

In this case, the indictment was sufficient to apprise Hodge 

of the robbery charged and to enable him to avoid 

subsequent prosecution for the same offense, even though 

it did not explicitly recite the element of specific intent. The 

indictment stated that: 

 On or about the 15th day of November 1995, at St. 

 Thomas, in the District of the Virgin Islands, Irvine 

 Hodge, Jr. did unlawfully take personal property, that 

 is, jewelry, in the possession of the owners of the 

 Emerald Lady Jewelry Store, from their persons and 

 immediate presence and against their will, by means of 

 force and fear, and in the course of the commission of 

 such robbery and of immediate flight therefrom, did 

 display, use and threaten the use of a dangerous 

 weapon, that is, a handgun; 

 In violation of Title 14, Virgin Islands Code, Sections 

 1862(2) and 11. 

App. at A11. 

As the district court stated in its memorandum 

addressing Hodge's post-trial motion, "Hodge's indictment 

tracks the definition of first degree robbery employed by the 

Virgin Islands Code, which does not expressly include the 

element of specific intent." Id. at A39. Moreover, even 

though Carmona has held that specific intent is an element 

of the Virgin Islands robbery statute, this Court has stated 

that: "[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." Moolenaar, 133 F.3d at 249 

(approvingly quoting 24 Moore's Federal Practice 

S 607.04[2][b][ii] (3d ed. 1997)). We agree with the District 

Court that Hodge's indictment was sufficient to meet all of 

the requirements of Rule 7(c)(1) of the Federal Rules of 

Criminal Procedure, and hence we reject Hodge's argument 

that his indictment was flawed. 

The Carmona case, upon which Hodge erroneously relies 

to support his contention that his indictment failed to 

include the necessary element of intent, is inapposite. 

Carmona merely required that when a defendant is accused 

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of robbery under Virgin Islands law, the element of specific 

intent must be recited in the jury charge. See Carmona, 422 

F.2d at 99. As required under Carmona, the District Court 

properly included this element of specific intent in its 

charge to the jury. Jury charge 36 stated: "[t]he government 

must prove . . . that the defendant, Irvine Hodge, Jr., 

unlawfully took personal property with the specific intent to 

permanently deprive the owner of it." App. at A33 

(emphasis added). 

We will therefore affirm Hodge's conviction with respect to 

Count III. 

III. 

In the second issue raised by this appeal, Hodge 

contends that he cannot be convicted for aiding and

abetting a principal in the commission of a crime if the 

principal is either acquitted or not charged. Despite Hodge's 

argument, it is beyond dispute that a person charged with 

aiding and abetting a crime can be convicted regardless of 

the fate of the principal. See 18 U.S.C.S 2. The federal 

statute clearly states that: "[w]hoever commits an offense 

against the United States or aids, abets, counsels,

commands, induces or procures its commission, is 

punishable as a principal." 18 U.S.C. S 2. The Virgin 

Islands statute is in accord, stating that "[w]hoever commits 

a crime or offense or aids, abets, counsels, commands, 

induces or procures its commission, is punishable as a 

principal." 14 V.I.C. S 11. We have also held the same, 

stating that: "18 U.S.C. S 2, the majority of cases, and the 

Model Penal Code, all take the view that an aider and 

abettor should be treated like any other principal, and be 

required to `stand on his own two feet.' " See e.g., United 

States v. Standefer, 610 F.2d 1076, 1090 (3d Cir. 1979), 

aff 'd. 447 U.S. 10, 15-20 (1980) (so holding, even when the 

principal is charged and acquitted). Hence, we reject 

Hodge's argument to the contrary. 

IV. 

Finally, Hodge argues that convicting him on both 

Counts I and III violates the Double Jeopardy Clause of the 

 6 
United States Constitution. Hodge correctly notes that "the 

Virgin Islands and the federal government are considered 

one sovereignty for the purpose of determining whether an 

individual may be punished under both Virgin Islands and 

United States statutes for a similar offense growing out of 

the same occurrence." Government of the Virgin Islands v. 

Brathwaite, 782 F.2d 399, 406 (3d Cir. 1986). See also 

Government of the Virgin Islands v. Dowling, 633 F.2d 660, 

669 (3d Cir. 1980); Government of the Virgin Islands v. 

Foster, 734 F. Supp. 210, 212 (D.Ct. V.I. 1990) (holding 

that when a defendant is charged with a violation of federal 

law and the "second criminal code is that of a Territory, 

instead of a State, the Double Jeopardy Clause is violated 

by the imposition of more than one sentence for the`same 

offense.' " (citations omitted)). 

If the two offenses grow out of the same occurrence then 

"multiple punishments are impermissible." Brathwaite, 782 

F.2d 406. To determine whether the offenses grow out of 

the same occurrence, we apply the test set forth in

Blockburger v. United States, 284 U.S. 299 (1932). See, e.g., 

Brathwaite, 782 F.2d at 406-07; United States v. Blyden, 

930 F.2d 323, 328 (3d Cir. 1991). The Blockburger test 

considers whether the provisions of each statute require 

proof of a fact that the other does not. See Blockburger, 284 

U.S. at 304 ("A single act may be an offense against two 

statutes; and if each statute requires proof of an additional 

fact which the other does not, an acquittal or conviction 

under either statute does not exempt the defendant from 

prosecution and punishment under the other." (citation 

omitted)). 

In this case 18 U.S.C. S 1951 (Count I) states that: 

 [w]hoever in any way or degree obstructs, delays, or 

 affects commerce or the movement of any article or 

 commodity in commerce, by robbery or extortion or 

 attempts or conspires so to do, or commits or threatens 

 physical violence to any person or property in 

 furtherance of a plan or purpose to do anything in 

 violation of this section [shall be liable].

Among its various elements, this federal charge requires 

that Hodge's offense "affect commerce" as an element of the 

 7 
crime. By contrast, the Virgin Islands crime of robbery, 14 

V.I.C. S 1862 (Count III), states that: "[a] person is guilty of 

robbery in the first degree when, in the course of the 

commission of the crime or the immediate flight therefrom, 

he or another perpetrator of the crime . . . (2) displays, uses 

or threatens the use of a dangerous weapon." This latter 

charge under the laws of the Virgin Islands requires, as an 

element of the crime, proof that Hodge displayed, used or 

threatened to use a dangerous weapon, and does not 

implicate an "affect [on] commerce" as does the federal 

offense. 

Thus, Count I and Count III do not "grow out of the same 

occurrence" as each requires proof of an additional element 

not required by the other. Therefore, under the Blockburger 

test, the court could properly convict and sentence Hodge 

under both United States and Virgin Islands law without 

violating the Double Jeopardy Clause. We will, therefore, 

affirm Hodge's conviction and sentence on both Counts I 

and III. 

V. 

For the foregoing reasons, we will affirm Hodge's 

conviction and sentence on Counts I, II and III of the 

indictment.5 

_________________________________________________________________ 

5. Subsequent to oral argument, the government of the Virgin Islands, 

which is not a party to this case, filed an Attorney General's amicus 

brief 

urging us to overrule Government of the Virgin Islands v. Carmona, 422 

F.2d 95 (3d Cir. 1970) in that it wrongly held that the Virgin Islands 

robbery statute includes the element of specific intent. The Attorney 

General argued that the legislative history surrounding the 1957 

statutory amendment to the Virgin Islands robbery statute indicates that 

the legislature intended to eliminate the element of specific intent from 

the statute. Although we may be persuaded by the Attorney General's 

excellent amicus brief, we acknowledge that we are powerless to redress 

this concern. Rule 9.1 of our Internal Operating Procedures does not 

permit one panel of this court to overrule a holding of a prior published 

opinion. Carmona may only be overruled by an en banc decision of this 

entire court or by a decision of the Supreme Court. Of course, the Virgin 

Islands legislature remains free to remove any confusion stemming from 

the interpretation of its robbery statute by enacting appropriate 

legislation to redress the problem. 

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A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 9