### 2000 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-25-2000 

# U nit ed S t a t es v

. H o d ge

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 99-3247

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2000

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2000 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" U nit e d S t a t e s v

. H od g e " (2000). 2000 D e cisio n s

. P a pe r 84.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2000/84Filed 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 Isl ands (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 AppellantJames 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 g uilty of violating federal law for "affect[ing] commerce" by robbery and for possession of a firearm during the commissi on of a

crime of violence, as well as finding him guilty fo r 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 i n Hodge's robbery indictment was not reversible error; that H odge was

properly convicted of aiding and abetting even thou gh the principal offender was never charged; and that alth ough the United States and the Virgin Islands are considered one sovereign for purposes of convictions and sentencin g, because the charged federal and Virgin Islands offe nses require proofs of elements independent of each othe r. 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 jurisdicti on pursuant to 48 U.S.C. S 1612 and 4 V.I.C. S 32; we exercise appell ate jurisdiction pursuant to 28 U.S.C. S 1291 as an appeal from a fi nal order.

2I.

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, v alued at approximately $500,000, from a safe. Hodge was arre sted for the robbery in March of 1996.3 A federal grand jury indicted Hodge on a three count indictment for inte rference 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 vi olation 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 ind ictment. 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 moti on to seek arrest of the judgment pursuant to Federal Rul e of
Criminal Procedure 34. With an offense level of twe nty-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 consecu tive term of sixty months imprisonment on Count II; and thirteen years imprisonment on Count III to be serv ed concurrently with the sentences imposed in Counts I and II.4 The District Court also imposed three years of supe rvised release, assessed Hodge $100, and ordered him to pa y $20,000 in restitution. This appeal ensued.

___________________________________________________ ______________

2. From the record we are unable to determine the f ate 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 in volvement in the robbery of the Emerald Lady (App. A71-A111), and that Georg e was testifying pursuant to the terms of a February 24, 1997, agree ment with the government -- the terms of which we are unaware. Id . at A79-A81.

3. Although Hodge was a juvenile (17) at the time o f 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.

3II.

In the first issue raised by this appeal, Hodge con tends that because his indictment on Count III -- robbery in violation of 14 V.I.C. S 1862 -- failed to allege t he material element of specific intent, his conviction should h ave been dismissed. Hodge cites to a prior decision of this Court in which, as a preliminary matter, we held that specif ic intent to permanently deprive the rightful owner of the pr operty taken is an element of the Virgin Islands robbery s tatute. See Government of the Virgin Islands v. Carmona, 42 2 F.2d 95, 98 (3d Cir. 1970). Although Carmona required on ly that this element of specific intent be included in the jury charge, Hodge argues that the failure to include th is
element in his indictment as well constitutes rever sible

error.

The Sixth Amendment of the United States Constituti on requires that in criminal prosecutions, "the accuse d shall enjoy the right to be informed of the nature and ca use of the accusation." To meet this requirement, Federal Rule of Criminal Procedure 7(c)(1) requires that an indictm ent be a "plain, concise and definite written statement of t he essential facts constituting the offense charged." We consider a two part test to measure the sufficiency of an indictment: "(1) whether the indictment `contains t he 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 prosecu tions for the same offense." Government of the Virgin Islands v. Moolenaar, 133 F.3d 246, 248 (3d Cir. 1998) (quotin g Russell v. United States, 369 U.S. 749, 763-64 (196 2)). "The sufficiency of an information, like the sufficiency of an indictment, presents a question of law over which o ur review is plenary." Government of the Virgin Island s v. Moolenaar, 133 F.3d 246, 247 (3d Cir. 1998).

In evaluating whether Hodge's indictment sufficient ly sets forth the essential facts of the offense charged, w e review the indictment using a common sense construction. S ee id. at 250. Under Virgin Islands law, robbery is define d as: "the unlawful taking of personal property in the possess ion of another, from his person or immediate presence and

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

In this case, the indictment was sufficient to appr ise Hodge of the robbery charged and to enable him to avoid subsequent prosecution for the same offense, even t hough it did not explicitly recite the element of specifi c intent. The
indictment stated that:

On or about the 15th day of November 1995, a t St. Thomas, in the District of the Virgin Island s, Irvine Hodge, Jr. did unlawfully take personal prop erty, that is, jewelry, in the possession of the owners of the Emerald Lady Jewelry Store, from their perso ns and immediate presence and against their will, b y means of force and fear, and in the course of the com mission of such robbery and of immediate flight therefr om, did display, use and threaten the use of a dange rous weapon, that is, a handgun;

In violation of Title 14, Virgin Islands Co de, Sections 1862(2) and 11.

App. at A11.

As the district court stated in its memorandum addressing Hodge's post-trial motion, "Hodge's indi ctment tracks the definition of first degree robbery emplo yed by the Virgin Islands Code, which does not expressly inclu de 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 h as stated that: "[f]ailure to allege the statutory elements w ill 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 th e District Court that Hodge's indictment was sufficient to mee t all of the requirements of Rule 7(c)(1) of the Federal Rul es of Criminal Procedure, and hence we reject Hodge's arg ument
that his indictment was flawed.

The Carmona case, upon which Hodge erroneously reli es to support his contention that his indictment faile d to include the necessary element of intent, is inappos ite. Carmona merely required that when a defendant is ac cused

5of robbery under Virgin Islands law, the element of specific

intent must be recited in the jury charge. See Carm ona, 422 F.2d at 99. As required under Carmona, the District Court properly included this element of specific intent i n its charge to the jury. Jury charge 36 stated: "[t]he g overnment 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 re spect 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 i f the principal is either acquitted or not charged. Despi te Hodge's argument, it is beyond dispute that a person charge d with aiding and abetting a crime can be convicted regard less of the fate of the principal. See 18 U.S.C.S 2. The fe deral 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 Virg in Islands statute is in accord, stating that "[w]hoev er commits a crime or offense or aids, abets, counsels, comman ds, induces or procures its commission, is punishable a s a principal." 14 V.I.C. S 11. We have also held the s ame, stating that: "18 U.S.C. S 2, the majority of cases , and the Model Penal Code, all take the view that an aider a nd 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. 1 979), aff 'd. 447 U.S. 10, 15-20 (1980) (so holding, even when the principal is charged and acquitted). Hence, we reje ct Hodge's argument to the contrary.

IV.

Finally, Hodge argues that convicting him on both Counts I and III violates the Double Jeopardy Claus e of the

6United States Constitution. Hodge correctly notes t hat "the

Virgin Islands and the federal government are consi dered one sovereignty for the purpose of determining whet her an individual may be punished under both Virgin Island s and United States statutes for a similar offense growin g out of the same occurrence." Government of the Virgin Isla nds v. Brathwaite, 782 F.2d 399, 406 (3d Cir. 1986). See a lso Government of the Virgin Islands v. Dowling, 633 F. 2d 660, 669 (3d Cir. 1980); Government of the Virgin Island s v. Foster, 734 F. Supp. 210, 212 (D.Ct. V.I. 1990) (ho lding that when a defendant is charged with a violation o f federal
law and the "second criminal code is that of a Terr itory, instead of a State, the Double Jeopardy Clause is v iolated 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." Brathwait e, 782 F.2d 406. To determine whether the offenses grow ou t 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. Bl yden, 930 F.2d 323, 328 (3d Cir. 1991). The Blockburger t est considers whether the provisions of each statute re quire proof of a fact that the other does not. See Blockb urger, 284 U.S. at 304 ("A single act may be an offense agains t two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conv iction under either statute does not exempt the defendant from prosecution and punishment under the other." (citat ion omitted)).

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

[w]hoever in any way or degree obstructs, de lays, or affects commerce or the movement of any arti cle or commodity in commerce, by robbery or extorti on or attempts or conspires so to do, or commits o r threatens physical violence to any person or property in furtherance of a plan or purpose to do anyth ing in violation of this section [shall be liable].

Among its various elements, this federal charge req uires that Hodge's offense "affect commerce" as an elemen t of the

7crime. By contrast, the Virgin Islands crime of rob bery, 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 the refrom, he or another perpetrator of the crime . . . (2) di splays, uses or threatens the use of a dangerous weapon." This l atter charge under the laws of the Virgin Islands require s, as an element of the crime, proof that Hodge displayed, u sed or threatened to use a dangerous weapon, and does not implicate an "affect [on] commerce" as does the fed eral

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 Blo ckburger test, the court could properly convict and sentence Hodge under both United States and Virgin Islands law wit hout violating the Double Jeopardy Clause. We will, ther efore, affirm Hodge's conviction and sentence on both Coun ts 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 t he Virgin Islands, which is not a party to this case, filed an Attorne y General's amicus
brief urging us to overrule Government of the Virgin Isla nds 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 in tent. The Attorney General argued that the legislative history surroun ding the 1957 statutory amendment to the Virgin Islands robbery s tatute indicates that the legislature intended to eliminate the element o f specific intent from the statute. Although we may be persuaded by the At torney General's excellent amicus brief, we acknowledge that we are powerless to redress this concern. Rule 9.1 of our Internal Operating Pr ocedures does not permit one panel of this court to overrule a holdin g of a prior published opinion. Carmona may only be overruled by an en ban c decision of this entire court or by a decision of the Supreme Court. Of course, the Virgin Islands legislature remains free to remove any conf usion stemming from the interpretation of its robbery statute by enacti ng appropriate legislation to redress the problem.

8A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

9