Government of Virgin Islands v. Rodriguez

• Citation: 423 F.2d 9
• Decision Date: 12 March 1970
• Docket Number: No. 18091-6.,18091-6.
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. Aleida RODRIGUEZ, Appellant. GOVERNMENT OF the VIRGIN ISLANDS v. Jose Manuel NIEVES, Appellant. GOVERNMENT OF the VIRGIN ISLANDS v. Ernestina CORDERO, Appellant. GOVERNMENT OF the VIRGIN ISLANDS v. Adela GARCIA, Appellant. GOVERNMENT OF the VIRGIN ISLANDS v. Gladys RAMOS, Appellant. GOVERNMENT OF the VIRGIN ISLANDS v. Becky SALVAGE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

423 F.2d 9 (1970)

GOVERNMENT OF the VIRGIN ISLANDS v. Aleida RODRIGUEZ, Appellant.

GOVERNMENT OF the VIRGIN ISLANDS v. Jose Manuel NIEVES, Appellant.

GOVERNMENT OF the VIRGIN ISLANDS v. Ernestina CORDERO, Appellant.

GOVERNMENT OF the VIRGIN ISLANDS v. Adela GARCIA, Appellant.

GOVERNMENT OF the VIRGIN ISLANDS v. Gladys RAMOS, Appellant.

GOVERNMENT OF the VIRGIN ISLANDS v. Becky SALVAGE, Appellant.

Nos. 18091-6.

United States Court of Appeals, Third Circuit.

Argued September 19, 1969.

Decided March 12, 1970.

Ronald H. Tonkin, Christiansted, St. Croix, V. I., for appellants.

William H. Brown, Asst. U. S. Atty., Christiansted, St. Croix, V. I., for appellee.

Before BIGGS, KALODNER and FREEDMAN, Circuit Judges.

OPINION OF THE COURT

FREEDMAN, Circuit Judge.

After a joint trial of these six defendants in the Municipal Court of the Virgin Islands, Jose Manuel Nieves was convicted and sentenced to imprisonment for 90 days for permitting a building in his control to be used for the purpose of prostitution;¹ Gladys Ramos was convicted and sentenced to imprisonment for 30 days for soliciting for the purpose of prostitution;² and the other four defendants, Aleida Rodriguez, Ernestina Cordero, Adela Garcia and Becky Salvage, were each convicted and sentenced to imprisonment for 30 days under the vagrancy statute for residing and loitering in a house of ill fame.³ They appealed to the District Court of the Virgin Islands, and from its judgments affirming their convictions (Government of Virgin Islands v. Rodriguez, V.I., 300 F.Supp. 860 (D.V.I.1969)), they have taken these appeals, which we consolidated for argument.

I.

Defendants contend that we should modify the sentences imposed on them because they are excessive. For our power to do so, they rely on Government of the Virgin Islands v. Turner, 409 F.2d 102, 6 V.I. 659 (3 Cir. 1968). Turner was an exceptional case and Judge Aldrich's opinion, to which defendants refer, was withdrawn when the case was reheard en banc. In that opinion, moreover, it is acknowledged that "we have no power to review sentences." (409 F.2d at 104, 6 V.I. at 664). The sentences here imposed were within the limits authorized by the relevant statutes; and aside from characterizing them as excessive, defendants have presented no reason which would justify a conclusion that the sentences were anything other than the result of a proper exercise of judicial judgment. There is, therefore, no justification for any modification of the sentences, even if it be assumed that we have power to intervene.

II.

Aside from the claim that the sentences were excessive, defendants mostly have repeated the arguments which the district court fully reviewed and disposed of in an opinion to which we cannot profitably add. There is, however, one important question which must be considered relating to the conviction of four of the defendants, Rodriguez, Cordero, Garcia and Salvage, for residing and loitering in a house of ill fame.

The information against these defendants charged them with residing and loitering in a house of ill fame "willfully and unlawfully," although the statute does not contain these words and makes no other express provision regarding knowledge. The question, therefore, is whether knowledge by the four defendants of the nature of the place as a house of ill fame is an essential element and was required to be proven. This is a question of first impression under the Virgin Islands statute and since it is fundamental to the conviction of the four defendants, we must consider it in detail.

The problem which is raised goes to fundamental conceptions of criminal responsibility and reaches back to the origins of our criminal law. It early became established at common law that an essential ingredient of a crime was the existence of a guilty mind, a mens rea, as well as the act itself, actus rea.⁴ Later, as the states codified the common law of crimes, the courts usually took the view that it would be presumed that intent or knowledge was an implied element of the statutory crime unless the legislature expressly indicated otherwise.⁵ In the rhetorical language of Bishop, the great nineteenth century textwriter, speaking of the requirement of an evil intent as an inseparable element of every crime:

"A statute is simply a fresh particle of legal matter dropped into the previously-existing ocean of law. It is subject to all the old attractions, and the old winds and lunar influences, precisely as were the several particles of the ocean before. Or, to speak without a metaphor, the new statutory rule is to be limited extended, and governed by the same common-law principles, and to the same extent, as were the common-law rules themselves before the statute was passed."⁶

But even as the view requiring the existence of an evil intent or a mens rea hardened into accepted doctrine, a fresh factor introduced a new uncertainty. The government's increasing presence in a domain formerly considered private created a pressure for enforcement of administrative regulations by the use of criminal sanctions regardless whether there was evidence that the offender, often a corporation, acted with guilty knowledge.⁷ Enforcement in these circumstances was justified by the application of the doctrine of strict liability in what have been called "public welfare offenses."⁸ This doctrine found intellectual justification in the well-known objective liability views of Holmes,⁹ which ran against the prevailing tendency and asserted that the courts were not justified in implying scienter into a silent statute. Holmes, J., judicially expressed this view in Commonwealth v. Smith, 166 Mass. 370, 44 N.E. 503 (1896), where a defendant's conviction on a charge of being in a place unlawfully used as a common gaming house was sustained:

"It is unnecessary, under the statute, to allege the defendant\'s knowledge of the presence of the implements, or the character of the place. The statute means that people enter such places at their peril. It goes no further than other statutes which have been enforced by this court. When, according to common experience, a certain fact generally is accompanied by knowledge of the further elements necessary to complete what is the final object of the law to prevent, or even short of that, when it is very desirable that people should find out whether the further elements are there, actual knowledge being a matter difficult to prove, the law may stop at the preliminary fact, and, in the pursuit of its policy, may make the preliminary fact enough to constitute a crime.

* * * * * *

"In like manner as in criminal liability for the sale of intoxicating liquors regardless of knowledge whether the liquor is intoxicating, and the offense of adultery even in innocence that the other party is married, the law may say that people are not likely to resort to a common gaming house without knowing it, and that they must take the risk of knowing the character of the place to which they resort, if the implements of gaming are actually present." (166 Mass. at 375-376, 44 N.E. at 504).¹⁰

Holmes has been severely criticized for his seeming indifference to the moral aspect of conduct.¹¹ And while Holmes' view has found its application in the ordinary "public welfare offenses"¹² even this limited acceptance of the doctrine of strict criminal liability has not been without criticism.¹³ In the landmark case of Morissette v. United States, 342 U.S. 246, 72 S.Ct. 241 (1952), the Supreme Court refused to take the leap of applying to traditional crimes such as theft the rule of strict liability in social welfare offenses. Mr. Justice Jackson said:

"The Government asks us by a feat of construction radically to change the weights and balances in the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution\'s path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries. Such a manifest impairment of the immunities of the individual should not be extended to common-law crimes on judicial initiative." (p. 263, 72 S.Ct. at 249)

The modern rule, therefore, may be summarized as stated in Delaney v. United States, 199 F.2d 107, 117 (1 Cir. 1952): The "trend in the interpretation of federal criminal statutes has been to discover by implication a requirement of scienter, where there is no reason to suppose that the Congress, by deliberate choice, omitted such a requirement."¹⁴

Guided by this principle, we turn to the Virgin Islands Code to determine whether it indicates a deliberate legislative choice that knowledge is not an essential element of the crime denounced by § 2221(8) of Title 14.

The legislative history of § 2221 is sparse. It shows only that subsection (8), along with three other subsections, came into the present Virgin Islands Code in 1957, derived from the Penal Code of California.¹⁵ Subsection (8) is one of 19 categories of miscellaneous acts of vagrancy which deal with conduct in which intention or knowledge is for the most part inherent. While this was not the case with subsection (8) taken on its face, there is no indication that the legislature intended to dispense with the usual requirement of knowledge.¹⁶

Moreover, we find a significant indication of legislative intent in favor of knowledge expressed elsewhere in the Virgin Islands Code. 14 V.I.Code § 14 provides:

"All persons are capable of committing crimes or offenses except —

* * * * * *

"(5) Persons who committed the act * * * under an ignorance or mistake of fact, which disproves any criminal intent."

While § 14 deals with capacity to commit crimes and is concerned with general defenses to a criminal charge, nevertheless it places on the prosecution when such a defense is raised the burden of proving the element of knowledge beyond a reasonable doubt.¹⁷

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