USA. v. Hodge

• Decision Date: 09 December 1999
• Docket Number: No. 99-3247,99-3247
• Citation: 211 F.3d 74
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, v. IRVINE HODGE, JR., Appellant Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 74

211 F.3d 74 (3rd Cir. 2000)

UNITED STATES OF AMERICA, v. IRVINE HODGE, JR., Appellant

No. 99-3247

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: December 9, 1999

Filed April 25, 2000

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

Leonard Bernard Francis, Jr. (Argued) #4A Dronningens Gade P.O. Box 8838 Charlotte Amalie, St. Thomas U.S. Virgin Islands 00801, 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, for Appellee.

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

OPINION FOR 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

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.

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 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 there from, 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 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,...