                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             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Precedential or Non-Precedential: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.
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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.

                                3
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

                               5
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.

                               8
A True Copy:
Teste:

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

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