                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-8-1998

Virgin Islands v. Moolenaar
Precedential or Non-Precedential:

Docket 96-7766




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Recommended Citation
"Virgin Islands v. Moolenaar" (1998). 1998 Decisions. Paper 3.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/3


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Filed January 8, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7766

GOVERNMENT OF THE VIRGIN ISLANDS,
       Appellant

v.

ROY MOOLENAAR

On Appeal from the District Court of the Virgin Islands
(D.C. No. 95-cr-00112)

Argued December 8, 1997

Before: SLOVITER, Chief Judge,
STAPLETON and MANSMANN, Circuit Judges

(Filed January 8, 1998)

       Carol S. Moore (Argued)
       Maureen P. Cormier
       Office of Attorney General
        of Virgin Islands
       Department of Justice
       Charlotte Amalie, St. Thomas 00802

        Attorneys for Appellant

       Alan D. Smith (Argued)
       Hodge & Francois
       Charlotte Amalie, St. Thomas 00802

        Attorney for Appellee
OPINION OF THE COURT

SLOVITER, Chief Judge.

The Government of the Virgin Islands appeals from the
decision of the District Court of the Virgin Islands Appellate
Division holding that the Information charging Roy
Moolenaar with Burglary in the Second Degree was
insufficient and reversing Moolenaar's conviction.

I.

On March 1, 1994, Moolenaar was charged in a one-
count Information with Burglary in the Second Degree, in
violation of 14 V.I.C. S 443.

The Information provided:

        On or about February 18, 1994, in St. Thomas, U.S.
       Virgin Islands, Roy Moolenaar, no known address, St.
       Thomas, Virgin Islands, did with the intent to commit
       the crime of theft therein, break and enter a dwelling
       house, to wit Ross-Taaneberg #27, in which there was
       present a human being, to wit Altagracia Hoheb, in
       violation of 14 V.I.C. 443.

App. at 3 (emphasis added).

At trial the government presented evidence that on
February 18, 1994, police received a report of breaking and
entering at No. 27 Ross-Taaneberg, which was occupied at
the time of the incident by Altagracia Hoheb, her three
daughters and two grandchildren. Tr. Vol. I at 121, 127.
According to police, an intruder entered through a window,
removed his shoes, opened both the front and back doors
to the house, took house keys from the dead bolt lock, and
rummaged through the house. Tr. Vol. I at 114-115, 209,
Tr. Vol. II at 45. Hoheb was awakened by her daughter, and
instructed her to call the police. Tr. Vol. I at 102-103. One
of Hoheb's daughters saw the intruder by her bedroom and
screamed, and the intruder ran out of the house. Tr. Vol. I
at 91. The police arrived at the residence and saw someone
coming out the front door and after a chase they

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apprehended Moolenaar. Tr. Vol. I at 130-131. During a
subsequent search, Hoheb's keys were found in
Moolenaar's jacket pocket. Tr. Vol. I at 136.

Moolenaar did not testify at his trial, but he called as his
only witness Jhon [sic] Parsons, who testified that he was
with Moolenaar on the night in question and that they were
both approached by a car, that an occupant of the car fired
shots and that he and Moolenaar both fled in different
directions. Tr. Vol. II at 97-100. Moolenaar's attorney later
attempted to use this testimony to argue that Moolenaar
had entered the house to seek refuge from his assailants,
and not with the intent to commit a crime, which is a
requisite to Burglary in the Second Degree. Tr. Vol. II at
116.

At the close of the government's case, Moolenaar made a
motion under Rule 29 for a Judgment of Acquittal on the
basis of insufficient evidence. At oral argument on that
motion, he also contended that the Information was
insufficient because it stated that the intent of the breaking
and entering was to commit theft, whereas theft is not a
specified crime in the Virgin Islands. The Territorial Court
denied the motion, rejecting the challenge to the sufficiency
of the Information on the ground that larceny, which is a
crime in the Virgin Islands, is "almost synonymous" with
theft, app. at 36, and that Moolenaar had been given ample
notice.

Moolenaar was convicted after a two-day jury trial, and
was sentenced to 15 years incarceration and assessed $25
as court costs. On appeal, the District Court of the Virgin
Islands Appellate Division held that the Information was
insufficient, reversed Moolenaar's conviction and remanded
the case to the Territorial Court.

II.

The sufficiency of an information, like the sufficiency of
an indictment, presents a question of law over which our
review is plenary. See United States v. Henry, 29 F.3d 112,
113 (3d Cir. 1994).

                               3
Federal Rule of Criminal Procedure 7(c), governing the
nature and contents of indictments and informations,
provides:

        (1) In General. The indictment or the information
       shall be a plain, concise and definite written statement
       of the essential facts constituting the offense charged
       . . . . The indictment or information shall state for each
       count the official or customary citation of the statute,
       rule, regulation or other provision of law which the
       defendant is alleged therein to have violated.

       * * *

        (3) Harmless Error. Error in the citation or its
       omission shall not be ground for dismissal of the
       indictment or information or for reversal of a conviction
       if the error or omission did not mislead the defendant
       to the defendant's prejudice.

Fed. R. Crim. P. 7(c).

In Russell v. United States, 369 U.S. 749 (1962), the
Supreme Court considered the sufficiency of an indictment
of a defendant charged with refusing to answer a question
in testifying before a congressional committee. The Court
referred to a two-part test established in prior cases for
measuring the sufficiency of an indictment, to wit 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. Id. at 763-
64 (citations omitted). We have applied the Russell test
interchangeably to challenges to the sufficiency of an
indictment and an information. See Government of the
Virgin Islands v. Pemberton, 813 F.2d 626, 631 (3d Cir.
1987).

The Virgin Islands statute on Burglary in the Second
Degree provides:

        Whoever, with intent to commit some offense therein
       breaks and enters the dwelling house, building, or
       structure of another in which there is a human being,
       under circumstances not amounting to burglary in the

                               4
       first degree, is guilty of burglary in the second degree.
       . . .

14 V.I.C. S 443 (emphasis added).

Thus, the crime of Burglary in the Second Degree
requires that the breaking and entering be with the intent
to commit "some offense." An "offense" is defined in the
Virgin Islands Code as an act committed in violation of a
law of the Virgin Islands and punishable by, inter alia, a
fine or imprisonment. 14 V.I.C. S 1.

The Information charging Moolenaar describes the offense
Moolenaar intended to commit when breaking and entering
as "theft." However, there is no crime denominated "theft"
in the Virgin Islands Code. Instead, the unlawful taking of
property of another in the Virgin Islands is characterized as
"larceny," defined as "the unlawful taking, stealing,
carrying, leading, or driving away the personal property of
another." 14 V.I.C. S 1081(a). We must thus determine
whether the use of the word "theft" instead of "larceny" in
the Information rendered the Information insufficient.

In applying the Russell test, the Territorial Court held
that the totality of the Information gave Moolenaar
sufficient notice of what he was charged with and what he
had to defend. App. at 39. The court noted that Black's Law
Dictionary states that theft is the "popular name" for
larceny and that a dictionary that lay persons would use
makes a similar connection. The court concluded that the
common understanding of "theft" is almost synonymous
with "larceny." App. at 36.

In contrast, the Appellate Division held that the
Information did not state the crime of burglary "because it
does not recite an essential element of that crime, namely,
the offense [the defendant] intended to commit once he got
inside." App. at 12. The court reasoned that a charge which
fails to state a crime is insufficient to apprise a defendant
of what he must be prepared to meet. App. at 12. The
Appellate Division stated that "[w]hether the word `theft'
might have alerted Moolenaar of the gist of what he was
facing is irrelevant because the single count information did
not charge a crime." App. at 13. It stated that "theft" may
be included in the concept of larceny, id., but also

                                5
suggested that "theft" is a more expansive term than
"larceny." App. at 13 n.8.

In addition, the Appellate Division concluded that the
Information failed Russell's second requirement because,
although the charge clearly delineated the time and place of
the burglary, it failed to tell "what crime he is alleged to
have intended to commit once he got inside" and would not
protect Moolenaar from again being put in jeopardy. App. at
13.

On appeal, the government contends that the Appellate
Division erred as a matter of law, and argues that the fact
that the Information used a common law term to describe
an element of burglary instead of using the statutory
language did not render the Information insufficient. We
agree.

We know of no authority, and Moolenaar cites none, that
supports the Appellate Division's holding that a charge of
burglary will be insufficient unless the crime that was
intended is framed in the exact statutory language. As set
forth by one of the leading commentators, "[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." 24
Moore's Federal Practice, S 607.04[2][b][ii] (3d ed. 1997).

This is particularly true in the context of burglary when
the issue centers on the language used to describe the
offense intended in breaking and entering. Thus, for
example, in United States v. Dyba, 554 F.2d 417, 419 (10th
Cir.), cert. denied, 434 U.S. 830 (1977), the indictment
charged the defendant with "burglary of monies" as the
underlying offense for a statute that criminalized entry into
a bank with the intent to commit "any felony." The court
held that although the correct term would have been
"larceny of monies," the use of the term "burglary of
monies" was sufficient because the term `burglary'
"imported an unlawful entry with intent to steal," and
"provided the accused with adequate notice of the offense
charged." Id.

Similarly, in Johnson v. Turner, 429 F.2d 1152, 1154-55
(10th Cir. 1970), a defendant who was convicted of grand

                               6
larceny contended in a petition for habeas corpus that the
information was constitutionally defective because it
charged merely that defendant "stole" a guitar and failed to
identify the specific criminal statute alleged to have been
violated. The court denied the petition, holding that the
charge fully apprised the defendant of the nature of the
charge and of the facts alleged by the prosecution. Id. at
1155.

The authorities on which Moolenaar relies to contend
that the Information did not give him sufficient notice are
not apposite. In Pemberton, 813 F.2d at 630, the
information charging Burglary in the Third Degree alleged
merely breaking and entering a building with "intent to
commit an offense therein." We held the information was
inadequate because it did not contain an essential element
of the offense and insufficiently apprised the defendant of
what he must be prepared to meet. Id. at 632. To the same
effect, in United States v. Thomas, 444 F.2d 919 (D.C. Cir.
1971), the court held insufficient an indictment charging
defendant with burglary that merely alleged that he entered
a dwelling "with intent to commit a criminal offense
therein." Id. at 920. The court held that this language was
"impermissibly broad and categorical." Id. at 922.

Similarly, in United States v. Deutsch, 243 F.2d 435, 436
(3d Cir. 1957), the indictment purported to charge a
conspiracy to violate bankruptcy laws but merely stated in
the relevant portion that the defendants "conspired to
commit offenses against the United States." We held that
the charge of conspiracy is "in itself a wholly inadequate
generality." Id.

The Information charging Moolenaar did more than use
the generic term "offense," and instead specifically
described the intent of the breaking and entering as to
commit "theft." In the context of this case and this
Information, we reject the narrow and constricted
interpretation of the Appellate Division that because "theft"
is not itself an "offense," no crime of burglary was charged.
As the Territorial Court noted, the dictionary meanings of
larceny and theft are very similar.

"Theft" is neither a word in a foreign language nor a word
that is unknown to the Virgin Islands legislature. The

                                7
Virgin Islands Code includes several other criminal statutes
that refer to "theft" in a context that suggests that the term
is being used to describe the unlawful taking of property.
See, e.g., 14 V.I.C. S 3003 ("theft" by obtaining a credit card
through fraudulent means); 14 V.I.C. S 1385 (crime to make
a false report of "theft or conversion" of a vehicle); 14 V.I.C.
S 1749 (regarding "[u]nauthorized presence on school
premises" and providing for consecutive sentences"for
conviction on any other count for the same incident of
unauthorized presence, such as vandalism, theft or
assault"). As the government argues, these references
signify that the legislature assumes that the word is so
commonplace that its meaning is obvious.

In the context of an Information alleging breaking and
entering of a dwelling, we can think of no reasonable
interpretation of the phrase "crime of theft" other than
larceny. Moolenaar has suggested none. While he argues
that a "crime of theft" may encompass embezzlement and
fraud, as well as larceny, when the phrase "crime of theft"
is used in conjunction with a charge of breaking and
entering, it is apparent that it is used to signify larceny.
Fraud and embezzlement necessarily involve securing
possession of another's property by deception, not by
breaking and entering his dwelling. The spirit of Fed. R.
Crim. P. 7 requires that we read the Information as a whole
and interpret it in a common sense manner. See 24 Moore's
Federal Practice, S 607.04[2][b][ii].

We thus conclude that despite the Information's use of
the word "theft" instead of the statutory term "larceny,"
Moolenaar was provided with sufficient notice to satisfy the
first requirement of Russell.

With respect to the second element of the Russell inquiry,
we see no reason why Moolenaar would be at risk of double
jeopardy based on this Information. Moolenaar merely
argues that because the Information "fails to charge a
crime" there is no way to determine what underlying offense
the government sought to prove at trial and thus he would
not be protected if he were to be tried again for a crime
taking place at the same time and location as the one in
the present Information. Appellee's Br. at 10-11.

                               8
However, in Russell, in holding that the indictment was
sufficient to prevent future prosecution, the Court relied on
the fact that the indictment contained a description of the
acts alleged and specifics such as the time and location of
the events in question. Russell, 369 U.S. at 764. Here, too,
the Information described the conduct and provided the
date and location of the charged offense. Moreover, should
any issue arise in the future, Moolenaar can use the entire
record of the prosecution to prevent twice being tried for
the same crime. Id. We see no realistic danger to Moolenaar
of being placed again in jeopardy for the same crime.

Finally, it is significant that Moolenaar does not contend
that he was misled or surprised by the Information's use of
the term "theft" instead of "larceny." Instead, he merely
argues that prejudice to the accused is inherent whenever
one is convicted on an information which fails to state a
crime.

Our decision in United States v. Hall, 979 F.2d 320 (3d
Cir. 1992), provides some guidance. In that case, the
indictment charged the defendant with "driv[ing] a motor
vehicle upon a highway within [Gettysburg National
Military] Park while under the influence of intoxicating
liquor" in violation of a Pennsylvania statute through the
application of the Assimilative Crimes Act (ACA). Id. at 322.
We held that the trial court's jurisdiction should have been
based on an applicable federal regulation, rather than the
ACA, but concluded that "[t]he citation of the wrong statute
in an indictment is not grounds for reversal of a conviction
unless the defendant was misled to his or her prejudice.
. . . There is no prejudice from the citation to an
inapplicable statute when the elements of the two crimes
are the same and the defendant was adequately apprised of
the charges." Id. at 323.

Moolenaar does not allege any specific prejudice.
Moreover, there is ample basis to conclude that Moolenaar
was not prejudiced in any way by the technical irregularity
in the Information as both the prosecution and the defense
focused on whether Moolenaar had the intent to steal. At
trial, the prosecution emphasized the taking of the keys
from Hoheb's house and the defense sought to prove that
Moolenaar entered the house to seek refuge rather than to

                               9
steal. For example, during closing argument, Moolenaar's
counsel focused on the fact that there was no "intent to
steal a set of keys." Tr. Vol. II at 113. Further, at several
times during cross examination of government witnesses,
Moolenaar's counsel inquired into the chain of custody of
the keys police found on Moolenaar and their identity. Tr.
Vol. I at 166-69, 188. These questions and the strategy of
the defense demonstrate that the defense focused on
larceny and refute any potential claim of surprise or
prejudice.

III.

We therefore conclude that the Appellate Division erred in
reversing Moolenaar's conviction. The Information
sufficiently charged the Virgin Islands offense of Burglary in
the Second Degree.

In reversing Moolenaar's conviction, the Appellate
Division focused only on the issue challenging the
sufficiency of the Information, and never reached the
additional claims raised by Moolenaar in his appeal to that
court. The Appellate Division's opinion notes that it did not
reach Moolenaar's contentions that the trial court
committed plain error by failing to define the crime of theft
or larceny and by failing to instruct the jury that larceny
and the crime of theft are synonymous, and that he is
therefore entitled to a new trial. See App. at 10 n.3. On
remand, the Appellate Division will have the opportunity to
address these issues.

For the reasons set forth, we will reverse the judgment of
the Appellate Division and remand this case to it for further
proceedings consistent with this opinion.

A True Copy:
Teste:

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

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