United States v. Richard Hodge, Jr. , 870 F.3d 184 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-2621
_____________
UNITED STATES OF AMERICA
v.
RICHARD ANTONIO HODGE, JR.,
Appellant
_____________
On Appeal from the District Court of the Virgin Islands
(No. 3-14-cr-00001-001)
District Judge: Honorable Curtis V. Gomez
Argued: December 15, 2016
_____________
Before: CHAGARES, JORDAN, and HARDIMAN, Circuit
Judges.
(Filed: September 6, 2017)
Richard F. Della Fera, Esq. (ARGUED)
Entin & Della Fera
633 South Andrews Avenue
Suite 500
Fort Lauderdale, FL 33301
Counsel for Appellant
David W. White, Esq. (ARGUED)
Nelson L. Jones, Esq.
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
St. Thomas, VI 00802
Counsel for Appellee
____________
OPINION
____________
CHAGARES, Circuit Judge.
A jury found Richard Antonio Hodge guilty of ten
counts of federal and Virgin Islands offenses, including
robbery, assault, firearms-related crimes, and reckless
endangerment. Hodge appeals his conviction and sentence on
the following grounds: double jeopardy, denial of his pretrial
motion to substitute counsel, denial of his motion to strike three
jurors for cause, admission of prejudicial evidence at trial,
insufficiency of the evidence, and error in the jury instructions.
2
For the reasons that follow, we agree that Hodge’s
multiple convictions under 14 V.I.C. § 2253(a), a Virgin
Islands firearms statute, violated his right against double
jeopardy. Therefore, we will remand to the District Court to
vacate the convictions as to the appropriate counts and for
requisite resentencing. We will otherwise affirm.
I.
A.
On December 3, 2013, Asim Powell, an employee of
Ranger American Armored Services (“Ranger”), was carrying
a bag containing $33,550 in cash deposits from a K-Mart in St.
Thomas in the U.S. Virgin Islands to a Ranger armored vehicle
in the K-Mart parking lot. On his way, Powell met his
supervisor Clement Bougouneau. While the two were standing
in the parking lot, a man, whose face was partially covered,
shot Powell in the back and attempted to seize the bag of
money. Powell did not relent, and the man then shot him twice
more, in the wrist and hip. The man then shot Bougouneau
once in the groin and fled the scene with the bag. Latoya
Schneider, an off-duty Virgin Islands police officer, happened
to be at the shopping center at the time and recognized Hodge
as the shooter. Hodge was later apprehended. Both Powell and
Bougouneau survived the shootings.
On January 2, 2014, a fifteen-count Information was
filed against Hodge in the District of the Virgin Islands:
− Count 1, Interference with Commerce by
Robbery, 18 U.S.C. § 1951;
3
− Count 2, Use and Discharge of a Firearm
During the Commission of a Crime of
Violence (robbery), 18 U.S.C. §
924(c)(1)(A);
− Count 3, Use and Discharge of a Firearm
During the Commission of a Crime of
Violence (attempted murder of Powell),
18 U.S.C. § 924(c)(1)(A);
− Count 4, Use and Discharge of a Firearm
During the Commission of a Crime of
Violence (attempted murder of
Bougouneau), 18 U.S.C. § 924(c)(1)(A);
− Count 5, Attempted First Degree Murder
of Powell, 14 V.I.C. §§ 921, 922(a)(2),
and 331;
− Count 6, Using an Unlicensed Firearm
During Commission of a Crime of
Violence (attempted murder of Powell),
14 V.I.C. § 2253(a);
− Count 7, Using an Unlicensed Firearm
During Commission of a Crime of
Violence (first degree assault of Powell),
14 V.I.C. § 2253(a);
− Count 8, Using an Unlicensed Firearm
During Commission of a Crime of
Violence (robbery of Powell), 14 V.I.C. §
2253(a);
4
− Count 9, First Degree Assault with Intent
to Commit Murder (Powell), 14 V.I.C. §
295(1);
− Count 10, First Degree Assault with
Intent to Commit Murder (Powell), 14
V.I.C. § 295(3) [sic];
− Count 11, First Degree Robbery of
Powell, 14 V.I.C. §§ 1861 and 1862(1);
− Count 12, Attempted First Degree Murder
of Bougouneau, 14 V.I.C. §§ 921,
922(a)(2), and 331;
− Count 13, Using an Unlicensed Firearm
During Commission of a Crime of
Violence (attempted murder of
Bougouneau), 14 V.I.C. § 2253(a);
− Count 14, First Degree Assault with
Intent to Commit Murder (Bougouneau),
14 V.I.C. § 295(1); and
− Count 15, Reckless Endangerment in the
First Degree, 14 V.I.C. § 625(a).
Appendix (“App.”) 13-28. The District Court dismissed Count
10 prior to trial because it contained an error.
B.
Hodge was represented by Federal Public Defender
Omodare Jupiter. Prior to trial, Hodge indicated he wanted
5
substitute counsel, but none was arranged at that time. 1 On the
morning of the first day of trial, June 9, 2014, Hodge moved to
substitute attorney Michael Joseph for Jupiter, and Joseph
submitted a faxed motion to appear on Hodge’s behalf. Jupiter
reported to the District Court that Hodge wished to have Joseph
represent him at trial.
The District Court engaged in the following colloquy
with Jupiter:
THE COURT: Are you aware -- is there
some conflict between you and your
client?
MR. JUPITER: There’s no conflict that I
--
THE COURT: Any other substantial
reason that you cannot represent Mr.
Hodge?
MR. JUPITER: No, Your Honor. The
only issue --
THE COURT: It’s just a question of
choice, then?
MR. JUPITER: This is only a question of
whether -- I think the only issue I want to
make sure that the Court -- the record is
clear, the only issue the Court raised is
1
At a prior motions hearing, Jupiter alerted the District Court
that Hodge wished to be represented by substitute counsel.
However, the transcript of that hearing is devoid of any
substantive discussion as to the rationale, timing, or other
details of the request.
6
whether or not he has a right to his
counsel of choice, Your Honor. And so
no, I’m not aware of any conflict that I
have with Mr. Hodge. I was not aware
until Sunday, yesterday, that Mr. Joseph
was going to be trying to enter his
appearance in this case.
THE COURT: Okay. Are you
communicating with your client?
MR. JUPITER: Yes, Your Honor.
THE COURT: Is your client
communicating with you?
MR. JUPITER: Yes, Your Honor.
THE COURT: And you have no conflict
with your client at this time, correct?
MR. JUPITER: Correct, Your Honor.
THE COURT: Is there any conflict of
interest, are you representing some other
entity, Ranger American, or have any
relationship with anyone?
MR. JUPITER: Not at all.
THE COURT: I don’t find there’s any
good cause for any continuance, which is
the only way I think Attorney Joseph can
come in and adequately represent the
defendant in this case.
App. 37-39. Joseph confirmed to the Court that while he would
prefer more time, he was ready to proceed with jury selection
and that his only request was to begin opening statements the
next morning. The District Court did not directly ask Hodge
any questions. After the Government indicated its concern
about Hodge’s right to counsel, the District Court denied the
7
motion. The court noted that it did not “see any good cause for
a continuance . . . [or] for substituting counsel,” and concluded
that the motion was “simply a matter of choice, and what the
Court views what may come close to kind of tactically moving
the trial around.” App. 43-44. The court characterized
Joseph’s recitation as “at best . . . equivocal when it comes to
his preparedness for trial,” App. 42, and concluded that “a
continuance would be required in the Court’s view in order to
allow Attorney Joseph to represent the defendant,” App. 43. 2
The court then advised Hodge that his options were to proceed
with Jupiter or to represent himself. Hodge opted to proceed
with Jupiter as his counsel.
C.
During jury selection, several prospective jurors
revealed their relationships with witnesses or parties in the
case. Hodge urged the District Court to excuse three
prospective jurors for cause.
First, Hodge challenged Juror 18, who indicated she
was a childhood friend of Bougouneau and that they speak
occasionally when they see each other, especially at work. She
stated that she works at a bank and that she has overheard
employees of Ranger discussing the case.
Second, Hodge challenged Juror 59, who stated she
knew both Bougouneau and Powell through working at a bank
that uses Ranger for transporting money.
2
Jury selection took place immediately after this colloquy
regarding counsel. Opening statements began shortly after
noon that same day.
8
Third and finally, Hodge challenged Juror 24, who
stated that her father was killed 22 years earlier and that “it still
hurts [her] because the criminals are out running.” App. 60.
Juror 24 also was acquainted with Schneider.
The court refused to excuse any of the three prospective
jurors for cause on the basis that all three stated that they could
be fair and impartial, and because “[i]t’s a very small
community.” App. 67. Hodge then exercised his peremptory
strikes to remove Jurors 18, 59, and 24 from the jury.
D.
Hodge’s jury trial took place on June 9, 10, and 11,
2014. Below, we summarize the statements and evidence
presented at trial that relate to the issues raised on appeal.
Both Powell and Bougouneau testified at trial, although
neither could directly identify Hodge. Powell testified that
while he was conversing with Bougouneau in the K-Mart
parking lot, Bougouneau shouted “[w]atch out,” and Powell
felt a “sharp pain in [his] back.” Supplemental Appendix
(“Supp. App.”) 18. Powell fell forward bleeding from the
chest. Supp. App. 18. Next, Powell heard several more shots
and “felt somebody pulling at the bag” of cash deposits from
the K-Mart that he had in his hand. Supp. App. 18. Powell
“tried to restrain by not letting go the bag,” and “felt a shot in
[his] hip.” Supp. App. 18. He also felt a shot in his wrist.
Supp. App. 19. Powell testified that two to three minutes
elapsed between when he was shot and when the money bag
he was holding was “wrestled” from him. June 9, 2014 Trial
Tr. (D. Ct. Dkt. No. 66) at 112.
9
Bougouneau testified that he saw Powell leaving the K-
Mart and approaching him. Bougouneau confirmed that he
“saw the gun pull up behind Powell,” and that he said “[l]ook
out.” Supp. App. 21. He testified that the assailant’s hair and
face were covered. Supp. App. 22; June 9, 2014 Trial Tr. at
143. Bougouneau testified that “by the time I tried to grab my
gun, shots fired and I go down.” Supp. App. 21. At some
point, Bougouneau was shot. Supp. App. 20. Bougouneau
then ran after the assailant along with Schneider. Supp. App.
24.
Schneider identified Hodge as the shooter. She testified
that on the day of the crime, she was off-duty from her position
as a Virgin Islands police officer and was working as a taxi
driver when she saw Hodge, whom she knew as “Richie,” in
the K-Mart parking lot. The Government asked Schneider how
long she knew Hodge. She responded:
I’ve been a police [officer] for about nine years.
I don’t know him personally, but, you know, my
experience from working in special ops and
dealing with the guys in the area, town, country,
and all the different housing communities and
stuff. I gathered his name from, you know, my
co-workers and stuff like that. But I don’t
personally know him.
App. 76. Schneider testified that her sister lives in the area and
added, “I see him all the time.” App. 76.
Schneider testified that she saw Hodge in a “slow jog”
and that at the time, she thought to herself, “Oh, Richie found
a job” because she saw that Hodge had a hat or cloth over his
10
face and assumed it was to cover it from dust. App. 75-76.
The Government then asked Schneider how she knew Hodge
was unemployed. She replied, “Well, I always see him on the
corner or on the turf, hanging with a group of guys,” and added
that she had observed him “hanging” in the area for four or five
years. App. 76, 80. Schneider testified that Hodge had “his
hands in this big jacket” and that she found it “strange.” App.
77. Schneider stated that when she turned to retrieve her
service weapon, she heard “[m]ore than two” shots “ring off.”
App. 77. She testified that she next saw one of the victims
falling, Hodge picking up a bag, and Hodge running with a gun
in his hand. App. 77-78. Later, during closing statements, the
Government referred to Schneider’s characterization of Hodge
as previously unemployed and that she at first believed he had
found a job. Hodge did not object to Schneider’s testimony or
to the Government’s statement during closing.
Schneider and Bougouneau stopped their pursuit of
Hodge because of Bougouneau’s gunshot wound. Other
officers arrived and eventually found Hodge in a dense wooded
area, only half-dressed. The officers recovered from the
bushes nearby a tee shirt, a black ski mask, and the jacket
identified by Schneider. Gunpowder residue was later found
on the clothing. The ski mask had male DNA on it, but Hodge
was excluded as a contributor to the DNA sample in the mask.
E.
The District Court instructed the jury before and after
closing statements. In the jury instructions before the closing
statements, the District Court explained:
11
The crimes charged in this case are serious
crimes which require proof of the defendant’s
mental state or intent before he can be convicted.
To establish mental state or intent, the
government must prove that the defendant’s
actions were knowingly and intentionally done.
The government is not required to prove that the
defendant knew that he was breaking the law
when he did the acts charged in the information.
You may determine his mental state or intent
from all the facts and circumstances surrounding
the case. State of mind or knowledge ordinarily
may only be proved indirectly, that is, by
circumstantial evidence, because there’s no way
we can get inside to observe the operations of the
human mind.
Supp. App. 50-51.
In instructing the jury as to Counts 3 and 4, the 18
U.S.C. § 924(c) counts relating to the attempted murders of
Powell and Bougouneau, the court first stated:
Counts 3 and 4 charge that on or about December
3rd, 2013, the defendant used a firearm to
commit attempted murder.
To find the defendant guilty of using and
discharging a firearm during the commission of
attempted murder, the government must prove
each of the following essential elements beyond
a reasonable doubt:
12
First, that the defendant committed an attempted
murder as charged in either Counts 5 or 12 of the
information.
Second, that during and in relation to the
commission of that crime, the defendant
knowingly used a firearm.
Third, that the defendant used the firearm during
and in relation to the crime of attempted murder.
App. 90. The court paused to address an unrelated matter, and
then repeated the instruction as to Counts 3 and 4. In the
second iteration, the court did not specifically refer to “Counts
5 or 12 of the information.” App. 91. It also replaced
“knowingly used” with “knowingly discharged” in the second
to last sentence of the instruction. App. 92.
The court then gave the jury instructions for Counts 5
and 12 for attempted murder. It stated:
To meet its burden of proof for the crime charged
in Counts 5 and 12, the government must prove
the following essential elements beyond a
reasonable doubt:
First, that the defendant attempted to kill a
human being.
Second, that the defendant acted willfully,
deliberately and with premeditation.
13
And third, that the defendant acted with malice
aforethought.
App. 92-93. Next, the District Court specifically defined
premeditation and malice aforethought:
To premeditate a killing is to conceive the design
or plan to kill.
Malice aforethought may be inferred from
circumstances which show a wanton and
depraved spirit, a mind bent on evil mischief,
without regard to its consequences. Malice
aforethought does not mean simply hatred or
particular ill will, but embraces generally the
state of mind with which one commits a
wrongful act. And it includes all those states of
mind in which a homicide is committed without
legal justification, extenuation or execution.
App. 93-94.
The court then gave jury instructions for Counts 6 and
13, the firearms offenses in violation of 14 V.I.C. § 2253(a)
with respect to attempted murder:
To sustain its burden of proof for the crime
charged in Counts 6 and 13, the government
must prove the following essential elements
beyond a reasonable doubt:
First, that the defendant knowingly used the
firearm in question.
14
Second, that the defendant was not authorized by
law to use the firearm in question.
And third, that the defendant used the firearm
during the commission of an attempted murder.
App. 94-95.
F.
The jury returned a mixed verdict. It acquitted Hodge
of four counts: Count 4, the 18 U.S.C. § 924(c) offense as to
the attempted murder of Bougouneau; Count 5, attempted first
degree murder of Powell; Count 12, attempted first degree
murder of Bougouneau; and Count 13, the 14 V.I.C. § 2253(a)
offense of using an unauthorized firearm in commission of the
attempted murder of Bougouneau. It convicted him of the
remaining ten counts.
On September 16, 2015, the District Court entered a
judgment of conviction and sentence as to Counts 1, 2, and 3
and a separate judgment and commitment as to Counts 6, 7, 8,
9, 11, 14, and 15. On Count 1 (Hobbs Act robbery of Powell),
the court sentenced Hodge to seventy months of imprisonment.
On Counts 2 and 3 (the § 924(c) counts related to the robbery
and attempted murder of Powell), the court sentenced Hodge
to a mandatory minimum of 300 months of imprisonment on
15
the second § 924(c) violation and 120 months of imprisonment
for the initial violation, 3 to run consecutively.
As to the Virgin Islands offenses, the District Court
sentenced Hodge to a fifteen-year general sentence on Counts
6, 7 and 8 — the Virgin Islands firearms offenses related to the
attempted murder, first degree assault, and robbery of Powell,
respectively. It sentenced Hodge to a five-year general
sentence for Counts 9, 11, 14, and 15 — the first degree assault
of Powell, first degree robbery of Powell, first degree assault
of Bougouneau, and first degree reckless endangerment,
respectively. Both the five- and fifteen-year general sentences
were to run consecutively to each other and to all other
sentences.
The District Court also issued an opinion on March 8,
2016 regarding Counts 2 and 3, the dual § 924(c) convictions,
rejecting Hodge’s position that the convictions were
duplicative and that only one of the convictions could stand.
The District Court also denied Hodge’s motion for a new trial
and motion to vacate in a written opinion dated April 15, 2016.
Hodge filed a timely appeal.
3
Because the firearm in this case was discharged, the
mandatory minimum for the first § 924(c) offense is ten years.
18 U.S.C. § 924(c)(1)(A)(iii).
16
II. 4
Hodge raises separate arguments as to why several
counts of his conviction and his sentence should be vacated
because they are multiplicitous and violate the Fifth
Amendment’s Double Jeopardy Clause. 5 The Fifth
Amendment protects, inter alia, “against multiple punishments
for the same offense imposed in a single proceeding,” Jones v.
Thomas, 491 U.S. 376, 381 (1989) (quotation marks omitted),
and accordingly, prohibits multiplicity. We have observed that
“[m]ultiplicity is the charging of a single offense in separate
counts of the indictment. A multiplicitous indictment risks
subjecting a defendant to multiple sentences for the same
offense, an obvious violation of the Double Jeopardy Clause’s
protection against cumulative punishment.” United States v.
Kennedy, 682 F.3d 244, 254-55 (3d Cir. 2012) (citations
omitted). The Supreme Court has noted that “[b]ecause the
substantive power to prescribe crimes and determine
punishments is vested with the legislature, the question under
4
The District Court had jurisdiction over this case under 48
U.S.C. § 1612 and 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291.
5
Hodge also argues that a few counts of his conviction and his
sentence should be vacated by operation of an analog of the
Double Jeopardy Clause — title 14, section 104 of the Virgin
Islands Code. Arguments implicating section 104 will be
discussed infra. When we are tasked with interpreting a
territorial law under the Virgin Islands Code and there is no
controlling precedent on point, “it is our role to predict how the
Supreme Court of the Virgin Islands would resolve this
interpretive issue.” United States v. Fontaine, 697 F.3d 221,
227 n.12 (3d Cir. 2012).
17
the Double Jeopardy Clause whether punishments are
‘multiple’ is essentially one of legislative intent.” Ohio v.
Johnson, 467 U.S. 493, 499 (1984) (citations omitted). As a
result, the sentencing discretion of the judicial branch is limited
by the legislative branch in that courts must ensure that the
punishment imposed upon a defendant does not surpass that
prescribed by the legislature. See Missouri v. Hunter, 459 U.S.
359, 366 (1983).
In Blockburger v. United States, 284 U.S. 299 (1932),
the Supreme Court provided a test to determine whether the
legislature “intended that two statutory offenses be punished
cumulatively.” Albernaz v. United States, 450 U.S. 333, 337
(1981). The Court in Blockburger directed that “where the
same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.”
Blockburger, 284 U.S. at 304. See Ianelli v. United States, 420
U.S. 770, 785 n.17 (1975) (explaining that the Blockburger test
serves the “function of identifying congressional intent to
impose separate sanctions for multiple offenses arising in the
course of a single act or transaction”). However, the
Blockburger test is merely one “rule of statutory construction;”
it does not control “where, for example, there is a clear
indication of contrary legislative intent.” Albernaz, 450 U.S.
at 340 (quotation marks omitted).
Generally, our review of double jeopardy and
multiplicity rulings is plenary. See Kennedy, 682 F.3d at 255
n.8. However, double jeopardy claims that were not raised
before the District Court are reviewed for plain error. United
States v. Miller, 527 F.3d 55, 60 (3d Cir. 2008). Under plain
18
error review, we will “grant relief only if we conclude that (1)
there was an error, (2) the error was ‘clear or obvious,’ and (3)
the error ‘affected the appellant’s substantial rights.’” United
States v. Stinson, 734 F.3d 180, 184 (3d Cir. 2013) (quoting
Puckett v. United States, 556 U.S. 129, 135 (2009)). When
these three prongs have been satisfied, we may exercise our
discretion to correct the forfeited error. Id.
We address Hodge’s double jeopardy claims in seriatim
below and note where we conduct plain error review instead of
plenary review.
A.
Hodge argues that his convictions under 18 U.S.C.
§ 924(c) and 14 V.I.C. § 2253(a) (the federal and Virgin
Islands crime-of-violence firearms offenses, respectively)
cannot both stand if they are based on the same predicate
offense conduct. There are two sets of convictions that fall into
this category: Counts 2 and 8, where Count 2 is the federal
firearms offense and Count 8 is the local Virgin Islands
firearms offense, both based on the robbery of Powell; and
Counts 3 and 6, where Count 3 is the federal firearms offense
and Count 6 is the local firearms offense, both based on the
attempted murder of Powell. Because Hodge did not raise this
issue before the District Court, but did not appear to have
intentionally waived it, we review it for plain error. See United
States v. Olano, 507 U.S. 725, 733-34 (1993).
As a preliminary matter, unlike a scenario where the
dual sovereigns of a state government and the federal
government pursue parallel prosecutions for the same conduct,
“the Virgin Islands and the federal government are considered
19
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.” Gov’t of the V.I. v. Brathwaite, 782 F.2d
399, 406 (3d Cir. 1986). This is because as a United States
territory, the U.S. Virgin Islands “does not have independent
sovereignty but derives such powers as its government
possesses directly from congressional grant under article IV,
section 3 of the federal Constitution.” Gov’t of the V.I. v.
Dowling, 633 F.2d 660, 669 (3d Cir. 1980).
We therefore turn to the Blockburger test to analyze
whether 18 U.S.C. § 924(c) and 14 V.I.C. § 2253(a) “constitute
violations of two distinct statutory provisions,” Blockburger,
284 U.S. at 304. The predicate offenses for Counts 2 and 8
(robbery) 6 and Counts 3 and 6 (attempted murder) are the
same. As a result, we need only examine the other elements of
the two statutes.
Because the federal and Virgin Islands firearms statutes
each contain an element not found in the other, Counts 2 and 8
and Counts 3 and 6 are not multiplicitous and do not trigger
double jeopardy protection. The Virgin Islands firearms
statute, 14 V.I.C. § 2253(a) requires that any firearm that is the
6
While the Information is not clear as to which robbery charge
Counts 2 and 8 refer to, the jury instructions indicate that both
referred to the Virgin Islands first degree robbery statute in
Count 11, rather than to the federal Hobbs Act robbery in
Count 1. App. 88-91, 96.
20
basis of the charge be “unauthorized.” 7 The federal statute, 18
U.S.C. § 924(c), on the other hand, does not require that the
firearm be unauthorized. 8
7
Title 14, section 2253(a) of the Virgin Islands Code
provides, in relevant part:
Whoever, unless otherwise authorized by law,
has, possesses, bears, transports or carries either,
actually or constructively, openly or concealed
any firearm . . . may be arrested without a
warrant, and shall be sentenced to imprisonment
of not less than ten years . . . except that . . . if
such firearm or an imitation thereof was had,
possessed, borne, transported or carried by or
under the proximate control of such person
during the commission or attempted commission
of a crime of violence . . . then such person shall
be fined $25,000 and imprisoned not less than
fifteen (15) years nor more than twenty (20)
years.
8
Title 18, section 924(c) of the United States Code provides,
in relevant part:
[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime . . .
uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such
crime of violence or drug trafficking crime . . .
be sentenced to a term of imprisonment of not
less than 5 years . . . . In the case of a second or
21
The federal statute also possesses requirements that the
Virgin Islands statute does not. To prove a violation of 18
U.S.C. § 924(c), a reasonable jury must find that the firearm
was a “real” one. See United States v. Lake, 150 F.3d 269, 271
(3d Cir. 1998); United States v. Beverly, 99 F.3d 570, 572 (3d
Cir. 1996). However, section 2253(a) explicitly provides that
even an “imitation” of a firearm used during a crime of
violence triggers criminal liability. See United States v.
Fontaine, 697 F.3d 221, 228 (3d Cir. 2012).
The offenses underlying Counts 2 and 8 contain at least
one element that the other does not. The same applies to
Counts 3 and 6. Therefore, under the Blockburger test, there
was no double jeopardy when Hodge was convicted of both the
federal 18 U.S.C. § 924(c) count and the territorial 14 V.I.C. §
2253(a) count based on the same predicate offenses.
B.
Hodge argues that the District Court erred in failing to
dismiss one of the two federal convictions under 18 U.S.C. §
924(c). Hodge does not contend that the two convictions
(Counts 2 and 3) violate the Blockburger test. Hodge Br. 51.
Instead, he argues more generally that the Double Jeopardy
Clause “prevent[s] the sentencing court from prescribing
greater punishment than the legislature intended,” United
States v. Diaz, 592 F.3d 467, 470 (3d Cir. 2010) (quoting
Hunter, 459 U.S. at 366), and that § 924(c) is at best ambiguous
subsequent conviction under this subsection, the
person shall . . . be sentenced to a term of
imprisonment of not less than 25 years.
22
as to whether he can be charged and sentenced under both
Counts 2 and 3.
Hodge contends that § 924(c) is ambiguous and can be
read to mean that a single use, carrying, or possession of a
firearm cannot support multiple prosecutions. He urges that
we should apply the rule of lenity to vacate either Count 2 or 3
because the predicate offenses — one for robbery and one for
attempted murder — are both based on a single use of his
firearm in shooting Powell.
We disagree. We have not held, as Hodge maintains,
that the unit of prosecution for a § 924(c) count is each use of
the firearm regardless of how many predicate offenses are
charged. Rather, we have held that “crimes occurring as part
of the same underlying occurrence may constitute separate
predicate offenses if properly charged as separate crimes. It
follows that each may be a separate predicate for a § 924(c)(1)
conviction.” United States v. Casiano, 113 F.3d 420, 426 (3d
Cir. 1997) (citations omitted).
In Casiano, we rejected the argument that Ҥ 924(c) was
never intended to punish subsequent convictions arising out of
a single criminal enterprise involving the same victim.” Id. at
425. The defendant’s co-conspirators in Casiano pistol-
whipped the victim while carjacking him, held a gun to his
head while the victim lay in the back of the stolen vehicle, and
pistol-whipped him again in the car. 9 Id. at 423. The defendant
9
The assailants then shot at the victim twice after taking him
to a remote location, but Casiano did not appear to have been
charged based on the shooting. Casiano, 113 F.3d at 423.
23
was convicted of two counts of § 924(c), one based on
carjacking and one based on kidnapping. Id. at 424. The Court
held that the application of § 924(c) to both was appropriate
because the statute refers to a second or subsequent
“conviction, not criminal episode.” Id. (quotation marks
omitted) (citing Deal v. United States, 508 U.S. 129 (1993)).
The same logic applies here, since the sequence of Hodge’s
actions closely parallels Casiano’s and in both cases a firearm
was employed multiple times to commit multiple predicate
crimes.
Hodge next argues that our decision in Diaz, 592 F.3d
at 474-75, requires that the rule of lenity be applied to vacate
his second § 924(c) conviction. In Diaz, the defendant used a
firearm multiple times to commit a single predicate act:
possession with intent to distribute heroin. Based on this single
predicate offense, he was convicted of two § 924(c) offenses.
After surveying the opinions of our sister Courts of Appeals
and the relevant legislative history, we concluded that the
statutory text of § 924(c) was “susceptible of differing
interpretations” as to the issues in that case, id. at 473, with the
relevant unit of prosecution being either (1) the underlying
predicate offense, or (2) each individual instance in which a
defendant uses or carries a firearm throughout the duration of
an underlying predicate offense. Id. at 471-72. Given this
ambiguity, we concluded that application of the rule of lenity
would be appropriate in that particular case and vacated one
count of the defendant’s two § 924(c) convictions. Id. at 474-
75.
Hodge’s reliance on Diaz is misplaced. Unlike the
defendant in Diaz, who had two § 924(c) convictions on the
basis of a single predicate crime, Hodge’s two § 924(c)
24
convictions were based on two separate predicate offenses:
robbery and attempted murder. The analysis regarding lenity
in Diaz thus does not suggest its extension to this case. This is
because regardless of what constitutes the unit of prosecution,
Hodge engaged in multiple uses of a firearm to commit
multiple crimes, albeit all during the same criminal episode. 10
10
Even if the unit of prosecution for § 924(c) were based on
each use of a firearm rather than the underlying predicate
offense, Hodge’s argument would still fail because his
characterization of Counts 2 and 3 as involving “use of a
firearm once,” Hodge Br. 44, is factually incorrect. Powell
testified at trial that he was first shot and began bleeding from
his chest before the assailant attempted to rob him of the money
bag. Supp. App. 18-19. When Powell “tried to restrain by not
letting go the bag,” he then “felt a shot in [his] hip.” Supp.
App. at 18. Powell was subsequently shot a third time in the
right wrist. Supp. App. at 19. Shooting Powell to rob him and
then shooting him twice more when Powell refused to give up
the money can rightly be understood on this record as
constituting multiple “uses” of the firearm to commit different
predicate crimes. See United States v. Vichitvongsa, 819 F.3d
260, 270 (6th Cir. 2016) (“Whether a criminal episode contains
more than one unique and independent use, carry, or
possession depends at least in part on whether the defendant
made more than one choice to use, carry, or possess a
firearm.”); United States v. Wilson, 160 F.3d 732, 749 (D.C.
Cir. 1998) (“[T]here may be circumstances in which such
[multiple] offenses could support more than one § 924(c)
charge — as where, for example, the evidence shows distinct
uses of the firearm, first to intimidate and then to kill.”). We
therefore deem inapposite Hodge’s citations to out-of-circuit
cases regarding truly simultaneous offenses based on a single
25
This scenario was neither at issue in nor contemplated by the
Diaz Court. To the contrary, the Diaz Court explicitly
distinguished its particular factual scenario, reinforcing that
Casiano would still control in a situation like that at issue here.
See Diaz, 592 F.3d at 470 n.3 (“Casiano does not govern this
case because the Government there charged more predicate
crimes than § 924(c) violations.”); see also United States v.
Anderson, 59 F.3d 1323, 1334 (D.C. Cir. 1995) (“In
circumstances in which a defendant displays or fires a gun on
separate and distinct occasions, the government will often be
able to charge those acts as separate § 924(c) violations linked
to separate predicate offenses.”). Hodge’s argument — that a
defendant commits only one § 924(c) violation despite
multiple uses of a firearm to commit multiple crimes — is thus
foreclosed by Casiano. For this reason and because our
holding in Diaz does not alter that conclusion, we will affirm
the judgment as to Counts 2 and 3.
use of a firearm. See, e.g., Vichitvongsa, 819 F.3d at 269-70
(vacating two of four § 924(c) convictions where the defendant
— on two separate occasions — brandished a gun once to
commit both Hobbs Act robbery and a drug trafficking crime
simultaneously); United States v. Rentz, 777 F.3d 1105, 1107
(10th Cir. 2015) (en banc) (vacating one of two § 924(c)
convictions where the defendant shot a gun once and the bullet
hit two victims, killing one and injuring the other); United
States v. Cureton, 739 F.3d 1032, 1036 (7th Cir. 2014)
(involving a single act of pressing a gun to the victim’s head in
making both an extortion and ransom request).
26
C.
Hodge contends that Counts 6, 7, and 8, the Virgin
Islands counts related to the use of an unlicensed firearm in
violation of 14 V.I.C. § 2253(a), are multiplicitous because all
three charges were predicated upon crimes committed with the
same firearm during one continuous act. Hodge Br. 56-57.
Hodge bases his contention on two theories: first, that 14
V.I.C. § 2253(a) only allows for one prosecution where there
was one firearm used in a continuous act, and second, 14 V.I.C.
§ 104 forbids multiple punishments for the same action. Both
theories have merit.
The Virgin Islands firearms statute criminalizes the
unauthorized possession, bearing, transporting, or carrying of
a firearm. It imposes additional penalties if the defendant also
commits a “crime of violence.” In Hodge’s case, the three
counts under section 2253(a) charge multiple predicate crimes
of violence against Powell. Hodge asserts that only one count
under section 2253(a) is permissible because he only possessed
the firearm once. We must therefore determine whether a
separate offense arises under section 2253(a) for each crime of
violence during which a firearm was present, or for each
instance of possessing, bearing, transporting or carrying the
firearm, regardless of how many crimes of violence are
committed (which is what Hodge urges us to conclude). To
determine what the unit of prosecution is, we first look to the
text of the statute. See Kennedy, 682 F.3d at 255.
We agree with Hodge and hold that the plain text of the
statute indicates that the unit of prosecution refers to the fact
that a defendant “has, possesses, bears, transports or carries”
an unauthorized firearm. This is a crucial difference between
27
14 V.I.C. § 2253(a) and 18 U.S.C. § 924(c). The former
criminalizes the unauthorized possession of a firearm for any
purpose. The latter, in contrast, criminalizes the use, carrying,
or possession of a firearm only if it is in furtherance of certain
prescribed activity — here, a crime of violence. In the absence
of a crime of violence, Hodge would not face a § 924(c) charge
at all. He would still face, however, a charge under 14 V.I.C.
§ 2253(a) for possession of an unauthorized firearm.
The language of section 2253(a) regarding a crime of
violence is structured as a sentencing enhancement and
attaches to the possession offense in the previous clause. See
14 V.I.C. § 2253(a) (referencing “if such firearm” being “under
the proximate control of such person during the commission or
attempted commission of a crime of violence” (emphasis
added)). In other words, Hodge already violated 14 V.I.C.
§ 2253(a) by virtue of possessing an unauthorized firearm,
even if he did nothing else. His commission of a crime of
violence can only enhance the sentence, and cannot serve as
the basis for another prosecution for a firearms possession
offense under section 2253(a). See United States v. Xavier, 2
F.3d 1281, 1291 (3d Cir. 1993) (“[Section 2253] provides
punishment for unauthorized possession ‘except that’ a greater
punishment applies for a defendant convicted of possessing a
weapon during a crime of violence.”); see also Fontaine, 697
F.3d at 229 (“It is thus the lack of authorization to have a
firearm that stands as a prerequisite to criminal liability [under
section 2253(a)].”). The plain meaning of the statute leads us
to the conclusion that only one count under 14 V.I.C. § 2253(a)
can be sustained under the facts of this case.
28
Moreover, 14 V.I.C. § 104 also forbids Hodge’s
multiple convictions under section 2253(a). Section 104
provides:
An act or omission which is made punishable in
different ways by different provisions of this
Code may be punished under any of such
provisions, but in no case may it be punished
under more than one. An acquittal or conviction
and sentence under any one bars a prosecution
for the same act or omission under any other.
While the Double Jeopardy Clause “protects criminal
defendants against multiple prosecutions or punishments for a
single offense,” section 104 “speaks to multiple punishments
for the same act.” Castillo v. People, 59 V.I. 240, 284 n.1
(2013) (Hodge, C.J., concurring). Section 104 thus “provides
greater protections than the Double Jeopardy Clause” and
“dictates that despite the fact that an individual can be charged
and found guilty of violating multiple provisions of the Virgin
Islands Code arising from a single act or omission, that
individual can ultimately be punished for only one offense.”
Estick v. People, 62 V.I. 604, 620-21 (2015); see also Williams
v. People, 56 V.I. 821, 821 n.9 (2012). We agree with Hodge
that section 104 prevents multiple punishments under Counts
6, 7, and 8, all of which arise from a single act of having,
possessing, bearing, transporting, or carrying an unauthorized
firearm. See 14 V.I.C. § 2253(a).
Although the District Court imposed a general sentence
for Counts 6 through 8, a “second conviction, whose
concomitant sentence is served concurrently, does not
evaporate simply because of the concurrence of the sentence.”
29
Ball v. United States, 470 U.S. 856, 864-65 (1985). Rather,
“[t]he separate conviction, apart from the concurrent sentence,
has potential adverse collateral consequences that may not be
ignored. . . . Thus, the second conviction, even if it results in
no greater sentence, is an impermissible punishment.” Id. at
865 (noting the collateral consequences of deferred eligibility
for parole, enhanced sentencing for recidivists for future
offenses, social stigma, and impeachment of credibility); see
also United States v. Ward, 626 F.3d 179, 185 n.8 (3d Cir.
2010) (“To the extent [our previous] cases can be read as
permitting a general sentence on multiple convictions to cure a
Double Jeopardy problem, the Supreme Court has since
rejected such an approach.” (citing Rutledge v. United States,
517 U.S. 292, 307 (1996)). We will therefore remand to the
District Court to vacate two of the three convictions in Counts
6, 7, and 8. See United States v. Miller, 527 F.3d 54, 74 (3d
Cir. 2008). 11
D.
Hodge asserts that separate punishments for Count 7, a
14 V.I.C. § 2253(a) offense predicated on the offense of first
degree assault, and Count 9, the predicate offense of first
11
Hodge also argues that his convictions under Counts 6 and 7
violated the Double Jeopardy Clause because Count 7’s
predicate offense of first degree assault with intention to kill
under 14 V.I.C. § 295(1) is the same offense as Count 6’s
predicate offense of attempted first degree murder under 14
V.I.C. §§ 921, 922(a)(2), and 331. Because we have already
determined that Virgin Islands law allows only one of Counts
6, 7, and 8 to remain, we need not reach this argument.
30
degree assault, are not permissible under 14 V.I.C. § 104. He
argues that because the predicate offense in Count 9 and the
firearms offense in Count 7 arose from the “same act or
omission,” section 104 prevents him from being sentenced for
both counts. 12
We disagree. Hodge has already conceded in the
proceedings below that “a conviction for a violation of 14
V.I.C. § 2253(a) . . . [and a predicate felony] are not
multiplicitous, and that the local Legislature intended that the
penalty for this crime should be in addition to the predicate
felony.” Hodge Sentencing Mem., (D. Ct. Dkt. 77, Feb. 18,
2015) at 3. Indeed, the statute explicitly provides that penalties
“shall be in addition to” penalties for the predicate offense. 14
V.I.C. § 2253(a). The Virgin Islands Supreme Court has
already ruled that section 2253(a)’s consecutive sentencing
mandate does not conflict with section 104. Phillip v. People,
58 V.I. 569, 594-95 (2013) (citing Ward v. People, 58 V.I. 277,
286 (2013)); see also Fontaine v. People, 62 V.I. 643, 653-54
(2015). The court reasoned that “the Legislature intended to
establish an exception to the general rule set forth in section
104, and allow individuals to be punished for both violating
[the firearms offense] and the underlying crime of violence.”
Ward, 58 V.I. at 286. Therefore, because there was “a clear
and unambiguous intent on the part of the Legislature . . . to
12
This issue will be moot, however, if the District Court on
remand vacates Count 7 pursuant to section II(C), supra. It is
also unclear why Hodge only advanced this argument as to
Counts 7 and 9, but not as to Counts 8 and 11, where the Virgin
Islands firearms offense charged in Count 8 is predicated on
the first degree robbery of Powell charged in Count 11.
31
require punishment for both of those offenses,” statutes such
as section 2253(a) do not conflict with section 104. Id.
E.
Hodge argues that the District Court did not heed the
requirements of 14 V.I.C. § 104 when it imposed a five-year
general sentence for Counts 9, 11, 14, and 15, but failed to stay
the execution of punishment for all but one of the counts. The
Government contends that the sentences for these counts do not
fall under the purview of section 104 because they relate to
multiple acts and multiple victims.
We agree with the Government. While Hodge is correct
that section 104 requires not only that a concurrent sentence be
imposed for related convictions, but also that the executions of
punishment for all but one conviction arising from the same
criminal act be stayed, see Williams, 56 V.I. at 821 n.9, there
is no basis for doing so in this case because the multiple
convictions for those four counts do not implicate section 104.
While the District Court appeared to consider section
104 generally during sentencing, it did not explicitly state that
it was grouping together the four counts under section 104.
App. 146 (imposing a five-year sentence on Counts 9, 11, 14,
and 15 without reference to section 104); App. 133 (noting
prior to imposing a sentence that, in general, “[t]he Court’s
position is to stay within the confines of . . . [section] 104”).
Regardless of the court’s intent, section 104 does not apply
here because the four counts could not “aris[e] from a single
act or omission.” Estick, 62 V.I. at 621. The Virgin Islands
Supreme Court has held that a “multiple-victim exception” to
section 104 applies when there is “an act of violence that harms
32
or risks harming more than one person.” Phillip, 58 V.I. at 593;
see also Woodrup v. People, 63 V.I. 696, 723 (2015); Fontaine,
62 V.I. at 654. In Phillip, the court held that section 104 does
not apply to convictions for first degree murder and first degree
reckless endangerment, where the defendant’s shooting of the
gun killed a victim and “the act of firing created a risk of death
to others” near the victim. 58 V.I. at 594. Here, Count 14, first
degree assault of Bougouneau, relates to a different victim than
Counts 9 (first degree assault of Powell) and 10 (first degree
robbery of Powell). Count 15, first degree reckless
endangerment, related to yet other victims in the vicinity.
A different question remains as to whether Counts 9 and
10 (where Powell is the victim for both counts) arose from the
same act under section 104. We hold that they do not, since
the assault and robbery were distinct acts where Hodge
discharged his gun multiple times, with some break in the
sequence. In Galloway v. People, 57 V.I. 693, 712 (2012), the
Virgin Islands Supreme Court held that the defendant’s
convictions and sentences for driving under the influence and
failure to stop at a red light did not violate section 104 because
“his convictions for both offenses were not part of an
indivisible state of mind or coincident error of judgment.”
Similarly, Hodge’s decision to use his gun multiple times to
assault and rob Powell was not “part of an indivisible state of
mind.” See also Francis v. People, 63 V.I. 724, 743 (2015)
(holding that two counts of aggravated rape do not arise from
the same act under section 104 because each can be
“considered separately as two units of prosecution”); Webster
v. People, 60 V.I. 666, 682 n.7 (2014) (holding that defendant’s
“actions in waking his mother to demand the keys and later
taking the vehicle without her consent do not constitute ‘a
single act or omission’ for the purposes of 14 V.I.C. § 104”).
33
Thus, we hold that the District Court did not violate
section 104 when it imposed a general sentence upon Hodge
for his convictions on Counts 9, 11, 14, and 15.
III.
Hodge contends that his Sixth Amendment rights were
violated because the District Court denied his request for
substitute counsel. We review a District Court’s denial of a
request for substitution of counsel and denial of a continuance
for abuse of discretion. United States v. Goldberg, 67 F.3d
1092, 1097 (3d Cir. 1995); United States v. Kikumura, 947
F.2d 72, 78 (3d Cir. 1991).
A criminal defendant has a right to be assisted by
counsel of choice under the Sixth Amendment. The right to
counsel of choice, however, has limits. “[W]hen that choice
comes into conflict with a trial judge’s discretionary power to
deny a continuance, the court will apply a balancing test to
determine if the trial judge acted fairly and reasonably.”
Kikumura, 947 F.2d at 78.
Here, Hodge formally moved for a change of counsel
moments before trial was scheduled to begin. The procedure
for entertaining a substitution of counsel motion on the eve of
trial is set forth in United States v. Welty, 674 F.2d 185, 187
(3d Cir. 1982):
[T]he district court must engage in two lines of
inquiry. First, the court must decide if the
reasons for the defendant’s request for substitute
counsel constitute good cause and are thus
sufficiently substantial to justify a continuance
34
of the trial in order to allow new counsel to be
obtained. If the district court determines that the
defendant is not entitled to a continuance in order
to engage new counsel, the defendant is then left
with a choice between continuing with his
existing counsel or proceeding to trial pro se,
thus bringing into play the court’s second stage
of inquiry.
The Welty court then provided examples of good cause, “such
as a conflict of interest, a complete breakdown in
communication, or an irreconcilable conflict with his
attorney.” Id. at 188; see also Goldberg, 67 F.3d at 1098.
Hodge’s argument is only as to the first line of inquiry
set forth in Welty. He contends that the District Court’s failure
to engage in a direct colloquy with him when examining the
reasons for change of counsel was constitutional error. We
conclude that the District Court did not abuse its discretion by
denying the request without engaging in a direct colloquy with
Hodge.
Our precedents after Welty command that “[e]ven when
the trial judge suspects that the defendant’s contentions are
disingenuous, and motives impure, a thorough and searching
inquiry is required.” McMahon v. Fulcomer, 821 F.2d 934,
942 (3d Cir. 1987). Although the District Court’s Welty step
one inquiry in this case was directed at Hodge’s original
attorney instead of Hodge himself, Hodge has not
demonstrated that this was an abuse of discretion. Jupiter,
Hodge’s public defender, confirmed that he had no conflict of
interest with any party or witness, that there had been no
breakdown of communication between himself and his client,
35
and that in fact, the two were still communicating. Hodge was
present during this conversation and could have requested to
be heard. He could have also spoken on this issue when the
court asked him later about his understanding of his right to
proceed pro se. Finally, his proposed substitute counsel,
Joseph, was also present, given an opportunity to speak, and
did not dispute Jupiter’s version of events. Even now, Hodge
has advanced no legitimate reason for his desire to substitute
counsel justifying a continuance.
We do note that by only gathering information from
counsel whom a defendant wishes to reject, but not the
defendant himself, a trial court creates some risk of
overlooking some latent, legitimate reason for substitution that
is not articulable by his counsel. There is some support for this
position in Welty, where we noted: “[i]f the reasons are made
known to the court, the court may rule without more. If no
reasons are stated, the court then has a duty to inquire into the
basis for the client’s objection to counsel and should withhold
a ruling until reasons are made known.” Welty, 674 F.2d at
188 (quoting Brown v. United States, 264 F.2d 363, 369 (D.C.
Cir. 1959) (en banc) (Burger, J., concurring in part)).
However, it is not the case that a trial court must ceaselessly
pursue the inquiry until some satisfactory reason is given, since
the very purpose of the inquiry is to determine whether any
such reason exists.
Nor do we agree with Hodge that the failure to conduct
a one-on-one colloquy with the defendant is itself reversible
error. 13 This Court did not hold in Welty that such a colloquy
13
Moreover, the District Court is required to consider
“countervailing governmental interests” when faced with a last
36
between the judge and the defendant is required in every
instance, and we do not require that now. Such a per se
requirement would be encroaching into the province of the trial
judge. We recognize that the District Court can ascertain
whether good cause exists by using various sources, and we
decline to require that in every instance, it must question the
defendant directly. Therefore, the District Court did not abuse
its discretion in denying the motion to substitute counsel.
IV.
Hodge challenges the District Court’s refusal to strike
three prospective jurors for cause. In particular, Hodge claims
that two of the prospective jurors knew the shooting victims
and the third harbored bias because her father had been
murdered. “We review the district court’s conduct of voir dire
for abuse of discretion.” Butler v. City of Camden, City Hall,
352 F.3d 811, 814 n.4 (3d Cir. 2003).
minute request for substitution of counsel and a continuance.
Goldberg, 67 F.3d at 1098. Joseph asked that opening
statements take place the following morning. Although the
requested continuance was a short one, it nevertheless risked
disrupting the court’s administration. The District Court also
observed that Joseph was not fully ready for trial, after Joseph
represented that he had received discovery materials from
Jupiter just days before and would have preferred an extra
week. For this additional reason, the District Court’s balancing
of various factors, including “the efficient administration of
criminal justice; the accused’s rights, including the opportunity
to prepare a defense; and the rights of other defendants
awaiting trial who may be prejudiced by a continuance,” id., to
deny substitution was not an abuse of discretion.
37
Hodge does not advance any claim that any of the jurors
who were actually empaneled were biased, and therefore this
claim fails. We need not reach the question of whether the
three potential jurors should have been stricken for cause
because Hodge exercised his peremptory strikes, and none
ultimately served on the jury. “So long as the jury that sits is
impartial . . . the fact that the defendant had to use a peremptory
challenge to achieve that result does not mean the Sixth
Amendment was violated.” United States v. Martinez-Salazar,
528 U.S. 304, 313 (2000) (quoting Ross v. Oklahoma, 487 U.S.
81, 88 (1988)). Thus, Hodge cannot prevail.
V.
We next turn to Hodge’s trial-evidence related
challenges on appeal.
A.
Hodge first argues that the testimony of eyewitness
Officer Schneider, in which she referred to her knowledge of
him as unemployed, was irrelevant and prejudicial. He also
challenges the Government’s closing statement, which referred
to this aspect of Schneider’s testimony. 14
We hold that the admission of Schneider’s testimony
was not plain error. Schneider, who was an off-duty police
14
We review for plain error when, as here, there is no
contemporaneous objection to admission of evidence or
counsel’s comments about evidence during a summation.
Langbord v. U.S. Dep’t of Treasury, 832 F.3d 170, 192 n.12
(3d Cir. 2016) (en banc); United States v. Christie, 624 F.3d
558, 567 (3d Cir. 2010).
38
officer and an eyewitness to the crime, identified Hodge and
testified as to the basis of her knowledge of Hodge’s identity.
She stated that when she first saw Hodge at the shopping
center, she noticed him because she knew him to be someone
who frequented the area, and that she recalled thinking he may
have obtained employment. Admission of this testimony was
not erroneous as it increased the probative value of Schneider’s
correct identification of Hodge, which was also the critical
issue of fact in this case. Moreover, even if admission of the
testimony were in error, the error was not plain because it was
not “clear or obvious, rather than subject to reasonable
dispute.” Puckett, 556 U.S. at 135.
Relatedly, the prosecutor’s reiteration of Schneider’s
testimony during closing statements does not constitute a basis
for reversal. Nothing that the prosecutor said fell outside the
scope of Schneider’s testimony, and re-presentation of the
testimony was not inappropriate in this case. Indeed, it is
fundamental that counsel presenting a summation is free to
repeat the evidence and even “argue reasonable inferences
from the evidence,” as long as counsel refrains from misstating
the evidence. United States v. Fulton, 837 F.3d 281, 306 (3d
Cir. 2016) (quoting United States v. Carter, 236 F.3d 777, 784
(6th Cir. 2001)). Hodge has not demonstrated any plain error,
and therefore this claim fails.
B.
Hodge next argues that there was insufficient evidence
of premeditation to convict him of Counts 3 and 6, firearms
offenses under 18 U.S.C. § 924(c) and 14 V.I.C. § 2253(a),
respectively. Both Counts 3 and 6 contain as the predicate
39
offense the crime of violence of attempted murder. Hodge was
acquitted of Count 5 (attempted first degree murder of Powell).
When faced with a sufficiency-of-the-evidence
challenge, “[w]e review the evidence in the light most
favorable to the government. We do not reweigh the evidence
or assess witness credibility.” United States v. McKee, 506
F.3d 225, 232 (3d Cir. 2007). Therefore, “our inquiry is limited
to determining whether the jury’s verdict is permissible.” Id.
at 233. To do so, we ask whether “a rational trier of fact could
have found [the] defendant guilty beyond a reasonable doubt,
and the verdict is supported by substantial evidence.” Id. at
232 (alterations in original) (quoting United States v. Coyle, 63
F.3d 1239, 1243 (3d Cir. 1995)).
Hodge’s challenge focuses exclusively on the
sufficiency of the trial evidence as to the element of
premeditation in the attempted murder predicate of the
firearms offenses in Counts 3 and 6. He argues the trial
evidence does not support that he “planned and reflected” on a
killing. Hodge Br. 61 (quoting Brown v. People, 54 V.I. 496,
507 (2010)). We disagree. Premeditation is almost always
proven through circumstantial evidence. In this case, the jury
could have reasonably inferred premeditation from Hodge’s
preparation and use of a firearm. 15 Indeed, in Brown, the court
held:
15
Evidence that Hodge sought to conceal his involvement in
the attempted murder and robberies by hiding in the bushes and
shedding his clothing also support the verdict. Contrary to
Hodge’s contention, we have held that conduct after the
commission of a crime can support a finding of premeditation.
See Gov’t of the V.I. v. Roldan, 612 F.2d 775, 782 (3d Cir.
40
It is not required, however, that the accused shall
have brooded over his plan to kill or entertained
it for any considerable period of time. Although
the mental processes involved must take place
prior to the killing, a brief moment of thought
may be sufficient to form a fixed, deliberate
design to kill.
Brown, 54 V.I. at 507 (emphasis omitted) (quoting Gov’t of
the V.I. v. Martinez, 780 F.2d 302, 305 (3d Cir. 1985)); see
also Gov’t of the V.I. v. Charles, 72 F.3d 401, 411 (3d Cir.
1995) (“A brief moment of thought can be sufficient. Based on
the use of a knife and the absence of any provocation or display
of emotion by [the defendant], the jury could reasonably infer
that [the defendant], in this brief moment, formulated a
deliberate intent to kill [the victim].”).
For these reasons, Hodge’s sufficiency-of-the-evidence
challenge fails.
VI.
Hodge also challenges several components of the jury
charge. First, Hodge argues that the jury instructions as to
Counts 3 and 6 were erroneous because in describing the
predicate offense of attempted murder, the District Court did
not give a separate definition of attempted murder, did not
specifically reference Counts 5 and 12 as the predicate crimes,
and did not reference specific victims. In the alternative, he
1979) (noting that evidence that the defendant attempted to
conceal the victim’s body and the murder weapon and lied to
law enforcement supported a verdict of premeditated murder).
41
argues that even if the jury instructions on Counts 3 and 6 were
adequate, the instructions on Count 5 were insufficient because
they did not contain a definition of “willfully” or
“deliberately.”
Hodge contends that the District Court erred by
providing confusing jury instructions for Counts 3 and 6. He
principally argues that the District Court (1) did not give a
definition of attempted murder when discussing the elements
of these offenses which were predicated on attempted murder,
(2) did not reference where in the Information the attempted
murder charge could be found, and (3) did not specify to which
victim these attempted murders referred.
Hodge has failed to identify any error. 16 The District
Court defined attempted murder when instructing the jury on
Counts 5 and 12 and was not required to repeat the definition
each time attempted murder was mentioned as an element of a
crime. A jury is presumed to follow the instructions given by
the judge, Richardson v. Marsh, 481 U.S. 200, 211 (1987), and
as such, we presume the jury followed the District Court’s
instructions as to attempted murder in both its direct iteration
in Counts 5 and 12 as well as upon successive reference in
other counts.
The second and third arguments are also without merit,
and we identify no error in the Court’s instructions. The
District Court’s instructions for Count 3 and 4 (§ 924(c) counts
16
Moreover, as the District Court noted, Hodge did not raise
these objections at trial. See D. Ct. Op. (D. Ct. Dkt. 101, Apr.
15, 2016) at 33; Hodge Mot. to Vacate, (D. Ct. Dkt. No. 89,
Jun. 24, 2015) at 2.
42
based on the attempted murders of Powell and Bougouneau,
respectively) specified that the Government must prove that
“the defendant committed an attempted murder as charged in
either Counts 5 or 12 of the information.” App. 90. While the
District Court repeated the instructions for Counts 3 and 4
moments later and did not refer to Counts 5 and 12 in the
second reading, the totality of the instructions gave jurors
sufficient guidance based on the law. United States v. Leahy,
445 F.3d 634, 642 (3d Cir. 2006) (“[W]hen we consider jury
instructions we consider the totality of the instructions and not
a particular sentence or paragraph in isolation.” (quoting
United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995))),
abrogated on other grounds by Loughrin v. United States, 134
S. Ct. 2384 (2014).
Similarly, although the District Court did not again refer
to Counts 5 and 12 in giving instructions for Counts 6 and 13
(14 V.I.C. § 2253(a) firearms counts based on the attempted
murders of Powell and Bougouneau, respectively), Hodge has
identified no authority requiring that the court do so. There
was only evidence of two victims of attempted murder, and
Hodge was prosecuted for the attempted murders of both. The
Counts in the Information where the attempted murders were
charged were already stated to the jury. We therefore conclude
that Hodge’s challenges to the jury instructions for Counts 3
and 6 are meritless.
A.
Hodge argues in the alternative that the jury instructions
for Count 5 (attempted murder of Powell) should have
contained definitions of “willful” and “deliberate” in order for
the jury properly to convict him on Counts 3 and 6, the firearms
43
offenses predicated on attempted murder. He acknowledges
that the District Court did define “premeditated,” but alleges
error in the failure to define “willful” and “deliberate.” 17
This argument does not survive plain error review.
Even if we assume the premise that the District Court
committed error in not defining those two terms, we could not
characterize such error as plain or affecting substantial rights.
Gov’t of the V.I. v. Rosa, 399 F.3d 283, 293 (3d Cir. 2005). It
is hard to reconcile how a crime could be premeditated —
“conceive[d] the design or plan to kill” — and not be
“deliberate” or “willful” about the act of attempted killing. In
other words, when viewed in its totality, the jury instructions
provided jurors with sufficient basis for evaluating the
elements of attempted murder with the proper understanding
of the element of intent required for conviction.
Hodge is correct that we have defined deliberateness
with more detail in the past. Martinez, 780 F.2d at 305 (“A
deliberate killing is one which has been planned and reflected
upon by the accused and is committed in a cool state of the
blood, not in sudden passion engendered by just cause of
provocation.” (quoting Gov’t of the V.I. v. Lake, 362 F.2d 770,
776 (3d Cir. 1966)). However, in this case there is no evidence
regarding provocation or sudden passion. Therefore, the
District Court’s decision to omit that language was not plainly
erroneous.
17
Hodge appears to also make the same argument as it relates
to Count 4 (§ 924(c) charge predicated on attempted murder of
Bougouneau) and Count 12 (attempted murder of
Bougouneau). Since Hodge was acquitted of both those
counts, we do not address them here.
44
VII.
For the reasons stated above, we will affirm the District
Court’s judgment of conviction and sentence on Counts 1, 2,
and 3. We will also affirm the District Court’s judgment and
commitment, except that we will remand to the District Court
to vacate two of the three offenses charged in Counts 6, 7, and
8.
45