UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
June 21, 1985
GOVERNMENT OF THE VIRGIN ISLANDS, APPELLEE
LESLIE A. JOSEPH, APPELLANT
On Appeal from the District Court of the Virgin Islands Division of St. Croix (D.C. Crim. No. 82-00078)
Opinion OF THE COURT
BECKER, Circuit Judge.
Appellant Leslie A. Joseph was charged by information in the District Court of the Virgin Islands with the crime of rape in the first degree. V.I. Code Ann. tit. 14, § 1701 (1964),*fn1 but was convicted by a jury of the crime of rape in the third degree, V.I. Code Ann. tit. 14, § 1703 (Supp. 1984).*fn2 Joseph contends that his conviction of an offense not charged in the information must be overturned. The government counters that the conviction was proper because third degree rape is a lesser included offense of first degree rape. We conclude that under the governing test of Government of the Virgin Islands v. Bedford, 671 F.2d 758 (3d Cir. 1982), third degree rape is not an offense included in first degree rape because it requires proof of an element not required to prove first degree rape -- that the victim was over fourteen but under sixteen years of age. Appellant's conviction of third degree rape thus reflects a variance between the information and verdict in violation of his right to be informed of the charge against him in advance of trial set forth in the sixth amendment to the United States Constitution and the Virgin Islands Bill of Rights, 48 U.S.C. § 1561 (1982). We hold that the variance between the information and the verdict constituted plain error requiring reversal of the conviction despite appellant's failure to object in the district court. Accordingly, we will reverse the judgment of the district court and remand with a direction to enter a judgment of acquittal.
On June 4, 1982, the United States Attorney charged appellant Joseph with perpetrating an act of sexual intercourse with June Hassan, a female not his wife, by forcibly overcoming her resistance in violation of V.I. Code Ann. tit. 14, § 1701(2). The case proceeded to trial, and at the close of all the evidence*fn3 the district court instructed the jury in the crimes of rape in the first degree and rape in the third degree, V.I. Code Ann. tit. 14, § 1703. Appellant's counsel did not object. The jury returned a verdict of guilty of rape in the third degree. Appellant then moved for judgment of acquittal on the ground, inter alia, that rape in the third degree is not a lesser included offense of rape in the first degree. The district court denied the motion and sentenced appellant to the maximum term of one-year imprisonment (consecutive to an unrelated term of incarceration). Joseph appeals.
"[A] defendant may be found guilty of an offense necessarily included in the offense charged. . . ." Fed. R. Crim. P. 31(c); see also Government of the Virgin Islands v. Aquino, 378 F.2d 540, 554 (3d Cir. 1967). For the third degree rape to be deemed an included offense of first degree rape, the third degree rape must necessarily be perpetrated in order that first degree rape be perpetrated. See id. ("the lesser offense must be such that it impossible to commit the greater offense without having first committed it"). Whether an offense is necessarily included in a greater offense is determined by the test announced in Government of the Virgin Islands v. Bedford, 671 F.2d 758 (3d Cir. 1982):
We adhere to the traditionally accepted test, derived from Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), for determining whether a particular crime is a lesser included offense of another crime. A lesser included offense of another crime. a lesser included offense is one that does not require proof of any additional element beyond those required by the greater offense. See also Brown v. Ohio, 432 U.S. 161, 64-69, 97 S. Ct. 2221, 2224-27, 53 L. Ed. 2d 187 (1977). The elements of the offense are compared in the abstract, without looking tot he facts of the particular case. United States v. Lampley, 573 F.2d 783, 789-90 (3d Cir. 1977); Government of the Virgin Islands v. Smith, 558 F.2d 691, 695-96 (3d Cir. 1977).
Id. at 765 (emphasis in original).
A conviction for third degree rape, defined in § 1703, requires that the jury find the alleged victim to be under sixteen years of age but over fourteen years of age. First degree rape, defined in § 1701, does not have an age element. Under the Bedford test, therefore, third degree rape is clearly not a lesser included offense of first degree rape.*fn4 There was thus a variance between the information, which charged first degree rape, and the jury's verdict of guilty of rape in the third degree. We turn now to consideration of the consequences of such a variance.
An accused in a criminal case has "the right . . . to be informed of the nature and cause of the accusation" against him. U.S. Const. amend. VI; Virgin Islands Bill of Rights, 48 U.S.C. § 1561 (1982). A variance between the information and the verdict violates this fundamental right, and a verdict founded upon a crime not charged must be set aside, Aquino, 378 F.2d at 554.
The facts of this case run virtually on all fours with those of Aquino. In that case, the defendant and a co-defendant were charged with first degree rape. At the conclusion of the evidence, counsel for the government urged the jury in its summation to find Aquino guilty as an accessory after the fact in the event that they did not believe him guilty of first degree rape. The jury in its verdict expressly found Aquino "'guilty of the lesser crime to wit accessory after the fact.'" Id. at 552. This court held that accessory after the fact is not a lesser included offense of first degree rape, and that the variance between the information and the verdict required entry of a judgment of acquittal. We pointed out the fundamental unfairness in convicting the defendant of a crime not charged: "One who is charged with having committed the offense of rape can hardly know that he should prepare a defense to a claim that he had assisted someone else, who had committed that he had assisted someone else, who had committed the crime, to avoid apprehension or punishment." Id. at 554.
Here Joseph was charged with forcibly raping Ms. Hassan. The information did not put him on notice put him on notice that he would have to prepare a defense to the claim that, even if Ms. Hassan voluntarily consented tot he act of intercourse, she was between the ages of fourteen and sixteen when it occurred. By permitting the jury to convict Joseph of third degree rape -- a strict liability offense -- the court rendered appellant's theory of defense -- consent -- totally ineffective. Moreover, because age was not identified as an issue in the case prior to the jury charge, the only evidence of Ms. Hassan's age was her seemingly unimportant testimony that she was fifteen at the time the alleged rape took place.*fn5 Although unlikely, it is certainly possible that Ms. Hassan erred as to her age at the relevant time and that Joseph could have disputed her testimony had he been aware of its importance and given time to prepare an appropriate defense. The variance between the information and the verdict thus violated Joseph's right to be notified of the charge against him so that he could adequately defend himself at trial.*fn6
The government's fall-back position is that, assuming a variance between the information and the verdict, appellant waived his right to appeal on this ground because he failed to object at trial to the district court's jury instruction on third degree rape. Rule 30 of the Federal Rules of Criminal Procedure states that "no party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the ground of his objection." The government relies on United States v. Provenzano, 334 F.2d 678, 690 (3d Cir.), cert. denied, 379 U.S. 947, 13 L. Ed. 2d 544, 85 S. Ct. 440 (1964), where we noted:
It is of course fundamental that as a general rule the failure to object to an instruction during a criminal prosecution on the ground urged on appeal, forecloses the party from raising the question before the reviewing court.... The manifest purpose of the rule is to avoid whenever possible the necessity of a timeconsuming new trial by providing the trial judge with an opportunity to correct any mistakes in the charge.
See also United States v Testamark, 570 F.2d 1162, 1168 (3d Cir. 1978); Government of the Virgin Islands v. Navarro, 513 F.2d 11, 16 (3d Cir.), cert. denied, 422 U.S. 1045, 45 L. Ed. 2d 698, 95 S. Ct. 2662 (1975); United States v. Kenny, 462 F.2d 1205, 1228 (3d Cir.), cert. denied sub nom. Murphy v. United States, 409 U.S. 914, 93 S. Ct. 233, 34 L. Ed. 2d 176 (1972).
The government's position cannot prevail. a defendant may preserve an issue for appeal, despite the failure to object, if the district court's action constituted plain error affecting substantial rights. Fed. R. Crim. P. 52(b); see United States v. Logan, 717 F.2d 84, 91 n. 13 (3d Cir. 1983); United States v. Palmeri, 630 F.2d 192, 201 (3d Cir. 1980), cert. denied, 450 U.S. 967, 67 L. Ed. 2d 616, 101 S. Ct. 1484 (1981); United States v. Gallagher, 576 F.2d 1028, 1043-44 (3d Cir. 1978), cert. dismissed, 444 U.S. 1040, 62 L. Ed. 2d 675, 100 S. Ct. 713 (1980). According to United States v. Frady, 456 U.S. 152, 163, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982), recourse may be had when "a trial [is] infected with error so 'plain' the trial judge and prosecutor were derelict in countenancing it ...." See also United States v. Dalfonso, 707 F.2d 757, 761 (3d Cir. 1983) ("the error must be egregious or otherwise constitute a manifest miscarriage of justice"). Whether in any given instance the claims error, which was not preserved, will be of sufficient dimension to result in a miscarriage of justice and thus constitute plain error, is a question to be determined in the individual case. See United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985).
The district court's instruction to the jury on rape in the third degree falls within the plain error doctrine. The variance between the information and the verdict, facilitated by the court's jury instruction, left appellant without the ability to defend himself appropriately and thus constituted "a manifest miscarriage of justice." Dalfonso, 707 F.2d at 761.
Since in the instant case the error in the court's charge has resulted in a miscarriage of justice and meets all other criteria for our review under plain error, our decision here should not be taken to vitiate the general rule that objections to any portion of the charge must be timely raised before the trial court. See United States v. Graham, 758 F.2d 879 (3d Cir. 1985); United States v. Gibbs, 739 F.2d 838 (3d Cir. 1984) (in banc), cert. denied, 469 U.S. 1106, 105 S. Ct. 779, 83 L. Ed. 2d 774 (1985). Such a rule, by affording the trial judge an opportunity to correct asserted errors, is designed precisely to prevent the problem presented by this appeal. Had the district court judge been informed of Joseph's objection to the charge, there is little doubt that, in light of the precedents of this court on the basis of which we now reverse, see, e.g., Aquino, the instruction would have been corrected.
The variance between the information and the verdict violated Joseph's fundamental right to be informed of the nature of the accusation against him prior to trial, U.S. const. amend. VI.; 48 U.S.C. § 1561 (1982). Although objection to the jury charge on third degree rape was not interposed at trial, the district court's action amounted to plain error. The verdict finding Joseph guilty of third degree rape, reached after he was charged only with having committed rape in the first degree, must therefore be set aside. Aquino, 378 F.2d at 554.*fn7 Accordingly, we will reverse the judgment of the district court with directions to enter a judgment of acquittal. The mandate shall issue forthwith.