Appeal from the United States District Court for the District of the Virgin Islands, St. Thomas, D.C. Crim. No. 85-00046.
BEFORE: SLOVITER, STAPLETON and ROSENN, Circuit Judges
STAPLETON, Circuit Judge:
Leo Douglas was convicted of attempted aggravated rape under 14 V.I.C. §§ 331, 1700(c) (Count I) and possession of a deadly weapon during the commission of a crime of violence in violation of 14 V.I.C. § 2251(a)(2)(B) (Count II). Douglas was sentenced to 3.5 years imprisonment for Count I and 2.5 years imprisonment for Count II, with terms to run concurrently. He appeals the convictions on several grounds, arguing that he district court's errors included: 1) allowing him to be convicted of a different crime than that charged in the information, 2) misconstruing the statutory term "crimes of violence" ton include sodomitic rape, and 3) failing to give a jury instruction concerning unlawful sexual contact on the basis of 14 V.I.C. § 332. We reject all of Douglas' challenges to the convictions.
Douglas also contends that the judge erred in construing 14 V.I.C. § 331 to require a minimum sentence for attempts to commit criminal acts. On this issue, we hold that the district court misconstrued the criminal code, and we remand for resentencing in light of our holding that 14 V.I.C. § 331 does not impose any minimum sentence for attempt crimes.
The government appeals on the narrow issue of whether the judge erred in failing to impose the sentence for the possession of a deadly weapon charge consecutively with the attempted aggravated rape sentence. We find that this court has no jurisdiction to entertain the government's appeal of the sentencing order. In the alternative, the government petitions for a writ of mandamus. We decline to issue such a writ because we hold that the statute in question, 14 V.I.C. § 2251, does not mandate imposition of consecutive sentences.
Douglas offered to give a 14 year old male minor (the victim) a ride from school to his home. The victim accepted and got into Douglas' van. At several times during the automotive trip, Douglas displayed a knife and threatened to injure the victim if he tried to escape. The victim testified that, while driving, Douglas touched the victim on his "private," presumably his penis. Eventually, Douglas, took the victim to a deserted building, where Douglas unzipped his own pants and tried, according to the victim, "to put his private by my bun." Trial Transcript at 35. Douglas next put his weight on the victim, pinning him against the wall, removed his own pants and the victim's pants and rubbed the victim's flaccid penis against his rear end. The victim testified that he did not know whether his penis was ever inserted in Douglas' anus.
On or about the 29th day of April, 1985, in the Virgin Islands of the United States, Judicial Division of St. Thomas and St. John, LEO DOUGLAS, while threatening the use of a deadly weapon, to wit: a knife, did perpetrate an act of sodomy, with a person, to wit: a male minor 14 years old, when his resistance was prevented by fear of immediate and great bodily harm which he had reasonable cause to believe would be inflicted upon him, in violation of Title 14, Virgin Islands Code, Section 1700(c).
On or about the 29th day of April, 1985, in the Virgin Islands of the United States, Judicial Division of St. Thomas and St. John, LEO DOUGLAS, with intent to use same unlawfully against another, to wit: a male minor 14 years of age, did possess a dangerous weapon, a knife, during the commission of a crime of violence, to wit: aggravated rape, in violation of Title 14, Virgin Islands Code, Section 2251(a)(2).
Appendix at 1-2. The criminal law of the Virgin Islands defines rape and aggravated rape to include both sexual intercourse and sodomy. 14 V.I.C. §§ 1700-1703 (Supp. 1985).
In the government's opening statement, it claimed that its evidence would support the entire, above-related narrative, including both Douglas' abortive attempt to penetrate the victim and his subsequent actions in trying to force a penetration of himself by the victim. The direct and cross-examination of the victim covered the entire course of events. At the close of the government's case, Douglas moved for acquittal, arguing, inter alia, that sodomy under the Virgin Islands rape law did not include forced penetration of the accused by the victim. The court agreed with Douglas' statutory interpretation, holding that sodomy includes only penetration by the accused. The district court decided, however, that there was sufficient evidence of an attempted aggravated sodomy, i.e., Douglas' attempted penetration of the victim, to allow the government to go forward with the prosecution. The jury returned verdicts of guilty on both the amended Count I and Count II.
The district court had subject matter jurisdiction over this case under the Revised Organic Act, 48 U.S.C. § 1612, and 4 V.I.C. § 76. This court has jurisdiction over Douglas's appeal of the conviction and sentencing order under 28 U.S.C. § 1291.
Douglas argues that the district court erred in allowing a charge of attempted aggravated rape to be substituted for the charge of aggravated rape in Count I of the information. The government asserts that Douglas' conviction on a charge of attempted aggravated rape was permissible as a conviction on a letter included offense, as authorized by Fed. R. Crim. P. 31(c), and, alternatively, that there was in effect an amendment of the information as allowed by Fed. R. Crim. P. 7(e). Our review of the application of the Federal Rules to the facts of this case is plenary. We do not reach the government's second argument because we agree with its first.
Rule 31(c) states: "The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense." Conceptually, there is no doubt that attempted aggravated rape is an "attempt to commit the offense charged," specifically aggravated rape. Douglas argues, however, that the "offense charged" in the information in this case involved the victim's penetration of Douglas and that the attempted penetration of the victim by Douglas involved an independent set of facts. He urges as a matter of law that factually independent lesser offenses are not encompassed by Rule 31(c).*fn1
We need not reach the merits of Douglas' legal assertion because we do not agree with his premise that he information charged with him forcing the victim to penetrate him. We conclude not only that the information is literally consistent with the theory that Douglas committed forcible sodomy by penetrating the victim, but also that it is far more reasonable to read a forcible sodomy information as the district court did than as Douglas purports to have done. Moreover, as Douglas successfully argued in the district court, the court's construction is confirmed by the statute that he was alleged in the information to have violated. Count I of the information charges that Douglas perpetrated an act of sodomy with a 14 year old male while threatening the use of a knife in violation of § 1700(c). The statute defines "sodomy" as "oral sex, i.e., cunnilingus or fellatio, or anal intercourse, i.e., any insertion, however slight, of any part of a person's body or of any object into the anal opening of another person's body, excluding such insertion for medical treatment or examination." 14 V.I.C. § 1699(e) (Supp. 1985). As the district court properly concluded, this definition includes penetration by the accused but not penetration of the accused by the victim.
On this basis, we conclude that Count I of the information, when read in conjunction with the statute cited therein, charges Douglas with aggravated rape on the theory that he penetrated the victim. Consequently, the elements of the crime charged in the information and the lesser included offense substituted by the judge in his charge were not factually independent, but were instead identical except for the element of actual penetration by Douglas. Under these circumstances, Fed. R. Crim. P. 31(c) allowed the ...