Argued: December 15, 2016
Appeal from the District Court of the Virgin Islands (No.
3-14-cr-00001-001) District Judge: Honorable Curtis V. Gomez
Richard F. Della Fera, Esq. (ARGUED) Entin & Della Fera
Counsel for Appellant
W. White, Esq. (ARGUED) Nelson L. Jones, Esq. Office of
United States Attorney Counsel for Appellee
Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.
CHAGARES, Circuit Judge.
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
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.
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.
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.
- Count 2, Use and Discharge of a Firearm During the
Commission of a Crime of Violence (robbery), 18 U.S.C. §
- 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.
- Count 7, Using an Unlicensed Firearm During Commission of a
Crime of Violence (first degree assault of Powell), 14 V.I.C.
- Count 8, Using an Unlicensed Firearm During Commission of a
Crime of Violence (robbery of Powell), 14 V.I.C. §
- 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).
("App.") 13-28. The District Court dismissed Count
10 prior to trial because it contained an error.
was represented by Federal Public Defender Omodare Jupiter.
Prior to trial, Hodge indicated he wanted substitute counsel,
but none was arranged at that time. 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.
District Court engaged in the following colloquy with
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 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
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
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
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 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.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.
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
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.
Hodge challenged Juror 59, who stated she knew both
Bougouneau and Powell through working at a bank that uses
Ranger for transporting money.
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.
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 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.
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