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United States v. Hodge

United States Court of Appeals, Third Circuit

September 6, 2017

UNITED STATES OF AMERICA
v.
RICHARD ANTONIO HODGE, JR., Appellant

          Argued: December 15, 2016

         On 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

          David W. White, Esq. (ARGUED) Nelson L. Jones, Esq. Office of United States Attorney Counsel for Appellee

          Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.

          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.

         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;
- 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);
- 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 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 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 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.

         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 ...


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