United States v. Richard Hodge, Jr.
2017 U.S. App. LEXIS 17196
| 3rd Cir. | 2017Background
- On Dec. 3, 2013, Richard Hodge allegedly shot armored-transport employees Asim Powell and Clement Bougouneau during a K‑Mart parking‑lot robbery; both victims survived and Hodge was later arrested with clothing and gunpowder residue nearby. An eyewitness, off‑duty officer Latoya Schneider, identified Hodge at trial.
- A 15‑count Information charged Hodge with federal and Virgin Islands offenses including Hobbs Act robbery, multiple 18 U.S.C. § 924(c) counts (firearm use/discharge during crimes of violence), attempted first‑degree murder, multiple Virgin Islands firearms counts under 14 V.I.C. § 2253(a), assaults, robbery, and reckless endangerment; one count was dismissed pretrial and the jury acquitted Hodge on several attempted‑murder counts.
- Hodge sought last‑minute substitute counsel on the morning trial began; the District Court denied the request after colloquy with retained counsel and proposed substitute counsel; Hodge proceeded with his Federal Public Defender.
- The jury convicted Hodge on ten counts, and the District Court imposed consecutive federal and territorial sentences (including consecutive mandatory minimum § 924(c) terms and multiple Virgin Islands terms). Hodge appealed on double jeopardy/multiplicity, counsel substitution, juror challenges, evidentiary rulings, sufficiency of evidence, and jury‑instruction grounds.
- The Third Circuit agreed that multiple convictions under 14 V.I.C. § 2253(a) (the territorial firearms statute) based on a single possession violated territorial law and remanded to vacate two of the three § 2253(a) convictions, but otherwise affirmed the District Court’s convictions and sentences (including both § 924(c) convictions).
Issues
| Issue | Hodge's Argument | Government's/Respondent's Argument | Held |
|---|---|---|---|
| Whether concurrent federal § 924(c) and territorial § 2253(a) convictions (based on same predicate) violate double jeopardy | §924(c) and §2253(a) cannot both stand if they depend on the same use of a firearm | The statutes contain different elements (unauthorized in §2253(a); §924(c) requires a "real" firearm and other elements), so both convictions permitted | Affirmed: dual sovereignty issue resolved by treating V.I. and U.S. as one sovereignty, but Blockburger shows each statute has distinct elements so convictions are not multiplicitous |
| Whether multiple §924(c) convictions (Counts 2 & 3) based on a single criminal episode violate double jeopardy / require lenity | §924(c) ambiguous; rule of lenity should preclude multiple §924(c) punishments for one firearm use | Precedent (Casiano) permits multiple §924(c) convictions when based on distinct predicate offenses or distinct uses during the same episode; Hodge had separate predicate crimes (robbery and attempted murder) and multiple shots were fired | Affirmed: two §924(c) convictions sustained (Casiano controls; Diaz is distinguishable) |
| Whether multiple convictions under 14 V.I.C. § 2253(a) (Counts 6,7,8) arising from one possession but different predicate crimes are multiplicitous under territorial law §104 | §2253(a) prosecutes possession once; multiple convictions/punishments violate §104 (and Double Jeopardy) | Government urged separate punishments tied to predicate crimes | Reversed in part: the court held unit of prosecution under §2253(a) is the (unauthorized) possession/holding of a firearm, with crimes‑of‑violence language as an enhancement; §104 bars multiple §2253(a) punishments for the same possession — remand to vacate two of three §2253(a) convictions |
| Whether District Court abused discretion by denying last‑minute substitute counsel/continuance | Denial violated Sixth Amendment right to counsel of choice; court should have directly questioned Hodge | Court properly applied Welty balancing, questioned current and proposed counsel, found no good cause for continuance, and offered self‑representation | Affirmed: no abuse of discretion; no requirement to conduct one‑on‑one colloquy with defendant in every case; Welty factors satisfied |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (tests whether two statutory offenses require proof of different elements)
- Casiano v. United States, 113 F.3d 420 (3d Cir.) (separate §924(c) convictions allowed for distinct predicate crimes/uses)
- Diaz v. United States, 592 F.3d 467 (3d Cir.) (applied rule of lenity where §924(c) ambiguity supported vacating a second §924(c) conviction)
- Ball v. United States, 470 U.S. 856 (concurrent sentence on second conviction does not cure multiplicity; second conviction has collateral consequences)
- United States v. Kennedy, 682 F.3d 244 (3d Cir.) (discussion of multiplicity and Double Jeopardy principles)
- Welty v. United States, 674 F.2d 185 (3d Cir.) (procedure for last‑minute substitution of counsel and continuance analysis)