USA v. HODGE JR.,

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
UNITED STATES OF AMERICA and the
PEOPLE OF THE VIRGIN ISLANDS,
Plaintiff,
v.
RICHARD ANTONIO HODGE, JR.,
Defendant.
)
)
)
)
) Criminal No. 2014-01
)
)
)
)
)
)
)
)
ATTORNEYS:
Nelson Luis Jones, Esq., AUSA
U.S. Attorney's Office
St. Thomas, VI
Ronald Sharpe, Esq., USA
United States Attorney’s Office
St. Thomas, VI
For the United States of America,
Omodare B. Jupiter, FPD
Gabriel J. Villegas, AFPD
Office of the Federal Public Defender
St. Thomas, VI
For the defendant, Richard Antonio Hodge, Jr.
MEMORANDUM OPINION1
GÓMEZ, J.
Before the Court is the motion of Richard Hodge (“Hodge”)
for acquittal pursuant to Rule 29 of the Federal Rules of
Criminal Procedure. Also before the Court are Hodge’s two
1 The Court previously ruled on the motion for acquittal, motions for new
trial, and motion to vacate discussed in this memorandum opinion. This
memorandum opinion outlines the reasons for the Court’s rulings.
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 1 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 2
motions for new trial pursuant to Rule 33 of the Federal Rules
of Criminal Procedure. In addition, before the Court is Hodge’s
motion to vacate.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 3, 2013, Asim Powell (“Powell”), an employee of
Ranger American Armored Services, went to pick up monetary
deposits from a Kmart department store located in Lockhart
Gardens Shopping Center (“Lockhart Gardens”) on St. Thomas.
Powell left Kmart, with a black bag containing monetary
deposits. Upon exiting Kmart, Powell saw his supervisor Clement
Bougouneau (“Bougouneau”) standing in front of Furniture Inn, a
furniture store located next to Kmart. Powell proceeded to speak
with Bougouneau.
An armed gunman with his face partly covered then
approached the two men and shot Powell in the back. Powell fell
to the ground. When the gunman sought to take the bag with the
monetary deposits, Powell resisted. The gunman then shot Powell
in the hip. After Powell released the bag, the gunman shot him
in the wrist. The gunman also shot Bougouneau in the groin.
The gunman then fled. Bougouneau and a Virgin Islands
police officer, Latoya Schneider (“Schneider”), pursued the
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 2 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 3
gunman. Bougouneau and Schneider halted their pursuit when the
gunman ran into Oswald Harris Court, a public housing project,
which is located across the street from Lockhart Gardens.
When officers arrived at Oswald Harris Court, they found
Richard Hodge (“Hodge”), shirtless, hiding in the bushes located
at the east end of Oswald Harris Court. Hodge was subsequently
arrested. Officers recovered a black ski mask, t-shirt, and
jacket near the area where Hodge was found.
Hodge was then charged in a fifteen-count information with
crimes related to this incident. The Court dismissed Count Ten
before trial. The matter then proceeded to a jury trial on June
9, 2014. At trial, Hodge was found guilty of the following
counts of the information: Count One, interfering with commerce
by robbery in violation of 18 U.S.C. § 1951; Count Two,
discharge of a firearm during a robbery in violation of 18
U.S.C. § 924(c)(1)(A); Count Three, discharge of a firearm
during the attempted murder of Powell in violation of 18 U.S.C.
§ 924(c)(1)(A); Count Six, using an unlicensed firearm during
the attempted murder of Powell in violation of 14 V.I.C. §
223(a); Count Seven, using an unlicensed firearm during the
first-degree assault of Powell in violation of 14 V.I.C. §
223(a); Count Eight, using an unlicensed firearm during a first-
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 3 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 4
degree robbery in violation of 14 V.I.C. § 223(a); Count Nine,
first-degree assault by shooting Powell in violation of 14
V.I.C. § 295(1); Count Eleven, first-degree robbery in violation
of 14 V.I.C. §§ 1861 and 1862(1); Count Fourteen, first-degree
assault by shooting Bougouneau in violation of 14 V.I.C. §
295(1); and Count Fifteen, reckless endangerment in the first
degree in violation of 14 V.I.C. § 625(a).
On June 25, 2014, Hodge filed a motion for acquittal.
Thereafter, Hodge filed two motions for a new trial. At Hodge’s
first sentencing hearing, the Court denied those motions.
The sentencing was then continued. Shortly before the
second sentencing hearing, Hodge filed a motion to vacate. At
the second sentencing hearing, that motion was also denied.
The motion for acquittal, motions for new trial, and motion
to vacate were denied for the reasons stated herein.
II. DISCUSSION
A. Rule 29
A judgment of acquittal is appropriate under Rule 29 if,
after reviewing the record in a light most favorable to the
prosecution, the Court determines that no rational jury could
find proof of guilt beyond a reasonable doubt. United States v.
Bobb, 471 F.3d 491, 494 (3d Cir. 2006); see also United States
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 4 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 5
v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) (district court must
“‘review the record in the light most favorable to the
prosecution to determine whether any rational trier of fact
could have found proof of guilt beyond a reasonable doubt based
on the available evidence.’”)(quoting United States v. Wolfe,
245 F.3d 257, 262 (3d Cir. 2001)).
An insufficiency finding should be “‘confined to cases
where the prosecution’s failure is clear.’” Smith, 294 F.3d at
477 (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir.
1984)). “Courts must be ever vigilant in the context of [Rule]
29 not to usurp the role of the jury by weighing credibility and
assigning weight to the evidence, or by substituting its
judgment for that of the jury.” United States v. Brodie, 403
F.3d 123, 133 (3d Cir. 2005) (citations omitted); see also
United States v. Ashfield, 735 F.2d 101, 106 (3d Cir. 1984)
(“Our task is not to decide what we would conclude had we been
the finders of fact; instead, we are limited to determining
whether the conclusion chosen by the fact finders was
permissible.”).
The government may sustain its burden entirely through
circumstantial evidence. Bobb, 471 F.3d at 494; see also United
States v. Wexler, 838 F.2d 88, 90 (3d Cir. 1988). A motion for
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 5 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 6
acquittal should be granted when there is a “total absence of
evidence that [the] defendant had any connection” with the
crimes alleged and proved. United States v. Darrell, 629 F. 2d
1089, 1091 (5th Cir. 1980) (conviction reversed with directions
to enter judgment of acquittal in mail fraud case, noting there
was little Fifth Circuit precedent saying what evidence would
permit an inference of the defendant’s identity).
B. Rule 33
When deciding a Rule 33 motion for a new trial, the Court
is provided somewhat more discretion than what is afforded under
Rule 29. Under Rule 33, the Court may grant a new trial “in the
interest of justice.” United States v. Charles, 949 F.Supp. 365,
368, 35 V.I. 306 (D.Vi.1996). In assessing such “interest”, the
court may weigh the evidence and credibility of witnesses.
United States v. Bevans, 728 F.Supp. 340, 343 (E.D.Pa.1990),
aff'd, 914 F.2d 244 (3d Cir.1990). If the Court determines that
there has been a miscarriage of justice, the court may order a
new trial. Id. “The burden is on the defendant to show that a
new trial ought to be granted. Any error of sufficient magnitude
to require reversal on appeal is an adequate ground for granting
a new trial.” United States v. Clovis, Crim. No. 1994–11, 1996
U.S. Dist. LEXIS 20808, at *5, 1996 WL 165011 (D.V.I. Feb. 12,
1996).
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 6 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 7
III. ANALYSIS
A. Motion for Judgment of Acquittal
1. Identification of Hodge
Hodge argues that there is insufficient proof that he was
the perpetrator of any of the crimes alleged in the information.
The testimony introduced at trial indicates that the
assailant’s face was not entirely obscured. Schneider testified
that the perpetrator was wearing a hat and had a “shirt or
handkerchief or something over his mouth area and tied to the
back.” (Trial Transcript, June 9, 2014, at 161:19-21.)
Bougouneau testified that the perpetrator had “a handkerchief or
something tied up right this way.” (Id. at 143:13-14.) He also
testified that the perpetrator’s “eye area” was not covered.
(Id. at 143:9-16.)
At trial, Hodge was identified as the gunman by Schneider.
(Id. at 161:11-166:2.) Indeed, she testified that she recognized
the gunman as “Richie” even before he began shooting. (Id. at
162:16-19.) She testified that she knew Hodge from “working in
special ops and dealing with the guys in the area, town,
country, and all the different housing communities and stuff.”
(Id. at 162:4-7.) Schneider also testified that for the past
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 7 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 8
four or five years, when she travelled to her sister’s home, she
usually observed Hodge in the area. (Trial Transcript, June 9,
2014, at 166:16-25.)
In addition, Hodge was found in a bush in the housing
project where the perpetrator ran after committing the crimes.
(See id. at 163:20-164:13, 240:10-11, 241:24-242:9, 254:19-
255:13, 256:2-17.) Hodge was discovered hiding in the bushes
without a shirt or jacket, in the area where a shirt and jacket
were found. (Id. at 184:2-19, 188:18-22, 255:2-256:17.) The
jacket found near Hodge matched the jacket worn by the
perpetrator of the crimes alleged. (Id. at 167:5-168:1, 189:2-
189:16)(stating that the jacket found matched the jacket Hodge
was wearing, although the witness did not recognize the red on
the jacket).
In Government of the Virgin Islands v. Pereira, 302 F.
App'x 72 (3d Cir. 2008), the Third Circuit considered the
sufficiency of identification evidence under similar conditions.
See Virgin Islands v. Pereira, 302 F. App'x 72, 75-76 (3d Cir.
2008). In that case, there were two assailants who were charged
with “assault in the first degree, two counts of possession of a
deadly weapon during the commission of a crime of violence, and
two counts of unauthorized possession of a firearm.” Id. at 74-
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 8 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 9
75. No witness saw the face of the second assailant--Hewitt
Pereira (“Pereira”)--because it was covered by a stocking mask.
Id. Nevertheless, a witness identified the second assailant at
trial. Id. The witness testified that “he was very familiar with
Pereira, having been enemies with him since seventh grade, and
recognized him from his body type and braids.” Id. at 75-76. In
addition, the witness testified that he saw the first assailant
and the man he identified as the second assailant together the
evening of the assault. Id. at 76. The Third Circuit held that
“[v]iewed in the light most favorable to the Government, this
evidence is sufficient to allow a rational trier of fact to
convict . . . [Pereira].” Id.
The evidence presented in this case is similar to the
evidence the Third Circuit held was sufficient in Government of
the Virgin Islands v. Pereira. In both cases, although the
perpetrator’s face was at least partially obscured, the
eyewitness was able to identify the perpetrator. In addition,
the other corroborating circumstantial evidence presented in
this case is as probative as the corroborating circumstantial
evidence presented in Pereira. Here, as in Pereira, the
testimony at trial sufficiently established Hodge’s identity as
the perpetrator.
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 9 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 10
2. Count One: 18 U.S.C. § 1951: Sufficiency of Evidence of
Effect on Interstate Commerce
In Count One, Hodge was charged with delaying, obstructing,
or affecting commerce by robbery in violation of 18 U.S.C. §
1951--Hobbs Act Robbery. 18 U.S.C. § 1951(a) states that:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or
threatens physical violence to any person or
property in furtherance of a plan or purpose to do
anything in violation of this section shall be fined
under this title or imprisoned not more than twenty
years, or both.
18 U.S.C. § 1951.
Hodge argues that the government has failed to produce
sufficient evidence that there was a delay or affect, or attempt
to obstruct and delay, interstate commerce.
The Hobbs Act may be constitutionally applied “to crimes
which have only a de minimis impact on interstate commerce.”
United States v. Clausen, 328 F.3d 708, 710 (3d Cir. 2003)
(citing United States v. Traitz, 871 F.2d 368, 390 (3d
Cir.1989)). Indeed,
this de minimus effect need only be potential.
Urban, 404 F.3d at 766. A jury may infer that
interstate commerce was minimally affected by a
showing that business assets from an establishment
that purchased good or services from out-of-state
were depleted. See United States v. Haywood, 363
F.3d 200, 210 (3d Cir.2004) (holding that interstate
commerce nexus is established where defendant stole
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 10 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 11
less than $100 from bar that imported beer from out-
of-state). Stealing money from a store that buys any
of its goods out-of-state is also sufficient to
demonstrate an effect on interstate commerce. See
United States v. Clausen, 328 F.3d 708, 711-12 (3d
Cir.2003) (finding that an interstate commerce nexus
was established where defendant stole from
businesses that purchased goods from out-of-state or
had customers or employees from out-of-state).
United States v. McNeill, 360 F. App'x 363, 364-65 (3d Cir.
2010).
Here, the store manager of the Lockhart Kmart, Kevin Bryan,
testified that the majority of Kmart’s merchandise in St. Thomas
was transported from a distribution center in Florida. (Trial
Transcript, June 9, 2014, at 88:4-10). Therefore, money was
stolen from a business that receives the majority of its goods
from outside the territory. Such a showing is all that is
required to establish that a robbery affected interstate
commerce. See McNeill, 360 F. App'x at 364-65. Accordingly, the
Court holds that there was sufficient evidence that the robbery
affected interstate commerce.
3. Count Two and Count Three: Local Crimes as Predicate
Offenses Under 18 U.S.C. § 924(c)(1)(a)
18 U.S.C. § 924(c)(1)(a) states that
Except to the extent that a greater minimum sentence
is otherwise provided by this subsection or by any
other provision of law, any person who, during and
in relation to any crime of violence or drug
trafficking crime (including a crime of violence or
drug trafficking crime that provides for an enhanced
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 11 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 12
punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may
be prosecuted in a court of the United States, uses
or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition
to the punishment provided for such crime of
violence or drug trafficking crime--
(i) be sentenced to a term of imprisonment of not
less than 5 years;
(ii) if the firearm is brandished, be sentenced to
a term of imprisonment of not less than 7 years;
and
(iii) if the firearm is discharged, be sentenced
to a term of imprisonment of not less than 10
years.
18 U.S.C. § 924(c)(1)(a).
Count Two and Count Three allege violations of 18 U.S.C. §
924(c)(1)(a) based on violations of local law. Hodge argues that
violations of local law, as a matter of legislative intent, may
not serve as predicate offenses under 18 U.S.C. § 924(c)(1)(a).
Hodge has not, however, identified any ambiguity in the
statute. Indeed, the text of the statute speaks clearly and
unambiguously to the contrary. In title 18, including 18 U.S.C.
§ 924(C)(1), the term “court of the United States” includes the
District Court of the Virgin Islands. 18 U.S.C. § 23 (“As used
in this title, except where otherwise expressly provided the term
“court of the United States” includes . . . the District Court
of the Virgin Islands.”). Hodge may be prosecuted for violations
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 12 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 13
of the Virgin Islands Code in the District Court of the Virgin
Islands. Therefore, under the plain language of 18 U.S.C. §
924(C)(1), Hodge’s violations of the Virgin Islands Code may
serve as predicate offenses.
Accordingly, the Court holds that 18 U.S.C § 924(c)(1)
permits the use of local crimes as predicate offenses.
4. Count Nine and Count Fourteen: Sufficiency of Evidence of
Specific Intent to Commit Murder
In Count Nine, Hodge was charged with “assault[ing Powell]
with intent to commit murder.” (Information, ECF No. 1, at 10.)
In Count Fourteen, Hodge was charged with possessing a firearm
while “assault[ing Bougouneau] with intent to commit murder.”
(Information, ECF No. 1, at 15.) Hodge argues that there is
insufficient evidence that he intended to murder either Powell
or Bougouneau.
“Murder is the unlawful killing of a human being with
malice aforethought.” 14 V.I.C. § 921. Malice aforethought:
does not mean simply hatred or particular ill will,
but extends to and embraces generally the state of
mind with which one commits a wrongful act. It may
be inferred from circumstances which show a wanton
and depraved spirit, a mind bent on evil mischief
without regard to its consequences.
Nicholas v. People of the Virgin Islands, No. 2009-0022, 2012 WL
2053537, at *6 (V.I. June 6, 2012)(quoting Gov't of the V.I. v.
Sampson, 42 V.I. 247, 253 (D.V.I. App. Div. 2000)). “[I]f one
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 13 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 14
voluntarily does an act, the direct and natural tendency of
which is to destroy another's life, it may fairly be inferred,
in the absence of evidence to the contrary, that the destruction
of that other's life was intended.” Gov't of Virgin Islands v.
Lanclos, 477 F.2d 603, 606 (3d Cir. 1973)(quoting Government of
Virgin Islands v. Lake, 362 F.2d 770, 776 (3d Cir. 1966)).
The evidence adduced at trial shows that Hodge approached
Powell and Bougouneau and fired a number of shots. Hodge first
shot Powell in the back. (Trial Transcript, June 9, 2014, at
113:16-17.) Powell then fell forward. (Id. at 107:9-13.) He had
the bag of bank deposits while he was on the ground. (See id. at
113:16-117:2.) Hodge attempted to take the bag, but Powell
resisted. (Id. at 107:16-20.) Hodge then shot Powell in the
hip, (id.), and took the bag, (See id. at 113:25-114:2.) After
Hodge took the bag, Hodge shot Powell’s wrist. (Id. at 114:3-4.)
Hodge also shot Bougouneau in the groin. (Id. at 142:11-
15.) After Hodge shot Bougouneau, Bougouneau fell to the ground.
(Id. at 140:9-21.) At least one other shot was fired, but did
not hit anyone. (Id. at 213:13-17.)
The direct and natural tendency of Hodge’s actions was to
kill Powell and Bougouneau. Therefore, a reasonable jury
certainly could have inferred that Hodge intended to murder both
Powell and Bougouneau. See, e.g., Lanclos, 477 F.2d at 606.
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 14 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 15
Indeed, there was sufficient evidence that a reasonable
jury could have found that Hodge had the requisite intent to
commit first-degree murder. “The difference between first- and
second-degree murder is that first-degree murder requires a
killing done with malice aforethought and which was willful,
deliberate, and premeditated.” Nicholas, 2012 WL 2053537, at *6
(footnote and quotations omitted). A jury may reasonably infer
deliberation and premeditation from the use of a deadly weapon
and the absence of evidence of provocation or emotion. See Gov't
of Virgin Islands v. Charles, 72 F.3d 401, 411 (3d Cir.
1995)(“The fact that Charles rushed at Francois immediately
after Francois entered the alley does not preclude a finding of
deliberation and premeditation. Based on the use of a knife and
the absence of any provocation or display of emotion by Charles,
the jury could reasonably infer that Charles, in this brief
moment, formulated a deliberate intent to kill Francois.”).
Here, Hodge approached and shot Powell and Bougouneau
without any previous interaction. (Trial Transcript, June 9,
2014, at 140:2-8.) There is also no evidence that Hodge
displayed any emotion. Under these circumstances, a reasonable
jury could infer that Hodge acted with premeditation and
deliberation when he attempted to murder Powell and Bougouneau.
See Charles, 72 F.3d at 411.
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 15 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 16
Accordingly, the Court holds that there is sufficient
evidence for a reasonable jury to convict Hodge of Count Nine
and Count Fourteen.
5. Count Three and Count Six: Inconsistent Verdict; Separate
Conviction of Predicate Offense; General Objection to
Sufficiency of the Evidence
Count Three charges Hodge with the use and discharge of a
firearm during the attempted murder of Powell in violation of 18
U.S.C. § 924(c). Count Six charges Hodge with using an
unlicensed firearm during the attempted murder of Powell in
violation of 14 V.I.C. § 2253(a).
Hodge argues that he should be acquitted of both counts
because he was acquitted of Count Five, the attempted first-
degree murder of Powell. It is unclear whether he is arguing
that he should be acquitted because: 1) the verdicts are
inconsistent; 2) each of the statutes under which he was
convicted requires, as an element of the crime, that he was
separately convicted of a predicate offense; or 3) there was
insufficient evidence that Hodge attempted to murder Powell. The
Court will address each of these arguments in turn.
i. Inconsistent Verdicts
In United States v. Powell, 469 U.S. 57 (1984), the
defendant was charged with “conspiring . . . to knowingly and
intentionally possess with intent to distribute cocaine” and
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 16 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 17
with “possession of a specific quantity of cocaine with intent
to distribute it.” United States v. Powell, 469 U.S. 68, 59-60
(1984). She was also charged with “using the telephone in
committing and in causing and facilitating . . . conspiracy to
possess with intent to distribute” and “using the telephone in
committing and in causing and facilitating . . . possession with
intent to distribute cocaine.” Id. at 60. The defendant was
acquitted of the conspiracy and possession charges, but
convicted of charges that she used the telephone in committing
and in causing and facilitating those crimes. Id.
On appeal, the Supreme Court rejected the argument that “an
acquittal on a predicate offense necessitates a finding of
insufficient evidence on a compound felony count” and upheld the
convictions. Id. at 68-69. The Supreme Court held that “a
criminal defendant convicted by a jury on one count [cannot]
attack that conviction because it was inconsistent with the
jury’s verdict of acquittal on another count.” Id. at 68
(citing Dunn v. United States, 284 U.S. 390 (1932)).
Accordingly, Hodge is not entitled to acquittal on the
basis that the jury verdict was inconsistent.
ii. Separate Conviction of a Predicate Offense
Count Three alleges a crime codified at 18 U.S.C. §
924(c)(5). 18 U.S.C. § 924(c)(5) prohibits possessing a firearm
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 17 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 18
during a crime of violence. 18 U.S.C. § 924(c)(5). 18 U.S.C. §
924(c)(5) does not require that the defendant is separately
convicted of the predicate offense. United States v. Lake, 150
F.3d 269, 275 (3d Cir. 1998) (“[T]he government must prove that
the defendant committed a qualifying predicate offense, but it
is not necessary that the defendant be separately charged with
or convicted of such an offense.”).
Count Six alleges a crime codified at 14 V.I.C. § 2253(a).
14 V.I.C. § 2253(a) prohibits the unauthorized possession of a
firearm. 14 V.I.C. § 2253(a). There is a sentencing enhancement
when the firearm is possessed during the commission of a crime
of violence. See 14 V.I.C. § 2253(a); cf. Ambrose v. Virgin
Islands, No. 2007-0041, 2012 WL 37401, at *3 (V.I. Jan. 3,
2012). Because possession during a crime of violence is a
sentencing enhancement, not an element of the crime, a
conviction for violating 14 V.I.C. § 2253(a) does not require
that a defendant is separately convicted of a predicate offense.
Cf. Powell v. People, No. 2012-57, 2013 WL 4034204, at *1 (V.I.
Aug. 6, 2013) (holding that a conviction under a similar statute
prohibiting the possession of dangerous weapons could be
sustained even if there was insufficient evidence of a crime of
violence).
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 18 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 19
Accordingly, because neither the statute codifying the
crime alleged in Count Three nor the statute codifying the crime
alleged in Count Six requires that a defendant is separately
convicted of a predicate offense, Hodge is not entitled to
acquittal on the basis that either Count Three or Count Six
required that he was separately convicted of the attempted
first-degree murder of Powell. See Powell, 469 U.S. at 68-69;
Williams, 1987 WL 5771, at *1.
iii. Insufficiency of the Evidence
As discussed above, proof of the predicate offense alleged
in Count Six--attempted first-degree murder of Powell--is not an
element of the crime charged under 14 V.I.C. § 2253(a).
Therefore, finding insufficient evidence of the crime of
violence would not entitle Hodge to acquittal on Count Six. Cf.
Powell, 2013 WL 4034204, at *1.
In contrast, proof of the predicate offense alleged in
Count Three--also attempted first-degree murder of Powell--is an
element of the crime charged under 18 U.S.C. § 924(c) in Count
Three. See Jenkins, 90 F.3d at 821. As such, the Court will
determine whether there was sufficient evidence to convict Hodge
of the attempted murder of Powell.
“In order to sustain a conviction for an attempt to commit
a crime, the government has the burden of proving the following:
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 19 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 20
(1) an intent to commit the crime, (2) and overt act toward its
commission, (3) failure of consummation and (4) the apparent
possibility of the commission.” Parson v. Gov't of the Virgin
Islands, 167 F. Supp. 2d 857, 860 (D.V.I. 2001)(citing Cheatham
v. Government of the Virgin Islands, 1994 WL 392578, 20 V.I.
296, 303 (D.V.I.1994)).
Here, Hodge shot Powell multiple times, including in the
back and in the hip. Powell did not die. Nevertheless, death is
certainly a possible outcome when a deadly weapon such as a
firearm2 is used to shoot a person in the back and in the hip. As
such, there is no question that sufficient evidence was produced
at trial for a reasonable jury to find that the second, third,
and fourth elements had been satisfied. Moreover, as the Court
previously discussed, sufficient evidence was introduced at
trial for a reasonable jury to find that Hodge intended to
murder Powell. See supra Section III.A.4.
Accordingly, Hodge is not entitled to acquittal on Count
Three or Count Six on the basis that there was insufficient
evidence that he attempted to murder Powell.
2 “A deadly weapon is one which, from the manner used, is calculated or likely
to produce death or serious bodily injury.” Gov't of Virgin Islands v.
Robinson, 29 F.3d 878, 886 (3d Cir. 1994)(quoting Wayne R. LaFave & Austin W.
Scott, Jr., Handbook on Criminal Law 537 (1972)). As such, an operable
firearm is a deadly weapon. Virgin Islands v. Belardo, 385 F. App'x 149, 157
(3d Cir. 2010).
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 20 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 21
6. Count Six, Count Seven, Count Eight: General Objection to
Sufficiency of the Evidence
Count Six alleges that Hodge used an unlicensed firearm
when he attempted to murder Powell. Count Seven alleges that
Hodge possessed an unlicensed firearm when he committed first-
degree assault against Powell. Count Eight alleges that Hodge
possessed an unlicensed firearm when he committed first-degree
burglary.
14 V.I.C. § 2253(a) codifies these offenses. The statute:
prescribes a single offense of unauthorized
possession of which there are [only] two elements:
one, that the defendant possessed a firearm and two,
that the defendant [possessed] it without
authorization of law, with the additional
requirement that the defendant possessed the firearm
during the commission of a crime of violence merely
enhancing the penalty for the offense.
Ambrose, 2012 WL 37401, at *3 (quotations omitted and
alterations in original).
There is ample evidence that the defendant knowingly
possessed a firearm. In addition, the evidence adduced at trial
shows that Hodge was not licensed to carry a firearm on St.
Croix, (Trial Transcript, June 9, 2014, at 158:4-17), or on St.
Thomas, St. John, or Water Island, (id. at 256:19-257:2).
Because there is sufficient evidence of the two elements of the
offense, Hodge is not entitled to acquittal on these counts.
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 21 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 22
7. Count Eight: Error in the Information
Count Eight of the information charges Hodge with
possessing an unlicensed firearm during the commission of a
“first-degree robbery as set forth in Count 6” in violation of
14 V.I.C. § 2253(a). Count Six does not allege that Hodge
committed first-degree robbery.
Hodge argues that the jury could not have found that he
committed first-degree robbery as set forth in Count Six because
Count Six does not allege first-degree robbery. As such, Hodge
argues that he is entitled to acquittal on Count Eight.
A defect in a charging document must generally be raised
before trial. Fed. R. Crim. P. 12(b)(3)(B). When such a defect
is not timely raised, the objection to the defect is waived
unless good cause is shown. See Fed. R. Civ. P. 12(c)(3); cf.
United States v. Staton, 605 F. App'x 110, 113 (3d Cir.
2015)(holding that absent a showing of good cause, an untimely
motion to suppress is deemed to be waived under Federal Rule of
Criminal Procedure 12(c)(3)). Here, Hodge has not shown good
cause. Even if he could demonstrate good cause for such a delay,
Hodge would not be entitled to the relief that he seeks.
As a preliminary matter, the Court notes that “juries are
presumed to follow their instructions.” Zafiro v. United States,
506 U.S. 534, 540, 113 S. Ct. 933, 939, 122 L. Ed. 2d 317
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 22 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 23
(1993). Indeed, the Court’s instructions may resolve
deficiencies in a charging document. See, e.g., United States v.
Steiner, No. 14-4628, 2016 WL 827989, at *7 (3d Cir. Mar. 3,
2016) (“When a defendant's Sixth Amendment right to a unanimous
jury verdict is jeopardized by a duplicitous indictment, a court
can cure the indictment by issuing a limiting instruction
requiring the jury to unanimously find the defendant guilty of
at least one distinct act.”) Here, the Court instructed the jury
that it must find that the firearm was possessed during the
commission of a first-degree robbery. The Court did not instruct
the jury that it was required to find that the firearm was
possessed during the commission of a first-degree robbery “as
set forth in Count Six.” Therefore, the jury’s inquiry was
properly limited by the Court’s instruction to whether the
firearm was possessed during a first-degree robbery. The jury
was certainly capable of making such a determination.
Moreover, the information alleges that Hodge possessed a
firearm while unauthorized by law. It further provides that he
possessed that firearm during a crime of violence--first degree
robbery. As such, the information alleged the essential elements
of the crime and the Court’s instruction tracked those elements.
The language “as set forth in Count Six” was mere surplusage.
There is no requirement that a jury instruction be a verbatim
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 23 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 24
recitation of language contained in an indictment when the
language in the charging document is surplusage.
Accordingly, this objection is without merit.3
8. Count Eleven: General Objection to Sufficiency of the
Evidence
Count Eleven of the information charges Hodge with first-
degree robbery. Hodge argues that insufficient evidence was
introduced at trial to convict him of this crime.
“Robbery is defined as the unlawful taking of personal
property in the possession of another, from his person or
immediate presence and against his will, by means of force or
fear, with the specific intent to deprive permanently a rightful
owner of his property.” Smith v. Gov't of Virgin Islands, No.
CRIM. A. 2004-90, 2008 WL 2993420, at *3 (D.V.I. July 23, 2008)
(quotation removed) (citing 14 V.I.C. § 1861; Government of
Virgin Islands v. Carmona, 422 F.2d 95, 98 (3d Cir.1970)). First
degree robbery requires that the perpetrator of the crime
“causes physical injury which is incapacitating in any way to
3 It is also worth noting that possession of a firearm during a crime of
violence is not an element of the crime codified at 14 V.I.C. § 2253(a). It
is a sentencing enhancement. Ambrose, 2012 WL 37401, at *3. As such, if the
Government proves that a defendant possessed a firearm without authorization,
but fails to prove that the firearm was possessed by the defendant during the
commission of a crime of violence, the defendant may be entitled to a lower
sentence, not acquittal. Of course, even that outcome is not warranted as the
jury was instructed that proof of possession during the commission of a crime
of violence--first degree robbery--was required, and the jury so found.
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 24 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 25
any person who is not a perpetrator of the crime” or
“[d]isplays, uses or threatens the use of a dangerous weapon.”
14 V.I.C. § 1862.
Here, the evidence adduced at trial shows that Hodge shot
Powell in the back. (Trial Transcript, June 9, 2014, at 113:16-
17.) Powell then fell forward. (Id. at 107:9-13.) He had the bag
of bank deposits while he was on the ground. (See id. at 113:16-
117:2.) Hodge attempted to take the bag, but Powell resisted.
(Id. at 107:16-20.) Hodge then shot Powell in the hip. (Id.)
Hodge then took the bag. (See id. at 113:25-114:2.) After Hodge
took the bag, Hodge shot Powell in the wrist. (Id. at 114:1-4.)
Hodge then fled with the bag of bank deposits. (Id. at 140:14-
21; 143:3-7.) On the basis of these facts and permissible
inferences drawn from these facts, a reasonable jury could find
that Hodge used force to permanently deprive Kmart of its bank
deposits.
Accordingly, this objection is without merit.
B. Motions for New Trial
Hodge moves for a new trial on three grounds. First, Hodge
argues that the Court erred by refusing to strike two jurors,
compelling him to use two peremptory challenges. Second, Hodge
argues that the Court erred by refusing to admit an FBI Lab
Report (the “lab report”). Third, Hodge argues that a new DNA
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 25 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 26
report constitutes newly discovered evidence entitling him to a
new trial.
1. Voir Dire
Hodge argues that the Court erred when it refused to strike
two jurors for cause. Hodge asserts that his right to ten
peremptory strikes was violated because he “had to use two of
its ten peremptory strikes to remove the two jurors who should
have been stricken for cause.” (ECF No. 57, at 2.)
Even assuming arguendo that the Court erred when it did not
strike the jurors for cause, such an error would not entitle
Hodge to a new trial. See United States v. Martinez-Salazar, 528
U.S. 304, 307 (2000). In United States v. Martinez-Salazar, the
defendant, Abel Martinez-Salazar (“Martinez-Salazar”), was
charged with drug-related offenses. Id. at 304. A prospective
juror, Don Gilbert (“Gilbert”), stated “that he favored the
prosecution.” Id. at 308. Martinez-Salazar proceeded to
challenge Gilbert for cause. Id. The district court refused to
strike the juror. Id. at 309. After the district court refused
to strike Gilbert, Martinez-Salazar used one of his peremptory
strikes to strike Gilbert. Id. at 309. Martinez-Salazar also
exhausted his other peremptory challenges. Id. Thereafter, he
was convicted on all counts. Id.
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 26 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 27
On appeal to the Ninth Circuit, Martinez-Salazar argued
that he was entitled to a new trial. The Ninth Circuit agreed.
It reasoned that he was entitled to a new trial because “the Due
Process Clause of the Fifth Amendment requires automatic
reversal of a conviction whenever [the trial court erroneously
refuses to dismiss a juror for cause, the defendant uses a
peremptory challenge on that juror, and] the defendant goes on
to exhaust his peremptory challenges during jury selection.” Id.
at 307.
The Supreme Court reversed the Ninth Circuit. It held that
“if the defendant elects to cure . . . [the trial court’s
erroneous refusal to dismiss a juror for cause] by exercising a
peremptory challenge, and is subsequently convicted by a jury on
which no biased juror sat, he has not been deprived of any rule-
based or constitutional right.” Id. at 307. The Supreme Court
reasoned that by “choosing” to remove the juror, Martinez-
Salazar “did not lose a peremptory challenge.” Id. at 315-16.
Instead, “he used the challenge in line with a principal reason
for peremptories: to help secure the constitutional guarantee of
trial by an impartial jury.” Id. at 316.
Here, Hodge admits the he used two peremptory challenges to
strike the objectionable jurors. Thus, even if those prospective
jurors should have been stricken for cause, Hodge was not
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 27 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 28
deprived of any rights under Federal Rule of Criminal Procedure
24(b) or the Fifth Amendment such that he is entitled to a new
trial. See id. at 307.
2. Stipulation Admitted Instead of Expert Report
Hodge also contends that the Court denied him his Sixth
Amendment right to present evidence when the Court failed to
admit an FBI lab report that analyzed the DNA on a ski mask
found near Hodge. Hodge sought to admit the lab report pursuant
to a stipulation between the parties. In part, the lab report
indicated that DNA on the ski mask found by officers did not
match Hodge’s DNA. The Court did not admit the lab report into
evidence, citing to Federal Rule of Evidence 403 (“Rule 403”).
Rule 403 provides that:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation
of cumulative evidence.
Fed. R. Evid. 403.
In making a Rule 403 determination, the trial court “is
required to balance the probative value of evidence against its
prejudicial effect. The [trial] court must appraise the genuine
need for the challenged evidence and balance that necessity
against the risk of prejudice to the defendant.” United States
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 28 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 29
v. Bradley, 173 F.3d 225, 230 (3d Cir.1999) (quoting Government
of the Virgin Islands v. Archibald, 987 F.2d 180, 186 (3d
Cir.1993)).
Here, when the Court did not admit the lab report into
evidence, it stated:
THE COURT: All right. I think that . . . [the lab
report] has in information that I am concerned with
having the jury have before them. If there's going
to be a stipulation, then the parties will need to
come out on what facts they need to stipulate to.
If you want to stipulate there was a swab of saliva
obtained from Mr. Hodge, that the saliva did not
match the DNA collected from the -- what is it, a
hat?
MR. JONES: Ski mask.
THE COURT: -- a ski mask, you can stipulate, that
can be part of the stipulation . . .
THE COURT: The rest of the information in there is
not what you seek to have in, the methodology, and
this Court is concerned there's no expert to give
this any sense of context whatsoever. And in its
gatekeeping role, the Court is disinclined to have
all of that information before the jury.
(Trial Transcript, June 10, 2014, at 93:13-94:14.)
Thereafter, the Court permitted the parties to stipulate to
the following facts: 1) “that the ski mask recovered in this
case was submitted to an FBI Laboratory for DNA analysis”; 2)
“that male DNA was found to be present on the ski mask”; 3) that
“[t]he DNA samples taken from Richard Antonio Hodge were also
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 29 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 30
submitted to the FBI Laboratory for comparison”; and 4) that
“Hodge was excluded as a contributor to the DNA sample found in
the ski mask.” (Id. at 99:24-100:11.)
Given that the Court permitted this stipulation, the
admission of a highly technical lab report would only serve to
confuse or mislead the jury. As such the Court properly
exercised its gatekeeping role, excluding the lab report on the
basis that it contained highly technical information. Nothing in
the facts convinces the Court that it erred in its previous
ruling.
3. Newly Discovered DNA Evidence
Hodge also argues he should be granted a new trial because
a new DNA report found that DNA on the ski mask matched the DNA
of another suspect, Keithroy Caines (“Caines”).
The Third Circuit has articulated five requirements that
must be met before a court may grant a new trial on the basis of
newly discovered evidence:
(a) the evidence must be in fact newly discovered,
i.e. discovered since trial; (b) facts must be
alleged from which the court may infer diligence on
the part of the movant; (c) the evidence relied on
must not be merely cumulative or impeaching; (d) it
must be material to the issues involved; and (e) it
must be such, and of such nature, as that, on a new
trial, the newly discovered evidence would probably
produce an acquittal.
United States v. Iannelli, 528 F.2d 1290, 1292 (3d Cir.1976).
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 30 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 31
The movant has a “heavy burden” of proving each of these
requirements. United States v. Saada, 212 F.3d 210, 216 (3d
Cir.2000). The failure to satisfy even one requirement is a
sufficient basis to deny a motion for a new trial. United States
v. Jasin, 280 F.3d 355, 365 (3d Cir. 2002).
Here, even assuming arguendo that Hodge satisfied the first
four requirements, the Court does not find that this new
evidence would likely lead to an acquittal.
At trial, neither Schneider nor Bougouneau testified that
the gunman was wearing a ski mask. As previously noted,
Schneider testified that the perpetrator was wearing a hat and
had a “shirt or handkerchief or something over his mouth area
and tied to the back.” (Trial Transcript, June 9, 2014, at
161:19-21.) Bougouneau testified that the perpetrator had “a
handkerchief or something tied up right this way.” (Id. at
143:13-14.)
The ski mask was mentioned by Corporal Bernard Burke, an
officer who responded to the scene, who merely testified that a
ski mask was recovered. (Id. at 260:14-20.). No testimony at
trial linked the ski mask to the gunman. Indeed, the ski mask
itself was not admitted into evidence by either party. As such,
the testimony at trial did not indicate that the person wearing
the ski mask was the shooter.
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 31 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 32
Moreover, as previously noted, other evidence linked Hodge
to the crimes. Schneider identified Hodge as the gunman at
trial. (Id. at 161:11-166:2.) In addition, Hodge was discovered
hiding in the bushes without a shirt or jacket, in the area
where a shirt and jacket were found. (Id. at 184:2-19, 188:18-
22, 255:2-256:17.) The jacket found near Hodge matched the
jacket worn by the perpetrator of the crimes alleged. (Id. at
167:5-168:1, 189:2-189:16)(stating that the jacket found matched
the jacket Hodge was wearing, although the witness did not
recognize the red on the jacket).
Relying on all of the evidence both direct and
circumstantial, the jury found the defendant guilty despite the
fact that the DNA from the ski mask did not match Hodge. As
such, the Court is unconvinced that evidence that another
suspect, Caines, had worn the ski mask would probably produce an
acquittal.
Accordingly, Hodge is not entitled to a new trial on the
basis of newly discovered evidence.
C. Motion to Vacate
Hodge also filed a “motion to vacate.” In that motion, he
argues that the Court should dismiss Count Two because the Court
erred when it instructed the jury on the count’s elements. He
also argues that the Court should dismiss Count Three and Count
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 32 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 33
Four because the Court improperly provided a single combined
instruction for those counts.
Hodge did not raise either of these objections when the
Court gave its jury instructions. As such, the Court will review
the instructions for plain error. When addressing purportedly
erroneous jury instructions, the standard under plain error
review “is whether there was a ‘reasonable likelihood’ that the
jury prejudiced the defendant by applying the challenged
instructions in a manner that violated the constitution.” Gov't
of Virgin Islands v. Rosa, 399 F.3d 283, 294-95 (3d Cir. 2005).
1. Instruction on Count Two
In Count Two of the indictment, Hodge was charged with
carrying, using, and discharging a firearm during a crime of
violence. The verdict form, however, asked the jury to determine
whether Hodge was guilty “as to Count Two, discharge of a
firearm during the commission of a robbery, as charged in the
Information . . . .” (Verdict Form, ECF No. 55, at 2 (emphasis
supplied).)
The distinction between using, carrying, and discharging a
firearm during a crime of violence is significant. See 18 U.S.C.
§ 924(c)(1)(A). Using or carrying a firearm during a crime of
violence carries a minimum term of imprisonment of five years.
18 U.S.C. § 924(c)(1)(A). In contrast, discharging a firearm
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 33 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 34
during a crime of violence carries a minimum term of
imprisonment of ten years. 18 U.S.C. § 924(c)(1)(A)(iii).
Hodge argues that Court erred by instructing the jury that
Hodge could be found guilty of discharging a firearm during a
crime of violence based on a finding that he used, not
discharged, a firearm during and in relation to a crime of
violence.
The Court began its instruction on Count 2 by informing the
jury that “Count 2 charges that the defendant used a firearm to
commit a crime of violent, in violation of federal law, and that
crime of violence is robbery.” (Trial Transcript, June 10, 2014,
at 118:18-20.) The Court then instructed the jury that before
convicting the defendant of the crime alleged in Count Two, the
jury must find that: 1) “the defendant committed the robbery as
charged in Count 11 of the information”; 2) “during and in
relation to the commission of that crime, the defendant
knowingly used a firearm”; and 3) “the defendant used the
firearm during and in relation to the crime of robbery.” (Id. at
118:25-119:6.)
The Court then began to instruct the jury on Count Three
and Count Four. Before finishing the instruction on those
counts, the Court halted its instruction and stated “actually
ladies and gentlemen, I think I may have made an error with
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 34 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 35
respect to Count 2, the one I just read you. Let me read the
elements for Count 2.” (Id. at 120:18-20.)
The Court then provided a different instruction for Count
Two. Specifically, the Court instructed the jury that “Count 2
charges the discharge of a firearm during the commission of a
robbery in violation of federal law.” (Id. at 120:21-22.) The
Court further instructed the jury that before convicting the
defendant of the crime alleged in Count Two, it must find that:
1) “the defendant committed the robbery as charged in Count 11
of the information”; 2) “that during and in relation to the
commission of that crime, the defendant knowingly discharged a
firearm”; and 3) “that the defendant used a firearm during and -
– or discharged the firearm during and in relation to the crime
of robbery.” (Id. at 121:1-8.)
When the Court misspeaks while giving a jury instruction,
it may correct the error by giving a new instruction. See, e.g.,
United States v. Evans, 356 F. App'x 580, 585 (3d Cir. 2009).
Here, the Court acknowledged that its first instruction on Count
Two was in error and issued a corrected instruction on Count
Two. As such, the Court finds that the errors in its first
instruction on Count Two do not constitute plain error.
The Court acknowledges that in its second instruction, it
employed the word “used” in the third element. Nevertheless, for
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 35 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 36
several reasons, the Court is not convinced that any plain error
resulted.
First, although the transcript arguably makes it appear
that the Court instructed the jury that mere use of the firearm
would satisfy the third element, the transcript fails to convey
the Court’s inflection. After reviewing the audio recording of
the Court’s instruction, the Court finds that it was clear from
the Court’s inflection that the Court was correcting itself--not
indicating that either use or discharge would satisfy the third
element.
Second, the Court’s instruction on the first two elements
contained all the necessary elements of the crime. Indeed,
although the Court instructed on three elements, the Court’s
instruction on the third element was entirely superfluous.
Including an instruction that superfluously required an
additional finding that a firearm was used during the robbery
would not in any way decrease the Government’s burden. As such,
even if the instruction on the third element indicated to the
jury that the third element could be satisfied by a finding that
the defendant merely used a firearm during the robbery, such an
instruction would not have caused any prejudice to Hodge.4
4 The Court also notes that the copy of the jury instructions sent with the
jury into the deliberation room clearly specified that the jury must find
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 36 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 37
Accordingly, the Court finds no plain error in its
instruction on Count Two.
2. Combined Instruction on Count Three and Count Four
Count Three and Count Four both allege the discharge of a
firearm during an attempted murder--albeit the attempted murders
of different victims--in violation of 18 U.S.C. 924(c)(1)(A). As
such, the Court provided a single combined instruction for both
counts. In that instruction, the Court instructed the jury that:
Counts 3 and 4 charge the defendant with discharging
a firearm during and in relation to the commission
of the crime of attempted murder.
To find the defendant guilty of discharging a
firearm during the commission of the crime of
attempted murder, the government must prove each of
the following essential elements beyond a reasonable
doubt:
First, that the defendant committed an attempted
murder as charged in the information.
Second, that during and in relation to the
commission of that crime the defendant knowingly
discharged a firearm.
And third, that the defendant discharged the firearm
during and in relation to the crime of attempted
murder.5
(Trial Transcript, June 10, 2014, at 121:17-122:6.)
that the firearm was discharged during the robbery. (See ECF No. 51, at 17-
18.)
5 This instruction is the instruction that was given after the Court
interrupted its first instruction on Count Three and Count Four to amend its
instruction on Count Two.
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 37 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 38
Hodge argues that the Court erred when it instructed the
jury on the elements of Count Three and Count Four in a single
combined instruction because the combined instruction could have
given rise to jury error. Specifically, Hodge argues that “[i]n
their deliberations on Count 3, some of the jury members could
have found that Mr. Hodge did commit an attempted murder on
victim Clement Bougouneau, but not on Asim Powell, and vice
versa.” (Motion to Vacate, ECF No. 89, at 2.)
In determining whether an instruction created a reasonable
likelihood of jury error, the Court considers both the
instruction and the verdict form as whole. Cf. Frey v. Fulcomer,
132 F.3d 916, 924 (3d Cir. 1997)(considering the verdict form
and the court’s instructions as a whole before determining that
there was a reasonable likelihood that the jury believed it was
required to find mitigating circumstances unanimously during the
death penalty sentencing phase). Here, the verdict form asked
the jury to determine: (1) whether Hodge was guilty “[a]s to
Count Three, discharge of a firearm during the commission of
attempted murder of Asim Powell, as charged in the Information .
. .”; and (2) and whether Hodge was guilty “[a]s to Count Four,
discharge of a firearm during the commission of attempted murder
of Clement Bougouneau, as charged in the Information . . . .”
(Verdict Form, ECF No. 55, at 2.) As such, the verdict form
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 38 of 39

United States v. Richard Antonio Hodge
Criminal No. 2014-01
Memorandum Opinion
Page 39
clearly indicated that the predicate offense for Count Three was
the attempted murder of Powell and the predicate offense for
Count Four was the attempted murder of Bougouneau. Therefore,
considering the instructions and the verdict form as a whole,
the Court finds that there was no reasonable likelihood of jury
error.
Accordingly, the Court finds that there was no plain error
in providing a single combined instruction for Count Three and
Count Four.
IV. CONCLUSION
For the reasons stated herein, the Court denied Hodge’s
motion for acquittal, motions for new trial, and motion to
vacate.
S\_____________________
Curtis V. Gómez
District Judge
Case: 3:14-cr-00001-RAM-RM Document #: 101 Filed: 04/15/16 Page 39 of 39