UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: February 10, 1977.
GOVERNMENT OF THE VIRGIN ISLANDS, APPELLEE,
DAVID CASTILLO, APPELLANT
APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS Criminal Nos. 76-64 and 76-65.
Seitz, Chief Judge, Gibbons and Hunter, Circuit Judges.
HUNTER, Circuit Judge:
David Castillo was convicted on one count each of grand larceny, trespassing, and carrying an unregistered firearm, all in connection with the rustling of a heifer from a cattle farm on St. Croix. He was sentenced by the District Court for the District of the Virgin Islands to concurrent terms of four months, two months, and six months on the respective convictions. On appeal, Castillo argues first that there was no evidence corroborating the damaging testimony of his accomplice, as required by 14 V.I.C. § 17.*fn1 Second, he contends that evidence of his prior felony conviction was improperly introduced. Because we agree with the second contention, we must reverse and remand for a new trial.
According to the accomplice testimony of Francisco Navarro, Navarro visited Castillo's residence on the night of March 28, 1976. Castillo lived in a house owned by his girlfriend, whose name was unknown to Navarro. (Later testimony established that the girlfriend was Louisa Santiago.) The house had been a bar and restaurant, but had ceased operations. After a few drinks, Castillo suggested to Navarro that they "go for a heifer." He fetched a shotgun from his room, which adjoined the public areas of the bar, and Navarro procured two knives. The two then drove in Navarro's taxi to a nearby cattle farm. They entered the pasture, and Castillo shot a heifer. The two men skinned the animal, cut it into several large hunks, put it in the trunk of the taxi, and returned to Castillo's residence. The next morning, after Santiago had left the house, they removed the meat from the taxi's trunk and put it in the kitchen.
Later that day the police - who had been informed that Navarro's taxi had been observed at the scene of the crime - stopped the taxi to question Navarro and Castillo. After that questioning, Navarro and Castillo returned to the Santiago house, where Castillo hid the meat and the shotgun while Navarro slept. The police arrived shortly thereafter and discovered chunks of meat hidden in the cistern, in the jukebox, and in the rafters above the ceiling. Also secreted above the ceiling was the gun.
Louisa Santiago testified that on March 29, the day the meat was carried into and hidden within the house, the only set of keys to the house was in Castillo's possession. Santiago had tried to enter the house that afternoon, but found it locked. When she returned later in the afternoon, she found the back door open, and saw the police taking Castillo and Navarro into custody.
Both men were charged with grand larceny and trespassing. Castillo was also charged with possession of an unregistered firearm, in violation of 14 V.I.C. § 2253(a).*fn2 Navarro pleaded guilty to the lesser charge of petit larceny and trespass. Castillo pleaded not guilty to all charges.
Before trial, defense counsel moved to strike from the firearms charge language indicating that Castillo had previously been convicted of second degree murder. He also made a motion in limine to prohibit further mention of the prior conviction. The Government insisted that, because section 2253(a) provides a stiffer maximum penalty for offenders who have prior felony convictions, the prior conviction was an element of the offense that had to be proved. Castillo's counsel argued that the prior conviction went only to the nature of the penalty, not to the elements of the crime, and offered to stipulate to the court that Castillo had a prior felony conviction.
The district court agreed that the prior conviction was an element of the offense, but ruled that the specific crime need not be mentioned. Both the amended information and the written verdict forms given to the jury indicated that Castillo had been previously convicted of a felony. Defense counsel objected to both. The court's instructions to the jury apparently were not recorded. The notes used by the court in giving those instructions, however, indicate that the prior conviction was not listed as one of the elements of the firearms violation with which the defendant was charged.*fn3
At the close of the prosecution's case, defense counsel moved for a judgment of acquittal with respect to all three charges. Castillo brings this appeal, alleging that the district court erred in denying his motion for a judgment of acquittal and in permitting the Government to inform the jury of his prior conviction.
We cannot agree with Castillo's contention that he was entitled to a judgment of acquittal because there was no evidence corroborating the accomplice testimony, as required by Virgin Islands law. As we have interpreted that law, the only corroboration required is evidence "tending to connect defendant with the crime." Government of the Virgin Islands v. Torres, 476 F.2d 486, 490 (3d Cir. 1973). There was such evidence in the case before us.
First, and most important, Castillo had the only key to the premises where the meat was concealed during the only time the meat could have been hidden there. Santiago testified that she found the back door open the second time she returned to the house on the afternoon of March 29, as Castillo and Navarro were being taken into custody. But she also testified that upon her first arrival that afternoon, the doors were locked. Thus, the jury could have inferred only Castillo had access to the house during the period in question.
Second, all the meat and the gun were found in Castillo's residence, not some location unrelated to him. Third, he was discovered in the house while the stolen goods and the gun were still there. And fourth, he was seen with the owner of the taxi that had been observed leaving the scene of the crime; indeed, he was seen in the taxi itself the very next day.
All this evidence tended to connect Castillo with the commission of the crime, apart from Navarro's testimony. It may be "insubstantial and inconclusive of guilt," but those qualities do not vitiate its power to corroborate the accomplice testimony by circumstantially linking defendant with the commission of the crime. Torres, supra at 490.
We must reverse, however, because we agree that the district court erred in allowing the jury to be informed of Castillo's prior felony conviction. Although the language of section 2253(a) is not altogether clear, we hold that it does not create two separate crimes, one being possession of an unregistered firearm, the other being possession of an unregistered firearm by a convicted felon.*fn4 Instead, it imposes a penalty upon anyone convicted of possessing an unregistered firearm and goes on to provide that the penalty may be enhanced if the person so convicted was previously found guilty of a felony.*fn5
In other words, section 2253(a) does not present - as does, for example, 18 U.S.C. App. § 1202(a)(1)*fn6 - the case where, in general, act A is lawful, but when performed by a convicted felon act A becomes unlawful. The latter statute forbids possession by a convicted felon of a firearm in interstate commerce. Provided that other sections of the Gun Control Act, 18 U.S.C. § 921 et seq., 18 U.S.C. App. §§ 1201-03, have not been violated, such possession is, in general, lawful; it becomes criminal only when the possessor has been convicted of a felony. In contrast, the possession forbidden by 14 V.I.C. § 2253(a) is unlawful no matter who the possessor is; a convicted felon is merely subject to an enhanced penalty. The additional language of section 2253(a) dealing with previous convictions, then, is in the nature of a sentencing statute rather than a substantive offense statute.*fn7
Because we hold that the existence of Castillo's prior conviction properly went only to his sentencing under section 2253(a), it follows that it was no concern of the jury. See, e.g., United States v. McCracken, 488 F.2d 406, 423 (5th Cir. 1974); 2 C. Wright, Federal Practice & Procedure § 512, at 366 (1969). See also Fed. R. Ev. 404(b).*fn8 Since we cannot say with any certainty that the erroneous admission of this evidence did not have a significant prejudicial effect on the jury, there must be a new trial. See, e.g., United States v. Jacangelo, 281 F.2d 574, 576-77 (3d Cir. 1960).
The judgments of conviction will be reversed and the case remanded for a new trial.
The judgments of conviction will be reversed and the case remanded for a new trial.