JAMES HUNTER, III, 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. 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.
Section 17 provides as follows:
No conviction can be had upon the testimony of an accomplice unless it be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. The corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission.
I
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). Navarro pleaded guilty to the lesser charge of petit larceny and trespass. Castillo pleaded not guilty to all charges.
Section 2253(a) provides as follows:
Whoever, unless otherwise authorized by law, has, possesses, bears, transports or carries either openly or concealed on or about his person, or under his control in any vehicle of any description any firearm, as defined in Title 23, section 451(d) of this Code, loaded or unloaded, may be arrested without a warrant, and shall be fined not more than $1,000 or imprisoned not more than 2 years, or both, except that if such person shall have been convicted of a felony, or if such firearm or an imitation thereof was had, possessed, borne, transported or carried by or under the proximate control of such person during the commission or attempted commission of a crime of violence, as defined in subsection (d) hereof, then such person shall be fined not more than $2,000 or imprisoned not more than 5 years, or both. The foregoing applicable penalties provided for violation of this section shall be in addition to the penalty provided for the commission of, or attempt to commit, the crime of violence.
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.
While sitting in St. Thomas, this Court took the opportunity to review the district court's notes.
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.
II
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.
III
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. 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.
The strength of the district court's belief that there were two separate crimes is itself questionable in light of the fact that the court seems not to have instructed the jury that a prior conviction was an element of the charge under section 2253(a).
Also following the basic description of the crime of possession in § 2253(a) is a clause providing heavier penalties for one who uses or carries an unregistered firearm during the commission or attempted commission of a crime of violence. This clause might well be held — although we need not now so hold — to create a separate offense by adding the additional element of possession during commission or attempted commission of a crime of violence. From this it could be argued that since the same sentence provides the same enhancement in the maximum penalty both for possession while a convicted felon and for possession during the commission of violent crimes, possession while a convicted felon is also a separate offense, with separate elements.
We do not accept this argument. First, the clause dealing with convicted felons adds nothing to the use of the weapon itself, while the clause concerning violent crime changes the way in which the possessor must use the illegally possessed weapon. Second, a prior conviction might well be the proper subject of judicial notice upon sentencing, see e. g., 14 V.I.C. § 62 (procedure under habitual offenders statute), while the commission vel non of a violent crime is the kind of factual question more suited to resolution by a jury. While the legislature's syntax may have been somewhat inartful, we believe that these fundamental distinctions outweigh the argument that the inclusion in the same sentence of the two situations permitting harsher punishment means both are separate crimes.
In other words, section 2253(a) does not present — as does, for example, 18 U.S.C. App. § 1202(a)(1) — 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.
18 U.S.C. App. § 1202(a)(1) states:
(a) Any person who —
(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . . and who receives, possesses or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.
The legislature's concern with restricting consideration of the impact of prior convictions to the sentencing judge — thereby keeping knowledge of them from the jury — is also reflected in 14 V.I.C. §§ 61, 62, which deal with habitual offenders. Those two sections provide as follows:
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). 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).
Rule 404(b) reads as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The judgments of conviction will be reversed and the case remanded for a new trial.