Filed: Nov. 10, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-15901 ELEVENTH CIRCUIT NOVEMBER 10, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 09-00165-CR-IPJ-PWG UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RODNEY EUGENE TUCKER, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Alabama _ (November 10, 2010) Before HULL, MARCUS and MARTIN, Circuit Judges. PER CURIAM: Rodn
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-15901 ELEVENTH CIRCUIT NOVEMBER 10, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 09-00165-CR-IPJ-PWG UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RODNEY EUGENE TUCKER, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Alabama _ (November 10, 2010) Before HULL, MARCUS and MARTIN, Circuit Judges. PER CURIAM: Rodne..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15901 ELEVENTH CIRCUIT
NOVEMBER 10, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00165-CR-IPJ-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODNEY EUGENE TUCKER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(November 10, 2010)
Before HULL, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
Rodney Eugene Tucker appeals pro se his convictions for three counts of
armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and one count of
using and carrying a firearm in relation to a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii). On appeal, he argues that: (1) the district court plainly
erred by constructively amending the indictment when it gave an
aiding-and-abetting instruction; (2) the district court plainly erred by permitting the
government to engage in prosecutorial misconduct by improperly bolstering the
testimony of Tucker’s codefendant, James Arthur Worrills, Jr.; (3) the district court
erred in failing to dismiss the indictment after Worrills pleaded guilty because the
indictment named both Tucker and Worrills; (4) Tucker received ineffective
assistance of counsel; and (5) the evidence was insufficient to support Tucker’s
convictions for armed bank robbery and his conviction for using and carrying a
firearm in relation to a crime of violence. After thorough review, we affirm.1
We review the legal correctness of jury instructions de novo. United States v.
Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). We review de novo a claim of
prosecutorial misconduct, which is a mixed question of law and fact. United States
v. Eckhardt,
466 F.3d 938, 947 (11th Cir. 2006). However, if a defendant fails to
object to an issue before the district court, we review for plain error. United States
v. Dennis,
237 F.3d 1295, 1299 (11th Cir. 2001). To establish plain error, the
defendant must show that there is (1) error, (2) that is plain, (3) affects substantial
1
In addition, Tucker’s motion to strike the government’s response brief, construed from
statements made in his reply brief, is DENIED.
2
rights, and (4) seriously affects the fairness, integrity, or public reputation of
judicial proceedings. United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir.
2005). Because Tucker failed to raise his jury instruction and prosecutorial
misconduct arguments before the district court, we review those for plain error.
We review de novo whether the evidence was sufficient to sustain a
conviction. United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). A
verdict will be affirmed “as long as the jury could permissibly conclude that the
defendant is guilty beyond a reasonable doubt.”
Id. We will view the evidence in
the light most favorable to the government, and resolve any conflicts in favor of its
case. United States v. Ward,
197 F.3d 1076, 1079 (11th Cir. 1999).
The relevant facts are these. At trial, codefendant Worrills testified for the
government. He said that he had used a gun supplied by Tucker to facilitate the
bank robberies, Tucker also carried a gun during the robberies, and both Tucker and
he planned and executed the robberies. He admitted that he hoped for a sentence
reduction by cooperating with the government, pursuant to a plea agreement, in
which he agreed to testify against any suspect at the government’s request.
First, we are unpersuaded by Tucker’s claim that the district court plainly
erred by constructively amending the indictment when it gave an
aiding-and-abetting instruction to the jury. “When the evidence at trial or the
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court’s jury instructions deviate from what is alleged in the indictment, two distinct
problems can arise -- constructive amendment or variance.” United States v. Flynt,
15 F.3d 1002, 1005 (11th Cir. 1994). “An amendment to an indictment occurs
when the essential elements of the offense contained in the indictment are altered to
broaden the possible bases for conviction beyond what is contained in the
indictment.”
Dennis, 237 F.3d at 1299 (quotation omitted). A jury instruction that
allows the jury to consider an element of the offense not listed in the indictment is
an impermissible, constructive amendment of the indictment and constitutes
reversible error. Stirone v. United States,
361 U.S. 212, 218-19 (1960).
In determining whether an indictment was constructively amended, we look
at whether the prosecutor’s actions or the court’s instructions, “viewed in context,”
literally or effectively expanded the indictment. United States v. Behety, 32 F.3d
503, 508-09 (11th Cir. 1994). The former Fifth Circuit has held that, although an
indictment failed specifically to charge a defendant with aiding and abetting, the
district court did not err in giving an aiding-and-abetting instruction because “18
U.S.C. § 2 is an alternative charge in every count, whether explicit or implicit, and
the rule is well-established . . . that one who has been indicted as a principal may be
convicted on evidence showing that he merely aided and abetted the commission of
the offense.” United States v. Walker,
621 F.2d 163, 166 (5th Cir. 1980) (stating
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that “18 U.S.C. § 2 does not define a crime[, but] simply makes punishable as a
principal one who aids or abets the commission of a substantive crime”);2 accord
United States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984) (stating that “[a]iding
and abetting need not be specifically alleged in the indictment; assuming the
evidence supports it, the accused can be convicted of aiding and abetting so long as
the jury is instructed on it”).
“A variance occurs when the facts proved at trial deviate from the facts
contained in the indictment but the essential elements of the offense are the same.”
United States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990). The proof at trial and
indictment allegations should correspond so that “(1) the defendant is properly
notified of the charges so that he may present a defense; and (2) the defendant is
protected against the possibility of another prosecution for the same offense.”
United States v. Roberts,
308 F.3d 1147, 1156 (11th Cir. 2002) (quotation omitted).
A variance requires reversal “only when the defendant can establish that his rights
were substantially prejudiced thereby.”
Flynt, 15 F.3d at 1005.
The district court did not err, plainly or otherwise, when it gave an
aiding-and-abetting instruction to the jury, although such a theory of guilt was not
alleged in the indictment. Indeed, under our law, an individual indicted as a
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this
Court adopted as binding precedent all Fifth Circuit decisions issued prior to October 1, 1981.
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principal may be convicted on evidence showing that he aided and abetted the
commission of the offense, regardless of whether the indictment included an
aiding-and-abetting charge. Walker, 621 F.2d at 166. Further, because aiding and
abetting is an alternative charge in every count, the prosecutor’s remarks during his
closing argument that the jury could convict Tucker under an aiding-and-abetting
theory also were not error, much less plain error. Id.; see
Martin, 747 F.2d at 1407.
Nor, contrary to Tucker’s claims, was there was a variance between the
charge and the proof at trial. Tucker’s indictment charged him with armed robbery
and using and carrying a firearm during and in relation to a crime of violence,
which encompassed an aiding-and-abetting theory of guilt. Walker, 621 F.2d at
166;
Martin, 747 F.2d at 1407. And, as discussed below, the evidence supports the
conclusion that Tucker aided and abetted the commission of the armed robberies
and the use of a firearm in furtherance of the first robbery. Moreover, Tucker’s
claim that the indictment failed to allege acts secondary to the robbery lacks merit
because the government was only obliged to include a “statement of the essential
facts,” Fed.R.Crim.P. 7(c), and the acts Tucker identifies as impermissibly excluded
from the indictment -- that Tucker provided the firearm and his sister’s car and
burned dyed bills -- are related to his efforts to plan or conceal the robberies.
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Next, we reject Tucker’s claim that plain error resulted from prosecutorial
misconduct. “To find prosecutorial misconduct, a two-pronged test must be met:
(1) the remarks must be improper, and (2) the remarks must prejudicially affect the
substantial rights of the defendant.” United States v. Eyster, 948 F.2d 1196, 1206
(11th Cir. 1991). Attempts to bolster a witness by vouching for his credibility are
improper “if the jury could reasonably believe that the prosecutor indicated a
personal belief in the witness’ credibility.”
Id. “A jury could reasonably believe
the prosecutor’s indications if the prosecutor either places the prestige of the
government behind the witness, by making explicit personal assurances of the
witness’ veracity, or . . . implicitly vouches for the witness’ veracity by indicating
that information not presented to the jury supports the testimony.”
Id. However,
the prosecutor neither places the prestige of the government behind the witness nor
implicitly vouches for the witness’s credibility by questioning the witness about the
terms of his plea agreement requiring him to testify truthfully and completely.
United States v. Cano,
289 F.3d 1354, 1366 (11th Cir. 2002).
Here, the district court did not plainly err by permitting the government to
engage in prosecutorial misconduct. As the record shows, the prosecutor did not err
in referring to Worrills’s credibility on direct examination because Tucker attacked
Worrills’s credibility when he suggested during his opening statement that Worrills
7
was testifying against Tucker to help himself and Tucker was the only other person
besides himself who had been arrested and charged with committing the robberies.
Moreover, the prosecutor did not base his subsequent references to Worrills’s
credibility on the government’s reputation or evidence that was not before the jury.
Rather, the basis of the prosecutor’s questions and arguments was the plea
agreement, which obligated Worrills to testify truthfully. Cano, 289 F.3d at 1366.
We also find no merit in Tucker’s argument that the district court erred in
failing to dismiss the indictment after Worrills pleaded guilty. We have never
required district courts to order the government to reindict a defendant or to issue a
superseding indictment when a codefendant pleads guilty. Thus, because there is
no legal authority imposing such a requirement, the district court did not err in
failing to dismiss the indictment because it named both Tucker and Worrills, even
after Worrills pleaded guilty.
As for Tucker’s ineffective assistance of counsel claim, we decline to address
the issue. We generally do not consider claims of ineffective assistance of counsel
raised on direct appeal “where the district court did not entertain the claim nor
develop the factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th
Cir. 2002). An appellate court generally cannot adequately decide an
ineffective-assistance-of-counsel claim raised for the first time on direct appeal
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because the focus at trial was not whether defense counsel’s actions were
prejudicial or supported by reasonable strategy. Massaro v. United States, 538 U.S.
500, 504 (2003). The preferable means for deciding a claim of ineffective
assistance of counsel is through a 28 U.S.C. § 2255 motion to vacate, “even if the
record contains some indication of deficiencies in counsel’s performance.”
Id.
On this record, we decline to address Tucker’s ineffective-assistance-
of-counsel claims on direct appeal. Tucker did not raise the claim before the district
court and, as a result, the district court did not consider, or develop a factual record
relevant to, the claims.
Finally, we conclude that Tucker’s sufficiency of the evidence arguments are
baseless. The armed bank robbery statute provides that: “[w]hoever, by force and
violence, or by intimidation, takes. . . from the . . . presence of another . . . any . . .
money . . . belonging to, or in the care, custody, control, management, or possession
of, any bank . . .” shall be fined or imprisoned. 18 U.S.C. § 2113(a). Moreover, a
person who assaults any person or jeopardizes the life of any person “by the use of
a dangerous weapon or device” while committing or attempting to commit armed
bank robbery shall be fined or imprisoned for a maximum of 25 years, or both. 18
U.S.C. § 2113(d). Section 924(c) provides additional penalties for a person “who,
during and in relation to any crime of violence . . . , uses or carries a firearm, or
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who, in furtherance of any such crime, possesses a firearm” and provides a greater
penalty “if the firearm is brandished.” 18 U.S.C. § 924(c)(1)(A)(ii). Finally, a
person who “commits an offense against the United States or aids [or] abets . . . its
commission, is punishable as a principal.” 18 U.S.C. § 2(a). “To prove guilt under
a theory of aiding and abetting, the Government must prove: (1) the substantive
offense was committed by someone; (2) the defendant committed an act which
contributed to and furthered the offense; and (3) the defendant intended to aid in its
commission.” United States v. Camacho, 233 F.3d 1308, 1317 (11th Cir. 2000).
Questions of witness credibility are for the jury, and we assume the jury
answered them in a way that supports its verdict. United States v. Thompson, 473
F.3d 1137, 1142 (11th Cir. 2006). Moreover, an accomplice’s uncorroborated
testimony can be sufficient to prove guilt, even if the witness is an admitted
wrongdoer. Craig v. Singletary,
127 F.3d 1030, 1044-45 (11th Cir. 1997).
As for Tucker’s § 2113(a) and (d) convictions, Worrills’s testimony provided
sufficient evidence to support them under either a principal or aiding-and-abetting
theory of guilt. At trial, Worrills testified that he used a firearm to facilitate the
robberies, Tucker supplied a black, nine-millimeter pistol for that purpose, and
Tucker also carried a firearm. Moreover, Worrills testified that Tucker originally
presented the idea to rob the second bank, both Worrills and Tucker planned all
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three robberies, and Tucker assigned Worrills the role of keeping the customers and
employees inside the bank at bay while Tucker collected the money.
Based on this testimony -- that Tucker used and Worrills brandished a
firearm -- there was also sufficient evidence to support Tucker’s § 924(c)(1)(A)(ii)
conviction. Furthermore, the district court did not err by instructing the jury that it
could convict Tucker of violating § 924(c)(1)(A)(ii) if it found that he used or
carried a firearm, although the indictment charged Tucker with using and carrying a
firearm. Under § 924(c)(1)(A)(ii) and according to the instruction given to the jury,
the government was only required to show the use or carry element to prove guilt.
See 18 U.S.C. § 924(c)(1)(A)(ii) (providing additional penalties for a person who
“uses or carries a firearm” and, specifically, requiring a term of not less than seven
years’ imprisonment if the firearm is brandished). Because the indictment alleged
use and carry, each of which violates that statute, the indictment alleged more than
was required by the statute. See United States v. Simpson, 228 F.3d 1294, 1300
(11th Cir. 2000) (stating “the law is well established that where an indictment
charges in the conjunctive several means of violating a statute, a conviction may be
obtained on proof of only one of the means, and accordingly the jury instruction
may properly be framed in the disjunctive”). Thus, the district court did not err in
11
charging the jury in the disjunctive, although the indictment was worded in the
conjunctive. See id.
AFFIRMED.
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