F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS MAR 24 2000
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-3083
v. (D.C. No. 98-CR-20044)
(Kansas)
ANTHONY HODGES,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
Anthony Hodges appeals his convictions under 18 U.S.C. §§ 841(a) and 2
for possession of a controlled substance with intent to distribute or for aiding and
abetting the same. We affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
On May 4, 1998, the Kansas City Police Department attempted to stop a
vehicle in which they believed narcotics were being carried. When the driver of
the vehicle failed to stop, an unmarked police vehicle pulled along side of it.
Both officers in the unmarked vehicle testified that they could see the frontseat
passenger pass drugs to the backseat passenger, who then secreted the drugs in
her pants. At trial it was established that Mr. Hodges was the frontseat passenger
and Joegina Davis was the backseat passenger. After successfully stopping the
vehicle, police found ten ounces of crack cocaine secreted down the front of Ms.
Davis’ pants.
At trial, Ms. Davis testified that once they realized they were being pulled
over by officers, Mr. Hodges passed the drugs to her to hide on her person. Mr.
Hodges argues on appeal that officers coerced this testimony from Ms. Davis
making its admission against him a violation of his due process rights. Because
Mr. Hodges failed to object, we review the court’s admission of Ms. Davis’
testimony for plain error. See Fed. R. Crim. P. 52(b). “‘Plain error is that which
is obvious, or which seriously affects the fairness or integrity of the trial.’”
United States v. Deters, 184 F.3d 1253, 1258 (10th Cir. 1999) (quoting United
States v. Enjady, 134 F.3d 1427, 1435 (10th Cir. 1998)).
We have previously held that a defendant’s due process rights are violated
where a witness is coerced into making false statements and those statements are
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admitted at the defendant’s trial. See United States v. Gonzales, 164 F. 3d 1285,
1289 (10th Cir. 1999); Clanton v. Cooper, 129 F.3d 1147, 1157-58 (10th Cir.
1997). Both Gonzales and Clanton relied on the premise that involuntary or
coerced statements are presumed unreliable. It is because of this unreliability that
a defendant may object to its use at trial. See Gonzales, 164 F.3d at 1291 n.2;
Clanton, 129 F.3d at 1157-58; see also Buckley v. Fitzsimmons, 20 F.3d 789, 795
(7th Cir. 1994) (coerced confessions are less reliable than voluntary ones, making
their use at trial a violation of defendant’s due process rights); People v. Douglas,
788 P.2d 640, 655 (Cal. 1990) (“the exclusion is based on the idea that coerced
testimony is inherently unreliable, and that its admission therefore violates
defendant’s right to a fair trial”).
Mr. Hodges does not attempt to argue that Ms. Davis’ testimony was
unreliable or false, and any such argument would fail since two officers fully
corroborated her testimony. Even if Ms. Davis’ testimony was coerced, therefore,
any unreliability was overcome by the officers’ corroboration and it could not
have adversely affected the fairness of Mr. Hodges’ trial. See, e.g., Wilcox v.
Ford, 813 F.2d 1140, 1149 (11th Cir. 1987) (admission of allegedly coerced
witness testimony did not violate defendant’s due process rights where testimony
was corroborated by other evidence and thus not unreliable); Williams v.
Calderon, 48 F. Supp.2d 979, 1001-02 (C.D. Cal. 1998) (corroboration by other
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witnesses demonstrated reliability of alleged coerced testimony and therefore
admission did not violate defendant’s due process rights).
Mr. Hodges next argues the district court erred in giving an aiding and
abetting instruction. When objecting to the instruction, Mr. Hodges argued to the
district court, as he does here on appeal, that the government failed to bring forth
any evidence showing Ms. Davis had the intent to distribute the narcotics found in
her possession on May 4. We review the court’s decision on whether to give a
particular jury instruction for an abuse of discretion. See United States v. Adkins,
196 F.3d 1112, 1114 (10th Cir. 1999).
“[A]s a prerequisite to aiding and abetting the government is required to
prove that ‘someone has committed’ the underlying substantive offense.” United
States v. Langston, 970 F.2d 692, 705 n.12. After reviewing the trial testimony,
we believe the government has proven such here. Ms. Davis testified that Mr.
Hodges gave her the narcotics found in her possession on May 4, and that she
voluntarily pled guilty to possession with intent to distribute those narcotics. Ms.
Davis also testified that she had sold crack cocaine in the past, and she believed
the crack cocaine found in her possession on May 4 would also be sold. Ms.
Davis’ testimony establishes that she committed the substantive offense of
possession with intent to distribute, and that Mr. Hodges aided and abetted her
commission of that offense by passing her the crack cocaine. “When more than
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one person is involved in a criminal act, the district court may properly submit an
aiding and abetting instruction to the jury,” United States v. Scroger, 98 F.3d
1256, 1262 (10th Cir. 1996), and the district court did not abuse its discretion in
doing so here.
Mr. Hodges’ final argument is that the aiding and abetting instruction failed
to properly state the law. We review the jury instruction de novo to determine
whether it accurately stated the governing law. See Adkins, 196 F.3d at 1114.
Mr. Hodges contends the aiding and abetting instruction given at his trial failed to
instruct the jury that the government must prove someone besides the defendant
committed the substantive offense.
This argument ignores the substance of the jury instruction. The instruction
stated that to convict Mr. Hodges for aiding and abetting, the jury must “find
beyond a reasonable doubt” that the charged act was “done by another person or
persons than the defendant, but that said defendant willfully aided [and] abetted .
. . the commission of the act.” Rec., vol. I, doc. 21, Instruction No. 11 (emphasis
added). This instruction clearly states that the jury must find someone besides
Mr. Hodges guilty of the substantive crime to find him guilty of aiding and
abetting. Mr. Hodges’ argument in this regard is without merit.
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Mr. Hodges’ convictions are AFFIRMED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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