[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
FILED
No. 10-12584 U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
JAN 12, 2012
D. C. Docket No. 1:09-cr-00245-WSD-AJB-1 JOHN LEY
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG COURTNEY CARROLL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(January 12, 2012)
Before EDMONDSON, BLACK, and WILSON, Circuit Judges.
PER CURIAM:
Craig Courtney Carroll appeals his convictions and 295-month total
sentence for interference with interstate commerce through robbery (Count 1), use
of a firearm during a crime of violence (Count 2), and possession of a firearm by a
convicted felon (Count 3), in violation of 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A)(ii),
1951. Based on the evidence presented at trial, Carroll robbed an armored car at
gunpoint when it stopped to deliver money to a convenience store. No reversible
error has been shown; we affirm.
On appeal, Carroll argues that the district court erred in denying his motion
for judgment of acquittal based on his claim that the indictment was amended
impermissibly. We review de novo the district court’s denial of a motion for
judgment of acquittal. United States v. Ward, 486 F.3d 1212, 1220 (11th Cir.
2007). And we review de novo the sufficiency of an indictment. United States v.
Wayerski, 624 F.3d 1342, 1349 (11th Cir. 2010).
The Fifth Amendment guarantees that a defendant can be convicted only of
crimes charged in the indictment. Ward, 486 F.3d at 1226. Thus, the constructive
amendment of an indictment -- which 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” -- constitutes per se
reversible error. Id. at 1226-27. A variance, on the other hand, requires reversal
only if the defendant establishes that the variance substantially prejudiced his
essential rights. Id. at 1227. A variance “occurs when the facts proved at trial
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deviate from the facts contained in the indictment but the essential elements of the
offense are the same.” Id.
Here, Count 1 of Carroll’s indictment alleged that he stole money
“belonging to” Dunbar Armored Car Company, but the evidence introduced at
trial established that the stolen money belonged to the convenience store owner.
Based on this discrepancy, Carroll moved for judgment of acquittal, arguing that
the government failed to prove that he was guilty of Count 1 as charged.1 The
district court denied Carroll’s motion, concluding that the language about the
ownership of the money could be ignored as surplusage. We agree.
Carroll does not dispute that the indictment alleged both essential elements
of a section 1951(a) violation, including that he committed a robbery and that the
robbery had an effect on interstate commerce. See United States v. Dean, 517
F.3d 1224, 1227-28 (11th Cir. 2008) (explaining that “[t]o obtain a conviction for
conspiring to interfere with interstate commerce through robbery, in violation of
[section 1951(a)], the government need only prove a robbery and effect on
commerce.”). Meanwhile, ownership of the stolen property is not an essential
element of that offense. See id. Thus, that portion of Carroll’s indictment was
1
Carroll also argues that his conviction for use of a firearm during a crime of violence, pursuant
to 18 U.S.C. § 924(c), is invalid because it relied on his conviction in Count 1 as an underlying
offense.
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“unnecessary to and independent of the allegations of the offense” and could be
ignored. See Ward, 486 F.3d at 1227.
Because submission of Carroll’s case to the jury -- despite evidence that
Dunbar did not in fact own the stolen money -- did not alter the essential elements
of the offense, it did not constitute a constructive amendment. See id. at 1226. It
did, however, constitute a variance because the facts proved at trial deviated from
those alleged in the indictment. See id. at 1227. Carroll fails, however, to argue
on appeal either that he was substantially prejudiced by the variance or that the
surplusage should not have been ignored. Thus, he abandons those arguments and
fails to demonstrate reversible error. See id.; United States v. Jernigan, 341 F.3d
1273, 1283 n.8 (11th Cir. 2003).
Carroll also argues that the district court abused its discretion when it
excluded the polygraph test results of a government witness, which Carroll sought
to introduce for impeachment purposes. We review a district court’s decision to
exclude the results of a polygraph test for abuse of discretion. United States v.
Henderson, 409 F.3d 1293, 1303 (11th Cir. 2005). Polygraph results may be
introduced for impeachment purposes only if, among other things, the evidence is
admissible under the Federal Rules of Evidence. Id. at 1302.
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We are unpersuaded that the district court abused its discretion in refusing
to admit the polygraph results into evidence. First, Carroll sought to introduce the
polygraph results during the cross-examination of a government witness who
neither discussed the polygraph test during his direct examination nor had
personal involvement with administering the test. As such, Carroll’s line of
questioning was outside the scope of cross-examination; and the district court had
discretion to exclude the evidence.2 See Fed.R.Evid. 611(b); United States v.
Guzman, 167 F.3d 1350, 1352 (11th Cir. 1999) (noting that “[a] district court has
wide discretion to control the cross-examination of witnesses”). Second, it was
within the district court’s discretion to exclude the polygraph evidence as
unreliable under Fed.R.Evid. 702 and unduly prejudicial under Fed.R.Evid. 403,
particularly when no expert witness was present to explain the meaning of and
context of the results. See United States v. Gilliard, 133 F.3d 809, 812 (11th Cir.
1998) (concluding that the district court did not abuse its discretion in refusing to
admit polygraph evidence that it determined was inadmissible under Rules 403
and 702).
AFFIRMED.
2
Although the district court did not expressly rely on this reason in its ruling, we may affirm “for
any reason supported by the record.” See United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.
2008).
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