United States v. Coleman

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 95-40073
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CEDRICK DEMOND COLEMAN,

Defendant-Appellant.

Appeal from the United States District Court
For the Eastern District of Texas
(6:94-CR-31-2)
November 1, 1995

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

BACKGROUND

Based on a Crimestoppers tip naming Cedrick Demond Coleman

(Coleman), Donald Ray Coleman (Donald), and Napoleon Beazley

(Beazley), Federal Bureau of Investigation (FBI) agents and local

law enforcement agents began an investigation in Grapeland, Texas,

*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
into the carjacking of a yellow Mercedes Benz and the murder of

John Luttig in Tyler, Texas, on April 19, 1994. FBI Special Agent

Dennis Murphy testified that Coleman voluntarily arrived at the

Houston County Sheriff's Department for questioning. After

initially denying involvement, Coleman told Murphy that he and

Beazley went to the mall in Corsicana, Texas, on April 18 because

Beazley wanted to "jack" a car. They did not find a suitable car

that night, so they decided to go home and to try again the next

night.

On April 19, Beazley, Coleman, and Coleman's brother, Donald,

went to Corsicana in an unsuccessful attempt to visit some of

Coleman's friends. They decided to drive to Tyler. Coleman told

Murphy that he was driving Beazley's parents' car, a maroon Ford

Probe. Beazley saw a Lexus and said that it was the car he wanted

to "jack" and instructed Coleman to follow it. Coleman said that

he let the car get away from them by slowing down. They went to

the mall in Tyler, but it was closed. They began heading home

towards Grapeland, but Beazley told Coleman to turn around and

return to Tyler.

Coleman told Murphy that after they left the Tyler mall, he

was driving the Probe. Beazley spotted a Mercedes Benz in a

parking lot of an El Chico restaurant and instructed Coleman to

pull into the parking lot. Coleman pulled next to the Mercedes and

Beazley got out of the Probe and "racked a[]round into the gun."

When a man spotted him, Beazley got back into the Probe and they

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left. They drove to Coffee Landing and switched drivers. Beazley

began driving and Coleman sat in the passenger seat.

On the highway heading into Tyler, Beazley spotted a Mercedes

Benz that he wanted to "jack." Beazley ran a red light, attempted

to catch up with the Mercedes, and followed it into a residential

neighborhood. Beazley stopped the Probe at the intersection of

Regency and Stagecoach, exited the car, and ran across a front lawn

and up a driveway. Coleman told Murphy that he and Donald stayed

in the car. When he heard a gunshot, Coleman said he ran to the

end of the driveway and saw Beazley standing over a man, looking

for the car keys.

Coleman later stated that Beazley exited the Probe at the

Luttigs' carrying a .45 handgun, which Coleman described as a

"large black gun" which Beazley's aunt had bought for him. Donald,

carrying a sawed-off shotgun, got out of the car "to see what [was]

going to happen." Coleman said that he did not get out of the car.

Coleman said that after the Mercedes pulled out of the driveway, he

crawled into the driver's seat of the Probe, turned the car around,

and followed the Mercedes.

Neighors testified that they awoke to the sound of three

gunshots. They looked out their windows and noticed a red "sporty

type" car with its headlights turned off turning the corner from

Regency onto Stagecoach. Because it backed up and pulled forward

several times, it was obvious to neighbors that the red car was

waiting on a car coming out of John and Bobbie Sue Luttig's

driveway on Regency.

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 Neighbors testified that they saw the Luttigs' yellow Mercedes

Benz backing out of the driveway very fast, hitting a landscape

retaining wall, pulling forward, then backing up again. One

neighbor stated that when the Mercedes Benz drove in front of her

house she could see the silhouette of two heads in the car and

noticed that the front grill of the car was full of shrubbery.

The Mercedes headed west on Regency, then turned north on

Stagecoach. As the Mercedes rounded the corner, the red car "took

off" in front of it.

About a quarter of a mile from the Luttigs' house some

shrubbery was found lying in the middle of an intersection. The

Mercedes Benz was found abandoned about "a mile to a mile and a

half" from the Luttigs' home. The car had a flat tire and some

shrubbery hanging from it. A palm print on the car matched that of

Napoleon Beazley's.

Coleman's neighbor, Sheri Lewis, testified that Coleman told

her that "they had attempted to jack a car" and that Beazley shot

a man. John Luttig had suffered a "grazing" gunshot wound to the

right side of his head and a fatal gunshot wound to the left side

of his head. The wounds were consistent with those caused by a .45

caliber handgun. Three .45 shell casings were found at the scene.

With Coleman's assistance, agents found a Haskell .45

automatic pistol, a box of cartridges, and a .12 gauge shotgun

directly across the street form Beazley's house. Shotgun shells

were found during a search of the Beazley's Probe. The barrel of

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the shotgun had been "very crudely cut." It was a functioning pump

or slide-action shotgun.

Smith Reynolds, general sales manager of a Mercedes

dealership, testified that all Mercedes passenger vehicles are

manufactured and assembled outside of the United States, in Germany

or South Africa. He testified that the Luttigs' Mercedes must have

traveled in foreign commerce.

Coleman and Donald were charged by indictment with one count

of carjacking in violation of the Anti Car Theft Act of 1992, 18

U.S.C. § 2119, and aiding and abetting in violation of 18 U.S.C.

§ 2 (Count 1); and two counts of using or carrying of a firearm

during a crime of violence in violation of 18 U.S.C. § 924(c)(1)

and aiding and abetting in violation of 18 U.S.C. § 2 (Count 2 --

.45 caliber handgun and Count 3 -- short-barreled shotgun).

The brothers were tried separately. A jury found Coleman guilty on

all three counts. The district court sentenced Coleman to 365

months imprisonment on Count 1; 60 months on Count 2, to be served

consecutively to Count 1; and 120 months on Count 3, to be served

consecutively to Count 1 and concurrently with Count 2, resulting

in a total term of imprisonment of 485 months, to be followed by

five years supervised release. Coleman filed a timely notice of

appeal. Coleman does not challenge his sentence.

OPINION

Coleman argues that there was insufficient evidence to support

his conviction on all three counts. He does not argue that Beazley

and Donald did not commit the carjacking. He argues that the

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evidence shows that he was an unwilling participant, that he did

not possess a firearm, that he did not carjack the Luttigs' car,

and that he was merely abandoned in the Probe when Beazley ran up

the Luttigs' driveway. Thus, he argues that the evidence was

insufficient to show that he aided and abetted the carjacking or

the use of the guns during a crime of violence.

Coleman also argues that the evidence was insufficient to show

that he had the requisite state of mind to support his conviction

on Count 3, aiding and abetting the use of the shotgun during a the

carjacking. He argues that the evidence shows that he did not know

of the shotgun until Donald got out of the Probe and walked up the

Luttigs' driveway.

At the close of the Government's case-in-chief, Coleman moved

for a judgment of acquittal and renewed it at close of all

evidence.

In reviewing the sufficiency of the evidence, this Court must

determine whether any reasonable trier of fact could have found

that the evidence established guilt beyond a reasonable doubt.

United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir. 1992),

cert. denied, 113 S. Ct. 1346 (1993). Reasonable inferences are

construed in accordance with the jury's verdict. Id. at 161. The

jury, moreover, is solely responsible for determining the weight

and credibility of the evidence. Id. This Court will not

substitute its own determination of credibility for that of the

jury. Id. The scope of appellate review remains the same whether

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the evidence is direct or circumstantial. United States v.

Lorence, 706 F.2d 512, 518 (5th Cir. 1983).

To support a conviction for carjacking under 18 U.S.C. § 2119,

the Government is required to prove that "`the defendant, (1) while

possessing a firearm, (2) took from the person or presence of

another (3) by force and violence or intimidation (4) a motor

vehicle which had moved in interstate or foreign commerce.'"

United States v. Harris, 25 F.3d 1275, 1279 (5th Cir.) (citation

omitted), cert. denied, 115 S. Ct. 458 (1994). To support a

conviction for using a firearm in the commission of a crime of

violence under 18 U.S.C. § 924(c)(1), the Government must prove

that "(1) the defendant knowingly used or carried a firearm, and

(2) the use or carrying of the firearm occurred during and in

relation to a `crime of violence.'" Id. (citation omitted).

To establish that a defendant aided and abetted, the

Government must show that the defendant "(1) associated with the

criminal enterprise; (2) participated in the venture; and (3)

sought by action to make the venture succeed." Id. Association

with the venture means the defendant shared the principal's

criminal intent; participation means "the defendant acted in some

affirmative manner designed to aid the venture." United States v.

Jaramillo, 42 F.3d 920, 923 (5th Cir.), cert. denied, 115 S. Ct.

2014 (1995). "Mere presence and association" alone are not enough

to sustain a conviction for aiding and abetting. Jaramillo, 42

F.3d at 923.

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 Our review of the record is hindered because neither the

videotape nor the transcripts of Coleman's statements were made

part of the record on appeal. The clerk's office indicates that no

additional boxes of evidence were filed with this appeal. On a

sufficiency challenge, it is the appellant's duty to include in the

record a transcript of all evidence relevant to that issue. Fed.

R. App. P. 10(b)(2), 11(a); Powell v. Estelle, 959 F.2d 22, 26 (5th

Cir.), cert. denied, 113 S. Ct. 668 (1992). If the appellant fails

to provide the necessary record for review of his issues, this

Court need not consider the issues on appeal. Id.; see Richardson

v. Henry, 902 F.2d 414, 416 (5th Cir.), cert. denied, 498 U.S. 901

(1990) and 498 U.S. 1069 (1991). "The failure of an appellant to

provide a transcript is a proper ground for dismissal of the

appeal." Id.

The evidence presented on appeal supports a reasonable

inference by the jury that Coleman knew about the guns in the car,

knew of the planned carjacking, and participated in it by waiting

in the Probe to see if the carjacking was successful and by driving

the Probe away from the scene of the crime. The evidence is

sufficient to establish that Coleman aided and abetted the use of

the shotgun during the carjacking. Coleman saw Donald get out of

the Probe carrying the sawed-off shotgun. Coleman also accurately

described the shotgun to officers, supporting a reasonable

inference that he saw and knew of the shotgun on the night of April

19. His argument that the evidence shows that he protested to the

earlier carjacking attempts, that he was "abandoned" in the Probe

8
while the carjacking was committed, and that he did not know about

the shotgun until Donald got out of the Probe is a challenge to the

weight of the evidence. The jury, as sole arbiter of the weight of

the evidence and the credibility of witnesses was entitled to

disbelieve Coleman's assertions that he was an unwilling

participant. See Martinez, 975 F.2d at 161.

Coleman argues that the district court's jury instructions

inadequately informed the jury of the elements necessary for an

"aiding and abetting" conviction.

Coleman did not submit proposed instructions on aiding and

abetting. He objected at trial to the aiding-and-abetting charge

on the grounds that (1) there was insufficient evidence to support

a conviction for aiding and abetting the carjacking, (2) the charge

reduced the Government's burden of proof by not tracking the

language of the indictment, and (3) there is no authority for a

conviction for aiding and abetting the possession of firearms

during a crime of violence.

Coleman also argues that the "[c]ourt's charge is plainly in

error in failing to clearly instruct the jury on the state of mind

required to convict [him] of Counts 2 and 3." He argues that the

district court failed to instruct the jury that to convict under §

924(c) "the government must prove that the defendant had knowledge

of each firearm in question."

Coleman asserts that he objected at trial to the jury charges

related to the firearms offenses. The Government argues that

Coleman did not raise this specific "state of mind" objection in

9
the district court. Coleman objected to the aiding-and-abetting

instructions in Counts 2 and 3 "as improperly extending and

expanding the definition of possession" because it allows the

Government to "convict the defendant on proof less than the proof

that would be required should the Government be held to what they

have pled in the indictment." Thus, whether the court erred in

instructing the jury on the grounds raised on appeal is reviewed

for plain error.

Under Fed. R. Crim. P. 52(b), this Court may correct forfeited

errors only when the appellant shows the following factors: (1)

there is an error, (2) that is clear or obvious, and (3) that

affects his substantial rights. United States v. Calverley, 37

F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United States v.

Olano, 113 S. Ct. 1770, 1776-79 (1993)), cert. denied, 115 S. Ct.

1266 (1995). If these factors are established, the decision to

correct the forfeited error is within the sound discretion of the

court, and the court will not exercise that discretion unless the

error seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Olano, 113 S. Ct. at 1778.

Parties are required to challenge errors in the district

court. When a defendant in a criminal case has forfeited an error

by failing to object, this Court may remedy the error only in the

most exceptional case. Calverley, 37 F.3d at 162. The Supreme

Court has directed the courts of appeals to determine whether a

case is exceptional by using a two-part analysis. Olano, 113 S.

Ct. at 1777-79.

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 First, an appellant who raises an issue for the first time on

appeal has the burden to show that there is actually an error, that

it is plain, and that it affects substantial rights. Olano, 113 S.

Ct. at 1777-78; United States v. Rodriguez, 15 F.3d 408, 414-15

(5th Cir. 1994); Fed. R. Crim. P. 52(b). Plain error is one that

is "clear or obvious, and, at a minimum, contemplates an error

which was clear under current law at the time of trial."

Calverley, 37 F.3d at 162-63 (internal quotation and citation

omitted). "[I]n most cases the affecting of substantial rights

requires that the error be prejudicial; it must affect the outcome

of the proceeding." Id. at 164. This Court lacks the authority to

relieve an appellant of this burden. Olano, 113 S. Ct. at 1781.

Second, the Supreme Court has directed that, even when the

appellant carries his burden, "Rule 52(b) is permissive, not

mandatory. If the forfeited error is `plain' and `affect[s]

substantial rights,' the Court of Appeals has authority to order

correction, but is not required to do so." Olano, 113 S. Ct. at

1778 (quoting Fed. R. Crim. P. 52(b)) (alterations in original).

As the Court stated in Olano:

the standard that should guide the exercise of
[this] remedial discretion under Rule 52(b)
was articulated in United States v. Atkinson,
297 U.S. 157, 56 S. Ct. 391, 80 L. Ed. 555
(1936). The Court of Appeals should correct a
plain forfeited error affecting substantial
rights if the error "seriously affect[s] the
fairness, integrity or public reputation of
judicial proceedings."

Olano, 113 S. Ct. at 1779 (quoting Atkinson, 297 U.S. at 160)

(alterations in original). Thus, this Court's discretion to

11
correct an error pursuant to Rule 52(b) is narrow. Rodriguez, 15

F.3d at 416-17.

The district court has substantial latitude in tailoring its

instruction if it fairly and adequately covers the issues presented

in the case. United States v. Masat, 948 F.2d 923, 928 (5th Cir.

1991), cert. denied, 113 S. Ct. 108 (1992). This Court will review

whether the instruction, "as a whole, is a correct statement of the

law and whether it clearly instructs jurors as to the principles of

law applicable to the factual issues confronting them." United

States v. Brown, 49 F.3d 135, 137 (5th Cir. 1995) (internal

quotations and citation omitted).

The elements of aiding and abetting are that the defendant (1)

associated with the criminal enterprise, i.e. shared the

principal's criminal intent; (2) participated in the venture by

acting in an affirmative manner; and (3) sought by his action to

make the venture succeed. Harris, 25 F.3d at 1279; Jaramillo, 42

F.3d at 923.

The district court instructed the jury that "if the defendant

joins another person and performs acts with the intent to commit a

crime, then the law holds the defendant responsible for the acts

and conduct of such other persons as though the defendant had

committed the acts or engaged in such conduct." The court stated

that "the accused [must] deliberately associate himself in some way

with the crime and participate in it with the intent to bring about

the crime." The district court admonished the jury that it "may

not find any defendant guilty unless you find beyond a reasonable

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doubt that every element of the offense as defined in these

instructions was committed by some person or persons, and that the

defendant voluntarily participated in its commission with the

intent to violate the law."

The district court's aiding-and-abetting instruction was a

correct statement of the law applicable to this case. See Harris,

25 F.3d at 1279; Jaramillo, 42 F.3d at 923. Thus, the district

court did not commit any error, plain or otherwise, in instructing

the jury on aiding and abetting.

The district court instructed the jury that Coleman was

charged in Counts 2 and 3 with aiding and abetting the use or

carrying of a firearm during the commission of a crime of violence.

The district court instructed the jury that to convict Coleman on

these counts, the Government must have proved beyond a reasonable

doubt, (1) that Coleman committed the offense of aiding and

abetting carjacking as charged in Count 1; (2) Donald or Beazley

knowingly and intentionally used or carried a .45 caliber pistol

and a short-barrelled shotgun during or in relation to a crime of

violence; and (3) that Coleman knowingly and intentionally aided

and abetted, counseled, induced, or procured Donald or Beazley to

use or carry those firearms during a crime of violence. The

district court stated that his previous instructions concerning

aiding and abetting also applied to these two counts.

The district court defined "knowingly" as "to do something

voluntarily and intentionally, and not because of a mistake or

accident or other innocent reason." He defined a willful act as

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one "done voluntarily and intentionally and with specific intent to

do something the law forbids, that is to say, with bad purpose

either to disobey or to disregard the law."

The district court's instruction as a whole adequately

informed the jury of the knowledge requirement for a conviction for

aiding and abetting the use of a firearm in connection with a crime

of violence. The instruction was an accurate statement of the law,

thus the district court did not commit error, plain or otherwise.

See Harris, 25 F.3d at 1279.

Coleman's defense at trial was that he, "if guilty of

anything, was guilty of not reporting what happened as soon as he

should have, and at most, as an accessory after the fact." Coleman

requested jury instructions on misprision of a felony and accessory

after the fact. He objected to the district court's refusal to

include these charges.

Citing Mathews v. United States, 485 U.S. 58, 63 (1988),

Coleman argues that he was entitled to an instruction on this

defense because there was sufficient evidence for the jury to find

him guilty of misprision or of being an accessory after the fact.

He argues that "[g]iven the fact that [his] sole defenses rested

upon the defenses of misprision and accessory after the fact, the

failure to give the instructions seriously impaired [his] defense."

Guilt of a lesser included offense is not a defense to the

greater offense. See United States v. Valencia, 957 F.2d 1189,

1198 (5th Cir.), cert. denied, 113 S. Ct. 254 (1992). Under Fed.

14
R. Crim. P. 31(c), a defendant is entitled to a jury instruction on

a lesser included offense only if "(1) the elements of the offense

are a subset of the elements of the charged offense and (2) the

evidence at trial permits a jury to rationally find the defendant

guilty of the lesser offense yet acquit him of the greater."

United States v. Deisch, 20 F.3d 139, 142 (5th Cir. 1994). This

Court reviews de novo the district court's determination whether an

offense is a lesser included offense of the crime charged. United

States v. Harrison, 55 F.3d 163, 167 (5th Cir. 1995). The

determination whether a rational jury could convict the defendant

of the lesser included offense is reviewed for an abuse of

discretion. Id. at 167-68.

In evaluating the first prong, this Court applies the

"statutory elements" test. Deisch, 20 F.3d at 143. Under the

statutory-elements test, "`an offense is not lesser included unless

each statutory element of the lesser offense is also present in the

greater offense.'" Id. (citation omitted).

Thus, the district court should have given a lesser included

offense instruction only if all of the elements of misprision or of

accessory after the fact are also elements of aiding and abetting

or of the carjacking or firearm offenses. The elements of

misprision of felony are "(1) the defendant had knowledge that a

felony was committed; (2) the defendant failed to notify

authorities of the felony; and (3) the defendant took an

affirmative step to conceal the felony." United States v. Adams,

961 F.2d 505, 508 (5th Cir. 1992); 18 U.S.C. § 4.

15
 Concealment and failure to notify authorities are not elements

of aiding and abetting. 18 U.S.C. § 2. Nor are they elements of

the carjacking or firearms charges. 18 U.S.C. §§ 2119 and

924(c)(1). Thus, Coleman was not entitled to a lesser-included-

offense instruction on misprision.

An accessory after the fact, (1) knowing that another has

committed an offense, (2) gives comfort or assistance to the

offender (3) for the purpose of hindering or preventing his

apprehension, trial, or punishment. 18 U.S.C. § 3; United States

v. Triplett, 922 F.2d 1174, 1180 (5th Cir.), cert. denied, 500 U.S.

945 (1991). The required purpose of avoiding justice is not an

element of any of the charged offenses. See 18 U.S.C. §§ 2, 2119,

and 924(c)(1). Coleman was not entitled to a lesser-included-

offense instruction on accessory after the fact. Thus, the

district court did not abuse its discretion by refusing to give

such an instruction.

AFFIRMED

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