Case: 10-60917 Document: 00511779698 Page: 1 Date Filed: 03/07/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 7, 2012
No. 10-60917 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
ANTONIO TURNER,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
Before CLEMENT, OWEN, and HIGGINSON, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Antonio Turner was convicted of robbery in interference with interstate
commerce, carjacking, the use of a firearm in relation to each of those offenses,
and being a felon in possession of a firearm. Turner asserts eleven claims of
error. We affirm the judgment of the district court.
I
Two masked men armed with handguns robbed Title & Payday Loans
(Title Loans) in Jackson, Mississippi. No shots were fired during the two-minute
robbery, which was captured on the business’s security camera. According to a
videotaped confession by Antonio Turner, he was one of the robbers and
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Cornelius Black was the other. Turner has asserted, both below and on appeal,
that his confession was unlawfully coerced through violence, threats, and
promises.
The same day of and shortly after the Title Loans robbery, a Popeyes
restaurant in Jackson was also robbed. As the perpetrators fled the scene,
Officer Dewayne Collier of the Jackson Police Department gave chase until the
getaway car crashed, at which point one of the robbers (Turner, according to his
confession) began firing at Officer Collier, who was in his patrol car, wounding
him in the neck. The shooter then stole the patrol car and fled. The patrol
vehicle was found abandoned on Norman Street, where a police officer saw an
unidentified person running into the woods. Turner was arrested near the same
woods later that day. Cornelius Black was arrested near the scene of the
shooting.
Turner was tried on charges of robbery in interference with interstate
commerce (the Title Loans robbery) (in violation of 18 U.S.C. § 1951), use of a
firearm in relation to a crime of violence (robbery) (in violation of 18 U.S.C.
§ 924(c)(1) and (2)), carjacking resulting in injury (in violation of 18 U.S.C.
§ 2119), use of a firearm in relation to a crime of violence (carjacking) (in
violation of 18 U.S.C. § 924(c)(1)), and being a felon in possession of a firearm (in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)). The jury convicted him of
robbery, use of a firearm in relation to robbery, and being a felon in possession,
but the jury was unable to reach a verdict on the charges of carjacking and use
of a firearm during a carjacking. In a subsequent retrial, Turner was convicted
of the latter two offenses.
In this appeal, Turner challenges his convictions on all five counts as well
as his sentence. Because Turner was not sentenced for any of his convictions
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until after his second trial, all of his claims of error relating to both trials are
properly before this court at this time.1
II
Turner first asserts that the district court erred by denying his motion for
a new trial on the robbery counts and the felon-in-possession count in light of
evidence that had been lost at the Jackson Police Department and not found
until after the first trial. Once he became aware of the new evidence, Turner
moved for a new trial on two alternative grounds: as a result of newly discovered
evidence under Federal Rule of Criminal Procedure 33 and based on a violation
of the Brady rule.2
Turner’s defense during both trials was that he was one of three men
involved in the crimes but that he did not personally rob Title Loans or shoot
Officer Collier. He asserts that evidence discovered after his first trial supports
this defense. The primary new evidence at issue was contained in two brown
paper grocery bags discovered behind a cubicle at the Jackson Police
Department. One of the bags held a pair of blue denim jeans, a white tank-top
style T-shirt, a pair of white Reebok athletic shoes, a black knit style “do-rag,”
and a cellular telephone. Because the contents were similar to what Turner had
been wearing when he was arrested, this bag was labeled “Antonio Turner” by
the officer who found it. The other bag contained two pairs of black tennis shoes,
a cellular telephone, white footies, and $316 in cash. Because it was found
alongside what was thought to be Turner’s clothing, this bag was labeled
“Cornelius Black” by the officer.
All these items were tested for blood and DNA. None was found on one of
the phones, however, blood or DNA was found on several items. Blood on the
1
See Berman v. United States, 302 U.S. 211, 212 (1937) (holding that the final
judgment in a criminal case is the sentence).
2
See Brady v. Maryland, 373 U.S. 83 (1963).
3
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white tank-top matched Turner’s DNA, but blood on the jeans was from an
unknown woman. DNA recovered from the white Reebok athletic shoes and one
of the cellular phones did not match Turner’s, Black’s, or Collier’s DNA. DNA
from the black tennis shoes came from two individuals, one of whom was Collier,
but the identity of the other person was unknown. In sum, the evidence
indicated that DNA on some of the items came from two different individuals,
one of whom was female, and the other of whom was not Turner, Black, or
Collier.
In his Rule 33 motion, Turner also cites as new evidence a police interview
conducted after the first trial with Jim Vlach, who told police that, around the
time and place of the robbery, he “saw two vehicles speed past his business” with
police cars in pursuit. Turner also points to a fingerprint and palm-print
analysis, performed after the first trial, of Officer Collier’s patrol car. This
analysis found Officer Collier’s prints on the vehicle, but it did not find prints
from Turner.
Turner asserts that the existence of the third pair of shoes found in one of
the paper bags discovered after the first trial supports his version of events. He
also points to the bloody tank-top as evidence that he was beaten by the police
to coerce a confession.
A
In Brady v. Maryland, the Supreme Court held that “the suppression by
the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”3 Turner contends
that the evidence discovered after his first trial entitles him to a new trial on the
counts for which he was convicted in the first trial. We review the denial of a
3
Id. at 87.
4
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motion for a new trial for abuse of discretion but consider alleged Brady
violations de novo.4 This de novo review “must proceed with deference to the
factual findings underlying the district court’s decision.”5
“[F]avorable evidence is material, and constitutional error results from its
suppression by the government, if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.”6 “Reasonable probability” means “a probability sufficient to
undermine confidence in the outcome.”7
The evidence here does not meet this standard. It is unlikely Turner’s
confession would have been deemed coerced based on the finding of his blood on
the tank-top when he had been involved in at least one car accident on the same
day and when the determination of a lack of coercion involved numerous other
factors. The jury heard a great deal of evidence implicating Turner, including
his confession. The third pair of shoes, with no chain of custody and no certain
tie to the case, and the bloody tank top, both found in a bag in a police station,
might have slightly bolstered Turner’s arguments had he had access to them.
But this possibility is insufficient to undermine our confidence in the outcome
of his first trial when these items were unavailable.
B
Turner contends that he is entitled to a new trial under Federal Rule of
Criminal Procedure 33, which permits a court to “vacate any judgment and grant
a new trial if the interest of justice so requires.” We review a district court’s
4
United States v. Severns, 559 F.3d 274, 278 (5th Cir. 2009).
5
Id. (internal quotation marks omitted).
6
Kyles v. Whitley, 514 U.S. 419, 433-34 (1995) (quoting United States v. Bagley, 473
U.S. 667, 682 (1985) (opinion of Blackmun, J.); id. at 685 (White, J., concurring in part and
concurring in judgment)) (internal quotation marks omitted).
7
Bagley, 473 U.S. at 682 (opinion of Blackmun, J.) (internal quotation marks omitted).
5
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decision regarding a Rule 33 motion for an abuse of discretion.8 “Such motions
are disfavored and reviewed with great caution.”9 When the basis of the motion
is newly discovered evidence, we apply the “Berry rule,”10 under which the
defendant must show
(1) that the evidence is newly discovered and was unknown to him
at the time of trial; (2) that the failure to discover the evidence was
not due to his lack of diligence; (3) that the evidence is not merely
cumulative, but is material; and (4) that the evidence would
probably produce an acquittal.11
Here, the first two elements are not in dispute, as the items in the grocery
bags were genuinely lost and could not have been discovered by Turner until
they were found behind the cubicle. The interview with Vlach and the print
analyses were not conducted until after the first trial. At issue is whether this
evidence is material, not merely cumulative, and whether it would probably lead
to an acquittal.
For the same reasons that we concluded that the blood on the tank-top and
the third pair of shoes did not require a new trial under Brady, we also conclude
that this evidence would not “probably produce an acquittal.” The interview
with Vlach was cumulative of Turner’s other evidence of a third robber and
would add little persuasive force to a theory the jury had considered and
rejected.
The palm and fingerprint analysis that failed to find Turner’s prints on
Collier’s patrol car is not an appropriate issue for this new-trial motion as the
8
United States v. Wall, 389 F.3d 457, 465 (5th Cir. 2004) (citing United States v.
O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997)).
9
Severns, 559 F.3d at 280 (citing United States v. Erwin, 277 F.3d 727, 731 (5th Cir.
2001)).
10
See Berry v. Georgia, 10 Ga. 511 (1851).
11
United States v. Blackthorne, 378 F.3d 449, 452 (5th Cir. 2004) (quoting United
States v. Gresham, 118 F.3d 258, 267 (5th Cir. 1997)).
6
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analysis was performed before the trial that actually convicted Turner on the
carjacking and related use of a firearm counts. Turner argues that, since the
court considered all of the counts “inextricably intertwined,” we should consider
evidence on one count relevant to all counts. But the first jury did not convict
on the carjacking counts, and Turner offers no basis upon which to conclude that
presenting that same jury with evidence that might have undercut Turner’s guilt
on the carjacking counts would probably have led it to acquit on the robbery
counts.
III
Turner argues that the court erred by failing to grant his motion to sever
the charges against him and hold three separate trials (one on the robbery and
accompanying weapon count, another on the carjacking and accompanying
weapon count, and a third on the felon-in-possession count). He also asserts it
was error for the district court to deny his motion to exclude evidence of the
robberies from the second trial on the carjacking counts.
A
“We review the denial of a motion for severance for abuse of discretion. We
do not reverse unless there is clear prejudice to the defendant.”12 In many
instances, prejudice from failure to sever counts can be cured through an
appropriate jury instruction, and we have noted that juries are presumed to
follow such instructions.13
With respect to the robbery and carjacking counts in the first trial, the
district court gave a limiting instruction identical to one that this court has
12
United States v. Hickerson, 489 F.3d 742, 746 (5th Cir. 2007) (citations omitted)
(internal quotation marks omitted) (citing United States v. McCarter, 316 F.3d 536, 538 (5th
Cir. 2002)); see also FED. R. CRIM. P. 14(a).
13
E.g., Hickerson, 489 F.3d at 746 (citing United States v. Bullock, 71 F.3d 171, 175 (5th
Cir. 1995)).
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previously approved as curing the sort of prejudice that could occur in a case like
this one—that is, the possibility that a jury might consider evidence pertaining
to one count as evidence of another.14 Turner’s purported proof that he was
actually prejudiced is that the first jury failed to convict on the carjacking counts
but rendered a guilty verdict on the robbery counts. However, this tends to show
that the jury could distinguish between the two sets of charges and did in fact
follow its instructions. Because Turner has not shown clear prejudice, the
district court did not abuse its discretion in declining to sever the robbery and
carjacking counts.
B
Felon-in-possession-of-a-firearm charges present special prejudice
concerns that are not reflected in the usual presumption in favor of joinder.15 To
prosecute these charges, the Government must introduce evidence of the
defendant’s prior felonies, evidence that would otherwise be inadmissible in most
cases.16 We have noted that, sometimes, not even a limiting jury instruction can
cure the prejudice inherent in joining a charge of this nature.17 But such a
charge need not always be severed. We have permitted joinder when the weapon
was found during the investigation of the other offenses charged, when the
weapon might have been available for use during the other offenses, and a
limiting instruction was given.18 We have been less inclined toward joinder
when the firearm was less relevant to the other offenses, such as when it was
14
See id.
15
See United States v. McCarter, 316 F.3d 536, 538 (5th Cir. 2002).
16
See id.
17
See id. at 538-39.
18
Bullock, 71 F.3d at 175.
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found at the time of arrest, months after the other indicted crimes;19 when the
possibility of prejudice seemed especially problematic, such as when the evidence
for the other crimes was “thin,” though legally sufficient;20 or when the
prosecutor’s motives for adding the charge seemed suspect or was merely a
technique to introduce evidence of the defendant’s bad character into evidence.21
None of these concerns applies here. In this case, the firearm was found
in a police car shortly after Turner allegedly drove and wrecked that vehicle. An
appropriate limiting instruction was given.22 Most importantly, the possibility
of prejudice or improper prosecutorial motive is reduced because evidence of
Turner’s prior felony convictions would have been relevant and admissible for
other purposes, which include to explain why he would have fled from police23
and to allow evaluation of the voluntariness of his confession in light of his past
experiences with law enforcement. Because his prior conviction would have been
just as admissible in the absence of joinder, Turner cannot demonstrate any
additional prejudice resulting from the joinder.24 Therefore, the district court did
not abuse its discretion in failing to sever the felon-in-possession count.
C
19
United States v. Holloway, 1 F.3d 307, 310-11 (5th Cir. 1993).
20
McCarter, 316 F.3d at 539-40.
21
Id. at 540-41; Holloway, 1 F.3d at 310.
22
The district court instructed the jury as follows:
The fact that the defendant was previously found guilty of another crime
does not mean that the defendant committed the crimes for which the
defendant is on trial, and you must not use this prior conviction as proof
of the crimes charged in this case other than as it relates to the charge
in count five that he was a convicted felon in the possession of a firearm.
23
See FED. R. EVID. 404(b) (evidence of prior crimes admissible to show motive).
24
See United States v. Park, 531 F.2d 754, 763 (5th Cir. 1976).
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Before Turner’s second trial, he raised similar prejudice concerns in a
motion in limine to exclude evidence of both the Title Loans and Popeyes
robberies from his trial on the carjacking counts as barred by Federal Rule of
Evidence 404(b). When a party has made a timely objection to the admission of
evidence, we review the district court’s ruling for abuse of discretion.25 Under
Rule 404(b), “[e]vidence of a crime, wrong, or other act is not admissible to prove
a person’s character in order to show that on a particular occasion the person
acted in accordance with the character,” but such evidence may be used for other
purposes, such as demonstrating motive.
The rule, however, applies only to acts extrinsic to the ones charged, and
the rule thus does not exclude evidence of acts intrinsic to the crimes of
indictment.26 “‘Other act’ evidence is ‘intrinsic,’” and not subject to the rule,
“when the evidence of the other act and the evidence of the crime charged are
‘inextricably intertwined’ or both acts are part of a ‘single criminal episode’ or
the other acts were ‘necessary preliminaries’ to the crime charged.”27 The
district court concluded that the robberies met all of these criteria; the robberies
set in motion the chain of events that the Government contends led to the
carjacking. The district court did not abuse its discretion in concluding that this
logical connection removed evidence of the robberies from the constraints of Rule
404(b) and in deciding that such evidence was admissible.
IV
While in police custody, Turner confessed to the robberies and the
carjacking, and that confession was videotaped. Before his first trial, he alleged
25
United States v. Westmoreland, 841 F.2d 572, 578 (5th Cir. 1988).
26
See United States v. Torres, 685 F.2d 921, 924 (5th Cir. 1982).
27
United States v. Williams, 900 F.2d 823, 825 (5th Cir. 1990) (quoting Torres, 685 F.2d
at 924).
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that this confession was coerced through improper police conduct, and the
district court held a suppression hearing before admitting the video. Turner
asserts on appeal that the failure to suppress the confession should be reversed.
According to Turner’s hearing testimony, the officer who arrested him
threw him to the ground and put a knee in his back. Another officer put his foot
on Turner’s head and kicked him in the face, causing him to bleed from his
mouth and nose. An officer told him, “You know, you f[_ _ _] with our family, we
f[_ _ _] with yours,” which Turner interpreted to be a threat against his mother
and other family members. He also indicated that the same officer pointed his
gun at him before transporting him to the police station. Several other officers
also referred to Turner’s mother and family, such as telling him they had spoken
with his mother.
The district court made several factual findings as a result of the hearing.
The court found no evidence to contradict Turner’s claim that he was kicked and
“treated roughly” but found that he was not seriously injured. It also found, “[a]s
a question of fact,” that the arrest did not affect the voluntariness of the
confession, based in part on Turner’s lack of a fearful demeanor on the video or
any spoken indication that he was being coerced and on a waiver he signed
before confessing that said he was not being coerced.
With respect to the threats alleged by Turner, the district court considered
this issue to turn on credibility and credited the police officers’ testimony and not
Turner’s based on the witnesses’ demeanor in court and Turner’s three prior
felony convictions. The court also noted that Turner’s family was discussed only
“in a respectful way” during the interview and that Turner never mentioned any
threats on the video. Taking all these factors together, the court did not find the
allegation of threats credible.
As to the issue of interrogation tactics, the court noted Turner’s
“knowledge of the system” from prior offenses and his indication on the video
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that he knew “the detectives were not the ones who would make the final
decision” about the charges he would face, charges upon which Turner stated “he
[knew] he [would] be convicted, no matter what.” In light of all these findings,
the district court concluded that Turner’s will was not overborne.
When reviewing a motion to suppress based on live testimony at a
suppression hearing, we “accept the trial court’s factual findings unless clearly
erroneous or influenced by an incorrect view of the law.”28 This evidence is
viewed in “the light most favorable to the prevailing party.”29 We review de novo
the district court’s conclusions of law in evaluating the constitutionality of law
enforcement conduct.30
To determine whether a confession was voluntary, and thus in accordance
with the requirements of due process, we must evaluate “whether a defendant’s
will was overborne by the circumstances surrounding the giving of a
confession.”31 This inquiry “takes into consideration the totality of all the
surrounding circumstances—both the characteristics of the accused and the
details of the interrogation.”32 “Coercive police conduct is a necessary
prerequisite to the conclusion that a confession was involuntary, and the
28
United States v. Outlaw, 319 F.3d 701, 704 (5th Cir. 2003) (quoting United States v.
Williams, 69 F.3d 27, 28 (5th Cir. 1995)) (internal quotation marks omitted).
29
United States v. Roberts, 612 F.3d 306, 309 (quoting United States v. Shelton, 337
F.3d 529, 532 (5th Cir. 2003)) (internal quotation marks omitted).
30
Outlaw, 319 F.3d at 704 (citing United States v. Valadez, 267 F.3d 395, 397 (5th Cir.
2001)).
31
Dickerson v. United States, 530 U.S. 428, 434 (2000) (quoting Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973)) (internal quotation marks omitted).
32
Id. (quoting Schneckloth, 412 U.S. at 226) (internal quotation marks omitted).
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defendant must establish a causal link between the coercive conduct and the
confession.”33
Turner argues that the district court’s credibility findings should be
overturned because the interrogating officers “actually lied” on the stand about
their coercive tactics. He cites Detective Clinton’s testimony that first claimed
Turner never complained of injury but later admitted that he had, with the
detective clarifying that he meant Turner had never complained of pain. While
this witness could undoubtedly have been more consistent, the district court
would have been aware of this possible inconsistency and numerous other factors
that may not be apparent from an appellate record. The possible conflict in the
evidence, standing alone, is not a sufficient basis upon which to conclude that
the district court clearly erred in crediting the officers’ testimony.
Turner also complains that coercive promises were made to him, such as
a suggestion that if he could “get it straight,” he could see his four-year-old
daughter’s first day of school. As the district court recognized, statements such
as this are “more troubling” than an offer by interviewing officers to tell the
court that a defendant had cooperated. But mere promises of leniency, without
more, are not sufficient to invalidate a confession as involuntary, especially
when the defendant had experience with law enforcement and should have been
hesitant to rely on such representations.34 Again, the district court was required
to, and did, consider the totality of the circumstances. Turner knew from past
interrogations that there were limits on the authority of detectives to bring
lesser charges or offer a shortened sentence. Further, Turner seemed resigned
to the prospect that he would be convicted regardless of whether he confessed.
33
Carter v. Johnson, 131 F.3d 452, 462 (5th Cir. 1997) (citing Colorado v. Connelly, 479
U.S. 157, 163-67 (1986)).
34
See United States v. Santiago, 410 F.3d 193, 202-03 (5th Cir. 2005).
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In light of these facts, the district court did not clearly err in finding that the
“promises” made did not overbear Turner’s will and coerce the confession.
V
At his first trial, Turner wanted to ascertain whether testimony as to the
federal charges would waive his Fifth Amendment right against self-
incrimination as to the robbery of the Popeyes restaurant, for which he faced
only state charges. He asked the court for a ruling in limine on whether, if he
took the stand, he would be required to answer questions about the Popeyes
robbery. Because such testimony would be relevant and “probative of a number
of things,” including “intent, identity, motive, plan, knowledge, [and] modus
operandi,” as well as the credibility of Turner and Cornelius Black, the court
ruled that Turner could be cross-examined on that subject. Turner did not
testify, and he now asserts that this ruling was in error and should lead to
reversal.
The Supreme Court held in Luce v. United States that a defendant who did
not testify had not preserved for appellate review his objection to a district court
ruling on a motion in limine that the prosecution could use a prior conviction to
impeach the defendant if he were to testify (pursuant to Federal Rule of
Evidence 609(a)).35 That was because any determination of harm that flowed
from the defendant’s failure to testify would be inherently speculative, as a
reviewing court cannot know what the defendant would have said, how
prejudicial the impeachment would have been, or if the prosecution would have
used the conviction at all.36 The court cannot know, with certainty, why the
35
469 U.S. 38, 42-43 (1984).
36
Id. at 41-42.
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defendant did not testify.37 Finally, the reviewing court cannot assess the
harmlessness of the error, making almost any error an “automatic reversal.”38
We have previously recognized that the logic of Luce is not limited to the
Rule 609(a) context, and other courts have agreed.39 In United States v. Nivica,
a case very much like this one, the First Circuit rejected a non-testifying
defendant’s appeal of the denial of a motion in limine to limit the scope of cross-
examination to issues of his choosing.40 The court observed that without the
defendant testifying, whether with or without the jury present, there was no way
of knowing how the testimony would have progressed and, therefore, how
objectionable the Government’s cross-examination would have been or whether
the trial court ultimately would have limited the subjects covered.41 Finding all
of the Supreme Court’s concerns in Luce to be present, the court held that the
ruling on the motion in limine was unreviewable.42
Similarly, without any record of what Turner would have said, this court
cannot review the relevance and appropriateness of a hypothetical cross-
examination on a particular subject. As in Nivica, Turner’s claim is
unreviewable.
VI
Turner next challenges his conviction on the ground that the jury venire
for his second trial was unfairly prejudiced by hearing and seeing handcuffs as
37
See id. at 42.
38
Id.
39
See United States v. Bond, 87 F.3d 695, 700 & n.2 (5th Cir. 1996) (collecting cases
from other circuits extending Luce).
40
887 F.2d 1110, 1116-17 (1st Cir. 1989).
41
Id.
42
Id.
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a deputy United States Marshal returned Turner to the courtroom after a recess
in jury selection concluded. Before entering the courtroom, the marshal removed
Turner’s handcuffs in the hallway. As the men entered, however, the handcuffs
made a clicking noise as the marshal folded them together, apparently while
shifting them from his left side to his right. Defense counsel asserted to the
district court that she noticed the noise, turned to the marshal, and said the
marshal’s name. Defense counsel noticed the matte black handcuffs were spread
apart in view of the potential jurors, though the marshal quickly hid them in his
hand. The marshal, for his part, did not seem to think the jury could have seen
or heard the handcuffs. There is no indication that the potential jurors were
polled as to whether they saw or heard anything. Turner’s motion for a mistrial
was denied because the district court concluded the venire would not have seen
Turner shackled and did not find sufficient prejudice to Turner from the event.
We review the denial of a motion for mistrial for abuse of discretion.43
Turner argues that this case should be controlled by our law governing the
shackling of defendants before the jury in open court. We have acknowledged
the “inherently prejudicial” nature of shackling, which “undermines the
presumption of innocence,” and we have repeated the Supreme Court’s
requirement that trial courts determine that visible shackles be justified by a
“state interest specific to a particular trial.”44
Turner was not forced to wear shackles before the jury; here, the jury only
saw or heard, at most, an inadvertent display or click. A closer parallel to the
facts of this case is United States v. Diecidue, in which jurors and prospective
jurors had several encounters with defendants being led into the courtroom by
43
United States v. Jimenez, 509 F.3d 682, 691 (5th Cir. 2007).
44
United States v. Banegas, 600 F.3d 342, 345 (5th Cir. 2010) (internal quotation marks
omitted).
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marshals or wearing handcuffs outside the courthouse.45 We nonetheless stated
that “brief and inadvertent exposure to jurors of defendants in handcuffs is not
so inherently prejudicial as to require a mistrial”; in such cases, “defendants
bear the burden of affirmatively demonstrating prejudice,” which we refused to
infer from “isolated incidents.”46
Governing this case by that standard, Turner must demonstrate prejudice.
He has not attempted to do so and likely could not. Turner was never seen by
the potential jurors actually wearing handcuffs as the Diecidue defendants had
been. Even the “click” may not have been heard or noticed by any jurors. The
possible awareness that a defendant in a violent-crime case awaits trial in jail
is not the same type of prejudice faced by a defendant who sits in shackles or leg
irons in front of the jury that will decide his fate. Any slight prejudice here
seems highly unlikely to have affected the verdict and is insufficient to justify
a new trial.
VII
Turner asserts that the district court erred by denying his Batson v.
Kentucky47 challenge to the Government’s peremptory strike of a potential juror.
At his second trial, the Government exercised one of its strikes against a black
woman, the first black person to have been considered for the panel. The
potential juror had apparently said nothing during voir dire other than
introducing herself at the outset of proceedings. Turner challenged the strike
under Batson, which provides the procedure for analyzing peremptory strikes
that a defendant claims are illegally based on race.48
45
603 F.2d 535, 549 (5th Cir. 1979).
46
Id.
47
476 U.S. 79 (1986).
48
Id. at 93-98.
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Under Batson, when the defendant has made a prima facie showing of
discriminatory jury selection, the Government then bears the burden of
providing a race-neutral explanation for the strike.49 After Turner objected to
the strike, the Government responded that it had used its first strike on a white
male and gave several reasons for striking the black female juror. The
prosecutor noted that the potential juror was a single mother of three. Though
she said she was a certified nursing assistant, she indicated on a court-provided
form that her employer was “unknown.” Finally, the prosecutor pointed out that
the juror “kept looking at the defendant” during the voir dire.
Turner disputed—and continues to dispute—this last point, asserting that
the layout of the courtroom where voir dire was held forces all jurors to look at
the defendant. Apparently, the jury box in this courtroom faces the defense
table (rather than the traditional arrangement of the two being at a ninety-
degree angle). But the prosecutor contended that “this particular juror, among
all of them that were sitting in the jury box area, would consistently look over
at the defendant and just stare at the defendant . . . whereas nobody else in the
jury box that I ever observed was even spending time looking at the defendant.”
Defense counsel argued that she, too, had been watching the jurors but had not
noticed anything out of the ordinary with this juror. The district court, noting
that it was not watching for eye contact with the defendant, accepted the
prosecutor’s explanation and dismissed the challenge.
In the context of a Batson challenge, we review the district court’s
determination that the prosecutor gave a race-neutral explanation for a
peremptory strike of a juror for clear error.50 Given the subjective nature of jury
selection, the district court’s determination is likely to be based “largely on the
49
Id. at 97.
50
United States v. Fields, 72 F.3d 1200, 1206 (5th Cir. 1996).
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court’s evaluation of the credibility of counsel’s explanation.”51 At the final stage
of the Batson analysis, “implausible or fantastic justifications may (and probably
will) be found to be pretexts for purposeful discrimination,”52 but “intuitive
assumptions,” “inarticulable factors, or even hunches” can all be proper bases for
rejecting a potential juror, even in the Batson context.53 We have specifically
approved of eye contact, or the lack thereof, as a valid neutral explanation.54
The outcome of Turner’s Batson challenge necessarily turns on the
credibility accorded to the prosecutor, both in terms of whether the potential
juror actually stared at the defendant in an exceptional way and in terms of
whether that fact (in addition to her family situation and lack of knowledge of
her workplace), rather than her race, led to the peremptory strike. On both
issues, the district court had the advantages of observing the voir dire, knowing
the layout of the courtroom better than a written description can provide, and
being able to consider the demeanor of the prosecutor as he made his
explanation. The district court’s rationale for approving the challenge is
supported by statements in the record and is not clearly erroneous.
VIII
Turner contends that the district court improperly denied him the
opportunity to present surrebuttal to the Government’s rebuttal case in the
second trial. He argues that the rebuttal introduced a new issue to which he
should have been allowed to respond.
51
United States v. Perkins, 105 F.3d 976, 978 (5th Cir. 1997) (citing United States v.
Wallace, 32 F.3d 921, 925 (5th Cir. 1994)).
52
Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam).
53
See United States v. Bentley-Smith, 2 F.3d 1368, 1374 (5th Cir. 1993) (internal
quotation marks omitted).
54
Id. (citing Polk v. Dixie Ins. Co., 972 F.2d 83, 86 (5th Cir. 1992) (per curiam)).
19
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During that rebuttal, the Government called as a witness Anthony
Davenport, a cellmate of Turner while he was in state custody before trial.
Davenport testified that, during their time in jail together, Turner confessed to
Davenport his involvement in the robberies and carjacking. The Government
successfully argued that this was an appropriate subject for rebuttal because it
contradicted Turner’s testimony that his confession to police was false.
Once the Government rested, the court heard Turner’s motion for
surrebuttal, which it had postponed so it could consider Davenport’s testimony.
Turner proffered that he would call two witnesses. Robert Moore, a fellow
inmate with Turner and Davenport, would testify that the layout of the county
jail made private conversations like the one Davenport alleged impossible and
that legal paperwork must be left unlocked (suggesting an alternative possibility
for how Davenport learned details of Turner’s crime). He would further testify
that he had shared a cell with the two men for several months and that the
conversation never actually occurred. Turner would also call an assistant
district attorney who could testify that he had advised Davenport’s lawyer that
Davenport’s testimony in the federal trial would be considered in resolving his
state case. The district court denied the motion for surrebuttal.
“The decision to permit surrebuttal falls within the discretion of the
district court and is subject to an abuse of discretion standard.”55 “Surrebuttal
is merited where: (1) the government’s rebuttal testimony raises a new issue,
which broadens the scope of the government’s case; and (2) the defense’s
proffered surrebuttal testimony is not tangential, but capable of discrediting the
essence of the government’s rebuttal testimony.”56
55
United States v. Alford, 999 F.2d 818, 821 (5th Cir. 1993) (citing United States v.
Moody, 903 F.2d 321, 330 (5th Cir. 1990)).
56
Id. (citing Moody, 903 F.2d at 331).
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Here, Davenport’s testimony went beyond the issues raised in the
Government’s case-in-chief, adding the significant allegation that not only had
Turner committed the crimes at issue but that he had made a full confession to
them. As for the second part of our test, Turner purported to offer a witness who
could directly contradict Davenport’s testimony; counsel proffered that Moore
“would testify that he was in their presence for those past few months and there
were no such conversations in the cell.” This testimony is at least “capable of
discrediting the essence of the government’s rebuttal testimony.”57 The proposed
testimony of the assistant district attorney would be less helpful in light of
Davenport’s testimony that he had not spoken with his lawyer as to any
potential deal.
Even assuming that it was error to refuse to permit these surrebuttal
witnesses, however, the error was harmless and thus does not require reversal.
The Supreme Court, reminding us that “the Constitution entitles a criminal
defendant to a fair trial, not a perfect one,” has explained that even
constitutional errors do not require reversal “if the reviewing court may
confidently say, on the whole record, that the constitutional error was harmless
beyond a reasonable doubt.”58 While some errors are so fundamental to a fair
trial that they require automatic reversal in all cases, errors implicating the
right to confront and impeach witnesses have been held only to the harmless-
error standard.59 Examining the surrebuttal denial under that standard, we
conclude that any error would have been harmless.
There are several reasons for this conclusion. First, much of what Moore
would have said had already been brought out on Davenport’s cross-
57
Id.
58
Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).
59
See id. at 681-82, 684; Moody, 903 F.2d at 331.
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examination. Thus, it would not have changed the outcome for the jury to have
heard a second witness confirm the layout of the cell (including the size of the
cell and closeness of bunks) or that legal paperwork was available in the cell,
both of which had already been admitted by Davenport. Second, while Moore
would have added new information in his assertion that the conversation never
occurred, for this to truly discredit Davenport the jury would have to believe that
Moore had monitored every conversation between Turner and Davenport over
a period of several months. Accordingly, this evidence would not have had much
persuasive force.
Finally, the possibility of harm from allowing Davenport’s testimony to go
unrebutted must be considered in the context of the trial as a whole, a trial in
which the other evidence of guilt was overwhelming. The jury saw a videotaped
confession by the defendant that had been thoroughly tested for voluntariness,
the jury heard eyewitness testimony from the scene of the crime, and there was
forensic evidence. The Government did not focus on Davenport’s testimony in
closing argument. Davenport was a “jailhouse snitch” with his own credibility
issues, such as a letter he wrote offering his testimony in exchange for leniency
from state prosecutors (though maintaining that no deal was ever cut). Given
all of these factors, the trial court’s decision not to permit surrebuttal does not
rise to a level requiring reversal.
IX
Turner asserts that the district court erred in failing to grant his motion
for a mistrial based on the Government’s closing argument at the second trial.
The relevant excerpt is as follows, with emphasis added as in Turner’s brief:
And, ladies and gentlemen of the jury, by your verdict today, you
can hold this man accountable for his actions on July 7th, 2008.
Officer Collier deserves it.
Just like the other police officers that are in this courtroom today,
those men and women, they put their uniforms on every day and
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they latch that badge onto their belt or they put it onto their chest
and they wear it proudly. And they put their life on the line. But
you know what? Dewayne Collier can’t do that anymore because of
this man right here (indicating).
At the conclusion of the prosecutor’s argument, Turner moved for a
mistrial. The court denied the motion, then instructed the jury that it should
base its verdict on the evidence:
Let me before I read these final instructions give you an additional
instruction. That is, your verdict, obviously, has to be based strictly
on the facts of the case. Okay. It can’t be based on prejudices or
passions you may have about the circumstances of the case. The
only thing that you can properly consider are my instructions on the
law and the evidence that was presented here in the courtroom. For
you to base your verdict on anything else would be wholly improper
and a violation of the oath that you took when you were sworn in as
jurors.
We review the denial of a motion for mistrial for abuse of discretion.60 We
analyze assertions of prosecutorial misconduct in closing arguments in two
parts. We consider whether the prosecutor made an improper remark; if so, we
then “evaluate whether the remark affected the substantial rights of the
defendant.”61 The first question is reviewed de novo; the second is reviewed for
abuse of discretion.62 “A district court abuses its discretion when it bases its
decision on an erroneous view of the law or a clearly erroneous assessment of the
evidence.”63
60
United States v. Jimenez, 509 F.3d 682, 691 (5th Cir. 2007) (citing United States v.
Wyly, 193 F.3d 289, 298-99 (5th Cir. 1999)).
61
United States v. McCann, 613 F.3d 486, 494 (5th Cir. 2010) (quoting United States
v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999)) (internal quotation marks omitted).
62
Id.
63
Id. at 495 (citing United States v. Caldwell, 586 F.3d 338, 341 (5th Cir. 2009)).
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In assessing whether the remark made by the prosecutor was improper,
we note that “[a] prosecutor is confined in closing argument to discussing
properly admitted evidence and any reasonable inferences or conclusions that
can be drawn from that evidence.”64 As we have explained, “[a] prosecutor is not
permitted to make an appeal to passion or prejudice calculated to inflame the
jury.”65 Whether the remarks at issue here fall into that category is a matter of
interpretation. According to Turner, the Government’s argument was that
Collier and his fellow officers “deserved” a guilty verdict because they put their
lives on the line, appealing to jurors’ attitudes toward police officers. The
Government counters that, in context, the remark was intended only to convey
that Collier could no longer pursue his chosen career as a result of serious bodily
injury (an element of the carjacking offense) caused by Turner, and the
prosecutor wanted to impress upon the jury the seriousness of the charges.
We need not resolve that issue, however, because even if we assume,
without deciding, that the remark was improper, the second step of the analysis
demonstrates that Turner’s substantial rights were not prejudiced. “Ordinarily,
a defendant’s substantial rights are affected only where the error in question
affected the outcome of the district court proceedings.”66 To make that
determination, “we assess ‘(1) the magnitude of the statement’s prejudice, (2) the
effect of any cautionary instructions given, and (3) the strength of the evidence
of the defendant’s guilt.’”67
64
United States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008).
65
United States v. Raney, 633 F.3d 385, 395 (5th Cir. 2011) (quoting United States v.
Crooks, 83 F.3d 103, 107 n.15 (5th Cir. 1996)) (internal quotation marks omitted).
66
McCann, 613 F.3d at 496 (quoting United States v. Marcus, 130 S. Ct. 2159, 2164
(2010)) (internal quotation marks omitted).
67
Id. (quoting United States v. Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999)).
24
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We determine the magnitude of the prejudice by looking at the remarks
in the context of the trial and their intended effect.68 As Turner points out, the
remarks pointed to uniformed officers present in the courtroom, which may have
raised the inference that the officers “were watching” the jury. Or the remarks
could have brought to the jurors’ minds the associations they have with police.
But this stray remark seems unlikely to have been much more prejudicial in this
respect than the officers having been in the courtroom in the first place; the
prosecutor never said “the officers are watching you,” nor was this the theme of
his argument.
More importantly, the district court can “purge the taint of a prosecutor’s
prejudicial comments” with a cautionary instruction, even, in some cases, one
that is “merely generic.”69 Here, the court followed Turner’s objection (made at
a bench conference following the conclusion of argument) with an immediate
instruction. The instruction did not specifically mention any statement that was
made but reminded the jury that its verdict must be based on the evidence and
not on prejudice or passion. “We presume that such instructions are followed
unless there is an overwhelming probability that the jury will be unable to follow
the instruction and there is a strong probability that the effect [of the improper
statement] is devastating.”70 Turner has not argued that these circumstances
exist, and they are not apparent from the record.
The final factor is the strength of the evidence of guilt. Turner argues
that, since the jury deadlocked on the carjacking counts at the first trial but
convicted at the second, the improper comments must have been the crucial
68
Id.
69
Id. at 496-97 (quoting United States v. Gracia, 522 F.3d 597, 604 (5th Cir. 2008))
(internal quotation marks omitted).
70
Gallardo-Trapero, 185 F.3d at 321 (alteration in original) (quoting United States v.
Tomblin, 46 F.3d 1369, 1390 (5th Cir. 1995)) (internal quotation marks omitted).
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factor that tipped the scales. But Turner’s assertion that the evidence was
“substantially similar” at both trials ignores his own testimony. He only took
the stand in his second trial. Substantial other evidence of Turner’s guilt was
presented to the jury, including testimony by his co-defendant Cornelius Black
and Turner’s videotaped confession. “Where there is a great deal of inculpatory
evidence presented against a defendant, we often find that improper statements
were harmless error.”71
Given the minor nature of the remark in the overall context of the trial,
the curative instruction (with no evidence that it was not followed), and the
amount of inculpatory evidence on which the jury would have relied in the
absence of the remark, the district court did not abuse its discretion in denying
Turner’s motion for a mistrial.
X
At the conclusion of the second trial, the district court instructed the jury
that it could convict Turner even if he had only aided and abetted the
commission of the crimes. Turner argued that the relevant counts of the
indictment named only Antonio Turner as the perpetrator of the carjacking and
shooting, so adding an instruction that could hold him accountable for someone
else committing those crimes would amount to a constructive amendment to the
factual basis of the indictment. Turner also complained of unfair surprise given
the Government’s consistent theory, through both trials, that Turner pulled the
trigger and stole the car and that there was no third person involved (in addition
to Turner and Black). Turner further asserted that his decision to take the
stand—and implicate a third person—might have been different had he known
the aiding and abetting instruction would be given. The court overruled the
objection. In this case, the possibility of giving an aiding and abetting
71
McCann, 613 F.3d at 497.
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instruction on the carjacking counts evidently was not mentioned until the
conclusion of all the evidence in the second trial. While aiding and abetting is
at least an implied charge in every indictment,72 the section of the United States
Code defining it (18 U.S.C. § 2) was specifically mentioned in Turner’s
indictment on the robbery counts but not on the carjacking counts. An
instruction on aiding and abetting was given in the first trial but was specifically
limited to the robbery counts. It was given for the carjacking counts in the
second trial over a defense objection. The court ruled that the instruction was
appropriate in the second trial because of the testimony of Turner, who had not
testified in his first trial, and that of a defense witness, Bob Sheppard.
Sheppard had testified that he and a friend were driving into Jackson
when they came upon the scene of the shooting. He stated that he initially saw
a man wearing light clothes standing over the officer with a gun, but when the
man drove away in the police car, he noticed a second man in the passenger seat
of the car. On cross-examination, the Government showed Sheppard a picture
of the passenger seat of the police vehicle with some items in it, soliciting and
receiving the answer that it would have been difficult for someone to sit in that
seat had those items been there. On redirect, Sheppard added that he was not
absolutely sure that a second person had been in the front seat.
When Turner took the stand in his own defense, he claimed that in
addition to himself and Black, a third individual, “Lynn,” had participated in the
robberies. In Turner’s version of events, he described his role as driving Black
and Black’s friend, Lynn, a male, in a borrowed Kia as the two of them robbed
Title Loans and Popeyes. The group encountered Officer Collier and led him on
a chase down Highway 80 until the Kia crashed. The occupants “bailed out” of
the car, and Turner ran into the nearby woods where he heard gunshots and
72
United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992).
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dropped to the ground. From there, he saw that a window in the police car had
been shot out, but he did not know who was doing the shooting. Fearful that
Black or Lynn had been shot, Turner ran back toward the car before realizing
that it was the officer who had been shot. At this point, Turner said he believed
that he would be killed if he remained in the woods, which he understood to be
a common outcome in Jackson when an officer is shot and the suspect is in a
wooded area. Turner observed Lynn pulling the officer from the police car, at
which point Turner jumped through the back window of that vehicle into the
backseat. Lynn then drove the police car away from the scene but lost control
of the vehicle while fleeing and crashed in a ditch. Turner and Lynn abandoned
the vehicle, hid under a house, and later departed in different directions.
On cross-examination, the Government had Turner read aloud from the
transcript of his videotaped confession, in which he said:
It was just me. I jumped in the car by myself. . . . I crashed the
car. I jumped out the car and I shot him. I shot—I shot him. Didn’t
nobody else shoot. I shot. And I jumped and I went to the car. The
reason I went to the car, I ain’t know if he was dead or not. I ain’t
gone lie. I didn’t. I ain’t know if he was dead or alive. I just
snatched him out and then got in the car and left.
The Government’s theory of the case continued to be that Turner had acted
alone in shooting Officer Collier and stealing the police vehicle. Throughout its
opening statement and closing argument, the Government insisted that the
existence of a third person “was a made-up story,” quoting Turner’s confession
(“It was just me.”) and citing gunshot residue found on Turner’s hands to
indicate that he had discharged a firearm. The Government reiterated that
Turner (in his videotaped confession), Black (who claimed to have seen the
event), and “jailhouse snitch” Anthony Davenport (who claimed Turner had
confessed to him while incarcerated) all indicated that Turner committed the
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crime alone.73 During Black’s direct testimony, the Government asked several
times about previous statements he had made as to the involvement of a third
person in the robberies, in response to which Black firmly asserted that those
statements were false and made at Turner’s urging. Even in those prior
statements, Black implicated only Turner as the individual who shot Officer
Collier. The Government concluded its redirect examination with a series of
questions emphasizing that only Black and Turner were involved in the crimes
and that Turner shot Officer Collier.
“We review the district court’s decision to give the aiding and abetting
instruction for abuse of discretion.”74 We will only reverse a decision to give an
aiding and abetting instruction when there has been a showing of unfair
surprise.75 We adhere to this rule because “[a]iding and abetting is not a
separate offense, but it is an alternative charge in every indictment, whether
explicit or implicit.”76
In United States v. Neal, we upheld such an instruction even though the
“indictment charged [the defendant] as a principal and did not include aiding
and abetting language or charge her with conspiracy”; the claim of surprise was
undercut because the indictment made reference to the aiding and abetting
statute, 18 U.S.C. § 2.77 Similarly, in United States v. Botello, we allowed the
73
The prosecutor said:
Who shot Officer Collier? Antonio Turner. Who took Officer
Collier’s car? Antonio Turner. Cornelius Black told you that. Antonio
Turner told you. Anthony Davenport told you that. They were all three
consistent on the same point. That man right there (indicating) shot
Officer Dewayne Collier on July 7th, 2008.
74
United States v. Botello, 991 F.2d 189, 191 (5th Cir. 1993).
75
Neal, 951 F.2d at 633.
76
Id.
77
Id.
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instruction in a case in which the prosecutor’s opening statement claimed the
defendant had personally killed the victim, but “evidence introduced by the
government tended to prove that Botello acted as an aider and abettor.”78 In
that case, “because the indictment did not foreclose the possibility of conviction
as an aider and abettor,” it was not an unfair surprise to give the instruction.79
The district court here also relied on United States v. Castillo-Morales, an
unpublished decision holding that the defendant could not “claim unfair surprise
when it was his own testimony that prompted the Government to request the
aiding and abetting instruction.”80
To be convicted under an aiding and abetting theory, the defendant must
“share[] in the principal’s criminal intent” and take some affirmative steps “to
aid the venture or assist[] the perpetrator of the crime.”81 He “must have aided
and abetted each material element of the alleged offense[s].”82 “[M]ere presence
at the scene of the crime is not sufficient, by itself, to support aiding and
abetting liability.”83
In this case, the jury was presented with evidence of two potential factual
scenarios: in one, Turner acted alone as the carjacker and shooter, while in the
other, Lynn acted alone as the carjacker and shooter. To convict Turner under
an aiding and abetting theory, the jury would have had to believe more than the
“Lynn” scenario. The only evidence of Lynn’s involvement came from the
testimony of Turner and Sheppard. Based on Turner’s testimony, there was no
78
991 F.2d at 192.
79
Id.
80
351 F. App’x 905, 906 (5th Cir. 2009) (unpublished opinion).
81
United States v. Garcia, 242 F.3d 593, 596 (5th Cir. 2001).
82
United States v. Lombardi, 138 F.3d 559, 561 (5th Cir. 1998).
83
Garcia, 242 F.3d at 597.
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evidence that Turner did anything other than jump into the police vehicle after
Lynn had shot and removed Officer Collier. There was no evidence presented
that Turner shared Lynn’s criminal intent to cause death or serious bodily harm
in taking the vehicle, the elements of the carjacking offense.84 Just as the
Government attempted to disprove that Lynn was involved at all, Turner
testified at trial that he had already left the scene when he heard the shots being
fired. Notably, after Turner testified, the Government did not, in its cross
examination of Turner, in its rebuttal case, nor in its closing or rebuttal
argument, intimate any theory of liability based on aiding and abetting.
Because there was no aiding and abetting scienter evidence offered by either
party, the district court erred in giving the instruction.
This error, however, does not compel us to reverse the district court. In
Hedgpeth v. Pulido, the Supreme Court confirmed that when a jury is
“instructed on multiple theories of guilt, one of which is improper,” the
“harmless-error analysis applies to instructional errors so long as the error at
issue does not categorically vitiat[e] all the jury’s findings.”85 The Court further
explained that “[a]n instructional error arising in the context of multiple theories
of guilt no more vitiates all the jury’s findings than does omission or
misstatement of an element of the offense when only one theory is submitted.”86
The Court’s decision in Hedgpeth instructs that the question for the reviewing
court when multiple theories of guilt are presented and one is improper is the
84
18 U.S.C. § 2119.
85
555 U.S. 57, 61 (2008) (per curiam) (alteration in original) (quoting Neder v. United
States, 527 U.S. 1, 11 (1999)) (internal quotation marks omitted); see also Skilling v. United
States, 130 S. Ct. 2896, 2934 n.46 (2010) (explicitly extending Hedgpeth to cases on direct
review).
86
Hedgpeth, 555 U.S. at 61.
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familiar Brecht standard, which is “whether the flaw in the instructions ‘had
substantial and injurious effect or influence in determining the jury’s verdict.’”87
In Turner’s case, while the jury should not have been instructed on an
aiding and abetting theory, the error did not have a substantial and injurious
effect or influence on the verdict. As discussed above, there was no evidence that
would have supported a conviction on the basis of aiding and abetting liability.
The evidence that Turner was the shooter and the carjacker was overwhelming.
The error was therefore harmless.
XI
Finally, Turner asserts several challenges that he concedes are foreclosed
by this circuit’s precedents. He acknowledges that he is merely preserving these
issues for further review by this court sitting en banc or by the Supreme Court.
Briefly, he argues that the minimal interstate commerce nexuses we require for
a prosecution under the federal robbery statute (the Hobbs Act),88 the federal
carjacking statute,89 and the federal felon-in-possession statute90 are each
insufficient to satisfy the Interstate Commerce Clause standard set forth in
United States v. Lopez.91 He also argues that he should have only received one
sentence for the two separate crimes of using a firearm in relation to the robbery
87
Id. at 58 (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
88
See United States v. Robinson, 119 F.3d 1205, 1215 (5th Cir. 1997); see generally
United States v. McFarland, 311 F.3d 376 (5th Cir. 2002) (en banc) (per curiam); United States
v. Hickman, 179 F.3d 230 (5th Cir. 1999) (en banc) (per curiam).
89
See United States v. Frye, 489 F.3d 201, 214 (5th Cir. 2007); United States v. Jimenez,
323 F.3d 320, 322 (5th Cir. 2003) (citing United States v. Coleman, 78 F.3d 154, 159 (5th Cir.
1996); United States v. Harris, 25 F.3d 1275, 1280 (5th Cir. 1994)).
90
See United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir. 1996); see also id. at 243
(Garwood, J., specially concurring) (discussing the statute’s viability after United States v.
Lopez).
91
514 U.S. 549 (1995).
32
Case: 10-60917 Document: 00511779698 Page: 33 Date Filed: 03/07/2012
No. 10-60917
and the carjacking, urging us to reconsider our recent contrary decision
interpreting the statute under which he was convicted.92 Bearing in mind that
a later panel of this court cannot overrule an earlier panel decision,93 we reject
all of these challenges.
* * *
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
92
See United States v. Houston, 625 F.3d 871, 873-74 (5th Cir. 2010), cert. denied, 131
S. Ct. 1704 (2011) (holding that the statutory exception to applying an additional mandatory
sentence for using a firearm when “a greater minimum sentence is otherwise provided by this
subsection or by any other provision of law” is applicable “only to a greater mandatory
minimum sentence for th[e] specific crime of firearm possession.”); see also 18 U.S.C. § 924(c).
93
See, e.g., Hill v. Carroll Cnty., Miss., 587 F.3d 230, 237 (5th Cir. 2009).
33