Herbert Clifton Hector v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 27, 2020
• Docket: 19-13128
• Status: Unpublished

Opinion

Case: 19-13128 Date Filed: 07/27/2020 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13128 Non-Argument Calendar ________________________

D.C. Docket Nos. 1:17-cv-00948-TWT, 1:12-cr-00183-TWT-JSA-1

HERBERT CLIFTON HECTOR,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(July 27, 2020)

Before WILLIAM PRYOR, Chief Judge, JORDAN and NEWSOM, Circuit Judges.

PER CURIAM: Case: 19-13128 Date Filed: 07/27/2020 Page: 2 of 9

Herbert Hector appeals pro se the denial of his motion to vacate his

sentence, 28 U.S.C. § 2255, for conspiring to commit armed bank robbery. 18

U.S.C. §§ 371, 2113(a), (d), and 2. The district court granted Hector a certificate of

appealability to review whether his trial counsel was ineffective for failing to

object to a jury instruction and verdict form as constructively amending his

indictment by describing his crime as a conspiracy to commit bank robbery instead

of as an armed bank robbery. Because the jury instruction and verdict form were

consistent with Hector’s indictment and neither warranted an objection by counsel

nor affected the outcome of Hector’s trial, we affirm.

I. BACKGROUND

In May 2013, a grand jury returned a three-count superseding indictment

that charged Hector with conspiring with Anwand Jackson to rob, with committing

an armed robbery of, and with using “a dangerous weapon, that is, a handgun” to

rob “the Wells Fargo Bank located at 3072 Old Norcross Road, Duluth, Georgia.”

18 U.S.C. §§ 2113(a), 2113(d), 924(c)(1)(A)(ii), 371, 2. Count one charged that

Hector and Jackson agreed to “take United States currency from . . . employees of

the Wells Fargo bank,” to do so “by force, violence, or intimidation,” and to

“assault and put in jeopardy the lives of said bank employees by the use of a

dangerous weapon, that is, a handgun.” Id. § 371. And it alleged as overt acts that

Hector and Jackson “discussed and planned the armed robbery,” “brandished a

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handgun,” and “used and carried a firearm during and in relation to the armed bank

robbery.” Counts two and three charged respectively that Hector, “aided and

abetted by” Jackson, robbed a bank using a handgun, id. §§ 2113(a), 2113(d), 2,

and “did knowingly use and carry a firearm during and in relation to” the bank

robbery, id. §§ 924(c)(1)(A)(ii), 2.

At trial, the government introduced surveillance video recordings and

testimony from Matthew Carr, the bank manager, and from a bank teller, Tabassun

Haque, that proved Hector and Jackson executed “an obviously well-planned and

coordinated robbery” in “approximately 40 seconds.” United States v. Hector, 611

F. App’x 632, 635 (11th Cir. 2015). Carr testified that Hector and Jackson arrived

and departed from the bank together in a Honda Accord. The surveillance

recordings showed “Hector holding the bank’s door open for Jackson, who entered

the bank with his handgun drawn.” Id. The surveillance recordings also

corroborated Carr’s and Haque’s testimony that Hector and Jackson wore masks,

dashed to adjacent teller stations after entering the bank, and ordered the tellers to

empty their cash drawers; that Hector held the money bag; and that Jackson

brandished a gun during the robbery. Id.

Hector rested without presenting any evidence in his defense. During

closing, he argued that he committed a bank robbery instead of an armed bank

robbery. Hector argued that Jackson wielded the gun and that the government

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failed to prove that he knew, could have reasonably foreseen, or agreed that

Jackson would be armed during the bank robbery.

The district court instructed the jury that Hector’s indictment was the

“accusation” or description of his criminal charges that the government bore the

burden of proving beyond a reasonable doubt. It explained that “Count 1 charges

that [Hector] knowingly and willfully conspired to commit bank robbery” and

“Count 2 charges . . . a substantive offense, specifically armed bank robbery.” The

district court also explained that Hector was “not charged in Count 1 with

committing a substantive offense” but was “charged with conspiring to commit

that offense” and that he could not be convicted unless the government proved that

he knowingly joined an agreement to commit an unlawful act and that a

conspirator committed an overt act alleged in the indictment. The district court told

the jury that it would receive “a copy of the indictment to refer to during [its]

deliberations.” The district court also told the jury that Hector was “on trial only

for the specific crimes charged in the indictment” and that the jury had to

“determine from the evidence in this case whether [Hector was] guilty or not guilty

of those specific crimes.” The district court provided the jury with a copy of

Hector’s superseding indictment and the verdict form, which identified the charges

against Hector as “Count I Conspiracy to Commit Bank Robbery,” “Count II

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Armed Bank Robbery,” and “Count III Use of a Firearm in Relation to Crime of

Violence.” Hector did not object to the jury instructions or to the verdict form.

The jury referred to the indictment during its deliberations. The jury sent the

district court a note that asked, “as stated in Count 3 of the indictment, does the

Defendant need to be in physical possession of the firearm to be considered

carrying.” After conferring with the parties, the district court answered the jury’s

question in the negative. Hector, 611 F. App’x at 636.

The jury found Hector guilty of all three counts of his indictment and made a

special finding that “a firearm was brandished during the course of the robbery.”

Hector’s final judgment stated that he “was found guilty by jury on Count(s) 1, 2, 3

of the Superseding Indictment” and described count 1 as “Conspiracy to commit

armed bank robbery.” Id. at 638–39. Hector appealed, but he did “not contest his

conviction for conspiracy to commit armed bank robbery.” Id. at 637. We affirmed

his convictions and sentence. Id. at 637–45.

After the direct appeal, defense counsel recommended that Hector move to

vacate his sentence. Counsel suggested arguing that she was ineffective for “not

objecting to the Judgment & Commitment stating that Count One was ‘Conspiracy

to Commit Armed Robbery’” when “the verdict form . . . stated ‘Conspiracy to

Commit Bank Robbery.’” Counsel also suggested arguing that she was “ineffective

for not appealing [his] conviction on Count One.”

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Hector moved to vacate his sentence. 28 U.S.C. § 2255. Hector argued that

his counsel was ineffective by failing to argue at trial and on appeal that the district

court constructively amended his indictment for conspiracy by omitting the word

“armed” from its jury instruction and from the verdict form. The district court

denied Hector’s motion. The district court ruled that no constructive amendment of

the indictment occurred that would have warranted an objection from trial counsel

or that would have affected the outcome of Hector’s trial. The district court also

rejected Hector’s argument that counsel was ineffective for failing to argue about a

constructive amendment on appeal.

The district court granted Hector a certificate of appealability to review

“whether trial counsel rendered ineffective assistance of counsel for failing to

object to the verdict form and the omission of ‘armed bank robbery’ in the

conspiracy instruction.” The district court denied Hector a certificate to appeal the

denial of his claim of ineffective assistance of appellate counsel. Hector stated in

his written notice of appeal that he sought review of “[t]he District Courts denial of

[his] claim of ineffective assistance of trial counsel.”

II. STANDARD OF REVIEW

A claim of ineffective assistance of counsel presents a mixed question of law

and fact that we review de novo. United States v. Patterson, 595 F.3d 1324, 1328

(11th Cir. 2010).

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III. DISCUSSION

Hector argues that counsel was ineffective for failing to argue at trial and on

appeal that the district court constructively amended his indictment by describing

his offense in a jury instruction and on the verdict form as a conspiracy to commit

bank robbery instead of an armed bank robbery. We address Hector’s argument

about his trial counsel’s alleged ineffectiveness because the district court granted a

certificate of appealability on that issue. But our review is limited to the issues in

the certificate of appealability, Murray v. United States, 145 F.3d 1249, 1250–51

(11th Cir. 1998), so we decline to review Hector’s argument that counsel was

ineffective on appeal and deny the request in his brief to expand the certificate of

appealability.

To prevail on his claim of ineffective assistance, Hector had to prove that his

counsel’s performance was deficient and that he was prejudiced by that deficiency.

Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). Because counsel

enjoys a strong presumption that he provided adequate representation, id. at 689,

Hector had to prove that no objectively competent lawyer would have made the

same decision, Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983). And

Hector had to establish that “there is a reasonable probability that, but for counsel’s

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unprofessional errors, the result of [his trial] would have been different.”

Strickland, 466 U.S. at 694.

Hector failed to prove that counsel acted deficiently. Counsel is not required

to make objections that lack merit. Denson v. United States, 804 F.3d 1339, 1342

(11th Cir. 2015). “A constructive amendment 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.” United States v. Holt,

777 F.3d 1234, 1261 (11th Cir. 2015) (internal quotation marks omitted). The jury

instruction mirrored the crime charged in Hector’s indictment. The district court

instructed the jury that Hector was charged for conspiring to commit the

“substantive offense” of “armed bank robbery,” which required proof that he knew

of and joined a plan to rob the bank using a firearm. And the omission of the word

“armed” from the verdict form did not change the elements of the offense charged

“literally or in effect.” See United States v. Behety, 32 F.3d 503, 508–09 (11th Cir.

1994). The verdict form referenced “Count I” of Hector’s indictment and signaled

that the verdict had to be based on the same offense that was charged in the

indictment. Neither the jury instruction nor the verdict form constructively

amended Hector’s indictment.

Even if we were to assume that Hector’s counsel was deficient for failing to

object to the jury instruction and verdict form, Hector cannot prove that any

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deficient performance prejudiced the outcome of his trial. Hector’s indictment

charged that he conspired to commit an armed robbery by alleging several overt

acts that involved the use of a gun, and the district court instructed the jury to refer

to the indictment to determine the charge against him. The surveillance video

recordings showed that Hector participated in the armed bank robbery even after

his coconspirator displayed a gun and provided evidence from which the jury could

have reasonably inferred that he had advance knowledge that a gun would be used

during the robbery. See Rosemond v. United States, 572 U.S. 65, 78 n.9 (2014)

(“[I]f a defendant continues to participate in a crime after a gun was displayed or

used by a confederate, the jury can permissibly infer from his failure to object or

withdraw that he had such knowledge.”). And the verdicts finding Hector guilty of

aiding and abetting in the armed robbery and in the use of a firearm that was

brandished during the robbery evidenced that the jury found that he shared the

criminal intent of his coconspirator to commit an armed robbery. See United States

v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998) (“To sustain a conviction for aiding

and abetting, the evidence must show that the defendant shared the criminal intent

of the principal(s) and committed an overt act in furtherance of the criminal

venture.”).

IV. CONCLUSION

We AFFIRM the denial of Hector’s motion to vacate.