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 Pursuant to that Rule, the Court has determined that this opinion should not be published.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
2 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.
3 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
4 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
5 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
6 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.
7 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.
10 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
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
12 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
13 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