[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED _________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 23, 2001 No. 99-4094 THOMAS K. KAHN _________________________ CLERK D. C. Docket No. 97-00660-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee-Cross-Appellant,
versus
BRADLEY FULFORD, LEONARDO GAGE,
Defendants-Appellants-Cross-Appellees.
____________________________
Appeals from the United States District Court for the Southern District of Florida ____________________________ (August 23, 2001)
Before MARCUS, WILSON and MAGILL*, Circuit Judges.
______________________________________________ *Honorable Frank J. Magill, U.S. Circuit Judge for the Eighth Circuit, sitting by designation. MAGILL, Circuit Judge:
Appellants Bradley Fulford and Leonardo Gage were convicted of various
federal offenses stemming from their participation in a carjacking conspiracy.
Fulford and Gage appeal their convictions, and the government cross-appeals,
claiming that the district court erred in failing to sentence Gage to life
imprisonment under the federal "three strikes" statute, 18 U.S.C. § 3559. We
affirm Appellants' convictions, but reverse Gage's sentence and remand for
resentencing.
I.
On February 18, 1997, Luis Iglesias drove his Chevrolet Blazer to the Miami
home of Otto Regalado, where he parked the Blazer in the driveway and began to
work on it. Shortly thereafter, Leonardo Gage arrived and directed Regalado to
page Bradley Fulford. Fulford returned the page and spoke with Gage, discussing
the Blazer and its location. A short while later, Fulford arrived at Regalado's house
wearing black jeans, a black sweater, and a ski mask. Fulford pointed a chrome-
plated semi-automatic handgun at Iglesias, who was sitting in the driver's seat of
the Blazer. Fulford told Iglesias to "[g]et the fuck out of the car." After Iglesias
got out of the car and moved to the other side of the street, Fulford drove away in
the Blazer. As Fulford drove off, Iglesias dialed 911. The Metro Dade Police responded
and, as a result of their investigation, the Blazer was found later that night parked
in the backyard of Gage's home, a few blocks away from the site of the carjacking.
Fulford and Gage were arrested and questioned by the FBI. Both confessed their
involvement in the carjacking.
A grand jury in Miami issued a three-count indictment charging Fulford and
Gage with various carjacking and firearms violations. The indictment charged
Fulford and Gage with conspiracy to carjack a vehicle at gunpoint, conspiracy to
carry a firearm in relation to a crime of violence, and conspiracy to obstruct a
criminal investigation, all in violation of 18 U.S.C. § 371. In addition to the
conspiracy offenses, the indictment charged Fulford and Gage with carjacking, in
violation of 18 U.S.C. § 2119, and carrying a firearm in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c).
Prior to trial, the government filed an Information notifying Gage that if
convicted, he faced mandatory life imprisonment under § 3559. Fulford and Gage
were tried jointly. At that trial, Fulford took the stand and admitted that he had
stolen the Blazer from Iglesias at gunpoint. The jury returned a guilty verdict
against Fulford on all counts, and against Gage on the conspiracy count. The
district court sentenced Fulford to 138 months imprisonment and Gage to 60
months imprisonment. Fulford and Gage raise numerous issues on appeal concerning their convictions and sentences. The government cross-appeals the
district court's failure to sentence Gage to life imprisonment under the federal
"three strikes" statute, § 3559.
II.
A. Sufficiency of the Evidence
Fulford contends that the evidence presented at trial was insufficient to
satisfy the specific intent requirement of the federal carjacking statute, § 2119. We
review this contention de novo, viewing the evidence in the light most favorable to
the government and drawing all reasonable inferences and credibility choices in
favor of the jury's verdict. See United States v. Trujillo, 146 F.3d 838, 845 (11th
Cir. 1998).
To constitute carjacking under § 2119, the taking of a motor vehicle must be
committed with the "intent to cause death or serious bodily harm." 18 U.S.C. §
2119. The intent requirement of § 2119 is satisfied where the government "proves
that at the moment the defendant demanded or took control over the driver's
automobile the defendant possessed the intent to seriously harm or kill the driver if
necessary to steal the car." Holloway v. United States, 526 U.S. 1, 12 (1999). The
defendant's intent "'is to be judged objectively from the visible conduct of the actor
and what one in the position of the victim might reasonably conclude.'" United
States v. Guilbert, 692 F.2d 1340, 1344 (11th Cir. 1982) (citation omitted). In this case, Fulford put a gun to Iglesias's face and told him to "[g]et the
fuck out of the car." Iglesias testified that he feared for his life, and Fulford
testified that he had been previously convicted of armed robbery. This evidence is
sufficient for a reasonable jury to conclude that Fulford had the conditional intent
to kill or seriously harm Iglesias if necessary to steal the Blazer.
B. Bruton
Fulford asserts for the first time on appeal that the district court erred in
admitting evidence of two taped conversations between his co-defendant, Gage,
and an informant, discussing Fulford's involvement in the theft of the Blazer. As a
result of Fulford's failure to raise this claim before the district court, we review the
district court's decision for plain error. See United States v. Brazel, 102 F.3d 1120,
1141 (11th Cir. 1997). To meet the plain error standard, Fulford must show that:
(1) the trial court erred; (2) the error was plain, clear, or obvious; and (3) the error
affected his substantial rights. See id. Here, even assuming that the first two
elements of the plain error standard are met, Fulford has failed to show that the
trial court's error affected his substantial rights.
Fulford asserts that the taped conversations between Gage and the informant
constituted facially incriminating statements of a nontestifying co-defendant and,
thus, that their admission constitutes a violation of his Sixth Amendment rights
under Bruton v. United States, 391 U.S. 123 (1968). At trial, Fulford took the stand in his own defense and admitted his participation in the theft. Therefore,
even if the challenged statements showed that Fulford was involved in the theft of
Iglesias's vehicle, their admission provided the jury with no additional evidence
incriminating Fulford. Accordingly, admission of the challenged tapes did not
affect Fulford's substantial rights, and thus the district court did not commit plain
error in admitting them.
C. Jury Instructions
Fulford and Gage challenge various jury instructions given by the district
court, as well as the court's failure to give other requested instructions. Our review
of a trial court's jury instructions is limited; if the instructions accurately reflect the
law, the trial judge is given wide discretion as to the style and wording employed
in the instruction. Trujillo, 146 F.3d at 846. Under this standard, "'we examine
whether the jury charges, considered as a whole, sufficiently instructed the jury so
that the jurors understood the issues and were not misled.'" Carter v. DecisionOne
Corp., 122 F.3d 997, 1005 (11th Cir. 1997) (citation omitted). "We will reverse
the district court because of an erroneous instruction only if we are 'left with a
substantial and ineradicable doubt as to whether the jury was properly guided in its
deliberations.'" Id. (quoting Johnson v. Bryant, 671 F.2d 1276, 1280 (11th Cir.
1982)). "We review a district court's refusal to give a requested jury instruction for
abuse of discretion." United States v. Condon, 132 F.3d 653, 656 (11th Cir. 1998).
We will find reversible error in the refusal to give a requested instruction only if:
(1) the requested instruction correctly stated the law; (2) the actual charge to the
jury did not substantially cover the proposed instruction; and (3) the failure to give
the instruction substantially impaired the defendant's ability to present an effective
defense. United States v. Martinez, 83 F.3d 371, 376 (11th Cir. 1996).
1. Intent Instruction
Fulford asserts that the district court erred in refusing to give his proposed
instruction on the intent required for carjacking under § 2119. Fulford's requested
intent instruction stated: "Evidence that the defendant used a gun to frighten the
victim is not sufficient in and of itself to prove intent to harm." The district court
gave the following instruction on the requisite intent for carjacking:
The defendant can be found guilty only if . . . the defendant intended to cause death or serious bodily harm when the defendant took the motor vehicle.
Whether the defendant 'intended to cause death or serious bodily harm' is to be judged objectively from the conduct of the defendant as disclosed by all the evidence in the case and from what one in the position of the alleged victim might reasonably conclude. If, after considering all of the evidence and what one in the position of the alleged victim might reasonably conclude, you find beyond a reasonable doubt that the defendant intended to cause death or serious bodily injury in the event that Luis Iglesias failed to relinquish control of his automobile, this is a sufficient basis for finding that the government has proved the fourth element of the offense, specifically that the defendant intended to cause death or serious bodily injury.
The district court's instruction directly addressed the subject of the requested
instruction, i.e., Fulford's intent, and correctly directed the jury to judge his intent
objectively from his conduct as disclosed by all the evidence in the case, and from
what one in the position of the victim might reasonably conclude. Furthermore,
the court's failure to give the requested instruction in no way impaired Fulford's
ability to argue to the jury that his conduct indicated that he intended to frighten
Iglesias, not that he intended to cause death or serious bodily injury. Fulford
testified at trial that the gun he pointed at Iglesias was a BB gun, though he had
indicated to the FBI that he had used a real gun. The district court instructed the
jury to evaluate the credibility of Fulford's testimony "in the same way as that of
any other witness." In closing, Fulford's counsel argued, on the basis of Iglesias's
testimony, that Fulford's objective conduct did not indicate an intent to cause
serious bodily harm or death.
We conclude that the district court's actual charge to the jury substantially
covered Fulford's requested intent instruction and did not substantially impair his
ability to present an effective defense. Therefore, the district court did not abuse
its discretion by refusing to give Fulford's proposed instruction.
2. Conspiracy Instruction Gage challenges the district court's instruction on the conspiracy count.
Specifically, he contends that the instruction impermissibly allowed the jury to
convict him of either conspiracy to carjack or conspiracy to violate § 924(c).
Because Gage failed to object to the instruction below, we review the instruction
for plain error. See Brazel, 102 F.3d at 1140. This court previously has held that
where an indictment alleges a conspiracy to commit several offenses, the charge is
sustained by proof of conspiracy to commit any one of the offenses. United States
v. Ross, 131 F.3d 970, 984 (11th Cir. 1997). Therefore, the jury properly could
have convicted Gage of either conspiracy to carjack or conspiracy to violate §
924(c). Accordingly, the district court did not err in so instructing the jury.
3. Supplemental Instruction
Gage next asserts that the district court gave an erroneous supplemental
instruction in response to a jury question. During deliberation, the jury asked the
court whether the word "before," in an instruction explaining the conspiracy
charge, meant "before the incident or any time prior to the arrest, including after
the incident." The court read the question into the record and engaged in a lengthy
colloquy with the parties. At the end of that colloquy, the court read its proposed
instruction, which stated:
You must be able to find beyond a reasonable doubt that the defendant joined the conspiracy before the carjacking was completed. It is up to you, from your consideration of all the evidence, both before and after the incident, to decide when the carjacking was completed and who became a member of the conspiracy to carjack the car.
Gage's attorney responded:
Judge, for the record, in light of the Court's consideration of the issue Mr. Black brought up, the instruction is acceptable to us. It's still our point of view that as a matter of law the carjacking ends - that you can't join the conspiracy once the car is actually taken.
The court then suggested that the parties research the question of when a
carjacking ends, so that they would have an answer in the event that the jury asked
for further clarification of the supplemental instruction. Based on the parties'
research, Gage requested an instruction that the carjacking was completed no later
than the completion of flight from the robbery. The court refused to give this
instruction because there was no flight in this case and because the jury was
continuing to deliberate and had not asked for further clarification.
Gage now contends that the district court's supplemental instruction was
erroneous and that when the conspiracy ended was a question of law rather than a
question of fact for the jury. However, it is clear from the record that at the time
the instruction was given, Gage had indicated that it was acceptable to him. "It is 'a
cardinal rule of appellate review that a party may not challenge as error a ruling or
other trial proceeding invited by that party.'" Ross, 131 F.3d at 988 (citation omitted). Accordingly, having agreed to the court's proposed instruction, Gage
appears to have waived his right to challenge that instruction on appeal.
Gage attempts to argue that his acceptance of the court's instruction did not
render it invited error because his counsel later requested an additional instruction
based on subsequent research. Gage's argument is without merit. The record is
clear that immediately before the court gave the instruction to the jury, Gage's
counsel stated "the instruction is acceptable to us." Gage's attempt, some five
hours later, to submit an additional instruction to the jury has no bearing on his
earlier unconditional acceptance of the court's instruction. Furthermore, we note
that Gage does not appeal the district court's refusal to give his additional proposed
instruction. Accordingly, because we find that the district court relied upon Gage's
explicit acceptance of its proposed instruction in submitting that instruction to the
jury, we conclude that Gage has waived his right to appeal that instruction.
Because we hold that Gage invited the district court's supplemental instruction, we
need not reach his contention that the instruction constituted plain error.
D. Three Strikes
The government cross-appeals, contending that the district court erred in
failing to sentence Gage to life imprisonment under the federal "three strikes"
statute, § 3559. We review the application of law to sentencing issues de novo.
United States v. Manella, 86 F.3d 201, 203 (11th Cir. 1996). Prior to trial, the government served Gage with an Information, notifying
him that upon conviction he faced a mandatory life sentence under § 3559, based
on two prior serious violent felony convictions in Florida courts. One of these
convictions was for aggravated assault. However, at sentencing, the district court
concluded that it could not look beyond the judgment in the aggravated assault
case to determine whether the Florida conviction constituted a serious violent
felony for purposes of § 3559. As a result, the court declined to impose a
mandatory life sentence.
The government asserts that in determining whether Gage's prior conviction
qualified as a serious violent felony, the court was required to consider not only the
judgment of conviction, but also the underlying aggravated assault Information.
The government further argues that because the Information reveals that Gage
committed assault with a firearm, the offense qualifies as a "strike" under § 3559.
Thus, the central inquiry is whether § 3559 allowed the district court to consider
the Florida Information in determining if that conviction qualifies as a serious
violent felony. Section 3559 states, in pertinent part:
Notwithstanding any other provision of law, a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if . . . the person has been convicted . . . on separate prior occasions in a court of the United States or of a State of . . . 2 or more serious violent felonies.
18 U.S.C. § 3559(c)(1)(A)(i). Section 3559 defines "serious violent felony," as related to Gage's conviction for aggravated assualt, as "a Federal or State offense,
by whatever designation and wherever committed, consisting of . . . firearms use."
18 U.S.C. § 3559(c)(2)(F)(i). The phrase "firearms use" is defined in § 3559 as
an offense that has as its elements those described in section 924(c) . . . if the firearm was brandished, discharged, or otherwise used as a weapon and the crime of violence . . . during and relation to which the firearm was used was subject to prosecution in a court of the United States or a court of a State, or both.
18 U.S.C. § 3559(c)(2)(D).
Whether a crime qualifies as a "serious violent felony" ordinarily is
determined by looking to the statutory definition of the crime in question, rather
than to the evidence presented to prove that crime. United States v. Kennedy, 133
F.3d 53, 56 (D.C. Cir. 1998). In the context of § 924(e), the Supreme Court has
held that in evaluating prior convictions for enhancement purposes, the trial court
generally is required to look only to the fact of conviction and the statutory
definition of the prior offense. Taylor v. United States, 495 U.S. 575, 602 (1990).
However, the Taylor Court went on to suggest that this categorical approach "may
permit the sentencing court to go beyond the mere fact of conviction in a narrow
range of cases. . . ." Id. Specifically, the Court held that in a burglary case where
the state burglary statute encompassed some offenses that would satisfy the
enhancement statute and others that would not, the court could look at the charging
paper and jury instructions to determine if the defendant was actually convicted of an offense satisfying the enhancement statute. Id.
This court discussed the Taylor approach in a case involving sentencing
enhancement under U.S.S.G. § 4B1.2. United States v. Spell, 44 F.3d 936 (11th
Cir. 1995). Although observing that the Sentencing Guidelines explicitly reject the
categorical approach embraced in Taylor, the court recognized that even under the
Guidelines approach, "the ability to 'look behind' state convictions in a federal
sentencing proceeding is very limited." Id. at 939. However, consistent with
Taylor, the court held that "a district court . . . may inquire into the conduct
surrounding a conviction if ambiguities in the judgment make the crime of violence
determination impossible from the face of the judgment itself," and that in doing
so, "[t]he inquiry is limited to examining easily produced and evaluated court
documents, including the judgment of conviction, charging papers . . . ." Id.
Though none of the cases cited by either party directly addresses the analysis
of prior convictions under § 3559, there is no compelling reason to read the "three
strikes" provision differently than other federal sentence enhancement statutes.
Accordingly, under Taylor and Spell, the district court could have looked to the
indictment if there was an ambiguity in the judgment. Here, as in Taylor, the state
statute under which Gage was charged encompassed some offenses that would
satisfy the enhancement statute, and others that would not. Specifically, Fla. Stat.
Ann. § 784.021 defines aggravated assault, in pertinent part, as "an assault . . . [w]ith a deadly weapon without intent to kill." Fla. Stat. Ann. § 784.021(1)(a)
(West 2000). Under Florida law, a firearm is a deadly weapon, which is defined as
a weapon likely to produce death or great bodily harm. Dey v. State, 182 So.2d
266, 268 (Fla. 2d DCA 1966). Under § 3559(c)(2)(F)(i), firearms use is a serious
violent felony that may be used as a predicate conviction in imposing a life
sentence. The term "firearms use" is defined in § 3559(c)(2)(D) as "an offense that
has as its elements those described in section 924(c) . . . if the firearm was
brandished, discharged, or otherwise used as a weapon . . . ." 18 U.S.C. §
3559(c)(2)(D).
Accordingly, under the Florida statute, some aggravated assaults would
satisfy the definition of "firearms use" under § 3559(c)(2)(D), while others,
involving deadly weapons other than firearms, would not. As in Taylor, this
ambiguity permits the sentencing court to look at the charging paper to determine
if the defendant was actually convicted of an offense satisfying the enhancement
statute. In this case, the Information to which Gage pled nolo contendere charged
that he "did unlawfully, feloniously and intentionally threaten by word or act to do
violence to the person of another . . . coupled with an apparent ability to do so and
did some act, to wit: Pointed a firearm at or in the direction of [the victim] and/or
shot at or in the direction of [the victim]." As this Information confirms that
Gage's earlier conviction was for a crime that would satisfy the definition of "firearms use" under § 3559(c)(2)(D), he is subject to a mandatory sentence of life
imprisonment under § 3559(c)(1). Therefore, because the district court erred in
concluding that it could not consider the Florida Information in determining
whether Gage's prior aggravated assault conviction qualifies as a "serious violent
felony" under § 3559, we reverse Gage's sentence.
IV.
Based upon the foregoing, we AFFIRM the convictions of Fulford and
Gage. However, we REVERSE Gage's sentence and REMAND for resentencing
under the federal "three strikes" statute, § 3559.