United States v. Fulford

267 F.3d 1241, 2001 U.S. App. LEXIS 21280, 2001 WL 1159772
Court of Appeals for the Eleventh Circuit·Decided October 2, 2001·No. 99-4094·Published·Cited by 100 cases

Opinion

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 and Gage’s sentence.

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. Ful-ford 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 Ful-ford and Gage with conspiracy to carjack a vehicle at gunpoint, conspiracy to carry a *1244 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 Ful-ford 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, 119 S.Ct. 966, 143 L.Ed.2d 1 (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 Iglesi-as’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 Ful-ford 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.

*1245 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, 88 S.Ct. 1620, 20 L.Ed.2d 476 (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

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United States v. Fulford, 267 F.3d 1241, 2001 U.S. App. LEXIS 21280, 2001 WL 1159772 (11th Cir. 2001).

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