United States v. Herbert Clifton Hector

611 F. App'x 632
Court of Appeals for the Eleventh Circuit·Decided July 6, 2015·No. 14-10255·Unpublished·Cited by 2 cases

Opinions

PER CURIAM:

As stated in the instant Judgment In A Criminal Case, Herbert Clifton Hector was convicted of “[c]onspiracy to commit armed bank robbery”, in violation of 18 U.S.C. § 371 (count 1); “[ajrmed bank robbery”, in violation of 18 U.S.C. § 2113(a), (d) (count 2); and “[bjrandish-ing a firearm during a crime of violence (bank robbery)”, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count 3). Hector primarily challenges the instructions given the jury for counts 2 and 3, claiming the court erred by failing to instruct the jury adequately on “advance knowledge”, as re[635] quired by Rosemond v. United States, — U.S. -, 134 S.Ct. 1240, 1249, 188 L.Ed.2d 248 (2014). AFFIRMED.

I.

On 15 May 2012, Hector and his co-conspirator, Jackson, robbed a Wells Fargo bank at gunpoint. The two arrived at the bank together in the same vehicle. Video-surveillance evidence shows Hector holding the bank’s door open for Jackson, who entered the bank with his handgun drawn. Both men were wearing masks. After each man demanded money from the bank’s tellers, they put approximately $12,000 into a bag carried by Hector, while Jackson pointed the weapon at one of the tellers. The video reflects an obviously well-planned and -coordinated robbery; it lasted only approximately 40 seconds. Both men then escaped in the vehicle in which they had arrived at the bank; it was driven by Jackson, with Hector in the front passenger seat.

The police were alerted to the getaway vehicle’s location by a GPS tracking device embedded with the money in the bag Hector carried. Police pursued that vehicle, with speeds reaching 99.5 miles per hour. While exiting the highway, the vehicle collided with another vehicle.

After the collision, Jackson and Hector exited the vehicle and both ran towards a QuikTrip filling station just off the exit ramp. They then ran in different directions. Jackson fled to a nearby hotel, where police found him, in possession of a handgun. Hector ran in the opposite direction, through a large drainage tunnel that passed under a highway. He then ran through a warehouse, in which an employee was working. Hector was apprehended in a smaller drainage tunnel on the other side of that warehouse.

In June 2012, Jackson and Hector were indicted for: committing, and aiding and abetting the commission of, armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), (d); and using, and aiding and abetting the use of, a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(l)(A)(ii). After Jackson pleaded guilty to both counts, a May 2013 superseding indictment charged Hector with: conspiracy to commit bank robbery by use of a handgun, in violation of 18 U.S.C. §§ 2113(a), (d) and 2 (count 1); committing, or aiding and abetting, bank robbery by use of a handgun, in violation of 18 U.S.C. §§ 2113(a), (d) and 2 (count 2); and committing, or aiding and abetting, the knowing use and carrying of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(l)(A)(ii) and 2 (count 3). Count 1 provided a number of overt acts, including brandishing a handgun. Counts 2 and 3 incorporated those overt acts by reference.

At trial, the Government presented the video recording that captured the robbery, including Jackson’s brandishing the handgun. And, the Government presented witnesses who testified to Hector’s and Jackson’s coordinated actions during the robbery. It, however, did not present direct evidence of events before the robbery began.

After the Government rested, Hector moved unsuccessfully for judgment of acquittal on count 3. In other words, he did not seek that relief for counts 1 and 2. •Subsequently, Hector did not present evidence.

At the charge conference, the Government proposed instructing the jury on, inter alia, aiding and abetting (defendant aids and abets a person if he intentionally joins with the person to commit a crime, and is a willful participant and not merely a knowing spectator) and Pinkerton (reasonable foreseeability), see Pinkerton v. [636] United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). On the other hand, for aiding and abetting, Hector requested the court to instruct that, to convict for either armed bank robbery (count 2) or aiding and abetting the carrying of a firearm in relation to a crime of violence (count 3), the jury must find Hector had actual knowledge that Jackson would use a firearm in the commission of the robbery. Hector also requested the court instruct: that, to convict under Pinkerton, the jury must find the use of the firearm was “reasonably foreseeable ... as a necessary or natural consequence of the unlawful agreement”, which is more specific than the eleventh circuit pattern jury instructions; and on the lesser-included offense of unarmed bank robbery. The court denied Hector’s requests and gave the eleventh circuit pattern jury instructions, to which Hector objected.

At the Government’s request, and over Hector’s objection, the court amended the jury verdict form to include a special interrogatory, asking whether a firearm was “brandished” during the robbery. Hector objected unsuccessfully to that amendment, claiming it constituted a constructive amendment to the indictment.

After instructing the jury on conspiracy, armed bank robbery, and carrying a firearm in relation to a crime of violence, the district court explained aiding-and-abetting liability to the jury:

A Defendant aids and abets a person if the Defendant intentionally joins with the person to commit a crime. A Defendant is criminally responsible for the acts of another person if the Defendant aids and abets the other person. A Defendant is also responsible if the Defendant willfully directs or authorizes the acts of an agent, employee or other associate. But finding that a Defendant is criminally responsible for the acts of another person requires proof that the Defendant intentionally associated with or participated in the crime, not just that the Defendant was simply present at the scene of a crime or knew about it. In other words, you must find beyond a reasonable doubt that the Defendant was a willful participant and not merely a knowing spectator.

Hector unsuccessfully renewed his objection to the aiding-and-abetting instruction, based on its lacking a knowledge component.

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United States v. Herbert Clifton Hector, 611 F. App'x 632 (11th Cir. 2015).

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