Defendant presented evidence that his 14-year-old cousin was the one who committed the armed robbery for which defendant stood trial. The district court plainly erred when it gave its jury instruction on aiding and abetting because it failed to instruct that defendant must have acted with the intent to further the robbery. However, defendant has failed to show prejudice given the evidence against him and the jury’s finding of guilt for the offense of possessing the firearm used in the robbery.
We affirm defendant’s convictions of Hobbs Act robbery, possessing a firearm in furtherance of the robbery, and possessing a firearm as a felon.
The circumstantial evidence of defendant’s intent was powerful: Police found a ski mask with defendant’s DNA — and only defendant’s DNA — along the robber’s escape route minutes after the robbery occurred. Combined with the footage of defendant’s car entering and exiting the area immediately before and after the robbery, the ski mask is “strong proof” that defendant came there with the intent to facilitate the robbery, either as its principal or as an accomplice.
Crucially, the jury also convicted defendant of possessing a firearm in furtherance of the robbery. The district court gave no aiding and abetting instruction on the possession charge, and it told the jury that to constructively possess a firearm, a defendant must knowingly have “both the power and the intention at a given time to exercise dominion or control over [it].”
The only evidence linking a firearm to the robbery was the evidence a gun was used during the robbery itself. And the only evidence connecting defendant to that gun was the evidence he participated in the robbery. Thus, assuming (as defendant asks us to) that the jury concluded defendant did not commit the robbery himself and therefore did not actually possess the gun, the jury must have found defendant had the power and the intention to exercise control over the gun while someone else committed the robbery on his behalf. That finding prevents him from demonstrating prejudice.
Although a potential juror had trouble hearing during jury selection, the district court denied defendant’s challenge for cause because the juror was ultimately able to hear. Nothing in the record calls into question the district court’s finding. Neither the juror, nor defense counsel nor anyone else raised concerns about the juror’s hearing after jury selection.
United States v. Odum (Lawyers Weekly No. 001-057-23, 16 pp.) (Diana Gribbon Motz, S.J.) No. 21-4076. Appealed from USDC at Charlotte, N.C. (Max Cogburn, J.) Melissa Susanne Baldwin and Anthony Martinez for appellant; Anthony Joseph Enright and William Stetzer for appellee. United States Court of Appeals for the Fourth Circuit