U.S. v. Fulford, No. 99-4094

• Decision Date: 02 October 2001
• Docket Number: No. 99-4094
• Citation: 267 F.3d 1241
• Parties: (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. BRADLEY FULFORD, Defendant-Appellant, and LEONARDO GAGE, Defendant-Appellant-Cross-Appellee
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1241

267 F.3d 1241 (11th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee-Cross-Appellant, v. BRADLEY FULFORD, Defendant-Appellant, and LEONARDO GAGE, Defendant-Appellant-Cross-Appellee.

No. 99-4094

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

October 2, 2001

[Copyrighted Material Omitted] Appeals from the United States District Court for the Southern District of Florida, D. C. Docket No. 97-00660-CR-UUB

Before MARCUS, WILSON, and MAGILL^*, Circuit Judges.

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. 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...