United States v. Craig Courtney Carroll ( 2012 )

  •                                                             [DO NOT PUBLISH]
                           FOR THE ELEVENTH CIRCUIT
                                    No. 10-12584         U.S. COURT OF APPEALS
                          _____________________________ ELEVENTH CIRCUIT
                                                               JAN 12, 
    2012 Dall. C
    . Docket No. 1:09-cr-00245-WSD-AJB-1 JOHN LEY
                      Appeal from the United States District Court
                         for the Northern District of Georgia
                                   (January 12, 2012)
    Before EDMONDSON, BLACK, and WILSON, Circuit Judges.
          Craig Courtney Carroll appeals his convictions and 295-month total
    sentence for interference with interstate commerce through robbery (Count 1), use
    of a firearm during a crime of violence (Count 2), and possession of a firearm by a
    convicted felon (Count 3), in violation of 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A)(ii),
    1951. Based on the evidence presented at trial, Carroll robbed an armored car at
    gunpoint when it stopped to deliver money to a convenience store. No reversible
    error has been shown; we affirm.
          On appeal, Carroll argues that the district court erred in denying his motion
    for judgment of acquittal based on his claim that the indictment was amended
    impermissibly. We review de novo the district court’s denial of a motion for
    judgment of acquittal. United States v. Ward, 
    486 F.3d 1212
    , 1220 (11th Cir.
    2007). And we review de novo the sufficiency of an indictment. United States v.
    624 F.3d 1342
    , 1349 (11th Cir. 2010).
          The Fifth Amendment guarantees that a defendant can be convicted only of
    crimes charged in the indictment. Ward, 486 F.3d at 1226. Thus, the constructive
    amendment of an indictment -- which occurs “when the essential elements of the
    offense contained in the indictment are altered to broaden the possible bases for
    conviction beyond what is contained in the indictment” -- constitutes per se
    reversible error. Id. at 1226-27. A variance, on the other hand, requires reversal
    only if the defendant establishes that the variance substantially prejudiced his
    essential rights. Id. at 1227. A variance “occurs when the facts proved at trial
    deviate from the facts contained in the indictment but the essential elements of the
    offense are the same.” Id.
           Here, Count 1 of Carroll’s indictment alleged that he stole money
    “belonging to” Dunbar Armored Car Company, but the evidence introduced at
    trial established that the stolen money belonged to the convenience store owner.
    Based on this discrepancy, Carroll moved for judgment of acquittal, arguing that
    the government failed to prove that he was guilty of Count 1 as charged.1 The
    district court denied Carroll’s motion, concluding that the language about the
    ownership of the money could be ignored as surplusage. We agree.
           Carroll does not dispute that the indictment alleged both essential elements
    of a section 1951(a) violation, including that he committed a robbery and that the
    robbery had an effect on interstate commerce. See United States v. Dean, 
    517 F.3d 1224
    , 1227-28 (11th Cir. 2008) (explaining that “[t]o obtain a conviction for
    conspiring to interfere with interstate commerce through robbery, in violation of
    [section 1951(a)], the government need only prove a robbery and effect on
    commerce.”). Meanwhile, ownership of the stolen property is not an essential
    element of that offense. See id. Thus, that portion of Carroll’s indictment was
        Carroll also argues that his conviction for use of a firearm during a crime of violence, pursuant
    to 18 U.S.C. § 924(c), is invalid because it relied on his conviction in Count 1 as an underlying
    “unnecessary to and independent of the allegations of the offense” and could be
    ignored. See Ward, 486 F.3d at 1227.
          Because submission of Carroll’s case to the jury -- despite evidence that
    Dunbar did not in fact own the stolen money -- did not alter the essential elements
    of the offense, it did not constitute a constructive amendment. See id. at 1226. It
    did, however, constitute a variance because the facts proved at trial deviated from
    those alleged in the indictment. See id. at 1227. Carroll fails, however, to argue
    on appeal either that he was substantially prejudiced by the variance or that the
    surplusage should not have been ignored. Thus, he abandons those arguments and
    fails to demonstrate reversible error. See id.; United States v. Jernigan, 
    341 F.3d 1273
    , 1283 n.8 (11th Cir. 2003).
          Carroll also argues that the district court abused its discretion when it
    excluded the polygraph test results of a government witness, which Carroll sought
    to introduce for impeachment purposes. We review a district court’s decision to
    exclude the results of a polygraph test for abuse of discretion. United States v.
    409 F.3d 1293
    , 1303 (11th Cir. 2005). Polygraph results may be
    introduced for impeachment purposes only if, among other things, the evidence is
    admissible under the Federal Rules of Evidence. Id. at 1302.
           We are unpersuaded that the district court abused its discretion in refusing
    to admit the polygraph results into evidence. First, Carroll sought to introduce the
    polygraph results during the cross-examination of a government witness who
    neither discussed the polygraph test during his direct examination nor had
    personal involvement with administering the test. As such, Carroll’s line of
    questioning was outside the scope of cross-examination; and the district court had
    discretion to exclude the evidence.2 See Fed.R.Evid. 611(b); United States v.
    167 F.3d 1350
    , 1352 (11th Cir. 1999) (noting that “[a] district court has
    wide discretion to control the cross-examination of witnesses”). Second, it was
    within the district court’s discretion to exclude the polygraph evidence as
    unreliable under Fed.R.Evid. 702 and unduly prejudicial under Fed.R.Evid. 403,
    particularly when no expert witness was present to explain the meaning of and
    context of the results. See United States v. Gilliard, 
    133 F.3d 809
    , 812 (11th Cir.
    1998) (concluding that the district court did not abuse its discretion in refusing to
    admit polygraph evidence that it determined was inadmissible under Rules 403
    and 702).
        Although the district court did not expressly rely on this reason in its ruling, we may affirm “for
    any reason supported by the record.” See United States v. Al-Arian, 
    514 F.3d 1184
    , 1189 (11th Cir.