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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13128
Non-Argument Calendar
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D.C. Docket Nos. 1:17-cv-00948-TWT,
1:12-cr-00183-TWT-JSA-1
HERBERT CLIFTON HECTOR,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(July 27, 2020)
Before WILLIAM PRYOR, Chief Judge, JORDAN and NEWSOM, Circuit
Judges.
PER CURIAM:
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Herbert Hector appeals pro se the denial of his motion to vacate his
sentence, 28 U.S.C. § 2255, for conspiring to commit armed bank robbery. 18
U.S.C. §§ 371, 2113(a), (d), and 2. The district court granted Hector a certificate of
appealability to review whether his trial counsel was ineffective for failing to
object to a jury instruction and verdict form as constructively amending his
indictment by describing his crime as a conspiracy to commit bank robbery instead
of as an armed bank robbery. Because the jury instruction and verdict form were
consistent with Hector’s indictment and neither warranted an objection by counsel
nor affected the outcome of Hector’s trial, we affirm.
I. BACKGROUND
In May 2013, a grand jury returned a three-count superseding indictment
that charged Hector with conspiring with Anwand Jackson to rob, with committing
an armed robbery of, and with using “a dangerous weapon, that is, a handgun” to
rob “the Wells Fargo Bank located at 3072 Old Norcross Road, Duluth, Georgia.”
18 U.S.C. §§ 2113(a), 2113(d), 924(c)(1)(A)(ii), 371, 2. Count one charged that
Hector and Jackson agreed to “take United States currency from . . . employees of
the Wells Fargo bank,” to do so “by force, violence, or intimidation,” and to
“assault and put in jeopardy the lives of said bank employees by the use of a
dangerous weapon, that is, a handgun.”
Id. § 371. And it alleged as overt acts that
Hector and Jackson “discussed and planned the armed robbery,” “brandished a
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handgun,” and “used and carried a firearm during and in relation to the armed bank
robbery.” Counts two and three charged respectively that Hector, “aided and
abetted by” Jackson, robbed a bank using a handgun,
id. §§ 2113(a), 2113(d), 2,
and “did knowingly use and carry a firearm during and in relation to” the bank
robbery,
id. §§ 924(c)(1)(A)(ii), 2.
At trial, the government introduced surveillance video recordings and
testimony from Matthew Carr, the bank manager, and from a bank teller, Tabassun
Haque, that proved Hector and Jackson executed “an obviously well-planned and
coordinated robbery” in “approximately 40 seconds.” United States v. Hector, 611
F. App’x 632, 635 (11th Cir. 2015). Carr testified that Hector and Jackson arrived
and departed from the bank together in a Honda Accord. The surveillance
recordings showed “Hector holding the bank’s door open for Jackson, who entered
the bank with his handgun drawn.”
Id. The surveillance recordings also
corroborated Carr’s and Haque’s testimony that Hector and Jackson wore masks,
dashed to adjacent teller stations after entering the bank, and ordered the tellers to
empty their cash drawers; that Hector held the money bag; and that Jackson
brandished a gun during the robbery.
Id.
Hector rested without presenting any evidence in his defense. During
closing, he argued that he committed a bank robbery instead of an armed bank
robbery. Hector argued that Jackson wielded the gun and that the government
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failed to prove that he knew, could have reasonably foreseen, or agreed that
Jackson would be armed during the bank robbery.
The district court instructed the jury that Hector’s indictment was the
“accusation” or description of his criminal charges that the government bore the
burden of proving beyond a reasonable doubt. It explained that “Count 1 charges
that [Hector] knowingly and willfully conspired to commit bank robbery” and
“Count 2 charges . . . a substantive offense, specifically armed bank robbery.” The
district court also explained that Hector was “not charged in Count 1 with
committing a substantive offense” but was “charged with conspiring to commit
that offense” and that he could not be convicted unless the government proved that
he knowingly joined an agreement to commit an unlawful act and that a
conspirator committed an overt act alleged in the indictment. The district court told
the jury that it would receive “a copy of the indictment to refer to during [its]
deliberations.” The district court also told the jury that Hector was “on trial only
for the specific crimes charged in the indictment” and that the jury had to
“determine from the evidence in this case whether [Hector was] guilty or not guilty
of those specific crimes.” The district court provided the jury with a copy of
Hector’s superseding indictment and the verdict form, which identified the charges
against Hector as “Count I Conspiracy to Commit Bank Robbery,” “Count II
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Armed Bank Robbery,” and “Count III Use of a Firearm in Relation to Crime of
Violence.” Hector did not object to the jury instructions or to the verdict form.
The jury referred to the indictment during its deliberations. The jury sent the
district court a note that asked, “as stated in Count 3 of the indictment, does the
Defendant need to be in physical possession of the firearm to be considered
carrying.” After conferring with the parties, the district court answered the jury’s
question in the negative. Hector, 611 F. App’x at 636.
The jury found Hector guilty of all three counts of his indictment and made a
special finding that “a firearm was brandished during the course of the robbery.”
Hector’s final judgment stated that he “was found guilty by jury on Count(s) 1, 2, 3
of the Superseding Indictment” and described count 1 as “Conspiracy to commit
armed bank robbery.”
Id. at 638–39. Hector appealed, but he did “not contest his
conviction for conspiracy to commit armed bank robbery.”
Id. at 637. We affirmed
his convictions and sentence.
Id. at 637–45.
After the direct appeal, defense counsel recommended that Hector move to
vacate his sentence. Counsel suggested arguing that she was ineffective for “not
objecting to the Judgment & Commitment stating that Count One was ‘Conspiracy
to Commit Armed Robbery’” when “the verdict form . . . stated ‘Conspiracy to
Commit Bank Robbery.’” Counsel also suggested arguing that she was “ineffective
for not appealing [his] conviction on Count One.”
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Hector moved to vacate his sentence. 28 U.S.C. § 2255. Hector argued that
his counsel was ineffective by failing to argue at trial and on appeal that the district
court constructively amended his indictment for conspiracy by omitting the word
“armed” from its jury instruction and from the verdict form. The district court
denied Hector’s motion. The district court ruled that no constructive amendment of
the indictment occurred that would have warranted an objection from trial counsel
or that would have affected the outcome of Hector’s trial. The district court also
rejected Hector’s argument that counsel was ineffective for failing to argue about a
constructive amendment on appeal.
The district court granted Hector a certificate of appealability to review
“whether trial counsel rendered ineffective assistance of counsel for failing to
object to the verdict form and the omission of ‘armed bank robbery’ in the
conspiracy instruction.” The district court denied Hector a certificate to appeal the
denial of his claim of ineffective assistance of appellate counsel. Hector stated in
his written notice of appeal that he sought review of “[t]he District Courts denial of
[his] claim of ineffective assistance of trial counsel.”
II. STANDARD OF REVIEW
A claim of ineffective assistance of counsel presents a mixed question of law
and fact that we review de novo. United States v. Patterson,
595 F.3d 1324, 1328
(11th Cir. 2010).
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III. DISCUSSION
Hector argues that counsel was ineffective for failing to argue at trial and on
appeal that the district court constructively amended his indictment by describing
his offense in a jury instruction and on the verdict form as a conspiracy to commit
bank robbery instead of an armed bank robbery. We address Hector’s argument
about his trial counsel’s alleged ineffectiveness because the district court granted a
certificate of appealability on that issue. But our review is limited to the issues in
the certificate of appealability, Murray v. United States,
145 F.3d 1249, 1250–51
(11th Cir. 1998), so we decline to review Hector’s argument that counsel was
ineffective on appeal and deny the request in his brief to expand the certificate of
appealability.
To prevail on his claim of ineffective assistance, Hector had to prove that his
counsel’s performance was deficient and that he was prejudiced by that deficiency.
Strickland v. Washington,
466 U.S. 668, 687–88, 694 (1984). Because counsel
enjoys a strong presumption that he provided adequate representation,
id. at 689,
Hector had to prove that no objectively competent lawyer would have made the
same decision, Adams v. Wainwright,
709 F.2d 1443, 1445 (11th Cir. 1983). And
Hector had to establish that “there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of [his trial] would have been different.”
Strickland, 466 U.S. at 694.
Hector failed to prove that counsel acted deficiently. Counsel is not required
to make objections that lack merit. Denson v. United States,
804 F.3d 1339, 1342
(11th Cir. 2015). “A constructive amendment 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.” United States v. Holt,
777 F.3d 1234, 1261 (11th Cir. 2015) (internal quotation marks omitted). The jury
instruction mirrored the crime charged in Hector’s indictment. The district court
instructed the jury that Hector was charged for conspiring to commit the
“substantive offense” of “armed bank robbery,” which required proof that he knew
of and joined a plan to rob the bank using a firearm. And the omission of the word
“armed” from the verdict form did not change the elements of the offense charged
“literally or in effect.” See United States v. Behety,
32 F.3d 503, 508–09 (11th Cir.
1994). The verdict form referenced “Count I” of Hector’s indictment and signaled
that the verdict had to be based on the same offense that was charged in the
indictment. Neither the jury instruction nor the verdict form constructively
amended Hector’s indictment.
Even if we were to assume that Hector’s counsel was deficient for failing to
object to the jury instruction and verdict form, Hector cannot prove that any
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deficient performance prejudiced the outcome of his trial. Hector’s indictment
charged that he conspired to commit an armed robbery by alleging several overt
acts that involved the use of a gun, and the district court instructed the jury to refer
to the indictment to determine the charge against him. The surveillance video
recordings showed that Hector participated in the armed bank robbery even after
his coconspirator displayed a gun and provided evidence from which the jury could
have reasonably inferred that he had advance knowledge that a gun would be used
during the robbery. See Rosemond v. United States,
572 U.S. 65, 78 n.9 (2014)
(“[I]f a defendant continues to participate in a crime after a gun was displayed or
used by a confederate, the jury can permissibly infer from his failure to object or
withdraw that he had such knowledge.”). And the verdicts finding Hector guilty of
aiding and abetting in the armed robbery and in the use of a firearm that was
brandished during the robbery evidenced that the jury found that he shared the
criminal intent of his coconspirator to commit an armed robbery. See United States
v. Leonard,
138 F.3d 906, 909 (11th Cir. 1998) (“To sustain a conviction for aiding
and abetting, the evidence must show that the defendant shared the criminal intent
of the principal(s) and committed an overt act in furtherance of the criminal
venture.”).
IV. CONCLUSION
We AFFIRM the denial of Hector’s motion to vacate.
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