United States v. Loftin , 128 F. App'x 964 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4340
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH WAYNE LOFTIN, a/k/a Hippy Joe, a/k/a
Joseph Wayne Loften,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-267)
Argued: February 4, 2005 Decided: April 22, 2005
Before NIEMEYER and MICHAEL, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Benjamin David Porter, MORROW, ALEXANDER, TASH, KURTZ &
PORTER, P.L.L.C., Winston-Salem, North Carolina, for Appellant.
Robert A. J. Lang, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
ON BRIEF: Anna Mills Wagoner, United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Wayne Loftin was charged with stealing firearms
from a federally licensed firearms dealer, in violation of 18
U.S.C. § 924(m) and § 2 (the aiding and abetting statute), and with
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) and § 924(e)(1). After a jury convicted Loftin
on both counts, the district court sentenced him to 245 months'
imprisonment for possession of a firearm as a convicted felon and
120 months' imprisonment for stealing firearms, to run
concurrently. The court also ordered Loftin to pay restitution in
the amount of $4,190.
On appeal, Loftin contends that the district court erred
in responding to several jury questions submitted to the court
during deliberations. Finding no reversible error, we affirm.
I
In March 2002, Robert Lakey, James Callahan, James Cox,
and the defendant Loftin were sitting around with a group of
people, drinking, and "talking about ways to make money." At some
point during that meeting, Loftin said he knew of a person who had
a large number of firearms in his trailer home. Accordingly, the
group decided to break into the Lewisville, North Carolina home of
Larry Davis, a federally-licensed collector of firearms, and steal
his firearms.
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After Lakey, Cox, and Loftin drove to Davis' residence in
the early morning hours of March 11, 2002, to case the place,
Lakey, Callahan, and Loftin returned later that morning, waited for
Davis to leave, and then proceeded forcibly to enter Davis'
residence. After entering the residence, the group ransacked the
interior and stole 33 weapons, which the various members of the
conspiracy then stored.
Later Lakey and Callahan cooperated with federal
officials and testified against Loftin, stating that Loftin used a
crowbar to pry open the front door, after which Loftin and Lakey
entered the residence, pried open the gun safe, and removed the
guns. Callahan admitted to being the driver.
During the course of jury deliberations during Loftin's
trial, the jury submitted numerous questions to the court, which
the court answered with further instructions to the jury.
Following Loftin's conviction and sentencing, Loftin filed this
appeal.
On appeal, Loftin challenges only the court's responses
to jury questions.
II
During deliberations, the jury sent a handwritten
question to the court as follows: "Steal equals taking. Could a
person 'take' . . . 'steal' without being physically at the site of
the theft, i.e. at the trailer? Or does agreement to accept the
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stolen goods, hide the stolen goods constitute 'taking' and
therefore 'stealing?' We need clarification on what constitutes
actual theft."
Discussing a response with counsel, the court proposed
giving a standard aiding and abetting instruction to help clarify
to the jury whether a defendant's actual presence in the residence
was necessary to convict. The court also proposed to read again an
earlier instruction giving the meaning of the word "steal."
Counsel for Loftin did not object to the repeat of the "steal"
instruction, but stated that the aiding and abetting instruction
was not necessary in view of the evidence. In counsel's view,
"anything could have happened and possibly a scenario could have
happened, but there is no evidence to support that. The evidence
in the case is that [Loftin] was a direct participant in this, so
either he did it or he didn't."
The court instructed the jury as it proposed, giving the
jury a standard aiding and abetting instruction and concluding, "in
order to find Mr. Loftin guilty of the charge in count one, you
would have to find it has been proven beyond a reasonable doubt
that he participated or aided and abetted the taking of the
firearms from the trailer."
Loftin now contends that giving the aiding and abetting
instruction constituted error, as it was not supported by the
evidence. According to Loftin, the evidence only indicated that he
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was one of the principals who actually engaged in the break-in and
the theft. In Loftin's view, if the jury did not believe that he
was a principal, then it should acquit and not find him guilty on
an aiding and abetting charge.
We find Loftin's view of the case too rigid. The
government proved with ample evidence that the underlying offense
had been committed by at least three individuals -- Loftin, Lakey,
and Callahan -- and maybe by Cox. Moreover, there was evidence
that Loftin, Lakey, Callahan, and Cox all possessed some of the
firearms after the theft. While the government's theory of the
case was that Loftin and Lakey were the prime perpetrators, it is
possible that cross-examination made the identity of the actual
principals uncertain. While it is clear that Loftin, Lakey,
Callahan, and Cox were all involved, the jury could have harbored
doubts on the exact role of each and on the extent of participation
by each.
Loftin was charged with both being a principal and an
aider and abettor, and, we conclude that the district court did not
abuse its discretion in giving the jury an aider and abettor
instruction that all parties agreed was appropriate in form. See,
e.g., United States v. Horton, 921 F.2d 540, 543-45 (4th Cir.
1990), cert. denied, 501 U.S. 1234 (1991); United States v. Duke,
409 F.2d 669, 671 (4th Cir. 1969).
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III
During deliberations the jury also submitted questions
such as, "Was there an opportunity for the witnesses to compare
stories?" and "Did the government coach witnesses separately on
testimony?" The court advised the jury, "[Y]ou must make your
decision based on the evidence that has been presented in the case,
and it is up to you to remember what has been presented in the
case."
Loftin contends that this response is misleading because
it does not allow the jury to consider the possibility that the
government did coach the witnesses or that the witnesses did
compare stories, even though there was no evidence in the record to
support those possibilities.
Because Loftin raises this objection for the first time
on appeal, we review it under the plain-error standard. See Fed.
R. Crim. P. 52(b). We conclude that Loftin has failed to carry his
burden under that standard. The court's instruction in response to
the jury's question was an appropriate allusion to its earlier and
fuller instruction to the jury:
Now, in saying that you must consider all of the
evidence, I do not mean that you must accept all of the
evidence as true or accurate. You should decide whether
you believe what each witness had to say and how
important that testimony was. In making that decision,
you may believe or disbelieve any witness, in whole or in
part.
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The district court's supplemental instruction relating to possible
credibility issues did not conflict with the court's earlier
instruction, nor did it erroneously advise the jury of its task.
As such, Loftin has not fulfilled his burden of showing prejudicial
error. See United States v. United Med. Surgical Supply Corp., 989
F.2d 1390, 1406-07 (4th Cir. 1993).
AFFIRMED
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