United States v. Marvel Ebanks ( 2013 )

Case: 12-11918 Date Filed: 05/29/2013 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11918
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D.C. Docket No. 9:10-cr-80046-KAM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARVEL EBANKS,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 29, 2013)
Before BARKETT and MARCUS, Circuit Judges, and CONWAY, * District Judge.
PER CURIAM:
*
Honorable Anne C. Conway, Chief Judge, United States District Court for the Middle
District of Florida, sitting by designation.
Case: 12-11918 Date Filed: 05/29/2013 Page: 2 of 2
Marvel Ebanks appeals her convictions for aiding and assisting in the filing
of fraudulent income tax returns in violation of 26 U.S.C. § 7206(2). Ebanks
argues that by granting the government’s motion to include a jury instruction on
aiding and abetting, the district court constructively amended the indictment by
broadening the possible grounds for conviction. 1
Having the benefit of oral argument and having reviewed the record and the
entirety of the jury instructions, we find that the aiding and abetting instruction did
not “so modify the elements of the offense charged that [Ebanks] may have been
convicted on a ground not alleged by the grand jury’s indictment.” United States v.
Williams, 527 F.3d 1235, 1246 (11th Cir. 2008) (internal quotation marks
omitted). The district court gave the correct instruction detailing the elements of
the offense charged and the evidence supported the jury’s determination that the
government established each of these elements beyond a reasonable doubt.
AFFIRMED.
1
We reject the government’s contention that because she only raised a general objection
to this instruction, we should review Ebanks’s argument for plain error. Ebanks explained that
the instruction confuses the jury which raised the core concern of the constructive amendment
doctrine, which is that the jury will convict the defendant on grounds not alleged in the
indictment. Moreover, the back-and-forth between the district court and the government covered
the arguments that are pertinent to an analysis of the constructive amendment doctrine. Thus, we
find that Ebanks properly preserved a constructive amendment objection, which the district court
had the opportunity to properly address.
2