United States v. Velez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4841
ENRIQUE VELEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-00-48)
Submitted: October 31, 2001
Decided: November 20, 2001
Before WILKINS, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Joseph B. Gilbert, MCNEIL & GILBERT, Jacksonville, North Caro-
lina, for Appellant. John Stuart Bruce, United States Attorney, Anne
M. Hayes, Assistant United States Attorney, Jennifer May-Parker,
Assistant United States Attorney, Erin Norris, Third-Year Law Stu-
dent, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. VELEZ
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Enrique Velez was convicted by a jury of: (1) one count of bank
robbery, 18 U.S.C.A. §§ 2, 2113(a) (West 1999); (2) one count of
armed bank robbery, 18 U.S.C.A. §§ 2, 2113(a) & (d) (West 1999);
(3) one count of using, carrying and brandishing a firearm in conjunc-
tion with a crime of violence, the armed bank robbery, 18 U.S.C.A.
§§ 2, 924(c)(1) (West 2000); and (4) one count of conspiracy to com-
mit the robberies, 18 U.S.C.A. § 371 (West 2000). Velez was sen-
tenced on November 6, 2000, to concurrent seventy-eight month
terms of imprisonment for the robberies, a concurrent sixty month
term of imprisonment for the conspiracy, and a consecutive eighty-
four month term of imprisonment for aiding and abetting the bran-
dishing of the firearm. On appeal Velez contends that the indictment
and the district court’s jury instructions were improper. After a thor-
ough review of the indictment and instructions, we affirm.
On November 12, 1999, Omar Rivera robbed the Coastal Federal
Bank in Sunset Beach, North Carolina, while Velez waited in a car
parked outside. Approximately $3000 was stolen. Rivera gave Velez
$400 of the proceeds. Two weeks later, on November 26, 1999, both
Rivera and Velez entered the Security Savings Bank in Shallotte,
North Carolina and robbed it of approximately $8000. Rivera carried
a gun, displayed it, and used it to threaten bank employees and cus-
tomers. Rivera and Velez were apprehended within the hour driving
away from the robbery. Rivera and Velez were indicted on four
charges. Rivera pled guilty to three counts and testified against Velez
at his trial, at which Velez was found guilty of all four counts.
Initially, Velez avers that the court committed reversible error by
misspeaking in the instructions accompanying Count Two by insert-
ing the date and bank charged in Count One. After correctly reading
Count One of the indictment, which charged the robbery of Coastal
UNITED STATES v. VELEZ 3
Federal Bank on November 12, 1999, and correctly instructing the
jury on the elements of that charge, the district court properly read
Count Two, which charged the robbery of Security Savings Bank on
November 26, 1999. The court then instructed the jury:
Now, as to the crime charged in Count Two of the indict-
ment, the government must prove beyond a reasonable
doubt each of the following elements; first, that the defen-
dant, Enrique Velez, took from the person or presence of
another money belonging to or in the care, custody, control,
management, or possession of the Coastal Federal Bank.
Second, that on November 12, 1999, Coastal Federal Bank
had its deposits insured by the Federal Deposit Insurance
Corporation. Third, that the defendant took such money by
means of force and violence, or by means of intimidation.
Fourth, that the defendant assaulted or put in jeopardy the
life of a bank employee or others by the use of a dangerous
weapon or device, while committing or attempting to com-
mit the theft.
The defense did not object to this instruction.
Velez contends that he was prejudiced by this error because it
required the jury to find that an armed robbery was committed on
November 12 at the Coastal Federal Bank when the indictment
alleged unarmed robbery of that bank on that date in Count One.
Velez relies on a case where this court reversed a conviction because
the district court instructed on the wrong subsection of the statute
cited in the indictment. United States v. Floresca, 38 F.3d 706 (4th
Cir. 1994). The Government, in response, contends that there was no
constructive amendment of the indictment because the evidence intro-
duced during the trial and the argument of counsel were fully consis-
tent with the indictment.
To find constructive amendment of the indictment "either the gov-
ernment (usually during the presentation of evidence and/or its argu-
ment), or the court (usually through its instructions to the jury), or
both, broadens the possible bases for conviction beyond those
presented by the grand jury." Floresca, 38 F.3d at 710. The district
court followed its instruction on the elements of the crimes contained
4 UNITED STATES v. VELEZ
in each count with the instruction that, "The Defendant is not on trial
for any act or conduct or offense not alleged in the indictment," and
sent a copy of the indictment and a verdict form to the jury room. The
verdict form required that the jury find the Defendant guilty or not
guilty of each count of the indictment. Upon these facts, we conclude
that the misstatement of the district court did not result in a construc-
tive amendment to the indictment. Velez’s conviction on Count Two
for armed bank robbery is accordingly affirmed.
Velez next contends, for the first time of appeal, that Count Three
of the indictment, alleging a violation of 18 U.S.C. § 924(c), was
defective because it tracked the statute and left out the element of
scienter. An error that is raised for the first time on appeal is subject
to plain error review. United States v. Olano, 507 U.S. 725, 731-32
(1993). However, we have held that an indictment that alleges the
defendant carried and used a firearm sufficiently imports knowledge
of the essential facts of the crime. United States v. Sutton, 961 F.2d
476, 479 (4th Cir. 1992). Count Three of the indictment, which
alleged that Velez did use and carry a firearm in violation of 18
U.S.C. §§ 924(c)(1) and 2, sufficiently imported knowledge of the
essential facts of the crime. Accordingly, Count Three of the indict-
ment was not deficient in this respect. Thus, there was no error.
Velez also avers, for the first time on appeal, error in the district
court’s failure to instruct the jury that he knowingly and willfully
aided and abetted Rivera’s use and brandishing of the gun, in the rob-
bery of the second bank. Again we review only for plain error. Olano,
507 U.S. at 731-32. Velez contends that a conviction of aiding and
abetting under § 924(c) must be overturned where the jury instruc-
tions required the jury only find the defendant knew the firearm was
being carried and used during the predicate crime. United States v.
Bancalari, 110 F.3d 1425, 1429-30 (9th Cir. 1997). At Velez’s trial
the jury was specifically instructed that "mere presence at the scene
of the crime and knowledge that a crime is being committed are not
sufficient to establish that a defendant either directed or aided and
abetted the crime." Moreover, the court instructed the jury that Velez
must be found to have willfully directed, authorized, aided or abetted
by willfully joining together with Rivera in the commission of the
crime, and defined willfully to mean "voluntarily and purposely." We
find that the district court properly instructed the jury regarding the
UNITED STATES v. VELEZ 5
required scienter to convict Velez of aiding and abetting the § 924(c)
violation.
Finally, Velez challenges the sufficiency of the evidence to prove
that he conspired with Rivera to commit the robberies. A jury’s ver-
dict must be upheld on appeal if there is substantial evidence in the
record to support it. Glasser v. United States, 315 U.S. 60, 80 (1942).
In determining whether the evidence in the record is substantial, this
Court views the evidence in the light most favorable to the Govern-
ment and inquires whether there is evidence that a reasonable finder
of fact could accept as adequate and sufficient to support a conclusion
of a defendant’s guilt beyond a reasonable doubt. United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). Our review of the
record satisfies us that there was ample evidence to support Velez’s
conviction for Count Four of his indictment. See United States v.
Ellis, 121 F.3d 908, 922 (4th Cir. 1997).
Accordingly, we affirm Velez’s convictions. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid in the decisional process.
AFFIRMED