                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           MAR 24 2000

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                               Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 99-3083
 v.                                                (D.C. No. 98-CR-20044)
                                                          (Kansas)
 ANTHONY HODGES,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      Anthony Hodges appeals his convictions under 18 U.S.C. §§ 841(a) and 2

for possession of a controlled substance with intent to distribute or for aiding and

abetting the same. We affirm.

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      On May 4, 1998, the Kansas City Police Department attempted to stop a

vehicle in which they believed narcotics were being carried. When the driver of

the vehicle failed to stop, an unmarked police vehicle pulled along side of it.

Both officers in the unmarked vehicle testified that they could see the frontseat

passenger pass drugs to the backseat passenger, who then secreted the drugs in

her pants. At trial it was established that Mr. Hodges was the frontseat passenger

and Joegina Davis was the backseat passenger. After successfully stopping the

vehicle, police found ten ounces of crack cocaine secreted down the front of Ms.

Davis’ pants.

      At trial, Ms. Davis testified that once they realized they were being pulled

over by officers, Mr. Hodges passed the drugs to her to hide on her person. Mr.

Hodges argues on appeal that officers coerced this testimony from Ms. Davis

making its admission against him a violation of his due process rights. Because

Mr. Hodges failed to object, we review the court’s admission of Ms. Davis’

testimony for plain error. See Fed. R. Crim. P. 52(b). “‘Plain error is that which

is obvious, or which seriously affects the fairness or integrity of the trial.’”

United States v. Deters, 184 F.3d 1253, 1258 (10th Cir. 1999) (quoting United

States v. Enjady, 134 F.3d 1427, 1435 (10th Cir. 1998)).

      We have previously held that a defendant’s due process rights are violated

where a witness is coerced into making false statements and those statements are


                                          -2-
admitted at the defendant’s trial. See United States v. Gonzales, 164 F. 3d 1285,

1289 (10th Cir. 1999); Clanton v. Cooper, 129 F.3d 1147, 1157-58 (10th Cir.

1997). Both Gonzales and Clanton relied on the premise that involuntary or

coerced statements are presumed unreliable. It is because of this unreliability that

a defendant may object to its use at trial. See Gonzales, 164 F.3d at 1291 n.2;

Clanton, 129 F.3d at 1157-58; see also Buckley v. Fitzsimmons, 20 F.3d 789, 795

(7th Cir. 1994) (coerced confessions are less reliable than voluntary ones, making

their use at trial a violation of defendant’s due process rights); People v. Douglas,

788 P.2d 640, 655 (Cal. 1990) (“the exclusion is based on the idea that coerced

testimony is inherently unreliable, and that its admission therefore violates

defendant’s right to a fair trial”).

       Mr. Hodges does not attempt to argue that Ms. Davis’ testimony was

unreliable or false, and any such argument would fail since two officers fully

corroborated her testimony. Even if Ms. Davis’ testimony was coerced, therefore,

any unreliability was overcome by the officers’ corroboration and it could not

have adversely affected the fairness of Mr. Hodges’ trial. See, e.g., Wilcox v.

Ford, 813 F.2d 1140, 1149 (11th Cir. 1987) (admission of allegedly coerced

witness testimony did not violate defendant’s due process rights where testimony

was corroborated by other evidence and thus not unreliable); Williams v.

Calderon, 48 F. Supp.2d 979, 1001-02 (C.D. Cal. 1998) (corroboration by other


                                         -3-
witnesses demonstrated reliability of alleged coerced testimony and therefore

admission did not violate defendant’s due process rights).

      Mr. Hodges next argues the district court erred in giving an aiding and

abetting instruction. When objecting to the instruction, Mr. Hodges argued to the

district court, as he does here on appeal, that the government failed to bring forth

any evidence showing Ms. Davis had the intent to distribute the narcotics found in

her possession on May 4. We review the court’s decision on whether to give a

particular jury instruction for an abuse of discretion. See United States v. Adkins,

196 F.3d 1112, 1114 (10th Cir. 1999).

      “[A]s a prerequisite to aiding and abetting the government is required to

prove that ‘someone has committed’ the underlying substantive offense.” United

States v. Langston, 970 F.2d 692, 705 n.12. After reviewing the trial testimony,

we believe the government has proven such here. Ms. Davis testified that Mr.

Hodges gave her the narcotics found in her possession on May 4, and that she

voluntarily pled guilty to possession with intent to distribute those narcotics. Ms.

Davis also testified that she had sold crack cocaine in the past, and she believed

the crack cocaine found in her possession on May 4 would also be sold. Ms.

Davis’ testimony establishes that she committed the substantive offense of

possession with intent to distribute, and that Mr. Hodges aided and abetted her

commission of that offense by passing her the crack cocaine. “When more than


                                         -4-
one person is involved in a criminal act, the district court may properly submit an

aiding and abetting instruction to the jury,” United States v. Scroger, 98 F.3d

1256, 1262 (10th Cir. 1996), and the district court did not abuse its discretion in

doing so here.

      Mr. Hodges’ final argument is that the aiding and abetting instruction failed

to properly state the law. We review the jury instruction de novo to determine

whether it accurately stated the governing law. See Adkins, 196 F.3d at 1114.

Mr. Hodges contends the aiding and abetting instruction given at his trial failed to

instruct the jury that the government must prove someone besides the defendant

committed the substantive offense.

      This argument ignores the substance of the jury instruction. The instruction

stated that to convict Mr. Hodges for aiding and abetting, the jury must “find

beyond a reasonable doubt” that the charged act was “done by another person or

persons than the defendant, but that said defendant willfully aided [and] abetted .

. . the commission of the act.” Rec., vol. I, doc. 21, Instruction No. 11 (emphasis

added). This instruction clearly states that the jury must find someone besides

Mr. Hodges guilty of the substantive crime to find him guilty of aiding and

abetting. Mr. Hodges’ argument in this regard is without merit.




                                         -5-
Mr. Hodges’ convictions are AFFIRMED.

                           ENTERED FOR THE COURT

                           Stephanie K. Seymour
                           Chief Judge




                             -6-
