                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             MAY 8, 2007
                             No. 06-14256                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 06-00020-CR-3-RV

UNITED STATES OF AMERICA,


                                                 Plaintiff-Appellee,

                                   versus

DEONSEY LONTE JOHNSON,
TEDDY LEE HICKS, JR.,


                                                 Defendants-Appellants.


                       ________________________

                Appeals from the United States District Court
                    for the Northern District of Florida
                      _________________________

                               (May 8, 2007)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      A Northern District of Florida grand jury indicted appellants, Deonsey Lonte

Johnson and Teddy Lee Hicks, Jr., with two offenses arising out of roadside

robbery and carjacking on September 30, 2005. Count One charged them with

violating 18 U.S.C. §§ 2119 and 2; Count Two charged them with knowingly using

and carrying a firearm, a shotgun, in furtherance of the Count One offense in

violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Appellants pled not guilty and stood

trial. A jury found them guilty as charged. They now appeal their convictions.

Both challenge the sufficiency of the evidence to convict and thus seek a judgment

of acquittal. Hicks alternatively seeks a new trial on the ground that the district

court abused its discretion in admitting similar acts evidence under Federal Rule of

Evidence 404(b). We affirm.

      The Government’s proof established the following. On September 30, 2005,

in Pensacola, Florida, Hicks and his girlfriend, Heather Wylie, were sleeping in

Hicks’s parents trailer. They were drug addicts, having stayed up the night before

using cocaine. Johnson came to the trailer, awakened them, and said that he had

seen someone – the eventual victims – with a wad of cash at a nearby gas station.

Hicks and Wylie immediately dressed, Hicks armed himself with his pistol-grip

shotgun, and he, Wylie and Johnson drove to the gas station in his car. Johnson

rode in the front passenger’s seat; Wylie was in the back seat.



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      By the time they got to the gas station, the victims were on the highway,

headed toward Interstate 10. Hicks followed the victims’ car onto the interstate

and pulled into the left lane, alongside the car. Johnson motioned to the victims

that their car was dragging something and indicated that they should pull off the

highway onto the shoulder. Hicks drove onto the shoulder, and the victims

followed suit, parking behind Hicks’s car. The victims got out of their car and

walked behind it to see what was wrong. As they were examining their car,

Johnson approached them with the shotgun, yelling “give it up, I’m not playing.”

The victims indicated that any cash they had was in their car, so Johnson got into

its driver’s seat, left the victims standing there, and drove off, with Hicks’s car in

the lead. The two vehicles then exited the interstate. Johnson turned down a dirt

road, right off the exit. Hicks, driving ahead, backed up and pulled beside

Johnson. They transferred the victims’ belongings to Hicks’s car, drove to

Johnson’s residence, a trailer, and divided their spoils.

      These events were described by the victims and by Wylie, who testified

under a grant of use immunity. She was facing charges stemming from what we

have related above and a home invasion robbery Hicks and she had committed

three days before, using Hicks’s shotgun. Wylie’s testimony removed any doubt

as to the identity of the two men with her during the carjacking; they were Hicks



                                            3
and Johnson.

      To make out a case of carjacking, as alleged in Count One, the government

must establish that the defendant, “[w]ith the intent to cause death or serious bodily

harm, [took] a motor vehicle that has been transported, shipped, or received in

interstate or foreign commerce from the person or presence of another by force and

violence or by intimidation, or attempt[ed] to do so.” 18 U.S.C. § 2119. The intent

element of this offense is satisfied when, “at the moment the defendant demanded

or took control over the driver’s automobile, the defendant possessed the intent to

seriously harm or kill the victim if necessary to steal the car.” United States v.

Fulford, 267 F.3d 1241, 1244 (11th Cir. 2001) (internal quotations and citations

omitted).

      Count Two offense charged a violation of 18 U.S.C. § 924(c). That section

states that “any person who, during and in relation to any crime of violence or drug

trafficking crime . . . for which the person may be prosecuted in a court of the

United States . . . possesses a firearm” is subject to certain mandatory penalties.

      Both appellants were charged in both counts with violating 18 U.S.C. § 2.

Section 2 states that a person who “commits an offense against the United States or

aids, abets, counsels, commands, induces or procures its commission, is punishable

as a principal.” In order to sustain a conviction under an aiding and abetting



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theory, “the government must show that a substantive offense was committed, that

[the defendant] associated himself with the criminal venture, and that [the

defendant] committed some act which furthered the crime.” United States v. Perez,

922 F.2d 782, 785 (11th Cir. 1991). In addition, “the government must show that

[the defendant] had the same unlawful intent as the actual perpetrators.” Id.

      The prosecution’s case against Johnson was overwhelming on both counts.

We therefore reject his sufficiency-of-the-evidence challenge and affirm his

convictions.

      Hicks concedes that the proof showed that he agreed and intended to

participate in an armed robbery, but contends that he had no knowledge that the

victims’ car was going to be stolen until Johnson had actually stolen it. He also

contends that he could not be found guilty of possession of a firearm during the

carjacking if he did not intend to commit a carjacking.

      Hicks does not dispute that Johnson committed a carjacking. Hicks

associated himself with the offense when he drove Wylie and Johnson in his car to

the gas station, followed the victims’ from there onto the interstate and pulled in

front of it, and then observed Johnson exit his car carrying his, Hicks’s, shotgun.

Hicks furthered the crime by bringing his shotgun along, when they left his

parents’ trailer to find the victims. Although their primary objective was to steal a



                                           5
large amount of cash, Hicks knew Johnson had use of his shotgun, and saw

Johnson leave his car with the shotgun and point it at the victims before getting

into their car. In short, the evidence was sufficient to convict Hicks for aiding and

abetting the commission of the charged offenses.

      Hicks argues alternatively that he is entitled to a new trial because the court

abused its discretion in admitting testimony from Wylie and the victim of the home

invasion robbery she and Hicks perpetrated. Wylie testified that on September 27,

three days before the carjacking, she and Hicks went to a trailer home they had

visited with a friend earlier in the day. Hicks took his shotgun along – the same

shotgun Johnson used in the carjacking – and knocked on the door. The occupant,

a construction worker from El Salvador, would not come to the door, so Hicks

sent Wylie to get a screw driver from his car; he used it to pry open the door.

Hicks and Wylie then entered the trailer and demanded money from the man. He

said it was in the bedroom. When Wylie could not find it, Hicks and the man

scuffled over the shotgun, and it fired. Hicks and Wylie found the man’s money,

left the trailer and used the money to buy drugs.

      The robbery victim testified to the robbery. He said that Hicks struck him

with the gun and put the gun in his mouth.1 When he pushed Hicks away, the gun



      1
          He identified Hicks from a photo lineup.

                                                6
went off. He was rendered unconscious. When he came to, he discovered that the

intruders had taken $400 from his wallet.

Rule 404 of the Federal Rules of Evidence provides:

      (b) Other crimes, Wrongs, or Acts.–Evidence of other crimes, wrongs,
      or acts is not admissible to prove the character of a person in order to
      show action in conformity therewith. It may, however, be admissible
      for other purposes, such as proof of motive, opportunity, intent,
      preparation, plan, knowledge, identity, or absence of mistake or
      accident . . . .

Fed. R. Evid. 404(b).

      To be admissible, Rule 404(b) evidence must (1) be relevant to one of the

enumerated issues and not to the defendant’s character; (2) the prior act must be

proved sufficiently to permit the jury to determine that the defendant committed

the act; and (3) the probative value of the evidence cannot be substantially

outweighed by its undue prejudice. United States v. Chavez, 204 F.3d 105, 1317

(11th Cir. 2000). Hicks does not take the position in his brief that all of the

evidence of the home invasion was inadmissible; he appears to concede the first of

the above three elements. His argument is that the prosecution improperly made

the home invasion a feature of the trial and thereby diverted the jury’s attention to

the charged offenses – specifically, to his role in the carjacking. We disagree. The

government’s case focused on the whole on the carjacking. The home invasion

testimony was highly probative of Hicks’s intent, identity, state of mind, and –

                                            7
most of all – his planning of the carjacking. He knew that the victims were

traveling in a car and that the car had to be stopped if he and Johnson were to rob

them of their cash. He armed himself to ensure that their success, in the same way

he armed himself to rob the Salvadoran construction worker. We therefore find no

abuse of discretion in the court’s evidentiary ruling.

      AFFIRMED.




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