           Case: 16-17719   Date Filed: 05/03/2018   Page: 1 of 12


                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17719
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:14-cr-00147-RWS-LTW-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

EDDIE SYLVESTER STEELE,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (May 3, 2018)

Before WILSON, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
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       Eddie Sylvester Steele appeals his convictions and sentences for aiding and

abetting an armed robbery and for brandishing a firearm during the commission of

a crime of violence. Steele brings five issues on appeal, which we address in turn.

After review, we affirm.

                                       I. DISCUSSION

A. Constructive Amendment or Material Variance

       First, Steele contends the district court created a constructive amendment or

a material variance from his superseding indictment by instructing the jury on, and

allowing the presentation of evidence regarding, aiding and abetting.

       We are not persuaded by Steele’s position that the district court plainly erred

by constructively amending the superseding indictment when it gave an aiding-

and-abetting instruction to the jury. 1 “[C]onstructive amendment occurs where the

jury instructions so modify the elements of the offense charged that the defendant

may have been convicted” of an offense not included in the indictment. United

States v. Sanders, 668 F.3d 1298, 1309 (11th Cir. 2012). Steele asserts the district

court’s aiding-and-abetting instruction impermissibly broadened the possible bases

for conviction because the superseding indictment did not charge him with aiding

       1
         Ordinarily, we review de novo whether the district court’s jury instructions
constructively amended an indictment. See United States v. Sanders, 668 F.3d 1298, 1309 n.9
(11th Cir. 2012). But where, as here, the defendant failed to argue before the district court that it
constructively amended the indictment, we review the argument for plain error. United States v.
Leon, 841 F.3d 1187, 1192 (11th Cir. 2016), cert. denied, 137 S. Ct. 1390 (2017). Accordingly,
Steele “must show that there was error, that the error was plain, and that the error affected [his]
substantial rights.” Id.
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and abetting others who took money and property; rather, it charged Steele with

taking money and property and stated he was aided and abetted by others.

       That distinction is not legally significant. Under our law, an individual

indicted as a principal can be convicted on evidence showing he aided and abetted

the commission of the offense even where the indictment does not include an

aiding-and-abetting charge. The former Fifth Circuit, whose decisions bind us,2

held a district court did not err in giving an aiding-and-abetting instruction

although the indictment did not specifically charge the defendant with aiding and

abetting because “18 U.S.C. § 2 is an alternative charge in every count, whether

explicit or implicit, and the rule is well-established . . . that one who has been

indicted as a principal may be convicted on evidence showing that he merely aided

and abetted the commission of the offense.” United States v. Walker, 621 F.2d

163, 166 (5th Cir. 1980); accord United States v. Martin, 747 F.2d 1404, 1407

(11th Cir. 1984) (stating that “[a]iding and abetting need not be specifically alleged

in the indictment; assuming the evidence supports it, the accused can be convicted

of aiding and abetting so long as the jury is instructed on it”). Therefore, the

district court did not err, plainly or otherwise, by instructing the jury on aiding and

abetting.


       2
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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       Relatedly, Steele asserts the district court erred by reading jury instructions

that differed from the written jury instructions. He points out that although the oral

jury instructions stated Steele could only be found guilty if the jury concluded he

had committed each element of armed robbery, the written jury instructions stated:

“I caution you that each defendant is on trial for the specific crimes charged in the

indictment.” Steele emphasizes that this language, to which he did not object,

incorrectly suggested the jury could consider others’ conduct to convict him.

However, under the theory of aiding and abetting, the jury may consider that

someone else has committed the substantive offense. United States v. Seabrooks,

839 F.3d 1326, 1333 (11th Cir. 2016). Furthermore, it was clear that Steele was

the only defendant in this case, and the oral jury instructions clearly outlined the

elements of aiding and abetting. Thus, the difference between the oral and written

instructions was not sufficient to confuse, mislead, or prejudice the jury.

       Next, we turn to whether the district court created a material variance by

allowing the presentation of evidence regarding aiding and abetting.3 “A variance

occurs when the facts proved at trial deviate from the facts contained in the

indictment but the essential elements of the offense are the same.” United States v.


       3
         The typical standard of review for determining whether there is a material variance
between the charges in the indictment and the evidence presented at trial is twofold: (1) whether
a material variance occurred; and (2) whether the defendant was substantially prejudiced as a
result. United States v. Lander, 668 F.3d 1289, 1295 (11th Cir. 2012). But because Steele did
not present the issue to the district court, our review is for plain error. United States v. Wilson,
788 F.3d 1298, 1312 (11th Cir. 2015).
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Keller, 916 F.2d 628, 634 (11th Cir. 1990). Steele’s superseding indictment,

which charged him with armed robbery, encompassed an aiding-and-abetting

theory of guilt. Martin, 747 F.2d at 1407; Walker, 621 F.2d at 166. Therefore, the

district court did not err by allowing the presentation of evidence supporting the

conclusion that Steele aided and abetted the commission of the armed robbery.

B. Competency Hearing

       Second, Steele asserts the district court abused its discretion by failing to sua

sponte order a competency hearing prior to trial.4 We disagree. A district court

must sua sponte order a competency hearing if there is reasonable cause to believe

the defendant is “suffering from a mental disease or defect rendering him mentally

incompetent to the extent that he is unable to understand the nature and

consequences of the proceedings against him or to assist properly in his defense.”

18 U.S.C. § 4241(a). There are three factors that may establish a bona fide doubt

as to the defendant’s competence: “(1) evidence of the defendant’s irrational

behavior; (2) the defendant’s demeanor at trial; and (3) prior medical opinion

       4
          This Court has not decided in a published opinion whether plain error review applies
where the defendant did not raise any competency issues before the district court. In an
unpublished opinion, this Court determined that, while issues not raised below are normally
reviewed for plain error, “the abuse-of-discretion standard always applies when reviewing a
district court’s failure to sua sponte order a competency hearing.” United States v. Steinger, 631
F. App’x 915, 922 (11th Cir. 2015). However, in an earlier unpublished opinion, this Court
concluded plain error review applies to the argument that the district court should have sua
sponte ordered a competency hearing, regardless whether the issue was presented to the district
court. United States v. Galdos, 308 F. App’x 346, 356 (11th Cir. 2009). We need not decide
which standard is correct because Steele cannot succeed even under the more lenient of the two:
abuse of discretion.
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regarding the defendant’s competence to stand trial.” United States v. Wingo, 789

F.3d 1226, 1236 (11th Cir. 2015). A district court must consider “the aggregate of

evidence” with regard to all three prongs, but enough evidence even under only

one of the prongs may be sufficient to establish doubt about the defendant’s

competence. Id.

      The district court did not abuse its discretion by failing to sua sponte order a

competency hearing because there was no reasonable basis to believe Steele was

incompetent. Although Steele expressed multiple times that he was confused

about how the trial was proceeding and complained about his counsel’s strategy,

the source of his confusion was a misunderstanding of certain legal procedures or

rules of evidence. For example, Steele expressed confusion about the hearsay rules

and the process for preserving objections for appeal. These questions showed

Steele was processing the future consequences of certain testimony and understood

the importance of ensuring issues remained for review. Steele’s active

participation demonstrated that he understood the nature of the trial as well as the

import of conviction. Finally, although he requested multiple ex parte

proceedings, Steele did not display belligerent, confused, or irrational behavior in

open court, during the Government’s case, or during his own testimony.




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C. Statement Regarding Incarceration

       Third, Steele asserts the Government deprived him of the right to a fair trial

by informing the jury of his current incarceration. 5 At the threshold, Steele

preserved this issue for appellate review. The overruling of a motion in limine is

not usually sufficient to preserve an objection for appeal. United States v. Brown,

665 F.3d 1239, 1247 (11th Cir. 2011). However, Federal Rule of Evidence 103(b)

has relieved the obligation to renew an objection at trial where the issue was

definitively ruled upon in limine. Fed. R. Evid. 103(b) (“Once the court rules

definitively on the record—either before or at trial—a party need not renew an

objection or offer of proof to preserve a claim of error for appeal.”); United States

v. Wilson, 788 F.3d 1298, 1313 (11th Cir. 2015) (same). Here, Steele moved in

limine to exclude the jail phone calls because references to his present

incarceration were prejudicial. The district court delivered a definitive ruling

admitting the phone calls. The issue is, therefore, preserved for review.

       The presumption of innocence, a basic component of the right to a fair trial,

is impaired when the defendant is compelled to wear prison or jail clothing during

trial, because such clothing serves as a “constant reminder of the accused’s

condition,” which is “likely to be a continuing influence throughout the trial” on a

       5
         Typically, this Court reviews constitutional questions, including due process violations,
de novo. United States v. Hunt, 526 F.3d 739, 743 (11th Cir. 2008). But where the defendant
has failed to object below, our review is for plain error. United States v. Gutierrez, 745 F.3d
463, 475 (11th Cir. 2014).
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juror’s judgment of the defendant. Estelle v. Williams, 425 U.S. 501, 504-05

(1976). However, direct references to a defendant’s incarceration made during

trial do not necessarily undermine the presumption of innocence such that they

create a due process violation. United States v. Villabona-Garnica, 63 F.3d 1051,

1058 (11th Cir. 1995). Specifically, “mere utterance[s] of the word[s] jail, prison,

or arrest [do] not, without regard to context or circumstances, constitute reversible

error per se.” Id. (brackets and quotation omitted). Where the comment “is brief,

unelicited, and unresponsive, adding nothing to the government’s case,” an error

worthy of granting a mistrial has not occurred. United States v. Emmanuel, 565

F.3d 1324, 1334 (11th Cir. 2009).

      The district court did not violate Steele’s due process rights by allowing the

jury to hear testimony that he was incarcerated. Although the Government

generally may not elicit testimony that a defendant is incarcerated, the comment at

issue here was a passing remark made in the context of the Government’s attempt

to establish a foundation for jail phone calls it wished to admit. See Villabona-

Garnica, 63 F.3d at 1058. The single comment confirming Steele was incarcerated

was not elicited to further prejudice Steele or to convince the jury that he was

violent, nor did it create the same type of “continuing” reminder of Steele’s

condition prohibited by Estelle. See Estelle, 425 U.S. at 503. Furthermore, the

district court gave a limiting instruction prior to the testimony at the Government’s


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request, which the jury presumably followed. See United States v. Stone, 9 F.3d

934, 938 (11th Cir. 1993). Finally, Steele referred to his incarceration at some

length, undermining the assertion that he was prejudiced by the Government’s lone

remark. Although Steele takes the position that he needed to discuss his

incarceration to provide the jury context, we note Steele discussed his

imprisonment more than was needed to serve that limited purpose.

D. Physical Restraint Sentencing Enhancement

       Fourth, Steele contends the district court erred by applying a physical

restraint sentencing enhancement. 6 Section 2B3.1(b)(4)(B) of the Sentencing

Guidelines provides for a two-level enhancement “if any person was physically

restrained to facilitate commission of the offense or to facilitate escape . . . .”

U.S.S.G. § 2B3.1(b)(4)(B). The enhancement “applies when the defendant’s

conduct ensured the victims’ compliance and effectively prevented them from

leaving a location.” United States v. Victor, 719 F.3d 1288, 1290 (11th Cir. 2013)

(quotation omitted).

       As noted in Application Note 1, “physically restrained” is defined as “the

forcible restraint of the victim such as by being tied, bound, or locked up.”

U.S.S.G. § 2B3.1, comment (n.1); § 1B1.1, comment (n.1(K)). However, the

       6
         Steele objected to the upward adjustment to his sentence. Accordingly, “[w]e review a
sentencing court’s findings of fact for clear error and its application of the guidelines de novo.”
United States v. Victor, 719 F.3d 1288, 1290 (11th Cir. 2013).

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physical restraint enhancement is not limited to these specific examples and may

also apply when the defendant’s conduct has “ensured the victims’ compliance and

effectively prevented them from leaving.” Victor, 719 F.3d at 1290 (quotation

omitted). A physical restraint enhancement has been applied even where the

defendant threatened a victim with something merely believed to be a gun to

prevent the victim from leaving. Id.

       The Presentence Investigation Report acknowledged that although E.W., a

customer, was not necessarily “tied up” by Steele and the other men, E.W.’s

mobility was restricted when he was “instructed, at gunpoint, to lie down on the

ground.” Further, as the district court noted, even though E.W. was subsequently

instructed to get back up, he was still being instructed to do or not to do certain

things and was not free to leave, which was a restraint of his movement in

facilitation of the robbery within the meaning of U.S.S.G. § 2B3.1(b)(4)(B).

United States v. Jones, 32 F.3d 1512, 1519 (11th Cir. 1994). Thus, the district

court did not err when it applied the physical restraint enhancement. 7




       7
         We need not discuss Steele’s conduct toward V.T., a store clerk, because only one
instance of physical restraint is needed to support applying the enhancement.


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E. Motion for New Trial

       Finally, Steele urges that the district court improperly denied his motion for

a new trial based on Brady8 evidence. 9 To obtain a new trial based on a Brady

claim of newly discovered evidence, the defendant must show that: “(1) the

government possessed favorable evidence to the defendant; (2) the defendant does

not possess the evidence and could not obtain the evidence with any reasonable

diligence; (3) the prosecution suppressed the favorable evidence; and (4) had the

evidence been disclosed to the defendant, there is a reasonable probability that the

outcome would have been different.” United States v. Vallejo, 297 F.3d 1154,

1164 (11th Cir. 2002). “Evidence favorable to the accused includes impeachment

evidence.” United States v. Newton, 44 F.3d 913, 918 (11th Cir. 1994). “A

‘reasonable probability’ is a probability sufficient to undermine confidence in the

outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985) (quotation omitted).

       Here, the district court erred because it evaluated Steele’s motion for a new

trial using the standard for a Rule 33 motion based on newly discovered evidence

instead of the standard for a Rule 33 motion based on Brady evidence. See United

States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005) (outlining framework


       8
           Brady v. Maryland, 373 U.S. 83 (1963).
       9
         We review the district court’s denial of a motion for a new trial based on newly
discovered evidence or an alleged Brady violation for an abuse of discretion. United States v.
Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002).

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for evaluating a Rule 33 motion for new trial); but see Vallejo, 297 F.3d at 1164

(setting forth standard for prevailing upon a Rule 33 motion based on a Brady

violation). However, we will not remand unless doing so “would serve [a] valid

purpose.” See United States v. Bascaro, 742 F.2d 1335, 1344 (11th Cir.1984). We

therefore consider whether Steele could establish a Brady claim under the proper

framework.

      The district court based its decision on a factor that is part of both tests,

correctly finding that there was not a reasonable probability that Steele’s

impeachment evidence would have changed the outcome of his trial. There was an

abundance of evidence to support Steele’s convictions. For example, the jury

could have relied on video surveillance showing Steele pointing a gun and

commanding V.T. to retrieve phones and cash. There was also ample evidence

supporting the rejection of Steele’s duress defense, including that Steele did not

report the robbery to the police, lied to an officer about his name, and attempted to

flee to North Carolina. Therefore, the district court did not abuse its discretion

when it denied Steele’s motion for a new trial based on newly discovered evidence

allegedly withheld by the Government.

                                II. CONCLUSION

      For the reasons discussed above, the district court is

AFFIRMED.


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