           Case: 19-10868   Date Filed: 12/17/2019   Page: 1 of 13


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10868
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:15-cr-00272-AT-JSA-3



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                   versus

LAQUAN JOHNSON,

                                                        Defendant - Appellant.

                       ________________________

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

                            (December 17, 2019)

Before MARTIN, ROSENBAUM, and FAY, Circuit Judges.

PER CURIAM:
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      After a jury trial, LaQuan Johnson was convicted of aiding and abetting the

discharge of a firearm during and in relation to a drug-trafficking offense and of

aiding and abetting the attempted possession with intent to distribute marijuana.

Johnson appeals the firearm conviction, arguing that the evidence was not sufficient

to show that he aided and abetted the discharge of a firearm and that the jury was

improperly allowed to reach a verdict on that count without unanimously agreeing

as to which codefendant he aided and abetted. After careful review, we affirm.

                                          I.

      In July 2015, a federal grand jury indicted Johnson and two codefendants,

Deontray Bellman and Brandi Jackson, with aiding and abetting the attempted

possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(D), and 18 U.S.C. § 2 (Count One), and aiding and abetting the use, carry,

and discharge of a firearm during and in relation to that drug-trafficking crime, in

violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2 (Count Two). Johnson was also

charged with possession of a firearm after having been convicted of a felony, in

violation of 18 U.S.C. § 922(g)(1) (Count Four). Bellman and Jackson pled guilty,

while Johnson proceeded to trial.

      Johnson’s jury trial began in April 2017. At the close of the government’s

case, Johnson moved for a judgment of acquittal under Rule 29, Fed. R. Crim. P.,

which the district court denied. The jury found Johnson guilty of Counts One and


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Two but not guilty of Count Four. After the verdict, Johnson filed a written motion

for judgment of acquittal or, in the alternative, a motion for new trial, which the court

denied. The court then sentenced Johnson to serve a total of 122 months in prison.

       Johnson now challenges the § 924(c) conviction on two grounds. First, he

contends that the physical evidence proved that neither he nor his codefendants

discharged a firearm. Second, he argues that the jury instructions, verdict form, and

the government’s closing and rebuttal arguments permitted the jury to arrive at a

non-unanimous verdict as to which codefendant he aided and abetted.

                                                A.

       We begin with a summary of the trial evidence, presented in the light most

favorable to the jury verdict.1            On March 22, 2013, Johnson and his two

codefendants, Bellman and Jackson, drove from South Carolina to Atlanta in

Johnson’s red Range Rover to buy around $1,000 worth of marijuana from Leslie

Robinson. They arranged to meet Robinson in the parking deck of the Varsity

restaurant near downtown Atlanta. When they arrived, Johnson parked the Range

Rover, and Robinson got into the back seat with the marijuana in his jacket and a

silver gun tucked into his waistband. At that time, Jackson was in the front




       1
         United States v. Albury, 782 F.3d 1285, 1293 (11th Cir. 2015) (“When the sufficiency of
the evidence is challenged, we view the evidence in the light most favorable to the verdict, and
draw all reasonable inferences and credibility choices in the verdict’s favor.” (alteration adopted)
(quotation marks omitted)).
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passenger’s seat and Bellman was behind Robinson in the back cargo area.

Robinson did not see Bellman in the car. According to Jackson, Bellman had moved

from the back seat to the cargo area shortly before they arrived at the Varsity.

      Robinson testified that he handed the marijuana to Johnson, who was unhappy

with it. Johnson and Robinson argued, and Johnson told Robinson he was “going to

die today.” Scared, Robinson reached for the door handle, but the door wouldn’t

open. Then, Bellman “pop[ped] up” from behind Robinson and pressed what felt

like a gun to the back of his head. Johnson and Jackson each also had a gun out.

      What happened next is not precisely clear, but it involved multiple gunshots

and at least two car accidents. In Robinson’s telling, Johnson began driving to exit

the parking deck when the first shot was fired. Robinson then grabbed for the gun

Jackson was holding with his left hand and tried to hit her with his right hand. The

gun discharged in Jackson’s hand and blew the tip off of Robinson’s ring finger.

Robinson then pulled out his gun and “start[ed] firing” while struggling to get to the

front seat so he could exit the Range Rover. Johnson drove into another vehicle, and

while the Range Rover was stopped, Jackson opened the passenger door and fled.

Johnson continued to drive for another block before getting into a second, disabling

accident at the intersection of Spring and North Streets. When the Range Rover

came to rest, Johnson opened the driver’s door and ran. Robinson then left from that

same door, leaving his gun behind.


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      In her testimony, Jackson denied having a gun and said that she heard only

one gunshot before leaving the Range Rover. She also testified that she saw Johnson

in possession of a gun twice on March 22, first when he put a gun under the driver’s

seat before reaching the Varsity and then when he had a gun in his hand as she fled.

      When police arrived at the scene, they found Bellman, badly wounded from

multiple gunshots, lying in the back cargo area of the Range Rover. Robinson was

apprehended running from the vehicle. The officer who handcuffed Robinson

noticed that one of his fingers was injured, and Robinson told the officer that he had

been shot. Officers canvassed the area and eventually found Johnson hiding under

a stairwell. Johnson was wearing a white t-shirt with blood spatter on the right

shoulder and arm area, though he had not been shot.

      Three guns were recovered from the Range Rover. A .40-caliber Smith and

Wesson handgun and a .45-caliber Colt handgun were found on the driver’s

floorboard. The Smith and Wesson had no bullets in it, but the Colt was loaded with

eight bullets—seven in the magazine and one in the chamber. No fingerprints were

found on either firearm, though the Colt appeared to have blood on it. A 9mm Lorcin

handgun loaded with eight bullets was recovered from the back seat. Robinson

identified the 9mm gun as the one he had. Investigators also found two .40-caliber

shell casings, one .45-caliber bullet, and one bullet fragment. Robinson estimated

that more than ten shots were fired inside the Range Rover. Testing of Johnson’s


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and Jackson’s hands for gunshot primer residue indicated that they “either

discharged a firearm, w[ere] in close proximity to a firearm upon discharge, or came

into contact with an item bearing [gunshot residue].”

                                          B.

      During closing arguments, the government argued that the jury could convict

Johnson of aiding and abetting the discharge of a firearm if either Jackson or

Bellman discharged a firearm. The district court then provided, in relevant part, the

following instruction on aiding and abetting liability:

      A defendant aids and abets a person if the defendant intentionally joins
      with the person to commit a crime. A defendant is criminally
      responsible for the acts of another person if the defendant aids and abets
      the other person.

With regard to Count Two, the § 924(c) count, the court instructed:

      The defendant can be found guilty of this crime only if all of the
      following facts are proved beyond a reasonable doubt. First, that the
      defendant committed the drug trafficking crime charged in Count 1 of
      the indictment. And, two, that during and in relation to the crime
      charged in Count 1, the defendant knowingly used and carried a firearm
      or aided and abetted another to do so as charged in the indictment.

      ....

      A defendant who aids and abets the crime of possessing a firearm in
      furtherance of a drug trafficking crime can be found guilty even if the
      defendant did not personally possess the firearm. But to be found guilty
      on this basis, the defendant must have actively participated in the drug
      trafficking crime with advance knowledge that another participant
      would possess a firearm in furtherance of the drug trafficking crime.



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The court also instructed the jury that its “verdict in this case, whether guilty or not

guilty of any of the charges, must be unanimous. In other words, you must all agree

about the verdict as to each of the charges.” It then repeated that instruction, stating

the “verdict, whether guilty or not guilty, must be unanimous,” and that jurors “must

all agree . . . [on] the verdicts essential[] to each of the counts.”

       The verdict form, in relevant part, asked the jury to check “Guilty” or “Not

Guilty” “[a]s to Count Two of the Indictment charging the Defendant with aiding

and abetting the use of carrying of a firearm during and in relation to a drug

trafficking crime.” The jury checked “Guilty.”

                                            II.

       We review de novo the denial of a motion for judgment of acquittal

challenging the sufficiency of the evidence to support a guilty verdict. United States

v. Albury, 782 F.3d 1285, 1293 (11th Cir. 2015).              In reviewing evidentiary

sufficiency, “we view the evidence in the light most favorable to the verdict and

draw all reasonable inferences and credibility choices in the verdict’s favor.” Id.

(alteration adopted) (quotation marks omitted). “We will not overturn a verdict if

any reasonable construction of the evidence would have allowed the jury to find the

defendant guilty beyond a reasonable doubt.” Id. (quotation marks omitted).

       “The jury has exclusive province over the credibility of witnesses,” and we

may not revisit the jury’s credibility judgments unless a witness’s testimony “is


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incredible as a matter of law.” United States v. Feliciano, 761 F.3d 1202, 1206 (11th

Cir. 2014) (quotation marks omitted). Testimony is incredible as a matter of law

only if the witness testifies as to “facts that the witness physically could not have

possibly observed or events that could not have occurred under the laws of nature.”

Id. (quotation marks omitted).

      Under 18 U.S.C. § 924(c), a person who possesses a firearm during and in

relation to a drug-trafficking crime or a crime of violence is subject to a minimum

consecutive sentence of ten years if the firearm is discharged, seven years if the

firearm is brandished, or five years otherwise. 18 U.S.C. § 924(c)(1)(A)(i)–(iii).

Under 18 U.S.C. § 2, a person who “aids, abets, counsels, commands, induces or

procures” the commission of a crime “is punishable as a principal.” 18 U.S.C. § 2(a).

In other words, aiding and abetting liability holds a person “responsible for a crime

he has not personally carried out if he helps another to complete its commission.”

Rosemond v. United States, 572 U.S. 65, 70 (2014).

      Johnson maintains that the trial evidence leads inescapably to the conclusion

that only Robinson discharged a firearm, and not Johnson or his two codefendants.

He notes that all shell casings found in the Range Rover were of the same type of

ammunition, which matched just one of the guns. Because it was undisputed that

Robinson discharged his firearm, it follows, according to Johnson, that the shell

casings came from Robinson’s gun and no other. And the parties agree that Johnson


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cannot be liable for aiding and abetting Robinson. Johnson does not otherwise

challenge the grounds for the jury verdict.

      Accordingly, the sole issue in this sufficiency challenge is whether a

reasonable jury could have found that either Johnson or his two codefendants

discharged a firearm. Sufficient evidence supports that finding. A jury reasonably

could have credited Robinson’s testimony that Jackson was holding a gun that

discharged in her hand when he grabbed for it and tried to hit her. See Feliciano,

761 F.3d at 1206. Robinson’s testimony on this point was supported by physical

evidence and other testimony. Three firearms were found inside the vehicle, which

supports Robinson’s testimony that he saw both Johnson and Jackson with a firearm.

Additionally, the observed injury to Robinson’s finger and the blood spatter on

Johnson’s right arm and one of the guns were consistent with Robinson’s testimony

that he suffered a close-range gunshot wound to his finger near the front passenger

side of the vehicle, where Jackson was sitting.

      While the shell casings found in the Range Rover leave some doubt as to how

many shots were fired and which firearms were discharged, they do not render

Robinson’s testimony incredible as a matter of law. See id. The jury was not

required to conclude that the shell casings found in the SUV were the only rounds




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fired. 2 The jury heard that the Range Rover was in multiple accidents, that three

people fled from the vehicle after the first shots were fired, and that the crime scene,

near a busy intersection, was chaotic. It’s possible under the “laws of nature” that

shell casings had fallen out of the Range Rover before it was searched or that crime-

scene technicians simply missed some evidence inside the Range Rover. See id.

The shell casings were a matter for the jury to assess when evaluating Robinson’s

credibility, and we will not disturb the jury’s credibility determination.

       Accordingly, sufficient evidence supports Johnson’s conviction for aiding and

abetting the discharge of a firearm during and in relation to a drug-trafficking crime.

                                                III.

       Johnson next contends that the jury instructions, in combination with the

verdict form and the government’s closing and rebuttal arguments, allowed the jury

to reach a non-unanimous guilty verdict as to the § 924(c) count. Specifically,

according to Johnson, the jury was permitted to convict him “without a unanimous

finding that he aided and abetted any particular person,” in violation of his Sixth

Amendment right to a unanimous jury verdict.

       We review this argument for plain error because Johnson did not object to the

jury instructions before the district court. United States v. Felts, 579 F.3d 1341,


       2
          Although Johnson notes the number of bullets found in the Colt .45 and the Lorcin 9mm,
there is no evidence as to these firearms’ capacity, so his assertion that these firearms were “fully
loaded” and unfired is not supported by the record.
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1343 (11th Cir. 2009).        Under the plain-error standard, the defendant must

demonstrate that (1) an error occurred, (2) the error was plain, and (3) the error

affected substantial rights. Id. at 1344. “An error is not plain unless it is contrary to

explicit statutory provisions or to on-point precedent in this Court or the Supreme

Court.” United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (quotation

marks omitted). Further, “[j]ury instructions will not be reversed for plain error

unless the charge, considered as a whole, is so clearly erroneous as to result in a

likelihood of a grave miscarriage of justice, or the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Starke, 62

F.3d 1374, 1381 (11th Cir. 1995) (quotation marks omitted).

      “[A] jury in a federal criminal case cannot convict unless it unanimously finds

that the Government has proved each element.” Richardson v. United States, 526

U.S. 813, 817 (1999). But “a federal jury need not always decide unanimously

which of several possible sets of underlying brute facts make up a particular element,

say, which of several possible means the defendant used to commit an element of

the crime.” Id. For instance, jury disagreement about whether a robber used a knife

or a gun—a disagreement about means—would not matter so long as the jury

“unanimously concluded that the Government had proved the necessary related

element, namely, that the defendant had threatened force.” Id.; see United States v.

Verbitskaya, 406 F.3d 1324, 1334 (11th Cir. 2005) (holding that a special unanimity


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instruction was not required “on the government’s four alternative theories on how

interstate commerce was affected by the extortion” in a Hobbs Act prosecution).

      Here, Johnson cannot establish plain error. He has identified no “on-point

precedent in this Court or the Supreme Court” holding that unanimity is required as

to which of several culpable accomplices the defendant aided and abetted. See

Hoffman, 710 F.3d at 1232. Nor do we find it clear or obvious that unanimity is

required in these circumstances. See, e.g., United States v. Peterson, 768 F.2d 64,

67 (2d Cir. 1985) (“[T]he jury should be regarded as unanimous . . . even if some

jurors believed that Victor and the other jurors believed that Russell was the aider or

abettor.”); Verbitskaya, 406 F.3d at 1334 (holding that a special unanimity

instruction was not required “on the government’s four alternative theories on how

interstate commerce was affected by the extortion in this case”).

      In any case, the district court here instructed the jury that its verdict “must be

unanimous” and that the jurors “must all agree about the verdict as to each of the

charges.” So even assuming unanimity was required as to which codefendant

Johnson aided and abetted, jurors would have understood from the court’s general

unanimity instruction that they were required to “all agree” on which set of facts

grounded the conviction. See, e.g., United States v. Harris, 8 F.3d 943, 945 (2d Cir.

1993) (“[A] general instruction on the requirement of unanimity suffices to instruct

the jury that they must be unanimous on whatever specifications they find to be the


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predicate of the guilty verdict.”). The instructions, considered as a whole, were not

“so clearly erroneous as to result in a likelihood of a grave miscarriage of justice” or

to “affect the fairness, integrity, or public reputation of judicial proceedings.”

Starke, 62 F.3d at 1381.

      For these reasons, we affirm Johnson’s convictions.

      AFFIRMED.




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