                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 09-15901         ELEVENTH CIRCUIT
                                                     NOVEMBER 10, 2010
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                           CLERK

                    D. C. Docket No. 09-00165-CR-IPJ-PWG

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

RODNEY EUGENE TUCKER,

                                                            Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________

                              (November 10, 2010)

Before HULL, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

      Rodney Eugene Tucker appeals pro se his convictions for three counts of

armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and one count of
using and carrying a firearm in relation to a crime of violence, in violation of 18

U.S.C. § 924(c)(1)(A)(ii).        On appeal, he argues that: (1) the district court plainly

erred       by   constructively    amending        the   indictment   when     it   gave     an

aiding-and-abetting instruction; (2) the district court plainly erred by permitting the

government to engage in prosecutorial misconduct by improperly bolstering the

testimony of Tucker’s codefendant, James Arthur Worrills, Jr.; (3) the district court

erred in failing to dismiss the indictment after Worrills pleaded guilty because the

indictment named both Tucker and Worrills; (4) Tucker received ineffective

assistance of counsel; and (5) the evidence was insufficient to support Tucker’s

convictions for armed bank robbery and his conviction for using and carrying a

firearm in relation to a crime of violence. After thorough review, we affirm.1

        We review the legal correctness of jury instructions de novo. United States v.

Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). We review de novo a claim of

prosecutorial misconduct, which is a mixed question of law and fact. United States

v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). However, if a defendant fails to

object to an issue before the district court, we review for plain error. United States

v. Dennis, 237 F.3d 1295, 1299 (11th Cir. 2001). To establish plain error, the

defendant must show that there is (1) error, (2) that is plain, (3) affects substantial


        1
        In addition, Tucker’s motion to strike the government’s response brief, construed from
statements made in his reply brief, is DENIED.

                                               2
rights, and (4) seriously affects the fairness, integrity, or public reputation of

judicial proceedings. United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir.

2005).     Because Tucker failed to raise his jury instruction and prosecutorial

misconduct arguments before the district court, we review those for plain error.

         We review de novo whether the evidence was sufficient to sustain a

conviction. United States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). A

verdict will be affirmed “as long as the jury could permissibly conclude that the

defendant is guilty beyond a reasonable doubt.” Id. We will view the evidence in

the light most favorable to the government, and resolve any conflicts in favor of its

case. United States v. Ward, 197 F.3d 1076, 1079 (11th Cir. 1999).

         The relevant facts are these. At trial, codefendant Worrills testified for the

government. He said that he had used a gun supplied by Tucker to facilitate the

bank robberies, Tucker also carried a gun during the robberies, and both Tucker and

he planned and executed the robberies. He admitted that he hoped for a sentence

reduction by cooperating with the government, pursuant to a plea agreement, in

which he agreed to testify against any suspect at the government’s request.

         First, we are unpersuaded by Tucker’s claim that the district court plainly

erred     by   constructively   amending     the    indictment   when    it   gave   an

aiding-and-abetting instruction to the jury.       “When the evidence at trial or the



                                            3
court’s jury instructions deviate from what is alleged in the indictment, two distinct

problems can arise -- constructive amendment or variance.” United States v. Flynt,

15 F.3d 1002, 1005 (11th Cir. 1994). “An amendment to an indictment occurs

when the essential elements of the offense contained in the indictment are altered to

broaden the possible bases for conviction beyond what is contained in the

indictment.” Dennis, 237 F.3d at 1299 (quotation omitted). A jury instruction that

allows the jury to consider an element of the offense not listed in the indictment is

an impermissible, constructive amendment of the indictment and constitutes

reversible error. Stirone v. United States, 361 U.S. 212, 218-19 (1960).

      In determining whether an indictment was constructively amended, we look

at whether the prosecutor’s actions or the court’s instructions, “viewed in context,”

literally or effectively expanded the indictment. United States v. Behety, 32 F.3d

503, 508-09 (11th Cir. 1994). The former Fifth Circuit has held that, although an

indictment failed specifically to charge a defendant with aiding and abetting, the

district court did not err in giving an aiding-and-abetting instruction 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) (stating



                                           4
that “18 U.S.C. § 2 does not define a crime[, but] simply makes punishable as a

principal one who aids or abets the commission of a substantive crime”);2 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”).

       “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. Keller, 916 F.2d 628, 634 (11th Cir. 1990). The proof at trial and

indictment allegations should correspond so that “(1) the defendant is properly

notified of the charges so that he may present a defense; and (2) the defendant is

protected against the possibility of another prosecution for the same offense.”

United States v. Roberts, 308 F.3d 1147, 1156 (11th Cir. 2002) (quotation omitted).

A variance requires reversal “only when the defendant can establish that his rights

were substantially prejudiced thereby.” Flynt, 15 F.3d at 1005.

       The district court did not err, plainly or otherwise, when it gave an

aiding-and-abetting instruction to the jury, although such a theory of guilt was not

alleged in the indictment.        Indeed, under our law, an individual indicted as a


        2
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this
Court adopted as binding precedent all Fifth Circuit decisions issued prior to October 1, 1981.

                                                5
principal may be convicted on evidence showing that he aided and abetted the

commission of the offense, regardless of whether the indictment included an

aiding-and-abetting charge. Walker, 621 F.2d at 166. Further, because aiding and

abetting is an alternative charge in every count, the prosecutor’s remarks during his

closing argument that the jury could convict Tucker under an aiding-and-abetting

theory also were not error, much less plain error. Id.; see Martin, 747 F.2d at 1407.

      Nor, contrary to Tucker’s claims, was there was a variance between the

charge and the proof at trial. Tucker’s indictment charged him with armed robbery

and using and carrying a firearm during and in relation to a crime of violence,

which encompassed an aiding-and-abetting theory of guilt. Walker, 621 F.2d at

166; Martin, 747 F.2d at 1407. And, as discussed below, the evidence supports the

conclusion that Tucker aided and abetted the commission of the armed robberies

and the use of a firearm in furtherance of the first robbery. Moreover, Tucker’s

claim that the indictment failed to allege acts secondary to the robbery lacks merit

because the government was only obliged to include a “statement of the essential

facts,” Fed.R.Crim.P. 7(c), and the acts Tucker identifies as impermissibly excluded

from the indictment -- that Tucker provided the firearm and his sister’s car and

burned dyed bills -- are related to his efforts to plan or conceal the robberies.




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      Next, we reject Tucker’s claim that plain error resulted from prosecutorial

misconduct. “To find prosecutorial misconduct, a two-pronged test must be met:

(1) the remarks must be improper, and (2) the remarks must prejudicially affect the

substantial rights of the defendant.” United States v. Eyster, 948 F.2d 1196, 1206

(11th Cir. 1991). Attempts to bolster a witness by vouching for his credibility are

improper “if the jury could reasonably believe that the prosecutor indicated a

personal belief in the witness’ credibility.” Id. “A jury could reasonably believe

the prosecutor’s indications if the prosecutor either places the prestige of the

government behind the witness, by making explicit personal assurances of the

witness’ veracity, or . . . implicitly vouches for the witness’ veracity by indicating

that information not presented to the jury supports the testimony.” Id. However,

the prosecutor neither places the prestige of the government behind the witness nor

implicitly vouches for the witness’s credibility by questioning the witness about the

terms of his plea agreement requiring him to testify truthfully and completely.

United States v. Cano, 289 F.3d 1354, 1366 (11th Cir. 2002).

      Here, the district court did not plainly err by permitting the government to

engage in prosecutorial misconduct. As the record shows, the prosecutor did not err

in referring to Worrills’s credibility on direct examination because Tucker attacked

Worrills’s credibility when he suggested during his opening statement that Worrills



                                          7
was testifying against Tucker to help himself and Tucker was the only other person

besides himself who had been arrested and charged with committing the robberies.

Moreover, the prosecutor did not base his subsequent references to Worrills’s

credibility on the government’s reputation or evidence that was not before the jury.

Rather, the basis of the prosecutor’s questions and arguments was the plea

agreement, which obligated Worrills to testify truthfully. Cano, 289 F.3d at 1366.

      We also find no merit in Tucker’s argument that the district court erred in

failing to dismiss the indictment after Worrills pleaded guilty.     We have never

required district courts to order the government to reindict a defendant or to issue a

superseding indictment when a codefendant pleads guilty. Thus, because there is

no legal authority imposing such a requirement, the district court did not err in

failing to dismiss the indictment because it named both Tucker and Worrills, even

after Worrills pleaded guilty.

      As for Tucker’s ineffective assistance of counsel claim, we decline to address

the issue. We generally do not consider claims of ineffective assistance of counsel

raised on direct appeal “where the district court did not entertain the claim nor

develop the factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th

Cir. 2002).      An appellate court generally cannot adequately decide an

ineffective-assistance-of-counsel claim raised for the first time on direct appeal



                                          8
because the focus at trial was not whether defense counsel’s actions were

prejudicial or supported by reasonable strategy. Massaro v. United States, 538 U.S.

500, 504 (2003).       The preferable means for deciding a claim of ineffective

assistance of counsel is through a 28 U.S.C. § 2255 motion to vacate, “even if the

record contains some indication of deficiencies in counsel’s performance.”              Id.

      On this record, we decline to address Tucker’s ineffective-assistance-

of-counsel claims on direct appeal. Tucker did not raise the claim before the district

court and, as a result, the district court did not consider, or develop a factual record

relevant to, the claims.

      Finally, we conclude that Tucker’s sufficiency of the evidence arguments are

baseless. The armed bank robbery statute provides that: “[w]hoever, by force and

violence, or by intimidation, takes. . . from the . . . presence of another . . . any . . .

money . . . belonging to, or in the care, custody, control, management, or possession

of, any bank . . .” shall be fined or imprisoned. 18 U.S.C. § 2113(a). Moreover, a

person who assaults any person or jeopardizes the life of any person “by the use of

a dangerous weapon or device” while committing or attempting to commit armed

bank robbery shall be fined or imprisoned for a maximum of 25 years, or both. 18

U.S.C. § 2113(d). Section 924(c) provides additional penalties for a person “who,

during and in relation to any crime of violence . . . , uses or carries a firearm, or



                                             9
who, in furtherance of any such crime, possesses a firearm” and provides a greater

penalty “if the firearm is brandished.” 18 U.S.C. § 924(c)(1)(A)(ii).      Finally, a

person who “commits an offense against the United States or aids [or] abets . . . its

commission, is punishable as a principal.” 18 U.S.C. § 2(a). “To prove guilt under

a theory of aiding and abetting, the Government must prove: (1) the substantive

offense was committed by someone; (2) the defendant committed an act which

contributed to and furthered the offense; and (3) the defendant intended to aid in its

commission.” United States v. Camacho, 233 F.3d 1308, 1317 (11th Cir. 2000).

      Questions of witness credibility are for the jury, and we assume the jury

answered them in a way that supports its verdict. United States v. Thompson, 473

F.3d 1137, 1142 (11th Cir. 2006).       Moreover, an accomplice’s uncorroborated

testimony can be sufficient to prove guilt, even if the witness is an admitted

wrongdoer. Craig v. Singletary, 127 F.3d 1030, 1044-45 (11th Cir. 1997).

      As for Tucker’s § 2113(a) and (d) convictions, Worrills’s testimony provided

sufficient evidence to support them under either a principal or aiding-and-abetting

theory of guilt. At trial, Worrills testified that he used a firearm to facilitate the

robberies, Tucker supplied a black, nine-millimeter pistol for that purpose, and

Tucker also carried a firearm. Moreover, Worrills testified that Tucker originally

presented the idea to rob the second bank, both Worrills and Tucker planned all



                                         10
three robberies, and Tucker assigned Worrills the role of keeping the customers and

employees inside the bank at bay while Tucker collected the money.

      Based on this testimony -- that Tucker used and Worrills brandished a

firearm -- there was also sufficient evidence to support Tucker’s § 924(c)(1)(A)(ii)

conviction. Furthermore, the district court did not err by instructing the jury that it

could convict Tucker of violating § 924(c)(1)(A)(ii) if it found that he used or

carried a firearm, although the indictment charged Tucker with using and carrying a

firearm. Under § 924(c)(1)(A)(ii) and according to the instruction given to the jury,

the government was only required to show the use or carry element to prove guilt.

See 18 U.S.C. § 924(c)(1)(A)(ii) (providing additional penalties for a person who

“uses or carries a firearm” and, specifically, requiring a term of not less than seven

years’ imprisonment if the firearm is brandished). Because the indictment alleged

use and carry, each of which violates that statute, the indictment alleged more than

was required by the statute. See United States v. Simpson, 228 F.3d 1294, 1300

(11th Cir. 2000) (stating “the law is well established that where an indictment

charges in the conjunctive several means of violating a statute, a conviction may be

obtained on proof of only one of the means, and accordingly the jury instruction

may properly be framed in the disjunctive”). Thus, the district court did not err in




                                          11
charging the jury in the disjunctive, although the indictment was worded in the

conjunctive. See id.

      AFFIRMED.




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