United States of America v. Markwann Lemel Gordon

PRECEDENTIAL
Filed May 10, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 00-2907
UNITED STATES OF AMERICA
v.
MARKWANN LEMEL GORDON,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 99-cr-00348-2)
District Judge: Hon. Stewart Dalzell
Argued April 5, 2002
Before: SLOVITER, BARRY and ALARCON,*
Circuit Judges
(Filed May 10, 2002)
Isabel McGinty (ARGUED)
Hightstown, New Jersey 08520
Attorney for Appellant
_________________________________________________________________
* Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth
Circuit, sitting by designation.
Patrick J. Meehan
United States Attorney
Laurie Magid
Deputy United States Attorney
for Policy and Appeals
Robert A. Zauzmer
Assistant United States Attorney
Senior Appellate Counsel
Ewald Zittlau (ARGUED)
Assistant United States Attorney
Attorneys for Appellee
OPINION OF THE COURT
SLOVITER, Circuit Judge:
Appellant Markwann Lemel Gordon appeals the judgment
convicting and sentencing him for armed bank robbery,
attempted armed bank robbery, conspiracy to commit
armed bank robbery, and carrying and use of a firearm

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during a crime of violence. He raises four issues on appeal:
(1) whether the District Court erred in its jury instructions
on aiding and abetting; (2) whether the District Court erred
by not questioning Gordon or his counsel on Gordon’s
decision not to testify; (3) whether the evidence was
sufficient to support the convictions; and (4) whether the
sentence violated the Supreme Court’s decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000). We will affirm.
I.
BACKGROUND
Gordon was convicted for his participation in seven
different bank robberies. The other participants were at
various times Todd Brown, Gary Hutt, Darnell Jones, and
George McLaughlin. The following is a summary of the
underlying events, viewing the evidence in the light most
favorable to the government, as the verdict winner:
2
Counts 4-6: On June 21, 1995, Gordon served as a
lookout for the armed robbery of over a half of a million
dollars from a PNC bank in Philadelphia by Hutt, Brown,
and Jones. Gordon helped select the bank to rob and
participated in planning the robbery. On the day of the
robbery, Gordon drove a car around the area of the bank
and was to stop anyone who chased the getaway car by
hitting the pursing vehicle with his car. Gordon was given
approximately $9,000 to 10,000 of the yield.
Counts 7-9: On October 30, 1997, Gordon confronted an
employee of the Main Line Bank in Springfield with a gun
outside of the bank and ordered her to open the doors of
the bank and give him money. As he was entering the
bank, another employee was able to lock Gordon out of the
bank. Gordon’s bag was found inside the bank, and
contained money and a police scanner that contained a
battery with Gordon’s fingerprint. Gordon was able to get
away in a car driven by McLaughlin, who was waiting as
the getaway and switch car driver.
Counts 10-12: On October 21, 1996, Gordon was involved
in an armed bank robbery of approximately $50,000.
Gordon entered the Roxborough Federal Savings and Loan
in Philadelphia with a gun, robbed the bank, left with
McLaughlin in the getaway car, and switched to a car
driven by Brown. Gordon, McLaughlin, and Brown divided
the proceeds equally.
Counts 13-15: On March 4, 1997, Gordon was involved in
the armed robbery of approximately $135,855 from the
First Security Federal Savings Bank. Gordon confronted an
employee in the bank parking lot with a gun, entered the
bank, and successfully robbed the bank. Brown drove the
getaway car and divided the money with Gordon.
Counts 16-18: On June 11, 1997, Gordon was involved in

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the armed robbery of approximately $58,500 from a PNC
Bank in Philadelphia. According to the plan discussed in
advance, Hutt robbed the bank, McLaughlin drove the
getaway car, and Gordon drove the switch car. Hutt,
McLaughlin, and Gordon divided the money three ways and
gave $1500 to Brown for providing the stolen getaway and
switch cars.
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Counts 19-21: On July 18, 1997, Gordon was involved in
an attempted armed bank robbery. McLaughlin was to
enter and rob the Mellon-PSFS Bank in Philadelphia.
Gordon was the getaway car driver, and Brown was the
switch car driver. Gordon and Brown had told McLaughlin
that it was his turn to enter the bank. Gordon and
McLaughlin drove to the bank together where Gordon saw
McLaughlin put a gun in his pants. McLaughlin was
unsuccessful and left with Gordon, who switched to a car
driven by Brown.
Counts 22-24: On August 28, 1997, Gordon and
McLaughlin drove to a Corestates Bank in Philadelphia with
the plan that Gordon rob the bank and McLaughlin drive
the getaway car. Gordon confronted a bank employee in the
parking lot with a gun and ordered an employee inside the
bank to open the doors. The employee refused and the
robbery was unsuccessful.
Gordon was found guilty on all counts and sentenced to
a total of 1688 months imprisonment, three years
supervised release, a $2100 special assessment, and
restitution of $258,675. This is a direct appeal from that
judgment.
II.
DISCUSSION
A. Jury Instructions
Gordon argues that the District Court misstated the law
in its jury instruction on aiding and abetting and that the
misstatement is plain error requiring the grant of a new
trial. The government concedes in its brief that part of the
instruction "if read in isolation . . . may be incomplete,"
Government’s Br. at 37, but argues that it was not error
because the instructions read as a whole expressed the law
correctly and that even if it was error, Gordon was not
prejudiced.
Because Gordon did not object to the District Court’s
instructions as to aiding and abetting, our standard of
4
review is plain error. Fed. R. Crim. P. 52(b); United States
v. Wolfe, 245 F.3d 257, 260-61 (3d Cir. 2001)."A plain

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error is one that is clear or obvious." Wolfe , 245 F.3d at
261 (quotations omitted). The plain error standard is met
where the error "affected substantial rights," which has
been defined as "prejudicial in that it affected the outcome
of the District Court proceedings." Id. We should exercise
our discretion to correct the error "where the defendant is
actually innocent, or where, regardless of the defendant’s
innocence or guilt, the error seriously affects the fairness,
integrity or public reputation of judicial proceedings." Id.
(quotations omitted).
The District Court’s charge to the jury on aiding and
abetting, with the challenged language at the very end,
reads in its entirety as follows:
Now, Counts Five, Six, Eight, Nine, Eleven, Twelve,
Fourteen, Fifteen, Seventeen, Eighteen, Twenty,
Twenty-One, Twenty-Three, and Twenty-Four also
charge defendant Markwann Lemel Gordon with aiding
and abetting.
A person may violate the law even though he or she
does not personally do each and every act constituting
the offense if that person "aided and abetted" the
commission of that offense. The aiding and abetting
statute, 18 United States Code Section 2, provides that,
and I quote:
"Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.
Whoever willfully causes an act to be done which if
directly performed by him or another would be an
offense against the United States, is punishable as a
principal."
Under the aiding and abetting statute, it is not
necessary for the Government to show that the
defendant himself committed the crime with which he
is charged in order for you to find him guilty.
A person who aids or abets another to commit an
offense is just as guilty of that offense as if he
committed it himself.
5
Accordingly, you may find the defendant guilty of the
offense charged if you find beyond a reasonable doubt
that the Government has proved that another person
actually committed the offense with which the
defendant is charged, and that the defendant aided or
abetted that person in the commission of the offense.
As you can see, the first requirement is that you find
that another person has committed the crime charged.
Obviously, no one can be convicted of aiding and
abetting the criminal acts of another if no crime was

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committed by the other person in the first place. But if
you do find that crime was committed, then you must
consider whether the defendant aided or abetted the
commission of the crime.
In order to aid or abet another to commit a crime, it
is necessary that the defendant willfully and knowingly
associate himself in some way with the crime, and that
he willfully and knowingly seek by some act to help
make the crime succeed.
Participation in a crime is willful if action is taken
voluntarily and intentionally, or, in the case of a failure
to act, with a specific intent to fail to do something the
law requires to be done. That is to say, with a bad
purpose either to disobey or disregard the law.
The mere presence of the defendant where a crime is
being committed, even coupled with knowledge by the
defendant that a crime is being committed, or the mere
acquiescence by the defendant in the criminal conduct
of others, even with guilty knowledge, is not sufficient
to establish aiding and abetting. An aider and abettor
must have some interest in the criminal venture.
Now, to determine whether Markwann Lemel Gordon
aided or abetted the commission of the crime with
which he is charged, ask yourself these questions:
Did he participate in the crime charged as something
he wished to bring about?
Did he associate himself with the criminal venture
knowingly and willfully?
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Did he seek by his actions to make the criminal
venture succeed?
If he did, then the defendant is an aider and abettor,
and therefore, is guilty of the offense.
If, on the other hand, your answers to this series of
questions are all "No," then the defendant is not an
aider and abettor, and you must find him Not Guilty.
App. at 467-70.
Gordon challenges two aspects of the jury charge: (1) the
use of the word "venture," and (2) the statement of the law
in the concluding paragraphs. Our analysis must focus
initially on the specific language challenged, but must
consider that language as part of a whole. Francis v.
Franklin, 471 U.S. 307, 315 (1985); Smith v. Horn, 120 F.3d
400, 411 (3d Cir. 1997). The proper inquiry is " ‘whether
there is a reasonable likelihood that the jury has applied
the challenged instruction in a way’ that violates the
Constitution." Estelle v. McGuire, 502 U.S. 62, 72 (1991)

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(quoting Boyde v. California, 494 U.S. 370, 380 (1990)).
Looking first at the use of the word "venture" in the
aiding and abetting instructions, Gordon argues that the
District Court erred in using the phrase "criminal venture"
without defining it because "venture" could be
misconstrued or mistakenly substituted for "attempt" or
"conspiracy" in a multi-count indictment such as this one.
We conclude it was not error for the District Court to use
the word "venture" in its instructions. The jury instructions
clearly set out the different crimes with which Gordon was
charged and the need to prove each separate offense. The
District Court instructed the jury to apply the aiding and
abetting inquiry to each separate offense. As Gordon
acknowledged, the use of the word "venture" is widespread
and likely derives from a 1938 decision by Judge Learned
Hand, United States v. Peoni, 100 F.2d 401, 402 (2d Cir.
1938). The language has been used in the aiding and
abetting context since then without any suggestion by a
court that it is ambiguous or confusing. See, e.g., United
States v. Powell, 113 F.3d 464, 467 (3d Cir. 1997); United
States v. Jenkins, 90 F.3d 814, 821 (3d Cir. 1996); United
States v. Bey, 736 F.2d 891, 895 (3d Cir. 1984).
7
The more troubling allegation by Gordon is that of the
explanation at the conclusion of the aiding and abetting
instruction. The District Court set out three questions that
the jurors needed to ask in order to find Gordon guilty of
aiding and abetting. Under the law, if the jury answered in
the negative to any one of those three questions, it would
need to find Gordon not guilty of aiding and abetting.
However the instructions state that the jury would need to
answer in the negative to all three questions to find Gordon
not guilty, implying that if the jury answered yes to just one
or two of the three questions, Gordon could be found guilty.
Therefore, Gordon argues he could have been convicted
even if the government had not proven every element of the
crime.
The government responds that there was no error
because the misstatement did not detract from the District
Court’s clear and correct explanation right before the
misstatement. However, "while a single defect does not
necessarily make an instruction erroneous, a defect in a
charge may result in legal error if the rest of the instruction
contains language that merely contradicts and does not
explain the defective language in the instruction." Whitney
v. Horn, 280 F.3d 240, 256 (3d Cir. 2002) (citation omitted).
In Whitney, we found a jury charge erroneous where it
misstated the law despite having stated the law correctly
just before the misstatement. Id. "[O]ther language in the
instruction does not always serve to cure the error. This is
so even when other language correctly explains the law." Id.
(citing Francis, 471 U.S. at 322).
Although the final statement of the instruction was

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incomplete and therefore incorrect,1 we still need to
determine if the error affected the defendant’s substantial
_________________________________________________________________
1. The District Judge took that portion of his charge verbatim from
Leonard B. Sand, Modern Federal Jury Instructions P 11.01, at 11-4
(2001), a respected and widely used text. As we explain in the text, we
believe that Judge Sand’s text should be modified so that the sentence
"If, on the other hand, your answers to this series of questions are ‘no,’
then the defendant is not an aider and abettor, and you must find him
not guilty" should read "If, on the other hand, any one of your answers
to these three questions is ‘no,’ then the defendant is not an aider and
abettor, and you must find him not guilty."
8
rights in order to conclude that it was "plain error." The
government argues that, assuming arguendo there was
error, the instruction was irrelevant to the dispositive issue
before the jury because at trial the defense only claimed
that Gordon was not involved in the bank robberies, not
that "whoever took the steps alleged to have been taken
during the robberies by Gordon . . . had not aided and
abetted the offenses within the meaning of that term. The
only question was whether Gordon was the person."
Government’s Br. at 38-39. For this reason, the government
argues that the lack of specificity in the instruction had no
impact on the verdict. We agree. Gordon does not challenge
this interpretation of his defense and has not explained
how, in light of his defense that he was not involved in the
attempts at all, the jury’s verdict could be interpreted to
conclude that it found less than all three elements.
We are not required to correct an error unless we
conclude the error prejudiced the outcome, the defendant is
actually innocent, or the error seriously affected the
fairness, integrity, or public reputation of the judicial
system. See United States v. Olano, 507 U.S. 725, 735-36
(1993). We have cautioned that it is a " ‘rare case in which
an improper instruction will justify reversal of a criminal
conviction when no objection has been made in the trial
court.’ " Wolfe, 245 F.3d at 164 (quoting Henderson v.
Kibbe, 431 U.S. 145, 154 (1977)). Although the instruction
given by the District Court misstated the scenarios under
which a not guilty verdict should be found, we need not
exercise our discretion to correct this error because it did
not prejudice the outcome nor did the error seriously affect
the fairness, integrity, or public reputation of the judicial
system.2
_________________________________________________________________
2. Defendant filed a Petition for Panel Rehearing in which he argues, inter
alia, that the panel opinion fails to reach the additional issue referred to
in Olano of whether the error seriously affected the fairness, integrity, or
public reputation of the judicial system. The panel believes that its view
that the error did not have that effect was implicit. However, because the
panel has decided to turn the decision into a precedential one, it has
made its view in that respect explicit. Defendant will have the
opportunity to file a petition for rehearing before the full court.

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9
B. Right to Testify
Gordon argues that the District Court erred when it failed
to take corrective action to ensure that he had knowingly
relinquished his right to testify. We review de novo"claims
of constitutional violations, such as the denial of the right
to testify." United States v. Leggett, 162 F.3d 237, 245 (3d
Cir. 1998).
It is clear precedent in this circuit that a district court
"has no duty to explain to the defendant that he or she has
a right to testify or to verify that the defendant who is not
testifying has waived the right voluntarily." Id. at 246
(quoting United States v. Pennycooke, 65 F.3d 9, 11 (3d Cir.
1995)). In Leggett, we stated that a district court not only
has no duty to make an inquiry, but in fact "as a general
rule, should not inquire as to the defendant’s waiver of the
right to testify," because the decision to testify or not is a
part of trial strategy into which a judge should not intrude.
Id. at 246.
Gordon argues that this case falls into an exception to
Leggett since the defense counsel gave the District Court an
indication that he had not properly counseled his client on
this issue or secured his informed waiver. Gordon points to
the following discussion that occurred at sidebar (Mr. Bello
is defense counsel, Mr. Zittlau is the prosecutor):
Mr. Bello: Judge, I mean I usually do this, and
perhaps you should colloquy the
defendant as to his desire to testify or
not testify.
The Court: Well, we don’t generally colloquy on that
point. I don’t want to seem in any way
coercing.
Mr. Zittlau: Yeah. There’s a Third Circuit decision on
that.
The Court: That says you can’t do that.
Mr. Zittlau: It’s a practice that you shouldn’t do it.
Mr. Bello: I just don’t want it to come back later.
All right.
10
The Court: I have to assume, when he doesn’t take
the Witness Stand, that’s his choice.
Mr. Bello: O.K.
The Court: Because it seems to me, if you ask any

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questions, it’s inherently coercive.
Mr. Bello: O.K.
The Court: Coming from me.
Mr. Zittlau: Yes, your Honor.
The Court: I think that’s the gist of what the Third
Circuit said.
Mr. Bello: That’s what I said. I’m unfamiliar with
the case.
The Court: O.K. Anything else?
App. at 422-23.
Defense counsel’s request that the court "colloquy the
defendant" does not lead to the conclusion that defense
counsel made a unilateral decision that Gordon was not
going to testify. Gordon never raised any objection at trial
indicating his interest in testifying or that his right to
testify was not explained.
Gordon agrees that the District Court need not have
colloquized him but asserts that the District Court was
obligated to ask counsel if he had secured the informed
consent of his client and if not, instruct that he should do
so before court reconvened. However, the decisions in
Leggett and Pennycooke counsel against such an obligation.
Leggett and Pennycooke outlined very" ‘exceptional,
narrowly defined circumstances’ " in which judicial
intervention might be appropriate, for example when
" ‘defense counsel nullifies a defendant’s right to testify over
the defendant’s request’ " or threatens to withdraw as
counsel. Leggett, 162 F.3d at 247 (quoting Pennycooke, 65
F.3d at 12, 13). There is no comparable evidence in this
case.
C. Sufficiency of the Evidence
Gordon argues that there was insufficient evidence to
find him guilty of aiding and abetting the armed bank
11
robberies and related firearm offenses of June 21, 1995
(counts 5 and 6), June 11, 1997 (counts 17 and 18), and
July 18, 1997 (counts 20 and 21). Gordon argues that the
evidence only proved that he was the driver of a car and not
that he knew a firearm was to be used in any of those
robberies. Because Gordon did not file a motion for
acquittal pursuant to Fed. R. Crim. P. 29(c), we review this
claim under a plain error standard. See United States v.
Gaydos, 108 F.3d 505, 509 (3d Cir. 1997). "A conviction
based on insufficient evidence is plain error only if the
verdict constitutes [‘]a fundamental miscarriage of justice.’ "
United States v. Thayer, 201 F.3d 214, 219 (3d Cir. 1999)

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(quoting United States v. Barel, 939 F.2d 26, 37 (3d Cir.
1991)).
To establish liability for a crime based on an aiding and
abetting theory, the government must prove that the
underlying crime occurred and that the defendant"knew of
the crime and attempted to facilitate it." United States v.
Garth, 188 F.3d 99, 113 (3d Cir. 1999). The government
must also prove that the defendant had the "specific intent
of facilitating the crime . . . mere knowledge of the
underlying offense is not sufficient for conviction." Id.
(citation omitted). Although mere knowledge is not enough
to convict, we have held that a defendant can be convicted
of aiding and abetting a violation of S 924(c)(1) without ever
possessing or controlling a weapon if the defendant’s
actions were sufficiently "intertwined with, and his criminal
objectives furthered by" the actions of the participant who
did carry and use the firearm. Id. (citing United States v.
Price, 76 F.3d 526, 529-30 (3d Cir. 1996)). In Price, the
defendant robbed a bank with another individual but never
handled the gun. This court upheld the guilty verdict
because "a reasonable jury could infer that Price had prior
knowledge that Stubbs was planning to use and carry the
gun during the robbery, and that both Stubbs’ and Price’s
roles in the crime were facilitated by the fact that Stubbs
brandished a gun while Price scooped up the money." Id.
"The actions of each furthered the actions of the other, and
the robbery succeeded because of the combined actions of
both." Id. at 113-14.
The evidence in the instant case is sufficient to come to
the same conclusion. Although Gordon was not in the bank
12
for any of the robberies listed in the counts he challenges
on this ground, the evidence presented to the jury was
sufficient as a whole to show a pattern to the bank
robberies that makes clear that Gordon not only knew that
a gun would be used but that he attempted to facilitate the
carrying of a gun, wished to bring about or make the crime
succeed, and that the gun was instrumental to his decision
to participate.
Each of the seven charged robberies involved a
combination of the same group of people who took turns
filling in the roles necessary for the robbery. Gordon
himself went into the bank and brandished a weapon on
four of those occasions. In addition, there was specific
evidence that the use of firearms was discussed during the
planning stage of the crimes and that Gordon was in a
position to observe the actual use of a firearm in at least
several of the robberies. No miscarriage of justice occurred
in convicting Gordon for these counts under an aiding and
abetting theory, and therefore there was no plain error.
D. Apprendi
Gordon claims that because the government failed to

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prove each element of 18 U.S.C. S 924(c)(1), his sentence
violated Apprendi v. New Jersey, 530 U.S. 466 (2000).
However, Gordon has not shown how any fact increased the
statutory maximum or was not proven beyond a reasonable
doubt, and thus Apprendi does not apply. See id. at 490.
III.
CONCLUSION
For the reasons set forth above, we will affirm the
judgment of conviction and sentence of the District Court.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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