United States of America v. Markwann Lemel Gordon

NOT PRECEDENTI
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 ALARC N*, Circuit Judges
(Filed: April 17, 2002)
Isabel McGinty (ARGUED)
Hightstown, New Jersey 08520
Attorney for Appellant
_________________
* Hon. Arthur L. Alarc¢n, Senior Judge, United States Court of Appeals 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

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commit armed bank robbery, and carrying and use of a firearm 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:
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 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.
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

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trial. The government concedes in its brief that part of the instruction "if read in isolatio
. . . 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 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 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.
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 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

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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?
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) (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

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Cir. 1996); United States v. Bey, 736 F.2d 891, 895 (3d Cir. 1984).
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 incomplete and therefore
incorrect, we still need to determine if the error affected the defendant’s substantial 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.
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 th
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
should colloquy the defendant as to his desire to

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testify or not testify.
The Court: Well, we don’t generally colloquy on that po
I don’t want to seem in any way coercing.
Mr. Zittlau: Yeah. There’s a Third Circuit decision on t
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. Al
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
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 Ci
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
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 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) (quoting United States v. Barel, 939 F.2d 26, 37 (3d Cir. 1991)).

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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
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 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 prove each element of 18
U.S.C. 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.
______________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 00-2907
UNITED STATES OF AMERICA
v.
MARKWANN LEMEL GORDON,

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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
Before: SLOVITER, BARRY and ALARC N*, Circuit Judges
________
JUDGMENT
This cause came on to be heard on the record from the United States District Court
for the Eastern District of Pennsylvania and was argued on April 5, 2002.
On consideration whereof, it is now here ORDERED AND ADJUDGED by this
_________________
* Hon. Arthur L. Alarc¢n, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation. Court that the judgment of conviction and sentence
October 2, 2000, be, and the same is, hereby affirmed. All of the above in accordance
with the opinion of this Court.
ATTEST:
Clerk
Dated: 17 April 200

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