Erroneous Aiding & Abetting Instruction Not Prejudicial

US v. Odum: Odum was allegedly the perpetrator of robberies at a Circle K and a Kingsway convenience store. As a result, he was charged with a count each of Hobbs Act robbery and brandishing a firearm in connection with each robbery, as well as being a felon in possession of a firearm. The Government’s evidence against Odum consisted of video of the robberies, each of which involved a masked man with a gun, and circumstantial evidence, such as DNA found on a ski mask recovered near the Circle K that “belonged to Odum,” a match “so strong that unless Odum had a twin, the DNA could not belong to anyone else.” The Government also presented evidence from a jailhouse informant and friend of Odum who testified that Odum told him that he had “messed up” and “got caught” for the robberies. Odum was convicted of the Circle K and related brandishing offense, as well as the felon-in-possession offense, but hung on the other robbery and acquitted on the related brandishing charge. Odum was sentenced to 111 months in prison.

On appeal, the Fourth Circuit affirmed Odum’s convictions. First, Odum argued that the district court’s jury instruction on aiding and abetting was erroneous. Reviewing for plain error (Odum objected to giving an aiding and abetting instruction, but not to the substance of the instruction that was given), the court agreed that the instruction was flawed, as it failed to address intent, and that the error was plain. However, the court concluded that it was not prejudicial. In addition to the strength of the Government’s evidence, the court noted that the instruction was only given as related to the Hobbs Act robbery, not the related firearm offense upon which the jury convicted – and for which the only basis was it was used in the robbery. In other words, the jury’s verdict showed that it did not convict on an aiding and abetting theory. Second, Odum argued that the district court erred by denying his motion to strike a juror who had trouble hearing during voir dire. The court held that the district court had considered the issue when denying the challenge for cause and that the district court did not fail to sua sponte explore the matter further because Odum’s counsel had the opportunity to do so and did not.