[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 17719 Non

- Argument Calendar

________________________ D.C. Docket No. 1:14

- cr - 00147

- RWS

- LTW

- 1
UNITED STATES OF AMERICA, Plaintiff

- Appellee,

v ersus EDDIE SYLVESTER STEELE,
De fendant

- Appellant.

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

________________________ ( May 3, 2018 ) Before WILSON , JORDAN and BLACK , Circuit Judges.
PER CURIAM:

Case: 16-17719 Date Filed: 05/03/2018 Page: 1 of 122 Eddie Sylvester Steele appeals his convi ctions and sentences for aiding and abetting an armed robbery and for brandishing a firearm during the commission of

a crime of violence

. Steele brings five issues on appeal, which we address in turn. After review, we affirm.
I. DISCUSSION A. Constructive Amendment or Material Variance First, Steele contends the district court created a constructive amendment or a material variance from his superseding indictment by instructing the jury on, and allowing the presentation of evidence regar ding, aiding and abetting. We are not persuaded by Steele’s position that the district court plainly erred by constructively amending the superseding indictment when it gave an aiding

and

- abetting instruction to the jury

. 1 “[C] onstructive amendment occurs where the jury instructions so modify the elements of the offense charged that the defendant may have been convicted ” of an offense not included in the indictment. United
States v. Sanders , 668 F.3d 1298, 1309 (11th Cir. 2012)

. Steele a sse rts the district court’s aiding

- and

- abetting instruction impermissibly broadened the possible bases for conviction because the superseding indictment did not charge him with aiding

1 Ordinarily, we review de novo whether the district court’s jury instructions constru ctively amended an indictment. See United States v. Sanders , 668 F.3d 1298, 1309 n.9 (11th Cir. 2012). But where, as here, the defendant failed to argue before the dis trict court that it constructively amended the indictment, we review the argument for plain error. United States v. Leon , 841 F.3d 1187, 1192 (11th Cir. 2016), cert. denied , 137 S. Ct. 1390 (2017). Accordingly, Steele “must show that there was error, tha t the error was plain, and that the error affected [ his ] substantial rights. ” Id.

Case: 16-17719 Date Filed: 05/03/2018 Page: 2 of 123 and abetting others who took money and property ; rather, it charged Steele with taking money and property and stated he was aided and abetted by others. That distinction is not legally significant. Under our law, an individual indicted as a principal can be convicted on evidence showing he aided and abetted the commission of the offense even where the indictment does not include an aiding

- and

- abetting charge

. The former Fifth Circuit, whose decisions bind us, 2
held a district court did not err in giving an aiding

- and

- abetting instruction although the indictment did not specifically charge the defendant with aiding and abetting because “18 U.S.C. § 2 is an alternative charge in every count, whether explicit or implicit, a nd the rule is well

- established . . . that one who has been indicted as a principal may be co nvicted 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); accord United States v. Martin , 747 F.2d 1404, 1407 (11th Cir. 1984) (stating that “[ a]iding and abett ing 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”). Therefore , the district court did not err, plainly or otherwise, by instructing the jury on aiding and abetting.

2 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.

Case: 16-17719 Date Filed: 05/03/2018 Page: 3 of 124 Relatedly, Steele asserts the district court erred by reading jury instructions that differed from the written jury instructions

. He points out that al though the oral jury instructions stated Steele could only be found guilty if the jury concluded he had committed each element of armed robbery, the written jury instructions stated: “I caution you that each defendant is on trial for the specific crimes ch arged in the indictment.” Steele emphasizes that this language , to which he did not object, incorrectly suggested the jury could consider ot hers’ conduct to convict him. However, under the theory of aiding and abetting, the jury may consider that

someone else has committed the substantive offense. United States v. Seabrooks , 839 F.3d 1326, 1333 (11th Cir. 2016) . Furthermore, it was clear that Steele was the only defendant in this case, and the oral jury instructions clearly outlined the elements of aidin g and abetting. Thus , the difference between the or al and written
instructions was not sufficient to confuse, mislead, or prejudice the jury. Next, we turn to whether the district court created a material variance by allowing the presentation of evidence regarding aiding and abetting. 3 “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.

3 T he typical standard of review for determining whether there is a material variance between the charge s in the indictment and the evidence pre sented at trial is twofold: (1) whether a mater ial variance occur red ; and (2) whether the defendant was substantially prejudiced as a result. United States v. Lander , 668 F.3d 1289, 1295 (11th Cir. 2012). But becau se Steele did not present the issue to the district court, our review is for plain error. United States v. Wilson , 788 F.3d 1298, 1312 (11th Cir. 2015).

Case: 16-17719 Date Filed: 05/03/2018 Page: 4 of 125 Keller , 916 F.2d 628, 634 (11th Cir. 1 990 ). Steele’s superseding indictment, which charged him with armed robbery , encompassed an aiding

- and

- abetting theory of guilt. Martin , 747 F.2d at 1407 ; Walker , 621 F.2d at 166

. Therefore, the district court did not err by allowing the presentation of evidence supporting the conclusion that Steele aided and abetted the commission of the armed robbery

. B

. Competency Hearing Second, Steele asserts the district court abused its discretion by failing to sua sponte order a competency hearing prior to trial. 4 We disagree. A district court
must sua sponte order a competency hearing if there is reasonable cause to believe
the defendant i s “ suffering from a mental disease or defect rendering him mentally incompetent t o the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist proper ly in his defense. ” 18 U.S.C. § 4241(a). There are three factors that may establish a bona fide doubt
as to t he defendant’s compete nce: “(1) evidence of the defen dant’s irrational behavior; (2) the defendant’s demeanor at tri al; and (3) prior medical opinion

4 This Court has not decided in a published opinion whether plain error review applies where the defendant did not raise any competency issues before the district court. In an unpublished opinion , this Court determined that, while issues not raised below are normally reviewed for plain error, “the abuse

- of

- discretion standard always applies when reviewing a district court’s failure to sua sponte order a competency hearing.” United States v. Steinger , 631 F. App’x 915 , 922 (11th Cir. 2015)

. However, in an earlier unpublished opinion, this Court concluded plain error review applies to the argumen t that the district court should have sua sponte ordered a competency hearing , regardless whether the issue was presented to the district court

. United States v. Galdos , 308 F. App’x 346 , 356 (11th Cir. 2009) . We need not decide which standard is correct because Steele cannot succeed even under the more lenient of the two: abuse of discretion.

Case: 16-17719 Date Filed: 05/03/2018 Page: 5 of 126 regarding the defendant’s competence to stand trial.” United States v. Wingo , 789 F.3d 12 26, 1236 (11th Cir. 2015)

. A district court must consider “the aggregate of evidence” with regard to all three prongs, but enough evidence even under only one of the prongs may be sufficient to establish doubt about the defendant’s competence. Id.
The district court did not abuse its discret ion by failing to sua sponte order a competency hearing because there was no reasonable basi s to believe Steele was incompetent . Although Steele expressed multiple times that he was confused about how the trial was proceeding and complained about his counsel’s strategy, the source of his confusion was a misunderstanding of certain legal pr ocedures or rules of evidence . Fo r example, Steele expressed confusion about the hearsay rules

an d the process for preserving objections for appeal. These questions showed Steele was processing the future consequences of certain testimony and understood the importance of ensuring issues remained for review . Steele’s active participation demonstrated that he unde rstood the nature of the trial as well as the import of conviction. Finally, although he requested multiple ex parte proceedings, Steele did not display belligerent, confused, or irrational beha vior in open court, during the G overnment’s case, or during h is own testimony.

Case: 16-17719 Date Filed: 05/03/2018 Page: 6 of 127 C

. Statement Regarding Incarceration Third, Steele asserts the Government deprived him of the right to a fair trial by informing the jury of his current incarceration. 5 At the threshold, Steele preserved this issue for appellate review. The overruling of a motion in limine is not usually sufficient to preserve an objection for appeal. United States v. Brown , 665 F.3d 1239, 1247 (11th Cir. 2011). However, Federal Rule of Evidence 103(b) has relieved the obligation to renew an ob jection at trial where the issue was definitively ruled upon in limine. Fed. R. Evid. 103(b) (“Once the court rules definitively on the record

— either before or at trial

— a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” ); United States v. Wilson , 788 F.3d 1298, 1313 (11th Cir. 2015) ( same ). Here, Steele moved in limine to exclude the jail phone calls because references to his present incarceration were prejudicial. The district court delivered a definitive rul ing admitting the phone calls. The issue is, therefore, preserved for review. The presumption of innocence, a basic component of the right to a fair trial, is impaired when the defendant is compelled to wear prison or jail clothing during trial, because such clothing serves as a “constant reminder of the accused’s condition,” which is “ likely to be a continuing influence throughout the trial” on a

5 Typically, this Court reviews constitutional questions, including due process violations, de novo. United States v. Hunt , 526 F.3d 739, 743 (11th Cir. 2008). But where the defendant has failed to object below, our review is for plain error. United States v. Gutierrez , 745 F.3d 463, 475 (11th Cir. 2014).

Case: 16-17719 Date Filed: 05/03/2018 Page: 7 of 128 juror’s judgment of the defendant. Estelle v. Williams , 425 U.S. 501, 504

- 05 (1976)

. However, direct references to a defendant’s incarceration made during
trial do not necessarily undermine the presumption of innocence such that they create a due process violation. United States v. Villabona

- Garnica , 63 F.3d 1051, 1058 (11th Cir. 1995). Specifically, “ mere utterance [ s ] of the word[s] jail, prison, or arrest [do] not, without regard to context or circumstances, constitute reversible

error per se .” Id. (brackets and quotation omitted). Where the comment “is brief, unelicited, and unresp onsive, adding nothing to the government’s case,” an error worthy of granting a mistrial has not occurred. United States v. Emmanuel , 565 F.3d 1324, 1334 (11th Cir. 2009). The district court did not violate Steele’s due process rights by allowing the j ury to hear testimony that he was incarcerated. Although the G overnment generally may not elicit testimony that a defendant is incarcerated, the comment at issue here was a passing remark made in the context of the G overnment’s attempt
to establish a foun dation for jail phone calls it wished to admit. See Villabona

Garnica , 63 F.3d at 1058. The single comment confir ming Steele was incarcerated was not elicited to further prejudice Steele or to convince the jury that he was violent, nor did it create the same type of “continuing” reminder of Steele’s condition prohibited by Estelle

. See Estelle , 425 U.S. at 503. Furthermore, the district court gave a limiting instruction prior to the testimony at the G overnment ’s

Case: 16-17719 Date Filed: 05/03/2018 Page: 8 of 129 request, which the jury presumably follow ed. See United States v. Stone , 9 F.3d 934, 938 (11th Cir. 1993). Finally , Steele referred to his incarceration at some length, undermining the assertion that he was prejudiced by the Government’s lone remark. Although Steele takes the position that he needed to discuss his incarceration to provide the jury context, we note Steele discussed his imprisonment more than was needed to serve that limited purpose.
D

. Physical Restraint Sentencing Enhancement Fourth, Steele contends the district cou rt erred by applying a physical restraint sentencing enhancement. 6 Section 2B3.1(b)(4)(B) of the Sentencing Guidelines provides for a two

- level enhancement “ if any person was physically restrained to facilitate commission of the offense or to facilitate escape . . . .” U.S.S.G. § 2B3.1(b)(4)(B). The enhanc ement “ applies when the defendan t’ s conduct ensured the victims’ compliance and effectively prevente d them from leaving a location. ” United States v. Victor , 719 F.3d 1288, 1290 (11th Cir. 2013) (quotation omitted)

. As noted in Application Note 1, “phy sically restrained” is defined as “the forcible restraint of the victim such as by being tied, bound, or locked up.” U.S.S.G. § 2B3.1, comment (n.1); § 1B1.1, comment (n.1(K)). However, the

6 Steele objected to the upward adjustment to his sentence . Accordingly, “[w] e review a sentencing cour t’ s findi ngs of fact for clear error and its application of the guidelines de novo .” United States v. Victor , 719 F.3d 1288, 1290 (11th Cir. 2013).

Case: 16-17719 Date Filed: 05/03/2018 Page: 9 of 1210 physical restraint enhancement is not limited to these specific examples and may also apply when the defendant’s conduct has “ensured the victims’ compliance and effectively prevented them from leaving.” Victor , 719 F.3d at 1290 (quotation omitted). A ph ysical restraint enhancement has been applied even where the defendant threatened a victim with something merely believed to be a gun to prevent the victim from leaving. Id. The Presentence Investigation Report acknowledged that although E.W. , a customer, was not necessarily “tied up” by Steele and the other men, E.W.’s mobility was restricted when he was “instructed, at gunpo int, to lie down on the ground.” Further, as the district court noted, even though E.W. was subsequently instructed to get back up, he was still being instructed to do or not to do certain things and was not free to leave, which was a restraint of his movement in facilitation of the robbery within the meaning of U.S.S.G. § 2B3.1(b)(4)(B). United States v. Jones , 32 F.3d 1512, 1519 (11th Cir. 1994) . Thus, the district court did not err when it applied the physical restraint enhancement. 7

7 We need not discuss Steele’s conduct toward V .T. , a store clerk, because only one instance of physical restraint is needed to support applying the enhancement.

Case: 16-17719 Date Filed: 05/03/2018 Page: 10 of 1211 E

. Motion for New Trial Finally, Steele urges that the district court improperly denied his motion for a new trial based on Brady 8 evidence. 9 T o obtain a new trial based on a Brady claim of newly discovered evidence , the defendant must show that: “(1) the government possessed favorable evidence to the defendant; (2) the defendant does not possess the evidence and could not obtain the evidence with any reasonable diligence; (3) the prose cution suppressed the favorable evidence ; and (4) had the evidence been disclosed to the defendant, th ere is a reasonable probability that the
outc ome would have been different. ” United States v. Vallejo , 297 F.3d 1154, 1164 (11th Cir. 2002). “ Evidence favorable to t he accused includes impeachment evidence .” United States v. Newton , 44 F.3d 913, 918 (11th Cir. 1994). “A ‘reasonable probability’ is a probability sufficient to underm ine confidence in the
outcome .” United States v. Bagley , 473 U.S. 667, 682 (1985) (quotation omitted). Here, the district court erred because it evaluated Steele’s motion for a new trial using the standard for a Rule 33 motion based on newly discovered evidence
instead of the standard for a Rule 33 motion based on Brady evidence

. See United States v. Thompson , 422 F.3d 1285, 1294 (11th Cir. 2005) (outlining framework

8 Brady v. Maryland , 373 U.S. 83 (1963).

9 We review the district court’s denial of a motion for a new trial based on newly discovered evid ence or an alleged Brady violation for an abuse of discretion. United States v. Vallejo , 297 F.3d 1154, 1163 (11th Cir. 2002).

Case: 16-17719 Date Filed: 05/03/2018 Page: 11 of 1212 for evaluating a Rule 33 mo tion for new trial ); but see Vallejo , 297 F.3d at 1164 (setting forth standard for prevailing upon a Rule 33 motion based on a Brady violation). However, we will not remand unless doing so “ would serve [a] valid purpose.” See United States v. Bascaro , 742 F.2d 1335, 1344 (11th Cir.1984)

. We therefore consider whether Steele could establish a Brady claim under the proper framework

. The district court based its decision on a factor that is part of both tests, correctly finding that there was not a reasonable probability that Steele’s impeachment evidence would have changed the outcome of his trial. There was an abundance of evidence to support Steele’s convictions. For example, the jury could have relied on video surveillance showing Steele pointing a gun and commanding V.T. to retrieve phones and cash. There was also ample evidence supporting the rejection of Steele’s duress defens e , including that Steele did not report the robbery to the police, lied to an officer about his name, and attempted to flee to North Carolina. T herefore, the district court did not abuse its discretion when it denied Steele’s motion for a new trial based o n newly discovered evid ence allegedly withheld by the G overnment. II. CONCLUSION For the reasons discussed above, the district court is AFFIRMED.

Case: 16-17719 Date Filed: 05/03/2018 Page: 12 of 12