UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4340

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSEPH WAYNE LOFTIN, a/k/a Hippy Joe, a/k/a

Joseph Wayne Loften,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. N. Carlton Tilley, Jr.,

Chief District Judge. (CR-03-267)

Argued: February 4, 2005 Decided: April 22, 2005

Before NIEMEYER and MICHAEL, Circuit Judges, and Samuel G. WILSON,

United States District Judge for the Western District of Virginia,

sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Benjamin David Porter, MORROW, ALEXANDER, TASH, KURTZ &

PORTER, P.L.L.C., Winston-Salem, North Carolina, for Appellant.

Robert A. J. Lang, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

ON BRIEF: Anna Mills Wagoner, United States Attorney, Greensboro,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Joseph Wayne Loftin was charged with stealing firearms

from a federally licensed firearms dealer, in violation of 18

U.S.C. § 924(m) and § 2 (the aiding and abetting statute), and with

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) and § 924(e)(1). After a jury convicted Loftin

on both counts, the district court sentenced him to 245 months'

imprisonment for possession of a firearm as a convicted felon and

120 months' imprisonment for stealing firearms, to run

concurrently. The court also ordered Loftin to pay restitution in

the amount of $4,190.

On appeal, Loftin contends that the district court erred

in responding to several jury questions submitted to the court

during deliberations. Finding no reversible error, we affirm.

I

In March 2002, Robert Lakey, James Callahan, James Cox,

and the defendant Loftin were sitting around with a group of

people, drinking, and "talking about ways to make money." At some

point during that meeting, Loftin said he knew of a person who had

a large number of firearms in his trailer home. Accordingly, the

group decided to break into the Lewisville, North Carolina home of

Larry Davis, a federally-licensed collector of firearms, and steal

his firearms.
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After Lakey, Cox, and Loftin drove to Davis' residence in

the early morning hours of March 11, 2002, to case the place,

Lakey, Callahan, and Loftin returned later that morning, waited for

Davis to leave, and then proceeded forcibly to enter Davis'

residence. After entering the residence, the group ransacked the

interior and stole 33 weapons, which the various members of the

conspiracy then stored.

Later Lakey and Callahan cooperated with federal

officials and testified against Loftin, stating that Loftin used a

crowbar to pry open the front door, after which Loftin and Lakey

entered the residence, pried open the gun safe, and removed the

guns. Callahan admitted to being the driver.

During the course of jury deliberations during Loftin's

trial, the jury submitted numerous questions to the court, which

the court answered with further instructions to the jury.

Following Loftin's conviction and sentencing, Loftin filed this

appeal.

On appeal, Loftin challenges only the court's responses

to jury questions.

II

During deliberations, the jury sent a handwritten

question to the court as follows: "Steal equals taking. Could a

person 'take' . . . 'steal' without being physically at the site of

the theft, i.e. at the trailer? Or does agreement to accept the
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stolen goods, hide the stolen goods constitute 'taking' and

therefore 'stealing?' We need clarification on what constitutes

actual theft."

Discussing a response with counsel, the court proposed

giving a standard aiding and abetting instruction to help clarify

to the jury whether a defendant's actual presence in the residence

was necessary to convict. The court also proposed to read again an

earlier instruction giving the meaning of the word "steal."

Counsel for Loftin did not object to the repeat of the "steal"

instruction, but stated that the aiding and abetting instruction

was not necessary in view of the evidence. In counsel's view,

"anything could have happened and possibly a scenario could have

happened, but there is no evidence to support that. The evidence

in the case is that [Loftin] was a direct participant in this, so

either he did it or he didn't."

The court instructed the jury as it proposed, giving the

jury a standard aiding and abetting instruction and concluding, "in

order to find Mr. Loftin guilty of the charge in count one, you

would have to find it has been proven beyond a reasonable doubt

that he participated or aided and abetted the taking of the

firearms from the trailer."

Loftin now contends that giving the aiding and abetting

instruction constituted error, as it was not supported by the

evidence. According to Loftin, the evidence only indicated that he
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was one of the principals who actually engaged in the break-in and

the theft. In Loftin's view, if the jury did not believe that he

was a principal, then it should acquit and not find him guilty on

an aiding and abetting charge.

We find Loftin's view of the case too rigid. The

government proved with ample evidence that the underlying offense

had been committed by at least three individuals -- Loftin, Lakey,

and Callahan -- and maybe by Cox. Moreover, there was evidence

that Loftin, Lakey, Callahan, and Cox all possessed some of the

firearms after the theft. While the government's theory of the

case was that Loftin and Lakey were the prime perpetrators, it is

possible that cross-examination made the identity of the actual

principals uncertain. While it is clear that Loftin, Lakey,

Callahan, and Cox were all involved, the jury could have harbored

doubts on the exact role of each and on the extent of participation

by each.

Loftin was charged with both being a principal and an

aider and abettor, and, we conclude that the district court did not

abuse its discretion in giving the jury an aider and abettor

instruction that all parties agreed was appropriate in form. See,

e.g., United States v. Horton, 921 F.2d 540, 543-45 (4th Cir.

1990), cert. denied, 501 U.S. 1234 (1991); United States v. Duke,

409 F.2d 669, 671 (4th Cir. 1969).
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III

During deliberations the jury also submitted questions

such as, "Was there an opportunity for the witnesses to compare

stories?" and "Did the government coach witnesses separately on

testimony?" The court advised the jury, "[Y]ou must make your

decision based on the evidence that has been presented in the case,

and it is up to you to remember what has been presented in the

case."

Loftin contends that this response is misleading because

it does not allow the jury to consider the possibility that the

government did coach the witnesses or that the witnesses did

compare stories, even though there was no evidence in the record to

support those possibilities.

Because Loftin raises this objection for the first time

on appeal, we review it under the plain-error standard. See Fed.

R. Crim. P. 52(b). We conclude that Loftin has failed to carry his

burden under that standard. The court's instruction in response to

the jury's question was an appropriate allusion to its earlier and

fuller instruction to the jury:

Now, in saying that you must consider all of the

evidence, I do not mean that you must accept all of the

evidence as true or accurate. You should decide whether

you believe what each witness had to say and how

important that testimony was. In making that decision,

you may believe or disbelieve any witness, in whole or in

part.
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The district court's supplemental instruction relating to possible

credibility issues did not conflict with the court's earlier

instruction, nor did it erroneously advise the jury of its task.

As such, Loftin has not fulfilled his burden of showing prejudicial

error. See United States v. United Med. Surgical Supply Corp., 989

F.2d 1390, 1406-07 (4th Cir. 1993).

AFFIRMED