USA v. Branden Tyler

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12385
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDEN TYLER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cr-60227-RS-1
____________________
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2 Opinion of the Court 22-12385
Before L AGOA , BRASHER , and ABUDU, Circuit Judges.
PER CURIAM:
Branden Tyler appeals his convictions for use of one or more
unauthorized devices, possession of 15 or more unauthorized ac-
cess devices, aggravated identity theft, and possession of access de-
vice-making equipment. On appeal, Tyler makes several argu-
ments. First, he argues that the government’s evidence was insuf-
ficient to support his conviction for use of one or more unauthor-
ized devices because its evidence was circumstantial. Second, he
argues that there was insufficient evidence to support his aggra-
vated identify theft conviction because there was insufficient evi-
dence that he knew Willard Steele was a real person. Third, he
argues that there was insufficient evidence to support his convic-
tion for possession of 15 or more unauthorized devices because
there was no evidence presented about the usability of those de-
vices. Fourth, he argues that there was insufficient evidence to
support his convictions for possession of 15 or more unauthorized
devices and possession of access device-making equipment because
there was no evidence that his conduct affected interstate or for-
eign commerce. And finally, he argues that the district court
plainly erred when it gave an aiding and abetting jury instruction.
For the following reasons, we affirm Tyler’s convictions.
I.
Tyler was charged in a second superseding indictment with:
use of one or more unauthorized devices in violation of 18 U.S.C.
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22-12385 Opinion of the Court 3
§ 1029(a)(2) (Count 1); possession of 15 or more unauthorized ac-
cess devices in violation of 18 U.S.C. § 1029(a)(3) (Count 2); aggra-
vated identity theft in violation of 18 U.S.C. § 1028(A)(a)(1) (Count
3), and possession of access device-making equipment in violation
of 18 U.S.C. § 1029(a)(4) (Count 4). Tyler proceeded to trial on the
charges.
At trial, the government called Brian Welshans, an employee
at Truist Bank—formerly known as BB&T Bank—who testified to
the following. Welshans investigated the activity for two credit
cards at BB&T Bank in the name of Willard Steele. He found two
credit card applications in Steele’s name that listed an 8231 North-
west Court, Lauderhill, Florida, address (the “8231 address”). The
credit cards were approved by the bank in Steele’s name in May
2020, and between the two cards—one card’s account ending in
4177 and the other’s ending in 0460—there were purchases and
cash advances in excess of $46,000.
Next, the government called Lauderhill Police Department
Detective Richard Clarke, who testified to the following. Clarke
started his investigation into Tyler after he received a call from
Welshans, who told him that there was fraudulent activity associ-
ated with the two credit cards in Steele’s name. Clarke first con-
tacted Steele, who informed him that he had no idea that either
credit card had been opened. He found the bank statements for
both credit cards suspicious because the applications were done
online, there were multiple purchases and cash advances on them,
and there were insufficient funds used to pay off the payments on
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4 Opinion of the Court 22-12385
the cards. He noticed that there were Amazon purchases on the
credit card for the 0460 account. He also found the bank statement
for the 4177 account suspicious because of the cash advances from
ATM machines, the card had been used over its limit, and there
were Amazon purchases on that card. On both cards, there were
around $11,467 in Amazon purchases. Clarke then subpoenaed
Amazon, who provided the dates of orders, email addresses, and
customer information; this information revealed that Steele was
supposed to be the recipient of those items at the 8231 address.
The Amazon items purchased included BDI furniture and Wolf
Gourmet items. He also discovered that there was a UPS delivery
to that address on July 1, 2020, for five items.
Clarke saw “like” items to the Wolf Gourmet items ordered
to another address in Lauderhill—5105 Northwest 75th Avenue
(the “5105 address”), which was Tyler’s address. On September 6,
2020, Clarke went to the 8231 address where the Amazon packages
were delivered, and the person who resided there—who was not
Steele—answered the door and stated he knew Tyler. After meet-
ing this resident, Clarke identified a citation that was issued to Tyler
outside the 8231 address on July 1, 2020.
Clarke then went to the 5105 address, and Tyler answered
the door and confirmed that he lived there. Clarke gave Tyler his
business card, which stated an appointment for the next Monday
for Clarke to return and meet with Tyler. Clarke returned on that
date, and Tyler again opened the door for him. Jacqueline Corn-
wall, Tyler’s grandmother and the other resident of the home, took
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Clarke to the garage after Clarke showed her pictures of the Ama-
zon items that were ordered. In the garage, Clarke saw similar-in-
kind Wolf Gourmet products, two toasters, and an oven that he
recognized to be similar to the Amazon products that were suppos-
edly delivered to the 8231 address on July 1, 2020.
Clarke then searched a bedroom that Tyler’s family stated
was Tyler’s room. In this room, Clarke found his business card that
he handed to Tyler the first time he went to the residence, prepaid
phones that he described as burner phones, a laptop, printers, and
a Dyson dryer. In Clarke’s experience, prepaid phones indicated
fraud, a dryer was often used to ensure that any forms of identifi-
cation made and printed with ink could dry quickly, and the print-
ers were often used to print cards. Additionally, in the bedroom,
officers found credit cards with other individuals’ names, a driver’s
license with Tyler’s name that listed the 5105 address, a card-reader,
a hologram package, eleven Florida driver’s licenses, and a Bank of
America checkbook in the name of someone who did not live at
the residence. Next to the hologram, Clarke found at least fifty
blank plastic cards. He then swiped all the cards found in the bed-
room with a card-reader that provided the information of the indi-
viduals whose names were on those cards, of which there were at
least fifteen or twenty. He also found an “HID” device, which can
be used to produce cards such as driver’s licenses or bank cards, and
a coder reencoder, which can be used to add or erase information
on cards that can be purchased on Amazon and that often are used
for fraud. He further found a book that was a guide for driver’s
licenses in each state and blank checks.
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Also, during the search, officers found bank statements, re-
ceipts, debit card statements, a ticket, a letter from the Internal
Revenue Service, and correspondence from the Department of
Transportation all in Tyler’s name. They found letters addressed
to individuals other than Tyler related to identity theft. They found
a safe that had $140,000 in hundred-dollar bills, a BMW key and a
title for the BMW in Tyler’s name with the 5105 address listed, per-
sonal identification all belonging to Tyler, postal orders worth
$14,000, and jewelry valued at about $160,000. A Rolex watch was
also found in the safe, which was purchased under the name
Kareem and the cards used to pay for it were consistent with the
names on IDs that were found in Tyler’s room. There was also an
empty box for a Sony A92 camera and lens, which was consistent
with the camera from the Amazon purchases ordered from the
cards taken out in Steele’s name, and the camera was in the Ama-
zon box when it was found. Officers also found two laptops, a To-
paz signature pad was found which can be used to make signatures,
a HID card reader, two other card readers, and holograms that
would go on a Florida driver’s license.
Clarke ultimately followed up with the banks for each credit
card found. And he identified the people whose driver’s licenses
were found. On cross-examination, Clarke explained that, during
his investigation, he found that three of the places that the cards
were used at had video of a person fitting Tyler’s description and
that a live witness identified Tyler at one of those locations. Clarke
also viewed Ring camera footage outside the house of the person
receiving the packages and determined it to be Tyler.
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The government next called Officer Robert Murray, who tes-
tified that he had responded to a suspicious vehicle report on July
1, 2020, near the 8231 address. When Murray arrived, he saw a car
parked in the road occupied by Tyler. Tyler told Murray that he
was “waiting for something” and handed him his Florida driver’s
license, and the license photo matched the person Murray saw in
the car—Tyler. On the ticket Murray issued to Tyler, Murray listed
Tyler’s name and his address as the 5105 address.
The government then called Rachel Varela, a Lauderhill Po-
lice Department crime scene unit supervisor who worked as a la-
tent fingerprint examiner in Tyler’s case. Varela collected Tyler’s
fingerprints from him and explained that the fingerprints lifted
from the MacBook laptop taken from the bedroom matched Ty-
ler’s fingerprints.
The government then called Detective Jaynis Tadlock, a dig-
ital forensic examiner with the City of Miami Police Department,
who testified to the following. Tadlock analyzed the Razor laptop
discovered in the search and found that the username for the com-
puter was “Yoda.” She recognized a letter addressed to Tyler with
the 5105 address from Bank of America that was located on the
computer. She also found bank enrollment information for PNC
bank and Green Dot on one of the devices she analyzed. Tadlock
then read out messages from a phone she analyzed. The messages
were from “Andre Johnson” to a username that was a grouping of
numbers. Johnson asked this username, “You doing look-ups?”;
the username responded, “Yep. $15 a name.” Tadlock found a text
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8 Opinion of the Court 22-12385
message between Johnson and the username that discussed Truth
Finder, a website where anyone can purchase a background check
on a person. The email for the Truth Finder account was
“Yoda305305@gmail.” Tadlock also read more messages between
Johnson and the username that stated, “I signed this morning. Go
bank. Took like 20-minute, LOL. Yep. Just got to go small,” and “I
just got everything within an hour. I just got another 128K.” An-
other message stated, “Send license number. Send height you want
on it. Send the four digits after the 3313, send issue and expiration
you want on it”; the response to this message was “generate li-
cense.” Tadlock also found an email on the laptop for “WillAS-
teele1950@gmail.” There were also messages asking how much it
was for a Florida ID card.
Tadlock also found on the laptop an application called
“Zeus” store, where a person can chat and request to look up
names and address information; the application would return so-
cial security numbers, birthdays, and other personal information.
Tadlock found search results for Milagros Yap, Trad Hamdan, and
Cassandra Reyes. And on cross-examination, Tadlock testified that,
on one of the cellphones found, she found four pictures of Tyler.
The government also called Yap and Reyes as witnesses.
Both Yap and Reyes testified that they did not know Tyler or give
him permission to have their identification cards or open credit
card accounts in their names. The government also called Steele,
who testified that he did not open accounts for the credit cards end-
ing in 4117 and 0460, that he did not know Tyler, that he did not
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22-12385 Opinion of the Court 9
give anyone permission to open those accounts, and that he did not
make any Amazon purchases on those accounts.
Through its witnesses’ testimony, the government entered
the following evidence. The government entered the BB&T credit
card applications and the 4117 account’s activity report, which in-
cluded: (1) purchases from Amazon stating that Amazon was lo-
cated in Washington; (2) a purchase from Tempur Pedic that listed
Kentucky as the postal code; and (3) a purchase from Verizon that
had California listed as the location. Both credit card accounts had
a North Carolina address listed for BB&T. The government also
entered into evidence photos of all the items described above that
were found in Tyler’s bedroom. The government further entered
a consumer report that listed Tyler’s name and the 5105 address
and the account summary for the 0460 account which showed the
purchases and cash withdrawals. And the government entered the
text messages between Johnson and the list of numbers username,
as testified to by Tadlock.
The government then rested its case, and Tyler moved for
judgment of acquittal on Count 3, arguing that the government
failed to prove beyond a reasonable doubt that Tyler possessed or
used any means of identification. In making this argument, how-
ever, Tyler did not assert that the government had failed to estab-
lish that Tyler knew Steele was a real person. After hearing the
parties’ arguments, the district court stated that “defendant’s mo-
tion for judgment of acquittal as to Counts 1 through 4 will be
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10 Opinion of the Court 22-12385
denied.” After Tyler rested his case, Tyler renewed his motion,
adopting the same prior argument, which the court denied.
During trial, the district court asked if there were any objec-
tions to the proposed jury instructions. Tyler stated he reviewed
the instructions and did not have any objections, and the govern-
ment sought to clarify that the aiding and abetting instruction was
included, which the court stated it was. After the parties rested, the
district court read the jury its instructions. Of relevance to this ap-
peal, the following instruction was read to the jury:
A defendant aids and abets a person if the de-
fendant intentionally joins with the person to commit
a crime. A defendant is criminally responsible for the
acts of another person if the defendant aids and abets
the other person.
A defendant is only responsible if the defend-
ant willfully directs or authorizes acts of an agent,
employee or other associate. But, finding a defendant
criminally responsible for the acts of another person
requires proof that the defendant intentionally asso-
ciated with or participated in the crime, not just proof
that the defendant was simply present at the scene of
a crime or knew about it. In other words, you must
find beyond a reasonable doubt that the defendant
was a willful participant, not merely a knowing spec-
tator.
The jury found Tyler guilty on all four counts, and he was
sentenced to 60 months’ imprisonment. This appeal ensued, and
we now address Tyler’s arguments in turn.
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II.
First, Tyler argues that we should reverse his conviction for
Count 1 because the government’s evidence was circumstantial
and based on mere speculation. The government responds that
there was ample evidence to convict Tyler of Count 1 because
whether he acted alone or in concert with others, he was personally
involved in a fraudulent scheme to use the credit cards to obtain
property. And the government argues that there was overwhelm-
ing evidence of Tyler’s constructive possession of the items found
at the 5105 residence.
We review de novo whether there was sufficient evidence to
support a conviction. United States v. Jiminez, 564 F.3d 1280, 1284
(11th Cir. 2009). In reviewing the sufficiency of the evidence, we
view the record in the light most favorable to the government, re-
solving all reasonable inferences in favor of the verdict. Id. The
evidence will be sufficient to support a conviction if “a reasonable
trier of fact could find that the evidence established guilt beyond a
reasonable doubt.” Id. at 1284–85 (quoting United States v. Calhoon,
97 F.3d 518, 523 (11th Cir. 1996)).
The test for sufficiency of the evidence is the same, whether
or not the evidence is direct or circumstantial, but where the gov-
ernment relied on circumstantial evidence, reasonable inferences
must support the conviction. United States v. Martin, 803 F.3d 581,
587 (11th Cir. 2015). We assume that the jury resolved all questions
of credibility in a manner supporting the verdict. Jiminez, 564 F.3d
at 1285. Further, the evidence need not exclude every reasonable
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12 Opinion of the Court 22-12385
hypothesis of innocence for a reasonable jury to find guilt beyond
a reasonable doubt. United States v. Cruz-Valdez, 773 F.2d 1541, 1545
(11th Cir. 1985) (en banc). Instead, the jury is free to choose among
alternative, reasonable interpretations of the evidence. United
States v. Beach, 80 F.4th 1245, 1256 (11th Cir. 2023).
An individual is guilty of access device fraud when he
“knowingly and with intent to defraud traffics in or uses one or
more unauthorized access devices during any one-year period, and
by such conduct obtains anything of value aggregating $1,000 or
more during that period.” 18 U.S.C. § 1029(a)(2). Thus, to convict
a defendant for use of unauthorized access devices, “the govern-
ment must prove that the defendant: (1) ‘knowingly’ used ‘one or
more unauthorized access devices,’ (2) ‘with intent to defraud,’ (3)
to obtain anything having an aggregate value of ‘$1,000 or more’
during a one-year period, and (4) such use ‘affect[ed] interstate or
foreign commerce.’” United States v. Klopf, 423 F.3d 1228, 1240 (11th
Cir. 2005) (quoting § 1029(a)(2)).
“It is well settled that possession of contraband may be con-
structive as well as actual and may be proven by circumstantial ev-
idence.” United States v. Kincade, 714 F.2d 1064, 1066 (11th Cir.
1983). To prove actual possession, the government must prove that
the defendant had either physical possession of or personal domin-
ion over the thing allegedly possessed. United States v. Derose, 74
F.3d 1177, 1185 (11th Cir. 1996). “Constructive possession exists
when a defendant has ownership, dominion, or control over an ob-
ject itself or dominion or control over the premises . . . in which
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22-12385 Opinion of the Court 13
the object is concealed.” United States v. Leonard, 138 F.3d 906, 909
(11th Cir. 1998). “Moreover, constructive possession need not be
exclusive, but may be shared by others.” Kincade, 714 F.2d at 1066.
Here, we conclude that the evidence presented at trial was
sufficient to find that Tyler used one or more unauthorized devices
in violation of § 1029(a)(2). First, based on the evidence, the jury
could reasonably conclude that Tyler lived at the 5105 address and
had possession over the bedroom where all the evidence was
found. See Leonard, 138 F.3d at 909. Indeed, Tyler’s identification
was found in the bedroom’s safe, his fingerprint was found on one
of the laptops, his grandmother stated that it was his bedroom, and
Tyler confirmed to Clarke that he lived at the 5105 address. There-
fore, it was reasonable for the jury to conclude that Tyler at least
had dominion or control over the bedroom.
There was also sufficient evidence for the jury to reasonably
conclude that Tyler committed Count 1. Tyler was seen at the
8231 address on July 1, 2020—the day the Amazon packages pur-
chased from Steele’s account were supposed to be delivered.
There was also evidence found in Tyler’s bedroom of Steele’s per-
sonal information, as well as the email address of the person who
applied for the two credit cards used and text messages found on a
cellphone in the room that discussed the same email. Further,
there was evidence of Wolf Gourmet items in the 5105 address’s
garage. And there was also video footage of Tyler at the places the
card was used and a witness who stated they saw Tyler at one of
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14 Opinion of the Court 22-12385
those places. Accordingly, we conclude that there was sufficient
evidence to support this conviction, and we affirm as to this issue.
III.
Next, Tyler argues that the government failed to present ev-
idence that he knew that the means of identification belonged to a
real person beyond a reasonable doubt. In response, the govern-
ment argues that Tyler did not argue in the district court that there
was insufficient evidence that he knew the cards belonged to a real
person, and thus the claim should be reviewed for plain error. And
the government asserts that there was sufficient evidence from
which a reasonable jury could conclude that Tyler knew the cards
belonged to a real person—Steele.
We typically review challenges to the sufficiency of the evi-
dence de novo, but we review unpreserved objections to the suffi-
ciency of evidence only for plain error. United States v. Zitron, 810
F.3d 1253, 1260 (11th Cir. 2016). Under plain-error review, we ask
whether there was (1) error; (2) that is plain; and (3) that affects
substantial rights. Johnson v. United States, 520 U.S. 461, 466–67
(1997). If these three conditions are met, we may exercise our dis-
cretion to notice a forfeited error, but only if the error seriously
affects the fairness, integrity, or public reputation of judicial pro-
ceedings. Id. at 467. To properly preserve a challenge to the suffi-
ciency of the evidence, a defendant must raise the same specific
challenges before the district court as he brings on appeal. See
United States v. Baston, 818 F.3d 651, 663–64 (11th Cir. 2016).
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22-12385 Opinion of the Court 15
To prove aggravated identity theft under 18 U.S.C. § 1028A,
the government must show that “the defendant: (1) knowingly
transferred, possessed, or used; (2) the means of identification of
another person; (3) without lawful authority; (4) during and in re-
lation to a felony enumerated in § 1028A(c).” United States v. Bar-
rington, 648 F.3d 1178, 1192 (11th Cir. 2011) (quoting United States v.
Hurtado, 508 F.3d 603, 607 (11th Cir. 2007)).
Here, because Tyler did not move for judgment of acquittal
on Count 3 because he did not know Steele was an actual person,
we review for plain error. And we conclude that the district court
did not commit plain error, as there was sufficient evidence to show
that Willard Steele was a real person. For example, a jury could
reasonably conclude that, based on the text messages from the
phone seized in Tyler’s bedroom, Tyler knew he was dealing with
real people. Further, BB&T Bank accepted the application for two
credit cards in Steele’s name. Thus, there is sufficient evidence to
support Tyler’s conviction for aggravated identity theft, and we af-
firm as to this issue.
IV.
Tyler also argues that his conviction for Count 2 should be
vacated because there was no evidence about the usability of the
alleged unauthorized access devices recovered from his alleged
bedroom. The government responds that Tyler failed to make this
argument below, meaning that the issue is reviewed for plain error.
And the government argues that there was sufficient evidence
found in Tyler’s bedroom to support the conviction.
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For an error to be plain, it must be one that is obvious and
clear under current law. United States v. Madden, 733 F.3d 1314, 1322
(11th Cir. 2013). An error is not obvious or clear under current law
when there is a “lack of controlling authority” or there is “room for
doubt about the outcome” of an issue. United States v. Humphrey,
164 F.3d 585, 588 (11th Cir. 1999) (quoting United States v. Thompson,
82 F.3d 849, 856 (9th Cir. 1996).
An individual is guilty of possession of 15 or more “unau-
thorized access devices” if he possesses such devices knowingly and
with intent to defraud. 18 U.S.C. § 1029(a)(3). An “‘access device’
means any card, . . . account number, electronic serial number, . . .
personal identification number, . . . or other means of account ac-
cess that can be used, alone or in conjunction with another access
device, to obtain money . . . or that can be used to initiate a transfer
of funds.” Id. § 1029(e)(1). An “‘unauthorized access’ device means
any access device that is lost, stolen, expired, revoked, canceled, or
obtained with intent to defraud.” Id. § 1029(e)(3).
Here, we review for plain error because Tyler did not argue
in his motion for judgment of acquittal that the government did
not prove the usability of the access devices. Zitron, 810 F.3d at
1260. And we conclude that the district court did not commit plain
error as there was sufficient evidence to support Tyler’s conviction
for possession of 15 or more unauthorized access devices, as nei-
ther the statute nor binding precedent require proof of the usability
of the devices. See Humphrey, 164 F.3d at 588. We thus affirm as to
this issue.
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V.
Tyler also argues that the government failed to prove that
his alleged criminal conduct affected interstate or foreign com-
merce as to Counts 2 and 4. The government again responds by
arguing that plain-error review applies because Tyler did not move
for judgment of acquittal on this basis. The government argues
that the evidence shows Tyler used fraudulently obtained credit
cards to make Amazon and other purchases, which affected inter-
state commerce. The government further argues that the evidence
shows Tyler’s scheme was broader than just the credit cards, as (1)
his bedroom contained device-making equipment and dozens of
debit and credit cards and (2) the messages on his phone contained
personal identification information of individuals not only in Flor-
ida, but other states as well. Given this, the government asserts that
a reasonable jury could conclude that Tyler’s device-making equip-
ment was used to generate fraudulent cards that would affect in-
terstate commerce.
Under § 1029(a)(2) and (3), whoever “knowingly and with in-
tent to defraud traffics in or uses one or more unauthorized access
devi[c]es during any one-year period, and by such conduct obtains
anything of value aggregating $1,000 or more during that period”
or “possesses fifteen or more devices which are counterfeit or un-
authorized access devices” “shall, if the offense affects interstate
commerce or foreign commerce,” be punished by a fine or impris-
onment for not more than ten years, or both. § 1029(a)(2)–(3), (c).
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18 Opinion of the Court 22-12385
In the context of 18 U.S.C. § 1028, we have held that “the
government must prove only a minimal nexus with interstate com-
merce in a § 1028 prosecution to satisfy the in or affects interstate
or foreign commerce requirement.” Klopf, 423 F.3d at 1239. “The
defendant need have had only the intent to accomplish acts, which,
if successful, would have affected interstate or foreign commerce.”
Id. And the government “is not required to prove that the defend-
ant had knowledge of the interstate commerce nexus when he
committed an act in violation of § 1028(a).” Id. As to § 1029, in
Klopf, we explained that, as to “the requirement that the access-de-
vice fraud affect interstate or foreign commerce, credit cards gen-
erally are issued to applicants by out-of-state financial institutions,
and credit-card account numbers travel across state lines, both elec-
tronically and by mail.” Id. at 1240. Because the defendant had
made purchases and withdrawals with the fraudulently obtained
credit cards, he “engaged in interstate financial transactions.” Id.
Again reviewing for plain error, we conclude that the district
court did not commit plain error on this issue. As in Klopf, the jury
could reasonably conclude that Tyler’s criminal conduct involved
in his convictions for possession of 15 or more unauthorized de-
vices and possession of access device-making equipment affected
interstate or foreign commerce. For example, evidence showed
that Tyler made purchases from the 4117 account from Amazon,
listed Amazon as being located in Washington, a purchase from
Tempur Pedic had Kentucky listed as the postal code, and a pur-
chase from Verizon had California listed. Further, the evidence
showed that the bank Tyler fraudulently obtained the cards from
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22-12385 Opinion of the Court 19
was based in North Carolina. Because there is sufficient evidence
establishing that Tyler’s conduct affected interstate commerce, we
affirm as to this issue.
VI.
Finally, Tyler asserts that the district court plainly erred
when it gave an aiding and abetting jury instruction.
Generally, we review the legal accuracy of jury instructions
de novo. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000).
But when the defendant makes no specific objection to the jury
charge at trial, we review the claim for plain error. United States v.
Schlei, 122 F.3d 944, 973 (11th Cir. 1997). We will not reverse a con-
viction for a defective jury charge unless we are “left with a sub-
stantial and eradicable doubt as to whether the jury was properly
guided in its deliberations.” United States v. Puche, 350 F.3d 1137,
1148 (11th Cir. 2003) (quoting McCormick v. Aderholt, 293 F.3d 1254,
1260 (11th Cir. 2002)).
“When we apply the plain error rule to jury instructions, we
do not consider the asserted errors in isolation.” United States v.
Iriele, 977 F.3d 1155, 1178 (11th Cir. 2020). Instead, we consider “the
totality of the charge as a whole” and determine “whether the po-
tential harm caused by the jury charge has been neutralized by the
other instructions given at the trial such that reasonable jurors
would not have been misled by the error.” Id. (quoting United States
v. Whyte, 928 F.3d 1317, 1332 (11th Cir. 2019)). “And even if the
unobjected to error retained some prejudicial impact, reversal still
may not be warranted.” Id. at 1179. “To show that an instructional
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20 Opinion of the Court 22-12385
error affected his substantial rights, a defendant must show that the
error ‘was probably responsible for an incorrect verdict.’” Id. (quot-
ing Whyte, 928 F.3d at 1332). If the defendant’s guilt would have
been clear under the correct instruction, he cannot show plain er-
ror. Id.
Aiding and abetting is not a separate crime; rather, “[i]t al-
lows a jury to find one guilty of an offense even though he did not
commit all the acts constituting the elements of the substantive
crime aided.” United States v. Martin, 747 F.2d 1404, 1407 (11th Cir.
1984). There is no need to refer to aiding and abetting in the indict-
ment because “[t]he aiding and abetting theory is not an essential
element of the offense.” United States v. DePace, 120 F.3d 233, 236
n.3 (11th Cir. 1997). Instead, it is a theory “upon which criminal
liability may be based.” United States v. Camacho, 233 F.3d 1308, 1315
(11th Cir. 2000). It “is an alternative charge in every count, whether
explicit or implicit.” United States v. Walker, 621 F.2d 163, 166 (5th
Cir. 1980).
Here, the district court did not commit plain error when it
gave an aiding and abetting instruction. The evidence showed that
Tyler did not commit all the acts himself in making the licenses
and credit cards because of the text messages with the unidentified
username who helped Tyler with the lookups and personal infor-
mation. And there is no evidence that the aiding and abetting in-
struction misled the jury in its deliberations or was responsible for
an incorrect verdict for any of the counts on which Tyler was
charged, especially given there was sufficient evidence to support
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22-12385 Opinion of the Court 21
those convictions. See Puche, 350 F.3d at 1148; Iriele, 977 F.3d at
1179. Accordingly, we affirm as to this issue.
VII.
For all these reasons, we affirm Tyler’s convictions.
AFFIRMED.
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