Brandishing conviction based on accomplice's conduct upheld

United States v. Bailey, No. 19-5069, 2020 WL 5083329 (10th Cir. Aug. 28, 2020) (OK) Mr. Bailey committed a series of robberies at Walgreens. For the robbery at issue in this appeal, he coached a kid through the robbery, gave him a firearm and mask, and acted as a getaway driver. He was ultimately convicted of Hobbs Act conspiracy, Hobbs Act robbery and brandishing. Mr. Bailey argued for the first time on appeal that there wasn’t sufficient evidence for the brandishing because the evidence showed that the kid/accomplice did the actual brandishing and the indictment never specifically charged Mr. Bailey as an aider/abettor under 18 USC § 2. The panel found no error occurred at all, and thus the first prong of plain error review was not met, while noting that the issue is better framed as a constructive amendment argument than a sufficiency one. See United States v. Brown, 400 F.3d 1242, 1253 (10th Cir. 2005) (explaining an indictment is constructively amended if the evidence presented at trial, together with the jury instructions, raises the possibility that a defendant was convicted of an offense other than the one charged). Mr. Bailey conceded that he aided and abetted his accomplice’s brandishing and the jury was properly instructed under Rosemond. See Rosemond v. United States, 572 U.S. 65, 67 (2014) (establishing aider and abettor liability in 924(c) cases). The Court says it is of no consequence that the indictment failed to charge Mr. Bailey as an aider and abettor because aiding and abetting is not an independent crime—all it does is remove any distinction between principal and accessory.