Akin Zhon Wofford was convicted in the Western District of Oklahoma of armed bank robbery under 18 U.S.C. § 2113 and possessing and brandishing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c). The underlying incident occurred in November 2022 at a bank in Oklahoma City. Law enforcement did not recover the actual firearm used during the robbery. At trial, the government relied on eyewitness testimony from a bank teller and a customer, both of whom identified the object as a real gun, and surveillance video showing the robber holding an object resembling a firearm. The teller, who testified to being familiar with firearms, stated he had no doubt the object was a legitimate gun. The district court instructed the jury that the government was not required to produce the actual weapon and that witness identification of the weapon as a firearm was sufficient to prove the element. Wofford appealed, arguing that this instruction violated his Fifth and Sixth Amendment rights by effectively relieving the government of its burden to prove the existence of a firearm beyond a reasonable doubt.
The Tenth Circuit reviewed the jury instruction for plain error, as Wofford had not objected to it at trial. The court acknowledged that while precedent holds that credible witness testimony is sufficient to establish the possession of a firearm when the actual weapon is not produced, that language is typically used in sufficiency-of-evidence reviews, not jury instructions. However, the court found that the instructions as a whole did not misstate the law or mislead the jury. The jury was informed of the statutory definition of a firearm and was explicitly told that it must consider all evidence and was not required to accept all testimony as true. The court reasoned that the challenged instruction was meant to inform the jury of an alternative method of proof—that witness identification could satisfy the burden if the weapon was not produced—rather than to direct a verdict. Because the defendant offered no evidence at trial suggesting the object was a replica or toy, the instruction did not create a genuine controversy or mislead the jury regarding its duty to evaluate credibility.
The conviction stands, and the case is closed unless further appeal is taken to the Supreme Court. The decision reinforces that jury instructions stating witness identification is sufficient to prove a firearm's existence are permissible in the Tenth Circuit, provided the jury is also instructed on its duty to evaluate witness credibility and consider all evidence. It clarifies that while the language 'is sufficient' is common in sufficiency-of-evidence analysis, its use in jury instructions is not automatically plain error when the context of the full charge preserves the jury's fact-finding role.
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