Summary
The Fifth Circuit affirmed Juan Rojelio Cabello’s conviction for aiding and abetting possession of methamphetamine with intent to distribute. The court held that alleged defects in the indictment, the sufficiency-of-the-evidence challenge, and the challenge to the Allen charge did not satisfy plain-error review. It also rejected Cabello’s argument that an aider and abettor must know of the principal’s possession before that possession begins.
Topics
Practice areas
Questions Presented
- Whether the indictment was plainly erroneous because it contained a grammatical error stating that the defendants aided and abetted each other 'to possess' rather than 'possessed' methamphetamine.
- Whether the indictment was plainly erroneous because it alleged possession with intent to distribute without expressly alleging the statutory mens rea of knowingly or intentionally.
- Whether the evidence was insufficient to support Cabello's conviction for aiding and abetting possession with intent to distribute because the Government did not prove that he knew of Garcia's possession before that possession began.
- Whether the district court's Allen charge coerced the jury into reaching a guilty verdict, and whether Cabello's counsel waived that claim by affirmatively agreeing to the timing of the charge.
Holdings
- The indictment was not plainly erroneous merely because it stated that the defendants aided and abetted each other 'to possess' rather than 'possessed' methamphetamine. The indictment's text and caption identified 21 U.S.C. § 841(a)(1), fairly informed Cabello of the charge, and alleged an actual offense.
- The indictment was not defective, and the district court did not plainly err by failing to dismiss it sua sponte, even though it did not expressly allege that Cabello acted knowingly or intentionally.
- Cabello could not establish error or plain error. Section 841(a)(1)'s possession element describes an ongoing act, so an aider and abettor may acquire knowledge of the principal's possession while that possession is continuing; advance knowledge before possession begins is not required.
- Cabello waived his Allen-charge claim by affirmatively agreeing that the charge should be given that evening and stating that he had no objection. Plain-error review is available for forfeiture, but not for waiver.
Key quotations
“But aiding and abetting is not itself a crime; it’s a theory of liability.” (7)
“The plain text, statutory context, and precedent all confirm that “possession” is an ongoing act; therefore, an aider-and-abettor can have knowledge of the principal’s possession while the possession is ongoing.” (10)
“Plain-error review is available only for forfeitures—not waivers.” (22)
“Cabello can’t ask the court to give an Allen charge at a given time, get his wish, and then fault the court for doing exactly what he asked it to do.” (24)
Factual background
Police arrested Cabello and Garcia after they attempted to sell methamphetamine to an undercover officer. Cabello told officers that Garcia used Cabello's phone to arrange a drug sale, obtained methamphetamine from Jorge's house, and later told Cabello he would receive $100 if he drove Garcia to the transaction. Garcia possessed approximately six grams of methamphetamine at arrest, additional methamphetamine was in Cabello's truck, and Cabello did not possess methamphetamine on his person.
Procedural history
A federal grand jury charged Cabello and codefendant Cristoval Manuel Garcia in a single-count indictment under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and an aiding-and-abetting theory. After a jury convicted Cabello, he appealed, challenging the indictment's sufficiency, the sufficiency of the evidence, and the allegedly coercive Allen charge. The Fifth Circuit affirmed.