UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-20134
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
GREGG LOMBARDI,
Defendant-Appellant
Appeal from the United States District Court
For the Southern District of Texas
April 3, 1998
Before POLITZ, Chief Judge, SMITH, and DUHÉ, Circuit Judges.
DUHÉ, Circuit Judge:
Defendant was convicted for trafficking marijuana and for
using a juvenile in a drug offense. He appeals arguing that the
government failed to prove that he knowingly and intentionally used
a juvenile. We agree.
BACKGROUND
This case results from a cooperative sting operation between
Florida and Texas DEA agents. DEA Special Agent DeSantis and an
informant began negotiations with Appellant Gregg Lombardi
(“Lombardi”) and Alberto Benavides (“Benavides”) to buy 2,000
pounds of marijuana. DeSantis met Lombardi and Benavides at a
local motel while the informant went to Benavides’ residence, which
was the stash house, to make sure the marijuana transfer occurred.
Lombardi told DeSantis that he would not be able to deliver the
full 2,000 pounds, but that he would be able to make up the
difference within a week. The informant called to confirm the
marijuana had been loaded. DeSantis then asked Lombardi if he
agreed that $630,000 was the correct price and Lombardi nodded.
Benavides and Lombardi were arrested.
Simultaneously, several DEA agents knocked on Benavides’ door
and obtained consent to enter from Hector Rubacaldo, Jr.
(“Rubacaldo”), who lived at Benavides’ house. Once inside, the
agents found five men, including Rubacaldo, who had substantial
amounts of baby powder1 on them. The agents also found 877 pounds
of compressed marijuana, a nine millimeter pistol, and
miscellaneous drug paraphernalia. While the agents were processing
the five men, they discovered that Rubacaldo was a juvenile.
The government indicted and the jury convicted Lombardi on
three counts: (1) violating 21 U.S.C. §§ 846, 841(a)(1) and
(b)(1)(B)(vii), conspiracy to possess with the intent to
distribute; (2) violating 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii) and
18 U.S.C. § 2, aiding and abetting possession with the intent to
distribute; (3) violating 21 U.S.C. §861(a)(1),(2), knowingly and
intentionally employing, hiring, using, persuading, inducing,
enticing, or coercing a juvenile to commit a drug offense or to
1
Baby powder is used when packaging marijuana to mask its
smell.
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assist in avoiding detection or apprehension.
ANALYSIS
A. COUNT THREE
Lombardi raises three issues as to count three. First, he
argues that there was insufficient evidence to show that he
knowingly and intentionally used the juvenile, Rubacaldo, in a drug
offense. Second, he argues that his conviction of count three is
invalid because the indictment failed to allege a material fact,
that Lombardi was over 18. Third, he argues that his conviction is
invalid because the government did not prove that Lombardi knew
Rubacaldo was a juvenile. Because we find that the government did
not prove that Lombardi knowingly and intentionally used Rubacaldo,
we do not address the last two issues.
1. Sufficiency of the Evidence
When a defendant challenges the sufficiency of the evidence
supporting his conviction, we review the challenge to determine
whether the evidence could reasonably support a finding of guilt
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318
(1979). In reviewing the record, we are to view the evidence in
the light most favorable to the prosecution and then decide whether
any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Id. Moreover, we do not
consider individual facts and incidents separately; rather, we
examine the evidence taken as a whole because such evidence “may.
. . especially when corroborated by moral coincidences, be
sufficient to constitute conclusive proof.” United States v.
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Rodriguez, 15 F.3d 408, 412 (5th Cir. 1994) (internal citation
omitted). “It is not necessary that the evidence exclude every
reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt.” United States v. Resio-
Trejo, 45 F.3d 907, 911 (5th Cir. 1995) (quoting United States v.
Bell, 678 F.2d 547, 549 (5th Cir. 1989 (en banc) aff’d on other
grounds, 462 U.S. 356 (1983)).
Lombardi argues that there was insufficient evidence to show
that he knowingly and intentionally used Rubacaldo in a drug
transaction. Further, because the government did not indict him
for conspiracy or aiding and abetting in connection with Count
Three, it must show that Lombardi himself knowingly and
intentionally used Rubacaldo. The government responds, correctly,
“that aiding and abetting is not a separate offense, but is an
alternative charge in every indictment, whether explicit or
implicit.” United States v. Neal, 951 F.2d 630, 633 (5th Cir.
1992). Unless Lombardi can show unfair surprise, it is not an
abuse of discretion to give an aiding and abetting instruction.
Id. Here, Lombardi does not allege unfair surprise. We thus turn
to whether Lombardi was properly convicted of aiding and abetting.
To be convicted of aiding and abetting, the defendant must
have (1) associated with a criminal venture, (2) participated in
the venture, and (3) sought by action to make the venture
successful. United States v. Fierro, 38 F.3d 761, 768 (5th Cir.
1994), cert. denied, 514 U.S. 1051 (1995). Moreover, to aid and
abet, a defendant must share in the intent to commit the offense as
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well as play an active role in its commission. Id.; see also,
United States v. Fischel, 686 F.2d 1082, 1087 (5th Cir. 1982). The
government argues that Lombardi fulfills the criteria because he
associated with, participated in, and sought to make successful the
drug trafficking ring. The government’s argument fails, however,
since the criminal venture in Count 3 is not the drug trafficking
but the use of a minor in a drug offense. Were we to agree with
the government, the difference between conspiracy, for which the
government specifically stated it did not indict Lombardi in Count
3, and aiding and abetting would cease to exist. Thus, for
Lombardi’s conviction for violating 18 U.S.C. § 861 to stand, he
must have aided and abetted each material element of the alleged
offense in Count 3. See, United States v. Williams, 985 F.2d 749,
753 (5th Cir. 1993) (holding that to be guilty of aiding and
abetting possession of drugs with intent to distribute, the
defendant must have aided both the possession and the intent to
distribute).
This Circuit has not discussed aiding and abetting liability
when a defendant assists in a broader scheme which encompasses the
charged offense; therefore, we look to our sister circuits for
guidance. In doing so, we find the Second Circuit’s reasoning in
United States v. Medina, 32 F.3d 40 (2nd Cir. 1994) helpful.
There, Medina devised a plan to rob his former employer and
recruited another, Lopez, to carry out the plan. Lopez, in turn,
recruited two other confederates. The day the robbery was to
occur, Medina asked Lopez whether he had a gun. Lopez replied that
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one of the confederates did. Medina provided Lopez with another
gun and instructed him on how to use it. The defendants were
arrested before they could carry out the robbery. No one had the
gun Medina gave Lopez. Id. at 42-3. Medina was convicted of
aiding and abetting the use or carrying of a firearm. He appealed
arguing insufficient evidence. The Second Circuit held that while
there was evidence showing that Medina continued to participate in
the overall robbery enterprise, there was insufficient evidence to
support his conviction for aiding and abetting the firearm offense.
Medina must have aided and abetted the specific crime and not just
the overall scheme. Id. at 45. We find a similar situation here.
There is enough evidence to convict Lombardi of aiding and
abetting the overall drug trafficking scheme, but that evidence is
not sufficient to uphold the 21 U.S.C. § 861 violation. The
government argues that we should affirm the conviction because
Lombardi and Benavides engaged in direct contact with each other
during the negotiation process, because the juvenile and Benavides
lived at the same address, and because the juvenile had baby powder
on his clothes. It argues that this evidence shows that Benavides
employed, used, or hired Rubacaldo, Jr. to engage in the drug
trafficking offense. Lombardi, then, is liable as an aider and
abettor for the acts of his accomplices.
We reject this argument. The government seems to be confusing
aiding and abetting with conspiracy. It is not enough for
Lombardi’s accomplices to use, hire, or employ Rubacaldo. This
Circuit requires that the aider and abettor seek by action to make
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the venture succeed. United States v. Medina, 887 F.2d 528, 532
(5th Cir. 1989). Therefore, Lombardi must have acted in seeking to
hire, use, or employ Rubacaldo. There is no evidence in the record
that Lombardi ever had any contact with Rubacaldo. No DEA agent
ever saw Lombardi in the same company with Rubacaldo. In fact, the
government even argued in its closing that a good trafficker does
not “want to meet and greet and know the ones at the bottom of the
organization because then there is too much exposure.” We
conclude, therefore, that the evidence is insufficient to support
Lombardi’s conviction for count three.
B. SENTENCING
1. Lombardi’s Sentence for an Aggravating Role
Because Lombardi’s sentence under U.S.S.G. § 3B1.1 was
affected by his conviction on count three, we remand this case to
the district court for resentencing consistent with this opinion.
2. Lombardi’s Base Offense Level
Lombardi’s final complaint is that the district court erred in
calculating the amount of marijuana attributed to Lombardi for
purposed of determining his base offense level within the
Sentencing Guidelines. Lombardi’s presentence investigation report
held him responsible for 2,000 pounds of marijuana, which resulted
in a base offense level of 31 under U.S.S.G. § 2D1.2(a)(2).
Application Note 12 of U.S.S.G. § 2D1.2(a)(2) permits a court to
use the negotiated quantity of drugs in determining base offense
level unless the defendant was not reasonably capable of producing
the amount. Lombardi objected arguing that the drug transaction
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involved only 877 pounds of marijuana. The district court overruled
Lombardi’s objection stating that it was just a matter of time
before Lombardi would have come up with the remaining 1,123 pounds.
It is well-established law in this Circuit that, generally,
the burden of proof at sentencing is a preponderance of the
evidence. United States v. Mergerson, 4 F.3d 337, 343 (5th Cir.
1993). The clearly erroneous standard of review protects the
district court’s determination of the amount of drugs involved in
an offense. Id. at 345.
Lombardi argues that the evidence at trial showed that the
conspirators were not capable of providing the 2,000 pounds for
which he was held accountable. He points out that he had to ask
Benavides when he could provide the remaining amount. Moreover,
Lombardi argues that he was not reasonably capable of producing the
2,000 pounds. The amount of 2,000 pounds was one that Agent
DeSantis had determined to buy even before he met with Lombardi.
Thus, the base offense level for the 2,000 pounds was clearly
erroneous.
We disagree. The evidence supports the trial court’s
determination. While Agent DeSantis may have decided to buy 2,000
pounds of marijuana, Lombardi agreed to the amount. In fact while
Lombardi and DeSantis were negotiating for the drugs, Lombardi
repeatedly reassured Agent DeSantis that he could deliver the 2,000
pounds within ten days. Moreover, there was testimony involving
drug ledgers and documents reflecting additional pounds of
marijuana that Lombardi’s other conspirators moved; therefore, it
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was not clearly erroneous for the judge to assign a base offense
level using the 2,000 pounds.
CONCLUSION
For the foregoing we reasons, we AFFIRM the base offense level
used in the sentence, and we REVERSE the conviction on Count Three,
VACATE Appellant’s sentence and REMAND for resentencing.
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