United States v. Mercado

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 09-2681

UNITED STATES OF AMERICA

v.

DOMINGO MERCADO,
Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2:08-cr-00541-003)
District Judge: Honorable Jan E. Dubois

Argued on June 2, 2010

Before: AMBRO, CHAGARES, and VAN ANTWERPEN,
Circuit Judges.

(Filed July 7, 2010 )

Laurence A. Narcisi III, Esq. (Argued)
100 South Broad Street Suite 1910
Land Title Building
Philadelphia, PA 19110

Counsel for Appellant

Guy R. Sciolla, Esq.
100 South Broad Street Suite 1910
Land Title Building
Philadelphia, PA 19110

Counsel for Appellant

Maureen McCartney, Esq.
Office of the United States Attorney
615 Chestnut Street Suite 1250
Philadelphia, PA 19106

Counsel for Appellee

Tomika N. Stevens, Esq. (Argued)
Office of the United States Attorney
615 Chestnut Street Suite 1250
Philadelphia, PA 19106

Counsel for Appellee

OPINION OF THE COURT

2
VAN ANTWERPEN, Circuit Judge.

Domingo Mercado (“Mercado”) appeals the District
Court’s order denying his motion for judgment of acquittal.
Because we find the evidence was sufficient to support the
verdict, we will affirm the District Court’s order.

I.

On September 10, 2008, a grand jury indicted Mercado
and his two co-defendants Dionel Rodriguez-Nunez
(“Rodriguez-Nunez”) and Hiram Coira-Soto, otherwise
known as Morrisette (“Morrisette”) on one count of
possession with intent to distribute 100 grams or more of
heroin, and aiding and abetting the possession with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).
The grand jury also indicted them on one count of possession
with intent to distribute, and aiding and abetting the
possession with intent to distribute, within 1000 feet of a
school, in violation of 21 U.S.C. § 860(a). Rodriguez-Nunez
pled guilty to both counts pursuant to a cooperation plea
agreement. Morrisette was scheduled to plead guilty on
February 5, 2009, but instead absconded. Mercado proceeded
alone to trial on February 17, 2009.

At trial, the Government presented evidence that the
Drug Enforcement Agency (“DEA”) had been working with a
confidential informant, whom Rodriguez-Nunez knew as
Poppy. On two occasions prior to the charges in question,
Poppy completed controlled substance purchases from
Rodriguez-Nunez. On August 13, 2008, at 11:00 a.m., DEA

3
agents instructed Poppy to contact Rodriguez-Nunez and
request 250 grams of heroin. Rodriguez-Nunez told Poppy he
did not have that much heroin but would travel to New York
City to pick some up and call Poppy when he returned.

Rodriguez-Nunez, however, did not go to New York
City. Instead, he contacted Morrisette about getting heroin to
sell to Poppy. Rodriguez-Nunez testified that he had never
done business with Morrisette before, but believed that
Morrisette could provide for his customer’s needs.

On August 14, 2008, starting at 7:00 a.m., DEA agents
set up surveillance at the 200 block of East Allegheny Avenue
across the street from Rodriguez-Nunez’s residence.
Rodriguez-Nunez left his house at approximately 11:00 a.m.
He made one stop and then arrived at a barber shop located at
the intersection of Front and Lippincott in Philadelphia at
11:40 a.m., less than three blocks from his house. Rodriguez-
Nunez stayed in the area around the barber shop for most of
the afternoon, talking to numerous people.

Although DEA agents did not observe Rodriguez-
Nunez talking with Morrisette or Mercado in front of the
barber shop, Rodriguez-Nunez testified that he talked to them
twice throughout the day. He said Morrisette pulled up in a
black Ford Taurus sometime before noon.1 Mercado sat in the
passenger seat. Rodriguez-Nunez stood outside the
passenger-side window of the car and spoke with Morrisette
about purchasing heroin. Then, Morrisette and Mercado
drove away. A short time later, Morrisette dropped by the

1
The black Ford Taurus was registered to Coira-Soto, a/k/a
Morrisette.

4
barber shop again with Mercado in the passenger seat.2 This
time, Morrisette was driving a maroon GMC Envoy registered
in his name. Standing on the street and speaking to Morrisette
through the passenger-side window, Rodriguez-Nunez and
Morrisette further discussed which drugs Morrisette had
available to sell to Rodriguez-Nunez.

Rodriguez-Nunez testified that he and Morrisette
exchanged several calls over cellular phones throughout the
day. Originally, Rodriguez-Nunez agreed to pay $62 for each
gram of heroin, but in a later call he asked Morrisette if he
could decrease the price to $60 per gram. Morrisette
responded by saying he would “patch [Rodriguez-Nunez] on
with the owner of [the] stuff.” (J.A. 115.) Immediately
thereafter, a new voice spoke into the phone and confirmed
that the price was $62 a gram. Neither Morrisette nor the
“owner” ever identified the new voice by name.

Another confidential informant called Rodriguez-
Nunez between 4:30 p.m. and 5:00 p.m. to ask if Rodriguez-
Nunez had succeeded in acquiring some heroin. Rodriguez-
Nunez responded that he was returning from picking up the
heroin and was going to meet with Poppy at the Cousin’s
Supermarket parking lot across the street from his house.
Based on this information, law enforcement set up
surveillance in the supermarket’s parking lot.

Poppy and Rodriguez-Nunez met at 5:15 p.m.

2
The evidence did not conclusively establish what time the
two meetings took place. (J.A. 188.) Because we look at the
evidence in the light most favorable to the prosecution when
assessing a Rule 29 claim, we presume these conversations
occurred. United States v. Cunningham, 517 F.3d 175, 177 (3d
Cir. 2008).

5
Rodriguez-Nunez told Poppy he did not have the heroin yet,
but that Poppy should come back in ten minutes. Then
Rodriguez-Nunez left the parking lot, briefly stopped by the
barber shop, and returned to his residence on Allegheny
Avenue. Rodriguez-Nunez waited on his stoop for Morrisette
to arrive with the heroin.

Sometime later, Morrisette pulled up in front of
Rodriguez-Nunez’s house in the black Ford Taurus. Again,
Mercado was in the passenger seat. Rodriguez-Nunez walked
over to the passenger-side window and reached into the car.
Someone handed him a wrapped package of heroin, which he
put directly in his pocket. Rodriguez-Nunez testified that he
is unsure whether Mercado or Morrisette passed him the
package. Surveillance officers were also unable to see which
one transferred the package to Rodriguez-Nunez.

Morrisette drove away. Rodriguez-Nunez crossed the
street to deliver the package to Poppy, but DEA agents
arrested Rodriguez-Nunez before he could. DEA agents took
Rodriguez-Nunez inside his residence, executed a search of
his house, and recovered the heroin package from his right,
rear pocket. Rodriguez-Nunez, through a Spanish interpreter,
immediately began cooperating. He told the DEA agents he
received the heroin from a man named Morrisette, which he
had yet to pay for, and that he was supposed to call when he
had the money.

At the DEA agents’ direction, Rodriguez-Nunez called
Morrisette at 6:20 p.m. and told him to come pick up the
money. A short while later, Morrisette and Mercado drove
up, this time in the maroon GMC Envoy. The DEA agents
arrested both Morrisette and Mercado.

Rodriguez-Nunez testified that although he saw
Mercado with Morrisette every time he saw Morrisette that

6
day, he never conversed with Mercado. When asked if
Mercado had anything to do with the drugs, Rodriguez-Nunez
stated, “I wasn’t dealing with that man. Whatever they did
among themselves, you know, Morrisette’s the one that
knows. It’s their business.” (J.A. 139.)

Agent Poules testified that after DEA agents arrested
Rodriguez-Nunez, Morrisette, and Mercado, he confiscated
their cellular phones. The phone he took from Rodriguez-
Nunez was registered to the same number Poppy used to call
Rodriguez-Nunez. The number for Morrisette’s phone was
consistent with the number Rodriguez-Nunez dialed to
request that Morrisette pick up the money. Agent Poules also
retrieved Mercado’s phone and subpoenaed the toll records
relating to the three phones.

The toll records revealed that the phones registered to
the parties exchanged several phone calls on August 14, 2008
before 11:00 a.m. Of course the toll records do not show that
the parties themselves made these calls. Relevant to this case,
however, is the fact Rodriguez-Nunez’s phone called
Morrisette’s phone two times that morning, both resulting in
short voice messages. Of particular note is the fact that
before Morrisette responded to Rodriguez-Nunez, three short
calls were placed between Morrisette’s phone and Mercado’s
phone. Only after those calls were made did Morrisette
respond to Rodriguez-Nunez’s call.3 There were no phone

3
Specifically, Rodriguez-Nunez’s phone called Morrisette’s
phone at 10:09 a.m., and left a four-second voice mail.
Subsequently, Morrisette’s phone placed a thirty-second call to
Mercado’s phone at 10:11 a.m. Rodriguez-Nunez’s phone
called Morrisette’s phone again at 10:27 a.m., leaving another
four-second voice mail.
Mercado’s phone put in a nineteen-second call to

7
calls between Mercado and Rodriguez-Nunez – only between
Mercado and Morrisette and Morrisette and Rodriguez-
Nunez.

The Government’s case also included three
stipulations: the package recovered contained heroin, the
distance between the parking lot and the school is less than
1000 feet, and law enforcement maintained the proper chain
of custody for documents recovered until the point the
documents were introduced into evidence.

Mercado moved for a Rule 29 judgment of acquittal
after the Government presented all of its evidence, save one
witness. The District Court listened to brief arguments on the
motion, but deferred the ruling until after the jury verdict.
The jury convicted Mercado on both counts.

After the jury verdict, the District Court asked counsel
to reargue the motion, focusing their Rule 29 arguments on
Mercado’s potential liability as an aider or abettor or via
constructive possession. It stated:

Morrisette’s phone at 10:31 a.m., and then an eighteen-second
call to Morrisette’s phone at 10:39 a.m. Immediately thereafter,
Morrisette’s phone initiated a call with Rodriguez-Nunez’s
phone that lasted two minutes. The last communication between
Mercado’s phone and Morrisette’s phone was initiated by
Mercado’s phone at 11:00 a.m. Mercado’s phone left an eight-
second voice mail on Morrisette’s phone.

8
 It’s no secret that I disagree with the jury verdict in this case.
I’m not saying that the defendant is not guilty. . . . I think
looking hard at the meaning of “reasonable doubt,” . . . if I
had been sitting as a juror, I would have voted for a verdict
of not guilty. But that’s not the test. My disagreement with
the jury verdict doesn’t carry the day for the Defense, and
yet I’m driven to this conclusion. By the Government’s
argument, I think the fact that the defendant was present
four times takes this case out of the rule that mere presence,
where the drugs are being delivered, and mere presence in
the car in which they’re being delivered, is not enough.
Mere presence once, yes. Mere presence four times, I say
no. That prevents me from saying that no rational trier of
the fact could find the defendant guilty beyond a reasonable
doubt.

(J.A. 268-69.) Thus, the District Court denied the motion for
judgment of acquittal.

II.

The District Court had subject matter jurisdiction over
this case pursuant to 18 U.S.C. § 3231, and we have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.

We apply a particularly deferential standard when
determining if a jury verdict rests on sufficient evidence,
because a reviewing court “‘must be ever vigilant . . . not to

9
usurp the role of the jury by weighing credibility and
assigning weight to the evidence.’” United States v. Boria,
592 F.3d 476, 480 (3d Cir. 2010) (quoting United States v.
Brodie, 403 F.3d 123, 133 (3d Cir. 2005)). Therefore, we
view the evidence in the light most favorable to the
prosecution and sustain the verdict unless it is clear that no
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. United States v.
Cunningham, 517 F.3d 175, 177 (3d Cir. 2008). Thus, an
insufficiency of the evidence claim places a heavy burden on
the appellant because we will only find the evidence
insufficient when the prosecution’s failure is clear. United
States v. Soto, 539 F.3d 191, 194 (3d Cir. 2008); Brodie, 403
F.3d at 133. The prosecution may satisfy its burden entirely
through circumstantial evidence. United States v. Bobb, 471
F.3d 491, 494 (3d Cir. 2006).4

III.

4
We exercise de novo review over a district court’s denial
of a Rule 29 motion, but are obliged to apply the same
deferential standard as the District Court. United States v.
Introcaso, 506 F.3d 260, 264 n.2 (3d Cir. 2007); Bobb, 471 F.3d
at 494. Because the District Court reserved judgment on the
Rule 29 motion near the end of the Government’s case-in-chief,
it was required to decide the motion on the basis of the evidence
presented when the ruling was reserved. Fed. R. Crim. P. 29(b).

10
 Mercado does not dispute that he had full knowledge
that Morrisette was engaging in the substantive crime of
possession and distribution of a controlled substance.5 He
claims, however, that the Government offered insufficient
evidence from which a reasonable juror could infer that he in
some way aided or facilitated in the crime. Instead, he
contends the evidence establishes he was merely a passive
spectator.

The relevant inquiry on appeal is whether any
reasonable juror could find that Mercado facilitated the drug
transaction between Morrisette and Rodriguez-Nunez.6 One

5
Mercado suggests, both in his briefs and at oral argument,
that evidence of his repeated presence during an on-going drug
transaction is insufficient to support an aiding and abetting
conviction when compared to our jurisprudence in a line of
cases dealing with knowledge. We have been reluctant to
uphold drug conspiracy convictions unless the Government
introduces evidence from which the jury could infer the
defendant knew the particular illegal objective of the conspiracy,
as opposed to knowing merely that the objective was illegal.
See Boria, 592 F.3d at 481-85 (discussing collective cases on
this issue). This precedent is inapposite here because there was
ample evidence, and Mercado does not dispute, that he had
knowledge that Morrisette possessed, and distributed, heroin.
6
Because the Government did not present any direct
evidence that Mercado possessed, controlled, or even touched
any heroin the jury had to believe Mercado aided and abetted

11
who aids and abets the possession, manufacture, or
distribution of a controlled substance in violation of 21 U.S.C.
§ 841(a)(1) is punishable as a principal. 18 U.S.C. § 2(a).
One is guilty of aiding and abetting if the government proves:
(1) that another committed a substantive offense; and (2) the
one charged with aiding and abetting knew of the commission
of the substantive offense and acted to facilitate it. United
States v. Cartwright, 359 F.3d 281, 287 (3d Cir. 2004).
Additionally, we require proof that the defendant had the
specific intent to facilitate the crime. United States v. Garth,
188 F.3d 99, 113 (3d Cir. 1999). One can aid or abet another
through use of words or actions to promote the success of the
illegal venture. United States v. Xavier, 2 F.3d 1281, 1288
(3d Cir. 1993).

Morrisette’s possession and distribution of heroin; or that
Mercado constructively possessed the heroin, in order to convict
him. See Cunningham, 517 F.3d at 178. We, however, address
only aiding and abetting liability in this opinion. (The parties
focused on aiding and abetting liability in their briefs.
Moreover, at oral argument, the Assistant United States
Attorney asserted that aiding and abetting liability was a
stronger theory in this case.)
Because the verdict must be upheld if a reasonable juror
could have found the essential elements of the crime under
either theory, and we find liability under the theory of aiding and
abetting, we need not address in the alternative constructive
possession liability. Id. at 177.

12
 We have emphasized that “facilitation” for aiding and
abetting purposes is “‘more than associat[ion] with
individuals involved in the criminal venture.’” Soto, 539 F.3d
at 194 (quoting United States v. Dixon, 658 F.2d 181, 189 (3d
Cir. 1981)). Rather, the defendant must “participate in” the
criminal enterprise. Id. Neither mere presence at the scene of
the crime nor mere knowledge of the crime is sufficient to
support a conviction. Id. Thus, to convict for aiding and
abetting, the Government must prove the defendant associated
himself with the venture and sought by his actions to make it
succeed. United States v. Powell, 113 F.3d 464, 467 (3d Cir.
1997). The Government need only show some affirmative
participation which, at least, encourages the principal offender
to commit the offense. United States v. Frorup, 963 F.2d 41,
43 (3d Cir. 1992). An aiding and abetting conviction can be
supported solely with circumstantial evidence as long as there
is a “‘logical and convincing connection between the facts
established and the conclusion inferred.’” Soto, 539 F.3d at
194 (quoting Cartwright, 359 F.3d at 287).

The evidence produced at trial revealed that Mercado
accompanied Morrisette as a passenger in his two cars on four
occasions during an ongoing drug transaction where
Morrisette discussed, delivered, and attempted to receive
payment for more than 100 grams of heroin. Additionally,
phones registered to Morrisette, Rodriguez-Nunez, and
Mercado exchanged calls prior to 11:00 a.m. on August 14,
2008, and Morrisette put Rodriguez-Nunez on the phone with
the “owner” of the heroin, who was in Morrisette’s immediate
proximity.

13
 There is no direct evidence that Mercado aided or
encouraged Morrisette during the ongoing drug transaction.
The Government, however, maintains that a reasonable juror
could infer from the circumstantial evidence of Mercado’s
repeated presence in Morrisette’s car, and the pattern of the
phone calls, that Mercado aided and abetted Morrisette. Id.
Specifically, the Government argues that, by switching cars
with Morrisette on three occasions, a reasonable juror could
infer Mercado affirmatively acted to help Morrisette frustrate
surveillance of the drug transaction. Additionally, because
Rodriguez-Nunez testified he received the heroin after
reaching into the passenger-side window, a reasonable juror
could infer that Mercado handed him the heroin. Finally, the
Government asserts that a reasonable juror could infer from
the pattern of the calls between Rodriguez-Nunez, Morrisette,
and Mercado that Rodriguez-Nunez called Morrisette to
“announce that he was available to do the deal; [Morrisette]
immediately called Mercado to pass this information along
and arrange to acquire the drugs; Mercado made arrangements
and then informed [Morrisette]; and, finally, [Morrisette]
called Rodriguez-Nunez to tell him the deal was on.” (Gov’t
Br. 29.) At argument, the Government alternatively proposed
a reasonable juror could infer Mercado served as Morrisette’s
“muscle,” and accompanied him to ensure the drug sale went
smoothly.

Mercado claims there is insufficient evidence to
support his conviction by arguing that a reasonable juror is
prohibited from inferring anything from the telephone calls
under United States v. Thomas, 114 F.3d 403 (3d Cir. 1997),
and that evidence of Mercado sitting in Morrisette’s car

14
merely establishes his presence at the scene of the crime, not
his participation in the crime. Soto, 539 F.3d at 194. We
address each argument in turn.

In Thomas, we reversed a jury verdict and judgment
convicting Thomas of conspiring to possess cocaine with an
intent to distribute. Thomas, 114 F.3d at 404. We determined
the prosecution failed to prove that Thomas, who in exchange
for $500 went into a hotel room to confirm a suitcase was
inside, knew the suitcase contained controlled substances.7
Id. at 404-05. The government offered evidence of calls
between a co-conspirator’s phone and Thomas’s home phone,
pager, and cellular phone, to establish that Thomas knew the
suitcase contained drugs. Id. at 405-06. There was no
evidence of the calls’ contents. We noted the Government’s
case depended on the jury inferring that the caller informed
Thomas that there was cocaine in the suitcase. Id. at 406. We
determined it was “speculative to conclude that Thomas knew
that drugs were involved,” and that we could not uphold a
jury verdict based on speculation alone. Id.

Contrary to Mercado’s assertions, Thomas does not
broadly proscribe jurors from making inferences about phone
calls when there is no evidence of their contents. See id. It

7
To support a conspiracy conviction, the Government must
establish, among other elements, that the alleged conspirator
“‘entered into an agreement and knew that the agreement had
the specific unlawful purpose charged in the indictment.’”
Thomas, 114 F.3d at 405 (quoting Wexler, 838 F.2d at 91).

15
more narrowly prohibits jurors from inferring that a defendant
gained knowledge of the subject of an illegal conspiracy
based the existence of a call alone. Id. Because Rodriguez-
Nunez’s testimony provides ample evidence Mercado had
knowledge of the ongoing heroin transaction, Thomas is
distinguishable.

Mercado’s claim that evidence of his repeated presence
only establishes that he was “merely present” as a passive
spectator is unpersuasive. This argument implicates two
cases where we reached contrary results. In United States v.
Jenkins, we determined evidence that (1) a defendant was
sitting on a couch in his friend’s apartment, (2) in boxer
shorts, (3) near to a table supporting three bags of cocaine,
established that the defendant was “merely present” at the
scene of the crime and was insufficient to support a
conviction for aiding and abetting. 90 F.3d 814, 816, 821 (3d
Cir. 1996). We found evidence of “[h]is close proximity to
the drugs and firearms, state of dress, and acquaintance with
Stallings, who committed the principal offense,” was
insufficient because it did not suggest the defendant
associated himself with, or participated in, the drug
distribution scheme. Id. at 821.

In contrast, in United States v. Leon, we affirmed an
aiding and abetting conviction where the evidence
established: (1) law enforcement spotted the defendant at a
rest stop in the vicinity of two co-defendants (who had U-
Haul trucks and a tractor trailer under their control) the day
before a large quantity of drugs were unloaded; and (2) the
following day the defendant was found lying face down on a

16
tugboat after police ordered individuals to freeze a short
distance from where a large quantity of drugs had been seen
in a “secluded area” on a trailer – the same trailer that was
seen at the rest stop the night before. 739 F.2d 885, 892 (3d
Cir. 1984). We acknowledged that the defendant’s proximity
to the location where a large quantity of drugs was unloaded
merely established his presence near the drugs, and might be
insufficient evidence from which to infer his participation in
the drug distribution scheme. Id. at 892-93. We concluded,
however, that a reasonable juror could infer from the
defendant’s proximity to where the drugs were unloaded, and
his presence near the co-defendants the previous night, “that
[the defendant] was not present for some innocuous reason,
but was involved in the conspiracy.” Id. at 893.

Unlike in Jenkins, Mercado was not present during the
drug transaction on one occasion, but repeatedly. Evidence of
repeated presence suggests Mercado was not present by
accident, but rather participated in and facilitated the drug
possession. See Leon, 739 F.2d at 893 (concluding a
reasonable juror could find a defendant’s presence was not
innocuous based on evidence that he was present on two
occasions); see also United States v. Paone, 758 F.2d 774,
776 (1st Cir. 1985) (concluding a jury could reasonably infer
a defendant aided and abetted based on his “repeated presence
at important junctures of th[e] drug deal”). This is
particularly true because Morrisette and Mercado switched
cars on three occasions during the day; thus, Mercado got out
of one of Morrisette’s cars and chose to get into another car
on three separate instances to continue accompanying
Morrisette at important junctures during a prolonged drug

17
transaction. Evidence of Mercado’s presence considered in
conjunction with the phone call patterns, which establish
Mercado’s association with Morrisette, is more evidence than
we had before us when we affirmed the jury’s conviction in
Leon. See Leon, 739 F.2d at 892.

This is admittedly a close case. We are constrained by
a deferential burden that requires us to sustain the jury’s
verdict unless the prosecution’s failure is clear. Brodie, 403
F.3d at 133. Although we realize other inferences are
possible from the evidence offered, we believe that if the
evidence is viewed in the light most favorable to the
Government, a reasonable juror could infer that Mercado, at a
minimum, encouraged Morrisette to possess and distribute
heroin based on his repeated presence in Morrisette’s cars and
their phone communications. Frorup, 963 F.2d at 43; see
United States v. Cooper, 567 F.2d 252, 254 (3d Cir. 1977) (
“The evidence does not need to be inconsistent with every
conclusion save that of guilt if it does establish a case from
which the jury can find the defendant guilty beyond a
reasonable doubt.”) (internal quotation marks and citation
omitted). Therefore, we will affirm the judgement. Soto, 539
F.3d at 194.

Mercado predicts that affirming his conviction will be
tantamount to imposing criminal liability on people who
associate with criminals. We disagree. A person cannot be
considered an aider and abettor if he or she is present, even
under extremely suspicious circumstances, near drugs on one
occasion. Id.; Jenkins, 90 F.3d at 821. Rather, we will only
affirm a jury’s conviction for aiding and abetting liability if

18
evidence of a defendant’s presence, taken in consideration
with the totality of the evidence, supports an inference that the
defendant acted in a way to progress the crime. Soto, 539
F.3d at 194. If such an inference could not be drawn, drug
suppliers could regularly monitor their drug distributors and
avoid prosecution simply by not handling the product or
talking to the buyers.

We hold that a defendant’s presence on multiple
occasions during critical moments of drug transactions may,
when considered in light of the totality of the circumstances,
support an inference of the defendant’s participation in the
criminal activity. Such an inference is appropriate in this
case. See also United States v. Lema, 909 F.2d 561, 570 (1st
Cir. 1990) (affirming a jury conviction for aiding and abetting
based on, inter alia, evidence that a defendant was present at
two separate drug transactions); Paone, 758 F.2d at 776.

VI.

We therefore hold there was sufficient evidence for a
jury to find Mercado guilty of aiding and abetting the
possession with intent to distribute heroin beyond a
reasonable doubt.

19