United States v. Wilson

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-3338
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Lyle Wilson, *
*
Appellant. *
___________

Submitted: June 18, 2010
Filed: September 1, 2010
___________

Before WOLLMAN, EBEL 1 and COLLOTON, Circuit Judges.
___________

EBEL, Circuit Judge.

In this direct criminal appeal, Appellant Lyle Wilson challenges his
three convictions for conspiring to distribute marijuana and cocaine (counts
one and two), and for possessing cocaine on June 9, 2007, with the intent to
distribute it (count three). Wilson raises two arguments on appeal: 1) the
district court abused its discretion in allowing the Government, pursuant to
Fed. R. Evid. 404(b), to present evidence that Wilson shot at one of the

1
The Honorable David M. Ebel, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
conspiracy’s drug suppliers, and 2) there was insufficient evidence to support
Wilson’s conviction for possessing cocaine on June 9, 2007, with the intent
to distribute it. Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM
Wilson’s convictions on counts one and two, but VACATE his conviction on
count three.

I. BACKGROUND

The evidence at trial established the following: In 2001, upon graduating
from high school, Lawrence Vigil and two friends, one of whom was
Dominique (“Dom”) Saucedo, began selling marijuana, and later cocaine, on
the Pine Ridge Indian Reservation. From the outset, Vigil was the
acknowledged leader of the operation. Vigil obtained drugs primarily from
Manual Garcia, who lived in Denver. As the business grew, Vigil recruited
a number of other friends and family members to help sell the drugs. One of
the people to join Vigil’s drug-trafficking operation was his mother, Alvina
White Bull, also known as “Sister.” Appellant Lyle Wilson was White Bull’s
boyfriend; he lived with her in her home. White Bull and Wilson introduced
Vigil to Carlos Torres-Ortiz, who became another drug supplier for Vigil’s
conspiracy.

Vigil’s organization sold drugs at several places on the Reservation,
including the homes of White Bull and Saucedo, and out of Vigil’s vehicles,
which included a maroon Mitsubishi Gallant. Vigil would run his
drug-trafficking operation from wherever he was living at the time, including
out of his mother’s (and Wilson’s) home.

In 2008, the United States indicted eight defendants, including Vigil,
Dom Saucedo, White Bull and Wilson, on charges stemming from the Vigil
organization’s drug-trafficking activities. At Wilson’s trial, his defense was

2
that, while he lived for several years at White Bull’s home, where significant
drug-trafficking activity was occurring, he himself never joined the
conspiracy. The Government’s evidence, however, established instead that
Wilson actively participated in Vigil’s drug-trafficking operation. There was
testimony, for example, that Wilson “watched the door” or was the “door man”
at White Bull’s home (Tr. v. II at 301-02), which meant he answered the door,
asked customers what drugs they needed and either directed them to someone
in the back of the house from whom the customer could purchase the drugs,
or Wilson himself would go get the drugs from the back of the house and bring
them to the customer waiting near the front door. Wilson also packaged drugs
for the conspiracy and sold them out of White Bull’s house. In addition,
Wilson made several “drug runs” for Vigil to Denver and Nebraska to pick up
more drugs for Vigil’s operation.

Based upon the significant evidence linking Wilson to Vigil’s
drug-trafficking activities, the jury convicted Wilson of all three offenses
charged against him: 1) conspiracy to distribute five kilograms of cocaine, and
2) conspiracy to distribute 100 kilograms of marijuana, in violation of 21
U.S.C. §§ 841, 846; and 3) possession of cocaine on June 9, 2007, with the
intent to distribute it, in violation of 21 U.S.C. § 841. 2 The district court
sentenced Wilson to 240 months in prison on each of the three counts, the

2
21 U.S.C. § 846 provides that “[a]ny person who attempts or conspires
to commit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.” And 21 U.S.C. § 841(a)(1) makes it
“unlawful for any person knowingly or intentionally . . . to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance.” Both cocaine and marijuana are controlled
substances. See 21 U.S.C. § 812(c) Schedule I(c)(10) (marijuana), Schedule
II(a)(4) (cocaine).

3
three sentences to run concurrently. On appeal, Wilson challenges all three
convictions.

II. DISCUSSION

A. Admission, under Fed. R. Evid. 404(b), of evidence that Wilson
shot at Torres-Ortiz

Over Wilson’s objection, the district court allowed the Government to
present evidence that Wilson once shot at Carlos Torres-Ortiz over a disputed
drug debt. According to Dom Saucedo’s testimony, Wilson told him that
Wilson had shot at “some Mexican guy” - Torres-Ortiz. (Tr. v. I at 121-22.)
Saucedo indicated that this was because Torres-Ortiz had “fronted” Wilson
some cocaine and Wilson never paid him for it. Wilson told Saucedo that,
when Torres-Ortiz showed up at Wilson’s place looking for his money or the
cocaine, Wilson feared Torres-Ortiz was going to kill him, so Wilson came out
of his house shooting at Torres-Ortiz. Torres-Ortiz ran away, unharmed.

Later in the trial, defense counsel elicited testimony from another
co-conspirator, Cleveland Robideaux, that Wilson had also told him that he
had once shot at someone over a bad drug deal. The Government then brought
out on redirect examination that this was the same incident, involving Wilson
and Torres-Ortiz, to which Dom Saucedo had testified. The defense raised the
matter again briefly during recross-examination of Robideaux. 3

3
When the district court ruled, prior to trial, that the Government could
present testimony that Wilson shot at Torres-Ortiz, the court also granted
defense counsel a “standing objection” to the admission of this evidence. The
reason defense counsel raised the issue with Robideaux was to impeach his
testimony against Wilson at trial by pointing out that Robideaux, when he
initially cooperated with police, failed to mention that he knew about Wilson’s
(continued...)

4
 The district court permitted the Government to present this testimony
about the shooting under Fed. R. Evid. 404(b), as evidence of other bad acts
tending to establish Wilson’s knowledge of, and intent to participate in,
Vigil’s conspiracy. 4 The court, therefore, instructed jurors that they could
only consider evidence that Wilson shot at Torres-Ortiz for that limited
purpose.

1. Admissibility under Rule 404(b) generally

Federal Rule of Evidence 404(b) provides in pertinent part that
“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . .” This “rule is one of inclusion, such that evidence
offered for permissible purposes is presumed admissible absent a contrary
determination.” United States v. Littlewind, 595 F.3d 876, 881 (8th Cir. 2010)
(quotation omitted).

The district court has broad discretion to admit evidence under Rule
404(b). See Littlewind, 595 F.3d at 881. Therefore, this court reviews the

3
(...continued)
involvement in the shooting incident.
4
Prior to trial, the district court ruled that it would allow this evidence
as part of the res gestae of the charged offenses, and alternatively as
admissible under Rule 404(b). At the conclusion of the trial, however, the
court ruled that the Government had failed to present any evidence linking this
shooting to the charged Vigil conspiracy. The trial court concluded, therefore,
that the testimony about the shooting was admissible, but only under Rule
404(b) as evidence of other bad acts tending to establish Wilson’s knowledge
of, and intent to participate in, Vigil’s conspiracy.

5
district court’s decision to admit Rule 404(b) evidence for an abuse of
discretion. See United States v. Washington, 596 F.3d 926, 945 (8th Cir.
2010), petition for cert. filed, (U.S. July 21, 2010) (No. 10-5695). We will
reverse “only when such evidence clearly had no bearing on the case and was
introduced solely to prove the defendant’s propensity to commit criminal
acts.” Littlewind, 595 F.3d at 881 (quotation omitted).

2. The district court did not abuse its discretion in
admitting evidence that Wilson shot at Torres-Ortiz

In determining whether evidence is admissible under Rule 404(b), we
ask whether the evidence is (1) “relevant to a material issue”; (2) “similar in
kind and not overly remote in time to the crime charged”; (3) “supported by
sufficient evidence”; and (4) “its potential prejudice does not substantially
outweigh its probative value.” United States v. Donnell, 596 F.3d 913, 921
(8th Cir. 2010) (quotations omitted), petitions for cert. filed, (U.S. July 14 &
15, 2010) (Nos. 10-5495, 10-5533).

(a) Relevance to a material issue

Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Fed. R. Evid. 401.
The evidence that Wilson once shot at Torres-Ortiz is clearly relevant to the
critical issue disputed at trial in this case, whether Wilson knew of, and
actively participated in, Vigil’s drug-trafficking conspiracy. See generally
United States v. Thomas, 593 F.3d 752, 758 (8th Cir. 2010) (noting generally
that knowledge and intent are material issues in cases involving distribution
of narcotics under 21 U.S.C. § 841), petition for cert. filed, (U.S. May 20,
2010) (No. 10-5218). Evidence that Wilson shot at Torres-Ortiz when he
came looking for the cocaine he had fronted Wilson or for the money Wilson

6
owed Torres-Ortiz for that cocaine tends to establish that Wilson knew that
Torres-Ortiz was a drug dealer, even though the particular cocaine involved
in that transaction was apparently not destined for use in Vigil’s drug
business. Then the fact that Wilson knew Torres-Ortiz was a drug dealer tends
to make it more likely that when Wilson introduced Torres-Ortiz to Vigil he
was participating in Vigil’s drug conspiracy by introducing Vigil to another
possible supplier of drugs for Vigil’s drug activities. See United States v.
Turner, 583 F.3d 1062, 1066 (8th Cir. 2009) (holding evidence of prior drug
dealings is relevant to the issue of whether the defendant had the requisite
intent to enter into a drug-trafficking conspiracy), cert. denied, 130 S. Ct.
1928 (2010).

(b) Similar in kind and not overly remote from charged
offenses

Notwithstanding Wilson’s argument to the contrary, this shooting was
similar to the drug-trafficking charged in this case because it stemmed from
a dispute over a drug debt. More precisely, it stemmed from Torres-Ortiz
fronting Wilson cocaine, which is the same type of conduct with which Wilson
was involved as part of the Vigil conspiracy. And it was not remote in time
because it apparently occurred within the charged dates of the conspiracy.

(c) Sufficiency of the evidence that Wilson shot at
Torres-Ortiz

To be admissible under Rule 404(b), the Government had to prove by a
preponderance of the evidence that Wilson shot at Torres-Ortiz. See
Littlewind, 595 F.3d at 881. Here, the Government offered sufficient evidence
from which the jury could have found, by a preponderance of the evidence,
that Wilson shot at Torres-Ortiz over a bad drug debt, i.e. the testimony of
co-conspirators Dom Saucedo and Cleveland Robideaux. That evidence was

7
sufficient. See Turner, 583 F.3d at 1066 (holding testimony of two witnesses
was a sufficient evidentiary basis from which the jury could find that the
defendant’s other bad act occurred). On appeal, Wilson does not argue to the
contrary.

(d) Balancing potential prejudice to Wilson with the
probative value of the evidence of the shooting

As previously discussed, evidence that Wilson shot at Torres-Ortiz over
a bad drug deal was probative of the critical issue disputed at trial, whether
Wilson knew of, and actively participated in, Vigil’s drug trafficking. And the
probative value of this shooting evidence outweighed any potential prejudice
to Wilson. Any such prejudice was minimized because the testimony about
the shooting was very brief. And the full extent of that testimony was that,
after Wilson shot at Torres-Ortiz, Torres-Ortiz ran away unharmed. Further,
the prosecutor did not mention the shooting during her closing argument.
(Defense counsel did make a fleeting reference to this evidence in his closing
remarks.) Finally, and importantly, the district court limited the prejudicial
impact of this evidence on Wilson’s defense by instructing jurors to consider
it only in deciding whether Wilson knew of, and actively participated in,
Vigil’s drug-trafficking operations. See Donnell, 596 F.3d at 921; Littlewind,
595 F.3d at 881. For these reasons, the probative value of the testimony that
Wilson once shot at Torres-Ortiz outweighed any unduly prejudicial impact
that this evidence might have had on Wilson’s defense.

In arguing to the contrary, Wilson relies on two cases that are
inapposite. First, Wilson asserts that his case is similar to United States v.
Falls, 117 F.3d 1075 (8th Cir. 1997). There, the Government charged Lamont
Falls with being the leader of a drug distribution operation in Iowa and of
supplying that operation with large amounts of cocaine. See id. at 1076. As
proof of those offenses, the Government presented the testimony of Trevor

8
Woods, who was not connected in any way to the Iowa operation, but who
testified that during this same time period, he bought ten kilograms of cocaine
from Falls in California. See id. “Woods also testified that Falls regularly
carried a gun and that on one occasion Falls sold Woods a gun.” Id. at 1077.
This court held that the district court had abused its discretion in admitting
Wood’s testimony under Rule 404(b) because it went only to Falls’ propensity
to commit drug crimes similar to those charged in the Iowa prosecution. See
id. This court further determined, however, that this error was harmless. See
id. at 1077-78.

Unlike in Falls, here the fact that Wilson knew that Torres-Ortiz was a
drug dealer from other dealings between the two was relevant to the question
of whether Wilson knew of, and intended to join and to further, Vigil’s drug-
trafficking operation. Wilson did that in part by introducing Vigil to
Torres-Ortiz as another possible drug supplier for the conspiracy charged in
this prosecution. Thus, in this case, unlike in Falls, there is a connection
between Wilson’s shooting at Torres-Ortiz over a bad drug deal and Wilson’s
participating in Vigil’s operation. Moreover, the evidence challenged here
was very brief and accompanied by a limiting instruction, unlike in Falls
where the challenged testimony was “lengthy” and the court did not give any
limiting instruction, see id. at 1077.

That connection, between Wilson’s shooting at Torres-Ortiz over a bad
drug deal and Wilson’s participating in Vigil’s operation, also distinguishes
this case from the second case on which Wilson relies, United States v.
McDermott, 64 F.3d 1448 (8th Cir. 1995). In McDermott, the United States
charged McDermott with being engaged in a continuing criminal enterprise
and with interstate travel in aid of unlawful activity. See id. at 1450. This
court determined that the district court had erred in that case by admitting
testimony that when, during an argument, an acquaintance called McDermott
a pothead and a drug dealer, McDermott told her that if she ever told anyone

9
that, she would be hurt or even killed because McDermott had connections
with people bigger than himself. See id. at 1450-51, 1456. McDermott held
that the district court erred in admitting that evidence because, “whatever
probative value the testimony had was substantially outweighed by its
potential for unfair prejudice.” Id. at 1457. However, that error was not the
basis upon which a new trial was ordered in that case. See id. at 1450, 1454.
Again here, evidence that Wilson shot at Torres-Ortiz when he came to collect
on a bad drug debt was probative of the critical issue disputed at trial. And
here, unlike in McDermott, any potential prejudiced was minimized by the
manner in which the Government presented this evidence and by the district
court’s limiting instruction. Thus, in our case, the probative value of the
testimony was not substantially outweighed by its potential for unfair
prejudice.

3. Conclusion as to the district court’s admitting evidence of
the shooting under Rule 404(b)

After weighing the four relevant factors, discussed above, we conclude
that the district court did not abuse its discretion in admitting evidence that
Wilson once shot at Torres-Ortiz over a bad drug debt. 5

B. Sufficiency of the evidence supporting Wilson’s conviction for
possessing cocaine on June 9, 2007, with the intent to distribute it

In June 2007, Wilson was living with White Bull at her house, as was
Vigil, along with his girlfriend Brandi Saucedo and their two daughters.
Tribal police arrested Wilson and White Bull on the night of June 8, 2007.

5
Alternatively, if it was error to admit this evidence, which we conclude
it was not, any such error would surely be harmless in light of the significant
amount of evidence linking Wilson to the Vigil drug-trafficking conspiracy.

10
Officers then searched White Bull’s home in the early morning of June 9.
They found no drugs in the house, but they did find drug paraphernalia
indicating recent drug use.

At the same time, police also searched several vehicles parked outside
White Bull’s home, including a maroon Mitsubishi Gallant registered to Vigil
and a Frieda White Bull. 6 In that car, which was locked, officers found plastic
bags of marijuana in a knapsack, several plastic bags containing cocaine
(approximately one ounce) and marijuana in the unlocked glove compartment,
approximately $22,150 in cash in an unlocked metal case or box, and more
cocaine (approximately seven ounces) in a locked safe.

Based upon the cocaine found in Vigil’s locked car on June 9, 2007, the
United States charged Wilson, as well as White Bull and Vigil, with
possession of cocaine on June 9, 2007, with the intent to distribute it. The
jury convicted Wilson of this offense. On appeal, he argues that there was
insufficient evidence to support his conviction for this offense. 7 We agree.

6
There were a total of four vehicles parked at White Bull’s home that
night: Vigil’s maroon Mitsubishi Gallant, Vigil’s grandfather’s red truck,
which was registered to Frieda White Bull but used by Vigil, a green
Chevrolet Tahoe that “was missing parts,” and a recreational vehicle registered
to a couple named Shrader.
7
The fact that the district court imposed concurrent sentences on each of
Wilson’s three convictions does not preclude him from challenging the
sufficiency of the evidence necessary to support one of those three
convictions. See United States v. McKnight, 17 F.3d 1139, 1140-41, 1145
(8th Cir. 1994) (reversing one of several convictions because there was
insufficient evidence to support that conviction, vacating the special
assessment imposed for the vacated conviction, but not remanding for
resentencing because the court had imposed concurrent sentences on each
count of conviction).

11
 1. Standard of review

We review “the sufficiency of evidence supporting a conviction de novo,
viewing all evidence in the light most favorable to the verdict.” United States
v. Wilder, 597 F.3d 936, 943 (8th Cir. 2010), petition for cert. filed, (U.S.
June 4, 2010) (No. 09-11262). Further, the appellate court gives “the
government the benefit of all reasonable inferences from that evidence.”
United States v. Parker, 587 F.3d 871, 880 (8th Cir. 2009) (quotation omitted).
Therefore, even “[i]f the evidence adduced at trial rationally supports
conflicting hypotheses, we [will] refuse to disturb the conviction.” Thomas,
593 F.3d at 760. “We will overturn a verdict only if no reasonable jury could
have found the defendant guilty beyond a reasonable doubt.” Wilder, 597
F.3d at 943.

2. There was no evidence from which a reasonable jury could
have found Wilson guilty of possessing the cocaine locked in
Vigil’s car on June 9, 2007

The United States, in count three of the superseding indictment, charged
Wilson with “knowingly and intentionally possess[ing] with the intent to
distribute, cocaine” “[o]n or about June 9, 2007.” (Am. R. at 2 (emphasis
added).) In order to convict Wilson of that offense, the Government had to
prove, and the jury had to find beyond a reasonable doubt that (1) Wilson
knowingly possessed cocaine on June 9, 2007, and (2) intended to distribute
it. See Thomas, 593 F.3d at 759. 8

8
Although the indictment and jury instructions read “on or about June
9, 2007” (Am. R. at 2, 49), the evidence at trial on this count was precisely
limited to the particular cocaine that was found in Vigil’s Mitsubishi on June
9, 2007. There was no evidence that this particular cocaine was in Vigil’s
Mitsubishi on any other date or time. Because the possession charge focused
(continued...)

12
 At the conclusion of the Government’s case, the district court denied
Wilson’s motion for judgment of acquittal, concluding there was evidence
from which a jury could convict Wilson on this count, under either a
constructive possession or an aiding-and-abetting theory. The court then
instructed jurors on those theories and, during closing arguments, the
Government relied on both theories. 9

a. Constructive possession

“For constructive possession, a defendant must have knowledge of an
object, the ability to control it, and the intent to do so.” Parker, 587 F.3d at
881 (quotation omitted); see also United States v. McClellon, 578 F.3d 846,
854 (8th Cir. 2009) (“Knowledge of presence, combined with control over the
thing is constructive possession”) (quotations, alteration omitted), cert. denied,
130 S. Ct. 1106 (2010). Constructive possession can be either joint or
exclusive possession. See Thomas, 593 F.3d at 760.

i. There was no evidence that Wilson knew there was
cocaine in Vigil’s Mitsubishi on June 9, 2007

The Government charged Wilson with possessing cocaine on or about
June 9, 2007. Although the Government presented evidence that officers

8
(...continued)
on particular cocaine found at a particular location on a particular date, this
count is properly restricted to the cocaine found on June 9, 2007.
9
Although the United States did not explicitly charge Wilson with aiding
and abetting the possession of cocaine, with the intent to distribute, Wilson
concedes on appeal that he could still be convicted under that theory. See
United States v. Starr, 533 F.3d 985, 997 (8th Cir. 2008).

13
found cocaine in Vigil’s car on that date, there was no evidence that Wilson
knew that the cocaine was in Vigil’s car on that night.

The Government points to evidence establishing that Wilson participated
in Vigil’s drug trafficking generally. Similarly, there was evidence that most
of the members of Vigil’s operation knew generally that he transported drugs
in, and sold drugs out of, his Mitsubishi Gallant. Vigil had even given Wilson
and White Bull this car on one occasion so they could make a “drug run” for
Vigil’s operation. But the Government did not present any evidence
indicating that Wilson knew that there was cocaine in the Mitsubishi on June
9, 2007.

On appeal, the Government appears to suggest that Wilson must have
known that there was cocaine in Vigil’s car that night because officers found
evidence that cocaine had been ingested recently inside White Bull’s house.
Without more, however, that evidence does not provide an evidentiary basis
for a jury to find beyond a reasonable doubt that Wilson knew there was
cocaine in Vigil’s car that night. There was no evidence that the ingested
cocaine had recently, or ever, come from this Mitsubishi.

Knowledge can be inferred from the surrounding circumstances. For
instance, “[a] defendant’s control and dominion over a vehicle can indicate
knowledge” of its contents. Parker, 587 F.3d at 881. But the Government
points to no evidence indicating that Wilson had dominion and control over
Vigil’s Mitsubishi that night. It was locked and there was no evidence that
Wilson had a key. 10 See Thomas, 593 F.3d at 759-60 (noting that a defendant

10
The Government points to the fact that officers that same night found
marijuana in Vigil’s grandfather’s unlocked pickup truck. But the fact that
Wilson might have been able to access that marijuana does not prove the
charged offense of possessing cocaine found in Vigil’s locked car.

14
with a key to a vehicle has constructive possession of the contents of the
vehicle). Moreover, seven of the eight ounces of cocaine found in Vigil’s car
was further locked in a safe. And there was no evidence that Wilson could
have unlocked the safe, either. As is pointed out in the next section of this
opinion, there was simply no evidence that Wilson had such control over
Vigil’s Mitsubishi on July 9, 2007, such that it could be inferred that Wilson
would have known of the existence of cocaine in that vehicle on that date.

There was, then, no evidence from which a reasonable jury could have
found that Wilson knew, on June 9, 2007, that there was cocaine in Vigil’s
car.

ii. Nor was there any evidence that, had he known of
the cocaine in Vigil’s car, Wilson had the ability to
control it on June 9, 2007

“If knowledge of [the] presence [of contraband] exists, then control is
established by proof the person has dominion over the premises in which the
contraband is concealed.” McClellon, 578 F.3d at 854 (quotation omitted).
Even if we could say that there was evidence from which a reasonable jury
could have inferred that Wilson knew of the cocaine in Vigil’s car on June 9,
2007 (which we cannot), there was no evidence that Wilson had the ability to
control that cocaine on that night. The car was locked and there was no
evidence suggesting Wilson had a key or otherwise had access to the inside of
the vehicle. See Thomas, 593 F.3d at 759-60. Nor was there any evidence
suggesting that Wilson could have opened the safe in the car, where most of
the cocaine was found, had he been able to gain access to the inside of the
vehicle.

There was also no evidence that Wilson generally had access to Vigil’s
car. As previously mentioned, Vigil sent Wilson and White Bull, in Vigil’s

15
Mitsubishi, to Nebraska on one occasion to get more drugs for Vigil’s
operation. There was no evidence, however, that Vigil ever again lent Wilson
the Mitsubishi. To the contrary, on several occasions, Wilson had to borrow
another person’s car to make a drug run for Vigil.

More generally, there was evidence presented at trial that Vigil did not
trust Wilson or White Bull completely, in part because they would on occasion
use up the drugs that Vigil would front them to sell. Therefore, Vigil would
ordinarily leave Wilson and White Bull with a limited amount of drugs to sell.
When they had sold that amount, they would have to contact Vigil to get more.
Against this testimony, the Government points to no evidence that suggests
instead that Wilson had unrestricted access to Vigil’s stash of drugs.

Therefore, even if we concluded that there was evidence from which a
jury could find that Wilson knew there was cocaine in Vigil’s Mitsubishi on
June 9, 2007, which we do not, there was no evidence from which the jury
could have further found, beyond a reasonable doubt, that Wilson had the
ability to control that cocaine on that night.

iii. There was no evidence that Wilson had the intent to
control the cocaine found in Vigil’s car on June 9,
2007

Because there was no evidence that Wilson knew about the cocaine
police found in Vigil’s car on July 9, 2007, and because there was no evidence
that he had any ability to control that cocaine on that night, it is not surprising
that there also was no evidence that Wilson had any intention of controlling
the cocaine in Vigil’s car on that date.

16
 iv. Conclusion as to constructive possession

For the foregoing reasons, therefore, we conclude that there was
insufficient evidence from which a reasonable jury could have found, beyond
a reasonable doubt, that Wilson had constructive possession of the cocaine
officers found in Vigil’s car on June 9, 2007.

b. Aiding and abetting Vigil’s possession

To establish, alternatively, that Wilson aided and abetted Vigil’s
possession of this cocaine, the Government had to prove, and the jury had to
find beyond a reasonable doubt, that Wilson (1) “associated himself with the
unlawful venture”; (2) “participated in it as something he wished to bring
about,” and (3) “sought by his actions to make it succeed.” United States v.
Lewis, 593 F.3d 765, 769 (8th Cir.), cert denied, 130 S. Ct. 3375 (2010). The
aider and abettor must share the criminal intent of the party he is aiding. See
United States v. Santana, 524 F.3d 851, 855 (8th Cir. 2008). “[I]n an
aiding-and-abetting case,” however, “the government is not required to prove
that the defendant possessed the controlled substance.” Id. at 854.
Nevertheless, “[m]ere association between a principal and the defendant is not
sufficient, nor is mere presence at the scene and knowledge that a crime was
to be committed.” Id. at 853.

The Government is unable to point to any evidence presented at trial
from which a reasonable jury could have found beyond a reasonable doubt that
Wilson aided and abetted Vigil’s possession of the cocaine found in Vigil’s
car on June 9, 2007. As previously explained, there was no evidence that
Wilson knew that Vigil had cocaine in his car on June 9, 2007, let alone that
Wilson associated himself with Vigil’s unlawful endeavor of possessing that
cocaine that night with the intent to distribute it. Thus, there was also no
evidence that Wilson participated in Vigil’s unlawful possession of that

17
cocaine, or that Wilson took action to make Vigil’s unlawful possession
succeed.

3. Relief

For the foregoing reasons, there was no evidence from which a
reasonable jury could convict Wilson of possessing the cocaine found in
Vigil’s car on June 9, 2007, whether that charge was based upon a theory of
Wilson’s constructive possession or his aiding and abetting Vigil’s possession
of that cocaine, with the intent to distribute it. Wilson, therefore, is entitled
to the vacatur of that conviction and the sentence imposed for it. See United
States v. Hayes, 574 F.3d 460, 484 (8th Cir. 2009). Wilson does not seek
resentencing as further relief, and we conclude that resentencing in this case
is, in any event, unnecessary. Although the advisory sentencing guideline
range for Wilson’s convictions was 360 months to life in prison, the district
court imposed a below-guideline sentence of 240 months, which corresponded
with the mandatory minimum twenty-year sentence Wilson must serve for his
conviction on the first conspiracy count, in light of Wilson’s prior conviction
for a felony drug offense. 11 See 21 U.S.C. § 841(b)(1)(A). In light of that,

11
Wilson’s advisory guideline range was 360 months to life because he
qualified as a career offender under U.S.S.G. § 4B1.1. That increased his
total offense level from 34 to 37, and increased his criminal history category
from IV to VI. The district court imposed a below-guideline sentence of 240
months, which would have been in the middle of the range had Wilson not
qualified as a career offender, because the court determined the higher
guideline range overstated his criminal history, and to make Wilson’s sentence
more proportional to his co-defendants, who all received much shorter
sentences (because they pled guilty, cooperated with the Government, and did
not have lengthy criminal histories). There was no indication in the record
that the existence of the conviction under Count Three for possession of
cocaine with the intent to distribute played any separate factor in the district
(continued...)

18
there is no need to remand Wilson’s case for resentencing. See United States
v. Pugh, 151 F.3d 799, 800 (8th Cir. 1998) (vacating one of several
convictions because there was insufficient evidence to support it, but deciding
not to remand for resentencing because the vacated conviction would not alter
the defendant’s sentence); cf. McKnight, 17 F.3d at 1145 (vacating one of
several convictions but not remanding for resentencing where district court
had imposed concurrent sentences on all counts).

III. CONCLUSION

For the foregoing reasons, we AFFIRM Wilson’s two convictions for
conspiring to distribute marijuana and cocaine. But we VACATE Wilson’s
conviction for possession of cocaine on June 9, 2007, with the intent to
distribute, as well as the sentence and special assessment imposed on that
conviction. Because the sentence on count three did not contribute in any way
to the term of imprisonment or subsequent supervision imposed upon Wilson
for the other two convictions we have upheld, we do not need to remand this
matter back to the district court.

11
(...continued)
court’s sentencing determination. That includes the amount of cocaine on
which the guideline calculations were made. The amount of cocaine for which
the Government established that Wilson was responsible in Count One, the
conspiracy to distribute cocaine, was so large that the several ounces
underlying Wilson’s third count would have made no difference. In fact, the
cocaine underlying Count Three was not even factored into the calculations
separately.

19