United States v. Petersen

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 08-4793/08-4794

UNITED STATES OF AMERICA

v.

GLENN PETERSEN,
Appellant No. 08-4793
_____________

No. 08-4794
_____________

UNITED STATES OF AMERICA

v.

TREVOR DORSETT,
Appellant No. 08-4794

Appeal from the District Court of the Virgin Islands
(Crim. Nos. 3-06-cr-00029-001, 3-06-cr-00029-002)
District Judge: Hon. Juan R. Sanchez

Argued: December 1, 2009

1
 Before: McKEE, Chief Judge, FUENTES and NYGAARD,
Circuit Judges

(Opinion filed: October 1, 2010)

DARREN JOHN-BAPTISE, ESQ. (Argued)
The Professional Building
5062 Fortets Gade Suites 11 & 12
St. Thomas, USVI 00802
Attorney for Appellant, Glenn Petersen

CHARLES S. RUSSELL, JR., ESQ. (Argued)
Moore, Dodson & Russell, P.C.
No. 14A Norre Gade
P.O. Box 310
St. Thomas, USVI 00804
Attorneys for Appellant, Trevor Dorsett

PAUL A. MURPHY, ESQ.
Acting United States Attorney for
the District of the Virgin Islands
ISHMAEL A. MEYERS, JR., ESQ. (Argued)
Assistant United States Attorney
5500 Veteran’s Drive, Suite 260
St. Thomas, USVI 00802
Attorneys for Appellee

OPINION

2
McKEE, Chief Circuit Judge.

Glenn Petersen and Trevor Dorsett appeal their

convictions for possessing more than 500 grams of cocaine with

intent to distribute, and for aiding and abetting that possession.

For the reasons that follow, we will affirm the judgments of

conviction.

I. FACTUAL BACKGROUND.1

The circumstances leading to the defendants’ arrest and

conviction began as Virgin Islands Police Officers Angela

Brown and Steve Gibbons were monitoring surveillance

cameras in a police station on the island of St. John. Those

cameras had been deployed in “high crime areas” in Cruz Bay;

and fed into the police station where officers monitoring them

1
We review the evidence in the light most favorable to
the government as verdict winner. United States v. Gambone,
314 F.3d 163, 170-71 (3d Cir. 2003).

3
could zoom in and out of a scene by manipulating a joystick.

The officers could also swivel the cameras in a complete 360

degree circle, thereby tracking movements of anyone they chose

to focus on.

While monitoring the cameras, Officer Brown

recognized Dorsett as she saw him standing on the sidewalk

directly across from a post office. As the officers observed

Dorsett, Petersen met him, and the two began walking toward

“Cap’s Place,” a local bar. When the two left the bar, the

officers saw that Petersen had a drink in one hand and a plastic

bag in the other. The officers zoomed in on the bag and saw

that it contained a brick-shaped object that appeared to be

heavy. As Petersen and Dorsett continued walking down the

street to the First Bank Building, Petersen passed the bag to

Dorsett. Dorsett kept the bag until they reached a short cut that

led to the Julius E. Sprauve School. They then moved out of

4
camera range when they took that short cut.

Officers Brown and Gibbons then left the station and

walked towards the school. As they did, they saw Dorsett and

Petersen get into a red Mitsubishi car and drive past the officers.

The officers then ran back to the station, got into a police car,

and attempted to follow Dorsett and Petersen. As they attempted

to pursue the Mitsubishi, Officer Brown radioed other officers

to be on the lookout for Dorsett and Petersen in the red car.

Officer Emile Proctor was heading towards the red

Mitsubishi when he saw it fail to stop at a stop sign. Officer

Proctor radioed to the other officers, informed them of what he

saw, and told them that he was going to make a traffic stop.

While attempting to catch up to the Mitsubishi, Officer Proctor

saw Dorsett throw a clear plastic bag that contained a white

substance out through the driver’s side window into an open

gutter. After the clear plastic bag was thrown into the gutter,

5
the Mitsubishi turned into a street that Officer Proctor knew to

be a dead end and Proctor stopped at the entrance of the street

to block the Mitsubishi’s exit. While doing this, he was able to

observe the clear plastic bag that had been thrown from the car

into the gutter. The Mitsubishi made a U-turn and then stopped

in front of Officer Proctor’s police car at about the same time

that Officers Brown and Gibbons were arriving at the scene.

They parked their car behind the Mitsubishi.

Officer Proctor ordered Dorsett and Petersen out of the

car as Officer Dennis Vanterpool arrived and was informed

about the clear plastic bag that was still in the gutter. As he

retrieved the bag, Vanterpool observed a rock-like substance

inside. He opened the bag and smelled what he believed to be

crack cocaine and then informed the other officers of his

discovery. Officers Proctor and Vanterpool then frisked

Petersen and Dorsett. While conducting the pat-downs, Officer

6
Proctor noticed that both Dorsett and Petersen smelled of

marijuana, and Officer Vanterpool recovered a bag of marijuana

from Petersen’s pants pocket.

After Dorsett and Petersen were secured, Officers Brown

and Gibbons looked inside the Mitsubishi and immediately

noticed the odor of marijuana coming from inside. As Officer

Brown continued his visual inspection, he noticed what

appeared to be the plastic bag that he had previously seen

Dorsett and Petersen carrying as they walked down the street.

Brown inquired about the bag, but both Dorsett and Petersen

denied any knowledge of it. Officer Brown retrieved the bag

and saw that it contained brick-like objects covered by a white

powdery substance. Dorsett and Petersen were then arrested

and charged with possession of a controlled substance with

intent to distribute.

II. DISTRICT COURT PROCEEDINGS

7
 On January 15, 2006, a grand jury returned a two count

indictment charging both Dorsett and Petersen with possessing

cocaine base (Count One) and cocaine hydrochloride (Count

Two) with intent to distribute within 1000 feet of a public

school, in violation of 21 U.S.C. §§ 841(a) and 860, as well as

aiding and abetting each other and unknown others in the

commission of those offenses, in violation of 18 U.S.C. § 2.

After the district court denied their motions to suppress

physical evidence, they proceeded to trial before a jury. The

government’s evidence at trial included the testimony of Eric

Jordan, a forensic chemist employed by the United States Drug

Enforcement Agency. He testified that the bricks the

defendants were carrying contained cocaine hydrochloride that

had a gross weight of nearly one and a half kilograms (1,367.9

grams). Officer Mark Joseph, a Virgin Islands Police

Department detective who is assigned to the Drug Enforcement

8
Task Force, testified that the drugs were packaged in a manner

that was not consistent with personal use.

At the conclusion of that trial, the district court granted

the defendants’ motions for judgment of acquittal and dismissed

Count One of the indictment. The jury could not reach a verdict

on Count Two and a mistrial was declared.

At the ensuing retrial, both defendants were convicted on

the charges contained in Count Two and sentenced to lengthy

prison terms after the court denied their post trial motions.

These appeals followed.

III. DISCUSSION

Dorsett argues that the district court erred in denying his

suppression motion, that there was insufficient evidence to

support his conviction, and that the district court erred in

refusing to give his proffered jury instruction on aiding and

abetting. Petersen also challenges the district court’s denial of

9
his suppression motion. He also contends that the district court

erred in sustaining his conviction for a lesser-included offense

because no lesser included offense instruction was given to the

jury.

The defendants’ challenge to the denial of their

suppression motions does not warrant discussion. Their only

argument in support of that claim is that all of the evidence

seized by the Officers should have been suppressed because the

evidence established that Officer Proctor did not see the

Mitsubishi run a stop sign. Thus, according to the defendants,

the traffic stop violated their Fourth Amendment rights.2 In

United States v. Mosley, 454 F.3d 249 (3d Cir. 2006), we noted

that “the Supreme Court [has] established a bright-line rule that

2
Petersen does not argue that the seizure of marijuana
from his pants pocket violated the “plain feel” doctrine. See
United States v. Yamba, 506 F.3d 251, 256-60 (3d Cir. 2007)
(applying the “plain feel” doctrine established in Minnesota v.
Dickerson, 508 U.S. 366 (1993)).
10
any technical violation of a traffic code legitimizes a stop, even

if the stop is merely pretext for an investigation of some other

crime.” Id. at 252 (citing Whren v. United States, 517 U.S. 806

(1996)).

Petersen and Dorsett contend that surveillance videotape

evidence established that Officer Proctor did not see their car

run a stop sign. However, Officer Proctor clearly testified that

he did see the Mitsubishi run a stop sign, and the district court

credited the Officer’s testimony and held that the traffic stop

was proper. “It is not for us to weigh the evidence or to

determine the credibility of witnesses.” United States v. Dent,

149 F.3d 180, 187 (3d Cir. 1990) (internal quotation marks and

citation omitted). Thus, the district court did not err in denying

the motions to suppress.

Dorsett’s argument that there was insufficient evidence

to support his conviction does not merit much discussion either.

11
Officer Brown testified that she saw Dorsett handling the bag

containing the cocaine, and surveillance videotape established

that Dorsett had actual possession of the bag. That same plastic

bag was found in the vehicle just a few minutes later during the

stop. This is more than sufficient to sustain the conviction for

possession with intent to distribute.

We also reject both appellants’ challenges to the district

court’s jury instructions, although those claims require more

discussion.

Count Two of the indictment states:

On or about December 5, 2003, at
St. John, in the District of the
Virgin Islands, the defendants,
GLENN PETERSEN and
TREVOR DORSETT while aiding
and abetting one another, and
others unknown to the grand jury,
knowingly and intentionally
possessed with intent to distribute
a Schedule II narcotic controlled
substance, that is, more than five

12
 hundred (500) grams of a mixture
and substance containing a
detectable amount of cocaine
hydrochloride, in violation of Title
21, United States Code, Section
841(a), within 1000 feet of a public
school, that is, the Julius Sprauve
School.

All in violation of Title 21, United
States Code, §§§ 841(a),
841(b)(1)(B)(iii), 860 and Title 18,
United States Code § 2.

As noted at the outset, Dorsett and Petersen were re-tried

on Count Two after their first trial resulted in a mistrial because

the jury could not agree on a verdict. The district court asked

the second jury to complete special verdict forms which

contained three questions. Those questions were identical for

each defendant except for the name on the form. The first jury

interrogatory was:

Do you unanimously find that the
Government has proven beyond a
reasonable doubt that the defendant

13
 [individual defendant’s name]
knowingly and intentionally
possessed with intent to distribute
a mixture or substance containing
cocaine?

The jury answered: “Yes,” on the verdict slips for both
defendants.

The second interrogatory was:

Do you unanimously find that the
Government has proven beyond a
reasonable doubt that the defendant
[individual defendant’s name] was
within one thousand feet of a
school when he knowingly and
intentionally possessed with intent
to distribute a mixture or substance
containing cocaine?

On both defendants’ verdict forms, the jury answered: “No.”

The third interrogatory was:

Do you find that the Government
has proven beyond a reasonable
doubt that the quantity of a mixture
or substance containing cocaine
that the defendant [individual
defendant’s name] knowingly and

14
 intentionally possessed with intent
to distribute was 500 grams or
more?

On both defendants’ verdict forms, the jury answered: “Yes.”

Accordingly, Petersen and Dorsett were acquitted of charges

related to possessing more than 500 grams cocaine with intent

to distribute within 1000 feet of a schoolyard in violation of §

860(a), but they were both convicted of possession with intent

to distribute in violation of § 841(a)(1).

A. Petersen.

Following trial, Petersen moved for a judgment of

acquittal, or in the alternative, for a new trial.3 He argued that

since he was charged with a single count of a violation of the

schoolyard statute, 21 U.S.C. § 860, the jury’s verdict

constituted an acquittal because the government failed to prove

an essential element of the crime charged. He further argued

3
Dorsett moved to join Petersen’s motion.
15
that conviction of possession with intent to distribute was

inappropriate because the district court never instructed the jury

that it could convict him of a lesser-included offense.

The district court denied Petersen’s motion and ruled that

Petersen was properly convicted of the lesser-included offense

of possession with intent to deliver even though the court did

not give a lesser-included offense charge to the jury. Peterson

now claims that was error. We disagree.

Petersen’s claim of error is as ironic as it is misguided.

He not only failed to request a lesser-included offense charge in

the district court and failed to object to the charge that was

given; during the charge conference, Petersen specifically

declined a lesser-included offense charge that the court offered

to give. Thus, we review the instruction that was given for

plain error. United States v. Gordon, 290 F.3d 539, 543-44 (3d

16
Cir. 2001).4

4
Ordinarily, “[i]f the party claiming error in the jury
instructions did not make a timely objection, we review for
plain error and we will reverse only if the trial court
committed error that was fundamental and highly prejudicial,
such that the instruction failed to provide the jury with
adequate guidance and the District Court’s refusal to consider
the issue would result in a miscarriage of justice.” Alexander
v. Riga, 208 F.3d 419, 426 (3d Cir. 2000); see also United
States v. Bobb, 471 F.3d 491, 500 (3d Cir. 2006).
However, the situation here transcends mere waiver or
forfeiture of a legal argument because, as noted above,
Peterson not only failed to object to the district court’s jury
charge, he actually refused the court’s offer to give the lesser
included offense charge that he now says should have been
given. The situation is therefore more akin to an estoppel
than a waiver or forfeiture. Although it can clearly be argued
that he has lost any right to now claim that the court erred in
not giving the charge he told the court he did not want, we
believe that, given the very unique circumstances here, review
for plain error is appropriate. The alleged error occurred only
after the defendant was granted judgment of acquittal on
similar charges at his first trial, and his attack on the outcome
of the second trial is such that ignoring it now could
“seriously affect [] the . . . public reputation of judicial
proceedings[,]” United States v. Hoffecker, 530 F.3d 137, 181
(3d Cir. 2008) (citing United States v. Wise, 515 F.3d 207,
214 (3d Cir. 2008)), as it may appear that he has been
sentenced for a crime he was acquitted of. We caution,
(continued...)
17
 Under plain error review, relief is not warranted unless

there has been an error that is clear and affects substantial

rights. Jones v. United States, 527 U.S. 373, 389 (1999). The

error must be “an egregious error or a manifest miscarriage of

justice.” United States v. Price, 76 F.3d 526, 530 (3d Cir.

1996) (internal quotation marks and citation omitted). As we

4
(...continued)
however, that circumstances are indeed rare that will cause us
to exercise our discretion to review a claim that a trial court
erred in not giving a jury charge that was offered, but refused
by the defendant.
Moreover, “[i]t is well-settled that arguments asserted
for the first time on appeal are deemed to be waived and
consequently are not susceptible to review in this Court absent
exceptional circumstances.” United States v. Rose, 538 F.3d
175, 179 (3d Cir. 2008) (internal quotation marks and citation
omitted; alternation in original). Exceptional circumstances
exist where, inter alia, “the public interest requires that the
new issue be heard on appeal.” Fleck v. KDI Sylvan Pools,
Inc., 981 F.2d 107, 116 (3d Cir. 1992). Since we have not yet
addressed the issue raised by Petersen, there is an institutional
consideration that can be viewed as “an exceptional
circumstance.” We therefore believe that “the public interest
requires that the new issue be heard on appeal.”
18
have suggested above, even if all of these prerequisites are met,

we will not exercise our discretion to reverse a case for plain

error unless the error “seriously affect[s] the fairness, integrity,

or public reputation of judicial proceedings.” Jones, 527 U.S.

at 389. (internal quotation marks and citation omitted,

alteration in original).

We review jury instructions as a whole and in light of the

evidence. When so viewed, jury instructions must “fairly and

adequately submit [] the issues in the case to the jury.” Unites

States v. Hart, 273 F.3d 363, 373 (3d Cir. 2001) (internal

quotation marks and citation omitted). Nevertheless, a district

court has broad discretion in fashioning a jury charge as long as

it communicates “the substance of the law” so the jury is not

misled or confused. United States v. McGill, 964 F.2d 222, 235

(3d Cir. 1992).

19
 The statute at issue here, 21 U.S.C. § 860(a), provides,

in relevant part, as follows:

Any person who violates section
841(a)(1) of this title . . . by
distributing, possessing with intent
to distribute, or manufacturing a
controlled substance in or on, or
within one thousand feet of, the
real property comprising a public
or private elementary, vocational,
or secondary school, or a public or
private college, junior college . . .
[is] subject to (1) twice the
maximum punishment authorized
by section 841(b) of this title; and
(2) at least twice any term of
supervised release authorized by
section 841 of this title for a first
offense.

Section 841(a)(1) provides, in relevant part:

Except as authorized by this
subchapter, it shall be unlawful for
any person knowingly or
intentionally –

20
 (1) to manufacture, distribute, or
dispense, or possess with intent to
manufacture, distribute, or dispense
a controlled substance . . .

Section 860 is therefore a substantive offense that

requires proof of an element that is not included in § 841- proof

that the distribution, possession or manufacturing occurred

within 1000 feet of a schoolyard. United States v. McQuilkin,

78 F.3d 105, 108-09 (3d Cir. 1996).

Accordingly, § 841(a)(1) is a lesser-included offense of

§ 860(a). United States v. Jackson, 443 F.3d 293, 295 (3d Cir.

2006); see also id. at 301 (“Because a conviction under § 860(a)

only requires a finding of one additional element, the 1,000-foot

proximity to a school, we agree that the possession of cocaine

base with the intent to distribute under 21 U.S.C. § 841(a)(1) is

a lesser-included offense of possession with intent to distribute

21
within 1,000 feet of a school under 21 U.S.C. § 860(a).”).

Accordingly, a jury cannot find a defendant guilty of §

860(a) without first concluding beyond a reasonable doubt that

the government has established every element required under §

841(a)(1). Id.; see also United States v. Beltz, 385 F.3d 1158,

1162 (8th Cir. 2004) (“In fact one of the statutory elements of

§ 860 requires that § 841(a)(1) have been violated.”).

Federal Rule of Criminal Procedure 31(c) provides, in

relevant part, as follows: “Lesser Offense or Attempt. A

defendant may be found guilty of . . . (1) an offense necessarily

included in the offense charged.” In Schmuck v. United States,

489 U.S. 705, 716 (1989), the Supreme Court explained that:

“one offense is not ‘necessarily included’ in another unless the

elements of the lesser offense are a subset of the elements of the

charged offense. Where the lesser offense requires an element

22
not required for the greater offense, no instruction is to be given

under Rule 31(c).”

The government contends that neither Rule 31(c) nor

Supreme Court precedent explicitly requires a lesser-included

offense charge if the instruction that is given includes the

greater offense. However, Keeble v. United States, 412 U.S.

205 (1973), seems, at first blush, to suggest otherwise.

There, a Native American was charged with assault with

intent to commit serious bodily injury under the Major Crimes

Act of 1885. That Act authorized the federal prosecution of a

Native American charged with committing certain specifically

enumerated offenses on a Reservation. Assault with intent to

commit serious bodily injury was one of the specifically

enumerated offenses. Keeble was charged with assault with

intent to commit serious bodily injury after getting into a fight

23
with his brother-in-law.

At the close of his trial, Keeble asked the district court to

instruct the jury that it could convict him of simple assault.

The district court refused because simple assault is not an

offense specifically enumerated in the Act. Accordingly,

Keeble could not have been tried for simple assault in federal

court. The district court was affirmed on direct appeal, and the

Supreme Court granted certiorari limited to “the question of the

validity of denying the requested instruction.” 412 U.S. at 207.

The Supreme Court held that a lesser included offense

charge should have been given, if supported by the evidence.

Id. at 214. The Court explained:

Although the lesser included
offense doctrine developed at
common law to assist the
prosecution in cases where the
evidence failed to establish some

24
 element of the offense originally
charged, it is now beyond dispute
that the defendant is entitled to an
instruction on a lesser included
offense if the evidence would
permit a jury rationally to find him
guilty of the lesser offense and
acquit him of the greater.

Id. at 208 (emphasis added; footnote omitted). The Court
continued:

[I]f the prosecution has not
established beyond a reasonable
doubt every element of the offense
charged, and if no lesser offense
instruction is offered, the jury
must, as a theoretical matter, return
a verdict of acquittal.

Id. at 212 (emphasis added).

Although Keeble might appear to support Petersen’s

argument, the Court’s statements must be understood in the

proper context. In Keeble, the Court was concerned with the

danger that the defendant may be found guilty of the charged

25
offense when the government has proven only the elements of

the lesser included offense. The Court explained:

[A] defendant is entitled to a lesser
offense instruction in this context
or any other – precisely because he
should not be exposed to the
substantial risk that the jury’s
practice will diverge from theory.
Where one of the elements of the
offense charged remains in doubt,
but the defendant is plainly guilty
of some offense, the jury is likely
to resolve its doubts in favor of
conviction.

Keeble, 412 U.S. at 212-13.

That danger is absent here because the special verdict

form enabled the jury to make a separate finding as to each

element of the charges against Petersen, and they did. Thus, the

mandate of Keeble does not apply.

Although we have not previously decided if a defendant

26
can be convicted of a lesser included offense where no such

instruction was given to the jury, we have held that a trial court

can enter a conviction on a lesser included offense under certain

conditions without violating the Double Jeopardy Clause.

Although Gov’t of the Virgin Islands v. Josiah, 641 F.2d 1103

(3d Cir. 1981), did not involve the specific issue raised here, we

did explain:

A jury’s finding on all elements of the greater
offense is necessarily a finding of guilt on all
elements of the lesser offense, since a lesser
included offense consists of some of the elements
of the greater offense and does not require the
proof of any element not present in the greater
offense. A trial court therefore has authority to
enter a judgment of conviction on a lesser
included offense when it finds that an element
exclusive to the greater offense is not supported
by evidence sufficient to sustain the jury’s finding
of guilt on the greater offense.

Id. at 1108 (citations omitted).

27
 Other circuit courts of appeal have addressed the question

of whether an appellate court can remand for entry of judgment

on a lesser included offense where no lesser included offense

charge was given after determining that there is insufficient

evidence to convict on the greater offense. Some of these courts

of appeals have declined or hesitated to reduce a conviction to

a lesser included offense when the district court did not give a

lesser included offense instruction. See United States v. Dhinsa,

243 F.3d 635, 676-77 (2d Cir. 2001) (refusing to affirm a

conviction for coercion based upon the government’s reasoning

that the evidence established a lesser included offense, because

the district court did not give a lesser included offense

instruction); United States v. Dinkane, 17 F.3d 1192, 1198 (9th

Cir. 1994) (requiring a showing that the district court explicitly

instructed the jury that it could convict a defendant of lesser

28
included offense and an instruction setting forth the elements of

the lesser included offense); United States v. Vasquez-Chan, 978

F.2d 546, 554 (9th Cir. 1992) (same), overruled on other

grounds by United States v. Nevils, 578 F3d. 1158 (9th Cir.

2010); United States v. Mitcheltree, 940 F.2d 1329, 1352 n.17

(10th Cir. 1991) (suggesting remand with an order to enter

judgment on a lesser included offense is appropriate only where

a lesser included offense instruction is given or where parties

concede conviction of the lesser included offense was proper);

United States v. Melton, 491 F.2d 45, 49 (D.C. Cir. 1973)

(refusing to order entry of judgment on a lesser included offense

where the defendant specifically rejected a lesser included

offense instruction and the government chose to seek conviction

on only the greater offense).

Other courts of appeals have held that a separate jury

29
instruction on a lesser included offense is not required as a

prerequisite for exercising their authority under 28 U.S.C. §

2106.5 See, e.g., United States v. Smith, 13 F.3d 380, 383 (10th

Cir. 1993) (remanding for resentencing on the lesser included

offense despite absence of a jury instruction); United States v.

Hunt, 129 F.3d 739, 745-46 (5th Cir. 1997) (same); United

States v. Cobb, 558 F.2d 486, 489 (8th Cir. 1977) (finding that

a conviction for bank robbery by putting in jeopardy the life of

any person by means of a dangerous weapon, which the court of

appeals found was not supported by substantial evidence, did,

nonetheless, establish each element for a conviction of the lesser

5
Which provides: “The Supreme Court or any other
court of appellate jurisdiction may affirm, modify, vacate, set
aside or reverse any judgment, decree, or order of a court
lawfully brought before it for review, and may remand the
cause and direct the entry of such appropriate judgment,
decree, or order, or require such further proceedings to be had
as may be just under the circumstances.” 28 U.S.C. § 2106.

30
included offense of bank robbery by force or violence, and

remanding for resentencing on lesser included offense despite

absence of a lesser included offense charge).

In Allison v. United States, 409 F.2d 445 (D.C.

Cir.1969), the court engaged in a different analysis. There,

rather than focusing on whether a lesser included offense charge

was given, the court focused on the nature of the offenses

involved and the prejudice to the defendant. The court

construed 28 U.S.C. § 2106 as authorizing “federal appellate

courts to modify a criminal judgment to that of a lesser included

offense.” Id. at 450-51. However, it emphasized “that the

circumstances in which such authority may be exercised are

limited.” Id. at 451.

It must be clear (1) that the evidence adduced at
trial fails to support one or more elements of the
crime of which appellant was convicted, (2) that

31
 such evidence sufficiently sustains all the
elements of the other offense, (3) that the latter is
a lesser included offense of the former, and (4)
that no undue prejudice will result to the accused.

Id.

Petersen argues that his conviction for knowingly and

intentionally possessing with intent to distribute more than 500

grams of cocaine is improper because, given the language of the

indictment, he had a “reasonable expectation” that he would

face liability only for a violation of the schoolyard statute and

not for possession of cocaine with intent to distribute it. He

claims that since he was only on notice that he was required to

defend the schoolyard charge, a conviction for possessing with

intent to distribute denied him due process. Under the rather

unique circumstances here, that argument is without merit.

Count Two of the indictment clearly charges Petersen

32
with intentionally possessing more than 500 grams of cocaine

with intent to distribute, in violation of § 841(a)(1). Thus,

Petersen clearly knew that he had to defend against that charge

and that charge has absolutely nothing to do with proximity to

a schoolyard or § 860(a). Peterson could not possibly have

thought that he only had to defend against possessing cocaine

within 1000 feet of a schoolyard and that he need not be

concerned with defending against any charge that he possessed

cocaine with the intent to distribute. The very definition of the

schoolyard offense (§ 860(a)), references and incorporates the

latter offense, § 841(a)(1). The jury had to determine if Petersen

was guilty of violating § 841(a)(1), in deciding guilt under §

860(a). Moreover, the use of the special jury interrogatory

further removes the kind of risk that concerned the Supreme

Court in Keeble.

33
 His related argument that he suffered a due process

deprivation because he prepared a defense against § 860(a) only

and not § 841(a)(1) is similarly flawed; it also appears to be

disingenuous. See United States v. Brozyna, 571 F.2d 742, 746

(2d Cir. 1978) (an indictment “required [defendant] to prepare

to defend not only against the charge but also against whatever

necessarily included offenses and attempts she could have been

convicted of under Fed.R.Crim.P. 31(c).”).

His overarching contention that the district court erred

when it sustained his § 841(a)(1) conviction because the jury

was never given a lesser included offense charge is therefore

meritless under a somewhat modified Allison test.6 The first

prong of the Allison test involves the sufficiency of the evidence

pertaining to the crime of conviction. That inquiry is

6
We are not applying 28 U.S.C. § 2106.

34
inapplicable here because Petersen was not convicted of the §

860 schoolyard charge. However, the remainder of the Allison

inquiry is relevant to assessing what, if any, impact the failure

to give a lesser included offense charge had on the outcome of

Petersen’s trial.

From the special verdict forms, it is clear that the jury

found that there was insufficient evidence to support a

conviction for violating § 860(a). Petersen does not argue that

there was insufficient evidence to support a conviction for a

violation of § 841(a)(1). As we explained earlier, § 841(a)(1)

is a lesser included offense of § 860(a); in fact, § 860(a)

specifically incorporates § 841(a)(1). Not only can Petersen not

establish any undue prejudice, it is clear from this record

(especially given the court’s use of jury interrogatories) that he

can not establish any prejudice. Indeed, he does not claim that

35
he suffered any prejudice. Rather, he is claiming that he had a

reasonable expectation that he would face liability only under

§ 860, and not under § 841(a)(1). However, as we have

explained, that argument is without merit.

For all of the above reasons, we will affirm Petersen’s

judgment of conviction.

B. Dorsett.

Dorsett also filed a motion for judgment of acquittal or,

in the alternative, for a new trial, arguing, inter alia, that the

district court’s aiding and abetting jury charge was improper

because it did not contain an adequate specific intent instruction.

Dorsett now argues that the district court erred in denying that

motion.7

7
“Generally, we review the district court’s refusal to
give certain jury instructions under an abuse of discretion
(continued...)

36
 Title 18 U.S.C. § 2(a) provides: “Whoever commits an

offense against the United States or aids, abets, counsels,

commands, induces or procures its commission, is punishable

as a principal.” To convict a person of aiding and abetting, “the

government must prove [beyond a reasonable doubt]: (1) that

the substantive crime has been committed; and (2) that the

defendant charged with aiding and abetting knew of the

commission of the substantive offense and acted with intent to

facilitate it.” United States v. Soto, 539 F.3d 191, 194 (3d Cir.

2008). “To establish liability for a crime based on an aiding and

abetting theory, the government must prove that the underlying

crime occurred and that the defendant knew of the crime and

7
(...continued)
standard although where, as here, the question is whether the
jury instructions stated the proper legal standard, our review
is plenary.” United States v. Coyle, 63 F.3d 1239, 1245 (3d
Cir. 1995) (citation omitted).

37
attempted to facilitate it.” Gordon, 290 F.3d at 547 (internal

quotation marks and citation omitted). “The government must

also prove that the defendant had the specific intent of

facilitating the crime . . . mere knowledge of the underlying

offense is not sufficient for conviction.” Id. (citation and

internal quotation marks omitted). “Specific intent requires not

simply the general intent to accomplish an act with no particular

end in mind, but the additional deliberate and conscious

purpose of accomplishing a specific and prohibited result.”

Pierre v. Att’y Gen., 528 F3d. 180, 189 (3d Cir. 2008).

At the charging conference, Dorsett asked the court to

instruct the jury that: “An aider and abettor must have some

interest in the criminal venture, and the prosecution must prove

the defendant’s intentional involvement in the crime with the

specific intent of making the crime succeed, and his

38
participation in the commission of every element of the offense

as defined in these instructions.” Rather than give that

instruction, the court gave the following intent instruction:

Evidence that a defendant was merely present
during the commission of the offense is not
enough for you to find a defendant guilty as an
aider and abettor.

In addition, . . . if the evidence shows that the
defendant knew that the offense was being
committed, or was about to be committed, but
does not also prove beyond a reasonable doubt
that it was the defendant’s intent and purpose to
aid or otherwise associate himself with the
offense, you may not find the defendant guilty of
the offense as an aider and abettor. The
government must prove beyond a reasonable
doubt that the defendant in some way participated
in the offense as something the defendant wished
to bring about and make succeed.

Dorsett appears to be arguing that because we said in

Gordon that “[t]he government must . . . prove that the

defendant had the specific intent of facilitating the crime,” 290

39
F.3d at 547, the aiding and abetting instruction must contain the

words “specific intent.”

His argument fails for two reasons. First, the district

court used the Third Circuit’s Model Criminal Jury Instructions

§ 7.02 for aiding and abetting. The district court’s instruction

on intent is taken verbatim from those model instructions. We

have a hard time concluding that the use of our own model jury

instruction can constitute error, and nothing that Dorsett says

removes our doubt that use of such an instruction can constitute

error. Moreover, Dorsett does not even contend that the model

instruction is wrong. Second, we believe that the phrases “the

defendant’s intent and purpose to aid or otherwise associate

himself with the offense” and “that the defendant in some way

participated in the offense as something the defendant wished

to bring about and make succeed” sufficiently informed the jury

40
that it had to find that Dorsett had the specific intent to aid and

abet the crime charged in the indictment.

Accordingly, we will also affirm Dorsett’s judgment of

conviction.

41