[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-2274
UNITED STATES,
Appellee,
v.
FRANCISCO OBJIO, a/k/a CUCHI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Francisco Objio on brief pro se.
Donald K. Stern, United States Attorney, Mark W. Pearlstein
and Allison D. Burroughs, Assistant U.S. Attorneys, on brief for
appellee.
November 28, 2000
Per Curiam. After a thorough review of the record
and of the parties submissions, we reverse the appellant’s
conviction on Count 10 of the indictment and affirm the
convictions on Counts 9 and 11.
With regard to Count 10, we see no evidence in the
record from which a rational jury could have concluded that
anyone with whom appellant Francisco Objio (“Objio”) was
associated actually possessed cocaine on or about the date
charged. It seems clear that a group of individuals (with whom
the government claimed Objio was associated) planned a
transaction for July 19, 1997. It also is undisputed that
those plans fell through and that the transaction was
rescheduled for July 21, 1997. But we see no evidence to
indicate whether that deal actually was completed as planned.
Nothing is contained in the recorded conversations which would
indicate that the deal had been completed. Further, the
government’s cooperating witness did not testify that the deal
ever happened. He only stated that he purchased cocaine from
co-defendant Osvaldo Maldonado (a/k/a “Pepe”) on three
occasions in July 1997. He was never asked whether one of
those three occasions was on or about July 21. And we do not
think a rational jury could so infer from the evidence
presented.
In order to establish Objio’s liability as an aider
and abettor, the government was required to show that someone
with whom he was associated actually committed the charged
crime (i.e., possession of cocaine with intent to distribute).
See United States v. de la Cruz-Paulino, 61 F.3d 986, 998 (1st
Cir. 1995). Since we see no proof that anyone managed to
complete the deal as planned, we must reverse the conviction on
Count 10.
We do think the evidence was sufficient to convict on
Counts 9 and 11. With regard to count 11, the cooperating
witness testified that the group was planning a one kilogram
purchase on the day in question. He also testified that a
member of the group (“Pepe”) paid others, including co-
defendant Francisco Mata (“Mata”), $500 to transport the
cocaine. And because the cocaine was seized from Mata while he
was transporting it, we know that someone associated with the
group (namely, Mata) committed the substantive crime:
possession with intent to distribute. A rational jury could
further conclude that in recorded phone conversations earlier
in the day, other members of the group were discussing the
price to be paid for the cocaine and were trying to determine
whether they had enough cash to make the purchase. In this
context, the remark, “And Cuchi (Objio’s a/k/a) have like
seven” could be interpreted by a rational jury to mean that
Objio was contributing a portion of the purchase price. Though
the remark is open to other interpretations, it was the jury’s
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task to interpret the remark. We find that in light of all the
evidence, the jury’s interpretation of the evidence was
rational.
For the same reasons, the conviction for conspiracy
under Count 9 should stand.
Finally, we see no plain error in the court’s
instructions. The instruction with regard to aiding and
abetting a crime adequately set out the requirements for a
conviction. See United States v. de la Cruz-Paulino, 61 F.3d
at 998 (citing Nye & Nissen v. United States, 336 U.S. 613, 619
(1949)). To the extent any of the challenged instructions were
erroneous, those alleged errors cannot constitute plain error,
as they concern issues which were not seriously in dispute at
trial. See Johnson v. United States, 520 U.S. 461, 469-70
(1997) (where issue “was essentially uncontroverted at trial .
. . and has remained so on appeal,” error in jury instructions
was not plain error).
Judgment affirmed in part and reversed in part;
matter remanded for resentencing.
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