UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4809
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DION MONTREAL COXTON,
Defendant - Appellant.
Appeal from the United States District Court for the
Western District of North Carolina, at Charlotte. Frank D.
Whitney, District Judge. (3:05-cr-00339-FDW-3)
Submitted: January 31, 2011 Decided: March 18, 2011
Before SHEDD, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric A. Bach, Charlotte, North Carolina, for Appellant. Edward
R. Ryan, United States Attorney, Mark A. Jones, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dion Montreal Coxton was convicted of conspiracy to
distribute and to possess with intent to distribute fifty grams
or more of cocaine base (Count One); conspiracy to use and carry
firearms during and in relation to a drug trafficking crime
(Count Two); using, carrying, and possessing a firearm during
and in relation to a drug trafficking crime, causing the death
of a person through use of the firearm, and aiding and abetting
the same (Count Three); possession of a firearm by a convicted
felon (Count Four); and possession with intent to distribute
cocaine and aiding and abetting (Count Five). Coxton was
sentenced to life on Count One, 245 months, concurrent, on Count
Two, 405 months on Count Three, 120 months on Count Four, and
408 months on Count Five. The sentences on Counts One, Two,
Four, and Five run concurrently, and the sentence on Count Three
runs consecutively to the concurrent sentence. Coxton now
appeals, raising three issues. We affirm.
I.
Coxton, Montare Goodman, Damien Miller, and Royre
Ervin were crack dealers in Charlotte. Marvin Clark sold
Goodman cheap crack that proved to be candle wax. Clark also
attempted to sell Ervin bogus crack; however, Ervin learned of
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the scam from Goodman. Goodman and Ervin decided to rob Clark
and recover Goodman’s money.
To carry out the plan, Ervin contacted Clark to set up
a crack deal. The two met to consummate the deal. Ervin
distracted Clark until Coxton, Goodman, and Miller arrived.
Upon arriving, Goodman and Coxton got out of their car and shot
Clark. Goodman had a rifle, and Coxton had a semiautomatic
handgun. The bullet that Goodman fired killed Clark, while
Coxton’s bullet struck him in the thigh. Ervin, Goodman, and
Miller testified at Coxton’s trial.
II.
Coxton first contends that the district court’s
instruction on Count Three constructively amended the indictment
because, although the court instructed on an aiding and abetting
theory, the indictment allegedly did not charge Coxton with
aiding and abetting. Accordingly, Coxton argues that the
district court impermissibly broadened the bases for conviction
beyond those charged in the indictment. See United States v.
Malloy, 568 F.3d 166, 178 (4th Cir. 2009) (discussing
constructive amendment). This claim is without merit.
First, the language of Count Three plainly charged
that Coxton violated 18 U.S.C. §§ 924(c)(1), 924(j)(1) (2006)
“and did aid and abet other persons known to the Grand Jury.”
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Second, Count Three’s citation of 18 U.S.C. § 2 (2006) contained
a typographical error; 1 however, as the district court found,
this error would not have misled Coxton as to what the charge
was. Finally, even if the indictment did not properly charge
aiding and abetting in violation of 18 U.S.C. § 2, the error is
not grounds for reversal. We have held that the aiding and
abetting provision does not set forth an essential element of
the offense of which the defendant is charged or itself create a
separate offense. Therefore, aiding and abetting need not be
charged in an indictment. United States v. Wills, 346 F.3d 476,
495 (4th Cir. 2003); United States v. Duke, 409 F.2d 669, 670-
711 (4th Cir. 1969).
III.
Coxton also contends that the district court’s aiding
and abetting instruction on Count Three was improper because the
court did not instruct that the defendant either (1) must have
knowingly aided or abetted his codefendant in using or carrying
the murder weapon or (2) must have known that the murder would
occur. Coxton did not preserve this claim, and we therefore
1
The indictment reads, “All in violation of Title 18,
United States Code, Sections 924(c)(1), 924(j)(1) and (2).” The
correct citation would not have included parentheses around the
number 2.
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review for plain error. See Neder v. United States, 527 U.S. 1,
9 (1999). To establish plain error, the defendant “must show:
(1) an error was made; (2) the error is plain; and (3) the error
affects substantial rights.” United States v. Massenburg, 564
F.3d 337, 342-43 (4th Cir. 2009).
After carefully reviewing the instruction on Count
Three, we conclude that the jury was properly instructed.
Notably, the district court instructed that to convict Coxton of
aiding and abetting, “it is necessary that the defendant
knowingly associate himself in some way with the crime and
participate in the crime by doing some act to help make the
crime succeed.” Participation, the court continued, required
“that the defendant engaged in some affirmative conduct or overt
act for the specific purpose of bringing about the crime.”
Finally, the court cautioned that:
“[i]f a person has no knowledge that a crime is being
committed or is about to be committed but
inadvertently does something that aids in the
commission of that crime, [that person] is not an
aider and abettor. An aider and abettor must know
that a crime is being committed and act in a way that
is intended to bring about the success of the criminal
venture.”
Contrary to Coxton’s assertion, the court made clear through its
instruction that, to convict him as an aider and abettor, the
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jury had to find that he knowingly aided and abetted his
codefendant’s crime (the § 924(c)(1) offense). 2
Even if the instruction was erroneous, Coxton failed
to establish that the error was plain. Testimony at trial
established that Goodman believed he needed protection when he
confronted Clark. Ervin supplied Goodman with the rifle.
Goodman then contacted Coxton, who agreed to supply the handgun.
When Goodman met Coxton, Coxton approached with the gun in one
hand and its magazine in the other. Coxton then got into the
car with Goodman and Miller. Upon arrival at the scheduled
meeting place, Coxton was the first out of the car and the first
to open fire. Goodman followed and began shooting the rifle.
Coxton’s actions clearly aided and abetted Goodman’s actions:
not only did he supply one of the firearms that Goodman felt he
needed for protection, but Coxton likely emboldened Goodman’s
use of the firearm by shooting first.
IV.
Finally, Coxton argues that admission of evidence of
his prior involvement with guns and drugs was unduly prejudicial
and should have been excluded under Fed. R. Evid. 403, 404(b).
2
We also reject Coxton’s contention that the district court
erroneously instructed the jury that § 924(c) and § 924(j) were
separate offenses.
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We review the admission of evidence for abuse of discretion.
United States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005).
“[A]n abuse [of discretion] occurs only when it can be said that
the trial court acted arbitrarily or irrationally in admitting
evidence.” United States v. Williams, 445 F.3d 724, 732 (4th
Cir. 2006).
Under Rule 404(b), “[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.” Fed.
R. Evid. 404(b). Such evidence “may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id. “To be admissible under Rule 404(b), evidence
must be (1) relevant to an issue other than character; (2)
necessary; and (3) reliable.” United States v. Siegel, 536 F.3d
306, 317 (4th Cir. 2008) (internal quotation marks and citation
omitted). “Rule 404(b) is . . . an inclusive rule, admitting
all evidence of other crimes or acts except that which tends to
prove only criminal disposition.” United States v. Young, 248
F.3d 260, 271-72 (4th Cir. 2001) (internal quotation marks and
citation omitted), and, “[a]s a rule of inclusion, the rule’s
list is not exhausting.” United States v. Queen¸ 132 F.3d 991,
994-95 (4th Cir. 1997).
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“Evidence sought to be admitted under Rule 404(b) must
also satisfy [Fed. R. Evid.] 403 . . . ,” Siegel, 536 F.3d at
319, such that its probative value is not substantially
outweighed by its prejudicial value. Queen, 132 F.3d at 995.
Under Rule 403, “damage to a defendant’s case is not a basis for
excluding probative evidence” because “[e]vidence that is highly
probative invariably will be prejudicial to the defense.”
United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).
“Rule 403 only requires suppression of evidence that results in
unfair prejudice—prejudice that damages an opponent for reasons
other than its probative value, for instance, an appeal to
emotion, and only when that unfair prejudice substantially
outweigh[s] the probative value of the evidence.” United
States v. Mohr, and citation omitted).
We conclude that the district court did not abuse its
discretion in admitting evidence of a 2004 incident during which
Coxton was found in possession of a handgun, drugs, and drug
paraphernalia. By pleading not guilty, Coxton’s intentional
involvement in drug trafficking and the use of weapons in
furtherance of that trade was placed at issue. The Rule 404(b)
evidence was relevant and necessary to the issue of his intent,
his knowledge of the drug trade, and lack of mistake. The
testimony was reliable, as it was given by three law enforcement
officers who investigated the 2004 incident. Finally,
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especially in light of the court’s several limiting
instructions, the evidence was not more prejudicial than
probative. In this regard, we observed in Queen that “fear that
the jury may improperly use the evidence subsides . . . [after]
the trial judge has given a limiting instruction on the use of
Rule 404(b). United States v. Queen, 132 F.3d at 997. Juries
are presumed to follow a court’s instructions. Jones v. United
States, 527 U.S. 373, 394 (1999).
V.
We therefore affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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