United States v. Gonzalez

United States Court of Appeals
For the First Circuit

No. 07-1541

UNITED STATES OF AMERICA,

Appellee,

v.

DOMINGO A. GONZALEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.

Gordon R. Blakeney, Jr. for appellant.
Robert Clark Corrente, United States Attorney, with whom
Donald C. Lockhart and Adi Goldstein, Assistant United States
Attorneys, were on brief, for appellee.

June 24, 2009
 LIPEZ, Circuit Judge. A jury found appellant Domingo A.

Gonzalez guilty of (1) conspiracy to distribute and to possess with

intent to distribute 500 grams or more of cocaine in violation of

21 U.S.C. § 846; and (2) possession with intent to distribute 500

grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B) and 18 U.S.C. § 2. Gonzalez was also charged with, but

acquitted of, two other counts of an indictment originally brought

against six defendants. On appeal, Gonzalez alleges a number of

errors in the district court's jury instructions that he contends

require reversal. Specifically, he challenges the district court's

instructions on the intent required to join a conspiracy, and, with

respect to the possession count, constructive possession, Pinkerton

liability, and aiding and abetting liability. Finding no error, we

reject each of appellant's challenges and affirm his conviction.

I.

This case arises out of a drug transaction involving

appellant and four other men: Christopher Garcia, Waskar Pena,

Alejandro Pujols, and Cornelio Ozorio.1 These men were the targets

of a drug trafficking investigation jointly conducted by the United

States Drug Enforcement Administration (DEA) and various Rhode

Island law enforcement agencies. An authorized wiretap recorded a

December 10, 2005 phone conversation in which Pujols told Pena that

1
Although the indictment also charged another individual,
Eduardo Garcia, with several offenses, his involvement in the
transaction was peripheral, and is irrelevant for our purposes.

-2-
he was planning to go to Lawrence, Massachusetts (the town in which

Gonzalez resided), to see if the "thing" was there so that he could

"take it to [Pena] right away." That evening, DEA agents

intercepted a number of additional calls between Pujols and Pena

which, though apparently coded, were interpreted by the agents to

concern an imminent drug deal for approximately two kilograms of

cocaine. A recorded conversation between Pena and Ozorio, the

buyer, corroborated this suspicion. On the same night, Gonzalez

also spoke several times with Pujols, but because this information

was obtained from written phone records (only Pena's phone line was

tapped), there is no evidence of the content of these

conversations.

The following day, December 11, 2005, Gonzalez traveled

with Christopher Garcia in a Lincoln Town Car from Lawrence to 234

Gallatin Street in Providence, Rhode Island, the home of Waskar

Pena. During the car ride, Gonzalez communicated with Pujols

several times by phone, both before and after Pujols himself

arrived at the Gallatin Street address at around 3:30 p.m. Just

after 3:40 p.m., Pujols and Pena were observed by the surveillance

team leaving the Gallatin Street house together, getting into a

minivan, and driving a short distance to Elmwood Avenue. Sergeant

Russell Henry of the Cranston Police Department, one of the members

of the surveillance team that day, testified that he watched the

minivan containing Pena and Pujols perform a U-turn after reaching

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Elmwood Avenue and return to 234 Gallatin Street followed by the

Lincoln Town Car containing Garcia and Gonzalez. The Lincoln

parked in the driveway of 234 Gallatin where, according to

Providence Detective Joseph Colanduono, Gonzalez and Garcia both

"turned towards the rear of the seat and appeared to . . .

manipulat[e] something in the rear seat," before exiting the

vehicle and entering the house with Pujols and Pena.

Shortly thereafter, Ozorio, the would-be buyer, arrived

at 234 Gallatin and went inside. When he came back out a few

minutes later, he was stopped by several of the agents, who

conducted a pat-down frisk. During this frisk, a bag containing

approximately one kilogram of cocaine fell from Ozorio's waistband

to the ground. Agents seized the cocaine, arrested Ozorio, and

entered the house to execute a search warrant. At first, they

discovered only Pena, Pujols, and Garcia in the basement,2 along

with another kilogram of cocaine that had apparently been cut open

for testing, a recently-used heat-sealer, packaging materials, and

other drug paraphernalia. A short time later, as law enforcement

officers were securing the premises and the suspects, Detective

Petrillo of the Cranston Police found Gonzalez hiding under a pile

of old carpeting and other debris in the basement, a location that

agents testified was several feet away from the cocaine and the

2
Several additional individuals were discovered on other
floors of the home.

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heat-sealer. A subsequent search of the Lincoln Town Car revealed

a battery-operated secret compartment that had been installed in

the back of the passenger seat. From this compartment, agents

seized a scale, a clear plastic bag containing 96.9 grams of

cocaine, and a loaded .22 caliber pistol.

Appellant, Garcia, Pujols, Pena, and Ozorio were all

named co-defendants in an indictment dated December 14, 2005. All

defendants were charged with Counts I and II. Count I alleged

conspiracy to distribute and to possess with intent to distribute

500 grams or more of cocaine in violation of 21 U.S.C. § 846, and

was based on the cocaine seized from the basement of 234 Gallatin.

Count II, also based on the cocaine from the basement, alleged

possession with intent to distribute 500 grams or more of cocaine

in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B) and 18 U.S.C. §

2.3 Garcia and Gonzalez were the only two defendants charged in

Counts IV and V. Count IV charged intent to distribute an

unspecified quantity of cocaine (the amount in the vehicle's hidden

compartment) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).

Count V was possession of a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. § 924(c). All of the

other defendants pled guilty before trial. After defendant's four-

day trial, the jury returned a guilty verdict on Counts I and II

3
Only Waskar Pena was named in Count III, which alleged
possession with intent to distribute 100 grams or more of heroin in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

-5-
but acquitted him of the remaining charges. Gonzalez was sentenced

to a 121-month term of imprisonment,4 to be followed by five years

of supervised release. Gonzalez confines his appeal to four

alleged errors in the district court's jury instructions.

II.

"The scope of our review is shaped by whether petitioner

properly raised and preserved an objection to the instructions at

trial." Jones v. United States, 527 U.S. 373, 387 (1999). We

review a properly preserved instruction to "the form and wording"

of an instruction given by the district court for abuse of

discretion. United States v. McFarlane, 491 F.3d 53, 59 (1st Cir.

2007). "While we would review de novo a claim that an instruction

embodied an error of law," we also "review for abuse of discretion

'whether the instructions adequately explained the law or whether

they tended to confuse or mislead the jury on the controlling

issues.'" United States v. Silva, 554 F.3d 13, 21 (1st Cir. 2009)

(quoting United States v. Ranney, 298 F.3d 74, 79 (1st Cir. 2002)).

A trial court's refusal to give a particular instruction is

4
The combined weight of the cocaine seized from 234 Gallatin
was 2.094 kilograms, which carries a base offense level of 28. See
U.S.S.G. § 2D1.1. However, the district court applied a two-level
enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) for the use of a
dangerous weapon in connection with the offense, and, based on a
finding that Gonzalez deliberately testified falsely at trial, a
two-level enhancement for obstruction of justice pursuant to §
3C1.1. This calculation yielded a net offense level of 32, which,
for defendants like Gonzalez with no criminal history, carries a
sentencing range of 121-151 months.

-6-
reversible error only in the "relatively rare case" in which "the

requested instruction was (1) substantively correct; (2) not

substantially covered elsewhere in the charge; and (3) concerned a

sufficiently important point that the failure to give it seriously

impaired the defendant's ability to present his or her defense."

United States v. Prigmore, 243 F.3d 1, 17 (1st Cir. 2001).

If, however, a defendant fails to preserve his objection

to jury instructions, we review only for plain error. United

States v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008). Under this

standard, a conviction may only be disturbed if appellant meets the

"heavy burden" of proving "(1) that an error occurred; (2) that the

error was clear or obvious; (3) that the error affected his

substantial rights; and (4) that the error also seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." Id. (citations omitted); see also United States v.

Olano, 507 U.S. 725, 732 (1993). This standard is so demanding

that we have characterized it as "cold comfort to most defendants

pursuing claims of instructional error," United States v. Medina-

Martinez, 396 F.3d 1, 8 (1st Cir. 2005), because, "[w]hile reversal

of a conviction predicated on unpreserved jury error is

theoretically possible, . . . [it is] the rare case in which an

improper instruction will justify reversal of a criminal conviction

when no objection has been made in the trial court." United States

v. Weston, 960 F.2d 212, 216 (1st Cir. 1992).

-7-
 Two general principles inform our analysis of each of

appellant's claims. The Supreme Court has "repeatedly [] cautioned

that instructions must be evaluated not in isolation but in the

context of the entire charge." Jones, 527 U.S. at 391. Therefore,

we must examine the jury charge as a whole in order to determine

whether the district judge clearly conveyed the relevant legal

principles. In so doing, we must also be mindful that "the

district court has considerable discretion in how it formulates,

structures, and words its jury instructions." Prigmore, 243 F.3d

at 17.

III.

We offer a brief summary of Gonzalez's defense at trial

to help put his claims of error in the jury instructions in

context. Gonzalez testified at the trial, as did his mother,

sister, and a friend. Gonzalez said that on the day he was

arrested, he was simply on his way to Rhode Island in order to

visit his sister, who lived in Central Falls, Rhode Island. Pujols

had arranged for Garcia, whom he knew to be driving to Rhode Island

on that day, to take Gonzalez with him. Gonzalez claimed that he

was unaware of the existence and contents of the hidden compartment

in Garcia's vehicle, the Lincoln Town Car, or of the nature of the

transaction contemplated by the other conspirators. He told the

jury that, as far as he knew, Garcia was stopping at his friend

Pena's house (whom Gonzalez had never met) so that Pena could show

-8-
Garcia certain renovations that he had recently made to his

basement. Gonzalez stated that he had remained on the first floor

while the others went down to the basement (and thus had been

unaware of the drug transaction taking place downstairs), and that

he only ran downstairs in search of a place to hide after he heard

the police announce themselves. In essence, Gonzalez claimed that

he happened to be in the wrong place at the wrong time.

Gonzalez now alleges four errors in the district court's

jury instructions. On Count I, the conspiracy count, Gonzalez

alleges error in the district court's charge on "joining the

conspiracy and criminal intent." He alleges three separate errors

in the district court's instructions on Count II, the substantive

offense. Specifically, Gonzalez challenges the court's

instructions on constructive possession, Pinkerton liability, and

aiding and abetting liability. Because Gonzalez only objected on

two of these grounds below, we cannot apply a uniform standard of

review to his claims. Accordingly, we discuss each of appellant's

claims in turn, identifying the relevant standard of review for

each.

A. Challenges to Instructions on Count I - The Conspiracy Count

Gonzalez challenges the trial court's instructions on

joining the conspiracy and criminal intent. He claims generally

that the instructions as given omitted the requirement that the

defendant "willfully" join the conspiracy. He also advances a more

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specific argument that the district court erred by failing to

instruct the jury that proof that a defendant willfully joined in

the conspiracy must be based on evidence of his "own words and/or

actions." We address the more specific argument first.

1. The "Words and Actions" Instruction

This argument rests on appellant's contention that, as a

matter of law, a conspiracy conviction "requires that a defendant's

'membership in a conspiracy be proved on the basis of his own words

and actions (not on the basis of mere association or knowledge of

wrongdoing).'" United States v. Richardson, 225 F.3d 46, 53 (1st

Cir. 2000) (quoting United States v. Cintolo, 818 F.2d 980, 1003

(1st Cir. 1987)). Therefore, he alleges reversible error in the

court's failure to give the instruction he requested, which was

taken from the Pattern Criminal Jury Instructions for the First

Circuit5 and which stated that "proof that [defendant] willfully

joined in the agreement must be based on evidence of [his/her] own

5
Although pattern jury instructions may be used as a guide,
"[b]y their terms, those instructions are precatory, not
mandatory." United States v. Gomez, 255 F.3d 31, 39 n.7 (1st Cir.
2001); see also United States v. Tse, 375 F.3d 148, 157-58 (1st
Cir. 2004) (quoting the Preface to the Pattern Instructions for the
proposition that, although the Instructions may be helpful to craft
a jury charge in a particular case, "it bears emphasis that no
district judge is required to use the pattern instructions, and
that the Court of Appeals has not in any way approved the use of a
particular instruction").

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words and/or actions."6 The parties agree that our review of this

claim is for abuse of discretion.

Gonzalez was convicted of conspiracy under 21 U.S.C. §

846, which requires proof "that a conspiracy existed and that a

particular defendant agreed to participate in it, intending to

commit the underlying substantive offense . . . ." United States

v. Sepúlveda, 15 F.3d 1161, 1173 (1st Cir. 1993). Gonzalez is thus

clearly correct that the law requires the government to prove --

and the jury to find -- more than "mere association or knowledge of

wrongdoing." However, his argument of error in the court's failure

specifically to incorporate the "words and actions" instruction is

meritless, even under the standard of review applicable to this

issue because of defendant's contemporaneous objection. In fact,

in Richardson, which appellant cites for the proposition that the

"words and actions" instruction is a "correct statement of the

law," we specifically rejected a challenge based on the trial

6
The requested instruction read, in relevant part:

Proof that [defendant] willfully joined in the agreement
must be based upon evidence of his/her own words and/or
actions. You need not find that defendant agreed
specifically to or knew about all the details of the
crime, or knew every other co-conspirator or that he/she
participated in each act of the agreement or played a
major role, but the government must prove beyond a
reasonable doubt that he/she knew the essential features
and general aims of the venture.

Pattern Criminal Jury Instructions for the District Courts of the
First Circuit § 4.03 (1998), available at
http://www.med.uscourts.gov/practices/crpji.97nov.pdf.

-11-
court's deviation from this language. 225 F.3d at 53-54.7

Although we acknowledged that the court's deviation from the

Pattern Instruction -- the same instruction that Gonzalez requested

here) -- created an "arguable ambiguity," we found that any such

ambiguity was cured by additional instructions, and that the charge

as a whole "correctly informed the jury that a guilty

verdict . . . had to rest on evidence of [defendant's] own words or

actions." Id. at 54. We pointed to portions of the charge that

"effectively made the point that [defendant's] guilt could only be

established by his own words or actions," such as (1) the court's

explicit warning that "mere association" did not establish

membership in a conspiracy; (2) its instruction that the government

had to prove both intent to agree and intent to commit the

underlying crime, and, (3) "most significantly," the following:

no defendant may be found guilty for the acts
of others unless you find that that defendant
himself engaged in criminal acts . . . . The
fundamental question is whether or not through
acts and statements of his own, reflected both
in those acts and statements and in the other
evidence in this case, the defendant has been
shown beyond a reasonable doubt to have
engaged in the crime that is alleged.

Id.
In this case, as in Richardson, the court warned that

"[t]he fact that various persons may have engaged in similar

7
Instead of following the pattern instructions verbatim and
stating that "[p]roof that defendant willfully joined in the
agreement must be based upon evidence of his/her own words and/or
actions," the court substituted the word "may" for "must."

-12-
conduct or that they may have associated with one another . . . are

factors that you can consider, but [] don't, by themselves, prove

a conspiracy." Like the jury in Richardson, the jury here was also

told that the government had the burden to prove that Gonzalez both

"voluntarily participated in the conspiracy or was a member of the

conspiracy" (i.e., had intended to agree) and that "the defendant

intended that the offense . . . be committed" (i.e. intent to

commit the crime). Finally, the court repeatedly emphasized that

the key element of a conspiracy was a mutual agreement to commit

unlawful acts, and explicitly stated that the defendant must have

been a "party to that mutual agreement or understanding." The

court stated that "[t]he essence of conspiracy is participating in

a plan or a scheme to do something unlawful." The charge, taken as

a whole, adequately conveyed the idea that Gonzalez must have

personally and intentionally joined the agreement, which is all the

law requires. The district court "is not required to parrot the

language proffered by the parties." United States v. Glaum, 356

F.3d 169, 178 (1st Cir. 2004).

2. "Willfully" Joining the Conspiracy

Gonzalez asserts that we must review for abuse of

discretion his claim that the court erred by failing to convey to

the jury the requirement that he "willfully" join the conspiracy.

The government counters that because Gonzalez only specifically

objected to the court's refusal to adopt his suggested "words and

-13-
actions" language, we must review this "more general" complaint as

to willfulness for plain error only. We need not split hairs over

the appropriate standard of review for this issue. There was no

error at all in the trial court's instructions.

Under our law, "the requisite intent" needed for a

conspiracy conviction is that "the defendant intended to join in

the conspiracy and intended the substantive offense to be

committed." United States v. Henderson, 320 F.3d 92, 110 (1st Cir.

2003). That is the meaning of "willfully" in this context, and the

court was not obligated to mention "willfulness" as an independent

requirement. Indeed, appellant's own requested jury instruction

defines willfulness in this way: "To act 'willfully' means to act

voluntarily and intelligently and with the specific intent that the

underlying crime be committed -- that is to say, with bad purpose,

either to disobey or disregard the law -- not to act by ignorance,

accident, or mistake." As we have explained, the court's

instruction, as given, amply conveyed the intent requirement for a

conspiracy conviction.

B. Challenges to Instructions on Count II - The Substantive Offense

Gonzalez lodges three challenges to the instructions

relating to Count II, finding fault with an instruction relating to

each of the three potential bases for finding him guilty of the

substantive offense. Gonzalez challenges the adequacy of the

court's instruction on constructive possession, the instruction on

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Pinkerton liability for the criminal conduct of co-conspirators,

and the aiding and abetting instruction.

1. Constructive Possession

Gonzalez argues that the trial court erred by (1)

omitting from its instruction an element of constructive possession

that requires a defendant to act "knowingly," and (2) failing to

inform the jury that a defendant must have "dominion" over the

object being constructively possessed, a concept that appellant

characterizes as "the recognized right or authority, in his

criminal milieu, to exercise control over [the item]." The

government contends that the instructions as given clearly conveyed

to the jury the principle that any kind of possession, either

actual or constructive, must be knowing and intentional, and that

it was entirely appropriate for the court to use the word "control"

instead of "dominion." The parties agree that our review is for

plain error.

The court's instruction stated, in relevant part:

[The relevant statutory section] says "it
shall be unlawful for any person knowingly or
intentionally to distribute, or to possess
with the intent to distribute, a controlled
substance . . . .
The second thing that the Government
must prove is that Mr. Gonzalez had the
specific intent to distribute that cocaine,
not only possessed it, but he had the intent
to distribute it. And the third thing the
Government has to prove is that, in doing so,
Mr. Gonzalez acted knowingly and
intentionally. . . .

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 When a defendant has indirect power and
control over a substance, the defendant may be
said to have constructive possession over that
substance. Even though the substance is not
on his person or within his immediate reach,
if he has the ability to exercise power and
control over it, he has constructive
possession of that substance. Indirect
control may exist when the object or substance
is readily accessible to the defendant, and he
has the power and ability and intention to
exercise control over it. . . .
As I've said, in order to establish
possession, there has to be evidence that the
defendant had both the intention and the power
to exercise control over the substance, either
by himself or in conjunction with others.

(emphasis added).

a. Omission of the word "knowingly"

Defendant's argument that the court erred by omitting the

word "knowingly" in its constructive possession instruction is

meritless. As the excerpts above demonstrate, the court twice used

the phrase "knowingly and intentionally" in describing the elements

of the offense, and proceeded to elaborate on the meaning of

"possession." The fact that the court did not use the word

"knowingly" specifically to modify its description of constructive

possession is insufficient to establish error under these

circumstances. The court's instructions were clear that,

regardless of how the government established possession, it still

had to prove that it was knowing and intentional. Moreover, the

court's description of constructive possession specifically

included the requirement that defendant have the "power, ability,

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and intention to exercise control over [the substance]" (emphasis

added). It is unclear to us how a defendant could intentionally

exercise control over an object without doing so "knowingly."

Our decision on this issue comports with our holding in

United States v. Hallock, 941 F.2d 36 (1st Cir. 1991). There, we

rejected the defendant's argument that the district court

erroneously omitted the knowledge and intent elements of

constructive possession, concluding that the court had "elsewhere

made abundantly clear to the jury that proof of the defendant's

knowledge and intent was required to convict." Id. at 42. We also

noted that Hallock had been charged with possession with intent to

distribute, but did not argue on appeal that "the jury

misunderstood the 'intent to distribute' part of the crime." Id.

at 43. Thus, his argument –- the same one Gonzalez now advances -–

was logically inconsistent: under his theory, "the jury found he

possessed [certain containers] without knowing that they contained

cocaine, but went on to find that he intended to distribute the

cocaine that was in them." Id.

b. Failure to use the word "dominion"

We also reject appellant's contention that by failing to

use the word "dominion," the court omitted an essential element of

the offense. We have stated generally that "[w]ithin wide margins,

the district court maintains discretion in the precise manner that

it explains legal concepts to the jury." McFarlane, 491 F.3d at

-17-
59. More specifically, we have recognized that the definition of

constructive possession may or may not include "dominion" as a

separate concept, stating that "'[c]onstructive possession' is

commonly defined as the power and intention to exercise control, or

dominion and control, over an object not in one's 'actual'

possession." United States v. Zavala Maldonado, 23 F.3d 4, 7 (1st

Cir. 1994) (emphasis added). We have even rejected a defendant's

contention that "the district court [improperly] used the

conjunction 'or' rather than 'and'" in the phrase "dominion or

control," noting that "[a]t times, we have used the conjunctions

'and' and 'or' interchangeably" in this very context. United

States v. Rogers, 41 F.3d 25, 30 & n.5 (1st Cir. 1994). In Rogers,

we explained that, because dominion is generally defined to include

the concept of control, the instruction properly conveyed to the

jury the notion that there could have been no conviction absent a

finding of control. Id. at 30. The same is true here. The court

emphasized that, to justify a finding of constructive possession,

appellant must have had the power and ability to exercise control

over the substance at issue. We discern no meaningful difference

between the instruction as given and one which would have included

the word "dominion."

2. Liability for Criminal Conduct of Co-conspirators

Gonzalez argues that the court's instruction on the

liability of members of a conspiracy for substantive offenses

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committed by their co-conspirators (i.e., Pinkerton8 liability) was

confusing and would have caused the jury to believe that it could

find liability for the criminal conduct of co-conspirators even

without sufficient proof of the underlying offense. He claims that

the confusion arose because the court first told the jury that it

would explain the law regarding liability for the underlying

substantive offense, but instead went on to describe the

requirements for a conspiracy conviction.

The court stated:

In order to find that someone who's
guilty of conspiracy to commit an offense is
also guilty of the offense, the government has
to prove five things . . . Third, [the
government] has to show that the offense was
committed pursuant to the conspiracy . . . .
Now, I know it's a little bit confusing
and you may be asking yourselves what's the
difference between finding someone guilty
under the aiding and abetting theory and
finding someone guilty under the conspiracy
theory. Although the two offenses are similar
in some respects, there is a big difference
between finding somebody guilty on what others
have done based on the aiding and abetting
theory as opposed to finding someone guilty of
a substantive offense based on what
co-conspirators have done. The difference is
this: proof of aiding and abetting, as I told
you earlier, requires evidence that the crime
was actually committed by someone.

8
See Pinkerton v. United States, 328 U.S. 640 (1946).
"[U]nder the Pinkerton doctrine, a defendant can be found liable
for the substantive crime of a coconspirator provided the crime was
reasonably foreseeable and committed in furtherance of the
conspiracy." United States v. Vázquez-Botet, 532 F.3d 37, 62 (1st
Cir. 2008).

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 The defendant can't be guilty of aiding
and abetting an offense that was never
committed, whereas, proof of a conspiracy does
not require a showing that the unlawful act
that was the object of the conspiracy was
committed.

(emphasis added). This instruction, Gonzalez contends, would lead

the jury to believe that he could be found guilty of the

substantive offense (Count II) without proof that the offense had

been committed.

The government counters that the court correctly stated

the applicable law: that in order for the jury to find Pinkerton

liability, the government had to prove five elements, one of which

was "that the offense was committed pursuant to the conspiracy."

Moreover, the court had already given a "lucid" description of the

five elements of liability, and said repeatedly (at least six

times) that proof of all five was required to convict Gonzalez.

Our review is for plain error.

We agree with appellant that the court's statement that

"proof of a conspiracy does not require showing that the unlawful

act that was the object of the conspiracy was committed" was

confusing. This statement is accurate only as to criminal

liability for the offense of conspiracy, which is not what the

court said it was discussing. Nevertheless, we reject appellant's

claim of plain error under the circumstances. The Supreme Court

has held that "instructions that might be ambiguous in the abstract

can be cured when read in conjunction with other instructions."

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Jones, 527 U.S. at 391 (citations omitted); see also United States

v. Nishnianidze, 342 F.3d 6, 16 (1st Cir. 2003) (finding no plain

error in instruction which incorrectly characterized the applicable

standard as a subjective one but "later clarified" that the

government bore the burden of proving that defendant's statement

was objectively threatening).

Despite the original ambiguity of the court's statement,

the court cured the ambiguity by explicitly distinguishing in the

next two sentences between liability for conspiracy and liability

for the substantive underlying offense. The court stated: "You can

be guilty of conspiracy even though the act was not committed.

Obviously, you can't be guilty of the act that was the object of

the conspiracy unless the act was committed." Given this language,

it is "highly unlikely" that the potential ambiguity cited by

Gonzalez, "when read in the context of an otherwise correct . . .

instruction, misled the jury . . . . This is especially so given

the clarifying instruction that immediately followed the passage to

which [defendant] objects." United States v. Bailey, 405 F.3d 102,

110 (1st Cir. 2005) (holding that an extraneous reference to

liability for "failure to act" -- a theory the government had not

argued -- in an otherwise comprehensive, seven-paragraph

instruction on aiding and abetting was not plain error,

particularly in light of subsequent clarification).

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 Furthermore, in explaining to the jury that the defendant

could be found liable for the substantive offense under one of the

theories -- as a principal, as an aider and abettor, or under a

Pinkerton theory -- the court eliminated any ambiguity in its

earlier instructions by emphasizing the fact that a conviction

based on a Pinkerton theory required the government to prove the

five elements he had already set forth. ("You could find him guilty

of the 500 gram charge if he actually possessed the 500 grams with

intent to distribute, or if he aided and abetted others in doing

so, but you can't find him guilty on the basis that he is guilty of

conspiracy unless you find that these five things have been

shown.")

3. Aiding and Abetting

The court instructed the jury that, in order to establish

aiding and abetting liability, the government had to prove three

elements. First, it had to show "that at least one of [the

substantive offenses which Gonzalez was accused of aiding and

abetting] was actually committed." The court continued:

The second thing the Government has to
prove is that this defendant assisted in the
commission of that crime or caused it to be
committed. And third, the Government has to
show that the defendant intended to assist in
the commission of that crime or to cause it to
be committed. . . . [T]he Government doesn't
have to prove that the defendant personally
committed the crime, what it must prove is
that someone committed the crime, and that the
defendant willfully did something to assist in
the commission of that crime.

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 Now, I said "willfully." Assisting in
the commission of a crime is willful if it's
done knowingly and voluntarily and with the
intent to help facilitate the commission of
the crime. And again, mere presence where a
crime is committed is not by itself sufficient
to prove that a defendant is guilty of aiding
and abetting. It's a factor you can consider,
but by itself it doesn't prove that the
defendant aided and abetted. There must be
evidence that the defendant did something to
facilitate the commission of a crime.
In other words, putting it about as
briefly as I can, the defendant must be a
participant in the crime and not merely a
spectator.

Gonzalez argues that this instruction failed to require

a jury finding that he consciously shared the principal actors'

knowledge of the underlying criminal act. He asserts that this

error impermissibly allowed the jury to convict him without

evidence of specific intent. In support of this argument, he cites

the following instruction on aiding and abetting, which he timely

proposed, and which is drawn substantially from the Pattern

Criminal Jury Instructions for the District Courts for the First

Circuit:

To "aid and abet" means intentionally
to help someone else commit a crime. To
establish aiding and abetting, the government
must prove beyond a reasonable doubt that (1)
someone else committed the charged crime and
(2) that [defendant] consciously shared the
other person's knowledge of the underlying
criminal act, intended to help him/her, and
[willfully] took part in the endeavor, seeking
to make it succeed.
[Defendant] need not perform the
underlying criminal act, be present when it is
performed, or be aware of the details of its

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 execution to be guilty of aiding and abetting.
But a general suspicion that an unlawful act
may occur or that something criminal is
happening is not enough. Mere presence at the
scene of a crime and knowledge that a crime is
being committed are also not sufficient to
establish aiding and abetting.

See Pattern Criminal Jury Instructions for the District Courts of

the First Circuit § 4.02 (1998), available at

http://www.med.uscourts.gov/practices/crpji.97nov.pdf. Because

this is one of appellant's preserved objections, we review his

claim that the instructions embodied an error of law de novo and

his claim as to the form of instruction for abuse of discretion.

As we have already noted, the Pattern Instructions,

"although often helpful, were not prepared or mandated by this

court," United States v. Urciuoli, 513 F.3d 290, 300 n.7 (1st Cir.

2008), and "[t]here is no single prescribed way to get the aiding

and abetting concept across." Id. at 300. In order to establish

aiding and abetting liability, the government must prove, first,

that the principal committed the substantive offense charged, and

second, that the accomplice "became associated with [the

principal's criminal] endeavor and took part in it, intending to

assure its success." United States v. Matos-Quinones, 456 F.3d 14,

20 n.5 (1st Cir. 2006) (quoting United States v. Spinney, 65 F.3d

231, 234-35 (1st Cir. 1995)). While we have acknowledged that

"[t]he challenge in aiding and abetting cases is framing [the

intent element] for the jury," id., we have explicitly declined to

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require the 'shared' intent language found in some of our opinions

and in the First Circuit Pattern Jury Instructions. See Uricuoli,

513 F.3d at 299. Instead, we have observed that "a showing that

the defendant consciously shared the principal's knowledge of the

underlying criminal act, and intended to help [him]" is one way for

the government to fulfill its burden to show that "a defendant

participated in the venture and sought by his actions to make it

succeed." United States v. Geronimo, 330 F.3d 67, 73 (1st Cir.

2003) (quoting United States v. Hernandez, 218 F.3d 58, 65 (1st

Cir. 2000)).

Here, the court's instruction certainly sufficed to

inform the jury that Gonzalez could only be guilty of aiding and

abetting if he had "'willfully' [done] something to assist in the

commission of [the] crime." The court further stated that

assistance in the commission of a crime was "willful" if it was

"done knowingly and voluntarily and with the intent to help

facilitate the commission of the crime." To the extent that the

jury's verdict rested on aiding and abetting, it thus reflects its

conclusion that Gonzalez knowingly and voluntarily assisted in the

commission of a crime, with the intent to facilitate the criminal

conduct. There is no substantive distinction between this

formulation and the language in defendant's proposed instructions

that requires the accused to "consciously share" the principal's

intent. Appellant's argument that the failure to use this

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particular phrase permitted the jury to convict the defendant of

aiding and abetting liability without finding the requisite intent

is unfounded.

Affirmed.

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