Case: 21-10623 Document: 00516269280 Page: 1 Date Filed: 04/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 6, 2022
No. 21-10623 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Brian Henry Kincade,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-290-24
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
A grand jury indicted Brian Henry Kincade on three counts of
conspiring to dispense and distribute, or to possess with intent to dispense
and distribute a controlled substance—specifically, hydrocodone (count 1),
carisoprodol (count 2), and promethazine with codeine (count 3). It also
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-10623 Document: 00516269280 Page: 2 Date Filed: 04/06/2022
No. 21-10623
indicted him on two counts of possessing with intent to distribute and
dispense a controlled substance—hydrocodone (count 20) and carisoprodol
(count 21)—while “aided and abetted by others.” Kincade unsuccessfully
moved to dismiss these latter two counts on duplicity grounds, and he was
later found guilty as charged on all five counts. The district court sentenced
him to 200 months of imprisonment and three years of supervised release.
Kincade challenges only the district court’s denial of his motion to dismiss.
We review Kincade’s duplicity claim de novo. United States v. Sharpe,
193 F.3d 852, 866 (5th Cir. 1999). “An indictment is duplicitous if it joins in
a single count two or more distinct offenses.” Id. at 865 (internal quotation
marks and citation omitted). “[O]ur task is not to review the evidence
presented at trial to determine whether it would support charging several
crimes rather than just one, but rather solely to assess whether the indictment
itself can be read to charge only one violation in each count.” United States v.
Mauskar, 557 F.3d 219, 225 (5th Cir. 2009) (internal quotation and citation
omitted).
Counts 20 and 21 were not duplicitous. Kincade contends that the
duplicity in these counts results from the inclusion of the aiding and abetting
allegation. His argument misunderstands the nature of aiding and abetting
liability. “Aiding and abetting is not a separate offense, but it is an alternative
charge in every indictment, whether explicit or implicit.” United States v.
Neal, 951 F.2d 630, 633 (5th Cir. 1992). Because aiding and abetting is not a
separate offense, there is no duplicity problem.
The judgment is AFFIRMED.
2