UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-20134

UNITED STATES OF AMERICA,

Plaintiff-Appellee

VERSUS

GREGG LOMBARDI,

Defendant-Appellant

Appeal from the United States District Court

For the Southern District of Texas

April 3, 1998

Before POLITZ, Chief Judge, SMITH, and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

Defendant was convicted for trafficking marijuana and for

using a juvenile in a drug offense. He appeals arguing that the

government failed to prove that he knowingly and intentionally used

a juvenile. We agree.

BACKGROUND

This case results from a cooperative sting operation between

Florida and Texas DEA agents. DEA Special Agent DeSantis and an

informant began negotiations with Appellant Gregg Lombardi

(“Lombardi”) and Al b erto Benavides (“Benavides”) to buy 2,000

pounds of marijuana. DeSantis met Lombardi and Benavides at a1 Baby powder is used when pa ckaging marijuana to mask its

smell.

2 local motel while the informant went to Benavides’ residence, which

was the stash house, to make sure the marijuana transfer occurred.

Lombardi told DeSantis that he would not be able to deliver the

full 2,000 pounds, but that he would be able to make up the

difference within a week. The informant called to confirm the

marijuana had been loaded. DeSantis then asked Lombardi if he

agreed that $630,000 was the correct price and Lombardi nodded.

Benavides and Lombardi were arrested.

Simultaneously, several DEA agents knocked on Benavides’ door

and obtained consent to enter from Hector Rubacaldo, Jr.

(“Rubacaldo”), who lived at Benavides’ house. Once inside, the

agents found five men, including Rubacaldo, who had substantial

amounts of baby powder 1 on them. The agents also found 877 pounds

of compressed marijuana, a nine millimeter pistol, and

miscellaneous drug paraphernalia. While the agents were processing

the five men, they discovered that Rubacaldo was a juvenile.

The government indicted and t he jury convicted Lombardi on

three counts: (1) violating 21 U.S.C. §§ 846, 841(a)(1) and

(b)(1)(B)(vii), conspirac y to possess with the intent to

distribute; (2) violating 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii) and

18 U.S.C. § 2, aiding and abetting possession with the intent to

distribute; (3) violating 21 U.S.C. §861(a)(1),(2), knowingly and

intentionally employing, hiring, using, persuading, inducing,

enticing, or coercing a juvenile to commit a drug offense or to3

assist in avoiding detection or apprehension.

ANALYSIS

A. COUNT THREE

Lombardi raises three issues as to count three. First, he

argues that there was insufficient evidence to show that he

knowingly and intentionally used the juvenile, Rubacaldo, in a drug

offense. Second, he argues that his conviction of count three is

invalid because the indictment failed to allege a mat erial fact,

that Lombardi was over 18. Third, he argues that his conviction is

invalid because the g overnment did not prove that Lombardi knew

Rubacaldo was a juvenile. Because we find that the government did

not prove that Lombardi knowingly and intentionally used Rubacaldo,

we do not address the last two issues.

1. Sufficiency of the Evidence

When a defendant challenges the sufficiency of the evidence

supporting his conviction, we review the challenge to determine

whether the evidence could reasonably support a finding o f guilt

beyond a reasonable doubt. J ackson v. Virginia

, 443 U.S. 307, 318

( 1979). In reviewing the record, we are to view the evidence in

the light most favorable to the prosecution and then decide whether

any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Id. Moreover, we do not

consider individual facts and incidents sep arately; rather, we

examine the evidence taken as a whole because such evidence “may.

. . especially wh en corroborated by moral coincidences, be

sufficient to constitute conclusive proof.” U nited States v.4

Rodriguez

, 15 F.3d 408, 412 (5th Cir. 1994) (internal citation

omitted). “It is not necessary that the evidence exclude every

reasonable hypothesis of innocence or be wholly inconsistent with

every conclusion except that of guilt.” U nited States v. ResioTrejo , 45 F.3d 907, 911 (5th Cir. 1995) (quoting United States v.

Bell

, 678 F.2d 547, 549 (5th Cir. 1989 (en banc) aff’d on other

grounds , 462 U.S. 356 (1983)).

Lombardi argues that there was insufficient evidence to show

that he knowingly and intentionally used Rubacaldo in a drug

t ransaction. Further, because the government did not indict him

for conspiracy or aiding and abetting in connection with Count

Three, it must show that Lom bardi himself knowingly and

intentionally used Rubacaldo. The government responds, correctly,

“that aidin g and abetting is not a separate offense, but is an

alternative charge in every indictment, whether explicit or

implicit.” U nited States v. Neal , 951 F.2d 630, 633 (5th Cir.

1 992). Unless Lombardi can show unfair surprise, it is not an

ab use of discretion to give an aiding and abetting instruction.

Id. Here, Lombardi does not allege unfair surprise. We thus turn

to whether Lombardi was properly convicted of aiding and abetting.

To be convicted of aidi ng and abetting, the defendant must

have (1) associated with a criminal venture, (2) participated in

the venture, and (3) sought by action to make the venture

successful. U nited States v. Fierro

, 38 F.3d 761, 76 8 (5th Cir.

1994), cert. denied

, 514 U.S. 1051 (1995). Moreover, to aid and

abet, a defendant must share in the intent to commit the offense as5

well as play an active role in its commission. I d. ; see also

,

United States v. Fischel

, 686 F.2d 1082, 1087 (5th Cir. 1982). The

g overnment argues that Lombardi fulfills the criteria because he

associated with, participated in, and sought to make successful the

drug trafficking ring. The government’s argument fails, however,

since the criminal venture in Count 3 is not the drug trafficking

but the use of a minor in a drug offense. Were we to agree with

the government, the difference between conspiracy, fo r which the

government specifically stated it did not indict Lombardi in Count

3, and aiding and abetting would cease to exist. Thus, for

Lombardi’s conviction for violating 18 U.S.C. § 861 to stand, he

must have aided and abetted each material element of the alleged

offense in Count 3. S ee

, United States v. Williams

, 985 F.2d 749,

753 (5th Cir. 1993) (holding that to be guilty of aiding and

abetting possession of drug s with intent to distribute, the

defendant must have aided both the possession and the intent to

distribute).

This Circuit has not discussed aiding and abetting liability

when a defendant assists in a broader scheme which encompasses the

charged offense; therefore, we look to our sister circuits for

guidance. In doing so, we find the Second Circuit’s reasoning in

United States v. Medina

, 32 F.3d 40 (2nd Cir. 1994) helpful.

There, Medina devised a plan to rob his former employer and

recruited another, Lopez, to carry out the plan. Lopez, in turn,

recruited two other confederates. The day the robbery was to

occur, Medina asked Lopez whether he had a gun. Lopez replied that6

one of the confederates did. Medina provided Lopez with another

gun and instructed him on how to use it. The defendants were

arrested before they could carry out the robbery. No one had the

gun Medina gave Lopez. I d. at 42-3. Medina was convicted of

aiding and abetting the use or carrying of a firearm. He appealed

arguing insufficient evidence. The Second Circuit held that while

there was evidence showing that Medina continued to participate in

the overall robbery enterprise, there was insufficient evidence to

support his conviction for aiding and abetting the firearm offense.

Medina must have aided and abetted the specific crime and not just

the overall scheme. I d. at 45. We find a similar situation here.

There is enough evidence to convict Lombardi of aid ing and

abetting the overall drug trafficking scheme, but that evidence is

not sufficien t to uphold the 21 U.S.C. § 861 violation. The

government argues that we should affirm the convi ction because

Lombardi and Benavide s engaged in direct contact with each other

during the negotiation process, because the juvenile and Benavides

lived at the same address, and because the juvenile had baby powder

on his clothes. It argues that this evidence shows that Benavides

employed, used, or hired Rubacaldo, Jr. to engage in the drug

trafficking offense. Lombardi, then, is liable as an aider and

abettor for the acts of his accomplices.

We reject this argument. The government seems to be confusing

aiding and abetting with conspiracy. It is not enough for

Lombardi’ s accomplices to use, hire, or employ Rubacaldo. This

Circuit requires that the aider and abettor seek by action to make7

the venture succeed. U nited States v. Medina

, 887 F.2d 5 28, 532

(5th Cir. 1989). Therefore, Lombardi must have acted in seeking to

hire, use, or employ Rubacaldo. There is no evidence in the record

that Lombardi ever had any contact wi th Rubacaldo. No DEA agent

ever saw Lombardi in the same company with Rubacaldo. In fact, the

government even argued in its closing that a good trafficker does

not “want to meet and greet and know the ones at the bottom of the

organization because then there is too much exposure.” We

conclude, therefore, that the evidence is insufficient to support

Lombardi’s conviction for count three.

B. SENTENCING

1. Lombardi’s Sentence for an Aggravating Role

Because Lombardi’s sentence under U.S.S.G. § 3B1.1 was

affected by his conviction on count three, we remand this case to

the district court for resentencing consistent with this opinion.

2. Lombardi’s Base Offense Level

Lombardi’s final complaint is that the district court erred in

calculating the amount of marijuana att ributed to Lombardi for

purposed of determining his base offense level within the

Sentencing Guidelines. Lombardi’s presentence investigation report

held him responsible for 2,000 pounds of marijuana, which resulted

in a base offense level of 31 under U.S.S.G. § 2D1.2(a)(2).

Application Note 12 of U.S.S.G. § 2D1.2(a)(2) permits a court to

use the negotiated quantity of drugs in determining b ase offense

level unless the defendant was not reasonably capable of producing

t he amount. Lombardi objected arguing that the drug transaction8

involved only 877 pounds of marijuana. The district court overruled

Lombardi’s objection stating that it was just a matter of time

before Lombardi would have come up with the remaining 1,123 pounds.

It is well-established law in this Circuit that, generally,

the burden of proof at sentencing is a preponderance of the

evidence. U nited States v. Mergerson

, 4 F.3d 337, 343 (5th Cir.

1993). The clearly erroneous standard of review protects the

district court’s determination of the amount of drugs involved in

an offense. Id. at 345.

Lombardi argues that the evidence at trial showed that the

conspirators were not capable of providing the 2,000 pounds for

which he was held accountable. He points out that he had to ask

Benavides when he could provide the remai ning amount. Moreover,

Lombardi argues that he was not reasonably capable of producing the

2 ,000 pounds. The amount of 2,000 pounds was one that Agent

DeSantis had determined to buy even before he met with Lombardi.

Thus, the base offense level for the 2,000 pounds was clearly

erroneous.

We disagree. The evidence supports the trial court’s

determination. While Agent DeSantis may have decided to buy 2,000

pounds of marijuana, Lombardi agreed to the amount. In fact while

Lomba rdi and DeSantis were negotiating for the drugs, Lombardi

repeatedly reassured Agent DeSantis that he could deliver the 2,000

pounds within ten days. Moreover, there was testimony involving

drug ledgers and documents reflecting additional pounds of

marijuana that Lombardi’s other conspirators moved; therefore, it9

was not clearly erroneous for the judge to assign a base offense

level using the 2,000 pounds.

CONCLUSION

For the foregoing we reasons, we AFFIRM the base offense level

used in the sentence, and we REVERSE the conviction on Count Three,

VACATE Appellant’s sentence and REMAND for resentencing.