PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT

___________________ ________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 14-7028 MAURICE ELON EDWARDS, Defendant - Appellant.

___________________ _________________ Appeal from the United States District Court for the Eastern District of Oklahoma

(D.C. No. 6:13-CR-00010-RAW-2)

________________ _________________ Barry L. Derryberry, Research and Writing Specialist, Offi ce of the Federal Public Defender, Tulsa, Oklahoma, (Julia L. O’Conne ll, Federal Public Defender, Office of the Federal Public Defender, Tulsa, Oklaho ma, with him on the brief) for DefendantAppellant. Linda A. Epperley, Assistant United States Attorney, Office of the United States Attorney, Muskogee, Ok lahoma, (Mark F. Green, United States Attorney, and Kyle Evan Waters, Assistant United States Attorney, Mu skogee, Oklahoma, with her on the brief) for Plaintiff-Appellee.

___________________ _________________ Before BACHARACH , BALDOCK , and McHUGH , Circuit Judges.

___________________ _________________ BALDOCK , Circuit Judge.

___________________ _________________ A jury convicted Defendant Maurice Edwa rds of a single count of Possession of Controlled Substances with Inte nt to Distribute, in violati on of 21 U.S.C. §§ 841(a)(1), FILED United States Court of Appeals Tenth Circuit 

### March 24, 2015
Elisabeth A. Shumaker Clerk of Court2 841(b)(1)(B)(viii), 841(b)(1)(D), and 18 U.S.C. § 2. On appeal, he asserts (1) the admission of an anonymous 911 call that mentioned him by name violated the Confrontation Clause, (2) the tr ial evidence and jury instruc tions that allowed him to be convicted as a principal constructively am ended his indictment, and (3) the jury instruction on aiding and abe tting omitted an essential elemen t. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. On the afternoon of January 14, 2012, an anonymous female called McAlester, Oklahoma 911 and reported information to th e dispatcher, Heather Howard. The call 1 proceeded as follows: Dispatch: Police Department. This is Heather. Caller: Um. Yeah. Um. Is there any way that we could, um,—I could make a report on something? Who could I speak with about it? Dispatch: Okay. What kind of report and what’s going on? Caller: Okay. I just know that there is going to be a car coming in with a whole lot of drugs and I just wanted to let the appropriate authorities know. Dispatch: Okay. Where are they coming from? Caller: They’re coming from Oklahoma City. They are going to take I40 and they’re gonna go down the Turnpike. Dispatch: To where? Caller: To McAlester. They’re headed to McAlester, Oklahoma.

1 This conversation actually took place in two separate phone calls. At one point, the caller was disconnected and the dispatcher immediately called her back using Caller ID.3 Dispatch: Okay. Caller: But they’re co ming from Oklahoma City. Dispatch: How do you know there’s gon na be a bunch of drugs in it? Caller: Because I’m looking at them right now leaving. Dispatch: Oh. Caller: They’re he ading that way.
*** Dispatch: Okay ma’am. Okay. You said they’re gonn a take I-40 into McAlester. Do you know where they’re coming in McAlester? Caller: Uh, no I don’t know where they’re coming in from but I know that they’re—they ta ke the turnpike and they come in through where that main street is. Li ke that first exit in McAlester. Dispatch: Uh huh. Okay. And who are these people? Caller: Um. They’re two black guys. Dispatch: Do you k now their names? Caller: Yeah. One of them is Ma urice Edwards and the other one is Tony Washington.
*** Dispatch: Did they just leave your house? Caller: No. They are about to l eave Oklahoma City. They’re packing up right now. Dispatch: But, do they st ay with you or do they stay next door to ya? Caller: Yeah. They st ay next door to me. Dispatch: Okay.4 Caller: I just know where they’re goi ng. They usually go every weekend and they stay down there. Dispatch: Okay. How do you know there’s drugs? Did you actually see the drugs? Caller: Yes. Dispatch: Like what kind of drugs is it? Caller: Like pounds of weed a nd ice and just weed and meth. Dispatch: Okay. Do you have a vehi cle description? Can you see a tag number?
*** Caller: . . . I couldn’t get the tag nu mber but all I know is, um, it’s a gray Altima but I did not get the tag number.
*** Dispatch: Okay. And does Tony live in Oklahoma City? Caller: Uh, Tony—Tony is from McAlester but he lives here I guess. Dispatch: Okay. Okay. And it’s a gray Altima four door? Caller: Yeah.
*** Caller: It’s a rental. Dispatch: A rental? Caller: Yeah. Dispatch: Okay. And do you know where they’re hiding the drugs? Caller: No I don’t. Dispatch: Where were they putting the bags at?5 Caller: In the trunk and in the front. But the thing is that I really would not want them to know that it was like me th at told you— Dispatch: No. No we wo uldn’t do that. We—your— Caller: But I gave you the phone nu mbers—I mean their names though. I mean, like they’re go nna know that I’m giving you their names. Dispatch: No they won’t. Caller: Okay. Dispatch: They’ll just do a—th ey’ll just do a traffic stop. Caller: Oh, okay. Dispatch: Yeah. And then they’ll run their ID’s. Caller: Okay. Dispatch: Is how they’ll do it. Um, can I transfer you to a detective? Caller: Yes. Dispatch: Okay. Hold on just a second.
*** [End of phone call] Based on this information, McAleste r Police Officer Chuck Sutterfield began looking for a gray four-door Ni ssan Altima. At about 5:00 p. m., Officer Sutterfield saw a vehicle matching the description and followe d it to a nearby apartment complex. The vehicle parked in the complex and two men got out and walked to one of the apartments. Although he did not immediately recall Edwards’s name, Officer Sutterfield recognized Washington as the driver an d Edwards as the passenger be cause he had gone to high6 school with them. Officer Sutterfield then ca lled for backup, including an officer with a certified K-9 narcotics dog. The dog alerted to the presence of drugs in the Altima. After listening to the anonymous 911 call and observing the narco tics dog alert next to the Altima, Detective Shawn DeLana procured a wa rrant to search the Altima. The parties stipulated that the drugs found in the Altima pursuant to this warran t amounted to about 33 grams of methamphetamine and 7. 35 kilograms of marijuana. Other evidence tied Edwards to the Altima generally a nd the drugs specifically. For example, Edwards’s mother had rented the Altima becau se her car was in the shop and she testified at trial that she had loaned the Altima to Edwards. Moreover, the Altima contained a black Nike bag. This Nike bag contained a Wal- Mart receipt that was traced back to Edwards; it also contained 14 bricks of marijuana. A grand jury issued an indictme nt charging Edwards as follows: COUNT ONE [21 U.S.C. §§ 841(a)(1 ), 841(b)(1)(B)(viii) an d 841(b)(1)(D) and 18

U.S.C. § 2 - Possession of Contro lled Substances with Intent to Distribute] On or about January 14, 2012, w ithin the Eastern District of Oklahoma, the defendants, ANTHONY DEXTER WASHINGTON, II, a.k.a. Tony Washington, and MAURICE ELON EDWARDS, did aid and abet one another to unlawfully, knowingly and intentionally possess with the intent to distribute five (5) grams or more of actual Methamphetamine, a Schedule II cont rolled substance, and a mixture or substance containing less than 50 kilo grams of Marijuana, a Schedule I controlled substance. All in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(B)(viii) and 841(b)(1)(D) and Title 18, United States Code, Section 2. (brackets and bold in original).7 At trial, the government mentioned th e anonymous 911 call in opening argument, and later presented the call to the jury as a recording and through the testimony of Dispatcher Howard. The district court ove rruled Edwards’s last-mi nute objection to the presentation of this evidence, observing that “out of court statem ents are not hearsay when offered for the limited purpose of e xplaining why a government investigation was undertaken.” The court also admonished th e jury that it could consider Dispatcher Howard’s testimony and the 911 call recording “only . . . as an explanation of why the government can commence an investigation, okay? You may not consider it for any truth of the matter asserted. Meaning you may no t consider it for determining whether or not the defendants were transporting drugs, okay ?” The government also discussed the call in its closing argument, pointing out that th e call never mentioned “a nyone else in that vehicle, just Tony Washington and Maurice Ed wards.” But the court again instructed the jury that it could only consider the 911 call to explain why the government investigation was undertaken. In listing the essential elements of Edward s’s crime, the jury instructions stated: The defendants are charged in Co unt One of the Indictment with aiding and abetting one a nother to commit a violatio n of 21 United States Code section 841(a)(1). This law makes it a crime to posse ss a controlled substance with the intent to distribute it. Methamphe tamine and Marijuana are controlled substances. To find either defendant guilty, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First : the defendant knowingly and in tentionally possessed at least one of the controlled s ubstances as charged or the defendant knowingly and intentionally aided and abetted the ot her to possess at least one of the controlled substances as charged;8 Second : the controlled substance was Methamphetamine and/or Marijuana; and Third : the defendant possessed the s ubstance with the intent to distribute it or the defendant aided and abe tted the other to possess the substance with the intent to distribute it. As to aiding and abetting, th e jury instructions stated: The Indictment charges a violati on of 18 U.S.C. § 2. This law makes it a crime to inte ntionally help someone else commit a crime. To find a defendant guilty of this crime, you must be convinced that the government has proved beyond a r easonable doubt that the defendant intentionally associated himself in some way with the crime and intentionally participated in it as he would in some thing he wished to bring about. This means that the govern ment must prove that the defendant consciously shared the other person’s knowledge of the underlying criminal act and intended to help him. After deliberating, the jury found “bey ond a reasonable doubt that Defendant [Edwards] either possessed w ith intent to distribute or aided and abetted in the possession with intent to distribute” marijuana and 5 grams or more of methamphetamine.
II. Edwards raises three argum ents on appeal. First, he argues the anonymous 911 call was testimonial hearsay, and thus, its ad mission at trial violated the Confrontation Clause of the United States Constitution. Second, he argue s his indictment charged him only as an aider and abettor, no t a principal, so the trial ev idence and jury instructions which allowed him to be convicted as a prin cipal presented the jury with an uncharged basis for conviction and thus constructively am ended his indictment. Third, he argues the jury instructions failed to list as an essential element that, to find Edwards guilty as an aider and abettor, the jury must find bey ond a reasonable doubt that someone else committed the charged crime. We addre ss and reject each argument in turn.9 A. The Confrontation Clause of the Si xth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. “Although a district court’s ev identiary rulings are re viewed for abuse of discretion, whether admission of such eviden ce violates the Confrontation Clause is reviewed de novo.” United States v. Town ley, 472 F.3d 1267, 12 71 (10th Cir. 2007). The “primary object” of the Confrontati on Clause is “testi monial hearsay.” Crawford v. Washington, 541 U.S. 36, 53 (2 004). The Clause does not bar the use of statements (even testimonial statements) that are not hearsay, i.e., that are offered for purposes other than establishing the truth of the matter asserted. Id . at 59 n.9 (2004); see also Tennessee v. Street, 471 U.S. 409, 414 (198 5); United States v. Becker, 230 F.3d 1224, 1228 (10th Cir. 2000) (“Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. S ee Fed. R. Evid. 801(c). Tes timony which is not offered to prove the truth of an out-of-cou rt statement, but is offered in stead for relevant context or background, is not considered hearsay.”). A nd we have long recognized that “an out of court statement is not hearsay if it is offere d for the limited purpose of explaining why a government investigation was undertaken.” Un ited States v. Freeman, 816 F.2d 558, 563 (10th Cir. 1987). Of course, “[a]scertaining the purpose eviden ce serves . . . is no t an easy task.” United States v. Hinson , 585 F.3d 1328, 1337 (10th Cir. 2009). But we need not grapple with that task here. Even assuming the evidence of th e 911 call in this case was inadmissible hearsay, the admission of which violated the Confront ation Clause, “[s]uch10 an error is harmless if the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the improperly ad mitted evidence is so insignificant by comparison, that it is clear beyond a r easonable doubt that the improper use of the evidence was harmless error.” Becker, 230 F.3d at 1230 (internal quotation marks and alterations omitted). 2 Indeed, in both Becker and United States v. Cass, 127 F.3d 1218 (10th Cir. 1997), we held that statements offered as “background ” were in fact inadmissible hearsay. Yet in both cases we concluded that the ad mission of these statements was harmless. 3 In Becker, we held the error harmless based on (1 ) the trial court’s limiting instruction to the jury, (2) the wealth of other evidence of Becker’s guilt, a nd (3) the “utter implausibility of Becker’s proffered alternativ e explanation” for the presence of drugs at his residence. 230 F.3d at 1230–31. Similarl y, in Cass, we held the admission of “scores of [hearsay] statements,” many of which “were not a ccompanied by limiting instructions” was nevertheless harmless because the admissibl e evidence against Cass was itself “quite damning,” and the defense’s case was re latively weak. 127 F.3d at 1223–25. As in Becker, the trial court here admoni shed the jury to consider the 911 call evidence only for the non hearsay purpose of explaining why the government

2 The same harmless error analysis would appl y if we instead determined the statements were not hearsay, but were nevertheless unduly prejudicial under Fed. R. Evid. 403’s balancing test. See Becker, 230 F. 3d at 1230 (Baldock, J., concurring).

3 Similarly, we reviewed the admission of hearsay evidence in Hinson for plain error, and held that there was none, “as any error in the admission of this [hearsay] evidence did not affect Hinson’s substantial rights,” give n the weight of the other evidence against him. 585 F.3d at 1338.11 commenced its investigation, and not for any tr uth of the matter assert ed. Moreover, as in both Becker and Cass, the admissible evidence against Edwards was quite damning. Officer Sutterfield saw Edwards get out of his mother’s car, which itself smelled strongly of marijuana, right before the police found co pious amounts of marijuana and meth in the car. Furthermore, a bag in the trunk of th e car contained 17 bricks of marijuana and a receipt tied to Edwards, a bag at the foot of the passenger seat where Edwards had been sitting also contained marijuan a, and the glove box in fr ont of the passenger seat contained methamphetamine and dr ug paraphernalia. In light of this evidence, Edwards’s proffered defense (that he had no idea drugs were in the car) is utterly implausible. Thus, we are satisfied that any error here was harmless beyond a reasonable doubt.
B. We turn now to Edwards’ s constructive amendment argument. “A constructive amendment results when the terms of an i ndictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other th an the one charged in the indi ctment.” United States v. Rosalez, 711 F.3d 1194, 1210 (10th Cir. 2013) (internal quot ation marks and alterations omitted); see also Stirone v. United States, 36 1 U.S. 212, 217 (1960) (“[A] court cannot permit a defendant to be tried on charges that are not made in the indictment against him.”). Edwards argues his indictment was constructively amended because the indictment charged him only as an aider and abettor but the presentation of evidence at trial and jury instructions allo wed the jury to convic t him in the alternative as a principal.12 Edwards never objected on th ese grounds below, so we review his claim for plain error. United States v. Gonzalez Edeza, 359 F.3d 1246, 1250 (10th Cir. 2004). “Plain error occurs when there is (1 ) error, (2) that is plain, wh ich (3) affects the defendant’s substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial procee dings.” United States v. Ra usch, 638 F.3d 1296, 1299–300 (10th Cir. 2011) (internal quotati on marks and alterations omitted). Edwards’s claim fails on the first prong because no erro r occurred here. In order to hold Edwards’s indictment was constructiv ely amended by the trial evidence and jury instructions that allowed him to be convicted in the alternative as a principal, we would first have to hold the indictment itself was in sufficient to charge him in the alternative as a principal. This we cannot do, as his indictment suffici ently charged him as both an aider and abettor and as a principal. “We review the sufficiency of an indictme nt de novo.” United States v. GamaBastidas, 222 F.3d 779, 785 (10th Cir. 2000). “A n indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enable s the defendant to assert a double jeopardy defense.” United States v. Washington, 653 F.3d 1251, 1259 (10th Cir. 2011) (quoting Gama-Bastidas, 222 F.3d at 785). “The test of the validity of the indictment is not whether the indictment could have been framed in a more satisfactory manner, but whether it conforms to minima l constitutional standards. Further, when evaluating an indictment’s sufficiency, we em ploy practical rather than technical considerations.” Id. (internal citation and quotation marks om itted). “Moreover, when an appellant13 challenges an indictment for failure to state an offense for the first time on appeal . . . the countervailing interest in judicial efficien cy requires that tardily-challenged indictments be construed in favor of validity.” Id. (int ernal quotation marks omitted). Indeed, “[i]f a defendant does not challenge an indictment until after a verdict or guilty plea, and if he does not assert prejudice, that is, if he had no tice of the crime of which he stood accused, the indictment is to be read with maximum liberality.” Ga ma-Bastidas, 222 F.3d at 786 (internal quotation marks omitted). Edwards did not challenge his indictment below. However, on appeal he briefly mentions his Sixth Amendment right to notice, albeit in relation to the fourth prong (miscarriage of justice) rather than the firs t prong (error) of plain error. We therefore construe his indictment in fa vor of validity, but do not read it with maximum liberality. Construing Edwards’s indictment in favor of validity, we conclude that it adequately charged him with possession with intent to dist ribute as an aider and abettor and, in the alternative, as a principal. “First, the indictment suffici ently sets forth the elements of the offense charged.” Washington, 653 F.3d at 1261 (internal quotation marks omitte d). Both the body and the caption of the indictment cite 21 U.S.C § 841, and the body recites the elements of possession with intent to distribute, name ly, “unlawful[], knowing[] and intentional[] possess[ion] with the intent to distribute” marijuana and methamphetamine. Moreover, the indictment’s caption states that it charge s “Possession of Controlled Substances with Intent to Distribute.” See Wa shington, 653 F.3d at 1261 (e xplaining that, although “‘the caption is not a controlling part of the indict ment,’ . . . we can ‘us[e] the caption to14 supplement and clarify the charging intent of th e grand jury that is expressed in the body of the indictment.’” (quoting Gama–Bastidas, 222 F.3d at 787 )). Finally, we have no problem concluding that the indictment en ables Edwards to assert a double jeopardy defense. He makes no argument to the contra ry, nor could such an argument fairly be made. “This is especially tr ue because the entire record, no t just the indictment, may be referred to in order to protect against double jeopardy if a subsequent prosecution should occur.” Id. (internal citations and quotatio n marks omitted). And, as Edwards concedes, the record establishes that he was tried for possession with inte nt to distribute, either as an aider and abettor, a principal, or both. Edwards implies his indictment was insufficient because it charged him “ only with aiding and abetting Anthony Washington to po ssess drugs with intent to distribute.” Def.’s Br. at 19 (emphasis added). But the i ndictment itself belies this contention. The indictment states that Edwards an d Washington “did aid and abet one another to unlawfully, knowingly and intentionally possess with the intent to distribute” marijuana and methamphetamine. (Emphasis added). “[ A]iding and abetting is not an independent crime under 18 U.S.C. § 2; the statute provid es no penalty, but me rely abolishes the common-law distinction between principal a nd accessory.” United States v. Cook, 745 F.2d 1311, 1315 (10th Cir. 1984 ). And we have long held th at “an aider and abettor may be charged and convicted as a principal.” United States v. Rodgers, 419 F.2d 1315, 1317 (10th Cir. 1969) (citing Nance v. Baker, 400 F.2d 864 (10th Cir. 1968)). As such, the fact that an indictment charges two defenda nts with aiding and abetting one another to commit a crime does not limit the government to a conviction based sole ly on a theory of15 aiding and abetting. See, e.g ., United States v. Rubio, 321 F.3d 517, 522 & n.4 (5th Cir. 2003) (holding that an indictment charge d the defendants “both as principals and accomplices” where it charged them with “each aiding and abetting the other”). 4 Construed in favor of validity, the langua ge of Edwards’s indictment establishes that there were at least thre e alternative means by which the grand jury believed Edwards could have committe d the substantive offense: Either (1) Edwards aided and abetted Washington, necessarily making Washington the principal; (2) Washington aided and abetted Edwards, necessarily making Edwards the principal , or (3) both Edwards and Washington possessed with in tent to distribute the drug s and therefore necessarily participated in the offense making them bo th principals and aiders and abettors.

4 In Rodgers, we held that convictions base d on indictments that charged all defendants with “aid[ing] and abe tt[ing] ‘each other to instigate, connive and willfully attempt to cause a mutiny and riot at [a] penal and corr ectional institution’ in violation of Title 18 U.S.C. §§ 2 and 1792” could not be sustained. 419 F.2d at 1317. But there it was clear “from the record and the presen tation in this court that the purpose of the indictment was to charge the individual defenda nts as aiders and abettors and not as principals .” Id. (emphasis added). Moreover, the indictment s nowhere alleged that anyone actually instigated or caused the riot, rather, the cause of the riot was unknown. We therefore declined to sustain the defendants’ convictio ns because “one cannot be guilty of aiding and abetting in the commission of a crime until it has been established that someone has committed that crime.” Id. Here, on the other hand, the indictment a lleges that either Edwards, Washington, or both, “unlawfully, knowingly and inten tionally possess[ed] with the intent to distribute” marijuana and metham phetamine, and the record and presentation in this court establishes as much. Moreover, the evidence presented at trial was clearly sufficient to establish that someone, whether Edward s, Washington, or both, committed the substantive offense. Thus, Rodgers in no way undermines our decision here.16 In sum, the trial evidence and jury instructions that allowed the jury to convict Edwards as a principal did not amend his indictment because the indictment itself sufficiently charged him as both an aider and ab ettor and, in the alternative, a principal.
C. Edwards’s third and final challenge is to the jury instru ction on aiding and abetting. Edwards argues that the aiding and abetting instruction omitted an essential element, namely, that someone else comm itted the charged crime. As with his constructive amendment argument, Edwards co ncedes that he di d not object to the instruction below, and thus , that we review this ch allenge only for plain error. As Edwards points out, the aiding and abe tting instruction given at his trial varied from our pattern jury instructions, which require the jury to find:
First : someone else committed the charged crime, and Second : the defendant intentionally associ ated himself in some way with the crime and intentionally participated in it as he would in something he wished to bring about. This means that the government must prove that the defendant consciously shared the other pers on’s knowledge of the underlying criminal act and intended to help him. Pattern Crim. Jury Instr. 10th Cir. 2.06 (2011) Here, on the other hand, the jury instructions provided that: The defendants are charged in Co unt One of the Indictment with aiding and abetting one a nother to commit a viola tion of 21 United States Code section 841(a)(1). *** To find either defendant guilty, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First : the defendant knowingly and in tentionally possessed at least one of the controlled s ubstances as charged or the defendant knowingly and17 intentionally aided and abetted the ot her to possess at least one of the controlled substances as charged; Second : the controlled substance was Methamphetamine and/or Marijuana; and Third : the defendant possessed the s ubstance with the intent to distribute it or the defendant aided and abetted the other to possess the substance with the intent to distribute it. Edwards argues that, because his jury in structions did not list as a standalone element of aiding and abetting the fact that someone else committe d the crime, “[t]his enabled the jury to conv ict both defendants on the basis that they were aiders and abettors . . . without finding that anyone committ ed the charged crime.” We disagree. Even assuming the district court erred by not listing the fact that someone else committed the crime as a standal one element of aiding and abe tting, any such error is not plain. For one thing, district courts ar e by no means required to follow pattern jury instructions verbatim. See United States v. Lofton, 776 F.2d 918, 922 (10th Cir. 1985) (“While pattern instructions provide valuable guidance to the trial courts, over-reliance may produce instructions unsuited to the par ticular case.”). On the other hand, the law “is clear that before one can be convicted as an aider and abe ttor, the jury must first find that the substantive offense ha s been committed.” United Stat es v. Morris, 612 F.2d 483, 496 (10th Cir. 1979) (footnote om itted); Rodgers, 419 F.2d at 131 7. But whether the jury instruction here omitted that element is far fr om clear. Indeed, Wa shington and Edwards were the only defendants in this case. As such, we fail to see how a jury could find beyond a reasonable doubt that Edwards “know ingly and intentionally aided and abetted the other [Washington] to possess at least one of the controlled substa nces as charged” and “aided and abetted the other [Washington] to possess the s ubstance with the intent to18 distribute it,” without necessarily fi nding beyond a reas onable doubt that the other , Washington, committed the substantive offense of possession with inte nt to distribute. Moreover, because under these jury instructi ons the jury had to find that Washington committed the substantive o ffense before it could find Edwards aided and abetted Washington to commit the crime, or vice versa, we fail to see how Edwards’s substantive rights could have been affected by not lis ting this finding as a standalone element. Given that Edwards’s indictment was suffici ent to charge him as both an aider and abettor and, in the alternativ e, as a principal, and becaus e any error in his aiding and abetting instruction was not plain, we have no problem affirming Edwards’s conviction based on the jury’s finding beyond a reasonable doubt that he “either possessed with intent to distribute or aided and abetted in the possessi on with intent to distribute” marijuana and 5 grams or more of metham phetamine. See Sullivan v. Bruce, 44 F. App’x 913, 915 (10t h Cir. 2002) (“It is settled law th at when a single crime can be committed by various means, th e jury need not un animously agree on which means were used so long as they agree that the crime was committed.”). 5 Accordingly, Edwards’s conviction is AFFIRMED.

5 Finally, because Edwards’s indictment wa s in no way construc tively amended, his argument that any error in his aiding and ab etting instruction should be considered cumulatively with his construc tive amendment claim fails.