United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1172

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United States of America, *

*

Appellant, *

* Appeal from the United States 

v. * District Court for the Northern 

* District of Iowa.

Juan Negrete Santana, *

*

Appellee. *

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Submitted: November 13, 2007

Filed: March 28, 2008

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Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

A jury convicted Juan Negrete Santana of possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court granted

his motion for judgment of acquittal. The government appeals. Having jurisdiction

under 18 U.S.C. § 3731, this court reverses and remands.

On May 3, 2006, an Iowa state trooper stopped a vehicle near Onawa, Iowa.

Alberto Maldonado-Gutierrez was driving. Negrete was the only passenger. The car

was registered to Carlos Lima, an alias of Maldonado. The trooper immediately

noticed several air fresheners, which can signal the presence of narcotics. The trooper

interviewed Maldonado and Negrete separately. Although both stated they were
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driving from Omaha to Sioux City, Iowa, they gave inconsistent statements about the

purpose of the trip, the specific destination within Sioux City, and their relationship

to each other. While being questioned, Negrete appeared extremely nervous – his

hands were shaking, he held and repeatedly looked at a religious card, and his heart

was beating quickly. After a drug-detection dog alerted to narcotics, officers searched

the vehicle. They found meth concealed within the center console (not visible without

lifting its plastic liner). A small amount of meth was also found in Negrete’s sock.

Maldonado and Negrete were arrested.

After Negrete was in custody, Officer Salvador Sanchez questioned him (in

Spanish). Negrete said he had made two previous trips to Sioux City with Maldonado,

receiving $100 per trip. During one trip, Negrete wrote street names, in English, on

a map of Sioux City (found during the search of the vehicle). Negrete said the

purpose of the current trip was to collect drug money, and that he expected again to

be paid $100. He stated that he did not know their specific destination within Sioux

City, and that on the two prior trips, he had been dropped off at public places before

Maldonado collected money. Although he had been warned that Maldonado was

involved in drugs, Negrete repeatedly insisted that he had never seen Maldonado with

drugs and denied knowing meth was in the vehicle roughly 19 times.

Negrete was charged with one count of possession with intent to distribute

meth. At trial, the government presented the testimony of the trooper, Officer

Sanchez, and another officer who assisted with the search of the vehicle. Negrete was

the only defense witness. Although he repeated most of what he told the officers

when arrested, there were some minor inconsistencies, including that he actually knew

their specific destination within Sioux City and was paid only $50, not $100, for the

first trip. Negrete admitted lying to the officers because Maldonado asked him to as

the trooper approached the vehicle. He reiterated he had no knowledge that the meth

was in the vehicle. 
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The jury found Negrete guilty. The district court granted his motion for

judgment of acquittal, finding insufficient evidence to prove beyond a reasonable

doubt that Negrete knew meth was in the vehicle. The government appeals.

Under Rule 29(a), a court “must enter a judgment of acquittal of any offense for

which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).

This court reviews “the sufficiency of the evidence de novo, viewing evidence in the

light most favorable to the government, resolving conflicts in the government’s favor,

and accepting all reasonable inferences that support the verdict.” United States v.

Piwowar, 492 F.3d 953, 955 (8th Cir. 2007) (internal quotation marks and citation

omitted). A court should not weigh the evidence or assess the credibility of witnesses.

United States v. Hernandez, 301 F.3d 886, 889 (8th Cir. 2002). The standard is very

strict, and this court “will reverse the conviction only if we conclude that no

reasonable jury could have found the accused guilty beyond a reasonable doubt.”

United States v. Beck, 496 F.3d 876, 879 (8th Cir. 2007). 

The government argues that the evidence at trial was sufficient for a reasonable

jury to find Negrete guilty of possession of meth with intent to distribute, based on an

aiding-and-abetting theory. “To sustain a conviction for aiding and abetting with

intent to distribute drugs, the government must prove: (1) that the defendant

associated himself with the unlawful venture; (2) that he participated in it as

something he wished to bring about; and (3) that he sought by his actions to make it

succeed.” United States v. McCracken, 110 F.3d 535, 540 (8th Cir. 1997) (internal

quotation marks and citation omitted). Mere association between a principal and the

defendant is not sufficient, nor is mere presence at the scene and knowledge that a

crime was to be committed. United States v. Ellefson, 419 F.3d 859, 863 (8th Cir.

2005). However, “jurors can be assumed to know that criminals rarely welcome

innocent persons as witnesses to serious crimes and rarely seek to perpetrate felonies

before larger-than-necessary audiences.” Id. (internal quotation marks and citation

omitted).
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Negrete focuses on the numbered elements of aiding-and-abetting as set out in

the jury instruction in this case (which was based on the model instruction). See

Eighth Circuit Model Criminal Jury Instruction § 5.01. Negrete, echoing the

district court, asserts there is no evidence that he knowingly acted to aid possessionwith-intent-to-distribute (the second element), or that he intended to possess

controlled substances with the intent to distribute (the third element). Negrete

analogizes the facts of his case to those in United States v. Mendoza-Larios, 416 F.3d

872 (8th Cir. 2005), United States v. Fitz, 317 F.3d 878 (8th Cir. 2003), and United

States v. Pace, 922 F.2d 451 (8th Cir. 1990). In each of these cases, the defendant was

convicted of possession of a controlled substance with intent to distribute, and this

court reversed, based on insufficient evidence of knowing possession of the controlled

substance. Mendoza-Larios, 416 F.3d at 873; Fitz, 317 F.3d at 879-80, 883; Pace,

922 F.2d at 452-53. 

The government focuses on the traditional elements of aiding-and-abetting: the

defendant (1) associated himself with the unlawful venture; (2) participated in it as

something he wished to bring about; and (3) sought by his actions to make it succeed.

See, e.g., Nye & Nissen v. United States, 336 U.S. 613, 619 (1949), quoting United

States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938); United States v. Blaylock, 421 F.3d

758, 773 (8th Cir. 2005); Ellefson, 419 F.3d at 863; McCracken, 110 F.3d at 540;

United States v. Clark, 980 F.2d 1143, 1146 (8th Cir. 1992); United States v. Lanier,

838 F.2d 281, 284 (8th Cir. 1988); United States v. Brim, 630 F.2d 1307, 1311 (8th

Cir. 1980); United States v. Wiebold, 507 F.2d 932, 934 (8th Cir. 1974); Mays v.

United States, 261 F.2d 662, 664 (8th Cir. 1958). See also Hernandez, 301 F.3d at

890, citing United States v. Brownlee, 890 F.2d 1036, 1038 (8th Cir. 1989) (adding

the element that the defendant shared the criminal intent of the principal); United

States v. Roan Eagle, 867 F.2d 436, 445 (8th Cir. 1989), quoting Johnson v. United

States, 195 F.2d 673, 675 (8th Cir. 1952) (aider and abettor must share in the criminal

intent of the principal). 
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Although the parties approach the issue differently, the law is clear, as

expressed in the first and third paragraphs of the jury instruction in this case:

A person may be found guilty of possession with the intent to distribute

a controlled substance even if he personally did not do every act

constituting the offense charged, if he aided and abetted the commission

of possession with the intent to distribute a controlled substance. 

. . . 

For you to find the defendant guilty of possession with the intent to

distribute a controlled substance by reason of aiding and abetting, the

Government must prove beyond a reasonable doubt that all of the

elements of possession with the intent to distribute a controlled substance

were committed by some person or persons and that the defendant aided

and abetted the commission of that crime.

Thus, in an aiding-and-abetting case, the government is not required to prove that the

defendant possessed the controlled substance. United States v. Castro-Gaxiola, 479

F.3d 579, 583 (8th Cir. 2007); United States v. Mendoza, 421 F.3d 663, 669 (8th Cir.

2005). See also United States v. Frorup, 963 F.2d 41, 43 (3d Cir. 1992); United

States v. Salazar, 958 F.2d 1285, 1292 (5th Cir. 1992); United States v. Clark, 928

F.2d 733, 736 (6th Cir. 1991); United States v. Valencia, 907 F.2d 671, 678 (7th Cir.

1990); United States v. Poston, 902 F.2d 90, 94 (D.C. Cir. 1990); United States v.

Ginsberg, 758 F.2d 823, 832 (2d Cir. 1985). The Mendoza-Larios, Fitz, and Pace

cases are inapposite, as the defendants there were charged only with possession of a

controlled substance with intent to distribute. Mendoza-Larios, 416 F.3d at 873; Fitz,

317 F.3d at 880; Pace, 922 F.2d at 452. In this aiding-and-abetting case, the

government must prove Negrete associated himself with the unlawful venture,

participated in it as something he wished to bring about, and sought by his actions to

make it succeed. See Nye & Nissen, 336 U.S. at 619. The evidence must show that

Negrete shared in Maldonado’s criminal intent. Brownlee, 890 F.2d at 1038.
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The district court gave a limiting instruction regarding Negrete’s prior trips,

advising the jury that “there is no evidence in relation to whether this defendant has

committed some kind of crime in the past and that that is not evidence that he

committed such a crime in this case.” 

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Viewing the evidence most favorably to the verdict, there was sufficient

circumstantial evidence for a reasonable jury to conclude that Negrete aided and

abetted possession with intent to distribute meth. The government presented evidence

that Negrete: (1) knew Maldonado was a drug dealer; (2) knew the purpose of the trip

to Sioux City was to collect drug money; (3) was to receive $100 for the trip; (4) had

previously accompanied Maldonado on two trips to Sioux City, receiving payment for

each;1

 (5) lied to officers at the scene (at Maldonado’s request) and in post-Miranda

statements; (6) appeared extremely nervous during the entire stop; and (7) had meth

in his sock. This evidence was sufficient for a reasonable jury to conclude that

Negrete shared Maldonado’s criminal intent by associating with and participating in

the unlawful venture and attempting to make it succeed. See Blaylock, 421 F.3d at

773 (evidence was sufficient to support conviction for aiding and abetting possession

of meth with intent to distribute where defendant knew the purpose of the trip was to

purchase meth and introduce him to dealing illegal drugs, and defendant assisted by

cashing two checks and driving the vehicle).

The judgment is reversed, and the case remanded to reinstate the jury verdict.

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