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# United Stat es Court of Appeals

For the First C ircuit

No. 98-2274 UNITED STATES, Appellee,
v. FRANCISCO OBJIO, a/k/a CUCHI, Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge ]
Before Torruella, Chief Judge , Selya and Stahl, Circuit Judges .
Francisco Objio on brief pro se. D onaldK. Stern , United States Attorney, Mark W. Pearls tei n and Allison D. Burroughs , Assist ant U. S. Attorneys, on brief for appellee.
November 28, 2000PerCuriam . After a th orough review of the record

andof the parties submissions, we reverse the appella nt’ s conviction on Count 10 of the indictment and affirm the convictions on Counts 9 and 11.

With regard to Co unt 10, we see no evidence in the recordfrom which a rational jury could have concluded that anyone with whom appellant Francisco Objio (“Objio”) was
asso cia tedactually possessed cocaine on or about the date charged. It seems clear that a group of individuals (with whom the government claimed Objio was assoc i ated) planned a transact ion f or July 19, 1997. It also is undisputed that those plans fell through and that the transaction wa s rescheduledfor July 21, 1997. But we se e no evidence to indicate whether that deal actually was complet ed as planned. Nothing is containedin the recorded conversations which would indicate that the deal had been completed. Further, the government’s cooperating witness didnot testify that the deal
ever happened. He only stated that he pur chase d cocaine from co-defendant Osvaldo Ma ldonado (a/k/a “Pepe”) on three occasions in July 19 97. He was never asked whether one of those three o cc asions was on or about July 21. And we do not thinka ration al jury could so infer from the evidence presented. In o rder to establish Objio’s liability as an aider andabettor, th e gove rnment was required to show that someone-3-

wit h whom he was associated actually committed the charged crime (i.e., possession of cocaine with intent to distribute). See United States v. de la Cruz-Paulino , 61 F.3d986, 998 (1 st Cir. 1995). Since we see no proof that a nyone managed to complete the deal as planned, we must reverse the conviction on Count 10. We do think the evidence was sufficient to convict on Counts 9 and 11. With regard to count 11, the c ooperati ng witness testified that the group was plannin g a one kilogram purchase on the day in question. He also testified that a member of th e group (“Pepe”) paid others, including codefendant Francisco Mata (“Mata”), $500 to transport the cocaine. And because the cocaine was seized from Mata while he
was transporting it, we kn ow tha t someone associated with the group (namely, Mata) committed the substan tiv e crime: possession with intent to distribute. A r ati onal jury could further conclude that in recorded phone conversations earl i er in the day, other members of the group wer e dis cussing the pri ce to be paid for the cocaine and were trying to determi n e whether they had enough cash t o m ake the purchase. In this context, the remark, “And Cuc hi (Obj io’s a/k/a) have like seven” could be interpreted by a rational jur y to mean that Objio was contributing a portion of the purchase price. Though the remark is open to other interpretations, it was the jury’s-4-

taskto interpret the remark. We find that in light of all the evidence, t he j ury’s interpretation of the evidence was rational. For the same reasons, the conviction for cons p iracy under Count 9 should stand.

Finally, we see no plain error i n the c ourt’s instructions. The instruction with regard t o a iding and abetting a crime adequately set out the requirem ents f or a conviction. See United States v. de la Cruz-Paulino , 61 F. 3d at 998 (citing Nye & Nissen v. United States , 336 U.S. 613, 619 (1949)). To the extent any of the challenged instructions were erroneous, those alleged errors cannot constitute plain error,
a s they concern issues which were not seriously in dispu te a t tria l. See Johnson v. United States , 520 U.S. 461, 469- 7 0 (1997) (where issue “was essentiallyuncontroverted at trial .

. . and has remainedso on appeal,” error in jury instructions was not plain error).

J udg ment affirmed in part and reversed in part; matter remanded for resentencing.