[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12930

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JONATHAN JERMAINE THOMAS, 

a.k.a. Webbie, 

a.k.a. JT, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 1 of 7
2 Opinion of the Court 22-12930

D.C. Docket No. 5:21-cr-00033-JA-PRL-1

____________________

Before JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges. 

PER CURIAM:

Jonathan Jermaine Thomas appeals his convictions for conspiracy to possess with the intent to distribute controlled substances, possession of a firearm in furtherance of a drug-trafficking 

conspiracy, and possession with intent to distribute 400 grams or 

more of a substance containing fentanyl. On appeal, he raises three

arguments. First, he asserts that the district court erred by instructing the jury on the alternative charge of aiding and abetting the 

possession of a firearm in furtherance of a drug-trafficking conspiracy. Second, he contends that the district court plainly erred by 

determining that the government’s closing remarks did not violate 

his right to a fair trial. Third, he argues that the evidence was insufficient to support his conviction for possession of a firearm in 

furtherance of a drug-trafficking conspiracy. After careful review, 

we affirm.

The facts are known to the parties, and we repeat them here 

only as necessary to decide the case.

I.

Thomas first challenges the jury instructions on his charge 

of aiding and abetting the possession of a firearm in furtherance of 

a drug-trafficking conspiracy. In particular, he argues that the district court should never have instructed on that charge because 

USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 2 of 7
22-12930 Opinion of the Court 3

prosecutors (1) failed to list the aiding and abetting charge in his 

superseding indictment and (2) did not mention the charge at trial. 

We review the legal correctness of a jury instruction de 

novo and review questions of phrasing for abuse of discretion. 

United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). We 

will reverse the conviction on such grounds only if the district 

court presented the issues of law inaccurately or improperly guided 

the jury in a significant matter that violated the defendant’s due 

process rights. Id. 

Aiding and abetting is a means of holding a defendant guilty 

as a principal on the ground that he assisted someone else in the 

commission of an offense. United States v. Martin, 747 F.2d 1404, 

1407 (11th Cir. 1984). To be clear, though, it is not a separate 

crime—only a separate ground of liability. Id. The main aiding and 

abetting statute under federal law is 18 U.S.C. § 2. That statute 

provides that an individual may be punished as a principal if he

“commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission,” or “willfully 

causes an act to be done which if directly performed by him or another would be an offense against the United States.” Id. § 2 (a)–

(b). Under our case law, the government does not need to specifically allege aiding and abetting in the indictment for the district 

court to instruct the jury on the charge. Martin, 747 F.2d at 1407. 

Applying these straightforward legal principles, we conclude 

that Thomas’s challenge to the aiding and abetting jury instruction 

fails. Even though the government did not specifically charge 

USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 3 of 7
4 Opinion of the Court 22-12930

Thomas with aiding and abetting, our case law is clear: An aiding 

and abetting instruction is allowed even when the government 

does not indict on that particular count. Id.1 

II.

Thomas next argues that prosecutors called him an “idiot” 

during their closing argument and thus violated his right to a fair 

trial. Typically, we review de novo a claim of prosecutorial misconduct during closing arguments. United States v. House, 684 F.3d 

1173, 1197 (11th Cir. 2012). When a defendant fails to object at 

trial, though, we review the statements for plain error. United 

States v. Mueller, 74 F.3d 1152, 1157 (11th Cir. 1996). To show plain 

error, the defendant must show that (1) there was an error, (2) that 

is plain, (3) the error affected the defendant’s substantial rights, and 

(4) it “seriously affected the fairness, integrity, or public reputation 

of judicial proceedings.” United States v. Madden, 733 F.3d 1314, 

1320 (11th Cir. 2013) (quotation marks omitted). During their closing argument, it is improper for prosecutors to exceed the evidence 

presented at trial. United States v. Reeves, 742 F.3d 487, 505 (11th

Cir. 2014). That said, they may state conclusions drawn from the 

trial evidence and fairly respond to defense counsel’s arguments. 

Id. Closing arguments prejudice a defendant’s substantial right 

when “a reasonable probability arises that, but for the [improper]

1 It is worth noting that the superseding indictment did, in fact, list 18 U.S.C. 

§ 2 among the statutes violated. This fact further demonstrates that Thomas 

had adequate notice of the charges against him and that the jury instructions 

were not improper. 

USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 4 of 7
22-12930 Opinion of the Court 5

remarks, the outcome of the trial would have been different.” 

United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). 

As a threshold matter, we review the alleged statements at 

issue in this case for plain error because Thomas did not object to 

them at trial. See Mueller, 74 F.3d at 1157. Thomas focuses on the 

fact that the government called him an “idiot” during its closing 

remarks. But the context of the “idiot” remark in question undercuts the force of his argument. During his closing argument, 

Thomas’s lawyer argued that Thomas was innocent because the 

government did not find material on his phone showing him holding guns and drugs. In response, the government explained it could 

not uncover such evidence because Thomas was “not a complete

idiot.” Put another way, the government was merely pointing out 

that a clever individual might take some steps to conceal criminal 

activity. The district court reasonably determined this statement 

was fairly responding to the defense counsel’s arguments. Reeves, 

742 F.3d at 505. And, even if the remark was somehow “improper,” we find no reason to conclude that “but for” the government’s “idiot” comment, “the outcome of the trial would have 

been different.” Eckhardt, 466 F.3d at 947. 

III.

Finally, Thomas argues the evidence at trial was insufficient 

to support his conviction for possessing a firearm in furtherance of 

a drug distribution conspiracy. When a defendant challenges the 

sufficiency of the evidence supporting a conviction and is denied a 

Rule 29 motion for judgment of acquittal, we review the district 

USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 5 of 7
6 Opinion of the Court 22-12930

court’s determination de novo. United States v. Gamory, 635 F.3d 

480, 497 (11th Cir. 2011). While doing so, we view the evidence in 

the light most favorable to the government and make all reasonable inferences and credibility choices in favor of the jury’s verdict. 

Id. 

Like many criminal cases before it, a key source of evidence 

in this case is witness testimony. We will not upset a jury’s decision 

to credit a witness’s testimony unless the testimony is “incredible 

as a matter of law”. United States v. Isaacson, 752 F.3d 1291, 1304 

(11th Cir. 2014). For testimony to be incredible as a matter of law, 

it must concern “facts that the witness physically could not have 

possibly observed” or events impossible “under the laws of nature.” Id. (quotation marks omitted).

Because Thomas moved for judgment of acquittal at trial, 

we review his sufficiency of the evidence challenge de novo. See 

Gamory, 635 F.3d at 497. Under that standard, we conclude the 

government presented sufficient evidence for the jury to convict 

Thomas for possessing a firearm in furtherance of a drug distribution conspiracy. For instance, one witness testified that Thomas 

routinely carried a pistol while delivering drugs. Another said he

saw Thomas deliver and sell drugs and that Thomas routinely carried a firearm in his pocket. Notably, the jury found both witnesses’ testimonies credible. Given the substance of the testimony, 

we determine that the defendant’s actions described by the witnesses were physically observable to them, and none of the 

USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 6 of 7
22-12930 Opinion of the Court 7

conduct detailed by the testimony is impossible under the laws of 

nature. Isaacson, 752 F.3d at 1304. 

* * *

To sum up, Thomas has failed to show (1) that the district 

court’s jury instructions on the aiding-and-abetting charge violated 

his due process rights, (2) that the government’s “idiot” remark 

prejudiced his right to a fair trial, or (3) that the witness testimony

presented in this case is insufficient to support his conviction. 

AFFIRMED.

USCA11 Case: 22-12930 Document: 32-1 Date Filed: 12/15/2023 Page: 7 of 7