U.S. v. McGee, No. 06-2158.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Ann Aldrich
• Citation: 529 F.3d 691
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jameel McGEE, Defendant-Appellant.
• Docket Number: No. 06-2158.
• Decision Date: 24 June 2008

529 F.3d 691 UNITED STATES of America, Plaintiff-Appellee,
v.
Jameel McGEE, Defendant-Appellant. No. 06-2158. United States Court of Appeals, Sixth Circuit. Argued: October 23, 2007. Decided and Filed: June 24, 2008.

[529 F.3d 693]

ARGUED: John M. Karafa, McCroskey, Feldman, Cochrane & Brock, P.C., Muskegon, Michigan, for Appellant. Brian P. Lennon, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: John M. Karafa, McCroskey, Feldman, Cochrane & Brock, P.C., Muskegon, Michigan, for Appellant. Brian P. Lennon, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

[529 F.3d 694]

Before: KEITH and ROGERS, Circuit Judges; ALDRICH, District Judge.^*

OPINION

ANN ALDRICH, District Judge.

Defendant-appellant Jameel McGee ("McGee") appeals his conviction and sentence for possession with intent to distribute cocaine base, arguing that: 1) because his indictment contained no reference to aiding and abetting, the government should not have been permitted to argue it as an alternative theory of criminal liability; 2) the trial evidence was insufficient to sustain his conviction, entitling him to a judgment of acquittal under Rule 29(c)(1) of the Federal Rules of Criminal Procedure; 3) trial testimony containing statements by a confidential informant was admitted against him in violation of his confrontation clause rights; and 4) his sentence is unreasonable.

For the reasons that follow, we affirm McGee's conviction and sentence.

I. Background

McGee was indicted and subsequently convicted on a single count charge of "possession with intent to distribute cocaine base," in violation of 21 U.S.C. §§ 841(a)(i) and 841(b)(1)(B)(iii).

On February 8, 2006, a police confidential informant set up a drug transaction in the parking lot of a liquor store that led to McGee's arrest. At trial, Officer Collins, the arresting officer, testified that on February 8, 2006, he listened to a phone conversation between the confidential informant and McGee, in which they planned a drug exchange. Officer Collins then drove to the liquor store and waited for McGee. When McGee did not show up, Officer Collins drove a short distance back to the police station. Once there, the confidential informant again contacted McGee, and McGee indicated that he was "pulling up now" to the liquor store.

Officer Collins again returned to the liquor store with a uniformed police officer and found McGee sitting in the passenger seat of a parked Dodge Durango. At trial, Officer Collins testified that he ordered both McGee and the driver, Reginald Williams, to raise their hands to insure the officers' safety, noting that McGee made a "furtive gesture towards the center console of the vehicle."

McGee and Williams were removed from the vehicle, and Officer Collins saw marijuana on the floor of the driver's side of the vehicle. The officers then searched the vehicle and found a plastic bag of crack cocaine in the cup holder of the center console. They proceeded to Mirandize and arrest McGee and Williams. Throughout the arrest, Officer Collins never observed McGee actually possess the bag of cocaine. Rather, the only evidence taken from McGee and admitted at trial was the cell phone used to set up the drug transaction.

In addition to Officer Collins' testimony, the government called the other officer as a witness and entered six exhibits into evidence. McGee did not present any evidence. The jury returned a guilty verdict.

After the verdict, McGee filed a motion for judgment of acquittal pursuant to FRCP 29(c)(1) on the basis that the evidence, taken in the light most favorable to the prosecution, was insufficient to allow a rational jury to find beyond a reasonable doubt the essential elements of possession with intent to distribute. The district

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court denied the motion, and McGee was subsequently sentenced to 108 months in custody.

II. Analysis

A. Liability for Aiding and Abetting

McGee argues that the district court erred when it included an alternative "aiding and abetting" theory of criminal liability in the jury instructions because the single count indictment did not include "aiding and abetting" language or cite 18 U.S.C. § 2, the "aiding and abetting" statute. This alleged error, McGee argues, denied him procedural due process because he was not properly placed on notice of the charges against him.

We review jury instructions as a whole to determine "whether they fairly and accurately inform the jury of relevant considerations and explain the applicable law." United States v. Prince, 214 F.3d 740, 760-61 (6th Cir.2000).

We begin our analysis, then, with the applicable "aiding and abetting" statute, Title 18 U.S.C. Section 2, which provides:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

The Sixth Circuit has interpreted aiding and abetting as a theory of liability "embodied in every federal indictment, whether specifically charged or not," and not a distinct substantive crime. United States v. Floyd, 46 Fed.Appx. 835, 836 (6th Cir. 2002).

While all indictments must inform the defendant of the crime with which he or she is charged, Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), we have long held that "[i]n keeping with the provisions of § 2 . . . an indictment need not specifically charge `aiding and abetting' or `causing' the commission of an offense against the United States, in order to support a jury verdict based upon a finding of either." United States v. Lester, 363 F.2d 68, 72 (6th Cir.1966); see also Hill v. Perini, 788 F.2d 406, 407 (6th Cir.1986) ("[A] defendant may be indicted for the commission of a substantive crime as a principal offender and convicted of aiding and abetting its commission although not named in the indictment as an aider and abettor without violating federal due process."); United States v. Moore, 460 F.2d 1265, 1266 (6th Cir.1972). Thus, an indictment need not explicitly refer to aiding or abetting to support a jury verdict based on a finding under that theory.

Here, McGee attempts to distinguish this line of Sixth Circuit cases by relying on the fact that his indictment not only lacked language referring to aiding and abetting, but also failed to cite 18 U.S.C. § 2. McGee refers to the unpublished decision in United States v. Taniguchi, where this court considered whether an indictment that merely cited 18 U.S.C. § 2 gave the defendant notice of potential liability for aiding and abetting. 49 Fed.Appx. 506 (6th Cir.2002). Because the indictment in Taniguchi contained a citation to 18 U.S.C. § 2, we reserved for later, in a footnote, "the question of whether the indictment before us would be sufficient had the United States failed even to cite the language of 18 U.S.C. § 2." Id. at 521 n. 4. McGee urges this court to find that such an indictment is not sufficient.

However, given this court's interpretation of 18 U.S.C. § 2 as an alternative theory of liability, and our long-held decisions

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that aiding and abetting is embedded in federal indictments, we hold that an indictment need not charge or refer to 18 U.S.C. § 2 to support a conviction based on a theory of aiding and abetting.

Accordingly, the district court did not err in allowing the jury to consider "aiding and abetting" as an alternative theory of liability.

B. Sufficiency of the Evidence at Trial

McGee asserts that he was entitled to a judgment of acquittal pursuant to Rule 29(c)(1) because the evidence offered at trial was insufficient to support his conviction.

"This court reviews de novo a denial of a motion for judgment of acquittal, but affirms the decision `if the evidence, viewed in the light most favorable to the government, would allow a rational trier of fact to find the defendant guilty beyond a reasonable doubt.'" United States v. Solorio, 337 F.3d 580, 588 (6th Cir.2003) (quoting United States v. Harrod, 168 F.3d 887, 889-890 (6th Cir.1999)).

To sustain the charge of possession with intent to distribute, the government was required to prove beyond a reasonable doubt that on or about February 8, 2006, McGee "(1) knowingly; (2) possessed a controlled substance; (3) with intent to distribute." United States v. Charles, 138 F.3d 257, 265 (6th Cir.1998).

Here, there is ample evidence in the record to support McGee's conviction. First, the government offered evidence that McGee possessed a controlled substance through Officer Collins' testimony and the crack cocaine found in the vehicle next to McGee. At trial, Officer Collins testified that on February 8, 2006, he listened to a telephone conversation over the speaker phone between McGee "Zookie" and the confidential informant. During that conversation, the informant requested an "O", or ounce, of crack cocaine, which Zookie agreed to sell for $800. Finally, Zookie told the confidential informant that they would meet that same day at "the store," which the informant understood to mean "Barnett's, the one on Fair and Edgecumbe." (Transcript, pages 51-3). Officer Collins testified that he knew "Zookie" to be Jameel McGee.

Officer Collins testified that he then went to Barnett's and waited between five and ten minutes. When Zookie did not arrive, the informant made another call to Zookie, whereupon Officer Collins heard Zookie say "I'm pulling up now. All right, I'm here, hurry up." (Transcript, pg. 56). When Officer Collins and another police officer arrived at Barnett's, they observed a parked Dodge Durango with McGee in the passenger seat. Officer Collins exited his vehicle, and approached the driver's side of the Durango, ordering both occupants to raise their hands. After the driver placed...