Opinion
No. 08-50743 Summary Calendar.
October 30, 2009.
Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Jad Powers Ratliff Harper, Law Office of Jad P. Harper, Eagle Pass, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas, USDC No. 2:07-CR-25-5.
Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.
Jose Armin Castillo-Morales was convicted by a jury of conspiracy to possess with intent to distribute marijuana and was sentenced to 72 months imprisonment and three years of supervised release. Castillo-Morales argues that he was un-fairly surprised by the inclusion of an aiding and abetting jury instruction because his indictment did not charge him with aiding and abetting under 18 U.S.C. § 2. He contends that the Government failed to give him notice of an aiding and abetting charge but presented an aiding and abetting case, which he did not appreciate until too late at the jury charge conference. He argues that this unfair notice affected his ability to prepare his defense.
Although the indictment did not specifically charge aiding and abetting expressly or by reference to 18 U.S.C. § 2, "[a]iding and abetting is not a separate offense, but it is an alternative charge in every indictment, whether explicit or implicit." United States v. Neel, 951 F.2d 630, 633 (5th Cir. 1992). "Absent a showing of unfair surprise, it is not an abuse of discretion to give an aiding and abetting instruction." Id.
Castillo-Morales has not made a showing of unfair surprise. The indictment did not foreclose the possibility of conviction as an aider and abettor. The evidence provided by Castillo-Morales in his own testimony that he carried a backpack with food and water for the group was sufficient to prove that he acted as an aider and abettor. Castillo-Morales should have anticipated that the Government would request an instruction on aiding and abetting. See United States v. Botello, 991 F.2d 189, 192 (5th Cir. 1993) (rejecting claim of unfair surprise because indictment did not foreclose possibility of conviction as aider and abettor and evidence supported aiding and abetting conviction). Castillo-Morales admits in his brief that it is "undisputed that the evidence supports a charge on aiding and abetting based on the Government's cross-examination of Castillo-Morales." Castillo-Morales cannot claim unfair surprise when it was his own testimony that prompted the Government to request the aiding and abetting instruction. The district court did not abuse its discretion. Neel, 951 F.2d at 633.
AFFIRMED.