33 F.4th 281
5th Cir.2022Background
- In June 2020 Cabello and codefendant Garcia were arrested in an undercover drug sale; Garcia obtained meth at a house and later had about six grams on his person and some in the truck console; Cabello had none on his person.
- Cabello admitted he knew, by the time they left Jorge’s house, that Garcia had “at least a half [a gram]” and that Garcia promised him $100 to drive to the deal.
- A single-count indictment charged both defendants with aiding and abetting possession with intent to distribute methamphetamine (5 grams or more) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).
- At trial Cabello moved for acquittal after the Government’s case but did not renew the Rule 29 motion at the close of all evidence; the jury deliberated ~7 hours, sent multiple notes claiming deadlock, and after defense counsel asked for an Allen charge that night the judge gave a modified Allen charge and the jury convicted.
- On appeal Cabello raised three issues for plain-error review: (1) indictment sufficiency (typo and failure to allege mens rea), (2) sufficiency of the evidence (alleged lack of advance knowledge of Garcia’s possession), and (3) coercion from the Allen charge.
- The Fifth Circuit affirmed: the indictment was adequate despite a typo and omission of explicit scienter language; possession is a continuing offense so no advance-knowledge rule was required; and the Allen claim was waived by defense counsel’s request and express non‑objection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Indictment typo ("to possess" vs "possessed") | Indictment cites §841 and the caption, so it fairly notifies and alleges the offense despite a typographical error. | Typo renders the indictment defective because it appears to allege only that defendants aided and abetted each other, not the underlying crime. | Affirmed — typo harmless; citation and caption cure the defect and the indictment alleges an offense. |
| Indictment omission of mens rea wording | Statutory citation plus jury instructions supply scienter; Arteaga‑Limones controls. | Omission of "knowingly or intentionally" means indictment fails to plead an element. | Affirmed — omission not fatal where statute cited and jury instructed on mens rea. |
| Sufficiency of evidence — need for advance knowledge of possession | Evidence showed Cabello knew Garcia had meth and aided the possession during its ongoing course; possession is continuing so knowledge can arise after possession began. | §841 requires aider to know underlying elements in advance; Cabello lacked proof he knew Garcia intended to possess before Jorge’s house. | Affirmed — no plain error; statutory text, context, and precedent (e.g., Fischel) allow aider liability without pre‑possession knowledge; reversal only for manifest miscarriage, which is not present. |
| Allen charge coercion | Judge’s modified Allen language and circumstances were permissible; but defendant waived challenge by counsel’s request and express assent. | The Allen charge (timing and wording) coerced dissenting jurors into conviction. | Affirmed — waiver: defense counsel requested the charge that night and said "no" to the judge’s objection query; plain‑error review unavailable for waived claims. |
Key Cases Cited
- United States v. Meacham, 626 F.2d 503 (5th Cir.) (indictment must allege an actual offense)
- United States v. Arteaga-Limones, 529 F.2d 1183 (5th Cir.) (statutory citation and jury instruction can cure omission of scienter)
- United States v. Patino-Prado, 533 F.3d 304 (5th Cir.) (elements of §841: knowledge, possession, intent to distribute)
- United States v. Harms, 442 F.3d 367 (5th Cir.) (indictment sufficiency standards)
- United States v. Fischel, 686 F.2d 1082 (5th Cir.) (aider need not have foreknowledge of possession; helping possession suffices)
- Rosemond v. United States, 572 U.S. 65 (2014) (advance knowledge required for aiding a §924(c) firearm offense — distinguished from §841 possession)
- United States v. Jackson, 526 F.2d 1236 (5th Cir.) (reversed aiding conviction where defendant did not participate in possession)
- Olano v. United States, 507 U.S. 725 (1993) (distinguishes forfeiture from waiver; plain‑error review applies to forfeiture not waiver)
- Henderson v. United States, 568 U.S. 266 (2013) (plain‑error "plain" requirement; lower courts not plainly wrong when extending precedent is required)
- United States v. Delgado, 672 F.3d 320 (5th Cir. en banc) (sufficiency plain‑error standard: reversal only for manifest miscarriage of justice)
- United States v. Eghobor, 812 F.3d 352 (5th Cir.) (factors and totality‑of‑circumstances approach to Allen‑charge coercion)
- Jenkins v. United States, 380 U.S. 445 (1965) (semantics of impermissible coercive instruction)