United States v. Edwards, 2015 U.S. App. LEXIS 4777

Edwards was convicted by a jury of Possession with Intent to Distribute under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(viii), 841(b)(1)(D) and 18 U.S.C. § 2.
An anonymous 911 call named Edwards and another man as preparing a drug shipment; the call described drugs and the gray Altima involved.
Police subsequently stopped and searched a matching Altima; narcotics dog alerted; 33 grams methamphetamine and 7.35 kilograms marijuana were found.
Evidence linked Edwards to the Altima and drugs (mother lent the car, a Nike bag with Edwards’s receipt and bricks of marijuana; other drug paraphernalia found).
The indictment charged Edwards and Washington with aiding and abetting each other to possess with intent to distribute, with the option to convict Edwards as a principal or as an aider and abettor.
At trial, the government introduced the 911 call and dispatcher testimony; the court instructed that the 911 evidence could be used only to explain why the investigation was undertaken, not for truth of the matter.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Confrontation Clause harmless error	Edwards argues the 911 call was testimonial hearsay and improperly admitted.	Edwards contends admission of the call violated confrontation rights and was not harmless.	Harmless error; overwhelming other evidence supported conviction.
Constructive amendment of indictment	Indictment charged Edwards as an aider and abettor only; trial as principal constructively amended the indictment.	Indictment sufficiently charged Edwards as aider and abettor and as a principal; no amendment occurred.	Indictment valid; no constructive amendment.
Aiding and abetting instruction element	Jury instruction omitted standalone element that someone else committed the crime.	Even if error, it was not plain error and evidence supported conviction.	Not plain error; conviction sustained under applicable standard.

United States v. Townley, 472 F.3d 1267 (10th Cir. 2007) (confrontation analysis; de novo review of admissibility)
Crawford v. Washington, 541 U.S. 36 (Supreme Court 2004) (testimonial hearsay framing of confrontation clause)
Becker, 230 F.3d 1224 (10th Cir. 2000) (background statements may be admissible; harmless error if outweighing evidence)
Cass, 127 F.3d 1218 (10th Cir. 1997) (background hearsay deemed harmless due to strong admissible evidence)
United States v. Rosalez, 711 F.3d 1194 (10th Cir. 2013) (constructive amendment framework)
United States v. Washington, 653 F.3d 1251 (10th Cir. 2011) (indictment sufficiency; aiding and abetting vs principal theories)
United States v. Morris, 612 F.2d 483 (10th Cir. 1979) (Aiding and abetting requires substantive offense first)
United States v. Rodgers, 419 F.2d 1315 (5th Cir. 1969) (aiding and abetting convictions where defendants charged as aiders and abettors)
United States v. Cook, 745 F.2d 1311 (10th Cir. 1984) (aiding and abetting not a separate crime; may convict as principal)
Sullivan v. Bruce, 44 F. App’x 913 (10th Cir. 2002) (unanimity not required where single offense can be proven by multiple means)