United States v. Salazar ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50542
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
JOSÉ GABRIEL SALAZAR
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. P-00-CR-71-1
--------------------
March 9, 2001
Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
José Gabriel Salazar appeals his conviction for possession
with intent to distribute marijuana. Appellant contends that the
evidence was insufficient to convict him because the Government
did not prove beyond a reasonable doubt that he actually or
constructively possessed the marijuana found in a truck
registered to his parents and occupied by his friend and a
brother-in-law. He contends that the district court abused its
discretion in instructing the jury that he could be found guilty
as an aider and abettor because he was unfairly surprised by the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-50542
-2-
instruction and the instruction constructively amended the
indictment and diluted the Government's burden of proof.
The district court did not abuse its discretion in giving
the aiding-and-abetting instruction. See United States v.
Botello, 991 F.2d 189, 191 (5th Cir. 1993); United States v.
Neal, 951 F.2d 630, 633 (5th Cir. 1992). The evidence was
sufficient for the jury to conclude that appellant aided and
abetted the possession of marijuana with the intent to distribute
it. See United States v. Williams, 985 F.2d 749, 753-54 (5th
Cir. 1993).
AFFIRMED.