In United States v. Bellot, --- F.4th ---, No. 22-10247 (9th Cir. 2024), the Court affirmed Lemack Bellot’s conviction on two counts of attempting to aid and abet possession with the intent to distribute cocaine.
On appeal, Bellot argued that the jury instructions and proof adduced at trial constructively amended the indictment such that he was convicted of a crime different than the one for which he was indicted.
Specifically, "Bellot argues that the indictment was constructively amended because the government initially proposed jury instructions consistent with the theory that Bellot aided and abetted an attempt by the CS to possess with intent to distribute cocaine, but that after intervention by the court, the jury was instructed consistent with the theory that Bellot attempted to aid and abet the possession of cocaine with intent to distribute."
The Court rejected this argument, explaining that "aiding and abetting an attempt requires a “guilty principal,” while attempting to aid and abet does not. But in either case, paradoxically, the crime ultimately charged is the same: the aider and abettor is charged with an attempt to possess with the intent to distribute cocaine."
The Court continued:
Bellot’s case indisputably lacked a “guilty principal” because it involved an undercover government agent who did not intend to commit a crime and never possessed real cocaine. The government, accordingly, could only proceed under the theory that Bellot attempted to aid and abet possession with intent to distribute cocaine.While it is true that the parties mischaracterized the theory as “aiding and abetting the attempted possession” of cocaine in pre-trial preparations, this does not mean “the crime charged in the indictment was substantially altered at trial.” As explained above, whether characterized as aiding and abetting an attempt to possess cocaine or an attempt to aid and abet the possession of cocaine, “the crime ultimately charged is the same.” In either scenario, the charge was—and Bellot was in fact charged with—“knowingly attempt[ing] to possess with the intent to distribute” cocaine. And although the government was not required to specify its theory of the case in the indictment, the undisputed facts supported only one theory. Bellot, thus, had sufficient notice of the charges against him.
