USA V. BELLOT, No. 22-10247 (9th Cir. 2024)
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In early 2018, the DEA began investigating drug smuggling at San Francisco International Airport (SFO) and received a tip implicating Lemack Bellot. Using a confidential source (CS), the DEA conducted a series of recorded meetings and phone calls with Bellot, who indicated he had previously smuggled drugs through the airport. Bellot and the CS agreed on plans to smuggle cocaine through SFO on two occasions, with the CS using fake cocaine provided by the DEA. Bellot advised the CS on how to package the drugs and introduced an associate to assist. The CS successfully smuggled the fake cocaine through airport security both times, paying Bellot fees for his assistance.
The United States District Court for the Northern District of California charged Bellot with two counts of attempting to aid and abet possession with intent to distribute cocaine. Bellot was convicted by a jury on both counts. He then moved for a new trial, arguing that the jury instructions and the evidence presented at trial constructively amended the indictment, effectively convicting him of a different crime than the one for which he was indicted. The district court denied his motion, and Bellot appealed.
The United States Court of Appeals for the Ninth Circuit reviewed the case and affirmed Bellot’s conviction. The court held that the indictment was not constructively amended. It explained that whether Bellot was charged with aiding and abetting an attempt to possess cocaine or attempting to aid and abet possession of cocaine, the crime charged remained the same: knowingly attempting to possess with intent to distribute cocaine. The court also found that the government’s statements during closing arguments did not alter its theory of the case or constructively amend the indictment. The court concluded that Bellot had sufficient notice of the charges against him and that the jury instructions were appropriate. The conviction was affirmed.
Court Description: Criminal Law The panel affirmed Lemack Bellot’s conviction on two counts of attempting to aid and abet possession with the intent to distribute cocaine.
Bellot argued 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 confidential source (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. Bellot maintained this change deprived him of notice of the charges against him. The panel explained that 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.
Bellot further argued that certain statements made by the government in closing substantially altered its theory of the case so as to amount to a constructive amendment of the indictment. He asserted that in its opening, the government stated that Bellot was charged with attempting to get cocaine through the airport, yet in closing, the government stated that it “doesn’t matter whether . . . the defendant wanted the CS to be arrested at the airport . . . He was helping the CS to get . . . cocaine into the airport.” The panel did not discern a constructive amendment here, either. The government was correct in stating that Bellot’s subjective intentions concerning the fate of the CS were irrelevant; all that mattered was that Bellot attempted to aid and abet the possession of cocaine by someone who Bellot reasonably believed had the intent to distribute it. Moreover, the government correctly stated the law when it informed the jury that it did not matter whether the drugs went into the airport or through the airport. Bellot was charged—as a principal—with an attempt to possess with the intent to distribute various amounts of cocaine. Attempt is an inchoate crime that does not require completion of the criminal objective. Accordingly, the jury did not need to find that the cocaine was successfully smuggled through the airport to convict Bellot of the charged offense. The government’s accurate statements of law in closing neither changed its theory of the case nor constructively amended the indictment.
The panel deemed unpersuasive any argument that the trial jury convicted based on behavior different from that alleged in the indictment and presented to the grand jury.
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