                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 08-3670
                                     _____________

                           UNITED STATES OF AMERICA

                                           v.

                                ROHAN PROVIDENCE,

                                         Appellant.

                      Appeal from the United States District Court
                                 for the Virgin Islands
                                 Division of St. Croix
                           (Crim. No. 1-07-CR-00051-001)
                       District Judge: Hon. Anne E. Thompson

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  December 4, 2009

             Before: McKEE, FUENTES, and NYGAARD Circuit Judges.


                                       OPINION

McKEE, Circuit Judge.

      Appellant Rohan Providence appeals the district court’s order denying his motion

for judgment of acquittal and argues acquittal was warranted because the government

failed to prove the elements of the offenses charged beyond a reasonable doubt. For the

following reasons, we will affirm.

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                        I.   FACTS AND PROCEDURAL POSTURE

       We write primarily for the parties and therefore need not set forth the factual or

procedural history in extensive detail. In July 2007, the High Intensity Drug Trafficking

Area (“HIDTA”) Office of St. Croix received a tip that marijuana was being cultivated in

an abandoned structure in a secluded area surrounded by overgrown vegetation. See Joint

Appendix, United States v. Rohan Providence, No. 08-3670 at 19-21 (filed April 1, 2009)

(“J.A.”). Officer Christopher Howell and other HIDTA agents investigated, discovered

marijuana plants growing in cups and trays in the abandoned structure, and set up covert

surveillance equipment to record any illicit activity. J.A. 21-31; 40-42. Thereafter, two

individuals were recorded watering and brushing excess dirt from the marijuana plants

over an eleven day period. J.A. 41-42, 52-53, 80-81, 119-46; see also Government’s Exs.

11B and 11C (“11B and 11C”).

       The task force also stopped a vehicle that had been parked outside the secluded

cultivation site and identified Providence as the passenger. His co-defendant, Surash

Rampersad, was the driver. J.A. 210-11, 214-17, 231-36. Later that day, the officer who

pulled over the car watched the surveillance footage from the cultivation site and

identified Providence and Rampersad as the two individuals “messing with some plants,”

which were later proven to be marijuana. See Exs. 11B and 11C; J.A. 80-81, 239-40.

       In November 2007, a jury convicted Providence and Rampersad of “aiding and

abetting one another” in the: (1) possession with intent to distribute in excess of one



                                              2
hundred marijuana plants (“Count I”); (2) manufacturing in excess of one hundred

marijuana plants (“Count II”); and (3) use of a premises to manufacture marijuana

(“Count III”). J.A. 1-5. The jury affirmatively answered two interrogatories specifically

finding beyond a reasonable doubt that the quantity of marijuana involved in Counts I and

II was in excess of one hundred plants. J.A. 12-14.

       Providence subsequently moved for a judgment of acquittal, arguing that the

evidence only established his “mere presence,” and was insufficient to establish his

participation in the offenses. J.A. 272-73. He also argued that the government failed to

prove beyond a reasonable doubt that his conduct involved over one hundred marijuana

plants. J.A. 273-76. The trial court denied Providence’s motion and imposed sentence.

This appeal followed.

                     II.   JURISDICTION AND STANDARD OF REVIEW

       Our jurisdiction over this appeal arises under 28 U.S.C. § 1291. We review de

novo a district court’s denial of a motion for judgment of acquittal. United States v.

Starnes, 583 F.3d 196, 206 (3d Cir. 2009) (internal citation omitted). In deciding whether

the evidence was sufficient to sustain the conviction, we “review the record in the light

most favorable to the prosecution to determine whether any rational trier of fact could

have found proof of guilt[] beyond a reasonable doubt.” United States v. Brodie, 403

F.3d 123, 133 (3d Cir. 2005) (internal citation and quotation marks omitted). A claim of

insufficient evidence places “a very heavy burden” on an appellant. United States v.



                                             3
Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990).

                                       III.    ANALYSIS

         Providence argues that the government did not provide sufficient evidence that he

aided and abetted the three Counts charged, and that the quantity of marijuana possessed

is an element of the offenses that must be, and was not, established beyond a reasonable

doubt.

         A.     Sufficiency of the Evidence for Aiding and Abetting Liability

         Providence first challenges the sufficiency of the evidence for aiding and abetting

all three Counts of the indictment.1 One who aids and abets the possession, manufacture,

or distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1) is liable as a

principal. See 18 U.S.C. § 2. To establish aiding and abetting, the government must

prove “the defendant associated himself with the criminal venture . . . participated in it as

something he wished to bring about, and . . . sought by his words or action to make it

succeed.” United States v. Xavier, 2 F.3d 1281, 1288 (3d Cir. 1993); United States v.



        1
          The elements of the underlying offenses are as follows. Count I of the indictment,
possession with intent to distribute, requires that the government prove: “(1) knowing or
intentional[;] (2) possession[;] (3) with intent to distribute[;] (4) a controlled substance.” United
States v. Lacy, 446 F.3d 448, 454 (3d Cir. 2006).
        Count II of the indictment, manufacturing one hundred or more marijuana plants, requires
that the government prove that Providence knowingly or intentionally manufactured marijuana
and knew that marijuana was a controlled substance. See 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(vii).
        Count III of the indictment, maintaining a drug-involved premises, requires that the
government prove that Providence “knowingly . . . use[d] . . . [a] place. . . temporarily . . . for the
purpose of . . . manufacturing [a] controlled substance.” 21 U.S.C. § 856(a)(1).


                                                  4
Carbo, 572 F.3d 112, 118 (3d Cir. 2009) (internal citations omitted) (“the government

must prove the defendant . . . knew of the commission of the substantive offense and

acted with the intent to facilitate it.”).

        “Mere knowledge of the underlying offense is not sufficient for conviction” as an

aider and abetter; rather, “specific intent of facilitating the crime” is required. United

States v. Gordon, 290 F.3d 539, 547 (3d Cir. 2002). To prove the requisite intent, the

government can show the defendant “encouraged or helped the perpetrator.” Xavier, 2

F.3d at 1288 (citing Gov’t of Virgin Islands v. Navarro, 513 F.2d 11 (3d Cir. 1975), cert.

denied, 422 U.S. 1045 (1975)).

       Similarly, “[m]ere presence at the scene of a crime . . . does not alone make one an

‘aider or abetter.’” United States v. Dixon, 658 F.2d 181, 189 (3d Cir. 1981) (internal

citations omitted). Instead, “the jury must be convinced beyond a reasonable doubt that

[the] defendant [did] something to forward the crime and . . . was a participant rather than

merely a knowing spectator.” Id. Sufficiency of the evidence to prove “participation” for

aiding and abetting rests upon a case-specific inquiry. We have indicated that in certain

circumstances even “verbal encouragement of an assault” or remaining with a group after

its members disclose their intention to commit a crime is enough to establish

participation. See United States v. Barber, 429 F.2d 1394, 1397 n.4 (3d Cir. 1970) (citing

Kuney v. Dutcher, 22 N.W. 866, 867 (Mich. 1885); People v. Hill, 233 N.E. 2d 367, 373

(Ill. 1968)).



                                              5
       There was clearly enough evidence to allow a reasonable jury to find Providence

guilty beyond a reasonable doubt of aiding and abetting Counts I - III of this indictment.

First, the government established that the underlying crimes—possession with intent to

distribute, and manufacturing, one hundred or more marijuana plants, and use of a drug-

involved premises—were committed by either Providence or his co-Defendant

Rampersad. The government proved the “possession” and “controlled substance” prongs

of possession with intent to distribute when its forensic chemist provided expert

testimony that the plants Officer Howell recovered were marijuana. See J.A. 193.

Howell’s testimony was also sufficient to establish an “intent to distribute” because of the

large number of plants he recovered. J.A. 80-81. Finally, the government established

“knowing or intentional” possession through surveillance videos showing that Providence

and Rampersad returned to the plants and helped water them. See J.A. 212-13; 11B and

11C. As Howell testified, there “was no real reason . . . to be out there” other than

marijuana cultivation, because “nothing was there.” J.A. 214. Moreover, the hidden and

abandoned location constituted evidence that the co-Defendants “attempted to hide . . .

the contraband,” evidence from which a jury could find constructive possession.2 See

United States v. Jenkins, 90 F.3d 814, 818 (3d Cir. 1996).

       This evidence was also sufficient to show that Providence aided and abetted the

commission of the underlying crimes. The evidence discussed above establishes both that
       2
        As the government met its burden of proof as to the commission of Count I, the
evidence was also sufficient for the lesser burdens needed to establish that Counts II and III were
committed.

                                                 6
Providence had the requisite intent and that he “participated in [the underlying offenses]

as something he wished to bring about, and . . . sought by his words or action to make it

succeed.” See Xavier, 2 F.3d at 1288. Again, Officer Lynch identified Providence and

Rampersad as the two individuals in the car he pulled over on April 9, 2010, and testified

that he “saw both defendants messing with some plants” on surveillance videos 11B and

11C. J.A. 239-40. In these videos, Providence watered the plants, repotted them, and

brushed excess dirt from their roots. See 11B and 11C; see also J.A. 70-71, 82, 84-90,

139. Any suggestion that this evidence was not sufficient to support the conviction

therefore borders on frivolity.

       B.     Sufficiency of the Evidence as to Amount of Drugs in Counts I and II

       Providence’s attempt to argue that he is entitled to relief because quantity is an

element of the offense that wasn’t proven beyond a reasonable doubt is equally without

merit. Although the quantity of a controlled substance can increase penalties and must

therefore be established beyond a reasonable doubt, see United States v. Lacy, 446 F.3d

448 (3d Cir. 2006), Providence’s claim for relief ignores the fact that the jury

interrogatories established that the jury was convinced of the drug quantity beyond a

reasonable doubt.

       Furthermore, the jury’s finding was clearly supported by the evidence. Agent

Howell testified that he recovered over two hundred marijuana plants from the cultivation

site. J.A. 79. He testified that to be counted as an official plant, the marijuana must have



                                              7
an intact root structure, stem, and leaf. See J.A. 106. Scott Goodlin, a forensic chemist,

echoed Agent Howell’s testimony as to the elements required to count a plant for forensic

purposes. J.A. 197. He stated that his lab received packages on July 26, 2007 containing

the plants Agent Howell seized, but that he did not open or count them until August 6,

2007, because of a “backlog.” J.A. 193-94. Upon analyzing them, Goodlin counted only

sixty-four marijuana plants, and the rest were merely fragments with some stems or

leaves, but no intact root structure. J.A. 197. Goodlin explained, however, that the

number of countable plants likely decreased significantly during the two weeks between

receipt and analysis, because it was not uncommon for plants deprived of water and

nutrients to dry out and break into fragments—losing elements required to be counted as a

plant for forensic purposes. J.A. 201-03.

       Viewing this evidence in conjunction with the other testimony, photos, and DVD

surveillance of the cultivation site, a reasonable jury could have found beyond a

reasonable doubt that Providence possessed with intent to distribute, and manufactured,

one hundred or more marijuana plants in violation of § 841(b)(1)(B)(vii).

                                  V.    CONCLUSION

       For the foregoing reasons, we will affirm the district court’s order denying

Providence’s motion for judgment of acquittal.




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