                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4809


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DION MONTREAL COXTON,

                Defendant - Appellant.



Appeal   from  the   United States   District  Court      for  the
Western District of North Carolina, at Charlotte.         Frank D.
Whitney, District Judge. (3:05-cr-00339-FDW-3)


Submitted:   January 31, 2011             Decided:   March 18, 2011


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eric A. Bach, Charlotte, North Carolina, for Appellant. Edward
R. Ryan, United States Attorney, Mark A. Jones, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Dion Montreal Coxton was convicted of conspiracy to

distribute and to possess with intent to distribute fifty grams

or more of cocaine base (Count One); conspiracy to use and carry

firearms   during     and    in    relation       to    a   drug    trafficking      crime

(Count Two); using, carrying, and possessing a firearm during

and in relation to a drug trafficking crime, causing the death

of a person through use of the firearm, and aiding and abetting

the same (Count Three); possession of a firearm by a convicted

felon (Count Four); and possession with intent to distribute

cocaine    and   aiding     and    abetting        (Count       Five).       Coxton   was

sentenced to life on Count One, 245 months, concurrent, on Count

Two, 405 months on Count Three, 120 months on Count Four, and

408 months on Count Five.                The sentences on Counts One, Two,

Four, and Five run concurrently, and the sentence on Count Three

runs    consecutively       to    the    concurrent         sentence.        Coxton    now

appeals, raising three issues.               We affirm.



                                             I.

            Coxton,      Montare        Goodman,       Damien      Miller,   and     Royre

Ervin    were    crack   dealers        in   Charlotte.            Marvin    Clark    sold

Goodman cheap crack that proved to be candle wax.                            Clark also

attempted to sell Ervin bogus crack; however, Ervin learned of



                                             2
the scam from Goodman.                Goodman and Ervin decided to rob Clark

and recover Goodman’s money.

              To carry out the plan, Ervin contacted Clark to set up

a   crack    deal.       The    two    met    to      consummate       the    deal.      Ervin

distracted        Clark    until       Coxton,        Goodman,       and    Miller     arrived.

Upon arriving, Goodman and Coxton got out of their car and shot

Clark.       Goodman had a rifle, and Coxton had a semiautomatic

handgun.          The    bullet    that      Goodman        fired    killed    Clark,        while

Coxton’s bullet struck him in the thigh. Ervin, Goodman, and

Miller testified at Coxton’s trial.



                                                II.

              Coxton       first       contends        that     the        district     court’s

instruction on Count Three constructively amended the indictment

because, although the court instructed on an aiding and abetting

theory,     the     indictment        allegedly        did    not     charge    Coxton        with

aiding      and    abetting.           Accordingly,          Coxton        argues     that    the

district court impermissibly broadened the bases for conviction

beyond those charged in the indictment.                             See United States v.

Malloy,      568        F.3d    166,      178        (4th     Cir.     2009)        (discussing

constructive amendment).               This claim is without merit.

              First,      the     language       of    Count     Three      plainly     charged

that Coxton violated 18 U.S.C. §§ 924(c)(1), 924(j)(1) (2006)

“and did aid and abet other persons known to the Grand Jury.”

                                                 3
Second, Count Three’s citation of 18 U.S.C. § 2 (2006) contained

a typographical error; 1 however, as the district court found,

this error would not have misled Coxton as to what the charge

was.       Finally, even if the indictment did not properly charge

aiding and abetting in violation of 18 U.S.C. § 2, the error is

not grounds for reversal.        We have held that the aiding and

abetting provision does not set forth an essential element of

the offense of which the defendant is charged or itself create a

separate offense. Therefore, aiding and abetting need not be

charged in an indictment.     United States v. Wills, 346 F.3d 476,

495 (4th Cir. 2003); United States v. Duke, 409 F.2d 669, 670-

711 (4th Cir. 1969).



                                 III.

              Coxton also contends that the district court’s aiding

and abetting instruction on Count Three was improper because the

court did not instruct that the defendant either (1) must have

knowingly aided or abetted his codefendant in using or carrying

the murder weapon or (2) must have known that the murder would

occur.       Coxton did not preserve this claim, and we therefore


       1
       The indictment reads, “All in violation of Title 18,
United States Code, Sections 924(c)(1), 924(j)(1) and (2).” The
correct citation would not have included parentheses around the
number 2.



                                   4
review for plain error.         See Neder v. United States, 527 U.S. 1,

9 (1999).         To establish plain error, the defendant “must show:

(1) an error was made; (2) the error is plain; and (3) the error

affects substantial rights.”               United States v. Massenburg, 564

F.3d 337, 342-43 (4th Cir. 2009).

              After    carefully     reviewing         the    instruction     on   Count

Three,      we    conclude   that    the    jury       was    properly      instructed.

Notably, the district court instructed that to convict Coxton of

aiding      and    abetting,   “it     is       necessary      that   the    defendant

knowingly        associate   himself   in       some    way    with   the    crime   and

participate in the crime by doing some act to help make the

crime succeed.”         Participation, the court continued, required

“that the defendant engaged in some affirmative conduct or overt

act   for    the    specific   purpose      of     bringing      about   the   crime.”

Finally, the court cautioned that:

      “[i]f a person has no knowledge that a crime is being
      committed   or   is   about   to  be   committed   but
      inadvertently  does   something  that   aids  in   the
      commission of that crime, [that person] is not an
      aider and abettor.    An aider and abettor must know
      that a crime is being committed and act in a way that
      is intended to bring about the success of the criminal
      venture.”

Contrary to Coxton’s assertion, the court made clear through its

instruction that, to convict him as an aider and abettor, the




                                            5
jury       had   to   find   that    he     knowingly    aided   and    abetted    his

codefendant’s crime (the § 924(c)(1) offense). 2

                 Even if the instruction was erroneous, Coxton failed

to   establish        that   the    error    was   plain.    Testimony     at    trial

established that Goodman believed he needed protection when he

confronted        Clark.      Ervin       supplied   Goodman     with   the     rifle.

Goodman then contacted Coxton, who agreed to supply the handgun.

When Goodman met Coxton, Coxton approached with the gun in one

hand and its magazine in the other.                     Coxton then got into the

car with Goodman and Miller.                     Upon arrival at the scheduled

meeting place, Coxton was the first out of the car and the first

to open fire.           Goodman followed and began shooting the rifle.

Coxton’s actions clearly aided and abetted Goodman’s actions:

not only did he supply one of the firearms that Goodman felt he

needed for protection, but Coxton likely emboldened Goodman’s

use of the firearm by shooting first.



                                            IV.

                 Finally, Coxton argues that admission of evidence of

his prior involvement with guns and drugs was unduly prejudicial

and should have been excluded under Fed. R. Evid. 403, 404(b).

       2
       We also reject Coxton’s contention that the district court
erroneously instructed the jury that § 924(c) and § 924(j) were
separate offenses.



                                             6
We review the admission of evidence for abuse of discretion.

United   States      v.   Forrest,    429       F.3d    73,    79    (4th   Cir.    2005).

“[A]n abuse [of discretion] occurs only when it can be said that

the trial court acted arbitrarily or irrationally in admitting

evidence.”        United States v. Williams, 445 F.3d 724, 732 (4th

Cir. 2006).

             Under      Rule   404(b),      “[e]vidence             of   other     crimes,

wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith.”                              Fed.

R. Evid. 404(b).          Such evidence “may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.”        Id.     “To be admissible under Rule 404(b), evidence

must   be   (1)    relevant    to    an   issue        other   than      character;   (2)

necessary; and (3) reliable.”             United States v. Siegel, 536 F.3d

306, 317 (4th Cir. 2008) (internal quotation marks and citation

omitted).     “Rule 404(b) is . . . an inclusive rule, admitting

all evidence of other crimes or acts except that which tends to

prove only criminal disposition.”                  United States v. Young, 248

F.3d 260, 271-72 (4th Cir. 2001) (internal quotation marks and

citation omitted), and, “[a]s a rule of inclusion, the rule’s

list is not exhausting.”            United States v. Queen¸ 132 F.3d 991,

994-95 (4th Cir. 1997).



                                            7
            “Evidence sought to be admitted under Rule 404(b) must

also satisfy [Fed. R. Evid.] 403 . . . ,”                         Siegel, 536 F.3d at

319,    such    that     its    probative          value     is    not    substantially

outweighed by its prejudicial value.                       Queen, 132 F.3d at 995.

Under Rule 403, “damage to a defendant’s case is not a basis for

excluding probative evidence” because “[e]vidence that is highly

probative      invariably       will     be       prejudicial      to    the    defense.”

United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).

“Rule 403 only requires suppression of evidence that results in

unfair prejudice—prejudice that damages an opponent for reasons

other   than     its    probative      value,       for    instance,      an    appeal    to

emotion,    and       only    when   that     unfair       prejudice      substantially

outweigh[s]      the    probative      value        of    the     evidence.”       United

States v. Mohr,        and citation omitted).

            We conclude that the district court did not abuse its

discretion in admitting evidence of a 2004 incident during which

Coxton was found in possession of a handgun, drugs, and drug

paraphernalia.          By    pleading    not       guilty,      Coxton’s      intentional

involvement      in    drug    trafficking         and     the    use    of    weapons    in

furtherance of that trade was placed at issue.                          The Rule 404(b)

evidence was relevant and necessary to the issue of his intent,

his knowledge of the drug trade, and lack of mistake.                                    The

testimony was reliable, as it was given by three law enforcement

officers       who     investigated       the       2004      incident.          Finally,

                                              8
especially      in     light    of    the     court’s     several   limiting

instructions,        the   evidence   was    not   more   prejudicial    than

probative.     In this regard, we observed in Queen that “fear that

the jury may improperly use the evidence subsides . . . [after]

the trial judge has given a limiting instruction on the use of

Rule 404(b).     United States v. Queen, 132 F.3d at 997.               Juries

are presumed to follow a court’s instructions.              Jones v. United

States, 527 U.S. 373, 394 (1999).



                                      V.

             We therefore affirm.          We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                                    AFFIRMED




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