          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                October 30, 2009
                               No. 08-50743
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

JOSE ARMIN CASTILLO-MORALES, also known as Luis Sosa Morales,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 2:07-CR-25-5


Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.
PER CURIAM:*
      Jose Armin Castillo-Morales was convicted by a jury of conspiracy to
possess with intent to distribute marijuana and was sentenced to 72 months
imprisonment and three years of supervised release. Castillo-Morales argues
that he was unfairly surprised by the inclusion of an aiding and abetting jury
instruction because his indictment did not charge him with aiding and abetting
under 18 U.S.C. § 2. He contends that the Government failed to give him notice



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-50743

of an aiding and abetting charge but presented an aiding and abetting case,
which he did not appreciate until too late at the jury charge conference. He
argues that this unfair notice affected his ability to prepare his defense.
      Although the indictment did not specifically charge aiding and abetting
expressly or by reference to 18 U.S.C. § 2, “[a]iding and abetting is not a separate
offense, but it is an alternative charge in every indictment, whether explicit or
implicit.” United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992). “Absent a
showing of unfair surprise, it is not an abuse of discretion to give an aiding and
abetting instruction.” Id.
      Castillo-Morales has not made a showing of unfair surprise.              The
indictment did not foreclose the possibility of conviction as an aider and abettor.
The evidence provided by Castillo-Morales in his own testimony that he carried
a backpack with food and water for the group was sufficient to prove that he
acted as an aider and abettor. Castillo-Morales should have anticipated that the
Government would request an instruction on aiding and abetting. See United
States v. Botello, 991 F.2d 189, 192 (5th Cir. 1993) (rejecting claim of unfair
surprise because indictment did not foreclose possibility of conviction as aider
and abettor and evidence supported aiding and abetting conviction). Castillo-
Morales admits in his brief that it is “undisputed that the evidence supports a
charge on aiding and abetting based on the Government’s cross-examination of
Castillo-Morales.” Castillo-Morales cannot claim unfair surprise when it was his
own testimony that prompted the Government to request the aiding and
abetting instruction. The district court did not abuse its discretion. Neal, 951
F.2d at 633.
      AFFIRMED.




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