                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-1785
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Arlen Jourdain, also known as            *
“Oatse,”                                 *
                                         *
             Appellant.                  *
                                    ___________

                          Submitted: October 11, 2005
                              Filed: January 10, 2006 (corrected February 17, 2006)
                                    ___________

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

      Arlen Jourdain (Jourdain) was convicted by a jury of aiding and abetting an
assault resulting in serious bodily injury. Following the verdict, the district court1
denied Jourdain’s motion for judgment of acquittal and sentenced him to 48 months’
imprisonment and 3 years’ supervised release. Jourdain appeals. Finding no errors,
we affirm.



      1
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
I.     BACKGROUND
       On July 1, 2002, a growing animosity between Clayton Cobenais (Cobenais)
and three men, including Jourdain, culminated in the shooting and death of Cobenais.
On that day, beginning around 10:00 a.m., Jourdain, his first cousin Harry Desjarlait
(Desjarlait), and Duane Maxwell (Maxwell) spent the day cruising together in
Maxwell’s car around the Red Lake Indian Reservation in northern Minnesota,
drinking alcohol and smoking marijuana. Maxwell drove the vehicle, Desjarlait sat
in the front passenger seat, and Jourdain sat in the backseat. Maxwell’s .22 caliber
rifle was located in plain view in the vehicle’s passenger compartment.

       Jourdain, Desjarlait, and Maxwell were close friends and considered themselves
like brothers. They were not so close, however, to Cobenais, who was Jourdain’s and
Desjarlait’s cousin. Rather, the trio had a hostile relationship with the victim.
Desjarlait had engaged in one physical fight and over ten arguments with Cobenais.
Maxwell believed Cobenais rear-ended Maxwell’s girlfriend’s car a few weeks before
the shooting, causing her to break her collarbone. Maxwell threatened to kill
Cobenais. Approximately four days before Cobenais was murdered, Cobenais
threatened Jourdain and his friends with a rifle.

       Alan Matrious (Matrious), a cousin of Jourdain, accompanied the trio for part
of the day on July 1. During that time, Jourdain and the other men solicited Matrious
to shoot another man. Around 5:30 p.m., the trio took Matrious home because
Matrious was drunk. The remaining three men continued to cruise together. At about
9:00 p.m., the trio encountered Cobenais walking in the opposite direction on the other
side of the street. Upon seeing Cobenais, Maxwell made a u-turn and pulled his car
onto the shoulder of the road alongside Cobenais. Jourdain and Desjarlait both
jumped out of the car, confronted Cobenais, and “had words.” Maxwell remained in
the car and fired his rifle approximately six times, hitting Cobenais once in the
stomach, once in the forearm, and twice in the chest.



                                         -2-
      Albert Lussieur (Albert), an elderly neighbor to Cobenais, witnessed part of the
incident from his yard on the opposite side of the street, although his view was slightly
obstructed by trees and by the angle of Maxwell’s car. Upon hearing yelling and
gunshots, Albert started running toward the group. Jourdain and Desjarlait ran from
Cobenais and jumped back into Maxwell’s car. As the men fled the scene, Jourdain
waved his arm out the car window and “war whoop[ed].” When Albert reached
Cobenais, he was face-down and taking “big breaths.”

      Miriam Lussieur (Miriam) heard the gunshots and was alerted to the incident
by her six-year-old grandson, R.A. Miriam telephoned “911” and noticed Cobenais
was still “moving around.” R.A. witnessed the incident while looking out a window
facing the street, and he told his grandmother he recognized his dad’s friends and that
Desjarlait had shot Cobenais. Although R.A. knew Jourdain, he did not mention
Jourdain to Miriam. Cobenais died in Miriam’s yard.

       After the trio fled the scene, they discarded the rifle in a lake, left Maxwell’s
car at a friend’s home, and received a ride to another friend’s home. There, Maxwell
confessed to killing Cobenais. On July 2, 2002, Maxwell was arrested and released.
He later committed suicide. On July 2, Jourdain and Desjarlait went to the Beltrami
County Law Enforcement Center. When Jourdain was asked why he was there,
Jourdain responded he was “turning [him]self in” because he was “involved.”

      On October 11, 2002, Desjarlait pled guilty to the second-degree murder of
Cobenais. Desjarlait later testified before a federal grand jury investigating
Cobenais’s murder and again at Jourdain’s trial. During direct examination at
Jourdain’s trial, using both Desjarlait’s plea colloquy and grand jury testimony, the
government elicited testimony from Desjarlait that both he and Jourdain exited
Maxwell’s car on July 1, 2002; that he exited the car intending to assault Cobenais;
and that, although Jourdain did not discuss attacking Cobenais, when the men saw
Cobenais, their minds “click[ed] together.”

                                          -3-
       On October 21, 2003, Jourdain was indicted for (1) conspiring to commit
assault resulting in death and serious bodily injury, (2) aiding and abetting murder, (3)
aiding and abetting assault resulting in serious bodily injury, and (4) aiding and
abetting the discharge of a firearm during a crime of violence. The district court
dismissed Count 4 at the close of the prosecution’s case. The jury acquitted Jourdain
of Counts 1 and 2, but found him guilty with respect to aiding and abetting assault
resulting in serious bodily injury. After determining the base offense level for
aggravated assault, the court applied two Sentencing Guidelines enhancements for
(1) discharge of a firearm, and (2) permanent and life-threatening injury. The court
then sentenced Jourdain to 48 months’ imprisonment.

       Jourdain appeals, asserting (1) the evidence is insufficient to support his
conviction, (2) the district court erred in imposing enhancements for discharge of a
firearm and the degree of injury, and (3) the district court violated Federal Rule of
Evidence 404(b) in admitting evidence concerning Jourdain’s alleged solicitation of
Matrious to shoot another man.

II.   DISCUSSION
      A.      Sufficiency of the Evidence
      Jury verdicts are not overturned lightly. See United States v. Burks, 934 F.2d
148, 151 (8th Cir. 1991) (citing United States v. Knife, 592 F.2d 472, 475 (8th Cir.
1979)). We will reverse the jury’s verdict for insufficient evidence “only if no
reasonable jury could have found [Jourdain] guilty beyond a reasonable doubt.”
United States v. Henderson-Durand, 985 F.2d 970, 975 (8th Cir. 1993) (citation
omitted). “The jury’s verdict must be upheld if there is an interpretation of the
evidence that would allow a reasonable-minded jury to conclude guilt beyond a
reasonable doubt.” United States v. Baker, 98 F.3d 330, 338 (8th Cir. 1996) (citation
omitted). In doing so, we view the evidence in the light most favorable to the jury’s
verdict, resolving any evidentiary conflicts in the government’s favor. United States
v. Lee, 356 F.3d 831, 836 (8th Cir. 2003) (citation omitted).

                                          -4-
       To support a conviction for aiding and abetting assault, the defendant’s mere
presence or acquiescence in the crime itself is insufficient. See United States v.
Thomas, 469 F.2d 145, 147 (8th Cir. 1972) (citations omitted). Rather, “there must
exist some affirmative participation which at least encourages the perpetrator.” Id.
Jourdain contends no reasonable jury could have found him guilty because the
government failed to prove Jourdain participated in any assault of Cobenais, and
argues Jourdain’s mere presence at the scene of Cobenais’s death is insufficient to
expose him to criminal liability.

       Viewing the evidence in the light most favorable to the jury’s verdict, we
conclude the record belies Jourdain’s assertions. The jury heard evidence concerning
Jourdain’s extremely close relationship to Desjarlait and Maxwell, as well as the trio’s
common dislike of, and previous confrontations with, Cobenais. On July 1, 2002, the
three spent the day together in Maxwell’s car in which Maxwell’s .22 caliber rifle was
in plain view. They unsuccessfully solicited Matrious to shoot another individual.
Later, upon seeing Cobenais walking by himself, Maxwell pulled his car alongside
Cobenais, allowing Jourdain and Desjarlait to exit the car and confront Cobenais. At
trial, Desjarlait testified that, at the time he exited the car, he intended to assault
Cobenais. Desjarlait testified before the grand jury, which testimony was read at trial,
that Jourdain did not say anything regarding assaulting Cobenais because “it was
probably like something on our minds to, you know, like click together.” After being
stopped by Jourdain and Desjarlait, Cobenais was shot by Maxwell. When the trio
fled the scene, Jourdain waved his arm out the car window and “war whoop[ed].”
Considered together, Jourdain’s actions on July 1, 2002, constituted more than “mere
presence.” The evidence supports a reasonable inference Jourdain’s affirmative
participation encouraged and aided the shooting of Cobenais. See Thomas, 469 F.2d
at 147.

      The facts of Thomas support our conclusion. In Thomas, the two defendants
and a third unidentified man came upon a pickup truck and sought a ride from the
truck’s owner. Id. The owner refused, and the unidentified man entered the truck,
                                      -5-
pulled a gun on the owner, and hit him with the gun. One of the defendants pulled the
owner from the truck. The defendants immediately jumped into the truck, and the
unidentified man attempted to back over the owner lying on the ground. The trio then
drove the truck toward town and abandoned the truck. Later, one defendant bragged
how he held up a truck at gunpoint. The other defendant returned to the abandoned
truck and removed gas from it. Id. In determining whether sufficient evidence existed
to sustain the conviction for aiding and abetting robbery and assault with a dangerous
weapon, the Thomas court held:

      [A]lthough neither defendant actually held the gun on the victim, the
      evidence is such that a reasonable inference can be made that they were
      both immediately nearby and fully condoned the actions of their
      companion and assailant. The jury could also logically infer that the
      physical presence of the defendants was intimidating to the victim and
      thereby encouraged or stimulated the unidentified [man] to proceed in
      the assault and robbery.

Id. Thus, the court sustained the defendants’ convictions. Id. at 148.

      In support of his position, Jourdain cites United States v. Grey Bear, 828 F.2d
1286 (8th Cir. 1987), rev’d sub nom. on other grounds United States v. Cavenaugh,
948 F.2d 405 (8th Cir. 1991). The Grey Bear court found insufficient evidence
supported a conviction for assault resulting in serious bodily injury for one of the
defendants, Maynard Dunn (Dunn). Id. at 1295-96. The court rejected the argument
Dunn could have implicitly encouraged the other defendants to attack the victim,
“[g]iven the lack of any context in which [Dunn’s] alleged punch was thrown . . . and
Dunn’s statement . . . that he did not want to get involved.” Id. at 1295. Contrary to
Grey Bear, however, the facts of this case demonstrate more than mere presence at the
crime scene or association with the other assailants. While Jourdain may not have
pulled the trigger, a jury reasonably could conclude–after considering Jourdain’s
actions before, during, and after the shooting–that Jourdain was involved and fully
condoned his friends’ actions, that his physical presence and confrontation of
                                         -6-
Cobenais intimidated Cobenais, and that Jourdain’s involvement encouraged Maxwell
to shoot Cobenais.2 See Thomas, 469 F.2d at 147. A reasonable jury also could find
Jourdain participated and aided in stopping Cobenais and lining Cobenais up for the
shooting.

      Jourdain further contends the government failed to prove Cobenais suffered
“serious bodily injury” because Cobenais died from the gunshot wounds he sustained
and there was no separate assault. We disagree. “Serious bodily injury” is defined
in 18 U.S.C. § 1365(h)(3)3 and includes injury involving (1) a substantial risk of
death, or (2) extreme physical pain. 18 U.S.C. § 1365(h)(3)(A), (B). After the
shooting, when Albert arrived at Cobenais’s side, Cobenais was alive, taking deep
breaths, and moving around. Because there is sufficient evidence that, as the
government puts it, “Cobenais’ death was neither instant nor painless,” we conclude
Cobenais obviously suffered “serious bodily injury” within the meaning of section
1365(h)(3).

      Cobenais received four gunshot wounds: two to his upper chest, one to his
stomach, and one defensive wound to his left forearm, which often occurs when a
person raises his arms to defend himself from attack. Further, Cobenais was breathing
when Jourdain fled the scene and still was moving when “911” was called. Cobenais
then bled to death, dying from “[e]xsanguination, or hemorrhage, due to multiple

      2
         Although, as Jourdain points out, the evidence contains some inconsistencies
regarding Jourdain’s precise role in the assault, the inconsistencies do not dictate a
contrary result, for “[t]he resolution of any such inconsistencies and contradictions is
left to the jury.” United States v. Crow Dog, 532 F.2d 1182, 1195 (8th Cir. 1976).
“If the evidence rationally supports two conflicting hypotheses, the reviewing court
will not disturb the conviction.” Burks, 934 F.2d at 151 (citing Knife, 592 F.2d at
475).
      3
        Title 18 U.S.C. § 113 prohibits assault resulting in serious bodily injury and
refers to 18 U.S.C. § 1365(h)(3) for the relevant definition of “serious bodily injury.”
See 18 U.S.C. § 113(a)(6), (b)(2).
                                           -7-
gunshot wounds.” From these facts, the jury reasonably could conclude Cobenais
sustained “serious bodily injury” within the meaning of section 1365(h)(3) prior to his
death.4 See United States v. Two Eagle, 318 F.3d 785, 791 (8th Cir. 2003) (stating
“whether an injury is serious presents a question of fact for the jury”). Accordingly,
we reject Jourdain’s claim of error on this issue.

       B.     Sentencing Guidelines Enhancements
       Jourdain next argues the district court erred when it applied two enhancements
to his base offense level for (1) discharge of a firearm and (2) permanent or life-
threatening bodily injury. We review the district court’s interpretation and application
of the Sentencing Guidelines de novo and its factual findings regarding enhancements
for clear error. United States v. Noe, 411 F.3d 878, 888 (8th Cir. 2005) (citation
omitted).5

       The Guidelines authorize holding defendants responsible for “all reasonably
foreseeable acts . . . of others in furtherance of the jointly undertaken criminal activity,
that occurred during the commission of the offense.” U.S.S.G. § 1B1.3(a)(1)(B). In
aggravated assault cases, a five-level enhancement is applied for the discharge of a
firearm. U.S.S.G. § 2A2.2(b)(2)(A). Jourdain contends the firearm enhancement was
applied erroneously because he was not involved in the shooting and the use of the
firearm was not foreseeable to him. We disagree. The .22 caliber rifle was visible in
the passenger compartment in the car in which Jourdain was riding. A few hours

       4
       Our holding is limited to those cases in which there is sufficient evidence to
support a jury’s conclusion the victim suffered “serious bodily injury” before his
death. Thus, we do not reach the broader question of whether all injuries resulting in
another person’s death, even “instantaneous” death, necessarily constitute “serious
bodily injury” under 18 U.S.C. §§ 113 and 1365(h)(3).
       5
       We need not review whether Jourdain’s sentence is reasonable in light of 18
U.S.C. § 3553(a) because Jourdain has not challenged the reasonableness of his
sentence. Jourdain challenges only the district court’s application of the Sentencing
Guidelines.
                                        -8-
before Cobenais’s murder, Jourdain unsuccessfully solicited Matrious to shoot another
man. Jourdain and his close friends had a history of hostility toward Cobenais. The
shooter, Maxwell, a few weeks before the shooting, threatened to kill Cobenais.
When the trio encountered Cobenais walking alone, Jourdain jumped out of the
vehicle with Desjarlait, confronted Cobenais, and after the shooting, “war whoop[ed]”
as the three fled the scene. Because there is sufficient evidence the use of the firearm
was reasonably foreseeable to Jourdain, we conclude the district court properly
applied the five-level enhancement for the discharge of a firearm pursuant to U.S.S.G.
§§ 1B1.3(a)(1)(B) and 2A2.2(b)(2)(A).

       We reach the same conclusion with regard to the district court’s application of
the five-level enhancement pursuant to U.S.S.G. § 2A2.2(b)(3)(C) for degree of bodily
injury.6 Although Cobenais ultimately died from the gunshot wounds he sustained,
it does not follow that he did not sustain permanent or life-threatening bodily injury
within the meaning of the Sentencing Guidelines. For similar reasons as discussed
previously, sufficient evidence exists to show the gunshot wounds Cobenais sustained
caused him permanent or life-threatening bodily injury separate and apart from his
subsequent death. Thus, we conclude the district court properly applied this
enhancement as well.

      C.    Admission of Rule 404(b) Evidence
      Finally, Jourdain contends the district court erred in admitting Rule 404(b)
evidence that before Cobenais’s murder Jourdain and his friends solicited Matrious
to shoot another man, arguing the evidence was not relevant, was not proven by a
preponderance of the evidence, and was overly prejudicial. Rule 404(b) provides

      6
       U.S.S.G. § 2A2.2(b)(3)(C) provides for a seven-level enhancement. However,
cumulative adjustments from the application of U.S.S.G. § 2A2.2(b)(2)(A), the
firearm enhancement, and U.S.S.G. § 2A2.2(b)(3), the degree of bodily injury
enhancement, cannot exceed ten levels. See U.S.S.G. § 2A2.2(b). Because the district
court imposed a five-level enhancement for the discharge of a firearm, any
enhancement for degree of bodily injury could not exceed five levels.
                                        -9-
evidence of other crimes or wrongs is admissible to prove “intent, . . . knowledge, . . .
or absence of mistake or accident.” Fed. R. Evid. 404(b). It is a rule of inclusion, not
exclusion. United States v. Loveless, 139 F.3d 587, 591 (8th Cir. 1998). “In order for
evidence of prior bad acts to be admissible, the evidence must be: (1) relevant to a
material issue; (2) proved by a preponderance of the evidence; (3) higher in probative
value than in prejudicial effect; and (4) similar in kind and close in time to the crime
charged.” Id. at 592 (citation omitted).

       We review the district court’s decision to admit Rule 404(b) evidence for an
abuse of discretion. United States v. Tomberlin, 130 F.3d 1318, 1320 (8th Cir. 1997).
“Giving great deference to the district court’s determination in balancing the
prejudicial effect and probative value of evidence of other crimes or acts, we will
reverse the district court’s evidentiary decision only when the evidence admitted
clearly has no bearing on any issue involved.” United States v. Claybourne, 415 F.3d
790, 797 (8th Cir. 2005) (internal quotation omitted).

       We conclude the district court’s decision to admit this evidence was not an
abuse of discretion. First, the evidence was relevant to the issue of Jourdain’s intent.
See United States v. Johnson, 934 F.2d 936, 940 (8th Cir. 1991) (stating where intent
and knowledge are material issues “evidence of other acts tending to establish [intent]
is generally admissible”) (citation omitted) (alteration in original). While Jourdain
argues he was merely present when Cobenais was shot and killed, evidence that he
and his companions solicited Matrious to shoot another man was relevant to establish
(1) whether the men shared a joint criminal purpose, (2) whether Jourdain had
knowledge of the violence potential of his buddies and a shooting was foreseeable to
Jourdain, and (3) whether the shooting of Cobenais after Jourdain confronted
Cobenais could have been a mistake or accident. Second, Matrious’s testimony
satisfied the requisite burden of proof to admit evidence of Jourdain’s solicitation.
See United States v. Yellow, 18 F.3d 1438, 1441 (8th Cir. 1994) (quoting United
States v. Huddleston, 485 U.S. 681, 685 (1988)) (“Rule 404(b) evidence ‘should be
admitted if there is sufficient evidence to support a finding by the jury that the
                                         -10-
defendant committed the similar act.’”). While Matrious’s credibility was attacked
at trial, it was the jury’s duty to judge credibility and choose what evidence upon
which to rely. See United States v. Rosso, 179 F.3d 1102, 1107 (8th Cir. 1999).
Finally, the probative value of this evidence outweighed its potential prejudicial effect.
Accordingly, we find no error on this evidentiary issue.

III.   CONCLUSION
       For the foregoing reasons, we affirm Jourdain’s conviction and sentence.
                       ______________________________




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