     Case: 12-60774       Document: 00512355163         Page: 1     Date Filed: 08/27/2013




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

                                                                            FILED
                                                                          August 27, 2013
                                     No. 12-60774
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID E. JONES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:12-CR-26-3


Before SMITH, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
       David E. Jones and two co-defendants were indicted on a single count of
aiding and abetting the possession with intent to distribute 100 kilograms or
more of marijuana. Following a jury trial, Jones was convicted and sentenced
to 87 months of imprisonment.
       On appeal, Jones first argues that the district court abused its discretion
by admitting testimony about his role in a prior marijuana sale. We have set
forth a two-part test to determine whether such evidence is admissible under

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-60774     Document: 00512355163     Page: 2   Date Filed: 08/27/2013

                                  No. 12-60774

Federal Rule of Evidence 404(b): the evidence must be relevant to an issue other
than the defendant’s character and its probative value must not be substantially
outweighed by any undue prejudice. See United States v. Beechum, 582 F.2d
898, 911 (5th Cir. 1978) (en banc); see also FED. R. EVID. 403. Because Jones’s
appellate arguments on this issue differ from his objections at trial, we could
review for plain error. See United States v. Green, 324 F.3d 375, 381 (5th Cir.
2003). However, even under the normal heightened abuse of discretion standard
of review, see United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008), we
conclude that the district court did not err.
      Jones asserts that the probative value of this testimony was low because
an intent to distribute could be inferred from other testimony and from the large
quantity of marijuana involved. However, this argument fails to acknowledge
that the district court found that the testimony was relevant to other issues,
such as Jones’s knowledge and motive. In addition, we disagree that the prior
offense was so similar to the instant offense that it unduly increased the risk of
prejudice. Jones also fails to address the mitigating effect of the limiting
instructions given to the jury both prior to this testimony and in the final
instructions. See United States v. Taylor, 210 F.3d 311, 318 (5th Cir. 2000).
Finally, any prejudice was minimal because this testimony occupied only a small
part of the trial. See United States v. Adair, 436 F.3d 520, 526-27 (5th Cir.
2006). In sum, Jones has not shown that the probative value of this evidence
was substantially outweighed by any undue prejudice; thus, he has not shown
that the district court erred, plainly or otherwise, in admitting this testimony.
See Beechum, 582 F.2d at 914-15.
      Next, Jones argues that the district court erred by denying his motion for
a new trial, particularly to the extent that this motion was based on the
allegedly erroneous admission of testimony about the prior marijuana sale. See
FED. R. CRIM. P. 33(a). The denial of a motion for a new trial is reviewed for an
abuse of discretion. United States v. Piazza, 647 F.3d 559, 564 (5th Cir. 2011).

                                        2
    Case: 12-60774     Document: 00512355163     Page: 3   Date Filed: 08/27/2013

                                  No. 12-60774

For the reasons discussed above, the district court did not abuse its discretion
by denying the motion for a new trial on this basis.
      The district court also denied several motions for a judgment of acquittal;
Jones argues this was error because there was insufficient evidence to prove that
he had possessed any marijuana. We review the denial of a motion to acquit de
novo, and we consider the evidence presented in the light most favorable to the
Government to determine whether a rational trier of fact could have found the
essential elements of the crimes beyond a reasonable doubt. United States v.
Lopez-Moreno, 420 F.3d 420, 437-438 (5th Cir. 2005). We do not evaluate the
weight of the evidence or the credibility of the witnesses because these issues
remain within the purview of the jury. United States v. Delgado, 256 F.3d 264,
273-74 (5th Cir. 2001); United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012).
      “The offense of possession with intent to distribute requires proof of (1)
possession, (2) knowledge, and (3) intent to distribute.”       United States v.
Vasquez, 677 F.3d 685, 694 (5th Cir. 2012). Aiding and abetting requires proof
that the substantive offense occurred and that the defendant “(1) associated with
the criminal venture; (2) purposefully participated in the crime; and (3) sought
by his actions for it to succeed.” United States v. Pando Franco, 503 F.3d 389,
394 (5th Cir. 2007). Jones challenges only the possession element on appeal.
However, a defendant “need not have actual or constructive possession of the
drugs to be guilty of aiding and abetting possession with intent to distribute.”
United States v. Williams, 985 F.2d 749, 753 (5th Cir. 1993).
      Although Jones presented testimony suggesting that he had a legitimate
purpose for being at the location where the marijuana was discovered, other
witnesses contradicted this testimony and implicated Jones in the offense.
Based on its verdict, the jury chose to believe the Government’s witnesses; we
will not disturb those credibility determinations. See Delgado, 256 F.3d at
273-74; Grant, 683 F.3d at 642. In addition, the fact that laboratory testing
could not identify any residue from the marijuana packaging materials on

                                        3
    Case: 12-60774     Document: 00512355163      Page: 4   Date Filed: 08/27/2013

                                  No. 12-60774

Jones’s clothing does not establish that the other evidence was insufficient.
Most importantly, because Jones was indicted for aiding and abetting, no
showing of actual or constructive possession was required. See Williams, 985
F.2d at 753. We conclude that there was sufficient evidence for a rational trier
of fact to find that Jones “(1) associated with the criminal venture; (2)
purposefully participated in the crime; and (3) sought by his actions for it to
succeed.” Pando Franco, 503 F.3d at 394.
      Finally, Jones argues that the district court erred by failing to award him
a minimal or minor participant reduction at sentencing. See U.S.S.G. § 3B1.2.
Issues related to a defendant’s sentence are reviewed for reasonableness. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “Whether [a
defendant] was a minor participant is a factual determination reviewed for clear
error.” United States v. McElwee, 646 F.3d 328, 346 (5th Cir. 2011) (internal
quotation marks and citation omitted).        “A factual finding is not clearly
erroneous if it is plausible in light of the record read as a whole.” United States
v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). In light of the testimony about
Jones’s role in the offense, we conclude that the district court’s denial of a
mitigating role adjustment was not clearly erroneous. See id.
      AFFIRMED.




                                        4
