                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-1172
                                    ___________

United States of America,                *
                                         *
             Appellant,                  *
                                         *     Appeal from the United States
      v.                                 *     District Court for the Northern
                                         *     District of Iowa.
Juan Negrete Santana,                    *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: November 13, 2007
                                 Filed: March 28, 2008
                                  ___________

Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.
                          ___________

BENTON, Circuit Judge.

      A jury convicted Juan Negrete Santana of possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court granted
his motion for judgment of acquittal. The government appeals. Having jurisdiction
under 18 U.S.C. § 3731, this court reverses and remands.

       On May 3, 2006, an Iowa state trooper stopped a vehicle near Onawa, Iowa.
Alberto Maldonado-Gutierrez was driving. Negrete was the only passenger. The car
was registered to Carlos Lima, an alias of Maldonado. The trooper immediately
noticed several air fresheners, which can signal the presence of narcotics. The trooper
interviewed Maldonado and Negrete separately. Although both stated they were
driving from Omaha to Sioux City, Iowa, they gave inconsistent statements about the
purpose of the trip, the specific destination within Sioux City, and their relationship
to each other. While being questioned, Negrete appeared extremely nervous – his
hands were shaking, he held and repeatedly looked at a religious card, and his heart
was beating quickly. After a drug-detection dog alerted to narcotics, officers searched
the vehicle. They found meth concealed within the center console (not visible without
lifting its plastic liner). A small amount of meth was also found in Negrete’s sock.
Maldonado and Negrete were arrested.

       After Negrete was in custody, Officer Salvador Sanchez questioned him (in
Spanish). Negrete said he had made two previous trips to Sioux City with Maldonado,
receiving $100 per trip. During one trip, Negrete wrote street names, in English, on
a map of Sioux City (found during the search of the vehicle). Negrete said the
purpose of the current trip was to collect drug money, and that he expected again to
be paid $100. He stated that he did not know their specific destination within Sioux
City, and that on the two prior trips, he had been dropped off at public places before
Maldonado collected money. Although he had been warned that Maldonado was
involved in drugs, Negrete repeatedly insisted that he had never seen Maldonado with
drugs and denied knowing meth was in the vehicle roughly 19 times.

        Negrete was charged with one count of possession with intent to distribute
meth. At trial, the government presented the testimony of the trooper, Officer
Sanchez, and another officer who assisted with the search of the vehicle. Negrete was
the only defense witness. Although he repeated most of what he told the officers
when arrested, there were some minor inconsistencies, including that he actually knew
their specific destination within Sioux City and was paid only $50, not $100, for the
first trip. Negrete admitted lying to the officers because Maldonado asked him to as
the trooper approached the vehicle. He reiterated he had no knowledge that the meth
was in the vehicle.



                                         -2-
      The jury found Negrete guilty. The district court granted his motion for
judgment of acquittal, finding insufficient evidence to prove beyond a reasonable
doubt that Negrete knew meth was in the vehicle. The government appeals.

        Under Rule 29(a), a court “must enter a judgment of acquittal of any offense for
which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).
This court reviews “the sufficiency of the evidence de novo, viewing evidence in the
light most favorable to the government, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict.” United States v.
Piwowar, 492 F.3d 953, 955 (8th Cir. 2007) (internal quotation marks and citation
omitted). A court should not weigh the evidence or assess the credibility of witnesses.
United States v. Hernandez, 301 F.3d 886, 889 (8th Cir. 2002). The standard is very
strict, and this court “will reverse the conviction only if we conclude that no
reasonable jury could have found the accused guilty beyond a reasonable doubt.”
United States v. Beck, 496 F.3d 876, 879 (8th Cir. 2007).

       The government argues that the evidence at trial was sufficient for a reasonable
jury to find Negrete guilty of possession of meth with intent to distribute, based on an
aiding-and-abetting theory. “To sustain a conviction for aiding and abetting with
intent to distribute drugs, the government must prove: (1) that the defendant
associated himself with the unlawful venture; (2) that he participated in it as
something he wished to bring about; and (3) that he sought by his actions to make it
succeed.” United States v. McCracken, 110 F.3d 535, 540 (8th Cir. 1997) (internal
quotation marks and citation omitted). Mere association between a principal and the
defendant is not sufficient, nor is mere presence at the scene and knowledge that a
crime was to be committed. United States v. Ellefson, 419 F.3d 859, 863 (8th Cir.
2005). However, “jurors can be assumed to know that criminals rarely welcome
innocent persons as witnesses to serious crimes and rarely seek to perpetrate felonies
before larger-than-necessary audiences.” Id. (internal quotation marks and citation
omitted).

                                          -3-
       Negrete focuses on the numbered elements of aiding-and-abetting as set out in
the jury instruction in this case (which was based on the model instruction). See
Eighth Circuit Model Criminal Jury Instruction § 5.01. Negrete, echoing the
district court, asserts there is no evidence that he knowingly acted to aid possession-
with-intent-to-distribute (the second element), or that he intended to possess
controlled substances with the intent to distribute (the third element). Negrete
analogizes the facts of his case to those in United States v. Mendoza-Larios, 416 F.3d
872 (8th Cir. 2005), United States v. Fitz, 317 F.3d 878 (8th Cir. 2003), and United
States v. Pace, 922 F.2d 451 (8th Cir. 1990). In each of these cases, the defendant was
convicted of possession of a controlled substance with intent to distribute, and this
court reversed, based on insufficient evidence of knowing possession of the controlled
substance. Mendoza-Larios, 416 F.3d at 873; Fitz, 317 F.3d at 879-80, 883; Pace,
922 F.2d at 452-53.

       The government focuses on the traditional elements of aiding-and-abetting: the
defendant (1) associated himself with the unlawful venture; (2) participated in it as
something he wished to bring about; and (3) sought by his actions to make it succeed.
See, e.g., Nye & Nissen v. United States, 336 U.S. 613, 619 (1949), quoting United
States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938); United States v. Blaylock, 421 F.3d
758, 773 (8th Cir. 2005); Ellefson, 419 F.3d at 863; McCracken, 110 F.3d at 540;
United States v. Clark, 980 F.2d 1143, 1146 (8th Cir. 1992); United States v. Lanier,
838 F.2d 281, 284 (8th Cir. 1988); United States v. Brim, 630 F.2d 1307, 1311 (8th
Cir. 1980); United States v. Wiebold, 507 F.2d 932, 934 (8th Cir. 1974); Mays v.
United States, 261 F.2d 662, 664 (8th Cir. 1958). See also Hernandez, 301 F.3d at
890, citing United States v. Brownlee, 890 F.2d 1036, 1038 (8th Cir. 1989) (adding
the element that the defendant shared the criminal intent of the principal); United
States v. Roan Eagle, 867 F.2d 436, 445 (8th Cir. 1989), quoting Johnson v. United
States, 195 F.2d 673, 675 (8th Cir. 1952) (aider and abettor must share in the criminal
intent of the principal).



                                         -4-
      Although the parties approach the issue differently, the law is clear, as
expressed in the first and third paragraphs of the jury instruction in this case:

      A person may be found guilty of possession with the intent to distribute
      a controlled substance even if he personally did not do every act
      constituting the offense charged, if he aided and abetted the commission
      of possession with the intent to distribute a controlled substance.
      ...
      For you to find the defendant guilty of possession with the intent to
      distribute a controlled substance by reason of aiding and abetting, the
      Government must prove beyond a reasonable doubt that all of the
      elements of possession with the intent to distribute a controlled substance
      were committed by some person or persons and that the defendant aided
      and abetted the commission of that crime.

Thus, in an aiding-and-abetting case, the government is not required to prove that the
defendant possessed the controlled substance. United States v. Castro-Gaxiola, 479
F.3d 579, 583 (8th Cir. 2007); United States v. Mendoza, 421 F.3d 663, 669 (8th Cir.
2005). See also United States v. Frorup, 963 F.2d 41, 43 (3d Cir. 1992); United
States v. Salazar, 958 F.2d 1285, 1292 (5th Cir. 1992); United States v. Clark, 928
F.2d 733, 736 (6th Cir. 1991); United States v. Valencia, 907 F.2d 671, 678 (7th Cir.
1990); United States v. Poston, 902 F.2d 90, 94 (D.C. Cir. 1990); United States v.
Ginsberg, 758 F.2d 823, 832 (2d Cir. 1985). The Mendoza-Larios, Fitz, and Pace
cases are inapposite, as the defendants there were charged only with possession of a
controlled substance with intent to distribute. Mendoza-Larios, 416 F.3d at 873; Fitz,
317 F.3d at 880; Pace, 922 F.2d at 452. In this aiding-and-abetting case, the
government must prove Negrete associated himself with the unlawful venture,
participated in it as something he wished to bring about, and sought by his actions to
make it succeed. See Nye & Nissen, 336 U.S. at 619. The evidence must show that
Negrete shared in Maldonado’s criminal intent. Brownlee, 890 F.2d at 1038.




                                         -5-
       Viewing the evidence most favorably to the verdict, there was sufficient
circumstantial evidence for a reasonable jury to conclude that Negrete aided and
abetted possession with intent to distribute meth. The government presented evidence
that Negrete: (1) knew Maldonado was a drug dealer; (2) knew the purpose of the trip
to Sioux City was to collect drug money; (3) was to receive $100 for the trip; (4) had
previously accompanied Maldonado on two trips to Sioux City, receiving payment for
each;1 (5) lied to officers at the scene (at Maldonado’s request) and in post-Miranda
statements; (6) appeared extremely nervous during the entire stop; and (7) had meth
in his sock. This evidence was sufficient for a reasonable jury to conclude that
Negrete shared Maldonado’s criminal intent by associating with and participating in
the unlawful venture and attempting to make it succeed. See Blaylock, 421 F.3d at
773 (evidence was sufficient to support conviction for aiding and abetting possession
of meth with intent to distribute where defendant knew the purpose of the trip was to
purchase meth and introduce him to dealing illegal drugs, and defendant assisted by
cashing two checks and driving the vehicle).

      The judgment is reversed, and the case remanded to reinstate the jury verdict.

                    ______________________________




      1
       The district court gave a limiting instruction regarding Negrete’s prior trips,
advising the jury that “there is no evidence in relation to whether this defendant has
committed some kind of crime in the past and that that is not evidence that he
committed such a crime in this case.”

                                         -6-
