[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 98-2274

UNITED STATES,

Appellee,

v.

FRANCISCO OBJIO, a/k/a CUCHI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Chief Judge, Selya and Stahl, Circuit Judges.

Francisco Objio on brief pro se. Donald K. Stern, United States Attorney, Mark W. Pearlstein and Allison D. Burroughs, Assistant U.S. Attorneys, on brief for appellee.

November 28, 2000 Per Curiam. After a thorough review of the record

and of the parties submissions, we reverse the appellant’s

conviction on Count 10 of the indictment and affirm the

convictions on Counts 9 and 11.

With regard to Count 10, we see no evidence in the

record from which a rational jury could have concluded that

anyone with whom appellant Francisco Objio (“Objio”) was

associated actually possessed cocaine on or about the date

charged. It seems clear that a group of individuals (with whom

the government claimed Objio was associated) planned a

transaction for July 19, 1997. It also is undisputed that

those plans fell through and that the transaction was

rescheduled for July 21, 1997. But we see no evidence to

indicate whether that deal actually was completed as planned.

Nothing is contained in the recorded conversations which would

indicate that the deal had been completed. Further, the

government’s cooperating witness did not testify that the deal

ever happened. He only stated that he purchased cocaine from

co-defendant Osvaldo Maldonado (a/k/a “Pepe”) on three

occasions in July 1997. He was never asked whether one of

those three occasions was on or about July 21. And we do not

think a rational jury could so infer from the evidence

presented.

In order to establish Objio’s liability as an aider

and abettor, the government was required to show that someone with whom he was associated actually committed the charged

crime (i.e., possession of cocaine with intent to distribute).

See United States v. de la Cruz-Paulino,

(1st

Cir. 1995). Since we see no proof that anyone managed to

complete the deal as planned, we must reverse the conviction on

Count 10.

We do think the evidence was sufficient to convict on

Counts 9 and 11. With regard to count 11, the cooperating

witness testified that the group was planning a one kilogram

purchase on the day in question. He also testified that a

member of the group (“Pepe”) paid others, including co-

defendant Francisco Mata (“Mata”), $500 to transport the

cocaine. And because the cocaine was seized from Mata while he

was transporting it, we know that someone associated with the

group (namely, Mata) committed the substantive crime:

possession with intent to distribute. A rational jury could

further conclude that in recorded phone conversations earlier

in the day, other members of the group were discussing the

price to be paid for the cocaine and were trying to determine

whether they had enough cash to make the purchase. In this

context, the remark, “And Cuchi (Objio’s a/k/a) have like

seven” could be interpreted by a rational jury to mean that

Objio was contributing a portion of the purchase price. Though

the remark is open to other interpretations, it was the jury’s

-3- task to interpret the remark. We find that in light of all the

evidence, the jury’s interpretation of the evidence was

rational.

For the same reasons, the conviction for conspiracy

under Count 9 should stand.

Finally, we see no plain error in the court’s

instructions. The instruction with regard to aiding and

abetting a crime adequately set out the requirements for a

conviction. See United States v. de la Cruz-Paulino,

(citing Nye & Nissen v. United States,

(1949)). To the extent any of the challenged instructions were

erroneous, those alleged errors cannot constitute plain error,

as they concern issues which were not seriously in dispute at

trial. See Johnson v. United States,

(1997) (where issue “was essentially uncontroverted at trial .

. . and has remained so on appeal,” error in jury instructions

was not plain error).

Judgment affirmed in part and reversed in part;

matter remanded for resentencing.

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