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Defendant's Repeated Presence at Drug Transactions Coupled With Phone Calls Sufficient to Support Aiding and Abetting Conviction

In United States v. Mercado, No. 09-2681 (3d Cir., July 7, 2010), the three defendants were indicted for aiding and abetting the possession of more than 100 grams of heroin with the intent to distribute within 1000 feet of a school as well as the substantive counts. The only evidence presented regarding Defendant Mercado’s participation in the charged offenses was testimony from Co-defendant Rodriguez-Nunez that he observed Mercardo in the passenger seats of the vehicles driven by Co-defendant Morrisette when Rodriguez-Nunez and Morrisette met to conduct the drug exchanges. Specifically, Rodriguez-Nunez testified that he received drugs through the passenger-side window, where Mercado was seated as the passenger. Evidence was also presented that Morrisette called Mercado during the same time period in which he had received and returned calls from Rodriguez-Nunez. Rodriguez-Nunez admitted that he did not deal directly with Mercado, but only with Morrisette. The court noted that this was a “close case,” but that it was “constrained by a deferential burden” to conclude that a reasonable jury could have found that Mercado’s presence with Morrisette on multiple occasions during drug transactions with Rodriguez-Nunez was sufficient to support its verdict that Mercado, “at a minimum” encouraged the illegal drug activity between Rodriguez-Nunez and Morrisette. The Court ultimately affirmed the district court’s rejection of Mercado’s motion for judgment of acquittal, concluding that “a defendant's presence on multiple occasions during critical moments of drug transactions may, when considered in light of the totality of the circumstances, support an inference of the defendant's participation in the criminal activity.”

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