911 call did not violate confrontation rights; constructive amendment argument rejected

U.S. v. Edwards, 2015 WL 1296624 (3/24/15) (OK): Edwards was convicted of possession with intent to distribute methamphetamine. On appeal he raised three issues: (1) an anonymous 911 call that mentioned him by name should not have been admitted because it violated the Confrontation Clause; (2) the trial evidence and jury instructions that allowed his conviction as a principal constructively amended the indictment; and (3) the jury instruction on aiding and abetting omitted an essential element. Addressing each of these issues in turn, the panel ruled that the 911 call was admitted only to explain why the government began its investigation. The court told the jury it could use that call only for that purpose and not for the truth of any matter asserted in the call. Even assuming the court shouldn’t have let the jury hear the call that error was harmless because the evidence against Edwards was “quite damning.” Regarding Edwards’ constructive amendment argument, the panel said only if it found that the indictment was insufficient to charge him in the alternative as a principal could it rule that the indictment was constructively amended. Since the indictment sufficiently charged him as an aider and abettor and as a principal, Edwards’ argument was without merit: the indictment charged Edwards and his co-defendant Washington with “aiding and abetting one another.” The panel interpreted this phrase to mean that the grand jury believed Edwards could have committed the substantive offense by (a) aiding and abetting Washington, making Washington the principal; (b) Washington aiding and abetting Edwards, making Edwards the principal or (c) both Edwards and Washington possessing the methamphetamine with the intent to distribute it which made them both principals and aiders and abettors. Finally, the panel found the jury instructions were correct statements of the law. Even though the instructions did not follow the circuit’s pattern instructions (“district courts are by no means required to follow pattern instructions verbatim”), they correctly instructed the jury on the elements of the substantive offense and aiding and abetting.