UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-10247

Plaintiff-Appellee, D.C. No. 3:19-cr- 00073-VC-7 v. LEMACK BELLOT, AKA Lee, OPINION

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Submitted January 11, 2024 * San Francisco, California

Filed August 21, 2024

Before: Eugene E. Siler,** Richard R. Clifton, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Clifton * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ** The Honorable Eugene E. Siler, United States Circuit Judge for the Sixth Circuit, sitting by designation. 2 USA V. BELLOT

SUMMARY ***

Criminal Law

The panel affirmed Lemack Bellot’s conviction on two counts of attempting to aid and abet possession with the intent to distribute cocaine. Bellot argued that the indictment was constructively amended because the government initially proposed jury instructions consistent with the theory that Bellot aided and abetted an attempt by the confidential source (CS) to possess with intent to distribute cocaine, but that after intervention by the court, the jury was instructed consistent with the theory that Bellot attempted to aid and abet the possession of cocaine with intent to distribute. Bellot maintained this change deprived him of notice of the charges against him. The panel explained that whether characterized as aiding and abetting an attempt to possess cocaine or an attempt to aid and abet the possession of cocaine, the crime ultimately charged is the same. In either scenario, the charge was—and Bellot was in fact charged with—“knowingly attempt[ing] to possess with the intent to distribute” cocaine. And although the government was not required to specify its theory of the case in the indictment, the undisputed facts supported only one theory. Bellot, thus, had sufficient notice of the charges against him. Bellot further argued that certain statements made by the government in closing substantially altered its theory of the case so as to amount to a constructive amendment of the *** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. BELLOT 3

indictment. He asserted that in its opening, the government stated that Bellot was charged with attempting to get cocaine through the airport, yet in closing, the government stated that it “doesn’t matter whether . . . the defendant wanted the CS to be arrested at the airport . . . He was helping the CS to get . . . cocaine into the airport.” The panel did not discern a constructive amendment here, either. The government was correct in stating that Bellot’s subjective intentions concerning the fate of the CS were irrelevant; all that mattered was that Bellot attempted to aid and abet the possession of cocaine by someone who Bellot reasonably believed had the intent to distribute it. Moreover, the government correctly stated the law when it informed the jury that it did not matter whether the drugs went into the airport or through the airport. Bellot was charged—as a principal—with an attempt to possess with the intent to distribute various amounts of cocaine. Attempt is an inchoate crime that does not require completion of the criminal objective. Accordingly, the jury did not need to find that the cocaine was successfully smuggled through the airport to convict Bellot of the charged offense. The governmen