## Facts

- Jesus Villasenor and Mario Gomez arranged to sell heroin to a Federal Bureau of Investigation (FBI) agent and an FBI informant.
- The sale was to occur in Villasenor’s van parked outside a restaurant, and the four men went to the van to complete the transaction.
- Agustin Ortega was already waiting in the van, seated behind the driver’s seat.
- Inside the van, Villasenor searched around and asked Ortega in Spanish, “Where is it?”
- Ortega replied “Over there,” while pointing to an area on the floor of the van.
- Villasenor retrieved a plastic bag from the area Ortega indicated and opened it.
- The informant tasted the substance in the bag and stated that it was heroin.
- The opened bag produced a strong odor, and Ortega commented on the smell.
- There was testimony that, after the informant identified the substance as heroin, Ortega said “the best.”
- Ortega did not negotiate the deal, handle the drugs or money, own the van, or arrange the meeting, and there was no evidence he stood to profit from the sale.
- Ortega was charged with conspiracy to distribute heroin and aiding and abetting possession of heroin with intent to distribute; the jury convicted him on aiding and abetting, and the conspiracy count was dismissed after the jury deadlocked on it.
- Ortega appealed his conviction and sentence.

## Issues

1. Whether the evidence was sufficient for a rational jury to find beyond a reasonable doubt that Ortega aided and abetted possession of heroin with intent to distribute.
2. Whether any sentencing challenges required relief if the conviction stood.

## Decision

- The Seventh Circuit held the evidence was insufficient as a matter of law to prove Ortega aided and abetted possession of heroin with intent to distribute.
- The court reversed the conviction and remanded with directions to enter a judgment of acquittal.
- Because the conviction was reversed for insufficient evidence, Ortega’s sentencing challenges were moot.

## Legal Principles

- Aiding and abetting under 18 U.S.C. § 2 requires proof that the defendant knowingly associated with the criminal venture and took action intended to help it succeed.
- Mere presence at the scene of a crime, even with knowledge that criminal activity is occurring, is not enough to establish aiding and abetting.
- Minimal, ambiguous conduct consistent with a bystander’s behavior—such as pointing out the location of an item—does not by itself show purposeful assistance to a drug transaction.
- Statements reflecting familiarity with drugs (including comments about odor or quality) can show knowledge, but without evidence of intentional assistance they do not establish aiding and abetting.
- When an appellate court finds the trial evidence legally insufficient, the proper remedy is reversal with instructions to enter a judgment of acquittal, not a new trial.

## Conclusion

Because the government proved only that Ortega was present in the van, appeared to know the substance was heroin, pointed to where a bag was located when asked “Where is it?,” and made remarks about the smell and possible quality, the Seventh Circuit concluded no rational juror could find beyond a reasonable doubt that Ortega intentionally helped the possession-with-intent-to-distribute offense; the court therefore reversed and ordered an acquittal, rendering sentencing issues irrelevant.


United States v. Ortega, 44 F.3d 505 (1995)