where the Court stated: “Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.” The Tenth Circuit considered and rejected the same argument Johnson makes here. See United States v. Alexander, 447 F.3d 1290, 1298-99 (10th Cir.2006), cert. denied - U.S. -, 127 S.Ct. 315, 166 L.Ed.2d 236 (2006). In Alexander the Tenth Circuit considered Jones and Apprendi and held that “a charge of the predicate crime puts defendant on notice that the jury may be instructed on aiding and abetting, thus satisfying any due process concerns.” Id. at 1299; see also United States v. Creech, 408 F.3d 264, 273 (5th Cir.2005) (<HOLDING>). Johnson asserts Alexander is unpersuasive
recognizing both aiding and abetting breach of fiduciary duties and aiding and abetting conversion holding it was not a surprise or unfair to the defendant for the state to pursue a theory of aiding and abetting at trial when the charging document did not refer to aiding and abetting holding apprendi does not upset the longstanding practice of giving aiding and abetting jury instructions even when that theory is not charged in the indictment thus there is no fifth amendment violation holding there was no error in giving an instruction on aiding and abetting when defendant was not charged with aiding and abetting because ajiders and abettors  are chargeable directly as principals recognizing aiding and abetting conversion