Unpublished Disposition, 872 F.2d 431 (9th Cir. 1989)

MEMORANDUM^* 

The district court found Enrique Ernesto Castro guilty of aiding and abetting the distribution of cocaine pursuant to 21 U.S.C. § 841(a) (1). Castro contends that the evidence was insufficient to support his conviction for aiding and abetting, and that the district court's acquittal on the conspiracy charge precludes conviction on the aiding and abetting charge.

STANDARD OF REVIEW

There is sufficient evidence to support a conviction if, reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir. 1984).

DISCUSSION

I. Sufficiency of the Evidence.

At trial, the jury found Castro guilty of aiding and abetting the distribution of cocaine. "In order to aid and abet another to commit a crime, it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as something he wishes to bring about, that he seeks by his action to make it succeed.' " United States v. Batimana, 623 F.2d 1366, 1369-70 (9th Cir. 1980) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938), cert. denied, 449 U.S. 1038 (1981)).

In this case, Castro concealed the cocaine from a DEA agent posing as a drug dealer, accompanied other defendants who carried the cocaine to a bedroom in the house where the transaction took place, observed negotiations between another defendant and the DEA agent, responded to another defendant's request to retrieve the cocaine by walking in the direction of the room where the cocaine was located without returning, and fled from the scene of the crime when police arrived, making a false exculpatory statement to the officer who apprehended him. Viewing the evidence in the light most favorable to the government, a rational trier of fact could conclude beyond a reasonable doubt that Castro helped the other defendants with the intention of furthering the transaction.

II. Effect of Acquittal on the Conspiracy Charge.

Castro asserts that because his Rule 29(a) motion for judgment of acquittal on the conspiracy charge was granted, his conviction as an aider and abettor is precluded as a matter of law.

Conspiracy and aiding and abetting are two different crimes. United States v. Tierney, 424 F.2d 643, 645 (9th Cir. 1970) (citing Nye and Nissen v. United States, 336 U.S. 613 (1949)). The basic difference between them is that to convict a defendant of the latter, there need not be an agreement to perform an illegal act. United States v. Van Brandy, 726 F.2d 548, 552 (9th Cir. 1984) (citing Tierney, 424 F.2d at 646). "An acquittal for conspiracy does not preclude a conviction for aiding and abetting unless the acquittal results in a finding of fact in favor of the defendant which is essential to the substantive offense." Tierney, 424 F.2d at 645 (quoting Sealfon v. United States, 332 U.S. 575 (1948)).

In the present case, the defendant's acquittal on the conspiracy charge does not act as collateral estoppel on the aiding and abetting charge because there is no evidence that the acquittal resulted in a finding of fact in favor of the defendant essential to the aiding and abetting charge. To the contrary, a review of the jury instructions on both counts¹  suggests that it would have been possible to find that there was no agreement to distribute cocaine between Castro and the other defendants, resulting in an acquittal on the conspiracy charge, but that Castro nevertheless knowingly helped the other defendants to distribute the cocaine, resulting in a conviction on the aiding and abetting charge. One may knowingly help another to perform an act without entering into an agreement to do so. See, e.g., United States v. Van Brandy, 726 F.2d at 548. See also Sealfon v. United States, 332 U.S. 575, 579 (1948) (to determine what the convicting jury found, the court must look to the instructions under which the verdict was rendered).

AFFIRMED.