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United States v. Commodore

filed*fn*: January 14, 1994.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BERNICE COMMODORE, A/K/A BERNICE EDWARDS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-92-454-007(D)M. Walter J. McGovern, Senior District Judge, Presiding

Before: Wright, Canby and T.g. Nelson, Circuit Judges.

MEMORANDUM

Bernice Commodore appeals her conviction and sentence for conspiracy to distribute cocaine, distribution of cocaine, and possession with intent to distribute cocaine. We affirm.

1. Sufficient evidence supported the verdict that defendant distributed or aided and abetted the distribution of cocaine.

Because Commodore did not move for acquittal on this count, we review for plain error. United States v. Winslow, 962 F.2d 845, 850 (9th Cir. 1992). We inquire whether "viewing 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." United States v. Lai, 944 F.2d 1434, 1440 (9th Cir. 1991), cert. denied, 112 S. Ct. 947 (1992).

To convict for aiding and abetting, the government must prove that the defendant associated herself with the venture, that she participated and wished to bring it about, and that she sought by her action to make it succeed. United States v. Sanchez-Mata, 925 F.2d 1166, 1169 (9th Cir. 1991). "A defendant need not actually sell drugs to aid and abet in their distribution." United States v. Savinovich, 845 F.2d 834, 838 (9th Cir.), cert. denied, 488 U.S. 943, 102 L. Ed. 2d 358, 109 S. Ct. 369 (1988).

Avery Revey, the confidential informant, testified that on July 18, 1992 he drove with Bernice's half-brother, Henry Johnnie, to the Commodore house to purchase cocaine. Revey paid Johnnie, who entered the house and returned with cocaine. Johnnie told him "it was Bernice' who gave him the cocaine.

The recording of the July 19 transaction implicated Commodore as the source of the cocaine on July 18.

Revey: That was a pretty good bag, um last night.

Johnnie: Yeah?

Revey: Where's, was that your mom's or . . .

Johnnie: Uh, Bernice's (phonetic)

Circumstantial evidence also supports conviction. The sale on July 19 was similar to that on July 18. Drugs, drug paraphernalia, a gun and money were found in the bedroom shared by Commodore and Samuel Rice.

2. The court did not err in imposing a two-level upward adjustment for possession of a firearm under ...


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