Opinion
01 Cr. 307 (RPP)
March 5, 2003
OPINION AND ORDER
The Defendant, Miguel Angel Martinez-Sandoval, a/k/a "Movie" ("Defendant"), renews his motion for a Judgment of Acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure. For the following reasons, Defendant's motion is granted.
Background
On May 10, 2001, Defendant was charged with one count of knowingly and intentionally conspiring to violate the narcotics laws of the United States, i.e. distributing and possessing with the intent to distribute cocaine.
Prior to jury selection, Defendant submitted a Rule 29 motion dated January 11, 2003, arguing that the evidence adduced at trial would be insufficient to prove alternatively, the existence of a conspiracy, or that Defendant shared the specific intent to join the conspiracy to violate U.S. narcotics laws. The motion as argued at the close of the Government's case at trial and the Court reserved judgment on the motion. (See Trial Transcript at 256.) Defendant was tried before a jury from January 14-16, 2003. Four witnesses testified for the Government: 1) Special Agent Jefferson Moran of the Drug Enforcement Administration ("DEA"), an undercover agent who negotiated for the sale of 30 kilograms of cocaine to Mr. Roberto Martinez-Martinez. a/k/a "Papito" ("Papito"); 2) Dali Fernandez, a certified Spanish language interpreter and translator who testified to the accuracy of the transcripts of tape recorded conversations that she prepared; 3) Special Agent Robert Yoos, the DEA agent in charge of the investigation of Papito, who testified primarily about evidence seized from Defendant after his arrest as well as post-arrest statements that Defendant gave to DEA agents; and 4) Geronimo Perez, Defendant's nephew, who testified about a conversation he had with Defendant the morning before Defendant met with Special Agent Moran at the Neptune Diner on March 21, 2001. Defendant did not offer any evidence.
Roberto Martinez-Martinez, a/k/a "Papito" was a named co-defendant in the Indictment. Papito entered a guilty plea to other charges on November 21, 2002.
The evidence at trial established that between 3:25 and 4pm on March 21, 2001, Defendant took a livery cab to Astoria Queens to meet a person he had never met before at the Neptune Diner. (See tr. at 40-45.) This unknown person who met Defendant at the Neptune Diner was undercover Agent Moran. See id. at 42.) Moran testified that prior to this meeting with Defendant on March 21, 2001, during a period from January 2001 to March 2001, Moran had participated in a series of phone calls and in person meetings with Papito, during which Papito indicated that he wanted to buy a large amount of cocaine. (See id. at 26-29.) Moran ultimately agreed to sell 30 kilograms of cocaine to Papito. (See id. at 27.)
The telephone calls and meetings between Special Agent Moran and Papito were recorded. (See tr. at 26.) The jurors listened to the tape recordings of the calls, which were conducted in Spanish, and they were provided with the English language translations. (See id. at 68-79, 115; Government Exhibits 1C, 2C, 3C(1), 3C(2), 1C-TR, 2C-TR, 3C-TR(1), 3C-TR(2).)
According to the translation of a recorded telephone conversation between Papito and Special Agent Moran on March 21, 2001 at 3:25 p.m., Papito told Moran that he planned to send "Movie" by taxi to pick up the cocaine at the Neptune Diner. (See Government Exhibit 3C-TR(1) at 4-7.) In a subsequent telephone conversation between Papito and Moran that same day at 4:30pm, following Defendant's arrest which was unbeknownst to Papito, Papito agreed that Defendant was "trustworthy." (See Gov. Exh. 3C-TR(2) at 3.) In response to Moran's question, "Is he serious," Papito described Defendant as "superserious," but also warned Moran "[not to] tell [Defendant] anything" and to "[j]ust give [Defendant] the luggage and go ahead, that's it." (See id. at 3-4.)
On March 21, 2001, Special Agent Moran wore a body wire to his meeting with Defendant, which began inside the Neptune Diner and continued outside the diner in the parking lot at the rear of Moran's parked vehicle. (See tr. at 79.) Another DEA agent, Special Agent Andres Gonzales, also acting in an undercover capacity, was with Moran that day and was seated in the driver's seat of Moran's vehicle while Moran had a conversation with Defendant at the rear of the vehicle. (See id. at 88.) According to the translation of the recorded conversation inside the diner, Special Agent Moran told Defendant, "I'm gonna give you that," and suggested to Defendant that they "switch cars." (Gov. Exh. 4C-TR at 2.) Defendant explained to Moran that "[he] came in a taxi." (Id. at 3.) Moran asked Defendant if he was the same person "who's coming to bring me the receipts. . . . the money," and Defendant responded that he was not, but rather he was "the one that's gonna deliver it." (Id. at 3-4.) Defendant then told Moran that Moran should "go and take out the knapsack" and that Defendant would "leave by taxi." (Id. at 4.) Moran explained to Defendant that he did not "want to take out the knapsack," and that he preferred to "switch cars." (Id.) Moran testified that when he and Defendant exited the diner, a livery cab was waiting outside, and Defendant motioned for the cab to leave, which it did. (See tr. at 50-51.)
A tape recording of the body wire, featuring the conversation both inside and outside the diner, was played for the jury, and the jury was provided with the English translation of the transcript of the Spanish conversation on the tape. (See tr. at 79-80; Gov. Exhs. 4C, 4C-TR.) The conversation and activity in front of Moran's vehicle that took place outside the diner was also video recorded, and the videotape recording was also played for the jurors. (See tr. at 125; Gov. Exh. 5C.)
As Moran and Defendant approached the back of Moran's vehicle, the following events took place in the three minutes and 30 seconds before Defendant's arrest, according to the audiotape, videotape, and Moran's testimony. (See Gov. Exhs. 4C-TR at 6, 5C; tr. at 87-88.) Moran told Defendant, "Look, you'll take the car, but before we go, so there's no discrepancy, you're gonna check this out." (Gov. Exhs. 4C-TR at 6, 5C.) As Moran opened the door to the trunk of the vehicle, Defendant replied, "It would be best that you, that you don't show me anything there and I'll, I'll take it like that." (Id.) Moran testified that he removed a towel from the tops of two bags in the back of his vehicle to reveal to Defendant brick-like packages wrapped in plastic sealing tape, and told Defendant "there's 15 here and there's 15 here." (Gov. Exhs. 4C-TR at 7, 5C, 8A, 8B; see tr. at 90-93.) During this time, Defendant repeated more than once that Moran should not show him anything. (See Gov. Exhs. 4C-TR at 6-7, 5C.)
Government Exhibit 5C is the videotape of the meeting in the parking lot at the Neptune Diner; 4C-TR is the audiotape of the same meeting and includes the preceding dialogue that takes place inside the diner.
After Moran had removed the towel from the tops of the bags, Defendant told Moran "they told me, `you, you go and you pick up a thing,'" but "they didn't tell me what I was gonna pick up." (Gov. Exhs. 4C-TR at 7, 5C.) Defendant insisted further that he "you guys know what's there, I don't know anything," and he told Moran that he would "take the car . . . and . . . take everything without you counting it for me or anything" and that "I'll take it and, and they know me and I know them, I don't know you." (Id.) Defendant suggested that Moran "follow me," and Moran then indicated that Defendant might "get lost on me" and someone might later claim that he had only delivered 28, even though Moran was "gonna give [Defendant] 30." (Gov. Exhs. 4C-TR at 8, 5C.) Moran then stated "you'll be responsible. O.K.?" to which Defendant responded, "You follow me, I don't know anything about that." (Gov. Exhs. 4C-TR at 9, 5C.) Moran repeated, "you'll be responsible for the 30s" and Defendant replied, "I haven't counted . . . You follow me, you follow me." (Id.) Defendant then suggested that Special Agent Gonzalez "go with me in the car." (Id.)
At this point in the conversation, Moran told Defendant, "there are 15 kilos here and there are 15 kilos here and here are 15, O.K.?" (Gov. Exhs. 4C-TR at 10, 5C.) After Moran used the word "kilos," Defendant took a few steps back from the vehicle and Moran, and responded "I, I don't even know what what I'm telling you . . . I'm telling you I don't know." (Id.) During the conversation, Defendant intermittently put his hands up in the air while shrugging his shoulders, and several times crossed both arms sharply in front of his body with his hands extended, somewhat resembling an umpire of a baseball game calling safe. (See Gov. Exh. 5C.) Moran said, "you're gonna be taking this to Papito this afternoon, right?" (Id.) Defendant repeated to Moran several times that he was told he was going to pick up a car and bring it back, and said "They didn't tell me what I was coming to pick up anything or nothing." (Gov. Exhs. 4C-TR at 10-13, 5C.) When Defendant indicated that he wasn't told about anything else except the car, Moran told Defendant, "now you know what's there so that you can take it. Are you gonna take it?" and Defendant said, "But he didn't talked to me about that." (Gov. Exhs. 4C-TR 10-11, 5C.) Moran said, "But it's just that, that, what else, you already know that the thing is there, bro." (Gov. Exhs. 4C-TR at 11, 5C.) When Moran pressed Defendant, "Well are you gonna take it or not? Are you taking this or you're not? Tell me right now. Are you taking it?", Defendant replied "Aha . . . I'll talk to him because I wasn't told that. They told me, `Go and get a car that I have there and you'll bring it to me here,' nothing else. But he didn't tell me what I came to get" (Gov. Exhs. 4C-TR at 11-12, 5C.) Upon this response, Defendant turned away from the back of the vehicle and took several more steps away to the right. (See Gov. Exh. 5C.)
Moran followed Defendant and asked him if he were planning to speak with Papito, and Defendant responded, "Yeah." (Gov. Exhs. 4C-TR at 12, 5C.) Moran then replied, "Ah, but . . . that's the problem with this, brother." (Id.) Moran told Defendant they were getting wet, and in rapid succession, told Defendant "take it right now, complete, tak- . . . take it right now, take the car, take it, take it, take it." (See id.) Moran then told Special Agent Gonzales to give Defendant the keys. (See Gov. Exhs. 4C-TR at 12-13, 5C.) Defendant responded, "Let him talk to you because I don't know anything about that. I wasn't told that I was coming to . . . I was only told, "Go pick up a car." (Gov. Exhs. 4C-TR at 13, 5C.) Following these words, Defendant walked around the front of the vehicle, stood on the raised sidewalk near the driver's side of the car, and lit a cigarette. (See Gov. Exh. 5C.) Seconds later, Defendant was placed under arrest on the sidewalk. (See id.)
Special Agent Yoos testified that, among other things, he had seized the following items from Defendant after his arrest: a stained napkin with the name and address of the Neptune Diner written on it (see Gov. Exh. 9); business cards for Papito's Las Bahamas Restaurant (see Gov. Exh. 10); and several business cards livery cab services, containing the telephone numbers of those cab services (see Gov. Exh. 11). In addition, Yoos testified about post-arrest statements made by Defendant at the DEA office in Manhattan. (See tr. at 232-34.) Defendant's statements were made in Spanish, and then translated to Yoos by Special Agent Gonzales. (See id. at 183.) According to Yoos' testimony of Gonzales' translation, Defendant had met with Papito on the afternoon of March 21, 2001, he agreed to pick up a car for Papito later that day in return for $500, and he believed he would be picking up a car from a dealership. (See id. at 232-33.) Yoos testified that he then asked Defendant, through Gonzales, why he was willing to take the car back to Papito after he saw the 30 kilograms of cocaine, and Gonzales interpreted Defendant's response to be that he had nothing to do with the packages, he was just going to bring the car back to the restaurant, and he wanted nothing to do with the packages. (See id. at 234.) Gonzales also indicated that Defendant said that he had been instructed by Papito to park the car on the street when he returned. (See id. at 234.)
Because Special Agent Gonzales did not testify at trial, a missing witness charge was given to the jury. (Tr. at 339-40.)
Defendant's nephew, Geronimo Perez, testifed that he had a conversation with Defendant on the morning of March 21, 2001. (See id. at 245-46.) In that conversation, Defendant told Perez that he had agreed to go to New Jersey to pick up a car for a person with whom he worked at the Las Bahamas Restaurant in exchange for $500. (See id. at 246.) Perez found the arrangement suspicious, and voiced this concern to Defendant, but Defendant explained the high sum as a aggregate payment for picking up the car, and performing various other odd jobs around the restaurant. (See id. at 247-248.)
The case was submitted to the jury on January 16, 2003 and after three and a half days of deliberations, the jurors, unable to a return a unanimous verdict, were dismissed. Defendant moved for a mistrial, and renewed his motion for Judgment of Acquittal. (See id. at 404-05.)
Discussion
A. Standards of Law
A court-ordered judgment of acquittal is proper when no verdict is returned, subsequent to the discharge of the jury. See Fed.R.Cr.P. 29(c). Pursuant to Fed.R.Cr.P. 29(a), a court "shall order the entry of judgment of acquittal of one or more offenses charged in the indictment . . . if the evidence is insufficient to sustain a conviction of such offense or offenses." A defendant challenging the sufficiency of the evidence pursuant to Rule 29 bears a "heavy burden." United States v. Autuori, 212 F.3d 105, 114 (2d. Cir. 2000) (internal citation omitted).
With regard to the charge in the Indictment, the Government is required to prove a conspiracy by showing that (1) the unlawful conspiracy charged in the indictment existed; (2) one of the co-conspirators knowingly committed at least one overt act in furtherance of the conspiracy; and (3) the defendant knowingly and intentionally participated in the charged conspiracy. Here the evidence against Papito showed that the conspiracy charged in the indictment existed and that Papito had committed overt acts in furtherance of the conspiracy. The issues at trial were whether Defendant had knowingly and intentionally participated in the conspiracy. With respect to whether there is sufficient evidence of a defendant's intent to participate in the conspiracy with knowledge of its unlawful objectives, there are two separate inquiries: the prosecution must show a) that the defendant had some knowledge of the unlawful object of the conspiracy, and b) that the defendant intended to engage in the unlawful scheme. See United States v. Reyes, 302 F.3d 48, 53 (2d Cir. 2002). Both inquiries may be proved by circumstantial evidence so long as that evidence successfully establishes the defendant's guilt beyond a reasonable doubt. See United States v. Desimone, 119 F.3d 217, 223 (2d Cir. 1997).
Viewing all of the evidence presented in this case in the light most favorable to the prosecution, a rational trier of fact would likely conclude that Papito conspired with Moran to purchase 30 kilograms of cocaine, based on the phone calls between Moran and Papito, and the testimony of Moran. (See Gov. Exhs. 1C-TR, 2C-TR, 3C-TR(1), 3C-TR(2); tr. at 26-29.) A rational juror could also find that Papito sent Defendant to pick up the car or package containing the large quantity of drugs at the Neptune Diner, and that Defendant agreed to go pick up a car or package from an unknown person at the diner in exchange for a payment. (See Gov. Exhs. 3C-TR(1), 3C-TR(2); tr. at 41-42.)
On Rule 29 motions, the general test in the Second Circuit is that:
[A] district court can enter a judgment of acquittal on the grounds of insufficient evidence only if, after viewing the evidence in the light most favorable to the prosecution and drawing all reasonable inferences in the government's favor, it concludes no rational trier of fact could have found the defendant guilty beyond a reasonable doubt.Reyes, 302 F.3d at 52. This test however, does not address the situation where the evidence is all inferential and equal inferences of guilt and innocence can be drawn by the jury. In that situation, it has been the law for several years in other circuits that "if the evidence . . . [viewed in the light most favorable to the prosecution] gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, [then] a reasonable jury must necessarily entertain a reasonable doubt." United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). See also, United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995); United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992);United States v. Wright, 835 F.2d 1245, 1249 n. 1 (8th Cir. 1987); Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir. 1982). In 2002, the Second Circuit adopted the same view when the evidence against a defendant is entirely circumstantial. United States v. Glenn, 312 F.3d 58, 64 (2d Cir. 2002).
Cf. Jackson v. Virginia, 443 U.S. 307, 324 (1979) (held that "in a challenge to a state criminal conviction . . . the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.")
Every Second Circuit case except one cited in the Government's letter dated February 20, 2003 pertaining to whether the court is entitled to draw competing inferences from evidence, were decided prior to Glenn. Moreover, the Government's cases are also distinguishable on their facts, in particular that they involved credibility determinations as opposed to this case in which there was exclusively circumstantial evidence related to Defendant's intent to join the conspiracy. See e.g.,United States v. Autori, 212 F.3d 105, 118 (2d Cir. 2000) (noting that conflicting testimony in the case that "must be resolved in favor of the verdict," and that "[i]t is not for the court on a Rule 29 motion to make credibility determinations"); United States v. Friedman, 998 F.2d 53, 57 (2d Cir. 1993) (noting that "the jury was entitled to draw negative inferences from [the defendant's] testimony at trial" and "[b]y taking the stand and offering his own version of events, [the defendant] waiv[ed] any claim as to the sufficiency of the Government's case considered alone"). The single case cited by the Government that was decided after Glenn can be distinguished on the same basis. United States v. Crowley, 2000 WL 207713, *1-*5 (2d Cir. 2003) (noting that the jury "was fully entitled to credit [the victim's testimony]" and that it was appropriate for the jury to draw its own inferences from the victim's testimony regarding the defendant's intent).
Accordingly, since the evidence here is entirely circumstantial relating to Defendant's a) knowledge of the illegal object of the conspiracy charged and b) intent to participate in the conspiracy charged, the Court used will apply the test enunciated in Glenn, to the evidence adduced at trial.
The testimony of Special Agent Moran as to what occurred once he and Defendant approached Moran's vehicle did not depart in any way from what the jury could see and hear on the videotape and audiotape.
B. Application of the Law to the Facts in this Case
1. Defendant's Knowledge of the Conspiracy
There was no testimony that Defendant was told in advance that he was going to pick up narcotics on Papit's behalf (see tr. at 232-34, 246-48), and thus no rational trier of fact could find that Defendant had the requisite knowledge to participate in the conspiracy to violate the narcotics laws prior to his arrival at the Neptune Diner parking lot. The jury was charged that in considering whether Defendant has knowledge of the object of the conspiracy, the jury "may consider whether the defendant deliberately closed his eyes to what otherwise would have been obvious to him," and that if the jury found "beyond a reasonable doubt that the defendant acted with a conscious purpose to avoid learning the truth that he was picking up narcotics," then the knowledge element would be satisfied. (Id. at 332-33.) Given this charge, a rational trier of fact could conclude that Defendant has knowledge of the contents of the packages in the car, once Moran spoke of kilos and Defendant had the opportunity to view the two bags containing wrapped brick-like objects. (See Gov. Exhs. 8A, 8B.)
Evidence presented to indicate that Defendant possibly knew ahead of time that he was being sent to the Neptune Diner to pick up drugs included the telephone conversation between Moran and Papito in which Papito told Moran that Defendant was "trustworthy" and "superserious." (Gov. Exh. 3C-TR(2) at 3-4.) In addition, the fact that Defendant understood that Papito was going to give him $500 to meet an unknown person to pick up a deliver supports a possible inference that Defendant knew that he was doing a drug conspiracy from the moment he was asked to participate.
However, this evidence, in view of the totality of the evidence and considered in the light most favorable to the prosecution, is not sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Defendant had knowledge of the conspiracy to violate U.S. narcotics laws prior to his arrival at the Neptune Diner. Rather, this evidence supports the inference that Defendant had knowledge that the object of the conspiracy required some form of criminal activity. Based on the evidence, from Defendant's perspective at that time, Papito could have been dealing with any number of illegal items including counterfeit money, credit cards or electronic devices. Knowledge of a general criminal conspiracy is insufficient to sustain a charge for a drug conspiracy. See e.g., United States v. Rosenblatt, 554 F.2d 36, 39 (1977) ("a general agreement to engage in unspecified criminal conduct is insufficient to identify the essential nature of the conspiratorial plan.")
Defendant argues that it is still not clear that Defendant had knowledge of the specific contraband involved, and "could have believed he was retrieving a stolen car, counterfeit money, or stolen electronic devices." (Defendant's Letter Brief dated January 23, 2003 at 2.) This exact issue was considered on appeal by the Third Circuit in, United States v. Idowu, 157 F.3d 265, 266 (3d Cir. 1998) (the "sole question on . . . appeal, following [the defendant's] conviction by a jury, is whether there was sufficient evidence that [the defendant] knew that the subject matter of the transaction was a controlled substance, rather than some other form of contraband, such as stolen jewels or computer chips or currency"). In Idowu, the defendant was convicted of conspiracy to possess with intent to distribute heroin, and similar to this case, the Third Circuit considered on appeal the fact that neither the co-defendant nor the government agent ever mentioned the subject of their deal as either heroin or drugs in the presence of the defendant, and the defendant never gave any indication that he knew what was being purchased. (See id. at 268-69.) However, in Idowu, the co-defendant and government agent referred to contraband in the deal as "the stuff" (id. at 268), a more ambiguous reference than the language in this case in which Moran, in Defendant's presence, specifically referred to the bags of brick-like objects in his car as "15 kilos" and "15 kilos." (Gov. Exhs. 4C-TR at 10, 5C.) Defendant's opportunity to observe the brick like-packages alone did not suffice as evidence for a rational trier of fact to conclude beyond a reasonable doubt that Defendant knew the packages contained drugs, as opposed to some other contraband like electronic devices. Once the word "kilos" was used, however, the evidence was sufficient to support a rational jury's conclusion beyond a reasonable doubt that Defendant had knowledge that the object of the conspiracy was drugs since Defendant had previously been shown the brick-like packages.
Other cases cited by Defendant can be distinguished on similar grounds. See e.g., United States v. Nusraty, 867 F.2d 759, 764 (2d Cir. 1989) (court held that evidence was insufficient to sustain conviction for conspiracy to possess heroin with intent to distribute in part because defendant never saw the drugs, nor was he present for the transfer); United States v. Samaria, 239 F.3d 228, 237-240 (2d Cir. 2001) (court found that government failed to provide sufficient evidence that defendant knew that boxes loaded in the back of his car contained stolen property, because what defendant saw was not "even reasonably indicative of any criminal activity at all, much less sufficient to support the conclusion that [the defendant] knew that the goods were stolen or purchased through credit card fraud"); United States v. Rosenblatt, 554 F.2d 36, 38 (2d Cir. 1977) (government stipulated that defendant did not know the truth about his co-conspirator's activities, and the court held that in light of the defendant's lack of knowledge about the type of fraud committed, a conviction for conspiracy to defraud could not stand).
2. Defendant's Specific Intent to Participate in the Conspiracy
The circumstantial evidence regarding Defendant's specific intent to join the conspiracy however equally supports competing theories of guilt and innocence. As previously noted, there was no testimony or evidence that Papito told Defendant he was picking up drugs, or that Defendant knew that his errand involved drugs prior to Defendant's arrival at the Neptune Diner. Defendant repeatedly denied knowledge of the nature of what he was to pick up. (See Gov. Exhs. 4C-TR at 7-13, 5C.) Initially Defendant had offered to take the car with the packages inside (see Gov. Exhs. 4C-TR at 7, 5C), but when pressed on the issue of taking responsibility for the number of packages (see Gov. Exhs. 4C-TR at 9, 5C), after the first and only mention of the term "kilos" (Gov. Exhs. 4C-TR at 10, 5C), Defendant repeated that he wasn't told about it. (Gov. Exhs. 4C-TR at 12, 5C.) When Moran asked Defendant again, "Are you taking it?" (id.), Defendant backed away from the rear of the vehicle and then moved several feet to the right side of the vehicle (see Gov. Exhs. 5C), told Moran that he should talk to Papito because he wasn't told about what he was picking up (see Gov. Exh. 4C-TR at 10-13, 5C) and walked around the front of the vehicle and lit a cigarette. (See Gov. Exh. 5C.) Defendant never took the keys to the car, nor did he get into the car, prior to his arrest. From the time "kilos" was mentioned until agents first moved in to place Defendant under arrest, only two minutes and six seconds elapsed; approximately half of that time, Moran was firing questions at Defendant and repeating demands that Defendant take the car to which Defendant did not assent. (See Gov. Exhs. 4C-TR at 10-13, 5C.) The prosecution claims that because Defendant did not walk away from the diner, his actions showed he was willing to take the bags back to Papito. (See Government's Letter dated February 20, 2003 at 6.) However Defendant's statements exhibited confusion and his body language showed reluctance. He first said, "I'll talk to him [Papito]" but then said "Let him [Papito] talk to you," repeating that he had not been told what he was supposed to pick up and backing further away from Moran and the rear of the vehicle. (Gov. Exh. 4C-TR at 12-13, 5C.) Thus, pursuant to Glenn and the similar caselaw from other circuits, the exclusively circumstantial evidence presented in this case relevant to Defendant's specific intent to enter the conspiracy to possess or intend to distribute narcotics is in equipose, and two equally plausible competing theories of guilt and innocence can be derived therefrom.
In Glenn, the court considered the circumstantial evidence and found that: the same assumptions regarding the defendant's motive to kill drawn from evidence also supplied other drug dealers with "equal if not greater motives" (Glenn, 312 F.3d at 65); although the defendant was seen with the victim shortly before his death, providing the defendant with opportunity, the same could be said for an additional person seen with the victim (id. at 66); and although the defendant carried a gun, he was a drug dealer and drug dealers routinely carry guns, including several others who were in the vicinity at the time of the victim's death. (Id. at 67.) Thus, because the court found that there existed only circumstantial evidence regarding the identity of the killer, and such evidence gave nearly equal support to theories of guilt and innocence, the prosecution necessarily failed to establish Defendant's guilt beyond a reasonable doubt. Similarly in Cosby, the court held that the mere fact that the defendant possessed and pawned a stolen camera less than two days after a burglary gave equal support to inferences that defendant had committed the burglary and that the defendant was fencing stolen goods, and thus did not suffice to convict the defendant of burglary. Cosby, 682 F.2d at 1383. Finally in Andujar, the court held that evidence in a drug conspiracy case "offer[ed] equal support to both [the defendant's] mere presence theory, and the prosecution's theory that [the defendant] was knowingly acting as a facilitator and go-between in the conspiracy."Andujar, 49 F.3d at 22. The court vacated the conspiracy conviction holding that "[w]hen a jury is confronted as here with equally persuasive theories of guilt and innocence it cannot rationally find guilt beyond a reasonable doubt." Id.
The Andujar court applied the same analysis to the evidence presented against the co-defendant in the case, and upheld the conviction due to the fact that some of the evidence presented required credibility determinations on the part of the fact-finder, and the court necessarily resolved such credibility issues in favor of the guilty verdict.Andujar, 49 F.3d at 21. Such was also the case in Sanchez in which the court found that it appeared that the jury chose to believe the testimony of the agent pertaining to tape recorded conversations regarding the code words used in drug transactions, and rejected the interpretation offered by the defendant. Sanchez, 961 F.2d at 1175. The Sanchez court found that such circumstances did "not fall into the realm of what an appellate court could reasonably conclude is a theory of innocence equally or nearly equally supported by the evidence as the theory of guilt." Id. Finally, in Lopez, the court held that although the bulk of the evidence at trial was at least as consistent with a theory of innocence as with guilt on drug importation and possession with intent to distribute charges, testimony that the police inspector smelled a strong odor of marijuana in a vehicle "must tip the scales in favor of providing a basis for affirming the [guilty] verdict." Lopez, 74 F.3d at 577. The court found that although the inspector's "testimony . . . was subject to question, we cannot say that a reasonable jury could not credit this testimony." Id. In the case before this Court, the evidence presented relating to Defendant's specific intent to join the conspiracy is all recorded on videotape and does not require that any credibility determinations be made by the fact finder, and thus can be distinguished from the cases above on that basis.
In this case, there were no credibility determinations to be weighed by the jury with regard to Defendant's specific intent to join the drug conspiracy, and all such relevant evidence was entirely circumstantial. Considering the evidence in total, Defendant either: (a) intended to take the keys to the car, as indicated earlier in his conversation with Moran, prior to hearing the word "kilos" and never changed this intent, because he did not attempt to walk away from the transaction, thus completing a theory of guilt; or (b) upon learning of the nature of the illegal object of the venture when he heard the term "kilos," had doubts, reflected by his body language, regarding his participation in the transaction between Papito and Moran, did not agree to take the car or the keys, despite Moran's urging, stated he would have to call Papitio to discuss the matter and then stated that Moran should talk to Papito because Defendant did not know anything about it, and went off by himself and lit a cigarette, delaying any response to Moran's demands that he take the car, thus providing a theory that Defendant did not intend to join the conspiracy. Because Defendant never took the keys from Moran or Gonzales, nor did he ever indicate in any way that he would take the keys after hearing the word "kilos," but rather stepped away from the vehicle and Moran and repeatedly insisted that Papito should be contacted, the latter theory that Defendant was using a delay tactic to determine whether he would participate is at the very least, as equally persuasive as a hypothesis of guilt. Thus "a reasonable jury must necessarily entertain a reasonable doubt" with respect to the essential element of Defendant's specific intent to join the conspiracy. Glenn 312 F.3d at 64.
Conclusion
For the foregoing reasons, Defendant's motion is granted. Judgement of Acquittal is entered for Defendant.