Opinion
02 Cr. 1388 (HB).
July 10, 2003.
OPINION ORDER
Defendant Delvis Vargas, a/k/a "Pedro Antonio Carvajal" ("Vargas"), who was convicted of one count of conspiracy to distribute cocaine base, moves for judgment of acquittal. For the following reasons, the motion is denied.
I. BACKGROUND
Vargas was charged in a one-count indictment with conspiracy to distribute or possess with intent to distribute cocaine base in violation of 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(A). Vargas was convicted of this single count after a trial on March 3, 2003. One of his alleged co-conspirators, Luis Morant-Cordero a/k/a "Luis Moran Cordero" ("Cordero"), is a fugitive, while the other, Domingo Gaton, a/k/a "Antonio Carro" ("Gaton"), pled guilty prior to trial. Vargas did not contest at trial that there was a conspiracy to distribute cocaine base; instead, he contends in this motion, as he did at trial, that the government's evidence was insufficient to prove membership in the conspiracy.
After deliberating for several hours, the jury returned a verdict that found Vargas guilty of conspiracy but found that the object of the conspiracy was not to distribute cocaine base. Tr. 276. Vargas contended that the verdict was inconsistent and moved for a mistrial. Tr. 278. The jury was sent back for further deliberations with a reminder that crack and cocaine base are the same thing, Tr. 278. Shortly thereafter it returned a verdict that found him guilty of conspiracy and that the conspiracy involved cocaine base. Tr. 283.
The evidence introduced at trial showed the following: In late August or early September 2002, a confidential informant contacted Gaton to purchase an unspecified amount of cocaine base, and they arranged for the purchase to occur on September 18. On September 18, Gaton and the confidential informant met outside a La Caridad Restaurant in upper Manhattan at approximately 6:15 p.m. Prior to the meeting, FBI Special Agent Jason Demartino gave the confidential informant, who was wearing a wire, $2,000 of "buy" money, all in pre-recorded $20 bills. After a brief discussion, portions of which were introduced into evidence, Gaton called Cordero on his cell phone. (The government introduced the cell phone records for Gaton, Cordero, and Vargas which showed that Gaton and Cordero called each other 74 times between July and October 2002 and that they spoke by phone approximately seven times between 6:14 p.m. and 6:35 p.m. on September 18. Cordero and Vargas spoke by cell phone approximately eleven times that day including one call at 5:52 p.m.) Shortly thereafter, Cordero arrived in a van driven by Vargas. Vargas double-parked the van outside the restaurant and turned on the flashers.
According to Det. Isaias Colon of the New York Police Department who was surveilling the van with binoculars, Gaton entered the van for a brief period, during which both the driver (Vargas) and the passenger (Cordero) reached down between the seats. Shortly thereafter, Gaton went inside the restaurant with the confidential informant and handed him an envelope containing approximately 68 grams of cocaine base and took in exchange the $2,000 of pre-recorded "buy" money. Gaton then came out of the restaurant and got back in the van. Vargas drove the van away, and law enforcement agents in an unmarked vehicle followed. Gaton got out of the van a few blocks later, and the agents continued to follow the van. After approximately an hour, Vargas ran a red light and the officers attempted to pull the van over by putting on their sirens and lights. Rather than stopping, the van sped through several more red lights before being forced to a standstill by a wall of traffic.
Cordero and Vargas were taken to the 33rd Precinct where Vargas gave his consent to search the van. This search yielded a hollowed-out loaf of bread in between the front seats and $4,400 in cash, $2,880 of which (including the $2,000 "buy" money) was recovered from the glove compartment and $1,520 of which was recovered from under the front passenger seat. In addition, Vargas had $1,000 in cash in one of his pockets. He had no identification with his true name. At the precinct, Vargas stated that all the money in the van belonged to him and that he earned it working in a grocery store. Both Vargas and Cordero were released, and Vargas was given a receipt for the $5,400 in cash seized by the FBI.
Vargas contacted the New York Police Department's Internal Affairs Bureau in an attempt to recover the confiscated money and on September 19 spoke with Sergeant Joseph Tetonic. On September 24, he went to the 33rd Precinct and spoke with Det. Colon. Vargas's recital of what was said on each of these occasions, particularly with respect to where and how he obtained the cash, were inconsistent in several particulars. Vargas claimed that he earned the money working at a grocery store; however, the owners of the three groceries located in the area where Vargas said he worked — he could not identify a particular store — testified and each denied that Vargas was an employee. Tr. 191-92, 196, 200. Vargas was told that the confiscated money would be returned but that he needed to bring Cordero to a meeting at the precinct to sign a release, and when Vargas and Cordero showed up at the police station on October 2, 2002, they were arrested.
II. DISCUSSION
A. Standard of review
On a motion pursuant to Rule 29 of the Federal Rules of Civil Procedure for acquittal on the grounds of insufficient evidence, the defendant faces a heavy burden. See United States v. Glenn, 312 F.3d 58, 63 (2d Cir. 2002). Acquittal is appropriate only where the Court concludes, after viewing the evidence in the light most favorable to the prosecution and drawing all reasonable inferences in the government's favor, that "no rational trier of fact could have found the defendant guilty beyond a reasonable doubt." See United States v. Reyes, 302 F.3d 48, 53 (2d Cir. 2002) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); Glenn, 312 F.3d at 63. The determination of the sufficiency is based on the "evidence in its totality." See Glenn, 312 F.3d at 63 (citing United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000)); United States v. Guadagna, 183 F.3d 122, 130 (2d Cir. 1999). "[T]he court must be careful to avoid usurping the role of the jury,"Guadagna, 183 F.3d at 129. The Court should "defer to the jury's assessment of witness credibility and the jury's resolution of conflicting testimony." Glenn, 312 F.3d at 64 (quoting United States v. Bala, 236 F.3d 87, 93-94 (2d Cir. 2000)). The elements of a conviction for conspiracy may rest entirely on circumstantial evidence, "[s]ince `conspiracy by its very nature is a secretive operation.'" United States v. Chan An-Lo, 851 F.2d 547, 554 (2d Cir. 1988) (quoting United States v. Provenzano, 615 F.2d 37, 45 (2d Cir. 1980); Glenn, 312 F.3d at 64.
B. Merits
Vargas argues that there was insufficient evidence of his involvement in a conspiracy to sustain the conviction. Specifically, he claims that government failed to provide evidence, besides his mere presence at the transaction, that he became a knowing participant in the conspiracy. In attacking the sufficiency of the evidence Vargas emphasizes details that were lacking from the government's case. For example, Vargas notes that there was no evidence that Vargas knew or had ever spoken with either Gaton or the confidential informant, that he handled the drugs or the money or that he was involved with drugs in the past. Vargas also notes that in his plea allocution, Gaton referred to only one other co-conspirator and this person was Cordero. While admittedly not free from doubt, the test to uphold a verdict is different; the jury need not be free from all doubt — that's not the government's burden.
Gaton stated that "he agreed with the other guy to sell drugs and to give drugs to the informant" and "I spoke with the accomplice."
A conviction for conspiracy requires the government to prove beyond a reasonable doubt "(1) an agreement between two or more persons to commit an unlawful act; (2) knowingly engaging in the conspiracy intending to commit those offenses that were the objects of the conspiracy; and (3) commission of an `overt act' by one or more members of the conspiracy in furtherance of the conspiracy." Reyes, 302 F.3d at 53. Because Vargas concedes the first and third of these elements, only the second element warrants discussion. It is well to keep in mind that "[o]nce the conspiracy has been shown to exist . . . evidence sufficient to link another defendant to it need not be overwhelming." Reyes, 302 F.3d at 53. The government must prove beyond a reasonable doubt that Vargas knew of the conspiracy and its unlawful aims and knowingly and willingly joined in the illegal agreement.See Reyes, 302 F.3d at 53; Glenn, 312 F.3d at 64. A person who is merely present at the scene of the crime is not a conspirator, even if that person knows that a crime is being committed. See United States v. Chang An-Lo, 851 F.2d 547, 544 (2d Cir. 1988); see also United States v. Gaviria, 740 F.2d 174, 184 (2d Cir. 1984). However, it is well-settled that flight and false exculpatory statements made to law enforcement officials are circumstantial evidence of a consciousness of guilt. See Glenn, 312 F.3d at 64, 68-69; Gaviria, 740 F.2d at 184.
Although the government introduced no direct evidence that Vargas knowingly and voluntarily entered into the conspiracy between Gaton and Cordero to sell drugs to the confidential informant, it did present sufficient circumstantial evidence for a reasonable jury to convict Vargas. Specifically, it was reasonable for the jury to find beyond a reasonable doubt that Vargas knew about and voluntarily joined the conspiracy given that 1) Vargas and Cordero spoke by cell phone eleven times that day, including a call several minutes before they arrived in the van at La Caridad Restaurant, 2) Cordero and the defendant possessed at least constructively a hollowed-out loaf of bread, not an uncommon method for storing drugs and other contraband, 3) the transaction between Cordero and Gaton occurred in Vargas's van and afterwards Vargas drove Gaton and Cordero away from the restaurant, 4) Vargas attempted to allude the police, and 5) he made several false and inconsistent statements about the source of the cash found in the van and about how he earned the money working as a grocery clerk. Moreover, when arrested he had on his person $1,000 in cash and $4,400 in the van — including all $2,000 of the pre-recorded "buy" money — all of which he later claimed was his. While evidence of frequent contacts between Vargas and Gaton (and/or the confidential informant) would strengthen the evidence against him, the absence of such evidence is not, as Vargas suggests, fatal to the government's case because the conviction for conspiracy merely required that the jury conclude, as it did, that Vargas conspired with Cordero. See United States v. Nusraty, 867 F.2d 759, 762 (2d Cir. 1989) ("[I]t is not necessary, in fact, that all the parties ever have direct contact with one another, or know one another's identity, or even communicate verbally their intention to agree."). In addition, Det. Colon testified that when Gaton entered the van, Vargas reached down to where the hollowed-out loaf of bread was secreted — the jury was permitted to infer from this that Vargas handled the drugs — again contrary to Vargas's contentions.
Although the rule in this Circuit is that "false exculpatory statements, by themselves, do not provide sufficient evidence of guilty knowledge," see Reves, 302 F.3d at 56;Gaviria, 740 F.2d at 184 ("[T]his Circuit . . . has held that falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant's innocence as it is to the Government's theory of guilt." (citations omitted)), Vargas's false statements coupled with the other circumstantial evidence are sufficient to permit the jury to conclude that he of guilty knowledge here.
Vargas relies heavily on the rule announced in Glenn that where the evidence is entirely circumstantial and when viewed in the light most favorable to the prosecution gives equal or nearly equal support for guilt as for innocence, then necessarily there is reasonable doubt. See Glenn, 312 F.3d 58 at 70; see also United States v. Martinez-Sandoval, 2003 U.S. Dist. LEXIS 3045 (S.D.N.Y. Mar. 6, 2003). The government introduced substantial evidence of the conspiracy between Gaton and Cordero — which Vargas did not dispute. While the government's evidence of Vargas's knowledge was circumstantial, the inference of innocence is not as great as the inference of guilt when this evidence is viewed in the light most favorable to the government. As discussed above, the totality of the evidence supports the conclusion that Vargas knew about and voluntarily joined the conspiracy more so than it supports the conclusion that he unwittingly and unknowingly drove his friend to a rendezvous for a drug transaction.
The Second Circuit has joined with a number of other circuits that have so held. See United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996); United States v. Anduiar, 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).
Finally, Vargas cites several cases where conspiracy convictions have been overturned and he contends that the evidence of guilt in these cases was even stronger than the evidence here. I disagree. For example, in United States v. Johnson, 513 F.2d 819 (2d Cir. 1975), the defendant was convicted of conspiracy based on the fact that he was riding as a passenger in a friend's car that was found to have 525 grams of methamphetamine hidden in a door panel when stopped and searched at the U.S.-Canadian border. See id. at 822. Although the passenger's conduct was suspicious — for example, he seemed nervous when the car was first stopped and falsely stated that he did not know the driver despite the fact that they were long-time friends — there was no evidence that he knew that the drugs were in the door panel. In contrast, here the cocaine base was stashed where the defendant was seen at the very least bending over and looking at it, thus the jury was permitted to infer that Vargas knew what it was. Similarly, in United States v. Fitz, 317 F.3d 878 (8th Cir. 2003), the drugs that formed the basis of the conspiracy conviction were well hidden in a secret compartment in the gas tank. Further, although the defendant rode as a passenger in a car with his alleged co-conspirators from Minneapolis, Minnesota, to Grand Forks, North Dakota, there was no evidence that the defendant spoke English and thus was able to understand the conversations concerning the drugs. None of the cases cited by the defendant convinces me that I can set the verdict aside.
III. Conclusion
For the foregoing reasons, Vargas's motion for acquittal is denied. The defendant is scheduled to be sentenced on August 7, 2003, at 11:00 a.m.