United States v. Anderson

SCHEINDLIN, District Judges, and Judge.* separate a dissents in HALL Judge opinion. CARNEY, Judge: L. Circuit

SUSAN in the United three-day a trial Following the Northern District Court for York, jury found Defen- a of New District guilty Roohid Hakimi dant-Appellee and dis- attempt possess and conspiracy primarily controlled tribute substances — “ecstasy” and colloquially as known those under moved “foxy methoxy.”1 Hakimi 29 for Procedure Rule of Criminal Federal the challenging acquittal, judgment on which the evidence sufficiency of court district rests. The jury’s verdict (David Hurd, Hakimi’s Judge) granted N. Hakimi, United States motion. (N.D.N.Y.2011). gov- The F.Supp.2d appeals. ernment light most the evidence in Viewing drawing favorable support inferences all reasonable must, verdict, we we hold jury’s have found of fact could trier rational charged proven crimes elements particular, beyond a reasonable doubt. Hakimi’s infer entitled was valuable highly a co- from Gardner, poised receive (Daniel on that he was C. Paul D. Silver drugs. illegal Hartunian, conspirator contained brief), Unit- Richard S. for Scheindlin, distribute to distribute and intent Shira A. *The Honorable substance, U.S.C. of 21 Judge for Southern violation Court controlled States District York, designation. sitting by attempted possession § District of New and Count sub- a controlled to distribute with the intent superseding indict- particularly, 1. More stance, § 21 U.S.C. violation of also in regard to two counts with ment contained with possess Hakimi: Count jury’s guilty verdict must therefore be re- cocaine and cash for there transport back instated. We reverse the district court’s Québec. into The organization also smug- judgment of acquittal, remand for fur- gled aliens across the nearby border. ther proceedings consistent with opin- Anderson’s most frequent role, which ion. she filled on approximately occasions, nine was to act as a “blocker” or escort BACKGROUND drug transporter. Tr. 201. In capac- The evidence presented by the govern- ity, her task was to drive at a distance in ment at trial consisted chiefly of testimony front of the courier who actually from law agents enforcement one transporting the shipment and alert Cheyenne Anderson —a cooperating wit- courier in police advance to locations and ness, who, Hakimi, like charged potential other problems on way. On participating in the drug conspiracy. Evi- occasions, these an individual named Daisy dence of calls and text messages placed to (who Realza played a more important role and from phones cellular belonging to in the group Anderson) than would call Hakimi and Anderson was also introduced Anderson to alert her to expected ar- at trial. light Viewed most favor- rival of a drug shipment from Canada. government, able the evidence dem- Anderson, who lived the St. Regis Mo- onstrated the following. hawk Reservation near the Regis St. deliv- ery point,2 would then drive to meet the 1. organization The trafficking shipment. Once drugs were trans- roughly From 2008 through Chey- ferred from the boat into vehicle, the load enne Anderson participated in a drug traf- Anderson would begin driving the route. organization ficking that smuggled ecstasy The load vehicle would leave St. Regis and other controlled substances from Can- approximately thirty minutes after ada into the States, and cocaine departure. Anderson’s Anderson would from the United States into Canada. block as south far Saratoga as Springs, a that, Anderson testified in her experience, city about 180 miles south of Regis St. and organization typically operated as fol- 180 miles north of New City, York lows: A member of the group would trans- then return home. port an ecstasy shipment from Montréal, On occasions, two when regular driv- Québec, to St. Regis Island in the St. er was “too messed up on drugs,” Lawrence River. there, From drugs Anderson herself drove the load vehicle to would be by (a ferried boat to Regis St. the New City York area. Tr. 208. At the Canadian town on the river’s southern start of those trips, Anderson took posses- bank), or to another nearby location, sion in single large bag that group where members would transfer the held smaller bags containing pills. drugs from the boat into a “load vehicle.” Anderson was told pills ecstasy, were (“Tr.”) Trial Tr. 204. A courier would and she also visually pills identified the drive the load vehicle south ship- ecstasy. destination, ment’s which, in one-half the instances of, Anderson knew was New Within the trafficking organization, City. York Couriers transporting ecstasy main point Anderson’s of contact was Dai- to New York City picked sometimes up sy Realza, mentioned above. Realza was 2. Regis The St. Mohawk Reservation is also vation. It sits astride the United States-Cana- referred to as the border, Massena, Akwesasne Mohawk Reser- dian near New York. communications with evening, Anderson’s or as “Verna” to Anderson known

also by out George were carried Realza boyfriend, and her Realza Both “Perla.” and walkie-talkie. messages text cousin), (Anderson’s played George Dallas Anderson organization. in the roles lead 16, a April afternoon of on the Also were many people other how not know did man later identi- agent saw a patrol border were, but involved, people those or who Malibu driving a Chevrolet as Hakimi fied may have organization knowledge, her away Reser- westbound, heading from the “[wjhoever [Realza] Perla included As vation, road near Massena. on a state at- As Anderson Tr. 235. Mends with.” learned, had the Malibu later investigators however, trial, had “[T]here to at tested days “Angela an Woods” been rented ifAnd trust involved.... an be element The Airport. Metro at Detroit earlier know the person trust a you didn’t driving a in uniform and agent, who was want you then wouldn’t person personally, car, Hakimi “tensed testified that marked of ecsta- twenty pounds them give agent wheel” as the up grabbed Otherwise, Anderson Tr. 235-36. sy_” agent by. Tr. When passed 33. “drive off simply could person straight agreed, Hakimi alongside, “started] pulled drugs, and the with the eye into the sunset” contact ahead, make wouldn’t [and] money.” a lot of be “out would 34. After the organization agent].” Tr. with [the Malibu, Hakimi following Tr. began agent turn, signaling, abrupt an without made 16,2011 April 2. The events agent perceived area. parking into a maneuver. turn to be evasive 16, 2011, contacted Realza April On mid-afternoon, if asking she first darting into the long Anderson after Not night. Be- drugs lot, that the Malibu help transport Hakimi drove parking could vehicle, to a lot parked not have access cause she did the street and across that Realza she Ac- initially told the Massena Wal-Mart. Anderson outside of not, decided to testimony, later could but Anderson enforcement cording to law Silvera- spot mother’s Chevrolet for help, using her lot was a common Wal-Mart evening, having job. That because of smuggling do truck for the activities and alien truck, the river and drove to volume of given by high taken the she the lot’s the cover drug shipment, incoming Hakimi leave his picked up agent The saw traffic. duffel large in a blue packaged was the Wal-Mart. which vehicle and enter bag. minutes, p.m., near about Within at the agent arrived patrol border and second

After Anderson obtained un- Hakimi from an to monitor seventeen-year-old Wal-Mart by her joined was emerged Hakimi from vehicle. accompany marked wished nephew, whom she p.m., walked at around her, up “meet with the Wal-Mart her to George directed Massena, Malibu, single shopping placed and at the guy” Wal-Mart agent The observed Tr. 217. in the back seat. York, Regis. not far from St. New possibly bald Hakimi had a shaved or man she Anderson understood head, wearing a dark blue and that he was taking be to meet at the store would dropping After stripes. with white way to New York shirt drugs the rest of the bag, Hakimi reentered shopping Anderson the off the City. George did not tell at “bald,” agent A third arrived name, him as Wal-Mart. man’s but described agent, who p.m. 6:30 This approximately with white wearing “a blue sweater uniform, entered Wal-Mart and was not That afternoon stripes.” Tr. 218. Hakimi. He observe saw Hakimi seat- Wal-[M]art,” at meaning she did not want ed in a fast-food restaurant within the him “to take the drugs” there. Tr. 221. store, only phone his cell on the Instead, table she told him to follow her. Haki- in front him. Approximately two hours mi replied, “Okay,” truck, exited the later, agent reentered the Wal-Mart got into his car. Tr. 222. and saw Hakimi still seated in the same Anderson drove the Silverado out of the spot. agent The nothing saw to indicate Wal-Mart parking lot and Hakimi followed that Hakimi had any eaten made addi- in the rented Malibu. two pro- cars purchases. tional ceeded east for a short distance and then Meanwhile, Anderson was on way her to turned onto a dark and road, narrow side the Wal-Mart. At about 8:20 p.m., she and continued about one-quarter mile to received a text George read, endpoint. road’s agent One described good[?]” ‘We (as Gov. Ex. 36. Because the side road as “almost alleyway.” Tr. reported) Anderson George changed his 115. often, number Anderson did rec- At end, the dead Anderson turned her ognize the incoming number and respond- vehicle around parked so that her by text, ed asking, “Who’s this[?]” Id. driver’s side window was next to Hakimi’s. texted, George d,” “Me to which Anderson Both drivers “blacked out” cars, their replied, “Yep good far.”- George so Id. it, agent put one meaning they off turned texted, then got “He[’]s it[?]” Id. their vehicle headlights. Tr. 102. Anderson understood George to asking be Anderson exited her truck and into leaned whether she had completed the delivery to the Malibu speak with Hakimi. Hakimi the man waiting at the Wal-Mart. She told her that he had an pro- address responded, “No I’m my way to [Wal- grammed global into his positioning sys- 154; Mart] Tr. now.” Gov. Ex. When (“GPS”) tem device for his New City York she Wal-Mart, arrived Anderson “[h]e knew where he go- parked destination — in front of the store and walked ing” that he needed an address inside. She did not see —but the man matching his return trip to the “[h]e the description provided by but, reservation — George, as didn’t know how to get back.” Tr. 223. she was preparing leave, Hakimi whis- “grabbed” Anderson the device to input tled to her. Hakimi was wearing a blue the additional information. Tr. 223. sweater, and white and he was “kind of bald.” Tr. 221. When pointed Anderson then, Just one of agents the who had said, ‘You,” Hakimi and Hakimi nodded following been Hakimi drove the towards in response, and followed out Anderson of pair, turned on his emergency lights, and the store. Tr. 220. boxed two the vehicles. As agent the

Once the lot, parking Anderson and stepped out vehicle, of his ap- Anderson Hakimi entered Anderson’s truck. proached and explained him was she nephew Anderson’s had moved to the back “giving directions to a friend she met had seat, and Hakimi in the sat passenger’s in the Wal-Mart parking lot.” Tr. 104. seat; large the blue duffel bag holding Hakimi interjected that he “was lost” and twenty pounds of drugs lay on floor in the Anderson “helping was him find way” front of passenger the seat. Because the ato local casino. Tr. 104. When asked crowded, lot was Anderson she decided did long how he area, had been in the Hakimi not want to there; transfer drugs the responded, she untruthfully, “only ... told Hakimi that she “didn’t want to do it about an Tr. hour.” 105. their with a conversation connected dog, ing a used a trained next agent

The the “Chamma” appearances, a foren- court unit, to conduct a K-9 member of referred the defendant name which When of the vehicles. test” sic “sniff drugs in presence of Realza.5. dog alerted truck, searched agents Anderson’s history bag the blue and recovered 3. Procedural

truck seat, which passenger front floor government September On holding each bags smaller contained four indictment superseding three-count filed a passen- the back Beneath pills. numerous One and Anderson. Count Hakimi against bag of Ziploc a also found agents ger seat with defendants charged both and took Anderson agents The pills.3 and intent to possess with distribute custody. into Hakimi Count substance. a controlled distribute analysis disclosed laboratory Subsequent possession with charged Anderson Two ap- weighed the blue ecstasy, to distribute intent with over and contained pounds proximately attempt with charged Hakimi Three Count com- pills 30,000 Each of pills. pleaded Anderson soon the same. to do foxy ecstasy, of some combination posed she was counts with which to both guilty MDPV, I con- all schedule methoxy, for the keya witness charged, and became es- expert An witness substances.4 trolled against Hakimi. City, drugs’ York that New timated De place from jury trial took Hakimi’s $900,000. much as value was street 13-15, 2011. At the close cember driving, Hakimi was From car case, a moved for Hakimi government’s device, a Black- recovered GPS agents to Federal pursuant judgment acquittal bag con- shopping Berry, and a Wal-Mart 29(a), and the Procedure Rule of Criminal receipt. card and taining prepaid phone Hakimi decision. court reserved district phone calls BlackBerry reflected six The defense, in his to offer evidence elected during George Dallas by Hakimi placed After jury. went to and the case then arrests, days leading up to the six deliberation, Hakimi found brief made on having calls been most recent two counts. charged on both guilty as the morn- 15 and on April afternoon of week, granted court the district following complet- had also Hakimi ing April acquittal judgment motion for Hakimi’s a number person calls to ed thirteen charges. and dismissed “Chama,” name the contact under listed (N.D.N.Y. Hakimi, F.Supp.2d 168 list- calls to a contact outgoing fifteen 2011). numbers phone Both ed as “Chamaaa.” memorandum, the district As In its written area code. Québec began with govern- although the reasoned that Hakimi dur- court from learned Anderson later convenience, 98, we refer to the teenaged For 304. testified that her 3. Anderson later "ecstasy.” as shipment at issue here Ziploc bag entire nephew removed the had drugs. attempt bag to steal duffel in an blue appear- a court testified after 5.Anderson ance, he had asked Hakimi whether pills she report com- laboratory identified 4. The 3, Tr. or Perla.” or called either Dallas methylene- of "heard posed combination 4 some initially he did not ("MDMA” said that Hakimi or “ecsta- 225-26. dioxymethamphetamine was, once Anderson "Perla” but who 5-Methoxy-N, N-Diisopropyl-Trypta- know sy”), her, acknowledged knew 3, that he he methylene- methoxy”), and 4 described (“foxy mine 15; ("MDPV”). her "Chamma.” Tr. 297- J.A. pyrovalerone

59 presented ment had sufficient evidence to that the district court erred in granting prove the existence of drug trafficking Hakimi’s motion for an acquittal. It main- conspiracy, although Hakimi’s behav- that, tains on the evidence presented, a ior “admittedly was indicative of illegal rational jury could find—as Hakimi’s jury activity,” government had not adduced found—that Hakimi intended to take cus- sufficient evidence from which a reason- tody of the contraband in car; Anderson’s jury able could infer Hakimi’s “knowledge that he knew the contraband illegal and intent participate in that conspira- drugs; and that he intended to deliver the cy.” Id. at 173. In the district court’s drugs to persons in New York City pursu- view, accepting “[e]ven Anderson’s testi- ant to an illegal conspiracy, the aims of true,” mony as no juror reasonable could which he was aware of and intended to conclude that Hakimi “knew Anderson had further. government The contends that in her truck or that he the jury acted rationally when rejected it intended to drugs” take the from her. Id. theory defense that Hakimi “just Rather, presence “Hakimi’s at the scene trying to cross the border.” Def. Br. 15. be [could] attributed to innocent circum- For the reasons below, discussed we stances; wit, his intention to be smug- agree. gled across the border into Canada” —the alternative explanation Hakimi’s counsel

had offered for the defendant’s observed 1. Standard of review interactions with Anderson.6 Id. The dis- We review the sufficiency of the trict court further discounted the import of evidence de novo. Heras, United States v. traffic between Hakimi on the (2d 101, Cir.2010). 105 A defen hand, one and George Realza, on the dant seeking to overturn verdict on other, reasoning that because the final sufficiency grounds bears a “heavy bur phone call between Hakimi George den,” United States v. Aguilar, 585 F.3d occurred hours Realza had contact- before (2d Cir.2009), as we ed Anderson to exercise ask for help her transport- “exceedingly ing April deferential of re shipment, standard rea- “[a] view,” juror Hassan, sonable could ... United States v. draw no F.3d inference about Cir.2008). the defendant’s knowledge any “uphold We must plans to distribute these drugs from if conviction any rational trier of fact phone calls.” Id. Primarily for these rea- could have found the essential elements of sons, according court, govern- beyond the crime a reasonable doubt.” ment had failed to make its case and the Aguilar, 585 F.3d at 656 (quoting Jackson jury verdict could not stand. See id. at v. Virginia, 307, 319, 443 U.S. 99 S.Ct. (1979)). 61 L.Ed.2d 560 filed its notice appeal the day When assessing after the court a sufficiency entered judg- ment acquittal. challenge, we are mindful that we consider presented evidence “in its totality, not

DISCUSSION Huezo, isolation.” States v. United 546 On appeal, government (2d the argues 174, Cir.2008). F.3d that 178 A Rule 29 the jury reinstated, verdict should be and motion “does provide not the trial court”— 6. Hakimi told law enforcement officers that ord crossing legally of Hakimi into United the he was a Canadian citizen. When Hakimi States. apprehended, Border Patrol had no rec-

60 (Count One) charge Conspiracy 2. appeals review, court of

or, —“with deter its own to substitute opportunity Legal principles A. of evidence weight ... mination of generally Conspiracy i. to be drawn inferences and the reasonable es is well conspiracy of The law v. States United jury.” that of a To sustain our Circuit. within tablished Cir.1999) (2d 122, 129 F.3d 183 Guadagna, conviction, government “the conspiracy omitted). Rath (internal marks quotation it from which evidence some present must light “in a the evidence er, must view we per reasonably inferred can be government, to the most that is favorable knew of the conspiracy charged with son resolved inferences all reasonable and with in the in alleged of the scheme existence United government.” in favor of the joined partic and knowingly and dictment (2d 85, Persico, 104 F.3d 645 v. States Hassan, at 578 F.3d 123 in it.” ipated Cir.2011) Eppoli States v. United (quoting omitted).7 (internal marks quotation Cir.2008)). (2d To 25, to, 45 F.3d 543 verdict, government jury’s sustain the may prove “every possible hypothe disprove need ain knowing participation the defendant’s innocence. United of the defendant’s sis” through circumstantial evi conspiracy (2d 73, Abelis, Cir. 146 F.3d 80 v. States 180; Huezo, at United 546 F.3d dence. omitted). 1998) (internal marks quotation (2d Gordon, 902, 906-07 987 F.2d v. States “competing infer are And when there Cir.1993). proba evidence Circumstantial choice,” jury’s ences, to the must defer we include, may for exam conspiracy tive of not the jury, “it is task because conspir defendant’s association ple, a competing infer court, among to choose conspiracy,” of “in furtherance ators the evi drawn from that can be ences Aleskerova, 286, F.3d 300 States v. United (internal dence,” 543 F.3d 45 Eppolito, (2d Cir.2002); at “crit presence 292-93 omitted). quotation marks cannot be stages conspiracy ical id.; or his by happenstance,” explained time, in “specious At same are of essential of items that possession United States indulged.” are not ferences In con id. conspiracy, significance (2d Cir.2004) Jones, 107, 111 F.3d v. 393 “a text, that exhibit consciousness acts (internal marks quotation citations exculpatory state as false guilt, such omitted). satisfy Consti It “would not 907, Gordon, may ments,” F.2d at also 987 that the determine tution to have intent of knowledge and prove tend to guilty.” United is probably defendant although false excul (2d purpose, Lorenzo, 153, conspiracy’s 159 States v. not suffice alone do Cir.2008) (internal patory statements quota alterations and knowledge, States omitted). United Thus, guilty the evi establish marks “if tion Cir.2002). Of Reyes, 302 F.3d to v. light most viewed in the favorable dence jury’s verdict re import for particular nearly equal gives equal or prosecution may Hakimi, conviction “a guilt garding federal theory to a support circumstantial testi ‘by the innocence, supported uncorroborated a reason be then theory and a witness single accomplice of even mony’ a rea necessarily entertain jury must able on its (internal incredible testimony ‘if is not doubt.” Id. alterations sonable establishing guilt omitted). capable face is quotation marks 10, 15, Shabani, S.Ct. U.S. conspiracy prosecutions under 21 (1994). § overt act in furtherance L.Ed.2d 225 U.S.C. no proven. need be

61 ” beyond a reasonable doubt.’ United that the defendant possessed “the specific Florez, 145, (2d 447 F.3d 155 intent to commit the offenses that were Cir.2006) (quoting Parker, United States v. objects.” Huezo, [its] 546 F.3d at 180 (2d 91, Cir.1990)). F.2d 903 97 (internal quotation omitted). marks This requires government prove to “at least government need not the degree of criminal intent prove necessary the defendant’s for familiarity with all of conspiracy’s details; substantive it offense may itself.” demon simply Torres, strate the defendant’s States v. (2d of awareness 604 F.3d 65 Cir. extent”, “general 2010) nature (internal quotation omitted). marks Huezo, conspiracy. 546 F.3d at 180. It is to necessary prove that the defendant To prove the substantive of expressly agreed conspirators other fenses underlying the conspiracy charged action; on course of “it enough,” is rath ease, in this government must establish er, to show that parties “the a tacit ha[d] that the agreed defendant “knowingly or understanding carry out the prohibited intentionally ... possess [to] with intent to conduct.” United States v. Nusraty, 867 ... ... distribute a controlled substance.” (2d Cir.1989) (internal F.2d 763 quota § 21 841(a)(1); U.S.C. Torres, see also omitted). tion Indeed, marks a defendant F.3d at 65-66. toAs posses intentional may be a conspirator even if only he knew sion and distribution of a controlled sub one other member of group, and “a stance, government must, course, single may act be sufficient an infer prove that the defendant “knew he was ence [his] involvement in a criminal dealing with a controlled substance.” Tor enterprise of substantial scope at least if res, 604 F.3d at Therefore, 66. to convict the act is of a nature justifying an infer Hakimi of the conspiracy charged, gov ence of knowledge of the broader conspira ernment was required prove that Haki- Huezo, cy.” (internal 546 F.3d at 180 mi knew the conspiracy involved controlled omitted). quotation marks substances, and that he participated in the observed, We have however, often conspiracy with specific intent that a defendant’s mere presence at the controlled possessed substances be by him crime, scene general his knowledge of and distributed. id. See Circumstantial activity, criminal or simple his association may evidence be to prove used specific with others engaged in a crime are not, in intent to object commit conspira themselves, sufficient to prove the defen cy, as may it prove agreement join dant’s criminal liability for conspiracy. the conspiracy. Heras, See 609 F.3d at Ogando, United States v. 102, 107 (“The law long recognized has Cir.2008); Lorenzo, 534 F.3d at 159— criminal intent bemay proved by 60. circum alone.”).8 stantial evidence It is a com ii. Intent commit the offenses that monplace in drug conspiracy prosecutions objects were the of the conspiracy that “most evidence of intent is circum Critically, in stantial,” prove order to “conspiracies con since are un spiracy, must demonstrate dertakings secret[, they] often cannot be may Intent to distribute be inferred from No claim is made pounds that the twenty volume of with which ecstasy foxy defendant methoxy seized in connec- or associated inwas actual tion with Hakimi and Anderson's arrest were possession. constructive United States v. purpose for a intended illegal other than dis- Hamilton, (2d Cir.1992). F.2d tribution. he intent when Hakimi’s circum- i. through the use except

proven Anderson met with (internal quotation Id. evidence.” stantial omitted). marks that testimony makes clear Anderson’s have directed George to understood

she Hakimi, bag to the blue her to transfer Analysis B. poised planned and was and that she (as the district did acknowledges Hakimi and Hakimi when she make this transfer suffi- court) was evidence the record that that, Anderson testified arrested. were 16, April on find that jury to for the cient told bag, George picked up after she Realza, George Anderson, and Dallas a bald man in up “meet with” her to trafficking organiza- sweater who would blue-and-white-striped part of were her at the Massena Wal- waiting in the corridor be operating tion that at trial When asked Tr. 217-218. Mart. from the Canadian River the Hudson along bag take the to New York she did not why City area. See York the New border to herself, testified that Anderson City or- Hakimi, at 172. The F.Supp.2d i.e., somebody George “had found else”— method and standard nature ganization’s fur- it.” Tr. 218-19. She Hakimi—“to do appeal. undisputed are operation when she told Hakimi testified that ther to “do it” the Wal- she did not want for our presented question lot, that she did she meant parking Mart sup the evidence whether consideration is there, drugs” “take the Hakimi to not want Haki- that jury’s determination ported the idea” that she had “no Tr. and added organization’s joined the knowingly mi to be supposed Hakimi was to whether as and distribute possess stat- point, into Canada at some smuggled ecstasy. shipment of twenty-pound he took ing, my problem “It wasn’t after added). question in two general (emphasis Tr. 260 drugs.” We address evi- ask whether the subparts. firstWe recovered from physical Direct evidence rational for a dence was sufficient her BlackBerry corroborates Anderson’s that, doubt beyond a reasonable conclude night of testimony. p.m. At 8:22 on the at the Hakimi met with Anderson when arrests, a text from Anderson received lot, he intended to take parking Wal-Mart then, asking, good[?]” ‘We George blue duffel possession of the Gov. Ex. 36. Anderson got it[?]” “He[’]s carrying in her truck and George to be Anderson understood testified that she south, opposed delivered the points asking it to as she had deliver whether then purpose. We to Hakimi. achieving some other was suffi- consider whether the evidence conduct, reported Hakimi’s own that Hakimi knew the cient to conclude offi- the law enforcement Anderson and kind, of some bag contained contraband that Haki- cers, supports finding further and, so, Hakimi knew the contra- if over the blue accept mi control intended of and to take control poised band he was City. At it to New York bag and deliver ex- drugs. As further illegal deliver was Anderson, Wal-Mart, flagged Hakimi below, these if the answers to plained she to her truck. When and followed her affirmative, in the we must questions are to “do it” him she did not want told lot, only, conspir- replied verdict as to the he jury’s parking sustain the Wal-Mart not, her out of the “Okay,” affirm the Tr. and trailed acy charge; if we must end of a dark road. lot to the acquittal. parking judgment court’s district

63 Hakimi did ask why not it necessary was sent by [George] who provide was to him to leave the Wal-Mart lot parking in order directions to a location on the Reservation to transact their together, business nor did from which could he sneak back into Cana- he ask Anderson she what by meant “do illegally.” da 832 F.Supp.2d at 174. it”; indeed, Hakimi said and nothing did support of this theory, the district court that suggests ignorance of the purpose cited testimony Anderson’s in which she behind their meeting or surprise at her acknowledged that the trafficking organi- suggestion they go that to a dark alleyway zation smuggled persons undocumented to accomplish the goal of their meeting. (as across the border well as drugs), and Gordon, See 987 F.2d at 907 (giving weight that the Wal-Mart parking lot “was a pop- regarding the defendant’s intent place ular to pick up per- undocumented observation that he “did not refuse to ac- sons.” at 173. Id. cept the drugs profess any surprise or respectfully We disagree with this pro- lack of understanding. Rather, ... [he] posed interpretation of evidence. ”). yes.’ ‘said Furthermore, parked once First, the district court’s theory would re- end, the dead Hakimi told Anderson he quire us to disregard Anderson’s testimo- had programmed an address into his GPS ny purpose about her plans April for New City York destination of the —the testimony that we must credit in a 16— blue that he needed an address —but sufficiency See, challenge. e.g., Ogando, on the reservation for his return trip. (when 547 F.3d at 107 reviewing a suffi- totality the evidence cited above “[tjhis ciency challenge, Court ... re- supports Hakimi, inference that solve[s] all inferences from the evidence George, and Anderson were each and all and issues of credibility in favor aware that purpose of Hakimi’s meet- (internal verdict” quotation marks omit- ing with Anderson at Wal-Mart was for (cid:127) ted)). As the district court implied,9 Anderson to transfer goods to Hakimi for Anderson’s testimony may not have been transport to and delivery in New York flawless, F.Supp.2d 1, at 174-75 n. but City, and that Hakimi sought carry out “[i]t is the province of the jury and not of his role within the conspiracy. Thus, Hak- the court to determine whether a witness imi was more than “merely present” in the who may inaccurate, have been contradic- picture of a drug transaction that tory and even untruthful in respects some Anderson and the testifying drew; officers entirely nonetheless credible “all of the circumstances considered to- essentials' of testimony.” [her] United gether show presence that he meant Truman, States v. (2d to advance goals drug] [the conspir- Cir.2012) (internal quotation marks omit- Abelis, acy.” (internal 146 F.3d at 80 quo- ted); Florez, (“We see also 447 F.3d at 156 omitted). tation marks will attempt not to second-guess a jury’s Nevertheless, the district court found credibility on a determination sufficiency that the gave record “equal or nearly equal challenge.”); Rea, circumstantial support to a theory Cir.1992) (“Matters inno- F.2d 1221-22 cence; wit, the defendant went to the of the choice between competing infer- Walmart in order to up ences, meet with someone the credibility witnesses, of the 9. While acknowledging sis, credibility such the district court nevertheless commented determinations were appropriately part testimony of the agents Border Patrol analysis, a Rule 29 stating that its obser- "significantly more credible than vation impact” 29(a) "did not Anderson's,” its analy- Rule 832 F.Supp.2d at 174-75 n. 1. prove is not sufficient the Wal-Mart are within evidence weight them,” conspired to receive Hakimi had enti- and we are not jury,

province the additional evi- Br. and that Def. jury’s assess- second-guess tled the con- support does not adduced dence ments.”). Nusraty, In unpersuaded. are viction. We of for the sake accept towe Even were evidentiary for insufficient reversed we or mistaken was that Anderson argument of a conviction drug conspiracy support the George as the mission dissembling as to arrested in connection who was taxi driver afternoon, the district her that signed by a delivery” a “controlled still be innocence would theory of court’s passenger The Airport. at JFK passenger If, record evidence. inconsistent with from travels in the States arrived United he was thought that Hakimi example, for at India, apprehended Customs in and was directions only to receive at the Wal-Mart clothing in which of a suit of possession could “sneak which he place to a The secreted. of heroin had been packets Canada, it makes little sense back” into offi- advised law enforcement passenger need to leave would that he and Anderson of the hidden he was unaware cers that it,” it is hard to to “do lot parking heroin, in India he had been that when would need why he and Anderson imagine (who by the cab driver’s brother directed meeting at headlights when their to douse transport) to deliver him the suit gave Also, must one of the cul-de-sac. the end The Nusraty upon the suit to arrival. George would divert why wonder physi- Nusraty’s name and passenger gave hundreds of Anderson, carrying who was and, scanning airport description, cal illegal drugs, worth thousands of dollars’ area, Nusraty, agents identified arrival trip complete delivery from the cab and entered the parked had his who conceivably could that simple task —one airport. In phone. handled over

have been not delivery” did But the “controlled short, persuaded simply we are talk- most of the passenger did occur: the evi district court’s assessment passenger to the Nusraty denied ing, nearly cir equal or provides “equal dence delivery any expecting that he was speculative for the support” cumstantial transac- suit; aspects other denied only to be sought Hakimi theory that de- purportedly his brother had tion that when he across the border smuggled north passenger; apprehended scribed Hakimi, Anderson. met with the suit or to accept either to and declined Rather, we conclude F.Supp.2d at 174. arrested, passenger a ride. When give the rationally it in when that the acted purely ... it “Nusraty claimed circumstances, and all the ferred from airport that he was coincidence testimony, when from Anderson’s from Cus- passenger] emerged when [the Anderson, he intended to Hakimi met with passenger F.2d at 761. toms.” 867 bag and deliver of the blue possession take conspiracy. Id. acquitted of himself was City New York area. persons it to in the that the evi position conviction, of his support we Nusraty’s review of On conviction, Haki- support support did not

dence insufficient to held the evidence verdict, gov- heavily characterizing mi relies on our decision jury’s only Nusra- Nusraty, establishing F.2d 759 Cir. case as ernment’s 1989). of an at the scene argues ty’s presence “belie[f] that Anderson’s “mere He “mere associa- transfer” and deliver the supposed to aborted she was [that] in an unlawful implicated tion with those met at the person whom she drugs to the undertaking.” “Simply Id. at 764. wait- was about to receive and transport con- ing for at an airport,” said, someone we tained kind, contraband of and, some so, if enough.” was “not Id. We contrasted the that the contraband illegal drugs. We against case Nusraty with cases which examine this requirement most closely be- acts, there was pattern inculpatory cause, course, purpose of the con- conversations, possession, or either actual spiracy and the heart of the charges constructive, of the illegal drugs. And against Hakimi lie in the contents of the we emphasized that Nusraty actively de- blue bag: twenty pounds of ecstasy newly accept clined to drug-laden suit that arrived from Canada. the passenger pressed him, and other- wise ways in seemingly behaved inconsis- On day arrest, of his Hakimi was tent with the passenger’s inculpatory ac- driving a vehicle that had been rented count. hundreds of miles away under another Our decision in Nusraty has served oth- person’s name. A uniformed law enforce- livery er drivers who had the bad for- agent ment observed that Hakimi “tensed tune —coincidental or pick not—to up indi- up” “grabbed upon wheel” seeing viduals in an involved illicit scheme and agent highway. Tr. 33. Haki- find themselves indicted for their trouble. mi attempted then agent what the under- See, e.g., Ogando, 547 F.3d 104-105 stood be an evasive maneuver. Once (livery cab driver and drug importation); Wal-Mart, Hakimi spent four hours Samaria, United States v. making only a (2d single purchase Cir.2001) (unlicensed and waiting driver). 232 cab But, with a cell Nusraty, unlike on the table in Hakimi was not a front of provider public of transportation; him. unlike He was monosyllabic when commu- Nusraty, he did not encounter the alleged with nicating in public Anderson and in courier in public place, but rather fol- private, reported by her. After follow- lowed very courier to a private ing Anderson out of the parking lot and (the cul-de-sac) place appropriate for a reaching end, the dead Hakimi turned off secret goods; transfer illicit unlike Nus- his headlights; his aligned car was driver raty, he was shown to have been in inde- door to driver door with Anderson’s. pendent thirty-four contact times with two When a law agent enforcement interrupted operators of the trafficking organization, the transaction questioned pair, including of, day on the day pre- Hakimi lied to the agent, telling him that ceding, planned and, delivery; unlike only he had been in the area for an hour or Nusraty, he express did not surprise so. rebuff his alleged co-conspirator’s at- tempts to engage with him consistent with behavior, From this jury could infer expectations of making a delivery. Cf. Hakimi’s knowledge that partici he was Gordon, 987 F.2d at 907 (distinguishing pating in an activity. Torres, illicit See 604 Nusraty); United v. Oguns, 921 F.3d at 68-69 (holding that evidence was (2d Cir.1990) F.2d (same). 450 permit sufficient to inference that defen sum, Nusraty does not require a different dant packages knew contained contraband result here.

where his conduct suspicious, was ap Inferring ii. Hakimi’s pearance “nervous,” and he made false the bag illegal drugs contained exculpatory statement to investigators); Tran, We next consider 98, 105 States v. support- evidence F.3d ing Cir.2008) Hakimi’s awareness that the bag he (finding nervousness that “re- give about to she was testified plausibly rather than guilt

fleeted consciousness derive de- law inferences interacting general him. These anxiety upon ordinary ver- case from jury’s guilty in Hakimi’s supported strength cisive enforcement” (explaining at 765 dict); F.2d Nusraty, testimony principals that the Anderson’s state- exculpatory “false not defendant’s would particular it from which evidence ... offers ment shipment committed a valuable have ... [defendant] that the inferred could be a trusted person to a who was sort implicated some he was surmised examining turn now to We individual. activity”). criminal components closely these critical more jury’s verdict. The enough. is not But this that Hakimi to show required also a con activity involved the illicit knew regarding the case law a. The Torres, F.3d at See substance. trolled knowledge inference that Hakimi proof government’s instances, has con- our Court In several drugs consist bag contained knew the blue permitted inferences a is sidered the testimony of testimony; Anderson’s ed of conspiracy that a from evidence to draw regarding officers enforcement three law with valuable con- a defendant circumstances entrusted and the behavior Hakimi’s regarding example, text United States arrest; traband. For and evidence of his (2d Cir.2008), Huezo, the we with contemporaneously 546 F.3d messages sent made Haki- calls the defen- and offered at transaction found the evidence drug conspiracy. in the principals mi to and a money-laundering dant’s trial evi of this significance the considering charge sufficient conspiracy related often estab dence, that intent is recall we doubt the beyond a reasonable prove Heras, evidence. by circumstantial lished of those and intent elements at 106. 609 F.3d included evidence The record crimes. laundering that, money shortly before was that Hakimi jury’s finding undertaken, Huezo had transactions were of the of the contents the nature aware of cross-country co-conspir- two with traveled objective conspiracy’s bag and thus the surveillance, Then, when under ators. inferences drawn upon primarily rests a suitcase of them and Huezo drove one These totality the evidence. from the $500,000, delivery to make inferences, type containing that our are of which launderer, (a money en- but repeatedly supposed third and previously Court has First, two dorsed, agent); dealers undercover reality are as follows: an hundreds very unlikely later, to confide the two co-con- days would be Huezo drove drugs to worth of containing of dollars’ of thousands and a second suitcase spirators was not a person of a who delivery sole control to the $500,000, a second making Sec- conspiracy. trusted member of making the before agent. Just undercover ond, of the a trusted member pos- Huezo took delivery, personal second have expected to may reasonably be money containing bag of session of another conspiracy, of the knowledge of the nature the million $6,000, similarly to packaged $1 i.e., distributing illegal drugs. in the two the others delivered that he and of these During period suitcases. below, could infer jury

As we discuss socialized, dined, and transactions, Huezo a trusted member that Hakimi was co-conspirators; the two shopped with knew accordingly that he conspiracy, and house, where the the same occupied three Anderson of the contents money kept delivery before dant’s knowledge of purposes of an agent. Id. extortion conspiracy. Id. at 80. Rejecting claim, emphasized we “the rejected Our Court the defendant’s ar- place entitled to great weight on the gument had failed to fact that the other conspirators trusted showing adduce evidence his knowledge of safeguard [defendant] [a] million $3.5 the contents of the suitcases. We held payment that was to be made into an that Huezo’s relationship conduct offshore bank account to which [defendant] his co-conspirators were sufficient was the sole signatory.” Id. at 81. Like support a reasonable inference that Huezo wise, in Sisca, United States v. knew that the suitcases contained cash. (2d Cir.1974), we rebuffed a sufficien Pointing Id. to the value of delivery cy challenge to a drug conspiracy convic of, that Huezo was a part explained: we tion in face of a defendant’s claims of Based on complexity and scale of the ignorance, observing in part, relevant money laundering scheme, common “[T]he suggestion that members of a con sense experience support would spiracy $60,000 would entrust in cash and inference that principals con- a large quantity of narcotics to one who spiracy would not have trusted an out- was not full partner credulity.” strains (with sider no knowledge of their crimi- 1343; Id. at see also United States v. nal purpose) transport million in $1 Ramirez, 7, 10 Cir.2009) 320 Fed.Appx. funds, laundered to be present when order) (“[C]ommon (summary sense and agent [the undercover posing as a con- experience would support an inference that spirator] removed the first con- suitcase ‘principals the in large] [a conspiracy $500,000 taining trunk, from the and to would not have trusted an outsider with [ ] share a house several days over no knowledge of their purpose[] criminal witting conspirators. transport’ to hundreds of thousands of dol Id. lars in Huezo, and drugs.” cash (quoting only Huezo is in one a line of cases 182) (alterations 546 F.3d at in original)); within this in Circuit which we have en- Aleskerova, cf. United States v. 300 F.3d application dorsed the of such an infer- Cir.2002) (“A 293 defendant’s Abelis, In ence. United v. States 146 F.3d knowing willing participation in a con (2d Cir.1998), 73 for example, the defen- spiracy may be inferred from ... evidence dant claimed that the had not that possessed important items [he] provided sufficient evidence of the defen- conspiracy.”).10 10. Our sister circuits have also ‘prudent held smuggler’ that that a likely is not to en jury may reasonably infer a cargo defendant's trust valuable per such to innocent knowledge high-value of the nature true of a person’s knowledge.” son without Id. at drug shipment assigned he or she is to trans Similarly, Uriostegui- in United States v. port, Estrada, on the rationale that a enterprise rejected Seventh the Circuit a suffi would not shipment entrust such a dupe. to a ciency in which argued claim the defendant Quilca-Car example, For in United States v. that he not did know the he had suitcase pio, the Eleventh Circuit agreed held that transport the evi stranger’s to on a behalf dence at trial (7th sufficient for a reasonable contained heroin. 86 F.3d 89 Cir. jury person 1996). to conclude apprehended that a jury "The reasonably could believe luggage "with containing significant drug smuggler that a would entrust a drugs presence amount of knew of the cargo of the $1 more than worth to a million com drugs.” (11th Cir.1997). 118 F.3d plete value,” stranger who was unaware of its concluded, "A jury,” reasonable the court explained. the Court Id. And the ”[o]nce "could quantity infer from the seized plausi- [the concluded had no defendant] evidence sufficient presented had not limits ment must be there recognize

We packages knew the that Torres to conclude govern- the upon which the inferences found the at 70. We drugs. a defendant’s contained Id. rely to establish may ment “inapt” be- to Huezo conspiracy. analogy object government’s of a knowledge of Huezo, govern- noted, cause, contrast opinions applying in our have As we inadequate evidence type we produced inference of ment had relationship between fact-specific, and of the heavily the nature here are affirm proposed principals in- drawing conspiracy’s and the Torres typically permit would, numerous factors that Torres any expectation in the context ference goods domin- value of exercise sole conspiracy, part in addition to the of the circumstances, there- Id. at packages. In some the unidentified question. ion over acknowledged that vein, has fore, specifically the Court our Court In this 70-71. appropriate in could be sent an inference had not been shipment such noted that rejected application controlled,” its then principle, but that he “in a location to Torres inadequacy of the surround- of the oth- accompanied because that Torres was demonstrating expect- trust or factors ing custody attempted to take each time he ers goods. over the valuable Thus, dominion ed sole we Id. at 71. shipment. of the times, that, “Torres at all relevant found Thus, acknowledging while example, for to be alone with position in a was never legitimacy, we principle inference’s Therefore, record [shipment].” Id. sup- proof government’s that the held an inference that “lend did not itself inference fell short United port must have that he Torres was so trusted (2d Cir.2010). Torres, F.3d 58 v. States dealing with narcotics.” that he was known There, a defendant’s our reversed Court Id. to distribute and conviction cocaine on to distribute

possess with intent Lorenzo, In insuffi- evidence was grounds that the (2d Cir.2008), per- we also declined beyond a reasonable doubt prove cient knowledge inference application mit and with knowingly that Torres acted Lorenzo, prin- in Huezo. endorsed conspiracy. further the intent to specific instructed a in a had cipal conspiracy included evidence government’s case $250,000 a suitcase with carrying courier had of cocaine been kilograms ten contact drugs telephone to make worth from Puerto shipment in a Rico secreted defendant, present who had been with the York; was addressed shipment to New delivered and had at an earlier transaction address, Torres; Torres was at to on that to the courier package a cash others, possession take attempting to During the at occasion. Id. day question; shipment on arrest, subject of the that was the incident driv- to convince UPS attempted Torres defen- attempted to call the the courier him; to shipment and er to release the dant, phone his wife but answered others, Torres, to a again with went UPS invited the courier to asleep. he was She Id. at 69. shipment. to retrieve the Store temporarily, which come to her home did, contain- the suitcases bringing courier that, this evidence estab- while We held defendant, at 157. The ing drugs. Id. the existence of lished awake, gov- arrested. The now was then that Torres in- supported the inference appeal that it could be contraband, argued ernment govern- to possess tended that he knew he was innocently to conclude entitled explanation how he came ble for heroin, carrying drugs.” Id. it was possess $ to worth of million inferred that the principal “would not have reasonably find that enjoyed Hakimi [the entrusted defendant] with the suitcas- position trust within the conspiracy such es concealing the narcotics ... unless [the may that one infer his knowledge of the had defendant] known what was concealed conspiracy’s goal of distributing controlled within them.” Id. at 161. In panel’s substances. The record demonstrates that view, however, inference, the proposed the principals of the conspiracy intended to resting primarily on the “unfulfilled re- a highly commit valuable drug shipment to quest defendant],” “specula- [the Hakimi’s custody. Indeed, sole plan attenuated,” tive and having “sever- been was that Hakimi would take control of the ely] undermine[d]” his wife’s failure to drugs that evening, and Anderson awaken him when the attempted courier to came within moments of transferring to establish contact with him. Id. 30,000 Hakimi pills of ecstasy and foxy cases, From these we elicit two tenets methoxy $900,000. worth up to Anderson relevant to our resolution of aspect testified that Hakimi had a York City New First, Hakimi’s case. the fact that con- address in his GPS device and pre- spirators to highly intended commit valu- pared drive there. No one else was able contraband to the defendant’s sole Hakimi; traveling with the drugs would be custody and provides control important ev- his to do with as he wished.12 This is idence of a relationship trust between the strong evidence of Hakimi’s defendant conspirators. and other trusted status Sec- ond, relatedly, jurors in the may conspiracy, infer a and his knowledge de- fendant’s knowledge of the object of a bag, thus, contents of the the conspira- conspiracy e.g., possess and distribute cy’s Huezo, purpose. See 183; — F.3d there is evidence of such a Torres, —where 604 F.3d at 71. cf. trust relationship. The reasonableness of is, moreover, There support additional is, these however, inferences highly fact- the record for finding that Hakimi was a dependent, and must be determined on a knowing conspirator. The government case-by-case basis.11 produced evidence of phone extensive con- Application b. principles tacts between Hakimi and the conspiracy’s against the evidence Hakimi principals. noted, As previously Hakimi’s Applying principles these records the matter revealed twenty-eight calls us, before we conclude that could Realza. Hakimi placed also six calls to 11. Our recent decision in United States v. factor of support several that could tend to denied, Davis, (2d Cir.2012), 690 F.3d 127 cert. jury’s knowledge. inference of — - , U.S. 133 S.Ct. (2013), L.Ed.2d emphasizes also the fact- 12. We note also that bag gave the blue duffel dependent knowledge nature of inference ready access to an party, interested as illus- Davis, analysis. permitted In we the to by trated the pilfering successful accom- infer the defendant’s of the con plished by nephew Anderson’s he while sat in large package tents of a of drugs ap that it 108, 224-25; the Silverado. Tr. see Gov. Exs. peared shipped he had to himself under the 6, 7. Unlike the sealed boxes delivered in guise of rims.” "[tire] Id. at 129. When packages Torres or the sewn into the erstwhile arrested, just he had pos taken constructive wedding Nusraty, suit in packaging the package by session of the presenting a bill of drugs planned that transport sug- Hakimi to lading directing and package's deposit gests co-conspirators that his him trusted to Davis, into an associate’s vehicle. In we delivery, make the and that he knew con- again jury's pros endorsed reliance on the bag. tents of the pect that the defendant would have “sole do

minion” package over the of narcotics as one just have would conspirators] April [the to days prior the six

George in narcotics $900,000.00 worth of morning of the hand[ed] call on including one Hakimi, Real- Clearly, involved with wasn’t transfer. to someone that planned over well-acquainted, and Thus, za, George were record and at 339-40. them?” Id. up lead to in well-connected application supporting contains evidence hardly coincidental It was crime.13 sense” we have called “common what Wal-Mart, at the appeared Hakimi both case, conspiracy. to this in this inference George, and acted by as described dressed Tr. 235-36. plan. shared conspirators’ according the facts adduced recognize that We Anderson addition, jury heard rela nature of the regarding the Huezo these con- cross-examination that testify on and his co- defendant tionship between the have conferred not spirators would than extensive were more conspirators person to shipment valuable government here. produced those member was not a trusted who However, is not although organization: on a house to build conviction permitted Now, people there other Q. were cards, jury required to leave is a neither your family who organization outside the courthouse door: sense at its common conspiracy]? [with involved were entitled, routinely encour are “Jurors Perla was friends Yes. A. Whoever common sense rely on aged, their with. inferences.” Hue drawing experience be an element Q. But there had to case, zo, In our Hakimi at involved, right? trust principals, with the contacts had extensive A. Yes. Anderson, her to a re followed flagged you person if trust a Q. And didn’t location, to receive poised and was mote you personally, then person know the worth of thousands of dollars’ hundreds of twenty them give want wouldn’t have trust conspirators drugs. Would ecstasy, right? pounds of bag containing with an ed Hakimi unsealed A. No. $900,000 yet not trusted drugs, worth of just drive they could off Q. Because what the him information about sunset, you would be out a into the contained? money? lot of A. Yes. a circum- may imagine possible It be drug smug- experienced an stance in which in fact under- counsel Tr. 235-36. Defense a million-dollar could decide to entrust summation, gler asking point scored this unwitting to an package of contraband you for a minute that jurors, “Do think advises, certainly calls made to "the infer that colleague "I could dissenting am 13. Our George,” post-arrest Dallas persuaded Hakimi’s state- number attributed suggesting he knew Op. ments to Anderson in fact calls made Dissenting were [Realza], phone event, calls of unknown Perla applica- any George himself. In him, and his Perla and few court, nature between whether our is ble standard not phone number attributed to contacts with review, testimony by "persuaded” what the is more, sufficient, George are without Dallas rather, is whether "suggests] the standard he is a support an that trusted inference reach this any trier fact could rational of Dissenting Op. conspiracy.” member conclusion, in- having drawn all reasonable the record reveals that Hakimi at 16-17. But government. See in favor ferences twenty-eight peri- Realza in the placed calls to Jackson, U.S. at 99 S.Ct. arrest, leading up jury and a rational od is, however, courier.14 There no simply idence that causes question us to plau- evidence that the conspiracy at issue in sibility of the inference in case.15 this operated this case ever in this fashion. As support additional for rejecting the And the theoretical possibility that it did jurors’ inference of Hakimi’s knowledge April so on 16 does not preclude jury and role in the conspiracy, the district drawing the inference—in a setting court ruled that a juror reasonable could that includes testimony corroborative and “draw no inference about the defendant’s circumstances —that an individual ac- who knowledge any plans to distribute these cepts custody sole of valuable contraband drugs” from the two calls between awas trusted member of the conspiracy, Hakimi George and on April 15 and 16. with of the contraband’s true Hakimi, 832 F.Supp.2d at 173. Because fact, nature. In in light of Anderson’s those were calls both made “hours before testimony regarding position of trust [Realza] and Anderson began scrambling by held drug couriers within very this to find someone to transport drugs on conspiracy, jury would have had to 16,” April the district court reasoned that disregard uncontroverted evidence to “Hakimi and [George] easily could more reach the conclusion that Hakimi was an have plans discussed to smuggle Hakimi agent uninformed opposed as to a trusted across border than plans to smuggle a insider. shipment drugs to New York City with Torres, In contrast to Lorenzo and we a $250,000 value of $900,000.” between find no evidence here that “severely un- Id. at 173. The district court by erred dermines” the inference that focusing Hakimi en- on inference it found more joyed a position of trust within the plausible con- instead of deferring to the infer- spiracy or that assigned he had not been ence credited jury. rea- to take custody the package. over sonably On the may have envisioned alternative contrary, there is direct evidence that scenarios. For example, in those calls Hakimi was entrusted with possession sole Hakimi George could agreed to a have of a valuable drug shipment, and drug transport testimo- plan that Anderson and ny from co-conspirator only a trust- Realza not know of did until after Realza’s ed member of would be call Moreover, to Anderson. although it permitted to serve in such a capacity. captured thirty-four calls, such Hakimi’s Certainly Hakimi has directed us to no BlackBerry ev- presumed cannot be to reflect couriers, apparent 14. The unwitting use of 15. The majority dissent contends our driving equipped their own cars and opinion “outright ignores principal par- passes they regularly commuter cross the ticipants drug conspiracy in a do confide often park daily predictable Mexican border and high-value quantity to one who is locations, See, has been e.g., documented. not a conspiracy.” trusted member of the 4-5, Complaint Criminal v. 1, Dissenting Op. (emphasis original). at 85 Chavez, (W.D.Tex. No. 11-3330-G July But, above, as demonstrated the record con- There, 2011). operandi the modus seems specific testimony tains principals that the principals be that the obtain access to the car namely, George— Realza and case— transport, each side of place, die first to would high-value drugs have not entrusted retrieve, and then shipment. prove To someone who was not a trusted member of participation defendant's drug conspir- in a organization. light testimony, of that circumstances, acy under such the govern- drug conspirators what may may other juror (1) ment would need to infer both: courier, fact, that the jury’s knew that he "often does not was in do” render the verdict contraband; possession (2) that he irrational. drugs. knew the contraband was timing the calls’ about and court’s observation Hakimi between every communication jury from a reasonable vein, precludes neither Anderson tes- In this principals. the account when as- taking as those calls into using a walkie-talkie tified that she intent, Hakimi’s sessing with the evidence of to communicate phone well as a cell being of pur- fairly deprives Hakimi had their verdict and nor supervisors, her card, suggesting “rational.”17 phone labeled prepaid chased a than other calls on that he made BlackBerry.

his totality the therefore hold that We timing of the Finally, must evaluate we by the presented the evidence isolation, of a part but as not in those calls may rationally be that and the inferences numerous that included body of evidence amply support Realza; from that evidence drawn Hakimi and prior calls between that, evening on the jury’s the conclusion suggestive of highly April 16 texts 16, Hakimi, part as of a acting April would be that Hakimi George’s expectation Realza, (that George, is, with got drugs “He[’]s transporting Anderson, up from pick intended testimony that her it[?]”); and Anderson’s to con- package that he knew for Anderson a to Hakimi job was to deliver drugs, and to deliver it to oth- illegal York tain to New transportation further (“Dallas New City, see Tr. 218-19 distribution found ers for further had that City emphasize area.18 We I didn’t York to do it because somebody else to a to.”).16 of deference we afford totality high degree Reviewing the want important when jury “especially verdict is evidence, that the district conclude we majority jury dissent characterizes our interpretation with the 18. The consistent 16. The from jury may further corroboration opinion holding verdict derives infer that just message before to Realza Anderson's text bag contained Hakimi's " goin Gov. Ex. 36. p.m., "R we still out? ?” relationship,’ drugs based on a 'trust cou and Realza had Anderson testified that she pled nothing than the defendant’s with more evening together; plans spend had Dissenting Op. presence mere at the site....” planning New York to drive to Anderson been added). (emphasis the inference at 76 But back, have been no such City and there would uphold we is and that drawn plans. more, including, among much other based on (1) twenty-eight things: calls between Hakimi questioned district court also 17. The period leading up within the and Realza testimony Hakimi entered her Anderson’s Anderson; (2) parked meeting the Wal- six calls in front of Hakimi’s car when it was (and, directly incidentally, sat be George, including Mart not Hakimi and one between drugs). bag The court ob hind the blue delivery; day planned call on the gave officer that no law enforcement served (3) co-operating testimony witness from F.Supp.2d testimony. corroborative (Anderson) (i) George assigned Hakimi— Anderson’s n. 1. None contradicted 174-75 to meet at the Wal- the man Anderson was however, testimony, and it is not clear (ii) transport drugs; Hakimi Mart-—-to any officer was the record that individual get her attention at whistled at Anderson to necessarily positioned place time to have Wal-Mart; (iii) Hakimi entered any reported interaction. observed event, passenger in the Anderson's vehicle and sat discussed, Anderson’s cred as we have feet; seat, (iv) drugs at his with the on a ibility not for the court to decide not want to when Anderson stated she did ”[A]ny Rule 29 motion. lack of corroboration which, parking it” in the Wal-Mart “do lot— evidence, goes only weight not to to the according testimony, [Haki- meant "for to her sufficiency. weight is a matter for its drugs,” to take the Tr. 221-22—Hakimi mi] argument jury, ground for rever answered, "Okay,” her Roman, and followed to se appeal.” States v. sal on 65, 71 Cir.1989). cluded area. F.2d reviewing conspiracy.” a conviction of from one of conspirators the package a Pitre, v. United States 960 F.2d 1121 that described; he intended to transport as (2d Cir.1992). observed, (3) As we have often the defendant knew the package con- “This is so a conspiracy by because its (4) illegal contraband; tained the contra- very is a operation, nature secretive and it was, fact, band highly a ship- valuable is a rare aspects case where all of a con- ment of which drugs, was to be entrusted spiracy can be laid bare court the to the custody defendant’s sole and con- (in- precision surgeon’s of a scalpel.” Id. (5) trol; the defendant would be only omitted). quotation ternal marks Accord- placed in position such a if he were a ingly, we have commented: (accord- trusted member of the conspiracy

It is improbable parties the will ing to a co-conspirator’s testimony); and enter into their illegal agreement open- (6) placed defendant had dozens of ly; fact, it is not necessary, in that all phone principals calls to the of the conspir- parties ever have direct contact with acy leading up to the time he was to another, one or know one another’s iden- receive transport shipment, jury tity, or even communicate verbally their is then to conclude the defen- entitled intention agree. It is therefore un- dant conspirator trusted who knew likely that prosecution bewill able to the conspiracy’s objectives and intended prove the agreement by formation of the that they be realized.19 evidence, direct jury and the must usual- reasons, For foregoing we reverse ly infer its existence from the clear co- the decision of the district granting court operation among parties. Hakimi’s motion acquittal for on the con- Nusraty, 867 F.2d at 762 (quoting Devel- spiracy count. opments in the Conspira- Law—Criminal (1959)). cy, 72 Harv. L.Rev. This (Count Three) charge Attempt mean, course, does that the govern- ment can or should be relieved its prove attempt, bur- To govern den of or a proof, jury permitted to beyond draw ment must establish a reasonable But, unreasonable “(a) inferences. to summa- doubt that the defendant had the in rize, where, here, (b) the evidence is suffi- tent object commit the crime and (1) jury cient to find that: a conspira- engaged in amounting conduct to a sub cy transport drugs existed to from near stantial towards step its commission.” border City Farhane, Canadian to the New York (2) area; (2d Cir.2011). sought the defendant to receive “[F]or defendant to hypothetical 19. The dissent constructs a in- city. support name in a remote This lends bag that Hakimi volving a full inference was a trusted of diamonds mem- rather than conspiracy, George ber of the as neither nor drugs challenge holding an effort our Realza have the would information to trace that a reasonable could infer Hakimi the rental if Hakimi chose car to drive off drugs had at in this issue drugs with the rather than deliver them the note, Dissenting Op. case. at 77-78. We Further, recipient. hypotheti- intended cal, in the however, hypothetical that the diamond con- view,” bag merely “in the man’s key plainly tains certain facts that are incon- 77; here, however, Dissenting Op. at Hakimi sistent with the record before us. For exam- entered vehicle and Anderson's sat in the ple, hypothetical, in the the man rents a car "passenger’s seat where the were sit- behalf, only on his own and does so he ting after ... on the floor.” Tr. 221-22. Police scheme; agrees smuggling case photographs showing the size and location of bar, at days car was rented several the duffel drawn from the trial are record before issue, person's and in a opinion events attached to this as an addendum. different the imminent trans step,’ he must enforcement that a ‘substantial have taken Farhane, prepara ‘mere occur. 634 F.3d in more than fer did not engaged have Cf. tion,’ government short of ‘the failed may stopped (explaining have at 147 but necessary’ the actual commis last act for took a “substantial prove defendant crime.” of the substantive possession sion of heroin where step” towards Celaj, Cir. v. “any act effect there was no evidence of 2011) Yousef, (quoting United States attempt acquisition, such as possession, (2d Cir.2003)). 56, 134 F.3d acquisition”). ed in connec reasons, As we have discussed foregoing For the we reverse charge, the evi tion with the granting the district court the decision of sufficient for the to find dence was acquittal on the at- Hakimi’s motion pos knowingly that Hakimi intended tempt count.20 distribute, sess, drugs an intent to conduct also constitut at issue. Hakimi’s CONCLUSION step” ed a “substantial towards commis above, RE- For the reasons stated we of the crime. He coordinated the sion judgment district court’s VERSE the traffickers; transfer of with the he acquittal and REMAND with instructions pre-arranged meeting loca traveled entry judgment for the in accordance

tion; and he followed Anderson to a se verdict, jury’s with the and for further spot complete the transfer. In cluded proceedings consistent with that verdict deed, everything Hakimi did within his opinion. power complete the crime of unlawful substance; possession of a controlled it only through the intervention of law Addendum requested

20. The has also that we remand. We decline to do so under the cir- judge assign of this case. this matter to different cumstances foiled, completely prevent- and thus agents HALL, dissenting: Judge, Circuit ed, what was to have been a transfer of the majority today jury that a holds defendant, permits bag may knowledge infer a now defendant’s infer that the defendant knew that there bag possessed the contents of a he never fact, bag. controlled substances inside the at were simply based on the demonstrated trial, bag “high that the contained value” See Maj. Relying in Op. 66-67. on cases drugs and there exists a record of some in- upheld jury’s which this court has phone number of calls of unknown content “knowledge” of a defendant’s ference between the defendant’s cell and the evidence, majori- in based on the facts phones principals conspir- cell of the of the cases, ty ignores prior that in each of those acy. Maj. holding relies Op. 66-67. The well-developed evidence showed majority on what the characterizes as a knowledge those defendants whose of the “common sense” determination that object conspiracy of the in- specific high value of the is (and their convic- ferred thus significant relationship evidence of a trust upheld) played tions also insider roles conjunction when considered with third- conspiracies. Notwithstanding those party testimony about the state of mind of long-recognized of such corrobo- absence principals conspiracy. Maj. Op. case, rating majority evidence in this majority 66-67. The further reasons the district court’s nonetheless reverses relationship,” coupled this “trust acquit decision defendant based nothing more than the defendant’s mere presence the site where knowledge of his insufficient evidence Instead, object conspiracy. the with two members of this smuggling group. majority presented prior holds that the evidence Given this man’s criminal experience, we can prove was sufficient to the defendant’s infer that he realizes “safe” route is also a conduit assisting that what he was used for smuggling goods probably drugs— even conspirators other to do to transport — alongside people. part As of his 66-67; see, attempt Maj. drugs. Op. e.g., United way Canada, to make his back to one of his Huezo, smuggler contacts tells him to meet a Cir.2008). woman in shopping mall parking lot in a danger This result is an erroneous and city in upstate New York. We do not know departure ous from our recent precedents explicitly whether bag drop, this is for a Lorenzo, in Torres and and similar hold simply to receive directions to the smug- See, ings lineage. eases of the same glers’ border notch where crossing Torres, e.g., United States v. 604 F.3d 58 back into Canada will place. take But we (2d Cir.2010); Lorenzo, United States v. can infer that he has been asked to take a (2d Cir.2008); 534 F.3d 153 United States bag, drop it off in City, New York drive (2d Cir.2008); v. Ogando, 547 F.3d 102 upstate through back New York to meet Rodriguez, United States v. 392 F.3d 539 the smugglers, and be smuggled across the (2d Cir.2004); Jones, United States v. 393 border back to by morning. Canada (2d Cir.2004); F.3d 107 United States v. The man agrees. He then a rents car— Friedman, (2d Cir.2002); 111 an action that markedly is inconsistent Samaria, United States v. 239 F.3d 228 with smuggling group’s known trans- (2d Cir.2001); United v. Nusraty, States portation procedures rendezvouses —and (2d Cir.1989); 867 F.2d 759 United States with the woman to pick up bag Gaviria, (2d Cir.1984); v. 740 F.2d 174 begin his circuitous trek back to Canada. Soto, 716 F.2d 989 They mall, meet at the shopping agree to Cir.1983). Worse, holding radically such a exchange information in a private more eases, if not altogether, eliminates the bur place, and the man follows the woman to a den government prove beyond on the a cul-de-sac. The man then tells the woman reasonable doubt the defendant’s knowl City he has a New York address for the edge specific intent to commit the stop, first but needs GPS coordinates of crimes that are the charged object of the the smugglers’ location. As the woman conspiracy. I offer an illustrative hypo begins to enter the address into the man’s dangers thetical of the that are now un device, police GPS frustrate the ex- leashed. while, change. All the the man neither A Canadian national immigrated who il- possessed inquired bag. nor even about the legally to the United pend- States to avoid Although the man’s view ing felony proceedings somehow makes when he met first the woman at her car at contact group people with a of who are mall, the shopping identify she did not or smuggle people known to him to back and speak bag. to him about the police The forth across the Canadian border. There inside, bag, seize the look and discover is no evidence how he came to know the hundreds of of thousands dollars worth of group smugglers, of but we do know that arrest, stolen diamonds. During the this man is wanted Canadian authori- man makes false statements about his ties and cannot simply drive back over the prior meeting whereabouts the woman. woman, border to return to his native homeland. longtime The a associate Accordingly, smuggling he makes numerous group, agrees cooperate contacts

78 Torres, 65. A defendant’s 604 F.3d at Although the woman had government. of his proof behavior absent before, suspicious man the woman seen the never nar- “knowledge that his conduct involve[s] the man must government informs cotics,” him of seeking when to convict of principals since the have been “trusted” drug conspiracy, id. at participation losing about conspiracy paranoid are proof knowledge of that his or absent value of their contraband. out on the street “receipt possession or conduct involves under 18 man faces conviction now seeking to convict him goods,” when stolen § for § and 18 U.S.C. U.S.C. possess to receive and stolen conspiracy transport stolen diamonds. conspiracy to Samaria, 239 F.3d at is goods, see highlights impor- hypothetical This Id.; to sustain a conviction. insufficient who is a between one tant distinction Lorenzo, 160-62. 534 F.3d at see also conspiracy, such as trusted member of a prove a Requiring may well have an insider who general na- knowledge of the defendant’s (i.e. objectives the na- conspiracy’s conspiracy, ture extent of the whether contraband, ture of the such as narcotics goods or some it involves stolen merely goods), and one who is or stolen contraband, intrinsically impor- other is may only package, deliver a trusted to who course, tant, of because there is no statute transport package that he is to know simply criminalizing transportation a distinction point point A to B. Such Indeed, “high value contraband.” such proving in the important is context likely vagueness. statute would be void liability criminal for member- defendant’s See, Jersey, e.g., Lanzetta v. New 306 U.S. govern- in a because “the ship (1939) 451, 452, L.Ed. 59 S.Ct. persons that or more ment must show two criminalizing statute (striking down state joint enterprise for an un- entered into provide for failure to notice as “gangsters” purpose, gen- lawful with awareness of its qualified “gang”); Grayned what as a v. v. eral nature and extent.” United States 104, 108-09, City Rockford, 408 U.S. 92 Cir.2010). (2d Torres, 58, 604 F.3d 65 (1972) (“[L]aws 2294, 222 33 L.Ed.2d S.Ct. Moreover, explicit must standards” without provide government need not [although “[t]he delegating] policy basic “impermissibly show that the defendant knew all of the juries policemen, judges, matters to conspiracy, long ‘so as he details of subjective for resolution on an ad hoc and ” extent,’ general knew its nature and basis, dangers with the attendant of arbi- Huezo, States 546 F.3d at [United v.] trary discriminatory application.”); Rosa, (quoting 180 United States v. 17 Ellen, 233, 241 also Farid v. 593 F.3d see (2d denied, 1531, Cir.), F.3d 1543 cert. (2d Cir.2010) unconstitutionally (holding 879, 211, 130 L.Ed.2d 513 U.S. 115 S.Ct. that, vague prison regulations applied as (1994)), prove 140 “must prisoner, “smuggling” banned and “contra- degree band”). of criminal intent at least the Yet, despite underlying statutes necessary for the substantive offense it criminalizing require proof that possession Feola, self,” v. 420 U.S. United States knowledge of the defendant’s of the nature 671, 686, 1255, contraband, 95 S.Ct. 43 L.Ed.2d 541 majority posits that of the (1975). value,” knowledge parties of the “high “[T]he if such contraband is of then conspiracy charge is relevant” to a “to the defen- “common sense” dictates may simply the same extent as it be for convic must have known its nature dant acquainted fact he tion of the substantive offense.” Id. at virtue Maj. conspiracy’s principals. See 95 S.Ct. 1255. with majority’s newly principals conspiracy, despite our at 69-70. Under the Op. rule, therefore, hypotheti- our testimony articulated “may pro caution such be possessing neither despite cal mind, bative' of their state of but it is not man — actually knowing its na- contraband nor probative of his.” v. Ogan United States any possession- be convicted of ture-can do, (2d Cir.2008). 547 F.3d No we can conspiracy simply related because majority matter how-the wishes to frame willing perform some illicit infer he was Torres, Lorenzo, facts, these and then- he activity people whom was precedential long pre forebearers have acquainted.1 somehow majority’s cluded determination this course, hypothetical Of the above virtu reasons, case. For these and the reasons record, ally evidentiary tracks case’s below, I respectfully discussed dissent. Haki- save some rhetorical flourish. Both role, un hypothetical Conspiracy and the man’s

mi’s I. Huezo, do not bear like the defendant majority rightly sets forth the long usual hallmarks that this Court’s requirements conspir- Court’s to sustain a addressing line of cases the element conviction, acy and I concur ma- with the presenting identified as has jority support that there was evidence to requisite evidentiary specif “indicia of the juror’s rational inference that there existed underlying crime.” Sa ic elements involving exchange of con- maria, added); (emphasis 239 F.3d 60-61, 62-65; Maj. Op. traband. see also Torres, see also 604 F.3d at 67.2 Torres, (noting 604 F.3d at 68-69 Nonetheless, majority Haki- frames conduct, suspicious appearance, “nervous” at the scene of an presence mi’s “mere can exculpatory sup- and false statements transfer,” aborted evidence we have that a port inference defendant knew past, as insufficient in the held contraband). packages contained I dis- Nusraty, however, agree, majority’s with the conclu- Cir.1989), “impending possession.” sole sion that there was sufficient evidence for Indeed, Hakimi’s “mere association with conclude, juror beyond a rational a rea- alleged co-conspira- ... some or all of [the doubt, sonable that Hakimi was a “trusted may in a chain of tors have been links who] requisite knowledge insider” with the distribution,” legally in- narcotics another ‘transport drugs so as specific and intent to id., indicator, is instead evidence sufficient support conspiracy conviction for a being “well-acquainted” and “well-con- offense. controlled substance despite being the record devoid of nected” any Maj. Op. content those calls. See Specific the A. Intent to Commit Of- Lastly, majority the relies on the 69-70. Underlying Conspiracy the fenses testimony coconspirator, of an admitted conviction, conspiracy the Hakimi, To sustain who had never before seen by present “evidence from government Hakimi “must have been trusted” must deciding, though on the contents of the 1. Even there is no evidence that the based bag, assign conspir- which label to and which what defendant ever saw or was ever told acy charge. may prove bag, government now in the conspiracy knew the in- defendant substances, too, trafficked in vi- recognizes volved controlled majority, 2. The that Huezo Code, regard- 21 the United States presented olation of title extensive” evidence "more diamonds, ing relationship or stolen trafficked in violation of the nature of the between Code, co-conspirators. Maj. merely title 18 of the United States that defendant and his looking Op. 70. into the after it has been seized 80 man, 124) reasonably

which it can be inferred that in (emphasis 300 F.3d at Fried- )). person charged conspiracy Likewise, knew “[p]roof man that the defen- alleged of the existence of the scheme in engaged suspicious dant in behavior” is knowingly joined the indictment and legally also insufficient. “Evidence tend- participated Ogan in it.” United States v. ing to show knowing participation (2d Cir.2008). do, 102, 547 107 F.3d “The needed,” conspiracy is also United States government not that the need show defen (2d Soto, 989, Cir.1983), v. 716 F.2d 991 conspir dant knew all of the details of the ‘logical such as “facts sufficient to draw a Huezo, 180, acy,” but it “must and convincing connection’ between cir- prove degree of criminal at least intent agreement, cumstantial of an evidence necessary for substantive it offense agreement the inference that an inwas Feola, self.” v. 420 United States U.S. Jones, fact made.” United 393 686, 95 S.Ct. 43 L.Ed.2d 541 (2d Cir.2004) 107, 111 F.3d (quoting Unit- (1975). Here, therefore, the government Gore, ed States v. F.3d proffered must have evidence sufficient for Cir.1998)). Indeed, lynchpin for sus- juror rationally to infer that Hakimi taining a defendant’s “conviction for con- conspired to know or intend to “distribute” spiracy to traffic narcotics” remains “possess with intent to ... distribute proof of the specific defendant’s “knowl- ... a controlled substance.” 21 U.S.C. edge that his conduct involved narcotics.” 841(a)(1) added); § (emphasis see also Torres, 66; Lorenzo, 604 F.3d at see also § U.S.C. 846. Such inference must be 534 F.3d at 160-62. “sufficiently supported permit a rational Proof of a defendant’s or in- juror element, to find that like all may elements, tent be established through “evidence beyond is established a reason Friedman, participated the defendant able doubt.” conver- 300 F.3d at 124 (internal see, quotation omitted); directly sations marks related the substance of e.g., Rodriguez, 544; Torres, conspiracy,” “possession 392 F.3d at or men- of] 604 F.3d at 66. important tion[ ] documents to the con- spiracy,” “proof that a defendant exercised Absent “proving that the defendant itself,” authority within “re- dealing he knew with a controlled ceipt profits a share of the of] substance,” simply high-value contra- conspiracy,” or the defendant’s statements band, “cannot establish [a “explicitly confirming] the nature of the § 846 conspiracy U.S.C.] to distribute activity in which the co-conspirators were or to possess with intent to distribute” a Samaria, engaged.” 239 F.3d at 235-36. controlled (emphasis substance. Id. add- “merely Evidence that establishes that ed); [a Rodriguez, see also 392 F.3d at 545 conspirators defendant] associated with (noting conspiracy that “the and substan- under suspicious circumstances and tive sus- [possession] charges, both of which (or pected crimes, suspected) should have specific are intent that a required the occur,” government crime might specific is not enough. established that [the defen- Friedman, (internal 300 knowingly quota- dant] and F.3d at 126 intentionally partici- added)). tions, alterations, omitted). pated in a drug (emphasis deal” and citations exhaustive, ‘““Proof that Although the defendant this list is not knew that it is beyond some crime would be lightly committed is not cavil that we do not permit enough.”’” Rodriguez, 392 F.3d at 545 inferences of a defendant’s knowledge of (quoting United Morgan, object States v. 385 the conspiracy of the to be drawn (2d Cir.2004) F.3d (quoting Fried- absent some indication that the defendant conspiracy “high cou- can establish the value” knowledge of the had some of contraband and the defendant’s “im- evidence the de- pled specific with either it, pending” possession jury may sole a a “trusted” role in the occupied fendant simply be instructed to infer that the de- circumstantial evi- conspiracy or other conspirators fendant is trusted and bearing dence on the defendant’s knowl- may object impute knowledge of the therefore of the edge of the nature of distinguish nature of that contraband to the defen- conspiracy. This is meant to holding effectively guts pri- in crimi- dant. The our knowing participation a proof holdings knowledge may or that not be conspiracy nal from cases which the proven specific when there is no evidence only that “the defendant evidence shows operation to the nature and con- a role to that of the as played subordinate spiracy and the defendant’s role it nor principal engaged the criminal conduct prior evidence of the defendant’s conduct plausibly and the defendant could charged, knowing suggests without the which is of sort that have fulfilled role objects knowledge conspiracy. of the of the scheme’s criminal nature.” See United (2d See, Lorenzo, 160; Torres, Davis, e.g., 534 F.3d at 690 F.3d Samaria, Cir.2012). 63; at at F.3d 238. Indeed, view, my permits holding Conspiracy B. “Trusted” Members constitutionally standard that risks the im- “that the permissible determination in- majority primary The relies on two Lorenzo, probably guilty.” defendant is knowl- guilty ferences to show Hakimi’s (internal 534 F.3d at 159 alterations and (1) “very un- edge: drug traffickers are omitted). quotation marks high drugs value likely to confide” Nonetheless, majority primarily not a re- person “sole control of who was (2) Huezo, Abelis, suggest lies on conspiracy” trusted member of the Sisea a “trusted member of the we have endorsed an inference of a “trust” such relationship, proof specific and thus may reasonably expected be to have conspiracy” knowledge purpose conspira- of the nature of the Maj. illegal drugs.3 Op. cy, merely by proving to distribute that the value of Circuit, high showing that the through 27-28. Now that this contraband is posses- take majority, poised endorses such inferences as ra- defendant was sole record, virtually any argument time the sion of that contraband. This is tional on this dress, box, simply majority obliquely into a also relies on the fact in sealed sewn (i.e., bag duffel was unsecured not up bag. he zippered in a duffel If did sealed) "strong evidence Hakimi’s trust- contained, package finding out know what the status,” supports ed which in turn its conclu- nothing pair take more than a knife or would bag that Hakimi knew the contained sion goods regardless of were of scissors how Maj. Op. at 70 & n. 12. The narcotics. See majority implies packaged. extent the To the argument [the that Hakimi could "do with away get that couriers can somehow drugs] he were as wished” because the bags easily pilfering few of narcotics more taped bag in a duffel rather than in a box or they duffel when are in an unsealed —and is, garment, respect, sewn into a with all due given bags who are duffel are thus couriers herring proves nothing a red about Haki- argument a is also trusted insiders—that possible knowledge bag’s mi’s of the contents recipients suggest that flawed. See id. To arrested, id..,and dem- at the time he was see upon delivery, inspect package would not the significant degree onstrates to a the circulari- not look first to their or that senders would reasoning. ty majority’s in If he knew the the receiving complaint contraband, upon a that the courier just nature of the he could package light sense. easily goods they were was defies common flee with the whether First, wrong majori- conspirators reasons. the two at “the same house where all ty opinion misapplication prior of our is money “Moreover, of the kept.” was Id. holdings, from the divorced substantial cir- there was personally evidence that [he] cumstantial evidence those cases relied on possession took bag containing of the small support in of an inference that the defen- $6000,” payment, his “that he it placed dant had a “trusted” status within that behind his Jeep, own seat the and that Second, conspiracy. permitting such an money packaged similarly the ignores inference on a record like this one $500,000in the larger suitcases.” Id. fact-dependent the nature of our case law (1) On that record demonstrating addressing knowledge the element of defendant’s extensive contact with the ignores erects an overbroad rule that money principals conspira- and the distinguishing factors between the activi- (2) (3) cy, scheme, complexity known, ties of trusted couriers and mere and the defendant’s patsies. receipt of share of profits from the conspiracy, jurors particularly pro- Huezo is ill-suited to permitted were rely “to on their common Huezo, guidance vide this case. In sense and experience drawing infer- split panel held that “common sense and ences” of the defendant’s experience support would an inference that specific intent sufficient to sustain a con- principals would not spiracy conviction. requires Id. Huezo (with have trusted an outsider no knowl- much more than “common sense” and edge of purpose) their criminal to trans- high-value contraband support an infer- port million in laundered funds” when $1 ence that a defendant is a “trusted” con- conjunction considered in with “the com- spiracy plexity insider. money and scale of the laundering scheme.” 182. The scheme in For that reason already this Court has sophisticated Huezo was a international suggested “analogy to Huezo is inapt” conspiracy involving “major Colombian to a case similar to this one when packages money broker” who laundered over $50 containing a million-dollar ship- cocaine drug proceeds. million of Id. at 181. ment were addressed to the defendant. Shortly transactions, before the the defen- Torres, 604 Despite F.3d at 70. proof dant traveled from California to Connecti- dogged defendant’s attempts pick cut with the co-conspirators and loaned up packages, we held this to be insuffi- Jeep them his drop-off plan- for an initial cient because government presented “the ning meeting with agent an undercover no evidence as to the nature of [the defen- posing conspirator. as a Id. at 182. associations conspira- dant’s] with the” the later, days Three accompanied he his co- cy principals packages. who sent the Tor- conspirators and “drove a suitcase contain- res, added). (emphasis F.3d at 71 $500,000 ing meeting to a under- [the Torres, too, “[t]here was no evidence of a agent] cover and unlocked the trunk from payment sizeable to [the defendant] that agent] driver’s seat to allow [the might expectation reflect an related to later, remove the days suitcase.” Id. Two “ million-dollar street ‘basically [illegal he value of the help[ed] guard’ the move- drugs],” “no ment of a evidence [the second suitcase containing defendant] $500,000” car, into his own other than his gain possession then drove efforts to co-conspirators second, drugs],” to a planned drop- [the and no “evidence [he] off meeting. while, Id. All placed position “he shared in a despite trust” a residence and socialized with” his co- his name being parcels on the containing doing, tion. In so we noted that “the equally The record here is drugs.4 Id. the Although we great weight devoid of such evidence. place was entitled to contact, perhaps had even know Hakimi conspirators fact that the other trusted majority sug- as the “extensive” contact to mil- safeguard [the defendant] [a] $3.5 of nothing know of the “nature” gests, we to into an payment lion that was be made Furthermore, is no contacts. there those to [the offshore bank account which defen- evidence of his payment, no evidence signatory.” was the sole Id. dant] Anderson, with meeting role other than his monetary straight payment While certain- in of his trusted status and no evidence ly presents a different scenario from the third-party other than testimo- conspiracy here, one we address we mentioned rejected in ny Ogando, to that we similar multi-million pay- evidence of this dollar Huezo Accordingly, 547 F.3d at 107. only inferring ment as a basis for “trust” con- “common sense” inference should be other circum- extensively reviewing after fined to situations with similar substantial (1) in present stantial evidence the record: partici- a showing records defendant was showed that [the defendant] the “evidence conspiracy in a unlike pating sophisticated a close of both [co-conspirator friend drug-running operation we pedestrian (2) principals]”; principal stayed one in the here. have defendant’s home and used his home tele- Indeed, precedent on which the other (3) principal; to call the other majority equally inapposite relies is as present participated at and defendant “was for infer- support for its more lenient test key meetings involving payment” in pur- ring a defendant’s (4) at- money; the defendant extorted pose conspiracy. support a To the idea key meeting put a to extra fear tended “impending possession” coupled sole him pressure on the victim to cause to high-value contraband —absent a with (5) indicated the defen- pay; statements the defendant’s showing of the nature of past understanding of the vic- dant had con- relationship principals with the previous promises pay money tim’s spiracy or the defendant’s role the con- (6) he exchange protection; attempted spiracy supports conspirator” a “trusted — (7) he and two of get pay; the victim to inference, majority relies on principals his associates drove the two (2d Cir.1998). Abelis, 146 F.3d 73 night “late at conspiracy for two-hours Abelis, rejected challenge we up to meet with the two a rainstorm” sufficiency support of the evidence to by had been taken there other conspiracy conviction for to commit extor- victims who involved in the majority attempts dispel Torres as became fendant] 4. The see, simply e.g., there inapposite by design,” because the defendant by happenstance and not having prospects Samaria, dominion had "no sole (reversing at 231 a con- illegal drugs. While it is true that over” despite spiracy evidence that conviction accompanied by men the defendant was other permitted conspirators load a defendant during attempted pick-ups, paid equal we car, goods ap- containing into his box stolen packages "although weight to the fact that the "lookout,” peared and drove the to serve as name, to him in could not be re- addressed they conspirators location where to another controlled; ceived him in a location he picked up additional boxes into a and loaded (if they were not addressed to his home he cab), yellow that the defendant's "im- or even home) had a but rather were addressed possession” pending sole was “consistent place he not shown him at a with which was variety participation in a wide of of- any Id. at 71. Further- to have connection.” Lorenzo, fenses,” 534 F.3d at such more, majority’s "impending sole control” diamonds, transporting matter. stolen for that de- [a does little to refute “an inference that (8) associates; computer he on a typed gave trunk and it officer, the to the undercover “agreement” to pay money; the extorted confirmed that all in response “[i]t’s there” (9) lastly, provided he his offshore question, the officer’s “Everything’s in bank repository account to as the serve there, five?,” right, proof as well as that he the Only light extorted funds. Id. in of livery drove his building cab from this additional extensive evidence in the which a call arranging the money-drop record did we hold that the defendant’s and, meeting had been after a con- placed participation “active in the evening’s versation, permitted place a man to a box typing the contract and providing events— containing five in kilograms cocaine his bank account the destination of as trunk of his circuitously cab before funds—as presence sign- well as his at the evasively driving Queens ato location in ing agreement, reasonably could be where he headlights flashed his at an ap- interpreted as in acts furtherance of the proaching car and conversed with its driv- conspiracy.” Id. The facts relied on in er before opening the trunk of his cab to Abelis, therefore, are so much more robust allow the driver remove the cocaine- than in those the thin record before us box); Aleskerova, filled United States v. application where, Abelis has little as (2d Cir.2002) 300 F.3d 293-94 (noting here, there is no evidence demonstrating the defendant “extraordinary had travel the nature of the defendant’s role or asso- plans” Azerbaijan to New York coin- alleged ciation with co-conspirators. ciding with a meeting crucial where she Other on cases which the majority relies was to art, facilitate the sale of stolen equally have extensive records demon actually art, had handled the stolen knew strating the relationship nature of the be the combination of the locked in suitcase tween the principals defendant and the secreted, which the art provided was the conspiracy and the defendant’s role in “bank account information written in [her the conspiracy. See United States v. Sis handwriting own] ...[ so to share in as] ca, (2d Cir.1974) (not proceeds sale,” and, only “in the ing evidence showed the defendant met absence of any evidence of relationship ... with principles of conspiracy, owned outside of conspiracy” between the de- “and shared with his wife exclusive posses fendant and her co-conspirator was an in- sion aof house found strewn with narcotics permitted ference be phone drawn that and various other paraphernalia of a her calls of unknown content were “in further- oin trafficking operation,” “presen[t] (alterations ance of conspiracy” omit- premises on the while others entered and ted)). Each case permitting the inference carrying heroin,” left containers of a “trusted” relationship relies $60,000 cash, entrusted with in per evidentiary record demonstrating much mitting the inference that “performed he here, more than a showing, only the critical role of maintaining the ‘stash’ (rather actual) “imminent” than sole con- or ‘safe haven’ for the opera distribution trol of tion”); highly Ramirez, valuable contraband and United States v. 320 Fed. Cir.2009) calls of Appx. order) Indeed, unknown content. (summary in cases, each of (noting alia, evidence those showing, the defendant inter al- ready exchanged contraband, defendant had sole prearranged control of the code officer, word with an extensively had participated undercover conspir- de fendant acy, “had almost half a million or had dollars demonstrated insider knowl- cash trunk,” edge suitcase cab’s about objects conspiracy. removed the cash-filled suitcase from Only then did we approve as rational an ers, pick drugs up was a “trust- would a boat that the defendant inference knowledge of the nature insider” or had at the ed docked reservation. The boat was majority here er- of the contraband. cousin, normally operated by her Dustin broad, overarching legal a roneously crafts of Dallas George, George. the brother fact- of mere morsels of these principle out by typically She and Mason were escorted reviews, worse, sufficiency and intense look-out or blocker vehicles. Anderson on majority endorses logical inferences arrange would for her own escorts. significantly are ones that di- this record a passenger help Anderson also took evidentiary govern- minish the burden not use rental cars her drive. She did conspira- a ment must shoulder to sustain flags because rental cars red were cy conviction.5 Anderson, police officers. once she fact, majority’s holding endorses York, pick up reached New would cocaine ' way case- generalizing in a that belies our bring George, back to Perla. Dallas by-case inquiry factual into whether there testified, Anderson was not reliable to re- proof of a defendant’s is sufficient knowl- drugs ceive a transfer of because he was outright ig- edge conspiracy cases drugs. oh Anderson also testified that it in a principal participants nores that was family organiza- her connection to the high-value do confide a conspiracy often tion, point which at one had been run is not a quantity drugs to one who family, her that made her a trusted mem- conspiracy. trusted member of the The ber. carry presented evidence at trial does not Hakimi, specific knowledge previously

the indicia of sufficient known to jury a to infer that Hakimi knew permit person Anderson as a involved in the or- a con- the contraband issue was ganization, pick up was not asked to Indeed, trolled substance. this case’s facts from the boat or even from provide bright a contrast to all cases on apartment, Anderson’s as trusted mem- majority which the relies. bers of the are asked to do. Rather, go Hakimi was instructed to to the Cheyenne Anderson testified that Perla Massena Wal-Mart. Hakimi arrived Realza) (Daisy ringleader was the of sorts. car, regular rental which a member of Perla, Typically George, never Dallas organization would not have done. He was doing would contact about Anderson Mason, “run.” couri- unfamiliar with the reservation area. Ad- She Joe usual that, case, ing airport-smuggling jury majority 5. The also that our sister in an asserts adopted similar inferences on may knowledge high-value circuits have na infer from the care, here. close records similar one On cargo noting ture of in defendant’s but examination, however, in case there each specific that in this case it was reasonable to presented extensive evidence at trial to more knowledge own infer about the contents of his presented warrant such an inference than was luggage given unlikely pru that it was for a See, e.g., case. United States v. Gbemi smuggler’ high cargo dent to entrust value sola, (D.C.Cir.2000) F.3d 759-60 person (especially in that inno an innocent (noting city, suspi that travel to a distant person's luggage) cent own and it was unlike packages in which were re cious manner trieved, ly unaware of the contents of defendant was mailboxes, false use of names bag given weight); its unusual defendant's actual of contents from removal (7th Uriostegui-Estrada, 86 F.3d 87 States v. package coupled with the use of the false Cir.1996) (observing jury could also that the pots presented bottom which a hazard to possession infer from defendant's recipient supported innocent an inference of million in heroine and control of one dollars knowledge); Quilca-Carpio, United States v. suspicious history). travel (11th Cir.1997) (hold 721-22 ditionally, accepting George boat, that Dallas picking up package at the or even point the contact in common between leader, direct contact with the I Perla. Hakimi, Anderson and which was out of therefore, agree, cannot sparse ordinary given testimony Anderson’s record in supports any this case inference Perla, only that she dealt Dallas by that Hakimi was a “trusted George’s text messages to Anderson conspirator” they such that in- could then checking on the status of the situation that fer that Hakimi specific knowledge had day suggestive are that Hakimi also was going that what he was to transporting be end, not an insider. To that I am not drugs. persuaded that post-arrest Hakimi’s state- distinguishing Given the factors between ments to Anderson suggesting that he known, the activities of the trusted couri- Perla, knew phone calls of an unknown ers in conspiracy the underlying this him, nature between Perla and and his few Cheyenne Anderson and Joe Ma- case— contacts with the phone number attributed son—and the manner in which Hakimi was sufficient, to George Dallas are without operating, such a “common assump- sense” more, support an inference that he is a by tion jury the can amount nothing trusted member of the conspiracy. In- Torres, more than speculation. See deed, the call logs April 15 and (“[T]he at jury’s F.3d inference must be phone reveal that the in posses- Hakimi’s reasonably based on evidence presented at placed sion a call to George the Dallas trial, (internal speculation!.]” not on quota- p.m. number around 1:51 on April 15. omitted)). tion marks Admittedly, as phone placed That April a second call on highlighted by majority, the sug- we have 16 at government, 11:49 am. The during gested that committing highly valuable the Rule 29 hearing, stated that those calls contraband to the defendant’s posses- sole totaled little more than 6 minutes sion, involvement of the defendant sensi- Moreover, length. all of Hakimi’s calls stages tive conspiracy, the and the de- with Perla and Dallas George place took fendant’s relationship and level of contact hours days Perla or Dallas before with his coconspirators can establish an George had asked Anderson to do run inference that the defendant does have the learned Anderson could not do requisite knowledge guilty to be of con- the run. spiracy. view, however, In my the record most, record, At from jury could before before us on re- —and infer that Anderson going was not to be any view—lacks of the traditional hall- able to do the run planned, as causing thus marks of a trust relationship between Perla and George Dallas to make emer- Hakimi principals and the so as to support gency arrangements which involved an a conclusion that Hakimi was a “trusted outsider, Hakimi, picking up package conspirator” knowledge with Anderson a different location than conspiracy. conspiracy normally according used Moreover, above, Anderson. suggested The reason as prec- Hakimi was our chosen or the nature of edent prior holds that relationship with can be in- Dallas George or Perla is unknown. Haki- ferred from a number of factors. We have mi had convictions, minimal contact however, affirmed George only Dallas when period leading up to the transfer. such inferences speculative are not and are Hakimi was insulated from the supported by sensitive showing specific some evi- aspects operation of the known, trust- dence as to the nature and operation of the ed couriers were involved with—such and the defendant’s role it or majority prior suggesting attempts conduct to bolster the defendant’s objects conspiracy. of the knowledge of inference that the defendant awas trusted Aleskerova, See, 300 F.3d at 293-94. e.g., coconspirator by likening this case to its Indeed, underlying specific even the facts suggesting distant Huezo relatives and holdings by in each of the cases cited that, considering “totality” when majority make clear additional evidence, corroborating other canwe easi- if corroborating important, factors were ly that Hakimi a knowing find insider. crucial, components jury’s find- Maj. however, Op. “totality,” 69-70. This subsequent our reviews. ings and of Our consists of calls of unknown content jury’s to a verdict cannot be deference principal, phone one calls of unknown deferring logically basis for deficient principal, including content to another one showing unsupported inferences morning planned drug on the of the trans- anything more than calls of un- fer, third-party testimony that these proximity known content and a defendant’s conspirators would not have trusted their high-value contraband over the which high-value just any contraband with couri- him conspirators intended to have sole All er. other evidence considered amounts join I a control. therefore cannot decision at suspicious most to behavior of the de- which, view, my departs in too far from the leading up fendant to his arrest and his of Torres and a permits limits Lorenzo presence drug exchange. at the foiled We jury knowledge only from defen- infer again unreservedly have time and time item, possession high-value dant’s of a conspiracy reversed convictions consider- which, majority says, jury evidence, ing similar notwithstanding relationship. could also infer a trust Such verdict, jury’s deference owed the on the all govern- a result but eliminates the evidence, stronger basis that much prove knowledge beyond ment’s burden to matter, than in that the instant was insuffi- a in possession conspira- reasonable doubt support cient to inference of the defen- cy cases. knowledge. dant’s Law The

C. Our Case Issue of above, Having discussed Torres Knowledge Lorenzo, States v. 534 F.3d 153 Cir. 2008), apt starting point. serves as an discussed, is little support As there Lorenzo, jury we reversed the verdict be Huezo, Abelis, Sisea, holdings our or cause, a though purported even transfer jurisprudence even our sister drug proceeds occurred and the evidence circuits, a that warranting rule imminent key a role in played showed the defendant (but control, future when present) sole transfer, participation the defendant’s regard high-value considered with con- participation was “consistent with in a traband and unknown associations with the variety at 160. wide of offenses.” Id. principals conspiracy, supports of a government had also that Lorenzo’s shown person inference about to receive trafficking, nephew was involved the contraband a conspirator.” is “trusted nephew, that Lorenzo had contact with his Although majority contends that such present pick up the that Lorenzo was a “common position sense” is one we have hotel, endorsed,” drug courier and take her to a already “repeatedly Maj. Op. later, that, day gave Lorenzo the courier precisely such inferences are $14,000 containing a suitcase to deliver to consistently sort that we have refused to nephew. Additionally, gave Lorenzo draw on records similar to the one here. Jones, exculpatory giving at 111. false statement about See courier, money edge shipment drugs. and the courier that the contained See, Torres, during e.g., was told to call Lorenzo a subse 604 F.3d at 70-71. In trip. government deed, at 161. The quent Id. presented also testi “call,” argued that this viewed with the mony Ogando was hired as the driver evidence, supported an inference other because he was a “friend” from “New principal that the “would York.” We refused to find basis for infer not have entrusted with the suit [Lorenzo] ring a relationship trusted based on that narcotics, concealing cases worth over testimony because “it not show that [did] $250,000, unless had known [Lorenzo] Ogando conspira knew the nature of the what was concealed within them and that business,” tors’ rather it showed the con reasonably it was foreseeable to him that spirators’ intent but not his own. Id. We ... smuggled narcotic was cocaine.” Ogando’s reversed conviction for insuffi (internal omitted). quotation Id. marks cient evidence. rejected argument We and reversed Again, we followed similar course in conviction, noting that such an “unful Friedman, United States v. F.3d request support filled ... cannot such a (2d Cir.2002). There we reversed the speculative and attenuated inference” even verdict because the evidence at trial failed light when considered in of the other evi to demonstrate that the defendant had dence. Id. specific knowledge about a co-conspirator’s We reached similar result in United plot. extortion at Id. 126. The evidence Ogando, States v. 547 F.3d 102 Cir. phone included three calls between the 2008). There, jury we reversed a convic co-conspirator, defendant and a one 43 for, alia, tion conspiracy import inter to days minutes in length leading up ecstasy conspiracy and to distribute and crime, a record of calls an between possess with intent to ecstasy. distribute associate of the defendant and other mem- case, driver, Ogando, In that a taxi dis conspiracy, bers of the testimony and that played suspicious behavior in meeting up friendly the defendant had a relationship a drug airport courier at the whom he with the co-conspirators. Id. at 125. The pick up. was hired to Id. at Upon government also showed that the codefen- escorting car, the courier to his Ogando arranged dant for the defendant to wire government was arrested. Id. The estab money co-conspirator to another in order lished at trial Ogando present that at purchase car, that, firearms and a and airport another coconspira where another occasion, on one the defendant asked the earlier, tor was arrested that he made co-defendant to meet the remaining con- false exculpatory statements during his ar spiracy members with firearms and a car. rest, and that he had business cards and Nonetheless, Id. at 125-26. we held that contact information for members of the heavy defendant “met the burden [of conspiracy on him multiple and numbers of ... demonstrating that the evidence ] principals conspiracy in his cell (internal insufficient.” quotation Id. phone. this, however, All of we held as omitted). marks evidence that “simply that show[ed] [de Gaviria, again, Yet livery fendant] was a cab driver United States v. regularly (2d Cir.1984), by used 740 F.2d 174 conspiracy.” members of this we reversed a Id. at 108. This is conviction on jurisprudence because our the basis that evidence did holds that a suspicious defendant’s behav not demonstrate knowing participation ior in attempting delivery drug to take in a only nar and showed shipment cotics does not indicate knowl that the defendant had a connection with information, taining evidence showed stolen credit card traffickers. The did drug went to the defendant and friend not demonstrate of conspiracy that fraud). identified law enforce- apartment to commit credit card As the court pad.” pair entered ment as a “stash discloses, below found and as the record suspi- left in a building together absolutely is there no circumstantial evi and, by law stopped cious manner when beyond dence the street value of the drugs enforcement, the defendant lied about her calls of unknown content. And building. A presence at the Id. at 183. majority points further. All nothing apartment search of the indicated that co- jury had before it was evidence that apart- had in the prepared been caine multiple phone Hakimi had contacts with ment. Id. Law enforcement found seven principals organization several grams package of cocaine up pick up package that he showed floor of the defendant’s vehicle and con- transport that he would on behalf of the plastic bag with the fronted defendant principals. There exists no evidence to to which containing powder white she re- bolster an inference that Hakimi knew sponded my “the cocaine wasn’t found on given drugs he was to be A transport. car, Further, side of the was it?” Id. jury ought not to be able to find from Lopez showed that knew the those facts alone that the defendant had drug they and knew that en- traffickers specific knowledge of the contents of the gaged the sale narcotics. revers- package, and the here had no basis in conviction, ing the defendant’s we noted the law to infer from this record that “contact with traffickers” alone object specifically Hakimi knew he in a prove participation is “insufficient to was to transfer was a controlled substance conspiracy.” coupled Even when with the majority fashioning, without our as the statements, exculpatory the record did today, that significantly does a new rule knowing not substantiate the defendant’s juris our conspiracy modifies well-settled participation conspiracy charged. in the I affirm prudence. would the district Again, for insuf- Id. at 184. we reversed court’s determination under Fed R.Crim. ficiency of evidence. presented P. 29 that the evidence was cases, previously other some Several insufficient as matter of law. noted, similarly hold on records more sub See, e.g., stantial than the instant one. Attempt II. Torres, (holding 604 F.3d at 70-71 that a majority’s reasoning respect with suspicious attempt defendant’s behavior in attempt largely conviction fails for ing delivery of shipment to take narcotics conspiracy reasons as the con- the same knowledge ship did not indicate that prevail, govern- viction. In order to drugs); ment contained United States v. prove beyond had to a reasonable ment (2d Rodriguez, 392 F.3d 546-48 Cir. that Hakimi “had the intent 2004) doubt (holding demonstrating that evidence object “engaged commit the crime” and only that served as a lookout for defendant amounting in to a substantial conduct some sort of illicit transaction is insuffi its commission.” United step towards cient that he knew it was a transac Farhane, States v. 634 F.3d specifically); tion United States v. Sama Cir.2011). (2d Cir.2001) course, con- ria, attempt, Of like 236-38 spiracy, specific is a intent crime. When (holding gypsy presence that a cab driver’s offense, underlying is the conspirators, possession in a car with and assistance loading knowledge con of the nature of the contra- non-transparent boxes similarly knowledge object crucial. For band is the nature of possessed above, discussed the ev- conspiracy, nothing the same reasons more than the presented simply idence does not show value of transported, the contraband be content, had that the con- that Hakimi calls of unknown and a co- drugs. Although Hakimi sat traband was conspirator’s intention that the defendant proximity truck in Anderson’s possession object have sole to be containing pills, blue there is no bag not, view, my This is in line delivered. bag Hakimi touched the or evidence that prior precedent with this Circuit’s and is Likewise, in it. there is knew what was that speculation tantamount to the sort of bag transparent, no evidence that the was previously we have held insufficient bag open, although or that the there support a conviction for drug record that suggestion is some attempted possession or of controlled sub- open agents and that the slightly I respectfully stances. dissent.6 plastic. could see some Anderson never

testified that Hakimi even noticed the court, too,

bag. The district noted the inquired

absence of that Hakimi evidence bag’s drugs

about the contents and also any

that Hakimi never made statements Finally, drugs.

about the court observed only that “the conversation [Anderson] RUSSO, attorney Maria LA fact during and the defendant had their inter- Lucia, for A. Matthew De pertained action on the dead-end road Plaintiff-Appellant, directions back to the Reservation.” On record, there is no evidence that Hakimi knew were involved ST. GEORGE’S UNIVERSITY vicinity drugs. he was in the The rec- MEDICINE, Does, SCHOOL OF John no provides ord evidence Hakimi (as 1-5, employees, agents, ser and/or possess, knew what he was about to George’s vants of as inde St. and/or shortcoming attempt is fatal to his pendent contractors), Does, 1-5, Jane Accordingly, conviction. I would affirm (as employees, agents, servants and/or the district court’s determination that the George’s independent of St. and/or evidence was insufficient as matter of contractors), Defendants-Appellees. law to sustain such a conviction. Docket No. 13-1665-cv. Conclusion Appeals, United States Court of

There is no basis in this record on Second Circuit. jury rationally which the could infer a relationship trust between Hakimi and the Heard: Nov. 2013. principals thereby infer Hakimi’s Decided: March 2014. knowledge of the nature of the contra- end, band. majority proposes To that

a broad holding that a can infer a status,

“trusted thereby insider” (albeit Hakimi, Noting judges join that four two are the cient evidence to convict I do controlling majority Appeals) on the Court of majority opinion. Footnote 20 of the evenly split are on whether there was suffi-

Case Details

Case Name: United States v. Anderson

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 4, 2014

Citation: 747 F.3d 51

Docket Number: Docket 11-5364-cr

Court Abbreviation: 2d Cir.