UNITED STATES of America, Appellant, v. Ruben BORIA.
No. 08-2550.
United States Court of Appeals, Third Circuit.
Argued on Dec. 15, 2009. Filed Jan. 26, 2010.
592 F.3d 476
IV.
Conclusion
For the reasons set forth, we will affirm the District Court‘s denial of Diaz‘s motion for a mistrial. We will vacate one of the two
Robert A. Zauzmer, Esq. [ARGUED], Karen S. Marston, Esq., Office of United States Attorney, Philadelphia, PA, for Appellant.
Anthony J. Petrone, Esq. [ARGUED], Cogan, Petrone & Associates, Philadelphia, PA, for Appellee.
Before: FISHER, HARDIMAN, and VAN ANTWERPEN, Circuit Judges.
VAN ANTWERPEN, Circuit Judge.
The United States appeals the District Court‘s judgment of acquittal for Appellee-Defendant Ruben Boria (“Boria“). For the following reasons, this Court will reverse the judgment of acquittal and remand the matter to the District Court for further proceedings.
I.
On February 5, 2007, Marcus Diaz (“Diaz“) arrived in Philadelphia, Pennsylvania driving a tractor-trailer which contained one hundred kilograms of cocaine hidden among boxes of mostly rotten fruit. That same day, Jose Alvarado (“Alvarado“), a Drug Enforcement Agency (“DEA“) informant, received a phone call from his long-time friend Miguel Morel (“Morel“), who was searching for a garage1 which could fit a tractor-trailer for unloading. Alvarado had previously assisted Morel with Morel‘s drug transportation business.2 He then met with Morel and four other Mexican nationals, none of which were Boria. Alvarado was unable to locate a garage for Morel, but suggested an overnight parking location. Alvarado watched the truck that night and was in constant communication with Morel. At some point during the night, Alvarado managed to inform law enforcement about the load of cocaine.
On the morning of February 6, 2007, Alvarado returned to the parking lot to take Diaz to breakfast. When the two arrived at the diner, Alvarado received a phone call from Morel informing Alvarado that he had sent someone to take the tractor-trailer to a garage for unloading. Alvarado testified that he was told by Morel that Boria “was supposed to take the tractor-trailer from [Alvarado] and take it to a garage to unload the drugs that were in the back of the tractor-trailer.” (App. 139.) On cross-examination, Alvarado maintained that Boria was responsible for “taking the truck from [his] hands to take it to another garage to unload it,” (id. 144), and for “tak[ing] the driver of the tractor-trailer to finish off what needs to be done inside the truck,” (id. 145).3
When the truck pulled out of the parking lot, it was stopped by the police, who had been observing the truck since receiving Alvarado‘s tip. The police then conducted a lawful search of the truck after a K-9 unit alerted to the presence of contraband. Police officers recovered a cell phone and $16.00 from Boria‘s person.5 Boria‘s cell phone continued to ring after the police stop and throughout the search of the tractor-trailer. Police gained access to the locked trailer portion with a key on the ring they found in the ignition. After three hours of searching, the police located one hundred kilograms of cocaine hidden in boxes, which themselves were hidden in the middle of the trailer within pallets of mostly rotten fruit.
On April 18, 2007, a grand jury indicted Boria on two counts: (1) conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of
At the close of the Government‘s case-in-chief, Boria moved for a judgment of acquittal under
“there was no evidence that Mr. Boria was engaged in, or present during, any conversations about the cocaine that was hidden in the back of the trailer; no probative evidence of the substance of any communications in which Mr. Boria engaged; no evidence that Mr. Boria ever ‘possessed’ or saw the cocaine, or that he ever saw the back of the trailer unlocked; no evidence of any prior relationship between Mr. Boria and any co-conspirators; and no evidence that Mr. Boria previously had been involved in any drug-trafficking activities.”
(App. 586.) Consequently, the District Court determined that a reasonable jury could not find that Boria knew the actual purpose of the conspiracy.
II.
The District Court had original jurisdiction under
On appeal from the grant of a judgment of acquittal, this Court exercises plenary review and independently applies the same standard a district court utilizes in deciding the motion. United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (citing United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987)). We “review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Id. (internal quotation marks and citation omitted). Accordingly, we will sustain the verdict if there is substantial evidence to uphold the jury‘s decision.7 United States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006). Under this particularly deferential standard of review, a reviewing court “must be ever vigilant ... not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting [the court‘s] judgment for that of the jury.” Brodie, 403 F.3d at 133.
Nevertheless, in a conspiracy case, we must closely scrutinize the Government‘s evidence because (1) slight evidence of Boria‘s connection to the conspiracy is not sufficient to support guilt and (2) guilt must remain individual and personal. Id. at 134. Thus, we review the evidence as a whole, not in isolation, and ask whether it is strong enough for a rational trier of fact to find guilt beyond a reasonable doubt. Id.
III.
The Government argues that it presented sufficient evidence to enable the jury to find beyond a reasonable doubt that Boria knew he was transporting a controlled substance. The Government further asserts that the District Court improperly usurped the jury‘s function as the trier of fact.
Boria contends that his case falls within a line of our precedent finding that the Government failed to offer evidence from which a rational trier of fact could logically infer that the defendant knew a controlled substance was involved in the transaction at issue. Boria thus asserts the District Court appropriately entered a judgment of acquittal.
To establish a charge of conspiracy, the Government must show (1) a shared unity of purpose, (2) an intent to achieve a common illegal goal, and (3) an agreement to work toward that goal, which Boria knowingly joined. United States v. Mastrangelo, 172 F.3d 288, 291 (3d Cir. 1999); see also United States v. Schramm, 75 F.3d 156, 163 (3d Cir. 1996) (asserting illegality is an essential element); United States v. Kates, 508 F.2d 308, 311 (3d Cir. 1975) (requiring evidence that defendant “knowingly entered” conspiracy). These elements incorporate a requirement that Boria had knowledge of the specific illegal objective contemplated by the particular conspiracy, i.e. transporting a controlled substance.8 See United States v. Cartwright, 359 F.3d 281, 287 (3d Cir. 2004); Mastrangelo, 172 F.3d at 291. The Government must establish each element beyond a reasonable doubt. United States v. Coleman, 811 F.2d 804, 808 (3d Cir. 1987).
A conspiracy can be proven by direct or circumstantial evidence. Brodie, 403 F.3d at 134. Its existence can be inferred from evidence of related facts and circumstances from which it appears, as a reasonable and logical inference, that the activities of the participants could not have been carried on except as a result of a preconceived scheme or common understanding. Id. (citation omitted). Inferences drawn, however, must have a logical and convincing connection to the facts established-“[o]ur conspiracy case law forbids the upholding of a conviction on the basis of ... speculation.” United States v. Thomas, 114 F.3d 403, 406 (3d Cir. 1997); United States v. Casper, 956 F.2d 416, 422 (3d Cir. 1992).
B.
To sustain a conviction for conspiracy with intent to distribute a controlled substance, we have consistently required the Government to introduce drug-related evidence, considered with the surrounding circumstances, from which a rational trier of fact could logically infer that the defendant knew a controlled substance was involved in the transaction at issue. In a series of cases, this Court has been reluctant to uphold drug conspiracy convictions unless the Government introduces evidence from which the jury could infer knowledge of drugs, as opposed to some other contraband.9 See, e.g., United States v. Cooper, 567 F.2d 252, 254-55 (3d Cir. 1977); United States v. Wexler, 838 F.2d 88, 92 (3d Cir. 1988); United States v. Salmon, 944 F.2d 1106, 1114-15 (3d Cir. 1991); Thomas, 114 F.3d at 406; United States v. Idowu, 157 F.3d 265, 270 (3d Cir. 1998); Cartwright, 359 F.3d at 291. Despite the presence of otherwise suspicious circumstances, we have nevertheless required some additional piece of evidence imputing knowledge of drugs to the defendant.
In Wexler, the defendant served as a lookout for a drug transaction, but we concluded the evidence was insufficient to infer he knew drugs were involved. 838 F.2d at 91. There was no evidence: that the defendant knew what was in the truck (even though he admitted his alleged co-conspirators had previously conspired to import narcotics), of the subject matter of conversations between the defendant and alleged co-conspirators, or that the defendant had a prior relationship with the alleged co-conspirators. Id. Moreover, we determined that the inference that other co-conspirators must have trusted the defendant did not support a holding that the defendant knew drugs were involved. Id. at 91-92.
In Salmon, we again found the evidence insufficient to infer the defendant (Fitzpatrick) knew drugs were involved. 944 F.2d at 1115. Relying on our decision in Wexler, we found insufficient the evidence that Fitzpatrick conducted surveillance, possessed surveillance equipment at the time of his arrest, and had conversations with coconspirators. Id. at 1114. The Government then argued additional facts distinguished Salmon, including that Fitzpatrick opened a car‘s trunk and an alleged coconspirator approached the trunk, returning with a package of drugs. Id. We observed, however, there was no evidence the drugs were ever in the car and, even if they were, the drugs were wrapped in a brown paper bag and there was no evidence Fitzpatrick knew what the bag contained. Id. at 1114-15.
In Thomas, the defendant was arrested after entering a hotel room, at another‘s request, to confirm the presence of a suitcase and to leave the door open. 114 F.3d at 405. Another alleged co-conspirator, in cooperation with law enforcement, had left the suitcase, which contained drugs, in the hotel room. Id. at 404. The two alleged co-conspirators testified they did not know the defendant and had not conspired with him. Id. at 405. There was no evidence of a prior relationship between the defendant and the coconspirators, and no evidence regarding the substance of the phone calls, let alone that the defendant actually spoke with either of the alleged co-conspirators. Id. at 405-06. Thus, we concluded the evidence was not sufficient to find that the defendant knew drugs were involved. Id. at 406.
A divided panel of this Court ultimately held that “the jury could not draw a permissible inference that Idowu had knowledge of the nature of the deal,” despite clear evidence showing that he knew he was involved in an illegal transaction. Id. at 270. We concluded “the government failed to provide evidence that Idowu knew that drugs were in fact the subject matter of the transaction.” Id. We then overturned the conviction even though Idowu was a “trusted member” of the conspiracy and possessed the keys to his own car which contained the cash. Id. The dissent noted that Idowu was tacitly assigned the task of checking the informant‘s suitcase, an assignment which would not have been made unless he knew what he was looking for. Id. at 271 (Stapleton, J., dissenting). The dissent argued that this fact, in addition to the surrounding circumstances, provided sufficient evidentiary support to uphold the conviction. Id.
In Cartwright, a cooperating drug dealer set up a transaction with Jackson in a shopping center parking lot. 359 F.3d at 283-84. After the initial meeting, Jackson retreated to his car parked in another lot and returned with the drugs, accompanied by Cartwright. Id. at 284. There was no surveillance in the other parking lot. Id. Cartwright then assumed a position to serve as a lookout for the transaction. Id. Upon arrest, the police recovered a gun, a cell phone, a two-way text messaging device, and cash from Cartwright‘s person. Id. at 285. Based on this evidence, a divided panel concluded that although the evidence supported the inference that Cartwright served as a lookout, merely acting as a lookout is not sufficient to establish knowledge of drugs. Id. at 286. Further, there was no evidence of a prior relationship between Jackson and Cartwright, no evidence Cartwright was involved in prior drug transactions, and no evidence of the subject matter of communications between Jackson and Cartwright. Id. at 291. Therefore, we found the Government‘s evidence insufficient to sustain Cartwright‘s drug conspiracy conviction. Id.
Notably, none of these cases included co-conspirator statements implicating the defendant. See, e.g., Idowu, 157 F.3d at 267 (indicating co-conspirator never mentioned Idowu by name); Cooper, 567 F.2d at 255 n. 3 (noting Government introduced no co-conspirator statements). And although Wexler acknowledged co-conspirator statements, none of the statements were made to or about Wexler. See Wexler, 838 F.2d at 89. In other cases, there was no evidence of the participants in or the subject matter of coconspirator conversations. E.g., Cartwright, 359 F.3d at 291; Thomas, 114 F.3d at 405-06; Salmon, 944 F.2d at 1114.
C.
The Government contends that Boria‘s case is distinguishable from this line of cases and, instead, is analogous to two cases in which we have found the evidence sufficient to support a permissible inference that the defendants knew drugs were involved. See United States v. Reyeros, 537 F.3d 270 (3d Cir. 2008), cert. denied, 129 S. Ct. 2780 (2009); United States v. Iafelice, 978 F.2d 92 (3d Cir. 1992).
In Iafelice, an undercover DEA agent negotiated to purchase heroin from John Sinde and his brother at a hotel. 978 F.2d at 94. Agents conducting surveillance of the transaction site observed a white Cadillac, which Iafelice stipulated he owned, pull into the parking lot. Id. Iafelice then engaged in counter-surveillance movements while in the vehicle. Id. Three individuals exited the car (Iafelice, Sinde, and Thomas Finn), but only Sinde entered the transaction site; Iafelice and Finn got back into the Cadillac with Iafelice in the driver‘s seat. Id. When Sinde returned, Iafelice opened the car‘s trunk from the inside and Sinde removed a brown camera bag. Id. It was later discovered that the bag contained heroin in a clear plastic bag. Id. Sinde then returned to the hotel, met his brother inside, and waited for the undercover agent to arrive to complete the sale. Id. During the transaction, Sinde‘s brother‘s beeper went off and the number was traced back to Finn‘s phone in Iafelice‘s car. Id. The Sindes used the agent‘s mobile phone to return the call. Id. An agent watching the Cadillac saw Iafelice reach down and answer the car phone. Id. Although Iafelice was acquitted of conspiracy and convicted of possession, id. at 95, our analysis still turned on Iafelice‘s knowledge under a constructive possession theory, id. at 96.
In upholding the jury‘s verdict, we noted the surrounding circumstances, such as Iafelice‘s suspicious driving, his co-conspirators’ conduct, the fact that the trunk of the car (which contained the drugs) was opened from the inside of the car, and that during the transaction a page was sent from a phone in Iafelice‘s car to which Iafelice received a return call. Id. at 97. But we determined that the “truly distinguishing fact [was] Iafelice‘s ownership and operation of the vehicle used to transport the drugs” because it provided “the essential additional evidence necessary to distinguish” Iafelice from preceding cases finding insufficient evidence of knowledge. Id. From this additional fact, we concluded
“[c]ommon sense counsels that an owner and operator of a vehicle ... usually knows what is in that vehicle.”
In Reyeros, Juan and Jorge Reyeros negotiated with multiple individuals to import cocaine into the United States. 537 F.3d at 275-77. One of those individuals, however, was a DEA and U.S. Customs Service informant. Id. at 275. The informant‘s role was to identify an American company through which the group could import the drugs. Id. Juan told the other members of the conspiracy that his brother, Jorge, was a customs inspector and would facilitate the importation. Id. at 276. According to Juan, the shipment would have to be large enough to make it worth the risk to Jorge‘s career. Id.
We concluded that a co-conspirator‘s testimony of Juan‘s statements about Jorge‘s role and statements was sufficient to enable a rational juror to conclude beyond a reasonable doubt that Jorge knew the purpose of the conspiracy was to import cocaine. Id. at 279. We further noted additional pieces of evidence “buttress[ed] the direct statement of knowledge attributed to Jorge by his brother Juan,” such as Jorge would be likely to ask Juan the nature of the transaction because of their familial relationship, the risk to Jorge‘s career, and Jorge‘s expected receipt of a percentage of the value of any cocaine imported. Id. at 279 n. 12.
Although factually distinct from Iafelice and Reyeros, the case before us does have additional facts imputing knowledge of drugs. We reach this conclusion after considering the suspicious circumstances of this case, including that Boria met co-conspirators Diaz and Alvarado early in the morning after only a few hours of sleep, Boria did not hesitate in approaching the tractor-trailer containing the cocaine and then approaching the vehicle Alvarado was driving, Boria confirmed his identity and that Morel had sent him, and Boria intended to and began to direct Diaz and the tractor-trailer with the cocaine to a garage in North Philadelphia.
The “truly distinguishing fact,” Iafelice, 978 F.2d at 97, however, is Alvarado‘s testimony that Boria‘s role was to “take [the tractor-trailer] to a garage to unload the drugs that were in the back of the tractor-trailer.” (App. 139.) Alvarado reiterated Boria‘s role on cross-examination, testifying that, according to Morel, Boria was responsible for “taking the truck from [his] hands to take it to another garage to unload it,” (id. 144), and for “tak[ing] the driver of the tractor-trailer to finish off what needs to be done inside the truck,” (id. 145). Although Boria never accessed the trailer, this co-conspirator testimony imputes to Boria knowledge that the tractor-trailer he was assigned to direct to a garage contained drugs, which is the additional fact necessary to support the jury‘s guilty verdict. The cases in which we declined to find sufficient evidence did not include such evidence, and we find its presence in this case decisive. See also Reyeros, 537 F.3d at 279 (relying on co-conspirator testimony implicating defendant to sustain conviction).10
A rational trier of fact could infer that Boria knew drugs were involved based on Alvarado‘s testimony and the suspicious circumstances under which Boria became associated with the tractor-trailer. Boria was responsible for taking the truck for
IV.
We conclude that the evidence presented at trial could lead a rational trier of fact to find Boria knew a controlled substance was involved in the transaction, particularly his co-conspirator‘s statement regarding his role.
The District Court was required to review the record in the light most favorable to the Government and should not have overturned the verdict. Under this particularly deferential standard of review, we reverse the District Court‘s encroachment on the jury‘s role and remand this matter for further proceedings consistent with this opinion.
FISHER, Circuit Judge, concurring.
I agree with the majority that co-conspirator Alvarado‘s testimony imputes to Boria knowledge that the tractor-trailer driven by Diaz contained drugs, and thus that a rational jury could find beyond a reasonable doubt that Boria knew he was transporting a controlled substance, as opposed to some other form of contraband. I write separately for the reasons stated herein.
In reviewing a challenge to the sufficiency of the evidence, “we must view the evidence in the light most favorable to the Government and sustain the verdict if any rational juror could have found the elements of the crime beyond a reasonable doubt.” United States v. Reyeros, 537 F.3d 270, 277 (3d Cir. 2008) (quotations, alteration, and citation omitted). In doing so, we must remember that “we do not view the government‘s evidence in isolation, but rather, in conjunction and as a whole.” United States v. Brodie, 403 F.3d 123, 134 (3d Cir. 2005).
Taken as a whole, the facts stated by the majority allow a rational jury to make several alternative inferences. One rational inference is that Boria was hired by Morel to direct Diaz and the tractor-trailer to a garage and unload, not just boxes of rotten fruit, but what Boria knew to be drugs. Because we must view the evidence in the light most favorable to the Government, Reyeros, 537 F.3d at 277, the fact that alternative inferences exist is irrelevant. See United States v. Iafelice, 978 F.2d 92, 97 n. 3 (3d Cir. 1992) (“There is no requirement ... that the inference drawn by the jury be the only inference possible or that the government‘s evidence foreclose every possible innocent explanation.“). Therefore, even though the jury could have also rationally inferred, among other things, that Boria was employed to direct the tractor-trailer to a garage and unload its contents without knowing the exact nature of the load, this did not entitle the District Court to overturn the jury‘s guilty verdict.
Agreeing with the majority‘s final holding, I write this concurrence to highlight the tension between this opinion and some of our most recent case law. We have stated the standard of review in conspiracy cases to be as follows: “In order for us to sustain a defendant‘s conviction for con-
The tension lies in the different legal conclusions this Court has drawn based on differing sets of facts. The majority groups this case with Reyeros and Iafelice due to the “suspicious circumstances of this case” and, more importantly, co-conspirator Alvarado‘s testimony that Boria‘s role was to “take the tractor-trailer ... to a garage to unload the drugs that were in the back of the tractor-trailer.” (App. 139.) While I agree that the unique presence of coconspirator testimony, which is absent from this Court‘s prior decisions in this area, sufficiently imputes knowledge to Boria, I view this case to be distinguishable from Reyeros and Iafelice. In addition, I believe that the outcome of this case conflicts with the spirit of our prior decision in Idowu.
Iafelice was a possession case. Accordingly, our inquiry in Iafelice was “whether there was sufficient evidence to conclude that [the defendant] had constructive possession of the drugs, and whether he had an intent to distribute those drugs.” 978 F.2d at 96. We stated that “[c]onstructive possession exists if an individual ‘knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons.‘” Id. (quoting United States v. Blackston, 940 F.2d 877, 883 (3d Cir. 1991)). In distinguishing the case from Wexler and Salmon, we concluded that the “truly distinguishing fact” was the defendant‘s ownership and operation of the vehicle transporting the drugs: “[o]wnership and operation of the car are highly relevant facts that could reasonably have been considered by a jury in evaluating [the defendant‘s] knowledge of, and dominion and control over, the drugs.” Id. at 96-97. Boria, in contrast, was convicted of conspiracy to possess with intent to distribute, and aiding and abetting the possession with intent to distribute, cocaine. Accordingly, our focus here is not whether Boria had “dominion or control” over the drugs, but rather whether Boria “entered into an agreement and knew that the agreement had the specific unlawful pur-
Although a conspiracy case, Reyeros is also distinct. Like the instant case, our holding in Reyeros relied primarily on co-conspirator testimony. 537 F.3d at 279. However, as the majority acknowledges in footnote 10, the Reyeros coconspirator testified to a statement allegedly made by the defendant himself, whereas here Alvarado only testified to his own understanding of Boria‘s role in the conspiracy. Id. Furthermore, the Reyeros court cited additional evidence from which the jury could have reasonably inferred that the defendant had knowledge of the subject matter of the transaction: the defendant had a familial relationship with a co-conspirator and there was evidence that the defendant would be paid a percentage of the value of the cocaine imported. Id. at 279 n. 12. The Government presented no analogous evidence against Boria.
Of course, the fact that Iafelice and Reyeros are distinguishable by no means invalidates the majority‘s holding, with which I agree. The majority cites additional circumstantial evidence not present in Iafelice or Reyeros, namely, Boria‘s suspicious behavior in the early morning hours of February 6, 2007, that I believe enables the Government to make its case.
Our prior decision in Idowu creates an even greater incongruity. Although we held in Idowu that the evidence was insufficient to show that the defendant knew that the subject matter of the transaction was a controlled substance, 157 F.3d at 270, it seems that the Government‘s case against the Idowu defendant was altogether stronger than the Government‘s case against Boria here: unlike Boria, the Idowu defendant had a preexisting relationship with the co-conspirator; drove the co-conspirator to the transaction; was present in the vehicle when the co-conspirator invited the informant to enter the car to discuss the transaction (the informant declined); counted the money for the transaction; carried the money for the transaction in his bag; and searched the informant‘s suitcase for the contraband, remarking, “They didn‘t pack this thing.” Id. at 267-68. Boria, in contrast, had thus far only begun to direct a tractor-trailer to a garage, where he would presumably unload the trailer, when he was apprehended. Therefore, although the different facts clearly allow for different conclusions, I view Idowu and this opinion to be, in a broader sense, incompatible.12
In summary, I agree with the majority that, viewing the evidence in the light most favorable to the Government, co-conspirator Alvarado‘s testimony allows a rational jury to find beyond a reasonable doubt that Boria knew he was transporting a controlled substance, as opposed to some other form of contraband. I write sepa-