OPINION OF THE COURT
This is аn appeal by Melvin Thomas from a judgment in a criminal case following a jury verdict of guilty on the charge of conspiracy to possess cocaine with intent to distribute, 21 U.S.C.
I.
On the morning of February 10,1995, the United States Customs Service at the Cyril E. King airport on St. Thomas seized twenty-four kilograms of cocaine from a suitcase checked to Atlanta, Georgia. The officials identified the owner of the bag as Jennifer Lynch, whose plane had already departed for Atlanta. Customs officials on St. Thomas notified officials in Atlanta, and they arrested Lynch pursuant to a warrant when she arrived there. Lynch agreed to cooperate. She informed the agents that one Allan Petersen had directed her to take the suitcase carrying the cocaine to Atlanta, check into a room at the Atlanta Airport Days Inn, call him at a Virgin Islands telephone number, leave the bag with the cocaine in the room, return the key to the front desk in an envelope for "Melvin Smith" or "Cousin Melvin Smith," leave the Days Inn, check into another hotel for the night, and return to St. Thomas the follоwing day.
Along with agents, Lynch checked into room 510 of the Airport Days Inn. Monitored by the agents, Lynch placed a phone call to the designated telephone number. She informed the agents that she had spoken to Petersen and givеn him the hotel room number. An envelope containing the room key was then left at the front desk for "Cousin Melvin Smith." Customs officials also left an empty suitcase in room 510 and set up surveillance directly across the hall in room 509.
Thomas was tried in the District Court of the Virgin Islands, together with Petersen. Lynch, who had pled guilty to the conspiracy count prior to triаl, testified, on behalf of the government, that Petersen had offered to pay her to take the cocaine to Atlanta, relating the facts described above. She also testified that she did not know Thomas, and had not conspirеd with him to possess cocaine with intent to distribute. Petersen took the stand in his own defense. He too testified that he did not know Thomas, and that he had not conspired with him to possess cocaine with intent to distribute.
Thomas then took the stand, and testified as follows. On the morning of his arrest, he received a phone call from "Cliff," whom he did not know. Cliff informed Thomas that he had obtained Thomas' telephone number from a mutual friend. Cliff asked Thomas if he would do him a favor, and stated that he would call later that day. Later that day, Thomas received a call from his home on his pager. He returned the call to his home and was advised that Cliff was trying to reach him. He told the party answering to have Cliff contact him on his cеllular phone. Shortly thereafter, his testimony continued, he received a call from Cliff who asked him to go to the Airport Days Inn, ask the front desk clerk for a key left for "Cousin Melvin Smith," go to the room, open the door, close the doоr without locking it, and return the key to the front desk. Finally, Thomas testified that he did not know either Lynch or Petersen, that he had not conspired with them to possess cocaine
II.
In reviewing Thomas' contention that the evidence presented at trial was insufficient to sustain his conspiracy conviction, we must determine whether "there is substantial evidence, when viewed in the light most favorable tо the government, to support the jury's verdict."
Government of the Virgin Islands v. Isaac,
There can be no doubt that, when Thomas pursued his errand at the Days Inn, he knew that he was somehow involved in an illicit activity. More, however, is required to uphold a criminal conviction for conspiracy. Specifically, one of the elements that must be proven by the government beyond a reasonable doubt in a conspiracy case is that the "alleged conspirators shared a "unity of purpose,' the intent to achieve a common goal, and an agreement to wоrk together toward the goal."
United States v. Wexler,
The government's case depends upon the drawing of an inference from the fact and the timing of the calls made from Petersen's phone that Thomas in fact spoke to Petersen several times on February 10,1995 and was told that drugs were in the bag at the Days Inn. Even assuming that it is permissible to infer from the evidence that Petersen was "Cliff" and that Thomas spoke to him, which is doubtful, there was no evidence concerning the substance of the phone calls. It is, therefore, speculative to conclude that Thomas knew that drugs were involved. Our conspiracy case law forbids the upholding of a conviction on the basis of such speculation.
In
Wexler, supra,
for example, where we reversed the defendant Wexler's conviction for conspiracy to distribute hashish, we held that the "inferences rising "from keeping bad company' are not enough to convict a defendant for conspiracy."
Id.
at 91
(quoting United States v. Cooper,
We explained that:
[i]t is more likely than not that Wexler suspected, if not actually knew, that some form of contraband was involved in the elaborate secretive arrangements for transport in which hе participated. But these permissible inferences do not support a holding that the government met its burden to prove beyond a reasonable doubt that Wexler knew this was a conspiracy to transport hashish or even another controlled substance. The evidence is just as consistent, for example, with a conspiracy to transport stolen goods, an entirely different crime.
Id. at 92/
Similarly, in
United States v. Terselich,
Based on this case law, we conclude that, as there is no evidence from which a jury could permissibly infer that Thomas knew that the object of the conspiracy was to possess cocaine with the intеnt to distribute, the evidence cannot support Thomas' conspiracy conviction. We will, therefore, reverse the judgment and direct the district court to enter a judgment of acquittal.
Notes
Thomas was tried on a four-count indictment that аlso included charges of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1); attempted importation of cocaine, 18 U.S.C. § 952(a); and carrying a firearm during a drug trafficking crime, 18 U.S.C. § 924(c)(1). However, he was acquitted of all but the conspirаcy count.
In view of this disposition, we need not address the other points raised on appeal. Principally, we do not reach Thomas' contention that the court erred when it denied Thomas' request to instruct the jury on charaсter evidence. Thomas has also challenged the refusal of the district court to exclude from evidence the telephone number retrieved from the pager that he had on his person at the time of his arrest, alleging that it shоuld have been suppressed because of an unlawful search and seizure. We believe that the seizure falls within an exception to the warrant requirement as a lawful search incident to arrest. Again, we need not formally decide that issue because, even with the inclusion of that material, the evidence is insufficient to sustain the conviction.