Appellant was indicted on two counts charging that he aided and abetted in the importation of a controlled substanсe in violation of 21 U.S.C. § 952(a) and that he conspired to that end in violation of 21 U.S.C. § 963. The jury acquitted him of the substantive charge but convicted him of conspiracy.
The story of his conviction began May 16, 1977, when United States Customs officials at San Juan Internationаl Airport discovered a quantity of cocaine concealed in the false-bottomed shoes of a passenger arriving from Colombia, Milagros Munoz. Ms. Munoz, a known prostitute, gave a statement to a special agent of the Drug Enforсement Administration, Agent Rivera, on the basis of which he arrested the appellant. Appellant, in a statement to Rivera, admitted that he had travelled in Colombia with Munoz between May 11 and May 16, 1977, when she returned to Puerto Rico. He remained in South America until May 20. He denied having any knowledge of the cocaine. The additional evidence relating to appellant was that he is very overweight, that he had lost his job just before going to Colombia, and that he was a relatively poor person and not a profligate spender. Munoz apparently dropped out of sight and did not appear at triаl, 1 so the substance of her statement was not admitted. 2 Appellant presented no evidence.
Appellant’s primary issue on appeal is that the district court erroneously denied his motion for judgment of acquittal аt the close of the government’s case. In considering a claim that there was not sufficient evidence, we must determine whether the evidence presented at trial, evaluated in the light most favorable to the government, was enough to permit the jury to decide that each element of the offense was proven beyond a reasonable doubt.
United States v. Gabriner,
As the court instructed the jury, the gist of conspiracy is an “agreement to disobey or to disregard the law.” Moreover, “a conviction cannot be sustained unless the Government establishes beyond a reasonable doubt that the defendant had the specific intent to violate the substantive statute.”
United States v. Cangiano,
This case is closely analogous to
United States v. Francomano,
*684 The inadequaсy of the government’s case is illustrated by the prosecutor’s self-contradictory, illogical closing argument. He argued with nо supporting evidence, that appellant, controlling the venture, must have paid not only for his own trip but for Munoz’ trip and for the cocaine as well. On the other hand, lie argued that appellant, having just been fired from a low paying job could not have afforded to take a vacation in Colombia. Unlike the prosecutor, we fail to see any relevance whatsoever in the facts that Munoz was a prostitute and appellant was overweight. He argued that since shе was a prostitute she would not go to Colombia except for profit. As it happened she did go for profit, but that doеs not help link appellant to the crime since there was no evidence that he paid for her trip or helped her in any way to further her criminal venture. The government argued that because appellant was overweight Munoz would nоt have gone with him on a pleasure trip. Again, aside from the facts that it appears she had other motives for the trip and not everyone shares the prosecutor’s prejudice against fat people, her motives are not evidence of a specific criminal intent on his part. By the government’s theory, every physically unprepossessing pеrson caught in the company of a prostitute would be chargeable for any crimes the prostitute might thereafter сommit — a sort of guilt by unlikely association.
It is true that the jurors may draw legitimate inferences from the evidence but that does nоt mean that they have license to let their imaginations run rampant along the lines suggested by the prosecutor in this case. The government must introduce some evidence to link even overweight travelling companions of known smugglers to criminal activity. A defendant, we must remember, is presumed innocent and bears no burden of justifying otherwise legal activity. Because we dеcide that there was not sufficient evidence to support a conviction, we need not address the other issues rаised on appeal.
Reversed and remanded with directions to enter a judgment of acquittal.
Notes
. As our discussion will show, this may well bе a case where, because the government lost its key witness, it should have considered dropping the case.
. Nonetheless, the prosecutor more than once referred to her statement as “implicating” appellant. The court correctly sustained an objection to that characterization the first time the prosecutor used it.