UNITED STATES of America, Plaintiff-Appellee, v. Roberto MIERES-BORGES and Osvaldo Becerra-Flores, Defendants-Appellants.
No. 89-5643.
United States Court of Appeals, Eleventh Circuit.
Dec. 18, 1990.
Simon T. Steckel, Coral Gables, Fla., Mark King Leban, Miami, Fla., for Becerra-Flores.
William C. Healy, Linda Collins-Hertz and Dawn Bowen, Asst. U.S. Attys., Miami, Fla., for U.S.
Before FAY and JOHNSON, Circuit Judges, and ALLGOOD*, Senior District Judge.
FAY, Circuit Judge:
Defendants-appellants Roberto Mieres-Borges and Osvaldo Becerra-Flores appeal their convictions in federal district court for conspiracy to possess with intent to distribute in excess of five kilograms of cocaine and for possession with intent to distribute in excess of five kilograms of cocaine. Both appellants challenge the sufficiency of the evidence to support the jury verdicts against them. Because we find that the evidence presented at trial was insufficient to establish the guilt of Appellant Osvaldo Becerra-Flores beyond a reasonable doubt, we REVERSE his conviction
* Honorable Clarence W. Allgood, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation.
Procedural History
Appellants Roberto Mieres-Borges and Osvaldo Becerra-Flores were indicted by a federal grand jury on two counts. Count one charged appellants with possession with intent to distribute in excess of five kilograms of cocaine in violation of
Factual History
On the evening of November 7, 1988, a United States Customs Service sensor aircraft2 was launched from Homestead Air Force Base in response to information that an air drop of narcotics was to take place in the Cay Sal Bank area.3 While conducting a radar patrol of the area, the pilot, David Sherry, responded to a specific report of an aircraft going over Cuba and flying very low to the ground. Arriving at an area just south of Cay Sal, at approximately twenty minutes before dusk, Sherry saw an aircraft circling over a vessel at a very low altitude and dropping bales. The boat was circling in the same manner as the plane and was picking up the bales as they were dropped. Sherry counted twenty bales that were dropped from the plane into the water.
Faced with the choice of whether to pursue the boat or the plane, Sherry followed the aircraft as it travelled west along Cuban airspace. Fearful of an encounter with a Cuban fighter plane, Sherry eventually abandoned his pursuit and returned to the Cay Sal Bank area to look for the vessel. When he returned after 40 minutes, the vessel could not be relocated.
Sherry described the boat as white, 40 to 50 feet in length, with tuna towers and a number of antennas. He admitted at trial, however, that there were numerous boats
A second Customs plane was launched to search for the boat at six a.m. the following morning, approximately twelve hours after Sherry first spotted the vessel. When he arrived at Cay Sal, the pilot, William Radtke, saw only one boat which resembled the vessel described by Sherry. Radtke described the boat as a 30 to 40 foot sportfishing vessel with a tuna tower, sitting approximately ten feet off of the south beach of Cay Sal. The name of the boat was the “Wilfred” from Miami, Florida.
Radtke left the boat to go to the drop point from the night before and returned to Cay Sal when he didn‘t see any bales or any other vessels. As he approached Cay Sal, he noticed the Wilfred was underway and heading away from the island with a cover5 over the back of the transom hiding the name of the boat. The boat was headed toward Cuba, travelling at 30 knots.6 Radtke then flew over Cay Sal and saw numerous rectangular bales wrapped in white plastic and stacked on the high water mark of the beach.7 He described a set of roundtrip like footprints leading from the water to where the bales were stacked and back to the water again. The footprints leading to and from the water were in the area where the Wilfred was originally sighted by Radtke.
Radtke admitted at trial that there was a discrepancy between the size of the Wilfred, which he described as 30 to 40 feet in length, and the size of the vessel spotted by Sherry the evening before, which was described as 40 to 50 feet in length. Although Radtke testified that he saw no other boats within a 30-mile radius of the Cay Sal beach where the Wilfred was spotted, he stated that he was conducting only a visual search of the area without the benefit of radar. In addition, Radtke admitted that a boat like the Wilfred could have travelled 360 miles in the twelve hours between the time that the unidentified boat was spotted by Sherry picking up bales, and the time that the Wilfred was first identified off of Cay Sal. Radtke never saw any contraband aboard the Wilfred.
Radtke radioed Chief Quartermaster Rafael Lewis, of the United States Coast Guard, to intercept the Wilfred. Lewis spotted the Wilfred between nine and nine-thirty a.m. heading toward Cuban territorial waters at a speed of ten to fifteen knots.8 Lewis contacted the Wilfred by radio and asked a series of standard preboarding questions. Lewis first asked what was the Wilfred‘s latest port of call. The captain of the Wilfred9 responded three times that they had been at Cayo Blanco.10 The fourth time11 the captain changed his answer and stated that he had departed Key Largo, Florida. When Lewis asked what the Wilfred‘s next port of call was, the captain stated that they were headed back to Key Largo. Finally, when Lewis inquired as to the purpose of the
A three to four hour inspection of the Wilfred revealed no contraband aboard the vessel. The Wilfred had fishing equipment on board, although the equipment was not rigged. The boat‘s outriggers were also not rigged. While there were no freshly caught fish on board, there was ice in the fishing box, as well as two unopened containers of bait. There was scuba gear on board, and there were fishing rigs out on deck, which were not baited. A temporary fishing license was found on the vessel, which allowed the Wilfred to fish in American waters.13 The Wilfred‘s captain stated that they were fishing for dolphin.14
Sufficiency of the evidence
Whether there was sufficient evidence to support a conviction is a question of law subject to de novo review by this Court. Thus, we owe no special deference to findings of the district court. United States v. Kelly, 888 F.2d 732, 739-40 (11th Cir. 1989) (citing United States v. Pareja, 876 F.2d 1567, 1568 (11th Cir. 1989)). In reviewing the sufficiency of the evidence to support a jury verdict, we must view the evidence in the light most favorable to the government. United States v. Chotas, 913 F.2d 897, 898 (11th Cir. 1990) (per curiam) (citations omitted). Thus, all reasonable inferences and credibility choices are made in the government‘s favor. United States v. Kelly, 888 F.2d at 740 (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Gregory, 730 F.2d 692, 700 (11th Cir. 1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985)).
Accepting all reasonable inferences which support the verdict, we will affirm the conviction “if a reasonable trier of fact could conclude that the evidence establishes guilt beyond a reasonable doubt.‘” United States v. Pritchett, 908 F.2d 816, 820 (11th Cir. 1990) (citations omitted); United States v. Chotas, 913 F.2d at 898 (citing United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff‘d on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)).15 It is not necessary “for the government to disprove every reasonable hypothesis of innocence, as the jury is ‘free to choose among reasonable constructions of the evidence.‘” United States v. Jones, 913 F.2d 1552, 1557 (11th Cir. 1990) (citing United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983) (quoting United States v. Bell, 678 F.2d at 549)). All that is necessary is that a reasonable factfinder could conclude that the evidence establishes guilt beyond a reasonable doubt. United States v. Kelly, 888 F.2d at 740 (citations omitted).
Therefore, we cannot reverse a conviction for insufficiency of the evidence unless we conclude that no reasonable factfinder could find proof of guilt beyond a reasonable doubt. United States v. Jones, 913 F.2d at 1557. “If there is a lack of substantial evidence, viewed in the Government‘s favor, from which a reasonable factfinder could find guilt beyond a reasonable doubt, the conviction must be reversed.” United States v. Kelly, 888 F.2d at 740 (citations omitted).
The test for sufficiency of evidence is identical regardless of whether the evi
Osvaldo Becerra-Flores
The only evidence presented at trial against Appellant Becerra-Flores was circumstantial. In order to find Becerra-Flores guilty, therefore, a reasonable factfinder must conclude beyond a reasonable doubt, drawing reasonable inferences from such circumstantial evidence, that the appellant did possess and conspire to possess in excess of five kilograms of cocaine with the intent to distribute. We believe that the evidence presented at trial is insufficient to allow a reasonable factfinder to conclude that Becerra-Flores was guilty beyond a reasonable doubt.
Becerra-Flores was charged both with conspiracy and with the substantive crime of possession. Because evidence of possession would also serve as circumstantial evidence of the existence of a conspiratorial agreement to possess cocaine with the intent to distribute, the facts here must be analyzed with respect to the elements of both crimes.
In order to support a conviction for conspiracy, the government must prove “‘that an agreement existed between two or more people to commit a crime, that the accused had knowledge of at least the essential objectives of that agreement, and that armed with that knowledge, he voluntarily joined or participated in the illegal venture.‘” United States v. Battle, 892 F.2d 992, 999 (11th Cir. 1990) (quoting United States v. Pantoja-Soto, 739 F.2d 1520, 1525 (11th Cir. 1984), cert. denied, 470 U.S. 1008, 105 S.Ct. 1369, 84 L.Ed.2d 389 (1985)). The existence of a conspiracy may be established through direct or circumstantial evidence. United States v. Montes-Cardenas, 746 F.2d 771, 778 (11th Cir. 1984) (citations omitted). Thus, “direct evidence of the elements of a conspiracy is not required. A defendant‘s knowing participation in a conspiracy may be established through proof of surrounding circumstances such as acts committed by the defendant which furthered the purpose of the conspiracy.” United States v. Bain, 736 F.2d 1480, 1485 (11th Cir. 1984), cert. denied, 469 U.S. 937, 105 S.Ct. 340, 83 L.Ed.2d 275 (1984) (citation omitted).
Possession of a controlled substance with intent to distribute may also be shown by either direct or circumstantial evidence. United States v. Pantoja-Soto, 739 F.2d at 1525 (citing United States v. Bustos-Guzman, 685 F.2d 1278, 1280 (11th Cir. 1982) (per curiam)). Furthermore, possession may either be actual or constructive. Constructive possession will be found where there is a “‘knowing exercise of or the knowing power or right to exercise dominion and control over the substance.‘” United States v. Poole, 878 F.2d 1389, 1392 (11th Cir. 1989) (quoting United States v. Knight, 705 F.2d 432, 433 (11th Cir. 1983)). Even constructive possession need not be exclusive, but may be shown circumstantially through evidence of ownership, dominion, or control over the premises on which the substance is located. Id. (citations omitted). “[M]ere presence in the area of contraband or awareness of its location is not sufficient to establish possession.” United States v. Maspero, 496 F.2d 1354, 1359 (5th Cir. 1974).16
We believe that the evidence presented at trial was insufficient to allow a reasonable factfinder to conclude beyond a reasonable doubt that Becerra-Flores was part of a conspiratorial agreement to possess cocaine with the intent to distribute, or that Becerra-Flores did in fact possess cocaine with the intent to distribute. Most
Similarly, we believe that the government failed to establish, by and through the evidence presented against Becerra-Flores, that he did in fact possess cocaine with the intent to distribute. It is without question that Becerra-Flores was never shown to be in actual possession of any of the bales of cocaine discovered on the beach at Cay Sal. Constructive possession was also never established by the government at trial. It is simply not clear beyond a reasonable doubt that Becerra-Flores had a knowing power or right to exercise dominion and control over the bales of cocaine. Becerra-Flores was never seen on the beach with the bales of cocaine; in fact, none of the defendants aboard the Wilfred were seen with the cocaine. No evidence was presented which showed that Becerra-Flores or any other defendant ever left the Wilfred and went ashore on Cay Sal. Further, none of the defendants was shown to evince any dominion or control over the beach on which the cocaine was found. There was no evidence of any attempt to guard the beach or to prevent others from going ashore.
This circuit has declared that “[c]onspiracy implies much more than physical proximity to purported coconspirators; possession entails more than physical proximity to the controlled substance.” United States v. Pantoja-Soto, 739 F.2d at 1526. Where, as here, the government presents no evidence of the existence of a conspiratorial agreement and no evidence that a defendant did in fact possess a controlled substance with the intent to distribute, it has not met the burden of proof necessary to convict on charges of conspiracy and possession.
We recognize that the evidence presented at trial goes a long way toward establishing the defendants’ presence in the area of contraband and their flight from that area when approached by law enforcement officials. We stress, however, that this alone is insufficient to support a finding of guilt beyond a reasonable doubt. It is well beyond question that mere physical presence at the scene of criminal activity is insufficient to support a finding of guilt. United States v. Jenkins, 779 F.2d 606, 616 (11th Cir. 1986); United States v. Pantoja-Soto, 739 F.2d at 1526. It is also well established that “even presence coupled with flight, without more, does not establish participation in a conspiracy.” See also United States v. Castro, 723 F.2d 1527, 1534 (11th Cir. 1984); United States v. DeSimone, 660 F.2d at 537; United States v. Lopez-Ortiz, 492 F.2d 109, 115 (5th Cir.), cert. denied, 419 U.S. 1052, 95 S.Ct. 630, 42 L.Ed.2d 647 (1974). Presence and flight must be considered along with other evidence, and the reviewing court should consider whether, under the totality of the circumstances, there is sufficient evidence to support a jury verdict when the facts are viewed in the light most favorable to the government. United States v. Lopez-Llerena, 721 F.2d 311, 312 (11th Cir. 1983) (denial of rehearing), cert. denied, 465 U.S. 1103, 104 S.Ct. 1602, 80 L.Ed.2d 132 (1984) (citing United States v. Pintado, 715 F.2d 1501, 1503 (11th Cir. 1983); United States v. Blasco, 702 F.2d 1315, 1331-32 (11th Cir.), cert. denied, 464 U.S. 914, 104 S.Ct. 275, 276, 78 L.Ed.2d 256 (1983)).
We do not believe that sufficient evidence was presented by the government which, in addition to presence and flight, would allow a reasonable factfinder to conclude that Becerra-Flores was guilty beyond a reasonable doubt. The initial description of the vessel spotted picking up bales, given by Customs Service pilot David Sherry, provided only the very general picture of a sportfishing vessel with a tuna tower, antennas and outriggers. In the waters off of the Florida Keys, the Bahamas, and the island of Cuba, however, that general picture would match the characteristics of literally hundreds of boats. When the Wilfred was identified by Customs Service pilot William Radtke twelve hours later off of Cay Sal Island, it failed to match even the general description given by Sherry the night before. While the vessel spotted by Sherry was described as 40 to 50 feet in length, the Wilfred was later described by Radtke as only 30 to 40 feet in length.
Because Sherry was unable to ascertain the name of the vessel he saw, it is in no way clear that the Wilfred was the boat described by Sherry. Although Radtke stated that the Wilfred was the only boat he saw within a thirty mile radius, any number of boats could have moved in and out of the Cay Sal area in the twelve hours between Sherry‘s initial sighting and Radtke‘s identification of the Wilfred. Furthermore, Radtke only conducted a visual search of the Cay Sal area on the morning he spotted the Wilfred. A radar search may have revealed other vessels outside of that thirty-mile radius. Finally, while Sherry testified that he counted twenty bales being dropped from the plane into the water, only eleven bales were recovered from the beach on Cay Sal. The fact that nine bales of cocaine were unaccounted for would seem to indicate that another vessel either removed some bales from the beach, or that the vessel which picked up the bales did not deposit all of them on the beach in the first instance. Under either scenario, it becomes even harder to establish a direct connection between the Wilfred and the bales of cocaine.
The chain of events on the morning after Sherry‘s initial sighting of the vessel taken together present a very suspicious scenario. We do not agree, however, that this suspicious set of facts is sufficient to establish the guilt of Becerra-Flores beyond a reasonable doubt. When Radtke returned to the beach where he first saw the Wilfred, he noticed that the vessel was underway and heading away from the island with a cover over the back of the transom hiding the name of the boat. Flying over the island, Radtke for the first time noticed bales stacked on the high water mark of the beach, as well as roundtrip footprints leading from the area in the water where the Wilfred had been to the bales and back to the water.
These facts, viewed in the light most favorable to the government, go a long way toward establishing both the Wilfred‘s presence in an area where contraband was found, as well as its flight from that area. As we have noted, however, other factors have been necessary in order to supplement the inference of guilt provided by presence. See e.g., United States v. Bergouignan, 764 F.2d 1503, 1509 (11th Cir. 1985) (where, in addition to the defendant‘s presence next to a vessel containing marijuana, evidence showed that traces of marijuana residue were found on his clothing), cert. denied, 484 U.S. 1044, 108 S.Ct. 778, 98 L.Ed.2d 864 (1988). The proximity of the Wilfred to the bales of cocaine stacked on the high water mark of Cay Sal Island, therefore, is insufficient as a matter of law to allow a finding of guilt beyond a reasonable doubt.17
We recognize the existence of other facts, in addition to presence and flight, which implicate the defendants’ guilt. However, the government did not present enough additional evidence against Becerra-Flores to support a guilty verdict. When questioned by the Coast Guard as to their latest port of call, the captain of the Wilfred changed his answer after being asked to repeat it several times. In addition, while the captain stated that the purpose of the Wilfred‘s trip was to fish for dolphin, he had difficulty pointing to a particular position on a nautical chart where the vessel had been fishing. While this may constitute suspicious behavior, it does not rise to the level necessary to find a conspiracy to possess cocaine, or possession of cocaine, beyond a reasonable doubt.
Once the Coast Guard intercepted the Wilfred, a three to four hour inspection of the vessel revealed no contraband aboard. The Wilfred had fishing equipment and scuba gear on board. Although the fishing equipment was not rigged and there were no freshly caught fish on board, there was ice in the fishing box, which contained two unopened boxes of bait. Compare United States v. Ceballos, 706 F.2d 1198, 1202 (11th Cir. 1983) (where shrimping vessel carrying marijuana lacked any rigging for shrimping, this negated any inference that crew was unaware of marijuana on board and believed the purpose of their trip was to fish); United States v. Villegas-Rojas, 715 F.2d 564, 565-66 (11th Cir. 1983) (where, in addition to the defendant‘s presence on board a vessel carrying marijuana, evidence showed that the vessel flew no flag, had no home port and had hidden its real name, had attempted to elude the Coast Guard, and had no shrimp, ice or fishing gear on board). Once again, the fact that the fishing equipment on board the Wilfred was unrigged and the boxes of bait were unopened may give rise to an inference that the Wilfred was not, in fact, fishing. This inference will not, however, support a conclusion beyond a reasonable doubt that the persons aboard the Wilfred were part of a conspiracy to possess cocaine with intent to distribute, or that they in fact possessed cocaine with intent to distribute.
Evaluating the sufficiency of evidence to support a criminal conviction often presents the reviewing court with the difficult job of drawing a clear line where none truly exists. The standard of proof which the government must meet, however, is a stringent one, and based upon the evidence presented at trial, we find that the government has not met this standard. Therefore, because we find that the evidence presented was insufficient to establish the guilt of Osvaldo Becerra-Flores beyond a reasonable doubt, we REVERSE his conviction on both counts.
Roberto Mieres-Borges
Appellant Roberto Mieres-Borges also challenges the sufficiency of the evidence to support his conviction. After closing arguments in the trial of Osvaldo Becerra-Flores, the jury returned a sealed verdict with respect to Becerra-Flores. Additional evidence was then presented against Appellant Roberto Mieres-Borges, which the jury considered in conjunction with the evidence already presented against Becerra-Flores. The jury subsequently found Mieres-Borges guilty on both counts charged in the indictment.
The additional evidence presented against Mieres-Borges consisted of a statement made by Mieres-Borges to a criminal investigator for the United States Customs Service. Mieres-Borges stated that the
The statement made by Mieres-Borges directly links him to the cocaine found on the beach at Cay Sal, a link which was absent in the evidence presented against Becerra-Flores. In light of this additional evidence, we find that a reasonable factfinder could conclude that Mieres-Borges was guilty beyond a reasonable doubt of conspiracy to possess cocaine with intent to distribute and of possession of cocaine with intent to distribute.
Mieres-Borges argues, in the alternative, that his conviction must be overturned because the government failed to establish that the weight of the cocaine seized by the law enforcement authorities exceeded five kilograms as charged in the indictment.18 This argument is without merit. The statute under which Mieres-Borges was convicted,
Appellant Mieres-Borges challenges the district court‘s determination of his base offense level under the United States Sentencing Guidelines. Mieres-Borges first maintains that the district court erred in allowing the government to establish the weight of the cocaine for sentencing purposes under a preponderance of the evidence standard. Mieres-Borges asserts that instead, evidence beyond a reasonable doubt was necessary in order to impose sentence for possession of a particular amount of cocaine. We disagree.
The district court found, based upon the weight of the cocaine as established at trial, that Mieres-Borges should be sentenced under a base offense level of 36.21 The appellant argues that a base offense level of 32 was mandated22 because the government failed to establish the weight of the cocaine necessary for application of the higher level. Because we find that the district court need only have applied a preponderance of the evidence standard in determining the weight of the cocaine, we reject appellant‘s reasoning.
“The Supreme Court has held that the prosecution need not “‘prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment.‘” United States v. Cross, 916 F.2d 622, 623 (11th Cir. 1990) (quoting McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67 (1986) (citations omitted)). “In determining which facts must be proven beyond a reasonable doubt, the legislature‘s definition of the elements of an offense controls.” United States v. Cross, 916 F.2d at 623; McMillan v. Pennsylvania, 477 U.S. at 85, 106 S.Ct. at 2415-16. “Thus, the prosecution is only required to prove beyond a reasonable doubt ‘all of the elements included in the definition of the offense of which the defendant is charged.‘” United States v. Cross, 916 F.2d at 623 (quoting McMillan v. Pennsylvania, 477 U.S. at 84, 106 S.Ct. at 2415, (citation omitted) (emphasis added in McMillan). District courts are required by due process to make factual determinations at sentencing only by a preponderance of the evidence. United States v. Ignacio Munio, 909 F.2d 436, 439 (11th Cir. 1990); United States v. Alston, 895 F.2d 1362, 1372-73 (11th Cir. 1990).
Again, the statute under which Mieres-Borges was convicted does not include weight or quantity as an element of the offense. Therefore, the district court was only required to determine the weight of the cocaine by a preponderance of the evidence for purposes of sentencing. The district court judge found that the weight of the cocaine as established at trial was over three times that required for application of a base offense level of 36.23 This weight was established through the testimony of a Drug Enforcement Administration agent, who testified that he lifted six or seven of the eleven bales and found them to weigh at least five kilograms each. In addition, evidence of a logbook entry from the drug storage warehouse listed the weight of the cocaine seized as 605 pounds, or 275 kilograms. We believe that this evidence was sufficient to establish, by a preponderance of the evidence, the weight of the cocaine. Accordingly, we AFFIRM the district court‘s application of a base offense level of 36 to Roberto Mieres-Borges.
Finally, Mieres-Borges challenges the refusal of the district court to allow a two level reduction in his base offense level based on his minor role in the offense. We have held that a district court‘s determina
Conclusion
For the above reasons, we hereby REVERSE the conviction of Appellant Osvaldo Becerra-Flores on both counts. We SUSTAIN the conviction of Appellant Roberto Mieres-Borges on both counts and AFFIRM the district court‘s application of the United States Sentencing Guidelines to Mieres-Borges.
JOHNSON, Circuit Judge, dissenting:
I dissent. Though I agree with the majority that the evidence was insufficient to justify convicting defendant Becerra-Flores, I cannot agree that the addition of Mieres-Borges’ post-arrest exculpatory statement tips the scales so far in favor of conviction that we can conclude that the jury could reasonably find Mieres-Borges guilty beyond a reasonable doubt.
“Reasonable doubt” is defined “in terms of the kind of doubt that would make a person hesitate to act.” Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 138, 99 L.Ed. 150 (1954). Our Circuit has defined the exacting standard of “beyond a reasonable doubt” as “‘proof of a ‘convincing character’ sufficient to justify reliance ‘without hesitation’ in the conduct of one‘s ‘most important affairs.‘” United States v. Jones, 663 F.2d 567, 571 (5th Cir. Unit B 1981) (quoting jury charge approved of in that case). The prosecution has the burden of proving “beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.” Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977). The crime of possession with intent to distribute with which Mieres-Borges was charged requires that the prosecution show, by proof of such convincing character that it justifies the jury‘s reliance upon it without hesitation, three essential elements: “(1) knowing (2) possession of a controlled substance (3) with intent to distribute it.” United States v. Vera, 701 F.2d 1349, 1357 (11th Cir. 1983); see also
Our standard for reviewing the sufficiency of the evidence requires us to reverse the conviction if “there is a lack of substantial evidence . . . from which a reasonable factfinder could find guilt [without hesitation].” United States v. Kelly, 888 F.2d 732, 740 (11th Cir.1989). While the factfinder need not exclude every reasonable hypothesis of innocence, the evidence must be declared insufficient “where such evidence is wholly consistent with an obvious and reasonable innocent interpretation.” Id. Rather than demonstrating guilt, Mieres-Borges’ exculpatory statement more sensibly implicates an innocent explanation of what the defendants were doing in proximity to the cocaine. The defendants were in the area; an unfamiliar plane flew overhead dropping packages; they fished them out of the water and examined them; they decided to get rid of them by stacking them on the beach.
Mieres-Borges’ explanation goes a long way toward explaining some of the peculiarities of this case. First, on the evening of November 7th the customs pilot ob
The government did not meet its burden in presenting evidence on each element of the charges which would allow a jury to convict beyond a reasonable doubt or “without hesitation.” The exculpatory statement did in fact link Mieres-Borges to the cocaine, as the majority points out, thus showing he had been in possession of it. But the government never put on any direct evidence showing intent to distribute. The crime of possession with intent to distribute may be proven through circumstantial evidence. Vera, 701 F.2d at 1357. But here, where there is a reasonable and innocent explanation of the circumstances, to infer intent is simply too long a leap. This is a leap which surely cannot be made “without hesitation.” Likewise, the evidence of a conspiracy was totally circumstantial. Though proof of conspiracy by circumstantial evidence is also permissible under Vera, and many other cases, it is a long leap to conclude that there existed an agreement between the three defendants and that Mieres-Borges knew the essential objectives of the conspiracy. In sum, Mieres-Borges’ exculpatory statement seems to make at least as much sense out of the evidence as the conclusion that the defendants were smuggling drugs. The standard of “beyond a reasonable doubt” is an exacting one. I cannot say that a jury could find “without hesitation” that the government has proven each of the elements of these crimes. I therefore would hold the evidence against Mieres-Borges to be insufficient. Consequently, I would not reach the sentencing issue.