UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50309
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAYMOND STEWART,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
June 25, 1998
Before REAVLEY, DEMOSS, and PARKER, Circuit Judges.
DEMOSS, Circuit Judge:
Raymond Stewart was indicted for possession with intent to
distribute crack cocaine. The jury found him guilty of that
offense. Stewart timely appealed, challenging the sufficiency of
the evidence to sustain the guilty verdict. Finding the evidence
insufficient to sustain the verdict, we reverse the conviction.
Background
1
On September 7, 1995, Officer Ron Garney, an investigator with
the Robertson County District Attorney’s Office, stopped a
champagne-colored Mazda 626 on Interstate 45 heading towards Waco,
Texas. Garney stopped the vehicle when the driver failed to use a
turn signal.1
Garney approached the car, which was driven by Stewart.
Stewart’s co-defendant, Roderick Watson, was in the passenger seat.
Garney requested that Stewart step out of the car and stand on the
side of the road. He then asked Stewart for his license. Though
Stewart was unable to produce his license, he supplied Garney with
his correct driver’s license number. Stewart also told Garney that
he and Watson had been to Houston on a business trip to promote rap
and gospel music. When Garney checked Stewart’s driver’s license
number, he learned that the license had been suspended.
Garney then asked Watson for his license. Watson tendered his
license and clarified that the car belonged to Watson's girlfriend.
Garney asked Watson for permission to search the car, and Watson
consented. Garney then approached Stewart who was standing by the
back of the car, and asked Stewart for permission to search the
car. Stewart acted perplexed, as though he was unclear whether he
1
Garney had received a "tip" earlier that afternoon that two
men driving a car of that description and traveling from Houston to
Waco might be carrying drugs. At trial, evidence relating to the
tip was objected to and a limiting instruction was given. At oral
argument, the government conceded that the information relayed by
the informant was admissible for the limited purpose of justifying
the traffic stop. The government in no way relied on the content
of the informant’s message as evidence in the case.
2
had the authority to give the officer permission to search Watson's
girlfriend's car. After learning that Garney had already received
Watson's consent, Stewart expressed no objection to the search. At
some point during the traffic stop, and prior to Garney's request
to search the vehicle, several backup officers arrived to support
Garney.
After an extensive search of Watson's girlfriend's car, the
officers found two nine millimeter weapons, one under the driver’s
seat and one under the passenger’s seat. Neither had Stewart's
fingerprints. Once the guns were found, both Stewart and Watson
were arrested. Watson was searched pursuant to his arrest, during
which the officers found a plastic bag in his underwear containing
approximately 96 grams of crack cocaine. Watson told the officers
that the cocaine and the guns belonged to him and that Stewart had
no knowledge of the cocaine. When approached separately, Stewart
asked the officer why he was being arrested. Garney responded that
Stewart was being arrested for the guns. Stewart and Watson were
then placed in the back seat of Garney’s patrol car.
The patrol car was equipped with an audio and video recording
system. This system is called a "page system." A video camera
facing out towards the front of the vehicle is mounted inside the
car, next to the rear view mirror. Officers who have cars equipped
with the page system also have microphones attached to their
uniforms. An additional microphone is located in the back seat
area of the car. The officer switches the page system on from
3
inside the patrol car.
Once the system is turned on, the officer can remotely control
which microphone is recording. When the officer turns off the
microphone on his uniform, the microphone inside the vehicle begins
recording. When he activates his uniform microphone, the
microphone inside the car stops recording. Accordingly, once the
page system is turned on, either the officer's uniform microphone
is recording or the back seat microphone is recording. Once Garney
placed Stewart and Watson in the patrol car, he switched off his
uniform microphone, activating the microphone in the back seat of
the patrol car.2 The ensuing conversation between Stewart and
Watson was recorded without their knowledge.
Stewart was indicted and found guilty of possession with
intent to distribute crack cocaine. He was sentenced to 235 months
imprisonment, five years supervised release, a fine in the amount
of $3,000, and a mandatory special assessment fee of $100. Stewart
timely appealed.
I.
Law and Analysis
2
Garney turned on the page system shortly after stopping
Stewart and Watson. The entire audio and video recording of the
stop which begins with Stewart already outside of his vehicle was
admitted into evidence at the trial and was made available for this
court's review. The duration of the tape is approximately one
hour.
4
The government concedes that Stewart did not himself possess
the crack cocaine, constructively or otherwise. Instead, the
government seeks to support Stewart’s conviction on a theory that
he aided and abetted Watson’s crime of possession with intent to
distribute cocaine. Aiding and abetting was not charged in the
indictment. The theory was argued, however, and submitted to the
jury, albeit opaquely. We are, therefore, free to sustain
Stewart’s conviction, if appropriate, on that ground. United
States v. Freeze, 707 F.2d 132, 136 (5th Cir. 1983) (affirming a
conviction for possession with intent to distribute marijuana where
defendant was indicted for the substantive offense but an aiding
and abetting instruction was submitted to the jury). The sole
question presented on appeal is whether the evidence presented at
trial was sufficient to convict Stewart of aiding and abetting
Watson's possession and Watson's intent to distribute crack
cocaine.3
In an appeal based on sufficiency of the evidence, the test is
"whether the jury could reasonably, logically, and legally infer
from the evidence presented that [Stewart] was guilty of violating
the statute beyond a reasonable doubt." United States v. Smith,
546 F.2d 1275, 1283 (5th Cir. 1977) (quoting United States v.
3
"[I]n a prosecution for aiding and abetting possession of
cocaine with intent to distribute, there must be evidence
connecting the defendant with both aspects of the crime, possession
and intent to distribute." United States v. Longoria, 569 F.2d 422,
425 (5th Cir. 1978).
5
Bright, 541 F.2d 471, 476 (5th Cir. 1971)). In making this
inquiry, we are mindful of the deferential standard of review that
we must apply when reviewing a jury verdict. We are required to
review all of the evidence presented at trial in a light most
favorable to the government. United States v. Polk, 56 F.3d 613,
619 (5th Cir. 1995). Moreover, we must sustain the jury's verdict
unless the government failed to meet its burden of proving each and
every element of the offense beyond a reasonable doubt. United
States v. Cartwright, 6 F.3d 294, 299 (5th Cir. 1993). We are not,
however, required to affirm a verdict that is not supported by
legally sufficient evidence. See, e.g., United States v. Williams,
985 F.2d 749, 756 (5th Cir. 1993); Longoria, 569 F.2d at 425;
Smith, 546 F.2d at 1285 (all reversing aiding and abetting
convictions because the evidence was insufficient to support the
jury's guilty verdict); see also United States v. Crain, 33 F.3d
480, 486 (5th Cir. 1994) ("Notwithstanding the inferences we must
draw in favor of a guilty verdict, we reiterate that the burden of
proof in this criminal case was on the government. The government
must prove that the defendant was guilty beyond a reasonable doubt,
not merely that he could have been guilty.").
The aiding and abetting statute provides in pertinent part:
"(a) Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is
punishable as a principal." 18 U.S.C. § 2. To sustain a
6
conviction for aiding and abetting, the government must show that
the underlying offense occurred. See United States v. Pedroza, 78
F.3d 179, 183 (5th Cir. 1996). The government must also
demonstrate "that the defendant associated with [the] criminal
venture, purposefully participated in the criminal venture, and
sought by his or her actions to make the venture succeed." Polk,
56 F.3d at 620. "To associate with the criminal venture means that
the defendant shared in the criminal intent of the principal."
United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995) "To
participate in the criminal activity means that the defendant acted
in some affirmative manner designed to aid the venture." Id.
There is no dispute about whether Watson committed the
underlying offense. Rather, Stewart maintains that the record is
insufficient to establish that Stewart knowingly and purposefully
participated in Watson’s offense. Again, to sustain Stewart’s
conviction for aiding and abetting, the evidence must demonstrate
(1) that Stewart knowingly associated with Watson’s criminal
venture, (2) that he purposefully participated in the criminal
venture, and (3) that he sought by his actions to make the criminal
venture succeed. Id.
II.
Evidence at Trial
The association element of aiding and abetting requires that
7
the defendant share the criminal intent of the principal. Id.
This element cannot be established if the defendant has no
knowledge of the principal’s criminal venture. See United States
v. Ortiz-Loya, 777 F.2d 973 (5th Cir. 1985) (reversing a conviction
for aiding and abetting attempted unlawful exportation of firearms
where there was no evidence that defendant had knowledge of his
buyer’s intention to export the firearms to Mexico); United States
v. Belt, 574 F.2d 1234 (5th Cir. 1978) (reversing a conviction for
aiding and abetting conversion of union funds where there was no
evidence that defendant had knowledge that his arrangement for
cashing checks was being used for the purpose of diverting funds
from the union). We find that the evidence is insufficient to
establish that Stewart had any knowledge of Watson’s criminal
venture and therefore find that the association element of the
aiding and abetting offense was not proven.
The government offered the following circumstantial evidence
of Stewart's knowledge. Stewart accompanied Watson on a trip from
Waco to Houston in a car that belonged to Watson’s girlfriend.
During that trip, the car was stopped and Stewart acted "fidgety"
or nervous. Watson was discovered to have been carrying drugs in
his own underwear. Two weapons were found in the car. Once they
were arrested, Stewart and Watson engaged in an ambiguous, and
8
potentially inculpatory, conversation in the back of a patrol car.4
We will address each item of circumstantial evidence below.
Though Stewart’s presence in the vehicle is a factor that,
along with other evidence may be relied upon to find that he aided
and abetted Watson, mere presence at the crime scene and close
association with the principal are insufficient standing alone to
support a conviction for aiding and abetting another’s crime.
Polk, 56 F.3d at 620. Moreover, Stewart’s presence in the vehicle
and association with Watson are insufficient to support a
reasonable inference that Stewart had any knowledge of the drugs.
See United States v. Menesses, 962 F.2d 420, 427 (5th Cir. 1992)
(holding evidence that defendant drove a vehicle and followed a
truck containing cocaine was insufficient to prove that he had
knowledge of the drug transaction); United States v. Gomez, 776
F.2d 542, 549 (5th Cir. 1985) (holding evidence that defendant
chauffeured members of a drug conspiracy and spent time in a hotel
room with them was insufficient to prove that he had knowledge of
drugs in the truck he followed despite the fact that officers found
a small amount of marijuana in his passenger’s boot); United States
4
Stewart filed a motion to suppress the recording in the
district court, but inexplicably withdrew that motion at trial.
For that reason, the admissibility of the tape, which is an open
question in this Circuit, is not before us. See United States v.
McKinnon, 985 F.2d 525 (11th Cir. 1993); United States v. Clark, 22
F.3d 799 (8th Cir. 1994) (both involving pre-arrest recorded
conversations but extending those holdings to post-arrest recorded
conversations in dicta).
9
v. Littrell, 574 F.2d 828, 835 (5th Cir. 1978) (holding evidence
that the defendant drove a car to a shop, parked it, and went into
a bar while drugs were removed and sold was insufficient to prove
that he had knowledge the vehicle contained drugs).
Next, the government offers evidence from Garney that Stewart
appeared nervous during the traffic stop. Having reviewed the
videotape recording of the entire stop, we find no support for the
proposition that Stewart was unusually nervous or fidgety. Stewart
was no more nervous during the stop than any other citizen who has
been stopped on the side of the road by a police officer and
required to stand outside his vehicle for more than forty minutes.
To the contrary, Stewart was polite and cooperative in his
responses. He provided his correct driver's license number and
volunteered the possibility that it had been suspended. Stewart
answered all of Garney's inquiries concerning where he and Watson
were from and why they had been in Houston.
The government contends that Stewart hesitated before giving
consent to search the vehicle, and then shrugged non-committally.
The government cites this conduct as evidence of guilty knowledge.
We have seen the tape. Once again, there is nothing surprising
about Stewart’s conduct. The car was not his. He may have been
unsure about whether he had authority to consent to the search.
The hesitation, if any at all, was fleeting and was quickly
followed by Stewart’s shrug and vocalizations which plainly
10
communicated that he did not know how to answer the question. We
find no legal significance in Stewart’s conduct during the stop.
The government also relies upon the presence of the two
weapons in Watson's girlfriend's car. There is no evidence tying
Stewart to the guns. The vehicle did not belong to Stewart, and
the weapons were not in plain view. In fact, the weapons were so
well concealed that officers spent more than twenty minutes
searching the car before the weapons were discovered. The area
beneath the seat was checked several times before Garney and the
barrage of backup officers were finally able to retrieve the
weapons. Neither of the weapons had Stewart's fingerprints.5 Even
viewing the videotape of the traffic stop in the light most
favorable to the government, we are unpersuaded that Stewart's
presence, his demeanor during the stop, and the presence of weapons
is any more than a scintilla of evidence that Stewart knowingly and
purposefully participated in Watson's possession of cocaine or in
Watson's intent to distribute the cocaine.
In the government’s view, the most significant evidence in
this case comes from the ambiguous conversation between Stewart and
Watson in the back seat of the patrol car. Indeed, the
government's brief suggests they are relying almost exclusively
upon the inferences that may be drawn from this eight minute
5
Stewart’s fingerprints were likewise not to be found on the
plastic bag containing the crack cocaine which was recovered from
Watson's person.
11
excerpt of the one hour recording made by Garney's page system.
Even when viewed in the light most favorable to the
government, Watson’s comments to Stewart in the back of the patrol
car do not establish Stewart’s guilt. The conversation begins with
Watson trying to reassure Stewart.6 Watson then flagged Garney
down and asked what would happen to Stewart.7 At this point,
Watson assured Garney that Stewart was uninvolved, both with the
guns and the cocaine.8
6
Watson: I tried to get them to let you go, man....I claimed
them guns and the woot. They can't charge you with too much of
nothin', man. I was going to tell you not to (expletive) drive
without a license.
7
Watson: Question!
Garney: Question?
Watson: Yeah, uh, what's y'all doin' about him?
Garney: He's going to jail.
Watson: For what?
Garney: For that gun and that dope.
Watson: What am I going for?
Garney: Same thing.
Watson: But I already told you, it--everything--were mine.
Garney: Well, we'll talk.
Watson: Okay.
Garney: We know more than you think, okay?
Watson: I'm serious.
Garney: (inaudible)...both involved.
Watson: He's not involved!
Garney: We'll talk about it, okay?
8
We note that Watson’s disclaimer of Stewart’s involvement is
consistent with comments made independently by Watson and Stewart
before they were placed in the patrol car. For example, Watson
said to Garney, "But I already told you, it -- everything -- were
mine," an indication that he had made the same statement earlier.
Moreover, upon being arrested, Stewart seemed confused and appeared
not to understand the reason for his arrest. He, in fact, asked
Garney why he was being arrested.
12
Once Stewart and Watson were alone, Stewart can be heard
muttering a string of strong expletives under his breath.9 Watson
responded by rambling on at length about the fact that he had
warned Stewart not to speed through Madisonville, and was going to
warn him not to drive with a suspended license.10 The government
tenders those comments as evidence of Stewart’s guilty knowledge,
asking us to draw the inference that Stewart knew he had to be
9
At trial, the government introduced a transcript of the
conversation that had been prepared by Officer Garney. We note
that the transcript does not reflect Stewart’s string of
expletives. The government relies heavily on the transcript, which
was presented to the jury together with the videotape recording.
In addition to the omission of Stewart’s expletives, there are a
number of other identifiable inconsistencies between the transcript
and the videotape recording. Those inconsistencies may be
explained by the fact that Watson was apparently much closer to the
microphone. Without regard to what caused inconsistencies in the
transcript, the district court expressly instructed the jury that
the transcript was not evidence, and that only the videotape
recording should be relied upon for the content of the
conversation. Despite that limiting instruction, the presence of
the transcript, which contained several material errors, may have
either encouraged the jury's reliance or resulted in confusion
about the content of the conversation.
10
Watson: I told you not to speed through Madisonville, man. I
told you, gosh (expletive), I told you not to speed through
Madisonville. (expletive), man. Well, I told you not to speed
through Madisonville, man. I kept telling you; you did it anyway.
I told you, man, I told you, man. (expletive).
...
Watson: All I ask you to do is ride up there on some music,
that's it, but I was telling you, Raymond, (expletive), I was
telling you, don't speed through Madisonville, and you did it
anyway. (expletive) man! I told you, Raymond, I told you.
(expletive).
[Similar comments were made by Watson to Stewart in two more
exchanges during the eight minute conversation.]
13
careful driving through Madisonville. From that inference, which
we agree is reasonable, the government asks us to draw the
additional inference that Stewart knew he had to be careful because
Watson was carrying cocaine. The evidence will support no such
inference. Even assuming Stewart knew Watson did not want him to
speed, there is no evidence whatsoever from Watson's statements
that indicates Stewart knew why Watson asked him to be cautious.
We do not find the fact that Watson told Stewart not to speed, or
the tone of Watson’s lamentations that he had issued such a warning
to be probative evidence that Stewart knew Watson was carrying
cocaine with the intent to distribute.
Finally, the government identifies certain ambiguous
statements made on the recording which it argues support an
inference that Watson was "coaching" Stewart to let Watson take the
blame. From that coaching, the government invites us to draw the
additional inference that Stewart had guilty knowledge of Watson’s
offense. While the two men were in the back of the patrol car,
Watson twice told Stewart: "You don’t know nothin’." On the second
occasion, Watson supplemented that comment with the observation
"It’s all on me."11 Taken out of context, Watson’s comments can be
11
On the second occasion, Watson also prefaces his "you don't
know nothin'" comment with the words "right now." The government
relies on this phrase as support for their coaching scenario. The
transcript relied upon by the government and prepared by Garney
chooses to punctuate Watson’s statement such that the phrase "right
now" modifies the phrase "you don't know nothin'." In the
recording, however, it appears just as likely that "right now" was
intended to modify the preceding phrase, "I ain’t talkin’ on
14
construed as coaching. When viewed in context, however, these
statements appear equally likely to be reassurances by Watson in an
attempt to curtail Stewart's temper.
We are unpersuaded by the government’s position that Stewart's
knowledge can be reasonably inferred from the recorded
conversation. As an initial matter, the eight minute excerpt
relied upon by the government is comprised almost exclusively of
Watson’s unsolicited and unanswered comments about his own
situation. Stewart makes only a very few audible comments, none of
which are facially inculpatory. Most of Stewart’s comments relate
to why Stewart believed the car had been stopped. Stewart
corrected Watson by saying that they had been stopped for failure
to use a turn signal, rather than for speeding. The only comments
identified as even potentially inculpatory by the government are
clearly responses to other statements made by Watson. For example,
when Watson lamented that he might be required to turn government
informer, Stewart asked Watson what he intended to do.12
Watson refers only to himself in his incriminating statements
and never implicates Stewart.13 Stewart's own statements in this
coochie man," rather than the subsequent phrase. In these
circumstances, it is simply impossible to infer anything from
Watson's use of the phrase "right now."
12
Stewart’s actual response is garbled on the tape, but was
either "Whatcha wanna do?" or "Whatcha gonna do?"
13
Watson: Oh, my god. I'm so busted, disgusted. I got a major
dope case, two guns--that's aggravated. Raymond, I told you not to
speed through Madisonville, baby.
15
covertly recorded and purportedly candid conversation are either
exculpatory, such as when he proclaims "I didn’t do a (expletive)
thing!", or assume only Watson’s culpability, such as when he asks
Watson, "Whatcha wanna do?"
The government's arguments require us to pile inference upon
inference. United States v. Pettigrew, 77 F.3d 1500, 1521 (5th
Cir. 1996) ("[A] verdict may not rest on mere suspicion,
speculation, or conjecture, or on an overly attenuated piling of
inference on inference."). Stewart’s conviction cannot rest on
nothing more than a few facially neutral comments. Even when
viewed in a light most favorable to the government, neither those
few statements made by Stewart nor Watson’s meanderings are
sufficient to establish Stewart’s knowledge beyond a reasonable
doubt. Though "it is not necessary that the evidence exclude every
reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt," United States v. Bell, 678
F.2d 547, 549 (5th Cir. 1992) (en banc), we must reverse the
conviction "if the evidence construed in favor of the verdict gives
equal or nearly equal circumstantial support to a theory of guilt
and a theory of innocence of the crime charged." Jaramillo, 42
F.3d at 923. In this case, neither the taped conversation nor any
...
Watson: This is it for me in the dope game, man, I know it is.
This is it. I don't really know how I am going to get out of it.
I'm not going to lie to you. (expletive) That's it for me, man.
I'm through.
16
of the other circumstantial evidence is sufficient to establish
that Stewart knowingly and purposefully participated in Watson’s
possession and Watson's intent to distribute crack cocaine.
Stewart's conviction is, therefore, REVERSED.
17