United States Court of Appeals,
Eleventh Circuit.
No. 95-2535.
UNITED STATES of America, Plaintiff-Appellant,
v.
Juan Ricardo MATTOS, a/k/a Ricardo Mattos, Defendant-Appellee.
Feb. 14, 1996.
Appeal from the United States District Court for the Middle
District of Florida. (No. 94-155-CR-T-25B), Henry Lee Adams, Jr.,
Judge.
Before ANDERSON and BLACK, Circuit Judges, and FAY, Senior Circuit
Judge.
PER CURIAM:
A jury found Juan Ricardo Mattos guilty of conspiracy to
possess cocaine with the intent to distribute. The District Court,
however, found that the evidence showed "mere association with
conspirators" and granted Mattos's renewed motion for judgment of
acquittal. Because the evidence is sufficient to support the jury
verdict, we reverse.
I. BACKGROUND
Frederick Cox, a government informant, told the police that he
was planning a cocaine deal with James Walsh. Walsh was going to
obtain the cocaine from a supplier in Miami and Cox was going to
help sell it to dealers in Atlanta. On March 22, 1994, at 10:22
a.m., Walsh called Mattos's home from a pay phone at the Lemon Tree
restaurant in Clearwater. The pay phone was located two miles from
Walsh's home. Later that day Walsh met with Cox. They discussed
a five to ten kilogram cocaine deal. Cox asked about prices and
quantities, and Walsh responded, "My guy's away for a week. I'm
gonna call him tonight, and, uh, set up the program."
After meeting with Cox, Walsh drove to the Lemon Tree pay
phone and called Mattos's home in Miami. Walsh said that "the last
four are 4072" and "have him call me." The last four digits of
Walsh's pager were 4072. About an hour later Walsh drove to the
same pay phone and called a pay phone at a Miami gas station, near
Mattos's home. Walsh was overheard saying, "They want five to ten,
we can do that, can't we?"
On March 31, Walsh again met with Cox about the cocaine deal
and said that he would "try the house right now" in an attempt to
contact the supplier. Walsh then drove to a pay phone and called
Mattos's home.
On April 6, Cox paged Walsh. Walsh called Mattos's home
eighteen minutes after the page, but before Walsh called Cox back.
Five minutes after the call to Mattos's house, Walsh called Cox and
told him that his supplier was "hung up" and "won't be back 'till
Monday."
On April 11, Walsh was paged from a pay phone near Mattos's
home, and he returned that call from a pay phone one minute later.
On April 12 and 13, Walsh met with Cox about the deal. Cox told
Walsh his buyer did not want to go to Miami to pick up the cocaine.
Walsh said, "[L]et me uh go call my guy and uh, see if my guy will
bring them over here." Walsh then left Cox, drove to the Lemon
Tree pay phone, and called Mattos's home.
On April 14, Cox paged Walsh. Walsh called back and said he
would be talking with his "office" at 10:00 a.m. At 10:09 Walsh
called a pay phone in Miami near Mattos's home. Walsh then went to
Cox's place of business and said that "his guy" had to go back to
Bogata. Walsh went back to the pay phone across the street and
called Mattos's home. Walsh returned to Cox and said, "I'm going
to page him when I get out ... He's going to try from a Southern
bell phone."
Walsh then received a message on his pager to call 595-3265.
He went back to the pay phone and called 305-595-3265, a Southern
Bell pay phone in Miami near Mattos's phone. Again Walsh returned
to Cox. Walsh said that it was, "too late now. He's leaving for
uh, fifteen days."
Three days later, Mattos flew from Miami to Colombia. While
there, he suffered major stomach problems and had to have emergency
stomach surgery. This delayed his return to Miami.
From May 3 (about fifteen days after Mattos left) to June 7,
Walsh repeatedly tried to contact Mattos. He called the Mattos
home and spoke to someone there on several occasions.1 He told Cox
that his supplier had gotten "hung up down there" and that the deal
had to be delayed. At another point Walsh said, "his wife went
down." Mattos's wife had flown down to be with him after the
surgery.
On June 17, Mattos returned to the U.S. On June 23, Cox
called Walsh's pager. Nine minutes later, Walsh called Mattos's
home from the Lemon Tree pay phone. Ten minutes later, Walsh
1
Moreover, even though Walsh repeatedly made phone calls
using the Western Union company to pay phones near Mattos's home
in Miami during the time before and after Mattos's trip to
Colombia, Western Union toll records show that Walsh made no
calls to those phones during the entire time Mattos was in
Colombia.
called Cox and said, "He's back." Walsh explained that the
supplier went to a hospital in Colombia because "his insides just
busted." Walsh said that the supplier would contact Walsh when he
got back to his office.
On June 24, Walsh was paged from Mattos's house. Walsh
returned the call from a Winn Dixie pay phone seven minutes later.
An hour and a half after that, Walsh called a Miami pay phone near
Mattos's home (305-595-3265). Five minutes after that Walsh was
paged from 595-3265.
On June 27, Cox told Walsh that he could not go to Miami
because of illness. Walsh agreed to go with Cox's "cousin" who was
really undercover officer John Barna.
On June 29, Walsh drove to Miami. He went to a pay phone at
a Wendy's restaurant and called Mattos's home. Walsh then drove to
Mattos's home. Two hours later Walsh went to his hotel. That
evening, he met with Barna. Barna said that the buyer (called
"Joe") was in Miami and had the money. Walsh said they should
complete the deal at "my guy's house." Barna responded that he and
Joe were not happy with that plan. Walsh said he'd have to go call
his supplier and find out if he would be willing to bring the
cocaine to the hotel.
Soon after, Mattos received a call from a pay phone near the
hotel. Walsh then left the Hotel and drove to the Wendy's
restaurant where he had earlier made a phone call to Walsh. Walsh
met in the parking lot with Mattos and another man. After ten
minutes in Mattos's car, they drove to a car lot. The three men
went in and a short time later, Mattos, Walsh and a woman emerged.
They left in Mattos's car, without the third man. They drove back
to the Wendy's restaurant. Walsh got out and returned to his
hotel.
The next morning, Walsh met with Barna and told him that the
supplier "took it back and locked it up" because "he didn't want to
leave it in the house." Walsh said the deal would go down late
that night or first thing in the morning. By the next morning,
however, the cocaine was still not available. Walsh said that this
was the only time he had been out of supply, and it was only
because of his supplier's hospitalization in Colombia. Walsh and
Barna agreed to complete the deal in Clearwater.
Walsh said he'd try to contact his supplier one more time, and
he explained to Barna that he used pay phones because otherwise
"you don't know if you're being bugged." Soon after, a call was
made to Mattos's home from a pay phone next door to the motel. A
half hour after that, Walsh called Barna and said that he had tried
to contact his supplier but still got no answer.
Walsh and Mattos were indicted for conspiracy to possess
cocaine with the intent to distribute, and for attempted possession
of cocaine with the intent to distribute. Both testified at trial.
Walsh claimed that Cox, whom he thought was dying of Hodgkin's
disease, suggested that they "rip-off" some cocaine buyers to make
money for Cox's wife. Walsh testified that he was just pretending
the entire time he was in Miami. In order to placate a dying man,
he was planning to rip-off the cocaine buyer.
Walsh admitted that Mattos was the Colombian that he had been
referring to as the supplier, but claimed that Mattos was just the
basis for a "figmentary person" to further the rip-off. Walsh
testified that Mattos knew nothing about this planned rip off. He
said his dealing with Mattos involved legitimate business, and that
he used pay phones because the home phone was for his wife.
Mattos also testified that he only had legitimate business
contacts with Walsh. He admitted that "[i]t could be possible"
that he and Walsh had both used pay phones near their respective
homes to communicate with each other. To explain why he had
communicated with Walsh in this fashion, he testified, "I was not
in my house 24 hours a day. I was not a prisoner."
The jury chose to disbelieve Mattos and Walsh; they convicted
Mattos of conspiracy to possess cocaine with the intent to
distribute. The District Court, however, found that the evidence
showed "mere association with conspirators" and granted Mattos's
renewed motion for judgment of acquittal.
II. STANDARD OF REVIEW
The District Court's finding that the evidence was
insufficient to support the jury's verdict of guilt is reviewable
de novo and entitled to no deference on appeal. United States v.
Greer, 850 F.2d 1447, 1450 (11th Cir.1988).
III. ANALYSIS
We must consider the evidence in the light most favorable to
the jury's verdict, and accept reasonable inferences and
credibility choices by the fact-finder. United States v. Sanchez,
722 F.2d 1501, 1505 (11th Cir.1984). More specifically:
It is not necessary that the evidence exclude every reasonable
hypothysis of innocence or be wholly inconsistent with every
conclusion except that of guilt, provided that a reasonable
trier of fact could find that the evidence established guilt
beyond a reasonable doubt. A jury is free to choose among
reasonable constructions of the evidence.
Id., quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.
Unit B June 1982) (en banc), aff'd on other grounds, 462 U.S. 356,
103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).
The jury in this case chose to disbelieve Mattos and Walsh.
That choice was reasonable because: 1) if Walsh merely planned to
rip-off the buyer, there was no need to hold up the deal when
Mattos was in Colombia; 2) if Walsh wanted to rip-off the buyer,
there was no reason not to do just that when the buyer was in
Miami; 3) if Walsh was scheming with Cox to rip-off the buyer,
there was no reason to hide this from Cox's "cousin," John Barna;
4) if Walsh was not planning on ripping-off the buyer then he
needed to have a cocaine supplier, and he admitted at trial that
Mattos was the man who he referred to as his supplier; 5) on
virtually every occasion that Walsh discussed the deal with Cox or
Barna, he contacted Mattos's home or a nearby pay phone right
before or immediately after the discussion; 6) in many of the
taped conversations between Walsh and Cox or Walsh and Barna, Walsh
confirmed that he had just spoken with, or was about to speak to,
his supplier; 7) Walsh and Mattos took great pains to speak on pay
phones instead of using their home phones; 8) Walsh said they did
so to avoid being bugged; and 9) the explanations that Walsh and
Mattos gave at trial for consistently using pay phones were at best
far-fetched.
IV. CONCLUSION
Because the evidence in this case is sufficient to support the
jury verdict, we REVERSE and REMAND with instructions to reinstate
the jury's verdict.