United States Court of Appeals,
Eleventh Circuit.
No. 94-4144.
UNITED STATES of America, Plaintiff-Appellee,
v.
Gloria Marie LOPEZ-RAMIREZ, Defendant-Appellant.
Nov. 8, 1995.
Appeal from the United States District Court for the Southern
District of Florida. No. 93-380-CR), Stanley Marcus, Judge.
Before EDMONDSON, Circuit Judge, HILL, Senior Circuit Judge, and
MILLS*, District Judge.
EDMONDSON, Circuit Judge:
Defendant appeals her convictions and sentence for conspiracy
with intent to distribute cocaine and possession of cocaine with
intent to distribute. We reverse.
DEA agents, working with a confidential informant, arranged
for approximately 160 kilograms of cocaine to be imported into the
United States and negotiated with two men, Polaco and Turco, for
the distribution of the cocaine. After performing a field test to
ensure that the substance was cocaine, the agents divided the
shipment and packaged about 95 kilograms in one wooden crate and
the remaining 65 in another. Each crate was then equipped with two
transponders that would alert the agents when the crates were
opened or moved. The crates were sealed shut.
Agents placed the crate containing 65-kilograms in a Ford
Explorer provided by Turco and Polaco and put the crate containing
*
Honorable Richard Mills, U.S. District Judge for the
Central District of Illinois, sitting by designation.
95-kilograms crate in a Ford F-250 truck the DEA provided. Polaco
drove the Explorer to a home off Griffin Road, and after about two
hours, another man drove it to Miami. Later that day the Explorer
was abandoned presumably because surveillance had been detected.
A man named Javier drove the truck to the same Griffin Road
address. Agents maintained ground and air surveillance. After an
hour, a man later identified as Ramon Acosta Acevedo drove off in
the truck and travelled north on I-95. Because the truck had
tinted glass, agents could not see if anyone else was inside.
Agents followed the truck in cars and in a helicopter equipped
with a video camera and observed that Acevedo conducted
counter-surveillance maneuvers by frequently exiting and
re-entering the interstate and making U-turns. Acevedo finally
exited in Boca Raton. After a meandering drive through that area,
including two drives down Floral Wood Lane, Acevedo stopped at
23101 Floral Wood Lane and backed the truck to a garage door. The
video shows that Acevedo and an unidentifiable person exited the
truck. At the time, DEA agents, however, observed only Acevedo
exit. Two agents drove by and saw Acevedo unloading the crate and
defendant Lopez-Ramirez standing in the garage. Acevedo then drove
the truck to a church parking lot, left it there, and walked away.
A white station wagon picked him up.
Surveillance of the house continued for about four hours.
Agents did not know how many people were in the house but saw no
one enter or exit the house, except when defendant went out once to
get the mail. At about 3:00 p.m., a confidential informant
notified the agents that surveillance had been detected and that
the conspirators were abandoning the operation. At about 6:30
p.m., agents decided to enter the house to secure the cocaine; so
six agents—clad in raid jackets and with their weapons
drawn—knocked, announced, and demanded entry. Defendant opened the
door and was arrested after agents conducted a sweep of the house
and located the cocaine.
Following indictment and arraignment, defendant moved to
suppress the cocaine and other evidence found in the house. She
contended that the government's warrantless search of the house in
the absence of exigent circumstances violated her Fourth Amendment
right to be free from unreasonable searches. After an evidentiary
hearing, a magistrate judge recommended that the motion be granted.
The district court conducted another evidentiary hearing and
excluded testimony that defendant was the only person in the
residence and that the cocaine had been moved to the bathroom, but
allowed the government to introduce the cocaine and testimony that
defendant answered the door when the agents knocked.1
At the close of the government's case, defendant moved for
judgment of acquittal which the district court denied. Defendant
did not put on a defense, and the jury convicted her both of
conspiracy to possess cocaine with intent to distribute and of
possession of cocaine with intent to distribute. Defendant moved
for post-trial judgment of acquittal and for a new trial, but these
1
Because we hold that the evidence presented to the jury was
not sufficient to sustain defendant's convictions, we do not
address defendant's claim that the district court erred in
allowing the government to introduce into evidence the cocaine
seized during the warrantless search of the house and testimony
that defendant answered the door when agents knocked.
motions too were denied. Defendant appeals her convictions and
sentence.2
Defendant argues that the evidence was not sufficient for a
jury to find beyond a reasonable doubt that she knowingly and
voluntarily participated in the cocaine conspiracy or that she
knowingly possessed cocaine with the intent to distribute it.
Viewing the evidence in the light most favorable to the government,
we review the sufficiency of the evidence de novo to determine
whether a reasonable jury, from the evidence presented, could have
concluded beyond a reasonable doubt that defendant was guilty of
the crimes charged. United States v. Thomas, 8 F.3d 1552, 1555
(11th Cir.1993).
To sustain a conviction for conspiracy to possess cocaine
with intent to distribute, the government must prove beyond a
reasonable doubt (1) that a conspiracy existed; (2) that the
defendant knew of it; and (3) that the defendant, with knowledge,
voluntarily joined it. United States v. Perez-Tosta, 36 F.3d 1552,
1557 (11th Cir.1994), cert. denied by Perez-Aguilera v. United
States, --- U.S. ----, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995). To
prove the substantive offense of possession of cocaine with intent
to distribute, the government must establish that defendant
knowingly possessed the cocaine and that she intended to distribute
it. United States v. Stanley, 24 F.3d 1314, 1319 (11th Cir.1994).
Where the government's case is circumstantial, as it is here,
"reasonable inferences, and not mere speculation, must support the
2
Because we reverse defendant's conviction for insufficiency
of evidence, we also do not address defendant's claim that the
district court erred in sentencing.
jury's verdict." Perez-Tosta, 36 F.3d at 1557.
The only evidence the government introduced to prove the
defendant's guilt was (1) that some unidentifiable person was in
the truck with Acevedo, (2) that defendant was present in the
garage with Acevedo at the Floral Wood Lane residence shortly after
the truck carrying the cocaine arrived there, and (3) that the
defendant was present when the DEA agents approached the door to
the house to conduct the search. From this evidence, the
government argues that the jury was entitled to find that defendant
was the passenger in the truck that delivered the cocaine and that
defendant and Acevedo engaged in evasive tactics because they were
in the process of committing a crime. The government argues that
the jury also could reasonably find that defendant was present
during the delivery of the cocaine to the residence and that she
answered the door when officers tried to retrieve the cocaine.
Finally, given the substantial value of the cocaine involved and
passports and other documents belonging to Acevedo and the
defendant, the government contends that the jury could find that
defendant was not merely an unaffiliated bystander.
This court has repeatedly held, however, that mere
association with a conspirator and presence in a vehicle which
engages in counter-surveillance maneuvers is not sufficient to
establish participation in a conspiracy to distribute cocaine or
possession with intent to distribute cocaine. See United States v.
Hernandez, 896 F.2d 513, 519 (11th Cir.), cert. denied, 498 U.S.
858, 111 S.Ct. 159, 112 L.Ed.2d 125 (1990) (Holding defendant's
association with codefendant insufficient to prove conspiracy or
possession although defendant was in vehicle from which drugs were
retrieved and was present when drugs were given to undercover
agent); Thomas, 8 F.3d at 1558 (Noting that presence with
conspirators alone or close association with them is insufficient
proof of participation in a conspiracy); Stanley, 24 F.3d at 1321
(Noting that defendant's presence in vehicle in which drugs were
stored, even while driver and another passenger were negotiating
the sale of cocaine within earshot, was insufficient to establish
conspiracy and possession); and Perez-Tosta, 36 F.3d at 1552 (11th
Cir.1994) (Evidence insufficient to convict for conspiracy although
defendant provided keys, registration, and insurance for vehicle
used to transport drugs and later was present in the car when it
was engaged in counter surveillance).
As in the cases cited above, the government presented no
evidence to the jury that defendant had been present at any meeting
of the key conspirators or even knew who they were, and government
agents involved conceded that her name had not been mentioned at
the meetings. The government also offered no evidence that
defendant had been "on the lookout" in the truck (if in fact she
was in the truck) or while she was waiting in the house.
Government witnesses testified, in fact, that the defendant
appeared calm throughout the operation, even after she was
arrested. The government offered no evidence that defendant knew
the contents of or had touched the crate which contained the
cocaine. In the light of the precedents of this circuit, the
evidence presented to the jury3 was not sufficient to allow the
jury to conclude beyond a reasonable doubt that defendant had
knowledge of the conspiracy and had participated in it or that
defendant had possession of the cocaine with the intent to
distribute it. Defendant's convictions are reversed.
REVERSED.
HILL, Senior Circuit Judge, concurring specially:
I concur. The evidence was insufficient.
I write separately merely because, in my view, there was no
substantial evidence that the appellant was ever in the truck.
That conclusion leads me to believe that I need not evaluate the
case on the assumption that she was in the truck. I do not dispute
what we say on that subject; I just do not address it.
3
We note that, at sentencing, defendant admitted that she
came to the United States from Columbia to work in the drug
trafficking trade; that she was staying at the Boca Raton
residence, as a live-in housekeeper, with a couple expecting a
shipment of cocaine; that she accepted her position knowing that
it was merely a "front" to preempt suspicion by neighbors; that
she went with Acevedo to pick up the cocaine and bring it back to
the house; that she moved the cocaine from the crate to the
bathroom; and that she was paid $1000.00 a month to stay at the
residence and promised another $4000.00 when the cocaine was
delivered. Defendant, if she spoke the truth at sentencing, was
not innocent of the crimes charged. But, at trial, she was not
proved guilty. And for us, as a reviewing court, that is the
point.