09-1771 | Omnilex

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2009

(Argued: February 18, 2010

Decided: May 5, 2010)

Docket No. 09-1771-cr

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UNITED STATES OF AMERICA,

Appellee,

\- V. -

JOSE TORRES,

Defendant -Appellant.

Before: KEARSE and HALL, Circuit Judges, RAKOFF, District Judge *.
Appeal from a judgment of the United States District
Court for the Southern District of New York, Paul G. Gardephe,
Judge, convicting defendant of conspiracy to distribute and
possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846.

Reversed.

NICHOLAS L. McQUAID, Assistant United States
Attorney, New York, New York (Preet
Bharara, United States Attorney for the
Southern District of New York, Michael D.
Maimin, Assistant United States Attorney,

\* Honorable Jed S. Rakoff, of the United States District Court
for the Southern District of New York, sitting by designation.

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New York, New York, on the brief), for
Appellee.

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EDWARD S. ZAS, New York, New York (Federal
Defenders of New York, Inc., Appeals
Bureau, New York, New York, on the brief) ,
for Defendant-Appellant.

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KEARSE, Circuit Judge:

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Defendant Jose Torres appeals from a final judgment
entered in the United States District Court for the Southern
District of New York following a jury trial before Paul G.
Gardephe, Judge, convicting him of conspiring to distribute and
possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846, and sentencing him principally to 78 months'
imprisonment. On appeal, Torres contends that the evidence at
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trial was insufficient to prove beyond a reasonable doubt that he
acted knowingly and with the specific intent to further a
conspiracy for the distribution of narcotics. Finding merit in
his contention, we reversed the judgment of conviction and
remanded for entry of a judgment of acquittal in an order filed on
May 4, 2010, indicating that this opinion would follow.
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# I. BACKGROUND

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The government's evidence at trial consisted principally
of 10 one-kilogram bags containing cocaine and the testimony of
law enforcement agents and employees of United Parcel Service
("UPS") with respect to the efforts of Torres on April 30, 2008,

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to take delivery of the boxes in which the cocaine had been
shipped. The evidence, taken in the light most favorable to the
government, showed the following.

A. Events on the Morning of April 30

On April 30, 2008, UPS deliveryman Francisco Bautista had
in his truck three items to be delivered to 124 Locust Hill Avenue
in Yonkers, New York ("124 Locust Hill"), a multi-residence house.
One was a next-day air envelope for "Apartment 3." The other two
were bulky packages (the "Packages") weighing 72 and 62 pounds,
respectively, each designated "high value" by the shipper in
Puerto Rico, and each bearing an address label reading as follows :

JOSE TORREZ
(347) 712-4066
FLOOR # 1
124 LOCUST HILL AVE
YONKERS NY 10701
UNITED STATES

(Government Exhibits ( "GX") 1, 2) .

Bautista testified that he went to 124 Locust Hill at
approximately 9:45 a.m. that morning. When he arrived, he was
approached by two Hispanic men, one of whom asked whether Bautista
had a package for "Jose or something. " (Trial Transcript ( "Tr. ")
239.) When Bautista responded affirmatively, the man stated that
the Packages were for him. As the Packages were designated "high
value, " Bautista requested identification. When the man produced
a New York State Identification Card ( "ID Card") on which,
Bautista noted, the name matched but the address didn't" (id. ), in
that the ID Card showed an address in Brooklyn rather than Yonkers

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(see id. at 239-40), Bautista said he could not release the
Packages to the man because "the address doesn't match" (id. at
240) . The man tried to convince Bautista to release the Packages
by saying that he was moving and had not yet changed his ID Card;
Bautista was unpersuaded.

Bautista proceeded to deliver the next-day air envelope
for Apartment 3 to the building's superintendent. Bautista
inquired about the two men who had approached him and who remained
alongside the building; the superintendent said he did not know
em. (See id. at 240-41.)

Bautista departed. When he reached his next destination
less than a minute away, and was exiting his truck, the two men
he had encountered at 124 Locust Hill approached him again,
asking about the Packages. Bautista said he would call his
supervisor and if he were given authorization to release the
Packages despite the ID discrepancy, he would return to 124 Locust
Hill to deliver them. (See Tr. 242.) After entering the
building at this location, Bautista telephoned his supervisor, who
told him not to release the Packages and said that a loss-
prevention security agent (the "LP") would be sent to meet him.
When Bautista emerged from the building, the two men were still
there and again urged him to release the Packages; they also
asked Bautista to speak on their telephone to a "cousin" who had
sent the Packages. Bautista told them he could not do anything
without authorization from his supervisor. (See id. at 243-44.)

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About a half-hour later, the LP met Bautista and they
returned to the vicinity of 124 Locust Hill; Bautista parked some
5-10 feet from the building, and the LP parked behind him. When
they arrived there, four men emerged from behind the building and
stared at Bautista and the LP. (See id. at 246-47.) After the LP
made a quick telephone call, he and Bautista promptly departed.
Bautista turned the Packages over to the LP. (See id.)

The LP took the Packages to a UPS facility in Mount
Vernon, New York, where they were opened in a secure, limited-
access room by Alex Gamboa, a UPS security specialist. (See,
e.g., Tr. 257, 259-61.) The Packages contained kitchen cabinets --
introduced into evidence at trial -- each of which had a secret
compartment: one on the back, the other at the bottom (see,
e.g., id. at 53-54, 263-64, 269-70). Inside each cabinet's
secret compartment, Gamboa found five brick-shaped objects wrapped
in black bags; inside those bags were white bags containing white
material. (See id. at 263-64, 266-70.) The compartments also
contained newspaper, sprayed foam insulation, and other material
to prevent the bags from moving around, shaking, or breaking
apart. (See, e.g., id. at 53-54.) Gamboa telephoned Detective
Mark Carey of the Westchester County Police Narcotics Unit, who
arrived shortly and took custody of the Packages. (See id. at
271.)

The bags secreted in the Packages were later determined to
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kilograms. The cocaine had a street value of between $750,000 and
$1 million. (See, e.g., id. at 49, 77.)

B. The Controlled Delivery in the Afternoon of April 30

Westchester police officers rewrapped the Packages and,
working with the Yonkers police, arranged for a "controlled
delivery" to take place at a UPS store in a Yonkers strip mall.
(See Tr. 56-62.) Some 15 law enforcement agents participated.
Coordinating with the store manager -- identified at trial only as
"Stan" -- Detective Carey, dressed in plainclothes, was stationed
in the UPS store behind a wall of mailboxes; Westchester County
Police Officer Isai Moreira was in the UPS store dressed as a UPS
employee. (See, e.g., id. at 111-12, 57-60). Other law
enforcement agents were deployed in various vehicles in the mall
parking lot. (See, e.g., id. at 204-08.)

At approximately 3:55 p.m., Detective Carey called
(347) 712-4066, the number provided for the addressee on the
Packages' labels, and asked the man who answered whether he was
Jose Torrez. When the man said he was, Carey identified himself
as a UPS employee and said the Packages could either be picked up
at the Yonkers UPS store that day or be delivered the next day.
The man, in "broken English, " expressed frustration at UPS's
failure to deliver the Packages earlier that day, stating that he
had just moved to Yonkers and that was why the address on his ID
Card did not match the address on the Packages; he said he would

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come to the UPS store to pick up the Packages.
(See id. at
60-62.)

An hour later, Torres arrived in a green minivan driven by
another man and entered the UPS store. (See Tr. 69, 205-06.)
Torres said "'I'm here to pick up the boxes for Jose Torres, '" and
Stan asked to see his identification. (Id. at 184.) Torres
handed Stan a New York State ID Card bearing the name "Torres,
Jose, A" and a Brooklyn address (GX 30; see Tr. 72) and stated
that he was upset at UPS's earlier refusal to deliver, explaining
in "broken English" that he had moved and had not had time to
change the address on his identification (Tr. 169). Stan
photocopied the ID Card, showed the copy (GX 30) to Moreira -- the
undercover officer dressed as a UPS employee -- and returned the ID
Card to Torres. Torres promptly started to load one of the
Packages onto a nearby hand truck and took it out to the curb;
Stan asked Moreira to assist Torres, and Moreira tried to assist
with the second Package, but Torres "shooed [him] away" and took
the second Package to the curb as well. (Tr. 70, 170-72.)

In the meantime, unbeknownst to Torres, the driver of the
green minivan, after Torres entered the UPS store, had peered
through the windshield of a police surveillance van that was
parked curbside just north of the UPS store and, with "a startled
look on his face
[had] quickly pulled away" (id. at 206) and
left the parking lot (see id. at 210-11). (One of the other
surveillance vehicles followed the minivan only to the end of the
parking lot; the surveillance team leader "told [the team] to

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stand by and stay where we were, to let the van Gogh [sic]" (id.
2 at 211) .)

When Torres had both Packages at the curb, Moreira, who
had accompanied him out of the store with the second Package,
asked him where his vehicle was; Torres said he had a ride.
Torres peered all around for the minivan and searched the nearby
aisles of the parking lot; he spent some 10 to 15 minutes looking
around and exploring deeper and deeper into the lot, but returning
frequently to the Packages at the curb. (See, e.g., Tr. 172-74,
191.) Moreira, part of whose surveillance assignment was to keep
an eye on the cocaine (see, e.g., id. at 186), remained at the
curb with the Packages (see, e.g., id. at 172, 173, 176) .
Torres, conversing with Moreira in Spanish (see, e.g., id. at
197), told Moreira that the driver had needed to use a bathroom
and perhaps had gone into a nearby McDonald's (see id. at 172,
194). Torres did not look for the driver in any stores, however;
he explored only the parking lot. (See, e.g., id. at 194,
201-02.)

Moreira eventually asked whether Torres had a cell phone
number for the driver, and when Torres said he did not, Moreira
suggested that Torres call a taxi. Torres, after looking around
once more, reentered the UPS store to call a cab. (See Tr.
176-77.) As Torres entered, Detective Carey exited because he
"didn't want to make [Torres] any more suspicious or nervous than
he already appeared" (id. at 74); Torres then used the store's
telephone while repeatedly "looking over his shoulder at [Carey] "

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(id. at 74-75) . Carey, mindful that the store had a rear exit
(see id. at 75), reentered the store after some 2-3 minutes (see,
e.g., id. at 177); he identified himself as a police officer; and
he and another officer escorted Torres out of the store and placed
him under arrest (see id. at 75-76, 177) .

While the officers awaited a transport vehicle, with
Torres in custody, Torres attempted to speak to them in his
broken English, and Carey summoned Moreira. (See Tr. 177-78.)
Moreira, while walking over to them, took out his police shield
and held it out in front of him to identify himself as a police
officer (see id. at 198), and Torres immediately started talking
to him in Spanish (see id. at 178). Torres said that this is what
happens when you do favors for somebody, and that a man in a
Yonkers bodega had paid him to pick up the Packages. (See id. at

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231.)
Later that day, when Moreira was taking pedigree
16 information from Torres, Torres said he worked at the bodega,
cleaning up, and that he was homeless. (See id. at 231-32.)

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## C. The Present Prosecution

In a two-count superseding indictment, Torres was charged
with knowingly and intentionally possessing five kilograms and
more of substances containing cocaine, in violation of 21 U.S.C.
§ 841 (a) (1) (Count Two), and conspiring to do so, in violation of
21 U.S.C. § 846 (Count One) . No other persons were apprehended or
charged.

At Torres's trial, in addition to the evidence described
in Parts I.A. and I.B. above, the government introduced records of
several telephone calls. A UPS record, indicating that the UPS
call center in Yonkers had received a call at 11:43 a.m. on
April 30, reads in part as follows:

Caller:
GADREL PADILLA - NON-PREFERRED

FL# 1 124 LOCUST HILL AVE
YONKERS, NY 10701
(347) 712-4066

(GX 302.)
The record shows the tracking number for one of the
Packages and the hour at which the driver had departed UPS with
the Packages, and states as follows (with our bracketed assumed
completions of words partially lopped off in the reproduction of
the UPS record (see id. ) ) :

CUST STATES THAT DRIVER WOULD NOT L[ET] HIM ACCEPT
THE PKG WHEN HE CAME HE JUST MOVED IN AND HE HASNT
CHANGE HIS ADD YET BUT PKG I [S] ADD TO THIS PERSON
AND DRIVER STILL NEVER LET HIM TAKE IT

(id.). Gamboa explained that "CUST" meant customer, "PKG" meant
package, and "ADD" meant address. (See Tr. 291.)

The government also introduced telephone company records
for the (347) 712-4066 number (see GX 300), which was registered
to an "Antonio Gonzales" (see GX 300A, ( 2). The records showed
all telephone calls and "Direct Connect" activity between
(347) 712-4066 and various numbers from March 17 to May 22, 2008.
For April 26-29, the records showed dozens of calls between the
(347) 712-4066 number and (787) 300-1872 (see GX 300) ; 787 is an
area code for Puerto Rico (see GX 300A, [ 6). The records also

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showed six calls to (347) 712-4066 from other numbers in Puerto
Rico between 2:30 p.m. and 3:18 p.m. on April 30, the day of the
failed delivery, as well as Direct Connect activity after Torres
arrived at the UPS store. (See GX 300.)

At the close of the government's evidence, Torres moved
for a judgment of acquittal pursuant to Fed. R. Crim. P. 29. The
district judge reserved decision. Torres rested without
presenting evidence.

The jury found Torres guilty on the conspiracy count,
Count One. The jury had been instructed that " [i]f, and only if"
it found Torres guilty on Count One (Verdict Form at 2 (emphasis
in original) ), it was to answer the following question "relat [ing]
to quantity" (Tr. 459; see id. at 439) : "Did the defendant either
have personal involvement with, or was it reasonably foreseeable
to him that the conspiracy involved, and was it within the scope
of his agreement to distribute or possess with intent to
distribute, five kilograms or more of a mixture or substance
containing a detectable amount of cocaine" (Verdict Form at 2
(emphases in original) ; see also Tr. 459, 472), the jury answered
that question "No" (Tr. 472). The jury found Torres not guilty on
the possession count, Count Two.

At sentencing, the district court denied Torres's Rule 29
motion. After finding by a preponderance of the evidence that,
inter alia, Torres was "directly and personally involved with the
ten kilograms of cocaine" (Sentencing Transcript at 7), the court
sentenced Torres principally to 78 months' imprisonment.

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### II. DISCUSSION

On appeal, Torres contends that the trial evidence was
insufficient to permit the jury to find beyond a reasonable doubt
that he had knowledge that the purpose of the conspiracy of which
he was found to be a member was the distribution of narcotics. We
6 agree.

#### A. Elements of Conspiracy

The essence of conspiracy is agreement. In order to
convict a defendant of the crime of conspiracy, the government
must show that two or more persons entered into a joint
enterprise for an unlawful purpose, with awareness of its general
nature and extent. See, e.q., United States v. Huezo, 546 F.3d
174, 180 (2d Cir. 2008) ("Huezo"), cert. denied, 130 S. Ct. 142
(2009) ; United States v. Jones, 393 F.3d 107, 111 (2d Cir. 2004)
( "Jones") ; United States v. Rodriquez, 392 F.3d 539, 545 (2d Cir.
2004) ( "Rodriquez") ; United States v. Morgan, 385 F.3d 196, 206
(2d Cir. 2004) ("Morgan") ; United States v. Friedman, 300 F.3d
111, 124 (2d Cir. 2002) ("Friedman"), cert. denied, 538 U.S. 981
(2003) . Although " [t]he government need not show that the
defendant knew all of the details of the conspiracy, 'so long as
he knew its general nature and extent, '" Huezo, 546 F.3d at 180
(quoting United States v. Rosa, 17 F.3d 1531, 1543 (2d Cir.),
cert. denied, 513 U.S. 879 (1994)), the government "must prove at

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least the degree of criminal intent necessary for the substantive
offense itself," United States v. Feola, 420 U.S. 671, 686 (1975) .

" [T]he knowledge of the parties is relevant" to a conspiracy
charge "to the same extent as it may be for conviction of the
substantive offense." Id. at 695.

Title 21 of the United States Code provides, inter alia,
that it is "unlawful for any person knowingly or intentionally" to
"distribute" or to "possess with intent to . . . distribute . . .
a controlled substance, " 21 U.S.C. § 841 (a) (1) (emphasis added) ,
or to "conspire [] to commit" such an offense, id. § 846. To prove
intent, of course, the government must show knowledge, for
"knowledge is the foundation of intent, " Direct Sales Co. v.
United States, 319 U.S. 703, 711-12 (1943). Thus, since the
government cannot establish the substantive § 841 (a) (1) offenses
of distribution or possession with intent to distribute without
proving that the defendant knew he was dealing with a controlled
substance, it likewise cannot establish a § 846 conspiracy to
distribute or to possess with intent to distribute without
proving, inter alia, that the defendant knew that the conspiracy
involved a controlled substance. See, e.g., Rodriquez, 392 F.3d
at 545 ("the conspiracy and substantive charges, both of which are
specific intent crimes, required the government to establish that
Rodriguez knowingly and intentionally participated in the drug
deal") ; United States v. Lorenzo, 534 F.3d 153, 159-62 (2d Cir.
2008) ("Lorenzo") ; cf. Friedman, 300 F.3d at 115, 124-26 (a
charge of conspiracy to commit extortion in violation of 18 U.S.C.

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§ 894 (a) (1) "require [s] the Government to prove, beyond a
reasonable doubt, that the defendant knew [that] the specific
nature of the conspiracy" included extortion) ; United States v.
Samaria, 239 F.3d 228, 233-34, 236 (2d Cir. 2001) ("Samaria") (a
charge of conspiracy to receive and possess stolen goods in
violation of 18 U.S.C. § 2315 requires the government to prove
that the defendant knew the goods were stolen), abrogated on other
grounds by Huezo, 546 F.3d at 180 n.2. Proof that the defendant
engaged in suspicious behavior, without proof that he had
knowledge that his conduct involved narcotics, is not enough to
support his conviction for conspiracy to traffic in narcotics.
See, e.q., Lorenzo, 534 F.3d at 160-62. "'"Proof that the
defendant knew that some crime would be committed is not
enough. "'" Rodriquez, 392 F.3d at 545 (quoting Morgan, 385 F.3d
at 206 (quoting Friedman, 300 F.3d at 124) (emphasis in
Friedman) ) .

" ' [B]oth the existence of a conspiracy and a given
defendant's participation in it with the requisite knowledge and
criminal intent may be established through circumstantial
evidence. '" Huezo, 546 F.3d at 180 (quoting United States v.
Stewart, 485 F.3d 666, 671 (2d Cir. 2007) ); see, e.g., Friedman,
300 F.3d at 124; cf. Morgan, 385 F.3d at 205-06 (properly
instructed jury is entitled to infer the requisite knowledge on
the basis of evidence that the defendant consciously avoided
learning the nature of the conspiracy). "Nevertheless, where the
Government seeks to prove a fact that is also an element of the

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offense by circumstantial evidence, [w]e must . . . be satisfied
that the inferences are sufficiently supported to permit a
rational juror to find that the element, like all elements, is
established beyond a reasonable doubt." Friedman, 300 F.3d at 124
(internal quotation marks omitted) ; see, e.q., Rodriquez, 392 F.3d
6 at 544.

## B. Our Standard of Review

For a defendant who challenges the sufficiency of the
evidence to support his conviction, our standard of review poses
high obstacles. In reviewing such a challenge we "must view the
evidence in the light most favorable to the government, crediting
every inference that could have been drawn in the government's
favor." United States v. Chavez, 549 F.3d 119, 124 (2d Cir.
2008) ("Chavez") . We defer "to the jury's determination of the
weight of the evidence and the credibility of the witnesses, and
to the jury's choice of the competing inferences that can be drawn
from the evidence." United States v. Morrison, 153 F.3d 34, 49
(2d Cir. 1998); see, e.q., Samaria, 239 F.3d at 233. The
government's proof "need not eliminate every possible theory of
innocence, " United States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir.
1993) ; and in assessing whether the government has met its burden,
we view pieces of evidence "not in isolation but in conjunction, "
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United States v. Maldonado-Rivera, 922 F.2d 934, 978 (2d Cir.
1990), cert. denied, 501 U.S. 1233 (1991). "The conviction must
be upheld if 'any rational trier of fact could have found the

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essential elements of the crime beyond a reasonable doubt. '"
Chavez, 549 F.3d at 124 (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979) (emphasis in Jackson) ) ; see, e.q., Samaria, 239
F.3d at 233.

These principles apply whether the evidence being reviewed
is direct or circumstantial. See Glasser v. United States, 315
U.S. 60, 80 (1942). Where direct evidence is absent, however,
" [c]ircumstantial evidence of knowledge and specific intent
sufficient to sustain a conviction must include some indicia of
the specific elements of the underlying crime." Samaria, 239 F.3d
at 235. And while we defer to a jury's assessments with respect
to credibility and conflicting testimony, and to its choice
between the competing inferences that can be drawn from the
evidence, the jury's inferences must be "reasonably based on
evidence presented at trial, " not on speculation, United States v.
Ceballos, 340 F.3d 115, 125 (2d Cir. 2003) (internal quotation
marks omitted) ; "'specious inferences are not indulged, '" Lorenzo,
534 F.3d at 159 (quoting Jones, 393 F.3d at 111) .

In Lorenzo, for example, while mindful that conspiracies
are undertakings in secret and often cannot be proven except
through the use of circumstantial evidence, see 534 F.3d at 161,
we found the evidence of knowledge on the part of Julio Lorenzo
insufficient to sustain his convictions for conspiracy to import
and conspiracy to distribute narcotics, given the absence of
evidence as to what was said in any of the conversations in which
he participated and the lack of evidence that he knew the contents

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of a suitcase a conspirator was carrying. Thus, "although there
[wa]s ample evidence demonstrating the existence of the
conspiracy, and that Julio was present at and participated in
events that furthered the conspiracy, there [wa]s insufficient
evidence to show that he did so knowingly and with the specific
intent to further a cocaine smuggling and distribution
conspiracy." Id. at 160. We noted that the fact that Julio
Lorenzo transferred $14,000 to one of the conspirators was

suspicious and, viewed in the light most favorable to
the government, indicative of participation in
illegal behavior. But such a transfer is consistent
with participation in a wide variety of offenses, and
in light of the other evidence, [wa]s insufficient to
prove Julio's intent to participate in the conspiracy
charged in the indictment.

Id.

In Friedman, we reversed the conviction of the defendant
Rodriguez, who furnished others with guns, for conspiracy to
commit extortion. Evidence of, inter alia, a lengthy telephone
call between the homes of a conspirator and Rodriguez did not
provide any basis for inferring that Rodriguez knew that there was
a conspiracy to use the guns to commit extortion, given that there
was no evidence as to the content of the telephone conversation.
We pointed out that evidence showing merely that a defendant
associated with conspirators "under suspicious circumstances, " and
that he "suspected (or should have suspected) that [a crime] might
occur," is not sufficient to show specific knowledge of the
purposes of the underlying conspiracy. 300 F.3d at 126 (internal
quotation marks omitted) .

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" [C] ircumstantial evidence of knowledge and specific
intent sufficient to sustain a conviction must
include some indicia of the specific elements of the
underlying crime, " such as "proof of a defendant's
knowledge or intent through evidence that the
defendant participated in conversations directly
related to the substance of the conspiracy, "
"possess [ion of] or mention [] in documents important
to the conspiracy, " "proof that a defendant exercised
authority within the conspiracy itself, " "recei [pt
of] a share of the profits from the conspiracy, " or a
defendant's statements "explicitly confirm[ing] the
nature of the activity in which the co-conspirators
were engaged. "

Id. (quoting Samaria, 239 F.3d at 235-36) .

In Rodriquez, we noted that the evidence was ample to show
that the defendant had served coconspirators as a lookout; but we
overturned his narcotics conspiracy conviction because there was
no evidence that he knew the transaction for which he was serving
as a lookout was one involving drugs. See 392 F.3d at 545-48.
The fact that the defendant may have sat beside a package
containing narcotics was, in the circumstances, not probative:

[T]he government would have us conclude that the
heroin was in plain view or could somehow be
identified if one were sitting next to it, such that
Rodriguez would have been aware of the nature of the
transaction. We cannot so hold.
[T]he heroin

was hidden inside a telephone box and also wrapped in
two bags.
Accordingly, even were we to assume
that Rodriquez sat near the heroin, this fact may not
serve as circumstantial evidence adequate to prove
Rodriquez's knowledge and intent.

Id. at 547 (emphases added) .

We reached a similar conclusion in Samaria, which involved
conspiracy convictions -- for conspiracy to receive or possess
stolen goods and conspiracy to commit credit card fraud -- of the
defendant Eliaho, a gypsy cab driver whose passengers, Glover and

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Samaria, loaded into his cab boxes of merchandise that had been
purchased with stolen credit information. We reversed Elaiho's
convictions because the government's evidence was "insufficient to
prove that Elaiho knew that the boxes in question contained stolen
goods, or further that he knew these goods had been stolen by
means of credit card fraud. " 239 F.3d at 236. Despite Elaiho's
presence in the car with boxes containing the goods, "the exterior
appearance of the boxes was equally consistent with any number of
different criminal offenses including the receipt and possession
of drugs, illegal weapons, counterfeit currency, or the receipt of
legal goods such as drug paraphernalia that would later be
employed in a criminal endeavor." Id. at 237. Further, the

requisite proof of knowledge was not supplied by evidence that
Elaiho was present on both occasions when law enforcement officers
observed conspirators picking up purloined merchandise and that
Elaiho rode in the passenger seat of his car on one such occasion.
We stated that

[t]hese facts may help establish that Elaiho had a
closer association with Glover and Samaria than that
of a taxi driver, and may, in conjunction with the
evidence of Elaiho's false exculpatory statements,
observation of the goods, and service as a "lookout, "
support an inference that Elaiho knew that Glover and
Samaria were engaged in some sort of criminal
enterprise. Together, this evidence offers us no
indicia, however, that Elaiho was aware of the
specific crimes charged and that Elaiho had the
specific intent to participate in those crimes.

Id. at 238 (emphasis added) .

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C. The Record in the Present Case

The evidence in the present case, taken in the light most
favorable to the government, was sufficient to permit the jury to
find one element of the conspiracy offense beyond a reasonable
doubt, i.e., that there existed a conspiracy for the distribution
of cocaine. Such an inference could be drawn from the facts that,
inter alia, 10 kilograms of cocaine were secreted in a shipment
sent from Puerto Rico to New York; that the shipment was
immediately preceded by dozens of calls between Puerto Rico and
(347) 712-4066, the telephone number that the shipper listed for
the Packages' addressee, plainly allowing the inference that more
than one person was involved with the shipment; that the telephone
contact number given for Torres, as the addressee of the Packages,
was registered to a person named Gonzales, was used to call UPS by
a person calling himself Padilla, and was used that day by others
after Torres went to the UPS store and was arrested; and that when
Bautista and the LP went to 124 Locust Hill after Bautista had
refused to release the Packages, there were four men who emerged
from behind the house to evince strong interest in the UPS truck.
Plainly, the evidence was sufficient to establish the existence of
a joint enterprise whose purpose was the distribution of cocaine.

Further, the evidence in the present case -- again viewed in
the light most favorable to the government -- showed plainly that
Torres had a connection with the Packages containing the cocaine.
Notwithstanding the spelling of Torres with a "z" on the Packages'
shipping labels, the Packages plainly were sent to Torres: On the

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day they were due to be delivered at 124 Locust Hill, he was at
that location attempting to take possession of them. On the
street in front of that address, Torres attempted to convince
Bautista to release the Packages to him; when that failed, Torres
followed Bautista to Bautista's next destination to try to
persuade him to release the Packages; and Torres went to the UPS
store to pick up the Packages. Plainly, Torres made assiduous
attempts to collect the Packages.
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The evidence as to Torres's statements and conduct was
likewise sufficient to permit an inference that Torres was most
likely aware that the Packages contained contraband of some kind.
Although he said in his postarrest statement that a man in a
Yonkers bodega had paid him to pick up the Packages, the Packages
were addressed to Torres. Torres gave a specious explanation for
the discrepancy between the 124 Locust Hill address to which the
Packages were shipped and the Brooklyn address on his New York
State ID Card, stating that he had moved but had not gotten his ID
Card updated -- an explanation that was implausible in light of the
fact that the superintendent at 124 Locust Hill did not know him,
and was false, assuming the truth of Torres's postarrest statement
that he was homeless. Further, Torres's attempt to gain
possession of the Packages on the street was suspicious in part
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because common sense suggests that a person expecting heavy boxes
would want them delivered to his apartment door. Torres's conduct
at the UPS store could also be viewed as suspicious. He "shooed
away" an offer to help him move the heavy Packages out to be

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loaded into his vehicle. After not being able to locate the
minivan in which he had arrived, Torres told Moreira that the
driver had needed to use a restroom and might have gone into
McDonald's; but Torres never looked for the driver in McDonald's,
or in any other store. When he finally decided to call a taxi,
Torres appeared nervous and suspicious and kept looking over his
shoulder toward the plainclothes detective, Carey. This
evidence -- especially the facts that Torres undertook to receive
heavy and bulky packages on the street, which were addressed to
him at a building with which he had no apparent connection --
permitted an inference that Torres would have known or suspected
that he was participating in something illicit.

What we do not see in the record, however, is any evidence
that Torres knew the Packages contained narcotics. There was, for
example, no cooperating witness testifying at trial. There was no
evidence of any drug records implicating him. The cocaine was
well concealed and not visible. There was no proof of any
narcotics-related conversation to which Torres was a party.

The government characterizes (347) 712-4066 -- the contact
number provided for Torres on the Packages' shipping labels -- as
"The Torrez Phone" and argues that "Torres had repeated contact
with the Puerto Rican shippers of the cocaine" (Government brief
on appeal at 27-28; see id. at 21-22). That characterization and
argument, however, are not sufficiently supported by evidence.
The telephone company records introduced by the government showed
that that telephone number was registered to an Antonio Gonzales,

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not to Torres. Further, those records showed that that telephone
was used by a person or persons other than Torres on the afternoon
of April 30, for they showed activity for that number after Torres
was in custody. Indeed, it appears that the only credible
evidence as to the use of that telephone by Torres himself at any
time was the evidence that Torres answered the second call made by
Carey to that number on April 30. Although the government
suggests that Torres had also used that phone to call UPS that
morning after Bautista refused to release the Packages, the UPS
record of that call (quoted in Part I.C. above) shows that the
caller identified himself as Gadrel Padilla. It seems highly
implausible -- and contrary to common sense to infer -- that that call
was in fact made by Torres, as that would mean he was attempting
to gain possession of the Packages by identifying himself as
someone other than the person to whom the Packages were addressed.
And as to the numerous contacts between the (347) 712-4066
telephone number and various numbers in Puerto Rico, the
government presented no evidence as to the identity or conduct of
Antonio Gonzales and no evidence that Torres was a party to any of
those calls to or from Gonzales's telephone. Without such
evidence, no rational juror could find that -- on a telephone proven
to belong to Gonzales and to have been used by persons other than
Torres -- the "repeated contact [s] with the Puerto Rican shippers of
the cocaine" (Government brief on appeal at 27-28) were made by
Torres. Thus, the telephone records did not provide a basis for a

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finding beyond a reasonable doubt that Torres had knowledge that
the Packages contained narcotics.

Finally, the government argues, relying on our decision in
Huezo, that it should be inferred that Torres had the requisite
knowledge of the nature and scope of the conspiracy because
otherwise the conspirators would not have reposed trust in him to
receive a shipment of cocaine that could be sold on the street for
$1 million. The analogy to Huezo is inapt.

In Huezo, which involved a conspiracy to launder
$1 million in drug proceeds, we indeed found it permissible for
the jury to infer that Huezo knew that he was participating in
money laundering. But the record in that case included evidence
that shortly before the money laundering transactions were
undertaken, Huezo and coconspirators Linares and Echevarria had
traveled from California to Connecticut; that in Connecticut Huezo
loaned his Jeep to Linares and Echevarria for a meeting with Del
Rio, the supposed money launderer (in reality an undercover
officer) ; that Huezo drove Linares, with a suitcase containing
$500, 000, to make a delivery to Del Rio; that two days later,
"after basically helping to guard the movement of a second
suitcase containing $500,000 into the Jeep, " Huezo drove Linares
and Echevarria with that $500,000 for delivery to Del Rio; that
Huezo himself took possession of another bag of money totaling
$6, 000, wrapped similarly to the $1 million delivered to Del Rio;
and that during this period Huezo socialized, dined, and shopped
with Linares and Echevarria, and they all lived in the same house,

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with the money. 546 F. 3d at 182-83 (internal quotation marks
omitted) . We concluded that

[b]ased on the complexity and scale of the money
laundering scheme, common sense and experience would
support an inference that the principals in the
conspiracy would not have trusted an outsider (with
no knowledge of their criminal purpose) to transport
$1 million in laundered funds, to be present when Del
Rio removed the first suitcase containing $500,000
from the trunk, and to share a house over several
days with witting conspirators.

Id. at 182.

In the present case, in contrast, the government presented
no evidence as to the nature of Torres's associations with the
persons who shipped the cocaine or with the persons who expected
to distribute it. There was no evidence of a sizeable payment to
Torres that might reflect an expectation related to the million-
dollar street value of the cocaine. There was no evidence of any
conduct by Torres other than his efforts to gain possession of the
Packages, which, as discussed above, did not show that he had
knowledge of the Packages' contents.

Nor was there evidence that Torres was placed in a
position of trust. The Packages, although addressed to him in
name, could not be received by him in a location that he
controlled; they were not addressed to his home (if he had a
home) but rather were addressed to him at a place with which he
was not shown to have any connection. Further, although UPS would
not release the Packages -- given their declared "high value" --
except to a person who could produce identification that he was
the intended recipient, when Torres first attempted to gain

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possession of the Packages with his (inadequate) ID Card, he was
accompanied by another man. When Torres followed Bautista to
Bautista's next destination, he was still accompanied by the other
man. When Bautista and the loss-prevention agent returned to 124
Locust Hill, Torres was accompanied by three other men. And when
Torres went to the UPS store to pick up the Packages, he was
driven there, again with no prospects of having sole dominion over
the Packages. Torres was never in a position to be alone with the
Packages until the driver of the minivan fled the mall upon
spotting the police surveillance. This record does not lend
itself to an inference that Torres was so trusted that he must
have known that he was dealing with narcotics.

In sum, we conclude that the evidence at trial, viewed as
a whole and taken in the light most favorable to the government,
was insufficient to permit the jury to find beyond a reasonable
doubt that Torres knew that the Packages addressed to him
contained narcotics, and hence was insufficient to establish that
he had knowledge of the purposes of the conspiracy of which he was
accused.

# CONCLUSION

We have considered all of the government's arguments in
support of Torres's conviction and have found them to be without
merit. The judgment of the district court is reversed, and the
matter is remanded for entry of a judgment of acquittal.

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August Term, 2009 Argued: February 18, 2010 Decided: May 5, 2010 Docket No.… v. - Jose Torres

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