USA v. Lorenzo, No. 07-1435 (2d Cir. 2008)
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07-1435-cr(L) USA v. Lorenzo 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ---August Term, 2007 (Argued: June 16, 2008 Decided: July 18, 2008) Docket Nos. 07-1435-cr(L), 07-1855-cr(CON) -----------------------------------------------UNITED STATES OF AMERICA, Appellee, -v.ANDREA LORENZO and JULIO LORENZO, Defendants-Appellants, FRANCISCA LEERDAM, Defendant. -----------------------------------------------Before: JACOBS, Chief Judge, STRAUB, Circuit Judge, and JONES, District Judge.* On appeal from judgments of conviction entered in the 35 Eastern District of New York (Walter, J.) following a jury trial, 36 in which both defendants-appellants were convicted of conspiracy to 37 import cocaine in violation of 21 U.S.C. §§ 960 and 963; and * The Honorable Barbara S. Jones of the United States District Court for the Southern District of New York, sitting by designation. -1- 1 conspiracy to distribute and possess with intent to distribute 2 cocaine in violation of 21 U.S.C. §§ 841 and 846. 3 appellant Andrea Lorenzo was also convicted of importation of 4 cocaine in violation of 21 U.S.C. §§ 952 and 960. 5 6 Reversed and remanded for entry of Defendant- judgments of acquittal. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RAMON A. PAGAN, Bronx, New York, for Defendant-Appellant Andrea Lorenzo. JANEANNE MURRAY, New York, New York (Robert A. Culp, Garrison, New York, on the brief), for DefendantAppellant Julio Lorenzo. BRIAN MEAGHER, Assistant United States Attorney, Brooklyn, New York (Benton J. Campbell, United States Attorney for the Eastern District of New York, Susan Corkery, Elizabeth A. Geddes, Assistant United States Attorneys, Brooklyn, New York, on the brief), for Appellee. JONES, District Judge: 26 Defendants-appellants Andrea and Julio Lorenzo, following 27 a four-day jury trial of a four-count superseding indictment before 28 Donald E. Walter, Visiting Judge,1 in the United States District 29 Court for the Eastern District of New York, were convicted of 30 conspiracy to import cocaine in violation of 21 U.S.C. §§ 960 and 31 963 (Count 1); and conspiracy to distribute and possess with intent 1 The Honorable Donald E. Walter of the United States District Court for the Western District of Louisiana. -2- 1 to distribute cocaine in violation of 21 U.S.C. §§ 841 and 846 2 (Count 3). 3 21 U.S.C. §§ 952 and 960, Andrea Lorenzo was convicted, while Julio 4 Lorenzo was acquitted. 5 attempted possession of cocaine with intent to distribute in 6 violation of 21 U.S.C. §§ 841 and 846. 7 sentenced to a term of 60 months imprisonment, to be followed by 8 a 9 assessment. As to Count 2, importation of cocaine in violation of four-year term of Both Lorenzos were acquitted of Count 4, supervised release, Andrea Lorenzo was and a $300 special The district court sentenced Julio Lorenzo to 60 10 months imprisonment, 11 supervised release, and a $200 special assessment. 12 Lorenzos 13 insufficient to sustain the judgments of conviction against them. 14 Julio Lorenzo also argues alternatively that he should be granted 15 a new trial in the interest of justice, and raises challenges to 16 his sentence. 17 support the judgments of conviction, and for the reasons that 18 follow, reverse the judgments of conviction against Andrea and 19 Julio Lorenzo and remand to the district court for entry of 20 judgments of acquittal.2 contend to that be the followed evidence by a four-year adduced term of On appeal, the at trial was We agree that the evidence was insufficient to 21 22 2 Following oral argument and upon due consideration of the record on appeal, we issued an Order filed June 17, 2008, reversing Andrea Lorenzo s judgment of conviction, issuing the mandate forthwith, and noting that an opinion would issue in due course. -3- 1 BACKGROUND 2 The present prosecutions arose out of a controlled 3 delivery of narcotics initiated after officers with Customs and 4 Border 5 cocaine hidden in defendant Francisca Leerdam s suitcases during a 6 routine 7 Airport ( JFK Airport ) on October 13, 2005. The evidence at trial 8 consisted largely of, inter alia, Leerdam s testimony as to the 9 events surrounding the October 13, 2005 trip and a previous trip 10 she made to the United States a month earlier, and the testimony of 11 various agents involved in the customs search and controlled 12 delivery; the Lorenzos offered no evidence. 13 summarized below in the light most favorable to the prosecution. 14 A. Protection customs ( CBP ) discovered examination at John over F. three Kennedy kilograms of International The evidence is Leerdam s Entry into the Conspiracy 15 In July, 2005, Leerdam met a man known as Amauri (Andrea 16 Lorenzo s nephew) in a nightclub in Santo Domingo in the Dominican 17 Republic, who offered her a job smuggling drugs outside of the 18 Dominican Republic. (Trial Transcript ( Tr. ) at 141-42.) The day 19 after their meeting at the nightclub, he asked Leerdam to meet him 20 at a house, where she found him cutting up carrots that she learned 21 were for her to swallow to train [her], to see if [she] could 22 swallow drugs. 23 carrots easily, and thus planned to smuggle drugs outside of the 24 Dominican Republic in suitcases instead. (Id. at 143.) Leerdam was unable to swallow the -4- (Id. at 144.) 1 Leerdam s first smuggling trips--three in all--were from 2 the Dominican Republic to the Netherlands; for each trip, she 3 received approximately $3,000 from Amauri, (id. at 183). Amauri 4 then asked her to smuggle drugs into the United States. Leerdam 5 initially refused because of her view that there were too many 6 police officers . . . in the U.S., (id. at 145), but eventually 7 acceded to Amauri s request. 8 B. The September Trip 9 Prior to Leerdam s first trip to the U.S., Amauri told 10 her to pack her clothing into a suitcase and take a taxi to a 11 store. 12 girlfriend, Camelina, with whom she went to a nearby hotel, where 13 Amauri arrived and instructed Leerdam to transfer her clothing from 14 her suitcase to one that he provided for 15 the hotel, he gave Leerdam an airplane ticket, her passport, $100 16 in cash, and a piece of paper with an address on it, and instructed 17 her to buy a phone card upon her arrival in the U.S. in order to 18 call him for further instructions. (Id. at 146.) Upon arrival, Leerdam her. met Amauri s (Id. at 147.) At (Id. at 147-48.) 19 On September 1, 2005, Leerdam departed from the Santo 20 Domingo Airport for JFK Airport. She passed through customs at JFK 21 Airport without incident, purchased a phone card, and called Amauri 22 for further instructions; he told her to take a taxi to Corona, 23 Queens. 24 two men were waiting, and one greeted her and eventually introduced At the location in Corona to which her taxi was directed, -5- 1 himself as Ronnie. 2 and removed the suitcase from the cab. Leerdam entered a different 3 vehicle with Ronnie and the other individual, and they drove to 4 Ronnie s apartment in Pennsylvania. 5 took Leerdam s suitcase into a bedroom, from which he emerged with 6 a different suitcase. 7 (Id. at 152-53.) Ronnie paid the taxi driver At Ronnie s apartment, Ronnie (Id. at 154.) Eventually, Ronnie and the other individual drove Leerdam 8 back to Corona, Queens. 9 Ronnie exited the car to speak with the driver of the S.U.V., Julio (Id. at 155.) In Corona, a white S.U.V. pulled up, and 10 Lorenzo. 11 5 minutes; Leerdam was unable to hear the contents of their 12 conversation. 13 which Julio had exited in order to get the suitcase. 14 entering the S.U.V., Leerdam met Andrea Lorenzo for the first time; 15 Andrea asked Leerdam how did it go for [you], (id. at 157), and 16 noted that Amauri had called and asked the Lorenzos to take Leerdam 17 to a nearby hotel, (id. at 157-58). 18 the S.U.V., while Julio accompanied Leerdam to the reception desk 19 and paid for one night s stay. 20 the room, and told Leerdam to call him if she needed anything. 21 (Id. at 158-59.) (Id.) Ronnie and Julio spoke for approximately Ronnie then told Leerdam to go to the S.U.V., (Id.) Upon At the hotel, Andrea stayed in Julio then escorted Leerdam up to 22 The next day, September 4, 2005, Julio returned to the 23 hotel with a brown bag containing $14,000 that he told Leerdam was 24 for Amauri, and wrapped the cash inside clothing in her suitcase. -6- 1 (Id. at 161.) Julio took Leerdam to JFK Airport and accompanied 2 her to the terminal from which her return flight was departing and 3 stayed with her until she checked her luggage. 4 When Leerdam arrived in Santo Domingo, she retrieved her suitcase 5 and received a phone call from Camelina, who picked Leerdam up and 6 took her to a nearby hotel. 7 counted the money in Leerdam s suitcase; Amauri called Camelina to 8 see if everything was complete, (id. at 165), which Camelina 9 confirmed. (Id. at 164.) (Id. at 161-63.) At the hotel, Camelina Camelina then gave Leerdam $3,000. (Id.) At trial, 10 Leerdam admitted that she had never seen the contents of the 11 suitcase during this trip, (id. at 191), though she simply assumed 12 that there were drugs therein because Amauri told her so, (id. at 13 187-88). 14 C. The October Trip 15 Shortly after the September Trip, Amauri asked Leerdam to 16 take another trip to the U.S., and Leerdam agreed. (Id. at 165- 17 66.) 18 Domingo to JFK Airport, this time with two suitcases provided by 19 Amauri. 20 underwent a routine customs examination, during which agents from 21 CBP discovered what was later determined to be 3.25 kilograms of 22 cocaine. 23 and 24 wholesale value of this cocaine was approximately $67,000, and that On October 13, 2005, Leerdam boarded a flight from Santo (Id. at 166.) Upon arrival at JFK Airport, Leerdam (Id. at 44-45, 269.) Customs Enforcement A special agent with Immigration ( ICE ) -7- testified at trial that the 1 the street value was approximately $260,000. 2 trial, Leerdam testified that until confronted by CBP agents, she 3 did not know the type or amount of drugs in her suitcases. 4 182.) Leerdam was arrested by CBP officers at approximately 11 p.m. 5 on October 13, (id. at 295-96), and she agreed to cooperate with 6 law enforcement by permitting certain phone calls to be monitored 7 and recorded, and participating in a controlled delivery of the 8 cocaine, (id. at 60-61, 169-70). 9 The first Republic; call to to find Amauri a taxi in the 11 preferably one who had a cellular phone, and to take the taxi to 12 103rd Street and Corona Avenue in Queens. 13 ( GX ) 14 Conversation between Leerdam and Amauri on October 13, 2005).) 15 agent from ICE, Jason Hurwitz, posed as a taxi driver and took 16 Leerdam in an undercover taxi to 103rd Street and Corona Avenue in 17 Queens. 18 another call to Amauri in the Dominican Republic. 19 During that call, Amauri asked to speak with the taxi driver and 20 told Hurwitz to take Leerdam to a nearby hotel. 21 at 3-4 (Translated English Transcriptions of Recorded Telephone and 22 Monitoring Device Conversations).) 23 Hurwitz, Amauri asked him to put Leerdam back on the line, and 24 altered course, giving Leerdam a local Queens number to call, with English her was (Id. at Dominican (Translated directed made At 10 10-A he Leerdam (Id. at 271-72.) driver, (Government Exhibit Transcription of Telephone An At approximately 12:45 a.m. on October 14, Leerdam placed -8- (Tr. 62.) (Id.; GX 3500FL4 After briefly conversing with 1 instructions to ask for Julio. 2 (Tr. 63; GX 3500FL4 at 4-7.) Leerdam called the Queens number shortly thereafter, 3 which was answered by Andrea. (Tr. 63.) 4 and when told that he was sleeping, responded that Amauri told her 5 to ask for him. 6 had just called, and that she should come to the Lorenzo residence 7 to wait for a taxi to take [her] to, to where . . . uh, Julito 8 took [her], (id. at 13), and that Amauri would be calling Andrea 9 back. (GX 3500FL4 at 11.) Leerdam asked for Julio, Andrea responded that Amauri Leerdam arrived at the Lorenzo residence at approximately 1 10 a.m. and found Andrea in her nightgown waiting on the porch. 11 63-64.) 12 Leerdam remove the suitcases from the trunk of the taxi; Andrea 13 took one suitcase and Leerdam took the other as they proceeded 14 towards the house. 15 placed the suitcase she was carrying inside the house. 16 180.) 17 their approach towards the house, the following exchange occurred: 18 19 20 21 22 23 24 25 26 27 28 29 30 31 (Tr. Hurwitz pulled the taxi in front of the house and helped (Id. at 66.) Upon reaching the porch, Andrea (Id. at During the course of Leerdam s egress from the taxi and LEERDAM: Is that you, ma [a]m? ANDREA: How are you, [unintelligible ( [U/I] )]? it, so much work, huh? LEERDAM: Yes. ANDREA: [U/I]. Damn [Pause] ANDREA: Oh, my God, honey! Yes, he called me, me and told me to call a taxi from the corner that I know to take you to the, the hotel. -9- 1 2 3 4 5 6 7 8 9 10 (GX 3500FL4 at 24.) 11 suitcases, she was interrupted by agents who told Leerdam and 12 Andrea not to move and proceeded to arrest them. 13 LEERDAM: Right. ANDREA: So you can spend the night right there. Because [U/I] I m sleeping in a room a lot smaller tha[n] this one. Otherwise, we could both be together. [U/I] a small bed. LEERDAM: And the suit-? As Leerdam was asking Andrea about the (Id.) Agents entered the Lorenzo home and came upon Julio 14 Lorenzo Jr., and arrested him. 15 agents that Julio Jr. was not the person whom she had dealt with 16 previously, 17 returned Julio Jr. and arrested the senior Julio Lorenzo. 18 Inside the home, agents recovered an address book which listed 19 several of Amauri s phone numbers repeatedly. and agents then (Tr. 71.) returned to Leerdam later told the home where they (Id.) (Id. at 67-68.) 20 Upon her arrest, Andrea was advised of and waived her 21 Miranda rights, and indicated her willingness to speak to law 22 enforcement. 23 shortly thereafter, Andrea disclaimed knowing Leerdam and said that 24 she had never seen her before. 25 she was doing a favor for her nephew by helping to get Leerdam 26 situated in a hotel, and that she had no intention of bringing 27 Leerdam into her house. 28 did not know what was in the suitcases and that it was a mistake to 29 do this favor for her nephew. (Id. at 210-11.) During an interview conducted (Id. at 211-12.) (Id. at 212.) (Id.) -10- She stated that Andrea also noted that she At a subsequent interview in 1 the early morning at the ICE office at JFK Airport, Andrea was 2 again advised of and waived her Miranda rights, and noted that she 3 had in fact met Leerdam approximately two months prior, but that 4 she didn t know her name. 5 and waived his Miranda rights during an interview at the ICE 6 office, and he stated that he had done a favor for his nephew by 7 picking Leerdam up, taking her to a hotel, and dropping her off at 8 JFK Airport. 9 (Id. at 285, 313.) 10 (Id. at 282.) (Id. at 284-85.) Julio was also advised of He denied giving Leerdam any money. The trial commenced on December 4, 2006, and the jury 11 returned its verdict on 12 judgment of 13 Lorenzo s was entered on May 1, 2007. 14 filed timely notices of appeal, and these appeals followed. conviction December was 7, entered 2006. on April Andrea 4, Lorenzo s 2007; Julio Both defendants-appellants 15 16 DISCUSSION 17 On appeal, the Lorenzos contend that there was 18 insufficient evidence adduced at trial to demonstrate that they 19 knowingly entered into the conspiracy with the specific intent to 20 commit the offenses that were the objects of the conspiracy. 21 Andrea Lorenzo also argues that the evidence was insufficient to 22 prove that she knowingly and intentionally imported cocaine. 23 agree. 24 We A defendant bears a heavy burden in seeking to overturn -11- 1 a conviction on grounds that the evidence was insufficient. 2 United States v. Cruz, 363 F.3d 187, 197 (2d Cir. 2004). 3 relevant question in this inquiry is whether, after viewing the 4 evidence in the light most favorable to the [government], any 5 rational trier of fact could have found the essential elements of 6 the crime beyond a reasonable doubt. United States v. Rodriguez, 7 392 F.3d 539, 544 (2d Cir. 2004) (quoting Jackson v. Virginia, 443 8 U.S. 307, 319 (1979)) (emphasis in Jackson). 9 not required; [i]n fact, the government is entitled to prove its 10 case solely through circumstantial evidence, provided, of course, 11 that the government still demonstrates each element of the charged 12 offense beyond a reasonable doubt. 13 the evidence in its totality, and the Government need not negate 14 every theory of innocence. 15 63 (2d Cir. 2002) (quoting United States v. Autuori, 212 F.3d 105, 16 114 (2d Cir. 2000)). 17 respect to credibility, conflicting testimony, and the jury s 18 choice of the competing inferences that can be drawn from the 19 evidence, specious inferences are not indulged, United States v. 20 Jones, 393 F.3d 107, 111 (2d Cir. 2004) (internal quotation marks 21 and 22 [Constitution] to have a jury determine that the defendant is 23 probably guilty. Rodriguez, 392 F.3d at 544 (quoting Sullivan v. 24 Louisiana, citation U.S. Direct evidence is Our evaluation looks at United States v. Glenn, 312 F.3d 58, While we defer to a jury s assessments with omitted), 508 Id. The because 275, 278 [it] (1993)) -12- would not (emphasis satisfy in the Sullivan; 1 alterations in Rodriguez). [I]f the evidence viewed in the light 2 most favorable to the prosecution gives equal or nearly equal 3 circumstantial support to a theory of guilt and a theory of 4 innocence, then a reasonable jury must necessarily entertain a 5 reasonable doubt. Glenn, 312 F.3d at 70 (internal quotation marks 6 omitted). 7 To sustain a conspiracy conviction, the government must 8 present some evidence from which it can reasonably be inferred that 9 the person charged with conspiracy knew of the existence of the 10 scheme 11 participated 12 quotations omitted). 13 conviction cannot be sustained unless the Government establishes 14 beyond a reasonable doubt that the defendant had the specific 15 intent to violate the substantive statute[s]. 16 Gaviria, 740 F.2d 174, 183 (2d Cir. 1984) (internal quotation marks 17 omitted). 18 government must prove that the defendant agree[d] on the essential 19 nature of the plan, United States v. Salameh, 152 F.3d 88, 151 (2d 20 Cir. 1998) (internal quotation marks omitted), and that there was 21 a conspiracy to commit a particular offense and not merely a vague 22 agreement to do something wrong, United States v. Provenzano, 615 23 F.2d 37, 44 (2d Cir. 1980) (internal quotation marks omitted). 24 alleged in in the it. indictment Rodriguez, and 392 knowingly F.3d at joined 545 and (internal [W]here the crime charged is conspiracy, a United States v. To convict a defendant as a member of a conspiracy, the [O]nce a conspiracy is shown to exist, the evidence -13- 1 sufficient to link another defendant to it need not be 2 overwhelming. 3 Cir. 1989) (internal quotation marks omitted). 4 circumstances . . . are not enough to sustain a conviction for 5 conspiracy, 6 implicated in an unlawful undertaking is not enough to prove 7 knowing involvement, id. at 764; likewise, a defendant s mere 8 presence at the scene of a criminal act or association with 9 conspirators does not constitute intentional participation in the 10 conspiracy, even if the defendant has knowledge of the conspiracy, 11 United States v. Samaria, 239 F.3d 228, 235 (2d Cir. 2001). 12 A. United States v. Nusraty, 867 F.2d 759, 762 (2d id. at 763, and mere But [s]uspicious association with those Julio Lorenzo 13 The government contends that there was ample evidence 14 adduced at trial to demonstrate that Julio knew that the object of 15 the conspiracy was cocaine smuggling and distribution, and points 16 principally to the following evidence as indicia of his knowledge: 17 (1) Julio s encounter and conversation with Ronnie in September 18 2005 followed by his stewardship of Leerdam until her flight back 19 to the Dominican Republic; (2) Julio s transfer of the $14,000 in 20 cash to Leerdam to deliver to Amauri; (3) Amauri s instruction to 21 Leerdam during the October 2005 trip that she call the Lorenzo 22 residence and ask for Julio; and (4) Julio s false exculpatory 23 statement upon questioning that he had never given Leerdam any 24 money. -14- 1 It is clear, viewing the evidence in the light most 2 favorable to the government, that a reasonable jury could find that 3 a drug-smuggling conspiracy existed and that Leerdam and Amauri 4 knowingly participated in it. The government s argument focuses on 5 various events that purportedly link Julio to this conspiracy. 6 However, 7 considered in the aggregate, still lacks a critical element -any 8 indication from which a jury could reasonably infer that Julio knew 9 of the nature and specific object of the conspiracy. the evidence highlighted by the government, when 10 First, although there is ample evidence demonstrating 11 the existence of the conspiracy, and that Julio was present at and 12 participated in events that furthered the conspiracy, there is 13 insufficient evidence to show that he did so knowingly and with the 14 specific intent to further a cocaine smuggling and distribution 15 conspiracy. With respect to the September trip, there is no 16 evidence the 17 conversation between Julio and Ronnie or the suitcase that Leerdam 18 was carrying. 19 gave 20 proceeds of the conspiracy, supporting an inference that Julio 21 knew of the aims of the conspiracy. 22 absence 23 contents of Leerdam s suitcase, or prior participation in this 24 conspiracy, and his complete lack of participation in the events to in as to the contents of either the The government contends that the $14,000 that Julio Leerdam of record any for delivery evidence to the indicating -15- Dominican Republic was However, in light of the Julio s knowledge of the 1 surrounding the October trip (where it is clear that cocaine was 2 actually smuggled into the country), we cannot say that there are 3 facts sufficient to draw a logical and convincing connection 4 between circumstantial evidence of an agreement, and the inference 5 that an agreement was in fact made, Jones, 393 F.3d at 111. 6 No doubt the transfer of $14,000 from Julio to Leerdam is 7 suspicious and, viewed in the light most favorable to the 8 government, indicative of participation in illegal behavior. But 9 such a transfer is consistent with participation in a wide variety 10 of offenses, and in light of the other evidence, is insufficient to 11 prove Julio s intent to participate in the conspiracy charged in 12 the indictment. 13 was insufficient evidence of defendant s intent to engage in a 14 conspiracy to receive or possess stolen goods despite his presence 15 in a car with boxes containing the goods because the exterior 16 appearance of the boxes was equally consistent with any number of 17 different criminal offenses including the receipt and possession of 18 drugs, illegal weapons, counterfeit currency, or the receipt of 19 legal goods such as drug paraphernalia that would later be employed 20 in a criminal endeavor ). See Samaria, 239 F.3d at 237 (holding that there 21 The government also asks us to view Amauri s instruction 22 that Leerdam call Julio during the October trip as supporting an 23 inference that Amauri would not have entrusted Julio with the 24 suitcases concealing the narcotics, worth over $250,000, unless -16- 1 Julio had known what was concealed within them and that it was 2 reasonably foreseeable to him that the smuggled narcotic from the 3 Dominican Republic was cocaine. 4 Julio cannot support such a speculative and attenuated inference; 5 Julio s 6 undermines the notion that it was critical that Julio specifically 7 be entrusted with such valuable narcotics. continued 8 9 dormancy This unfulfilled request for despite Leerdam s request severely Finally, the government relies on the false exculpatory statement made by Julio after his arrest. We have observed that 10 11 12 13 14 15 16 17 18 19 20 21 22 23 [w]hile false exculpatory statements made to law enforcement officials are circumstantial evidence of a consciousness of guilt and have independent probative force, . . . falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant s innocence as it is to the Government s theory of guilt. United States v. Johnson, 513 F.2d 819, 824 (2d Cir. 1975). 24 find that Julio s statement, while indicative of consciousness of 25 guilt, is insufficient in light of the rest of the evidence against 26 him. We 27 It bears emphasis that we recognize that a defendant s 28 knowing agreement to join a conspiracy must, more often than not, 29 be proven through circumstantial evidence, Nusraty, 867 F.2d at 30 764. 31 considered in the aggregate demonstrates a pattern of behavior from We have seen cases where -17- the circumstantial evidence 1 which a rational jury could infer knowing participation. 2 e.g., United States v. Martino, 759 F.2d 998, 1003-04 (2d Cir. 3 1985) (holding that defendant s arrival at a time and place where 4 a heroin transaction was scheduled to occur, where he witnessed an 5 exchange of money for packages of a substance made to resemble 6 heroin, coupled with statements indirectly indicating that he was 7 the 8 coincidental coming and going with participants in the conspiracy, 9 and a false exculpatory statement upon his arrest at the scene, was 10 sufficient circumstantial evidence to show knowing participation in 11 a conspiracy to distribute and possess with intent to distribute 12 heroin). 13 B. Andrea Lorenzo 14 1. The Conspiracy Counts intended eventual purchaser of a portion of the See, heroin, This is not such a case. 15 The evidence as to Andrea s knowing participation in the 16 conspiracy is even more sparse and requires little discussion. The 17 government contends that it was permissible for the jury to infer 18 that Andrea knowingly participated in the conspiracy with the 19 specific intent to import and distribute cocaine from: (1) the 20 record of conversations between Amauri and Andrea on the evening of 21 October 13, 2005; (2) Andrea s instruction to Leerdam that evening 22 that she come to the Lorenzo residence to take a different taxi to 23 a hotel; (3) her greeting of Leerdam as she arrived; (4) her 24 transfer of one of Leerdam s suitcases from the taxi into her -18- 1 house; (5) 2 September visit; and (6) Andrea s false exculpatory statement 3 following her arrest that she had never seen Leerdam before and did 4 not know her. 5 viewed in the light most favorable to the government, supports at 6 most 7 suspicious behavior; viewed in this light, it is also, as Andrea 8 contends, consistent with providing hospitality to her nephew s 9 girlfriend and regretting providing such assistance. an Andrea s presence in the S.U.V. during Leerdam s This evidence, considered in the aggregate and inference that Andrea knew that she was assisting See Glenn, 10 312 F.3d at 70 ( [I]f the evidence viewed in the light most 11 favorable 12 circumstantial support to a theory of guilt and a theory of 13 innocence, then a reasonable jury must necessarily entertain a 14 reasonable doubt. (internal quotation marks omitted)). 15 2. to the prosecution gives equal or nearly equal The Substantive Importation Count 16 Because the government proceeded on an aiding and 17 abetting theory with respect to the substantive importation count, 18 the government was required to prove, beyond a reasonable doubt, 19 that the defendant knew the specific nature of the . . . underlying 20 crime, United States v. Friedman, 300 F.3d 111, 124 (2d Cir. 21 2002). 22 counts against Andrea, the evidence was also insufficient to 23 support a conviction on this count. For the reasons discussed with respect to the conspiracy 24 -19- 1 C. Julio Lorenzo s Other Contentions 2 Because we reverse Julio s judgment of conviction in its 3 entirety on sufficiency grounds, we need not address his other 4 arguments. 5 6 CONCLUSION 7 For of the foregoing conviction are reasons, 8 judgments 9 remanded to the district court for entry of judgments of acquittal 10 on each count. 11 reversed defendants-appellants 1855) shall issue forthwith. in their entirety, and The mandate as to Julio Lorenzo (docket number 07- -20-
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