U.S. v. Maltos ( 1992 )


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  •                      IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _______________
    No. 92-2040
    _______________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    VERSUS
    JOSE ARMANDO MALTOS,
    Defendant-Appellant.
    _________________________
    Appeal from the United States District Court
    for the Southern District of Texas
    (CR H 91 0088 03)
    _________________________
    (November 30, 1992)
    Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.
    JERRY E. SMITH, Circuit Judge:*
    Jose Armando Maltos ("Maltos") appeals his conviction, by a
    jury,     of   one    count   of   conspiracy   to   possess    with   intent    to
    distribute in excess of five kilograms of cocaine, in violation of
    
    21 U.S.C. §§ 841
    (a)(1),    841(b)(1)(A),    and    846.     Finding    the
    evidence insufficient as a matter of law to sustain the jury's
    verdict, we reverse.
    *
    Local Rule 47.5.1 provides: "The publication       of opinions that have no
    precedential value and merely decide particular cases      on the basis of well-
    settled principles of law imposes needless expense on      the public and burdens
    on the legal profession." Pursuant to that rule, the       court has determined
    that this opinion should not be published.
    I.
    Sometime before May 12, 1991, members of the Houston High
    Intensity Drug Trafficking Area Task Force established surveillance
    on two individuals believed to have been engaged in narcotics
    trafficking in Houston, Texas.          On May 12, a surveillance team
    followed a Chevrolet Blazer occupied by Roman Suarez and Antonio
    Rios, Maltos's codefendants, and being driven from Houston to San
    Antonio, Texas.
    The   surveillance   team   observed    Rios   stop    at   a   Denny's
    Restaurant, where Suarez proceeded to make a number of telephone
    calls from a pay phone.          Shortly afterwards, a pickup truck
    arrived, and Suarez entered the truck and left, while Rios remained
    behind.
    Agents following the truck observed it making "heat" runs and
    eventually followed it to a residence at 154 East Ackard Street,
    San Antonio. Suarez and the driver entered and remained inside for
    approximately one hour. The two then drove back to the restaurant,
    where Suarez got back into Rios's vehicle. The unidentified driver
    then drove the pickup truck to a motel parking lot adjacent to the
    restaurant, where he parked the truck and left the area on foot;
    the driver was not seen again.     Rios and Suarez left the restaurant
    parking lot and set out in the direction of downtown San Antonio.
    At 3:45 p.m., Maltos and his brother, Rolando Maltos ("Ro-
    lando") arrived at the motel in a gray Ford LTD.           Rolando entered
    the abandoned pickup truck and drove to South Park Mall; Maltos
    followed him in the gray LTD.     At the mall, the brothers proceeded
    2
    to the Chelsea Pub, where five minutes later Rios and Suarez joined
    them for a thirty-minute meeting.
    After the meeting, surveilling police followed the Maltos
    brothers to the East Ackard address. Rolando left the pickup truck
    and entered the gray LTD with Maltos.   Together, they drove to the
    Amber apartments complex, where Maltos parked his vehicle on the
    street and entered a blue Mercury parked in the apartment complex
    lot.   The brothers then proceeded in their separate cars to a gas
    station, where Maltos fueled the Mercury, while Rolando used a pay
    phone.   From the gas station, Rolando returned to the East Ackard
    residence; the police were unable to keep track of Maltos.   At this
    time, agents noticed that a black-over-white Ford LTD was now
    parked at the East Ackard house.
    Surveillance agents followed the Blazer in which Rios and
    Suarez were traveling east on Interstate 10 toward Houston.      At
    Highway 6 near Houston, Rios and Suarez met up with Maltos, driving
    the Mercury in which he had last been seen.     Both vehicles then
    proceeded southbound on Highway 6 to another mall, where Suarez
    used a pay phone while Maltos waited in the Mercury.   Both vehicles
    then left the mall, Maltos following Rios, for the Ashford Creek
    Apartments, where Maltos parked his car and left with Rios in his.
    They proceeded to a Fiesta Mart parking lot, where they met Suarez.
    Maltos again switched cars, exiting Rios's vehicle and leaving with
    Suarez in a silver Toyota pickup truck.
    Suarez drove to a nearby liquor store to use a pay phone.
    Suarez and Maltos then drove past the Mercury, still parked at the
    3
    apartments, and agents noted that the taillights of the truck lit
    up, indicating that the car had slowed so that Maltos could point
    out the location of the Mercury to Suarez.                  The truck regained
    speed, eventually stopping at a convenience store, where Suarez
    again made some calls from a pay phone.           Agents observed the truck
    repeat this behavior )) successive stops to make calls from public
    phones )) before they lost track of the vehicle containing Suarez
    and Maltos.
    At   about    10:00   p.m.,    Rios     arrived   at   the   Ashford    Creek
    Apartments.      The police followed the Blazer and the Mercury to the
    Hector Torres residence at 11103 Kerwin Street, where the Blazer
    made several "heat runs."          The driver of the Mercury got out and
    entered the Torres residence, re-emerging five minutes later after
    various vehicles had been moved to facilitate the Mercury's access
    to the garage.      Agents would later seize 294 kilograms of cocaine
    from the residence during the execution of a search warrant.
    The Mercury remained in the garage until the next morning,
    when, at approximately 8:00 a.m., agents watched it being taken
    from the garage with the rear end "jacked up" very high.                 The car
    was driven to a local Motel 6 in that condition, where it was left
    in the motel parking lot.          Shortly thereafter, Suarez and Maltos
    emerged from the motel, and Maltos opened the trunk of the Mercury
    with a key in his possession.            One of the two (it is not clear
    which)    then   lowered   the     air   shocks   to   an   apparently      normal
    condition. After a brief conversation with Suarez, Maltos returned
    the Mercury to San Antonio, interrupting his trip one time to make
    4
    several calls from a pay phone.
    When he arrived back at the Amber apartments in San Antonio,
    Maltos was met by the silver Toyota truck in which agents earlier
    had observed him with Suarez.         He left the apartments as a
    passenger, and the driver proceeded to another public phone to make
    several calls.    Approximately ten minutes later, they returned to
    the Amber apartments. Sometime during the intervening ten minutes,
    Rolando Maltos had joined Maltos and the driver of the truck.
    At the apartments, Maltos walked behind the complex and
    emerged shortly thereafter, driving the same Ford LTD in which he
    had been observed the previous day.    He was not tailed, but agents
    later observed him backing the car up to Apartment 28 at 1831
    Sherwood Forest, sometime after 6:00 p.m. that evening.      The car
    left almost immediately, driven by Rios to a local La Quinta motel
    parking lot where he left it.
    Suarez and Maltos were later observed at the La Quinta between
    9:00 and 9:30 p.m., Suarez arriving in the Blazer and Maltos
    driving the silver Toyota pickup.      Both Suarez and Maltos made
    several calls from the motel's public phones.         At this time,
    surveillance agents arranged to have the Ford LTD searched by a dog
    trained to sniff out drugs.     The dog alerted to the trunk of the
    LTD.
    On May 15, 1991, a search warrant was executed, resulting in
    the seizure of eight green duffle bags and a black plastic garbage
    bag of cocaine found under the stairs at the Sherwood Forest
    apartment where Maltos had previously left the Ford LTD.     In all,
    5
    225 kilograms of cocaine were seized.
    Prior to the arrests of the defendants on May 15th, surveil-
    lance agents assigned to Suarez and Rios observed Suarez leave a
    room at a Motel 6 and proceed next door to a gas station where he
    made several calls from the pay phone.          He remained at the station
    approximately ten to fifteen minutes, then returned to his motel
    room.    Shortly thereafter, Rios arrived at the motel and entered
    the same room.
    Prior to Rios's arrival, Suarez had left the room twice to
    make more phone calls, again at public pay phones.              After Rios's
    arrival, the two left the motel together, stopping several times
    along   the   way   to   make   still   more   calls   from   public    phones.
    Eventually, the two arrived at a travel agency in South Houston,
    where they remained approximately one to one and one-half hours.
    Upon leaving, they entered a Mexican restaurant in the same mall,
    remaining there for a similar period of time.
    When Suarez and Rios left the restaurant, they made additional
    stops to place phone calls.             When they arrived later at the
    Memorial City mall, Suarez was observed using his cellular phone
    before entering the mall.        Yet on their return to the Motel 6, the
    two again stopped at a mall to use the public phones.                  Finally,
    Suarez and Rios arrived back at the motel at approximately 6:30
    p.m.    As they proceeded toward room 221, they were met on the
    staircase by Maltos and one Maximeno Hernandez, whereupon all four
    were arrested.      Later, Maltos signed a consent-to-search form for
    room 221, claiming it was his.              The motel's records, however,
    6
    showed that the room had been rented by Suarez.
    II.
    Maltos raises two issues on appeal.         His first issue is that
    the evidence was insufficient to uphold his conviction on the
    conspiracy charge.       Second, Maltos contends that his acquittal on
    the substantive charges of aiding and abetting the possession with
    intent to distribute and distribution in excess of five kilograms
    of cocaine (counts two and three of the indictment, respectively)
    reflects an inconsistent verdict necessitating the reversal of his
    conviction on the conspiracy charge (count one).
    In evaluating the sufficiency of the evidence, a reviewing
    court must consider the evidence in the light most favorable to the
    verdict and determine whether a rational jury could have found the
    essential elements of the offense beyond a reasonable doubt.
    Glasser v. United States, 
    315 U.S. 60
    , 80 (1942); United States v.
    Chavez, 
    947 F.2d 742
    , 744 (5th Cir. 1991).            Our evaluation must
    give the government the benefit of all reasonable inferences and
    credibility choices. United States v. Hernandez-Palacios, 
    838 F.2d 1346
    , 1348 (5th Cir. 1988).
    In a drug conspiracy prosecution under 
    21 U.S.C. §§ 841
    (a)(1)
    and 846, the government must prove beyond a reasonable doubt
    (1) the existence of an agreement between two or more persons to
    violate the narcotics laws, (2) that the defendant knew of the
    agreement,   and   (3)    that   he    voluntarily   participated   in   the
    agreement.   United States v. Gallo, 
    927 F.2d 815
    , 820 (5th Cir.
    7
    1991).   The government need not prove the essential elements by
    direct evidence alone.       "The agreement, a defendant's guilty
    knowledge and a defendant's participation in the conspiracy all may
    be inferred from the ``development and collocation of circum-
    stances.'"   United States v. Lentz, 
    823 F.2d 867
    , 868 (5th Cir.)
    (quoting United States v. Vergara, 
    687 F.2d 57
    , 61 (5th Cir.
    1982)), cert. denied, 
    484 U.S. 957
     (1987).
    While "presence or association is one factor that the jury may
    rely on, along with other evidence, in finding conspiratorial
    activity by a defendant,"     United States v. Magee, 
    821 F.2d 234
    ,
    239 (5th Cir. 1987), it is well established that mere presence at
    the crime scene or close association with conspirators, standing
    alone, will not support an inference of participation in the
    conspiracy. United States v. Fitzharris, 
    633 F.2d 416
    , 423 (5th
    Cir. 1980), cert. denied, 
    451 U.S. 988
     (1981).    And while circum-
    stantial evidence may be particularly valuable in proving the
    existence of the conspiratorial agreement, we have repeatedly
    stressed that we will not lightly infer a defendant's knowledge of
    and participation in a conspiracy.    United States v. Jackson, 
    700 F.2d 181
    , 185 (5th Cir.), cert. denied, 
    464 U.S. 842
     (1983).   Thus,
    the government may not prove up a conspiracy merely by presenting
    evidence placing the defendant in "a climate of activity that reeks
    of something foul."   
    Id.
     (quoting United States v. Galvan, 
    693 F.2d 417
    , 419 (5th Cir. 1982)).
    Maltos argues that the government failed to prove that he knew
    of, or intentionally participated in, a conspiracy, or that any
    8
    connection he may have had with the conspirators went beyond mere
    presence at the scene of criminal activity or innocent association
    with one or more of the conspirators. The government counters that
    the jury reasonably could infer Maltos's guilt on the conspiracy
    count by the obvious relationship between himself and the three
    other prime conspirators )) Suarez, Rios, and the defendant's
    brother, Rolando Maltos. In addition, Maltos's presence at various
    times and places coincided to a remarkable extent with that of the
    conspirators and of the cocaine ultimately seized.   Citing to our
    recent decision in United States v. Pruneda-Gonzalez, 
    953 F.2d 190
    ,
    196-97 (5th Cir.), cert. denied, 
    112 S. Ct. 2952
     (1992), the
    government asserts that the jury reasonably could have inferred
    that his co-defendants would not have permitted Maltos to accompany
    them in the performance of tasks central to their illegal operation
    had he not been in on the conspiracy.   The government concludes,
    "The confluence of these circumstances in time and place fully
    support [sic] the jury's verdict."
    Despite the undeniable "flurry of activity" presented by the
    facts of this case, see Galvan, 
    693 F.2d at 420
    ; Vergara, 
    687 F.2d at 61
    , and the concomitant certainty that a conspiracy existed, we
    do not believe the jury reasonably could have found Maltos guilty
    beyond a reasonable doubt.   Our cases seem to call for something
    more than what the evidence showed in this case, namely, Maltos's
    association with individuals engaged in the transport of cocaine
    and his presence during the transport of two shipments of such
    contraband.   Although damning when viewed cumulatively, this is a
    9
    classic   example   of   the   type   of    evidence   upon    which   we   have
    prohibited the basing of conspiracy convictions.               Fitzharris, 
    633 F.2d at 423
    .
    The evidence presented in the instant case compares less with
    Pruneda-Gonzalez,    urged     by   the    government,   than    the   case   we
    distinguished in reaching our decision therein.               In United States
    v. Gardea Carrasco, 
    830 F.2d 41
     (5th Cir. 1987), we reversed a drug
    conspiracy conviction based upon the insufficiency of the evidence
    to support it.      The defendant's participation in the alleged
    conspiracy there is factually quite similar to that in the instant
    case:
    The evidence showed the defendant accompanied a
    codefendant to the airport on two occasions and helped
    transfer suitcases full of marihuana from the pickup
    truck to the plane, other evidence placed a codefendant
    at the defendant's house at various times on the two days
    in question, and testimony established that on a date 25
    days earlier the codefendant took three suitcases into
    the defendant's house. . . . No direct or circumstantial
    evidence established the defendant was privy to the
    content of the two conversations or knew the content of
    the suitcases he helped transfer from the pickup truck to
    the airplane. The suitcases delivered to the defendant's
    house 25 days earlier were not proved to be the same
    suitcases used to transport the marihuana.            The
    defendant's association with conspirators and his
    presence at the airport at the time the marihuana was
    transferred were not enough to prove beyond a reasonable
    doubt that he knew of and voluntarily joined in the
    conspiracy.
    Pruneda-Gonzalez, 953 F.2d at 195 (citations omitted).
    While no case will prove likely to be on all fours with the
    pattern of facts presented by the case before us, the parallels in
    Pruneda to Maltos's participation are obvious. Other than evidence
    of Maltos's association with the conspirators, and his presence at
    10
    the time of the transactions, the government presented no proof
    establishing his knowledge of, or participation in, the conspiracy.
    As in Gardea Carrasco, no evidence established that Maltos knew the
    content of the myriad phone calls his codefendants placed from
    public phones or that his own conversations, whether by phone or
    during    meals    with    his   codefendants,      concerned     the    drug
    transactions.     Also as in Gardea Carrasco, no evidence )) direct or
    circumstantial )) demonstrated that he knew the contents of the
    cars he was transporting, or even that they contained contraband at
    the time he was transporting them.
    Although a dog trained to sniff out contraband alerted to the
    trunk of the car Maltos had been driving, no evidence was presented
    that in fact drugs were present in the car or that any such drugs
    had been put there with Maltos's knowledge of the fact.             Nor will
    Maltos's presence while one of the conspirators lowered the air
    shocks on the Mercury suffice to establish his complicity.                Our
    case law in this regard simply demands more in order to prove
    individual knowledge and participation.1
    By comparison, each of the cases relied upon by the government
    reveals )) in addition to the defendant's association with and
    participation in criminal activity )) some further circumstance
    1
    See United States v. Espinoza-Seanez, 
    862 F.2d 526
    , 537-39 (5th Cir.
    1988) (evidence insufficient where defendant drove conspirators to rendezvous
    and was arrested with a cellular phone and $1,700 in his possession); United
    States v. Blessing, 
    727 F.2d 353
    , 355-56 (5th Cir. 1984) (conviction reversed
    where evidence only established defendant and codefendant arrived by plane and
    checked into and out of hotel together, and defendant rented in his name a car
    and van used by coconspirators in furtherance of conspiracy), cert. denied,
    
    469 U.S. 1105
     (1985); Jackson, 700 F.2d at 185-86 (reversing where evidence
    indicated that defendant joined coconspirators in restaurant, but did not show
    his knowledge of nature or purpose of meeting or that a large sum of money was
    present, or that he participated in discussions involving drug transactions).
    11
    from which the jury reasonably could infer his specific knowledge
    and willful participation.        In Pruneda-Gonzalez, for example, we
    allowed the jury to infer these elements based upon the fact that
    the acts in furtherance of the conspiracy were completed within a
    narrow time frame.      We thus found it a reasonable inference that
    "the three defendants would not have permitted Pruneda to accompany
    them in performing tasks vital to the success of the crimes ))
    undertaken within so close a time frame as to indicate knowledge
    of, and intentional participation in, crimes in progress )) had
    Pruneda not knowingly and intentionally joined the venture."              953
    F.2d at 196-97 (emphasis added).          The time frame in the instant
    case )) in which the transactions occurred over a two- to three-day
    period   ))   as well as the evidence adduced as to defendant's
    knowledge,    clarify    that   Maltos's     predicament    parallels     the
    defendant's in Gardea Carrasco, not Pruneda:
    In Gardea Carrasco the defendant was not shown to
    have had knowledge of the contents of the suitcases or to
    have been part of pertinent conversations.        In the
    present case the evidence )) viewed favorably to the
    verdict )) permitted the jury to find Pruneda admitted he
    had knowledge of the contents of the van and even of the
    approximate quantity of marihuana . . . .             The
    circumstantial evidence in the record is also stronger.
    In Gardea Carrasco the defendant participated in events
    that transpired on two different days . . . .
    Id. at 196 (emphasis added).2
    In summary, we must conclude that the evidence adduced by the
    government at trial, when viewed in the light most favorable to the
    2
    Cf. United States v. Chavez, 
    947 F.2d at 745
     (evidence sufficient
    where defendants found actually unloading bags of cocaine from truck); United
    States v. Rodriguez-Mireles, 
    896 F.2d 890
    , 892-93 (5th Cir. 1990) (footprint
    evidence supported inference of both existence of conspiracy and defendant's
    knowing participation in it).
    12
    verdict, cannot support an inference of Maltos's guilt beyond a
    reasonable   doubt.   Although   Maltos   presented   no   alternative
    explanations for his conduct, he bore no burden of proof to do so.
    Espinoza-Seanez, 862 F.2d at 538.         Although we give all due
    deference to the jury's weighing of facts and credibility, the
    question before us simply concerns whether the undisputed material
    facts may suffice to convict Maltos beyond a reasonable doubt.
    The evidence in this case shows little beyond that "climate of
    activity that reeks of something foul," Jackson, 700 F.2d at 185,
    proximity to which cannot sustain a conspiracy conviction.          We
    conclude that Jose Armando Maltos's conviction for conspiracy must
    be reversed. We therefore do not reach his second issue contesting
    the allegedly inconsistent jury verdict.
    REVERSED.
    13