United States v. Kenneth Keith Wiseman ( 1994 )

Opinion by Judge HILL; Dissent by Judge ALARCON.

IRVING HILL, District Judge:

Defendant Kenneth Keith Wiseman and four others, Vizcarra, Lopez, Murphy and Branson, were indicted in a two-count indictment for narcotics offenses. Count one charged possession of marijuana with intent to distribute it. 21 U.S.C. § 841 (1988). Count two charged conspiracy to possess marijuana with intent to distribute it. 21 U.S.C. § 846 (1988). The four defendants, other than Lopez, were tried together. Lopez was a fugitive. Vizcarra and Murphy were convicted of both charges. Wiseman and Branson were acquitted on the possession charge but convicted on the conspiracy charge.

Wiseman appeals the conspiracy conviction on the sole ground of insufficient evidence. We reverse his conviction, finding that there was not sufficient evidence to allow a rational jury to find him guilty of the charge beyond a reasonable doubt.

I. THE TESTIMONY OFFERED AGAINST WISEMAN

The trial consisted almost entirely of the government’s case. The only defense evidence was the brief testimony of one defendant, Murphy, and two character witnesses. Murphy’s testimony included testimony exculpating Wiseman. It is worth summarizing the government case and describing in detail all of the government’s evidence tending to implicate Wiseman.

While working as a DEA informant in May 1992, in Tucson, Arizona, Frank Rendon was contacted, at about the same time, by two persons, co-defendants Lopez and Vizcarra. Lopez told Rendon that he was interested in buying a quantity of marijuana and Vizcarra told Rendon that he had a quantity of marijuana available which he would sell. The DEA gave Rendon permission to set up a transaction between Lopez and Vizcarra. A plan was developed whereby the seller would load the marijuana into a car which the buyer was to furnish. Rendon called Lopez, the buyer, and told Lopez to deliver a car for this purpose to Rendon’s house. Lopez, in the company of co-defendant Murphy, brought to Rendon’s house a Grand Marquis automobile belonging to Murphy. Murphy was known to Rendon; she had driven marijuana-loaded cars for Rendon in previous transactions. Under the plan, Vizcarra, the seller, was to pick up the car from Rendon’s house, take it to another location and load the marijuana into it. When it was loaded, Vizcarra would tell Rendon when and where to pick up the car. Lopez, the buyer, told Rendon that Murphy and Murphy’s daughter, Pam Bran-son, would pick up the loaded car and drive it away for him.

On May 14, 1992, the Grand Marquis, at Rendon’s house as per the plan, was picked up by Vizcarra. It was under DEA surveillance. Vizcarra drove the car into a residential property at 2848 Cottonwood Lane. The agents were not able to see what was done to the car thereafter and did not observe its being loaded with marijuana. On the same evening, Vizcarra again met with Rendon, got into Rendon’s car with him, and directed Rendon to drive to the Cottonwood Lane address, where Vizcarra told Rendon that the Grand Marquis was parked and loaded. Rendon could see the Grand Marquis on the premises.

Later the same evening, Rendon drove Lopez to the Cottonwood address and showed him- where on the premises the Grand Marquis was parked. Rendon then took Lopez to a bar so that the latter could, by telephone, tell Murphy to come and pick up the loaded car and where to find it.

At about 7:15 P.M. of the same evening, a Cadillac came to the Cottonwood Lane address. In it were three persons: Murphy and her daughter, Branson, who as stated, had been designated to drive the loaded Grand Marquis away, and defendant Wise-man. Branson was' driving the Cadillac. DEA agents were surveilling the Cottonwood Lane property and saw the Cadillac approach. They later saw the Grand Marquis being driven out of the premises with Wise-man driving and Murphy as passenger. DEA agents followed the Grand Marquis to a house at 4902 Massingale Road. Branson resided there. The Grand Marquis, with Wiseman still driving, was parked in the carport at the rear of the Branson house at about 7:35 or 7:40 P.M. A DEA agent, who had been surveilling the movements of the Grand Marquis, testified that Wiseman drove down Massingale Lane “approximately three times slowly by two or three different streets” before finally parking the car. But the same DEA agent, on cross-examination, said that there was nothing surreptitious, secret or unusual about the route taken or the way the car was driven.

Between 8:30 and 9:00 P.M., Lopez showed up at Rendon’s house and told Rendon that Murphy was staying away from the loaded car because there was a “problem”. The problem was the suspicion that there was “heat” on the car.

The loaded ear remained under surveillance at Branson’s house but was not picked up by anyone or even approached by anyone until after 9 P.M., by which time some co-defendants had been arrested at another location.

There was apparently no surveillance of Wiseman and Murphy after they parked the Grand Marquis at Branson’s house on Mas-singale Road. Moreover, there had apparently been no surveillance of the Cadillac after it had earlier dropped Murphy and Wiseman off at the Cottonwood Lane property. At about 9:00 P.M., DEA agents again spotted the Cadillac on Massingale ■ Road. They followed it to a Circle K parking lot. Murphy, Branson and Wiseman were in it along with a grandson of Murphy’s. All four occupants were arrested at the Circle K parking lot at about 9:15 P.M., and thereafter the agents drove all of the arrestees back to Branson’s house. They were kept in a van and apparently could not see what was happening. The loaded Grand Marquis was thereafter seized and the trunk was opened to reveal the marijuana. A DEA agent testified that he could smell the marijuana from outside of the car before the trunk was opened and he could smell an even stronger marijuana smell when seated inside the car. After the marijuana was found, the Branson house was searched. No marijuana was found therein.

The arrestees were taken to a DEA office at about 11:00 P.M. The arresting agent testified that he had told Wiseman only that Wiseman had been arrested on a narcotics charge without mentioning any specific substance. At the DEA office, Wiseman asked a different agent if the agents had found anything at the house. The agent replied that he did not understand what Wiseman was talking about. Wiseman then asked if they found any marijuana at the house.

The government’s case did not contain any evidence that mentioned Wiseman in any way or in any connection, prior to the time he was seen driving the Grand Marquis to Branson’s house on Massingale Road. Rendon, the informant who had made all of the arrangements with both sides, testified he had never heard of Wiseman. No evidence was offered that any DEA agent had ever heard Wiseman’s name prior to his arrest or that Wiseman took any part in any of the conversations in which arrangements were made. Nor was Wiseman’s name even mentioned in any of such conversations. There was no testimony from which it could even be inferred that Wiseman knew what marijuana smelled like and no testimony that Wiseman actually smelled the odor in the car.

As previously stated, Murphy took the stand in her own defense, and her testimony exculpated Wiseman. She described Wise-man as a family friend who “grew up” (apparently as close friends) with her children. Presently Wiseman was helping her maintain a rural six-acre property. She testified that Wiseman had come along in the Cadillac to fetch the Grand Marquis at her invitation and had offered to drive it back from the Cottonwood address. She accepted his offer because she did not like driving at night. Rendon testified that Lopez earlier had told him that Murphy did not like to drive at night because of eye problems.²

II. ANALYSIS

Wiseman does not challenge the existence of a conspiracy involving his co-defendants. He only challenges the sufficiency of the evidence connecting him to the conspiracy. “In considering a challenge to the sufficiency of the evidence, we consider ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Bautista-Avila, 6 F.3d 1360, 1362 (9th Cir.1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). To support a conviction of conspiracy, “[e]vidence has to be produced to show that [the person charged as a co-conspirator] had knowledge of the conspiracy and acted in furtherance of it. Mere casual association with conspiring people is not enough.” Bautista-Avila, 6 F.3d at 1362 (quoting United States v. Cloughessy, 572 F.2d 190, 191 (9th Cir.1977)). But where there is evidence establishing the existence of a conspiracy, if the government is able to establish even a slight connection with the conspiracy beyond a reasonable doubt, it is sufficient to support a conviction. Id.

The totality of the government’s evidence against Wiseman, even giving all reasonable intendments to that evidence, is not enough to warrant a rational jury determining that he had knowledge of this conspiracy and acted in furtherance of it.

The evidence against Wiseman consists of three disparate pieces: (1) he drove a car which had been loaded with marijuana and which was described as having a strong smell of marijuana inside it; (2) before parking that car, he drove somewhat unusually or suspiciously (this evidence was greatly weakened on cross-examination); and (3) after he was arrested, he asked some questions about the presence of marijuana at Branson’s house. Each of these are consistent with totally innocent explanations. He may well have been driving the car as a convenience to Murphy, his old family friend and employer, who was loathe to drive at night because of eye problems. He may well have asked the questions about marijuana being in the house because he had been arrested some hours earlier, did not know what was happening, and was merely trying to find out what had happened. The house was that of Murphy’s daughter with whom he had grown up. Moreover, there was no evidence to show that he knew what marijuana smelled like or that he in fact could smell the marijuana on this occasion. But even if there had been such evidence, knowledge that drugs are present is insufficient to prove knowing involvement in a drug conspiracy. See United States v. Sanchez-Mata, 925 F.2d 1166 (9th Cir.1991). Finally, one of the government’s most important pieces of evidence, Wise-man’s driving patterns, was weakened considerably on cross-examination.

The totality of the government’s evidence against Wiseman must be regarded as extremely weak, especially as compared to other similar cases in this circuit.

III. PREVIOUS CASE LAW

We have examined the previously reported narcotics conspiracy cases in this circuit in which the conviction of an alleged conspirator was reversed for insufficiency of the evidence connecting him with the conspiracy. It appears that in many of those reversals the evidence connecting the successful appellant with the conspiracy was considerably stronger than the evidence in this case against Wiseman. Moreover, we have found no af-firmance in such a case where the evidence was anywhere near as weak as the evidence against Wiseman in the instant case.

Among the reversals on stronger evidence, the following cases are noteworthy: United States v. Ramos-Rascon, 8 F.3d 704 (9th Cir.1993); United States v. Bautista-Avila, 6 F.3d 1360 (9th Cir.1993); United States v. Lopez, 625 F.2d 889 (9th Cir.1980); United States v. Cloughessy, 572 F.2d 190 (9th Cir.1977).

In Bautista-Avila, the evidence against the defendant was as follows:

(1) The defendants in that case drove into the United States from Mexico only one minute apart from the car in which 24 kilos of cocaine were ultimately found. (2) On the day of the drug transaction, a conspirator retrieved the keys to the car carrying the cocaine from the motel room that one of the defendants had rented and in which both defendants, as well as a co-defendant, were staying. (3) On his arrest, a conspirator confessed to law enforcement officers that both the defendants’ car and the other car were involved in the conspiracy. (4) One defendant admitted that he gave the second defendant $5,000 “to hold.” The second defendant admitted that he hid the $5,000 in the dashboard of their car. Five thousand dollars was the exact amount that one of the conspirators was to receive for participating in the conspiracy. (5) Both defendants were arrested in the motel room where the drug transaction was to take place and directly in front of the' place where both cars were parked. (6) Both defendants made various attempts to conceal their identity, including renting the motel room under an assumed name.

The above quoted summary of the Bautista-Avila facts appears in a later case, United States v. Ramos-Rascon, 8 F.3d at 710.

In Lopez, the evidence against the successful appellant was summarized in a later decision of the circuit as follows:

[Defendant] 1) spent the day with major drug conspirators, 2) walked around the perimeter of the conspirators’ house after someone looked out of the window once and out the front door twice, 3) accompanied conspirators to the scene of a drug transaction, and 4) told arresting officer that he “knew what was going down,” and that, but for a leg injury, he. would never have been caught.

United States v. Penagos, 823 F.2d 346, 350 (9th Cir.1987).

The Penagos opinion also summarized the evidence against the defendant in Cloughessy as follows:

Cloughessy drove two acquaintances who clearly were involved in a narcotics conspiracy to a hotel for negotiations with undercover Drug Enforcement Agents agents [sic]. Cloughessy and the two conspirators followed the agents to a restaurant during a break in negotiations. While the conspirators remained in the automobile, Cloughessy entered the restaurant, used the rest room, and returned to the automobile. He obtained money from the conspirators, reentered the restaurant and drank beer until the agents left. Clough-essy then drove the conspirators back to the hotel for further negotiations. When one of the DEA agents left the hotel to obtain purchase money from the DEA office, Cloughessy tailed him and reported his findings to the conspirators.

Id.

In Ramos-Rascon, convictions against two defendants were reversed for insufficiency of evidence. The evidence against them included testimony that they were present when some of their co-defendants discussed the terms to be offered to an undercover government agent in connection with a forthcoming cocaine deal. They thereafter rode in a truck with a member of the conspiracy, Lopez. It followed closely behind another truck which was transporting five kilos of cocaine to the hotel where the transaction earlier discussed was to take place. The informant had earlier been told that some of the proceeds from the transaction would be paid to “Lopez and his people.” At the hotel, both defendants sat on a wall near the room where the transaction was being consummated, looking intently at passing ears. One of the defendants, when approached by officers attempting to arrest him, tried to run away and was caught at the scene. Ramos-Rascon, 8 F.3d at 707.

When we compare these eases to the case on appeal, we are convinced that the government failed to connect Wiseman to the conspiracy beyond a reasonable doubt. In this case, the only evidence submitted by the government is wholly susceptible to innocent explanations, and the government failed to submit “sufficient probative facts from which a rational factfinder ... could choose the hypothesis that supports a finding of guilt rather than hypotheses that are consistent with innocence.” United States v. Bishop, 959 F.2d 820, 830 (9th Cir.1992). Moreover, one of the government’s key pieces of evidence, Wiseman’s unusual driving, was greatly weakened on cross examination of the testifying agent. Even when the evidence is viewed in the light most favorable to the government, it is insufficient to support the conviction for conspiracy.

IV. CONCLUSION

In light of the decisions summarized above and the guiding principles of this circuit and the Supreme Court, we conclude that there was insufficient evidence for a reasonable jury to find beyond a reasonable doubt that Wiseman knowingly participated in this drug conspiracy.

REVERSED.

2 . We are aware that the jury rejected Murphy’s contrived and far fetched explanation of her role in the transaction. We are also aware that the question of sufficiency of evidence must be decided only on the basis of the government's evidence. We do not rely on Murpl y's testimony in reaching our decision to reverse. We only mention her testimony concerning Wiseman because it suggests a quite rational innocent explanation of why Wiseman was along for the pick up of the load car and how he came to be driving it. Moreover, the government does not challenge Murphy's testimony in these respects.