United States v. Alvin Gaskins , 690 F.3d 569 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 24, 2012 Decided August 14, 2012
No. 08-3011
UNITED STATES OF AMERICA,
APPELLEE
v.
ALVIN GASKINS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00379-06)
Julian S. Greenspun, appointed by the court, argued the
cause and filed the briefs for appellant.
Suzanne Grealy Curt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III, Elizabeth
Trosman, and John K. Han, Assistant U.S. Attorneys. Mary B.
McCord, Assistant U.S. Attorney, entered an appearance.
Before: SENTELLE, Chief Judge, and HENDERSON and
GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: Alvin Gaskins appeals his
conviction for conspiracy to distribute narcotics. After hearing
oral argument on Gaskins’ appeal, we issued an order reversing
his conviction and directing the entry of a judgment of acquittal.
Our order stated that an opinion would follow in due course.
This is that opinion.
A jury convicted Gaskins of being a member of a
conspiracy that was alleged to have consisted of more than
twenty individuals and to have taken place over a period of five
years. To describe the events of those years, the government
proffered eight cooperating witnesses, more than 14,000
intercepted telephone conversations, visual and video
surveillance, and evidence seized during the execution of search
warrants.
Not one piece of evidence put Gaskins together with drugs,
or conversations about drugs, involved in the conspiracy. None
of the cooperating witnesses, many of whom pled guilty to
participating in the conspiracy, described Gaskins as having any
knowledge of the conspirators’ drug trafficking activities. None
of the recorded telephone conversations in which Gaskins
participated mentioned drugs or drug transactions, whether in
clear or coded language. Nor did any of the conversations of
any other conspirators mention drugs or drug transactions in
connection with Gaskins. No surveillance detected Gaskins
engaging in drug transactions, in the presence of drugs, or
engaging in any conspiratorial meetings. And despite the
execution of multiple search warrants, including one at the
apartment in which Gaskins lived, the government found no
guns, drugs, or drug paraphernalia associated with Gaskins.
Moreover, although there was substantial evidence of the wealth
amassed by other conspirators, there was no such evidence
regarding Gaskins. To the contrary, the only evidence was that
he lived in a modest apartment with his mother.
3
To convict a defendant of conspiracy to distribute a
controlled substance, the government must prove, beyond a
reasonable doubt, that the defendant knowingly entered into the
conspiracy with the specific intent to further the unlawful
objective of drug distribution. We have reversed Gaskins’
conviction because no reasonable juror could have so found.
I
In 2004, a grand jury returned a 100-count indictment
charging 21 defendants, including Gaskins, with being members
of a conspiracy to distribute narcotics that operated between
1999 and September 2004, and that spanned Virginia, the
District of Columbia, and Maryland. The alleged objects of the
conspiracy were the distribution of heroin, cocaine, cocaine
base, and phencyclidine (PCP). Many of the 21 defendants pled
guilty, and the ones who did not went to trial in two groups in
2006.
Gaskins went to trial with the second group of four
defendants, which also included Gerald Eiland, Frederick Miller,
and Robert Bryant. The indictment, which contained dozens of
counts relating to narcotics trafficking, conspiracy, racketeering,
and continuing criminal enterprise, charged Eiland and Miller
with being the leaders of the conspiracy. Bryant was charged
with being the conspiracy’s PCP supplier.
The government’s theory was that Gaskins was a “business
manager” of the conspiracy. The indictment charged him with:
(1) conspiring to distribute and possess with intent to distribute1
heroin, cocaine, cocaine base, and PCP, in violation of 21 U.S.C.
1
For convenience, this opinion will omit the phrase “and possess
with intent to distribute” from the description of the conspiracy
charge.
4
§ 846 (the “narcotics conspiracy”); (2) conspiring to participate
in a racketeer influenced corrupt organization, in violation of 18
U.S.C. § 1962(d) (the “RICO conspiracy”); and (3) four counts
of using a communication facility to facilitate a drug trafficking
offense, in violation of 21 U.S.C. § 843(b) (the “telephone
counts”).
A
1. The government’s case consisted of the testimony of
cooperating conspirators, wiretaps and consensual recordings,
visual and video surveillance, and seizures from the execution
of search warrants.
Eight cooperating witnesses testified on behalf of the
government. All were deeply involved in the drug trafficking
conspiracy. All but one were facing life in prison if they did not
obtain a downward sentencing departure in consideration for
cooperating with the government. Nonetheless, none testified
about any connection between Gaskins and a narcotics
conspiracy.
Darius Ames testified that he was a close friend of Eiland’s
and began selling drugs with him in 1997. He said that during
one period, he bagged heroin for Eiland in Eiland’s apartment in
Alexandria, Virginia. There, he processed and bagged the drugs
six to eight hours a day, twice a week, and was paid $500 per
week. He testified that only he, Eiland, and Miller had keys to
the apartment, and that Eiland and Miller were the only people
he ever saw there. Ames also said that he was the one who paid
the utility bills. He testified that another conspirator, Ricky
Gore, was given most of the heroin to distribute, and that only
he, Gore, and an individual named Simon Craig collected the
proceeds from street distribution. Ames also testified that he
made plane trips with Eiland and others to Phoenix, Arizona to
5
obtain heroin, which they brought back to the apartment
concealed in their clothes. Ames said nothing about Gaskins
having any role in the conspiracy.
Ricky Gore testified that he was a “lieutenant” in Eiland’s
organization. During 2002-04, Gore said, Darius Ames gave
him approximately 1,500 bags of heroin per week to distribute.
Gore explained to the jury the coded language the conspirators
used to discuss narcotics transactions. He also testified that he
made between $8,000 and $10,000 a week, and that he used the
money to buy luxury cars for himself, his wife, and his mistress,
and to pay rent on an apartment for the mistress. Gore testified
that, although he knew Gaskins socially, he did not know of
anything that linked him to drugs.
The testimony of four other conspirators did not mention
Gaskins. Huber Garcia testified that he supplied cocaine and
heroin to Eiland and his associates, and that he made enough
money from drug trafficking to spend $10,000 a month on
clothes, cars, women, and jewelry. Tyrone Thomas testified that
he transported drugs and money for the conspiracy, and that
defendant Robert Bryant (whom the jury acquitted) was Miller’s
PCP supplier. Je Bradford testified that he was a distributor for
Eiland. Brian Lipscombe, who sold heroin and cocaine for
Eiland, testified to shooting someone on Eiland’s behalf.
Neither Garcia, nor Thomas, nor Bradford, nor Lipscombe said
anything about Gaskins.
Another cooperating witness, Charles Brown, was Frederick
Miller’s cousin. Brown testified that he took plane trips to
Kansas City and Los Angeles for the purpose of transporting
money that Miller gave him to deliver to defendant Bryant.
Brown said he did not know who made the plane reservations or
who paid for them. The only person he spoke to about
reservations or scheduling was Miller, who would instruct him
6
to pick up his tickets at the airport where they had been reserved
in Brown’s name. Brown’s testimony did not mention Gaskins
in connection with any of his trips except one. On February 19,
2004, when Brown could not get on a flight to Los Angeles
because he did not have proper identification, Brown called
Miller. Miller told him to call Gaskins, which he did. Brown
testified that he did not know why Miller told him to call
Gaskins, and that he did not discuss the purpose of his trips with
Gaskins.2 This was the only mention of Gaskins in Brown’s
testimony.
The eighth cooperating witness, Rayshawn Briggs, testified
that he started selling drugs acquired from Eiland in February of
2002. In 2003, Briggs was in jail, facing charges carrying a
mandatory life sentence. He began cooperating with the
government and was interviewed six or seven times by the FBI
and U.S. Attorney’s Office. Briggs testified that during those
interviews, the government expressed an interest in Gaskins.
Briggs said that he knew Gaskins from the neighborhood and
that he knew Gaskins was “close” to Miller. He told the FBI
that in 2001, he had asked Gaskins if he could get a quarter
ounce of crack cocaine for him. Gaskins got the crack for
Briggs, who paid him $250 for it. Briggs said he did not know
from whom Gaskins had obtained the crack. The government
does not contend that this sale was part of the narcotics
conspiracy charged in this case.
Briggs also testified that he was motivated to get his
pending criminal cases resolved and to get out of jail. In
January 2004, he entered into a plea agreement pursuant to
2
All Brown said about the conversation was that Gaskins “was
asking me what was wrong, what was the problem. I was letting him
know that I don’t have a government ID.” 10/18/06 (am) Tr. 28 (S.A.
385).
7
which he was released to help the government obtain
information regarding several suspects, including Gaskins. As
a condition of release, he had to report to the FBI on a daily
basis. Briggs testified that he had multiple contacts and
conversations with Gaskins after he was released. Although he
said that Gaskins helped him fill out job and housing
applications, Briggs said that none of their interactions involved
the subject of narcotics.
In addition to the cooperators, the government proffered the
testimony of law enforcement officers regarding evidence
obtained during the government’s 18-month investigation.
Detective Steven Hall testified that law enforcement
conducted surveillance of numerous locations -- including the
Virginia apartment where the heroin was bagged and streets in
the District of Columbia where heroin sales took place -- using
stationary vans, moving cars, and a mounted pole camera.
There was no evidence that Gaskins participated in any drug
transactions or conspiratorial meetings, no evidence that he was
seen in the presence of drugs or drug paraphernalia, and no
evidence that he was ever present at or near the Virginia
apartment. The government took fingerprint evidence in the
Virginia apartment, but Gaskins’ prints were not found.
The government also executed search warrants at multiple
locations used by the conspirators, which turned up heroin,
cocaine, cash, and drug packaging materials. See U.S. Br. 19-20
& n.21. None of this evidence connected Gaskins to the
conspiracy. In addition, the government searched the apartment
in southeast Washington where Gaskins lived with his mother.
That search yielded neither drugs, nor records, nor any other
evidence linking Gaskins to the conspiracy. Nor did it (or any
other search) yield evidence that Gaskins had expensive jewelry,
clothes, cars, or homes -- as searches did uncover with respect
8
to other conspirators. The government’s only evidence was that
Gaskins lived in his mother’s modest apartment.
During the search of the Virginia apartment in which the
conspirators bagged heroin, officers found the apartment’s lease.
Although Gaskins’ name was on it, the government did not
attempt to prove that the handwriting was Gaskins’, and it
offered no evidence that Gaskins paid the monthly rent.
Investigators also found utility bills with Gaskins’ name on them
in the apartment. As noted above, however, Darius Ames
testified that he was the one who paid the utility bills, and the
government offered no evidence to the contrary.
FBI Special Agent John Bevington testified that the
government conducted four months of wiretaps, from February
17 to June 26, 2004, during which it intercepted more than
14,000 calls. Recordings of many calls were played to the jury.
Bevington and Detective Hall testified that two signature traits
of a narcotics conspiracy are using coded language and asking
conspirators to go to a land line, both of which could be
discerned in several of the recorded calls. None of the calls by
other alleged conspirators mentioned drugs or drug transactions
in connection with Gaskins, whether in clear or in coded
language. No call in which Gaskins participated mentioned
drugs or drug transactions at all, in code or otherwise, and he
was never asked to go to a land line. There was a conversation
in which Miller told Gaskins to keep his credit card payments up
to date, another in which the two discussed Gaskins signing a
check “over to Dream Team Investigations” (discussed below)
so that Gaskins could get money for Miller, and others about
money Miller owed Gaskins.
Agent Bevington further testified that the telephone
company advised that the subscriber of the cell phone that Miller
used was listed as “Alvin Gasgen.” Although Bevington
9
testified that the phone company later sent him information
listing the name “Alvin Gaskins,” the government did not obtain
a copy of the subscriber application or any other records. The
government did not introduce any evidence that Gaskins paid
the telephone bills.
Finally, the government introduced airline records showing
that Gaskins was listed as the purchaser of some of Charles
Brown’s plane tickets. (There was no such evidence regarding
Darius Ames’ flights to Phoenix.) It also introduced recorded
telephone calls in which Miller asked Gaskins to book two
flights for Brown; the calls did not mention either narcotics or
the purpose of the trips. Those calls were the basis for the
indictment’s four telephone counts against Gaskins. As we note
below, Gaskins was acquitted on all four counts. And co-
defendant Robert Bryant, the person to whom Brown said he
was delivering money on those trips, was acquitted on all
counts.
2. The theory of Gaskins’ defense was that he was not
involved in a narcotics conspiracy, but rather was a “gofer” who
ran Miller’s personal errands and performed miscellaneous tasks
for his private investigations company, Dream Team
Investigations (DTI) -- including making occasional airplane
reservations. Neither Gaskins nor the other defendants testified.
The defense called a police detective who testified that
Miller was licensed as a private investigator from 2002 until
October 2005, and that he had a business license for Dream
Team Investigations (DTI). The defense introduced Miller’s
license, the business license, and a D.C. tax registration
certificate for DTI. Other notes and records relating to DTI
were also discovered at Miller’s home. On cross examination,
Detective Hall acknowledged that recordings of Miller’s calls
reflected various business dealings related to DTI. Hall also
10
testified that one of the documents seized at Miller’s residence
was “a legal notebook paper with [DTI] brainstorming ideas.”
10/16/06 (am) Tr. 18 (S.A. 335).
In support of its defense that Gaskins’ work for Miller
involved DTI, the defense played recordings of calls in which
the two discussed such matters as business cards, checks, loans,
court records, and taxes. See U.S. Br. 52. It also played several
conversations in which Miller asked Gaskins to run personal
errands for him. In its rebuttal case, the government called
witnesses from the local and federal public defenders’ offices,
who testified that their offices had never reimbursed DTI for
investigative work.
B
After a three-month trial and fourteen days of deliberations,
the jury convicted Miller and Eiland of most of the counts on
which they were charged. It did not convict them on any counts
involving PCP, however, and it found that PCP distribution was
“not proven” as an object of the conspiracy. The jury acquitted
Bryant (the third co-defendant and alleged PCP supplier) on all
counts on which he was charged.
With respect to Gaskins, the jury initially returned a verdict
form that found him not guilty on all four telephone counts. It
also found him not guilty on the RICO conspiracy count, and
checked “not proven” for each of the racketeering acts listed on
that form. One of those acts was the narcotics conspiracy that
was charged against Gaskins in a separate count. With respect
to that separate charge of narcotics conspiracy, although the jury
checked “guilty” on the general verdict line, it checked “not
proven” for each of the four objects of the conspiracy listed on
the form (distribution of heroin, cocaine, cocaine base, and
11
PCP). The judge read the verdict aloud to the jury; each juror
was polled; and all agreed that it was their verdict.
Gaskins’ counsel asked the district court to enter a judgment
of acquittal on the narcotics conspiracy count. (Judgments of
acquittal were eventually entered on the telephone and RICO
counts.) The court denied the request and sent the narcotics
conspiracy count back to the jury with a new verdict sheet. That
afternoon, the jury again returned with a general verdict of
guilty. This time, however, it checked “proven” for the object
of distributing heroin, and checked a quantity of more than 100
grams but less than one kilogram. The court accepted the
verdict and ultimately sentenced Gaskins to prison for 262
months (22 years).
Gaskins filed a timely appeal. He had been in jail since the
date of his arrest and, as of the date of oral argument, had been
incarcerated for almost eight years. After the argument, we
issued an order reversing the judgment of conviction and
directing the entry of a judgment of acquittal, on the ground that
a reasonable jury could not have found that Gaskins knowingly
participated in the conspiracy with the intent to commit the
offense of distributing narcotics.
Gaskins contends not only that the prosecution’s evidence
was insufficient to support a guilty verdict on the conspiracy
charge, but also that the district court erred in declining to enter
a judgment of acquittal when it received the jury’s initial verdict
form. Because we agree with Gaskins that the evidence was
insufficient, we do not address his second contention.
II
When reviewing a conviction for sufficiency of the
evidence, “the relevant question is whether, after viewing the
12
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.” Jackson v. Virginia, 443
U.S. 307, 319 (1979). “In making that determination, ‘the
prosecution’s evidence is to be viewed in the light most
favorable to the government, drawing no distinction between
direct and circumstantial evidence, and giving full play to the
right of the jury to determine credibility, weigh the evidence and
draw justifiable inferences of fact.’” United States v. Branham,
515 F.3d 1268, 1273 (D.C. Cir. 2008) (quoting United States v.
Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005)).
To prove that a defendant entered into a narcotics
conspiracy under 21 U.S.C. § 846, the government must prove
that he did so knowingly. See, e.g., United States v. Childress,
58 F.3d 693, 708-09 (D.C. Cir. 1995). Knowledge alone,
however, is not enough. Id. The government must also prove
that the defendant had the “specific intent to further the
conspiracy’s objective.” Id. at 708; see United States v. Wilson,
160 F.3d 732, 737 (D.C. Cir. 1998); United States v. Tarantino,
846 F.2d 1384, 1392 (D.C. Cir. 1988); see also Ingram v. United
States, 360 U.S. 672, 678 (1959) (holding that “[c]onspiracy to
commit a particular substantive offense cannot exist without at
least the degree of criminal intent necessary for the substantive
offense itself” (internal quotation marks omitted)). Accordingly,
to sustain Gaskins’ conviction, we must conclude that a
reasonable jury could have found, beyond a reasonable doubt,
that he knowingly entered into the Miller/Eiland conspiracy with
the specific intent to further its objective of distributing
narcotics.
A
As discussed above, the government had the cooperation of
eight conspirators, intercepted thousands of telephone calls
13
between members of the conspiracy, conducted weeks of
surveillance, and searched numerous apartments. In all of this,
there was no evidence that Gaskins ever discussed drugs,
distributed drugs, or was in the presence of drugs connected to
the conspiracy. None of the cooperating witnesses testified that
Gaskins was involved in their drug trafficking operation --
including one witness, Rayshawn Briggs, who was released
from jail for the specific purpose of obtaining evidence about
Gaskins (among others). In none of the intercepted calls did the
conspirators mention Gaskins in connection with their drug
dealing, nor was Gaskins ever heard discussing narcotics or
narcotics transactions, in coded language or otherwise. In none
of the surveillance was he seen taking part in a drug transaction
or conspiratorial meeting. And none of the searches yielded any
evidence of Gaskins’ involvement in the drug conspiracy.
Finally, unlike the other alleged conspirators, there was no
evidence that Gaskins received any of the lavish proceeds that
the conspiracy yielded.
In short, there was no affirmative evidence that Gaskins
knowingly joined the narcotics conspiracy or had the specific
intent to further its aims. Moreover, given the scope of the
government’s investigation and the role its witnesses played in
the conspiracy, any reasonable jury should have wondered why
the government could not find such evidence. See Wilson, 160
F.3d at 737 (noting that, when witnesses with inside knowledge
of a conspiracy “[a]re in a position to offer testimony about the
nature of [a defendant’s] involvement . . . , the absence of such
evidence is telling”).
B
The government makes five principal arguments as to why,
notwithstanding the above, the evidence was sufficient to sustain
the jury’s verdict.
14
1. The government’s brief begins with an argument based
on Rayshawn Briggs’ testimony. Briggs testified that in 2001,
Gaskins sold him a quarter ounce of crack cocaine. But the
government does not contend that this single sale was part of the
conspiracy for which Gaskins was convicted. See Oral Arg.
Recording at 19:18-:32. Indeed, the only substance the jury
found “proven” with respect to Gaskins was heroin, not crack.
Although Federal Rule of Evidence 404(b) may have permitted
the government to argue (as it did) that the sale demonstrated
Gaskins’ familiarity with drug dealing, the sale does not show
that he knowingly joined the Miller/Eiland conspiracy with the
specific intent to achieve its unlawful objective.3
The government protests the references in Gaskins’ brief to
the fact “that Briggs was cooperating and facing a life sentence,”
arguing that this merely went to his credibility and that
credibility is “a matter for the jury to decide.” U.S. Br. 39. But
this misunderstands the purpose of the defendant’s references to
Briggs. Gaskins’ (principal) argument is not that Briggs lacked
credibility. To the contrary, he stresses that Briggs honestly
acknowledged that he was motivated to provide the government
with whatever evidence he had on Gaskins. Rather, given this
motivation and Briggs’ role in the conspiracy, Gaskins argues --
3
In addition to demonstrating familiarity, the government argues
that the jury could have concluded that Gaskins obtained the crack for
the sale from Miller. This claim is based on Briggs’ testimony that,
although he did not actually know where Gaskins got the drugs, he
thought Gaskins would be able to get them from Miller. Whether or
not Briggs’ thought was reasonable, asking the jury to make an
inference based on that inference “crosses the line from permissible
inference to improper speculation.” United States v. Teffera, 985 F.2d
1082, 1088 (D.C. Cir. 1993); see id. (“‘A jury is entitled to draw a vast
range of reasonable inferences from evidence, but may not base a
verdict on mere speculation.’” (quoting United States v. Long, 905
F.2d 1572, 1576 (D.C. Cir. 1990))).
15
and reasonably so -- that the fact that Briggs was unable to point
to anything other than a single crack transaction was reason to
doubt Gaskins’ involvement in the charged conspiracy.
2. The government next argues that the fact that Gaskins’
name was on the apartment lease and cell phone application is
proof that he was a member of the conspiracy. Gaskins notes
that the government did not analyze the handwriting on the lease
and did not even have the cell phone application, and argues that
there was no evidence that he -- as opposed to Miller -- was the
one who put his name on both forms. Indeed, there is support
for the possibility that Miller misused Gaskins’ name: In a
recorded telephone conversation, Miller was heard identifying
himself to an airline representative as Gaskins.
But even if the government had proven that the handwriting
was Gaskins’, that would still be insufficient to establish that he
knowingly participated in the conspiracy with the specific intent
to further its objective of distributing narcotics. There was no
evidence that Gaskins knew the apartment would be used as a
stash house. Indeed, there was no evidence that he had ever
even been there. There was no such evidence in all the hours of
visual and video surveillance. And when the apartment was
dusted for fingerprints, Gaskins’ prints were not found. Not one
of the eight cooperating witnesses testified that he ever saw
Gaskins in the apartment. To the contrary, Darius Ames
testified that only he, Eiland, and Miller had keys to the
apartment, and that Eiland and Miller were the only people he
ever saw there. And although Gaskins’ name was on the utility
bills, there was no evidence of how it got there and no evidence
that he was the one who paid those bills or the rent; indeed,
Ames testified that he was the one who paid the bills. Cf.
United States v. Lucas, 67 F.3d 956, 958 (D.C. Cir. 1995)
(reversing a conviction for (constructive) possession of narcotics
that rested on the defendant’s name appearing on the lease of an
16
apartment used to store drugs where, as here, the defendant lived
elsewhere and did not have a key).
Similarly, there was no evidence that Gaskins knew that
Miller’s cell phone (subscribed to in Gaskins’ name) was to be
used to conduct narcotics transactions. Nor, in all of the
telephone calls intercepted on that phone (or any other
telephone), was there any evidence to suggest that Gaskins knew
it was being used for that purpose.
Needless to say, extra apartments and cell phones have
lawful uses, including personal use and use by a private
investigations agency. They also have uses that are unsavory,
but nonetheless lawful -- including facilitating extramarital
trysts. (One of the cooperating conspirators testified that he
used his proceeds to pay the rent on an apartment for his
mistress.) Moreover, apartments and cell phones have uses that
are unlawful, but that have objects other than narcotics
distribution -- ranging from illegal gambling to fencing stolen
goods. Even if Gaskins did not think Miller’s activities were on
the up-and-up, there was no evidence that he thought they
involved the object of the conspiracy for which he was
convicted, let alone that he knowingly joined the conspiracy
with the “specific intent to further the conspiracy’s objective,”
Childress, 58 F.3d at 708. And without such evidence, a
conviction cannot be sustained. See, e.g., United States v.
Morrison, 220 F. App’x 389, 395 (6th Cir. 2007) (reversing a
conviction because, “[t]hough the totality of the evidence . . .
admittedly shows that Morrison had knowledge of some illegal
activity, what it fails to show is that Morrison knew the purpose
of all this activity centered around drugs -- the essential object
17
of the conspiracy in which he was charged” (internal quotation
marks omitted)).4
3. The government also contends that the jury could have
inferred Gaskins’ participation in the conspiracy from the fact
that he booked plane trips for conspirator and cooperating
witness Charles Brown. Although the airline supplied a list of
information for several such trips with the purchaser identified
as “Alvin Gaskins,” the few recorded telephone conversations
in which Miller asked Gaskins to book flights pertained to only
two of those trips. Brown testified that he did not know who
made any of the reservations, and that he never spoke with
Gaskins about them; it bears repeating, moreover, that another
call showed Miller identifying himself as Gaskins when making
a reservation on another flight. The recorded conversations,
which took place over only three days out of a conspiracy
alleged to have lasted five years, are the only ones the
government relies on for the proposition that Gaskins was a
“facilitator” of the conspirators’ travel. Those conversations
4
See Ingram, 360 U.S. at 677 (reversing a conviction where,
“[w]hile the record clearly support[ed] a finding that [the defendants]
were participants in a conspiracy to operate a lottery and to conceal
that operation from local law enforcement agencies,” there was “no
warrant for a finding that they were . . . parties to a conspiracy with
[the charged] purpose” of evading the payment of federal taxes on
lottery operators); Teffera, 985 F.2d at 1087 (noting that courts have
found that, although evidence “may be probative of [a] defendant’s
knowledge that he was ‘caught up in a situation involving criminal
activity,’” that is “not sufficient to show that [the] defendant knew of
the specific conspiracy charged by the government” (quoting United
States v. Nusraty, 867 F.2d 759, 765 (2d Cir. 1989))); cf. United States
v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977) (Friendly, J.)
(holding that “mere negative acquiescence . . . in the criminal conduct
of others, even with guilty knowledge, is not sufficient to establish
aiding and abetting”).
18
were the basis for the four telephone counts with which Gaskins
was separately charged.
We note first that, according to the government, the purpose
of Brown’s flights was to deliver payments to defendant Robert
Bryant for supplying the conspiracy with PCP. But the jury
found that none of the defendants were involved in a conspiracy
to distribute PCP. Indeed, it found Bryant not guilty of any
offense. Moreover, it found Gaskins not guilty on any of the
four telephone counts.
More important, however, as with the apartment lease and
cell phone application, there was no evidence that Gaskins knew
anything at all about the purpose of the flights. Brown said he
did not discuss their purpose with Gaskins, and there was no
intercepted conversation in which anyone else did. As the
Supreme Court has held, “‘[w]ithout the knowledge, the intent
cannot exist.’” Ingram, 360 U.S. at 678 (quoting Direct Sales
Co. v. United States, 319 U.S. 703, 711 (1943)).
4. The government further suggests that the jury could have
inferred that Gaskins was a member of the conspiracy from the
fact that he had a close relationship with Miller. To establish
that fact, the government cites Briggs’ testimony that the two
men were close, along with intercepted telephone calls in which:
the two spoke of “signing over” a Dream Team Investigations
check to get money for Miller; Miller told Gaskins it was
important to keep his credit card payments current; Gaskins told
Miller that he owed him money; and Miller used Gaskins’ name
and personal email address to make an airplane reservation.
The fact that Gaskins was close to Miller was plainly
insufficient to support a conviction. See, e.g., United States v.
Wardell, 591 F.3d 1279, 1288 (10th Cir. 2009) (“[M]ere
association, standing alone, is inadequate; an individual does not
19
become a member of a conspiracy merely by associating with
conspirators known to be involved in crime.” (internal quotation
marks omitted)).5 So were the conversations about checks,
credit cards, payments, and email.6 As we have said, there was
no evidence that any of those conversations were related to
drugs or drug transactions. And there was no evidence that
Gaskins knew they were related.
By contrast, there was evidence to support Gaskins’ defense
that the conversations were related to his work as a “gofer” who
ran Miller’s personal errands and performed tasks for his Dream
Team Investigations. Although the government is correct in
suggesting that substantial evidence that DTI was not a real
business could have permitted the jury to draw a negative
inference, the government’s evidence to that effect (that DTI had
not been paid by the public defenders’ offices) was hardly
substantial. In any event, even proof that an exculpatory
explanation was false would have been insufficient on its own
to permit an inference that Gaskins knowingly joined a narcotics
conspiracy with the required specific intent. That is particularly
5
See United States v. Dellosantos, 649 F.3d 109, 115 (1st Cir.
2011) (“The agreement is the sine qua non of a conspiracy, and this
element is not supplied by mere knowledge of an illegal activity . . . ,
let alone by mere association with other conspirators.” (internal
quotation marks omitted)); United States v. Diaz, 637 F.3d 592, 602
(5th Cir. 2011) (“If all that was shown was a defendant’s . . . ‘close
association with conspirators,’ jurors would not be entitled to infer
participation in the conspiracy.” (internal quotation marks omitted));
Nusraty, 867 F.2d at 764 (“[M]ere association with those implicated
in an unlawful undertaking is not enough to prove knowing
involvement.”).
6
Indeed, with respect to the latter, Detective Hall testified that
nothing in any of the wiretaps suggested that Gaskins had ever used
e-mail or the Internet.
20
so because Gaskins did not testify, and so did not make the
exculpatory explanation himself. See Oral Arg. Recording at
23:12-:22 (acknowledgment by government counsel that,
because he never testified, the jury could not infer that Gaskins
lied about DTI).7
5. Finally, the government correctly notes that we must
consider all of the evidence in its totality. We have done so, and
nonetheless conclude that it is insufficient to sustain the verdict.
The government maintains that such a conclusion is unwarranted
because “[c]ourts have found the evidence of a defendant’s
participation in a conspiracy to be sufficient where, inter alia,
the defendant rented an apartment or other facility that was used
to conduct conspiratorial activity, such as the storage of drugs.”
U.S. Br. 33 (citing cases). The government makes the same
point about procuring cell phones, scheduling plane flights, and
several of the other facts discussed above. Id. at 35-36.
The government’s descriptions of the cases it cites are not
inaccurate, but the key is what the “alia” in those cases were. In
none of those cases was the evidence of knowing and intentional
participation in a conspiracy anywhere near as weak as it is here.
In United States v. Brown, for example, the defendant not only
7
In her closing argument, the prosecutor contended that Gaskins
could not have been working for DTI because there were no telephone
calls in which Gaskins asked Miller which client was to be billed for
which expense, or told Miller whom he had appointments with on a
specific day or that they were running out of office supplies. In his
opening brief, Gaskins argues that those arguments constituted
reversible error because Gaskins’ counsel had never claimed that such
duties fell within the scope of Gaskins’ responsibilities. Counsel’s
claim was that Gaskins was an errand boy, not a bookkeeper or office
manager. On appeal, the government does not make those arguments
in support of the sufficiency of the evidence; it merely argues that they
did not constitute reversible error. U.S. Br. 39-40, 50-56.
21
leased a storage unit where drugs and a bullet-proof vest were
found; her own apartment also contained drugs and a bullet-
proof vest, as well as a videotape of her co-conspirators
counting large amounts of cash in front of a pound of drugs.
560 F.3d 754, 761, 770 (8th Cir. 2009). In addition, one of the
co-conspirators was recorded calling the defendant from jail to
ask that she collect drug payments, conceal assets, and contact
prospective witnesses. Id. at 770. In United States v.
Rodriguez-Ortiz, the defendant not only procured cell phones,
he expressly told an undercover DEA agent that he could help
him find a place to store drugs. 455 F.3d 18, 21 (1st Cir. 2006).
And in United States v. Sanchez-Chaparro, the defendant not
only procured cell phones and leased an apartment from which
drugs were sold, he also “visited the apartment almost every
day,” drove his co-defendant “to conduct drug business in
various vehicles,” and told a police officer that he “knew” a
principal co-conspirator was involved with drugs. 392 F. App’x
639, 645 (10th Cir. 2010).8
The case that appears to be most directly on point is the
Second Circuit’s decision in United States v. Viola, which
reversed a RICO conspiracy conviction for insufficient
evidence. 35 F.3d 37 (1994). There, the defendant, Michael
Formisano, “performed odd jobs” for Anthony Viola, the
8
Similarly, in United States v. Lopez, the defendant was not
simply the lessee of an apartment in which drugs and packaging
paraphernalia were found. 944 F.2d 33, 39 (1st Cir. 1991). Rather,
she lived in the apartment, admitted that she shared the bedroom in
which drugs were found under a mattress, and attempted to flee down
the back stairway as the police were breaking down the front door. Id.
at 39-40. And in United States v. Ramirez, the defendant, who had
rented a storage unit that contained drug residue and paraphernalia,
was also recorded in multiple telephone conversations “discussing the
transfer of money and drugs.” 479 F.3d 1229, 1252 (10th Cir. 2007);
see id. at 1252-53 & n.16.
22
conspiracy’s ringleader. Id. at 39. Despite the government’s
proof that Formisano agreed to sell stolen goods in isolated
incidents, the court found the record “devoid of evidence
that . . . Formisano knew what Viola and the other members of
the conspiracy were up to.” Id. at 44. Like Gaskins, Formisano
had been tried as part of a group consisting of the conspiracy’s
ringleader and other principal operators. Also like Gaskins,
Formisano was in large part an afterthought to the government’s
case.
In words that are particularly relevant here, Judge Walker
noted:
In the wealth of evidence presented at trial to show the
existence and scope of the Viola enterprise, Formisano
is hardly even mentioned. This absence is telling
because the evidence included accomplice testimony
from participants in the conspiracy who never
mentioned Formisano, much less indicated their
familiarity with him. Further, in the numerous
surveillance tapes canvassed at length at trial, only a
few scant references were made to Formisano, and
then . . . not in relation to the broader enterprise.
Id. For much the same reasons, Gaskins’ conviction, like
Formisano’s, must be reversed.
III
Because no reasonable jury could have found, beyond a
reasonable doubt, that Gaskins knowingly entered into a
conspiracy with the specific intent to further the objective of
distributing narcotics, the judgment of conviction is
Reversed.