United States v. Alvin Gaskins

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.