explaining that a jury "could have decided" that a cell phone was a " 'tool[ ] of the trade' for a drug trafficker"
How later courts described this case
- explaining that a jury "could have decided" that a cell phone was a " 'tool[ ] of the trade' for a drug trafficker"
- noting that “mere knowing presence” is insufficient to establish participation in a conspiracy and reversing conspiracy conviction
- stating that the existence of a conspiracy may be inferred from circumstantial evidence
- explaining that information gathered after a stop cannot be used to justify the stop
Written by the judges who cited it.
The opinion
SNEED, Circuit Judge,
concurring in part and dissenting in part:
I concur in Judge Williams’ excellent opinion except with respect to its reversal of Raul Lazarin-Becerra’s conviction for conspiracy. In my view a rational jury could find evidence which establishes the required intent beyond a reasonable doubt. The evidence in support of Lazarin-Becer-ra’s conviction is stronger than that which exists in any of the four cases in which the majority relies. See United States v. Gardea Carrasco, 830 F.2d 41 (5th Cir.1987); United States v. Blessing, 727 F.2d 353 (5th Cir.1984), cert. denied, 469 U.S. 1105 , 105 S.Ct. 777 , 83 L.Ed.2d 773 (1985); United States v. Sneed, 705 F.2d 745 (5th Cir.1983); United States v. Jackson, 700 F.2d 181 (5th Cir.), cert. denied, 464 U.S. 842 , 104 S.Ct. 139 , 78 L.Ed.2d 132 (1983).
Of these four authorities, United States v. Blessing, supra, is the most closely in point. Blessing’s connection with the conspiracy was sufficiently ambiguous to preclude the finding by a rational jury that he “had the deliberate, knowing, and specific intent to join the conspiracy.” 727 F.2d at 356 (quoting United States v. Gordon, 712 F.2d 110, 114 (5th Cir.1983)).
This case is quite different. Here Laza-rin-Becerra appeared following Ernesto’s phone call at a time sufficiently proximate to the call to permit the inference that it was in response to it. Ernesto’s call very likely was to his confederate because the fruits of his cooperation with the agents depended upon his producing that individual. Lazarin-Becerra parked his car “several yards” from the Pontiac. Immediately one of his two passengers got into the Pontiac and drove it away. Lazarin-Becer-ra and the other passengers were arrested. Probable cause to arrest unquestionably existed. Thereafter, it was found that La-zarin-Becerra had a mobile telephone in his car and an amount of cash roughly equal to that found on Ernesto. This suggests the usual practice where two buyers are involved, not wholly unlike those situations in which a check is made payable to co-payees.
It is true that Lazarin-Becerra did not step from his car immediately upon parking, get into the Pontiac, and drive it away. The individual who did so, had he been apprehended, would no doubt argue that he too lacked the required intent to join the conspiracy. I believe this court would not sustain the argument. Should this be true, the majority appears to hold that the failure of Lazarin-Becerra to drive the car away creates a sufficient possibility that he was an innocent chauffeur of a conspirator to preclude a finding beyond a reasonable doubt that Lazarin-Becerra had the required intent. I cannot agree.
I say this in full realization that a conspiracy conviction in drug prosecutions should not be made easy to obtain. Not everyone standing around the edges of the proscribed transaction are conspirators. On the other hand, the circle into which conspirators must fall should not be so small as to include only those who physically handled the controlled substance with a manifested intent to sell and those who hold cash with a manifested intent to buy. While this case does not place this circuit in that position, it is a step in that direction. It is a step I would not take.