United States v. Gavin Allan Paul Patrick Carlos Britton

EMILIO M. GAEZA, Circuit Judge,

concurring in part and dissenting in part:

I. agree with the majority’s decision to affirm Paul’s and Britton’s convictions for conspiracy to possess with intent to distribute cocaine. I disagree, however, with that portion of the majority’s opinion that reverses the defendants’ convictions for conspiracy to import cocaine. Instead, I believe that the evidence more than supports the jury’s conclusion that Paul and Britton participated in a conspiracy to import cocaine. Accordingly, I respectfully dissent from the majority’s contrary conclusion.

As the majority notes at the outset, in a challenge to the sufficiency of the evidence, we must affirm the jury’s verdict “if any reasonable trier of fact could have found that the evidence presented at trial establishes the essential elements of the crime beyond a reasonable doubt.” See ante at 839 (emphasis added); see also United States v. Alix, 86 F.3d 429, 435 (5th Cir.1996). The majority also acknowledges that “ ‘[t]he jury may infer any element of this offense from circumstantial evidence.’ ” See ante at 840 (quoting United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir.1989)). Significantly for the facts of this case, “an agreement may be inferred from concert of action, voluntary participation may be inferred from a collocation of circumstances, and knowledge may be inferred from surrounding circumstances.” Lechuga, 888 F.2d at 1476-77 . Moreover, we view sufficiency of the evidence challenges in the light most favorable to the verdict. See Alix, 86 F.3d at 435 .

In the case at hand, there is ample evidence-both direct and .circumstantial-from which the jury could infer an agreement to import cocaine. The undisputed evidence indicates that “Mike” placed a large quantity of cocaine on board a ship in Guyana and asked Adam to help him smuggle the cocaine into the United States. “Mike” also explained that someone would come to take delivery of the cocaine (ie., complete the importation) once the vessel arrived in New Orleans. During the course of their numerous telephone conversations (recorded by the Customs agents and presented to the jury), “Mike” gave Adam the names (or code-names) of his couriers (Britton and Paul), how to reach them, when to reach them, and the various plans for delivering the cocaine. The evidence is undisputed that all of Adam’s information and directions for delivering the cocaine came from “Mike,”, that Britton and Paul were specifically designated by “Mike” (through their code names) to take delivery and/or pay for the cocaine, that “Mike” was the only connection between Adam and the two defendants, and that “Mike” contacted Britton and Paul from Guyana to arrange for the pickup of the cocaine in New Orleans.

In addition, there was specific evidence (in a recorded conversation) that “Mike” told Adam that he contacted a .courier named “Harry” (whose real name, he disclosed, was Gavin Paul) who would fly from New York to pick up the cocaine in New Orleans. The evidence confirms that Paul did fly from New York to New Orleans and that Paul was at the phone number given to Adam by “Mike” (at the French Quarter Courtyard Inn). Furthermore, when the police arrested Paul, he , had directions to the ship’s berth and $10,000 in cash. With regard to the conspiracy to possess with intent to distribute charge, the majority notes that Paul’s actions “do not indicate that he refused to participate in. the conspiracy.” See ante at 840. This same conclusion-that Paul continued to participate in the conspiracy-applies equally to the conspiracy to import charge.

Similarly, when the plans changed, “Mike” told Adam that “he had another man in town who would pick up the cocaine,” namely Brit-ton. See ante' at 839. The evidence confirms that Britton traveled to New Orleans on the same night that he went to Adam’s ship and that he called Adam to say that he would arrive at the ship in half an hour to pick up the cocaine. Again, it was “Mike” (in Guyana) who called Adam and told him that he should deal with Britton instead of Paul; *846 that Britton would arrive at the docks by taxi to pick up the cocaine; and that Paul would deliver the money. Shortly after this call, Britton arrived at the docks in a taxi and picked up the cocaine from Adam (without paying for it). Given the detailed and highly coordinated level of concert between Britton and Paul on one hand, and “Mike” in Guyana on the other, and the fact that the jury can infer any element of the crime from circumstantial evidence, it is eminently reasonable for the jury to conclude that Britton and Paul participated in the conspiracy to import cocaine into the United States. Moreover, in light of our standard of review for challenges to the sufficiency of the evidence, I am unable to agree with the majority that no reasonable trier of fact could have inferred a conspiracy to import the cocaine

The majority appears to base its conclusion on the fact that “Mike” contacted Brit-ton and Paul “after the vessel carrying the cocaine reached the United States” and that “[tjhere is no proof that either defendant was even aware of the shipment’s existence until ‘Mike’ called them to retrieve it.” See ante at 842. This decision ignores the well-established fact that “[t]he government need not prove that each alleged conspirator knew all the details of the conspiracy [and that] [t]he government provides sufficient proof of knowledge by demonstrating the conspirator knew of the essential purpose of the conspiracy.” United States v. Obregon, 893 F.2d 1307, 1311 (11th Cir.1990). The majority’s reversal of Paul’s and Britton’s convictions for conspiracy to import also implies that Britton’s actions in meeting Adam at the docks and receiving the cocaine from the ship, Paul’s concerted actions preparing for the payment of the cocaine, and both of their communications with “Mike” in Guyana are not circumstantial evidence of the conspiracy to import the cocaine. I respectfully disagree. See Obregon, 893 F.2d at 1311 (explaining that “[t]he government may prove [ ] an agreement by circumstantial evidence, through ‘inferences from the conduct of the alleged participants or from circumstantial evidence of a scheme’ ”) (quoting United States v. Tamargo, 672 F.2d 887, 889 (11th Cir.1982)).

Moreover, I disagree with the majority that United States v. Rengifo, 858 F.2d 800, 807 (1st Cir.1988), presents a case involving “much more probative evidence.” See ante at 841. Instead, under very similar facts, the First Circuit found sufficient evidence to affirm the convictions of five defendants for conspiracy to import cocaine. See Rengifo, 858 F.2d at 807 (finding that the defendants were guilty of conspiracy to import cocaine by “prepar[ing] a plan for offloading the cocaine [from the ship]”). The majority offers no factors distinguishing the case at hand from Rengifo , and I, likewise, can surmise none.

The five defendants in Rengifo were convicted of conspiring to import cocaine after two of the defendants were apprehended shortly after taking delivery of the cocaine from a ship at its berth in Rhode Island. The First Circuit held that the action of the two defendants in retrieving the cocaine from the ship, together with the concerted planning of the three defendants who remained at a local hotel room, was sufficient for the jury to reasonably infer a conspiracy to import cocaine among all of the defendants. Our facts are indistinguishable from those of Rengifo , and, if anything, given the level of concerted action between “Mike,” Britton, and Paul, provide greater evidence that Brit-ton and Paul were coordinating their activity with “Mike” in Guyana.

In Rengifo , the court summarized the evidence deemed sufficient to support the importation charge for the two defendants apprehended at the docks:

Government agents observed two suspects dressed in black receiving a duffel bag from a ship which the agents reasonably believed contained cocaine____ The agents observed the two suspects running into the tank farm area of the docks. Five to ten minutes later Sigifredo and Rengifo were apprehended in that area, dressed in black and crawling on their stomachs toward a hole in a fence. Fifteen feet from Sigifredo and six feet from Rengifo were two duffel bags containing 55 kilograms of cocaine. This evidence alone was sufficient to convict Sigifredo of both importer *847 tion and possession with intent to distribute the cocaine.

Rengifo, 858 F.2d at 806 (emphasis added) As the First Circuit’s opinion clearly demonstrates, it is the two defendants’ action in retrieving the cocaine from the ship that is sufficient to convict them of conspiracy to import. There is no discussion about the defendants’ knowledge of the cocaine’s origin, who put it on the ship, or their participation in getting it across the ocean. Significantly, the actions of the two defendants in Rengifo are nearly identical to those of Britton in this case.

In addition, with regards to the remaining three defendants in Rengifo , the court confronted a situation analogous to that of Paul in the ease at hand. Because only two of the defendants in Rengifo were caught near the docks with possession of the cocaine, and the remaining defendants were arrested miles from the ship at their hotel, it was necessary to link the remaining defendants to the conspiracy to import cocaine. Noting that the jury is entitled to make reasonable inferences from circumstantial evidence, the First Circuit concluded that sufficient evidence supported the conviction of each of the three remaining defendants. See id., at 807-08 (concluding that evidence was sufficient to support conviction for conspiracy to import cocaine because “the jury could have concluded that [the defendant] was aware of the activities of [the other defendants] at the ship, and that he was hurriedly leaving the [hotel] room because he also feared being caught due to his involvement in the conspiracy”); see also Obregon, 893 F.2d at 1311 (“A person may also be found guilty of a conspiracy even if he plays only a minor role in the total scheme.’ ”) (quoting Tamargo, 672 F.2d at 889 ).

The court in Rengifo clarified that a defendant does not have to participate in the physical removal of cocaine from the ship in order to be convicted of conspiracy to import cocaine (as opposed to actual importation). The court explained as follows:

No evidence was presented that any of the defendants arrested in room 106 ever possessed the cocaine. We note as a preliminary matter, however, that a coconspirator is responsible for the substantive offenses committed in furtherance of the conspiracy regardless of whether he participates in, or even has knowledge of, those offenses. Therefore, the government needed to show only continuing participation by [the remaining defendants] in the conspiracy to import and possess with intent to distribute in order to satisfy its burden regarding their participation and the substantive offenses.

Rengifo, 858 F.2d at 807 (citation omitted). Contrary to the unsupported assertion by the majority, I do not find the facts of Rengifo distinguishable from the case at hand in any meaningful way. The detailed facts given in Rengifo relate to whether the defendants were involved with the cocaine delivery at all-a question that the majority already answers in the affirmative for Britton and Paul.

Significantly, Britton’s only argument against the conspiracy to import charge is that there is no evidence establishing any nexus between “Mike” and him or Paul and him. This plainly ignores the extensive evidence of concerted action between the defendants and “Mike,” as well as the fact that the jury can infer any element of the conspiracy from circumstantial evidence and the parties’ concerted action. Moreover, the majority has already rejected Britton’s claim that he was not part of any conspiracy with Paul, “Mike,” and Adam. See ante at 840 (catalogu-ing Britton’s concerted actions in relation to the conspiracy to possess charge). There is substantial evidence that would lead a reasonable jury to conclude that Britton coordinated with “Mike” in Guyana because he knew that the cocaine was on the ship, called Adam at a particular pay phone at a particular time, and took delivery of the cocaine without having to pay for it.

Similarly, Paul’s sole claim regarding the sufficiency of the evidence is that his refusal to deliver the $10,000 “evidenced his unwillingness to join the conspiracy.” Paul’s argument does not refute the notion that there was a conspiracy, nor that he and Britton coordinated their planned payment for and retrieval of the cocaine from the ship with “Mike.” To the contrary, Paul merely argues *848 that he “withdrew” from the conspiracy-an argument the majority correctly rejects.

As the majority correctly sets forth, “[t]he jury may infer any element of [the conspiracy] offense.” Lechuga, 888 F.2d at 1476 . Nonetheless, in reversing the jury’s conclusion under the facts of this case, the majority ignores this fundamental principle. In the case at hand, given: (1) the extraordinary degree of “concerted action” between “Mike” in Guyana and the defendants, Britton and Paul, (2) the fact that Paul was arrested with $10,000 in cash and directions to the ship’s berth, and (3) the fact that Britton did not pay for the cocaine and retrieved the cocaine directly from Adam at the docks, I disagree with the majority’s holding that no reasonable jury could find a conspiracy to import cocaine. For the foregoing reasons, I dissent.