     07-1435-cr(L)
     USA v. Lorenzo

 1                           UNITED STATES COURT OF APPEALS
 2
 3                               FOR THE SECOND CIRCUIT
 4
 5                                          ----
 6
 7                                  August Term, 2007
 8
 9     (Argued: June 16, 2008                       Decided: July 18, 2008)
10
11                     Docket Nos. 07-1435-cr(L), 07-1855-cr(CON)
12
13
14   ------------------------------------------------
15   UNITED STATES OF AMERICA,
16
17                                   Appellee,
18
19                                   -v.-
20
21   ANDREA LORENZO and JULIO LORENZO,
22
23                                   Defendants-Appellants,
24
25   FRANCISCA LEERDAM,
26
27                                   Defendant.
28
29   ------------------------------------------------
30
31   Before:          JACOBS, Chief Judge, STRAUB, Circuit Judge, and JONES,
32                    District Judge.*
33
34                    On appeal from judgments of conviction entered in the

35   Eastern District of New York (Walter, J.) following a jury trial,

36   in which both defendants-appellants were convicted of conspiracy to

37   import cocaine in violation of 21 U.S.C. §§ 960 and 963; and



            *
           The Honorable Barbara S. Jones of the United States
     District Court for the Southern District of New York, sitting by
     designation.

                                            -1-
1    conspiracy to distribute and possess with intent to distribute

2    cocaine in violation of 21 U.S.C. §§ 841 and 846.                 Defendant-

3    appellant Andrea Lorenzo was also convicted of importation of

4    cocaine in violation of 21 U.S.C. §§ 952 and 960.

5                Reversed    and   remanded     for   entry   of   judgments    of

6    acquittal.

7

 8                                       RAMON A. PAGAN, Bronx, New York, for
 9                                       Defendant-Appellant Andrea Lorenzo.
10
11                                       JANEANNE MURRAY, New York, New York
12                                       (Robert A. Culp, Garrison, New York,
13                                       on   the  brief),   for   Defendant-
14                                       Appellant Julio Lorenzo.
15
16                                       BRIAN MEAGHER, Assistant United
17                                       States Attorney, Brooklyn, New York
18                                       (Benton J. Campbell, United States
19                                       Attorney for the Eastern District of
20                                       New York, Susan Corkery, Elizabeth
21                                       A. Geddes, Assistant United States
22                                       Attorneys, Brooklyn, New York, on
23                                       the brief), for Appellee.
24
25   JONES, District Judge:

26               Defendants-appellants Andrea and Julio Lorenzo, following

27   a four-day jury trial of a four-count superseding indictment before

28   Donald E. Walter, Visiting Judge,1 in the United States District

29   Court for the Eastern District of New York, were convicted of

30   conspiracy to import cocaine in violation of 21 U.S.C. §§ 960 and

31   963 (Count 1); and conspiracy to distribute and possess with intent


           1
             The Honorable Donald E. Walter of the United States District Court for
     the Western District of Louisiana.

                                          -2-
1    to distribute cocaine in violation of 21 U.S.C. §§ 841 and 846

2    (Count 3).      As to Count 2, importation of cocaine in violation of

3    21 U.S.C. §§ 952 and 960, Andrea Lorenzo was convicted, while Julio

4    Lorenzo was acquitted.         Both Lorenzos were acquitted of Count 4,

5    attempted possession of cocaine with intent to distribute in

6    violation of 21 U.S.C. §§ 841 and 846.                       Andrea Lorenzo was

7    sentenced to a term of 60 months’ imprisonment, to be followed by

8    a   four-year    term   of   supervised       release,   and    a    $300   special

9    assessment.      The district court sentenced Julio Lorenzo to 60

10   months’    imprisonment,     to    be   followed   by    a   four-year      term    of

11   supervised release, and a $200 special assessment.                  On appeal, the

12   Lorenzos     contend    that      the   evidence    adduced         at   trial     was

13   insufficient to sustain the judgments of conviction against them.

14   Julio Lorenzo also argues alternatively that he should be granted

15   a new trial in the interest of justice, and raises challenges to

16   his sentence.       We agree that the evidence was insufficient to

17   support the judgments of conviction, and for the reasons that

18   follow, reverse the judgments of conviction against Andrea and

19   Julio Lorenzo and remand to the district court for entry of

20   judgments of acquittal.2

21

22

           2
             Following oral argument and upon due consideration of the record on
     appeal, we issued an Order filed June 17, 2008, reversing Andrea Lorenzo’s
     judgment of conviction, issuing the mandate forthwith, and noting that an
     opinion would issue in due course.

                                             -3-
1                                     BACKGROUND

2                The   present   prosecutions    arose     out   of   a   controlled

3    delivery of narcotics initiated after officers with Customs and

4    Border    Protection   (“CBP”)   discovered     over    three    kilograms   of

5    cocaine hidden in defendant Francisca Leerdam’s suitcases during a

6    routine   customs   examination     at   John   F.    Kennedy    International

7    Airport (“JFK Airport”) on October 13, 2005. The evidence at trial

8    consisted largely of, inter alia, Leerdam’s testimony as to the

9    events surrounding the October 13, 2005 trip and a previous trip

10   she made to the United States a month earlier, and the testimony of

11   various agents involved in the customs search and controlled

12   delivery; the Lorenzos offered no evidence.                 The evidence is

13   summarized below in the light most favorable to the prosecution.

14   A.   Leerdam’s Entry into the Conspiracy

15               In July, 2005, Leerdam met a man known as Amauri (Andrea

16   Lorenzo’s nephew) in a nightclub in Santo Domingo in the Dominican

17   Republic, who offered her a job smuggling drugs outside of the

18   Dominican Republic. (Trial Transcript (“Tr.”) at 141-42.) The day

19   after their meeting at the nightclub, he asked Leerdam to meet him

20   at a house, where she found him cutting up carrots that she learned

21   were for her to swallow “to train [her], to see if [she] could

22   swallow drugs.”     (Id. at 143.)    Leerdam was unable to swallow the

23   carrots easily, and thus planned to smuggle drugs outside of the

24   Dominican Republic in suitcases instead.             (Id. at 144.)


                                         -4-
1               Leerdam’s first smuggling trips--three in all--were from

2    the Dominican Republic to the Netherlands; for each trip, she

3    received approximately $3,000 from Amauri, (id. at 183).           Amauri

4    then asked her to smuggle drugs into the United States.           Leerdam

5    initially refused because of her view that there were “too many

6    police officers . . . in the U.S.,” (id. at 145), but eventually

7    acceded to Amauri’s request.

8    B.   The September Trip

9               Prior to Leerdam’s first trip to the U.S., Amauri told

10   her to pack her clothing into a suitcase and take a taxi to a

11   store.    (Id.   at   146.)   Upon   arrival,    Leerdam   met   Amauri’s

12   girlfriend, Camelina, with whom she went to a nearby hotel, where

13   Amauri arrived and instructed Leerdam to transfer her clothing from

14   her suitcase to one that he provided for        her.   (Id. at 147.)   At

15   the hotel, he gave Leerdam an airplane ticket, her passport, $100

16   in cash, and a piece of paper with an address on it, and instructed

17   her to buy a phone card upon her arrival in the U.S. in order to

18   call him for further instructions.     (Id. at 147-48.)

19              On September 1, 2005, Leerdam departed from the Santo

20   Domingo Airport for JFK Airport. She passed through customs at JFK

21   Airport without incident, purchased a phone card, and called Amauri

22   for further instructions; he told her to take a taxi to Corona,

23   Queens.   At the location in Corona to which her taxi was directed,

24   two men were waiting, and one greeted her and eventually introduced


                                      -5-
1    himself as Ronnie.      (Id. at 152-53.)    Ronnie paid the taxi driver

2    and removed the suitcase from the cab. Leerdam entered a different

3    vehicle with Ronnie and the other individual, and they drove to

4    Ronnie’s apartment in Pennsylvania.        At Ronnie’s apartment, Ronnie

5    took Leerdam’s suitcase into a bedroom, from which he emerged with

6    a different suitcase.      (Id. at 154.)

7               Eventually, Ronnie and the other individual drove Leerdam

8    back to Corona, Queens.      In Corona, a white S.U.V. pulled up, and

9    Ronnie exited the car to speak with the driver of the S.U.V., Julio

10   Lorenzo.   (Id. at 155.)     Ronnie and Julio spoke for approximately

11   5 minutes; Leerdam was unable to hear the contents of their

12   conversation.   (Id.)    Ronnie then told Leerdam to go to the S.U.V.,

13   which Julio had exited in order to get the suitcase.        (Id.)   Upon

14   entering the S.U.V., Leerdam met Andrea Lorenzo for the first time;

15   Andrea asked Leerdam “how did it go for [you],” (id. at 157), and

16   noted that Amauri had called and asked the Lorenzos to take Leerdam

17   to a nearby hotel, (id. at 157-58).      At the hotel, Andrea stayed in

18   the S.U.V., while Julio accompanied Leerdam to the reception desk

19   and paid for one night’s stay.      Julio then escorted Leerdam up to

20   the room, and told Leerdam to call him if she needed anything.

21   (Id. at 158-59.)

22              The next day, September 4, 2005, Julio returned to the

23   hotel with a brown bag containing $14,000 that he told Leerdam was

24   for Amauri, and wrapped the cash inside clothing in her suitcase.


                                        -6-
1    (Id. at 161.)       Julio took Leerdam to JFK Airport and accompanied

2    her to the terminal from which her return flight was departing and

3    stayed with her until she checked her luggage.             (Id. at 161-63.)

4    When Leerdam arrived in Santo Domingo, she retrieved her suitcase

5    and received a phone call from Camelina, who picked Leerdam up and

6    took her to a nearby hotel.       (Id. at 164.)   At the hotel, Camelina

7    counted the money in Leerdam’s suitcase; Amauri called Camelina “to

8    see if everything was complete,” (id. at 165), which Camelina

9    confirmed.       Camelina then gave Leerdam $3,000.        (Id.)   At trial,

10   Leerdam admitted that she had never seen the contents of the

11   suitcase during this trip, (id. at 191), though she simply assumed

12   that there were drugs therein because Amauri told her so, (id. at

13   187-88).

14   C.     The October Trip

15               Shortly after the September Trip, Amauri asked Leerdam to

16   take another trip to the U.S., and Leerdam agreed.             (Id. at 165-

17   66.)    On October 13, 2005, Leerdam boarded a flight from Santo

18   Domingo to JFK Airport, this time with two suitcases provided by

19   Amauri.     (Id. at 166.)       Upon arrival at JFK Airport, Leerdam

20   underwent a routine customs examination, during which agents from

21   CBP discovered what was later determined to be 3.25 kilograms of

22   cocaine.     (Id. at 44-45, 269.)     A special agent with Immigration

23   and    Customs    Enforcement   (“ICE”)   testified   at   trial   that   the

24   wholesale value of this cocaine was approximately $67,000, and that


                                         -7-
1    the street value was approximately $260,000.                 (Id. at 271-72.)         At

2    trial, Leerdam testified that until confronted by CBP agents, she

3    did not know the type or amount of drugs in her suitcases.                      (Id. at

4    182.) Leerdam was arrested by CBP officers at approximately 11 p.m.

5    on October 13, (id. at 295-96), and she agreed to cooperate with

6    law enforcement by permitting certain phone calls to be monitored

7    and recorded, and participating in a controlled delivery of the

8    cocaine, (id. at 60-61, 169-70).

9                The   first   call   Leerdam     made      was    to       Amauri   in   the

10   Dominican   Republic;     he    directed    her   to    find       a    taxi    driver,

11   preferably one who had a cellular phone, and to take the taxi to

12   103rd Street and Corona Avenue in Queens.                    (Government Exhibit

13   (“GX”)    10-A    (Translated     English    Transcription              of   Telephone

14   Conversation between Leerdam and Amauri on October 13, 2005).)                       An

15   agent from ICE, Jason Hurwitz, posed as a taxi driver and took

16   Leerdam in an undercover taxi to 103rd Street and Corona Avenue in

17   Queens.   At approximately 12:45 a.m. on October 14, Leerdam placed

18   another call to Amauri in the Dominican Republic.                            (Tr. 62.)

19   During that call, Amauri asked to speak with the taxi driver and

20   told Hurwitz to take Leerdam to a nearby hotel.                    (Id.; GX 3500FL4

21   at 3-4 (Translated English Transcriptions of Recorded Telephone and

22   Monitoring Device Conversations).)          After briefly conversing with

23   Hurwitz, Amauri asked him to put Leerdam back on the line, and

24   altered course, giving Leerdam a local Queens number to call, with


                                          -8-
1    instructions to ask for Julio.     (Tr. 63; GX 3500FL4 at 4-7.)

2                Leerdam called the Queens number shortly thereafter,

3    which was answered by Andrea.    (Tr. 63.)     Leerdam asked for Julio,

4    and when told that he was sleeping, responded that Amauri told her

5    to ask for him.   (GX 3500FL4 at 11.)    Andrea responded that Amauri

6    had just called, and that she should come to the Lorenzo residence

7    to wait for a taxi to “take [her] to, to where . . . uh, Julito

8    took [her],” (id. at 13), and that Amauri would be calling Andrea

9    back.   Leerdam arrived at the Lorenzo residence at approximately 1

10   a.m. and found Andrea in her nightgown waiting on the porch.      (Tr.

11   63-64.)    Hurwitz pulled the taxi in front of the house and helped

12   Leerdam remove the suitcases from the trunk of the taxi; Andrea

13   took one suitcase and Leerdam took the other as they proceeded

14   towards the house.     (Id. at 66.)   Upon reaching the porch, Andrea

15   placed the suitcase she was carrying inside the house.         (Id. at

16   180.)     During the course of Leerdam’s egress from the taxi and

17   their approach towards the house, the following exchange occurred:

18               LEERDAM:   Is that you, ma’[a]m?
19
20               ANDREA:    How are you, [unintelligible (“[U/I]”)]?   Damn
21                          it, so much work, huh?
22
23               LEERDAM:   Yes.
24
25               ANDREA:    [U/I].
26
27                          [Pause]
28
29               ANDREA:    Oh, my God, honey! Yes, he called me, me and
30                          told me to call a taxi from the corner that I
31                          know to take you to the, the hotel.

                                       -9-
 1             LEERDAM:     Right.
 2
 3             ANDREA:      So you can spend the night right there.
 4                          Because [U/I] I’m sleeping in a room a lot
 5                          smaller tha[n] this one. Otherwise, we could
 6                          both be together. [U/I] a small bed.
 7
 8             LEERDAM:     And the suit-?
 9
10   (GX 3500FL4 at 24.)           As Leerdam was asking Andrea about the

11   suitcases, she was interrupted by agents who told Leerdam and

12   Andrea not to move and proceeded to arrest them.              (Id.)

13             Agents entered the Lorenzo home and came upon Julio

14   Lorenzo Jr., and arrested him.           (Tr. 71.)       Leerdam later told

15   agents that Julio Jr. was not the person whom she had dealt with

16   previously,    and   agents    then   returned    to   the   home   where   they

17   returned Julio Jr. and arrested the senior Julio Lorenzo.                   (Id.)

18   Inside the home, agents recovered an address book which listed

19   several of Amauri’s phone numbers repeatedly.            (Id. at 67-68.)

20             Upon her arrest, Andrea was advised of and waived her

21   Miranda rights, and indicated her willingness to speak to law

22   enforcement.     (Id. at 210-11.)            During an interview conducted

23   shortly thereafter, Andrea disclaimed knowing Leerdam and said that

24   she had never seen her before.         (Id. at 211-12.)       She stated that

25   she was doing a favor for her nephew by helping to get Leerdam

26   situated in a hotel, and that she had no intention of bringing

27   Leerdam into her house.       (Id. at 212.)      Andrea also noted that she

28   did not know what was in the suitcases and that it was a mistake to

29   do this favor for her nephew.         (Id.)    At a subsequent interview in

                                           -10-
1    the early morning at the ICE office at JFK Airport, Andrea was

2    again advised of and waived her Miranda rights, and noted that she

3    had in fact met Leerdam approximately two months prior, but that

4    she didn’t know her name.       (Id. at 282.)        Julio was also advised of

5    and waived his Miranda rights during an interview at the ICE

6    office, and he stated that he had done a favor for his nephew by

7    picking Leerdam up, taking her to a hotel, and dropping her off at

8    JFK Airport.     (Id. at 284-85.)       He denied giving Leerdam any money.

9    (Id. at 285, 313.)

10              The trial commenced on December 4, 2006, and the jury

11   returned   its   verdict   on       December   7,    2006.       Andrea    Lorenzo’s

12   judgment   of    conviction     was    entered      on   April    4,    2007;     Julio

13   Lorenzo’s was entered on May 1, 2007.               Both defendants-appellants

14   filed timely notices of appeal, and these appeals followed.

15

16                                       DISCUSSION

17              On    appeal,      the     Lorenzos      contend      that     there    was

18   insufficient evidence adduced at trial to demonstrate that they

19   knowingly entered into the conspiracy with the specific intent to

20   commit the offenses that were the objects of the conspiracy.

21   Andrea Lorenzo also argues that the evidence was insufficient to

22   prove that she knowingly and intentionally imported cocaine.                        We

23   agree.

24              “A defendant bears a heavy burden in seeking to overturn


                                            -11-
1    a conviction on grounds that the evidence was insufficient.”

2    United States v. Cruz, 363 F.3d 187, 197 (2d Cir. 2004).                  “The

3    ‘relevant question’ in this inquiry is ‘whether, after viewing the

4    evidence in the light most favorable to the [government], any

5    rational trier of fact could have found the essential elements of

6    the crime beyond a reasonable doubt.’” United States v. Rodriguez,

7    392 F.3d 539, 544 (2d Cir. 2004) (quoting Jackson v. Virginia, 443

8    U.S. 307, 319 (1979)) (emphasis in Jackson).             Direct evidence is

9    not required; “[i]n fact, the government is entitled to prove its

10   case solely through circumstantial evidence, provided, of course,

11   that the government still demonstrates each element of the charged

12   offense beyond a reasonable doubt.”       Id.    “Our evaluation looks at

13   ‘the evidence in its totality,’ and the Government ‘need not negate

14   every theory of innocence.’”      United States v. Glenn, 312 F.3d 58,

15   63 (2d Cir. 2002) (quoting United States v. Autuori, 212 F.3d 105,

16   114 (2d Cir. 2000)).      “While we defer to a jury’s assessments with

17   respect to credibility, conflicting testimony, and the jury’s

18   choice of the competing inferences that can be drawn from the

19   evidence, specious inferences are not indulged,” United States v.

20   Jones, 393 F.3d 107, 111 (2d Cir. 2004) (internal quotation marks

21   and   citation   omitted),   because    “‘[it]   would    not   satisfy    the

22   [Constitution] to have a jury determine that the defendant is

23   probably guilty.’” Rodriguez, 392 F.3d at 544 (quoting Sullivan v.

24   Louisiana,   508   U.S.   275,   278   (1993))   (emphasis      in   Sullivan;


                                        -12-
1    alterations in Rodriguez).       “[I]f the evidence viewed in the light

2    most favorable to the prosecution gives equal or nearly equal

3    circumstantial support to a theory of guilt and a theory of

4    innocence, then a reasonable jury must necessarily entertain a

5    reasonable doubt.” Glenn, 312 F.3d at 70 (internal quotation marks

6    omitted).

7                “To sustain a conspiracy conviction, the government must

8    present some evidence from which it can reasonably be inferred that

9    the person charged with conspiracy knew of the existence of the

10   scheme   alleged    in   the   indictment    and    knowingly    joined    and

11   participated   in   it.”       Rodriguez,   392    F.3d   at   545   (internal

12   quotations omitted).       “[W]here the crime charged is conspiracy, a

13   conviction cannot be sustained unless the Government establishes

14   beyond a reasonable doubt that the defendant had the specific

15   intent to violate the substantive statute[s].”             United States v.

16   Gaviria, 740 F.2d 174, 183 (2d Cir. 1984) (internal quotation marks

17   omitted).   “To convict a defendant as a member of a conspiracy, the

18   government must prove that the defendant agree[d] on the essential

19   nature of the plan,” United States v. Salameh, 152 F.3d 88, 151 (2d

20   Cir. 1998) (internal quotation marks omitted), and that there was

21   a “conspiracy to commit a particular offense and not merely a vague

22   agreement to do something wrong,” United States v. Provenzano, 615

23   F.2d 37, 44 (2d Cir. 1980) (internal quotation marks omitted).

24               “[O]nce a conspiracy is shown to exist, the evidence


                                         -13-
1    sufficient     to   link    another    defendant     to   it   need   not   be

2    overwhelming.”      United States v. Nusraty, 867 F.2d 759, 762 (2d

3    Cir. 1989) (internal quotation marks omitted).            But “[s]uspicious

4    circumstances . . . are not enough to sustain a conviction for

5    conspiracy,”     id.   at   763,   and   “mere     association   with   those

6    implicated in an unlawful undertaking is not enough to prove

7    knowing involvement,” id. at 764; likewise, “a defendant’s mere

8    presence at the scene of a criminal act or association with

9    conspirators does not constitute intentional participation in the

10   conspiracy, even if the defendant has knowledge of the conspiracy,”

11   United States v. Samaria, 239 F.3d 228, 235 (2d Cir. 2001).

12   A.   Julio Lorenzo

13             The government contends that there was “ample evidence

14   adduced at trial” to demonstrate that Julio knew that the object of

15   the conspiracy was cocaine smuggling and distribution, and points

16   principally to the following evidence as indicia of his knowledge:

17   (1) Julio’s encounter and conversation with Ronnie in September

18   2005 followed by his stewardship of Leerdam until her flight back

19   to the Dominican Republic; (2) Julio’s transfer of the $14,000 in

20   cash to Leerdam to deliver to Amauri; (3) Amauri’s instruction to

21   Leerdam during the October 2005 trip that she call the Lorenzo

22   residence and ask for Julio; and (4) Julio’s false exculpatory

23   statement upon questioning that he had never given Leerdam any

24   money.


                                           -14-
1                 It is clear, viewing the evidence in the light most

2    favorable to the government, that a reasonable jury could find that

3    a drug-smuggling conspiracy existed and that Leerdam and Amauri

4    knowingly participated in it. The government’s argument focuses on

5    various events that purportedly link Julio to this conspiracy.

6    However,     the    evidence        highlighted        by    the   government,       when

7    considered in the aggregate, still lacks a critical element–-any

8    indication from which a jury could reasonably infer that Julio knew

9    of the nature and specific object of the conspiracy.

10                First, although there is ample evidence demonstrating

11   the existence of the conspiracy, and that Julio was present at and

12   participated in events that furthered the conspiracy, there is

13   insufficient evidence to show that he did so knowingly and with the

14   specific intent to further a cocaine smuggling and distribution

15   conspiracy.        With respect to the September trip, there is no

16   evidence     in    the    record     as   to     the    contents     of    either    the

17   conversation between Julio and Ronnie or the suitcase that Leerdam

18   was carrying.       The government contends that the $14,000 that Julio

19   gave   to   Leerdam       for   delivery    to    the       Dominican     Republic    was

20   “proceeds of the conspiracy,” supporting an inference that Julio

21   knew of the aims of the conspiracy.                     However, in light of the

22   absence     of    any    evidence    indicating        Julio’s     knowledge    of   the

23   contents of Leerdam’s suitcase, or prior participation in this

24   conspiracy, and his complete lack of participation in the events


                                               -15-
1    surrounding the October trip (where it is clear that cocaine was

2    actually smuggled into the country), we cannot say that there are

3    “facts sufficient to draw a ‘logical and convincing connection’

4    between circumstantial evidence of an agreement, and the inference

5    that an agreement was in fact made,” Jones, 393 F.3d at 111.

6              No doubt the transfer of $14,000 from Julio to Leerdam is

7    suspicious   and,   viewed   in   the   light   most   favorable   to   the

8    government, indicative of participation in illegal behavior.            But

9    such a transfer is consistent with participation in a wide variety

10   of offenses, and in light of the other evidence, is insufficient to

11   prove Julio’s intent to participate in the conspiracy charged in

12   the indictment.     See Samaria, 239 F.3d at 237 (holding that there

13   was insufficient evidence of defendant’s intent to engage in a

14   conspiracy to receive or possess stolen goods despite his presence

15   in a car with boxes containing the goods because “the exterior

16   appearance of the boxes was equally consistent with any number of

17   different criminal offenses including the receipt and possession of

18   drugs, illegal weapons, counterfeit currency, or the receipt of

19   legal goods such as drug paraphernalia that would later be employed

20   in a criminal endeavor”).

21             The government also asks us to view Amauri’s instruction

22   that Leerdam call Julio during the October trip as supporting an

23   inference that “Amauri would not have entrusted Julio with the

24   suitcases concealing the narcotics, worth over $250,000, unless


                                       -16-
1    Julio had known what was concealed within them and that it was

2    reasonably foreseeable to him that the smuggled narcotic from the

3    Dominican Republic was cocaine.”              This unfulfilled request for

4    Julio cannot support such a speculative and attenuated inference;

5    Julio’s    continued     dormancy     despite    Leerdam’s   request   severely

6    undermines the notion that it was critical that Julio specifically

7    be entrusted with such valuable narcotics.

8                   Finally, the government relies on the false exculpatory

9    statement made by Julio after his arrest.              We have observed that

10                  [w]hile false exculpatory statements made to law
11                  enforcement    officials   are    circumstantial
12                  evidence of a consciousness of guilt and have
13                  independent probative force, . . . falsehoods
14                  told by a defendant in the hope of extricating
15                  himself from suspicious circumstances are
16                  insufficient proof on which to convict where
17                  other evidence of guilt is weak and the evidence
18                  before the court is as hospitable to an
19                  interpretation consistent with the defendant’s
20                  innocence as it is to the Government’s theory of
21                  guilt.
22
23   United States v. Johnson, 513 F.2d 819, 824 (2d Cir. 1975).                 We

24   find that Julio’s statement, while indicative of consciousness of

25   guilt, is insufficient in light of the rest of the evidence against

26   him.

27                  It bears emphasis that we recognize that “a defendant’s

28   knowing agreement to join a conspiracy must, more often than not,

29   be proven through circumstantial evidence,” Nusraty, 867 F.2d at

30   764.      We    have   seen   cases   where     the   circumstantial   evidence

31   considered in the aggregate demonstrates a pattern of behavior from

                                            -17-
1    which a rational jury could infer knowing participation.                 See,

2    e.g., United States v. Martino, 759 F.2d 998, 1003-04 (2d Cir.

3    1985) (holding that defendant’s arrival at a time and place where

4    a heroin transaction was scheduled to occur, where he witnessed an

5    exchange of money for packages of a substance made to resemble

6    heroin, coupled with statements indirectly indicating that he was

7    the   intended   eventual   purchaser    of   a   portion   of   the   heroin,

8    coincidental coming and going with participants in the conspiracy,

9    and a false exculpatory statement upon his arrest at the scene, was

10   sufficient circumstantial evidence to show knowing participation in

11   a conspiracy to distribute and possess with intent to distribute

12   heroin).   This is not such a case.

13   B.    Andrea Lorenzo

14   1.    The Conspiracy Counts

15              The evidence as to Andrea’s knowing participation in the

16   conspiracy is even more sparse and requires little discussion. The

17   government contends that it was permissible for the jury to infer

18   that Andrea knowingly participated in the conspiracy with the

19   specific intent to import and distribute cocaine from: (1) the

20   record of conversations between Amauri and Andrea on the evening of

21   October 13, 2005; (2) Andrea’s instruction to Leerdam that evening

22   that she come to the Lorenzo residence to take a different taxi to

23   a hotel; (3) her greeting of Leerdam as she arrived; (4) her

24   transfer of one of Leerdam’s suitcases from the taxi into her


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1    house;   (5)    Andrea’s        presence    in    the   S.U.V.    during     Leerdam’s

2    September visit; and (6) Andrea’s false exculpatory statement

3    following her arrest that she had never seen Leerdam before and did

4    not know her.        This evidence, considered in the aggregate and

5    viewed in the light most favorable to the government, supports at

6    most   an    inference     that     Andrea       knew   that    she   was    assisting

7    suspicious behavior; viewed in this light, it is also, as Andrea

8    contends, consistent with providing hospitality to her nephew’s

9    girlfriend and regretting providing such assistance.                        See Glenn,

10   312 F.3d at 70 (“[I]f the evidence viewed in the light most

11   favorable      to   the    prosecution        gives     equal    or    nearly    equal

12   circumstantial support to a theory of guilt and a theory of

13   innocence, then a reasonable jury must necessarily entertain a

14   reasonable doubt.” (internal quotation marks omitted)).

15   2.     The Substantive Importation Count

16                Because      the    government       proceeded     on    an    aiding   and

17   abetting theory with respect to the substantive importation count,

18   the government was required “to prove, beyond a reasonable doubt,

19   that the defendant knew the specific nature of the . . . underlying

20   crime,” United States v. Friedman, 300 F.3d 111, 124 (2d Cir.

21   2002).      For the reasons discussed with respect to the conspiracy

22   counts against Andrea, the evidence was also insufficient to

23   support a conviction on this count.

24


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1    C.   Julio Lorenzo’s Other Contentions

2                Because we reverse Julio’s judgment of conviction in its

3    entirety on sufficiency grounds, we need not address his other

4    arguments.

5

6                                    CONCLUSION

7                For    the   foregoing    reasons,        defendants-appellants’

8    judgments    of   conviction   are   reversed    in    their   entirety,   and

9    remanded to the district court for entry of judgments of acquittal

10   on each count.     The mandate as to Julio Lorenzo (docket number 07-

11   1855) shall issue forthwith.




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