                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3118
                                   ___________


United States of America,           *
                                    *
          Plaintiff-Appellant,      *
                                    * Appeal from the United States
     v.                             * District Court for the Southern
                                    * District of Iowa.
Norma Hernandez,                    *
                                    *
          Defendant-Appellee.       *
                               ___________

                             Submitted: May 14, 2002

                                 Filed: September 9, 2002
                                  ___________

Before WOLLMAN, BRIGHT, and GIBSON, Circuit Judges.
                          ___________

BRIGHT, Circuit Judge.

      After a jury convicted Norma Hernandez of aiding and abetting the possession
with intent to distribute methamphetamine, the district court1 granted Hernandez’s
motion for judgment of acquittal. The government appeals, arguing that it presented



      1
       The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
sufficient evidence at trial to allow a reasonable jury to find Hernandez guilty beyond
a reasonable doubt.

                                I. BACKGROUND

       Through an undercover informant, police purchased methamphetamine three
times from a man named Jaime Marin. On February 12, 2001, the date of the third
and final exchange, Marin told the informant that he had to wait until his
methamphetamine delivery arrived before he could complete the transaction. Shortly
thereafter, Elisandro Garcia-Melchor and Norma Hernandez arrived at Marin’s
residence in a white Chevrolet Cavalier. According to the police officer conducting
surveillance of the house, Garcia-Melchor went between the house and the car two
or three times.2 After Garcia-Melchor and Hernandez departed, Marin delivered two
pounds of methamphetamine to the informant. The police then arrested Marin and
took Garcia-Melchor and Hernandez into custody for questioning. Police seized a
cellular telephone from the Cavalier. The phone was registered in Hernandez’s name.

       Marin, Garcia-Melchor, Hernandez, and others were indicted in United States
District Court for the Southern District of Iowa on charges of conspiracy to distribute
methamphetamine pursuant to 21 U.S.C. § 846 and possession with intent to
distribute methamphetamine pursuant to 21 U.S.C. § 841(a)(1). Marin and Garcia-
Melchor pled guilty to various charges.3 The government filed a second superseding

      2
       The police officer who interviewed Hernandez testified that Hernandez told
him that Garcia-Melchor got out of the vehicle and told her to drive around to the
back of the house, which she did. However, the police officer conducting the
surveillance explicitly stated that he did not recall anyone moving the car or turning
it around during the approximately thirteen minutes it was parked outside Marin's
residence.
      3
       The government charged that there were five members of the drug conspiracy,
including Marin, Garcia-Melchor, and Hernandez. Three of the five pled guilty, and

                                         -2-
indictment charging Hernandez with two counts: conspiring to distribute
methamphetamine in violation of 21 U.S.C. § 846 and aiding and abetting the
possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2.

       At Hernandez’s trial, the government presented several items seized from
Hernandez’s residence at 2423 23rd Avenue in Moline, Illinois, which it considered
evidence of Hernandez’s involvement in the methamphetamine conspiracy. In the
kitchen of the residence, police found a digital scale commonly used to weigh drugs.
An officer who searched the residence testified that the scale was located high up in
a kitchen cabinet; the officer had to reach above his head to retrieve it. Also in the
kitchen, the officers found plastic wrap "nearly identical" to the type used to package
some of the methamphetamine purchased in the undercover operation. Officers found
receipts for cars purchased in Hernandez’s name and $14,100 cash under a bed in the
residence. The government traced $4500 of that money back to serialized funds used
in the undercover operation.

       The government also offered the cellular telephone registered in Hernandez’s
name as evidence of her involvement in the conspiracy.4 According to Hernandez's
statements to officers after her arrest, although the subscriber agreement was in her
name, the phone belonged to Garcia-Melchor. The government called the cellular
phone sales agent who testified that she sold a cellular phone and prepaid minute
cards for the phone to Garcia-Melchor and Hernandez. The sales agent also testified
that every cellular phone subscriber agreement must include the subscriber's social


Hernandez and another defendant, Jose Duran, went to trial. In a separate proceeding,
a jury found Duran not guilty of any charges.
      4
       Records for the cellular phone established that between August 6, 2000, and
February 12, 2001, the phone was used to make 170 calls to Marin. The government
never attempted to prove that Hernandez herself made any of these calls.

                                         -3-
security number. On the phone subscriber agreement, Hernandez provided her
correct name, social security number, and birth date. However, according to the
government, Hernandez provided a nonexistent address on the subscriber agreement.

       The address Hernandez provided in the subscriber agreement was 4066 8th
Avenue, Silvis, Illinois. Hernandez had given the address 406 8th Avenue, Silvis, in
certain wire transfers she made to Mexico. Hernandez, on three occasions, wired a
total of $2,600 to Mexico.




      5
       While searching the residence, officers found a business card from "Order
Express" with the name Norma Hernandez on it. Claudia Lara, an employee of Order
Express, testified at trial and identified invoices from Order Express showing that
Hernandez wired money to Mexico on three separate occasions in 2000: $1500 to
Mexico on November 30, 2000; $200 to Mexico on December 4, 2000; and $900 to
Mexico on December 7, 2000. Each invoice listed Hernandez's address as 406 8th
Avenue in Silvis. The government did not establish when Hernandez first provided
her address to Order Express. Lara simply testified: "The first time when they arrive,
they give us their address, but they never give us any identification, because we don't
need identification." (Tr. 142).

                                         -4-
        Candido Vicuna, the owner of Sands Auto Sales in Moline, testified for the
government. Although it is somewhat unclear in the record, it appears that around
September 2000,Vicuna sold Hernandez and Garcia-Melchor a 1990 Toyota 4-
Runner, which Garcia-Melchor subsequently sold for profit, and then seven days later
Vicuna sold Hernandez and Garcia-Melchor a 1991 Chevy Lumina. A month later,
Garcia-Melchor returned the Lumina, according to Vicuna, "because Norma didn't
like that vehicle. She liked the '91 Cutlass Supreme." (Tr. 154). Vicuna stated that
Garcia-Melchor negotiated the purchase of these vehicles, but Hernandez was
present. Vicuna testified that he communicated with Garcia-Melchor in Spanish
because Garcia-Melchor did not speak English. Vicuna specifically told Hernandez
to fill out the purchase documents and told her to put her name on the papers because
it would be easier for her to get insurance and a driver’s license.

       The government called Mary Callahan, an employee of Premiere Properties,
to testify. Callahan rented the residence at 2423 23rd Avenue in Moline to Norma
Hernandez and another person identified as Jesus Aranda. Callahan testified that
Aranda paid for the rent each month, and sometimes paid several months in advance.
According, to Callahan's testimony, "Jesus spoke English. Norma spoke a little
English also," and Callahan never had difficulty communicating with Aranda. (Tr.
126-28).6

      The police's undercover informant, Mark Ockenfels, who made the controlled
purchases from Jaime Marin, testified that he did not know Hernandez, had never
seen her before, and had no knowledge of her being involved in any way with Jaime


      6
         On the other hand, the Sands Auto Sales owner, Vicuna, testified that he was
certain Garcia-Melchor did not speak any English. Although there are intimations,
it is not clear from the record or the government's brief whether or not the government
believes Aranda to be Garcia-Melchor's alias. The government did not prove that
Aranda actually lived at 2423 23rd Avenue, nor did the government prove that he did
not live there.

                                         -5-
Marin. Agent Pettrone testified that in his interview with Hernandez, he asked her
if she suspected that Garcia-Melchor was involved with drugs, and she said that she
had never seen him either use or be in possession of any drugs. She said she had
never been involved in drugs, either using or dealing, and she said that she would not
know drugs if they were put on the table in front of her.

       Agent Fiems testified that she interviewed Marin, and he said that Hernandez
was present when he and Garcia-Melchor talked about drugs.7 Marin indicated that
he and Garcia-Melchor did not speak in code about the drugs, but Agent Fiems did
not elaborate on what was said, how it was said, or when it was said.

       At the close of the government’s case in chief, Hernandez moved for a
judgment of acquittal under Federal Rule of Criminal Procedure 29(a). Pursuant to
Federal Rule of Criminal Procedure 29(b), the court reserved ruling on the motion
until after the jury verdict. The jury found Hernandez not guilty of conspiracy but
found her guilty of aiding and abetting possession with intent to distribute
methamphetamine. The court granted Hernandez’s motion for judgment of acquittal.
This appeal followed.

                                 II. DISCUSSION

       Under Rule 29(a), a court shall enter a judgment of acquittal if the evidence
presented at trial is insufficient to sustain a conviction. Fed. R. Crim. P. 29(a). "In
reviewing a judgment granting a motion for acquittal, we view the evidence in the
light most favorable to the Government and affirm if a reasonable jury viewing the
evidence in this light must have a reasonable doubt about the existence of an essential
element of the crime." United States v. Quigley, 53 F.3d 909, 909 (8th Cir. 1995).


      7
      Defense counsel elicited this hearsay testimony on cross-examination of Agent
Fiems. Marin did not testify at Hernandez's trial.

                                         -6-
       When a district court considers a motion for acquittal, it does so with “very
limited latitude” United States v. Thompson, 285 F.3d 731, 733 (8th Cir. 2002)
(citations and internal quotations omitted). The court should not assess the credibility
of the witnesses or weigh the evidence. Id. In the instant case, the government
argues that the district court erred by determining the government did not present
sufficient evidence to prove that Hernandez aided and abetted the possession with
intent to distribute methamphetamine.8 We disagree.

       To convict Hernandez of aiding and abetting the possession with intent to
distribute methamphetamine, the government had to prove beyond a reasonable doubt
that Hernandez: (1) associated herself with the unlawful venture; (2) participated in
it as something she wished to bring about; (3) sought by her actions to make it
succeed; and (4) shared the criminal intent of the principal. United States v.
Brownlee, 890 F.2d 1036, 1038 (8th Cir. 1989).

       The district court found that there was enough evidence to permit “a reasonable
person to conjecture that defendant knew what was going on and in some fashion
assisted Mr. Garcia-Melchor in committing the crime.” (App. A-10). However,
mere conjecture is not enough to overcome the burden of reasonable doubt.

      The district court granted Hernandez's motion for judgment of acquittal based
on a number of factors, including: (1) no direct evidence that Hernandez ever knew
that Garcia-Melchor possessed methamphetamine or delivered methamphetamine to
Marin or anybody else; (2) no direct evidence that Hernandez knowingly acted in any


      8
        In its brief, the government argues that Hernandez did not merely aid and abet,
but the evidence is sufficient to prove that she actually possessed methamphetamine
with intent to distribute the drug. However, in the second superseding indictment,
the government specifically limits the allegation against Hernandez to aiding and
abetting the possession with intent to distribute methamphetamine. Therefore, we
will restrict the scope of our review to the government's argument on this charge.

                                          -7-
way for the purpose of aiding Garcia-Melchor in committing the crime of possession
with intent to distribute or that she intended that methamphetamine be delivered to
another person or persons; (3) no evidence that Hernandez was more than merely
present at the scene of a criminal event; and (4) all of the circumstantial evidence
offered by the government, including the fact that the cellular phone and the car were
in Hernandez's name, Hernandez wired money to Mexico, and the police's discovery
of money, a scale, and plastic wrap in the home Hernandez shared with Garcia-
Melchor, leads only to conjecture of guilt, not an inference of guilt, reasonably drawn
from the facts. As the district court explained, "conjecture is something less than an
inference reasonably drawn from the evidence." (App. A-9) (citing Watson v. Nix,
551 F. Supp. 1, 12 (S.D. Iowa 1982), aff'd without opinion, 696 F.2d 1000 (8th Cir.
1983)); see also United States v. Campbell, 702 F.2d 262, 267 (D.C. Cir. 1983)
("Guilt, according to a basic principle in our jurisprudence, must be established
beyond a reasonable doubt[, a]nd, unless that result is possible on the evidence, the
judge must not let the jury act; he must not let it act on what would necessarily be
only surmise and conjecture, without evidence.") (internal quotation marks and
citations omitted).

      The government argues that the evidence was sufficient to establish that
Hernandez “played an integral role in the offense.” However, even the most
compelling facts presented by the government do not clear the hurdle of reasonable
doubt, and each of the government's inferences based on conjecture can be refuted.

       At most, the evidence presented by the government was sufficient to show the
following. Hernandez and Garcia-Melchor lived together from the summer of 2000
until February 12, 2001. Beginning on November 1, 2000, and continuing until
February 12, 2001, Garcia-Melchor sold and delivered methamphetamine to Marin.
On two or three occasions prior to February 12, 2001, Hernandez accompanied
Garcia-Melchor on these trips. She was present when Marin and Garcia-Melchor
talked about drugs. On February 12, 2001, Garcia-Melchor and Hernandez traveled

                                         -8-
to Marin's residence in a vehicle registered to Hernandez. Before their arrival, Marin
claimed he did not have drugs, but after they left, Marin told the police's informant
that he had drugs and later delivered them.9 Hernandez stayed in the car and she
claims to have moved the vehicle to the rear of Marin's residence at Garcia-Melchor's
instigation.

       The government argues that Hernandez aided and abetted Garcia-Melchor by
providing a place for him to live and store drug-related items. The police found
incriminating items in Hernandez’s residence: a scale that could be used to weigh
drugs, plastic wrap similar to that used to wrap the methamphetamine purchased in
the undercover operation,10 and the serialized money from the drug purchases.
However, the government was unable to show that Hernandez ever had contact with
these items or that she even knew about the existence of the scale, packing material,
and money. Digital scales like the one found in the kitchen can be purchased in local
stores and are not illegal. The officers found the scale on the “second to top” shelf
and the agent who discovered it had to reach above his head to retrieve the scale. The
government did not show that the scale was in plain view or that it was mixed with
commonly used household items or items that belonged to Hernandez. The
government could not show that the plastic wrap was the same plastic wrap used to


      9
        In her brief, Hernandez challenges the government's assertion that Garcia-
Melchor actually delivered drugs to Marin on February 12, 2001, based on the
following facts. The surveillance officer did not see Garcia-Melchor carry anything
into the house. The informant's drug buy from Marin did not occur until over an hour
after Garcia-Melchor and Hernandez left. Additionally when the police arrested
Garcia-Melchor and Hernandez after they left Marin's, the police found no drugs or
money on either of them.

      10
         We note that when the police searched Hernandez's kitchen, they were unable
to find any of the other items, such as sandwich bags or foil, that were also used to
package the drugs purchased in the undercover operation.

                                         -9-
wrap the drugs; all the officer could say was that it was similar to the type used. The
$14,000 in cash found between the box spring and mattress was only about half an
inch thick and not visible. The government did not prove that Hernandez slept on the
bed where the cash was uncovered, nor did it connect the money in any way to
Hernandez.

       The government cites United States v. LaGuardia, 774 F.2d 317, 319 (8th Cir.
1985), to support its theory that Hernandez aided and abetted Garcia-Melchor by
providing the place where the drug proceeds were concealed and where scales and
packaging materials were kept. The facts of LaGuardia reveal that Gato, LaGuardia's
girlfriend, was the lessee of an apartment in which she lived with LaGuardia. The
police found cocaine in the bedroom closet and in two locations in the kitchen among
household goods and appliances. Drug paraphernalia, including scales, were found
in common areas of the bedroom and kitchen. Id. at 318. Almost $10,000 in cash
was found in a bedroom dresser drawer, hidden among clothing. Additionally, a
loaded firearm and a knife were found in Gato's purse. In the present case, no drugs
were found on Hernandez’s property and the questionable materials (money, packing
material, and a scale) are perfectly legal. Furthermore, these items were not in plain
view.

       As Hernandez argues, the instant case is much more like United States v. Ward,
703 F.2d 1058 (8th Cir. 1983), where a judgment of acquittal was affirmed. Rose,
Ward's girlfriend, was living with Ward, her car was used in Ward's marijuana-
growing operation, her fingerprints were found on several cups in which marijuana
was grown, and she was instructed by Ward at the time of his arrest to call “Loren”
and tell him what was going on. We determined that guilt could not be inferred solely
from Rose's presence or association with the members of the conspiracy on the basis
of these facts. Id. at 1062.




                                         -10-
       The government contends that a jury could reasonably infer Hernandez aided
and abetted Garcia-Melchor by providing "numerous" vehicles for his use even
though Garcia-Melchor purchased them with "large amounts" of cash.11 The
government claims that Hernandez's registration of cars in her name provided Garcia-
Melchor with the means of concealing and transporting drugs. However, the district
court found that the vehicles used to deliver drugs were purchased long before any
known illegal drug transaction. Furthermore, the car dealer instructed Hernandez to
put the cars in her name because it would be easier for her to get a driver's license as
she spoke English and had a social security number whereas Garcia-Melchor did not.
Hernandez also used her true name and true address when she registered the vehicles
purchased from Vicuna at Sands Auto Sales.

       The government relies on United States v. Simpson, 979 F.2d 1282, 1285 (8th
Cir. 1992), for the proposition that providing the means of transportation and
concealment of drugs is sufficient to support a conviction. This case is inapposite,
however. Simpson based her sufficiency of the evidence argument on her mental
state at the time of the robbery: she claimed a defense of coercion based on battered
women's syndrome. The court's discussion of means of transportation and
concealment arose in regard to whether Simpson possessed the requisite mental state
at the time of the crime; there was "no question" that Simpson committed the
underlying crime and "all the physical acts necessary to constitute aiding and
abetting." 979 F.2d at 1288. Additionally, Simpson had been explicitly told by her
boyfriend and later her co-defendant that they were going to rob a bank. The link
between Hernandez's physical acts, registering cars in her name and living with


      11
        The government's brief refers to "numerous vehicles" in Hernandez's name,
but the record indicates at most three vehicles: a Toyota 4-Runner that Garcia-
Melchor legally resold, a Chevy Lumina that was later returned for a Cutlass
Supreme, and the Chevrolet Cavalier that Garcia-Melchor drove to Marin's residence
on February 12, 2001. The Toyota cost $4525.00 and receipts introduced indicate
payment of $1081.00 for the Lumina and payment of $600 for the Cutlass.

                                         -11-
Garcia-Melchor, and the methamphetamine distribution is too attenuated. Her limited
actions are not sufficient to establish guilt. Also the government was unable to show
that Garcia-Melchor ever told Hernandez anything about his drug operations.

      Finally, the government alleges that Hernandez aided and abetted Garcia-
Melchor by registering a cellular telephone in her name, thereby allowing Garcia-
Melchor to communicate with other members of the conspiracy yet avoid detection
by police. The government also contends that the "nonexistent" address Hernandez
provided in the subscriber agreement allowed Garcia-Melchor’s activities to remain
hidden because there was no way to find the owner of the phone.

        The government's position strains credulity, however, unless one is willing to
accept that, while Hernandez used her true name, birth date, and social security
number on the subscriber agreement, she was trying to disguise her identity by adding
an extra "6" to the address. The extra digit is the only difference between the address
on the cell phone subscriber agreement and the address used by Hernandez to wire
money to Mexico. The government offered no evidence that Hernandez did not live
at this address or did not have permission to use this address. Nor did the government
introduce any evidence as to where Hernandez was living on July 23, 2000, when she
signed the cell phone agreement. Garcia-Melchor may have used the phone to
conduct drug transactions, but there is no direct or circumstantial evidence that
Hernandez knew this.12

      12
        The government makes assorted other arguments on behalf of the guilty
verdict. They range from plausible (moving the car to the back of the house she
exercised dominion over the car and served as a lookout); to questionable (she lent
the appearance of legitimacy to Garcia-Melchor’s drug trafficking by traveling with
him when he was transporting drugs); to desperate (her statement that she did not
know how to get to Marin's residence indicates knowledge and involvement with the
drug delivery). As the district court stated, knowing a criminal or knowing that a
person is committing a crime does not make one an aider or abettor. Guilt may not
be inferred solely on the basis of defendant's presence or association with members

                                         -12-
       When the government’s evidence is viewed in its entirety, Hernandez’s
activities may be sufficient to raise speculation that she shared Garcia-Melchor’s
criminal intent. However, there is a critical line between suspicion of guilt and guilt
beyond a reasonable doubt. We believe the district court was correct in its
assessment. Even looking at the government’s case in the most favorable light
possible, the government has not transcended the realm of speculation to the realm
of certainty beyond a reasonable doubt. There exists insufficient evidence to allow
a reasonable jury to find Hernandez guilty beyond a reasonable doubt.

      Affirmed.

      A true copy.


             Attest:


                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




of the conspiracy. Ward, 703 F.2d at 1062.

                                         -13-
