     07-0031-cr
     USA v. Juan Vincent Gomez Castrillon (USA)

 1                        UNITED STATES COURT OF APPEALS
 2                            FOR THE SECOND CIRCUIT
 3
 4                            August Term 2007
 5      (Argued: May 13, 2008             Decided: October 14, 2008)
 6                          Docket No. 07-0031-cr
 7   -----------------------------------------------------x
 8   UNITED STATES OF AMERICA,
 9
10               Appellant,
11
12                            -- v. --
13
14   JUAN MANUEL HUEZO,
15
16               Defendant-Appellee.
17
18   -----------------------------------------------------x
19
20   B e f o r e :     NEWMAN, WALKER, and SOTOMAYOR, Circuit Judges.

21         Appeal by the government from an order granting defendant’s

22   motion for acquittal notwithstanding the guilty verdict, entered

23   in the United States District Court for the Southern District of

24   New York (Samuel Conti, Judge).        We hold that the district court

25   erred in concluding that, on the basis of the evidence presented,

26   no rational juror could have found that defendant had the

27   requisite knowledge and intent to support his convictions for

28   money laundering and conspiracy to commit money laundering.

29         REVERSED AND REMANDED.

30         Judge NEWMAN concurs in a separate opinion.

31         Judge SOTOMAYOR dissents in a separate opinion.

32                                                DANIEL L. STEIN, Assistant

                                          -1-
 1                                         United States Attorney, of
 2                                         counsel (Jeffrey A. Brown,
 3                                         Diane Gujarati, Assistant
 4                                         United States Attorneys, of
 5                                         counsel, on the brief), for
 6                                         Michael J. Garcia, United
 7                                         States Attorney for the
 8                                         Southern District of New York,
 9                                         New York, N.Y., for Appellant.
10
11                                         JULIA L. GATTO, Sercarz &
12                                         Riopelle, LLP, New York, N.Y.,
13                                         for Defendant-Appellee.
14
15   JOHN M. WALKER, JR., Circuit Judge:

16        Following a jury trial, defendant-appellant Juan Manuel

17   Huezo was found guilty of money laundering, in violation of 18

18   U.S.C. § 1956(a)(1)(B)(1) and 2, and conspiracy to launder money,

19   in violation of 18 U.S.C. § 1956(h).    The District Court for the

20   Southern District of New York (Samuel Conti, Judge1) granted

21   Huezo’s post-verdict motion for a judgment of acquittal pursuant

22   to Federal Rule of Criminal Procedure 29(c)(2), concluding that

23   the evidence was insufficient to support the knowledge and

24   specific intent elements of both offenses.

25        On appeal, the government challenges the district court’s

26   ruling, arguing that there was sufficient circumstantial evidence

27   for a rational juror to find that Huezo knowingly participated in

28   a money laundering conspiracy and acted with the intent to commit

29   the underlying substantive offense.    Because we agree with the


     1
1         The Honorable Samuel Conti, United States District Judge for
2    the Northern District of California, sitting by designation in
3    the Southern District of New York.

                                    -2-
1    government, we reverse the judgment of acquittal and remand for

2    further proceedings consistent with this opinion.

3                                BACKGROUND

4         On June 14, 2005, Huezo was charged with conspiring to

5    launder the proceeds of narcotics transactions and with

6    committing, and aiding and abetting the commission of, the

7    substantive offense of money laundering.   At trial, which began

8    on October 4, 2006, the government presented evidence of Huezo’s

9    participation in an international money laundering conspiracy

10   whereby millions of dollars in narcotics proceeds were secretly

11   remitted to drug suppliers in Colombia from 2002 to 2005.

12        On November 5, 2004, co-conspirators Jose Linares and Eric

13   Echevarria drove a Jeep Cherokee registered to Huezo and bearing

14   Connecticut license plates to a meeting in Manhattan with an

15   undercover officer named Robert Del Rio.   At the meeting, at

16   which Huezo was not present, Linares and Echevarria discussed the

17   plans for delivering $1 million in two $500,000 installments to

18   Del Rio, who was posing as a money launderer.

19        On November 8, 2004, the date of the first delivery, Huezo

20   drove Linares to meet Del Rio in Manhattan.   When they arrived,

21   Del Rio walked to the back of Huezo’s Jeep and removed a black

22   bag from the trunk, presumably opened by Huezo from the driver’s

23   seat.   The bag contained $500,000, “bundled up in stacks,” as is

24   typical for money laundering transactions.    After the delivery,


                                     -3-
1    surveillance officers followed the Jeep to a house in Stamford,

2    Connecticut, where Huezo and Linares picked up Echevarria and

3    headed downtown for some shopping and dining.   The three men then

4    returned to the Connecticut house, where surveillance was

5    discontinued.

6         On November 10, 2004, at 8:00 AM, the officers resumed

7    surveillance of the Connecticut house.   At some point that day,

8    DEA Agent Adamo observed Huezo leave the house holding a small

9    black bag that was “like a camera bag,” and place it behind the

10   driver’s seat of the Jeep.   Huezo got into the Jeep and started

11   the engine.   With the engine running, Huezo left the Jeep and

12   positioned himself so that he could see the front of the house.

13   Echevarria then walked out of the house, walked to the Jeep, and

14   placed a black suitcase in the back of the Jeep as Huezo got back

15   behind the wheel.   Adamo testified that: “Based on my experience,

16   [Huezo] was basically helping to guard the movement of that bag

17   from the residence to the Jeep.”   Shortly thereafter, Linares

18   emerged from the house and got into the Jeep, and the three men

19   drove off to make the second delivery.

20        En route, New York state police stopped the Jeep for

21   speeding.   Once the vehicle was pulled over, Senior Investigator

22   Hector Fernandez discovered that although Huezo’s paper

23   registration indicated that the Jeep was registered in Huezo’s

24   name and to a Stamford address, that registration was not on file


                                     -4-
1    with the state’s computer system.    Investigator Fernandez

2    testified that one possible explanation was that “[i]f it’s a

3    newly registered vehicle, it takes a while before the vehicle is

4    into the system.”

5         The officers decided to take the Jeep back to the state

6    police barracks to verify its registration.    At the barracks, an

7    inventory search of the vehicle revealed that the suitcase in the

8    trunk contained “[b]locks of money,” totaling $500,000, and the

9    small camera bag contained $6000, similarly packaged.    Officers

10   also found a hotel receipt in Huezo’s name for a three-day stay

11   in Connecticut from October 28 to October 30, 2004.    The receipt

12   listed a California address for Huezo.    Linares and Echevarria

13   had presented California driver’s licenses at the time of the

14   stop.

15        At the close of the government’s case, and again at the

16   close of all of the evidence, Huezo moved for a judgment of

17   acquittal pursuant to Federal Rule of Criminal Procedure 29.       He

18   argued, inter alia, that the government had not presented

19   sufficient evidence to establish his knowledge of, or intent to

20   further, the money laundering conspiracy.    The district court

21   reserved decision on the motion.

22        On October 11, 2006, the jury returned a guilty verdict on

23   both counts, and Huezo renewed his motion for acquittal.      On

24   November 6, 2006, the district court granted Huezo’s motion,


                                    -5-
1    finding that “no rational jury could have found on the basis of

2    the evidence presented that the government proved beyond a

3    reasonable doubt Defendant had the necessary knowledge and intent

4    to be convicted of the crime of money laundering or the crime of

5    conspiracy to commit money laundering, as charged.”   In

6    particular, the district court found:

 7        The evidence fails to prove: that the Defendant knew the
 8        object of the conspiracy was to launder the proceeds of some
 9        sort of criminal activity; that he joined the conspiracy
10        with such knowledge and with the specific intent to further
11        that objective; or that he took the actions he did with such
12        knowledge and intent.
13
14        The district court first marshaled the evidence against

15   Huezo: that Huezo’s Jeep was used to drive to the November 5,

16   2004 meeting with Del Rio; that Huezo drove his vehicle and

17   transported the money to the November 8 and November 10 drop-

18   offs; that he personally handled the small black bag containing

19   $6000; that he socialized with Linares and Echevarria following

20   the November 8 drop-off; and that he was “watching and guarding”

21   the movement of the larger suitcase from the house to the Jeep on

22   November 10.   The district court then noted the lack of direct

23   evidence that Huezo knew the specific purpose of the trips, that

24   he was privy to conversations regarding the details of the money

25   laundering transactions, or that he ever saw the contents of the

26   two suitcases, which would not have appeared to the casual

27   observer to contain money to be laundered.   Furthermore, the

28   district court noted, the government had not connected the $6000

                                     -6-
1    that Huezo placed behind the driver’s seat to any money

2    laundering transaction.

3         Thus, the district court reasoned, although the evidence was

4    sufficient for a jury to find that Huezo was “probably guilty of

5    some crime,” it was insufficient for a jury to find beyond a

6    reasonable doubt that Huezo knowingly engaged in a money

7    laundering conspiracy with the specific intent to commit money

8    laundering or engaged in the substantive offense of money

9    laundering.

10        The government now appeals the judgment of acquittal, and we

11   reverse.

12                               DISCUSSION

13   I.   Standard of Review

14        We review de novo the district court’s conclusion that the

15   evidence was insufficient to support Huezo’s conviction.    United

16   States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000).    “In so

17   doing, we view the evidence presented in the light most favorable

18   to the government, and we draw all reasonable inferences in its

19   favor.   Furthermore, we consider the evidence in its totality,

20   not in isolation, and the government need not negate every theory

21   of innocence.”   Id. (citation omitted).   We must uphold the

22   jury’s verdict if “any rational trier of fact could have found

23   the essential elements of the crime beyond a reasonable doubt.”

24   Jackson v. Virginia, 443 U.S. 307, 319 (1979).


                                     -7-
1    II.   Requirement of Knowledge and Specific Intent

2          A.    Money Laundering

3          The substantive offense of “transaction money laundering”

4    requires proof of both knowledge and specific intent.     Section

5    1956(a)(1)(B)(i) of Title 18 imposes punishment on anyone who,

 6         knowing that the property involved in a financial
 7         transaction represents the proceeds of some form of unlawful
 8         activity, conducts or attempts to conduct such a financial
 9         transaction which in fact involves the proceeds of specified
10         unlawful activity[,] knowing that the transaction is
11         designed in whole or in part to conceal or disguise the
12         nature, the location, the source, the ownership, or the
13         control of the proceeds of specified unlawful activity.
14
15   18 U.S.C. § 1956(a)(1)(B)(i).    We have interpreted the latter

16   element, “knowing that the transaction is designed in whole or in

17   part to conceal or disguise,” as requiring “proof of intent to

18   conceal.”    See United States v. Stephenson, 183 F.3d 110, 121 (2d

19   Cir. 1999).

20         The Supreme Court’s recent decision in Cuellar v. United

21   States, 128 S. Ct. 1994 (2008), supports this interpretation.       In

22   Cuellar, the defendant was convicted under the “transportation

23   money laundering” statute, 18 U.S.C. § 1956(a)(2)(B)(i), of

24   attempting to transport the proceeds of unlawful activity across

25   the United States border, “knowing that such transportation . . .

26   [was] designed in whole or in part to conceal or disguise the

27   nature, the location, the source, the ownership, or the control

28   of the [funds].”    18 U.S.C. § 1956(a)(2)(B)(i).   Interpreting

29   this knowledge element, the Court stated that “[t]he statutory

                                      -8-
1    text makes clear . . . that a conviction under this provision

2    requires proof that the purpose – not merely effect – of the

3    transportation was to conceal or disguise a listed attribute.”

4    Cuellar, 128 S. Ct. at 2005 (emphasis added); see also id.

5    (suggesting that the government must show, “for instance, . . .

6    that petitioner knew about or intended the effect”).    The Court

7    specified that

 8        merely hiding funds during transportation is not sufficient
 9        to violate the statute, even if substantial efforts have
10        been expended to conceal the money. Our conclusion turns on
11        the text of § 1956(a)(2)(B)(i), and particularly on the term
12        “design.” In this context, “design” means purpose or plan;
13        i.e., the intended aim of the transportation.
14
15   Id. at 2003.

16        Although the transaction and transportation provisions of

17   the money laundering statute are distinct, they are almost

18   identically worded.   “The use of similar language, let alone

19   identical language, in two different provisions of the same

20   statute is, as the Supreme Court has emphasized, a strong

21   indication that the two provisions should be interpreted pari

22   passu, i.e., in the same manner.”     Sompo Japan Ins. Co. of Am. v.

23   Union Pac. R.R., 456 F.3d 54, 66 (2d Cir. 2006) (alteration,

24   internal quotation marks, and citation omitted).    Thus, Cuellar

25   confirms that a conviction for transaction money laundering, like

26   a conviction for transportation money laundering, requires proof

27   that the purpose or intended aim of the transaction was to

28   conceal or disguise a specified attribute of the funds.

                                     -9-
1         B.     Aiding and Abetting

2         Huezo was also charged with money laundering on an aiding

3    and abetting theory.     Under 18 U.S.C. § 2(a), anyone who aids or

4    abets the commission of an offense against the United States is

5    punishable as a principal.    To convict a defendant of aiding and

6    abetting a given crime, the government must prove “that the

7    underlying crime was committed by a person other than the

8    defendant, that the defendant knew of the crime, and that the

9    defendant acted with the intent to contribute to the success of

10   the underlying crime.”    United States v. Reifler, 446 F.3d 65, 96

11   (2d Cir. 2006) (internal quotation marks and citation omitted).

12   To prove that the defendant acted with specific intent, the

13   government need not establish that he knew all of the details of

14   the crime, only that he “joined the venture, [that he] shared in

15   it, and that his efforts contributed towards its success.”    Id.

16   (alteration in original) (internal quotation marks and citation

17   omitted).

18        C.     Conspiracy

19        In addition to the substantive offense of money laundering,

20   Huezo was charged with conspiring to launder money, in violation

21   of 18 U.S.C. § 1956(h).    “To prove conspiracy, the government

22   must show that the defendant agreed with another to commit the

23   offense; that he knowingly engaged in the conspiracy with the

24   specific intent to commit the offenses that were the objects of


                                       -10-
1    the conspiracy; and that an overt act in furtherance of the

2    conspiracy was committed.”   United States v. Monaco, 194 F.3d

3    381, 386 (2d Cir. 1999) (internal quotation marks and citation

4    omitted).   Proof that the defendant simply associated with

5    conspirators is insufficient, United States v. Salameh, 152 F.3d

6    88, 151 (2d Cir. 1998) (per curiam); nevertheless, “[b]oth the

7    existence of a conspiracy and a given defendant’s participation

8    in it with the requisite knowledge and criminal intent may be

9    established through circumstantial evidence,” United States v.

10   Stewart, 485 F.3d 666, 671 (2d Cir. 2007).

11        The government need not show that the defendant knew all of

12   the details of the conspiracy, “so long as he knew its general

13   nature and extent.”   United States v. Rosa, 17 F.3d 1531, 1543

14   (2d Cir. 1994).   Nor must the government prove that the defendant

15   knew the identities of all of the other conspirators.   United

16   States v. Downing, 297 F.3d 52, 57 (2d Cir. 2002).   Indeed, a

17   defendant may be a co-conspirator if he knows only one other

18   member of the conspiracy, see United States v. Manarite, 448 F.2d

19   583, 589 (2d Cir. 1971), and “a single act may be sufficient for

20   an inference of involvement in a criminal enterprise of

21   substantial scope at least if the act is of a nature justifying

22   an inference of knowledge of the broader conspiracy,” United

23   States v. Tramunti, 513 F.2d 1087, 1112 (2d Cir. 1975).   As with

24   every criminal offense, the government bears the burden of


                                    -11-
1    proving each element beyond a reasonable doubt.2

2    III. Sufficiency of the Evidence



     2
 1        The government urges that “once a conspiracy is shown to
 2   exist, the evidence sufficient to link another defendant to it
 3   need not be overwhelming.” Br. for Appellee at 29 (quoting
 4   United States v. Samaria, 239 F.3d 228, 234 (2d Cir. 2001)
 5   (internal quotation marks and citation omitted)). To be sure,
 6   this language, and similar language that once a conspiracy has
 7   been established, “only slight evidence” is required to link
 8   another defendant with it, has been a part of our case law for
 9   many years. See United States v. Marrapese, 486 F.2d 918, 921
10   (2d Cir. 1973). Neither of these formulations was part of the
11   jury charge in this case and, for the reasons set forth in Judge
12   Newman’s thoughtful concurrence, with which we are in agreement,
13   the panel does not think that this formulation should remain a
14   part of our case law.
15
16        The “not overwhelming evidence” or “slight evidence”
17   formulation risks misleading not only jurors but district and
18   appellate courts reviewing post-verdict challenges as to the
19   sufficiency of the evidence. The “slight evidence” formulation
20   may lead juries and reviewing courts improperly to focus on
21   simply the quantity of evidence of a defendant’s participation in
22   a conspiracy rather than the quality of that evidence (whether
23   quantitatively extensive or limited) viewed in the context of the
24   particular conspiracy at issue. The relevant inquiry – and the
25   determinative inquiry – is not whether a particular quantum of
26   evidence has been presented but whether the evidence that has
27   been adduced establishes, in the mind of a reasonable juror, the
28   defendant’s guilt beyond a reasonable doubt. Cf. United States
29   v. Murray, 618 F.2d 892, 903 (2d Cir. 1980) (“A single act may be
30   sufficient for an inference that an individual is involved in a
31   conspiracy; the qualitative nature of the act viewed in the
32   context of the entire conspiracy determines whether that
33   inference can be drawn in a particular case.” (emphasis added)
34   (internal quotation marks and citations omitted)).
35
36        We now hold that the ‘not overwhelming evidence’ and ‘slight
37   evidence’ formulations do not accurately describe the
38   government’s burden of proof in conspiracy cases, and the use of
39   these formulations should be discontinued. We note that prior to
40   filing, this opinion has been circulated to all members of this
41   court. See, e.g., United States v. Regalado, 518 F.3d 143, 146
42   n.2 (2d Cir. 2008) (per curiam).

                                   -12-
1         The government argues that the circumstantial evidence it

2    presented was sufficient for a rational juror to infer that Huezo

3    had the requisite criminal knowledge and intent to support his

4    convictions for money laundering and conspiracy to commit money

5    laundering.   We agree.

6         As an initial matter, there was abundant evidence

7    establishing the existence of a large-scale conspiracy to launder

8    money and its connection to the November 8 and November 10

9    transactions.   There was expert testimony as to the laundering of

10   narcotics proceeds in dollars by using money laundering brokers

11   who would deposit the cash in small increments, sell the dollars

12   to businessmen for pesos at a below-market rate, and then deliver

13   the pesos in cash to dealers in Colombia.   Cooperating witness

14   Edgar DeCastro, a major Colombian money broker, testified to

15   laundering over $50 million, nearly all of which were the

16   proceeds of drug deals.   He described in detail, generally

17   consistent with the expert testimony, the techniques and

18   individual steps involved in his money laundering schemes, and he

19   specifically discussed the arrangements he made in November 2004

20   to launder $1 million that would be delivered to New York City in

21   two installments of $500,000.

22        Trial testimony from a member of the Drug Enforcement Task

23   Force and surveillance team established DeCastro’s role in

24   orchestrating the November 5 meeting of Linares, Echevarria, and


                                     -13-
1    undercover agent Del Rio, at which the three men scheduled the

2    first $500,000 drop-off for November 8.   And Del Rio testified

3    that just prior to that delivery, he and Linares scheduled the

4    second $500,000 drop-off for November 10.   Furthermore, the money

5    being delivered was packaged in bundled stacks or “bricks,” and a

6    government witness testified that such packaging was typical for

7    money laundering transactions involving the proceeds of narcotics

8    sales.   From all of this evidence, a rational juror could easily

9    have concluded that the money involved in the November 8 and

10   November 10 transactions constituted the proceeds of criminal

11   activity (namely, drug trafficking) and that the transactions

12   were “designed to conceal or disguise” the nature, location,

13   source, ownership, or control of those proceeds.   18 U.S.C. §

14   1956(a)(1)(B)(i).

15        There was sufficient circumstantial evidence to connect

16   Huezo to this money laundering conspiracy and to support an

17   inference that Huezo knew about the conspiracy and acted with the

18   specific intent to participate in it for the purpose of

19   concealing or disguising one of the statutorily specified

20   attributes of the funds.   Although “a defendant’s mere presence

21   at the scene of a criminal act or association with conspirators

22   does not constitute intentional participation in the conspiracy,”

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

24   “is insufficient to prove aiding and abetting” even if the


                                    -14-
1    defendant has knowledge of the crime, United States v. Cruz, 363

2    F.3d 187, 198 (2d Cir. 2004) (internal quotation marks and

3    citation omitted), the evidence in this case of Huezo’s

4    activities went well beyond mere presence or association.

5         The government presented evidence from which the jury could

6    find that Linares and Echevarria drove to the November 5 meeting

7    with Del Rio in Huezo’s Jeep, which was loaned to them for that

8    purpose (inferrable from the next day’s trip); that on November

9    8, Huezo, accompanied by Linares, drove a suitcase containing

10   $500,000 to a meeting with Del Rio and unlocked the trunk from

11   the driver’s seat to allow Del Rio to remove the suitcase; that

12   on November 10, after “basically helping to guard” the movement

13   of a second suitcase containing $500,000 into the Jeep, Huezo

14   drove with Linares and Echevarria to a second, planned drop-off

15   meeting; and that, at least during this time period, he shared a

16   residence and socialized with Linares and Echevarria.   Moreover,

17   there was evidence that Huezo personally took possession of the

18   small bag containing $6000, that he placed it behind his own seat

19   in the Jeep, and that the money was packaged similarly to the

20   $500,000 in the larger suitcases.    Although there was no direct

21   evidence that Huezo saw or knew what was in any of the bags, a

22   rational trier of fact could infer from this circumstantial

23   evidence and from Huezo’s special treatment of the small bag (in

24   placing it behind the driver’s seat in the vehicle registered to


                                   -15-
1    him) that the bag belonged to Huezo, that it constituted payment

2    of $6000 for his assistance, and, from its packaging, that the

3    money came from the same funds that were the subject of the money

4    laundering operation.   From this conclusion, and from the

5    evidence that Huezo resided in the same house as Linares and

6    Echevarria – the same house where all of the money was kept – a

7    jury could reasonably infer that Huezo had the requisite

8    knowledge and specific intent to commit the money laundering

9    crimes charged.   See Samaria, 239 F.3d at 235 (noting that

10   “[c]ircumstantial evidence of knowledge and specific intent

11   sufficient to sustain a conviction must include some indicia of

12   the specific elements of the underlying crime,” and that such

13   indicia may include evidence that the defendant “received a share

14   of the profits from the conspiracy”).

15        Furthermore, jurors are entitled, and routinely encouraged,

16   to rely on their common sense and experience in drawing

17   inferences.   Cf. Salameh, 152 F.3d at 143; United States v.

18   Gleason, 616 F.2d 2, 13 n.7 (2d Cir. 1979).   Based on the

19   complexity and scale of the money laundering scheme, common sense

20   and experience would support an inference that the principals in

21   the conspiracy would not have trusted an outsider (with no

22   knowledge of their criminal purpose) to transport $1 million in

23   laundered funds, to be present when Del Rio removed the first

24   suitcase containing $500,000 from the trunk, and to share a house


                                    -16-
1    over several days with witting conspirators.

2         The government also presented circumstantial evidence that

3    shortly before the November 2004 money laundering transactions

4    Huezo, Linares, and Echevarria had come to Connecticut from

5    California for the specific purpose of carrying out those

6    transactions.   Although Huezo’s vehicle had Connecticut license

7    plates, the police discovered at the November 10 traffic stop

8    that the Jeep’s Connecticut registration did not appear in the

9    state’s computer system, which can occur when a vehicle has been

10   recently registered.   And when officers searched Huezo’s Jeep,

11   they found a receipt from a hotel in Connecticut at which Huezo

12   had apparently stayed in late October 2004, just days before the

13   November transactions.   The receipt provided a California address

14   for Huezo, and both Linares and Echevarria possessed California

15   driver’s licenses.   Taken together, all of this evidence supports

16   a reasonable inference that the three men traveled from

17   California to Connecticut and met for the express purpose of

18   facilitating the money laundering conspiracy.   From this

19   conclusion, a jury could reasonably infer that Huezo participated

20   in the conspiracy by design and not simply by happenstance, and

21   that his involvement was both knowing and intentional.

22        Viewing the evidence in its totality, as we must, we find

23   that the government established more than just Huezo’s

24   association with money launderers and his presence at critical


                                    -17-
1    events.    In that respect, this case differs from United States v.

2    Samaria, upon which the district court relied in finding the

3    evidence insufficient.    In Samaria, 239 F.3d at 231, the

4    defendant raised a sufficiency challenge to his convictions for

5    conspiracy to receive or possess stolen goods, conspiracy to

6    commit credit card fraud, and the commission and aiding and

7    abetting of credit card fraud.    The defendant argued that he was

8    simply a “gypsy cab driver” who used his private vehicle to take

9    passengers to their requested destinations, and that he therefore

10   lacked the requisite criminal knowledge and intent.    Id. at 232.

11   At trial, the government’s proof consisted of testimony that the

12   defendant permitted conspirators to load a box containing stolen

13   goods into his car, appeared to serve as a “lookout,” and drove

14   the conspirators to another location where they picked up and

15   loaded additional boxes into a yellow cab.    See id. at 232-33,

16   236.    We held that this evidence only demonstrated the

17   defendant’s presence at the scene of a criminal act or his

18   association with conspirators, and that it was insufficient to

19   establish beyond a reasonable doubt that the defendant knew that

20   the boxes he helped to transport contained stolen goods and that

21   he acted with an intent to further the receipt or possession of

22   stolen goods.    Id. at 236.

23          The instant case differs from Samaria in several respects.

24   In Samaria, the defendant’s regular employment as a gypsy cab


                                      -18-
1    driver supports an inference that he became involved in the

2    conspiracy by happenstance and not by design – it so happened

3    that the passengers who hired him were conspirators using his

4    services to transport goods that they had stolen or purchased

5    through credit card fraud.   The same inference cannot be drawn

6    about Huezo because he had no independent reason for his

7    involvement as a driver in the conspiracy.    Far from it, Huezo

8    resided in the same house as the conspirators and was observed

9    dining and shopping with them – activities that would suggest a

10   relationship considerably closer than that of a mere driver-for-

11   hire.   Cf. id. at 233 (“At trial, the government presented no

12   evidence of any other contact or connection between [the

13   defendant] and [the conspirators] outside of [the defendant’s]

14   presence at the two pickups . . . .”).

15        Together with the evidence suggesting that Huezo and his co-

16   conspirators all came from California, and that Huezo had arrived

17   in Connecticut just prior to the November 2004 transactions, the

18   evidence taken as a whole amounts to more than the evidence of

19   passive presence or association in Samaria.    See United States v.

20   Pedroza, 750 F.2d 187, 199 (2d Cir. 1984) (“[T]he evidence

21   against Pedroza was not limited to proof that he was present at

22   certain critical stages of the conspiracy in a way that could

23   have resulted from happenstance . . . . Here, Pedroza had to

24   criss-cross the country to be present at the critical times; and


                                    -19-
1    there is nothing in the record to suggest that he may have had

2    any purpose in these long trips and timely appearances other than

3    to further the goals of the conspiracy.”).

4         Furthermore, while there was no evidence that the defendant

5    in Samaria personally handled any of the boxes containing stolen

6    goods – only that he observed the conspirators load boxes into

7    his car and into the yellow cab, see 239 F.3d at 232 – Huezo

8    carried out of the Connecticut home that he shared with Linares

9    and Echevarria a small bag containing $6000 in bundled cash and

10   placed it behind the driver’s seat of his Jeep.   Huezo’s actions

11   are more consistent with those of a knowing participant whose

12   role in the conspiracy was well planned than those of an

13   unwitting outsider who was simply performing his regular job (as

14   the defendant in Samaria appeared to be).

15        We therefore reject Huezo’s argument that although a jury

16   could reasonably find that he knew that some type of crime was

17   being committed, it could not reasonably find that he

18   specifically knew that the crime was money laundering or that he

19   had the specific intent to commit, or aid and abet, that crime.

20   The facts and circumstances presented at trial were sufficient

21   for a jury to find beyond a reasonable doubt that Huezo knowingly

22   and intentionally engaged in money laundering and in a conspiracy

23   to launder money.

24


                                   -20-
1                              CONCLUSION

2        For the foregoing reasons, the district court’s judgment of

3   acquittal notwithstanding the jury verdict is REVERSED, and the

4   case is REMANDED to the district court for further proceedings

5   consistent with this opinion.




                                    -21-
U.S.A. v. Huezo

Docket No. 07-0031



JON O. NEWMAN, Circuit Judge, with whom Judge Walker and Judge

Sotomayor (although dissenting on the merits) join, concurring:

     Whether evidence suffices to permit a reasonable jury to

find guilt beyond a reasonable doubt is sometimes a close

question, as this case illustrates.    The four judges who have

conscientiously reviewed the record are evenly divided, but the

hierarchical structure of the appellate process results in a 2-1

affirmance of the conviction.   I agree with that result and join

the entirety of Judge Walker’s carefully reasoned opinion.    I

write separately, however, to take issue with one argument

advanced by the Government.   Although that argument accurately

states a proposition that has often been repeated in the case law

of this Court, I believe the proposition and a related

formulation of it are incorrect, entered federal jurisprudence

improvidently, have been routinely repeated without consideration

of their infirmity, and should be discarded.

     The Government contends that “‘once a conspiracy is shown,

the evidence sufficient to link another defendant to it need not



                                -22-
     be overwhelming.’”1 Br. for Appellant at 29 (quoting United

     States v. Samaria, 239 F.2d 228, 234 (2001).   A frequently used

     variation of the formulation states the proposition in these

     words:

          [O]nce a conspiracy is shown, only slight evidence is
          needed to link another defendant with it.

     United States v. Marrapese, 486 F.2d 918, 921 (2d Cir. 1973).

          I propose to discuss the origin of this proposition, its

     casual insinuation into federal jurisprudence, and its

     perniciousness, matters I deal with in reverse order.    Because

     the ill-advised formulation regarding the evidence needed to link

     a defendant to a conspiracy is more often expressed in federal

     case law as “slight evidence,” rather than “not overwhelming

     evidence,” I will refer to the “slight evidence” formulation.

          The “slight evidence” formulation is inconsistent with the

     constitutional requirement that every element of an offense must

     1
 1        Our Court, which appears to be the only Circuit that uses
 2   the “not overwhelming” formulation, has used it many times since
 3   the first usage in United States v. Head, 546 F.2d 6, 9-10 (2d
 4   Cir. 1976). See, e.g., United States v. Gaskin, 364 F.3d 438, 460
 5   (2d Cir. 2004); States v. Reyes, 302 F.3d 48, 53 (2d Cir. 2002);
 6   United States v. Samaria, 239 F.3d 228, 234 (2d Cir. 2001);
 7   United United States v. DeSimone, 119 F.3d 217, 223 (2d Cir.
 8   1997); United States v. Ciambrone, 787 F.2d 799, 806 (2d Cir.
 9   1986). Ciambrone, however, importantly added, “It is necessary
10   only that there be evidence of such substantiality as to justify
11   a reasonably minded jury in believing beyond a reasonable doubt
12   that the defendant was, in fact, connected with the conspiracy.”
13   Ciambrone, 787 F.2d at 806 (internal quotation marks omitted).

                                   -23-
be proven beyond a reasonable doubt. See In re Winship, 397 U.S.

358, 363 (1970).    And it is undisputed that a defendant’s

participation in a conspiracy is an element of the conspiracy

offense. See 1 Leonard B. Sand et al., Modern Federal Jury

Instructions–Criminal ¶ 19.01, Instruction 19-3 (second element

is “that the defendant knowingly and willfully became a member of

the conspiracy”).

     Although evidence that is small in quantity might be highly

probative, indeed, probative enough to persuade beyond a

reasonable doubt, the “slight evidence” wording creates an

unacceptable risk that juries, if the phrase is included in a

charge, or appellate courts, if the phrase is used when reviewing

sufficiency of evidence, will be misled (or mislead themselves)

into thinking that the defendant’s link to the conspiracy may be

established by evidence insufficient to surmount the reasonable

doubt standard.    The vice of the “slight evidence” formulation,

or our Court’s more recent “not overwhelming” version, is that

these formulations, when stated in juxtaposition with the test

for establishment of the conspiracy itself, which is rendered

without any hint of quantitative diminution, may too easily be

taken as an implication that proving participation in a

conspiracy is subject to a lesser standard of proof than proving

                                -24-
the existence of the conspiracy.   But that implication is simply

wrong.

      Judge Easterbrook has usefully outlined the several meanings

that the “slight evidence” phrase might convey to those who hear

or use it. See United States v. de Ortiz, 883 F.2d 515, 524 (7th

Cir. 1989) (Easterbrook, J., concurring), reh’g granted and

judgment vacated on other grounds, 987 F.2d 220 (7th Cir. 1990).

After setting forth the likely meanings that would undermine the

reasonable doubt standard, he acknowledged that the phrase “could

mean that if someone joins the conspiracy, ‘slight’ activity to

accomplish its objectives is enough, that peripheral conspirators

commit the crime no less than the mastermind.” Id.   But, as he

wisely observed, “That we have to tease [this proper meaning] out

of a formula with dubious alternative meanings, though, is a mark

against its use.” Id.   And in a particularly well-turned attack,

he added:

      Maybe we could torture the phrase until it confessed to
      a constitutionally acceptable meaning, but why bother?
      Far better to throw it overboard and adopt a formula
      that clearly explains what we are about.

Id.   I fully agree, as I have previously argued, see Jon O.

Newman, Beyond “Reasonable Doubt,” 68 N.Y.U. L. Rev. 979, 994-95




                               -25-
    (1993) (Madison Lecture).2

         Retracing the steps by which the “slight evidence”

    formulation entered the case law of this Circuit not only

    identifies its dubious origin but also reveals how, in the course

    of repetition, important qualifications have been omitted.

    United States v. Ceballos, 340 F.3d 115 (2d Cir. 2003), recently

    used the “not overwhelming” formulation, quoting it verbatim from

    United States v. DeSena, 260 F.3d 150, 154 (2d Cir. 2001). See

    Ceballos, 340 F.3d at 124.    DeSena quoted it verbatim from United

    States v. Head, 546 F.2d 6, 9-10 (2d Cir. 1976).    See DeSena, 260

    F.3d at 154.   However,   DeSena carefully went on to state,

    “Nevertheless, the prosecution must sufficiently prove the

    defendant’s participation beyond a reasonable doubt,” id. (citing

    United States v. Jones, 30 F.3d 276, 281-82 (2d Cir. 1994)), a

    critical qualification omitted in the later cases.    Head, the

    first case in our Circuit to use the “not overwhelming”

    formulation, cited United States v. Marrapese, 486 F.2d 918, 921



    2
1        The title was not always understood. It was not just a
2   shorthand version of the standard of proof in a criminal case.
3   Rather, the title endeavored to capture the point of the Madison
4   Lecture: “The time has come to move beyond the mere incantation
5   of the ‘reasonable doubt’ standard in jury charges and to apply
6   it faithfully as a rule of constitutional law in the course of
7   appellate review of criminal convictions.” Newman, supra, at
8   1002.

                                    -26-
    (2d Cir. 1973). See Head, 546 F.2d at 9-10.

         Marrapese, however, did not use the phrase “not

    overwhelming,” but used the similar formulation “only slight

    evidence is needed.”3 486 F.2d at 921.   Marrapese cited United

    States v. Knight, 416 F.2d 1181, 1184 (9th Cir. 1969), and

    Bradford v. United States, 413 F.2d 467, 469 (5th Cir. 1969).4

    See Marrapese, 486 F.2d at 921.   Bradford said “only slight

    additional evidence,” citing Poliafico v. United States, 237 F.2d

    97, 104 (6th Cir. 1956). See Bradford, 413 F.2d at 469.

    Poliafico said “slight evidence may be sufficient,” citing United

    States v. Cohen, 197 F.2d 26 (3d Cir. 1952). See Poliafico, 237

    F.2d at 104.   Knight, the other case cited by Marrapese, said

    “slight evidence may be sufficient,” citing Cohen. See Knight,

    416 F.2d at 1184.   Thus, the trail back from Marrapese, whether

    through Knight or Bradford, leads to Cohen.


    3
1        Since Marrapese, our Court has used the “slight evidence”
2   phrase several times. See, e.g., United States v. Aleskerova, 300
3   F.3d 286, 292 (2d Cir. 2002); United States v. Abelis, 146 F.3d
4   73, 80 (2d Cir. 1998); United States v. Tejada, 956 F.2d 1256,
5   1265 (2d Cir. 1992); United States v. Vanwort, 887 F.2d 375, 386
6   (2d Cir. 1989).
    4
1        Since Knight, the Ninth Circuit has rejected use of the
2   “slight evidence” formulation, see United States v. Esparza, 876
3   F.2d 1390, 1391-92 (9th Cir. 1989), and since Bradford, the Fifth
4   Circuit has also rejected it, see United State v. Partin, 552
5   F.2d 621, 628-29 (5th Cir. 1977), and United States v. Malatesta,
6   590 F.2d 1379, 1382 (5th Cir. 1979) (in banc). I discuss the
7   views of all the circuits infra.

                                   -27-
         Cohen said “slight evidence may be sufficient,” quoting this

    wording from Nye & Nissen v. United States, 168 F.2d 846, 852

    (9th Cir. 1948), aff’d, 336 U.S. 613 (1949).5 See Cohen, 197 F.2d

    at 29.   Nye & Nissen said “slight evidence may be sufficient”,

    citing Phelps v. United States, 160 F.2d 858 (8th Cir. 1947), and

    Meyers v. United States, 94 F.2d 433 (6th Cir. 1938). See Nye &

    Nissen, 168 F.2d at 852.

         Phelps cited Galatas v. United States, 80 F.2d 15, 24 (8th

    Cir. 1935), and Marx v. United States, 86 F.2d 245, 250 (8th Cir.

    1936)).6 See Phelps, 160 F.2d at 868.   Meyers, the other case

    cited by the Ninth Circuit in Nye & Nissen, also cited Marx and

    Galatas, but, following Galatas, used the “slight evidence“

    phrase in a way that pointed out the potential strength of the

    evidence, not its weakness: “[S]light evidence connecting a



    5
1        The citation to the Supreme Court’s affirmance should have
2   read “aff’d on other grounds.” The Supreme Court ruled that the
3   substantive count convictions could not be sustained on a
4   Pinkerton theory, but could be sustained on an aiding and
5   abetting theory. See Nye & Nissen, 336 U.S. at 618-20. Thus, the
6   Court had no occasion to consider the quality or persuasiveness
7   of proof needed to prove beyond a reasonable doubt a defendant’s
8   participation in a conspiracy.
    6
1        Phelps used the “slight” formulation in a curious way: “It
2   is therefore possible for the circumstances on an individual
3   defendant’s participation in an established conspiracy to become
4   substantial from their weight in position and context, though in
5   abstraction they may seem only slight.” 160 F.2d at 867-68
6   (emphasis added).

                                   -28-
    defendant with a conspiracy may be substantial and, if it is, is

    sufficient.” Meyers, 94 F.2d at 434.

         Marx also cited Galatas, using the qualification carried

    forward by Meyers: “[W]here a conspiracy is established, but

    slight evidence connecting a defendant therewith may still be

    substantial and[,] if so[,] sufficient.” Marx, 86 F.2d at 250.

    Indeed, Marx stated the question to be “whether there was

    substantial evidence connecting the defendant with this

    conspiracy.” Id.   Galatas, the other case cited by both Phelps

    and Meyers, used the language quoted in Marx, see Galatas, 80

    F.2d at 24, for which it cited Tomplain v. United States, 42 F.2d

    202 (5th Cir. 1930).

         The villain that appears to have first used the phrase

    “slight evidence” in federal case law with reference to adequate

    proof of a defendant’s link to a conspiracy thus turns out to be

    Tomplain, which proclaimed, without any citation: “The conspiracy

    was conclusively established, and but slight evidence connecting

    the defendants was necessary.”7 Id. at 203.   Although Marx and


    7
1        The Eighth Circuit has also identified Tomplain as the
2   source of the “slight evidence” phrase. See United States v.
3   Lopez, 443 F.3d 1026, 1029 (8th Cir. 2006) (in banc). Judge
4   Wood’s thorough opinion in United States v. Durrive, 902 F.2d
5   1221 (7th Cir. 1990), also traces the genealogy of the “slight
6   evidence” phrase back to Tomplain. See Durrive, 902 F.2d at 1226
7   n.3.

                                   -29-
    Galatas had made clear that even though the quantity of evidence

    connecting the defendant to the conspiracy might be slight, the

    persuasive force of that evidence must nonetheless be

    substantial, i.e., sufficient to establish the element beyond a

    reasonable doubt, it is the “slight evidence” phrase from

    Tomplain, without qualification, that has too frequently been

    repeated in subsequent opinions.

         Several circuits have rejected use of the “slight evidence”

    formulation. See United States v. Marsh, 747 F.2d 7, 13 & n.3

    (1st Cir. 1984); United States v. Cooper, 567 F.2d 252, 253 (3d

    Cir. 1977); United States v. Burgos, 94 F.3d 849, 861-63 (4th

    Cir. 1996) (in banc); United States v. Partin, 552 F.2d 621, 628-

    29 (5th Cir. 1977); United States v. Durrive, 902 F.2d 1221,

    1225-29 (7th Cir. 1990);   United States v. Lopez, 443 F.3d 1026,

    1029-30 (8th Cir. 2006) (in banc); United States v. Esparza, 876

    F.2d 1390, 1391-92 (9th Cir. 1989); United States v. Clavis, 977

    F.2d 538, 539 (11th Cir. 1992) (denying rehearing).8    Only the



1        Just six days before Tomplain, a district court had used the
2   “slight evidence” phrase to describe what was “probably” needed
3   to permit a jury to find a conspiracy, see United States v.
4   Russell, 41 F.2d 852, 853 (S.D. Ala. 1930, an observation happily
5   not since repeated.
    8
1        Despite the rejection of the “slight evidence” formulation
2   by the Fifth, Ninth, and Eleventh Circuits, the phrase still
3   appears in decisions of those circuits:

                                   -30-
     Second, Sixth, and Tenth Circuits continue to invoke the “slight

     evidence” formulation. See United States v. Aleskerova, 300 F.3d

     286, 292 (2d Cir. 2002); United States v. Kelley, 461 F.3d 817,

     825 (6th Cir. 2006); United States v. Troutman, 814 F.2d 1428,

     1446 (10th Cir. 1987).9

          The first rejection was made by the Fifth Circuit, which

     ruled that a jury charge using the “slight evidence” formulation

     is reversible error, and error not even subject to harmless error

     analysis. See United States v. Partin, 552 F.2d 621, 628-29 (5th

     Cir. 1977).   The Fifth Circuit, sitting in banc, then “banished”

     the “slight evidence” formulation, see United States v.

     Malatesta, 590 F.2d 1379, 1382 (5th Cir. 1979) (emphasis in




 1        Fifth Circuit: United States v. Virgen-Moreno, 265 F.3d 276,
 2   285 (5th Cir. 2001). See also United States v. Turner, 319 F.3d
 3   716, 723 n.8 (5th Cir. 2003) (noting that although the Fifth
 4   Circuit “overruled the ‘slight evidence’ rule in United States v.
 5   Malatesta, [590 F.2d 1379, 1382 (5th Cir. 1979 (in banc),]
 6   nevertheless, this test persistently reappears”).
 7        Ninth Circuit: United States v. Cassidy, 2007 WL 1578293, *3
 8   (9th Cir. 2007); United States v. Garcia, 173 Fed. Appx. 560, 561
 9   (9th Cir. 2006).
10        Eleventh Circuit: United States v. Garcia, 405 F.3d 1260,
11   1270 (11th Cir. 2005); United States v. Calderon, 127 F.3d 1314,
12   1326 (11th Cir. 1997).
13        See also United States v. Cassiere, 4 F.3d 1006, 1016 (1st
14   Cir. 1993) (“Moreover, once the evidence establishes the
15   existence of a conspiracy, lesser evidence may suffice to show a
16   defendant’s connection with the overall conspiracy.”).
     9
1         The District of Columbia Circuit appears not to have spoken
2    on the matter.

                                    -31-
original), and later reversed a conspiracy conviction with the

“slight evidence” phrase in the jury charge, despite the trial

judge’s effort to minimize the significance of the phrase. See

United States v. Gray, 626 F.2d 494, 500-01 (5th Cir. 1980).

     Although the Third Circuit has ruled that the phrase is an

incorrect standard for the trier of fact, the Court stated that

it is tolerable when used in appellate opinions reviewing

sufficiency challenges because it is “no more than a shorthand

expression of the rule that, after a guilty verdict by a jury or

a finding of guilt by a trial court, an appellate tribunal may

not substitute its inferences from the evidence for those drawn

by the factfinder, if there was sufficient evidence to submit to

the factfinder in the first place.” Cooper, 567 F.2d at 253.    The

trouble with this distinction is that using the phrase in

appellate opinions in the course of review of sufficiency

challenges too easily permits appellate courts to fail to examine

the evidence rigorously to assure that it sufficed to permit a

jury to find guilt beyond a reasonable doubt. See Newman, supra,

at 988-90.   Cooper itself illustrates the risk.   Although

insisting that the evidence must be strong enough to permit a

jury to “find the defendant guilty beyond a reasonable doubt,”

Cooper, 567 F.2d at 254 (internal quotation marks omitted), the

                               -32-
Third Circuit stated, “[T]here must be some evidence tending to

prove that [the defendant] entered into an agreement and that he

knew the agreement had the specific unlawful purpose charged in

the indictment, id. at 253 (emphasis in original).

     The First, Fourth, and Ninth Circuits, in rejecting use of

the phrase “slight evidence” to describe what is required to

prove the defendant’s connection to a conspiracy, have stated

that the evidence need show only a “slight connection” between

the defendant and the conspiracy, even though that slight

connection must be proven beyond a reasonable doubt. See Marsh,

747 F.2d at 13 & n.3; Burgos, 94 F.3d at 861-63; Esparza, 876

F.2d at 1391-92.   The Fourth Circuit endeavored to explain the

distinction in these words:

     Requiring [sic] that the defendant’s connection to the
     conspiracy be “slight” in no way alleviates the
     Government’s burden of proving the existence of the
     conspiracy and the defendant’s connection to it beyond
     a reasonable doubt. The term “slight” does not
     describe the quantum of evidence that the Government
     must elicit in order to establish the conspiracy, but
     rather the connection that the defendant maintains with
     the conspiracy.

Burgos, 94 F.3d at 861 (emphases in original).   The Ninth

Circuit’s explanation is similar:

     Once the existence of a conspiracy is established,
     evidence establishing beyond a reasonable doubt a
     connection of a defendant with the conspiracy, even

                               -33-
     though the connection is slight, is sufficient to
     convict him with knowing participation in the
     conspiracy. Thus, the word “slight” properly modifies
     “connection” and not “evidence.” It is tied to that
     which is proved, not to the type of evidence or burden
     of proof.

 United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977)

(emphasis in original).

     I doubt that the typical jury can appreciate the

distinction.   Far better, as Judge Easterbrook has urged, to

discard all references to “slight” and “not overwhelming” because

these words inevitably create the risk of lowering the standard

of proof significantly below “beyond a reasonable doubt.”

Moreover, there are several ways to explain to juries what the

prosecution is not required to prove to establish the defendant’s

connection to the conspiracy, without using words connoting a

reduced quantity of evidence.   A widely used model instruction

states:

     I instruct you that to become a member of the
     conspiracy, the defendant need not have known the
     identities of each and every other member, nor need he
     have been apprised of all their activities. Moreover,
     the defendant need not have been fully informed as to
     all of the details, or the scope, of the conspiracy in
     order to justify an inference of knowledge on his part.
     Moreover, the defendant need not have joined in all of
     the conspiracy’s unlawful objectives.

1 L. Sand, supra, at ¶ 19.01, Instruction 19-6.


                                -34-
      The Seventh Circuit has discarded even the “slight

connection” phrase for use on appellate review of whether a

defendant’s participation with a conspiracy has been established,

preferring an inquiry as to whether there was “substantial

evidence” of such participation. See Durrive, 902 F.2d at 1228-

29.

      In the pending case, as Judge Walker has carefully

demonstrated, the evidence sufficed to permit the jury to find

beyond a reasonable doubt that Huezo was a participant in the

charged conspiracy and that the other elements of the offense

were also established beyond a reasonable doubt.   Fortunately, we

have not enlisted the Government’s quite understandable

invocation of the “not overwhelming” formulation to diminish in

any way the standard of proof beyond a reasonable doubt that the

jury was obliged to apply to every element, see Winship, 397 U.S.

at 363, nor to lessen our obligation to assure that the evidence,

assessed under the appropriate standards of appellate review

after a finding of guilt, see Jackson v. Virginia, 443 U.S. 307,

318 (1979), permitted a reasonable jury to find the elements

properly established.   I have written at some length in the hope

that henceforth the quantitative adjectives “slight” or “not

overwhelming” or other variations will not be repeated either in

                               -35-
    appellate opinions or in jury instructions with reference to the

    evidence sufficient to prove beyond a reasonable doubt a

    defendant’s participation in a conspiracy.   The agreement of

    Judges Walker and Sotomayor with this opinion (despite the

    latter’s dissent on the merits) gives me cause for considerable

    optimism.10




    10
1        This opinion has been circulated to all of the judges of
2   this Court prior to filing.

                                  -36-
SOTOMAYOR, Circuit Judge, dissenting:



       I agree fully with the majority that there was ample evidence establishing the existence of

a large-scale, international money laundering conspiracy. I disagree, however, with the

majority’s conclusion that there was sufficient evidence for a rational juror to conclude, beyond a

reasonable doubt, that Huezo had the requisite knowledge and specific intent to launder the

proceeds of specified unlawful activity so as to support his conviction for money laundering or

conspiracy. I concur fully with the district court’s assessment of the evidence. I therefore would

affirm Huezo’s judgment of acquittal, and I respectfully dissent from the majority’s opinion

reversing the judgment.

       As an initial matter, I agree with the majority that the recent Supreme Court decision in

Regalado Cuellar v. United States, 128 S. Ct. 1994 (2008), provides meaningful guidance in

interpreting the concealment element of the “transaction money laundering” statute, 18 U.S.C.

§ 1956(a)(1)(B)(i). Maj. Op. at 8–10. The transaction money laundering statute requires that a

defendant have knowledge that a transaction is “designed in whole or in part” to “conceal or

disguise the nature, the location, the source, the ownership, or the control of the proceeds of

specified unlawful activity.” 18 U.S.C. § 1956(a)(1)(B)(i). In Regalado Cuellar, the Supreme

Court interpreted nearly identical language in the “transportation money laundering statute,” 18

U.S.C. § 1956(a)(2)(B)(i), holding that “merely hiding funds during transportation is not

sufficient to violate the statute, even if substantial efforts have been expended to conceal the

money.” 128 S. Ct. at 2003. Rather, “a conviction under this provision requires proof that the

purpose—not merely effect—of the transportation was to conceal or disguise a listed attribute” of


                                               -37-
    the proceeds of unlawful activity. Id. at 2005. In short, the government must prove not merely

    that a defendant concealed funds, but also that a defendant had the intent to launder such funds

    by concealing or disguising their nature, location, source, ownership, or control.1

           Under the transaction money laundering statute, the government must prove not only that

    the transactions in which Huezo participated were designed to launder money, but also that

    Huezo knew that a purpose of the transactions was to launder money. 18 U.S.C. § 1956(a)(1)(B)

    (requiring “know[ledge] that the transaction is designed in whole or in part” to conceal the

    nature, location, source, ownership, or control of proceeds of specified illegal activity). This

    knowledge requirement also applies to Huezo’s conspiracy and aiding and abetting charges. See

    United States v. Pipola, 83 F.3d 556, 562 (2d Cir. 1996) (“To show specific intent [to aid and

    abet,] the prosecution must prove the defendant knew of the proposed crime . . . and had an

    interest in furthering it.”); United States v. Monaco, 194 F.3d 381, 386 (2d Cir. 1999) (“To prove

    conspiracy, the government must show that the defendant . . . knowingly engaged in the

    conspiracy with the specific intent to commit the offenses that were the objects of the conspiracy

    . . . .” (internal quotation marks omitted)).2 Thus, to support the conviction the government had

    to prove, inter alia, that Huezo (1) knew that the suitcases contained money; (2) knew that this

    money was the proceeds of illegal activity; and (3) knew that the transactions in which he



    1
1            Indeed, the legislative history of 18 U.S.C. § 1956 suggests that the scienter standard
2   was deliberately heightened to “knowing” because lower standards, such as “reckless disregard”
3   or “reason to know,” “could lead to prosecution of people who were not in any way involved in
4   money laundering.” S. Rep. No. 99-433, at 6 (1986).
    2
1            I note that as Judge Newman stated in his concurrence, which I join, a defendant’s
2   participation in a conspiracy is an element of the conspiracy offense, and must itself be proven
3   beyond a reasonable doubt.

                                                   -38-
participated were designed to conceal or disguise the nature, location, source, ownership, or

control of such proceeds.

       At the very best, the evidence cited by the majority might weakly support an inference

that Huezo may have known that the suitcases contained money and that this money constituted

proceeds of illegal activity—but the evidence supporting this inference certainly does not

establish Huezo’s knowledge of money laundering beyond a reasonable doubt. In finding

differently, the majority ignores the clear lesson of Regalado Cuellar. Although there is

evidence of a money laundering scheme in the case before us, the proof of Huezo’s knowledge of

a money laundering scheme is not qualitatively or quantitatively greater than the proof at issue in

Regalado Cuellar. In Regalado Cuellar, the defendant was caught hiding a large sum of money

in his car. Here, Huezo was seen delivering two suitcases filled with money. Indeed, the

evidence of knowledge in Regalado Cuellar was arguably stronger, because “substantial efforts”

were “expended to conceal the money” by placing it in a hidden compartment and covering it

with animal hair, id. at 2003, whereas the money Huezo transported was merely placed in a

suitcase. Regardless, Regalado Cuellar is clear that “merely hiding funds . . . is not sufficient to

violate the statute, even if substantial efforts have been expended to conceal the money.”

Regalado Cuellar, 128 S. Ct. at 2003. Accordingly, Huezo’s judgment of acquittal should stand.

       Considering first Huezo’s knowledge regarding the contents of the suitcases, notably,

there is no evidence that Huezo ever saw the suitcases’ contents or that he could have inferred

their contents through conversations or activities in which he participated. For example, Huezo

was not present at the November 5 meeting among Linares, Echevarria, and undercover officer

Del Rio, where the three openly discussed their plans for the exchange of money, including the


                                               -39-
time, vicinity, quantity, and manner in which the money was to be delivered. When Huezo was

present—for example, during the November 8 drop-off with Del Rio—there is no evidence that

the conspirators packaged the money in front of Huezo, that the money was exchanged openly, or

that the meeting took place outside a bank or similar financial repository such that Huezo could

infer that the suitcase contained money. Nor is there any evidence in the record suggesting that

either Del Rio or Linares ever mentioned the contents of the suitcase or the purpose of the

exchange during the drop-off. The absence of such evidence is fatal to the government’s case,

because “the exterior appearance of the [suitcases] was equally consistent with any number of

different criminal offenses.” United States v. Samaria, 239 F.3d 228, 237 (2d. Cir. 2001)

(finding insufficient evidence that a defendant charged with conspiracy to receive or possess

stolen goods and to commit credit card fraud, who helped collect boxes under circumstances

suggesting criminal activity, knew that the boxes contained stolen goods).

       The facts at issue in Huezo’s case are similar to those in United States v. Rodriguez, 392

F.3d 539 (2d Cir. 2004), where we found the evidence insufficient to support the defendant’s

conviction for possession of heroin with the intent to distribute and conspiracy to distribute

heroin, despite the fact that “the government presented sufficient evidence from which the jury

could have found that [the defendant] served as a lookout” in a drug transaction. Id. at 545.

Critically, although the defendant in Rodriguez was in close proximity to boxes containing

heroin, “the heroin was hidden inside a telephone box and also wrapped in two bags.” Id. at 547.

Because the appearance of the boxes did not establish their content, we concluded that the

defendant’s proximity to the hidden contraband did not amount to “circumstantial evidence

adequate to prove” the defendant’s “knowledge and specific intent to aid and abet a drug


                                               -40-
transaction.” Id. at 546–47. We similarly found that the fact that Rodriguez owned the car used

in the drug transaction—just as Huezo owned the Jeep used in the money laundering transactions

at issue in this case—did not establish his knowledge of the transaction’s purpose. Id. at 546.

Furthermore, although there was evidence that the defendant in Rodriguez participated in

planning conversations, we found that this participation was insufficient to support a conviction

because there was no evidence “of the precise contents of the conversations,” and particularly

whether these conversations mentioned drugs. Id. at 547–48; cf. United States v. Labat, 905 F.2d

18, 22 (2d Cir. 1990) (affirming a conviction for conspiracy to distribute narcotics when a

defendant was heard using coded drug language during telephone conversations). Thus, even if

we infer from Huezo’s presence in the house and his relationship with Linares and Echevarria

that he was present during discussions about the November 8 and November 10 delivery

transactions, such conversations would be insufficient, absent details regarding the content of

those conversations, to establish that Huezo knew that the suitcases contained money and that

this money constituted the proceeds of illegal activity.

       More importantly, however, no evidence exists with respect to Huezo’s knowledge that

the purpose of the November 8 and November 10 delivery transactions was to launder the

proceeds of illegal activity. There is no evidence that Huezo was privy to or participated in any

conversations that referenced money laundering. Cf. United States v. Padilla, 961 F.2d 322,

324–25 (2d Cir. 1992) (holding that there was sufficient evidence that a defendant who served as

a lookout knew that the purpose of his trip to the airport was to pick up a drug courier because he

was present for a planning conversation that referenced the “DEA” and the presence of dogs at

the airport). Furthermore, the evidence supports an inference that Huezo was only a minor actor


                                               -41-
who would not necessarily have participated in such conversations: Huezo’s name was never

mentioned during the November 5 planning meeting, and Officer Del Rio testified that he had

never seen nor heard Huezo’s name prior to the November 8 drop-off.

       Even more critically, Huezo’s behavior during the November 8 and November 10

deliveries was equally consistent with a belief by Huezo that he was simply transporting the

proceeds of a drug transaction—or engaged in some other criminal activity—leaving him without

the requisite knowledge that the purpose of the transactions was to launder money. For example,

although Agent Adamo testified that Huezo “was providing an extra layer of security” when

Echevarria moved the suitcase from the house on November 10, such behavior was consistent

with a belief by Huezo that he was transporting money for a drug transaction, or transporting

other valuable merchandise such as drugs. Viewing the evidence in its totality, there is simply no

greater evidentiary basis for the inference that Huezo thought he was engaged in money

laundering than there is for the inference that he thought he was involved in some other illegal

activity, such as transporting drug payments. “[I]f the evidence viewed in the light most

favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt

and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt.”

United States v. Glenn, 312 F.3d 58, 70 (2d Cir. 2002) (internal quotation marks omitted).

Accordingly, as in Samaria, where we rejected the government’s argument that because a

defendant aided in the pick-up of stolen goods he intended to participate in the specific crime

charged, the majority’s argument “rests upon the unproven assumption that [Huezo] knew” that

the November 8 and November 10 transactions were “designed” to launder money. 239 F.3d at

236; Maj. Op. at 14–16. Such unproven assumptions are insufficient to support a conviction.


                                              -42-
            The majority attempts to distinguish our precedents by arguing that in Samaria the

    defendant was a “gypsy cab driver” with no other connection to the conspirators, while Huezo

    had a sustained relationship with Linares and Echevarria and had traveled from California soon

    before the transactions, which suggests that he would not have been involved in the transactions

    by mere happenstance. See Maj. Op. 19–20; Samaria, 239 F.3d at 232–33. This argument is

    unconvincing. With respect to Huezo’s relationship with Linares and Echevarria, the majority

    overlooks that the defendant in Samaria participated in two separate pickups of stolen goods with

    his alleged conspirators, including one in which he rode as a passenger, which we concluded

    “may help establish that [the defendant] had a closer association with [the conspirators] than that

    of a taxi driver.”3 Id. at 238. But despite evidence of this closer association, we nonetheless

    concluded that the defendant’s work as a driver and a lookout did not indicate that he “was aware

    of the specific crimes charged and . . . had the specific intent to participate in those crimes.” Id;

    see also United States v. Gaviria, 740 F.2d 174 (2d Cir. 1984) (cited by Samaria, 239 F.3d at

    241-42) (finding insufficient evidence of a defendant’s specific intent to participate in a

    conspiracy to possess with intent to distribute cocaine, despite the defendant’s long association

    with a known drug trafficker and her pattern of suspicious behavior, including counter-

    surveillance). Under these precedents, Huezo’s relationship with Linares and Echevarria is not

    sufficient to establish that he knew the specific nature of the transactions in which he participated

    or assisted.


    3
1            Furthermore, although the majority suggests that the defendant in Samaria was “simply
2   performing his regular job,” Maj. Op. at 20, the government presented evidence that he served as
3   a lookout as well as a driver, Samaria, 239 F.3d at 237–38. This evidence undermines the
4   majority’s characterization of the defendant in Samaria as an “unwitting outsider.” Maj. Op. at
5   20.

                                                    -43-
       Likewise, in cases where we found travel indicative of a defendant’s knowledge and

intent to participate in a conspiracy, the defendant’s travel patterns were more suspicious than

Huezo’s, and the government presented additional strong evidence of the defendant’s knowledge

of the underlying crimes. For example, in United States v. Aleskerova, 300 F.3d 286 (2d Cir.

2002), a defendant charged with conspiracy to possess, conceal, and sell stolen artwork booked a

last-minute trip from Azerbaijan to New York on the same day the conspirators scheduled a

critical meeting in New York, arriving in New York fifty minutes before that meeting. Id. at 293.

The government also presented evidence that the defendant “was sent to view the [stolen] art,

was trusted to know its location, and was told the combination to the suitcase [holding the art],”

which we found “strongly suggest[ed] her full, knowing participation in the conspiracy.” Id. at

294. The defendant also discussed delivery of the artwork with another conspirator, id. at 291,

further supporting the inference that she knew the purpose of the conspiracy. Likewise, in United

States v. Pedroza, 750 F.2d 187 (2d Cir. 1984), we inferred a defendant’s membership in a

kidnaping conspiracy based on evidence that he “had to criss-cross the country [from Miami to

Los Angeles and from Los Angeles to New York] to be present at the critical times” for the

kidnaping, “together with” evidence that the defendant was present in a house for two weeks

with the kidnaped child, was present with the conspirators and the kidnaped child on the night

the conspirators made final ransom arrangements, and was present when the conspirators

permitted the kidnaped child to talk to his father on the telephone. Id. at 193, 198-99 (emphasis

added). In contrast, the evidence in Huezo’s case at most suggests that Huezo arrived in




                                              -44-
    Connecticut several days before the November 8 and November 10 deliveries,4 and there is no

    evidence that he made multiple long-distance trips that happened to correspond to critical events

    in the conspiracy. There is also no evidence that Huezo participated in planning sessions about

    the laundering of money, or even saw the content of the suitcases. Absent such evidence, the

    inferential leaps required to tie Huezo’s travel from California to a specific intent to join a money

    laundering operation—including that his travel to Connecticut was connected to the presence of

    Linares and Echevarria, that any such travel was not merely social, and that any business reasons

    for his travel were more consistent with money laundering than with another crime—are simply

    too great to give his travel the probative value the majority ascribes to it.5 See Glenn, 312 F.3d at

    70 (“[A]s the inferential leap between the fact and the proposition to be derived grows, the

    probative value of the evidence diminishes.”).

           The other circumstantial evidence cited by the majority is also inadequate to establish

    Huezo’s knowledge regarding the purpose of the transactions, even when considered in its

    totality. For example, although the majority suggests that common sense supports the inference

    that the principals of the conspiracy would not have trusted an outsider to participate in the


    4
1             The evidence that Huezo recently traveled to Connecticut from California is itself weak.
2   The government relies completely on the fact that Huezo provided a California address to a hotel
3   shortly before the November transactions. The government presented no evidence of Huezo’s
4   travel itinerary, and officer Fernandez testified that Huezo had a Connecticut driver’s license.
    5
1            The majority suggests that because Linares and Echevarria had California driver’s
2   licenses and Huezo gave a California address to a hotel shortly before the November
3   transactions, a rational juror could conclude that “the three men traveled from California to
4   Connecticut and met for the express purpose of facilitating the money laundering conspiracy.”
5   Maj. Op. at 17. This conclusion rests on several unproven assumptions. For example, Linares’
6   and Echevarria’s California licenses do not establish when they last visited California, and the
7   government presented no evidence that Linares, Echevarria, and Huezo traveled together from
8   California to New York.

                                                   -45-
money laundering transactions or share a house with conspirators, Maj. Op. at 16-17, common

sense could also support the opposite conclusion—that the leaders of the conspiracy might want

to keep Huezo uninformed about the intended goal of the conspiracy for plausible deniability

reasons in case he was ever questioned, or to avoid having to pay him more for his services.

Such an inference is buttressed by the absence of any evidence that money was packaged or left

visible in the house. Cf. United States v. Soto, 959 F.2d 1181, 1185 (2d Cir. 1992) (holding that

because the defendant was present in an apartment where large-scale narcotics operations were

conspicuous, “[t]he jury could . . . have reasonably determined that only trusted members of the

operation would be permitted entry into the apartment, because allowing outsiders to have access

to an apartment with large quantities of narcotics in plain view could compromise the security of

the operation.” (emphasis added)).

       The majority also emphasizes that, on November 10, Huezo personally carried a small

bag containing $6,000, packaged similarly to the bundled cash in the larger suitcases, from the

house to behind the driver’s seat of his Jeep. Maj. Op. at 15–16. According to the majority, a

rational juror could conclude that Huezo’s “special treatment” of the bag indicates that the bag

belonged to him and that it contained profits from the money laundering conspiracy that were

paid to him for his assistance. Id. This evidence simply does not support the conclusion the

majority draws. Agent Adamo, who described Huezo’s movements, conceded that he knew

nothing about the circumstances surrounding Huezo’s carrying of the bag, including whether

Linares had asked Huezo to carry it for him. Furthermore, the record indicates that Linares and

Echevarria were both passengers in the Jeep, such that one of them would have had to have been

in the back seat next to the bag. Accordingly, Huezo’s placement of the bag behind the driver’s


                                              -46-
     seat is consistent with the inference that it was the back seat passenger who owned the bag, and

     not Huezo. To the extent that Huezo’s treatment of the bag might suggest that it belonged to him

     and that it constituted payment for his activities, this evidence still fails to establish that Huezo

     knew that he was being paid for participation in, and with proceeds from, a money laundering

     conspiracy, rather than some other illegal activity.6

             In sum, I disagree with the majority that, when viewing the evidence in its totality, a

     rational juror could conclude beyond a reasonable doubt that Huezo knew that the purpose,

     rather than merely the effect, of the November 8 and November 10 transactions was to conceal or

     disguise proceeds from illegal activities. While each piece of circumstantial evidence discussed

     by the majority may be probative to some degree of Huezo’s guilty knowledge that he was

     involved in something illegal, the evidence in its totality is insufficient to demonstrate beyond a

     reasonable doubt that Huezo knew that the transactions in which he participated were designed to

     launder the proceeds of illegal activity. See Regalado Cuellar, 128 S. Ct. at 2003–05. As the

     Supreme Court observed in Regalado Cuellar, in cases “where the consequences of an action are

     commonly known,” a criminal defendant’s knowledge or purpose can be “shown circumstantially

     based on inferences drawn from evidence of effect.” 128 S. Ct. at 2005 n.8. Delivering suitcases


     6
 1            In reaching the opposite conclusion, the majority relies heavily on a statement in
 2   Samaria, in which we indicated that one possible circumstantial indicia of knowledge and
 3   specific intent would be that the defendant “received a share of the profits from the conspiracy.”
 4   Samaria, 239 F.3d at 235. In support of this proposition, Samaria cited United States v.
 5   Markiewicz, 978 F.2d 786 (2d Cir. 1992). Samaria, 239 F.3d at 235. In Markiewicz, however,
 6   the defendants, unlike Huezo, “essentially concede[d]” that they knew the source of the funds
 7   they had received. Markiewicz, 978 F.2d at 806. In light of this different fact pattern, the
 8   majority reads too much into Samaria in suggesting that Huezo’s carrying of a camera-sized bag
 9   containing some money is sufficient to prove his knowledge that the purpose of his delivery of a
10   suitcase containing money was money laundering, even though he would have been paid for
11   activities that were equally consistent with other crimes.

                                                     -47-
containing money, however, is common not only to money laundering. Although Regalado

Cuellar gives us clear guidance that a participant in a money laundering transaction must know

that the purpose of the transaction is to launder money, it is apparent from the majority’s opinion

that it fails to follow the Supreme Court’s directive. The majority fails to recognize that evidence

of such knowledge must be something more than mere presence at the exchange or delivery of

concealed money. Because I do not believe that the evidence presented at trial demonstrates that

Huezo knew the specific purpose of the transactions in which he participated, I respectfully

dissent.




                                              -48-
