                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2006

USA v. Zavala
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1776




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"USA v. Zavala" (2006). 2006 Decisions. Paper 847.
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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 04-1776


                          UNITED STATES OF AMERICA

                                          v.

                                   JOSE ZAVALA,
                                             Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           D.C. Crim. No. 02-cr-00446-3
                   District Judge: The Honorable Jan E. DuBois


                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 8, 2006


       Before: BARRY, SMITH, Circuit Judges, and RODRIGUEZ,* District Judge


                            (Opinion Filed: June 23, 2006)


                                      OPINION




   *
   The Honorable Joseph H. Rodriguez, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
BARRY, Circuit Judge

       Appellant Jose Zavala challenges the sufficiency of the evidence leading to his

conviction for conspiracy to distribute methamphetamine, as well as the legality of his

sentence after United States v. Booker, 543 U.S. 220 (2005). We exercise jurisdiction

pursuant to 28 U.S.C. § 1291. We will reverse.

                                            I.

       On June 25, 2002, Jose Zavala, a.k.a. Anthony Zavala, was observed by postal

inspectors mailing a package from a Los Angeles post office to “Monica Flores, 13061

Dorothy Drive, Philadelphia, Pennsylvania 19116,” with a return address of “David

Martin, 7013 Glassgow Avenue, Los Angeles, California 90045.” Zavala, as it turned

out, knew no David Martin and was not in fact sending a package to Monica Flores. The

package, which contained about 1,300 grams of methamphetamine, was claimed at the

Philadelphia address by Michael Gonzales and Zavala’s brother, Francisco. They were

unaware, however, that the entire process had been observed by law enforcement agents,

from the moment Zavala placed the package in the mail until an undercover postal

inspector delivered the package on June 27 to a waiting Michael Gonzales, who greeted

her by inquiring whether the package was for Monica Flores.

       Michael Gonzales and Francisco Zavala were arrested. Jose Zavala was left alone

by the authorities until a search warrant was executed at his home on September 12, 2002.

No evidence of drug activity was found. Zavala did, however, waive his rights and spoke

to two postal inspectors. When asked if he had sent a package on June 25, 2002, he said

                                            2
he often mailed packages and could not recall. After being shown images of his mailing

the package at issue here, he agreed that he had mailed a package that day. The

inspectors then inquired as to the contents of the package, and Zavala said it was for his

nephew and contained “toys and stuff like that.” The officers were, of course, curious as

to why, if that was so, he sent the package from David Martin to Monica Flores. Zavala

could not recall writing out the label. A handwriting expert testified at trial that it was

indeed his handwriting.

       Zavala was arrested and subsequently charged with conspiracy to distribute and

possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846, aiding

and abetting the attempt to possess with intent to distribute methamphetamine in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and unlawful use of a communication facility

in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. His first trial resulted in a hung

jury, and he was convicted following the retrial. The District Court, pre-Booker,

sentenced him to 135 months imprisonment. He now appeals.

                                              II.

       Zavala attacks the integrity of his underlying conviction, contending that there was

insufficient evidence to establish that he knew the package contained methamphetamine.1

“We apply a ‘particularly deferential’ standard of review with respect to a challenge to

the sufficiency of evidence supporting a guilty verdict.” United States v. Al Hedaithy, 392


   1
     Counsel preserved the sufficiency of the evidence argument by moving for judgment
of acquittal in the District Court.
                                              3
F.3d 580, 604-05 (3d Cir. 2004) (citation omitted). We “must determine whether,

viewing the evidence most favorably to the government, there is substantial evidence to

support the jury’s guilty verdict.” United States v. Idowu, 157 F.3d 265, 268 (3d Cir.

1998) (citation and internal quotation marks omitted). In application, “[i]f ‘after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt,’ this Court will

sustain the verdict.” Al Hedaithy, 392 F.3d at 605 (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)). We will “not re-weigh the evidence presented at trial or reassess the

credibility of the witnesses, and . . . will overturn a guilty verdict ‘only if no reasonable

juror could accept the evidence as sufficient to support the conclusion of the defendant's

guilt beyond a reasonable doubt.’”2 Id. (citations omitted).

       The jury heard evidence of Zavala’s possession and control of the package at the

time of mailing and his attempt to conceal from whom and to whom it was being sent.

Moreover, upon being questioned about the package, Zavala’s explanations were lacking,

to say the least, evidencing some consciousness of guilt. The question, however, is

whether a rational jury “could accept the relevant evidence as adequate and sufficient to

support the conclusion of the defendant's guilt beyond a reasonable doubt.” Jackson, 443

U.S. at 319 n.12 (citation omitted). In this case, we conclude it could not.



   2
     See United States v. Allard, 240 F.3d 840, 841 (3d Cir. 1957) (“The evidence does
not need to be inconsistent with every conclusion save that of guilt if it does establish a
case from which the jury can find the defendant guilty beyond a reasonable doubt.”).
                                              4
       “[T]his court has [consistently] overturned convictions for conspiracy in drug

possession and distribution because of the absence of any evidence that the defendant had

knowledge that drugs were involved.” United States v. Mastrangelo, 172 F.3d 288, 293

(3d Cir. 1999). For example, in United States v. Wexler, 838 F.2d 88 (3d Cir. 1988),

Wexler was observed driving in a manner evidencing that he was acting as a lookout for a

truck containing hashish. He was also seen communicating with fellow conspirators

during the transport of the drugs. Moreover, the police discovered a CB radio bought

with a false name in the car Wexler had been driving. Nevertheless, we found the

evidence insufficient to establish “that Wexler knew that a controlled substance was

couched behind the doors of the Ryder truck.” Id. at 91. We concluded that “[i]t [was]

more likely than not that [he] suspected, if not actually knew, that some form of

contraband was involved in the elaborate secretive arrangements for transport in which he

participated.” Id. at 92. The evidence, however, did “not support a holding that the

government met its burden to prove beyond a reasonable doubt that [he] knew this was a

conspiracy to transport hashish or even another controlled substance. The evidence is just

as consistent, for example, with a conspiracy to transport stolen goods, an entirely

different crime.” Id. at 92; see United States v. Cooper, 567 F.2d 252, 254 (3d Cir. 1977)

(“[T]here [was] no evidence that [appellant] knew what was in the padlocked rear

compartment . . . . One may not be convicted of conspiracy solely for keeping bad

company.”); see also United States v. Terselich, 885 F.2d 1094, 1098 (3d Cir. 1989)

(“[A]s in Wexler and Cooper, where the fact finder could not infer that the defendant

                                             5
knew what was behind the locked door of the truck for which he served as ‘look out’ or in

which he travelled, so here the fact finder could not infer that [appellant] knew that the

car in which he travelled was transporting a large quantity of cocaine.”).

       Similarly, in Idowu, we reversed the conviction because knowledge of “the

specific unlawful purpose charged in the indictment” had not been established. Idowu,

157 F.3d at 268 (quoting Wexler, 838 F.2d at 91). There was a great deal of evidence

connecting Idowu with the unlawful activity:

       First, [the appellant] carried the brown leather bag containing the money.
       Second, [the appellant] apparently owned the bag, as evidenced by the fact
       that he kept personal documents in the bag. Third, [co-conspirator 1] was
       willing to leave [the appellant] alone with the money. Fourth, [co-
       conspirator 1] believed that it was safe to talk to [co-conspirator 2] in the
       presence of [the appellant]. Fifth, [the appellant] was the one who showed
       [co-conspirator 2] the money and who told [him] that he had checked it to
       ensure that it was all there. Sixth, [the appellant] opened the black suitcase
       to check the contents without being prompted by [co-conspirator 1].
       Seventh, the two defendants spoke Yoruban (a Nigerian dialect) together.
       Eighth, [co-conspirator 1] urged [the appellant] to feel around in the
       suitcase. Ninth, [the appellant] had $3,000 in his pocket at the time he was
       arrested, which he presumably had skimmed from the stash.


Id. Despite all of that, we determined that “only two inferences [were] proper: that Idowu

had some kind of preexisting relationship with [a co-conspirator], and that Idowu knew he

was participating in some sort of illegal transaction.” Id.

       But the evidence [did] not support the critical inference on which the
       government’s case depends – that [the appellant] knew the transaction was
       a drug transaction. Neither [co-conspirator 1] nor [co-conspirator 2]
       referred to the subject of their deal as ‘heroin’ or ‘drugs’ in [the appellant’s]
       presence on the day of the transaction, or in their recorded phone

                                              6
       conversations.


Id.

       In United States v. Cartwright, 359 F.3d 281, 283 (3d Cir. 2004), we again

“conclude[d] that the evidence adduced at trial did not support an inference that [the

appellant] knew he was participating in a transaction that involved a controlled substance,

as opposed to some other form of contraband.” In Cartwright, as in Idowu, “there [was]

ample evidence in the record to suggest that [the appellant] knew he was involved in an

illicit transaction of some sort,” id. at 286, but no evidence supported the inference that he

knew drugs were involved.

       There [was] simply no logical and convincing connection between [the]
       facts [connecting the appellant to the transaction] and the inference the
       government seeks to draw. Rather, that inference is based solely on
       speculation about a possible prior relationship between [the appellant] and
       [a co-conspirator], about how [the appellant] got to the [location of the
       transaction], and about what [the appellant] was doing prior to being sighted
       with [a co-conspirator], matters as to which there is no evidence.


Id. at 288.

       Finally, in United States v. Thomas, 114 F.3d 403 (3d Cir. 1997), we vacated a

drug conviction where the defendant was surveilled entering a room in which a suitcase

containing drugs was being kept. The police arrested him as he exited the room. He told

the officers that he knew nothing about the suitcase’s contents, but was simply paid to

make certain that it was in the hotel. On his arrest, however, he had a cellular phone, a

pager, and a nine millimeter firearm. The pager had phone numbers connecting him to a

                                              7
target of the drug investigation. As we explained in Cartwright, “[w]e concluded from

this evidence that Thomas must have known that he was somehow involved in an illicit

activity; however, we held that any conclusion that Thomas knew drugs were involved

was speculative.” Cartwright, 359 F.3d at 288.

       We reach the same conclusion here. The evidence supports the inference that

Zavala knew, based on the addresses used and his later statements to investigators, that he

was involved in something illicit. In order to conclude, however, that he knew that the

package contained methamphetamine, the jury would have to speculate about

conversations he had with his brother or his involvement in the packaging of the drugs,

for there is surely no evidence on either score; indeed, there is no evidence that Zavala

had anything to do with drugs. As in Idowu, Cartwright, and Thomas, Zavala was

intimately involved in the transaction, but the lack of evidence establishing knowledge

that it was a drug transaction dooms the government’s case. See Idowu, 157 F.3d at 270

(“The fact patterns both in Wexler and in the case at bar are consistent with transactions

that do not involve drugs of any sort. And because the government failed to provide

evidence that [the appellant] knew that drugs were in fact the subject matter of the

transaction, the jury could not draw a permissible inference that [the appellant] had

knowledge of the nature of the deal.”). In sum, there is “evidence tending to prove that

[Zavala] entered into an agreement,” but there is a serious question as to whether “he

knew [that] the agreement had the specific unlawful purpose charged in the indictment.”

Cooper, 567 F.2d at 253.

                                             8
       The government avoids discussion of Idowu, Cartwright, and Thomas, and instead

emphasizes Zavala’s possession and control of the package. In Idowu and Thomas, the

appellants at one time or another possessed or were in the immediate presence of

containers containing drugs. Furthermore, Idowu was in the possession of large sums of

money, and Thomas was carrying a firearm and had been in contact with an established

co-conspirator. See also Cartwright, 359 F.3d at 289 (“In this case, as in Thomas,

Cartwright was found to possess a firearm, a pager, and a cellular phone, and was even

observed talking with [a co-conspirator].”). The evidence of Zavala’s knowledge that

drugs, as opposed to contraband generally, were involved is even slimmer than in these

cases in which, it bears repetition, we reversed the convictions. See id. 289-90 (“[I]n the

absence of any evidence indicating the substance of the conversation with [the co-

conspirator], any evidence of a prior relationship with [the co-conspirator], or any other

direct evidence indicating [the appellant’s] knowledge, the jury could only speculate as to

[his] knowledge.”); see also United States v. Jenkins, 345 F.3d 928, 942 (6th Cir. 2003)

(reversing the conviction of a defendant who received and paid $50.00 for an express

package containing cocaine base); United States v. Samad, 754 F.2d 1091, 1097, 1099

(4th Cir. 1984) (finding that the evidence was insufficient where the defendant accepted a

package not addressed to him and, although receiving public assistance, had a “relatively

large sum of cash in his apartment,” and concluding that the evidence “unmistakably

reveals close physical association, and raises a plausible suspicion of criminal association,

with another whose guilt . . . was sufficiently proven[, b]ut that obviously does not

                                             9
support a finding of criminal agency”).3

       The government, in its attempt to align this case with those in which knowledge

was deemed to be sufficiently established, places great emphasis on United States v.

Iafelice, 978 F.2d 92 (3d Cir. 1992),4 a decision predating Idowu, Cartwright, and

Thomas. Iafelice drove his own car to a hotel parking lot where a drug transaction was to

occur, and was observed driving in a manner indicative of counter-surveillance. Upon

parking the car, one of two co-conspirators, who had been riding with Iafelice, went into

the hotel. When he returned to the car, Iafelice popped the trunk so that the co-

conspirator could take out a camera bag to bring into the hotel. Iafelice communicated by

phone with the co-conspirator inside the hotel during the transaction. We reversed the

judgment of acquittal,5 citing Iafelice’s “ownership and operation of the vehicle used to

transport the drugs.” Iafelice, 978 F.2d at 97. “Common sense counsels that an owner



   3
     See Cartwright, 359 F.3d at 289-90 (“[E]ven if we were willing to speculate that [the
appellant] arrived at the mall in [a co-conspirator’s] car, Idowu indicates that such
evidence, without more, would still be insufficient to infer that [he] knew he was involved
in a drug transaction.”).
   4
     See Cartwright, 359 F.3d at 290 (“The government seems to recognize that Thomas
and Idowu do not support its inference as to [the appellant’s] knowledge . . . . [and]
therefore argues that we should instead rely on United States v. Iafelice, 978 F.2d 92 (3d
Cir. 1992) . . . .”).
   5
    On appeal, Iafelice was a simple possession case, ultimately proven by establishing
constructive possession; the defendant had been acquitted of the conspiracy charge. The
District Court granted Iafelice’s post-verdict motion of acquittal, “conclud[ing] that the
evidence was insufficient for a reasonable jury to find that the government had proven
beyond a reasonable doubt each element of the possession offense.” 978 F.2d at 95.
                                            10
and operator of a vehicle usually has dominion and control over the objects in his or her

vehicle of which he or she is aware, and usually knows what is in that vehicle.” Id. We

ultimately based our decision on “(1) the presence and use of a beeper and telephone

during the drug transaction, and (2) the undisputed presence of the drugs in Iafelice’s

car.” Id. at 96.

       The jury could certainly have inferred that Zavala communicated at some earlier

point with his brother and Gonzales, agreeing to mail a package in a particular manner,

knowing that something illicit was inside. But to reach the conclusion the government

seeks to reach would have required the jury to assume or to speculate not only that Zavala

knew the package contained drugs, but that it contained, as the jury was charged, the

particular drug methamphetamine. Circumstantial evidence can, of course, support a

conviction in such cases, but the circumstantial evidence here, as in Cartwright, Idowu,

and Thomas, points only to knowledge of some form of contraband. There is utterly no

evidence that Zavala knew that drugs, much less methamphetamine, were in the package.




                                            III.

       Because the evidence of knowledge was insufficient, the jury was required to

speculate as to whether Zavala knew he was involved with drugs. We will not “uphold[]

. . . a conviction on the basis of such speculation.” Thomas, 114 F.3d at 406. The




                                            11
judgment of conviction will be reversed.6




   6
       Zavala requests a Booker remand. In light of this decision, that request is moot.
                                              12
