                Case: 16-11349       Date Filed: 07/10/2017      Page: 1 of 9


                                                                                 [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 16-11349
                              ________________________

                        D.C. Docket No. 1:15-cr-20761-DMM-2



UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee,

versus

TERRY PIERRE LOUIS,

                                                         Defendant - Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                      (July 10, 2017)

Before TJOFLAT and WILSON, Circuit Judges, and ROBRENO, ∗ District Judge.

WILSON, Circuit Judge:


         ∗
        Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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       The burden is on the government to prove all elements of a crime beyond a

reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072

(1970). When a man’s liberty is at stake, we must be vigilant with this burden.

The government failed to offer evidence from which a reasonable jury could find

that Terry Pierre Louis had knowledge that the boxes placed in the backseat of his

car contained a controlled substance. Without proof of this essential element, the

government has failed to meet its burden. Therefore, we must reverse.

                                                I.

       In September 2015, Customs and Border Protection received a tip that the

Ana Cecilia, a coastal freighter used to export goods from the United States to

Haiti, was returning from Haiti to Miami carrying narcotics. When the boat

arrived Customs agents boarded the vessel and searched for narcotics for four days.

None were found. At one point during the search, Louis, an employee of Ernso

Borgella, the owner of the Ana Cecilia, brought the confined crewmembers food.1

Following the unsuccessful search, Customs set up surveillance of the Ana Cecilia.

       During the surveillance, an agent observed the deck watchman go inside the

ship and come out carrying two large cardboard boxes. Agents later watched as a

forklift picked up two boxes and drove them off the Ana Cecilia. Borgella was

1
  Testimony from the agent guarding the ship revealed that Louis went aboard the Ana Cecilia
for less than five minutes to deliver the food. There was no evidence presented as to Louis’s
exact job duties, but the operator of the shipyard testified that he saw Louis working in an office
in the shipyard and that he believed Louis performed administrative tasks for Borgella.
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following the forklift and speaking to its driver, who placed the two boxes on the

dock where an unidentified man covered them with a tarp. Later on, Borgella

directed a white Nissan to park near the boxes and then reached inside the

passenger rear seat and opened the door. Two unidentified men then loaded the

boxes into the back seat of a white Nissan. Louis then began to slowly drive the

Nissan to the front of the shipyard, while Borgella walked alongside it. Once

outside the front gate of the shipyard, the Nissan was stopped by unmarked law

enforcement vehicles with lights and sirens. Louis then exited the car and began to

run. One of the agents pursued Louis, but lost sight of him in the shipyard. The

agents found Borgella and detained him. 2 The agents searched the Nissan and

found two sealed boxes in the back seat containing 111 bricks of cocaine.

       Louis was charged with (1) conspiracy to possess with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846, and (2) possession

with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A). During the two-day trial, the government put forth evidence including

surveillance photos and videos showing that Louis was near the Ana Cecilia, that

he drove a car containing boxes of cocaine, and that he ran when confronted by

law enforcement. Following the government’s case-in-chief, the defense moved

2
 Borgella was charged with conspiracy to possess with intent to distribute cocaine, possession
with intent to distribute cocaine, conspiracy to import cocaine, and importation of cocaine. He
pleaded guilty before trial and signed a plea agreement and factual proffer. He was sentenced to
108 months’ imprisonment.
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for an acquittal, the motion was denied, and the defense rested. A jury found Louis

guilty on both counts. Louis moved for an acquittal again after the jury verdict but

his motion was denied. Despite Louis’s motions at sentencing for a role reduction

and safety-valve relief, he was sentenced to 151 months’ imprisonment.

                                              II.

      We review de novo a district court’s denial of a motion for acquittal. United

States v. Perez-Tosta, 36 F.3d 1552, 1556 (11th Cir. 1994). When considering

claims regarding sufficiency of the evidence, we view the evidence in the light

most favorable to the government. See United States v. Ortiz, 318 F.3d 1030, 1036

(11th Cir. 2003) (per curiam). “[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 of the crime charged, then a reasonable

jury must necessarily entertain a reasonable doubt.” Cosby v. Jones, 682 F.2d

1373, 1383 (11th Cir. 1982).

      Eleventh Circuit precedent is clear that it is critical under § 846 and § 841

that the government must prove that the defendant had knowledge that his alleged

crime involved a controlled substance. To establish a violation of § 846 the

government must prove beyond a reasonable doubt that two or more persons

agreed to commit a drug-related offense, that the defendant knew of the

conspiracy, and that he agreed to become a member. See e.g., United States v.


                                          4
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Azmat, 805 F.3d 1018, 1035 (11th Cir. 2015). “Association with a co-conspirator

or presence at the scene of the crime is insufficient to prove participation in a

conspiracy.” United States v. Hernandez, 896 F.2d 513, 518 (11th Cir. 1990).

“[A]lthough the government is not required to prove that [the defendant] knew

every detail” of the conspiracy, “the government must prove that he ‘knew the

essential nature of the conspiracy.’” United States v. Charles, 313 F.3d 1278, 1284

(11th Cir. 2002) (per curiam) (quoting United States v. Payne, 750 F.2d 844, 859

(11th Cir.1985)). “A defendant who is unaware that he is in the process of

possessing the drugs that are the object of the conspiracy is not, by any stretch of

the imagination, aware of the essential nature of the conspiracy.” United States v.

Ohayon, 483 F.3d 1281, 1291 (11th Cir. 2007); see also Charles, 313 F.3d at 1284,

1287 (reversing a conviction because there was insufficient evidence that the

defendant knew the specific purpose of the conspiracy involved cocaine).

      To sustain a conviction of the substantive offense of possession under § 841,

the government must prove knowing possession of a controlled substance with

intent to distribute it. See United States v. Figueroa, 720 F.2d 1239, 1244 (11th

Cir. 1983). The government must therefore prove that the defendant knew “the

substance [wa]s a controlled substance.” See, e.g., United States v. Sanders, 668

F.3d 1298, 1309 (11th Cir. 2012) (per curiam) (internal quotation marks omitted);

United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir. 1990).


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       Recently in McFadden v. United States, the Supreme Court reemphasized

this knowledge requirement. 576 U.S ___, ___, 135 S. Ct. 2298, 2302 (2015).

Justice Thomas, writing for a near unanimous court, wrote that § 841 “requires the

[g]overnment to establish that the defendant knew he was dealing with ‘a

controlled substance.’” See id. The Court rejected the government’s proposed

broader definition that the knowledge requirement would be met if the “defendant

knew he was dealing with an illegal or regulated substance under some law.” See

id. at 2306 (internal quotation marks omitted)(emphasis added).

       Following the clear guidance set forth in McFadden, to prove that Louis

“knowingly or intentionally . . . possess[ed] with intent to . . . distribute . . . a

controlled substance” under § 841 the government would have to prove that Louis

knew the boxes contained a controlled substance, and not just contraband illegal

under some law.

                                            III.

       After a careful review of the record and the parties’ briefs, we conclude that

no reasonable jury could find from the little evidence presented during the two-day

trial that Louis is guilty of violating § 846 and § 841 beyond a reasonable doubt.

Viewing the evidence in the light most favorable to the government, we can infer

that Louis’s presence and flight are evidence that he knew he was involved in

something criminal. We cannot find, however, that the government proved beyond


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a reasonable doubt that Louis knew the boxes placed in his car contained a

controlled substance. And because the evidence does not prove that Louis knew

that the boxes contained a controlled substance, the evidence does not prove that

he knew he was involved in a conspiracy to possess a controlled substance.

       During a short trial, the government presented evidence that Louis was seen

around the shipyard (where he worked) and was seen near Borgella (his employer).

The government relied heavily on evidence that Louis fled when suddenly

surrounded by law enforcement. The government’s case was built upon inferences

from Louis’s presence and flight. However, the government presented no evidence

that Louis knew that there was a controlled substance (as opposed to any other

contraband) within the sealed boxes placed by others in his backseat. No one

testified as to Louis’s knowledge and Louis himself did not testify.

       We recognize that “[e]vidence of flight is admissible to demonstrate . . .

guilt,” United States v. Blakely, 960 F.2d 996, 1000 (11th Cir. 1992), and Louis’s

flight might be persuasive evidence that he knew the boxes contained contraband

illegal under some law. But the evidence is not enough to prove that Louis knew

the boxes contained a controlled substance.3 See McFadden, 135 S. Ct. at 2302;

Sanders, 668 F.3d at 1309.



3
 For this same reason, the government’s evidence that the Ana Cecilia only exported goods, and
did not import them, might be evidence that Louis should have been suspicious the boxes
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       In addition to Louis’s flight, the government relies on Louis’s presence and

interactions around the shipyard. But the government puts forth no evidence of

any conversations where Louis was informed of a plan regarding a controlled

substance. There is no evidence, circumstantial or otherwise, strong enough to

prove beyond a reasonable doubt that Louis knew that there was a controlled

substance in the boxes. The government’s evidence of presence and flight was

simply not enough to support a finding of knowledge beyond a reasonable doubt.

       Neither are we persuaded by an entrustment theory, which attempts to imply

knowledge when there is evidence of a high quantity of drugs because “a ‘prudent

smuggler’ is not likely to entrust such valuable cargo to an innocent person without

that person’s knowledge.” See United States v. Quilca-Carpio, 118 F.3d 719, 722

(11th Cir. 1997) (per curiam). We do not find Quilca-Carpio sufficiently

analogous here, as Louis’s presence with the boxes was only brief. In Quilca-

Carpio, the defendant checked an unusually heavy roller-bag as his own luggage

on an international flight from Lima, Peru to the United States. See id. at 721–22.

However, Louis was in the Nissan only briefly as he slowly drove with Borgella

walking alongside the car. Indeed, Louis was never left completely alone with the

boxes, like the defendant in Quilca-Carpio. This hardly supports a conclusion that




contained contraband illegal under some law. But this fact is not enough to prove that Louis
knew the boxes contained a controlled substance.
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Louis was sufficiently entrusted with the cocaine to establish his knowledge, and it

is surely not enough to prove his knowledge beyond a reasonable doubt.

                                             IV.

       The government is charged with proving “beyond a reasonable doubt . . .

every fact necessary to constitute the crime with which [the defendant] is charged.”

See Winship, 397 U.S. at 364, 90 S. Ct. at 1073 (emphasis added). We must hold

the government accountable to this burden. While the circumstances presented by

the government here might show that it is more likely than not that Louis knew that

the boxes contained some sort of contraband, the permissible inferences do not

support a holding that the government proved that Louis knew this was a

conspiracy involving a controlled substance or that he knew he was in possession

of a controlled substance. Without this requisite showing of knowledge, the

government has failed to prove every fact necessary to meet its burden.4

       REVERSED.




4
 Due to our holding regarding sufficiency of the evidence, we need not consider Louis’s
challenges to the role reduction and safety valve decisions at his sentencing.
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