                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53




           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                            Argued November 15, 2006
                            Decided December 12, 2006

                                       Before

                   Hon. WILLIAM J. BAUER, Circuit Judge

                   Hon. DIANE P. WOOD, Circuit Judge

                   Hon. TERENCE T. EVANS, Circuit Judge


No. 05-3529

UNITED STATES OF AMERICA,                       Appeal from the United States District
         Plaintiff-Appellee,                    Court for the Northern District of
                                                Indiana, South Bend Division.
      v.
                                                No. 04 CR 130
JOSE PADILLA,
          Defendant-Appellant.                  Allen Sharp,
                                                   Judge.


                                      ORDER

       Police sent an informant to make a controlled buy of one pound of
methamphetamine from Jose Padilla. The informant returned with the drugs, and
Padilla was charged with distributing methamphetamine. See 21 U.S.C. § 841(a)(1).
But during the controlled buy, the informant met with Padilla and another
unidentified man, and surveillance officers were unable to see who passed the drugs
to the informant. What’s more, the informant died before Padilla’s trial. At trial the
government argued that it did not matter whether the informant received the drugs
from Padilla or the other man, because given the circumstances Padilla was guilty
under a theory of aiding and abetting. The jury agreed, and the district court
No. 05-3529                                                                      Page 2


sentenced him to a 78-month term of imprisonment. Padilla appeals, arguing that the
government failed to present sufficient evidence to convict him. Because a rational
jury could not have found beyond a reasonable doubt that Padilla participated in the
drug deal, we reverse his conviction.

        At trial the government called five members of the team of local and federal law
enforcement officers who conducted surveillance of the informant’s controlled buy. The
informant, David Garcia, died before trial in a homicide unrelated to this case, so the
government’s principal witness was Barry Snyder, an Elkart, Indiana, police officer
who apparently led the investigation. Snyder testified, over defense counsel’s hearsay
objection, that Garcia arranged the drug deal with Padilla, but the government
presented no recordings or documents regarding the arrangements. Snyder also
testified that his team searched Garcia and his car just before he met with Padilla and
found no drugs. Garcia was then given $3500 in marked bills to purchase the drugs.

        According to Snyder, the controlled buy began in the parking lot of one grocery
store and then moved to another. As Snyder videotaped the events from across the
street, Garcia drove into the parking lot of the first store, Los Galanes Supermarket,
and waited for Padilla. The videotape, which was admitted into evidence and shown
to the jury, depicts Garcia waiting in his car as a black Chevrolet Impala arrives at the
store. Snyder identified the driver of the Impala as Padilla. Garcia followed the
Impala out of the parking lot, and Snyder trailed the two cars to a nearby cross street,
where they stopped momentarily. Snyder could not see or hear what transpired
between Padilla and Garcia.

       Snyder testified that Padilla and Garcia then split up. Snyder followed Garcia
to the parking lot of the second grocery store, Cueramaro Supermarket, where Snyder
continued to capture the events on videotape, this time from within the same parking
lot. This video, also admitted as an exhibit and shown to the jury, depicts Padilla
driving his black Impala into the Cueramaro parking lot and stopping next to Garcia’s
car, which was parked away from the store’s front door. Padilla briefly entered and
exited Garcia’s car, but Snyder’s view was obstructed and he could not see if Padilla
carried anything with him. From his vantage point, however, Snyder overheard
Padilla, who was now standing outside Garcia’s car, addressing Garcia through the
open driver’s window. Snyder could not understand much of the conversation because
it was in Spanish, a language he is not fluent in, but he testified that he did hear
Padilla mention “money” in English. None of this conversation is audible in the video,
although conversations between the surveillance team members are.

       As Snyder continued to record the events on video, Garcia then drove to the front
door of the store where the unidentified man stood waiting. The man entered and
exited Garcia’s car alone, just as Padilla had done minutes before. Again, Snyder could
No. 05-3529                                                                      Page 3


not see if the man carried anything with him. Meanwhile, Padilla backed his Impala
into a parking spot. At this point, Garcia left. After observing the unidentified man
and Padilla leave the store together in Padilla’s car, Snyder returned to the staging
area and participated in a second search of Garcia and his car, which turned up a
pound of methamphetamine. On cross-examination, Snyder admitted that none of the
marked money that Garcia used in the transaction was recovered and that he never
saw the drugs or money exchange hands.

        David Ritchie, a special agent for the Drug Enforcement Administration,
testified next about his observation of the events from an airplane. Ritchie, using high-
powered binoculars, focused on following Padilla’s black Impala and testified that he
maintained visual contact with Padilla from his first sighting at Los Galanes to the
conclusion of the drug deal at Cueramaro Supermarket. Despite this close
surveillance, Ritchie, like Snyder, never saw Padilla handle the drugs or the money
from the controlled buy. However, Ritchie did testify that after Garcia and Padilla met
near Los Galanes, Ritchie saw Padilla drive to a nearby home, get out of his car, and
talk to the same unidentified man that Snyder would see Padilla with a few minutes
later at Cueramaro. After the two men walked together to the rear of the house,
Ritchie observed them return to the driveway where the unidentified man opened and
closed the trunk of a car parked there, but Ritchie could not see what, if anything, was
taken from the trunk. Padilla and the other man got into the black Impala, and
Padilla drove a couple of blocks before the other man exited the car. The unidentified
man walked to Cueramaro and waited by the store’s door while Padilla drove there
separately. Ritchie testified to observing the same events at the supermarket that
Synder captured on tape. The government never explained who the third man at the
drug transaction was, or why he remained unidentified.

       The government called three other members of the surveillance team, but none
of them could say either how Garcia gained possession of the methamphetamine or
what he did with the buy money. One officer testified that he maintained constant
visual contact with Garcia from the beginning of the buy until he returned to the
staging area with the drugs. That officer searched Garcia and his car before and after
the transaction and found no drugs other than the pound of methamphetamine that
turned up after the controlled purchase. Padilla was not indicted and arrested until
two months after the controlled buy.

       After the government rested, Padilla moved for a judgment of acquittal. Defense
counsel argued that without Garcia’s testimony the government had failed to link
Padilla to the methamphetamine. In response the government acknowledged that it
lacked eyewitness evidence of Padilla personally handing the drugs to Garcia or
receiving the money, but the government argued that it nonetheless had established
its case against Padilla on an aiding-and-abetting theory. The district court remarked
No. 05-3529                                                                      Page 4


that it was “deeply troubled by this record,” but still found “just barely enough of a
circumstantial case here to let it go to the jury.” The jury found Padilla guilty.

       Padilla now argues that there was insufficient evidence to establish that he
possessed the drugs or that he aided and abetted the drug transaction.1 We will
reverse a criminal conviction for insufficient evidence if, even viewing the evidence in
the light most favorable to the government, we conclude that no rational jury could
have found the defendant guilty beyond a reasonable doubt. United States v. Allen, 390
F.3d 944, 947 (7th Cir. 2004). In this case, where the government relied on an aiding-
and-abetting theory, Padilla’s conviction cannot stand unless the evidence establishes
that he (1) knew that methamphetamine was being distributed, (2) desired that the
transaction succeed, and (3) committed some affirmative act of assistance. See 18
U.S.C. § 2(a); Allen, 390 F.3d at 947-48 & 948 n.1; United States v. Folks, 236 F.3d 384,
389 (7th Cir. 2001). And while the government can secure a conviction on the basis of
circumstantial evidence, see United States v. Richardson, 208 F.3d 626, 632 (7th Cir.
2005); United States v. Irorere, 228 F.3d 816, 823 (7th Cir. 2000), it cannot make its
case by piling inference upon inference, see Piaskowski v. Bett, 256 F.3d 687, 693 (7th
Cir. 2001) (“Although a jury may infer facts from other facts that are established by
inference, each link in the chain of inferences must be sufficiently strong to avoid a
lapse into speculation.”); United States v. Covelli, 738 F.2d 847, 860 (7th Cir. 1984).

        In particular, we have noted that mere presence and guilt by association fail to
prove criminal liability under an aiding-and-abetting theory. See United States v.
Heath, 188 F.3d 916, 921 (7th Cir. 1999). In Heath we concluded that the district court
had erred in admitting under Federal Rule of Evidence 404(b) evidence of what the
government characterized as a prior drug offense that the defendant aided and abetted.
Id. at 922. Several months before the offense for which he was on trial, the defendant
and another man were arrested by police while standing in front of a house with
several other persons. Id. at 919. The other man was carrying a 35-gram rock of crack
cocaine and two baggies holding smaller rocks. Id. For his part, the defendant carried
a semi-automatic handgun and over $200 in cash, and wore a bulletproof vest. Id.
Although the government argued that this evidence was enough to establish that the
defendant had aided and abetted the other man’s possession of a distributable quantity
of crack, we concluded that the facts proved nothing more than mere presence, which
“is not evidence of guilt as an aider or abettor.” Id. at 922. The same can be said about
this case.




      1
         The clerk of the district court and Padilla’s newly appointed counsel have
mischaracterized Padilla’s conviction in the judgment and briefs as “possession with
intent to distribute.” The conviction is for distribution.
No. 05-3529                                                                      Page 5


      As Padilla observes, the government’s evidence proves that he was present
during the distribution of the methamphetamine, but that is all. Although in his brief
Padilla does not challenge the admission of Snyder’s testimony that he was the one
Garcia arranged the deal with, that testimony was met with a proper objection and
should have been excluded as inadmissable hearsay. See United States v. Williams,
133 F.3d 1048, 1051 (7th Cir. 1998) (holding that FBI agent’s trial testimony about
informant’s out-of-court statement was inadmissable hearsay). As such, it carries little
weight. The government offered no recordings or other evidence to substantiate this
representation and Garcia, of course, was unavailable to testify (or face cross-
examination) regarding the transaction.

      The remaining evidence shows only that Padilla drove to two grocery stores, at
times with an unidentified man, and mentioned money during a brief conversation
with Garcia. And this unidentified man remains a mystery; the government has never
explained why he remained unidentified even though Ritchie observed him emerging
from a particular house, or clarified if he was charged in connection with this
controlled buy. Ultimately, no evidence firmly connects Padilla to the drugs or the
money from the sale, and therefore the government presented insufficient evidence to
support Padilla’s conviction. Cf. United States v. Coleman, 179 F.3d 1056, 1059, 1061
(7th Cir. 1999) (upholding conviction for possession with intent to distribute under
aiding-and-abetting theory where evidence, though “not overwhelming,” established
that defendant was present during controlled buy, praised quality of crack, and
claimed to have taught person who prepared it how to do so); United States v. Sewell,
159 F.3d 275, 278 (7th Cir. 1998) (upholding conviction for drug distribution under
aiding-and-abetting theory where testimony established that defendant counted money
from multiple drug sales). At best this record convincingly establishes that Padilla was
present during a crime, but his presence alone does not support a finding that he aided
and abetted the drug transaction. See Heath, 188 F.3d at 922.

       The government may well be correct that Padilla and the unidentified man were
joint participants in the drug crime. But to conclude that Padilla was more than
merely present, the jury had to pile inference upon inference. See Piaskowski, 256 F.3d
at 693. The jury had to assume that Padilla knew that the unidentified man possessed
the drugs, and that Padilla drove to the grocery store to further the drug transaction,
not for unrelated, personal reasons. Only then could Padilla’s otherwise innocuous
actions of driving around be understood as affirmatively assisting a drug transaction.
Cf. Sewell, 159 F.3d 275, 278 (7th Cir. 1998) (upholding conviction for drug distribution
under aiding-abetting-theory when defendant not only drove around with dealer, but
also admitted he provided protection for dealer, and counted money from the sales).
What’s more, the fact that Padilla mentioned money to Garcia could only be proof that
Padilla knew about or assisted in the negotiations of the drug deal if the jury assumed
that the topic came up during a conversation about the drug deal. But no evidence
supports this assumption. Snyder could not provide the context of the conversation
No. 05-3529                                                                     Page 6


because it took place, almost exclusively, in Spanish, a language he could not
understand. Surely Padilla’s actions were suspicious, but unsupported inferences and
speculation cannot support a finding of guilt beyond a reasonable doubt. See
Piaskowski, 256 F.3d at 692 (“A strong suspicion that someone is involved in criminal
activity is no substitute for proof of guilt beyond a reasonable doubt.”).

      Had Garcia not died, had the surveillance team glimpsed the drugs changing
hands, or had Snyder understood the conversations between Garcia and Padilla, this
appeal might have come out differently. But as the record stands, there is insufficient
evidence to support Padilla’s conviction. Accordingly, the judgment of conviction is
REVERSED.
