The Ecstasy and the Ecstasy

United States v. Ogando, No. 05-0236-cr (2d Cir. October 20, 2008) (Kearse, Calabresi, Sack, CJJ)

Francisco Ogando, a licensed livery cab driver, was convicted of participating in an ecstasy importation and distribution conspiracy. On appeal, the circuit held that the evidence was insufficient.

Background

Angel Gomez, a drug courier, was arrested at Kennedy Airport with ecstasy that he had imported from Belgium, and agreed to cooperate. He told the agents that he was supposed to call “Frank” - defendant Ogando - on arrival. He did so, and Ogando said he was right near the airport. Ogando found Gomez and brought him to his car. They did not discuss drugs, money or where they would be going, and were arrested before they got into Ogando’s car.

Ogando was found to have a cellphone - Gomez had been given that number by his handlers - a business card that mentioned Brussels and noted what Gomez would be wearing, and other papers with the names and telephone numbers of other conspirators, some of whom Ogando was related to. In a post-arrest statement, Ogando told the agents that he was at the airport because a friend named Alex - another co-conspirator - had asked him to pick up someone at the airport. He falsely declared that he did not know Alex’ last name, and also said that he did not know any of the other conspirators and did not know why their names and numbers were found in his car.

Other evidence showed that Ogando had been in the Philadelphia area when one of the conspirators was arrested there, and that after that arrest, Ogando made several calls to others associated with the scheme.

The Circuit’s Ruling

The court began by noting that, to prove conspiracy or aiding and abetting, the government must show more than “evidence of a general cognizance of criminal activity, suspicious circumstances, or mere association with others engaged in criminal activity.” All of the counts of which Ogando was convicted required a showing of specific intent - that he “consciously assisted the commission of the specific crime in some active way.”

Where the alleged conspirator is a driver, there must be more evidence than a co-conspirator’s testimony that he was to meet the driver at the airport and the driver’s actual presence there. Simply “waiting for someone qt an airport, even under ... suspicious circumstances ... is not by itself an act from which knowing guilty involvement can be reasonably inferred.” Here, the court held, that was all, in essence, the government proved.

Nothing about Ogando’s presence was in any way out of the ordinary for a livery cab driver meeting a passenger at the airport. And his personal relationship with some of the conspirators simply explained why they hired him as a driver, rather than someone else. It did not show that he “knew the nature of the conspirators’ business.” Thus, this evidence was probative of the co-conspirators’ state of mind, but not Ogando’s. Moreover, the evidence that Ogando was in Philadelphia when another participant was arrested indicated that Ogando was there to pick him up, but still did not prove that he knew the nature of the conspiracy. It simply showed that “Ogando was a livery cab driver regularly used by members of this conspiracy.”

Finally, Ogando’s false exculpatory statements on arrest could not fill the void. Although circumstantial evidence of a consciousness of guilt, “falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant’s innocence as it is to the government’s theory of guilt.”

Comment

This is a great victory for Ogando. Sadly, he had completed his 30-month sentence by the time he won his appeal. Indeed, this case seems to have taken an unusually long time to get to this point - the conduct occurred in 2002, the appeal has a 2005 docket number, but was not heard until 2008. The opinion contains no explanation for the delay.

Buyer's Remorse

United States v. Hawkins, No. 07-3018-cr (2d Cir. October 16, 2008) (Straub, Raggi, CJJ, Sessions, DJ)

Alex Luna sold drugs in Danbury, Connecticut, from 2002 to 2005. Warren Hawkins was convicted, after a jury trial, of one count of conspiring with Luna to distribute less than 500 grams of cocaine and less than five grams of crack. After the verdict, the district court granted Hawkins’ Rule 29 motion, finding that, although Hawkins bought drugs from Luna with intent to resell them, there was insufficient evidence to establish that Hawkins participated in Luna’s conspiracy. On the government's appeal, the circuit reversed.

Background

In February 2005, Hawkins spoke with a another Luna co-conspirator about purchasing five grams of cocaine. They discussed price, quality, and how Hawkins would raise the money, but the sale did not take place. A few days later, Hawkins spoke with Luna and said that some of his co-workers were looking for drugs; they agreed on a quantity, 3.5 grams, and the sale was completed. Five days later, Hawkins purchased 7 more grams from Luna. Six days after that, Hawkins called Luna and asked him to sell him 3.5 grams on credit. Hawkins said he would sell the drugs to the customer and immediately repay the debt. This sale did not take place.

One co-conspirator testified that Hawkins was an addict who bought drugs, but was neither a drug dealer nor a member of the Luna organization. This witness characterized Hawkins as a “go-between.”

The Circuit’s Decision

The court began its analysis with a discussion of the “buyer-seller rule,” under which a mere buyer-seller relationship “is insufficient to establish a conspiracy” because there is no agreement to “advance any joint interest.” However, while the existence of buyer-seller relationship alone does not establish a conspiracy, if there is additional evidence showing an agreement to join together and accomplish an objective beyond the sale transaction, the evidence can support a finding that the parties participated in a conspiracy. Some of the factors that should be considered on this question are the length of the parties’ affiliation, the level of mutual trust, standardized dealings, sales on credit, and the quantities involved. However, even evidence that a buyer intends to resell the product instead of personally consuming it does not necessarily establish that the buyer has joined the seller’s distribution conspiracy, because more is required than “mere knowledge of the purpose of the conspiracy.”

Here, however, it was clear that (1) the Luna conspiracy existed, (2) Hawkins knew about it, (3) purchased drugs from it, (4) intended to resell at least some of the drugs, and (5) Luna knew this. The court found that these last two factors constituted sufficient evidence that Hawkins participated in Luna’s conspiracy by entering into a distribution agreement with Luna himself that “afforded Hawkins a source of cocaine and Luna another outlet - albeit small - for his contraband.” Moreover, the evidence supported an inference that Hawkins was “not freelancing;” but rather that he “agreed to engage in this conduct with Luna on an ongoing basis” and that “Hawkins and Luna trusted each other to work together as supplier and street-level dealer.”

Hawkins purchased drugs, or sought to, from Luna on several occasions within a short time. He brought potential customers to Luna’s attention, made arrangements with Luna to obtain cocaine for resale, and used the cellphone number that Luna had given him. There was also a level of mutual trust - Hawkins indicated that he preferred Luna over other local dealers and Luna agreed, at least in principle, to extend credit to Hawkins. This conduct established sufficiently that Hawkins was more than a mere “go-between.”

No Sale

United States v. Wallace, No. 05-1424-cr (2d Cir. July 8, 2008) (Jacobs, Kearse, Katzmann, CJJ)

This short opinion holds that a drug purchaser who shares drugs with others socially commits a distribution offense, even though the defendant lacked a commercial purpose, because a distribution can take place without a sale. This is entirely consistent with the statutory language, under which “distribute” means “deliver,” which in turns means “transfer.”

The court also considered, and rejected, two novel arguments.

First, Wallace cited Lopez v. Gonzales, 549 U.S. 47 (2006), to support his claim that proof of commercial dealing is required. Lopez construed the phrase “drug trafficking crime” as used in the immigration statutes, and concluded that “commerce” had to be part of the offense. But that case construed a term - “trafficking” - that is not used in the statute under which Wallace was convicted.

Wallace also sought support in longstanding precedent holding that there is no distribution, where two individuals jointly acquire a drug for their own use. Wallace was not a simple “joint possessor.” He testified that he gave drugs to others that he had previously purchased on his own.