United States v. Zavala , 190 F. App'x 131 ( 2006 )

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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"USA v. Zavala" (2006). 2006 Decisions. Paper 847.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/847
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL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