U.S. v. Ramos-Rascon, RAMOS-RASCO

• Citation: 8 F.3d 704
• Decision Date: 02 November 1993
• Docket Number: 92-10154,GONZALEZ-VILLEGA,RAMOS-RASCO,D,Nos. 92-10153,s. 92-10153
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Reneefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alejandroefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 704

8 F.3d 704

UNITED STATES of America, Plaintiff-Appellee, v. Rene RAMOS-RASCON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Alejandro GONZALEZ-VILLEGAS, Defendant-Appellant.

Nos. 92-10153, 92-10154.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 1993.

Decided Nov. 2, 1993.

Fernando Fajardo, Tucson, AZ, for defendant-appellant Rene Ramos-Rascon.

Randolfo V. Lopez, Lopez & Perez-Medrano, P.C., Tucson, AZ, for defendant-appellant Alejandro Gonzalez-Villegas.

David A. Kern, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee U.S.

Appeal from the United States District Court for the District of Arizona.

Before: FLETCHER, REINHARDT, and NOONAN, Circuit Judges.

REINHARDT, Circuit Judge:

Rene Ramos-Rascon and Alejandro Gonzalez-Villegas appeal their convictions for conspiracy to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We hold that insufficient evidence exists to support their convictions, and reverse. ¹

A. Background

Some time before November, 1990, law-enforcement officers in Tucson, Arizona, began investigating the criminal organization headed by James Piar, a large-scale supplier of cocaine and marijuana. In May, 1991, authorities arrested a member of the Piar organization and persuaded him to turn informant.

Following their instructions, the informant arranged for undercover agents to purchase one kilo of cocaine from the Piar organization. It is undisputed that Ramos-Rascon and Gonzalez-Villegas were not present at the site of this transaction, that their names were never mentioned in the course of the negotiations or other dealings, and that their fingerprints were not found on the wrappings that enclosed the drugs. In fact, there is no evidence connecting them in any way with the transaction.

Eight days later, again through the informant's efforts, the Piar organization and the agents agreed to a second cocaine transaction, this one for 200 kilos. Members of the organization proposed the following terms: the agents were to buy five kilos of cocaine, and, an hour later, an additional 195 kilos. When the agents agreed to these terms, the date, time, and location of the five-kilo delivery were decided upon and communicated to members of the organization. Even under the government's allegations, Ramos-Rascon and Gonzalez-Villegas played a minor role in the transaction. However, they were among the fourteen people arrested after the delivery of the five kilos.

Despite the six months or more of solid investigation, and the inside information provided by the informant, law enforcement officials were unaware until the day of their arrest that Ramos-Rascon and Gonzalez-Villegas existed. Neither the informant nor any government agent had ever seen or heard anything about them, until that day. In fact, the informant did not even learn their names until their trial.

At trial, the government introduced the following evidence: (1) Ramos-Rascon and Gonzalez-Villegas were present when some of the members of the Piar organization discussed among themselves the terms to be offered to the undercover government agents in connection with the second cocaine deal. They said nothing during the meeting, and no one spoke or referred to them. (2) Ramos-Rascon and Gonzalez-Villegas rode in a truck with a member of the conspiracy, Gonzalez-Villegas driving, that followed closely behind the truck that transported the five kilos of cocaine to the hotel where the transaction was to take place. The appellants looked alertly around as they drove. (3) En route to the hotel, the informant was told that some of the proceeds from the sale of the cocaine would be paid to "Lopez and his people." The person in the truck with Ramos-Rascon and Gonzalez-Villegas was named Omar Stewart-Lopez. (4) The appellants' truck overshot the entrance to the hotel parking lot taken by the truck carrying the cocaine, entered the parking lot at a different entrance, and drove back through the lot, parking near the agents' hotel room. (5) At the hotel, Ramos-Rascon and Gonzalez-Villegas sat on a wall, chatting desultorily and looking intently at passing cars, while the cocaine deal was consummated inside. (6) Gonzalez-Villegas tried to run away when officers arrested him. He was caught at the scene. ²

Ramos-Rascon and Gonzalez-Villegas were both convicted of conspiracy to distribute cocaine and possession of cocaine with the intent to distribute. They were both sentenced to two concurrent ten-year prison terms and two concurrent five-year terms of supervised release. They are currently incarcerated.

B. Conspiracy to Possess with Intent to Distribute

No one disputes that members of the Piar organization conspired to possess cocaine with the intent to distribute it. The issue is whether the government proved beyond a reasonable doubt that Ramos-Rascon and Gonzalez-Villegas knowingly participated in the conspiracy. "Once the existence of a conspiracy is established, evidence of only a slight connection [to the conspiracy] is necessary to support a conviction of knowing participation in that conspiracy." United States v. Sanchez-Mata, 925 F.2d 1166, 1167 (9th Cir.1991) (quoting United States v. Cuevas, 847 F.2d 1417, 1422 (9th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1122, 103 L.Ed.2d 185 (1989)). However, that connection must be proved beyond a reasonable doubt. We now consider whether the government proved beyond a reasonable doubt that the appellants played a role in the conspiracy and that the nature of their role was as the government described it.

The government's theory is that Ramos-Rascon and Gonzalez-Villegas engaged in countersurveillance, acting as lookouts and enforcers for the conspirators. We note as an initial matter that this theory is substantially undermined by the testimony of the government's own witnesses. Several law enforcement officers stated at trial that those engaged in countersurveillance for drug dealers commonly possess weapons and communicative devices. However, neither Ramos-Rascon nor Gonzalez-Villegas possessed any means of discovering unwanted observers, alerting co-conspirators to the presence of intruders, or warding off rival dealers or law enforcement agents. Neither man possessed any weapon, or any "electronic tracking device used to detect the presence of surveillance," cf. United States v. Normandeau, 800 F.2d 953, 955 (9th Cir.1986), or any form of communication such as a walkie-talkie, a mobile phone, or even a whistle. If their role was to engage in countersurveillance and act as enforcers, they were outstandingly ill-equipped for the task.

1. Evidence of Countersurveillance

The government's evidence regarding countersurveillance concerns the appellants' conduct during the drive to the undercover agents' hotel, where the agents were to purchase the five kilos of cocaine, and in the hotel parking lot while the transaction was consummated inside.

The appellants' truck drove closely behind that of the informant, who carried the cocaine. However, this is of minimal importance. Even in conjunction with the government's other evidence, it is not sufficiently probative of countersurveillance. Unlike the defendants in United States v. Ocampo, 937 F.2d 485, 487-88 (9th Cir.1991), for example, Ramos-Rascon and Gonzalez-Villegas did not "change[ ] lanes abruptly, enter[ ] a restaurant parking lot, and just s[i]t, not in any parking space, watching traffic.... ma[k]e U-turns, dr[i]ve up and down several streets, and stop[ ] to observe passing traffic." Instead, the appellants tailgated. This does not demonstrate more than an anxiety not to lose sight of the informant's truck.

Although the appellants' truck overshot the hotel entrance and drove into the lot at a different entrance than the informant's truck, its drive through the hotel parking lot is, at best, of only borderline significance. The appellants' truck did not "pass[ ] through [the] parking lot, ... circle[ ] back.... exit[ ] the lot, and proceed[ ] to make three laps along the same route," as the countersurveillance vehicle did in United States v. Mares, 940 F.2d 455, 457 (9th Cir.1991). It drove directly to a parking spot near the front of the hotel, and parked. The movements of the truck are simply not unequivocal enough for us to say that the appellants were engaged in countersurveillance when they passed the hotel entrance and cut back through the parking lot.

The appellants' truck parked near the undercover agents' hotel room. This might be of more than minimal importance had the appellants stayed inside the truck, or had they left the truck's motor running after they got out. However, they did neither of these things--they parked the truck, meandered off, and finally sat on a wall, chatting and gazing around.

Finally, the appellants engaged in what the government characterizes as "hyper-vigilant" behavior: they rubbernecked during part of the drive to the hotel, and cast intent glances at passing cars as they lounged on the wall in the hotel parking lot and chatted desultorily. ³ We have found far more substantial evidence of countersurveillance to be insufficient to support a conviction. In United States v. Cloughessy, 572 F.2d 190 (9th Cir.1977), discussed with approval, United States v. Penagos, 823 F.2d 346, 350 (9th Cir.1987), we reversed the conviction of a defendant who followed two undercover Drug Enforcement Agency officers to a restaurant during a break in negotiations over a narcotics transaction, drank beer there until the officers left, tailed one of the officers when he retrieved the purchase money for the deal, and reported his findings to the conspirators. Ramos-Rascon and Gonzalez-Villegas did no more than follow closely the truck ahead of them and look alertly around during part of the drive and while they waited in the...