U.S. v. Espaillet

• Decision Date: 18 August 2004
• Docket Number: Docket No. 03-1277(XAP).,Docket No. 03-1202(L).
• Citation: 380 F.3d 713
• Parties: UNITED STATES of America, Appellant-Cross-Appellee, v. Elbio ESPAILLET and Martin Calderon, Defendants, Gerald Alfonso, Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

380 F.3d 713

UNITED STATES of America, Appellant-Cross-Appellee, v. Elbio ESPAILLET and Martin Calderon, Defendants Gerald Alfonso, Defendant-Appellee-Cross-Appellant.

Docket No. 03-1202(L).

Docket No. 03-1277(XAP).

United States Court of Appeals, Second Circuit.

Argued March 8, 2004.

Decided August 18, 2004.

Appeal from the United States District Court for the Southern District of New York, Kimba M. Wood, J.

COPYRIGHT MATERIAL OMITTED

Helen Cantwell, Assistant United States Attorney (James B. Comey, United States Attorney for the Southern District of New York, Celeste L. Koeleveld, Assistant United States Attorney, on the brief), New York, N.Y. for Appellant-Cross-Appellee.

Richard E. Signorelli, New York, N.Y. for Defendant-Appellee-Cross-Appellant.

Before: WALKER, Chief Judge, CARDAMONE, KEITH,¹ Circuit Judges.

JOHN M. WALKER, JR., Chief Judge.

The government appeals the judgment of the United States District Court for the Southern District of New York (Kimba M. Wood, District Judge), granting defendant Gerald Alfonso's motion for an acquittal notwithstanding the verdict, pursuant to Federal Rule of Criminal Procedure 29. The district court found that the government's evidence was insufficient to prove Alfonso's knowledge of and intent to participate in a cocaine conspiracy in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846, violations the jury found beyond a reasonable doubt. Finding the evidence sufficient to support the jury's verdict upon our de novo review, we reverse the district court's judgment and reinstate the jury verdict.

Alfonso cross-appeals the district court's order insofar as it denied him a conditional new trial if we reinstated the jury verdict. Finding no abuse of discretion in this decision, we affirm this aspect of the district court's decision.

THE GOVERNMENT'S APPEAL

I. FACTS

Because the appeal turns on whether there was sufficient evidence from which a jury could conclude that Alfonso joined co-defendants Elbio Espaillet and Martin Calderon in a conspiracy to distribute narcotics and the possession of narcotics with intent to distribute them, we recite the facts of this case in some detail.

After a cooperating witness, Daisi Torres, was unsuccessful in getting Espaillet to sell her drugs, Torres told Espaillet that she had a male friend who wanted to buy cocaine and ecstasy. On April 3, 2002, Torres and the "male friend," in reality Drug Enforcement Agency ("DEA") informant Rene Rodriguez, met at the DEA offices where Torres called Espaillet and arranged to introduce her "friend" to him that afternoon.

After that call but before the meeting, Espaillet paged Calderon at 2:42 p.m. Nine minutes later, a call was placed to Espaillet (presumably by Calderon) on a cellular telephone regularly used by Alfonso.² Within the next hour, three more calls were made between the cellular telephones belonging to Espaillet and Alfonso. Other than Espaillet's original page to Calderon, neither Espaillet's nor Alfonso's cellular telephones paged Calderon nor called Alfonso's home.

The meeting with Espaillet

At about 3:45, Torres and Rodriguez, who was wearing a recording device, met Espaillet at a particular Gaseteria gas station in upper Manhattan. After discussing deals in both cocaine and ecstasy, Espaillet told Rodriguez that he had a kilogram of cocaine presently available. Espaillet then placed a call on his cellular telephone to his self-described "source," commenting to Rodriguez, "they come from far." He offered the kilogram to Rodriguez for $23,000. During the discussions, Espaillet told Rodriguez that he would be able to test the cocaine. While Rodriguez pretended to call the person holding the money, Espaillet spoke to his "source." Both Espaillet and Rodriguez then exchanged various telephone numbers.

After Rodriguez expressed interest in the deal, Espaillet pressed for a second meeting within 30 to 45 minutes. The tape of the conversation was partly unintelligible, but Rodriguez testified that he understood that he would be a lone buyer while three people would be on the selling side. At the meeting, he said to Espaillet "it's gonna be ... it's gonna be three niggers for one nigger. You know what I'm saying?" At trial, Rodriguez said he used the term "nigger" to refer to "homeboys, guys, friends [and] buddies." Espaillet offered reassurance: "You don't got to worry or nothin' `cause,' cause I'm going to have my shit there and I'll give you ... you can touch it, you can do whatever." Espaillet also suggested the Gaseteria as a meeting place or "wherever you say." During the meeting, Espaillet's cellular telephone called Alfonso's cellular telephone at 3:51 p.m. Thereafter, until 5:04 p.m., two more calls were made between Alfonso's cellular telephone and Espaillet's cellular telephone.

Subsequent telephone calls

The meeting between Rodriguez and Espaillet presumably ended before 4:50 p.m. because that time marked the first of a series of calls and pages to numbers provided by Rodriguez; sixteen calls or pages were placed to Rodriguez, until 6:37 p.m., from the cellular telephones belonging to Espaillet and Alfonso.

At some point, Rodriguez returned the calls and pages by calling Espaillet from a pay phone. Espaillet said he wanted to do the deal that night. Rodriguez, following guidance from DEA, tried to delay the transaction until the next day by telling Espaillet that he only had $18,000 of the $23,000 purchase price. Espaillet replied that Rodriguez could pay him the $5,000 balance the following day.

Thereafter, Rodriguez met with a DEA agent and, at about 6:37 p.m,³ had a recorded telephone conversation with Espaillet. When Rodriguez said he would meet him in 35-45 minutes, Espaillet responded: "I can't wait that long, because I got my people with that shit here. You know? And they ... they can't wait that long; they got things to do man."

Calderon then got on the phone with Rodriguez and asked, "Is this a sure thing or what?" After Rodriguez reiterated to Calderon that he was still short some of the money but could pay the balance the next morning, Calderon stated "O.K. `Cause I got this shit in the car, I got my boy in the car with me...." Rodriguez testified to his understanding that this was a reference to the kilogram of cocaine. Rodriguez indicated that he wanted to inspect the drugs. Calderon responded: "It's all sealed up still. I'll open it up for you, bro. You can look at it as much as you'd like."

The meeting at which the transaction took place

At about 8:00 p.m., Rodriguez arrived at the Gaseteria, the pre-arranged meeting place, wearing a recording device. Thereafter, a dark car with tinted windows pulled in and backed into a parking space. After ten minutes Espaillet emerged, went to Rodriguez, and took him to the car. Rodriguez entered the rear seat on the passenger side; Espaillet was next to him on the rear seat. Calderon was in the right passenger seat and appellee Alfonso sat in the driver's seat. Rodriguez described Alfonso as wearing a hooded sweatshirt and looking from side to side and at Rodriguez in the rear view mirror.

Upon entering the car, Rodriguez asked about the availability of ecstasy pills, to which Calderon replied, in substance, that they could be obtained. Rodriguez then, referring to the cocaine, asked: "You show it to me ... show it to me." Calderon reached down "from underneath him," pulled out a brick-shaped package, and held it between the two front seats occupied by Calderon and Alfonso. The package was a white powdery substance wrapped in tape, with a small open flap on top. Rodriguez testified that it looked like a "kilo[gram] of cocaine." After Calderon invited Rodriguez to "check it out as much as you'd like," Rodriguez put his finger in the opening near the flap and pretended to taste what he thought looked like cocaine. At this point, all three of the selling group looked at Rodriguez while he pretended to taste the cocaine. Rodriguez testified that each wore an expression of "[l]ike surprise, like in shock, like worried." He further testified that they "were looking at [him], like, in the face. [He] could tell like they were surprised in that the moment when [he] was trying to taste it ... the face of the three guys they looked like they were scared like something is happening that moment."

After Rodriguez said he would make the purchase, Calderon returned the package "underneath his feet where he had it before." Rodriguez then observed Alfonso talking on a cellular telephone and whispering to Calderon. When Calderon offered to meet on Riverside Drive to collect the money, Rodriguez declined the offer, said he would be right back, and left the car. He then gave an arrest signal and DEA agents arrested Alfonso, Calderon, and Espaillet while they were still in the car. An agent recovered the package, described by another agent as brick-shaped. The parties stipulated that it contained one gram of cocaine or less with the remainder a non-narcotic substance. Alfonso did not testify or present any evidence at trial.

The jury verdict

The jury, after one day of deliberation, convicted Alfonso on two counts: (i) conspiracy to distribute and possess with the intent to distribute cocaine; and (ii) distributing and possessing with intent to distribute cocaine. The jury acquitted Alfonso on a third count: conspiracy to steal money and property belonging to the United States.

The Rule 29 motion

The district court granted Alfonso's Rule 29 motion, which claimed that the evidence was insufficient to prove that he knew that the brick-shaped package in the car contained cocaine. He argued in his Rule 29 motion that there was an "equal inference" that he had been "duped" by his co-defendants.

The government appeals.

II. DISCUSSION

We review the district court's judgment of acquittal notwithstanding the verdict de novo. United States v. Reyes, 302 F.3d 48, 52 (2d Cir.2002). In reviewing an acquittal by the district...