U.S. v. Galvan, 81-2381

Decision Date01 December 1982
Docket NumberNo. 81-2381,81-2381
Citation693 F.2d 417
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Onesimo GALVAN, Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

E. Dale Robertson, Brownsville, Tex., for defendant-appellant.

James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, GEE and HIGGINBOTHAM, Circuit Judges.

GEE, Circuit Judge:

Appellant Onesimo Galvan, Jr. was jointly indicted with Hilario Rodriguez Reyes for conspiracy to import and importation of marihuana in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 952(a) and 963, and for conspiracy to possess and possession of marihuana with intent to distribute it in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Secs. 841(a)(1) and 846. Reyes' indictment was dismissed following his successful motion to suppress certain evidence. 1 Galvan was tried alone and convicted by a jury on all four counts. His sole contention on appeal is that the trial judge erroneously denied his motion for judgment of acquittal at the close of the state's presentation of evidence. We agree that the evidence was insufficient to support Galvan's convictions and accordingly reverse the judgment.

On January 5, 1981, two customs officers were conducting surveillance in an area known as Midway near the Rio Grande City, Texas, border with Mexico. Based upon what one of the officers described as a "hunch," they stopped a four-wheel drive vehicle driven by Hilario Reyes. The "hunch" proved to be a good one, since five bags of marihuana were discovered in open view in the back of the vehicle. The officers arrested Reyes and seized the vehicle. In its glove compartment, they found a billfold and identification papers belonging to appellant Galvan.

On January 15, 1981, Galvan went to the port of entry at Rio Grande City to claim the seized vehicle and was directed to the district office of the Drug Enforcement Administration. He did not have an automobile title in his name, but presented a cash receipt indicating that the vehicle had been purchased by his wife on December 24 1980. Galvan told officers at both locations that he had loaned the vehicle to Reyes so that Reyes could visit his mother, and that Galvan had no knowledge of Reyes' activities involving marihuana.

At trial, the state attempted to show solely by circumstantial evidence that, contrary to these assertions, Galvan participated in Reyes' criminal activities. The standard of review for sufficiency of the evidence is the same for direct and circumstantial evidence. United States v. Bell, 678 F.2d 547, 549 n. 3 (5th Cir.1982) (en banc). We must view the evidence in the light most favorable to the government and ask whether "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." Id. at 549. "We will reverse only if a reasonably minded jury must necessarily have entertained a reasonable doubt of a defendant's guilt." United States v. Vergara, 687 F.2d 57, 60 (5th Cir.1982). Having had the opportunity for measured deliberation which circumstances often deny to our brethren on the trial bench, we must conclude that the government's evidence is insufficient to dispel a reasonable doubt of Galvan's guilt on both the substantive and conspiracy counts.

The Conspiracy Counts

The essence of a drug conspiracy is an agreement to violate the narcotics laws. United States v. Vergara, supra, 687 F.2d at 60; United States v. Davis, 666 F.2d 195, 201 (5th Cir.1982). To establish such an agreement, the government has the burden to prove beyond a reasonable doubt that Galvan had "the deliberate, knowing, specific intent to join the conspiracy." United States v. DeSimone, 660 F.2d 532, 537 (5th Cir.1981) (quoting United States v. Morado, 454 F.2d 167, 175 (5th Cir.), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116 (1972)). "It is not enough for it merely to establish a climate of activity that reeks of something foul." Id. (quoting United States v. Wieschenberg, 604 F.2d 326, 332 (5th Cir.1979)).

The principal evidence relied upon by the government and the trial court to establish an agreement consisted of telephone company records of long distance toll charges. These records indicate that on January 4, 1981, the day before Reyes' arrest, three calls were made between the telephone at Reyes' residence in Houston and the telephone at Galvan's residence in San Benito, Texas. These were the first recorded calls since mid-December. No calls were recorded on January 5, the day of Reyes' arrest near the border. A telephone call from Galvan's telephone to Reyes' telephone was made on January 6, following Reyes' release from jail. The government characterized the January 4 calls as a "flurry of activity" from which the jury might infer Galvan's agreement with Reyes to commit the crimes of January 5. The absence of any calls on the day of the crime, coupled with renewed contact following Reyes' release, is apparently offered to support the inference that Galvan knew of and agreed to Reyes' activities.

We do not think the jury could reasonably find an agreement based upon this evidence. To do so, a double inference is required. First, it must be inferred that the telephone calls were actually made by Galvan and Reyes; the records establish only that the calls were between Galvan's and Reyes' residences. Second, based upon the timing of the calls and the inference that Galvan and Reyes made them, the jury must infer that the content of the conversations was the alleged conspiracy. When the government attempts to prove the existence of a conspiracy by circumstantial evidence, each link in the inferential chain must be clearly proven. United States v. Schorr, 462 F.2d 953, 959 (5th Cir.1972). Neither link was adequately proved in this case. There is absolutely nothing in the record to indicate who actually made the telephone calls. The trial judge suggested that the inference might even be stronger that Mrs. Galvan, rather than Galvan, made the calls since the evidence showed that she purchased the car loaned to Reyes.

Even if we assume that Galvan and Reyes conversed, a more significant defect in the evidence is the government's failure to prove that the subject of their conversations was a criminal agreement. The government's "flurry of activity" theory disintegrates upon close examination. The first two calls on January 4 were from Reyes' telephone to Galvan's telephone. The first was placed at 7:24 p.m. and lasted one minute; the second immediately followed at 7:25 p.m. and also lasted for only one minute. The third call was made from Galvan's telephone at 7:49 p.m. and lasted for three minutes. Defense counsel's suggestion at oral argument that the first call was a bad connection is plausible, given the timing of the calls, and is consistent with our view that these brief telephone calls are hardly a "flurry" of suspicious activity at all. Compare United States v. Vergara, supra (inference of agreement based in part upon flurry of activity which included repeated meetings between defendant and coconspirators together with direct evidence of defendant's own actions). Further, Galvan's renewed contact with Reyes following Reyes' release hardly adds support to an inference of a preexisting criminal agreement. Communication would be only natural in light of the government's seizure of the vehicle Reyes had borrowed.

It is our conviction that, viewed...

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