U.S. v. Hernandez, 01-3118.

• Decision Date: 09 September 2002
• Docket Number: No. 01-3118.,01-3118.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Norma HERNANDEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 886

301 F.3d 886

UNITED STATES of America, Plaintiff-Appellant, v. Norma HERNANDEZ, Defendant-Appellee.

No. 01-3118.

United States Court of Appeals, Eighth Circuit.

Submitted: May 14, 2002.

Filed: September 9, 2002.

Jason T. Griess, AUSA, argued, Rock Island, IL (Clifford R. Cronk, III, on the brief), for appellant.

Kent A. Simmons, argued, Davenport, IA (David R. Treimer, on the brief), for appellee.

Before WOLLMAN, BRIGHT, and GIBSON, Circuit Judges.

BRIGHT, Circuit Judge.

After a jury convicted Norma Hernandez of aiding and abetting the possession with intent to distribute methamphetamine, the district court¹ granted Hernandez's motion for judgment of acquittal. The government appeals, arguing that it presented sufficient evidence at trial to allow a reasonable jury to find Hernandez guilty beyond a reasonable doubt.

I. BACKGROUND

Through an undercover informant, police purchased methamphetamine three times from a man named Jaime Marin. On February 12, 2001, the date of the third and final exchange, Marin told the informant that he had to wait until his methamphetamine delivery arrived before he could complete the transaction. Shortly thereafter, Elisandro Garcia-Melchor and Norma Hernandez arrived at Marin's residence in a white Chevrolet Cavalier. According to the police officer conducting surveillance of the house, Garcia-Melchor went between the house and the car two or three times.² After Garcia-Melchor and Hernandez departed, Marin delivered two pounds of methamphetamine to the informant. The police then arrested Marin and took Garcia-Melchor and Hernandez into custody for questioning. Police seized a cellular telephone from the Cavalier. The phone was registered in Hernandez's name.

Marin, Garcia-Melchor, Hernandez, and others were indicted in United States District Court for the Southern District of Iowa on charges of conspiracy to distribute methamphetamine pursuant to 21 U.S.C. § 846 and possession with intent to distribute methamphetamine pursuant to 21 U.S.C. § 841(a)(1). Marin and Garcia-Melchor pled guilty to various charges.³ The government filed a second superseding indictment charging Hernandez with two counts: conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846 and aiding and abetting the possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2.

At Hernandez's trial, the government presented several items seized from Hernandez's residence at 2423 23rd Avenue in Moline, Illinois, which it considered evidence of Hernandez's involvement in the methamphetamine conspiracy. In the kitchen of the residence, police found a digital scale commonly used to weigh drugs. An officer who searched the residence testified that the scale was located high up in a kitchen cabinet; the officer had to reach above his head to retrieve it. Also in the kitchen, the officers found plastic wrap "nearly identical" to the type used to package some of the methamphetamine purchased in the undercover operation. Officers found receipts for cars purchased in Hernandez's name and $14,100 cash under a bed in the residence. The government traced $4500 of that money back to serialized funds used in the undercover operation.

The government also offered the cellular telephone registered in Hernandez's name as evidence of her involvement in the conspiracy.⁴ According to Hernandez's statements to officers after her arrest, although the subscriber agreement was in her name, the phone belonged to Garcia-Melchor. The government called the cellular phone sales agent who testified that she sold a cellular phone and prepaid minute cards for the phone to Garcia-Melchor and Hernandez. The sales agent also testified that every cellular phone subscriber agreement must include the subscriber's social security number. On the phone subscriber agreement, Hernandez provided her correct name, social security number, and birth date. However, according to the government, Hernandez provided a nonexistent address on the subscriber agreement.

The address Hernandez provided in the subscriber agreement was 4066 8th Avenue, Silvis, Illinois. Hernandez had given the address 406 8th Avenue, Silvis, in certain wire transfers she made to Mexico. Hernandez, on three occasions, wired a total of $2,600 to Mexico.⁵

Evidence introduced at trial proved that Hernandez did not rent the house at 2423 23rd Avenue, Moline, until August 18, 2000, and she did not move in until September 6, 2000. Therefore, she was not residing at this location when she signed the subscription agreement on July 23, 2000. A government witness, Agent Tani Fiems, testified that 4066 8th Avenue does not exist, but the agent admitted there is a 406 8th Avenue. The agent reported that the names on the mailbox of this address were Judy and Royce Edwards. The government did not offer any evidence about whether or not the Edwards were connected to Hernandez, whether she had ever lived there, or whether she was authorized to use that address. The government did not produce Royce or Judy Edwards.

Candido Vicuna, the owner of Sands Auto Sales in Moline, testified for the government. Although it is somewhat unclear in the record, it appears that around September 2000, Vicuna sold Hernandez and Garcia-Melchor a 1990 Toyota 4-Runner, which Garcia-Melchor subsequently sold for profit, and then seven days later Vicuna sold Hernandez and Garcia-Melchor a 1991 Chevy Lumina. A month later, Garcia-Melchor returned the Lumina, according to Vicuna, "because Norma didn't like that vehicle. She liked the '91 Cutlass Supreme." (Tr. 154). Vicuna stated that Garcia-Melchor negotiated the purchase of these vehicles, but Hernandez was present. Vicuna testified that he communicated with Garcia-Melchor in Spanish because Garcia-Melchor did not speak English. Vicuna specifically told Hernandez to fill out the purchase documents and told her to put her name on the papers because it would be easier for her to get insurance and a driver's license.

The government called Mary Callahan, an employee of Premiere Properties, to testify. Callahan rented the residence at 2423 23rd Avenue in Moline to Norma Hernandez and another person identified as Jesus Aranda. Callahan testified that Aranda paid for the rent each month, and sometimes paid several months in advance. According, to Callahan's testimony, "Jesus spoke English. Norma spoke a little English also," and Callahan never had difficulty communicating with Aranda. (Tr. 126-28).⁶

The police's undercover informant, Mark Ockenfels, who made the controlled purchases from Jaime Marin, testified that he did not know Hernandez, had never seen her before, and had no knowledge of her being involved in any way with Jaime Marin. Agent Pettrone testified that in his interview with Hernandez, he asked her if she suspected that Garcia-Melchor was involved with drugs, and she said that she had never seen him either use or be in possession of any drugs. She said she had never been involved in drugs, either using or dealing, and she said that she would not know drugs if they were put on the table in front of her.

Agent Fiems testified that she interviewed Marin, and he said that Hernandez was present when he and Garcia-Melchor talked about drugs.⁷ Marin indicated that he and Garcia-Melchor did not speak in code about the drugs, but Agent Fiems did not elaborate on what was said, how it was said, or when it was said.

At the close of the government's case in chief, Hernandez moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29(a). Pursuant to Federal Rule of Criminal Procedure 29(b), the court reserved ruling on the motion until after the jury verdict. The jury found Hernandez not guilty of conspiracy but found her guilty of aiding and abetting possession with intent to distribute methamphetamine. The court granted Hernandez's motion for judgment of acquittal. This appeal followed.

II. DISCUSSION

Under Rule 29(a), a court shall enter a judgment of acquittal if the evidence presented at trial is insufficient to sustain a conviction. Fed.R.Crim.P. 29(a). "In reviewing a judgment granting a motion for acquittal, we view the evidence in the light most favorable to the Government and affirm if a reasonable jury viewing the evidence in this light must have a reasonable doubt about the existence of an essential element of the crime." United States v. Quigley, 53 F.3d 909, 909 (8th Cir.1995).

When a district court considers a motion for acquittal, it does so with "very limited latitude" United States v. Thompson, 285 F.3d 731, 733 (8th Cir.2002) (citations and internal quotations omitted). The court should not assess the credibility of the witnesses or weigh the evidence. Id. In the instant case, the government argues that the district court erred by determining the government did not present sufficient evidence to prove that Hernandez aided and abetted the possession with intent to distribute methamphetamine.⁸ We disagree.

To convict Hernandez of aiding and abetting the possession with intent to distribute methamphetamine, the government had to prove beyond a reasonable doubt that Hernandez: (1) associated herself with the unlawful venture; (2) participated in it as something she wished to bring about; (3) sought by her actions to make it succeed; and (4) shared the criminal intent of the principal. United States v. Brownlee, 890 F.2d 1036, 1038 (8th Cir.1989).

The district court found that there was enough evidence to permit "a reasonable person to conjecture that defendant knew what was going on and in some fashion assisted Mr. Garcia-Melchor in committing the crime." (App.A-10). However, mere conjecture is not enough to overcome the burden of reasonable doubt.

The district court granted Hernandez's motion for judgment of acquittal based on a number of factors, including: (1) no direct evidence that Hernandez ever knew that Garcia-Melchor possessed...