U.S. v. Lopez-Ramirez, LOPEZ-RAMIRE

• Decision Date: 08 November 1995
• Docket Number: D,No. 94-4144,LOPEZ-RAMIRE,94-4144
• Citation: 68 F.3d 438
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gloria Marieefendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 438

68 F.3d 438

UNITED STATES of America, Plaintiff-Appellee, v. Gloria Marie LOPEZ-RAMIREZ, Defendant-Appellant.

No. 94-4144.

United States Court of Appeals, Eleventh Circuit.

Nov. 8, 1995.

Paul M. Rashkind, Asst. Federal Public Defender, and Howard M. Srebnick, Miami, FL, for appellant.

Kendall Coffey, U.S. Attorney, Richard Getchell, Adalberto Jordan, Linda C. Hertz, and Kathleen M. Salyer, Asst. U.S. Attys., Miami, FL, for appellee.

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

Before EDMONDSON, Circuit Judge, HILL, Senior Circuit Judge, and MILLS ^*, District Judge.

EDMONDSON, Circuit Judge:

Defendant appeals her convictions and sentence for conspiracy with intent to distribute cocaine and possession of cocaine with intent to distribute. We reverse.

DEA agents, working with a confidential informant, arranged for approximately 160 kilograms of cocaine to be imported into the United States and negotiated with two men, Polaco and Turco, for the distribution of the cocaine. After performing a field test to ensure that the substance was cocaine, the agents divided the shipment and packaged about 95 kilograms in one wooden crate and the remaining 65 in another. Each crate was then equipped with two transponders that would alert the agents when the crates were opened or moved. The crates were sealed shut.

Agents placed the crate containing 65-kilograms in a Ford Explorer provided by Turco and Polaco and put the crate containing 95-kilograms crate in a Ford F-250 truck the DEA provided. Polaco drove the Explorer to a home off Griffin Road, and after about two hours, another man drove it to Miami. Later that day the Explorer was abandoned presumably because surveillance had been detected. A man named Javier drove the truck to the same Griffin Road address. Agents maintained ground and air surveillance. After an hour, a man later identified as Ramon Acosta Acevedo drove off in the truck and travelled north on I-95. Because the truck had tinted glass, agents could not see if anyone else was inside.

Agents followed the truck in cars and in a helicopter equipped with a video camera and observed that Acevedo conducted counter-surveillance maneuvers by frequently exiting and re-entering the interstate and making U-turns. Acevedo finally exited in Boca Raton. After a meandering drive through that area, including two drives down Floral Wood Lane, Acevedo stopped at 23101 Floral Wood Lane and backed the truck to a garage door. The video shows that Acevedo and an unidentifiable person exited the truck. At the time, DEA agents, however, observed only Acevedo exit. Two agents drove by and saw Acevedo unloading the crate and defendant Lopez-Ramirez standing in the garage. Acevedo then drove the truck to a church parking lot, left it there, and walked away. A white station wagon picked him up.

Surveillance of the house continued for about four hours. Agents did not know how many people were in the house but saw no one enter or exit the house, except when defendant went out once to get the mail. At about 3:00 p.m., a confidential informant notified the agents that surveillance had been detected and that the conspirators were abandoning the operation. At about 6:30 p.m., agents decided to enter the house to secure the cocaine; so six agents--clad in raid jackets and with their weapons drawn--knocked, announced, and demanded entry. Defendant opened the door and was arrested after agents conducted a sweep of the house and located the cocaine.

Following indictment and arraignment, defendant moved to suppress the cocaine and other evidence found in the house. She contended that the government's warrantless search of the house in the absence of exigent circumstances violated her Fourth Amendment right to be free from unreasonable searches. After an evidentiary hearing, a magistrate judge recommended that the motion be granted. The district court conducted another evidentiary hearing and excluded testimony that defendant was the only person in the residence and that the cocaine had been moved to the bathroom, but allowed the government to introduce the cocaine and testimony that defendant answered the door when the agents knocked. ¹

At the close of the government's case, defendant moved for judgment of acquittal which the district court denied. Defendant did not put on a defense, and the jury convicted her both of conspiracy to possess cocaine with intent to distribute and of possession of cocaine with intent to distribute. Defendant moved for post-trial judgment of acquittal and for a new trial, but these motions too were denied. Defendant appeals her convictions and sentence. ²

Defendant argues that the evidence was not sufficient for a jury to find beyond a reasonable doubt that she knowingly and voluntarily participated in the cocaine conspiracy or that she knowingly possessed cocaine with the intent to distribute it. Viewing the evidence in the light most favorable to the government, we review the sufficiency of the evidence de novo to determine whether a reasonable jury, from the evidence presented, could have concluded beyond a reasonable doubt that defendant was guilty of the crimes charged. United States v. Thomas, 8 F.3d 1552, 1555 (11th Cir.1993).

To sustain a conviction for conspiracy to possess cocaine with intent to distribute, the government must prove beyond a reasonable doubt (1) that a conspiracy existed; (2) that the defendant knew of it; and (3) that the defendant, with knowledge, voluntarily joined it. United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir.1994), cert. denied by Perez-Aguilera v. United States, --- U.S. ----, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995). To prove the substantive offense of possession of cocaine with intent to distribute, the government must establish that defendant knowingly possessed the cocaine and that she intended to distribute it. United States v. Stanley, 24 F.3d 1314, 1319 (11th Cir.1994). Where the government's case is circumstantial, as it is here, "reasonable inferences, and not mere speculation, must support the jury's verdict." Perez-Tosta, 36 F.3d at 1557.

The only evidence the...