U.S. v. Soto, No. 1468

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before NEWMAN and WINTER, Circuit Judges, and MALETZ; MALETZ
• Citation: 716 F.2d 989
• Parties: UNITED STATES of America, Appellee, v. Evelyn SOTO, Defendant-Appellant. ocket 83-1099.
• Docket Number: No. 1468,D
• Decision Date: 29 August 1983

Page 989

716 F.2d 989 UNITED STATES of America, Appellee,
v.
Evelyn SOTO, Defendant-Appellant. No. 1468, Docket 83-1099. United States Court of Appeals,
Second Circuit. Argued July 12, 1983.
Decided Aug. 29, 1983.

Sylvia Peck, Legal Aid Society, Federal Defender Services Unit, New York City, for defendant-appellant.

Page 990

James R. DeVita, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., and Roanne L. Mann, Asst. U.S. Atty., New York City, on brief), for appellee.

Before NEWMAN and WINTER, Circuit Judges, and MALETZ, Senior Judge. ^*

MALETZ, Senior Judge:

Defendant-appellant Evelyn Soto appeals from her conviction on two counts of conspiracy. The first count charged Soto with conspiracy to distribute narcotics in violation of 21 U.S.C. Sec. 846; the second with conspiracy to use a firearm to commit a felony, a violation of 18 U.S.C. Sec. 371.

Soto advances three arguments on this appeal. The first relates to an allegedly erroneous evidentiary ruling regarding co-conspirator hearsay statements, see United States v. Geaney, 417 F.2d 1116 (2d Cir.1969). Another goes to a purported failure to correctly charge the jury on the elements of a conspiracy. Soto's primary claim, however, is that the evidence was insufficient as a matter of law to convict her of conspiracy. On this score, we agree and reverse the judgment of the district court.

I

The basic facts are not in dispute. At the trial the government presented the testimony of four Drug Enforcement Administration (DEA) special agents. In essence their testimony established that Soto resided in a Bronx apartment located at 2526 Bronx Park East, 5-B, which was used, in part, as a narcotics "cutting mill." ¹

The government's chief witness was DEA Agent Fred Marrero. Agent Marrero testified that in his role as an undercover agent he met the person in charge of the cutting mill--a man known as "Cheo"--on June 29, 1982. Marrero was invited up to the Bronx apartment by Cheo where a group of six persons, including Soto, gathered in the bedroom. During Marrero's half-hour visit Soto remained in the bedroom for approximately ten to fifteen minutes. The meeting was interrupted at one point by the building superintendent who came to the apartment to speak to Cheo. As Cheo got up to leave, he commented that he (Cheo) did not allow anyone into the bedroom. At the time several handguns and drug paraphernalia were in plain view. There was no discussion or mention of either narcotics or weapons by anyone during Marrero's visit.

Following a tip from a confidential informant, DEA Agents Thomas Ward and Marrero made several arrests and seized a cache of guns and drugs at the apartment in the early morning hours of July 2, 1982. At the time of the agents' entry into the apartment, Agent Ward found Soto and her young child asleep in the bedroom. A search of that room uncovered drugs, drug paraphernalia and a weapon. A search of the rest of the apartment reaped a large quantity of drugs, drug paraphernalia, cash and more weapons. Although the apartment contained a substantial amount of contraband, it is equally clear that apartment 5-B was more than just a cutting mill--it was also a domicile for several individuals, including Soto, ² being furnished with couches, sleeping cots and a television set.

Two stipulations were also made part of the record. The first provided that Soto arrived in New York from Puerto Rico on or about June 8, 1982; that she resided at 2526 Bronx Park East, apartment 5-B, from June 8, through July 2; and that apartment 5-B was leased in the name of Pablo Rodriguez but, in reality, was paid for and controlled by Cheo and his wife,

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Nancy Medina. The second stipulation specified that ledger books found during the search of the apartment were examined by government experts for fingerprints and handwriting; that Soto's fingerprints were not identified, but those of Cheo and his wife were; and that Soto's handwriting was not identified as appearing anywhere on the ledger sheets. In this connection, Marrero testified that the ledger books contained a list of Cheo's employees and their salaries, but did not contain Soto's name.

Against this background, we address Soto's principal contention that the evidence was insufficient as a matter of law to convict her beyond a reasonable doubt.

II

It is established that a defendant advancing a claim based on insufficiency of the evidence bears a very heavy burden. See, e.g., United States v. Carson, 702 F.2d 351, 361 (2d Cir.1983); United States v. Losada, 674 F.2d 167, 173 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). As this court stated in Carson:

Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560, 572 (1979); United States v. Barnes, 604 F.2d 121, 157 (2d Cir.1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). In making this determination, we must view the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704 (1942), and construe all permissible inferences in its favor, United States v....