U.S. v. Wiseman

• Decision Date: 03 June 1994
• Docket Number: No. 93-10097,93-10097
• Citation: 25 F.3d 862
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Keith WISEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 862

25 F.3d 862

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Keith WISEMAN, Defendant-Appellant.

No. 93-10097.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 10, 1994.

Decided June 3, 1994.

Joel C. Parris, Asst. Federal Public Defender, Tucson, AZ, for defendant-appellant.

Virginia C. Kelly, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before ALARCON and FERNANDEZ, Circuit Judges, and HILL, District Judge. ¹Opinion by Judge HILL; Dissent by Judge ALARCON.

IRVING HILL, District Judge:

Defendant Kenneth Keith Wiseman and four others, Vizcarra, Lopez, Murphy and Branson, were indicted in a two-count indictment for narcotics offenses. Count one charged possession of marijuana with intent to distribute it. 21 U.S.C. Sec. 841 (1988). Count two charged conspiracy to possess marijuana with intent to distribute it. 21 U.S.C. Sec. 846 (1988). The four defendants, other than Lopez, were tried together. Lopez was a fugitive. Vizcarra and Murphy were convicted of both charges. Wiseman and Branson were acquitted on the possession charge but convicted on the conspiracy charge.

Wiseman appeals the conspiracy conviction on the sole ground of insufficient evidence. We reverse his conviction, finding that there was not sufficient evidence to allow a rational jury to find him guilty of the charge beyond a reasonable doubt.

I. THE TESTIMONY OFFERED AGAINST WISEMAN

The trial consisted almost entirely of the government's case. The only defense evidence was the brief testimony of one defendant, Murphy, and two character witnesses. Murphy's testimony included testimony exculpating Wiseman. It is worth summarizing the government case and describing in detail all of the government's evidence tending to implicate Wiseman.

While working as a DEA informant in May 1992, in Tucson, Arizona, Frank Rendon was contacted, at about the same time, by two persons, co-defendants Lopez and Vizcarra. Lopez told Rendon that he was interested in buying a quantity of marijuana and Vizcarra told Rendon that he had a quantity of marijuana available which he would sell. The DEA gave Rendon permission to set up a transaction between Lopez and Vizcarra. A plan was developed whereby the seller would load the marijuana into a car which the buyer was to furnish. Rendon called Lopez, the buyer, and told Lopez to deliver a car for this purpose to Rendon's house. Lopez, in the company of co-defendant Murphy, brought to Rendon's house a Grand Marquis automobile belonging to Murphy. Murphy was known to Rendon; she had driven marijuana-loaded cars for Rendon in previous transactions. Under the plan, Vizcarra, the seller, was to pick up the car from Rendon's house, take it to another location and load the marijuana into it. When it was loaded, Vizcarra would tell Rendon when and where to pick up the car. Lopez, the buyer, told Rendon that Murphy and Murphy's daughter, Pam Branson, would pick up the loaded car and drive it away for him.

On May 14, 1992, the Grand Marquis, at Rendon's house as per the plan, was picked up by Vizcarra. It was under DEA surveillance. Vizcarra drove the car into a residential property at 2848 Cottonwood Lane. The agents were not able to see what was done to the car thereafter and did not observe its being loaded with marijuana. On the same evening, Vizcarra again met with Rendon, got into Rendon's car with him, and directed Rendon to drive to the Cottonwood Lane address, where Vizcarra told Rendon that the Grand Marquis was parked and loaded. Rendon could see the Grand Marquis on the premises.

Later the same evening, Rendon drove Lopez to the Cottonwood address and showed him where on the premises the Grand Marquis was parked. Rendon then took Lopez to a bar so that the latter could, by telephone, tell Murphy to come and pick up the loaded car and where to find it.

At about 7:15 P.M. of the same evening, a Cadillac came to the Cottonwood Lane address. In it were three persons: Murphy and her daughter, Branson, who as stated, had been designated to drive the loaded Grand Marquis away, and defendant Wiseman. Branson was driving the Cadillac. DEA agents were surveilling the Cottonwood Lane property and saw the Cadillac approach. They later saw the Grand Marquis being driven out of the premises with Wiseman driving and Murphy as passenger. DEA agents followed the Grand Marquis to a house at 4902 Massingale Road. Branson resided there. The Grand Marquis, with Wiseman still driving, was parked in the carport at the rear of the Branson house at about 7:35 or 7:40 P.M. A DEA agent, who had been surveilling the movements of the Grand Marquis, testified that Wiseman drove down Massingale Lane "approximately three times slowly by two or three different streets" before finally parking the car. But the same DEA agent, on cross-examination, said that there was nothing surreptitious, secret or unusual about the route taken or the way the car was driven.

Between 8:30 and 9:00 P.M., Lopez showed up at Rendon's house and told Rendon that Murphy was staying away from the loaded car because there was a "problem". The problem was the suspicion that there was "heat" on the car.

The loaded car remained under surveillance at Branson's house but was not picked up by anyone or even approached by anyone until after 9 P.M., by which time some co-defendants had been arrested at another location.

There was apparently no surveillance of Wiseman and Murphy after they parked the Grand Marquis at Branson's house on Massingale Road. Moreover, there had apparently been no surveillance of the Cadillac after it had earlier dropped Murphy and Wiseman off at the Cottonwood Lane property. At about 9:00 P.M., DEA agents again spotted the Cadillac on Massingale Road. They followed it to a Circle K parking lot. Murphy, Branson and Wiseman were in it along with a grandson of Murphy's. All four occupants were arrested at the Circle K parking lot at about 9:15 P.M., and thereafter the agents drove all of the arrestees back to Branson's house. They were kept in a van and apparently could not see what was happening. The loaded Grand Marquis was thereafter seized and the trunk was opened to reveal the marijuana. A DEA agent testified that he could smell the marijuana from outside of the car before the trunk was opened and he could smell an even stronger marijuana smell when seated inside the car. After the marijuana was found, the Branson house was searched. No marijuana was found therein.

The arrestees were taken to a DEA office at about 11:00 P.M. The arresting agent testified that he had told Wiseman only that Wiseman had been arrested on a narcotics charge without mentioning any specific substance. At the DEA office, Wiseman asked a different agent if the agents had found anything at the house. The agent replied that he did not understand what Wiseman was talking about. Wiseman then asked if they found any marijuana at the house.

The government's case did not contain any evidence that mentioned Wiseman in any way or in any connection, prior to the time he was seen driving the Grand Marquis to Branson's house on Massingale Road. Rendon, the informant who had made all of the arrangements with both sides, testified he had never heard of Wiseman. No evidence was offered that any DEA agent had ever heard Wiseman's name prior to his arrest or that Wiseman took any part in any of the conversations in which arrangements were made. Nor was Wiseman's name even mentioned in any of such conversations. There was no testimony from which it could even be inferred that Wiseman knew what marijuana smelled like and no testimony that Wiseman actually smelled the odor in the car.

As previously stated, Murphy took the stand in her own defense, and her testimony exculpated Wiseman. She described Wiseman as a family friend who "grew up" (apparently as close friends) with her children. Presently Wiseman was helping her maintain a rural six-acre property. She testified that Wiseman had come along in the Cadillac to fetch the Grand Marquis at her invitation and had offered to drive it back from the Cottonwood address. She accepted his offer because she did not like driving at night. Rendon testified that Lopez earlier had told him that Murphy did not like to drive at night because of eye problems. ²

II. ANALYSIS

Wiseman does not challenge the existence of a conspiracy involving his co-defendants. He only challenges the sufficiency of the evidence connecting him to the conspiracy. "In considering a challenge to the sufficiency of the evidence, we consider 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Bautista-Avila, 6 F.3d 1360, 1362 (9th Cir.1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). To support a conviction of conspiracy, "[e]vidence has to be produced to show that [the person charged as a co-conspirator] had knowledge of the conspiracy and acted in furtherance of it. Mere casual association with conspiring people is not enough." Bautista-Avila, 6 F.3d at 1362 (quoting United States v. Cloughessy, 572 F.2d 190, 191 (9th Cir.1977)). But where there is evidence establishing the existence of a conspiracy, if the government is able to establish even a slight connection with the conspiracy beyond a reasonable doubt, it is sufficient to support a conviction. Id.

The totality of the government's evidence against Wiseman, even giving all reasonable intendments to that evidence, is not enough to warrant a rational jury determining that he had knowledge of this conspiracy and acted in furtherance of it.

The evidence against Wiseman consists of three disparate pieces: (1) he drove a car which had been loaded with marijuana and which was described...