Second Circuit Reverses Conspiracy Convictions Based on Insufficient Evidence that the Defendants Knew the Nature and Object of the Conspiracy
Being in the wrong place at the wrong time with the wrong people may sadly be enough for a jury to convict, but “suspicious circumstances . . . are not enough to sustain a conviction for conspiracy,” the Second Circuit reiterated today, in a rare reversal of drug conspiracy convictions on insufficiency grounds. In United States v. Lorenzo, 07-1435-cr (2d Cir. July 18, 2008), authored by SDNY Judge Barbara Jones sitting by designation, the Court remanded for the entry of judgments of acquittal as to a husband and wife, arrested following a controlled delivery of narcotics seized from a courier at the airport. (Disclaimer: I represented the husband at trial and, with Robert Culp, on appeal.)
In a nutshell, the sparse evidence against the two defendants consisted of the following: a courier, Francesca Leerdam, was arrested at the airport following the discovery of over three kilos of cocaine during a routine inspection of her luggage. Agreeing to participate in a controlled delivery, she made several monitored calls to her recruiter, Amauri, in the Dominican Republic, who after some indecision, directed her to call his uncle-in-law in Queens, “Julio.” Julio’s wife Andrea answered the call, told her Julio was sleeping, and directed Leerdam to their residence. Upon arrival, Andrea, clad in nightgown, greeted Leerdam and proceeded to carry one of her two suitcases into the house, telling her that she would call another taxi to take Leerdam to a nearby hotel. At this point, agents arrested Andrea, and later arrested the sleeping Julio. In post-arrest statements, Leerdam recounted an earlier trip when she had also brought a suitcase to the U.S. for Amauri. Passing through Customs without incident on this occasion, she called Amauri, who directed her to a location in Queens where she met “Ronnie.” Ronnie took her to Pennsylvania where he exchanged her suitcase for another. She was then driven back to New York, where Ronnie introduced her to both Lorenzos, who in turn, drove her to a hotel. The next morning, Julio Lorenzo arrived alone at Leerdam’s hotel room with a brown bag filled with $14,000, which he proceeded to conceal in Leerdam’s clothing in her suitcase. He told her it was for Amauri. He then took her to JFK and saw her safely off on her return flight. Throughout Leerdam’s entire encounters with the Lorenzos, there was no mention of drugs.
As to Julio, the Court found a critical element missing to sustain his convictions: “any indication from which a jury could reasonably infer that Julio knew the nature and specific object of the conspiracy.” Although there was undoubtedly a drug conspiracy, and “Julio was present at and participated in events that furthered the conspiracy,” there was “insufficient evidence to show that he did so knowingly and with the specific intent to further a cocaine smuggling and distribution conspiracy.” Moreover, the most incriminating evidence against him – his transfer of $14,000 to the courier during her first trip to the U.S. – while “suspicious” and “indicative of participation in illegal behavior . . . is consistent with participation in a wide variety of offenses, and in light of the other evidence, is insufficient to prove Julio’s intent to participate in the conspiracy charged in the indictment.”
The evidence as to Andrea was even less compelling in the Court’s eyes. Again, that evidence supported “at most an inference that Andrea knew she was assisting in suspicious behavior,” which was also “consistent with providing hospitality to her nephew’s girlfriend and regretting providing such assistance.”
Along with United States v. Wexler, 2008 WL 878582 (2d. Cir. April 3, 2008), discussed here, this is an important case on the sufficiency of the evidence necessary in conspiracy cases regarding the defendant’s knowledge of the “nature and specific object” of the conspiracy.
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