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United States v. Anderson

United States Court of Appeals, Second Circuit

March 4, 2014

UNITED STATES OF AMERICA, Appellant,
v.
CHEYENNE ANDERSON, Defendant, ROOHID HAKIMI, aka Roehid Hakimi, Defendant-Appellee

Argued May 25, 2012

Petition for certiorari filed at, 06/02/2014

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[Copyrighted Material Omitted]

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Appeal from a judgment of the United States District Court for the Northern District of New York (David N. Hurd, Judge), granting Defendant-Appellee Roohid Hakimi's motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. We hold that the record contains sufficient evidence from which a rational fact-finder could find that the government proved the elements of the crimes charged, and in particular, that the totality of the evidence supports the jury's inference of Hakimi's knowledge that the package he was poised to receive from a co-conspirator contained illegal drugs.

REVERSED AND REMANDED.

PAUL D. SILVER (Daniel C. Gardner, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Albany, New York, for Appellant.

MICHELE HAUSER, New York, New York, for Defendant-Appellee.

BEFORE: HALL and CARNEY, Circuit Judges, and SCHEINDLIN, District Judge.[*] Judge Hall dissents in a separate opinion.

OPINION

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Susan L. Carney, Circuit Judge.

Following a three-day trial in the United States District Court for the Northern District of New York, a jury found Defendant-Appellee Roohid Hakimi guilty of conspiracy and attempt to possess and distribute controlled substances -- primarily those known colloquially as " ecstasy" and " foxy methoxy." [1] Hakimi moved under Federal Rule of Criminal Procedure 29 for a judgment of acquittal, challenging the sufficiency of the evidence on which the jury's verdict rests. The district court (David N. Hurd, Judge ) granted Hakimi's motion. United States v. Hakimi, 832 F.Supp.2d 168 (N.D.N.Y. 2011). The government appeals.

Viewing the evidence in the light most favorable to the government and drawing all reasonable inferences in support of the jury's verdict, as we must, we hold that a rational trier of fact could have found the elements of the charged crimes proven beyond a reasonable doubt. In particular, the jury was entitled to infer Hakimi's knowledge that the highly valuable bag that he was poised to receive from a co-conspirator contained illegal drugs. The

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jury's guilty verdict must therefore be reinstated. We reverse the district court's judgment of acquittal, and remand for further proceedings consistent with this opinion.

BACKGROUND

The evidence presented by the government at trial consisted chiefly of testimony from law enforcement agents and from one Cheyenne Anderson -- a cooperating witness, who, like Hakimi, was charged with participating in the drug conspiracy. Evidence of calls and text messages placed to and from cellular phones belonging to Hakimi and Anderson was also introduced at trial. Viewed in the light most favorable to the government, the evidence demonstrated the following.

1. The drug trafficking organization

From roughly 2008 through 2011, Cheyenne Anderson participated in a drug trafficking organization that smuggled ecstasy and other controlled substances from Canada into the United States, and cocaine from the United States into Canada. Anderson testified that, in her experience, the organization typically operated as follows: A member of the group would transport an ecstasy shipment from Montré al, Qué bec, to St. Regis Island in the St. Lawrence River. From there, the drugs would be ferried by boat to St. Regis (a Canadian town on the river's southern bank), or to another nearby location, where group members would transfer the drugs from the boat into a " load vehicle." Trial Tr. (" Tr." ) 204. A courier would drive the load vehicle south to the shipment's destination, which, in one-half the instances Anderson knew of, was New York City. Couriers transporting ecstasy to New York City sometimes picked up cocaine and cash there for transport back into Qué bec. The organization also smuggled aliens across the nearby border.

Anderson's most frequent role, which she filled on approximately nine occasions, was to act as a " blocker" or escort for a drug transporter. Tr. 201. In that capacity, her task was to drive at a distance in front of the courier who was actually transporting the shipment and alert the courier in advance to police locations and other potential problems on the way. On these occasions, an individual named Daisy Realza (who played a more important role in the group than Anderson) would call Anderson to alert her to the expected arrival of a drug shipment from Canada. Anderson, who lived on the St. Regis Mohawk Reservation near the St. Regis delivery point,[2] would then drive to meet the shipment. Once the drugs were transferred from the boat into the load vehicle, Anderson would begin driving the route. The load vehicle would leave St. Regis approximately thirty minutes after Anderson's departure. Anderson would block as far south as Saratoga Springs, a city about 180 miles south of St. Regis and 180 miles north of New York City, and then return home.

On two occasions, when the regular driver was " too messed up on drugs," Anderson herself drove the load vehicle to the New York City area. Tr. 208. At the start of those trips, Anderson took possession of the drugs in a single large bag that held smaller bags containing pills. Anderson was told the pills were ecstasy, and she also visually identified the pills as ecstasy.

Within the trafficking organization, Anderson's main point of contact was Daisy Realza, mentioned above. Realza was

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also known to Anderson as " Verna" or " Perla." Both Realza and her boyfriend, Dallas George (Anderson's cousin), played lead roles in the organization. Anderson did not know how many other people were involved, or who those people were, but to her knowledge, the organization may have included " [w]hoever Perla [Realza] was friends with." Tr. 235. As Anderson attested to at trial, however, " [T]here had to be an element of trust involved . . . . And if you didn't trust a person or know the person personally, then you wouldn't want to give them twenty pounds of ecstasy . . . ." Tr. 235-36. Otherwise, Anderson agreed, that person could simply " drive off into the sunset" with the drugs, and the organization would be " out a lot of money." Tr. 236.

2. The events of April 16, 2011

On April 16, 2011, Realza contacted Anderson mid-afternoon, asking if she could help transport drugs that night. Because she did not have access to a vehicle, Anderson initially told Realza that she could not, but Anderson later decided to help, using her mother's Chevrolet Silverado truck for the job. That evening, having taken the truck, she drove to the river and picked up the incoming drug shipment, which was packaged in a large blue duffel bag.

After Anderson obtained the drugs and was joined by her seventeen-year-old nephew, whom she wished to accompany her, George directed her to " meet up with this guy" at the Wal-Mart in Massena, New York, not far from St. Regis. Tr. 217. Anderson understood that the man she was to meet at the store would be taking the drugs the rest of the way to New York City. George did not tell Anderson the man's name, but described him as " bald," and wearing " a blue sweater with white stripes." Tr. 218. That afternoon and evening, Anderson's communications with Realza and George were carried out by text messages and walkie-talkie.

Also on the afternoon of April 16, a border patrol agent saw a man later identified as Hakimi driving a Chevrolet Malibu westbound, heading away from the Reservation, on a state road near Massena. As investigators later learned, the Malibu had been rented by an " Angela Woods" days earlier at Detroit Metro Airport. The agent, who was in uniform and driving a marked car, testified that Hakimi " tensed up and grabbed the wheel" as the agent passed by. Tr. 33. When the agent pulled alongside, Hakimi " star[ed] straight ahead, [and] wouldn't make eye contact with [the agent]." Tr. 33, 34. After the agent began following the Malibu, Hakimi made an abrupt turn, without signaling, into a parking area. The agent perceived this turn to be an evasive maneuver.

Not long after darting into the first parking lot, Hakimi drove the Malibu across the street and parked in the lot outside of the Massena Wal-Mart. According to law enforcement testimony, the Wal-Mart lot was a common spot for drug and alien smuggling activities because of the cover given by the lot's high volume of traffic. The agent saw Hakimi leave his vehicle and enter the Wal-Mart.

Within about 15 minutes, near 5 p.m., a second border patrol agent arrived at the Wal-Mart to monitor Hakimi from an unmarked vehicle. Hakimi emerged from the Wal-Mart at around 6 p.m., walked to the Malibu, and placed a single shopping bag in the back seat. The agent observed that Hakimi had a shaved or possibly bald head, and that he was wearing a dark blue shirt with white stripes. After dropping off the shopping bag, Hakimi reentered the Wal-Mart. A third agent arrived at approximately 6:30 p.m. This agent, who was not in uniform, entered the Wal-Mart

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to observe Hakimi. He saw Hakimi seated in a fast-food restaurant within the store, with only his cell phone on the table in front of him. Approximately two hours later, the agent reentered the Wal-Mart and saw Hakimi still seated in the same spot. The agent saw nothing to indicate that Hakimi had eaten or made any additional purchases.

Meanwhile, Anderson was on her way to the Wal-Mart. At about 8:20 p.m., she received a text from George that read, " We good[?]" Gov. Ex. 36. Because (as Anderson reported) George changed his phone number often, Anderson did not recognize the incoming number and responded by text, asking, " Who's this[?]" Id. George texted, " Me d," to which Anderson replied, " Yep good so far." Id. George then texted, " He[']s got it[?]" Id. Anderson understood George to be asking whether she had completed the delivery to the man waiting at the Wal-Mart. She responded, " No I'm on my way to [Wal-Mart] now." Tr. 154; Gov. Ex. 36. When she arrived at the Wal-Mart, Anderson parked in front of the store and walked inside. She did not see the man matching the description provided by George, but, as she was preparing to leave, Hakimi whistled to her. Hakimi was wearing a blue and white sweater, and he was " kind of bald." Tr. 221. When Anderson pointed at Hakimi and said, " You," Hakimi nodded in response, and followed Anderson out of the store. Tr. 220.

Once in the parking lot, Anderson and Hakimi entered Anderson's truck. Anderson's nephew had moved to the back seat, and Hakimi sat in the passenger's seat; the large blue duffel bag holding twenty pounds of drugs lay on the floor in front of the passenger seat. Because the lot was crowded, Anderson decided she did not want to transfer the drugs there; she told Hakimi that she " didn't want to do it at Wal-[M]art," meaning she did not want him " to take the drugs" there. Tr. 221. Instead, she told him to follow her. Hakimi replied, " Okay," exited the truck, and got into his car. Tr. 222.

Anderson drove the Silverado out of the Wal-Mart parking lot and Hakimi followed in the rented Malibu. The two cars proceeded east for a short distance and then turned onto a dark and narrow side road, and continued about one-quarter mile to the road's endpoint. One agent described the side road as " almost an alleyway." Tr. 115.

At the dead end, Anderson turned her vehicle around and parked so that her driver's side window was next to Hakimi's. Both drivers " blacked out" their cars, as one agent put it, meaning they turned off their vehicle headlights. Tr. 102. Anderson exited her truck and leaned into the Malibu to speak with Hakimi. Hakimi told her that he had an address programmed into his global positioning system (" GPS" ) device for his New York City destination -- " [h]e knew where he was going" -- but that he needed an address for his return trip to the reservation -- " [h]e didn't know how to get back." Tr. 223. Anderson " grabbed" the device to input the additional information. Tr. 223.

Just then, one of the agents who had been following Hakimi drove towards the pair, turned on his emergency lights, and boxed in the two vehicles. As the agent stepped out of his vehicle, Anderson approached him and explained that she was " giving directions to a friend she had met in the Wal-Mart parking lot." Tr. 104. Hakimi interjected that he " was lost" and Anderson was " helping him find his way" to a local casino. Tr. 104. When asked how long he had been in the area, Hakimi responded, untruthfully, " only . . . for about an hour." Tr. 105.

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The agent next used a trained dog, a member of a K-9 unit, to conduct a forensic " sniff test" of the vehicles. When the dog alerted to the presence of drugs in Anderson's truck, agents searched the truck and recovered the blue bag from the floor of the front passenger seat, which contained four smaller bags each holding numerous pills. Beneath the back passenger seat agents also found a Ziploc bag of pills.[3] The agents took Anderson and Hakimi into custody.

Subsequent laboratory analysis disclosed that the blue bag of drugs weighed approximately 20 pounds and contained over 30,000 pills. Each of the pills was composed of some combination of ecstasy, foxy methoxy, and MDPV, all schedule I controlled substances.[4] An expert witness estimated that in New York City, the drugs' street value was as much as $900,000.

From the car Hakimi was driving, agents recovered a GPS device, a BlackBerry, and a Wal-Mart shopping bag containing a prepaid phone card and a receipt. The BlackBerry reflected six phone calls placed by Hakimi to Dallas George during the six days leading up to the arrests, the two most recent calls having been made on the afternoon of April 15 and on the morning of April 16. Hakimi had also completed thirteen calls to a person with a number listed under the contact name " Chama," and fifteen outgoing calls to a contact listed as " Chamaaa." Both phone numbers began with a Qué bec area code. As Anderson later learned from Hakimi during a conversation connected with their court appearances, " Chamma" was the name by which the defendant referred to Realza.[5]

3. Procedural history

On September 7, 2011, the government filed a three-count superseding indictment against Hakimi and Anderson. Count One charged both defendants with conspiracy to possess with intent to distribute and to distribute a controlled substance. Count Two charged Anderson with possession with intent to distribute ecstasy, and Count Three charged Hakimi with attempt to do the same. Anderson soon pleaded guilty to both counts with which she was charged, and became a key witness for the government against Hakimi.

Hakimi's jury trial took place from December 13-15, 2011. At the close of the government's case, Hakimi moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(a), and the district court reserved decision. Hakimi elected not to offer evidence in his defense, and the case then went to the jury. After brief deliberation, the jury found Hakimi guilty as charged on both counts. The following week, the district court granted Hakimi's motion for judgment of acquittal and dismissed the charges. United States v. Hakimi, 832 F.Supp.2d 168 (N.D.N.Y. 2011).

In its written memorandum, the district court reasoned that although the government

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had presented sufficient evidence to prove the existence of a drug trafficking conspiracy, and although Hakimi's behavior was " admittedly indicative of illegal activity," the government had not adduced sufficient evidence from which a reasonable jury could infer Hakimi's " knowledge and intent to participate in that conspiracy." Id. at 173. In the district court's view, " [e]ven accepting Anderson's testimony as true," no reasonable juror could conclude that Hakimi " knew Anderson had a bag of drugs in her truck or that he intended to take the drugs" from her. Id. Rather, " Hakimi's presence at the scene [could] be attributed to innocent circumstances; to wit, his intention to be smuggled across the border into Canada" --the alternative explanation Hakimi's counsel had offered for the defendant's observed interactions with Anderson.[6] Id. The district court further discounted the import of the phone traffic between Hakimi on the one hand, and George and Realza, on the other, reasoning that because the final phone call between Hakimi and George occurred hours before Realza had contacted Anderson to ask for her help transporting the April 16 drug shipment, " [a] reasonable juror could . . . draw no inference about the defendant's knowledge of any plans to distribute these drugs from the phone calls." Id. Primarily for these reasons, according to the court, the government had failed to make its case and the jury verdict could not stand. See id. at 174.

The government filed its notice of appeal the day after the court entered the judgment of acquittal.

DISCUSSION

On appeal, the government argues that the jury verdict should be reinstated, and that the district court erred in granting Hakimi's motion for an acquittal. It maintains that, on the evidence presented, a rational jury could find -- as Hakimi's jury found -- that Hakimi intended to take custody of the contraband in Anderson's car; that he knew the contraband was illegal drugs; and that he intended to deliver the drugs to persons in New York City pursuant to an illegal conspiracy, the aims of which he was aware of and intended to further. The government contends that the jury acted rationally when it rejected the defense theory that Hakimi was " just trying to cross the border." Def. Br. 15. For the reasons discussed below, we agree.

1. Standard of review

We review the sufficiency of the evidence de novo. United States v. Heras, 609 F.3d 101, 105 (2d Cir. 2010). A defendant seeking to overturn a jury verdict on sufficiency grounds bears a " heavy burden," United States v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009), as we exercise an " exceedingly deferential standard of review," United States v. Hassan, 578 F.3d 108, 126 (2d Cir. 2008). We must " uphold the conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Aguilar, 585 F.3d at 656 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

When assessing a sufficiency challenge, we are mindful that we consider the evidence presented " in its totality, not in isolation." United States v. Huezo, 546 F.3d 174, 178 (2d Cir. 2008). A Rule 29 motion " does not provide the trial court"

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-- or, on review, the court of appeals -- " with an opportunity to substitute its own determination of . . . the weight of the evidence and the reasonable inferences to be drawn for that of the jury." United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (internal quotation marks omitted). Rather, we must view the evidence " in a light that is most favorable to the government, and with all reasonable inferences resolved in favor of the government." United States v. Persico, 645 F.3d 85, 104 (2d Cir. 2011) (quoting United States v. Eppolito, 543 F.3d 25, 45 (2d Cir. 2008)). To sustain the jury's verdict, the government need not disprove " every possible hypothesis" of the defendant's innocence. United States v. Abelis, 146 F.3d 73, 80 (2d Cir. 1998) (internal quotation marks omitted). And when there are " competing inferences, we must defer to the jury's choice," because " it is the task of the jury, not the court, to choose among competing inferences that can be drawn from the evidence," Eppolito, 543 F.3d at 45 (internal quotation marks omitted).

At the same time, " specious inferences are not indulged." United States v. Jones, 393 F.3d 107, 111 (2d Cir. 2004) (internal citations and quotation marks omitted). It " would not satisfy the Constitution to have a jury determine that the defendant is probably guilty." United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008) (internal alterations and quotation marks omitted). Thus, " if the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt." Id. (internal alterations and quotation marks omitted).

2. Conspiracy charge (Count One)

A. Legal principles

i. Conspiracy generally

The law of conspiracy is well established within our Circuit. To sustain a conspiracy conviction, " the government must present some evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme alleged in the indictment and knowingly joined and participated in it." Hassan, 578 F.3d at 123 (internal quotation marks omitted).[7]

The government may prove the defendant's knowing participation in a conspiracy through circumstantial evidence. Huezo, 546 F.3d at 180; United States v. Gordon, 987 F.2d 902, 906-07 (2d Cir. 1993). Circumstantial evidence probative of a conspiracy may include, for example, a defendant's association with conspirators " in furtherance of the conspiracy," United States v. Aleskerova, 300 F.3d 286, 292-93 (2d Cir. 2002); his presence at " critical stages of the conspiracy that cannot be explained by happenstance," id.; or his possession of items that are of essential significance to the conspiracy, id. In context, acts that exhibit " a consciousness of guilt, such as false exculpatory statements," Gordon, 987 F.2d at 907, may also tend to prove knowledge and intent of a conspiracy's purpose, although false exculpatory statements alone do not suffice to establish guilty knowledge, United States v. Reyes, 302 F.3d 48, 56 (2d Cir. 2002). Of particular import for the jury's verdict regarding Hakimi, " a federal conviction may be supported 'by the uncorroborated testimony' of even a single accomplice witness 'if that testimony is not incredible on its face and is capable of establishing guilt

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beyond a reasonable doubt.'" United States v. Florez, 447 F.3d 145, 155 (2d Cir. 2006) (quoting United States v. Parker, 903 F.2d 91, 97 (2d Cir. 1990)).

The government need not prove the defendant's familiarity with all of the conspiracy's details; it may demonstrate simply the defendant's awareness of the " general nature and extent" of the conspiracy. Huezo, 546 F.3d at 180. It is not necessary to prove that the defendant expressly agreed with other conspirators on a course of action; " it is enough," rather, to show that " the parties ha[d] a tacit understanding to carry out the prohibited conduct." United States v. Nusraty, 867 F.2d 759, 763 (2d Cir. 1989) (internal quotation marks omitted). Indeed, a defendant may be a conspirator even if he knew only one other member of the group, and " a single act may be sufficient for an inference of [his] involvement in a criminal enterprise of substantial scope at least if the act is of a nature justifying an inference of knowledge of the broader conspiracy." Huezo, 546 F.3d at 180 (internal quotation marks omitted).

We have often observed, however, that a defendant's mere presence at the scene of a crime, his general knowledge of criminal activity, or his simple association with others engaged in a crime are not, in themselves, sufficient to prove the defendant's criminal liability for conspiracy. United States v. Ogando, 547 F.3d 102, 107 (2d Cir. 2008); Lorenzo, 534 F.3d at 159-60.

ii. Intent to commit the offenses that were the objects of the conspiracy

Critically, in order to prove conspiracy, the government must demonstrate that the defendant possessed " the specific intent to commit the offenses that were [its] objects." Huezo, 546 F.3d at 180 (internal quotation marks omitted). This requires the government to prove " at least the degree of criminal intent necessary for the substantive offense itself." United States v. Torres, 604 F.3d 58, 65 (2d Cir. 2010) (internal quotation marks omitted).

To prove the substantive offenses underlying the conspiracy charged in this case, the government must establish that the defendant agreed " knowingly or intentionally [to] . . . possess with intent to . . . distribute . . . a controlled substance." 21 U.S.C. ยง 841(a)(1); see also Torres, 604 F.3d at 65-66. As to intentional possession and distribution of a controlled substance, the government must, of course, prove that the defendant " knew he was dealing with a controlled substance." Torres, 604 F.3d at 66. Therefore, to convict Hakimi of the conspiracy charged, the government was required to prove that Hakimi knew the conspiracy involved controlled substances, and that he participated in the conspiracy with the specific intent that controlled substances be possessed by him and distributed. See id. Circumstantial evidence may be used to prove specific intent to commit the object of a conspiracy, as it may to prove agreement to join the conspiracy. See Heras, 609 F.3d at 106 (" The law has long recognized that criminal intent may be ...


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