United States Court of Appeals,

Eleventh Circuit.

No. 95-2535.

UNITED STATES of America, Plaintiff-Appellant,

v.

Juan Ricardo MATTOS, a/k/a Ricardo Mattos, Defendant-Appellee.

Feb. 14, 1996.

Appeal from the United States District Court for the Middle

District of Florida. (No. 94-155-CR-T-25B), Henry Lee Adams, Jr.,

Judge.

Before ANDERSON and BLACK, Circuit Judges, and FAY, Senior Circuit

Judge.

PER CURIAM:

A jury found Juan Ricardo Mattos guilty of conspiracy to

possess cocaine with the intent to distribute. The District Court,

however, found that the evidence showed "mere association with

conspirators" and granted Mattos's renewed motion for judgment of

acquittal. Because the evidence is sufficient to support the jury

verdict, we reverse.

I. BACKGROUND

Frederick Cox, a government informant, told the police that he

was planning a cocaine deal with James Walsh. Walsh was going to

obtain the cocaine from a supplier in Miami and Cox was going to

help sell it to dealers in Atlanta. On March 22, 1994, at 10:22

a.m., Walsh called Mattos's home from a pay phone at the Lemon Tree

restaurant in Clearwater. The pay phone was located two miles from

Walsh's home. Later that day Walsh met with Cox. They discussed

a five to ten kilogram cocaine deal. Cox asked about prices and

quantities, and Walsh responded, "My guy's away for a week. I'm
gonna call him tonight, and, uh, set up the program."

After meeting with Cox, Walsh drove to the Lemon Tree pay

phone and called Mattos's home in Miami. Walsh said that "the last

four are 4072" and "have him call me." The last four digits of

Walsh's pager were 4072. About an hour later Walsh drove to the

same pay phone and called a pay phone at a Miami gas station, near

Mattos's home. Walsh was overheard saying, "They want five to ten,

we can do that, can't we?"

On March 31, Walsh again met with Cox about the cocaine deal

and said that he would "try the house right now" in an attempt to

contact the supplier. Walsh then drove to a pay phone and called

Mattos's home.

On April 6, Cox paged Walsh. Walsh called Mattos's home

eighteen minutes after the page, but before Walsh called Cox back.

Five minutes after the call to Mattos's house, Walsh called Cox and

told him that his supplier was "hung up" and "won't be back 'till

Monday."

On April 11, Walsh was paged from a pay phone near Mattos's

home, and he returned that call from a pay phone one minute later.

On April 12 and 13, Walsh met with Cox about the deal. Cox told

Walsh his buyer did not want to go to Miami to pick up the cocaine.

Walsh said, "[L]et me uh go call my guy and uh, see if my guy will

bring them over here." Walsh then left Cox, drove to the Lemon

Tree pay phone, and called Mattos's home.

On April 14, Cox paged Walsh. Walsh called back and said he

would be talking with his "office" at 10:00 a.m. At 10:09 Walsh

called a pay phone in Miami near Mattos's home. Walsh then went to
 1

Moreover, even though Walsh repeatedly made phone calls

using the Western Union company to pay phones near Mattos's home

in Miami during the time before and after Mattos's trip to

Colombia, Western Union toll records show that Walsh made no

calls to those phones during the entire time Mattos was in

Colombia. 

Cox's place of business and said that "his guy" had to go back to

Bogata. Walsh went back to the pay phone across the street and

called Mattos's home. Walsh returned to Cox and said, "I'm going

to page him when I get out ... He's going to try from a Southern

bell phone."

Walsh then received a message on his pager to call 595-3265.

He went back to the pay phone and called 305-595-3265, a Southern

Bell pay phone in Miami near Mattos's phone. Again Walsh returned

to Cox. Walsh said that it was, "too late now. He's leaving for

uh, fifteen days."

Three days later, Mattos flew from Miami to Colombia. While

there, he suffered major stomach problems and had to have emergency

stomach surgery. This delayed his return to Miami.

From May 3 (about fifteen days after Mattos left) to June 7,

Walsh repeatedly tried to contact Mattos. He called the Mattos

home and spoke to someone there on several occasions.1

 He told Cox

that his supplier had gotten "hung up down there" and that the deal

had to be delayed. At another point Walsh said, "his wife went

down." Mattos's wife had flown down to be with him after the

surgery.

On June 17, Mattos returned to the U.S. On June 23, Cox

called Walsh's pager. Nine minutes later, Walsh called Mattos's

home from the Lemon Tree pay phone. Ten minutes later, Walsh
called Cox and said, "He's back." Walsh explained that the

supplier went to a hospital in Colombia because "his insides just

busted." Walsh said that the supplier would contact Walsh when he

got back to his office.

On June 24, Walsh was paged from Mattos's house. Walsh

returned the call from a Winn Dixie pay phone seven minutes later.

An hour and a half after that, Walsh called a Miami pay phone near

Mattos's home (305-595-3265). Five minutes after that Walsh was

paged from 595-3265.

On June 27, Cox told Walsh that he could not go to Miami

because of illness. Walsh agreed to go with Cox's "cousin" who was

really undercover officer John Barna.

On June 29, Walsh drove to Miami. He went to a pay phone at

a Wendy's restaurant and called Mattos's home. Walsh then drove to

Mattos's home. Two hours later Walsh went to his hotel. That

evening, he met with Barna. Barna said that the buyer (called

"Joe") was in Miami and had the money. Walsh said they should

complete the deal at "my guy's house." Barna responded that he and

Joe were not happy with that plan. Walsh said he'd have to go call

his supplier and find out if he would be willing to bring the

cocaine to the hotel.

Soon after, Mattos received a call from a pay phone near the

hotel. Walsh then left the Hotel and drove to the Wendy's

restaurant where he had earlier made a phone call to Walsh. Walsh

met in the parking lot with Mattos and another man. After ten

minutes in Mattos's car, they drove to a car lot. The three men

went in and a short time later, Mattos, Walsh and a woman emerged.
They left in Mattos's car, without the third man. They drove back

to the Wendy's restaurant. Walsh got out and returned to his

hotel.

The next morning, Walsh met with Barna and told him that the

supplier "took it back and locked it up" because "he didn't want to

leave it in the house." Walsh said the deal would go down late

that night or first thing in the morning. By the next morning,

however, the cocaine was still not available. Walsh said that this

was the only time he had been out of supply, and it was only

because of his supplier's hospitalization in Colombia. Walsh and

Barna agreed to complete the deal in Clearwater.

Walsh said he'd try to contact his supplier one more time, and

he explained to Barna that he used pay phones because otherwise

"you don't know if you're being bugged." Soon after, a call was

made to Mattos's home from a pay phone next door to the motel. A

half hour after that, Walsh called Barna and said that he had tried

to contact his supplier but still got no answer.

Walsh and Mattos were indicted for conspiracy to possess

cocaine with the intent to distribute, and for attempted possession

of cocaine with the intent to distribute. Both testified at trial.

Walsh claimed that Cox, whom he thought was dying of Hodgkin's

disease, suggested that they "rip-off" some cocaine buyers to make

money for Cox's wife. Walsh testified that he was just pretending

the entire time he was in Miami. In order to placate a dying man,

he was planning to rip-off the cocaine buyer.

Walsh admitted that Mattos was the Colombian that he had been

referring to as the supplier, but claimed that Mattos was just the
basis for a "figmentary person" to further the rip-off. Walsh

testified that Mattos knew nothing about this planned rip off. He

said his dealing with Mattos involved legitimate business, and that

he used pay phones because the home phone was for his wife.

Mattos also testified that he only had legitimate business

contacts with Walsh. He admitted that "[i]t could be possible"

that he and Walsh had both used pay phones near their respective

homes to communicate with each other. To explain why he had

communicated with Walsh in this fashion, he testified, "I was not

in my house 24 hours a day. I was not a prisoner."

The jury chose to disbelieve Mattos and Walsh; they convicted

Mattos of conspiracy to possess cocaine with the intent to

distribute. The District Court, however, found that the evidence

showed "mere association with conspirators" and granted Mattos's

renewed motion for judgment of acquittal.

II. STANDARD OF REVIEW

 The District Court's finding that the evidence was

insufficient to support the jury's verdict of guilt is reviewable

de novo and entitled to no deference on appeal. United States v.

Greer, 850 F.2d 1447, 1450 (11th Cir.1988).

III. ANALYSIS

 We must consider the evidence in the light most favorable to

the jury's verdict, and accept reasonable inferences and

credibility choices by the fact-finder. United States v. Sanchez,

722 F.2d 1501, 1505 (11th Cir.1984). More specifically:

It is not necessary that the evidence exclude every reasonable

hypothysis of innocence or be wholly inconsistent with every

conclusion except that of guilt, provided that a reasonable

trier of fact could find that the evidence established guilt
beyond a reasonable doubt. A jury is free to choose among

reasonable constructions of the evidence.

Id., quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.

Unit B June 1982) (en banc), aff'd on other grounds, 462 U.S. 356,

103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

 The jury in this case chose to disbelieve Mattos and Walsh.

That choice was reasonable because: 1) if Walsh merely planned to

rip-off the buyer, there was no need to hold up the deal when

Mattos was in Colombia; 2) if Walsh wanted to rip-off the buyer,

there was no reason not to do just that when the buyer was in

Miami; 3) if Walsh was scheming with Cox to rip-off the buyer,

there was no reason to hide this from Cox's "cousin," John Barna;

4) if Walsh was not planning on ripping-off the buyer then he

needed to have a cocaine supplier, and he admitted at trial that

Mattos was the man who he referred to as his supplier; 5) on

virtually every occasion that Walsh discussed the deal with Cox or

Barna, he contacted Mattos's home or a nearby pay phone right

before or immediately after the discussion; 6) in many of the

taped conversations between Walsh and Cox or Walsh and Barna, Walsh

confirmed that he had just spoken with, or was about to speak to,

his supplier; 7) Walsh and Mattos took great pains to speak on pay

phones instead of using their home phones; 8) Walsh said they did

so to avoid being bugged; and 9) the explanations that Walsh and

Mattos gave at trial for consistently using pay phones were at best

far-fetched.

IV. CONCLUSION

Because the evidence in this case is sufficient to support the

jury verdict, we REVERSE and REMAND with instructions to reinstate
the jury's verdict.