*

Honorable Richard Mills, U.S. District Judge for the

Central District of Illinois, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-4144.

UNITED STATES of America, Plaintiff-Appellee,

v.

Gloria Marie LOPEZ-RAMIREZ, Defendant-Appellant.

Nov. 8, 1995.

Appeal from the United States District Court for the Southern

District of Florida. No. 93-380-CR), Stanley Marcus, Judge.

Before EDMONDSON, Circuit Judge, HILL, Senior Circuit Judge, and

MILLS*

, District Judge.

EDMONDSON, Circuit Judge:

Defendant appeals her convictions and sentence for conspiracy

with intent to distribute cocaine and possession of cocaine with

intent to distribute. We reverse.

DEA agents, working with a confidential informant, arranged

for approximately 160 kilograms of cocaine to be imported into the

United States and negotiated with two men, Polaco and Turco, for

the distribution of the cocaine. After performing a field test to

ensure that the substance was cocaine, the agents divided the

shipment and packaged about 95 kilograms in one wooden crate and

the remaining 65 in another. Each crate was then equipped with two

transponders that would alert the agents when the crates were

opened or moved. The crates were sealed shut.

Agents placed the crate containing 65-kilograms in a Ford

Explorer provided by Turco and Polaco and put the crate containing
95-kilograms crate in a Ford F-250 truck the DEA provided. Polaco

drove the Explorer to a home off Griffin Road, and after about two

hours, another man drove it to Miami. Later that day the Explorer

was abandoned presumably because surveillance had been detected.

A man named Javier drove the truck to the same Griffin Road

address. Agents maintained ground and air surveillance. After an

hour, a man later identified as Ramon Acosta Acevedo drove off in

the truck and travelled north on I-95. Because the truck had

tinted glass, agents could not see if anyone else was inside.

Agents followed the truck in cars and in a helicopter equipped

with a video camera and observed that Acevedo conducted

counter-surveillance maneuvers by frequently exiting and

re-entering the interstate and making U-turns. Acevedo finally

exited in Boca Raton. After a meandering drive through that area,

including two drives down Floral Wood Lane, Acevedo stopped at

23101 Floral Wood Lane and backed the truck to a garage door. The

video shows that Acevedo and an unidentifiable person exited the

truck. At the time, DEA agents, however, observed only Acevedo

exit. Two agents drove by and saw Acevedo unloading the crate and

defendant Lopez-Ramirez standing in the garage. Acevedo then drove

the truck to a church parking lot, left it there, and walked away.

A white station wagon picked him up.

Surveillance of the house continued for about four hours.

Agents did not know how many people were in the house but saw no

one enter or exit the house, except when defendant went out once to

get the mail. At about 3:00 p.m., a confidential informant

notified the agents that surveillance had been detected and that
 1

Because we hold that the evidence presented to the jury was

not sufficient to sustain defendant's convictions, we do not

address defendant's claim that the district court erred in

allowing the government to introduce into evidence the cocaine

seized during the warrantless search of the house and testimony

that defendant answered the door when agents knocked. 

the conspirators were abandoning the operation. At about 6:30

p.m., agents decided to enter the house to secure the cocaine; so

six agents—clad in raid jackets and with their weapons

drawn—knocked, announced, and demanded entry. Defendant opened the

door and was arrested after agents conducted a sweep of the house

and located the cocaine.

Following indictment and arraignment, defendant moved to

suppress the cocaine and other evidence found in the house. She

contended that the government's warrantless search of the house in

the absence of exigent circumstances violated her Fourth Amendment

right to be free from unreasonable searches. After an evidentiary

hearing, a magistrate judge recommended that the motion be granted.

The district court conducted another evidentiary hearing and

excluded testimony that defendant was the only person in the

residence and that the cocaine had been moved to the bathroom, but

allowed the government to introduce the cocaine and testimony that

defendant answered the door when the agents knocked.1

At the close of the government's case, defendant moved for

judgment of acquittal which the district court denied. Defendant

did not put on a defense, and the jury convicted her both of

conspiracy to possess cocaine with intent to distribute and of

possession of cocaine with intent to distribute. Defendant moved

for post-trial judgment of acquittal and for a new trial, but these
 2

Because we reverse defendant's conviction for insufficiency

of evidence, we also do not address defendant's claim that the

district court erred in sentencing. 

motions too were denied. Defendant appeals her convictions and

sentence.2

 Defendant argues that the evidence was not sufficient for a

jury to find beyond a reasonable doubt that she knowingly and

voluntarily participated in the cocaine conspiracy or that she

knowingly possessed cocaine with the intent to distribute it.

Viewing the evidence in the light most favorable to the government,

we review the sufficiency of the evidence de novo to determine

whether a reasonable jury, from the evidence presented, could have

concluded beyond a reasonable doubt that defendant was guilty of

the crimes charged. United States v. Thomas, 8 F.3d 1552, 1555

(11th Cir.1993).

 To sustain a conviction for conspiracy to possess cocaine

with intent to distribute, the government must prove beyond a

reasonable doubt (1) that a conspiracy existed; (2) that the

defendant knew of it; and (3) that the defendant, with knowledge,

voluntarily joined it. United States v. Perez-Tosta, 36 F.3d 1552,

1557 (11th Cir.1994), cert. denied by Perez-Aguilera v. United

States, --- U.S. ----, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995). To

prove the substantive offense of possession of cocaine with intent

to distribute, the government must establish that defendant

knowingly possessed the cocaine and that she intended to distribute

it. United States v. Stanley, 24 F.3d 1314, 1319 (11th Cir.1994).

Where the government's case is circumstantial, as it is here,

"reasonable inferences, and not mere speculation, must support the
jury's verdict." Perez-Tosta, 36 F.3d at 1557.

 The only evidence the government introduced to prove the

defendant's guilt was (1) that some unidentifiable person was in

the truck with Acevedo, (2) that defendant was present in the

garage with Acevedo at the Floral Wood Lane residence shortly after

the truck carrying the cocaine arrived there, and (3) that the

defendant was present when the DEA agents approached the door to

the house to conduct the search. From this evidence, the

government argues that the jury was entitled to find that defendant

was the passenger in the truck that delivered the cocaine and that

defendant and Acevedo engaged in evasive tactics because they were

in the process of committing a crime. The government argues that

the jury also could reasonably find that defendant was present

during the delivery of the cocaine to the residence and that she

answered the door when officers tried to retrieve the cocaine.

Finally, given the substantial value of the cocaine involved and

passports and other documents belonging to Acevedo and the

defendant, the government contends that the jury could find that

defendant was not merely an unaffiliated bystander.

 This court has repeatedly held, however, that mere

association with a conspirator and presence in a vehicle which

engages in counter-surveillance maneuvers is not sufficient to

establish participation in a conspiracy to distribute cocaine or

possession with intent to distribute cocaine. See United States v.

Hernandez, 896 F.2d 513, 519 (11th Cir.), cert. denied, 498 U.S.

858, 111 S.Ct. 159, 112 L.Ed.2d 125 (1990) (Holding defendant's

association with codefendant insufficient to prove conspiracy or
possession although defendant was in vehicle from which drugs were

retrieved and was present when drugs were given to undercover

agent); Thomas, 8 F.3d at 1558 (Noting that presence with

conspirators alone or close association with them is insufficient

proof of participation in a conspiracy); Stanley, 24 F.3d at 1321

(Noting that defendant's presence in vehicle in which drugs were

stored, even while driver and another passenger were negotiating

the sale of cocaine within earshot, was insufficient to establish

conspiracy and possession); and Perez-Tosta, 36 F.3d at 1552 (11th

Cir.1994) (Evidence insufficient to convict for conspiracy although

defendant provided keys, registration, and insurance for vehicle

used to transport drugs and later was present in the car when it

was engaged in counter surveillance).

 As in the cases cited above, the government presented no

evidence to the jury that defendant had been present at any meeting

of the key conspirators or even knew who they were, and government

agents involved conceded that her name had not been mentioned at

the meetings. The government also offered no evidence that

defendant had been "on the lookout" in the truck (if in fact she

was in the truck) or while she was waiting in the house.

Government witnesses testified, in fact, that the defendant

appeared calm throughout the operation, even after she was

arrested. The government offered no evidence that defendant knew

the contents of or had touched the crate which contained the

cocaine. In the light of the precedents of this circuit, the
 3

We note that, at sentencing, defendant admitted that she

came to the United States from Columbia to work in the drug

trafficking trade; that she was staying at the Boca Raton

residence, as a live-in housekeeper, with a couple expecting a

shipment of cocaine; that she accepted her position knowing that

it was merely a "front" to preempt suspicion by neighbors; that

she went with Acevedo to pick up the cocaine and bring it back to

the house; that she moved the cocaine from the crate to the

bathroom; and that she was paid $1000.00 a month to stay at the

residence and promised another $4000.00 when the cocaine was

delivered. Defendant, if she spoke the truth at sentencing, was

not innocent of the crimes charged. But, at trial, she was not

proved guilty. And for us, as a reviewing court, that is the

point. 

evidence presented to the jury3 was not sufficient to allow the

jury to conclude beyond a reasonable doubt that defendant had

knowledge of the conspiracy and had participated in it or that

defendant had possession of the cocaine with the intent to

distribute it. Defendant's convictions are reversed.

REVERSED.

HILL, Senior Circuit Judge, concurring specially:

I concur. The evidence was insufficient.

I write separately merely because, in my view, there was no

substantial evidence that the appellant was ever in the truck.

That conclusion leads me to believe that I need not evaluate the

case on the assumption that she was in the truck. I do not dispute

what we say on that subject; I just do not address it.