1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-50309

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

RAYMOND STEWART,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

June 25, 1998

Before REAVLEY, D E MOSS, and PARKER, Circuit Judges.

D E MOSS, Circuit Judge:

Raymond Stewart was indicted for possession with intent to

distribute crack cocaine. The jury found him guilty of that

offense. Stewart timely appealed, challenging the sufficiency of

the evidence to sustain the guilty verdict. Finding the evidence

insufficient to sustain the verdict, we reverse the conviction.

Background1 Garney had received a "tip" earlier tha t afternoon that two

men driving a car of that description and traveling from Houston to

Waco might be carrying drugs. At trial, evidence relating to the

tip was objected to and a limiting instruction was given. At oral

argument, the government conceded that the information relayed by

the informant was admissible for the limited purpose of justifying

the traffic stop. The government in no way relied on the content

of the informant’s message as evidence in the case.

2 On September 7, 1995, Officer Ron Garney, an investigator with

the Robertson County District Attorney’s Office, stopped a

champagne-colored Mazda 626 on Interstate 45 heading towards Waco,

Texas. Garney stopped the vehicle when the driver failed to use a

turn signal. 1

Garney approac hed the car, which was driven by Stewart.

Stewart’s co-defendant, Roderick Watson, was in the passenger seat.

Garney requested that Stewart step out of the car and stand on the

side of the road. He then asked Stewart for his license. Though

Stewart was unable to produce his license, he supplied Garney with

his correct driver’s license number. Stewart also told Garney that

he and Watson had been to Houston on a business trip to promote rap

and gospel music. When Garney checked Stewart’s driver’s license

number, he learned that the license had been suspended.

Garney then asked Watson for his license. Watson tendered his

license and clarified that the car belonged to Watson's girlfriend.

Garney asked Watson for permission to search the car, and Watson

consented. Garney then approached Stewart who was standing by the

back of the car, and asked Stewart for permission to search the

car. Stewart acted perplexed, as though he was unclear whether he3

had the authority to give the officer permission to search Watson's

girlfriend's car. After learning that Garney had already received

Watson's consent, Stewart expressed no objection to the search. At

some point during the traffic stop, and prior to Garney's request

to search the vehicle, several backup officers arrived to support

Garney.

After an extensive search of Watson' s girlfriend's car, the

officers found two nine millimeter weapons, one under the driver’s

seat and one under the passenger’s seat. Neither had Stewart's

fingerprints. Once the guns were found, both Stewart and Watson

were arrested. Watson was searched pursuant to his arrest, during

which the officers found a plastic bag in his underwear containing

approximately 96 grams of crack cocaine. Watson told the officers

that the cocaine and the guns belonged to him and that Stewart had

no knowledge of the cocaine. When approached separately, Stewart

asked the officer why he was being arrested. Garney responded that

Stewart was being arrested for the guns. Stewart and Watson were

then placed in the back seat of Garney’s patrol car.

The patrol car was equipped with an audio and video recording

system. This system is called a "page system." A video camera

facing out towards the front of the vehicle is mounted inside the

car, next to the rear view mirror. Officers who have cars equipped

with the page system also have microphones attached to their

unifo rms. An additional microphone is located in the back seat

area of the car. The officer switches the page system on from2 Gar ney turned on the page system shortly after stopping

Stewart and Watson. The entire audio and video recording of the

stop which begins with Stewart already outside of his vehicle was

admitted into evidence at the trial and was made available for this

court's review. The duration of the tape is approximately one

hour.

4 inside the patrol car.

Once the system is turned on, the officer can remotely control

which microphone is recording. When the officer turns off the

microphone on his uniform, the microphone inside the vehicle begins

recording. When he activates his uniform microphone, the

microphone inside the car stops recording. Accordingly, once the

page system is turned on, either the officer's uniform microphone

is recording or the back seat microphone is recording. Once Garney

placed Stewart and Watson in the patrol car, he switched off his

uniform microphone, activating the microphone in the back seat of

the patrol car. 2 The ensuing conversation between Stewart and

Watson was recorded without their knowledge.

Stewart was indicted and found guilty of possession with

intent to distribute crack cocaine. He was sentenced to 235 months

imprisonment, five years supervised release, a fine in the amount

of $3,000, and a mandatory special assessment fee of $100. Stewart

timely appealed.

I.

Law and Analysis3 "[I ]n a prosecution for aiding and abetting possession of

cocaine with intent to distribute, there must be evidence

connecting the defendant with both aspects of the crime, possession

and intent to distribute." United States v. Longoria

, 569 F.2d 422,

425 (5th Cir. 1978).

5 The government concedes that Stewart did not himself possess

the crack cocaine, constructively or otherwise. Instead, the

government seeks to support Stewart’s conviction on a theory that

he aided and abetted Watson’s crime of possession with intent to

distribute cocaine. Aiding and abetting was not charged in the

indictment. The theory was argued, however, and submitted to the

jury, albeit opaquely. We are, therefore, free to sustain

Stewart’s conviction, if appropriate, on that ground. U nited

States v. Freeze, 707 F.2d 132, 136 (5th Cir. 1983) (affirming a

conviction for possession with intent to distribute marijuana where

defendant was indicted for the substantive offense but an aiding

and abetting instruction was submitted to the jury). The sole

question presented on appeal is whether the evidence presented at

trial was sufficient to convict Stewart of aiding and abetting

Watson's posses sion and Watson's intent to distribute crack

cocaine. 3

In an appeal based on sufficiency of the evidence, the test is

"whether the jury could r easonably, logically, and legally infer

from the evidence presented that [Stewart] was guilty of violating

the statute beyond a reasonable doubt." U nited States v. Smith,

546 F.2d 1275, 1283 (5th Cir. 1977) (quoting United States v.6

Bright, 541 F.2d 471, 476 (5th Cir. 1971)). In making this

inquiry, we are mindful of the deferential standard of review that

we must apply when reviewin g a jury verdict. We are required to

review all of the evidence presented at trial in a light most

favorable to the government. United States v. Polk, 56 F.3d 613,

619 (5th Cir. 1995). Moreover, we must sustain the jury's verdict

unless the government failed to meet its burden of proving each and

every element of the offense beyond a reasonable doubt. U nited

States v. Cartwright

, 6 F.3d 294, 299 (5th Cir. 1993). We are not,

however, required to affirm a verdict that is not supported by

legally sufficient evidence. S ee, e.g.

, United States v. Williams,

985 F.2d 749, 756 (5th Cir. 1993); Longoria, 569 F.2d at 425;

Smith, 546 F.2d at 1285 (all reversing aiding an d abetting

convictions because the e vidence was insufficient to support the

jury's guilty verdict); see also United States v. Crain, 33 F.3d

480, 486 (5th Cir. 1994) ("Notwithstanding the inferences we must

draw in favor of a guilty verdict, we reiterate that the burden of

proof in this criminal case was on the government. The government

must prove that the defendant was guilty beyond a reasonable doubt,

not merely that he could have been guilty.").

The aiding and abetting statute provides in pertinent part:

"(a) Whoever commits an offense against the United States or aids,

abets, counsels, commands, induces or procures its commission, is

punishable as a principal." 18 U.S.C. § 2. To sustain a7

conviction for aiding and abetting, the government must show that

the underlying offense occurred. S ee United States v. Pedroza, 78

F.3d 179, 183 (5th Cir. 1996). The government must also

demonstrate "that the defendant ass ociated with [the] criminal

venture, purposefully participated in the criminal venture, and

sought by his or her actions to make the venture succeed." Polk,

56 F.3d at 620. "To associate with the criminal venture means that

the defendant shared in the criminal intent of the principal."

United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995) "To

participate in the criminal activity means that the defendant acted

in some affirmative manner designed to aid the venture." Id

.

T here is no dispute about whether Watson committed the

underlying offense. Rather, Stewart maintains that the record is

insufficient to establish that Stewart knowingly and purposefully

participated in Watson’s offense. Again, to sustain Stewart’s

conviction for aiding and abetting, the evidence must demonstrate

(1) that Stewart knowingly associated with Watson’s criminal

venture, (2) that he purposefully participated in the c riminal

venture, and (3) that he sought by his actions to make the criminal

venture succeed. Id

.

II.

Evidence at Trial

The association element of aiding and abetting requires that8

the defendant share the criminal intent of the principal. I d

.

This element cannot be established if the defendant has no

knowledge of the principal’s criminal venture. See United States

v. Ortiz-Loya, 777 F.2d 973 (5th Cir. 1985) (reversing a conviction

for aiding and abetting attempted unlawful exportation of firearms

where there was no evidence that defendant had knowledge of his

buyer’s intention to export the firearms to Mexico); United States

v. Belt, 574 F.2d 1234 (5th Cir. 1978) (reversing a conviction for

aiding and abetting conversion of union funds where there was no

evidence that defenda nt had knowledge that his arrangement for

cashing checks was being used for the purpose of diverting funds

from the union). We find that the evidence is insufficient to

establish that Stewart had any knowledge of Watson’s criminal

venture and therefore find that the association element of the

aiding and abetting offense was not proven.

The government offered the following circumstantial evidence

of Stewart's knowledge. Stewart accompanied Watson on a trip from

Waco to Houston in a car that belonged to Watson’s girlfriend.

During that trip, the car was stopped and Stewart acted "fidgety"

or nervous. Watson was discovered to have been carrying drugs in

his own underwear. Two weapons were found in the car. Once they

were arrested, Stewart and Watson engaged in an ambiguous, and4 Stewart filed a motion to suppress the recording in the

district court, but in explicably withdrew that motion at trial.

For that reason, the admissibi lity of the tape, which is an open

question in this Circuit, is not before us. See United States v.

McKinnon, 985 F.2d 525 (11th Cir. 1993); United States v. Clark, 22

F.3d 799 (8th Cir . 1994) (both involving pre-arrest recorded

conversations but extending those holdings to post-arrest recorded

conversations in dicta).

9 potentially inculpatory, conversation in the back of a patrol car. 4

We will address each item of circumstantial evidence below.

Though Stewart’s presence in the vehicl e is a factor that,

along with other evidence may be relied upon to find that he aided

and abetted Watson, mere presence at the crime scene and close

association with the principal are insufficient standing alone to

support a conviction for aiding and abetting another’s crime.

Polk, 56 F.3d at 620. Moreover, Stewart’s presence in the vehicle

and association with Watson are insufficient to support a

reasonable inference that Stewart had any knowledge of the drugs.

See United States v. Menesses, 962 F.2d 420, 4 27 (5th Cir. 1992)

( holding evidence that defendant drove a vehicle and foll owed a

truck containing cocaine was insufficient to prove that he had

knowledge of the dru g transaction); U nited States v. Gomez, 776

F.2d 542, 549 (5th Cir. 1985) (holding evidence that defendant

chauffeured members of a drug conspiracy and spent time in a hotel

room with them was insufficient to prove that he had knowledge of

drugs in the truck he followed despite the fact that officers found

a small amount of marijuana in his passenger’s boot); United States10

v. Littrell

, 574 F.2d 828, 835 (5th Cir. 1978) (holding evidence

that the defendant drove a car to a shop, parked it, and went into

a bar while drugs were removed and sold was insufficient to prove

that he had knowledge the vehicle contained drugs).

Next, the government offers evidence from Garney that Stewart

appeared nervous during the traffic stop. Having reviewed the

videotape recording of the entire stop, we find no support for the

proposition that Stewart was unusually nervous or fidgety. Stewart

was no more nervous during the stop than any other citizen who has

been stopped on the side of the road by a police officer and

required to stand outside his vehicle for more than forty minutes.

To the contrary , Stewart was polite and cooperative in his

responses. He provided his correct driver's license number and

volunteered the possibility that it had b een suspended. Stewart

answered all of Garney's inquiries concerning where he and Watson

were from and why they had been in Houston.

The government contends that Stewart hesitated before giving

consent to search the vehicle, and then shrugged non-committally.

The government cites this conduct as evidence of guilty knowledge.

We have seen th e tape. Once again, there is nothing surprising

about Stewart’s conduct. The car was not his. He may have been

unsure about whether he had authority to consent to the search.

The hesitation, if any at all, was fleeting and was quickly

followed by Stewa rt’s shrug and vocalizations which plainly5 Stewart’s fingerprints were likewise not to be found on the

plastic bag containing the crack cocaine which was recovered from

Watson's person.

11 communicated that he did not know how to answer the question. We

find no legal significance in Stewart’s conduct during the stop.

The government also relies upon the presence of the two

weapons in Watson's girlfriend's car. There is no evidence tying

Stewart to the guns. The vehicle did not belong to Stewart, and

the weapons were not in plain view. In fact, the weapons were so

well concealed that officers spent m ore than twenty minutes

searching the car before the weapons were discovered. The area

beneath the seat was checked several times before Garney and the

barrage of backup officers were f inally able to retrieve the

weapons. Neither of the weapons had Stewart's fingerprints. 5 Even

viewing the videotape of the traffic stop in the light most

favorable to the government, we are unpersuaded tha t Stewart's

presence, his demeanor during the stop, and the presence of weapons

is any more than a scintilla of evidence that Stewart knowingly and

purposefully participated in Watson's possession of cocaine or in

Watson's intent to distribute the cocaine.

In th e government’s view, the most significant evidence in

this case comes from the ambiguous conversation between Stewart and

Watson in the back seat of the patrol car. Indeed, the

government's brief suggests they are relying almos t exclusively

upon the inferences that may be drawn from this eight minute6 Watson : I tried to get them to let you go, man....I claimed

them guns and the woot. They can't charge you with too much of

nothin', man. I was going to tell you not to (expletive) drive

without a license.

7 Watson: Question!

Garney: Question?

Watson: Yeah, uh, what's y'all doin' about him?

Garney: He's going to jail.

Watson: For what?

Garney: For that gun and that dope.

Watson: What am I going for?

Garney: Same thing.

Watson: But I already told you, it--everything--were mine.

Garney: Well, we'll talk.

Watson: Okay.

Garney: We know more than you think, okay?

Watson: I'm serious.

Garney: (inaudible)...both involved.

Watson: He's not involved!

Garney: We'll talk about it, okay?

8 We note that Watson’s disclaimer of Stewart’s involvement is

consistent with comments made independently by Watson and Stewart

before they were pla ced in the patrol car. For example, Watson

said to Garney, "But I already told you, it -- everything -- were

mine," an indication that he had made the same statement earlier.

Moreover, upon being arrested, Stewart seemed confused and appeared

not to understand the reason for his arrest . He, in fact, asked

Garney why he was being arrested.

12 excerpt of the one hour recording made by Garney's page system.

Even when viewed in the light most favorable to the

government, Watson’s comments to Stewart in the back of the patrol

car do not establish Stewart’s guilt. The conversation begins with

Watson trying to reassure Stewart. 6 Watson then flagged Garney

down and asked what would happen to Stewart. 7 At this point,

Watson assured Garney that Stewart was uninvolved, both wit h the

guns and the cocaine. 89 At tria l, the government introduced a transcript of the

conversation that had been prepared by Officer Garney. We note

that the transcript does not re flect Stewart’s string of

expletives. The government relies heavily on the transcript, which

was presented to the jury together with the video tape recording.

In addition to the omission of Stewart’s expletives, there are a

number of other identifiable inconsistencies between the transcript

and the vi deotape recording. Those inconsistencies may be

explained by the fact that Watson was apparently much closer to the

microphone. Without regard to what caused inconsistencies in the

transcript, the district court expressly instructed the jury that

the transcript was not evidence, and tha t only the videotape

recording should be r elied upon for the content of the

conversation. Despite that limiting instruction, the presence of

the transcript, which contained several material errors, may have

either encouraged the jury's reliance or resulted in confusion

about the content of the conversation.

10 Watson: I told you not to speed through Madisonville, man. I

told you, gosh (expletive), I told you not to speed through

Madisonville. (expletive), man. Well, I told you not to speed

through Madisonville, man. I kept telling you; you did it anyway.

I told you, man, I told you, man. (expletive).

...

Watson: All I ask you to do is ride up there on som e music,

that's it, but I was telling you, Raymond, (expletive), I was

tellin g you, don't speed through Madisonville, and you did it

anyway. (expletive) man! I told you, Raymond, I told you.

(expletive).

[Similar comments were m ade by Watson to Stewart in two more

exchanges during the eight minute conversation.]

13 Once Stewart and Watson were alone, Stewart can be heard

muttering a string of strong expletives under his breath. 9 Watson

responded by rambling on at length about the fact that he had

warned Stewart not to speed through Madisonville, and was going to

warn him not to drive w ith a suspended license. 1 0 The government

tenders those comments as evidence of Stewart’s guilty knowledge,

asking us to draw the inference tha t Stewart knew he had to be11 On the second occasion, Watson also pre faces his "you don't

know nothin'" comment with the words "right now." The government

relies on this phrase as support for their coaching scenario. The

transcript relied upon by the government and prepared by Garney

chooses to punctuate Watson’s statement such that the phrase "right

now" modifies the phrase "you don't know nothin'." In the

recording, however, it appears just as likely that "right now" was

int ended to modify the preceding phrase, "I ain’t talkin’ on

14 careful driving through Madisonville. From that inference, which

we agree is reasonable, the government asks us to draw the

additional inference that Stewart knew he had to be careful because

Watson was carrying cocaine. The evidence will support no such

inference. Even assuming Stewart knew Watson did not want him to

speed, there is no evidence whatsoever fr om Watson's statements

that indicates Stewart knew why Watson asked him to be cautious.

We do not find the fact that Watson told Stewart not to speed, or

the tone of Watson’s lamentations that he had issued such a warning

to be probative evidence that Stewart knew Watson was carrying

cocaine with the intent to distribute.

Finally, the government identifies certain ambiguous

statements made on the recording which it argues support an

inference that Watson was "coaching" Stewart to let Watson take the

blame. From that coaching, the government invites us to draw the

additional inference that Stewart had guilty knowledge of Watson’s

offense. While the two men were in the back of the patrol car,

Watson twice told Stewart: "You don’t know nothin’." On the second

occasion, Watson supplemented tha t comment with the observation

"It’s all on me." 11 Taken out of context, Watson’s comments can becoochie man," rather than the subsequent phr ase. In these

circumstances, it is simply impossible to infer anything from

Watson's use of the phrase "right now."

12 Stewart’s actual response is garbled on the tape, but was

either "Whatcha wanna do?" or "Whatcha gonna do?"

13 Watson: Oh, my god. I'm so busted, disgusted. I got a major

dope case, two guns--that's aggravated. Raymond, I told you not to

speed through Madisonville, baby.

15 construed as coaching. When viewed in context, however, these

statements appear equally likely to be reassurances by Watson in an

attempt to curtail Stewart's temper.

We are unpersuaded by the government’s position that Stewart's

knowledge can be reasonably inferred from the recorded

conversati on. As an initial matter, the eight minute excerpt

relied upon by the government is comprised almost exclusive ly of

Watson’s unsolicited and unanswered comments about his own

situation. Stewart makes only a very few audible comments, none of

which are facially inculpatory. Most of Stewart’s comments relate

to why Stewart believed the car had been stopped. Stewart

corrected Watson by saying that they had been stopped for failure

to use a turn signal, rather than for speeding. The only comments

identified as even potentially in culpatory by the government are

clearly responses to other statements made by Watson. For example,

when Watson lamented that he might be required to turn government

informer, Stewart asked Watson what he intended to do. 12

Watson refers only to himself in his incriminating statements

and never im plicates Stewart. 1 3 Stewart's own statements in this...

Watson: This is it for me in the dope game, man, I know it is.

This is it. I don't really know how I am going to get out of it.

I'm not going to lie to you. (expletive) That's it for me, man.

I'm through.

16 c overtly recorded and purportedly candid conversation are eithe r

exculpatory, such as when he proclaims "I didn’t do a (expletive)

thing!", or assume only Watson’s culpability, such as when he asks

Watson, "Whatcha wanna do?"

The government's arguments require us to pile inference upon

inference. U

nited States v. Pettigrew

, 77 F.3d 1500, 1521 (5th

Cir. 1996) ("[A] verdict may not rest on mere suspicion,

speculation, or conjecture, or on an overly a ttenuated piling of

inference on inference."). Stewart’s conviction cannot rest on

nothing more than a few facially neutral comments. Even when

viewed in a light most favorable to the government, neither those

few statements made by Stewart nor Watson’s meanderings are

sufficient to establish Stewa rt’s knowledge beyond a reasonable

doubt. Though "it is not necessary that the evidence exclude every

reasonable hypothesis of innocence or be wholly inconsistent with

every conclusion except that of guilt," United States v. Bell

, 678

F.2d 547, 5 49 (5th Cir. 1992) (en banc), we must reverse the

conviction "if the evidence construed in favor of the verdict gives

equal or nearly equal circumstantial support to a theory of guilt

and a theory of innocence of the crime charged." J aramillo, 42

F.3d at 923. In this case, neither the taped conversation nor any17

of the ot her circumstantial evidence is sufficient to establish

that Stewart knowingly and purposefully p articipated in Watson’s

possession and Watson's i ntent to distribute crack cocaine.

Stewart's conviction is, therefore, REVERSED.