* The Honorable Richard W. Goldberg, of the United States Court

of International Trade, sitting by designation.

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

--------

August Term, 2002

(Argued: March 28, 2003 Decided: June 30, 2003)

Docket Nos. 02-1283, 02-1303

-----------------------------------------------------------X

UNITED STATES OF AMERICA,

 Appellee-Cross-Appellant,

- v. -

CHARLES L. JACKSON,

 Defendant-Appellant-Cross-Appellee.

-----------------------------------------------------------X

Before: McLAUGHLIN and B.D. PARKER, Circuit Judges, and

Goldberg, Judge.

*

Defendant appeals from a judgment entered after a jury

verdict in the United States District Court for the Western

District of New York (Larimer, J.) finding him guilty of

conspiracy to import five or more kilograms of cocaine into the

United States from Jamaica. The Government cross-appeals the

district court’s grant of a Rule 29 motion of acquittal solely as
2

to the jury’s drug quantity determination.

AFFIRMED IN PART and VACATED and REMANDED IN PART with

instructions to resentence the defendant in accordance with the

jury verdict.

FRED S. GALLINA, Gallina Law

Offices, Rochester, NY, for

Defendant-Appellant-Cross-Appellee.

CHRISTOPHER P. TUITE, Assistant

United States Attorney, for Michael

A. Battle, United States Attorney

for the Western District of New

York, Rochester, NY, for AppelleeCross-Appellant.

McLAUGHLIN, Circuit Judge:

This appeal presents two significant issues: (1) whether

statements, made by a co-conspirator at his plea allocution, that

arguably exculpate the defendant are admissible at the

defendant’s trial; and (2) whether a jury determination as to the

quantity of cocaine attributable to the defendant’s conspiracy

was supported by the trial evidence.

After a trial in the United States District Court for the

Western District of New York (Larimer, J.), a jury found

defendant Charles L. Jackson guilty of conspiring to import 5

kilograms or more of cocaine into the United States. Although

the district court denied Jackson’s motion for acquittal as to

the conspiracy, it did grant Jackson’s motion for acquittal as to

the jury’s drug quantity determination. The court concluded that
3

Jackson was guilty of the lesser-included offense of conspiracy

to import between 500 grams and 5 kilograms of cocaine. 

Jackson challenges his conviction on evidentiary grounds. 

He contends that the court abused its discretion in refusing to

admit the entire plea allocution of co-conspirator Steve Brown.

The Government cross-appeals the district court’s grant of

Jackson’s motion of acquittal on drug quantity, contending that a

reasonable jury could easily have found that Jackson’s conspiracy

involved at least 5 kilograms of cocaine.

We find Jackson’s evidentiary challenge meritless. We also

conclude that the district court erred in granting Jackson’s Rule

29 motion because there was more than sufficient evidence for a

jury to find that Jackson conspired to import 5 or more kilograms

of cocaine. Accordingly, we vacate the district court’s grant of

Jackson’s Rule 29 motion and remand to the district court for

resentencing in accordance with the jury’s verdict.

BACKGROUND

Jackson, Steve Brown, and Sincerray Gina Sullivan were

charged in a Superseding Indictment with one count of conspiracy

to import 5 or more kilograms of cocaine into the United States

between October 1998 and March 2000, in violation of 21 U.S.C. 

§§ 952(a), 963 & 960(b)(1)(B). Brown and Sullivan ultimately

pled guilty to this charge, as did several other co-conspirators

in a series of separate cases.
4

I. The Government’s Case

The proof at trial established that Brown and Lionel Guthrie

ran an organization that hired couriers from Rochester, New York

to smuggle cocaine from Jamaica into the United States. The

Government called four co-conspirators to prove the existence of

the conspiracy and to describe Jackson’s role as a drug courier. 

Lewis Snowden, Shatrina Jackson (a distant relative of the

defendant), Lakisha Sinkler, and Sullivan explained how the

smuggling operation worked: Brown provided his couriers with

all-expense-paid round trips to Jamaica. Before leaving Jamaica,

the couriers were given pellets of cocaine, which they swallowed

or hid on their persons. Back in Rochester, the couriers were

paid for their efforts based on how much cocaine they imported,

typically from one-half to 1 kilogram. 

The testimony of Lakisha Sinkler was the most extensive. 

Sinkler, Jackson’s longtime girlfriend and the mother of one of

his children, testified that she went on two smuggling trips to

Jamaica with Jackson, as well as four smuggling trips on her own. 

These trips were coordinated and financed by Brown. Sinkler made

her first smuggling trip in October 1998. Brown promised Sinkler

that she would be paid $2,500 for importing half a kilogram of

cocaine and $5,000 for a whole kilogram. Sinkler flew to

Jamaica, ingested cocaine tablets that she got from Brown’s coconspirators, and was paid $2,500 upon her return.
5

Two months later, Jackson accompanied Sinkler on her second

smuggling trip to Jamaica. Jackson agreed to join her on this

trip after discussing with her and Brown how much cocaine Jackson

would be asked to import and the money he could expect for his

efforts. Prior to her second trip, Sinkler and Jackson obtained

their birth certificates together in Rochester; and Brown gave

them spending money and round-trip plane tickets to Jamaica. 

Sinkler and Jackson then flew to Jamaica, stayed at the same

hotel for a week and, on the night before their departure,

swallowed the cocaine pellets they were given. Sinkler estimated

that Jackson swallowed over 100 cocaine pellets. Sinkler herself

ingested about 40 pellets and carried the remaining pellets in

her undergarments. When they landed in Rochester, they were

picked up at the airport by Brown and his girlfriend, coconspirator Gina Sullivan. They went to Sinkler’s house, took

laxatives, and passed the cocaine pellets. The following day,

Sinkler was paid between $1,800 and $2,000, while Jackson

received $5,000 for his efforts.

Jackson took his second smuggling trip to Jamaica two months

later. According to Sinkler, Jackson went on this February 1999

smuggling trip alone because Brown wanted only a kilogram of

cocaine and did not want to spend the money on trips for two. 

Having stayed in Jamaica for a few days, Jackson returned to

Rochester where Brown met him at the airport. Brown dropped
6

Jackson off at Sinkler’s house. There Jackson passed over 100

cocaine pellets. Sinkler’s best recollection was that Brown paid

Jackson $5,000 for this trip.

Sinkler took her third smuggling trip to Jamaica in May

1999, this time going alone. Brown paid her between $1,800 and

$2,000 to smuggle slightly less than half a kilogram of cocaine. 

According to Sinkler, she and Jackson took their second

joint smuggling trip in August 1999. As with their December 1998

trip, Brown provided the round-trip plane tickets and spending

money in advance. They stayed at the same hotel while in

Jamaica, swallowed and hid cocaine on their persons, and flew

back to Rochester together. On their return flight, Jackson

encountered co-conspirator Shatrina Jackson along with her

smuggling companion, Kyshea Talbert. During a short discussion

with Shatrina, Jackson learned that Shatrina and Talbert were

also in the process of smuggling cocaine from Jamaica on behalf

of both Brown and Lionel Guthrie. Once back in Rochester,

Sinkler was paid about $2,500, and Jackson was paid $5,000.

Sinkler also testified that, at some point in 1999, Jackson

became dissatisfied with the money they were getting for their

smuggling efforts. He told her that they should ask for more

money because the “key and a half” of cocaine they were smuggling

on each trip had a street value of about $60,000.

Jackson agreed to go on another smuggling trip to Jamaica
7

with Sinkler in November 1999. As with the earlier trips, Brown

provided Sinkler and Jackson with round-trip plane tickets and

spending money. The very night before they were set to leave,

however, Jackson told Sinkler that he could not make the trip

because another woman was giving birth to his child. Sinkler

ultimately went on this scheduled trip to Jamaica alone. Upon

her return to Rochester, Brown paid her $2,500 for smuggling

cocaine in her undergarments. 

Gina Sullivan corroborated Sinkler’s version of all these

events. Sullivan testified that she was present when Jackson met

with Brown the night before Jackson was scheduled to leave and

heard Jackson tell Brown that he would have to postpone his

scheduled trip for one week. When Brown later told Guthrie about

Jackson’s change in plans, Guthrie was disappointed, stating that

Jackson was “like a dump truck” because he could bring a kilogram

of cocaine back from Jamaica at one time. 

Jackson eventually rescheduled his own trip to Jamaica for

sometime in December 1999. The night before he was scheduled to

leave, however, he again suffered cold feet. He balked because

of “bad feelings” about the trip, and offered to repay Brown the

up-front money he had already spent. Jackson later reneged,

telling Sullivan that Brown would just have to take it as a loss. 

Jackson later had Sinkler return Jackson’s unused plane tickets

to Brown.
8

Some few months later, Jackson told Sinkler that he had made

his last smuggling trip. Sinkler, however, accepted another

smuggling assignment in March 2000. On her re-entry into the

United States, she was arrested by U.S. Customs and was found to

possess 498 grams of cocaine. She began cooperating with

investigators immediately and ultimately pled guilty pursuant to

a cooperation agreement with the Government.

Like Sinkler, Shatrina and her smuggling companion, Kyshea

Talbert, were apprehended by U.S. Customs in December 1999

following a trip to Jamaica. They possessed about 1.2 kilograms

and 698 grams of cocaine, respectively. Shatrina, too, pled

guilty pursuant to a cooperation agreement with the Government.

Besides the testimony of the co-conspirators, the Government

elicited testimony from veteran U.S. Customs Inspector William

Walker regarding narcotics smuggling. Walker testified that

couriers such as Jackson are capable of ingesting a full kilogram

of narcotics at a time. 

The Government put into evidence about 3 kilograms of the

cocaine it had seized from Sinkler, Shatrina, and other couriers

during the course of the conspiracy. In addition, the Government

put into evidence customs, travel agency, bank and other

documentary records relating to the series of smuggling trips

taken by Sinkler and Jackson. 

At the close of the Government’s case, Jackson moved
9

pursuant to Rule 29 for a judgment of acquittal. The district

court denied the motion as to the conspiracy charge, but reserved

decision on the pivotal issue of drug quantity.

II. Jackson’s Defense

Jackson made an effort to admit Steve Brown’s entire plea

colloquy under Federal Rules of Evidence 804(b)(1) & (b)(3) based

on Brown’s unavailability to testify. The Government indicated

that it would not oppose Jackson’s application under Fed. R.

Evid. 804(b)(3) if the colloquy was limited to those portions

that were self-inculpatory of Brown. Defense counsel, however,

sought to admit the entire plea colloquy, particularly those

portions that appeared to exculpate Jackson in addition to Brown. 

The district court denied Jackson’s application.

III. The Jury Verdict

After both sides rested, the district court instructed the

jury on the elements of the charge. With respect to drug

quantity, the court instructed the jury that Jackson was

responsible for the quantity of drugs that he himself conspired

to import plus the amount of drugs that other conspirators

conspired to import if Jackson knew of the importation or could

reasonably foresee that other co-conspirators were conspiring to

import certain quantities of cocaine:

Mr. Jackson’s only responsible for the amount of

drugs for which he knew or reasonably should have

known about. It must have been known or reasonably

foreseeable to him that his co-conspirators would
10

import drugs and a certain quantity of drugs. In

considering and answering that question, you may

consider the amount of drugs Mr. Jackson imported

when this conspiracy began, when he became a member

of it, what he did, whether he knew all the other coconspirators, and whether he knew about the drugs

that were imported by other co-conspirators, and were

other drugs that were involved, were they in

furtherance of the conspiracy.

At the conclusion of its instructions to the jury, the

district court gave the jury a series of lesser-included offenses

which varied from the charge in the Indictment only with respect

to the amount of cocaine involved in the conspiracy. The jury,

apparently crediting the testimony of the co-conspirators,

returned a guilty verdict on the top count: conspiracy to import

5 or more kilograms of cocaine. This quantity is vigorously

contested on appeal.

IV. Jackson’s Rule 29 Motion for Acquittal

After trial, the district court invited submissions from the

parties on Jackson’s pending Rule 29 motion for acquittal on the

issue of how much cocaine was attributable to him. Jackson

argued that the evidence failed to support the jury finding that

he conspired to import 5 or more kilograms of cocaine. The

Government, on the other hand, contended that a rational juror

could easily have found that Jackson conspired to import 5 or

more kilograms of cocaine.

The controversy over drug quantity was hardly academic. 

Under statute, Jackson faced a mandatory minimum of 10 years’
11

imprisonment since the jury found his conspiracy involved 5 or

more kilograms of cocaine. See 21 U.S.C. § 960(b)(1)(B). If the

amount of cocaine attributable to Jackson were less than 5

kilograms, however, his statutory mandatory minimum was only 5

years’ imprisonment. See 21 U.S.C. § 960(b)(2)(B). 

After oral argument, the district court granted Jackson’s

Rule 29 motion, concluding that a reasonable juror could find

that, at most, Jackson conspired to import only between 3.5 and 5

kilograms of cocaine. Therefore, the court threw out Jackson’s

conviction and instead found Jackson guilty of the lesserincluded charge of conspiring to import between 500 grams and 5

kilograms of cocaine. 

In arriving at this decision, the court reasoned that

Sinkler’s testimony about the cocaine that Jackson himself

smuggled was speculative and imprecise. The court further noted

that the evidence did not support the finding that Jackson was

aware of all of the trips that Sinkler and Shatrina had taken,

let alone “the quantity [of cocaine] that they brought in.” 

Therefore, in the face of what it termed “the estimation or

opinion and imprecise calculation[s]” of witnesses who “were not

scientists or mathematicians,” the court concluded that the proof

at trial was too speculative to sustain the jury’s verdict.

After rejecting Jackson’s motion for a downward departure

based on extraordinary family circumstances, the court sentenced
12

Jackson to 87 months’ imprisonment and a 5 year term of

supervised release.

This appeal ensued.

DISCUSSION

I. The Exclusion of Brown’s Plea Allocution Statements

On appeal, Jackson contends that the district court

improperly excluded Brown’s plea allocution at trial. 

Specifically, Jackson challenges the exclusion of Brown’s

statement that Brown never supervised Jackson. He argues that

Brown’s plea allocution should have been admitted under one of

the following exceptions to the hearsay rule: (1) former

testimony; (2) statements against penal interest; or (3) the

residual hearsay exception. None of these contentions has merit. 

A. Brown’s Plea Allocution

It is not without significance that Brown’s plea allocution

was internally inconsistent as to the relationship between Brown

and Jackson during the conspiracy. Brown’s signed plea agreement

expressly stated that Brown managed and supervised various

couriers, including Jackson. At his oral plea allocution, the

district court asked Brown whether this statement from his plea

agreement was true; Brown responded that it was indeed true. The

district court then specifically asked Brown whether he had any

arrangements with Jackson to bring drugs into the country. 

Again, Brown said yes. 
13

To be sure, later in his plea allocution, Brown claimed that

he never supervised Jackson or requested that Jackson go to

Jamaica. When asked to clarify his relationship with Jackson in

light of his previous admission -- both minutes earlier and in

his written plea agreement -- that he had indeed supervised

Jackson during the conspiracy, Brown waffled once again. Brown

now claimed that Jackson smuggled cocaine only for Guthrie. 

Brown later conceded, however, that Guthrie was the overall

director of the smuggling operation and that he worked together

with Guthrie and others.

B. Standard of Review

We review the district court’s evidentiary rulings for abuse

of discretion. See, e.g., United States v. Yousef, 327 F.3d 56,

156 (2d Cir. 2003) (per curiam). The district court has broad

discretion regarding the admission of evidence, and the court’s

evidentiary determinations will be reversed only if they are

“manifestly erroneous.” United States v. SKW Metals & Alloys,

Inc., 195 F.3d 83, 87 (2d Cir. 1999). Generally, we will not

overturn a district court’s evidentiary rulings unless the court

“acted arbitrarily or irrationally.” Id. at 88 (quoting United

States v. Blanco, 861 F.2d 773, 781 (2d Cir. 1988)).

C. Former Testimony

Under Rule 804(b)(1), an unavailable witness’s testimony

from a prior hearing or proceeding is not barred by the hearsay
1Although he had already pled guilty, Brown had not yet been

sentenced at the time of Jackson’s trial. It is well established

that a witness may invoke his Fifth Amendment right, and is

therefore unavailable for purposes of Rule 804(b), during the

time lapse between his plea and sentencing. See, e.g., United

States v. Bahadar, 954 F.2d 821, 824 (2d Cir. 1992).

14

rule

if the party against whom the testimony is now offered

. . . had an opportunity and similar motive to develop

the testimony by direct, cross, or redirect

examination.

Fed. R. Evid. 804(b)(1). This requirement “operates to screen

out those statements, which although made under oath, were not

subject to the scrutiny of a party interested in thoroughly

testing [their] validity.” United States v. Pizarro, 717 F.2d

336, 349 (7th Cir. 1983). 

Here, both sides concede that Brown was unavailable at

Jackson’s trial because he had properly invoked his Fifth

Amendment right against self-incrimination. See, e.g., United

States v. Dolah, 245 F.3d 98, 102 (2d Cir. 2001) (“It is settled

in this Circuit that a witness who invokes the privilege against

self-incrimination is ‘unavailable’ within the meaning of Rule

804(b) . . . .”).1 Therefore, the core issue we must address is

whether the Government had an opportunity and similar motive to

examine Brown at his plea allocution. Although we have not had

occasion to address this issue, two of our sister circuits have

found that the Government has neither the opportunity nor a

similar motive to examine a defendant at a plea allocution as it
15

has at trial. See United States v. Powell, 894 F.2d 895, 901

(7th Cir. 1990); United States v. Lowell, 649 F.2d 950, 965 (3d

Cir. 1981). 

Although Jackson concedes in his reply brief that

“[o]pportunity and motive to examine the declarant [at a plea

allocution] may not technically be the same as at a trial,” he 

nevertheless contends that the Government did have the requisite

opportunity and motive here. Jackson attributes great weight to

the fact that the Government was permitted to ask Brown one

follow-up question during Brown’s plea allocution regarding

Brown’s supervisory role over Jackson. Jackson’s attempt to

equate the Government’s function and motives during a plea

allocution with those at trial reflects a misguided view of the

nature and purpose of plea proceedings.

1. Opportunity

Under Fed. R. Crim. P. 11, the purpose of a plea proceeding

is to ensure that the defendant’s plea is knowing, voluntary, and

grounded on a proper factual basis. See Fed. R. Crim. P. 11(b);

Mitchell v. United States, 526 U.S. 314, 322-24 (1999). Under

the Rule, a plea proceeding is conducted solely by the district

court judge who is primarily responsible for ensuring that the

requirements of Rule 11 are satisfied. On the rare occasion

where the prosecutor is permitted to address the defendant, the

questions posed are usually formulaic and perfunctory. The
16

Government’s role at a plea proceeding is quite limited, and

certainly does not include the opportunity to engage in the type

of examination contemplated by Rule 804(b)(1). See 5 Jack B.

Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence

§ 804.04[3][a], at 804-33 (Joseph M. McLaughlin ed., 2d ed. 2003)

(“If the opportunity to cross-examine [is] lacking, the prior

testimony must be excluded.”). As Judge Larimer wisely noted, if

the rule were otherwise, plea colloquies would consume pages of

examination exploring the minutiae of the defendant’s conduct.

2. Similar Motive 

Nor does the Government have a similar motive to examine a

defendant at a plea allocution as it has at trial. We have held

that the proper inquiry in assessing similarity of motive under

Rule 804(b)(1) is to determine “whether the party resisting the

offered testimony at a pending proceeding had at a prior

proceeding an interest of substantially similar intensity to

prove (or disprove) the same side of a substantially similar

issue.” United States v. DiNapoli, 8 F.3d 909, 914-15 (2d Cir.

1993) (en banc). Moreover, “[i]f a fact is critical to a cause

of action at a second proceeding but the same fact was only

peripherally related to a different cause of action at a first

proceeding, no one would claim that the questioner had a similar

motive at both proceedings to show that the fact had been

established (or disproved).” Id. at 912. 
17

We agree with the Third and Seventh Circuits that the

Government does not have the same motive to examine the defendant

at a plea hearing as it does at other proceedings. See United

States v. Lowell, 649 F.2d 950, 965 (3d Cir. 1981); United States

v. Powell, 894 F.2d 895, 901 (7th Cir. 1990). Here, the

Government had no reason to cross-examine Brown at his plea

allocution about his supervision over Jackson. That Brown’s plea

colloquy may have included misstatements or inaccuracies did not

preclude it from providing an adequate factual basis for the

plea. See Lowell, 649 F.2d at 965 (co-defendant’s “denial of

receipt of payment from [defendant], even if it were untrue, did

not deprive his plea of guilty on the conspiracy charge of a

‘factual basis’”). The district court, therefore, did not abuse

its discretion in excluding Brown’s plea allocution under Rule

804(b)(1).

D. Statement Against Penal Interest

Jackson’s contention that Brown’s plea allocution might be

admissible under Rule 804(b)(3) is a stronger argument, but it

too is ultimately without merit.

Rule 804(b)(3) allows the admission of a hearsay statement

by an unavailable witness if that statement

at the time of its making . . . so far tended to

subject the declarant to civil or criminal liability .

. . that a reasonable person in the declarant’s

position would not have made the statement unless

believing it to be true.
18

Fed. R. Evid. 804(b)(3). This exception rests on the notion that

“reasonable people, even reasonable people who are not especially

honest, tend not to make self-inculpatory statements unless they

believe them to be true.” Williamson v. United States, 512 U.S.

594, 599 (1994). 

Rule 804(b)(3) further requires that, if the statement

exposes the declarant (i.e. Brown) to criminal liability and is

offered to exculpate the accused (i.e. Jackson), the proponent of

the statements must identify “corroborating circumstances [that]

clearly indicate the trustworthiness of the statement.” Id. at

605. The purpose of this corroboration requirement is to

“circumvent[] fabrication” by the declarant. See Fed. R. Evid.

804(b)(3) Advisory Committee Notes. To effectuate this purpose,

we require corroboration of “both the declarant’s trustworthiness

as well as the statement’s trustworthiness.” United States v.

Bahadar, 954 F.2d 821, 829 (2d Cir. 1992) (emphasis in original).

Although we have recognized that statements from a guilty

plea allocution can be admitted under Rule 804(b)(3), see, e.g.,

United States v. Gallego, 191 F.3d 156, 166-68 (2d Cir. 1999)

(portions of co-conspirator’s plea properly admitted solely to

establish a conspiracy), their admission is strictly

circumscribed by the Supreme Court’s holding in Williamson v.

United States, supra. In Williamson, the Supreme Court found

that Rule 804(b)(3) “does not allow admission of non-self-
19

inculpatory statements, even if they are made within a broader

narrative that is generally self-inculpatory.” 512 U.S. at 600-

01. In Williamson’s wake, we have repeatedly emphasized that

each particular hearsay statement offered under Rule 804(b)(3)

must be separately parsed and must, itself, be self-inculpatory. 

See, e.g., United States v. Tropeano, 252 F.3d 653, 658 (2d Cir.

2001); United States v. Sasso, 59 F.3d 341, 349 (2d Cir. 1995).

Here, Jackson cannot satisfy Rule 804(b)(3). Most

significantly, the statements by Brown that Jackson sought to

introduce at trial were not themselves self-inculpatory as to

Brown. They did not, therefore, satisfy Williamson. Brown’s

statements that he never supervised Jackson and never asked

Jackson to go to Jamaica to smuggle drugs did not in any way

inculpate Brown or expose him to criminal liability. 

Accordingly, the separate guarantee of trustworthiness required

by Rule 804(b)(3) is non-existent as to these statements. If

anything, these statements were probably exculpatory as to Brown

as they minimized the number of people that he supervised during

the conspiracy. 

Moreover, even if Brown’s statements could be construed as

self-inculpatory, Jackson has failed to satisfy the corroboration

requirement of Rule 804(b)(3). There is no question that during

his plea allocution Brown made conflicting assertions about

Jackson’s role in the conspiracy. For example, Brown first
20

asserted that Jackson was a person with whom he had arrangements

to smuggle drugs into the country. At another point, however,

Brown claimed that Jackson smuggled cocaine into the country only

for Guthrie. These inconsistencies “would properly make any

district judge suspicious of the statement[s’] reliability.” 

Bahadar, 954 F.2d at 829. 

Finally, as Judge Larimer observed, Brown’s own motives for

making the statements exculpating Jackson were highly suspect. 

Because Brown was aware at the time of his plea that there was a

possibility that he could be called upon to testify at Jackson’s

trial (he was on the Government’s witness list), the district

court sagely noted that Brown’s apparent attempt to exculpate

Jackson may well have been an effort to avoid testifying against

one of his co-conspirators. 

Accordingly, the district court did not abuse its discretion

in failing to admit Brown’s plea allocution statements under the

Rule 804(b)(3) exception to the hearsay rule. 

E. Residual Exception

Jackson’s final evidentiary contention, that Brown’s plea

allocution satisfies the residual exception to the hearsay rule,

requires little discussion. Rule 807 provides that statements

not covered by Rule 803 or 804 “but having equivalent

circumstantial guarantees of trustworthiness” are not excluded by

the hearsay rule if they meet certain requirements. Here,
21

because Brown’s plea allocution statements lacked corroborating

circumstances indicating their trustworthiness under Rule

804(b)(3), the statements clearly lack “equivalent circumstantial

guarantees of trustworthiness” required under Rule 807. See id.

II. Jackson’s Rule 29 Motion: Quantity of Drugs

On cross-appeal, the Government seeks to reverse the

district court’s partial granting of Jackson’s Rule 29 motion. 

The Government focuses on the evidence regarding the specific

cocaine that: (1) Jackson himself conspired to import; (2)

Sinkler conspired to import on her smuggling trips to Jamaica

with Jackson; and (3) Sinkler and other co-conspirators of whom

Jackson had knowledge and could reasonably foresee would import

cocaine. The Government maintains that this evidence provided a

basis for a rational jury to conclude that Jackson conspired to

import cumulatively 5 or more kilograms of cocaine. Thus, the

Government contends the district court erred by setting aside the

jury’s verdict that defendant was responsible for importing 5 or

more kilograms of cocaine.

A. Standard of Review 

We review de novo a district court’s grant of a Rule 29

motion based on a finding that the trial evidence was

insufficient to support the jury’s verdict. United States v.

Guadagna, 183 F.3d 122, 129 (2d Cir. 1999). On appeal, we apply

the same standard as the district court applied in its review of
22

the evidence. Id. Under Rule 29, a district court will grant a

motion to enter a judgment of acquittal on grounds of

insufficient evidence if it concludes that no rational trier of

fact could have found the defendant guilty beyond a reasonable

doubt. Fed. R. Crim. P. 29(a), (c); United States v. Reyes, 302

F.3d 48, 52 (2d Cir. 2002).

A defendant who challenges the sufficiency of the evidence

to support his conviction “bears a heavy burden.” United States

v. Finley, 245 F.3d 199, 202 (2d Cir. 2001). Not only must the

evidence be viewed in the light most favorable to the Government

and all permissible inferences drawn in the Government’s favor,

Guadagna, 183 F.3d at 129, but the jury verdict must be upheld if

“any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In

other words, a court may grant a judgment of acquittal only “if

the evidence that the defendant committed the crime alleged was

nonexistent or . . . meager.” Guadagna, 183 F.3d at 130

(internal quotations omitted).

We have emphasized that courts must be careful to avoid

usurping the role of the jury when confronted with a motion for

acquittal. Id. at 129 (“Rule 29(c) does not provide the trial

court with an opportunity to substitute its own determination of

. . . the weight of the evidence and the reasonable inferences to
23

be drawn for that of the jury.”) (internal quotations omitted). 

Indeed, it is the task of the jury, not the court, to choose

among competing inferences that can be drawn from the evidence. 

United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995). 

The traditional deference accorded to a jury’s verdict “is

especially important when reviewing a conviction for conspiracy .

. . because a conspiracy by its very nature is a secretive

operation, and it is a rare case where all aspects of a

conspiracy can be laid bare in court with the precision of a

surgeon’s scalpel.” United States v. Pitre, 960 F.2d 1112, 1121

(2d Cir. 1992) (internal quotations and citation omitted). 

Finally, we bear in mind that the jury's verdict may rest

entirely on circumstantial evidence. Martinez, 54 F.3d at 1043.

Jackson was convicted of conspiracy to import 5 or more

kilograms of cocaine into the United States. As required by

Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.

Thomas, 274 F.3d 655 (2d Cir. 2001) (en banc), the jury

determined drug quantity as an element of the offense. Jackson

does not challenge the jury’s finding that he participated in a

conspiracy to import cocaine. Therefore, we deal solely with the

quantity of cocaine the jury attributed to Jackson’s conspiracy. 

Under well-established law, Jackson was responsible not only for

the cocaine that he himself conspired to import but also for the

cocaine his co-conspirators conspired to import, provided he knew
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of his co-conspirator’s illicit activities or the activities were

reasonably foreseeable by him. See, e.g., United States v.

Martinez, 987 F.2d 920, 923-26 (2d Cir. 1993).

Applying these standards, we find that there is ample

support for the jury’s conclusion that Jackson conspired to

import 5 or more kilograms of cocaine.

B. Cocaine Attributable to Jackson’s Own Smuggling Efforts

Viewing the evidence in the light most favorable to the

Government and drawing all inferences in the Government’s favor,

as we must, there can be no dispute that a rational jury could

have found that Jackson personally conspired to import 1 kilogram

of cocaine on each of his three trips to Jamaica. This

conclusion is consistent with Sinkler’s testimony that Brown paid

Jackson $5,000 -- the agreed price for importing 1 kilogram of

cocaine -- after each of his three trips to Jamaica (in December

1998, February 1999, and August 1999). This conclusion is also

supported by Sinkler’s personal observations as to the number of

pellets Jackson swallowed and excreted on his trips to Jamaica. 

Additional support that the 3 kilograms are attributable to

Jackson for his own Jamaica trips is found in his complaints to

Sinkler that they were being underpaid for the “key and a half”

they were collectively smuggling on each trip. According to

Sinkler, Brown also requested that Jackson travel to Jamaica

alone in February 1999 because he needed only 1 kilogram of
25

cocaine. Finally, this conclusion is bolstered by the comment of

Guthrie, who it is fair to infer was familiar with Jackson’s

smuggling skills, that Jackson was like a “dump truck” because he

was capable of smuggling a whole kilogram of cocaine at a time.

A rational jury could also have found Jackson responsible

for another 1 kilogram of cocaine in connection with his

cancelled trip to Jamaica in November 1999. Our decision in

United States v. Dallas, 229 F.3d 105 (2d Cir. 2000), is

instructive. In Dallas, we found that a defendant who had agreed

to sell cocaine, but later decided to substitute flour for the

cocaine, was nonetheless responsible for the amount of cocaine he

had previously agreed to sell. See id. at 110-11. As we

recognized,

[C]onspiracy law maintains a conspirator’s liability

once a conspiracy has been formed and a defendant has

joined it. Abandoning the intent to continue with the

conspiracy does not unring the bell; as long as the

elements of the conspiracy offense have been

established, the prior intent renders [the defendant]

liable for conviction for conspiracy under criminal law

and liable for punishment under the Guidelines for the

amount of narcotics that he agreed and, at one time,

intended to sell. 

Id. (emphasis added); see also United States v. Rosa, 17 F.3d

1531, 1543 (2d Cir. 1994) (“What matters in a conspiracy

prosecution is whether the defendants agreed to commit the

underlying offense, not whether their conduct would actually have

constituted that offense.”).

A member of a conspiracy is therefore liable for an act he
26

agreed to and intended to commit in furtherance of the conspiracy

regardless of whether he ultimately committed the substantive

act. Applying Dallas to this case, it is manifest that Jackson

was accountable for conspiring to import 1 kilogram of cocaine --

an amount consistent with his 3 previous trips to Jamaica -- even

though he never actually took the trip.

Withdrawal from the conspiracy would obviously constitute an

exception to our holding in Dallas. Here, however, Jackson

cannot plausibly argue that he withdrew from the conspiracy in

November or December of 1999. To withdraw from a conspiracy, a

person must take some affirmative action “either [by] making . .

. a clean breast to the authorities . . . or communicati[ng] . .

. the abandonment in a manner reasonably calculated to reach coconspirators.” United States v. Salameh, 152 F.3d 88, 150 (2d

Cir. 1998) (internal quotations omitted). There is no evidence

in the record to indicate that, at that time, Jackson did

anything more than express reservations about going back to

Jamaica. In fact, he rescheduled his November 1999 trip for the

following month.

C. Jackson’s Liability for Sinkler’s Importation Quantities 

There is likewise no doubt that a rational jury could have

found Jackson responsible for the quantity of cocaine Sinkler

conspired to import on their joint trips to Jamaica in December

1998 and August 1999. Sinkler testified that she and Jackson
27

obtained their birth certificates together prior to their first

joint trip, stayed in the same hotel together, swallowed cocaine

pellets together, passed the pellets at Sinkler’s house together,

and obtained their payments from Brown together. Given that

Jackson was virtually inseparable from Sinkler during these

trips, it is clear that the cocaine Sinkler conspired to import

on these trips is attributable to Jackson. Cf. United States v.

Chalarca, 95 F.3d 239, 243-44 (2d Cir. 1996) (under the

Sentencing Guidelines, defendant deemed to be accountable for

jointly undertaken drug transactions in which “he personally

participates, in a direct way”).

In light of Sinkler’s testimony that Jackson complained

about being underpaid for the “key and a half” of cocaine that

they smuggled together, a reasonable jury could infer that

Sinkler conspired to import one-half kilogram of cocaine on each

of her trips to Jamaica. Sinkler’s testimony that she received

less than $2,500 for her December 1998 trip -- which could

suggest that the amount of cocaine she actual smuggled into the

United States was less than half a kilogram -- is of no

consequence. As in all conspiracy cases, the essence of the

crime is what the conspirators agreed to do, rather than what

they actually did. See, e.g., United States v. Gore, 154 F.3d

34, 40 (2d Cir. 1998) (“The essence of conspiracy is the

agreement and not the commission of the substantive offense.”);
28

United States v. Hendrickson, 26 F.3d 321, 333 (2d Cir. 1994)

(“In drug conspiracies, the conspirators’ agreement to produce

narcotics, not the actual possession, sale or delivery of the

drugs, is the essence of the crime.”). 

For these reasons, a rational jury could have determined

that Sinkler agreed to import one-half kilogram of cocaine on

each of her trips to Jamaica. This inference is also supported

by the fact that Sinkler was found in possession of almost onehalf kilogram of cocaine when she was arrested in March 2000.

In sum, when adding the 1 kilogram that Sinkler conspired to

import on her trips with Jackson in December 1998 and August 1999

to the 4 kilograms that Jackson conspired to import in December

1998, February 1999, August 1999, and November 1999, a rational

jury could find beyond a reasonable doubt that Jackson was

responsible for conspiring to import 5 or more kilograms of

cocaine.

D. Cocaine Quantities Reasonably Foreseeable By Jackson 

Although the foregoing calculations, standing alone, are

sufficient to uphold the jury’s verdict, there is yet another

reason to vacate the district court’s grant of Jackson’s Rule 29

motion: Jackson was responsible for the amounts that Sinkler

conspired to import on her trips to Jamaica without Jackson in

May and November of 1999 if those quantities were reasonably

foreseeable by him. 
29

Under fundamental conspiracy law Jackson is responsible for

any amount of cocaine that his co-conspirators agreed to import

so long as these amounts were within the scope of the conspiracy

and reasonably foreseeable by him. Here, based on the evidence

adduced at trial, a rational jury could have determined that the

cocaine that Sinkler agreed to smuggle in May and November 1999

lay within the scope of Jackson’s conspiratorial agreement and

was, therefore, reasonably foreseeable by him. 

Even though Jackson did not accompany Sinkler on these

trips, the facts that Sinkler was going to Jamaica to smuggle

cocaine and the amount that Sinkler had conspired to import on

these occasions could easily be found to be reasonably

foreseeable by Jackson. Particularly with respect to the

November 1999 trip, which Jackson had agreed to take with Sinkler

but later postponed when his child was born, there can be little

question that Jackson was aware of Sinkler’s smuggling

activities, as well as the amount of cocaine that she normally

agreed to import on a given trip. In short, a rational jury

could have found that Jackson was responsible for an additional 1

kilogram of cocaine based on Sinkler’s smuggling trips in May and

November 1999. 

Because of the copious evidence supporting the jury’s

verdict that Jackson conspired to import 5 or more kilograms of

cocaine, we need not address the Government’s additional
30

arguments that Jackson was responsible for cocaine smuggled by

other co-conspirators.

In sum, we hold that, under the evidence adduced at trial, a

rational jury could have found beyond a reasonable doubt that

Jackson conspired to import 5 or more kilograms of cocaine.

CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED IN PART and VACATED IN PART, and the case is

REMANDED to the district court with instructions to resentence

Jackson in accordance with the jury verdict.