REVISED - JULY 1, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-31030

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GAVIN ALLAN PAUL;

PATRICK CARLOS BRITTON

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

May 29, 1998

Before EMILIO M. GARZA, STEWART, and DENNIS Circuit Judges.

CARL E. STEWART, Circuit Judge:

This case is before us on appeal from defendants’ convictions in the district court of one count

each of conspiracy to possess with the intent to distribute cocaine hydrochloride, in violation of 21

U.S.C. §§ 841(a)(1) and 846, and one count each of conspiracy to import cocaine hydrochloride into2

the United States, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 963. For the following reasons

we AFFIRM in part and REVERSE in part.

BACKGROUND

During the week of January 21, 1996, the United States Customs Service (“Customs”) was

contacted by a Guyanese seaman who was then serving aboard the Motor Vessel Mini Loom (“Mini

Loom”). The crewman, Abdool Adam, advised Customs agents that a man known only as “Mike”

had placed a quantity of cocaine on board the Mini Loom while the vessel was docked in Guyana.

“Mike” had asked Adam to help him smuggle the cocaine into the United States. “Mike” instructed

Adam to call a certain telephone nu mber in Guyana once the vessel arrived in New Orleans, and

explained that someone would come to take delivery of the cocaine from Adam in New Orleans.

The Mini Loom

arrived in New Orleans on February 8, 1996. On the following day, the

vessel was boarded and searched by United States Customs agents who discovered approximately

10 kilograms (23.2 pounds) of cocaine on b o ard. After seizing the drugs, Customs agents then

formulated a plan to make a controlled delivery of a cocaine substitute to whomever “Mike” sent to

pick up the drugs from Adam.

On February 12, 1996, Adam made a number of calls to “Mike” in Guyana regarding delivery

of the cocaine. Each of these calls was recorded by customs agents. In one of the calls, “Mike” told

Adam that he had contacted a courier named “Harry” in New York who would fly to New Orleans

to meet w it h Adam. In the same telephone conversation, “Mike” inadvertently revealed that

“Harry’s” name was actually “Gavin.”3

On the same day, in New York, Gavin Paul purchased an airline ticket for a flight leaving for

New Orleans on February 13, 1996. Upon arriving in New Orleans, Paul checked into the French

Quarter Courty ard Inn. Also on that day, “Mike” gave Adam a number through which he could reach

the courier. The phone number was that of the French Quarter Courtyard Inn. Adam called the

number and spoke to “Harry” regarding delivery of the cocaine. They arranged to meet at the docks,

but “Harry” never arrived.

When “Harry” did not arrive, Adam called the same hotel telephone number and

learned that “Harry” had checked out of the hotel. Customs agents were present when Paul checked

out of the hotel and observed him take a taxi to the Days Inn located on Williams Boulevard near the

airport. Paul checked into the Days Inn under his companion Suzette Telford’s name and paid cash

for the room.

When Adam told “Mike” that the courier had not arrived, “Mike” informed Adam that he had

another man in town who would pick up the cocaine. Shortly thereafter, Adam received a call from

a man who identified himself as “P.” Adam and “P” then made arrangements to deliver the cocaine.

“Mike” t hen called Adam to tell him that he should deal with “P” instead of “Harry”. “Mike”

indicated that “P” would arrive at the docks by taxi to pick up the cocaine, but that he would not have

t he money with him. Rather, Adam was to get the money from “Harry.” “P” called Adam a few

minutes later and told Adam he would arrive in about half an hour.

Thereafter, defendant Patrick Britton arrived at the dock in a taxi. Bri tton spoke to Adam,

pulled a gray tweed suitcase out of the t axi, and handed it to Adam. Adam then transferred ten

packages of substitute cocaine into Britton’s suitcase. Britton then took the suitcase and drove away

in the taxi.4

A few minutes later, Harbor Police stopped the taxi and arrested Britton. At the time of his

arrest, Bri tton had a piece of paper on which the telephone number of the dockside public telephone

had been written. This telephone number was the one at which Adam had received a call from the

individual who identified himself as “P.”

Shortly thereafter, Paul was arrested at his hotel. Seized from the room was approximately

$10,000 and an address book in w hich he had written the directions to where the Mini Loom was

docked.

Both Paul and Britton were charged with one count each of conspiracy to possess with the

intent to distribute cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one

count each of conspiracy to import cocaine hydrochloride into the United States, in violation of 21

U.S.C. §§ 952(a), 960(a)(1), and 963.

Both Paul and Bri

tton were convicted on both the counts. Each was sentenced to 121 months

for each offense to be served concurrently. Britton was also given a fine of $5,000.

On appeal, Paul and Bri tton argue that the evidence was insu fficient to support their

convictions. Additionally, Britton argues that the district court erred in denying his motion to

suppress statements m ade in an unrelated airport stop based on an alleged violation of his Fifth

Amendment rights, and that the district court erred in denying his motion for a mistrial based on the

government’s reference to Britton’s use of stolen cellular telephone service.

DISCUSSION

I. Sufficiency of the Evidence5

We will find that there was sufficient evidence to support the convictions of Paul and Bri tton

if any reasonable trier of fact could have found that the evidence presented at trial established the

essential elements of the crime beyond a reasonable doubt. S ee United States v. Alix , 86 F.3d 429,

435 (5th Cir. 1996). Moreover, we review challenges to the sufficiency of evidence in the light most

favorable to the Government. See Glasser v. United States , 315 U.S. 60 (1942); United States v.

Ivy

, 973 F.2d 1184, 1188 (5th Cir. 1992); U nited States v. Lechuga , 888 F.2d 1472, 1476 (5th Cir.

1989).

To establish a drug conspiracy under 21 U.S.C. § 846 or § 963, the government must prove

beyond a reasonable doubt (1) an agreement between two or more persons to violate the narcotics

laws, (2) that each alleged conspirator knew of the conspiracy and intended to join it, and (3) that

each alleged conspirator did participate voluntarily in the conspiracy. U nited States v. Inocencio

,

40 F.3d. 716, 725 (5th Cir. 1994) (21 U.S.C. § 846); U nited States v. Puig-Infante , 19 F.3d 929,

936 (5th Cir. 1994) (21 U.S.C. §§ 846 and 936). “The jury may infer any element of this offense

from circumstantial evidence." L echuga

, 888 F.2d at 1476. Thus, “[a]n agreement may be inferred

from concert of action, [v]oluntary participation may be inferred from a collocation of circumstances,

and [k]nowledge may be inferred from surrounding circumstances." Id . at 1476-77 (ci tati on and

quotati on marks omitted). Once the Government has produced evidence of a conspiracy, substantial

evidence is needed to connect an individual to that conspiracy. U nited States v. Malatesta

, 590 F.2d

1379, 1381, (5th Cir. 1979). Proof of the mere presence o f the defendant at a scene of criminal

activity and his association with the other defendants is insufficient to support a criminal conviction.

United States v. Carrillo-Morales

, 27 F.3d 1054, 1065 (5th Cir. 1994). However, “[a] jury may find

knowledgeable, voluntary participation from presence when the presence is such that it would be6

unreasonable for anyone other than a knowledgeable participant to be pr esent." U nited States v.

Cruz-Valdez

, 773 F.2d 1541, 1546 (11th Cir. 1985) (en banc) (cited in United States v. Henry

, 849

F.2d 1534, 1536 (5th Cir. 1988)).

A. Conspiracy to Possess

Paul

Paul argues that he was not a part of the conspiracy because he would not comply wit h

Adam’s request that he pick up the cocaine and d e liver the money. Paul further argues that his

actions thwarted the conspiracy and evidence his unwillingness to join the conspiracy. However, we

conclude that the evidence presented by the Government was sufficient to support Paul’s convictions

for conspiracy to possess with intent to distribute cocaine.

In the taped t elepho ne conversations, “Mike” gave Adam the telephone number and room

number of Paul’s hotel room at the French Quarter Courty ard Inn. When Adam called that number,

Paul answered the telephone, discussed delivery of the cocaine, and obtained detailed directions to

the ship’s berth. Paul was then observed by Customs agents leaving the French Quarter hotel and

t raveling by taxi to the Days Inn on Williams Boulevard. Paul then called Adam at the public

telephone near the ship’s berth and told Adam that he would call back in about 45 minutes. Paul was

subsequently arrested at his Days Inn motel room and found to be in possession of approximat ely

$10,000 in cash and an address book containing directions to the ship’s berth. It is reasonable for the

jury to have concluded from this evidence that Paul agreed with “Mike” to possess the cocaine and

that he voluntarily participated in the conspiracy by traveling to New Orleans, obtaining $10,000 in

cash to pay Adam, and attempting to make arrangements to pick up the cocaine from Adam’s ship.7

Although he did not actually pick up the cocaine, his actions do not in d icate that he refused to

participate i n t he conspiracy or that he thwarted the conspiracy. Therefore, we affirm Paul’s

conviction for conspiracy to possess with intent to distribute cocaine.

Bri tton

The evidence is also sufficient to support Britton’s conviction for conspiracy to possess with

intent to distribute cocaine. Britton traveled to New Orleans on the same night that he went to

Adam’s ship. Britton called Adam shortly after arriving in New Orleans, identified himself as “P,”

and told Adam he would arrive at the ship in half an hour. “Mike” also called Adam, told him to deal

with “P” instead of “Harry” and told Adam that “P” would arrive in a taxi. A short time later, Britton

arrived at the ship in a taxi and handed a suitcase to Adam. Adam placed the substitute cocaine in

the suitcase and handed it back to Britton. Britton took the suitcase loaded with substitute cocaine

from Adam and drove away in the taxi. It was reasonable for the jury to conclude that the evidence

presented by the Government established that Britton agreed with “Mike” to possess cocaine with

intent to distribute and that he voluntarily participated in the conspiracy through the above actions.

Therefore, we affirm Britton’s conviction for conspiracy to possess with intent to distribute cocaine.

B. Conspiracy to Import

To establish a conspiracy to import, the Government must prove that Paul and Bri tton agreed

to import the cocaine into the United States and knowingly and voluntarily participated in the

agreement. United States v. Obregon , 893 F.2d 1307, 1311 (11th Cir. 1990). Such an agreement

may be proved by circumstantial evidence. I d. “The government pro vides sufficient proof of

knowledge by demonstrating the conspirator knew of the essential purpose of the conspiracy,” even8

if he may not have known all of the relevant details. I d. “A conviction for the crime of importation

of [a controlled substance] requires proof that the defendant knowingly played a role in bringing [the

controlled substance] from a foreign country into the United States.” U nited States v. Diaz-Carreon

,

915 F.2d 951, 953 (5th Cir. 1990).

W e have never before decided whether facts of the type present in this case constitute

evidence sufficient to support a conviction for conspiracy to import a controlled substance into the

United States. In a case involving much more probative evidence, the First Circuit determined that

such evidence was sufficient to support a conviction for conspiracy to import a controlled substance.

United States v. Rengifo , 858 F.2d 800, 806-09 (1st Cir. 1988). In Rengifo , the appellants argued

that there was insufficient evidence to support their convictions for conspiracy to import cocaine into

the United States. Based on information from an informant that a vessel which had just arrived from

Columbia was carrying coc aine, po lice set up surveillance of the vessel. I d. at 802-03. Police

observed two men drive to the dock area several times. Id. at 802. Police also observed a second

car drive to the dock area. Id. A few days later in the early morning, government agents observed

two men darkly dressed move toward the bow of the vessel. I d. They were met by a crewman from

the ship who handed them two duffel bags in exchange for a large white plastic bag. Id. at 802-03.

The two men then ran to another area of the dock. Id. at 803. Agents pursued the men and found

them lying on their stomachs, crawling down an incline toward an opening in a fence. I d. About six

feet away from the men, agents found two duffle bags containing over 55 kilograms of cocaine. I d.

Agents later discovered a white plastic bag on the vessel containing $89,610. Id.

Agents had previously observed a second automobile drive to the vessel and then drive to the

Howard Johnson Inn. I d. at 802. After agents arrested the two men at the vessel, they checked the9

Howard Johnson Inn room register and found a room registered to a “Gonzalez.” I d. They stationed

agents at both doors to the room

, called the room

, and stated in Spanish that there had been problems

at the vessel and told the men to leave the area. I d. Within a few seconds, the door opened and the

men started to leave the hotel room

. I d. Agents entered the room and arrested the three men in the

room

. I d. In the room, agents found a rental receipt for the rental car observed near the dock on the

day the vessel arrived. I d. They also found two pieces of papers with letters in what appeared to be

code which was later matched to codes on the packages of cocaine seized at the dock. Id. Agents

also found another key to room 204. I d. at 803. In that room, agents found one piece of paper with

a telephone number and “106" written on it and one piece of paper with a sketch of the dock area and

the vessel. Id.

The First Circuit determined that the evidence was sufficient to support the convictions for

conspiracy to import cocaine of the two men who were found crawling on their stomachs at the dock

area within six feet of the two duffle bags containing the cocaine. I d. at 806-07. The First Circuit

also determined that there was sufficient evidence to support the convictions of two of the men

arrested in the hotel room because they were observed conducting surveillance of the ship area and

circling the parking lot of the hotel apparently attempting to determining whether government agents

were watching their activities. I d. at 807-08. They were also present in the hotel room when agents

called and attempted to leave when they learned the other two men had been arrested at the vessel.

Id. at 807-08. Further, Room 204 was registered to one of the men and contained a map of the dock

area and the ship. I d. at 807. The court determined that there was sufficient evidence to support the

convictions of two of the men arrested in the hotel room. Id. at 807-09.10

In contras t t o the detailed and illuminating facts of the R engifo case, the evidence is not

sufficient to support either defendants’ conviction for conspiracy to import cocaine into the United

States. The evidence established that “Mike” contacted Paul and Britton concerning delivery of the

cocaine after the vessel carryi ng t he cocaine reached the United States. However, despite Paul’s

possession of $10,000 and directions to the ship and Britton’s act ually going to the vessel, the

evidence did not clearly establish that Paul and Britton agreed to participate in and played a role in

bringing the cocaine into the United States. There is no proof that either defendant was even aware

of the shipment’s existence until “Mike” called t hem to retrieve it. Therefore, we reverse the

defendants’ convictions on this count.

II. Britton’s Motion to Suppress

Pursuant to Rule 404(b) of the Federal Rules of Evidence, the Government gave notice that

it would seek to introduce evidence of similar acts committed by Britton. The evidence involved a

January 1996 incident in which a large sum of United States currency and a suitcase wi th a fal se

bottom were seized from Bri tton (who was then traveling under an assumed name with false identity

documents) at the Baltimore-Washington Internationa l Airport. Britton moved to exclude the

governments’s 404(b) evidence. At a pretrial hearing, the district court ruled that the 404(b) evidence

would be admitted. However, the trial court did agree to conduct a “suppression” hearing t o

determine whether the defendant’s constitutional rights had been violated during the airport stop that

was the subject of the government’s 404(b) evidence.

We will not reverse the district court’s decision to admit Rule 404(b) evidence absent an

abuse of discretion. United States v. Zanabria , 74 F.3d 590, 592 (5th Cir. 1996). However, our11

determination of whether the district court abused its discretion necessitates an examination of the

issues involved in the pretrial suppression hearing that was conducted by the district court.

At the hearing, the Government presented the testimony of Michael Bolewicki, a police officer

with the Department of Maryland Natural R eso urces. Bolewicki testified that he was told by the

airport security officers that an individual was stopped when he tried to pass an airport screening

point with a large sum of money. Bolewicki also testified that Britton was the individual who was

stopped and that Bri

tton pro duced a passport with the name Gary Louis Ellis. Bolewicki further

testified that Britton had bundles of money totaling $38,000 and clothes in a false compartment of

a suitcase and a duffle bag. Bolewicki questioned Bri tton concerning his travel plans. Britton told

Bolewicki that he had purchased a one-way cash ticket to New York and that he was carrying the

money to buy clothes. Britt o n t o ld Bolewicki that he planned to bring the clothes back to

Washington, D.C. Britton also told Bolewicki that he had traveled to New York to purchase clothes

three or four times. Britton told Bolewicki that a friend was going to help him transport the clothes

from Washington to Baltimore, but Bri tton could not remember the friend’s name. Britton was

unable to give Bolewicki the names of the companies or people from whom he bought clothes in New

York. Bri tton stated that his annual income was $12,000. He further stated that he did not have a

business license.

Bolewicki testified that he told Britton that he was not under arrest and that he was free to

leave. Britton consented to a search of his bags. Britton stated that he had $300 in cash on his

person but Bolewicki found $1000 on Britton’s person. Britton also had a Maryland driver’s license

and a Florida identification card with the name Gary Louis Ellis. However, Bri tton had previously1 Bolewicki also testified that an ion test was conducted on the bag and the results were positive

for drugs. However, the district court subsequently ruled that Bolewicki was not qualified to testify

concerning the ion test.

2 392 U.S. 1, 27 (1968).

3 Miranda v. Arizona , 384 U.S. 436, 444 (1966).

12 failed to give Bolewicki a driver’s license. Bolewicki testified that police conducted a K-9 scan of

the money and bag for drugs and both tested positive for drugs. 1

On cross-examination, Bolewicki testified that when he arrived, Britton was in a room with

one police officer wh o was not in uniform. Bolewicki testified that he was not in uniform either.

Bolewicki testified that he asked Bri tton the questions that he generally asks when he stops suspected

drug couriers.

Based on the testimony presented at the hearing, the district court determined that there was

no custodial interrogation requir ing that Britton be given M iranda warnings. The district court

reasoned that the questioning was somewhat analogous to a general inquiry made during a stop-andfrisk situation under Terry v. Ohio

. 2 The trial court did, however, agree to give a limiting instruction

before the testimony was elicited from Bolewicki, in open court.

Bri tton maintains that the airport stop and subsequent questioning by police officers in a

private office at the airport constituted custodial interrogati on requiring that he receive M iranda 3

warnings. Britton argues t hat because he did not receive M iranda warnings his statements were

obtained in violation of his Fifth Amendment rights and should have been suppressed.

Miranda warnings must be given prior to custodial interrogation. U nited States v. Pofahl

, 990

F.2d 1456, 1487 (5th Cir. 1993). The issue of whether an interrogation is custodial has been treated

by this Court as a legal question subject to de novo review. See United States v. Co llins

, 972 F.2d13

1385, 1404-06 (5th Cir. 1992). “A suspect is . . . `in custody’ for M iranda purposes when placed

under formal arrest or when a reasonable person in the suspect’s position would have understood the

situation t o co nstitute a restraint on freedom of movement of the degree which the law associates

with formal arrest.” United States v. Bengivenga , 845 F.2d 593, 596 (5th Cir. 1988)(en banc).

There is conflicting evidence concerning whether Bri tton was free to leave during the time

that he was being questioned. Although Bolewicki testified that he advised Bri tton he was free to

leave, Bri tton argues that the police report states tha t Britton was not advi sed that he was free to

leave until after he was questioned.

It is, ho wever, unnecessary for us to determine whether Britton was actually in custody.

Assuming, arguendo, that Bri tton was questioned in violation of his Miranda rights, “violations of

Mir anda ’s t eachings may fall within the purview of the harmless error rubric.” U nited States v.

Baldwin

, 691 F.2d 718, 723 (5th Cir. 1982). This Court det ermines whether “absent the

. . . unconstitutional effect, the evidence remains no t only sufficient to support the verdict but so

overwhelmingly so as to establish the guilt of the accused beyond a reasonable doubt.” I d. at 723-24

(int ernal quotations and citation omitted). The admission of Britton’s statements regarding t he

unrelated airport stop, even if error, was harmless error because a s discussed above there was

overwhelming independent evidence of Britton’s guilt. I d. at 724. The evidence, including the taped

telephone conversations, as well as the testimony of the undercover Customs Agent Orate and Adam,

established that Bri

tton participated in the conspiracy by traveling to New Orleans and going to the

ship’s berth to pick up the cocaine. Therefore, even if the admission of Britton’s statements during

the airport stop was error, the error was harmless.14

Given that the district court’s failure to suppress evidence of the airport stop was, at worse,

harmless error, it is apparent that the district court did not abuse its discretion in denying Britton’s

motion to exclude the Government’s 404(b) evidence at trial.

III. Britton’s Motion for a Mistrial

During the trial, U.S. Customs Agent Denise Weber testified that a cellular telephone seized

from Bri tton at the time of his arrest was a clo ned cellular telephone. However, Agent Webber

acknowledged that the telephone was not used in connection with the instant conspiracy. At the close

of the evidence, Britton’s counsel moved for a mistrial on the grounds that Agent Weber’s testimony

improperly placed evidence of “other crimes” before the jury. This evidence, Britton argues, had no

probative value and was highly prejudicial as it reflected adversely on his character. The motion for

mistrial was denied by the district court. The district court further determined that a specific curative

instruction should not be given because it would merely call further attention to the evidence.

A district court’s refusal to grant a mistrial based on the admission of prejudicial evidence is

reviewed for an abuse of discretion. U nited States v. Limones , 8 F.3d 1004, 1007 (5th Cir. 1993).

If the motion for mistrial involves the presentation of prejudicial testimony before a jury, a new trial

is required only if there is a significant possibility that the prejudicial evidence had a substantial impact

upon the jury verdict, viewed in light of the entire record. Id. at 1007-08.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person

in order to show action in conformity therewith. Fed. R. Evid. 404(b). An inherent danger in

admitting evidence of other acts is that the jury might convict the defendant for the extrinsic offense

rather than for the offense charged. U nited States v. Ridlehuber

, 11 F.3d 516, 521 (5th Cir. 1993).15

Britton has not shown that the district court’s decision not to grant a mistrial was an abuse

of discretion. Agent Webber’s references to stolen cellular telephone services and to “hijacked” calls

were isolated remarks that were not dwelled upon by the parties. Further, neither party referred to

the stolen telephone services in their closing arguments.

In denying Britton’s motion for a mistrial, the district court stated:

It seems to me that it was said in such a quick, quick blush that

any attempt to cure this by the Court would just call further attenti on

to something that I am positive, in my opinion, looking at the Jury at

the moment that it happened, no one either heard or appreciated it at

the time it was given.

I will not allow any argument, however. I think the safest way

to cure that situation is not to allow any argument on that particular

sit uat ion during closing arguments. Even if it is considered to be

intrinsic evidence, which I don’t suggest it is or it isn’t, because it

really is not particularly germane, I don’t really believe it was other

crimes of [sic] evidence. I don’t see it being in the same nature as

relating to some other type of crime for which the only alternative

would be a mistrial situation, and, again, at the time it was given and

in the manner given, I don’t perceive it to be a situ at ion where a

mandatory mistrial is required.

You cleared it up, in fact, to a certain extent, when you talked

about those records don’t even show any phone call s. So I don’t

really appreciate this as being a mistrial situation, but your request is

certainly noted.

Although the district court did not give a specific curative instruction concerning the reference

to the stolen telephone services, the district court did generally instruct the jury that “the Defendants

are not on trial for any act or conduct not alleged against him [sic] in the indictment.” This Court has

consistently held that an erroneous admission of evidence may be cured by such a limit ing instruction

because jurors are presumed to follow the court’s instructions. S ee United States v. Scott

, 48 F.3d-16-

1389, 1396-97 (5th Cir. 1995); United States v. Evans

, 572 F.2d 455, 484 (5th Cir. 1978). Even if

the admission of the testimony concerning the stolen telephone services was error, the re is not a

significant possibility that it had a substantial impact on the jury’s verdict in l i ght of the other

overwhelming evidence of Britton’s guilt presented at trial as discussed above. S ee Limones

, 8 F.3d

at 1008. Therefore, even if the admission of the testimony was error, we do not find that a new trial

is required. Id.

CONCLUSION

For the forgoing reasons, we affirm the defendants’ convictions of conspiracy to possess with

the intent to distribute cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and 846. We

reverse the defendants’ convictions of conspiracy to import cocaine hydrochloride into the United

States in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 963.

EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority’s decision to affirm Paul’s and

Britton’s convictions for conspiracy to possess with intent to

distribute cocaine. I disagree, however, with that portion of the

majority’s opinion that reverses the defendants’ conviction s for

conspiracy to import cocaine. Instead, I believe that the evidence

more than supports the jury’s conclusion that Paul and Britton

participated in a conspiracy to impor t cocaine. Accordingly, I

respectfully dissent from the majority’s contrary conclusion.

As th e majority notes at the outset, in a challenge to the

sufficiency of the evidence, we must affirm the jury’s verdict “if-17-

any reasonable trier of fact could have found that the evidence

presented at trial establishes the essential elements of the crime

beyond a reasonable doubt.” See ante at 4 (emphasis added); see

also United States v. Alix

, 86 F.3d 429, 435 (5th Cir. 1996). The

majority also acknowledges that “‘[t]he jury may infer any element

of this offense from circumstantial evidence.’” S ee ante at 5

(quoting United States v. Lechuga

, 888 F.2d 1472, 1476 (5th Cir.

1989)). Significantly for the facts of this case, “an agreement

may be inferred from concert of action, voluntary participation may

be inferred from a collocation of circumstances, and knowledge may

be inferred from surrounding circumstances.” Lechuga

, 888 F.2d at

1476-77. Moreover, we view sufficiency of the evidence challenges

in the light most favorable to the verdict. See Alix , 86 F.3d at

435.

In the case at hand, there is ample evidence )) both direct and

cir cumstantial ) ) from which the jury could infer an agreement to

import cocaine. The undisputed evidence indicates that “Mike”

placed a large quantity of cocaine on board a ship in Guyana and

asked Adam to help him smuggle the cocaine into the United States.

“Mike” also explained that someone would come to take delivery of

the cocaine ( i.e.

, complete the importation) once the vessel

arrived in New Orleans. During the course of their numerous

telephone conversations (recorded by the Customs agents and

presented to the jury), “Mike” gave Adam the names (or codenames)-18-

of his couriers (Br itton and Paul), how to reach them, when to

reach them, and the various plans for delivering the cocaine. The

evidence is undisputed that all of Adam’s information and

directions for delivering the cocaine came from “Mike,” that

Britton and Paul were specifically desi gnated by “Mike” (through

their code names) to take delivery and/or pay for the cocaine, that

“Mike” was the only connection between Adam and the two defendants,

and that “Mike” contacted Britton and Paul from Guyana to arrange

for the pickup of the cocaine in New Orleans.

In addition, there was specific evidence (in a recorded

conversation) that “Mike” told Adam that he contacted a courier

named “Harry” (whose real name, he disclosed, was Gavin Paul) who

would fly from New York to pick up the cocaine in New Orleans. The

evidence confirms that Paul did f ly from New York to New Orleans

and that Paul was at the phone number given to Adam by “Mike” (at

the French Quarter Courtyard Inn). Furthermore, when the police

arrested Paul, he had directions to the ship’s berth and $10,000 in

cash. With regard to the conspiracy to possess with intent to

distribute charge, the majority notes that Paul’s actions “do not

indicate that he refused to participate in the conspiracy.” S ee

ante at 6. This same conclusion ) ) that Paul continued to

participate in the conspiracy )) applies equally to the conspiracy to

import charge.-19-

Similarly, when the plans changed, “Mike” told Adam that “he

h ad another man in town who would pick up the cocaine,” namely

Britton. S ee ante at 3. The evidence confirms that Britton

tra veled to New Orleans on the same night that he went to Adam’s

ship and that he called Adam to say that he would arrive at the

ship in half an hour to pick up the cocaine. Again, it was “Mike”

(in Guyana) who called Adam and told him that he should deal with

Britton instead of Paul; that Britton would arrive at the docks by

taxi to pick up the cocaine; and that Paul would deliver the money.

Shortly after this call, Britton arrived at the docks in a taxi and

picked up the cocaine from Adam (without paying for it). Given the

detailed and highly coordinated level of concert between Britton

and Paul on one hand, and “Mike” in Guyana on the other, and the

fact that the jury can infer any element of the cri m e from

circumstantial evidence, it is eminently reasonable for the jury to

conclude that Britton and Paul participated in the conspira cy to

import cocaine into the United States. Moreover, in light of our

standard of review for challenges to the sufficiency of the

evidence, I am unable to agree with the majority that no reasonable

trier of fact could have inferred a conspiracy to import the

cocaine.

The majority appears to base its conclusion on the fact that

“Mike” contacted Britton and Paul “afte r the vessel carrying the

cocaine reached the United States” and that “[t]here is no proof-20-

that either defendant was even aware of the shipment’s existence

until ‘Mike’ called them to retrieve it.” See ante at 10. This

decision ignores the well-established fact that “[t]he government

need not prove that each alleged conspirator knew all the details

of the conspiracy [and that] [t]he government provides sufficient

proof of knowledge by demonstrating the c onspirator knew of the

esse ntial purpose of the conspiracy.” U nited States v. Obregon

,

893 F.2d 1307, 1311 (11th Cir. 1990). The majority’s reversal of

Paul’s and Britton’s convictions for conspiracy to import also

implies that Britton’s actions in meeting Adam at the docks and

receiving the cocaine from the ship, Paul’s concerted actions

preparing for the payment of the cocaine, and both of their

communications with “Mike” in Guyan a are not circumstantial

evidence of the conspiracy to import the cocaine. I respectfully

disagree. S ee Obregon

, 893 F.2d at 1311 (explaining that “[t]he

government ma y prove [] an agreement by circumstantial evidence,

through ‘inferences from the conduct of the alleged participants or

from circumstantial evidence of a scheme’”) (quoting United States

v. Tamargo , 672 F.2d 887, 889 (11th Cir. 1982)).

Moreover, I disagree with the majority that United States v.

Rengifo

, 858 F.2d 800, 807 (1st Cir. 1988), presents a case

involving “much more probative evidence.” See ante at 8. Instead,

under very similar facts, the First Circuit found sufficient

evidence to affirm the convictions of five defendants for-21-

conspiracy to import cocaine. See Rengifo

, 858 F.2d at 807

(finding that the defendants were guilty of con spiracy to import

cocaine by “prepar[ing] a plan for offloading the cocaine [from the

ship]”). The majority offers no factors distinguishing the case at

hand from Rengifo , and I, likewise, can surmise none.

The five defendants in Rengifo were convicted of conspiring to

import cocaine after two of the defendants were apprehended shortly

after taking delivery of the cocaine from a ship at its berth in

Rhode Island. The First Circuit held that the action of the two

defendants in retrieving the cocaine from the ship, together with

the concerted planning of the three defendants who remained at a

local hotel room, was sufficient for the jury to reasonably infer

a conspir acy to import cocaine among all of the defendants. Our

facts ar e indistinguishable from those of R engifo

, and, if

anything, given the level of concerted action between “Mike,”

Britton, and Paul, provide greater evidence that Britton and Paul

were coordinating their activity with “Mike” in Guyana.

In Rengifo

, the court su mmarized the evidence deemed

sufficient to support the importation charge for the two defendants

apprehended at the docks:

Government agents observed two suspects dressed in black

receiving a duffel bag from a ship which the agents

reasonably believed contained cocaine.

. . . The agents

observed the two suspects running into the tank farm area

of the docks. Five to ten minutes later Sigifredo and

Rengifo were apprehended in that area, dressed in black

and crawling on their stomachs toward a hole in a fence.

Fifteen feet from Sigifr edo and six feet from Rengifo-22-

were two duffel bags containing 55 kilograms of cocaine.

This evidence alone was sufficient to convict Sigifredo

of both importation and possession with intent to

distribute the cocaine.

Rengifo

, 858 F.2d at 806 (emphasis added). As the First Circuit’s

opinion clearly demonstrates, it is the two defendants’ action in

retrieving the cocaine from the ship that is sufficient to convict

them of conspiracy to import. There is no discussion about the

defendants’ knowledge of the cocaine’s origin, who put it on the

ship, or their participation in getting it across the ocean.

Significantly, the actions of the two defen dants in R engifo are

nearly identical to those of Britton in this case.

In addition, with regards to the remaining three defendants in

Rengifo, the court confronted a situation analogous to that of Paul

in the case at hand. Because only two of the defendants in R engifo

were caught near the docks with possession of the cocaine, and the

r emaining defendants were arrested miles from the ship at their

hotel, it was necessary to link the remaining defendants to the

conspiracy to import cocaine. Noting that the jury is entitled to

make reasonable inferences from circumstantial evidence, the First

Circuit concluded that sufficient evidence supported the conviction

of each of the three remaining defendants. S ee id. at 807-08

(concluding that evidence was sufficient to support conviction for

conspiracy to import cocaine because “the jury could have concluded

that [the defendant] was aware of the activities of [the other

defendants] at the ship, and that he was hurriedly leaving the-23-

[hotel] room because he also feared being caught due to his

involvement in the conspiracy”); see also Obregon

, 893 F.2d at 1311

(“A person may also be found guilty of a conspiracy ‘even if he

plays only a minor role in the total scheme.’”) (quoting Tamargo

,

672 F.2d at 889).

The court in Rengifo clarified that a defendant does not have

to participate in the physical removal of cocaine from the ship in

order to be convicted of conspiracy to import cocaine (as opposed

to actual importation). The court explained as follows:

No ev idence was presented that any of the defendants

arrested in room 106 ever possessed the cocaine. We note

as a preliminary matter, however, that a coconspirator is

responsible for the substantive offenses committed in

furtherance of the conspiracy regar dless of whether he

participates in, or even has knowledge of, those

offenses. Therefore, the government needed to show only

continuing participation by [the remaining defendants] in

the conspiracy to import and possess with intent to

distribute in order to satisfy its burden regarding their

participation and the substantive offenses.

Rengifo

, 858 F.2d at 807 (citation omitted). Contrary to the

unsupported assertion by the majority, I do not find the facts of

Rengifo distingui shable from the case at hand in any meaningful

way . The detailed facts given in R engifo relate to whether the

defendants were involved with the cocaine delivery a t all ) ) a

question that the majority already answers in the affirmative for

Britton and Paul.

Significantly, Britton’s only argument against the conspiracy

to import charge is that there is no evidence establishing any-24-

nexus between “Mike” and him or Paul and him. This plainly ignores

the extensive evidence of concerted action between the defendants

and “Mike,” as well as the fact that the jury can infer any element

of the consp iracy from circumstantial evidence and the parties’

concerted action. Moreover, the majority has already rejected

Britton’s claim that he was not part of any conspiracy with Paul,

“Mike,” and Adam. See ante at 7 (cataloguing Britton’s concerted

actions in relation to the conspiracy to possess charge). There is

substantial evidence that would lead a reasonable jury to conclude

that Britton coordinated with “Mike” in Guyana because he knew that

the cocaine was on the ship, called Adam at a particular pay phone

at a particular time, and took delivery of the cocaine without

having to pay for it.

Similarly, Paul’s sole claim regarding the sufficiency of the

evidence is that his refusal to deliver the $10,000 “evidenced his

unwillingness to join the conspiracy.” Paul’s argument does not

refute the notion that there was a conspiracy, nor that he and

Britton coordinated their planned payment for and retrieval of the

cocaine from the ship with “Mike.” To the contrary, Paul merely

argues that he “withdrew” from the conspiracy )) an argum ent the

majority correctly rejects.

As the majority correctly sets forth, “ [t]he jury may infer

any element of [the conspiracy] offense.” L echuga

, 888 F.2d at

1476. Nonetheless, in reversing the jury’s conclusion under the-25-

facts of this case, the majority ignores this fundamental

principle. In the case at hand, given: (1) the extraordinary

d egree of “concerted action” between “Mike” in Guyana and the

defendants, Britton and Paul, (2) the fact that Paul was arrested

with $10,000 in cash and directions to the ship’s berth, and (3)

the fact that Britton did not pay for the cocaine and retrieved the

cocaine directly from Adam at the docks, I disagree with the

majority’s holding that no reasonable jury could find a conspiracy

to import cocaine. For the foregoing reasons, I dissent.