* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 12 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ELENO OSORIO-SOTO,

Defendant-Appellant. No. 96-2184 (Dist. of New Mexico) (D.C. No. CR-94-721-9-JC)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, McWILLIAMS and MURPHY , Circuit Judges.

Eleno Osorio-Soto, Cipriano Zamudio, and Alfredo Pando were tried jointly and each convicted of conspiracy to possess with intent to distribute more than five kilograms of cocaine. Osorio-Soto appeals his conviction claiming that-2-

(1) the trial court improperly admitted hearsay st atements by Zamudio and Pando through the testimony of former codefendant Jose Me gallon and (2) there was insufficient evidence to support his conviction. W e reverse. BACKGROUND In November 1994, authorities found over 500 pounds of cocaine in a hidden compartment of a trailer. Subsequent invest igation revealed that Jose Megallon had leased the trailer. In January 1995, Megallon voluntarily went to a Drug Enforcement Administration (DEA) office after being contacted by police. He provided federal agents with a statement and agr eed to cooperate by allowing the agents to tape conversations between him and ot her alleged conspirators. Megallon pleaded guilty to conspiracy and agreed to testify for the government at the trial of Osorio-Soto, Zamudio, an d Pando. Through Megallon’s testimony, the government introduced andplayed three conversations which were taped while Megallon was cooperating with the DEA: a January 26, 1995 conversation between Megallon and Zamudio; a F ebruary 14, 1995 phone conversation between Megallon and Pando; and a February 22, 1995 conversation between Megallon and Zamudio. Additionally, the ju ry was provided with English transcripts of the taped conversations, whi ch were primarily in Spanish. Zamudio, Pando, and Osorio-Soto did not testify at trial. The only evidence-3-

linking Osorio-Soto to the conspiracy was the testi mony of Megallon and the taped conversations between Megallon and codefendants Zamudio and Pando.
DISCUSSION During trial, Osorio-Soto objected to the admissionof the three taped conversations and the transcripts of those conversations on hearsay grounds. The trial judge ruled that the tapes and transcripts we re admissible as coconspirator statements. Rule 801(d)(2)(E) of the Federal Rules of Evidence provides: “A statement is not hearsay if . . . . [t]he statementis offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” A court may admit evidence under this rule only if it determines “by a preponderance of the evidence that: (1) a co nspiracy existed; (2) the declarant and the defendant were both members of th e conspiracy; and (3) the statements were made during the course of, and in f urtherance of, the conspiracy.” United States v. Williamson , 53 F.3d 1500, 1517-18 (10th Cir. 1995) (citations omitted); see also United States v. Owens , 70 F.3d 1118, 1123 (10th Cir. 1995); United States v. Urena , 27 F.3d 1487, 1490 (10th Cir. 1994). Osorio-Soto argues that the taped statements and tr anscripts were improperly admitted because the statements were notmade during the course of the conspiracy nor were they in furtherance of the conspiracy. This court reviews the district court’s findings that particular state ments were made during the-4-

course and in furtherance of a conspiracy for clearerror. See United States v. Olivo , 69 F.3d 1057, 1066 (10th Cir. 1995), opinion supplemented on rehearing, 80 F.3d 1466 (10th Cir.), cert. denied, 117 S.Ct. 265 (1996); Williamson , 53 F.3d at 1517; Urena , 27 F.3d at 1490. The district court’s decision t o admit evidence under the coconspirator exception is reviewed for a buse of discretion. See Olivo , 69 F.3d at 1066; Williamson , 53 F.3d at 1517. For the taped conversations and transcripts to be a dmissible, the government was required to show by a preponderance of the evidence that the statements were made both “during the course” and “ in furtherance of” the conspiracy. See Fed. R. Evid. 801(d)(2)(E); see also United States v. Perez , 989 F.2d 1574, 1578-79 (10th Cir. 1993) (en banc) (disc ussing the importance of both requirements). “A coconspirator statement is made ‘during the cour se’ of the conspiracy if it is made before ‘“the objectives of the conspiracy have either failed or been achieved.”’” Owens , 70 F.3d at 1126 (quoting Perez , 989 F.2d at 1579 (quoting Fed. R. Evid. 801(d)(2)(E) advisory c ommittee note)); see also Krulewitch v. United States , 336 U.S. 440, 442-43 (1949) (holding declaration made after conspiracy’s “objectives either had fail ed or had been achieved” was inadmissible because it was not made pursuant to an d in furtherance of the conspiracy). Statements made to conceal criminal c onduct after the main objective of the conspiracy has either failed or be en achieved are not admissible-5-

as coconspirator statements. See Lutwak v. United States , 344 U.S. 604, 616-18 (1953); Krulewitch , 336 U.S. at 443-44; Perez , 989 F.2d at 1579; United States v. Silverstein , 737 F.2d 864, 867 (10th Cir. 1984); see also Dutton v. Evans , 400 U.S. 74, 81 (1970) (“It is settled that in federal conspiracy trials the hearsay exception that allows evidence of an out-of-court s tatement of one conspirator to be admitted against his fellow conspirators applies only if the statement was made in the course of and in furtherance of the conspira cy, and not during a subsequent period when the conspirators were engaged in nothin g more than concealment of the criminal enterprise.”). In this case, the cocaine was seized by the governm ent on November 16, 1994. While the indictment alleged a conspiracy fr om “on or about the 1st day of August, 1994 to on or about the 28th day of February, 1995,” the government never alleged the conspiracy involved any drug quan tities beyond those seized in November 1994 nor were any additional drug transact ions alleged. Cf. Lutwak, 344 U.S. at 616-17 (holding declaration to conceal crime was outside scope of conspiracy even though indictment alleged conspirac y to conceal). This case is therefore distinguishable from those involving cont inuing drug transactions. The seizure of the drugs in November 1994 ended the con spiracy because it was no longer possible for conspirators to achieve their o bjectives. The taped conversations, however, did not occur until Januaryand February of 1995, over1 The government’s reliance on United States v. Williamson , 53 F.3d 1500

(10th Cir. 1995), is misplaced. In Williamson , the defendant was involved in a continuing conspiracy to distribute cocaine from ap proximately January 1986 to October 1991, with the exception of a seven-month p eriod from the fall of 1988 to the spring of 1989, in which drug operations cea sed because of a related investigation. See id . at 1507-08. The challenged statements in Williamson were made in October 1990 and January 1991 and, therefor e, “were well within the time frame of the conspiracy at issue.” Id . at 1520. The important question in Williamson , therefore, was not whether the statements occurre d during the time frame of the conspiracy but whether they furthered the objectives of the conspiracy. See id . at 1520-21 (holding that statements which relate to (1) the identity and roles of coconspirators; (2) avoiding detection by law enforcement officers; (3) allying the fears and suspicions of i ndividuals; and (4) inducing future involvement in the conspiracy may all be “in furtherance of” a conspiracy).

-6- two months after the government had seized the coca ine and successfully prevented completion of the conspiracy objectives. Under these facts, the district court’s finding that the taped conversations occurr ed during the course of the conspiracy was clearly erroneous. 1 Cf

. Silverstein , 737 F.2d at 867 (holding coconspirator’s declaration, made several weeks aft er central objective of conspiracy was attained, inadmissible because it wa s not made during conspiracy). Because the conversations did not occ ur “during the course” of the conspiracy, the district court abused its discretio n in admitting the evidence against Osorio-Soto. Osorio-Soto’s second contention is that there was i nsufficient evidence to convict him of conspiracy. Having ruled that the t aped conversations and transcripts were improperly admitted against Osorio -Soto, this court must-7-

consider whether, in the absence of the taped conve rsations and transcripts, there was sufficient evidence to convict Osorio-Soto. In determining the sufficiency of the evidence, we review the record de novo, United States v. Grimes , 967 F.2d 1468, 1472 (10th Cir.), cert. denied, 506 U.S. 927 (1992), and ask only whether, taking the evidence-- “both direct and circumstantial, together with the reasonable inferences to be drawn therefrom”--in the light most favorable to the government, a reasonable jury could find the defendant guilty bey ond a reasonable doubt.
Urena , 27 F.3d at 1489 (quoting United States v. Hooks , 780 F.2d 1526, 1531 (10th Cir. 1986)); see also Williamson , 53 F.3d at 1514. This court “cannot sustain a conspiracy conviction if the evidence doe s no more than create a suspicion of guilt or amounts to a conviction resul ting from piling inference on top of inference.” United States v. Horn , 946 F.2d 738, 741 (10th Cir. 1991); accord United States v. Anderson , 981 F.2d 1560, 1564 (10th Cir. 1992). To support a conviction of conspiracy, “the governm ent must prove, beyond a reasonable doubt, that two or more persons agreed to violate the law, that the defendant knew at least the essential objectives of the conspiracy, that the defendant knowingly and voluntarily became a part o f it, and that the alleged coconspirators were interdependent.” Williamson , 53 F.3d at 1516 (internal quotations omitted); see also United States v. Jones , 44 F.3d 860, 864-65 (10th Cir. 1995).2 Megallon testified that Osorio-Soto had a familial association with

Zamudio and a business association with Pando. -8- While the testimony at trial clearly established th at Osorio-Soto knew the other codefendants 2 and was involved in legitimate business transactio ns with Megallon, the only evidence the government presente d linking Osorio-Soto to the conspiracy, excluding the inadmissible hearsay, was the testimony of Megallon regarding a meeting which occurred at a tire shop. Megallon testified that when he arrived at the tire shop, he met up with Osorio- Soto who told him, “Go over there, because Shorty [Pando] wants to talk to you. ” Megallon testified that when he went to where Pando and Zamudio were, they start ed “talking, talking, and talking about things related to drugs and everythin g.” He testified that both Pando and Zamudio asked him to participate in the c onspiracy by renting a trailer. He then stated that Osorio-Soto came over and when Osorio-Soto approached, Pando said, “No, no, no. There’s no problem. You already know about this.” Contrary to the government’s assertion, this eviden ce is insufficient to show Osorio-Soto was a participant in the conspirac y. Megallon testified that Pando and Zamudio invited him to join the conspirac y. This conversation occurred outside Osorio-Soto’s presence. Read in the light most favorable to the government, the most a jury could infer from Pando’s statement was that Osorio-Soto h ad knowledge of the-9-

conspiracy. The government, however, must prove be yond a reasonable doubt not only that Osorio-Soto knew the objectives of the co nspiracy, but also that he knowingly and voluntarily became a part of the cons piracy. See Anderson , 981 F.2d at 1564 (“‘[T]he Government was required to sh ow, by clear and unequivocal evidence, [defendant’s] knowledge that the object of the conspiracy was the distribution of marijuana, and his agreement to cooperate in achieving that object.’” (quoting United States v. Austin , 786 F.2d 986, 988 (10th Cir. 1986) (emphasis added))). “Mere knowledge of illegal act ivity . . . does not by itself establish that a person has joined in the grand con spiracy.” United States v.
Evans , 970 F.2d 663, 670 (10th Cir. 1992); see also United States v. Riggins , 15 F.3d 992, 994 (10th Cir. 1994) (holding that even i f defendant knew her mother and sister were hiding drugs in van, defendant’s pr esence in the van was insufficient to establish she “knowingly and volunt arily became part of the conspiracy”). Likewise, mere association with cons pirators is insufficient to support a conspiracy conviction. See Jones , 44 F.3d at 866. “One does not become a participant in a conspiracy merely by asso ciating with conspirators known to be involved in crime. One must agree to p articipate in order to be convicted for conspiracy.” Id . (citations omitted); see also Anderson , 981 F.2d at 1564, Evans , 970 F.2d at 669; Horn , 946 F.2d at 741.3 Having concluded there was insufficient evidence to convict Osorio-Soto

after excluding the inadmissible hearsay, we need n ot consider his argument that admission of the taped conversations and transcript s violated his confrontation rights. -10- The testimony of Megallon regarding the conversatio n at the tire shop is insufficient to establish Osorio-Soto knowingly andvoluntarily became a participant in the conspiracy. Megallon’s testimony, when viewed in the light most favorable to the government, at most establish ed that Osorio-Soto had some knowledge of the conspiracy. Knowledge of the cons piracy and association with conspirators, however, is insufficient to convict O sorio-Soto. The government does not cite any other evidence in the record showing Osorio-Soto agreed to participate in the conspiracy . After de novo review of the record, we find no other evidence from which a jury could infer that Osorio-Soto knowingly and voluntarily became a participant in t he conspiracy. There was thus insufficient evidence to convict Osorio-Soto of con spiracy to distribute cocaine. 3-11-

For the foregoing reasons, we REVERSE and VACATE the conviction of
Eleno Osorio-Soto and REMAND to the district court for action consistent with this opinion. Judge McWilliams dissents.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge