*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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
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 (1) the trial court improperly admitted hearsay statements by Zamudio and Pando

through the testimony of former codefendant Jose Megallon and (2) there was

insufficient evidence to support his conviction. We reverse.

BACKGROUND

In November 1994, authorities found over 500 pounds of cocaine in a

hidden compartment of a trailer. Subsequent investigation 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 agreed to cooperate by allowing

the agents to tape conversations between him and other alleged conspirators.

Megallon pleaded guilty to conspiracy and agreed to testify for the

government at the trial of Osorio-Soto, Zamudio, and Pando. Through

Megallon’s testimony, the government introduced and played three conversations

which were taped while Megallon was cooperating with the DEA: a January 26,

1995 conversation between Megallon and Zamudio; a February 14, 1995 phone

conversation between Megallon and Pando; and a February 22, 1995 conversation

between Megallon and Zamudio. Additionally, the jury was provided with

English transcripts of the taped conversations, which were primarily in Spanish. 

Zamudio, Pando, and Osorio-Soto did not testify at trial. The only evidence
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linking Osorio-Soto to the conspiracy was the testimony of Megallon and the

taped conversations between Megallon and codefendants Zamudio and Pando.

DISCUSSION

During trial, Osorio-Soto objected to the admission of the three taped

conversations and the transcripts of those conversations on hearsay grounds. The

trial judge ruled that the tapes and transcripts were admissible as coconspirator

statements. Rule 801(d)(2)(E) of the Federal Rules of Evidence provides: “A

statement is not hearsay if . . . . [t]he statement is 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 conspiracy existed; (2) the

declarant and the defendant were both members of the conspiracy; and (3) the

statements were made during the course of, and in furtherance 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 transcripts were

improperly admitted because the statements were not made during the course of

the conspiracy nor were they in furtherance of the conspiracy. This court reviews

the district court’s findings that particular statements were made during the
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course and in furtherance of a conspiracy for clear error. 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 to admit evidence

under the coconspirator exception is reviewed for abuse of discretion. See Olivo,

69 F.3d at 1066; Williamson, 53 F.3d at 1517.

For the taped conversations and transcripts to be admissible, 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) (discussing the importance of both

requirements). “A coconspirator statement is made ‘during the course’ 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 committee note)); see also

Krulewitch v. United States, 336 U.S. 440, 442-43 (1949) (holding declaration

made after conspiracy’s “objectives either had failed or had been achieved” was

inadmissible because it was not made pursuant to and in furtherance of the

conspiracy). Statements made to conceal criminal conduct after the main

objective of the conspiracy has either failed or been achieved are not admissible
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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 statement 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 conspiracy, and not during a subsequent

period when the conspirators were engaged in nothing more than concealment of

the criminal enterprise.”).

In this case, the cocaine was seized by the government on November 16,

1994. While the indictment alleged a conspiracy from “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 quantities beyond those seized in

November 1994 nor were any additional drug transactions alleged. Cf. Lutwak,

344 U.S. at 616-17 (holding declaration to conceal crime was outside scope of

conspiracy even though indictment alleged conspiracy to conceal). This case is

therefore distinguishable from those involving continuing drug transactions. The

seizure of the drugs in November 1994 ended the conspiracy because it was no

longer possible for conspirators to achieve their objectives. The taped

conversations, however, did not occur until January and February of 1995, over
1The 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 approximately January 1986 to

October 1991, with the exception of a seven-month period from the fall of 1988

to the spring of 1989, in which drug operations ceased because of a related

investigation. See id. at 1507-08. The challenged statements in Williamson were

made in October 1990 and January 1991 and, therefore, “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 occurred 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 individuals; and (4) inducing

future involvement in the conspiracy may all be “in furtherance of” a conspiracy). 

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two months after the government had seized the cocaine and successfully

prevented completion of the conspiracy objectives. Under these facts, the district

court’s finding that the taped conversations occurred during the course of the

conspiracy was clearly erroneous.1 Cf. Silverstein, 737 F.2d at 867 (holding

coconspirator’s declaration, made several weeks after central objective of

conspiracy was attained, inadmissible because it was not made during

conspiracy). Because the conversations did not occur “during the course” of the

conspiracy, the district court abused its discretion in admitting the evidence

against Osorio-Soto.

Osorio-Soto’s second contention is that there was insufficient evidence to

convict him of conspiracy. Having ruled that the taped conversations and

transcripts were improperly admitted against Osorio-Soto, this court must
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consider whether, in the absence of the taped conversations 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 beyond 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 does no more than create a

suspicion of guilt or amounts to a conviction resulting 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 government 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 of 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).
2Megallon testified that Osorio-Soto had a familial association with

Zamudio and a business association with Pando.

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While the testimony at trial clearly established that Osorio-Soto knew the

other codefendants2

 and was involved in legitimate business transactions with

Megallon, the only evidence the government presented 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 started “talking, talking, and

talking about things related to drugs and everything.” He testified that both

Pando and Zamudio asked him to participate in the conspiracy 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 evidence is insufficient to

show Osorio-Soto was a participant in the conspiracy. Megallon testified that

Pando and Zamudio invited him to join the conspiracy. 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 had knowledge of the
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conspiracy. The government, however, must prove beyond a reasonable doubt not

only that Osorio-Soto knew the objectives of the conspiracy, but also that he

knowingly and voluntarily became a part of the conspiracy. See Anderson, 981

F.2d at 1564 (“‘[T]he Government was required to show, 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 activity . . . does not by itself

establish that a person has joined in the grand conspiracy.” 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 if defendant knew her mother

and sister were hiding drugs in van, defendant’s presence in the van was

insufficient to establish she “knowingly and voluntarily became part of the

conspiracy”). Likewise, mere association with conspirators 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 associating with conspirators

known to be involved in crime. One must agree to participate 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.
3Having concluded there was insufficient evidence to convict Osorio-Soto

after excluding the inadmissible hearsay, we need not consider his argument that

admission of the taped conversations and transcripts violated his confrontation

rights.

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The testimony of Megallon regarding the conversation at the tire shop is

insufficient to establish Osorio-Soto knowingly and voluntarily became a

participant in the conspiracy. Megallon’s testimony, when viewed in the light

most favorable to the government, at most established that Osorio-Soto had some

knowledge of the conspiracy. Knowledge of the conspiracy and association with

conspirators, however, is insufficient to convict Osorio-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 the conspiracy. There was thus

insufficient evidence to convict Osorio-Soto of conspiracy to distribute cocaine.3
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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