funds needed to pay Bobby or Richard to take the heroin from Bangkok to Indonesia.
None of the six transfers directed payment to anyone whom the evidence identified as Bobby or Richard. The payee of three of them was "Mrs. Almamy Berte", and of the other three was "Haja Mulikatu Tejan". The government introduced no evidence to show who, if anyone, collected the funds at the bank. But the government says that it is a fair inference that someone did collect that money and turned it over to Bobby or Richard, and that the reason they delayed delivery of the heroin to Indonesia was because they were awaiting funds to pay their fees as couriers.
The government's reasoning is as follows. The transfers were made between May 9, 1991 and May 14, 1991 at a time when Richard and Bobby were in Bangkok. On May 14, 1991, Sade called White to say there was a delay. About May 19, 1991 Richard called White to say there would be "another delay" because he was having trouble getting out of Bangkok because of "evil spirits" at the airport.
The government says that the jury could conclude that Richard did not tell White the truth and that the delay was not because of any difficulties they were having with inspectors at the Bangkok airport. Rather, the government argues, Bobby and Richard chose not to leave that city without money in their hands to pay their fees for acting as couriers.
The government does not say why it should be assumed that they had not told White the truth. If they were simply waiting for their own fees, it seems strange that five days after the transfers were made, Richard told White of another delay. Moreover, Richard did not arrive in Indonesia with the drugs until May 23, 1991, nine days after the last transfer of funds on May 14, 1991. He attributed the delay to problems getting the heroin out of the airport. The fact that Richard did not arrive until some nine days after the last money transfer was made also casts doubt on the inference the government seeks to draw.
Running through the government's argument is the premise that the occupants of the 1118 E. 40th Street apartment were at that time engaged in only one transaction in Bangkok, Thailand, namely, the drug conspiracy charged here. If indeed this premise were accepted as true, the government's argument would be more persuasive than it is. But the government's proof by no means established that premise. At least some of those occupants may well have had other dealings, whether licit or illicit, that occasioned transactions in Bangkok.
The government suggests that the presence in the apartment of the plastic bag containing $ 49,800 justifies an inference that this money was for payment of courier fees to White and the other three women who accompanied the heroin back to the United States. That is a possible inference, but hardly a compelling one. Moreover, even if the inference is justified, the plastic bag from "Michael's" clothing store was no more likely to have been used by Sadiq than by two other women in the apartment who also made purchases from that store.
The government had the burden of submitting evidence from which a reasonable juror could find beyond a reasonable doubt, not that Sadiq had been engaged in some kind of drug or other illegal activity, but that she became a member of the specific conspiracy to import twenty-eight pounds of heroin.
The fact that drugs have become such a scourge in this country does not relieve the government of proving the precise charge it brings or of meeting the standard of proof beyond a reasonable doubt. It is perhaps impossible to quantify this standard in any precise way. "No one has yet invented or discovered a mode of measurement for the intensity of human belief." 9 Wigmore, Evidence § 2497 (Chadbourn rev. 1981), p. 414; see also United States v. Fatico, 458 F. Supp. 388, 409-411 (E.D.N.Y. 1978) (Weinstein, J.), aff'd, 603 F.2d 1053 (2d Cir. 1979). But the probability of guilt must be very high if we still agree with Blackstone that "it is better that ten guilty persons escape than that one innocent suffer." 4 William Blackstone, Commentaries *358.
The significance to Sadiq of the requirement that the government prove the precise charge is evident from the Sentencing Guidelines that would be applicable if the verdict stands, because a member of the conspiracy, no mater how small her role, is chargeable with the entire twenty-eight pounds of heroin seized. The guidelines would thus require a minimum sentence of imprisonment of at least 188 months.
The critical weakness in the government's proof is that Sadiq's act of sending the money transfer has not been shown beyond a reasonable doubt to have been connected with the conspiracy. The failure to establish this link between the defendant's actions and the conspiracy charged distinguishes this case from others in this circuit. See, e.g., United States v. Zambrano, 776 F.2d 1091 (2d Cir. 1985) (conviction affirmed); United States v. Di Stefano, 555 F.2d 1094, 1103 (2d Cir. 1977) (conviction reversed); United States v. Nusraty, 867 F.2d 759 (2d Cir. 1989) (conviction reversed).
This is not a case that depends on the jury's assessment of the credibility of the witnesses. For purposes of this motion there is no dispute as to the evidentiary facts. The issue turns on whether a reasonable juror should be justified in drawing inferences from those facts to conclude that the proposition that Sadiq was a member of the specific conspiracy was true beyond a reasonable doubt. The court decides that the jury was not so justified.
This court can find no distinction in principle between this case and United States v. Gaviria, 740 F.2d 174 (2d Cir. 1984). Indeed, the inferences the government sought to draw with respect to the defendant there seem far stronger to this court than the inferences on which the government relies here.
The motion to set aside the verdict and to enter a judgment of acquittal is granted. So ordered.
Dated: Brooklyn, New York
February 3, 1992
Eugene H. Nickerson, U.S.D.J.
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