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United States v. Heras

June 18, 2010

UNITED STATES OF AMERICA, APPELLANT,
v.
NELSON HERAS, DEFENDANT-APPELLEE.



SYLLABUS BY THE COURT

Appeal from a judgment of acquittal entered after trial in the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge), based on a determination that the evidence was insufficient as a matter of law to permit the jury to find that defendant had the intent to distribute narcotics necessary to convict for substantive and*fn1 conspiratorial violations of 21 U.S.C. § 841(a)(1).

VACATED AND REMANDED.

The opinion of the court was delivered by: Reena Raggi, Circuit Judge

Argued: May 28, 2010

Before: RAGGI, LYNCH, and WALLACE, Circuit Judges.

The United States appeals from a judgment of acquittal entered in favor of defendant Nelson Heras in the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge). See Fed. R. Crim. P. 29(c)(2). Although a jury found Heras guilty of both conspiracy to possess and aiding and abetting an attempt to possess with intent to distribute 500 grams or more of cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii)(II), 846; 18 U.S.C. § 2, the district court concluded that the trial evidence was insufficient as a matter of law to establish the specific intent element of these crimes, see United States v. Heras, No. 09-CR-86, 2009 WL 1874373 (E.D.N.Y. June 29, 2009). The district court acknowledged that the evidence satisfactorily established that, on January 25, 2009, Heras drove Simon Correa, whom Heras knew to be a drug dealer, to a hotel near John F. Kennedy International Airport, knowing that the purpose of the trip was for Correa to take possession of a quantity of drugs. The court further acknowledged that "[w]hen a drug trafficker acquires drugs it may be presumed that the trafficker will distribute them." Id. at *5. Nevertheless, citing two footnotes in our opinion in United States v. Nelson, 277 F.3d 164, 197 n.37, 198 n.40 (2d Cir. 2002), the district court concluded that more specific evidence of Heras's own intent to distribute the drugs at issue was necessary to support conviction in light of defendant's statement to federal agents denying any stake in the January 25 drug deal.

Nelson does not, in fact, support setting aside the verdict in this case. Nothing in that opinion alters the well-established rule that, on a sufficiency challenge, the evidence must be viewed in the light most favorable to the government. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009). This rule required the district court, as it requires us, to assume that the jury did not credit Heras's self-serving protestation that he had "nothing to do" with Correa's drug deal. Trial Tr. at 83; see United States v. Burden, 600 F.3d 204, 214 (2d Cir. 2010). In any event, even if Heras, an acknowledged marijuana dealer,viewed the January 25 cocaine transaction as Correa's alone, that hardly provides an innocent explanation for his actions in facilitating Correa's attempted drug possession, much less does it signal that Heras did not know that the specific intent of such possession was distribution.

In sum, we conclude that the evidence was sufficient to permit a jury to infer from Heras's knowledge that Correa was a drug dealer seeking to take possession of a quantity of drugs and Heras's knowing effort to further and facilitate that possession that Heras necessarily adopted the specific intent underlying the attempted possession, namely, distribution of any acquired drugs. Accordingly, we vacate the judgment of acquittal and remand the case to the district court with instructions that it reinstate the jury verdict, proceed to sentencing, and enter a judgment of conviction.

I. Background

A. The Attempted Possession of Cocaine

On January 24, 2009, federal agents at Kennedy Airport seized almost three pounds of cocaine from Terry Pannell, a passenger arriving in the United States from Bogota, Colombia: 1,102 grams of 76.6% pure cocaine hidden in the lining of Pannell's briefcase, and 311.5 grams of 77.58% pure cocaine hidden in Pannell's leather portfolio.

Pannell agreed to cooperate with the agents in making a controlled delivery of the seized cocaine at a nearby Holiday Inn. Toward that end, on January 24 and 25, 2009, Pannell placed monitored telephone calls to both his Colombian source of supply and his United States contact. In these calls, Pannell was instructed to deal with a man named "Primo," later identified as Simon Correa, also known as "Luichi."

At approximately 10:30 p.m. on January 25, 2009, federal agents observed Correa arrive at the Holiday Inn in a minivan and proceed to Pannell's room. In a recorded conversation, Pannell asked Correa if he had brought the money to pay for the drugs. Correa replied that he had not and that his "orders" were "to take everything" -- an apparent reference to both the briefcase and portfolio -- and to return with the money the following day. Controlled Delivery Tr. at 1. Pannell stated that he was told to give Correa only the smaller quantity of cocaine in the portfolio and to wait for Correa to make payment before giving him everything. Correa agreed, stating ...


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