On Appeal From the District Court of the Virgin Islands, Division of St. Thomas
(D.C. Crim. No. 95-cr-00073-2)
Before: BECKER, ROTH, and WEIS, Circuit Judges.
This is an appeal by Melvin Thomas from a judgment in a criminal case following a jury verdict of guilty on the charge of conspiracy to possess cocaine with intent to distribute, 21 U.S.C. Section(s) 846. *fn1 Because the evidence adduced at trial was insufficient to support the verdict, we will reverse. *fn2
On the morning of February 10, 1995, the United States Customs Service at the Cyril E. King airport on St. Thomas seized twenty-four kilograms of cocaine from a suitcase checked to Atlanta, Georgia. The officials identified the owner of the bag as Jennifer Lynch, whose plane had already departed for Atlanta. Customs officials on St. Thomas notified officials in Atlanta, and they arrested Lynch pursuant to a warrant when she arrived there. Lynch agreed to cooperate. She informed the agents that one Allan Petersen had directed her to take the suitcase carrying the cocaine to Atlanta, check into a room at the Atlanta Airport Days Inn, call him at a Virgin Islands telephone number, leave the bag with the cocaine in the room, return the key to the front desk in an envelope for "Melvin Smith" or "Cousin Melvin Smith," leave the Days Inn, check into another hotel for the night, and return to St. Thomas the following day.
Along with agents, Lynch checked into room 510 of the Airport Days Inn. Monitored by the agents, Lynch placed a phone call to the designated telephone number. She informed the agents that she had spoken to Petersen and given him the hotel room number. An envelope containing the room key was then left at the front desk for "Cousin Melvin Smith." Customs officials also left an empty suitcase in room 510 and set up surveillance directly across the hall in room 509.
In due course, Thomas entered room 510. The officers observed him and arrested him when he exited the room a few minutes later. They took from Thomas a 9mm pistol registered to him, a pager, a cellular phone, a Virgin Islands driver's license, the envelope with "Cousin Melvin Smith" written on it, and the room key. They retrieved from the pager the same telephone number at which Lynch had called Petersen from the hotel room. Thomas agreed to answer questions. He told the agents that he went to the room because a person named Cliff had offered him $500.00 to check on a bag at the hotel, but that he knew nothing about a cocaine deal. Petersen's phone records showed several calls to the pager and cellular phone carried by Thomas on the day of his arrest, and to Thomas' home phone.
Thomas was tried in the District Court of the Virgin Islands, together with Petersen. Lynch, who had pled guilty to the conspiracy count prior to trial, testified, on behalf of the government, that Petersen had offered to pay her to take the cocaine to Atlanta, relating the facts described above. She also testified that she did not know Thomas, and had not conspired with him to possess cocaine with intent to distribute. Petersen took the stand in his own defense. He too testified that he did not know Thomas, and that he had not conspired with him to possess cocaine with intent to distribute.
Thomas then took the stand, and testified as follows. On the morning of his arrest, he received a phone call from "Cliff," whom he did not know. Cliff informed Thomas that he had obtained Thomas' telephone number from a mutual friend. Cliff asked Thomas if he would do him a favor, and stated that he would call later that day. Later that day, Thomas received a call from his home on his pager. He returned the call to his home and was advised that Cliff was trying to reach him. He told the party answering to have Cliff contact him on his cellular phone. Shortly thereafter, his testimony continued, he received a call from Cliff who asked him to go to the Airport Days Inn, ask the front desk clerk for a key left for "Cousin Melvin Smith," go to the room, open the door, close the door without locking it, and return the key to the front desk. ...