On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 2-07-cr-00151-002) District Judge: Honorable Gene E.K. Pratter.
The opinion of the court was delivered by: Van Antwerpen, Circuit Judge.
Argued on December 15, 2009
Before: FISHER, HARDIMAN, and VAN ANTWERPEN, Circuit Judges.
The United States appeals the District Court's judgment of acquittal for Appellee-Defendant Ruben Boria ("Boria"). For the following reasons, this Court will reverse the judgment of acquittal and remand the matter to the District Court for further proceedings.
On February 5, 2007, Marcus Diaz ("Diaz") arrived in Philadelphia, Pennsylvania driving a tractor-trailer which contained one hundred kilograms of cocaine hidden among boxes of mostly rotten fruit. That same day, Jose Alvarado ("Alvarado"), a Drug Enforcement Agency ("DEA") informant, received a phone call from his long-time friend Miguel Morel ("Morel"), who was searching for a garage which could fit a tractor-trailer for unloading. Alvarado had previously assisted Morel with Morel's drug transportation business.*fn1 He then met with Morel and four other Mexican nationals, none of which were Boria. Alvarado was unable to locate a garage for Morel, but suggested an overnight parking location. Alvarado watched the truck that night and was in constant communication with Morel. At some point during the night, Alvarado managed to inform law enforcement about the load of cocaine.
On the morning of February 6, 2007, Alvarado returned to the parking lot to take Diaz to breakfast. When the two arrived at the diner, Alvarado received a phone call from Morel informing Alvarado that he had sent someone to take the tractor-trailer to a garage for unloading. Alvarado testified that he was told by Morel that Boria "was supposed to take the tractor-trailer from [Alvarado] and take it to a garage to unload the drugs that were in the back of the tractor-trailer." (App. 139.) On cross-examination, Alvarado maintained that Boria was responsible for "taking the truck from [his] hands to take it to another garage to unload it," (id. 144), and for "tak[ing] the driver of the tractor-trailer to finish off what needs to be done inside the truck," (id. 145).*fn2
Morel informed Alvarado and Diaz that this man would identify himself as "Ruben," and Alvarado identified Boria as Ruben. When Alvarado and Diaz pulled into the parking lot, Boria approached the car and Diaz asked his identity.*fn3 Boria identified himself as Ruben and confirmed that Morel had sent him.*fn4 Alvarado acknowledged he had never before seen Boria. Diaz then climbed into the driver's side of the truck and Boria climbed into the passenger's side. The truck left its location with Alvarado following, at Morel's request, and eventually stopped in a K-Mart parking lot on Aramingo Avenue. Alvarado exited his car and approached the truck to ask Boria why they had stopped there because it was a "hot area." When Alvarado reached the tractor, Boria was on his cell phone. After Boria hung up, Alvarado asked where the truck was heading. Boria responded that he was going to a garage in North Philadelphia, but that he was waiting for someone to open it.
When the truck pulled out of the parking lot, it was stopped by the police, who had been observing the truck since receiving Alvarado's tip. The police then conducted a lawful search of the truck after a K-9 unit alerted to the presence of contraband. Police officers recovered a cell phone and $16.00 from Boria's person.*fn5 Boria's cell phone continued to ring after the police stop and throughout the search of the tractor-trailer. Police gained access to the locked trailer portion with a key on the ring they found in the ignition. After three hours of searching, the police located one hundred kilograms of cocaine hidden in boxes, which themselves were hidden in the middle of the trailer within pallets of mostly rotten fruit.
On April 18, 2007, a grand jury indicted Boria on two counts: (1) conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and (2) aiding and abetting the possession with intent to distribute five kilograms or more of cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(A).
At the close of the Government's case-in-chief, Boria moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29(a). The District Court reserved judgment on the motion. On January 25, 2008, after a four-day trial, the jury returned a verdict of guilty on each count of the indictment. Boria then renewed his motion for a judgment of acquittal and also filed a motion for a new trial under Rule 33, arguing the verdict was against the weight of the evidence and that the District Court erred in excluding a DEA report as inadmissible hearsay.*fn6
After hearing arguments, the District Court entered a judgment of acquittal for Boria finding the evidence of his knowledge of the objective of the conspiracy, i.e. the transportation of cocaine, insufficient. After identifying the appropriate standard of review as well as the cases relevant to this issue, the District Court found:
"there was no evidence that Mr. Boria was engaged in, or present during, any conversations about the cocaine that was hidden in the back of the trailer; no probative evidence of the substance of any communications in which Mr. Boria engaged; no evidence that Mr. Boria ever 'possessed' or saw the cocaine, or that he ever saw the back of the trailer unlocked; no evidence of any prior relationship between Mr. Boria and any co-conspirators; and no evidence that Mr. Boria previously had been involved in any drug-trafficking activities."
(App. 586.) Consequently, the District Court determined that a reasonable jury could not find that Boria knew the actual purpose of the conspiracy.
The District Court had original jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291. The ...