Presence, mens rea, and drug conspiracy

Normally, mere presence during the commission of a crime does not prove intent to form an agreement to commit the crime (conspiracy) or to aid the crime (accomplice liability).  If D and X commit a bank robbery, and B is present in the bank at the time, the Government cannot use B’s mere presence to convict B of conspiracy to commit bank robbery or of aiding and abetting the bank robbery conspiracy of D and X.  Sometimes, though, the circumstantial evidence surrounding one’s presence will be enough to implicate them in the crime (i.e., it is no longer mere presence).  The United States Court of Appeals for the First Circuit recently discussed what kind of additional facts are sufficient to establish conspiracy to commit, or aiding and abetting a conspiracy to commit, a federal drug possession offense.  The case is United States v. Maymi-Maysonet.

Federal agents conducted an undercover operation in Puerto Rico, planning a sham drug deal involving five kilos of cocaine.  Their target was a guy named Rodriguez.  They saw Rodriguez and Garcia walk toward a restaurant, and an hour later, they saw Rodriguez, Garcia, and Maymi-Maysonet walk back toward Rodriguez’s car and stand against a fence.  A half-hour later, the three men were joined by a confidential informant.  After the CI’s conversation with them ended, the three men walked toward the hotel where the drug deal was supposed to occur.  Rodriguez and Garcia walked toward the driveway entrance; Maymi toward a cockfighting ring nearby.  A red car then drove from the ring and past the hotel.  It then returned to the hotel and parked; Rodriguez and Garcia followed the car to the lot.

Around that time, the undercover agents were told that the money for the cocaine had arrived.  Rodriguez carried a black bag upstairs, accompanied by the CI and an agent.  There, Rodriguez was arrested.  The bag contained $92,500.  There were also three people now in the red car, including Maymi, who was in the back seat and who possessed $10,500.  He and the others were arrested.

The Government indicted Maymi, Garcia, and Rodriguez, but not the other two people in the red car.  Maymi was convicted of knowingly conspiring to possess, with intent to distribute, five kilos or more of cocaine, as well as aiding and abetting conspiracy to possess five kilos or more of cocaine with the intent to distribute.

Maymi argued on appeal that the evidence was insufficient to convict him of knowingly conspiring, or of aiding and abetting the drug conspiracy.  The First Circuit disagreed.  The court conceded that each aspect of Maymi’s role here, if viewed separately, would make the Government’s case more problematic.  But when viewed together, a jury could conclude that his presence was not a mere coincidence.  “[T]here are too many proximate connections between Maymi’s actions and those of the drug traffickers,” the court stated.  He was present for the meeting with the CI, who was directly involved in the transaction; he was in the backseat of the car that delivered the drug money; and he had a large amount of cash on his person.

But wait!  Couldn’t this all be solved by the CI?  Couldn’t the CI have testified that his conversation, which included Maymi, involved the drug transaction?  Yes, if that was the content of the conversation (and there is some evidence that it was).  But the Government never called the CI to testify, so the content of the conversation between the four of them was never admitted into evidence.

The dissent in this case noted this problem, and concluded that the Government’s other evidence was insufficient for proof of Maymi’s knowledge beyond a reasonable doubt.  The dissent also noted that Maymi was not actually present for the drug deal; he was simply in the presence of those involved in the deal before the transaction occurred.  But he was never in the hotel room (nor was he even in the hotel during the deal).  He was with the others in the red car, and they were never prosecuted.  And the cash on his person was never connected to the instant drug transaction.  In short, the dissent argued that the Government could not prove that Maymi knew of the drug deal just because Maymi had been with the people involved in it.

Can we distinguish, though, Maymi from the other two guys in the car?  Yes.  Unlike them, Maymi was part of the conversation with Rodriguez, Garcia, and the CI, each of whom was present at the hotel when the drug deal took place.  In other words, Maymi had a direct connection to the drug traffickers that the other two did not have.  But is that enough?

 

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