MOTION FOR JUDGMENT OF ACQUITTAL AND

SUPPORTING MEMORANDUM OF LAW

**, by and through her undersigned attorney, and pursuant to Fed. R. Crim. P. 29, requests that this Honorable Court enter a judgment of acquittal on the only count of the indictment, conspiring to possess with intent to distribute heroin and cocaine, based on the fact that the government has failed to present sufficient evidence to sustain a conviction for this offense. The government failed to present any evidence that Ms. ** intentionally and knowingly entered into an agreement with any of the named coconspirator, or anyone else for that matter, to viol ate federal drug trafficking laws. To the contrary, the evidence is clear that Ms. ** was not part of any conspiracy to sell any drugs.

MEMORANDUM OF LAW

Count one charges the defendant with willfully, knowingly and intentionally conspiring to possess with the intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846. The conspiracy is alleged to have occurred from on or about "a date unknown to the Grand Jury, and continuing through on or about June 12, 1998". The basis of the government's case against Ms. ** is: (1) that she was present in the vehicle her boyfriend, Pedro Quinones, was driving when he conducted a single drug transaction for one ounce of heroin with Daniel Rivera on June 2, 1998; and (2) that later on in the day, after having followed Quinones and Ms. ** for some time as they stooped at. an apartment complex, went to a check cashing business, and then to the Florida Mall, when the police stopped Mr. Quinones' car and arrested both Quinones' and Ms. **. Ms. ** volunteered that she had some $5,000 in her purse, which she told police she had gotten from a bank and her mother, and it was later determined that approximately $1,400 of this money was allegedly marked bills from the earlier drug deal. Nothing more. Under the law of conspiracy, this is clearly not enough to sustain a conviction.

In assessing the sufficiency of the evidence under Fed. R. Crim. 29, this court must review the evidence, considered as a whole, including all inferences that may be reasonably drawn from it, in the light most favorable to the government, and decide whether a rational trier of fact can find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2790, 61 L.Ed.2d 560 (1979); United States v. Toler, 144 F.3d 1423, 1428 (11th Cir. 1998); United States v. Hernandez, 141 F.3.d 1042, 1052 (11th Cir. 1998).

The court's "responsibility is to ensure that the government has shouldered its burden and adequately proved its case." United States v. Hardy, 895 F. 2d 1331, 1335 (11th Cir. 1990). In this regard, the government must do more than prove that the defendant's participation in the crime charged is possible or even plausible. It must prove the defendant's guilt beyond a reasonable doubt and to the exclusion of every reasonable doubt. Although the evidence need not exclude every reasonable hypothesis of innocence in order to sustain a guilty verdict, a conviction predicated on conjecture cannot be sanctioned by the court. United States v. Toller, supra, at 1433; United States v. Perez-Costa, 36 F.3d 1552, 1557 (11th Cir. 1994), cert. denied, 515 U.S. 1145, 115 S.C. 2584, 132 L.Ed.2d 833 (1995); United States v. Hardy, supra.The government has failed to present sufficient evidence to permit a reasonable jury to find that Ms. ** conspired with anyone to possess or sell any illegal drugs.

The Charge

Ms. ** is charged with a violation of 21 U.S.C. § 846, conspiring to possess with intent to distribute heroin and cocaine. The elements of the offense of conspiracy under §846 are: (1) an agreement between the defendant and one or more persons 1 (2) the object of which is to do either an unlawful act or a lawful act by unlawful means. United States v. Toller, 144 F.3d, at 1426. Thus, to prove a conspiracy under 21 U.S.C. § 846 here, the government must prove beyond a reasonable doubt that there was an agreement between Ms. ** and one or more other persons to violate the narcotics laws of the United States. The evidence of this agreement to violate the law must be substantial, not slight. Toller.

Also, the government must prove the conspiracy charged in the indictment, not some other conspiracy. The government's evidence must show an interdependence among the alleged coconspirators in order to prove that the charged conspiracy was a single unified conspiracy as opposed to a series of smaller, uncoordinated conspiracies. Id.

Finally, important to the analysis of the sufficiency of evidence in any conspiracy prosecution is the relevant

-3-

time frame of the conspiracy. A conspiracy's duration is difficult to prove with certainty, but generally has been held to continue until its purposes have either been accomplished or abandoned. United States v. Toller, 144 F.3d, at 1426.

Here, the government's evidence failed to prove that Ms. ** is guilty of anything other than poor judgment in selecting her boyfriends, and the normal nervousness we all feel when dealing with law enforcement. Nothing more. Certainly not intentionally entering into an agreement with anyone to sell illegal drugs.

The So-Called Evidence

The evidence at trial' established that Ms. ** who has no criminal record and does not use drugs, was dating codefendant Pedro Quinones, apparently a small time street level drug dealer who supplied drugs to codefendant Daniel Rivera. Rivera was a heroin addict, and sold drugs for Quinones to support his habit. Although Rivera claims that he saw Ms. ** on several occasions with Quinones, according to Rivera, Ms. ** was only present on one occasion when he and Quinones sold drugs. That was on June 2, 1998, when Rivera brokered a one ounce heroin sale between Quinones and codefendant Juaquin Broco. According to Rivera, on that single occasion, Ms. ** was in Quinones' car when he, Rivera, approached the car on the passenger door side, was given a small baggie containing one ounce of heroin by Quinones in Ms. **' presence, left to deliver the drugs to Broco, and then returned to the car and gave $3,640 to Quinones. All tolled, Ms. ** waited for 12 minutes while her boyfriend did his business with Rivera.

This motion is being prepared two days before the beginning of what is anticipated will be a one day trial. As such, the summary of the evidence is based on the government's discovery, interviews with the government's witnesses, and other investigation conducted by the undersigned. If the evidence at trial differs significantly from what is now known, this will be addressed at the oral presentation of Ms. **' Rule 29 motion.

According to Rivera, other then saying hello, Ms. ** neither said or did anything else. And although Rivera assumes that Ms. ** had to know what he and Quinones were doing, Rivera admitted that at the time he was a long time heroin addict, had already consumed a gram of heroin that day, and the facts of what happened are a little foggy. However, Rivera admitted that the baggie of heroin was very small, small enough to fit in the palm of his hand, and when he returned with the money, he gave it to Quinones in a tightly wrapped bundle, and neither he nor Quinones counted the cash in front of Ms. **. Rivera also testified that he never spoke to Ms. ** about any drug transaction, never gave her messages to give to Quinones about drug dealing, never received drugs or money from Ms. **, and as far as he knew, she had nothing to do with Quinones' drug business. She was merely Quinones' girlfriend. In fact,* Rivera testified that he told the government that Ms. ** had nothing to do with this case and tried to convince the prosecutors not to charge Ms. **. Finally, Rivera testified that, as is common in the Puerto Rican culture specifically, and the Latin culture in general, he, as a man, kept his long time drug trafficking activity secret from his wife, and did everything he could do to keep her ignorant about what he was doing, including the source of his money.

The law is clear, as to be beyond any serious per adventure, that the mere presence of a defendant with alleged an coconspirator is insufficient to support a conviction for conspiracy. Mere presence at the scene of a crime or conspiratorial activity, or mere association with coconspirator, is not enough to establish a defendant's knowing and intentional participation in criminal activity, even if the defendant is aware of the criminal activity. See and compare, United States v. Hernandez, 141 F.3d 1042, 1053-55 (11th Cir. 1998)(Evidence insufficient to support finding that son of main defendant in murder-for-hire prosecution, who was present at planning meetings and at meeting after murder was committed, knowingly and intentionally participated in conspiracy with father; mere presence at meetings and knowledge of conspiracy alone insufficient to convict of conspiracy); United States v. Thomas, 8 F. 3d 1052, 1056-9 0 11th Cir. 1993) (Holding that evidence that two defendants knew of planned bank robbery and were present when main defendant surveyed town and entered bank to plan robbery insufficient without more to show that defendants participated in conspiracy); United States v. Villegas, 991 F.2d 623, 629 (11th Cir. 1990), cert. denied, 499 U.S. 977, 111 S.C. 1625, 113 L.Ed.2d 722 (1991) (Mere presence at site of conspiratorial activity is insufficient to establish defendant's knowing participation in conspiracy, as is defendant's mere association or familial relationship with coconspirator); United States v. Hernandez, 896 F.2d 513, 519-20 (1 11th Cir. 1990), cert. denied, 498 U.S. 858, 111 S.C. 159, 112 L.Ed.2d 125 (holding that defendant's association with codefendant was insufficient to prove a conspiracy or possession of drugs, even though defendant was in vehicle from which drugs were retrieved and was present when drugs were given to undercover agent); United States v. Pintado, 715 F.2d 1501, 1504 (11th Cir. 1983) (Reversing conviction and holding that neither mere presence nor presence at scene in conjunction with fleeing or hiding from law enforcement officers will, of itself, support a conspiracy conviction).

Here, all the government's evidence shows is that on this single occasion, Ms. ** was out with Quinones when he took her to his meeting with Rivera, and waited for 12 minutes while Quinones and Rivera apparently conducted some type of transaction. Even if she was aware of what Quinones and Rivera were up to, such knowledge, even coupled with her presence at the scene of the crime does not make her guilty of conspiracy.

The fact that, as deputy Campbell testified, Ms. ** told him that she had approximately $5,000 on her when the police stopped and arrested her and Quinones. and $1,400 of this money turned out to be allegedly marked money from the earlier Quinones-Rivera drug deal, and Ms. ** told police that she had gotten the money from the bank, adds little to the government's case. First, by the time the police made this stop the object of the conspiracy between Quinones, Rivera and Broco, to sell and buy drugs was accomplished. The conspiracy was over. It was too late for Ms. ** to join the charged conspiracy, even if she had wanted to. Toller, supra.; see and compare, United States v. Hernandez, supra (Murder-for-hire conspiracy terminated after murder committed). Second, some two hours had passed since Rivera had given the allegedly marked money to Quinones. In the interim, Ms. ** and Quinones had made several stops, including at a check cashing business, and a large mall, which contains banks. Also, there was no evidence presented as to where Ms. ** and Quinones went prior to arriving at the meeting with Rivera. Put another way, there is absolutely no evidence that Ms. ** did not get most of the money from a bank. or from her mother, as she told agents when she was arrested. Nor was there evidence of what Quinones told her when he apparently gave her the $1,400 in marked bills.

The court should not allow the government to ask the jury to make inference upon inference upon inference, and guess that some how Ms. ** may be guilty in some way of conspiring to sell illegal drugs. The court should not and can not suffer a conviction predicated on conjecture. United States v. Toller, supra, 144 F.3d, at 1433; United states v. Perez-Costa, supra, 36 F.3d, at 1557; United States v. Hardy, supra, 895 F.2d, at 1335.

Even if Ms. ** may have panicked, became nervous or flustered, and when asked where she got the money from, did not give a complete answer, intentionally or not, that does not make her a knowing and willful participant in a conspiracy to sell heroin with Quinones. Absent evidence of such an agreement, and a desire by her to join in the charged conspiracy, she cannot be found guilty of the charged offense. United States v. Toller, 144 F.3d, at 1426.

CONCLUSION

THEREFORE, YVANNESSE ** respectfully requests that this court grant her motion under Fed. R. Crim. P. 29, and enter a judgment of acquittal as to the only count of the indictment.

TABLE OF CASE CITATIONS

United States v. Hardy, 895 F. 2d 1331 2

(11th Cir. 1990)

United States v. Hernandez, 141 F. 3. d 1042 2,5

(11th Cir. 1998).

United States v. Hernandez, 896 F.2d 513, 519-20 (11th Cir. 1990)

cert. denied 498 U.S. 85W 11 S.C. 159, 112 L.Ed.2d 125 ... ... 6

United States v. Perez-Costa, 36 F.3d 1552 3,7

(11th Cir. 1994) cert. denied, 515 U.S. 1145, 115 S.C. . 2584,

132 L.Ed.2d 833 (1995);

U.S. v. Pintado, 715 F.2d 1501, 1504 (11th Cir. 1983) . 6

United States v. Toller, 144 F. 3d 1423, 1428 (11th Cir. 1998) . 2,7

United States v. Villegas, 991 F.2d 623, 629 (11th Cir. 1990) 6

cert. denied, 499 U. S. 977, 111 S. Ct. 1625, 113 L. Ed. 2d 722 (1991)

Jackson v. Virginia, 443 U.S. 307, 99 S.C. 2781, 2790 2

61 L.Ed.2d 560 (1979);

C:\wwwfpd\joa2.wpd

-9-