Sunday, October 26th, 2008

The Ecstasy and the Ecstasy

United States v. Ogando, No. 05-0236-cr (2d Cir. October 20, 2008) (Kearse, Calabresi, Sack, CJJ)

Francisco Ogando, a licensed livery cab driver, was convicted of participating in an ecstasy importation and distribution conspiracy. On appeal, the circuit held that the evidence was insufficient.


Angel Gomez, a drug courier, was arrested at Kennedy Airport with ecstasy that he had imported from Belgium, and agreed to cooperate. He told the agents that he was supposed to call “Frank” – defendant Ogando – on arrival. He did so, and Ogando said he was right near the airport. Ogando found Gomez and brought him to his car. They did not discuss drugs, money or where they would be going, and were arrested before they got into Ogando’s car.

Ogando was found to have a cellphone – Gomez had been given that number by his handlers – a business card that mentioned Brussels and noted what Gomez would be wearing, and other papers with the names and telephone numbers of other conspirators, some of whom Ogando was related to. In a post-arrest statement, Ogando told the agents that he was at the airport because a friend named Alex – another co-conspirator – had asked him to pick up someone at the airport. He falsely declared that he did not know Alex’ last name, and also said that he did not know any of the other conspirators and did not know why their names and numbers were found in his car.

Other evidence showed that Ogando had been in the Philadelphia area when one of the conspirators was arrested there, and that after that arrest, Ogando made several calls to others associated with the scheme.

The Circuit’s Ruling

The court began by noting that, to prove conspiracy or aiding and abetting, the government must show more than “evidence of a general cognizance of criminal activity, suspicious circumstances, or mere association with others engaged in criminal activity.” All of the counts of which Ogando was convicted required a showing of specific intent – that he “consciously assisted the commission of the specific crime in some active way.”

Where the alleged conspirator is a driver, there must be more evidence than a co-conspirator’s testimony that he was to meet the driver at the airport and the driver’s actual presence there. Simply “waiting for someone qt an airport, even under … suspicious circumstances … is not by itself an act from which knowing guilty involvement can be reasonably inferred.” Here, the court held, that was all, in essence, the government proved.

Nothing about Ogando’s presence was in any way out of the ordinary for a livery cab driver meeting a passenger at the airport. And his personal relationship with some of the conspirators simply explained why they hired him as a driver, rather than someone else. It did not show that he “knew the nature of the conspirators’ business.” Thus, this evidence was probative of the co-conspirators’ state of mind, but not Ogando’s. Moreover, the evidence that Ogando was in Philadelphia when another participant was arrested indicated that Ogando was there to pick him up, but still did not prove that he knew the nature of the conspiracy. It simply showed that “Ogando was a livery cab driver regularly used by members of this conspiracy.”

Finally, Ogando’s false exculpatory statements on arrest could not fill the void. Although circumstantial evidence of a consciousness of guilt, “falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant’s innocence as it is to the government’s theory of guilt.”


This is a great victory for Ogando. Sadly, he had completed his 30-month sentence by the time he won his appeal. Indeed, this case seems to have taken an unusually long time to get to this point – the conduct occurred in 2002, the appeal has a 2005 docket number, but was not heard until 2008. The opinion contains no explanation for the delay.

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