Sunday, May 9th, 2010

Package Deal

United States v. Torres, No. 09-1771-cr (2d Cir. May 5, 2010)(Kearse, Hall, CJJ, Rakoff, DJ)

Every once in a while, when the judge and jury refuse to acquit an innocent defendant, the circuit steps in and sets things right. This is such a case. Finding that the evidence was insufficient to establish that Torres knew that there were drugs in some UPS packages that he went to great lengths to pick up, the court reversed the conviction and remanded for entry of a judgment of acquittal.


On April 30, 2008, a UPS deliveryman attempted to deliver two large “high value” packages to “Jose Torrez” at an address in Yonkers. Two men intercepted the driver near that address and asked for the packages. The driver asked for identification, but because it showed an address in Brooklyn, he would not release the packages.

The men were persistent. They followed the truck to its next destination and tried again. The driver checked with his supervisor, who told him not to release the packages. The driver later turned the packages over to a loss prevention specialist, who brought them to a UPS facility in Mount Vernon, where a security specialist opened them. The packages contained kitchen cabinets with secret compartments that contained about ten kilograms of cocaine, worth as much as $ 1 million.

Working with law enforcement, UPS arranged a controlled delivery. They called the addressee’s telephone number and spoke with “Jose Torrez” who, after expressing frustration about the earlier refusal to deliver the packages, agreed to pick them up at a UPS store in a Yonkers strip mall. An hour later, defendant Torres rode up to the sore in a van driven by someone else and went in to pick up the packages. He showed a New York State ID card in the name “Torres, Jose, A” with a Brooklyn address, and began to load the packages onto a hand truck, rebuffing all offers of assistance.

In the meantime, after noticing police nearby, the driver of the minivan fled. Torres, now with both packages loaded, looked in vain for his ride. For ten or fifteen minutes he explored the parking lot, returning frequently to the packages. He finally went into the store to call a cab, all the while looking over his shoulder. After he made the call, officers arrested him. Post-arrest, Torres said that “this is what happens when you do favors for somebody,” and that a “man in a Yonkers bodega had paid him to pick up the packages.” He later said that he worked at the bodega and was homeless.

The trial evidence also included various UPS documents, and phone records showing numerous calls between the addressee’s telephone number and telephone numbers in Puerto Rico.

The jury convicted Torres of a drug trafficking conspiracy, but acquitted him of a substantive count. Asked whether five kilograms or more of cocaine could be attributed to him, the jury answered, “No.” Judge Gardephe, after denying Torres’ Rule 29 motion, sentenced him to 78 months’ imprisonment.

The Circuit Reverses

In a conspiracy case based on circumstantial evidence, there must be “circumstantial evidence of knowledge and specific intent” and to be “sufficient to sustain a conviction [it] must include some indicia of the specific elements of the underlying crime.” The jury’s inferences must be “reasonably based on evidence presented at trial, not on speculation.”

Here, the evidence was sufficient for the jury to conclude that there was, in fact, a conspiracy to distribute cocaine. It also established that Torres had a connection with the packages containing the drugs and, given his highly suspicious behavior, that he “was most likely aware that the [p]ackages contained contraband of some kind.”

What the court “d[id] not see in the record, however, [was] any evidence that Torres knew that the [p]ackages contained narcotics.” After all, there was no cooperating witness testimony, no evidence of any drug records implicating him, and no proof of any narcotics-related conversation to which Torres was a party. Moreover, the cocaine “was well concealed and not visible.”

Nor was it true that the addressee’s telephone number was proven to be associated with Torres. It was registered in a different name and was used after Torres was in custody. Moreover, that numerous calls were made from that phone to numbers in Puerto Rico did not matter. There was no evidence that Torres was a party to or from any of those calls.

Finally, the court rejected the government’s argument that Torres must have known what was in the packages because otherwise the conspirators would not have trusted him to receive $1 million worth of cocaine. There was no evidence of “the nature of Torres’ associations with the persons who shipped the cocaine or with the persons who expected to distribute it.” Nor was evidence that Torres received a payment commensurate with the value of the drugs, or of evidence of “any conduct by Torres other than his efforts to gain possession of” the packages, which “did not show that he had knowledge of” their contents. Moreover, the evidence showed that Torres was not placed in a position of trust. The packages were addressed to a location that he did not control, and he was always accompanied by at least one other person when he tried to pick them up. The only time he was alone with the packages was when the driver of the van spotted the police and fled.

In sum, the court concluded, “viewed as a whole and taken in the light most favorable to the government,” the evidence was “insufficient to permit the jury to find beyond a reasonable doubt that Torres knew that the packages addressed to him contained narcotics, and hence was insufficient to establish that he had knowledge of the purposes of the conspiracy of which he was accused.”

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