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Date: 03-20-2019
Case Style:
United States of America v. Andres Garcia
Case Number: 18-1735
Judge: Hamilton
Court: United States Court of Appeals for the Eighth Circuit on appeal from the Northern District of Illinois (Cook County)
Plaintiff's Attorney: Tiffany Jacqueline McCormick, Jeremy C. Daniel, Peter Mack Flanagan
Defendant's Attorney: Andrea Elizabeth Gambino
Description:
A jury found defendant-appellant
Andres Garcia guilty of distributing cocaine—actually
distributing a kilogram of the stuff—to co-defendant Alan
Cisneros in violation of 21 US.C. § 841. The government offered
no direct evidence that Garcia possessed or controlled
cocaine, drug paraphernalia, large quantities of cash, or other
unexplained wealth. There was no admission of drug trafficking
by Garcia, nor any testimony from witnesses (undercover
2 No. 18-1735
agents, criminal confederates, innocent bystanders, or surveillance
officers) that Garcia distributed cocaine. Instead, the
government secured this verdict based upon a federal agent’s
opinion testimony purporting to interpret several cryptic intercepted
phone calls between Garcia and Cisneros, a known
drug dealer.
This case illustrates the role trial judges have in guarding
the requirement of proof beyond a reasonable doubt in criminal
cases. It also reminds us of the connection between the
roles that judges play in criminal cases, requiring proof beyond
a reasonable doubt, and in civil cases, where motions for
summary judgment and for judgment as a matter of law require
judges to evaluate the outer limits of reasonable inferences
under the lower civil standard of proof by a preponderance
of the evidence. See generally Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252–53 (1986) (comparing civil summary
judgment standards to criminal standard discussed in Jackson
v. Virginia, 443 U.S. 307, 318–19 (1979)). If the evidence would
not allow a civil case to survive a motion for summary judgment
or a directed verdict, then the case has no business being
given to a jury in a criminal trial.
We assume the government’s circumstantial evidence here
might have supported a search warrant or perhaps a wiretap
on Garcia’s telephone. It simply was not sufficient to support
a verdict of guilty beyond a reasonable doubt for distributing
cocaine. We reverse the district court’s decisions denying Garcia’s
motions for judgment of acquittal pursuant to Federal
Rule of Criminal Procedure 29 and reverse his convictions for
insufficient evidence.
No. 18-1735 3
I. Factual and Procedural Background
A. The Investigation of Cisneros and his Conversations with
Garcia
Beginning in 2010, federal and state agents spent two years
investigating an Illinois-based drug trafficking organization
headed by Alan Cisneros, who, along with most of his co-conspirators,
was affiliated with the Latin Kings street gang. The
evidence against Cisneros included seizures of cocaine and
cash used in drug deals, controlled buys made by both a confidential
informant and an undercover agent, video footage
from a camera concealed near Cisneros’ two residences, live
surveillance of his residences, consensually recorded telephone
conversations, and judicially authorized wiretaps on
three of Cisneros’ telephones. The agents built a strong case
against Cisneros. He ultimately pleaded guilty to possessing
500 grams or more of cocaine with intent to distribute. United
States v. Cisernos, 846 F.3d 972, 974 (7th Cir. 2017).
Garcia appeared on stage for only a few days at the end of
the Cisneros investigation. Between April 17 and April 20,
2012, agents recorded eight brief conversations between Cisneros
and Garcia on one of Cisneros’ wiretapped telephones.
Garcia and Cisneros had several cryptic exchanges, punctuated
by Garcia’s two brief in-person visits with Cisneros.
These conversations, as interpreted at trial by an ATF agent
testifying as an expert witness, formed the basis for Garcia’s
conviction. Garcia did not contest that he was the person
speaking with Cisneros on the calls, and the government and
Garcia stipulated to the accuracy of the English translations
of the Spanish conversations. We review them in detail, for
their content was the entire case against Garcia.
4 No. 18-1735
The first recorded conversation took place on the evening
of Tuesday, April 17, 2012. After exchanging pleasantries,
Garcia asked Cisneros if he was “all set to work” and, if so,
“around how much [did he] count on over there?” Cisneros
responded, “yes,” and “Like, two-four, something like that.”
Garcia replied, “That’s not a problem … I’ll go over there
later.” About an hour later, after a brief call verifying Cisneros’
location, a surveillance camera showed a person entering
one of Cisneros’ residences who was “a little shorter” with
“longer hair”—descriptors that matched Garcia. That same
person left Cisneros’ residence a “few minutes” later, along
with another person whom agents never identified.
The next afternoon, on Wednesday, April 18, 2012, Garcia
and Cisneros again spoke on the phone. Cisneros queried,
“Hey, by any chance … did you see the girl yesterday or not?”
Garcia demurred, “Noooo … why?” Cisneros explained, “because
I went to the bar afterwards,” and “she’s really ugly …
She scared me a little bit.” Garcia expressed skepticism, “I
took a little taste, I mean, you know? And everything, and she
was … fine, you know?” Cisneros insisted, “every time I go to
that bar, well, she’s … really hot,” but “now she was a bit fat
and … a bit ugly.” Garcia conceded that he would “check
around and [he’d] call [Cisneros] right back” and “see what
he says.”
A few hours later, Garcia told Cisneros that he had
“talk[ed] to these guys right now” and “it was the … the last
of what they had,” and “that everything came the same
way[.]” But if Cisneros “can work that one,” then “they will
help us out with it, with something, they will give us a discount.”
Cisneros remained unpersuaded, insisting that “she’s
too fat, like really … really worn out.” In fact, “she looks as if
No. 18-1735 5
… she had already been … worked at two or three bars.” Garcia
pushed back, noting that “I even told your brother like I
… I grabbed some … And she did give a kick[.]” But, Garcia
conceded, “let me give them another call right now and, so I’ll
see what they tell me.”
Garcia reported back a few minutes later that he “spoke
with them,” and they wanted Cisneros to “work with her.”
Garcia had been told that “they already threw the tix forward,”
but “for the next one, he says that he could throw it to
you for twenty-seven[.]” Cisneros objected that, “even if the
next one were at twenty-five … if you do the math, no. … Let’s
say at around seventy, or, or sixty. Seventy … eighty …
around there. … [I]t’s not even worth the bad reputation, to
tell you the truth … Why get a bad reputation with, with people?”
Garcia replied, “So then let me, so let me tell this guy it
would be better not to and … and to try with that one or to
cook this one and we’ll just wait and until he gets the rest.”
Again, a few minutes later, Garcia was back in touch with
Cisneros reporting that “the tix have already walked more
that, that way.” Garcia explained that if Cisneros could “hold
on to it for about two or so days,” then “he can change it for
you.” Garcia repeated that he was told, “Tell him to hold on
to it there and so while we get um, uh, the, the rest and then
we’ll, we’ll, we’ll exchange it for him.” Cisneros wanted to
know, “By when, more or less[?]” Garcia replied, “by Friday,”
and “we’ll give you another one within two days for sure.”
These conversations sounded suspicious, understandably,
to the agents monitoring Cisneros’ telephones. Thinking that
a delivery of drugs could be imminent, agents positioned
themselves near Cisneros’ two residences to conduct surveillance
in person on the evening of Friday, April 20, 2012.
6 No. 18-1735
Garcia called Cisneros that evening to say he would “be
right there so I can talk with you.” Agents observed Garcia
pull up in a gray Audi and walk to the front porch of one of
Cisneros’ residences. The agents did not notice Garcia carry
anything to the residence. A few minutes later, Garcia and
Cisneros got into the Audi, drove down the street, and entered
another of Cisneros’ residences. Agents still did not see Garcia
carrying anything. After about fifteen minutes, Garcia left Cisneros’
residence—again apparently without carrying anything—
and drove away in the Audi with agents following
him.
While Garcia was still driving, Cisneros and Garcia had
another phone conversation. Garcia reported: “The little bit
that I put on my tongue, it looks like it’s, it’s good, man, you
know?” Garcia told Cisneros, “you test it,” or “like casually,
just tell one of those guys who are around, give a taste to
someone around there to find out.” Cisneros replied that he
was “also the same right now.” Garcia laughed, and said,
“Yeah, right? Yes, so then, I said, ‘Wow, what the!’ … So what
if I had put a good, uh, handful there.” Garcia told Cisneros
that they would “be in touch. If there’s anything, call me.”
The agents following Garcia’s car believed he had narcotics
with him. They conducted a traffic stop as he was turning
into the driveway of his house. The agents’ belief was not correct.
The agents asked Garcia if they could search his car, and
Garcia agreed. Although a narcotics-sniffing dog gave a positive
indication that some sort of drug (legal or illegal) had
been or was in the car, the agents found nothing of interest
except two cellphones. They asked Garcia if they could look
in the telephones, and again Garcia agreed. Checking the call
No. 18-1735 7
log, they confirmed that Garcia had indeed been in contact
with Cisneros.
The agents then asked Garcia’s family members if they
could search the house. The family members agreed. The
agents found nothing of interest—no drugs, no money, no
drug paraphernalia, no wrappers or presses, no baggies or
tinfoil, no pipes, no scales or ledgers.
Desiring to do a more thorough search of the car, the
agents asked Garcia if he would return with them to the police
station. Again, Garcia agreed. He was taken to the station and
fingerprinted. The agents did not find any secret compartments
in Garcia’s car, which, according to the lead case agent
at trial, are often used “for storing drugs, money, guns, things
of that nature.” Whatever suspicions the agents had were not
borne out by the searches of Garcia’s person, car, and home.
Garcia was nonetheless indicted in a thirty-five count indictment
charging Cisneros and nine others with various
drug trafficking and related offenses in connection with the
Latin Kings’ street-gang activities. Garcia, who was not a
member of the Latin Kings, appeared in just two counts of this
far-ranging indictment: supplying cocaine to Cisneros on
April 17, 2012 (Count 28), and using a telephone to facilitate
that transaction (Count 27), in violation of 21 U.S.C.
§§ 841(a)(1) and 843(b), respectively.
B. The Trial
The government’s theory at trial was that on Wednesday,
April 17, 2012, Garcia sold “a large quantity of cocaine to Alan
Cisneros in exchange for $24,000.” The telephone conversations
were evidence of this transaction because, the government
contended, Garcia and Cisneros used “girl” to mean
8 No. 18-1735
“cocaine,” and “two-four” to mean “twenty-four thousand
dollars.”
The government presented four witnesses at trial. All were
ATF agents. None saw Garcia engage in distributing cocaine.
None saw him in possession of cocaine, large quantities of
cash, or drug paraphernalia. Three of the agent-witnesses carried
out the Cisneros investigation, but they provided no evidence
to corroborate the government’s theory about Garcia’s
calls. Two of those three testified briefly about their first-hand
observation of Garcia’s visit to Cisneros on April 20, 2012, and
the fruitless traffic stop and searches.
The third agent, Andrew Karceski, similarly described
Garcia’s visits to Cisneros’ house and the traffic stop. He also
read aloud to the jury the transcripts of Garcia and Cisneros’
recorded conversations. Despite Agent Karceski’s experience
“surveill[ing Cisneros] for many, many, many hours, observ[
ing] him throughout two years,” the prosecutor explained
to the judge that “we aren’t asking [Agent Karceski]
to opine or offer any opinions on what is being said in the
conversations” with Garcia. (This was prudent. See, e.g.,
United States v. Morris, 576 F.3d 661, 675 (7th Cir. 2009).)
For that effort, the prosecution called instead a fourth
agent, one who had no firsthand knowledge of the Cisneros
investigation. The government offered Agent Christopher
Labno as “an ATF special agent with experience interpreting
drug code.” After reviewing the transcripts, Labno testified
that when Cisneros said “two-four,” he was “Talking about
$24,000.” Agent Labno said his opinion was based on his experience
that drug dealers will “Typically … just [use] numbers
instead of someone saying I would like, you know,
$25,000, it will be two-five, that type of thing.”
No. 18-1735 9
Agent Labno opined further that the type of drug Garcia
and Cisneros were discussing was “powder cocaine” because
“some examples of [] code words” used for cocaine include,
“Work, girl, that white girl.” In contrast, “example[s] of code
word[s] for heroin” include “Boy, dog food, diesel.” And the
market price for cocaine in April 2012 determined the amount
of drugs sold, with Agent Labno testifying, “I would say the
[cocaine market price] range would be between approximately
24 to $28,000 a kilo.”
Agent Labno similarly explained the remainder of Garcia
and Cisneros’ conversations solely by reference to “typical”
or “common” use of phrases or courses of action by drug dealers
in general:
Garcia’s use of the term “work”? Labno:
“Ready to work or set to work and work in
general is typically what is the code word for
narcotics.”
Cisneros’ reference to “the girl” being “worn
out”? Labno: “The cocaine has been cut too
much” because “[t]ypically cocaine come[s]
into the country at 85 to 90 percent pure
[and] then is distributed through various individuals
and very often the practice is each
time to add some cut and to take some cocaine
out.”
What was meant by “tix”? Labno: “Tix refers
to tickets, which is a common code word for
money.”
10 No. 18-1735
Why was Cisneros talking about his “reputation”?
Labno: “Typically, you want the
best reputation you can for your product.”
And the mention of “cooking”? Labno: It
meant to “[c]ook the cocaine into crack cocaine”
because “I understand that one of the
ways to recover cocaine that’s been cut too
much is to cook it into crack cocaine.”
What did Garcia mean by “taste”? Labno:
He was “[t]esting the cocaine” because
“[t]ypically individuals will either use a
tester, someone who … can tell whether it’s
good or not. Sometimes they’ll — another
way would be to put it on a mucous membrane,
basically your tongue, your nose,
your mouth, your gum, to see if you get a
numb sensation or that type of feeling.”
What about the reference to a “corner”?
Labno: That meant “off of the kilo, only a
small portion, a corner of it, had been sold,”
as “[t]ypically [cocaine is packaged as] a
compressed brick … Sometimes it can be
packaged in other items … If they conceal
[it] in a pipe, it could be a circular puck. But
very commonly, it’s a brick.”
Agent Labno testified that he formed an opinion as to
these conversations based on only his view of how narcotics
trafficking is “typically … done on the street in my experience.”
He acknowledged on cross-examination that he did not
know Garcia and Cisneros and that he knew nothing specific
No. 18-1735 11
about them. Agent Labno agreed that the meaning of code
words—to the extent they were code words—“would depend
on the context.” But, he insisted, although “I don’t know the
individuals, I know the context of narcotics trafficking very
well.” Defense counsel observed that Agent Labno apparently
chose the “context” through which to interpret the conversations
by “[a]ssuming that someone is guilty of narcotics trafficking.”
She thus laid the foundation for the point that, if one
starts with the assumption that Garcia was trafficking cocaine,
the conversations makes sense, but if one starts with the presumption
of innocence, some further corroboration of actual
criminal conduct is needed to prove guilt beyond a reasonable
doubt. She moved for a judgment of acquittal, which Judge
Der-Yeghiayan denied.
In closing argument, the prosecutor told the jury, “when
you consider all of the evidence, the calls, the code, the surveillance
and the traffic stop, you know that [Garcia] sold
$24,000 worth of cocaine to Alan Cisneros on April 17th, 2012,
and you also know that he used a cellular telephone to facilitate.”
The prosecutor concluded vaguely: “You know that
what was said during those calls meant something.” The jury
returned a guilty verdict on both charges, finding that Garcia
had distributed cocaine and had used a communication facility
to distribute the cocaine. Defense counsel renewed her motion
for a judgment of acquittal, which was again denied.
Upon Judge Der-Yeghiayan’s retirement, the case was assigned
to Judge Pallmeyer for sentencing. Judge Pallmeyer
denied Garcia’s post-trial motion for judgment of acquittal
pursuant to Federal Rule of Criminal Procedure 29. She found
that Garcia sold one kilogram of cocaine based upon the evidence
at trial and, with zero criminal history points and a
12 No. 18-1735
criminal history category of I, that his sentencing guideline
range was 51 to 63 months. Garcia was sentenced to 48
months in prison on each count, to be served concurrently.
II. Analysis
On appeal, Garcia argues that the court should have entered
a judgment of acquittal under Federal Rule of Criminal
Procedure 29 because there was insufficient evidence to support
his conviction beyond a reasonable doubt. We agree.
Without corroborating evidence, the agent’s opinion testimony
regarding the meaning of Garcia’s allegedly incriminating
conversations amounted to educated speculation rather
than proof beyond a reasonable doubt.1
We begin by laying out the general standards for reviewing
sufficiency-of-the-evidence challenges, which the Supreme
Court has taught can benefit from comparison to
standards of proof in civil cases, such as when a judge may
take a claim or issue away from a jury by granting summary
judgment or judgment as a matter of law. We then review the
application of the governing standard in relevant case law.
We conclude by explaining why the chain of logic in the
1 Garcia raised two other issues on appeal: (1) whether the trial judge
abused his discretion by refusing to ask prospective jurors expressly about
racial bias or anti-immigrant sentiment; and (2) whether the sentencing
judge erred in finding sufficient evidence to support the drug quantity
finding. As to the first issue, while more pointed voir dire questions might
be advisable to elicit specific juror prejudices, existing precedent leaves
this matter to the trial judge’s discretion unless “racial or ethnic bias … is,
or might be, a central aspect of the case”—a situation not present here.
United States v. Montenegro, 231 F.3d 389, 394 (7th Cir. 2000). Because we
set aside Garcia’s conviction, we need not address the sentencing issue.
No. 18-1735 13
government’s case failed to establish proof of Garcia’s guilt
beyond a reasonable doubt.
A. Standards of Review and Proof
A trial judge, upon a defendant’s motion or on the judge’s
own initiative, “must enter a judgment of acquittal of any offense
for which the evidence is insufficient to sustain a conviction,”
either after the government has closed its evidence
or after a jury has rendered a verdict or been discharged. Fed.
R. Crim. P. 29(a), (c). In reviewing a district court’s denial of a
motion for judgment of acquittal, we do not defer to the district
judge’s decision. United States v. Mohamed, 759 F.3d 798,
803 (7th Cir. 2014).
In applying Rule 29, the court must view the evidence “in
the light most favorable to the government to determine
whether any rational trier of fact could have found the essential
elements of the charged offense beyond a reasonable
doubt.” United States v. Seidling, 737 F.3d 1155, 1159–60 (7th
Cir. 2013). We have often said that a defendant seeking a judgment
of acquittal faces a “nearly insurmountable hurdle.”
E.g., United States v. Johnson, 874 F.3d 990, 998 (7th Cir. 2017)
(invoking chain of quotations); see also, e.g., United States v.
Tantchev, 916 F.3d 645, 650 (7th Cir. 2019); United States v. Maldonado,
893 F.3d 480, 484 (7th Cir. 2018).
But, to be clear, we have also insisted that “the height of
the hurdle depends directly on the strength of the government’s
evidence.” United States v. Jones, 713 F.3d 336, 339 (7th
Cir. 2013) (affirming grant of Rule 29 judgment of acquittal).
Successful challenges are relatively rare, but “a properly instructed
jury may occasionally convict even when it can be
said that no rational trier of fact could find guilt beyond a
14 No. 18-1735
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 317 (1979)
(adding that “the same may be said of a trial judge sitting as
a jury”).
The Supreme Court has taught that, in applying Rule 29
and the reasonable-doubt standard in criminal cases, it is useful
to compare the similar role that judges play in deciding
motions for summary judgment and for judgment as a matter
of law in civil cases, under Federal Rules of Civil Procedure
56 and 50. In Jackson, the Court explained that “the beyond-areasonable-
doubt standard” requires a “quantum and quality
of proof” that permits a judge to “distinguish between criminal
and civil cases for the purpose of ruling on a motion for
judgment of acquittal.” Id. at 318 n.11. Similarly, in one of the
iconic cases on summary judgment in civil cases, the Court
returned to Jackson’s focus on “the actual quantum and quality
of proof necessary to support liability,” advising that a
case should not go to a jury “if the evidence presented … is of
insufficient caliber or quantity to allow a rational finder of fact
to find” liability under the applicable standard of proof. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
Anderson explained that when a judge considers a motion
for summary judgment, a directed verdict under Federal Rule
of Civil Procedure 50(a), or a “First Amendment [case that]
mandates a ‘clear and convincing’ standard,” it is, “[i]n terms
of the nature of the inquiry, … no different from the consideration
of a motion for acquittal in a criminal case, where the
beyond-a-reasonable-doubt standard applies and where the
trial judge asks whether a reasonable jury could find guilt beyond
a reasonable doubt.” Id. at 250–52, citing Jackson, 443
U.S. at 318–19. In all of these contexts, the judge must consider
“the substantive evidentiary standard of proof that would
No. 18-1735 15
apply at the trial on the merits.” Id. at 252; see also Ford v.
Ahitow, 104 F.3d 926, 938 (7th Cir. 1997) (Jackson inquiry is “no
different from the consideration of the trial judge’s inquiry in
a motion for summary judgment or for a directed verdict,”
namely a “judge asks whether a fair-minded jury could return
a verdict for the plaintiff on the evidence presented”).
The judge must ensure in both civil and criminal cases that
determinations of credibility and the choices among reasonable
inferences from the evidence are left to the jury. But in all
of these contexts, the judge is still responsible for enforcing
outer limits on reasonable inferences, guided by the relevant
standard of proof. Anderson, 477 U.S. at 254–55; see also, e.g.,
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 595 (1986) (affirming summary judgment in civil antitrust
suit where “speculative or ambiguous” evidence did not support
triable issue under preponderance-of-evidence standard);
Willis v. Marion County Auditor’s Office, 118 F.3d 542, 544–
45 (7th Cir. 1997) (affirming district court’s grant of judgment
as matter of law; insufficient evidence to support jury verdict
that defendants harbored any racial animus or had fired
plaintiff to retaliate for her claim of employment discrimination).
A judge facing a Rule 29 motion in a criminal case might
benefit from first asking whether, if the evidence had been
presented in a civil case, it would be sufficient to send the case
to the jury.
B. Assessing the Required Quantum and Quality of Evidence
in a Criminal Case
As noted, reversals for insufficient evidence in criminal
cases are relatively rare in modern federal practice. There are
sufficient examples, however, to show that the evidence
16 No. 18-1735
against Garcia fell well short of what could support a finding
of guilty beyond a reasonable doubt.
1. Surveying Sufficiency-of-the-Evidence Cases
Comparing the government’s evidence against Garcia to
the amount and types of evidence that we have previously
found sufficient or insufficient to carry the government’s burden
helps to map on which side of the line Garcia’s case falls.
To support Garcia’s conviction, the government cites
United States v. Cejas, 761 F.3d 717 (7th Cir. 2014), as comparable
in terms of the quantum of proof because no drugs were
submitted as evidence at trial. In fact, the government’s case
in Cejas was much stronger than this one. In Cejas, a cooperating
co-defendant testified that the defendants sold him drugs.
Id. at 722. The government also offered surveillance video of
the defendants leaving the drug deal and placing items in a
toolbox attached to the bed of their truck. And when the
agents promptly executed a traffic stop of those defendants,
the agents recovered the $8,000 cash payment for the drugs
and a gun from the truck’s toolbox. Id. at 721–22. We found
that the combination of the testimony of the drug buyer, the
video of the use of the truck box, and the recovered cash and
gun was sufficient to sustain the conviction. Id. at 727. There
simply is no such corroborating evidence of criminal activity
in the government’s case against Garcia.
The remaining cases cited by the government bear even
less resemblance to the case against Garcia. For example, in
United States v. Faulkner, 885 F.3d 488, 491–92 (7th Cir. 2018),
the defendant had admitted most of the charged conduct, and
his admissions were corroborated by substantial amounts of
recovered narcotics, incriminating recorded calls, and
No. 18-1735 17
testimony of several witnesses—including a cooperating codefendant.
Likewise, in United States v. Mbaye, 827 F.3d 617,
619–20 (7th Cir. 2016), the defendant had admitted engaging
in the fraudulent activities and argued only his lack of fraudulent
intent. On the issue of intent, the government offered
testimony of both of his co-conspirators, as well as other actions
indicating consciousness of guilt, such as not reporting
his fraudulent income to the IRS and lying to investigators. Id.
at 620.
In another case that “skate[d] very close” to the line between
sufficient and insufficient circumstantial evidence,
United States v. Duarte, 950 F.2d 1255, 1259 (7th Cir. 1991), the
government had stronger evidence of the defendant’s involvement
in a drug conspiracy. No co-conspirators testified
that Duarte bought or sold cocaine, and police found no drugs
or paraphernalia in his presence. But Duarte shared a hotel
room with another defendant who was arrested as he traveled
to a second hotel room where the police later found more than
a kilogram of cocaine. More than 100 telephone calls were
made from Duarte’s room in two days, and Duarte carried a
pager, deemed then (it was 1990) a tool of the drug trade. The
police found notes in Duarte’s wallet that he had written and
that a government expert said were records of drug transactions.
We also emphasized that Duarte had lied to the police
about just about every subject they asked him about, including
providing a false address, using a car registered to a false
address, and carrying a bogus driver’s license, creating “a
cloud of suspicion surrounding his presence in Milwaukee.”
Id. at 1260. Thus, even in Duarte, which marked a point very
close to the outer bounds of sufficient evidence, there was
considerably more evidence—the associate headed toward a
kilogram of cocaine; the drug ledgers; the telephone calls and
18 No. 18-1735
pager; and the cloud of lies to the police—than the government
offered against Garcia here.
Further illustrating the weakness of the government’s case
is the fact that the quantum and quality of evidence offered
against Garcia were noticeably weaker than the evidence in a
number of cases where we have reversed convictions for insufficient
evidence.
For example, in United States v. Jones, 713 F.3d 336, 339–40
(7th Cir. 2013), the government presented a range of circumstantial
evidence in its effort to convict defendant Jones of
possessing cocaine with intent to distribute. We affirmed the
district court’s ruling that there was insufficient evidence to
support a guilty verdict beyond a reasonable doubt because
evidentiary gaps required the jury to speculate as to Jones’s
guilt.
The government’s theory was that defendant Jones had
helped a co-defendant, Finley, cook some cocaine into crack
to fulfill a drug order from an undercover government informant—
a theory supported by some circumstantial evidence.
Id. at 341. Government witnesses testified as to their
“interpretation of two recorded telephone conversations between
Jones and Finley,” including Jones seeming to relay his
intention to pick up items at a CVS or Walmart that could be
used to cook cocaine. Id. at 341–42. Jones also stated he was
looking for a blender, which FBI agents testified could be used
to cook crack. Id. at 343, 349. Two co-conspirators testified, including
Finley’s usual cocaine “cooker,” who had not cooked
for Finley on the day at issue. Id. at 342. The officers who conducted
surveillance of Jones and Finley testified as to Jones’s
movements throughout the day. Id. at 341-45. And the jury
heard testimony that Jones was in Finley’s car during a police
No. 18-1735 19
chase on the relevant evening and that the officers recovered
a plastic bag filled with crack that Finley threw from his car
during the chase. Id. at 344-45. Finally, the government played
a recording of Jones reporting to Finley after the police chase
on his (Jones’s) efforts to find the discarded crack in the neighborhood
where Finley had thrown the bag. Id. at 341–45, 349.
Nonetheless, the circumstantial evidence in Jones was not
sufficient to permit jurors, in terms of Jackson, “to draw reasonable
inferences from basic facts to ultimate facts.” Jackson,
443 U.S. at 319. Despite the temptation to nod along with the
government’s evidence and think that of course the defendant
was probably guilty, such gut feelings and suspicions do not
relieve the government of the burden of offering sufficient evidence
to prove guilty beyond a reasonable doubt. The government’s
evidence in Jones had not connected the links in the
logical chain: “None of the intercepted telephone conversations
showed an agreement between Jones and Finley to have
Jones cook the cocaine.” Jones, 713 F.3d at 349. “No witness
testified that Jones cooked any cocaine or was ever in possession
of any cocaine.” Id. at 341. “No witness saw Jones in possession
of the crack at any time [and] [n]o witness heard Jones
admit that he had possessed the crack or that he had helped
Finley cook the cocaine.” Id. at 346. “Jones was never seen
with any cooking utensils or diluents at any point during the
day,” nor was he “seen on the grounds of a CVS, Wal-Mart,
or Walgreens where one might purchase such ingredients.”
Id. at 349. The search for the blender did not help because Finley’s
regular cocaine cooker testified that “he and others typically
did not use a blender to cook cocaine, and no one ever
saw Jones or Finley in possession of a blender.” Id. Of the
“three latent fingerprints on the bag [of discarded crack] none
belonged to Jones.” Id. at 345. And “the government could not
20 No. 18-1735
establish that any drugs were actually present” in the locations
that officers observed Jones visit during the day at issue.
Id. at 349. Filling this “evidentiary void” with “guesswork”
and “speculati[on]” was impermissible. Id. at 348.
Another case in which we found evidence insufficient
(against one of two defendants), United States v. DiNovo, 523
F.2d 197 (7th Cir. 1975), also mustered more evidence than
was offered against Garcia. After Myron and Janet DiNovo
led police and DEA agents on a high-speed chase, they
searched the couple’s home. In the bedroom, agents discovered
two pounds of heroin in the dresser and drug-weighing
scales in the closet. In the living room, agents found a briefcase
with $14,000 in cash, foil packets of heroin, and seven hypodermic
needles, six containing heroin. Id. at 199. Although
there was sufficient evidence to convict Myron, the government
did not submit evidence that would permit jurors to find
that Janet also possessed the heroin: “There was no evidence
to show that she owned the trailer,” and the “Government offered
no evidence of what type of clothing was in the dresser”
with the heroin, “[n]or … what was in the portion of the closet
where the scales were found.” Id. at 201–02. The government’s
assertions, based on suspicious circumstantial evidence, that
Janet was sufficiently connected to the heroin were simply not
adequate. Nothing in DiNovo suggests that the result would
have changed if the government had offered an experienced
agent’s opinion that wives usually help their husbands in
drug-trafficking if the contraband is kept in their shared
home.
Even within the limited set of cases in which we have
found evidence to be insufficient, we could go on. For example,
in United States v. Mohamed, 759 F.3d 798, 800–01 (7th Cir.
No. 18-1735 21
2014), the government presented highly suspicious evidence:
the defendant, whose van was pulled over in Indianapolis,
was carrying over 23,000 cigarettes purchased in Kentucky
and a trash bag with over $15,000 in cash, and the defendant
admitted that he made some money reselling cigarettes illegally
for profit. Yet there was insufficient evidence introduced
at trial that, as required for conviction, the defendant “intended
to sell the cigarettes in Indiana.” Id. at 810. Similarly, in
United States v. Katz, 582 F.3d 749, 750 (7th Cir. 2009), in an
effort to convict the defendant of being a felon in possession
of a firearm, the government presented “testimony from several
law enforcement agents, a forensic technician, and tapes
of two 911 calls, as well as stipulations by the parties”—including
the defendant’s ex-girlfriend’s statement in her 911
call that defendant was holding “a weapon, which she described
as a big revolver.” That evidence was insufficient,
however, because the weapon recovered with defendant’s fingerprints
was not a revolver but a 12-gauge shotgun, and the
forensic technician could not rule out that defendant’s fingerprints
pre-dated his felony conviction. Id. at 752. We cautioned:
“A jury cannot speculate its way out of reasonable
doubt.” Id.
Perhaps the most useful case was the most straightforward.
In United States v. Allen, 383 F.3d 644 (7th Cir. 2004), we
reversed defendant David L. Allen’s 2003 conviction for being
a felon in possession of a firearm because there was insufficient
evidence tying him to the predicate felony conviction.
One David L. Allen had been convicted of dealing in cocaine
in 1995. Id. at 645–46. The future federal defendant David L.
Allen was arrested in 1999 on a post-conviction warrant issued
in the 1995 case. He did not argue then that the arrest
was a case of mistaken identity—i.e., that he was not the same
22 No. 18-1735
David L. Allen who had been convicted in 1995. But after the
Allen who was arrested in 1999 was arrested again in 2003 and
charged with being a felon in possession of a firearm, he argued
the government could not prove he was the same David
L. Allen who had been convicted in 1995. Id. at 646.
The 1995 report contained no identifying information beyond
a case number and his name—no fingerprint, photograph,
or physical description. But the district court found Allen
guilty because (1) he shared the same name with the 1995
defendant, (2) he had not objected in 1999 to being arrested in
connection with the 1995 offense, and (3) a common case
number was associated with all three arrests, making it reasonable
to infer that the 2003 defendant was the same person
convicted in 1995. Id. While the district judge’s inferences
were reasonable, we reversed. The question was not whether
a logical set of inferences could show the charge was possibly
or even likely true, but whether it could be inferred beyond a
reasonable doubt that the defendant was guilty as charged. Id.
at 649. Our answer was no.2
2 See also Piaskowski v. Bett, 256 F.3d 687, 689–90, 693 (7th Cir. 2001),
where we found the evidence was insufficient to sustain the murder conviction.
Our dissenting colleague understates the evidence against Piaskowski.
See post at 38. The evidence showed that the defendant had expressed
anger at the victim, the defendant had told a witness shortly before
the murder that “there was some shit going down,” another suspect’s
confession placed the defendant at the scene of the murder, and a co-defendant
admitted that he had attacked the victim “like everybody else,”
presumably including defendant. We held that the verdict was premised
on “conjecture camouflaged as evidence,” and “require[d] a leap of logic
that no reasonable jury should have been permitted to take”). Other cases
reached similar conclusions. See, e.g., United States v. Griffin, 684 F.3d 691,
693–95, 698–99 (7th Cir. 2012) (insufficient evidence for felon-in-possession
conviction despite agents’ seizure at defendant’s residence (owned
No. 18-1735 23
We have not found other cases in this circuit where the
government tried to bridge the evidentiary gap, as it did here,
solely with an agent’s expert opinion, but similar efforts have
not fared well in the Second Circuit. In United States v. Young,
745 F.2d 733, 738–39 (2d Cir. 1984), the Second Circuit vacated
the conspiracy conviction of one defendant, Tangee Afflic,
who had been charged with serving as a courier in a heroin
network. Afflic shared an apartment with Young, a defendant
convicted of a larger role in the conspiracy, id. at 744, and she
lived in what appeared to be an apartment building that was
“a vertically integrated heroin distribution network.” Id. at
757. Afflic was also the subject of extensive surveillance, during
which she was seen delivering shopping bags or small
packages to various locations, and was mentioned or recorded
on intercepted phone conversations that “the government
contended were ‘coded,’” including communications
by his parents) of ten firearms and five sets of ammunition, testimony
from his probation officer that she told his father there should not be firearms
in the house, and slightly inaccurate testimony from jailhouse informant
that defendant admitted to owning two of the guns that were
found in the kitchen; we reasoned that because there was “no evidence
that [defendant] himself ever had actual physical possession of the shotgun
… no evidence of his fingerprints … nor did any witnesses testify that
they had seen [defendant] holding or using them,” the jury was simply
“speculat[ing] its way out of reasonable doubt”) (quotation marks omitted);
United States v. Jones, 371 F.3d 363, 364–66, 368 (7th Cir. 2004) (insufficient
evidence to convict Jones of transferring gun to another state’s resident
despite video evidence of Jones accompanying his co-defendant to
purchase gun illegally, agent’s testimony that Jones accompanied his codefendant
across state lines to sell gun, and admission of co-defendant’s
statement describing scheme; “[t]he government might have obtained
support for [its theory] if the ATF had further investigated,” but “[a]ll the
government brought to trial was its speculation”).
24 No. 18-1735
describing efforts at “detecting or eluding surveillance.” Id. at
742–44.
The court found that this evidence was sufficient to support
probable cause for a search of Afflic’s apartment, during
which agents found an automatic rifle, two loaded 50-shell
magazines, fur jackets, and gold jewelry worth thousands of
dollars. Id. at 744–45, 757–58. This evidence was not sufficient,
however, to support Afflic’s conviction. Id. at 764. The amount
of unexplained wealth was “relatively small,” and the “surveillance
testimony” describing Afflic’s delivery of “a ‘white’
bag’” to other conspiracy participants was underwhelming.
Id. The court explained that “the most this evidence established
was that [she] was aware of the conspiracy and associated
with some of its members”—not enough to prove her
own guilt beyond a reasonable doubt. Id. The agent’s expert
opinion did not carry the day but was still deemed admissible
because it “was not used to explain the absence of any corroborating
physical evidence in the government’s case, but was
instead used to explain physical evidence that was in the
case.” Id. at 761.
Nevertheless, the expert opinion drew a word of “caution”
because it was “offered to establish that ambiguous conduct
constitutes criminal activity.” Id. at 765 (Newman, J., concurring).
Judge Newman explained that one must
question whether an [experienced narcotics
agent] expert’s opinion that the events he observes
constitute a drug transaction provides
very much, if any, assistance to a jury, beyond
whatever inference is available to be drawn by
the jury from all the evidence. … Whatever
slight probative value arises from a narcotics
No. 18-1735 25
expert’s personal opinion that an observed
transaction involved a sale of drugs must be
carefully weighed against the distinct risk of
prejudice. The ‘aura of special reliability and
trustworthiness’ surrounding expert testimony,
which ought to caution its use, especially when
offered by the prosecution in criminal cases,
poses a special risk in a case of this sort. That
risk arises because the jury may infer that the
agent’s opinion about the criminal nature of the
defendant’s activity is based on knowledge of
the defendant beyond the evidence at trial. …
The hazard of permitting the opinion in evidence
ought to make courts cautious in assessing
the sufficiency of a case based heavily on
such an opinion. If the observed actions of a defendant
do not establish a prima facie case, I do
not believe that an expert’s opinion that his actions
are criminal may carry the prosecution’s
proof above the requisite line. It is one thing to
permit a jury to weigh that opinion in considering
an otherwise adequate case; it is quite another
matter to let that opinion salvage an insufficient
case.
Id. at 765–66 (internal citations omitted); see also United States
v. Boissoneault, 926 F.2d 230, 234–35 (2d Cir. 1991) (reversing
conviction for possession of cocaine with intent to distribute
and endorsing Judge Newman’s concurrence in Young;
agent’s expert opinion could not supply sufficient evidentiary
basis to infer intent to distribute beyond reasonable doubt);
United States v. Sette, 334 F.2d 267, 269 (2d Cir. 1964) (reversing
26 No. 18-1735
conviction because sole evidence that defendant engaged in
illegal gambling was two agents’ “opinion testimony” based
on “their observations and their general knowledge of the
gambling business”; this did not “suffice[] to make a case for
the jury” where agents “utterly failed” to follow through on
surveillance and other evidence-gathering efforts—“the
proper and recognized manner of proving” the offense).
2. Assessing the Evidence Against Garcia
Returning to this case here, the government’s case “consists
entirely of inferences the government argues may be
drawn” about Garcia’s conversations, and we must decide
“whether this evidence permits an inference beyond a reasonable
doubt.” Allen, 383 F.3d at 647. “Although a jury may infer
facts from other facts that are established by inference, each
link in the chain of inferences must be sufficiently strong to
avoid a lapse into speculation.” Piaskowski v. Bett, 256 F.3d 687,
693 (7th Cir. 2001).
In making this assessment, a judge must take special care
to guard against the possibility that a defendant might be
found guilty by either speculation or mere association. Circumstantial
evidence that leads only to a “strong suspicion
that someone is involved in a criminal activity is no substitute
for proof of guilt beyond a reasonable doubt.” Id. at 692. And
evidence that calls for inferences that are “motivated or made
possible by speculation”—especially inferences “focused on a
defendant’s presence or association with criminals or their
criminal activity”—will fail to carry the government’s burden.
Jones, 713 F.3d at 347. It is simply not enough to “fill the
[evidentiary] gaps with inferences of guilt by association or
evidence of an individual’s mere presence somewhere criminal
activity may have occurred.” Id. at 352.
No. 18-1735 27
With our focus on Garcia and Cisneros’ conversations, a
key government contention is that the use of the word “girl”
meant “cocaine,” and the word “work” also meant either “cocaine”
or “drug dealing.” We do not doubt Agent Labno’s testimony
that some drug dealers use these code words for cocaine
and drug dealing. But we have also heard expert testimony
in other cases regarding other code words used by drug
dealers. See e.g., United States v. Vasquez, 679 F. App’x 470, 471
(7th Cir. 2017) (agent testified based on his experience and
training that defendants used code word “cabbage” to refer
to cocaine); United States v. Hughes, 970 F.2d 227, 237 (7th Cir.
1992) (agent testified that “terms like ‘a gallon of paint’ and
‘truck,’ ‘van,’ and ‘tractor’ … indicated the involvement of a
kilogram quantity of cocaine”). From a two-year investigation
into Cisneros’ drug-dealing activities, the government did not
offer any corroboration that Cisneros (and not just a “typical”
drug dealer) referred to cocaine as “girl” or “work,” such that
a juror could reasonably infer that Garcia understood Cisneros
to be talking about cocaine.
The next link in the government’s inferential chain is that
Garcia understood Cisneros’ phrase “two-four,” to mean Cisneros
would pay $24,000 for one kilogram of cocaine. Agent
Labno may have correctly hypothesized that “two-four”
meant $24,000, which was, perhaps fortuitously, at the bottom
of his estimated range of market prices for a kilogram of cocaine
in Chicago in mid-2012. But like any commodity, cocaine’s
market price can fluctuate, which would make any
corroboration of Labno’s estimate helpful for proof beyond a
reasonable doubt. After all, other agents’ expert testimony in
other contemporary cases opined that several months after
Garcia’s alleged sale, the 2013 Chicago-area market price for
a kilogram of cocaine was—at the low end—$34,000 per
28 No. 18-1735
kilogram. See, e.g., United States v. Delgadillo, Case No. 13-cr-
673, Doc. 111-3 at 1–2 (July 1, 2014) and Doc. 151 at 278–79
(N.D. Ill. July 22, 2014) (agent offered expert opinion that 2013
Chicago market price for cocaine purchased in bulk quantity
of six kilograms was $34,000 per kilogram, but “if the person
was going to buy less, there is a possibility that the price could
actually increase”); Vasquez, 679 Fed. Appx. at 471–72 (law enforcement
agent’s testimony that defendant sold a kilogram
of cocaine for $36,000). Again, there was no corroboration
here.
Did Cisneros refer to money as “tix” so he would share
Agent Labno’s suggested understanding of Garcia’s comment?
Did Cisneros’ concern about his “reputation” mean his
reputation as a drug dealer, so that Garcia would take from
that concern what Agent Labno suspected? Did Cisneros ever
“cook” his cocaine, so that Garcia’s suggestion was likely to
be what Agent Labno presumed? Was Cisneros’ cocaine typically
packaged in bricks, pucks, or some other form, such that
one could find Agent Labno’s speculation about the meaning
of “corner” more helpful than not? We and the jury could
speculate, but that’s not enough.
Agent Labno’s experience let him offer informed and perhaps
accurate speculation about the likely meaning of Garcia’s
calls with Cisneros. Their conversations were certainly
suspicious. They might well have supported applications for
search warrants or further wiretaps. We recognize that it is
possible, perhaps even likely, that Garcia was guilty in fact.
But “[t]he heavy standard applied in criminal cases manifests
our concern that the risk of error to the individual must be
minimized even at the risk that some who are guilty might go
free.” Addington v. Texas, 441 U.S. 418, 428 (1979). These
No. 18-1735 29
cryptic conversations, filtered through an agent’s experience
with other, unrelated cases without any corroboration that
Garcia was actually trafficking in cocaine, were not sufficient
to support a criminal conviction. See Piaskowski, 256 F.3d at
693 (reversing verdict based on “conjecture camouflaged as
evidence”).
District judges have a wealth of experience in applying the
varying standards of proof to gauge the sufficiency of the government’s
evidence. When considering motions for summary
judgment or directed verdicts, judges are accustomed to considering
carefully whether civil plaintiffs’ “actual quantum
and quality of proof” are of “insufficient caliber or quantity to
allow a rational finder of fact to find” liability to send the matter
to trial or to the jury. Anderson, 477 U.S. at 254. When faced
with a close criminal case, the judge’s experience with parallel
issues in civil cases may prove helpful in deciding the boundaries
of permissible inferences when the government must
prove its case beyond a reasonable doubt—which is so much
more stringent than the civil standard of proof. California ex
rel. Cooper v. Mitchell Brothers’ Santa Ana Theater, 454 U.S. 90,
92–93 (1981). The evidence here fell well short of proof beyond
a reasonable doubt on the charges against Garcia.
The judgment of the district court is
REVERSED.
30 No. 18-1735
BRENNAN, Circuit Judge, dissenting. The jury was
presented with enough evidence at trial to find Garcia guilty
beyond a reasonable doubt. Viewing that evidence under the
controlling legal standard of FED. R. CRIM. P. 29(c), I
respectfully part company with my colleagues and defer to
the jury’s verdict.
A. The Trial Evidence
After a three-day trial, receiving instructions, and
deliberating, the jury unanimously convicted Garcia on two
counts: (1) using a cell phone to distribute a controlled
substance in violation of 21 U.S.C. § 843(b); and (2) knowingly
and intentionally distributing a controlled substance in
violation of 21 U.S.C. § 841(a)(1).1 The trial evidence did not
contain the proverbial “smoking gun”—Garcia was not
caught holding a kilogram of cocaine—but it did include:
Eight recorded phone conversations
between Garcia and a suspected drug
distributor, Cisneros, with both men using
multiple coded terms;
Unchallenged and unrebutted expert
witness testimony explaining those coded
terms, individually and cumulatively, refer
to the distribution of cocaine;
Two cell phones found in Garcia’s
possession and a corresponding call log
1 The jury was properly instructed that it needed to find guilt beyond
a reasonable doubt on each element of the two counts, weigh the evidence,
and render its verdicts based on that evidence.
No. 18-1735 31
confirming the calls between Garcia and
Cisneros;
Photographic and video surveillance from a
pole camera of Garcia on April 17, 2012
entering a residence owned by Cisneros and
leaving the residence a few minutes later;
Photographic, video, and in-person
surveillance of Garcia on April 20, 2012
pulling up to Cisneros’ house, walking to the
front porch, returning to the vehicle with
Cisneros, driving to another residence
owned by Cisneros, entering the second
residence with Cisneros, and driving away
alone about 15 minutes later; and
The testimonies of three law enforcement
officers corroborating the surveillance of
Garcia on April 17, 2012 and April 20, 2012
and identifying him as the same person who
entered Cisneros’s residences on both days.
The majority opinion considers the recorded cell phone
conversations as interpreted by Bureau of Alcohol, Tobacco,
and Firearms Special Agent Christopher Labno as the entire
case against Garcia. For the majority, Labno’s testimony was
insufficient for a rational jury to convict Garcia on the
distribution charge.2 It labels this evidence uncorroborated—
2 The majority opinion does not separately address the sufficiency of
the evidence concerning the cell phone count. Given the stipulation to
Garcia’s voice on the recorded calls, the sufficiency of the evidence as to
narcotics “distribution” is presumably dispositive on the cell phone count
as well.
32 No. 18-1735
"educated speculation”—rather than proof beyond a
reasonable doubt.
This phone call evidence has two parts: the calls
themselves, and Labno’s expert interpretation of them.
First, the contents and topics of the phone calls show:
The respective roles played by Garcia as the
seller and Cisneros as the buyer;
The roles and reactions of other actors,
Garcia’s suppliers, including that they
would be willing to work with Cisneros on
future deals;
The progression of the sale, from how much
Cisneros wanted to pay, to concerns about
its quality, discussion as to price, and taste
testing the product;
How Cisneros’s reputation as a seller could
be adversely affected if Garcia sold Cisneros
inferior product; and
How the product may have to be altered by
“cooking.”
In their numerous conversations, Garcia and Cisneros do
not explicitly reference “cocaine,” as drug dealers almost
never do and would not. They instead used common terms as
substitutes (“work,” “girl,” “white girl,” “tix,” “taste,” “worn
out,” “cook,” “two-four,” etc.). While an untrained juror may
not be familiar with these terms, federal courts routinely
permit an expert witness to be “helpful to the jury” in
interpreting such evidence. See United States v. Ceballos,
302 F.3d 679, 687-88 (7th Cir. 2002) (DEA agents’
No. 18-1735 33
interpretations were “helpful to the jurors” in applying
“alternative theories of which they ordinarily would not have
been aware”) (internal quotations omitted); see also United
States v. Jones, 763 F.3d 777, 802 (7th Cir. 2014) (an expert
witness may “assist the jury” in resolving ambiguities); United
States v. York, 572 F.3d 415, 423 (7th Cir. 2009) (allowing expert
witnesses to translate “drug jargon and code words that
might seem entirely innocuous to an untrained jury.”). Just as
a jury may need the assistance of a translator to consider
whether a foreign-language conversation concerns
distributing cocaine, the same can be true of coded drug
jargon.
This brings us to the second part of the phone call
evidence, Agent Labno’s testimony. Labno has operated as an
undercover special agent in Chicago for approximately 16
years. He testified to his familiarity with the price, quantity,
and quality of cocaine, including common code words used
in local drug trafficking. He also testified to his personal use
of a cell phone to facilitate drug dealings, and his own
experience cooking “crack” as an undercover agent. It would
appear there is no aspect of the local cocaine distribution
process with which Labno is not familiar.3
3 The majority opinion notes how Agent Labno “had no firsthand
knowledge of the Cisneros investigation.” Of course, if he had such
knowledge and was called as a fact and expert witness, that could be
criticized as confusing the jury, and require precautions to minimize
potential prejudice. See United States v. Farmer, 543 F.3d 363, 369 (7th Cir.
2008) (citing United States v. Goodwin, 496 F.3d 636, 641-42 (7th Cir. 2007)).
Given Labno’s role as an expert, his not knowing Garcia and Cisneros
should not be characterized as a negative. Indeed, this court has stated
experts need not be familiar with a “particular conspiracy” but “can
determine, based on their expertise, that certain words have drug-related
34 No. 18-1735
At trial, the defendant did not object under FED. R. EVID.
702 to Labno’s expertise or to the jury’s reliance on his expert
interpretations when weighing the evidence. Indeed, Garcia’s
counsel cross-examined Labno only briefly (four pages of
transcript). The majority opinion credits the crossexamination
of Agent Labno for laying a foundation that the
taped conversations make sense only if Garcia is assumed to
be drug trafficking. But in his response to that question, Agent
Labno specifically denied that assumption: “I'm not making
assumptions about that. I'm just interpreting what the wiretap
conversations are based on the code words in the context in
my experience.”
Garcia’s principal argument at trial was that the recorded
conversations were so ambiguous the jury could not
reasonably determine their meaning.4 In helping the jury
interpret the phone conversations, Labno explained that, in
his experience, the terms “work” and “girl” refer to cocaine;
“taste” and “cooking” refer to the quality of cocaine; “tix” or
“tickets” refer to drug payments; and “two-four” refers to
meanings within the context of a single conversation.” United States v.
York, 572 F.3d 415, 424 (7th Cir. 2009).
4 Because Garcia stipulated that the conversations were ambiguous,
he opened the door to Labno’s interpretation. An expert’s interpretation
may be helpful to the jury in determining the meaning of words and
terms—no matter how common they may be—when they are used
ambiguously in conversation. See York, 572 F.3d at 423 (recognizing
expert’s interpretation when “six,” “nine,” “five dollar,” and “fifty-five”
were used ambiguously in defendant’s conversations); see also United
States v. Ceballos, 302 F.3d 679, 687-88 (7th Cir. 2002) (upholding agents’
interpretations of simple pronouns “it,” “them,” and “both” as referring
to methamphetamine shipments because defendants used those pronouns
ambiguously in conversation).
No. 18-1735 35
$24,000, the going market-price for a kilogram of cocaine. We
have often recognized these same expert interpretations in
other drug cases. In United States v. Fuller, 532 F.3d 656, 661
(7th Cir. 2008), we recognized defendant’s use of the code
word “work” to mean cocaine. See also United States v. Page,
521 F.3d 101, 108-09 (1st Cir. 2008) (noting “work” was the
typical drug-dealers’ code for cocaine); United States v. Benitez,
92 F.3d 528, 532 (7th Cir. 1996) (same). After hearing Labno’s
interpretation of the phone calls, it was still up to the jury to
decide how much weight to give his testimony and to draw
its own conclusions about the actual meaning of the
conversations. The jurors did just that.
B. The Legal Standard
Under Rule 29(c), the standard a defendant must meet in
challenging the sufficiency of the evidence on a criminal
conviction is very high. See United States v. Torres-Chavez,
744 F.3d 988, 993 (7th Cir. 2014) (the defendant’s Rule 29
burden is “nearly insurmountable”); United States v. Jones, 713
F.3d 336, 339 (7th Cir. 2013) (“a nearly insurmountable
hurdle”); United States v. Griffin, 684 F.3d 691, 694 (7th Cir.
2012) (“a heavy burden”); United States v. Bogan, 267 F.3d 614,
623 (7th Cir. 2001) (“a nearly insurmountable burden”);
United States v. McCaffrey, 181 F.3d 854, 856 (7th Cir. 1999) (“a
daunting task”).
Rule 29 post-verdict review is narrowly limited to
determine whether “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
in original). This “does not require [the] court to ask itself
whether it believes that the evidence at the trial established
36 No. 18-1735
guilt.” Jackson, 443 U.S. at 318-19 (internal quotations
omitted); see also Jones, 713 F.3d at 340 (“The inquiry does not
ask what we would have decided if we were on the jury. We
need not be convinced by the evidence ourselves.”); United
States v. Genova, 333 F.3d 750, 757 (7th Cir. 2003) (“Rule 29(c)
does not authorize the judge to play thirteenth juror.”). We
will “overturn the jury’s verdict only when the record
contains no evidence, regardless of how it is weighed, from
which the factfinder could find guilt beyond a reasonable
doubt.” United States v. Faulkner, 885 F.3d 488, 492 (7th Cir.
2018) (internal quotations omitted); see also United States v.
Farris, 532 F.3d 615, 618 (7th Cir. 2008) (“[W]e will overturn a
conviction based on insufficient evidence only if the record is
devoid of evidence from which a reasonable jury could find
guilt beyond a reasonable doubt.”) (internal quotations
omitted).
The evidentiary standard of proof—beyond a reasonable
doubt—does not change during post-verdict review. But,
unlike pre-verdict, the evidence is construed “in the light
most favorable to the government,” creating a rebuttable
presumption of conviction. See United States v. Seidling, 737
F.3d 1155, 1159 (7th Cir. 2013); see also United States v.
Niggeman, 881 F.3d 976, 980 (7th Cir. 2018) (We “draw all
reasonable inferences in the light most favorable to the
prosecution.”). While the evidence must “reasonably support
a finding of guilt beyond a reasonable doubt,” Jackson,
443 U.S. at 318, deference to the jury’s deliberations prevents
the court from assessing the quality of the evidence any
further. See United States v. Smallwood, 188 F.3d 905, 913-14
(7th Cir. 1999) (court defers to the jury’s credibility
determinations without making its own); see also United States
v. Reed, 875 F.2d 107, 111 (1989) (in reviewing a Rule 29 motion
No. 18-1735 37
the judge must respect “the exclusive function of the jury to
determine the credibility of witnesses, resolve evidentiary
conflicts, and draw reasonable inferences.”).
The narrow scope of Rule 29 is defined by phrases such as
“no evidence” and “devoid of evidence.” This language
focuses the court’s Rule 29 role on assessing the quantum of
evidence, not its weight or credibility. In conducting a
quantum analysis, the court must determine whether the
evidence, “taken as a whole,” is enough for any rational jury
to find guilt beyond a reasonable doubt. Smallwood, 188 F.3d
at 913. Unless Garcia rebuts the presumption of conviction by
showing the government submitted no evidence for a rational
factfinder to find him guilty beyond a reasonable doubt, the
standard requires that we defer to the jury’s verdict.
The standard does not require, though, that we explain
how the case might fare in the civil context. The majority
opinion compares the judge’s role under Rule 29 with the
judge’s role in considering motions for summary judgment
under FED. R. CIV. P. 56 and judgment as a matter of law under
FED. R. CIV. P. 50, respectively. This suggestion is fine to the
extent it repeats current law toward a helpful comparison. But
“enforcing outer limits on reasonable inferences, guided by
the relevant standard of proof” does not and should not
transform the judge’s role under Rule 29 into weighing the
trial evidence.
C. Other Sufficiency-of-the-Evidence Cases
The majority opinion compares the evidence in this case to
other sufficiency-of-the-evidence cases, and concludes it falls
short because the phone calls and Labno’s testimony are not
38 No. 18-1735
corroborated by “actual evidence” of drugs. On comparison,
that conclusion does not hold up.
In the case law the majority cites, we have found sufficient
evidence to support a conviction when there is pole camera
video surveillance of the defendant (United States v. Cejas,
761 F.3d 717 (7th Cir. 2014)), third-party testimony, (Cejas),
loose association with a co-defendant (United States v. Duarte,
950 F.2d 1255 (7th Cir. 1991)), carrying a “tool of the drug
trade” (Duarte), and expert interpretation of defendant’s drug
deal records (Duarte). Some combination of this evidence has
been sufficient to convict on drug distribution charges, even
when there are no drugs (Cejas; Duarte), no cash (Duarte), no
weapons (Duarte), no drug paraphernalia (Cejas; Duarte), and
no direct admissions (Cejas; Duarte). In contrast, we have
found insufficient evidence when recorded phone
conversations between co-defendants lack detail (United
States v. Jones, 713 F.3d 336 (7th Cir. 2013)), and when the
government’s case is “focused on” (id. at 347) the defendant’s
“mere presence” at the crime scene (Piaskowski v. Bett, 256 F.3d
687 (7th Cir. 2001)).
Here, it is undisputed it was Garcia’s voice on the phone
call recordings with Cisneros; photo and video surveillance
from a pole camera showed Garcia at Cisneros’s residences
on April 17 and April 20; police officers were present at the
exchange on April 20 and later identified Garcia as the same
person on both days; two cell phones were found in Garcia’s
possession and call logs corroborated Garcia’s conversations
with Cisneros; and expert testimony interpreted the terms
Garcia used and the context of his calls with Cisneros as a
drug deal. Garcia’s use of his cell phone as a “tool of the drug
trade” and Labno’s interpretation explaining the coded drug
No. 18-1735 39
deal is like the Duarte defendant using a pager and that
expert’s interpretation of the defendant’s notes as records of
drug deals, which we deemed sufficient. And unlike the
recorded conversations in Jones, which lacked sufficient
detail, Garcia’s eight conversations with Cisneros cover every
aspect of their on-going deal, from price, quality, and quantity
to maintaining a good reputation as a dealer. All this evidence
adds up to far more than “mere presence,” and, most
importantly, far more than “no evidence.” Further
corroboration is not necessary. See Smallwood, 188 F.3d at 913
(“[corroborative evidence] need only ensure the reliability” of
testimonial evidence) (internal citation omitted).
In comparing these cases, the majority hints at a false
distinction between direct and circumstantial evidence,
signaling that the strength of the evidence depends on its
weight. The law makes no such distinction, and
circumstantial evidence can form the basis for guilt beyond a
reasonable doubt. See United States v. Moore, 572 F.3d 334, 337
(7th Cir. 2009) (“A verdict may be rational even if it relies
solely on circumstantial evidence.”); see also United States v.
Galati, 230 F.3d 254, 258 (7th Cir. 2000) (“A jury’s verdict may
rest solely on circumstantial evidence.”). Here, the jury was
instructed that “[t]he law makes no distinction between the
weight to be given to either direct evidence or circumstantial
evidence.” The jurors followed those instructions, and found
Garcia guilty.
Based on the evidence the government submitted in this
case, a rational jury could reasonably conclude: (1) Garcia’s
phone call with Cisneros on April 17, 20125 was about selling
5 In his motion, Garcia incorrectly cited these dates as in 2013.
40 No. 18-1735
cocaine; (2) Garcia physically delivered cocaine to Cisneros’s
residence on April 17, 2012; (3) Garcia used the cell phone
officers found in his possession to communicate with
Cisneros about the cocaine sale; and (4) Agent Labno’s
testimony, the pole camera photo and video surveillance, the
in-person identifications of Garcia at Cisneros’s homes on
April 17 and April 20, the phones found in Garcia’s possession
and the call logs all support a drug-related interpretation of
the recorded telephone conversations between Garcia and
Cisneros from April 17, 2012 through April 20, 2012.6
Because Garcia failed to rebut the presumption of
conviction by showing the government submitted no
evidence for a rational factfinder to find him guilty beyond a
reasonable doubt, the legal standard requires that we defer to
the jury’s verdict. For these reasons, I respectfully dissent
from the majority’s opinion.
6 Although the Rule 29 motion “need not spell out the particular basis
for a challenge to the sufficiency of the evidence, when such a motion
raises specific arguments, any claims not presented in the motion are
waived.” United States v. Moore, 363 F.3d 631, 637-38 (7th Cir. 2004)
(defendants “lost the right to complain about the failure of proof on a key
element of the government’s case” that was not specifically argued in their
Rule 29 motions) (internal citation omitted). Because Garcia raised only
these specific claims in his Rule 29 motion, he has waived any other
grounds for acquittal.
Outcome: Reversed
Plaintiff's Experts:
Defendant's Experts:
Comments: