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Click here for the full text of this decision FACTS:On Aug. 24, 2004, Trooper Ryan Midkiff stopped a white Crown Victoria with California license plates for failing to signal a lane change. The driver was later identified as Jesus Bermudez-Pineda (Bermudez). Manuel Penaloza-Duarte (Penaloza) was seated in the passenger seat of the vehicle. Bermudez told Midkiff that the passenger was his cousin. When asked where he was going, Penaloza said that he and his brother (Bermudez) were going to Florida to visit family. Bermudez gave Midkiff consent to search the car. During the search, Midkiff discovered seven tape-wrapped packages containing methamphetamine hidden under the glove compartment. Police arrested Penaloza and Bermudez, read them their Miranda rights and transported them to the police substation. At the substation, after being placed in a different interview room from Bermudez, Penaloza first told a trooper that he was working for the police. Penaloza showed Trooper Thomas Noto, who specializes in narcotics trafficking, the business cards of Detective Mario Garcia of the Costa Mesa (California) Police Department and of Drug Enforcement Administration (DEA) Task Force Officer Dana Potts. He indicated in English that he was working for Garcia. Penaloza told Noto that while en route to Orlando, Fla., Bermudez told him that there were drugs in the car. Penaloza stated that Garcia did not know about the drugs but that he had planned to call Garcia at the next opportunity. DEA Special Agent David Drasutis contacted Garcia and confirmed that Penaloza was a documented confidential informant (CI) for the Costa Mesa Police. Drasutis, who had confiscated Penaloza’s cell phone, reviewed the call list and determined that Penaloza had recently placed a call to Garcia. In due course Penaloza was indicted, pleaded not guilty and went to trial. His defense was that he was a CI, that he had no intent to violate the drug laws at any time and that the government had failed to prove that he possessed the methamphetamine with the intent to distribute. At trial, Garcia confirmed that Penaloza was a CI and had been so for two years. Garcia testified that he used CIs to gather information and evidence of narcotics traffickers and to make controlled buys and deliveries of narcotics. Garcia said that before a purchase or delivery was contemplated, the control officer always spoke with his CI. Garcia further testified that Penaloza never mentioned transporting methamphetamine to Florida with Bermudez. Nor did Garcia authorize Penaloza to become involved in such a transaction. But Garcia stated that Penaloza came highly recommended from the detective who had handled him before and that Penaloza had proven himself to be dependable and reliable. The trial court sentenced Penaloza to 121 months in prison. Penaloza then filed this timely appeal. HOLDING:The 5th Circuit reversed and vacated the conviction and rendered a judgment of acquittal. All of the government’s proof, the court stated, was equally consistent with Penaloza’s credible defense that he was a longstanding CI who did not want to reveal himself to the driver and the lack of evidence that he knew where the car was destined when it left California. There was no evidence, the court stated, that Penaloza loaded or witnessed loading of the drugs into the car, nor that he drove the car or otherwise advanced the criminal enterprise. Close association with suspected drug traffickers, standing alone, is insufficient to sustain a conviction for aiding and abetting, the court stated. This principle is especially compelling, the court stated, when the defendant operates as a CI and has no criminal convictions. Penaloza’s failure, the court stated, to tell the troopers immediately that there was methamphetamine in the car is not necessarily affirmative conduct designed to further the criminal enterprise. It equally reflects Penaloza’s consistently offered defense that he would expose himself as a CI if he said anything before he was separated from Bermudez. In addition, the court stated, Penaloza’s statements at the time of the stop raise questions related to linguistic difficulties. The evidence at trial indicated that the troopers spoke very little Spanish and that Penaloza had a very poor understanding of English. A reviewing court is required to reverse a conviction if the evidence construed in favor of the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged. Thus, because the circumstantial evidence equally supported a theory of innocence of the crime charged, the court held that the evidence was insufficient to sustain the jury’s verdict of guilt. OPINION:Jolly, J.; Jolly, Higginbotham, and Dennis, J.J.

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