Torres-Alvarez

MEMORANDUM **

We have reviewed this case carefully and determined that the government’s case is insufficient as a matter of law to sustain the conviction of Dionicio Torres-Alvarez (“Torres”). The entirety of the evidence against Torres is this: First, drug dealer Uribe had paged Torres on a number of occasions contemporaneous with Uribe’s efforts to find a drug supplier *820 for undercover agent Pagel. (Uribe, however, never mentioned the name of the supplier to Pagel and described his “source” as someone who had been in a recent car accident injuring his leg, which quite simply did not describe Torres.) Second, Torres was in the vicinity of the February 11, 1999 transaction — though he was not observed exchanging anything at either of the two encounters with Uribe (or anyone else). 1 Finally, after his arrest, Torres initially said he did not remember who Uribe was, but once Uribe’s name was put in the context of the lunch with his friend Sevilla, he did remember him. On these thin reeds, the government seeks to sustain a felony conviction and a lengthy prison sentence for a person with no prior criminal convictions.

The case against Torres is especially worrisome because…

Dissenting.

I respectfully dissent from the majority’s view that the evidence was insufficient as a matter of law to sustain the conviction. Torres was not merely present at the scene of the crime, the crime waited for him to arrive.

Our role is to view the evidence at trial in the light most favorable to the government to determine whether a rational jury could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 807, 319, 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). While we all agree that the evidence established that on February 11, 1999, Uribe sold 124 grams of heroin to Pagel and that Torres was “in the vicinity,” we part company over the issue of whether the deal was made at Torres’ direction. The majority ignores the key evidence that tied Torres to the crime: the sequence of pager messages between Uribe and Torres.

Two weeks before the sale, on January 27, 1999, Uribe offered to sell cocaine to Pagel. Pagel, however, asked Uribe for methamphetamine or heroin. Uribe responded that he would have to “check with his supplier.” At 3:41 p.m. that afternoon, Uribe called defendant Torres’ pager. Ur-ibe paged Torres again at 4:36…