Castro-Avalos

MEMORANDUM *

Romeo Antonio Castro-Avalos (“CastroAvalos”) appeals his convictions for violating 21 U.S.C. § 843 (b) by using a telephone to facilitate a conspiracy to distribute cocaine. We reverse Castro-Avalos’s convictions on all counts because the Government presented insufficient evidence of the existence of the conspiracy it claims he facilitated.

Castro-Avalos claims his conviction for telephone facilitation of a conspiracy cannot stand because it is inconsistent with the jury’s acquittal of him on a separate conspiracy charge. The Supreme Court rejected a similar contention in United States v. Powell, 469 U.S. 57 , 105 S.Ct. 471 , 83 L.Ed.2d 461 (1984).

The Court stressed, however, that the permissibility of inconsistent verdicts does not affect a court’s independent review of the sufficiency of the evidence on the § 843(b) charge, which Castro-Avalos also contests. See id. at 67 , 105 S.Ct. 471 . “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970). Conviction under…