UNITED STATES of America, Appellee, v. Philip William PACE, Appellant, 922 F.2d 451

ARNOLD, Circuit Judge. Philip William Pace was convicted by a jury of possessing cocaine with the intent to distribute it. He assigns two errors on appeal. Pace first challenges the District Court’s handling of the jury instructions at his trial. Some instructions were initially omitted, and then given orally before deliberations began, but not sent into the jury room with the other written instructions. Another instruction that was supposed to be omitted was not. Pace also challenges the District Court’s denial of his motion for acquittal.

He contends that his jury was not presented with enough evidence to prove beyond a reasonable doubt that he possessed cocaine and intended to sell it. We reverse, because we agree that this record is insufficient to support Pace’s conviction. We do not reach the alleged errors in how the jury was instructed. Pace was stopped for speeding in the early morning hours of February 25, 1988. He and his passenger, Thomas Mason, were just outside Springfield, Missouri.

Pace could not produce a driver’s license, and Mason (who had informed the Missouri State Trooper he was the station wagon’s owner) could not produce the car’s registration. After being told that they were on their way to Chicago, the Trooper asked Pace to come back to his police car. Pace volunteered his correct name, address, social security number, and driver’s license number. A computer check revealed that Pace’s license had been suspended, and that Mason didn’t own the station wagon. The Trooper called for assistance, and asked for permission to search the car.

Pace signed a written consent form; Mason refused to sign a form but said it was all right to search the car and gave the State Trooper the keys. When the other officer arrived, the car was searched and a huge amount — almost 200 pounds — of what appeared to be cocaine was found in several duffel bags and a suitcase. Pace and Mason were arrested and tried together. Both men testified at trial. Both men were charged with possessing cocaine and intending to sell it, and conspiring to commit those crimes.

At the end of the government’s case, and again before the jury retired to deliberate, Pace asked the Court to acquit him because of insufficient evidence. Each time the District Court refused to grant his motion. Pace claimed that he did not know about the cocaine, and that Mason just hired him to help drive the car to Chicago. Though he contended he was acting out of fear for his life, the jury convicted Mason of both crimes. Pace was acquitted of conspiracy, but convicted of possession with the intent to distribute. Pace was later sentenced to ten years and one month in prison.

We review the denial of a motion for acquittal under a deferential standard. All the evidence must be viewed in the light most favorable to the government. This includes giving the government the benefit of all reasonable inferences from that evidence. United States v. Springer, 831 F.2d 781, 783-84 (8th Cir.1987), cert. denied, 485 U.S. 938, 108 S.Ct. 1117, 99 L.Ed.2d 277 (1988). The government’s burden in this case was to prove beyond a reasonable doubt that Pace possessed the cocaine and intended to distribute it. United States v. Matra, 841 F.2d 837, 840 (8th Cir.1988).

Pace argues that the evidence of both his possession and his intent is insufficient as a matter of law. The essence of his contention is that he did not know he was helping transport cocaine. While he was certainly caught driving a car full of drugs, he did not possess them — in the sense of possession that the law recognizes — if he did not know what he had. Likewise, if Pace did not know he was helping transport cocaine, he could not have intended to distribute the drug. We do not sit as Pace’s second jury. It is not our task to reweigh the evidence and remake the verdict.

Rather, we must determine if the District Court correctly answered the threshold question: is there enough evidence in this record that could support a guilty verdict, and that therefore called upon the jury to weigh all the evidence and come to a verdict? Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469-70, 86 L.Ed. 680 (1942). The case against Pace becomes, then, a matter of the evidence (and reasonable inferences from that evidence) that speaks to Pace’s knowledge of the station wagon’s cargo. We glean the following relevant facts from our study of the record.

Pace was found driving a car containing almost 200 pounds of cocaine. The kilogram bricks of cocaine were in four closed containers: two duffel bags in the floorboard of the back seat, a duffel bag in the cargo area, and a suitcase in the cargo area. That part of the station wagon was almost entirely concealed by a horizontal shade or covering. Pace’s travel bag, a maroon vinyl duffel, was in the back seat. Mason put it in the car when he picked Pace up, right before they left Los Angeles. Pace had been in the station wagon for a day and a half. When he wasn’t driving, he was asleep in the front seat.

A black van, with two people in it, one of whom Mason described as a Colombian, traveled with the station wagon all the way from Los Angeles. At one point in the trip Pace asked Mason why the van was making the trip with them; Mason told him that “it was none of his business, it wasn’t his concern.” T. 2-141. Pace didn’t ask any more questions about the van. Mason testified that he didn’t tell Pace what was in his luggage. He told him only that they were taking the car to Chicago and would be flying home. Pace was to earn $250 for the trip.

Approximately one year before this trip, Mason employed Pace to help him deliver two cars to Chicago. The Missouri State Trooper who caught Pace speeding testified that though Pace gave him correct personal information, he appeared nervous and fidgety during the questioning. The prosecutor asked the jury to draw from this evidence the following inferences. First, that the sheer amount of cocaine involved suggested Pace’s knowledge. Second, that the street value of these drugs (estimated at between twelve and fifteen million dollars) meant that they would not be casually entrusted to an uninformed outsider.

Finally, that the extended amount of time Pace spent in the car meant that he had to have discovered what was in the luggage. The question is whether, on these facts, Pace’s knowledge of the cocaine could be established beyond a reasonable doubt to a reasonable person. We are unconvinced. The evidence proves beyond a reasonable doubt that Pace was present at the ongoing crime of transporting this cocaine. He even helped, however unwittingly, commit that crime. The evidence does not prove, however, that Pace knew that he was helping carry cocaine across the country. United States v.

Frol, 518 F.2d 1134, 1137 (8th Cir.1975). While reasonable inferences from the evidence weigh against the defendant, speculation does not. It is reasonable, for example, to infer that Pace entered the back seat to get in his duffel bag. But without additional evidence that Pace opened or examined Mason’s luggage that was in the back-seat floorboard, it is merely conjecture to conclude he knew what those packages contained. There is, moreover, no evidence that Pace ever explored the cargo area of the station wagon, much less that he examined or opened Mason’s luggage that was stored there.

Without evidence that the individuals in the black van did something to arouse Pace’s suspicions— somehow exposed themselves as likely drug traffickers by word or deed — their mere presence does not establish that Pace knew he was in the midst of criminals. Likewise Pace’s question about the van and Mason’s answer: without additional evidence pointing to the criminal nature of the trip, this exchange does not prove that Pace refused to see what this trip was really about.

Viewed in the light most favorable to the government, the evidence is insufficient to justify a reasonable inference that Pace knew he was driving a car full of cocaine. This case is unlike United States v. Caves, 890 F.2d 87, 94-95 (8th Cir.1989), where we held that presence, plus other circumstances apparent to the arresting officer, created probable cause for an arrest. At the relevant time in this instance, events had moved far beyond the arrest and nearly to the end of trial.

The case against Pace should not have been submitted to a jury, because a “reasonable-minded jury must have entertained a reasonable doubt as to the government’s proof of ...” Pace’s criminal intent. United States v. Noibi, 780 F.2d 1419, 1421 (8th Cir.1986) (emphasis in original). The District Court erred in not granting Pace’s motion for acquittal. The judgment is reversed, and the cause remanded to the District Court with directions to enter a judgment of acquittal.