filed as amended september 18 1989.: September 1, 1989.
On Appeal from the United States District Court for the District of Delaware. D.C. Criminal No. 88-00011-1
A. LEON HIGGINBOTHAM, JR., Circuit Judge
This is an appeal from a judgment of conviction following a jury trial for one count of possession of greater than five kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1), and one count of conspiracy, in violation of 21 U.S.C. § 846. Because the evidence that the defendant, Ivan Terselich ("Terselich"), knew of the presence of the cocaine in the car was insufficient as a matter of law to support his convictions for these offenses, the trial court erred, as a matter of law, when it did not grant Terselich's motion for a judgment of acquittal notwithstanding the jury verdict finding him guilty. Accordingly, we will reverse the judgment on both counts and will remand to the district court for the entry of a judgment of acquittal.
On February 8, 1988, Terselich was a passenger in a 1982 Ford LTD with Florida license plates that was travelling northbound on Interstate 95 in Delaware. After clocking the car as travelling at 62 miles per hour in a 55 mile an hour zone, Corporal Robert Durnan ("Durnan") of the Delaware State Police pulled the car over for speeding. Joint Appendix ("Jt. App.") at 20 (testimony of Durnan).
After Durnan pulled the car over, he asked Francisca Rosa Velasquez ("Velasquez"), the driver, for her license and registration. Jt. App. at 22. Terselich opened the glove compartment, extracted the registration papers and passed them to Durnan. Id. Throughout Durnan's ensuing interviews of the occupants of the car, Durnan concentrated his principal attention on Velasquez, the driver of the car. Durnan asked Velasquez to leave the car and come speak with him in the space between her car and his, where Terselich could not hear her answers. In response to Durnan's questions, Velasquez stated that Terselich was her husband, that the car belonged to a cousin (whom she was unable to name), and that she was going to Long Island to visit friends for a few days. Jt. App. at 23.
Durnan, who had noticed at this point that Velasquez's name was not that on the registration, id. at 23, then went to Terselich and asked him "the same questions" "to see if his story would match her story." Jt. App. at 24, 23. It didn't. Terselich said that he was going to New York on business, not for a vacation, and that Velasquez was not his wife. Id. at 24. In addition, Terselich stated that a friend of his named Lopez owned the car, id., an identification that conflicted with both the car's registration to one Javier Perez and with Velasquez's statement that her cousin owned it.
Durnan, who had noted that Velasquez's and Terselich's stories were inconsistent, Jt. App. at 24, then asked Velasquez to come back to his car and to have a seat in it. Id. Once there, Durnan spoke with Velasquez at length, inquiring as to whether there was any contraband in the car that she was driving and securing her oral and written consent to search that car. Jt. App. at 25.
Durnan did not ask Terselich's permission to search the car, since Durnan assumed that Terselich had no possessory interest in the car, Jt. App. at 55, nor did Durnan question him further at this time. After asking Terselich to exit from the car, Durnan asked Terselich to wait behind the car while Durnan searched it. Jt. App. at 28. Once Durnan had searched the interior of the car, he wanted to search the trunk. When Durnan asked Velasquez and Terselich for the keys to the trunk, Terselich, who had removed them from the ignition, handed them to Durnan. Jt. App. at 29.
Durnan then searched the trunk. Id. In so doing, Durnan discovered that the trunk had a false floor which he correctly suspected concealed a secret compartment. Jt. App. at 30. Durnan suspected that the secret compartment contained drugs, weapons, or money. Jt. App. at 58. Realizing that he would be unable to investigate this compartment further without tools, Durnan handcuffed Terselich and Velasquez and arrested them. Jt. App. at 30.*fn1 He then had them and the car separately transported back to Troop 6, a Delaware trooper station. Jt. App. at 31-32. Once there, Durnan discovered that the "secret compartment" was in fact the car's gasoline container. The compartment that the manufacturer had intended to be the car's gasoline tank had been modified by the addition of a trap door and contained nearly sixty pounds of what later proved to be cocaine. Jt. App. at 37-38, 44.
After discovering the cocaine, Durnan went to the Troop 6 cell area, placed Terselich under arrest for possession of the cocaine, and read him his Miranda rights. Jt. App. at 40. Once Terselich had indicated that he understood his Miranda rights, Durnan went to the holding room and placed Velasquez under arrest for possession of the cocaine. He then both read Velasquez her Miranda rights in English and gave her a copy of the Miranda rights in Spanish, which, according to Durnan's testimony, Velasquez appeared to read. Jt. App. at 40. Shortly after initially invoking her Miranda rights, Velasquez asked to speak with William Glanz ("Glanz"), a Drug Enforcement Agency agent whom she had just met when she invoked her Miranda rights and declined to submit to an initial interrogation. Velasquez asked Glanz what was going to happen to her and what was going to happen to Terselich. Glanz told her truthfully that the minimum sentence was ten years for the crime of which she stood charged. Glanz then told her falsely, inter alia, that Terselich was being released because he had told the officers that the cocaine was hers and that she was being paid to drive it north. Velasquez then confessed that she was being paid ten thousand dollars to drive the drugs north. She also stated that she was paying Terselich 55,000 to accompany her, but the district court excluded this statement from evidence under Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).
Terselich and Velasquez were tried together before a jury. At trial, both the cocaine and Velasquez's confession were admitted. Both Terselich and Velasquez were convicted of possession of more than five kilograms of cocaine with intent to distribute and of conspiracy. Because this matter deals with the correct application of legal ...