Appeals court upholds cocaine-truck conviction A Phila. defendant linked to seized drugs in a load of moldy fruit faces 10 years in prison.

Posted: January 27, 2010

Ruben Boria might never have laid eyes on the 100 kilos of cocaine stashed amid a truckload of rotting fruit, but a federal appeals court said yesterday that a jury was correct in concluding he was part of a conspiracy to unload it at a North Philadelphia garage.

The ruling by a panel of the U.S. Court of Appeals for the Third Circuit potentially ends a criminal case that started in 2007 at a Kmart parking lot in Port Richmond.

That was when Philadelphia police and federal agents, tipped off by an informant, stopped a tractor-trailer packed with papaya, peppers, limes, and aloe vera.

It took hours to unload the moldy fruit with a forklift. Then, in the middle of the trailer, investigators found 100 one-kilo packages of cocaine wrapped in black electrical tape. It was the biggest seizure in Philadelphia history, police said at the time.

Two men were arrested: Marcus Diaz, 49, of Texas, the driver, and Boria, 33, of Holmesburg, who was sent to meet Diaz by the head of a drug ring, government prosecutors charged.

The appeals court ruling sends Boria's case back to U.S. District Court, where he faces a 10-year sentence.

"This was part of a very substantial operation they had going," said Robert A. Zauzmer, the assistant U.S. attorney who argued the government's position. The operation was based in Texas and Mexico and dispatched trucks "all over the country," he said.

Diaz ended up pleading guilty, and Boria was convicted after a four-day trial in 2008.

But after the verdict, defense attorney Anthony J. Petrone argued that a string of earlier Third Circuit opinions required that Boria's conviction be overturned. He contended that while federal prosecutors might have shown Boria should have known he was involved with contraband, they had not proved he knew the truck contained illegal drugs.

"He did not necessarily know what was well-secreted in the back of the tractor-trailer," Petrone said.

U.S. District Judge Gene E.K. Pratter agreed in a written decision after the trial.

"Although it could be said this is a close call," she wrote, ". . . there was no evidence that Mr. Boria was engaged in, or present during, any conversations about the cocaine that was hidden in the back of the trailer."

Even if he suspected some sort of illegal activity, the government had not proved it was drugs, the judge wrote. Hence, earlier appeals court decisions required that the verdict be overturned.

Boria was released on bail as the U.S. Attorney's Office appealed.

Yesterday, the three-judge appeals panel said Pratter's reading of their precedents was right - to a point.

"Despite the presence of otherwise suspicious circumstances, we have nevertheless required some additional piece of evidence imputing knowledge of drugs to the defendant," the judges wrote.

In Boria's case, it wasn't sufficient that he had risen before dawn, with virtually no sleep, met a truck full of rotting fruit, and told Diaz he was there to direct him to a North Philadelphia garage for unloading.

Rather, "the truly distinguishing fact" was that a tipster's testimony "imputes to Boria knowledge that the tractor-trailer he was assigned to direct to a garage contained drugs." The decision does not cite any direct evidence that Boria knew what was in the truck.

That is enough to justify upholding the conviction, particularly under federal rules that require judges to give extra weight to evidence that supports a jury verdict, the appeals court wrote.

"This opinion is very difficult to reconcile" with earlier opinions, said Petrone. He has not ruled out an appeal to the full Third Circuit.

Contact staff writer Nathan Gorenstein at 215-854-2797

or ngorenstein@phillynews.com.

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