“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

In March 2019, Trump Seventh Circuit Judge Michael Brennan dissented from a 2-1 ruling by Judge David Hamilton, which was joined by Republican-appointed Judge Ilana Rovner, that reversed a lower court’s denial of a motion for judgment of acquittal by Andres’ Garcia, who had been convicted of cocaine distribution. Brennan thought there was enough evidence to sustain the conviction, even though there was no direct evidence that Garcia even possessed any cocaine and the conviction was based solely on a police agent’s interpretation of a “cryptic” phone call between Garcia and the other defendant.

Specifically, the majority in United States v. Garcia explained that Garcia was convicted of distributing cocaine even though the government offered “no direct evidence” that he “possessed or controlled” any cocaine, drug paraphernalia, or large amounts of cash or other wealth. Nor was there any admission by Garcia or testimony by witnesses that Garcia had engaged in cocaine distribution or drug trafficking. Instead, the conviction was based on a federal agent’s opinion testimony seeking to interpret phone conversations between Garcia and the other defendant, in which the agent claimed that coded words were used that indicated that drugs were being distributed. For example, the agent claimed that the phrase “the girl was worn out” was code for “the cocaine has been cut too much.”

Based on a careful analysis of the record and of prior cases reversing convictions for lack of evidence, the majority agreed with Garcia that without any corroborating evidence, the agent’s “opinion testimony regarding the meaning of Garcia’s allegedly incriminating conversations amounted to educated speculation rather than proof beyond a reasonable doubt.” Brennan claimed, however, that there was “enough evidence” to uphold the judgment against Garcia.