United States v. Clifford

Opinion

USCA1 Opinion

November 20, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 92-1748

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  PAUL J. CLIFFORD,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
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                                        Before

                               Torruella, Circuit Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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            Charles P. McGinty, Federal Defender, for appellant.
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            Brien T. O'Connor, Assistant United States  Attorney, with whom A.
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        John Pappalardo, United States Attorney, was on brief for appellee.
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COFFIN, Senior Circuit Judge.  Defendant was convicted by  a
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          jury, under Count  1, for  conspiracy to possess  with intent  to

          distribute marijuana, 21 U.S.C.    841(a)(1) and 846,  and, under

          Count 23, for aiding  and abetting the possession with  intent to

          distribute, 21 U.S.C.    841(a)(1) and 18 U.S.C.    2.  Defendant

          appeals from denials of  motions for acquittal addressed to  each

          count,  arguing   that  the   verdict  relies  impermissibly   on

          speculative  inference.    We  find  that  the  evidence,  though

          circumstantial, was sufficient to support the verdict.  

               Before recapping and weighing  the evidence, we briefly note

          the  standards governing our review.  We consider the evidence in

          the  light most favorable to  the prosecution.   United States v.
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          Torres Lopez, 851 F.2d  520, 527 (1st Cir.  1988).  We  therefore
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          "draw[] all legitimate inferences  and resolv[e] all  credibility

          determinations  in  favor  of the  verdict."    United  States v.
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          Angiulo, 897  F.2d 1169,  1197 (1st  Cir. 1990).   "Nor  does the
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          government  have  to  disprove  every  reasonable  hypothesis  of

          innocence."  Torres Lopez, 851 F.2d at 527-28.
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               To  support a verdict of guilt, the evidence must prove each

          element  of a conspiracy charge beyond a reasonable doubt.  These

          elements are the existence  of a conspiracy (not in  issue here),

          the defendant's knowledge of  it, and his voluntary participation

          in  it.  In addition, the government must show defendant's intent

          both  to  agree  with  his  co-conspirators  and  to  commit  the

          substantive offense.  United  States v. David, 940 F.2d  722, 735
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          (1st Cir.  1991).    When  the  conspiracy  concerns  drugs,  the

evidence  must   show  the  defendant's  intent   to  commit  the

          underlying drug offense.   See United States v. Ocampo,  964 F.2d
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          80,  82  (1st  Cir.  1992).   The  evidence,  of  course,  may be

          circumstantial.  United States v. Rivera-Santiago, 872 F.2d 1073,
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          1079 (1st Cir. 1989).

               We  turn now to the facts  that a jury reasonably could find

          and the inferences it legitimately could draw in this case.

               The overall factual background  concerns the operations of a

          Boston-based marijuana smuggling  organization.  The organization

          had  offloaded marijuana  twice previously  at the  Trio Algarvio

          fish processing plant  in New Bedford.   The  facts in this  case

          involve a botched effort on May 16  and 17, 1986.  A vessel,  the

          Breton Seahorse, loaded  with 26 tons  of marijuana, intended  to
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          discharge its cargo  at the  Trio Algarvio plant.   Instead,  the

          Coast Guard intercepted the  ship on May 16, and  impounded it at

          Woods Hole.

               At  about 6  p.m.  on the  evening of  May 16,  the intended

          offloaders assembled at a warehouse in South Boston.  None of the

          offloaders at trial testified  to knowing at this point  that the

          venture involved drugs.  The 14 men, clad in dark clothes, waited

          together  in a  single  refrigeration truck  for  an hour  before

          driving for another hour to the Trio Algarvio plant.   

               One  of  the  offloading  crew was  Matthew  McGee,  who had

          participated in two  similar marijuana  offloading operations  in

          1983 and 1984.  McGee also helped to organize the  offload of the

          Breton Seahorse.
          ______ ________

-3-

During  the trip  to the plant,  according to  witness Brian

          Small,  there was  talk  about unloading  marijuana,  and "a  few

          people  said, talked about, you know, maybe stealing a little bit

          for their own  self or  that kind  of thing."   As  the crew  was

          ending  its journey  to  the plant,   Small  also  heard a  voice

          comment "[O]h,  I hope this  thing goes down, I  needed [sic] the

          money . . . [and] I can't wait until this pot comes in."  

               Once in New Bedford, all the  men from the truck entered the

          plant,  located on the water, where they spent nine hours waiting

          for the Breton Seahorse.  During their long wait, Small overheard
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          renewed  discussion  "same as  like  [in]  the truck"  about  the

          planned marijuana offload.  Other witnesses overheard  discussion

          that the crew was waiting for a boat and speculation on the boats

          that were visible from  a window overlooking the harbor  "if that

          was it or not."

               Shortly before 5 a.m. on May 17, no boat having arrived, the

          crew left the fish  processing plant together in a  single truck.

          The police soon stopped the truck and apprehended the crew hiding

          in the back.   The only direct evidence implicating  defendant is

          the fact that he was one of the persons on the  truck when it was

          stopped and inspected.

               From the time the  entire crew assembled in South  Boston to

          the time of  their arrest, there was no  evidence that any member

          of the  offloading crew departed,  tried to depart,  or otherwise

          separated  himself  from  the  enterprise.   Nor  was  there  any

          evidence of coercion to keep the offloaders in place.

-4-

We acknowledge that these are not all the facts or testimony

          in  the  case.   In  particular,  other witnesses  remembered  no

          conversations   about  marijuana,   and  no   witness  identified

          defendant as present on the truck en route to the plant or in the

          plant itself.  But  these are the facts, considered  favorably to

          the government's case, that support the jury's verdict.  

               From these facts, the jury reasonably could draw a series of

          inferences  to connect  defendant to  the  conspiracy.   The jury

          could find from defendant's presence in the truck at the  time of

          arrest,  that he  had  been with  the  others inside  the  plant.

          Because everyone  inside the plant  except the drivers,  who were

          identified, had arrived together in the back of the refrigeration

          truck,  the jury could find that defendant  had been in the truck

          on the trip to the plant, too.  Because there had been discussion

          of the imminent shipment of marijuana in the truck and the "same"

          kind  of  discussion  in the  plant,  the  jury  could find  that

          defendant knew he was engaged in a drug transaction.  Indeed, the

          jury  could believe it likely that McGee, who had participated in

          planning  this  operation, would  have  indicated that  it  was a

          marijuana  offloading operation.   Finally,  the jury  could find

          that  because  at  no  time  during the  night  had  he  tried to

          dissociate himself from the  enterprise, defendant agreed to join

          both in the conspiracy  and in the commission of  the substantive

          offense.

               Defendant argues vigorously that this reasoning  is "linking

          inference upon inference  in an impermissible chain to  support a

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conviction."   Admittedly,  the  chain contains  only one  direct

          piece of evidence of  defendant's association with the operation,

          his arrest  in the  truck, but  the links as  a whole  are forged

          reasonably.  We  can do  no better in  responding to  defendant's

          argument  than to quote  what our  colleague Judge  Aldrich wrote

          almost thirty years ago:

                    The   defendant   cautions   us  against   "piling
               inference  upon  inference."    As  interpreted by  the
               defendant this means that  a conviction could rarely be
               justified by  circumstantial evidence.   See 1 Wigmore,
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               Evidence,   41 (3d ed. 1940).   The rule is not that an
               inference, no matter how  reasonable, is to be rejected
               if  it,  in  turn,  depends   upon  another  reasonable
               inference;   rather the question is  merely whether the
               total evidence, including  reasonable inferences,  when
               put  together  is  sufficient  to  warrant  a  jury  to
               conclude that  defendant is guilty  beyond a reasonable
               doubt.  

          Dirring  v.  United States,  328 F.2d  512,  515 (1st  Cir. 1964)
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          (citations omitted); see also United States v. Clotida, 892  F.2d
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          1098, 1104 (1st Cir. 1989).   In this case, we conclude  that the

          several inferences  are rationally based on  the underlying facts

          and that the overall  evidence adequately supports the conviction

          for conspiracy.  

               This  does not quite end our inquiry, for defendant also was

          convicted of aiding  and abetting possession  with the intent  to

          distribute  marijuana.     For  the  conviction   to  stand,  the

          government must prove that  defendant associated himself with the

          underlying venture, participated in it as something he wished  to

          bring about, and sought by his actions to make it succeed.  Nye &
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          Nissen v. United States, 336 U.S. 613, 619 (1949).  
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-6-

We  agree   with  the   government  that  the   evidence  of

          defendant's actions and participation satisfies these strictures.

          As  we noted above, there was  sufficient evidence that defendant

          gathered with the other offloaders at the South Boston warehouse,

          travelled to New Bedford, and spent the night waiting to unload a

          vessel that never arrived.   From these secretive and  suspicious

          circumstances  alone,   the  jury  reasonably  could  infer  that

          defendant was participating knowingly in a criminal venture.

               Defendant  argues  that  even  if the  evidence  supports  a

          finding that he agreed to participate in an offload of marijuana,

          it does not support a finding that  he intended to participate in

          the  distribution of  the drug.   We  disagree.   The need  for a

          truckload of  offloaders points to large  quantities of marijuana

          not  intended for immediate personal  use.  See  United States v.
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          Geer,  923 U.S.  892, 894-95  (1st Cir.  1991) (jury  could infer
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          existence of conspiracy to distribute drugs from large quantities

          of drugs  involved).  From  the size of  the operation,  the jury

          could infer that defendant knew that the offload was but one step

          in  the   distribution  chain.    The   evidence  of  defendant's

          participation in an offload of such large quantities of marijuana

          is sufficient proof that he intended to distribute the drug.  See
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          Rivera-Santiago,  872  F.2d  at  1081-82  (defendant  who  stored
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          truckload  of marijuana  found  to be  aider  and abettor).    We

          therefore hold  that there was sufficient evidence to support the

          conviction for aiding and abetting the  possession with intent to

          distribute.

-7-

We  deem  it appropriate,  nonetheless,  to  comment on  the

          paucity  of   direct  evidence  implicating  defendant   in  this

          enterprise.        Although   constrained   to   find  that   the

          circumstantial  evidence  presented   does  support   defendant's

          conviction, we  caution that  the inferential chain  is stretched

          close   to  its  breaking  point.    The  alloy  for  forging  an

          inferential   chain   should   contain  more   direct   and  less

          circumstantial evidence lest it snap at the first test. 

               Given  the  profusion  of   individuals  embroiled  in  this

          venture,1  and the length of time which the offloading crew spent

          together,   it  is  difficult   to  understand  the  government's

          inability  to find at least  one person who  could give testimony

          directly implicating defendant.   Prosecutors must be wary of the

          hazards  of   relying  on  inference  when   harder  evidence  is

          available.

               Affirmed.
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               1    The failed  offload of the Breton  Seahorse resulted in
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          an  indictment against  defendant  and 25  co-defendants.   Still
          others were granted immunity in return for their testimony.

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