United States Court of Appeals For the First Circuit
No. 19-1349
UNITED STATES OF AMERICA,
Appellant,
v.
LUIS F. GUZMAN-ORTIZ,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Kayatta, and Barron, Circuit Judges.
Mark T. Quinlivan, Assistant United States Attorney, and Andrew E. Lelling, United States Attorney, on brief for appellant. E. Peter Parker on brief for appellee.
September 16, 2020 BARRON, Circuit Judge. In June of 2018, a jury in the
United States District Court for the District of Massachusetts
found Luis Guzman-Ortiz guilty of one count of conspiracy to
distribute and possess with intent to distribute heroin in
violation of 21 U.S.C. § 846. The following spring, however, the
District Court granted Guzman-Ortiz's motion for a judgment of
acquittal pursuant to Federal Rule of Criminal Procedure 29. The
District Court ruled that there was insufficient evidence in the
record to permit a reasonable juror to find beyond a reasonable
doubt that Guzman-Ortiz knowingly either agreed to participate or
participated in the alleged conspiracy. The United States now
appeals from that ruling. We affirm.
We recount the essential facts of the case, drawn from
the trial record, in the light most favorable to the verdict. See,
e.g., United States v. Mubayyid, 658 F.3d 35, 41 (1st Cir. 2011).
On July 6, 2015, a United States Drug Enforcement Administration
(DEA) Task Force, which included DEA agents and officers from local
police departments in Massachusetts, was investigating Oristel
Soto-Peguero and Mercedes Cabral, a couple who were then living in
a two-bedroom, two-story apartment in Norwood, Massachusetts, for
their possible involvement in distributing drugs. At 1:43 p.m.
that day, the Task Force used a wiretap to listen to a telephone
conversation between Soto-Peguero and an individual by the name of
- 2 - Eddyberto Mejia-Ramos, who was a suspected drug dealer and another
target of the Task Force's investigation. Soto-Peguero received
the call at the apartment he leased with Cabral in Norwood and
used coded language to tell Mejia-Ramos that he had heroin for
sale.
Suspecting an imminent heroin delivery based on the
call, the Task Force set up surveillance of the Norwood residence
that afternoon. At 6:00 p.m., Task Force members observed Cabral
leave the apartment and go to the grocery store. When she returned
about an hour later, Task Force members saw Guzman-Ortiz exit the
apartment and assist Cabral with bringing grocery bags into it.
This was the first time that the Task Force had come across
Guzman-Ortiz during the investigation into Soto-Peguero and
Cabral.
At 8:57 p.m., Soto-Peguero received a phone call at the
apartment from Mejia-Ramos, requesting, again in coded language,
that Soto-Peguero sell and deliver a large amount of heroin.
Soto-Peguero agreed and said that he would dispatch Cabral with
heroin to Mejia-Ramos' location. Approximately half an hour later,
Cabral got back in her car and left the apartment.
Members of the Task Force followed Cabral in her car.
Then, at 9:38 p.m., Soto-Peguero called Mejia-Ramos and told him
that Cabral was on her way. Thereafter, the Task Force members
following Cabral pulled her car over. While she was detained,
- 3 - Task Force members seized seven to ten bricks of heroin (totaling
918 grams) wrapped in cellophane packaging from her purse. Soto-
Peguero's fingerprints were later identified on the bricks of
heroin recovered from Cabral's purse. Guzman-Ortiz's fingerprints
were not found on any of those packages.
Around 10:00 p.m., after Cabral was arrested, members of
the Task Force decided to "enter and freeze" the apartment in
Norwood that Cabral and Soto-Peguero had leased pending the
issuance of a search warrant. After knocking and announcing their
presence, Task Force members forcibly entered through the
apartment's front and back doors.
As the Task Force members were attempting to enter the
apartment, Soto-Peguero and Guzman-Ortiz ran up the stairs, where
they were observed standing near a window in one of the bedrooms.
Task Force members ordered the two men to come downstairs. After
as many as ten minutes, and following numerous commands to descend,
they did.
Soto-Peguero descended by sliding face-first down the
stairs. One Task Force member testified that as Soto-Peguero slid
down, he observed two plastic, knotted baggies on the floor, which
he assumed had spilled out of Soto-Peguero's clothes. Guzman-
Ortiz descended next and without incident.
A sweep of the apartment by Task Force members turned
up, in the same upstairs guest bedroom that Soto-Peguero and
- 4 - Guzman-Ortiz had fled to as Task Force members entered the
apartment, a kilogram of heroin fully wrapped in opaque, black
electrical tape and partially hidden in an air duct located on the
floor below the window where the two men had been observed
standing. It is unclear from the record whether, when it was
discovered, the brick of heroin would have been readily apparent
to someone entering the bedroom without lifting the cover of the
air duct. The sweep also revealed what appeared to be a quarter
baggie of a powder drug, less than ten millimeters in diameter, to
the right of the vent.
In a second bedroom that appeared to belong to Soto-
Peguero and Cabral, Task Force members found during the sweep
another 834 grams of heroin, some of which was wrapped in a black
plastic bag on the floor and the rest of which was discovered
inside of a dresser. In that same bedroom, Task Force members
found six cellphones and some drug-packaging materials.
Downstairs, the state of the kitchen indicated that
Guzman-Ortiz, Soto-Peguero, and Cabral had eaten a meal together
that evening. In the living room, Task Force members found the
base of a blender or grinder on the floor, and, on the dining room
table, they found a roll of cellophane wrapping tape and some
cellphones. In a closed but unlocked hallway closet, there was a
small bag of heroin, cutting agents, Glad sandwich bags, aluminum
mixing bowls with drug residue, a digital scale, parts of a drug
- 5 - press, and a mold for use in a hydraulic drug press. In the
first-floor bathroom, there was a drug press inside a large opaque
bag, which, although it is unclear from the record, may have been
open at the time that Guzman-Ortiz was in the apartment.
A grand jury in the District of Massachusetts indicted
Guzman-Ortiz on March 23, 2016, charging him with possession of
heroin with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1), and conspiracy to distribute and possess with intent
to distribute heroin, in violation of 21 U.S.C. § 846.1
Guzman-Ortiz's trial started on June 18, 2018. He moved for a
judgment of acquittal under Federal Rule of Criminal Procedure 29
after the close of evidence, but the District Court allowed the
jury to render a verdict. The jury found Guzman-Ortiz guilty on
the conspiracy charge but failed to return a verdict on the
substantive possession charge.
Post-verdict, Guzman-Ortiz renewed his motion for a
judgment of acquittal on the conspiracy charge. The District Court
granted the motion on March 14, 2019, reasoning that "[t]here was
no evidence that the drug distribution paraphernalia had been used
on the day in question, or that the heroin seized from Cabral had
been prepared and packaged that day, or that [Guzman-Ortiz] was
1 Soto-Peguero was separately tried and convicted of numerous drug-related offenses, but, notably, the jury found him not guilty of conspiracy to distribute with Guzman-Ortiz -- the same conspiracy count for which Guzman-Ortiz was later convicted.
- 6 - aware of or had participated in such activities." The District
Court further explained that "the only evidence of
[Guzman-Ortiz's] participation in [the conspiracy], or his
agreement to so participate, was his response, jointly with Soto-
Peguero, to the attempted and ultimately successful entry into the
apartment by the agents." The District Court deemed that evidence
insufficient to meet the government's burden of proof.
The government appealed the District Court's decision on
April 9, 2019. We have jurisdiction under 18 U.S.C. § 3731.
To establish a violation of 21 U.S.C. § 846, the
government must prove the following elements beyond a reasonable
doubt:
(1) the existence of a conspiracy, (2) the defendant's knowledge of the conspiracy, and (3) the defendant's knowing and voluntary participation in the conspiracy. "Under the third element, the evidence must establish that the defendant both intended to join the conspiracy and intended to effectuate the objects of the conspiracy."
United States v. Paz-Alvarez, 799 F.3d 12, 21 (1st Cir. 2015)
(internal citation omitted) (quoting United States v. Dellosantos,
649 F.3d 109, 116 (1st Cir. 2011)). "[T]o establish that a
defendant belonged to and participated in a conspiracy, the
government must prove two kinds of intent: 'intent to agree and
intent to commit the substantive offense.'" United States v.
- 7 - Gomez-Pabon, 911 F.2d 847, 853 (1st Cir. 1990) (quoting United
States v. Rivera–Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989)).
We review a District Court's decision to grant a motion
for judgment of acquittal de novo. See Mubayyid, 658 F.3d at 47.
"[W]e may uphold the judgment of acquittal only if the evidence,
viewed in the light most favorable to the government, could not
have persuaded any trier of fact of the defendants' guilt beyond
a reasonable doubt." Id.
A.
Guzman-Ortiz does not dispute the District Court's
determination that "the evidence supports a finding that he, at
some point, knew illegal drug activity was conducted" in
Soto-Peguero and Cabral's apartment. The District Court
concluded, however, that there was insufficient evidence to show
beyond a reasonable doubt that Guzman-Ortiz agreed to participate
in or participated in the drug conspiracy. Our analysis thus
focuses on that point.
"'Mere association' with conspirators or 'mere presence'
during conduct that is part of the conspiracy is insufficient to
establish knowing participation; the defendant must be found to
have shared his co-conspirators' intent to commit the substantive
offense." United States v. Ortiz, 447 F.3d 28, 32–33 (1st Cir.
2006) (internal citations omitted). However, due "to the
clandestine nature of criminal conspiracies, the law recognizes
- 8 - that the illegal agreement may be either 'express or tacit' and
that a 'common purpose and plan may be inferred from a development
and collocation of circumstance.'" United States v. Flores-
Rivera, 56 F.3d 319, 324 (1st Cir. 1995) (quoting United States v.
Sánchez, 917 F.2d 607, 610 (1st Cir. 1990)). For this reason, in
a case like this one, in which the defendant claims that he was
merely in the presence of others involved in a conspiracy, "[t]he
attendant circumstances tell the tale -- and the culpability of a
defendant's presence hinges upon whether the circumstances fairly
imply participatory involvement. In other words, a defendant's
'mere presence' argument will fail in situations where the 'mere'
is lacking." United States v. Echeverri, 982 F.2d 675, 678 (1st
Cir. 1993).
The government does not dispute that here there is no
direct evidence that Guzman-Ortiz agreed to participate in the
conspiracy. Nor is there direct evidence that he in fact
participated in it. For example, there was no direct evidence
tying Guzman-Ortiz to any of the drugs turned up during the
investigation, nor was his voice picked up on any of the phone
calls the Task Force members listened in on during the
investigation. In fact, as we have noted, authorities did not
come across Guzman-Ortiz in the investigation of the heroin
conspiracy until they saw him come out of the apartment to assist
- 9 - Cabral with her groceries on the night that she was eventually
arrested.
On the other hand, the record supportably showed that
Guzman-Ortiz was present in Soto-Peguero and Cabral's apartment
that night for at least four hours, and there was ample evidence
to support the District Court's finding that the hosts used that
residence to carry out a heroin distribution conspiracy. In fact,
a jury could have found on this record that Soto-Peguero arranged,
by phone, a heroin deal during Guzman-Ortiz's visit and that Cabral
left the apartment while Guzman-Ortiz was still there to effectuate
it. In addition, the record supportably shows that Guzman-Ortiz
ran upstairs with Soto-Peguero when Task Force members announced
their presence at the apartment and that a brick of heroin was
later found partially hidden in an air duct in that area of the
residence alongside a small baggie of heroin. Was this
"collocation of circumstance," Flores-Rivera, 56 F.3d at 324,
enough to mean that the "mere" was lacking, such that a reasonable
juror could find beyond a reasonable doubt that Guzman-Ortiz not
only knew that his hosts were engaged in distributing heroin but
that he was their co-conspirator in that endeavor?
B.
In arguing that this quantum of evidence does suffice,
the government relies chiefly on United States v. Batista-Polanco,
927 F.2d 14 (1st Cir. 1991). We held there that the circumstances
- 10 - were such that a juror reasonably could infer that the defendant
found in an apartment from which a drug conspiracy was being
carried out was not merely an innocent visitor but a co-conspirator
in his own right. Id. at 18-19.
In Batista-Polanco, the defendant, who was charged with
"possessing and conspiring to possess one hundred or more grams of
heroin for distribution," testified that, although he knew "that
heroin was being packaged in the kitchen," "his presence in the
apartment was entirely innocent and that he had been waiting
there," no more than forty-five minutes, "merely to borrow his
cousin's car." Id. at 16-17. But, we pointed out that by the
defendant's own admission, he was present "for at least forty-five
minutes in an apartment conspicuously strewn with evidence of a
large-scale heroin packaging operation" and that a "factfinder
[could] fairly infer" in such circumstances "that it runs counter
to human experience to suppose that criminal conspirators would
welcome innocent nonparticipants as witnesses to their crimes."
Id. at 18 (emphasis added). We thus rejected "the hypothesis,"
which we indicated was central to the defendant's case, "that
participants in a distribution scheme would permit a
noncontributing interloper to remain for an extended period of
time in a small apartment while their conspicuous criminal conduct
continued unabated." Id. (emphasis added).
- 11 - In reaching this conclusion, though, we noted that the
police executing a search warrant in the apartment had discovered:
a large kitchen table laden with over fifteen hundred packets filled with heroin, an assortment of heroin milling and packaging paraphernalia, and some bulk heroin. Five chairs and a makeshift seat were arranged around the kitchen table; jackets and sweaters were draped on some of the chairs. More than seventeen hundred packets of heroin were found in a bag on the kitchen floor; another three thousand packets were discovered elsewhere in the apartment. Six men were found inside the apartment, including [the defendant] who was in the living room with his cousin.
Id. at 16. We also explained that:
[t]he inference that [the defendant] was a participant in the heroin packaging operation was strongly supported as well by reasonable implication from the fact that the kitchen table at which the heroin was packaged was surrounded by six seats -- one a makeshift seat consisting of an overturned bucket with a cushion. It is difficult to resist the reflexive inference that the sixth seat was devised to enable all six men, including [the defendant], to sit at the kitchen table and to participate in the heroin packaging.
Id. at 18.2
Here, if we look, as we did in Batista-Polanco, to the
evidence of the physical state of the apartment while Guzman-Ortiz
2 We also found that the "the district court's well-supported finding that [the defendant] gave materially false testimony concerning the duration of his stay in the apartment provided a basis for discrediting other exculpatory testimony given by Batista–Polanco in his own defense." Batista-Polanco, 927 F.2d at 18.
- 12 - was known to have been present within it,3 we find a quite different
scene. Most of the heroin found in the residence during the Task
Force's sweep of it that evening was found in a bedroom that was
very clearly occupied by the lessees, Soto-Peguero and Cabral. No
evidence indicated that this bedroom was a common area, such that
it could be reasonably inferred that Guzman-Ortiz would have
entered it simply because he was invited into the apartment.
Moreover, all the heroin in that room was either wrapped in a black
plastic bag or inside a dresser and thus obscured from view.
Additional heroin was found during the sweep in the guest
bedroom. But, once again, nothing in the record indicates that
Guzman-Ortiz -- who the record does not suggest was an overnight
visitor -- would have been granted access to this bedroom in the
normal course of his stay. Most of the heroin found there was
wrapped in black tape and partially hidden in the room's air duct.
3 It is unclear from the record when Guzman-Ortiz arrived at Soto-Peguero's residence and how long he was present there. The DEA Task Force did not set up surveillance of the home until some time after Soto-Peguero's 1:43 p.m. phone call with Mejia-Ramos, and there is no testimony that they surveilled the back door of the apartment. Task Force members observed Guzman-Ortiz for the first time when he exited the apartment around 7:00 p.m. to help Cabral bring in bags of groceries from her car. The Task Force members did not see Guzman-Ortiz leave through the front door of the apartment at any time after that, and he was found with Soto-Peguero around 10:00 p.m. when the members of the Task Force entered the residence. In its brief, the government contends that Soto-Peguero was in the apartment for at least four hours, and the evidence in the record, viewed favorably to the verdict, would support that timeframe.
- 13 - There was also a small baggie of powder found near the air duct,
but, given its size, it is not readily apparent it would have been
visible as contraband to anyone who entered.4
The only other heroin in the apartment also was not in
plain view of anyone who entered and thus "[k]knowledge of [it]
cannot be imputed to" Guzman-Ortiz. United States v. Morillo, 158
F.3d 18, 24 (1st Cir. 1998). For example, the search turned up
heroin in the closet on the first floor of the apartment. But, as
the District Court noted, it "was located behind closed doors" and
thus was not conspicuous.
Finally, the government points out that Task Force
members found the base of a blender or grinder, cellophane tape,
and some cellphones out in the open in various places in the first
floor of the apartment, as well as a drug press in the bathroom.
We agree that a jury could infer that Guzman-Ortiz would have seen
these items during his visit. But, unlike in Batista-Polanco,
where the defendant did not dispute "being at the apartment while
the large scale heroin packaging operation was in process," 927
F.2d at 18 (emphasis added), these items do not themselves support
the inference that this was the case here. Thus, the record bears
out the District Court's assessment that there was no evidence
4 It is also unclear whether the plastic baggie and the heroin wrapped in black tape were present in this room before the DEA Task Force was knocking at the door, which is an issue we will return to later.
- 14 - that "heroin processing or packaging occurred in view of
[Guzman-Ortiz] or with his participation."
Accordingly, while we found the physical state of the
apartment in Batista-Polanco inconsistent with the notion that the
defendant was "merely" present there, we cannot conclude similarly
here. There, we rejected the notion that participants in a drug
distribution conspiracy would invite a non-participant to their
base of operations so he could observe them packaging drugs for
distribution for upwards of an hour, and we concluded that the
evidence of the state of the apartment in that case revealed that
it would have been reasonable there for a juror to find that the
defendant had been at least a witness -- and perhaps a direct
participant -- in the packaging of drugs in the kitchen during his
visit. See Batista-Polanco, 927 F.2d at 18-19.
The physical condition of the apartment in this case,
however, does not permit a similar inference that Guzman-Ortiz's
hosts, given what it is fair to surmise they permitted him to
observe just by inviting him into the apartment, would have let
him enter only if he was a co-conspirator. Thus, here, we cannot
conclude that a reasonable juror could find -- with the level of
certainty required in a criminal case -- that Guzman-Ortiz, simply
by being where he was, was himself a co-conspirator. See United
States v. Valerio, 48 F.3d 58, 64 (1st Cir. 1995) ("[W]hile
criminals generally might be presumed not to bring along
- 15 - nonparticipants to witness their criminal activities, we do not
think that necessarily holds true when the criminal activity will
not be open and obvious." (quoting United States v. de la Cruz-
Paulino, 61 F.3d 986, 1002 (1st Cir. 1995))); cf. United States v.
Ocampo, 964 F.2d 80, 82 (1st Cir. 1992) ("[Even if i]t is a fair
inference that defendant knew what was going on, . . . that is not
enough to establish intent to conspire.").
The other cases that the government relies on are, like
Batista-Polanco, also distinguishable. In United States v.
Sepulveda, for example, we permitted an inference of participation
in a drug conspiracy based on the defendant's "consensual presence"
in a home where "large quantities of drugs were being packaged for
resale." 15 F.3d 1161, 1174 (1st Cir. 1993) (emphasis added).
And, in United States v. Hernandez, we affirmed the drug conspiracy
conviction of a defendant who was seen "linger[ing] outside" an
apartment where he knew a drug transaction would occur "for over
an hour on a winter day in a location which afforded him an obvious
vantage point from which to observe the surrounding neighborhood
as well as the ingress to the" apartment. 995 F.2d 307, 314 (1st
Cir. 1993). But, no similar evidence here gives rise to an
inference that Guzman-Ortiz was participating in a conspiracy with
Soto-Peguero and Cabral in the way that the evidence supported the
inference that the defendant in Hernandez was participating in
that conspiracy by serving as a "lookout" for a drug transaction.
- 16 - See id. ("[T]he evidence, as a whole, adequately supported the
conclusion that [the defendant] knowingly remained on the front
porch to facilitate the prearranged drug transaction.").
It is true that in affirming the conviction in Hernandez,
we noted that the defendant "did not reside at the apartment where
the drug transaction occurred, nor was he a captive of the
circumstances." Id. And that is true of Guzman-Ortiz in this
case. But, we explained that the defendant's conviction in
Hernandez rested on much more than just that observation. See id.
at 314-15 (noting that the defendant was present during
conversations about drug transactions, agreed "with his brother's
assessments concerning the quality of the cocaine and the low level
of police activity in the neighborhood," made "statements about
the 'money' and 'merchandise,'" and fled "in a rapid manner" from
law enforcement when they arrived on the scene). Thus, insofar as
the government contends that a reasonable juror could find beyond
a reasonable doubt based on Guzman-Ortiz's presence in
Soto-Peguero's apartment -- just due to its physical state -- that
he agreed to participate or participated in the distribution
conspiracy, we do not agree. Cf. United States v. Hyson, 721 F.2d
856, 862 (1st Cir. 1983) ("[The defendant's] occupancy of the
apartment with knowledge that hashish was being stored there is
not sufficient" to prove "that [the defendant] was aware of the
purpose of the conspiracy and willingly participated with the
- 17 - intent to advance its purpose."); United States v. Mehtala, 578
F.2d 6, 10 (1st Cir. 1978) ("Even if through the supposed close
relation between Mehtala and the Double Eagle's captain, Mehtala
obtained knowledge of the presence of the marijuana, this knowledge
would not be sufficient to convict her of aiding and abetting.").
C.
The government does not rely, however, solely on what
the evidence shows about what Guzman-Ortiz would have seen just
from looking around the apartment in contending that the evidence
sufficed to support the conspiracy conviction. The government
also points to the activity that a jury could find occurred in the
apartment during Guzman-Ortiz's visit. The government asserts
that the evidence of this activity -- at least when considered in
combination with the evidence just described, as it must be --
suffices to provide the necessary support for the conviction. But,
we are not persuaded.
The government first asserts that the jury could fairly
infer from the record both that Guzman-Ortiz was present in the
residence during the latter two of the three telephone
conversations that Soto-Peguero had with Mejia-Ramos arranging a
drug transaction and that he was present "when Cabral left the
apartment with between seven and ten bricks of heroin." But,
evidence that telephone calls were made -- by its nature -- is not
like physical evidence of drug distribution that occurs in plain
- 18 - view in portions of a residence in which a defendant claiming to
have merely been a visitor was located. Evidence that calls not
involving Guzman-Ortiz were made while he was merely present in
the residence, a two-story unit with multiple rooms and a back
door that was not under surveillance reveals nothing about his
knowledge of the calls, let alone of their contents. See United
States v. de la Cruz-Paulino, 61 F.3d 986, 1001-02 (1st Cir. 1995)
(noting that an "innocent observer" to one side of a drug call
might not have inferred that criminal activity was being discussed
and that "[w]hile criminals generally might be presumed not to
bring along nonparticipants to witness their criminal activities,
we do not think that necessarily holds true when the criminal
activity will not be open and obvious").5 It would require an
exercise in sheer speculation on this record for the jury to infer
from the mere fact of those calls having been made that the hosts
freely engaged in their illegal trade in Guzman-Ortiz's presence
and with his awareness of the calls' significance. As we have
5 The District Court noted that in the first monitored telephone call, at 1:43 p.m., "Soto-Peguero told Mejia-Ramos, 'Call me because . . . because I have a lot of food. . . . I have a lot of food around. I got ready for you.' 'Food' was a code word for heroin." In the second call, at 8:57 p.m., after Mejia-Ramos said "[s]end me something heavy, heavy duty," Soto-Peguero responded, "[y]ou're going to be clean . . . you're going to clean everything so I can send you, at least four hundred." And, in the final call between the two men, at 9:38 p.m., Soto-Peguero told Mejia-Ramos that "she's around there on her way, the woman," to let him know that Cabral was en route with his heroin.
- 19 - explained, the physical state of the apartment was not such as to
make it reasonable to presume that the calls transpired in a manner
that would have revealed their nature to Guzman-Ortiz, and the
government points to no other evidence that could make the
inference more than the product of mere speculation.
Likewise, though Guzman-Ortiz may have been present when
Cabral left the apartment to deliver heroin to Mejia-Ramos,
Guzman-Ortiz correctly points out that "[t]here was no evidence
that [Guzman-Ortiz] ever saw Cabral in possession of heroin inside
of the apartment. There was no evidence that he ever saw her
carrying a purse stuffed with heroin." Thus, the fact that she
left -- even if for unexplained reasons -- cannot suffice to show
that Guzman-Ortiz must have been in on the conspiracy, as again
speculation alone could fill in for what the evidence itself fails
to show on this score.
That leaves, then, the government's contention that
Guzman-Ortiz's status as a co-conspirator is confirmed once we
take account of the evidence that Guzman-Ortiz and Soto-Peguero
ran upstairs when Task Force members entered the residence and did
not come down for some period of time after being instructed to do
so. The government notes that there was testimony from Task Force
members to the effect that Soto-Peguero and Guzman-Ortiz "fled
upstairs after the officers at the back door of the apartment saw
- 20 - [one of the two men] reach for the door handle before turning
around when he saw the officers."
The District Court did not agree with the government's
characterization of Guzman-Ortiz's action as an attempt to flee
the apartment. It found that "the evidence showed only that
neither Soto-Peguero nor defendant opened the door to the apartment
when police knocked and that both ran upstairs as agents were
pounding on the front door. This is hardly 'flight from the
police.'"
But, even if Guzman-Ortiz's response to the entrance of
the Task Force members was a species of flight, we do not see how
it suffices to support the conviction, given the nature of the
offense at issue, even if we add the evidence of it to the array
of evidence canvassed thus far. Flight from the police certainly
can support an inference of guilt as a general matter, as the
government stresses. See United States v. Romero-Carrión, 54 F.3d
15, 17 (1st Cir. 1995) ("[A]ppellant's attempt to flee the scene
evinced a keen consciousness of guilt."); United States v. Luciano-
Mosquera, 63 F.3d 1142, 1156 (1st Cir. 1995) ("As long as there is
an adequate factual predicate supporting an inference of guilt on
the crime charged . . . evidence of the accused's flight may be
admitted at trial to show consciousness of guilt."). But, we are
not aware of any authority that says it can suffice to show
agreement to be part of conspiracy in circumstances such as these.
- 21 - See United States v. Pintado, 715 F.2d 1501, 1504 (11th Cir. 1983)
(noting that "[p]resence followed by flight is . . . inadequate
proof" of "participation in a conspiracy" (quoting United States
v. DeSimone, 660 F.2d 532, 537 (5th Cir. 1981)); see also
Hernandez, 995 F.2d at 315 (noting that "evidence of flight would
not have been enough in and of itself to support [the defendant's
conspiracy] conviction[]").
Indeed, only one of the cases that the government cites
in support of its flight-based argument involved a challenge to
the sufficiency of the evidence of a conspiracy conviction. See
United States v. Littlejohn, 489 F.3d 1335, 1339 (D.C. Cir. 2007)
(discussing evidence of flight vis-à-vis a defendant charged as
being a felon in possession of a firearm); United States v. Starks,
309 F.3d 1017, 1025 (7th Cir. 2002) (similar, concerning a
defendant charged with possessing cocaine and cocaine base with
intent to distribute); Romero-Carrión, 54 F.3d at 17 (similar,
concerning a defendant charged with possessing cocaine with intent
to distribute). And, in the conspiracy case, United States v.
Lopez, 944 F.2d 33 (1st Cir. 1991), the court rested its
determination that the evidence sufficed to show that the defendant
was a participant in the conspiracy on much more than just the
evidence of the defendant's flight from the scene of the crime.
In fact, in that case, the defendant was not merely a visitor to
the apartment that served as the center of the conspiracy's
- 22 - operations but was the lessee. Id. at 36. Moreover, she had
indirectly intimated to the police that she knew about the drugs
and had been fingered by an alleged co-conspirator as knowing about
the drugs in the apartment. See id. at 39-40.6
We recognize that, as the government points out, the
record contained evidence that a brick of heroin wrapped in opaque
black tape was found partially hidden in an air duct below the
upstairs window in the same room where evidence indicated that
Guzman-Ortiz and Soto-Peguero had been standing after they ran to
the second floor when the Task Force members attempted to enter
the apartment and that a small baggie containing drug-like powder
was found there, too. The government contends that from this
evidence "[t]he jury could reasonably have inferred . . . that
Guzman-Ortiz witnessed" Soto-Peguero hiding the heroin.
But we do not see how the jury could have done more than
guessed. See Ocampo, 964 F.2d at 83. There simply is no evidence
in the record from which to draw a reasonable inference about when
the heroin was hidden in the air duct, as nothing shows that it
was not present there in advance.
6 Our decision in Luciano-Mosquera concerned a conspiracy to import cocaine (in addition to a number of other drug and firearms- related crimes), and, though there was evidence of flight, 63 F.3d at 1147, there also "was overwhelming evidence of each [defendant]'s complicity in the scheme to import the cocaine and of their guilt," id. at 1153.
- 23 - In any event, this evidence cannot do all that the
government needs it to, even assuming the jury could supportably
conclude that the heroin was hidden in Guzman-Ortiz's presence as
the DEA Task Force was breaking down the door. For, accepting
that assumption for the moment, we still are not persuaded by the
government's further contention that such an inference would allow
a juror to find beyond a reasonable doubt that Guzman-Ortiz was a
participant in the conspiracy.
That Soto-Peguero was perhaps willing to expose his
criminal conduct by hiding contraband in this manner at that moment
-- when he had no real choice -- tells us little about whether
Guzman-Ortiz knowingly agreed to join Soto-Peguero in a conspiracy
to distribute and possess with intent to distribute heroin. The
government speculates that Guzman-Ortiz "may have assisted"
(emphasis ours) Soto-Peguero in hiding the heroin in the air duct.
But, it identifies no evidence that would tip the scales in favor
of this possibility, as compared to the equally plausible
possibility that Soto-Peguero hid the heroin himself albeit in
Guzman-Ortiz's presence, or, alternatively, that the heroin was
placed in the air duct before Guzman-Ortiz was ever present in the
bedroom. This sort of speculation between possibilities cannot
suffice to make up for the gaps in the evidence that we have
identified thus far. See Flores-Rivera, 56 F.3d at 323 ("[I]f the
evidence, viewed in the light most favorable to the verdict, gives
- 24 - equal or nearly equal circumstantial support to a theory of guilt
and a theory of innocence of the crime charged . . . a reasonable
jury must necessarily entertain a reasonable doubt." (emphasis and
internal quotation marks omitted) (quoting United States v.
Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992))).
D.
The government is right that we must consider the
evidence in its totality when considering the District Court's
Rule 29 determination. See United States v. Amparo, 961 F.2d 288,
290 (1st Cir. 1992). Individual pieces of evidence that might not
be enough on their own to show Guzman-Ortiz to be a co-conspirator
might add up to tell that tale. But, as we have explained, we
have undertaken this more holistic inquiry, and the problem for
the government is that, even when looked at in that encompassing
manner, the evidence was not enough to support a finding that
Guzman-Ortiz participated in the conspiracy beyond a reasonable
doubt.
Guzman-Ortiz was found in an apartment in which there
was evidence to indicate that he had shared a meal with persons he
could have known to be involved in illegal activity. But, there
is no evidence that he was a frequent presence there or that he
stayed much longer than one would expect a social visitor to
remain. There is no evidence that Soto-Peguero or Cabral (or
anyone else potentially involved) identified Guzman-Ortiz as a co-
- 25 - conspirator. Indeed, as the District Court noted, the Task Force,
despite having an ongoing investigation into Soto-Peguero and
Cabral, "had not known of, or seen, [Guzman-Ortiz] before" the day
they arrested him.
Nor was there any evidence to support the inference that,
during Guzman-Ortiz's visit to the apartment that day, he observed
the conspirators engaging in the manufacture, packaging, or
distribution of any drugs. The only heroin potentially in "plain
view" was found in the upstairs bedrooms and in a closed closet
-- and there is no evidence that Guzman-Ortiz accessed those areas
before the police arrived. There is also an absence of any other
evidence that other easily-recognizable drug distribution
activities occurred in Guzman-Ortiz's presence.
That is not to say there was no evidence of the
conspiracy being carried out while Guzman-Ortiz was present in the
apartment. But the evidence consisted of coded phone conversations
not involving him in an unknown location within the apartment, and
a departure by one of the known conspirators that, from all
appearances, occurred in a manner that itself did not reveal its
purpose.
All that being so, we do not see how the fact that
Guzman-Ortiz ran upstairs when the Task Force members entered the
apartment and did not immediately come down to meet them
demonstrates that he was in fact a conspirator in distributing
- 26 - heroin in his own right. Nor do we see how, against the evidentiary
background just described, the fact that Guzman-Ortiz may have
witnessed Soto-Peguero conceal a brick of heroin in an air duct as
Task Force members were entering the apartment supports an
inference that Guzman-Ortiz participated or agreed to participate
in the drug distribution conspiracy.
In so concluding, we emphasize that there was no evidence
that drugs or distribution-related evidence was found on Guzman-
Ortiz's person or in his phone or at his home, let alone any tied
to the conspiracy charged. There also was no evidence of anyone
involved identifying Guzman-Ortiz as being part of the
distribution scheme. In the face of all the other reasons to find
the evidence wanting, the absence of any such evidence confirms
our conclusion that the evidence, as a whole, was too slight to
suffice to support the conviction. See Ocampo, 964 F.2d at 82–
83; United States v. DeLutis, 722 F.2d 902, 907 (1st Cir. 1983);
United States v. Izzi, 613 F.2d 1205, 1210 (1st Cir. 1980).
The government is right that a judge may not pursue a
"divide and conquer" strategy in considering whether the
circumstantial evidence here adds up to Guzman-Ortiz having been
a mere visitor or a co-conspirator. But, neither may a judge
"stack inference upon inference in order to uphold the jury's
verdict." Valerio, 48 F.3d at 64; see also Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 323 (2007) ("The strength of
- 27 - an inference cannot be decided in a vacuum. The inquiry is
inherently comparative: How likely is it that one conclusion, as
compared to others, follows from the underlying facts?"); 2
Clifford S. Fishman & Anne T. McKenna, Jones on Evidence § 11:6
(7th ed. 2020) ("The probative value of an item of circumstantial
evidence (i.e., its weight in proving the proposition or fact for
which it is offered) depends upon two factors: the number of
inferences that must be drawn, and the strength of each
inference."). We would have to engage in such impermissible
inference stacking here to conclude not merely that "it is
certainly possible -- maybe even probable -- that [Guzman-Ortiz]
was involved in the conspiracy," but that there was "proof beyond
a reasonable doubt" that he was. United States v. Rozen, 600 F.2d
494, 497 (5th Cir. 1979) (quoting United States v. Littrell, 574
F.2d 828, 833 (5th Cir. 1978)). Thus, we agree with the District
Court that there is not sufficient evidence to permit a rational
jury to find, beyond a reasonable doubt, that Guzman-Ortiz intended
to join and effectuate the drug distribution conspiracy. See
United States v. Andujar, 49 F.3d 16, 22 (1st Cir. 1995) ("When a
jury is confronted, as here, with equally persuasive theories of
guilt and innocence it cannot rationally find guilt beyond a
reasonable doubt.").
We affirm.
- 28 - - Dissenting Opinion Follows -
- 29 - LYNCH, Circuit Judge, dissenting. It is a very serious
matter to set aside the judgment of twelve jurors finding no
reasonable doubt that the defendant was guilty of a heroin
distribution conspiracy. See United States v. Connolly, 341 F.3d
16, 22 (1st Cir. 2003) (stating that "a reviewing court must play
a very circumscribed role in gauging the sufficiency of the
evidentiary foundation upon which a criminal conviction rests" and
the reviewing court "will reverse only if the verdict is
irrational" (internal quotation marks and citations omitted));
United States v. Olbres, 61 F.3d 967, 975 (1st Cir. 1995) ("It is
trite, but true, that a court ought not disturb, on the ground of
insufficient evidence, a jury verdict that is supported by a
plausible rendition of the record." (internal quotation marks and
citation omitted)); United States v. Rothrock, 806 F.2d 318, 320
(1st Cir. 1986) (explaining that the district court's "power to
set aside a jury verdict [is] very circumscribed" and that "[s]o
long as the evidence was such that a rational mind might fairly
find guilt beyond a reasonable doubt, the court could not disturb
the jury's verdict"); see also United States v. Merlino, 592 F.3d
22, 33 n.5 (1st Cir. 2010) (noting that, in the context of a motion
for a new trial, the district court "should interfere with the
jury verdict only if the jury has reached a seriously erroneous
result"). The facts of this case are such that the law does not
- 30 - permit judges to undo that judgment. See United States v. Batista-
Polanco, 927 F.2d 14, 18 (1st Cir. 1991).
Juries are most often wiser than judges. See Duncan v.
Louisiana, 391 U.S. 145, 157 (1968) (noting that an "exhaustive
study of the jury in criminal cases concluded that juries do
understand the evidence and come to sound conclusions in most of
the cases presented to them and that when juries differ with the
result at which the judge would have arrived, it is usually because
they are serving some of the very purposes for which they were
created"); Sioux City & Pac. R.R. Co. v. Stout, 84 U.S. 657, 664
(1873) ("It is assumed that twelve [people] know more of the common
affairs of life than does one [person], that they can draw wiser
and safer conclusions from admitted facts thus occurring than can
a single judge."); United States v. Moran, 984 F.2d 1299, 1302
(1st Cir. 1993) ("No court lightly overturns a jury verdict on the
ground that the jury lacked sufficient evidence, for the jury's
central role and competence is to weigh the evidence and find the
facts."). And the jury is wiser here.
The majority opinion is wrong for a number of reasons;
I point only to a few.
First, our opinion in Batista-Polanco requires that we
honor the jury verdict. 927 F.2d at 18 (holding that the evidence,
"[a]lthough wholly circumstantial," was sufficient to support
conviction for the counts of possession and conspiracy). Indeed,
- 31 - the evidence here is even stronger. Guzman-Ortiz was in the home
of two drug dealers for at least four hours. He entered their
home unobserved, dined with the two dealers in the presence of
drugs and drug packaging materials, was there while they took and
executed a large drug order, and was there for much longer than
the forty-five minutes in Batista-Polanco. See id. When the
police knocked, Guzman-Ortiz fled upstairs and was found in a room
with drugs stashed away to hide them from the entering police.
Cf. United States v. Luciano-Mosquera, 63 F.3d 1142, 1147, 1156
(1st Cir. 1995) (holding that there was "an adequate factual
predicate supporting an inference of guilt on the crime charged"
such that evidence of flight could be admitted where the defendant
and his co-conspirators fled from police officers who interrupted
a drug shipment); cf. also United States v. Pena, 586 F.3d 105,
111-12 (1st Cir. 2009) (denying the defendant's challenge to the
sufficiency of the evidence where the defendant had suddenly fled
from the police and the officers subsequently "found [a] cell
phone, firearm, and plastic bag containing drugs along the flight
path"). It beggars the imagination that Guzman-Ortiz did not help
his drug-dealing companions even once in that four hours, including
during their attempt to evade the police. See Batista-Polanco,
927 F.2d at 18 ("[T]he factfinder may fairly infer . . . that it
runs counter to human experience to suppose that criminal
conspirators would welcome innocent nonparticipants as witnesses
- 32 - to their crimes."); Luciano-Mosquera, 63 F.3d at 1147, 1156. The
jury could easily find he was no innocent guest.
Second, all inferences must be drawn in favor of the
verdict. United States v. Acevedo-Hernández, 898 F.3d 150, 161
(1st Cir. 2018); Olbres, 61 F.3d at 970, 972-74. The majority
does the opposite, asserting that only the inferences it draws are
rational, while those drawn by the jury were not. Not so. See
Olbres, 61 F.3d at 974-75 ("On a motion for judgment of acquittal
. . . it is for the jury, not the court, to choose between
conflicting inferences."); see also Acevedo-Hernández, 898 F.3d at
161.
Third, the jury was very careful. It did not convict
Guzman-Ortiz of the possession charge, showing it carefully
followed the instructions as to reasonable doubt. Cf. United
States v. DeCologero, 530 F.3d 36, 56 (1st Cir. 2008) (stating
that "[w]ith regard to the jury's ability to segregate the evidence
and understand the judge's instructions, the verdict itself is
often quite telling" and a "discriminating verdict shows that the
jury was able to compartmentalize evidence and apply it to each
defendant" (quoting United States v. Houle, 237 F.3d 71, 76 (1st
Cir. 2001))); United States v. Lara, 181 F.3d 183, 202 (1st Cir.
1999) (explaining that "differentiated verdicts often constitute
tangible evidence of the jury's enduring ability to distinguish
between the" evidence); United States v. Rehal, 940 F.2d 1, 4 (1st
- 33 - Cir. 1991) (stating that "the jury's discriminating verdict
suggests that it properly compartmentalized the evidence as to the
various counts and separately considered defendant's guilt as to
each and every one"); United States v. Boylan, 898 F.2d 230, 246
(1st Cir. 1990) ("The discriminating verdict itself . . . evidenced
that the jurors were able to, and did, follow the court's
instructions."). The jurors heard and saw the evidence and
delivered their verdict within five and a half hours. The district
judge, nine months later and viewing a cold record, found the
evidence is insufficient and that was the only error in this case.
See Olbres, 61 F.3d at 970, 975-76.
- 34 -