United States Court of Appeals For the First Circuit
Nos. 11-2160 12-1814
UNITED STATES OF AMERICA,
Appellee,
v.
NORMA SANTOS-SOTO, CARLOS PLAZA-SANTIAGO,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Howard, Chief Judge, Torruella and Kayatta, Circuit Judges.
Gail S. Strassfeld, for appellant Santos-Soto. Ramón M. González, for appellant Plaza-Santiago. Tiffany V. Monrose, Scott H. Anderson, Assistant United States Attorneys, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
August 24, 2015 TORRUELLA, Circuit Judge. After a six-day jury trial,
Defendants-Appellants Norma Santos-Soto ("Santos") and Carlos
Plaza-Santiago ("Plaza"), former police agents of the Puerto Rico
Police, were convicted of conspiracy to injure, oppress, threaten,
and intimidate persons in the town of Arecibo in the exercise of
their constitutional rights in violation of 18 U.S.C. § 241
(Count 1) and conspiracy to possess with intent to distribute
controlled substances in violation of 21 U.S.C. §§ 841, 846
(Count 2). On appeal, they challenge the sufficiency of the
evidence supporting their convictions on Count 2.1 After careful
consideration, we reverse Santos's conviction on Count 2 for
insufficient evidence, but find that there was sufficient evidence
to convict Plaza on Count 2. We, therefore, affirm his conviction.
I. Background
A. Factual Background
We recite the facts as the jury could have found them,
viewing the evidence in the light most favorable to the jury's
verdict. See United States v. Beltrán, 503 F.3d 1, 2 (1st Cir.
2007). Santos and Plaza used to work as police agents in the
Arecibo Drug Division of the Puerto Rico Police. In 2007, as
members of the "Confidentiality" section, Defendants worked with
undercover agents, including Agent José Rodríguez-Vázquez
("Rodríguez"). Santos was in charge of undercover agent Rodríguez.
1 Defendants do not challenge their convictions on Count 1.
-2- On July 5, 2007, the Puerto Rico Police, Arecibo Drug
Division, executed arrest warrants against some individuals. Two
of these individuals -- Juan Carlos Aquino-Méndez ("Aquino") and
Roberto González-Medina ("González-Medina") -- were arrested based
on complaints filed for an alleged drug transaction that took place
on February 7, 2007. These complaints were predicated on a sworn
affidavit prepared on February 9, 2007, by undercover agent
Rodríguez, where he stated that he and a confidential informant,
Gerald Hernández-Vera ("Hernández"), had purchased two ounces of
cocaine from Aquino and González-Medina on February 7, 2007.
However, the information contained in this affidavit detailing the
transaction was false.
The February Incident
On February 7, 2007, Rodríguez and Hernández did not
purchase any drugs from either Aquino or González-Medina. Instead,
on February 6, 2007, agent Edgardo Hernández-López (a/k/a "Eggy"),
a police officer at the Arecibo Illegal Weapons Unit of the Puerto
Rico Police, gave two ounces of cocaine to Hernández to plant on
Aquino and González-Medina in order to frame them, because Eggy had
a personal grudge against Aquino. On February 7, 2007, Rodríguez
and Hernández were supposed to do a controlled buy of drugs from
Aquino's alleged pusher, González-Medina. They drove together to
González-Medina's house and Hernández got out of the car and walked
to the rear side of González-Medina's house to do the controlled
-3- buy while Rodríguez stayed in the car. Hernández talked briefly to
González-Medina's father, but did not purchase any drugs or talk to
anyone else. At the time, Hernández had the drugs that Eggy had
given him the day before hidden in his boot, but he did not tell
this to Rodríguez. Instead, Hernández took out the drugs from his
boot and, upon returning to the car, told Rodríguez that González-
Medina had just sold him those drugs on behalf of Aquino.
Rodríguez then took Hernández home and left with the drugs. While
this was taking place, Santos and Plaza were together in a police
car in the general vicinity, but they did not see the "transaction"
take place. Santos afterwards submitted the drugs for testing to
the Institute of Forensic Science,2 which concluded that they were
in fact cocaine.
Two days later, on February 9, 2007, Rodríguez prepared
a sworn affidavit, in which he stated that he and the confidential
informant, Hernández, had purchased two ounces of cocaine from
Aquino and González-Medina on February 7, 2007. Rodríguez's sworn
affidavit of February 9, 2007, was then used to support complaints
charging Aquino and González-Medina with state drug-related
offenses, and arrest warrants were issued against them in July
2007.
The July Incident
2 This was normal procedure.
-4- The arrest warrants for Aquino and González-Medina were
to be executed on July 5, 2007. Santos assigned the arrest
warrants related to the February incident to Agent Bernie González-
Vélez ("González-Vélez"), who had joined the Arecibo Drug Division
earlier that year. According to González-Vélez's trial testimony,3
Santos, Plaza, and two other police agents developed a plan whereby
González-Vélez and Rodríguez were to conduct a buy-bust operation.
Pursuant to the plan, González-Vélez would go to Aquino's house
with Rodríguez to buy some drugs from Aquino. After paying for the
drugs, González-Vélez would execute the arrest warrant issued as a
result of the February complaint. However, Hernández again got
cocaine prior to the planned buy-bust. Earlier that day, Hernández
obtained fifty baggies of cocaine from Eggy and Agent José González
(a/k/a "Tuti"), who also worked at the Arecibo Illegal Weapons Unit
of the Puerto Rico Police. Both Eggy and Tuti told Hernández to
plant the cocaine on Aquino. According to Hernández's trial
testimony, Plaza called him on July 5, 2007, and told him to
purchase fifty bags of cocaine from Aquino.
Hernández consumed three to five of the fifty baggies of
cocaine that Eggy and Tuti had given him, and then met with
González-Vélez and Rodríguez. Hernández gave the remaining forty-
five to forty-seven baggies of cocaine to Rodríguez, and told him
that he had purchased the drugs from Aquino earlier that day.
3 González-Vélez testified pursuant to a plea agreement.
-5- Hernández told González-Vélez and Rodríguez that they still needed
to pay Aquino for the drugs. Because Hernández had already gotten
the drugs, the original buy-bust plan was changed. The officers
then planned to pay Aquino for the cocaine that he had allegedly
sold Hernández earlier that day, and then arrest him after making
the payment. When González-Vélez and Rodríguez suggested that
Hernández go with them to pay Aquino for the drugs, Hernández
refused. Instead, he requested to be taken home because he feared
that Aquino would label him as a snitch and kill him. González-
Vélez then radioed the patrol car where Santos and Plaza were and
informed them that Hernández did not want to go to Aquino's house
and wanted to be taken home instead. Plaza told González-Vélez to
take Hernández home, which he did. At no time did González-Vélez
tell Plaza that Hernández had already "purchased" the drugs from
Aquino or that they already had the drugs.
After dropping Hernández at his house, Rodríguez and
González-Vélez arrived at Aquino's house to execute the arrest
warrant. There were no other police officers at Aquino's house,
but other officers had agreed to be nearby. Rodríguez exited the
car and called for Aquino. When Aquino came out of his house,
Rodríguez told him that he was there to pay for the drugs he had
given earlier to Hernández, but Aquino denied any knowledge of the
drugs. Rodríguez then identified Aquino by taking off his watch --
a prearranged signal -- and returned to the car while Aquino went
-6- back into his house. González-Vélez then exited the car and called
Aquino. When Aquino once again came out of his house, González-
Vélez arrested him and searched him, but did not find anything
illegal. González-Vélez then radioed Santos, Plaza, and two other
agents who were all together in the same police car and told them
that "the target had been arrested." He did not mention anything
about the drugs. Santos, Plaza, and the other two agents arrived
at Aquino's house in less than ten minutes. Other officers arrived
shortly thereafter. Immediately upon his arrival Plaza asked
González-Vélez for the "bundle" of cocaine. González-Vélez then
gave Plaza the drugs that Rodríguez had given him. Plaza took the
"bundle" and told Aquino, "This is yours." Aquino denied that it
was his. The officers then searched Aquino's house for
approximately twenty minutes but did not find anything illegal.
All they found was over $2,000 in a drawer, which González-Vélez
seized. Aquino was taken to the police station in a van, while
González-Vélez left with Rodríguez.
Later that day, Plaza arrested Hernández at his house,
though his arrest was fake.4 He was also taken to the police
station and left in a holding cell until the next day, when he was
released on bail, which was paid for by Plaza.
4 Other people, including González-Medina, were also arrested on July 5, 2007.
-7- After all the arrests were made on July 5, 2007, the
agents went back to the police station. There, González-Vélez
asked Santos and Plaza what would happen because the drugs had not
been seized from Aquino and the buy-bust had not taken place.
Santos and Plaza instructed González-Vélez to tell the district
attorney that he had seized the drugs from Aquino's person.
González-Vélez told Santos and Plaza that "the facts didn't occur
like that," to which they responded that "it was Aquino's drugs,
submit the case like that." González-Vélez did exactly as Santos
and Plaza had instructed. He told the district attorney that he
had a search warrant for Aquino and that when he arrested and
searched him, he seized drugs and money from Aquino.5
In September 2007, in collaboration with the Federal
Bureau of Investigation ("FBI"),6 González-Vélez had three recorded
conversations with Santos about the July 5 incident. In these
conversations, Santos -- unaware that she was being recorded --
told González-Vélez that he should stick to "the same story" he
previously told the district attorney back in July 2007. González-
Vélez was unable to record any conversations with Plaza. Also in
September 2007, Santos talked to FBI agent Julio Tobar. She told
5 Based on this information, Aquino was charged in state court with drug-related offenses. González-Vélez testified against him in the state proceedings, where he maintained the false version of the events that he had previously told the district attorney. 6 It is unclear from the record how the FBI first became involved in this case.
-8- Tobar that on July 5, 2007, she learned from Hernández that he had
received baggies of cocaine from Aquino, and admitted to Tobar that
she instructed González-Vélez to "charge Aquino as if the drugs had
been found in his possession," despite knowing that the drugs had
not been found on Aquino or in his house.
Subpoenaed phone records of Eggy, Tuti, and Plaza for the
months of February, June, July, and September 2007, showed that the
telephone calls between Plaza, Eggy, and Tuti significantly
increased in frequency on the days before, of, and following the
February and July incidents.7 Specifically, on February 6, 2007 --
the day when Eggy gave Hernández two ounces of cocaine to plant on
Aquino and González-Medina -- the records showed three telephone
calls between Eggy, Tuti, and Plaza. First, Eggy called Tuti, then
Plaza called Tuti, and afterwards Eggy and Tuti had another
telephone conversation. On the following day, the day of the
February incident, there were nine telephone calls between Eggy,
Tuti, and Plaza, and Plaza participated in four of them. In the
morning, Tuti called Eggy, and then called Plaza. Between 4:18 pm
and 4:40 pm, the three agents had four telephone conversations.
First, Eggy and Tuti talked, then Plaza called Tuti, and after
speaking with Plaza, Tuti called Eggy. The three of them had
additional telephone conversations during the evening. A similar
7 Santos's telephone records were not subpoenaed.
-9- pattern was reflected in the records for February 8, the day after
the February incident.
The records also showed that from July 2 to July 6, 2007,
Plaza had seventeen telephone calls with Tuti and Eggy,8 and Plaza
initiated more than forty percent of these calls.9 Six of the
seventeen telephone calls were prior to the buy-bust, while the
remaining eleven were either during or after the planned buy-bust.
In addition, during this same period, Tuti and Eggy called each
other on thirty-one occasions. The evidence showed not only that
Plaza, Tuti, and Eggy were in constant communication during these
days, but also that their telephone calls were relatively
contemporaneous. Many times two of the agents would talk and
immediately upon hanging up the phone, one of them would
communicate with the third agent. For example, on July 5, 2007,
one hour before the buy-bust operation was scheduled to begin, Tuti
and Plaza had a telephone conversation at 3:01 pm that lasted for
two minutes. Immediately after hanging up with Plaza, Tuti called
Eggy at 3:03 pm. Similarly, later that same day, and close in time
to the planned buy-bust operation, Plaza called Tuti at 6:58 pm and
talked to him for two minutes. Immediately after finishing his
8 Ten of these telephone calls were with Tuti, and the remaining seven were with Eggy. 9 Fourteen out of the seventeen telephone calls were made on the days before, of, and following the July incident. Eight of these calls were made on July 5, 2007.
-10- conversation with Plaza, Tuti called Eggy at 7:01 pm. The evidence
reflects the same pattern of contemporaneous calls between the
three of them on the day following the arrest of Aquino, when six
telephone calls were made between Eggy, Tuti, and Plaza within a
time frame of barely eight minutes.10
The telephone records admitted into evidence showed that
the telephone calls between Plaza, Eggy, and Tuti around the
February and July incidents constituted a spike in relation to the
telephone records for the rest of the period examined, which showed
that Plaza barely communicated with Eggy or Tuti by phone.11
10 For example, on July 6, 2007, Eggy called Tuti at 3:25 pm and talked to him for four minutes, until 3:29 pm. At 3:29 pm Eggy received an incoming call from Plaza. He talked to Plaza for two minutes, until 3:31 pm, when he then received a call from Tuti at 3:31 pm. At 3:32 pm, one minute after Plaza finished his conversation with Eggy, Plaza called Tuti on his phone. Then, right after finishing his conversation with Plaza, Tuti called Eggy at 3:33 pm. 11 The evidence does not reflect a single telephone call between Plaza and Eggy from late January to February 28, 2007, other than the ones he had on the days of and after the February incident. In addition, the telephone records reflect that during the entire months of June and July 2007, Plaza and Eggy communicated by phone on only three days, aside from the days of and after the July incident. As to his telephone conversations with Tuti, the evidence showed that during the entire month of February 2007, aside from the days of and after the February incident, Plaza communicated with Tuti by phone only on February 14, 2007, which was the day before the Institute of Forensic Science received the drugs from the February incident for testing. The telephone records also reflect that from June 1 to July 31, 2007, Plaza and Tuti communicated by phone on only one day aside from the days around the July incident. We note several telephone calls between Plaza and Tuti in September 2007. Although the parties do not make anything of it, we acknowledge that these calls were made around the time that the FBI initiated its investigation in this case.
-11- B. Procedural Background
On October 1, 2007, a grand jury returned a two-count
indictment charging Santos and Plaza, along with others,12 with
(1) conspiracy to injure, oppress, threaten, and intimidate persons
in the town of Arecibo in the exercise of their constitutional
rights in violation of 18 U.S.C. § 241 (Count 1), and
(2) conspiracy to possess with intent to distribute controlled
substances in violation of 21 U.S.C. §§ 841, 846 (Count 2).13
Santos and Plaza were tried jointly. At the close of the
government's case, both Defendants moved for judgments of acquittal
under Rule 29 of Federal Criminal Procedure, which the district
court denied. After presenting their witnesses, Defendants renewed
their motions for acquittal, which were again denied. On
October 28, 2010, after a six-day trial, the jury found Santos and
Plaza guilty of both counts. Santos was sentenced to concurrent
terms of fifty-one months of imprisonment on each count, to be
followed by concurrent three-year terms of supervised release on
each count, and a $200 special monetary assessment. The district
12 The confidential informant, Hernández, and agents González-Vélez and Rodríguez were also indicted. Hernández pled guilty to the two conspiracy charges, González-Vélez pled guilty to conspiracy to violate constitutional rights, and Rodríguez pled guilty to a charge of withholding information of a felony. 13 In United States v. Cortés-Cabán, 691 F.3d 1, 16 (1st Cir. 2012), we held that a conspiracy by law enforcement officers to plant controlled substances on victims in order to fabricate criminal cases entails the specific intent to distribute within the meaning of § 841(a)(1).
-12- court sentenced Plaza to concurrent terms of forty-one months of
imprisonment on each count, to be followed by concurrent three-year
terms of supervised release on each count, and a $200 special
monetary assessment. Santos and Plaza appeal their Count 2
convictions only.
On appeal, Santos and Plaza challenge the sufficiency of
the evidence supporting their convictions on Count 2, and claim
that the district court erred in denying their respective motions
for acquittal. Santos argues that the government did not present
any evidence that she knew the drugs involved in the February or
July incidents did not come from González-Medina or Aquino and,
thus, there was no evidence that she had knowledge of the
conspiracy to possess with intent to distribute controlled
substances. Santos also claims that the government failed to prove
that she possessed the intent to distribute controlled substances;
that is, that "the cocaine be transferred between police officers
in order to be planted on any victim."
Plaza alleges that, as to the February incident, there
was no evidence that he had anything to do with the drugs received
from Eggy and Tuti for the purpose of fabricating a case against
Aquino. In relation to the July incident, Plaza claims that the
government failed to produce evidence showing beyond a reasonable
doubt that he knew of the existence of the conspiracy to possess
-13- with intent to distribute controlled substances and that he
knowingly and intentionally joined said conspiracy.
II. Discussion
We review de novo the district court's denial of a motion
made under Rule 29 for judgment of acquittal. United States v.
Ulloa, 760 F.3d 113, 118 (1st Cir. 2014). In so doing, "we examine
the evidence, both direct and circumstantial, in the light most
favorable to the jury's verdict." United States v. Trinidad-
Acosta, 773 F.3d 298, 310 (1st Cir. 2014) (internal quotation marks
and citations omitted). We do not focus on each piece of evidence
separately. Rather, we evaluate the sum of all the evidence and
inferences drawn therefrom, and determine whether that sum is
enough for any reasonable jury to find all the elements of the
crime proven beyond a reasonable doubt, even if the individual
pieces of evidence are not enough when viewed in isolation. United
States v. Shaw, 670 F.3d 360, 362 (1st Cir. 2012) ("Individual
pieces of evidence viewed in isolation may be insufficient in
themselves to prove a point, but in cumulation may indeed meet the
mark."); United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir.
1993) ("[J]uries are not required to examine the evidence in
isolation, for individual pieces of evidence, insufficient in
themselves to prove a point, may in cumulation prove it. The sum
of an evidentiary presentation may well be greater than its
constituent parts." (internal quotation marks omitted)). Also, in
-14- reviewing the sufficiency of the evidence, "[w]e do not assess the
credibility of a witness, as that is a role reserved for the jury.
Nor need we be convinced that the government succeeded in
eliminating every possible theory consistent with the defendant's
innocence." Trinidad-Acosta, 773 F.3d at 310-11 (internal quotation
marks and citations omitted). "Rather, we must decide whether that
evidence, including all plausible inferences drawn therefrom, would
allow a rational factfinder to conclude beyond a reasonable doubt
that the defendant committed the charged crime," id. at 311
(internal quotation marks and citations omitted), even if that
conclusion is not inevitable. United States v. Floyd, 740 F.3d 22,
30 (1st Cir. 2014) (The evidence "suffices if the conclusions that
the jury draws from [it], although not inevitable, are
reasonable."). "The verdict must stand unless the evidence is so
scant that a rational factfinder could not conclude that the
government proved all the essential elements of the charged crime
beyond a reasonable doubt." United States v. Rodríguez-Vélez, 597
F.3d 32, 39 (1st Cir. 2010) (emphasis omitted); United States v.
Azubike, 564 F.3d 59, 64 (1st Cir. 2009) (holding that so long as
"any reasonable jury could find all the elements of the crime
beyond a reasonable doubt, we must uphold the conviction" (internal
quotation marks omitted)). Thus, "defendants challenging
convictions for insufficiency of evidence face an uphill battle on
-15- appeal." United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir.
2008) (citation omitted) (internal quotation marks omitted).
Nevertheless, "we must 'reject those evidentiary
interpretations and illations that are unreasonable, insupportable,
or overly speculative.'" United States v. Rodríguez-Martínez, 778
F.3d 367, 371 (1st Cir. 2015) (quoting United States v. Spinney, 65
F.3d 231, 234 (1st Cir. 1995)). "Where the evidence presented does
not support the inference that a defendant had knowledge of the
crime, we have consistently found the evidence insufficient." Id.
(citing United States v. Pérez-Meléndez, 599 F.3d 31, 42 (1st Cir.
2010)).
To sustain a drug-conspiracy conviction, the government
must prove beyond a reasonable doubt that the defendant "knew about
and voluntarily participated in the conspiracy, 'intending to
commit the underlying substantive offense.'" United States v.
Acosta-Colón, 741 F.3d 179, 190 (1st Cir. 2013) (quoting United
States v. Ortiz de Jesús, 230 F.3d 1, 5 (1st Cir. 2000)). "An
agreement to join a conspiracy may be express or tacit, and may be
proved by direct or circumstantial evidence," Trinidad-Acosta, 773
F.3d at 311 (quoting United States v. Liriano, 761 F.3d 131, 135
(1st Cir. 2014)), such as inferences "drawn from members' words and
actions and from the interdependence of activities and persons
involved." Acosta-Colón, 741 F.3d at 190 (internal quotation marks
omitted); see also United States v. Martínez-Medina, 279 F.3d 105,
-16- 113-14 (1st Cir. 2002) ("The jury may infer an agreement
circumstantially by evidence of, inter alia, a common purpose
. . . , overlap of participants, and interdependence of various
elements in the overall plan.").
A defendant need not know the full extent of the
drug-trafficking conspiracy or the identities of all the
co-conspirators to be convicted. See Ortiz de Jesús, 230 F.3d
at 5. Further, a defendant may be found to be a part of the
drug-trafficking conspiracy -- despite a lack of participation in
the drug collection, handling, or sales -- based upon performance
of ancillary functions (e.g., accounting, communications, and
strong-arm enforcement). See United States v. García-Torres, 280
F.3d 1, 4 (1st Cir. 2002); see also Trinidad-Acosta, 773 F.3d at
311 ("[E]ach coconspirator need not know of or have contact with
all other members, nor must they know all of the details of the
conspiracy or participate in every act in furtherance of it."
(internal quotation marks omitted)). However, "it is hard to
imagine how someone furnishing a peripheral service to a drug
conspiracy could be deemed to 'join' that conspiracy unless he knew
both that the drug conspiracy existed and that the peripheral
service being furnished was designed to foster the conspiracy."
García-Torres, 280 F.3d at 4 (emphasis omitted). With that
background in place, we turn to the individual Defendants.
A. Santos
-17- As noted above, the evidence showed that Santos was in
charge of undercover agent Rodríguez, who was told by Hernández
that the two ounces of cocaine from the February incident were
purchased from Aquino. Although Santos was with Plaza and other
agents in the general vicinity during the February incident, she
did not see the alleged "transaction" take place. Santos did
submit the drugs related to the February incident to the laboratory
for testing. She also assigned the arrest warrants related to the
February incident to González-Vélez and, in conjunction with other
officers, developed the plan for the buy-bust operation of July 5.
In relation to the July incident, the evidence showed
that Hernández once again told Rodríguez that he had purchased
fifty baggies of cocaine from Aquino, and that at the time of the
alleged transaction Santos was in the same police car as Plaza and
other agents, and they were in the general vicinity.
While at some point Santos learned that the drugs had not
been seized from Aquino's person, she still instructed González-
Vélez to lie to the district attorney and tell him that they had in
fact been seized from Aquino at the time of his arrest. She also
encouraged González-Vélez several times to stick to this lie.
Santos alleges that this evidence is insufficient for a
reasonable jury to conclude beyond a reasonable doubt that she had
knowledge of the conspiracy to distribute controlled substances and
knowingly and voluntarily participated in it. We agree.
-18- The trial testimony revealed that Hernández never
disclosed that he had gotten the drugs from someone other than
Aquino or González-Medina, and the government offered no evidence
from which to infer that Santos knew that the drugs involved in the
February or July incidents came from someone other than Aquino. In
fact, at oral argument the government stated that it could not
point to any evidence demonstrating that Santos did not believe
that Aquino was the real source of the drugs.
As evidence supporting Santos's Count 2 conviction, the
government points most strongly to Santos's encouragement of
González-Vélez to lie to the district attorney by telling him that
he had seized the drugs from Aquino. In fact, when asked at oral
argument about the scant evidence against Santos supporting her
Count 2 conviction, the government stated that "Santos joined the
conspiracy late, when she asked [González-Vélez] to lie."
According to the government, by so doing Santos "tacitly agreed to
join the conspiracy to possess with intent to distribute controlled
substances." In fact, the government stated at oral argument that
Santos's encouragement of González-Vélez to lie to the district
attorney was the "only evidence" of Santos's knowledge about the
distribution of controlled substances.
It is well-established that a defendant need not know the
full extent of a conspiracy, the identity of all the
co-conspirators, may join the conspiracy late, and participate in
-19- only ancillary functions. See United States v. Soto-Beníquez, 356
F.3d 1, 23 (1st Cir. 2003); García-Torres, 280 F.3d at 4; Ortiz de
Jesús, 230 F.3d at 5. However, a defendant must know that a
conspiracy exists and that his participation, even if limited to a
peripheral service, is designed to foster that conspiracy.
García-Torres, 280 F.3d at 4. Here, the evidence shows that Santos
encouraged González-Vélez to lie to the district attorney regarding
the seizure of the drugs. Although this and other evidence could
be sufficient to find "a conspiracy to violate the civil rights of
the victims by providing false evidence to the Commonwealth
Courts," (Count 1) this evidence is insufficient to prove that
Santos knew of the conspiracy to distribute controlled substances
and elected to join it intending that the underlying offense be
committed (Count 2). Santos's knowledge of a conspiracy to possess
with intent to distribute controlled substances cannot be based
only on her knowledge of a different conspiracy -- the conspiracy
to violate the civil rights of victims.
By the same token, although Santos submitted the drugs to
the Institute of Forensic Science for testing, this does not lead
to a reasonable conclusion that she was distributing the drugs in
furtherance of the conspiracy. "[I]t is hard to imagine how
someone furnishing a peripheral service to a drug conspiracy could
be deemed to 'join' that conspiracy unless he knew both that the
-20- drug conspiracy existed and that the peripheral service being
furnished was designed to foster the conspiracy." Id.
Without evidence from which the jury could infer beyond
a reasonable doubt that Santos knew of the conspiracy to possess
with intent to distribute controlled substances, Santos's
conviction on Count 2 cannot stand.
B. Plaza
The record shows that on July 5, 2007, Eggy and Tuti gave
Hernández fifty baggies of cocaine to plant on Aquino. On that
same date, Plaza called Hernández and instructed him to buy fifty
baggies of cocaine from Aquino. Upon his arrival at Aquino's house
after González-Vélez had arrested Aquino, Plaza asked González-
Vélez for the "bundle" of drugs and, once González-Vélez gave him
the drugs, Plaza confronted Aquino stating, "This is yours." Some
time later at the police station, when González-Vélez asked Plaza
how to submit the case to the district attorney because the drugs
had not been seized from Aquino's person, Plaza instructed
González-Vélez to lie to the district attorney and claim that the
drugs had in fact been seized from Aquino's person. The trial
evidence also showed that there was a spike in telephone calls
between Plaza, Eggy, and Tuti on the days before, of, and following
both the February and July incidents, when the three agents were in
constant communication and had numerous relatively contemporaneous
telephone calls.
-21- Plaza contends that this evidence is insufficient for a
rational jury to conclude that he is guilty beyond a reasonable
doubt of having participated in the drug conspiracy. He alleges
that the fact that he instructed Hernández to buy from Aquino the
exact amount of cocaine provided by Eggy and Tuti is not indicative
that he was part of the drug conspiracy. Plaza also claims that
the telephone calls between him, Eggy, and Tuti were unrelated to
the alleged conspiracy, as they all worked together, knew each
other for years and communicated frequently for business and
personal reasons. Plaza further argues that the testimony from his
two witnesses contradicts the testimony of one of the government's
main witnesses. Finally, he claims that the government failed to
call Aquino and González-Medina -- the victims -- to testify in
this case, and to bring charges against Eggy and Tuti, the drug
suppliers. His contentions lack merit.
Viewing the direct and circumstantial evidence in the
light most favorable to the guilty verdict, a reasonable jury could
conclude that Plaza knowingly and voluntarily participated in the
conspiracy and intended to commit the underlying substantive
offense. See Mena-Robles, 4 F.3d at 1031 (articulating the
requirements to convict a defendant of conspiracy as the intent "to
agree and to commit the substantive offense that was the object of
the agreement"). Such knowing and voluntary participation and
intent are demonstrated by Plaza's actions and words during both
-22- incidents. See id. ("[J]uries are not required to examine the
evidence in isolation, for individual pieces of evidence,
insufficient in themselves to prove a point, may in cumulation
prove it. The sum of an evidentiary presentation may well be
greater than its constituent parts." (quoting United States v.
Ortiz, 966 F.2d 707, 711 (1st Cir. 1992))). There was evidence
that on the days before, of, and after the two incidents, Plaza was
in constant communication with Eggy and Tuti via their personal
telephones, and that Plaza initiated a significant amount of these
calls. This, even though Tuti and Eggy worked in a different area
within the Puerto Rico Police -- the Arecibo Illegal Weapons Unit
-- and they were not involved in the planned buy-bust operation
that was being conducted by the Arecibo Drug Division. Not only
were Plaza's telephone calls with Eggy and Tuti constant during
those days, but the telephone calls between the three of them were
also relatively contemporaneous, with many times two of the agents
finishing a conversation and immediately calling the third agent.
The evidence also showed that Plaza otherwise rarely had telephone
conversations with either Tuti or Eggy, and that the records only
showed a spike in calls between them around the two incidents.
Furthermore, there was evidence that on the day of the planned buy-
bust operation, all communications related to the operation were
made over a dedicated police radio frequency and not over the
agents' personal telephones. In addition, the evidence showed that
-23- Plaza instructed González-Vélez to lie to the district attorney and
claim that the drugs had in fact been seized from Aquino, despite
being repeatedly told by González-Vélez that this was not true.
When viewed as a sum of the evidentiary presentation, a reasonable
inference could be drawn that Plaza had no legitimate, work-related
reason to be in constant communication with Eggy and Tuti around
the days of the two incidents -- much less using their personal
telephones -- and that his unusually frequent and relatively
contemporaneous telephone calls with Tuti and Eggy show that he was
aware of the "essential nature" of the conspiracy and intended to
commit the substantive offense in that he planned to plant those
drugs on Aquino.14 See United States v. Geer, 923 F.2d 892, 894
(1st Cir. 1991).
Plaza points out that the government did not provide
evidence as to the content of the telephone conversations, and that
it did not prove that there was a substantial number of calls made
around the time of the two incidents, compared with the calls made
during other months prior to or subsequent to the dates of the
incidents. Plaza further claims that he knew Tuti and Eggy for
14 In reaching our conclusion, we do not rely on the fifty-baggies congruence or on Plaza's "this is yours" comment, since we do not find that they have any inculpatory weight under the circumstances of this case.
-24- years as coworkers and thus the three of them frequently
communicated for both personal and business reasons.15
Contrary to Plaza's assertions, the government did
introduce telephone records that extended beyond the dates of the
two incidents. The telephone records of Eggy and Tuti encompassed
all telephone calls to and from their telephones for the entire
months of February, June, July, and September 2007. A review of
these telephone records clearly revealed an unusual spike in
telephone calls between Plaza and the drug suppliers on the days
before, of, and following both incidents. In any event, the issue
on review is not whether there exists an innocent explanation; the
issue is whether when examining the evidence as a whole the jury
could reasonably reject that explanation. United States v. Floyd,
740 F.3d 22, 30 (1st Cir. 2014).
Plaza further argues that the testimonies of his two
witnesses -- Feliciano and Centeno -- contradict the testimony of
one of the government's main witnesses. However, the jury heard
the testimony of all the witnesses and made its credibility
determinations. On appeal, we cannot re-weigh the evidence or
second-guess the jury's credibility determinations.16 See Trinidad-
15 In its brief, the government pointed out that "absolutely no evidence was produced regarding the length of time [Eggy, Tuti, and Plaza] knew each other, where they lived, or whether they had frequent personal or business communications." 16 Furthermore, after a careful review of the record we disagree that any such contradictions exist.
-25- Acosta, 773 F.3d at 310-11 ("We do not assess the credibility of a
witness, as that is a role reserved for the jury." (quoting Troy,
583 F.3d at 24)); Acosta-Colón, 741 F.3d at 191 ("[T]hough we
exercise de novo review, we can neither re-weigh the evidence nor
second-guess the jury's credibility calls."); United States v.
Ayala-García, 574 F.3d 5, 11 (1st Cir. 2009) ("[T]he jury [is] free
to choose which of the two conflicting accounts of the events to
believe, so long as the evidence viewed in the government's favor
is adequate to establish guilt beyond a reasonable doubt.").
Finally, we decline Plaza's invitation to find the
evidence insufficient to support his conviction because the
government did not call all possible witnesses to testify, or
include in the indictment other co-conspirators. When we assess
the sufficiency of the evidence supporting a conviction, we must
focus on the evidence actually submitted at trial. See Trinidad-
Acosta, 773 F.3d at 310-11; see also United States v.
Guzmán-Montañez, 756 F.3d 1, 12 (1st Cir. 2014) (emphasizing that
what matters is the evidence introduced at trial); United States v.
García, 758 F.3d 714, 721-22 (6th Cir. 2014) (holding that in
evaluating a sufficiency-of-the-evidence challenge "we may not
consider the potential magnitude of the evidence not presented,"
because doing so would be "an invitation to examine whether the
Government might have presented a more convincing case, not whether
-26- it in fact presented a sufficient one").17 Because the basis for
the jury verdict is the evidence that was submitted for its
consideration, we do not consider the magnitude of additional
evidence that could have been presented in determining whether the
evidence that was actually submitted was sufficient to convict the
defendant. Nor do we take into consideration that certain
individuals were not indicted, as that is a matter within the sole
discretion of the prosecution. See United States v. Nixon, 418
U.S. 683, 693 (1974) (noting that "Executive Branch has exclusive
authority and absolute discretion to decide whether to prosecute a
case"). And, here, we conclude that the sum of all the evidence
and the inferences drawn therefrom, especially the evidence of
Plaza's telephone communications with Eggy and Tuti, the drug
suppliers, and the evidence that he instructed González-Vélez to
falsely submit the case to the local district attorney, is
sufficient circumstantial evidence that Plaza was aware of, and
knowingly participated in the conspiracy to possess with intent to
distribute controlled substances. See Floyd, 740 F.3d at 30 (The
court's "focus must be on the evidence as a whole. . . . [and] [i]t
suffices if the conclusions that the jury draws from the evidence,
although not inevitable, are reasonable."). While the conclusion
17 Moreover, we have repeatedly stated that "[t]estimony from even just 'one witness can support a conviction.'" United States v. Alejandro-Montañez, 778 F.3d 352, 357 (1st Cir. 2015) (quoting United States v. De La Paz-Rentas, 613 F.3d 18, 25 (1st Cir. 2010)).
-27- that Plaza knew of the drug conspiracy and participated in it
intending that the underlying substantive offense be committed may
not be inevitable based on the evidence, it soundly rests on
sufficient evidence. Thus, Plaza's conviction on Count 2 is
affirmed.
III. Conclusion
The evidence submitted at trial to support Santos's
conviction on Count 2 was insufficient for a reasonable jury to
conclude beyond a reasonable doubt that she had knowledge of the
drug conspiracy and voluntarily participated in it, intending that
the underlying substantive offense be committed. Thus, Santos's
conviction on Count 2 is reversed. In contrast, this evidence,
which included acts specifically attributed to Plaza, was
sufficient to sustain Plaza's conviction as to the same Count 2.
Therefore, Plaza's conviction on Count 2 is affirmed.
-28-