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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.
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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.
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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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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.
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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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Document Info
Docket Number： 92-1748
Filed Date： 11/20/1992
Precedential Status： Precedential
Modified Date： 9/21/2015