United States v. Rios-Ortiz

United States Court of Appeals
For the First Circuit
No. 11-2200
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN RÍOS-ORTIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, Circuit Judge,
and DiClerico,** District Judge.
Mark E. Howard, with whom Howard & Ruoff, PLLC, was on brief,
for appellant.
Justin Reid Martin, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.
February 27, 2013
*
Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. Appellant Juan Ríos-Ortiz
(“Ríos”) was convicted after a jury trial of conspiracy to possess
with intent to distribute controlled substances (Count One),
distribution of a controlled substance (Count Six), and possessing
and providing contraband to a prison (Count Seven). He was
sentenced to a term of imprisonment of seventy-eight months.
Ríos appeals his conviction on Count One, arguing that
the evidence was insufficient to support a conviction as to the
charged conspiracy. Specifically, Ríos argues that the evidence
was insufficient to establish a single conspiracy beginning on or
about December 2009 and continuing until on or about February 2,
2010.
For the reasons that follow, we affirm the judgment of
the district court.
I.
The facts are recited in the light most favorable to the
verdict being appealed. United States v. Poulin, 631 F.3d 17, 18
(1st Cir. 2011). As of December 2009, Ríos was employed as a
forklift operator at Carribean Produce (“CP”), a company that
distributes fruits, vegetables, and eggs to, among other customers,
the Metropolitan Detention Center Guaynabo (“MDC”) in San Juan,
Puerto Rico. Typically, a customer would place an order with
someone in CP’s client service department. The employee who took
the customer’s order would create a “picking list,” which is given
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to a dispatcher. The dispatcher would select the boxes of products
ordered by a customer from various coolers within CP’s warehouse,
put the boxes on pallets, and wrap the boxes with tape. Another
employee would then compare the products on the pallets with the
picking list and, if the selected items matched the picking list,
a forklift operator would load the pallets onto a delivery truck
for shipment to the customer. Ríos, like other CP forklift
operators, sometimes acted as a dispatcher for an order.
MDC orders were picked up from CP by Jesús Piñero, an
independent driver who made deliveries from CP to MDC on a weekly
basis. All food deliveries to MDC were received at the facility’s
warehouse by the foods service warehouse supervisor. The
supervisor inspected the delivery to ensure that none of the food
items were damaged or spoiled. An inmate forklift operator would
then unload and transfer the delivery to the rear gate of the
facility. There, an officer would x-ray a part of the shipment, as
determined on a shipment-by-shipment basis at the officer’s
discretion, to screen for contraband or damage. Once the goods
passed through the screening process, they would be brought to the
food service area to be unloaded and stocked inside the facility’s
walk-in coolers.
On December 29, 2009, CP prepared an order for MDC
(“December 29th order”). Piñero delivered the order to MDC and 10%
of the shipment was x-rayed. No contraband or damage was found at
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that time. The order was then unloaded and stocked in MDC’s
coolers.
The following day, Norman Vélez, a cook supervisor at MDC
whose duties included receiving and storing food items, was working
in the food service department. As Vélez approached cooler number
five, which held vegetables, he saw the inmate who had been
cleaning the cooler attempt to close the door quickly. Vélez
thought that the inmate’s movement was suspicious and held the
cooler door open. Vélez looked inside and saw another inmate, who
was not authorized to be in that area, searching one of the boxes
of produce. Vélez removed the inmate from the cooler, locked it,
and called for backup.
Vélez and José Rosa, a special investigator supervisor at
MDC, searched the cooler. While inspecting CP’s delivery from the
previous day, Vélez and Rosa found several bags of contraband,
wrapped in electrical tape, inside a box of celery. The bags
contained eight cell phones, SIM cards, cell phone charger
connectors, cigarettes, alcohol, Xanax pills (containing the
controlled substance alprazolam), Percocet pills (containing the
controlled substance oxycodone), cocaine, heroin, and marijuana.
In addition, one of the bags contained a piece of paper with what
Rosa described at trial as a “possible nickname” on it.
Carlos Falcón, the distribution manager at CP, was
notified about the contraband that had been found in the celery
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box. Falcón checked CP’s surveillance system, which consisted of
twenty-seven cameras in the warehouse and a hard disk that records
for sixteen days before it is automatically overwritten. Falcón
testified that he reviewed the video that showed the preparation of
the December 29th order. According to Falcón, Ríos acted as the
dispatcher for that order. Falcón testified that Ríos performed
his dispatch duties normally, except that he reinforced one celery
box heavily with tape.1
After MDC discovered the contraband in the December 29th
order, CP began sealing the door on Piñero’s truck after loading
for all future deliveries to ensure that he would not be a suspect
if contraband were found again. In addition, CP also began
requiring all dispatchers to fill out a document called a
“tablilla,” which contained the details of the order.2
On February 2, 2010, Piñero delivered another order from
CP to MDC (“February 2nd order”). At MDC, the seal on Piñero’s
truck was broken, and the delivery was unloaded. While being
unloaded, a box containing eggs began to break open from the
bottom. The box was immediately placed on the x-ray machine, which
showed that the box contained contraband. FBI Agent Dave Becerra,
1
The jury was not able to view the video showing Ríos’s
preparation of the December 29th order because it had been
automatically overwritten under the normal procedure.
2
CP’s regular policy was to require tablillas to be filled
out for every delivery, but it was not strictly enforced prior to
the incident with the December 29th order.
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who was at MDC conducting interviews regarding the December 29th
order, took the box to his office.
The box of eggs contained several bags of contraband
wrapped in electrical tape as were the bags of contraband found in
the December 29th order. The contraband included nine cell phones,
a large quantity of cigarettes, and over one thousand pills
containing either alprazolam or oxycodone. Becerra removed the
tape from the bags of contraband and sent it to the FBI lab in
Quantico, Virginia for fingerprint analysis. The FBI found two
latent fingerprints, one of which belonged to Ríos. Ríos’s
fingerprint was found on the adhesive side of the tape.
Upon learning of the contraband in the February 2nd
order, Falcón again consulted CP’s surveillance system. As Falcón
testified at trial, the video showed Ríos working as a dispatcher
and performing his duties abnormally for that order.3 For example,
Ríos stacked the egg boxes too high, removed a tray of eggs from
one of the boxes and took it to the corner of the room, and took
longer than normal to prepare the order, none of which is standard
procedure for a dispatcher. Unlike the video of the December 29th
order, the video of the February 2nd order had not been
overwritten, and it was shown to the jury at trial.
3
Ríos was also listed as the dispatcher on the tablilla for
the February 2nd order.
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At the close of the government’s case, Ríos moved for a
judgment of acquittal as to all counts under Fed. R. Crim. P. 29.4
The court reserved its ruling on the motion, and Ríos rested
without testifying or presenting any witnesses.
The jury convicted Ríos of Count One (conspiracy), Count
Six (distribution of a controlled substance - oxycodone), and Count
Seven (providing contraband to a prison). Counts Six and Seven
related to the February 2nd order. The jury acquitted Ríos of
Counts Two, Three, Four, and Five, all of which related to the
December 29th order.
II.
On appeal, Ríos raises several challenges to his
conspiracy conviction. He contends that the district court erred
in denying his Rule 29 motion as to his conspiracy conviction
because there was no evidence of a conspiratorial agreement; that
his conviction for conspiracy and his acquittal on certain
underlying substantive offenses constitute impermissible
inconsistent verdicts; and that although the government charged one
overarching conspiracy, at best it proved multiple conspiracies,
representing a prejudicial variance. All of Ríos’s challenges are
based on the contention that the evidence was insufficient to
4
Rule 29 provides that: “After the government closes its
evidence or after the close of all the evidence, the court on the
defendant’s motion must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a
conviction.” Fed. R. Crim. P. 29(a).
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support a conviction on Count One for a conspiracy beginning on or
about December 2009 and continuing to on or about February 2, 2010.
We review Ríos’s sufficiency of the evidence claim de
novo, considering the evidence in the light most favorable to the
verdict. United States v. Green, 698 F.3d 48, 56 (1st Cir. 2012).
“A reversal is warranted only where no rational factfinder could
have concluded that the evidence presented at trial, together with
all reasonable inferences, established each element of the crime
beyond a reasonable doubt.” United States v. Symonevich, 688 F.3d
12, 23 (1st Cir. 2012).
A. Existence of a Conspiratorial Agreement
Ríos argues that the trial court erred in denying his
Rule 29 motion because the evidence adduced at trial was
insufficient to support the existence of an agreement to possess
and distribute controlled substances. Specifically, he points to
the lack of evidence concerning any interactions or communications
between Ríos and another co-conspirator prior to either the
December 29th order or the February 2nd order.5 He argues that
there was no evidence of knowledge and coordination of efforts and
5
Ríos also contends, in passing, that he only acted as a
dispatcher for the orders because he was told to do so by a
supervisor, which he argues goes against the government’s theory
that he was part of a conspiracy. To the extent that Ríos intends
to make that argument, the fact that he may have been told to act
as a dispatcher for the orders does not undermine the existence of
a conspiracy.
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therefore, a jury could not have found beyond a reasonable doubt
that he participated in a conspiracy.
“‘To prove conspiracy in a [narcotics] case, the
government must prove beyond a reasonable doubt that an agreement
existed to commit the underlying substantive offense, and that the
defendant elected to join the agreement, intending that the
underlying offense be committed.’” United States v. Landrón-Class,
696 F.3d 62, 69 (1st Cir. 2012) (quoting United States v. Medina-
Martínez, 396 F.3d 1, 5 (1st Cir. 2005)). “‘The essence of the
crime is the conspirators’ agreement to act in concert’ to import,
possess, and distribute illegal drugs.” United States v. Paret-
Ruiz, 567 F.3d 1, 5-6 (1st Cir. 2009) (quoting United States v.
Cruz, 568 F.2d 781, 782 (1st Cir. 1978)); see also United States v.
Rodríguez, 525 F.3d 85, 104 (1st Cir. 2008).
“An agreement between coconspirators may be proven by
circumstantial evidence, and it may be tacit.” United States v.
Rivera-Donate, 682 F.3d 120, 134 (1st Cir. 2012) (quoting Paret-
Ruiz, 567 F.3d at 6) (internal quotation marks omitted); see also
United States v. Gómez-Rosario, 418 F.3d 90, 107 (1st Cir. 2005);
United States v. Concemi, 957 F.2d 942, 950 (1st Cir. 1992) (“an
agreement . . . may be inferred from a development and collocation
of circumstances”) (quoting United States v. Smith, 680 F.2d 255,
259 (1st Cir. 1982)) (internal quotation marks omitted). A
conspiratorial agreement, therefore, “need not be express so long
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as its existence can plausibly be inferred from the defendants’
words and actions . . . .” United States v. Famania-Roche, 537
F.3d 71, 78 (1st Cir. 2008) (quoting United States v. Boylan, 898
F.2d 230, 241-42 (1st Cir. 1990)) (internal quotation marks
omitted); see also United States v. Pérez-Ruiz, 353 F.3d 1, 7 (1st
Cir. 2003) (a defendant cannot succeed with a sufficiency challenge
“as long as a plausible reading of the record supports the jury’s
implied finding that [the defendant] knowingly participated in the
charged conspiracy”).
In this case, the government presented circumstantial
evidence to demonstrate the existence of an agreement to distribute
controlled substances. Ríos prepared and loaded onto the delivery
truck both orders for MDC. According to testimony, for the
December 29th order, CP’s security cameras showed Ríos heavily
taping the celery box that held the bags containing the contraband.
At MDC, Vélez found an unauthorized inmate searching through the
box of celery containing the bags of contraband, which were wrapped
in electrical tape, and one of the bags contained a card with a
possible nickname on it. For the February 2nd order, the video
taken by CP’s security camera and presented to the jury showed Ríos
preparing the orders in a manner that was contrary to proper
procedure, and removing a tray of eggs from a box and taking the
tray to the corner of the warehouse. At MDC, one of the egg boxes
was found to contain bags of contraband wrapped in electrical tape
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as were the bags of contraband found in the December 29th order.
The tape that wrapped one of the bags had several fingerprints on
the adhesive side, one of which belonged to Ríos. In addition, the
egg box containing the bags of contraband had a red mark on it.
When viewed in the light most favorable to the verdict,
this evidence is sufficient to permit a jury to reasonably conclude
that Ríos was a participant in a conspiracy to distribute
controlled substances. Ríos prepared the orders, both of which
contained some sort of marker which could have been an act of
communication with a co-conspirator within MDC.6 In addition, the
jury could have concluded that the several sets of fingerprints on
the tape used to wrap a bag of contraband in the February 2nd order
were those of a co-conspirator outside of MDC. Although Ríos
points to the lack of communications with co-conspirators, “[a]
6
In the case of the December 29th order, the marker was the
extra tape on the celery box. In the case of the February 2nd
order, the marker was the red mark on the egg box. Ríos suggests
that the extra tape on the celery box in the December 29th order
could not have been a marker because the contraband was not
discovered until the following day. Ríos argues that the “lapse of
time, during which contraband was sitting in a cooler at MDC,
available to be discovered by anyone who had access to that area of
the facility, defies a conclusion that the tape on the box was an
attempt to communicate.” That argument is belied by the testimony
of Victor Roberto Vega, MDC’s food service supervisor, who
testified that produce is often delivered and stored a week before
it is used. Regardless, when the evidence is viewed in the light
most favorable to the verdict, the jury could have concluded that
the extra tape on the celery box was intended to be used as a
marker to communicate with a co-conspirator, particularly when
considered along with the card found inside one of the bags of
contraband with a possible nickname on it.
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defendant can be indicted and convicted even if the names of his
co-conspirators are unknown, as long as the government presents
evidence of an agreement between two or more persons.” United
States v. Nason, 9 F.3d 155, 159 (1st Cir. 1993). “The essence of
a conspiracy is the existence of the conspiracy agreement, not the
identity of those who agree.” Id. Therefore, sufficient evidence
existed to support the existence of a conspiracy.
B. Inconsistent Verdicts
Ríos also argues that the jury’s verdicts are
inconsistent and that his conviction must be overturned. He
contends that acquittal on the substantive charges relating to the
December 29th order is inconsistent with his conviction on the
conspiracy charge, which alleges those substantive crimes as
objects of the conspiracy.
“Consistency in the verdict is not necessary. Each count
in an indictment is regarded as if it was a separate indictment.”
Dunn v. United States, 284 U.S. 390, 393 (1932). Inconsistent
verdicts “may be the result of [jurors’] lenity, coupled with the
Government’s inability to invoke review.” United States v. Powell,
469 U.S. 57, 66 (1984). Therefore, “the best course to take is
simply to insulate jury verdicts from review on this ground.” Id.
at 69; see also United States v. Cianci, 378 F.3d 71, 92 (1st Cir.
2004); United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000)
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(a “jury verdict [which] is internally inconsistent . . . is
essentially unreviewable”).
With regard to charges of conspiracy, “[t]he substantive
crime and the conspiracy to commit it are separate offenses.”
United States v. López, 944 F.2d 33, 41 (1st Cir. 1991). “Although
it may seem inconsistent . . . to convict on the conspiracy charge,
and acquit the same defendant on the substantive charge alleged to
have been the object of the conspiracy, the Supreme Court has made
it clear that verdict inconsistency in itself is not a sufficient
basis for vacating a conviction.” Id. Therefore, so long as there
is “sufficient evidence to sustain a rational verdict of guilt
beyond a reasonable doubt” for a conspiracy charge, “an
inconsistent verdict should stand.” United States v. Figueroa-
Encarnación, 343 F.3d 23, 30 n.4 (1st Cir. 2003) (quoting López,
944 F.2d at 41) (internal quotation marks omitted); see also
Powell, 469 U.S. at 66; United States v. Cornelius, 696 F.3d 1307,
1317 (10th Cir. 2012) (“‘[T]he fact that contrary verdicts are
returned as between a conspiracy count and a count charging a
substantive offense presents no such inconsistency as requires
reversal.’”) (quoting W.E. Shipley, Annotation, Inconsistency of
Criminal Verdicts as Between Different Counts of Indictment or
Information, 18 A.L.R. 3d 259 § 30[a] (1968)).
Ríos does not contend that inconsistent verdicts are
impermissible generally or in all conspiracy cases. Rather, he
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argues that a defendant may be convicted of a conspiracy charge and
acquitted of the substantive charges which form the objects of the
conspiracy only when there is sufficient evidence to support a
conspiracy conviction. In other words, Ríos’s argument concerning
inconsistent verdicts repeats his insufficiency of the evidence
claim. As discussed, the evidence was sufficient to support the
existence of a conspiracy. Therefore, the asserted inconsistency
in the verdict is not grounds for reversal.
C. Variance
Ríos further argues that to the extent there was
sufficient evidence of conspiracy, the evidence demonstrated two
separate conspiracies rather than one overarching conspiracy, as
was charged in the indictment. Therefore, he contends that a
variance occurred which affected his substantial rights, and his
conviction must be reversed.
“A variance occurs when the crime charged remains
unaltered, but the evidence adduced at trial proves different facts
than those alleged in the indictment.” United States v. Yelaun,
541 F.3d 415, 419 (1st Cir. 2008). “[T]o be grounds for reversal,
a variance must be severe enough to affect the defendant’s
substantial rights.” United States v. Mubayyid, 658 F.3d 35, 54
(1st Cir. 2011). “When, as here, a defendant asserts a claim of
variance that is premised on the notion that multiple conspiracies
existed and that his activities were not part of the charged
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conspiracy, the initial question . . . is one of evidentiary
sufficiency.” Rivera-Donate, 682 F.3d at 128 (quoting Pérez-Ruiz,
353 F.3d at 7) (internal quotation marks omitted).
In order to find that a single conspiracy charge existed,
it must have been possible for the jury to “infer from the acts and
statements of the witnesses a single ongoing ‘agreement’ that
embraced [Ríos] and other co-conspirators.” United States v.
Jones, 674 F.3d 88, 92 (1st Cir. 2012). In determining whether the
evidence supports the existence of a single conspiracy, we
ultimately look at the totality of the circumstances. See United
States v. Sánchez-Badillo, 540 F.3d 24, 29 (1st Cir. 2008). “While
the nature of the illegal activity, the method of operation, and
the scope of conspirator involvement are factors to be considered
in determining whether a single conspiracy has been proved, if the
totality of the evidence is adequate to demonstrate that all of the
alleged coconspirators directed their efforts towards the
accomplishment of a common goal or overall plan, then the existence
of a single conspiracy can be found.” United States v. Drougas,
748 F.2d 8, 17 (1st Cir. 1984); see also Sánchez-Badillo, 540 F.3d
at 29 (factors to consider include “(1) the existence of a common
goal, (2) interdependence among the participants, and (3) overlap
among the participants”); United States v. LiCausi, 167 F.3d 36, 45
(1st Cir. 1999) (factors to consider include “the commonality vel
non of the nature, motive, design, implementation, and logistics of
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the illegal activities”). Although conflicting inferences may
arise, so long as the evidence is adequate to permit a reasonable
trier of fact to have found a single conspiracy beyond a reasonable
doubt, the jury’s finding will not be disturbed on appeal. See
Boylan, 898 F.2d at 243.
In this case, a reasonable trier of fact could have found
the existence of a single conspiracy beyond a reasonable doubt.
Both the December 29th order and the February 2nd order had a
common goal: smuggling illegal contraband into MDC. Ríos prepared
both orders and wrapped the contraband in both orders in a similar
fashion with electrical tape, and a partial fingerprint belonging
to Ríos was found on the sticky part of one of the wrappings.
Therefore, a common goal and design, as well as Ríos’s involvement,
could be discerned between the two incidents. See Sánchez-Badillo,
540 F.3d at 29 (discussing the “wide breath” of the common goal
requirement). Although Ríos points to the lack of evidence
regarding the similarity of the CP workers or MDC kitchen inmates
who were present during the two deliveries, that lack of proof does
not undermine a finding that a single conspiracy existed. See
United States v. Cruz-Rodríguez, 541 F.3d 19, 28 (1st Cir. 2008) (a
conspiracy may be proven without establishing that “(1) each
conspirator knew of or had contact with all other members; (2) each
conspirator knew of all the details of the conspiracy or
participated in every act in furtherance of it; or (3) the
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conspiratorial ‘cast of characters’ remained intact throughout the
duration of the entire enterprise”); see also United States v.
Franco-Santiago, 681 F.3d 1, 9 (1st Cir. 2012) (government does
not have to prove that the defendant had “knowledge of every other
participant, or of the details of the conspiracy, but knowledge of
the broader conspiracy’s existence is critical”) (internal
quotation marks and citations omitted).
Accordingly, when viewed in the light most favorable to
the prosecution, the evidence would allow a rational jury to
determine beyond a reasonable doubt that the single conspiracy
charged in the indictment existed and, therefore, a variance did
not exist. See United States v. Maryea, ___ F.3d ___, 2013, WL
150316, at *20 n.4 (1st. Cir. Jan. 15, 2013) (“Since we do not find
that the evidence established an agreement different from that
charged, we need not address the issue of variance.”). Therefore,
“[w]e . . . need not reach the issue of whether [Ríos] was
prejudiced by any variance in our analysis.” Id.III.
For the foregoing reasons, the judgment of the district
court is affirmed.
Affirmed.
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