United States v. Burgos

United States Court of Appeals
For the First Circuit
No. 11-1877
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS BURGOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Torruella, Ripple,* and Howard, Circuit Judges.
Gail S. Strassfeld for appellant.
Katherine Ferguson, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
____________
December 14, 2012
*
Of the Seventh Circuit, sitting by designation.
RIPPLE, Circuit Judge. A jury convicted Carlos Burgos of
one count of conspiring to distribute and to possess with intent to
distribute marijuana, in violation of 21 U.S.C. § 846. Mr. Burgos
challenges the sufficiency of the evidence to support the
conviction and also claims that the district court erred in giving
a “willful blindness” instruction. For the reasons set forth in
the following opinion, we reverse the judgment of the district
court and remand the case to the district court with instructions
to enter a judgment of acquittal.
I
BACKGROUND
A. Facts1
1. Relationship between Mr. Burgos and Ramos
Mr. Burgos worked as a uniformed patrol officer for the
city of Worcester, Massachusetts. Between 2005 and March 2009, he
was assigned to a specific beat known as “Route 13,” which
encompasses a high-crime area known as “Main South.”2 In addition
to uniformed police officers, members of the Worcester Police
Department’s Vice Squad and Gang Unit regularly patrol the area.
1
Because the jury found Mr. Burgos guilty of the charged
crime, we view the evidence, and all reasonable inferences
therefrom, in the light most favorable to the Government. See,
e.g., United States v. Casas, 356 F.3d 104, 126 (1st Cir. 2004).
2
See R.326 at 109.
2
Mr. Burgos’s brother-in-law worked at an automobile
repair shop located in Main South, G & V General Auto Repair
(“G & V”). Both during and after this time, Rolando Ramos also
worked at G & V;3 Ramos was not a mechanic, but rather helped by
“taking money . . . [to] the bank,” “pick[ing] up parts that were
needed in the shop” and “driving the . . . lift.”4 Mr. Burgos’s
brother-in-law described Ramos as “the shop’s tow truck driver.”5
In addition to his legitimate work at G & V, Ramos also ran a
marijuana distribution network.6 Although Ramos never met his
suppliers at G & V, he did meet with customers and transact sales
at that location. Ramos testified that he spoke to at least one of
his co-workers at G & V about his illicit drug business,7 but that
3
Ramos’s brother-in-law, Ramon Valerio, owned G & V.
4
R.327 at 85.
5
R.328-1 at 72.
6
Ramos, who testified on behalf of the Government pursuant
to a plea agreement, estimated that he distributed approximately
2,500 pounds of marijuana between 2005 and his arrest in March
2009. R.327 at 57-58. During the last five months of the
conspiracy, Ramos also began distributing cocaine. Id. at 58. He
obtained a total of approximately four kilograms of cocaine, but,
when asked how much cocaine he sold, Ramos testified that he
“c[ould]n’t say exactly, because [he] was using more than [he] was
selling.” Id.
7
See id. at 81.
3
he did not discuss his drug business with, or conduct any sales in
the presence of, Mr. Burgos’s brother-in-law.8
While his brother-in-law worked at G & V, Mr. Burgos
would go to the garage “very frequent[ly]” to visit and to have his
car repaired.9 On one of these occasions, Ramos overheard
Mr. Burgos tell his brother-in-law that the area was “hot,” which
Ramos took to mean that it was being watched by the police.10
Sometime before April 2006, Mr. Burgos’s brother-in-law
stopped working at G & V, and, consequently, Mr. Burgos used G & V
less frequently for repairs.11 The mechanics at G & V continued to
give Mr. Burgos a discount; however, the extent of the discount
varied among the mechanics, who worked on commission and set their
own prices for car repair services.
Ramos characterized his relationship with Mr. Burgos as
a “friendship.”12 Ramos met some members of Mr. Burgos’s family,
but never went into his house; the only time that Ramos went to
Mr. Burgos’s house was to tow a car. Mr. Burgos never went to
8
See R.328-1 at 43.
9
R.327 at 90.
10
Id. at 94-95.
11
Ramos estimated that Mr. Burgos brought his car in “[a]bout
three times” after his brother-in-law left G & V. Id. at 106.
Earlier in his testimony, Ramos stated that, after Mr. Burgos’s
brother-in-law left G & V, Mr. Burgos brought his car in “[n]ot
often, once a year, or once a month depending on what it was.” Id.
12
Id. at 101.
4
Ramos’s house. On one occasion, Ramos helped Mr. Burgos’s sister
and her infant son by towing her car and repairing a flat tire,
which he did without charging her. The only indication of a
personal relationship, rather than a professional relationship, is
a phone call from Mr. Burgos to Ramos on Christmas day in 2009.13
On other occasions, Mr. Burgos purchased from Ramos a GPS
navigation system for his father and a laptop computer. Ramos sold
both items to Mr. Burgos for less than retail price.14 Mr. Burgos
also purchased a discounted set of vehicle tire rims at G & V.
According to the record, the rims were displayed in the garage with
a “for sale” sign on them;15 it is unclear whether Ramos personally
was selling the rims or merely rang up the sale as an employee of
G & V.
In late 2008, Ramos noticed that a police officer who was
known to work with the Worcester Police Department’s “Gang unit”
was watching G & V through binoculars.16 The next day or so, Ramos
told Mr. Burgos that someone was watching the garage, and
13
That phone call was not recorded.
14
Ramos sold the laptop, which he later testified sold for
$900 to $1,200 in stores, to Mr. Burgos for $200. Id. at 97.
Ramos sold a GPS, which he later testified retailed for “about
$129” to Mr. Burgos’s father, although Mr. Burgos conducted the
transaction, for $60. Id. at 119.
15
Id. at 99-100. The set of four rims, according to Ramos’s
later testimony, retailed for $1,000 to $1,200; Mr. Burgos paid
$400 for them. Id. at 99.
16
Id. at 113-14.
5
Mr. Burgos “told [him] that it could be that the place was hot.”17
Ramos understood “hot” to mean that G & V was being watched; he
told Mr. Burgos, “I’ll be careful.”18
Ramos later testified that he told his drug customers
that he “had the protection of a police officer,” although he did
not “mention that person by name.”19 These statements convinced at
least one individual that it was safe to purchase marijuana from
Ramos. At trial, Ramos disclaimed any truth to these statements:
“[W]henever I was high, I was trying to bluff and appear as if I
was the king.”20 Ramos characterized his statements as “bragging
or gloating” and explained that, contrary to what he told people,
he did not “have a cop under [his] wing.”21 After being arrested,
Ramos told one of his drug customers, who also had been arrested,
that “he d[id]n’t understand why the cop [Mr. Burgos] got arrested
with [them].”22 Ramos also testified that he “never” told
Mr. Burgos that he was a drug dealer, “never” discussed drugs with
17
Id. at 115.
18
Id. at 116.
19
Id. at 124.
20
Id. Ramos testified that he used narcotics, including
cocaine and Percocet, on a daily basis.
21
R.328-1 at 33.
22
Id. at 56; see also id. at 67 (drug customer agreeing that
Ramos had stated that he (Ramos) “didn’t know why [Mr. Burgos] got
arrested, because [Mr. Burgos] didn’t do anything”).
6
him and did not engage in any drug deals when Mr. Burgos was
present because he did not want Mr. Burgos to know about his drug
business.23
2. Investigation of Ramos
Beginning in early 2009, a multi-agency drug task force
began investigating Ramos’s drug distribution network. Officers
from several agencies, including the Worcester Police Department,
the Massachusetts State Police, the Drug Enforcement Administration
(“DEA”) and the United States Postal Inspection Service conducted
surveillance of Ramos at G & V, as well as at other locations. As
part of their surveillance efforts, the officers drove unmarked
vehicles. Of particular relevance to this appeal is that Worcester
Detective Kellen Smith drove a white Ford Explorer, Worcester
Detective Jeff Carlson drove a maroon Dodge Intrepid and
Massachusetts State Police Officer Nicholas Nason drove a green
Ford Escape.
On the morning of January 14, 2009, the officers
conducting surveillance on G & V saw Mr. Burgos’s marked police
vehicle parked in a parking lot on the same street as the garage.24
They watched as Ramos’s vehicle drove up next to Mr. Burgos’s, and
23
R.327 at 116; R.328-1 at 40, 19.
24
This was not unusual; one of the officers later agreed that
“officers from time to time park[ed] in the . . . parking lot.”
R.326 at 153.
7
the two men proceeded to have a five- or ten-minute conversation.
According to Ramos’s later testimony, Ramos had seen Mr. Burgos
sitting in his marked police vehicle; he pulled next to Mr. Burgos
and told him he “was being followed by cars,” one red and one
white, and he asked Mr. Burgos who was following him.25 At the time
he asked, Ramos was “75 to 90 percent [certain] that they were
police cars.”26 Ramos later testified that he “wanted to make sure
that [he] knew who it was that was following [him].”27 According
to Ramos, the meeting was not prearranged; when asked why Ramos
turned to Mr. Burgos to obtain that information, he testified: “I
don’t know. I saw him, and I went up to him and asked him.”28
Mr. Burgos told Ramos “that he was going to find out what they
were.”29
Later that day, Ramos called Mr. Burgos; that
conversation was captured by an existing wiretap. That transcript,
which was introduced at trial, reads as follows:30
BURGOS: [Aside . . . hold on, no . . .] Hello!
25
R.327 at 128.
26
Id. at 129.
27
Id.
28
Id.
29
Id.
30
The conversation was in Spanish, but later was translated
into English.
8
RAMOS: Tell me, Carlos.
BURGOS: How are you? What’s up?
RAMOS: Tell me, did you find out about
that for me, or not?
BURGOS: Uh . . . yes, but no . . . I don’t
know if for there . . . there were
two. Uh . . . the white one and the
red one.
RAMOS: Yes, but I saw that one already,
there’s the white one and a green
van, too.
BURGOS: [Unintelligible].
RAMOS: A green one. Did you hear?
BURGOS: But I don’t know if it is for over
there, but, uh . . . they’re down
there, yes.
RAMOS: I know they’re down here.
BURGOS: Yes, so let’s take it easy for now.
RAMOS: Yes, I know, I know, I know . . .
that’s why I told you that. I know.
BURGOS: Yes, yes, yes . . .
RAMOS: Okay.
BURGOS: Okay?
RAMOS: Okay.
BURGOS: Okay. Bye.[31]
31
Id. at 130-31.
9
Ramos later testified that he understood that Mr. Burgos was
telling him that police were observing either Ramos or G & V,32 and
telling him “[t]hat [he] had to take it easy if [he] was doing
something against the law.”33 About an hour after that conversation
with Mr. Burgos, Ramos called his marijuana supplier and informed
him that police were in the area. Shortly after that, Ramos called
a customer and gave him similar information. After these
conversations, which also were captured by the wiretap, the
officers changed their surveillance vehicles. At no point in their
investigation did the officers focus any surveillance efforts on
Mr. Burgos.
After additional investigation, the officers executed
search warrants on Ramos’s house, where they recovered marijuana,
cocaine and a firearm.
B. District Court Proceedings
A grand jury charged Mr. Burgos with one count of
conspiring to distribute and to possess with intent to distribute
marijuana. Ramos and Detectives Smith and Carlson were the chief
witnesses for the Government. In addition to the events set forth
32
Ramos testified that he understood Mr. Burgos to mean “that
we were being watched,” but counsel did not draw out any further
explanation as to whether Ramos meant “we” to mean G & V, his
marijuana distribution network or Ramos himself. Id. at 132.
33
Id. at 133.
10
above, Detectives Smith and Carlson testified concerning their
interactions with Mr. Burgos while serving on the police force
together.
Detective Smith testified that he began working in Route
13 when he was serving in the Community Impact Division. He
explained that he “concentrated a lot of effort and time there in
the Antiviolence Unit, and in the vice squad we do a lot of work
down there as well.”34 Before he joined the Vice Squad, Detective
Smith would see Mr. Burgos “quite frequently,” but “didn’t work
directly with [Mr. Burgos] on many occasions.”35 As an officer on
the Vice Squad, Detective Smith saw Mr. Burgos “[s]everal times a
week”; he stated that “[a] typical area that I would run into
Carlos was at the -- the pumps,” by which Detective Smith meant
“[t]he gas pumps at the Worcester Police headquarters.”36 Detective
Smith also provided general information about the Vice Squad.
Detective Smith testified that the Vice Squad conducts “[n]arcotics
investigations, prostitution investigations, and illegal gambling
investigations.”37 He further stated that the Vice Squad spends
approximately ninety percent of its time on narcotics
investigations, nine percent on prostitution-related crimes and “a
34
R.326 at 110.
35
Id.
36
Id. at 111, 113.
37
Id. at 106.
11
very small fraction” on illegal gaming and that he was familiar
with those percentages before joining the Vice Squad.38
Detective Carlson, who has “worked [his] whole career in
the Main South area, both in the Community Impact Division and in
the vice squad,” testified that, “[w]hen [he] was assigned to the
Impact Division, [he] would encounter Carlos almost on a daily
basis throughout the day.”39 When Detective Carlson was assigned
to the Vice Squad, Mr. Burgos “congratulated” him and told
Detective Carlson to “do a good job up there.”40 After
Detective Carlson joined the Vice Squad, however, he and Mr. Burgos
“didn’t really work on operations together.”41 Detective Carlson
explained that they
would encounter each other on the street on a
fairly regular basis. Again, route officers
frequently assist the vice squad with stops and
arrests; and if there was some type of emergency
call and I wasn’t tied up doing vice squad duties,
I would certainly go to that area and assist route
officers with their -- their 911 call.”[42]
At the close of the Government’s evidence, Mr. Burgos
moved for acquittal under Federal Rule of Criminal Procedure 29.
The district court denied the motion. Mr. Burgos did not call any
38
Id. at 107.
39
Id. at 178.
40
Id. at 179.
41
Id. at 181.
42
Id.
12
witnesses. At the request of the Government, and over Mr. Burgos’s
objection, the court gave the jury a willful blindness instruction;
it stated:
The second element that the government must
prove beyond a reasonable doubt is that the
defendant knew the essential purpose or nature of
the conspiracy charged in the indictment.
The government must prove beyond a reasonable
doubt that the defendant knew that the essential
purpose and general aim of the conspiracy was: (1)
to possess a controlled substance with intent to
distribute it or (2) to distribute a controlled
substance. Although you need not find that the
defendant knew that the conspiracy involved
marijuana specifically, you must find that he knew
it involved a controlled substance. It is not
enough for the government to prove merely that the
defendant knew that the conspiracy involved
something illegal.
It is, of course, impossible to prove directly
the inner workings of the human mind. Thus, in
deciding whether the defendant acted knowingly, you
may consider his statements and actions, the
surrounding facts and circumstances, and any
reasonable inferences that may be drawn from those
facts and circumstances.
You may infer that the defendant had knowledge
of a particular fact if you find beyond a
reasonable doubt that he deliberately avoided
learning a fact that otherwise would have been
obvious to him, under the circumstances outlined
below.
In order to infer knowledge of a fact under
such circumstances, you must find beyond a
reasonable doubt that the government has proved two
things:
First, that the defendant was aware of a high
probability of the existence of a fact; and
13
Second, that the defendant consciously and
deliberately avoided learning of that fact; that
is, that he willfully made himself blind to the
existence of the fact.
You may draw that inference, but you do not
have to; it is entirely up to you.
Conscious and deliberate avoidance of
knowledge may be established by proof that the
defendant deliberately refused to ask questions
about, or make inquiries about, or investigate,
suspicious activities once his suspicion had been
aroused.
Mere negligence or mistake in failing to
investigate or learn a fact is not enough. Thus,
it is not enough that a reasonable person in the
defendant’s position would have known a fact, or
would have made further inquiry; you must find that
the defendant consciously and deliberately remained
ignorant of that fact.
It is not enough for the government to prove
that the defendant knew, or was willfully blind to,
the fact that something illegal was occurring.
Rather, the government must prove beyond a
reasonable doubt that the defendant knew, or was
willfully blind to, the fact that the illegal
activity involved a controlled substance.
This instruction applies only to the
“knowledge” element of the conspiracy. The third
element of a conspiracy -- that the defendant
willfully joined the conspiracy cannot be . . .
established by willful blindness.[43]
The jury convicted Mr. Burgos on the single count of the
indictment, and the district court denied his renewed motion for
acquittal. Mr. Burgos timely appealed.
43
R.329 at 63-66.
14
II
DISCUSSION
We review de novo the district court’s denial of a Rule
29 motion for judgment of acquittal, viewing all the evidence in
the light most favorable to the jury’s verdict. United States v.
Pérez-Meléndez, 599 F.3d 31, 40 (1st Cir. 2010). The ultimate
question for this court is whether the evidence, both direct and
circumstantial, and all plausible inferences drawn therefrom, would
allow a rational jury to conclude that the Government had proven
each element of the crime beyond a reasonable doubt. Id.A. Standard for Sufficiency of the Evidence
1.
Although the standard of review incorporates
“prosecution-friendly overtones . . . , appellate oversight of
sufficiency challenges is not an empty ritual.” United States v.
Ortiz, 966 F.2d 707, 711-12 (1st Cir. 1992). This is because the
reasonable-doubt standard “is a prime instrument for reducing the
risk of convictions resting on factual error.” In re Winship, 397
U.S. 358, 363 (1970). As the Court explained in Winship,
The requirement of proof beyond a
reasonable doubt has this vital role in our
criminal procedure for cogent reasons. The
accused during a criminal prosecution has at
stake interest of immense importance, both
because of the possibility that he may lose
his liberty upon conviction and because of the
certainty that he would be stigmatized by the
15
conviction. Accordingly, a society that
values the good name and freedom of every
individual should not condemn a man for
commission of a crime when there is reasonable
doubt about his guilt. . . . To this end, the
reasonable-doubt standard is indispensable,
for it impresses on the trier of fact the
necessity of reaching a subjective state of
certitude of the facts in issue.
Id. at 363-64 (citation omitted) (internal quotation marks
omitted). The reasoanble-doubt standard not only gives “concrete
substance for the presumption of innocence,” id. at 363, but also
gives the citizenry confidence in the fairness of its criminal
justice system:
[U]se of the reasonable-doubt standard is
indispensable to command the respect and
confidence of the community in applications of
the criminal law. It is critical that the
moral force of the criminal law not be diluted
by a standard of proof that leaves people in
doubt whether innocent men are being
condemned. It is also important in our free
society that every individual going about his
ordinary affairs have confidence that his
government cannot adjudge him guilty of a
criminal offense without convincing a proper
factfinder of his guilt with utmost certainty.
Id. at 364.
“Despite the importance of the reasonable doubt standard
in safeguarding the rights of criminal defendants, the term has
eluded clear definition.” United States v. Olmstead, 832 F.2d 642,
645 (1st Cir. 1987). Indeed, we have observed that “[m]ost efforts
at clarification result in further obfuscation of the concept.”
Id. Nevertheless, “we have attempted to describe the level of
16
certainty necessary to support a criminal conviction.” Morgan v.
Dickhaut, 677 F.3d 39, 47 (1st Cir. 2012). We will “not give
credence to ‘evidentiary interpretations and illations that are
unreasonable, insupportable, or overly speculative.’” Leftwich v.
Maloney, 532 F.3d 20, 23 (1st Cir. 2008) (quoting United States v.
Spinney, 65 F.3d 231, 234 (1st Cir. 1995)). The existence of some
metaphysical doubt, however, does not require a verdict in favor of
the accused; “it is enough that all ‘reasonable’ doubts be
excluded.” Stewart v. Coalter, 48 F.3d 610, 616 (1st Cir. 1995).
A verdict satisfying this standard “may be supported by
circumstantial evidence alone,” Morgan, 677 F.3d at 47, but we also
have noted the limitations of circumstantial evidence: “[W]e are
loath to stack inference upon inference in order to uphold the
jury’s verdict.” United States v. Valerio, 48 F.3d 58, 64 (1st
Cir. 1995). In the end,
[i]f the evidence viewed in the light most
favorable to the verdict gives equal or nearly
equal circumstantial support to a theory of guilt
and a theory of innocence of the crime charged,
this court must reverse the conviction. This is so
because . . . where an equal or nearly equal theory
of guilt and a theory of innocence is supported by
the evidence viewed in the light most favorable to
the prosecution, a reasonable jury must necessarily
entertain a reasonable doubt.
United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. 1995)
(alterations in original) (internal quotation marks omitted).
2.
17
In this case, Mr. Burgos was convicted of conspiracy to
distribute and to possess with intent to distribute marijuana. To
affirm his conviction, we must determine whether a reasonable jury
could conclude that the Government proved beyond a reasonable doubt
each element of the crime: (1) “a conspiracy existed,” (2)
Mr. Burgos “had knowledge of the conspiracy” and (3) Mr. Burgos
“knowingly and voluntarily participated in the conspiracy.” United
States v. Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011). With
respect to the second element, the Government must establish that
the defendant had knowledge of the crime charged. Pérez-Meléndez,
599 F.3d at 43. Showing that the defendant had knowledge of
generalized illegality is insufficient, id.; the Government must
show that the defendant knew the conspiracy involved a controlled
substance, but need not show that the defendant knew the specific
controlled substance being distributed, id. at 41.
The Government may satisfy its burden in two ways: with
evidence of actual knowledge or with evidence of willful blindness.
Id. (“Willful blindness serves as an alternate theory on which the
government may prove knowledge.”). To establish willful blindness,
the Government must prove that Mr. Burgos “was aware of a high
probability” of the existence of a conspiracy to distribute
controlled substances and that Mr. Burgos “consciously and
deliberately avoided learning of that fact.” United States v.
Lizardo, 445 F.3d 73, 85 n.7 (1st Cir. 2006). The Government can
18
satisfy its burden with direct or circumstantial evidence, but, as
we already have stated, “charges of conspiracy cannot be made out
by piling inference upon inference.” United States v. DeLutis, 722
F.2d 902, 907 (1st Cir. 1983) (citing Direct Sales Co. v. United
States, 319 U.S. 703, 711 (1943)).
Turning to the third element of the conspiracy
charge--whether Mr. Burgos knowingly and voluntarily participated
in the conspiracy--“the evidence must establish that the defendant
both intended to join the conspiracy and intended to effectuate the
objects of the conspiracy.” Dellosantos, 649 F.3d at 116. A
defendant “must in some sense promote [the conspiracy] himself,
make it his own, have a stake in its outcome.” United States v.
Aponte-Suárez, 905 F.2d 483, 491 (1st Cir. 1990) (alteration in
original) (internal quotation marks omitted). Although a financial
stake in the success of the conspiracy is not “essential” to
establish this element, United States v. Isabel, 945 F.2d 1193,
1203 (1st Cir. 1991), we have suggested that it is not reasonable
to conclude that a defendant who is “indifferent” to the conspiracy
was a member of it, see Dellosantos, 649 F.3d at 122-23 & n.15.
Mr. Burgos concedes the existence of a conspiracy; he
challenges, however, the Government’s proof with respect to the
second and third elements of the charged conspiracy. We turn
first, therefore, to the element of knowledge.
19
B. Evidence at Trial--Knowledge
1.
The Government maintains that the evidence presented at
trial would allow a reasonable jury to conclude beyond a reasonable
doubt that Mr. Burgos had actual knowledge of, or was willfully
blind to, Ramos’s drug operations. The Government points to three
pieces of evidence that, it believes, taken together, create an
inference of knowledge on Mr. Burgos’s part. The Government argues
that,
[g]iven Burgos’s regular interaction with the
Vice Squad on his assigned patrol route, which was
within an area replete with drug crime, and his
comments to Carlson, which suggested a familiarity
with the work of the Vice Squad, a jury could
reasonably have inferred that Burgos knew that the
Vice Squad investigated primarily drug crime. And
given this inference, the jury could reasonably
have inferred that once Burgos discovered that the
Vice Squad was surveilling Ramos, Burgos knew or
was willfully blind to the existence of Ramos’s
drug distribution activity.[44]
When we evaluate the evidence presented at trial,
however, we are unable to conclude that the inferences drawn by the
Government, and apparently by the jury, are supported by the
evidence. First, Mr. Burgos’s “regular interaction with the Vice
Squad on his assigned patrol route” did not establish Mr. Burgos’s
knowledge of the Vice Squad’s work distribution. Detective Smith
testified that, once he was assigned to the Vice Squad, he
44
Appellee’s Br. 17.
20
encountered Mr. Burgos “[s]everal times a week,” but that a typical
encounter was at “[t]he gas pumps at the Worcester Police
Headquarters.”45 Detective Carlson related that, when he was
assigned to the Community Impact Division, he “would encounter
[Mr. Burgos] almost on a daily basis throughout the day.”46 Once
Detective Carlson joined the Vice Squad, however, he and Mr. Burgos
“didn’t really work on operations together.”47 They did “encounter
each other on the street on a fairly regular basis”; Detective
Carlson explained that “route officers frequently assist[ed] the
vice squad with stops and arrests,” and, when Vice Squad members
were available, they would assist route officers with their 911
calls.48 Detective Carlson did not quantify how many, or what
percentage, of the arrests with which Mr. Burgos assisted were drug
arrests. Nor did he further explain what percentage of their
encounters on the street were incidents of Detective Carlson
assisting Mr. Burgos, as opposed to vice versa. From this
evidence, a jury reasonably could infer that Mr. Burgos knew
Detectives Smith and Carlson and that he also knew the types of
crimes that the Vice Squad investigated. None of this evidence
suggests, however, that Mr. Burgos knew what percentage of the Vice
45
R.326 at 111, 113.
46
Id. at 178.
47
Id. at 181.
48
Id.21
Squad’s time and effort was devoted to drug crimes, as opposed to
prostitution or gambling.
The same is true with the evidence concerning the area
Mr. Burgos patrolled. The Government points to the fact that the
Main South area was “an area replete with drug crime” to establish
that Mr. Burgos must have known that the Vice Squad was
investigating drug crimes at G & V.49 Evidence at trial
established, however, that Main South was known to be a “high
crime” area and that not only drug crimes, but also prostitution
and other crimes were prevalent.50
The Government also believes that Mr. Burgos’s comments
to Detective Carlson when he was promoted to the Vice Squad support
the inference that Mr. Burgos knew that the Vice Squad dedicated
nearly all of its time to drug investigations. Mr. Burgos’s vague
laudatory statements congratulating two co-workers on their
promotions--“you and Kellen, you guys do a good job up there,”51--
suggest some familiarity with the Vice Squad, but hardly suggests
that he was familiar with the distribution of the Vice Squad’s
workload.
Viewing this evidence in the light most favorable to the
Government, a reasonable jury could conclude, beyond a reasonable
49
Appellee’s Br. 17.
50
R.326 at 60, 153.
51
Id. at 179.
22
doubt, that Mr. Burgos knew that Main South was an area of high
crime, and specifically high drug crime, that the Vice Squad
investigated crimes involving drugs, prostitution and gaming, and
that the Vice Squad was surveilling G & V. From this, a jury
certainly could infer that Mr. Burgos was aware that the Vice Squad
was investigating G & V for possible criminal activity that fell
within its purview--drug crimes, prostitution or gaming. None of
the evidence, however, establishes, beyond a reasonable doubt, that
the Vice Squad was investigating a drug crime, as opposed to
prostitution or gaming. As we have stated previously, “[i]f the
evidence viewed in the light most favorable to the verdict gives
equal or nearly equal circumstantial support to a theory of guilt
and a theory of innocence of the crime charged,” this court must
reverse the conviction. Flores-Rivera, 56 F.3d at 323 (alteration
in original) (internal quotation marks omitted). Without evidence
that pointed to the likelihood that the Vice Squad was
investigating drug crimes, the jury’s verdict cannot be sustained.
2.
The Government next asserts that jury reasonably could
infer that Mr. Burgos, as an experienced police officer who
patrolled a high crime area, “was familiar with indicia of drug
23
dealing.”52 The Government further contends that, “[g]iven that
surveillance officers observed drug-related activity occurring at
G & V, . . . the jury could reasonably have drawn the further
inference that Burgos knew about or willfully blinded himself to
the robust drug trafficking operation that Ramos was running
there.”53
The Government, however, neither identifies what these
“indicia of drug dealing” might be, nor points to any evidence of
such indicia in the record. Turning to the drug-related activity
at G & V that was observed by surveillance officers, the brief
mentions only one instance: “Ramos walking around in front of
G & V, apparently engaged in counter-surveillance.”54 Mr. Burgos,
the Government continues, was on patrol in the area on the day that
surveillance officers observed this behavior. Notably, however,
the Government does not point to any testimony that Mr. Burgos
passed by G & V in his patrol car while Ramos was engaging in this
activity, much less that Mr. Burgos saw Ramos or made any contact
with him. The Government points to no other drug-related activity
that was seen by surveillance officers that also was seen by
Mr. Burgos. Because the record does not establish that Mr. Burgos
observed any drug-related activity at G & V, his observations
52
Appellee’s Br. 19.
53
Id.54
Id. at 18 (citing R.326 at 110-13).
24
cannot be a basis for establishing his knowledge or willful
blindness to such activity.
3.
The Government asserts that, based upon “the nature and
frequency of Burgos’s and Ramos’s interactions, as well as Burgos’s
police work in an area rife with drug activity, Burgos at the very
least knew or willfully blinded himself to Ramos’s daily cocaine
and Percocet use.”55 The evidence establishes that, once
Mr. Burgos’s brother-in-law left G & V sometime before April 2006,
Mr. Burgos visited G & V with less frequency. Ramos estimated that
Mr. Burgos brought his car in “[n]ot often, once a year, or once a
month depending on what it was”;56 he stated later in his testimony
that he thought Mr. Burgos came in “[a]bout three times” after his
brother-in-law left G & V.57 The Government does not point to any
other evidence that suggests that Mr. Burgos’s visits were more
frequent. Moreover, there is no evidence in the record to suggest
that Mr. Burgos and Ramos interacted socially with one another.
The record similarly is devoid of any testimony concerning the
physical characteristics of regular cocaine or Percocet users and
whether Ramos displayed any of those characteristics.
55
Appellee’s Br. 20 (citations omitted).
56
R.327 at 106.
57
Id.25
Consequently, contrary to the Government’s assertion, this is not
the type of “close relationship” that “can, as part of a larger
package of proof, assist in supporting an inference of involvement
in illicit activity.” Ortiz, 966 F.2d at 713 (involving a
defendant who was brother-in-law to another conspirator); United
States v. DiMarzo, 80 F.3d 656, 661 (1st Cir. 1996) (holding that,
“[t]ogether with the incriminating circumstantial evidence,” the
fact that the defendant, “‘the lookout,’” was brother to the
“‘pointman’” “permitted a rational jury inference that [the
defendant] well knew he was involved in a drug deal”).58
58
In a footnote, the Government argues that other aspects of
Ramos’s testimony, namely his informing “everyone that [he] had the
protection of a police officer,” id. at 124, support the inference
that Mr. Burgos was the officer in Ramos’s pocket and that
Mr. Burgos knew of the drug conspiracy. It acknowledges that Ramos
also testified that, when he made the statements that he had an
officer “under [his] wing,” he merely was engaging in braggadocio.
R.328-1 at 33. The Government argues, however, that the jury was
free to disregard this latter testimony. See Appellee’s Br. 21
n.11. Although we agree with the general proposition that “a jury
has the prerogative to credit some parts of a witness’s testimony
and disregard other potentially contradictory portions,” United
States v. Alicea, 205 F.3d 480, 483 (1st Cir. 2000), the Government
explicitly credited Ramos’s testimony--that he did not have
Mr. Burgos under his wing--in its closing argument to the jury:
And it’s also true that Ramos didn’t have Burgos
under his wing or under his thumb. The prosecution
doesn’t have to prove that in order to prove Burgos’s
guilty of the crime of conspiracy. The prosecution only
has to prove that Burgos willfully joined a marijuana
conspiracy. Burgos didn’t need to be under Ramos’s wing
or under his thumb in order to have joined the
conspiracy.
R.329 at 47-48 (emphasis added). Consequently, having made the
(continued...)
26
4.
The Government next argues that, based on Ramos’s
questions to Mr. Burgos about police surveillance, it is reasonable
to conclude that Mr. Burgos knew of, or was willfully blind to,
Ramos’s drug distribution efforts. The Government invites the
court’s attention to two pieces of evidence. First, in late 2008,
Ramos noticed that an individual who worked with the “Gang unit”
was watching the garage through binoculars.59 When Ramos told
Mr. Burgos about seeing the officer, Mr. Burgos “told [him] that it
could be that the place was hot.”60 Ramos understood “hot” to mean
that the garage was being watched; he told Mr. Burgos, “I’ll be
careful.”61 Second, on January 14, 2009, Ramos asked Mr. Burgos
about the white, red and green vehicles that he had noticed
following him. The relevant conversation was captured by a
wiretap, and the transcript reads as follows:
BURGOS: [Aside . . . hold on, no . . .] Hello!
RAMOS: Tell me, Carlos.
BURGOS: How are you? What’s up?
58
(...continued)
argument to the jury that Ramos’s testimony was true, we do not
believe it should now be heard to suggest that the jury was free to
discount that testimony.
59
R.327 at 114.
60
Id. at 115.
61
Id. at 116.
27
RAMOS: Tell me, did you find out about that for
me, or not?
BURGOS: Uh . . . yes, but no . . . I don’t know
if for there . . . there were two. Uh
. . . the white one and the red one.
RAMOS: Yes, but I saw that one already, there’s
the white one and a green van, too.
BURGOS: [Unintelligible].
RAMOS: A green one. Did you hear?
BURGOS: But I don’t know if it is for over there,
but, uh . . . they’re down there, yes.
RAMOS: I know they’re down here.
BURGOS: Yes, so let’s take it easy for now.
RAMOS: Yes, I know, I know, I know . . . that’s
why I told you that. I know.
BURGOS: Yes, yes, yes . . .
RAMOS: Okay.
BURGOS: Okay?
RAMOS: Okay.
BURGOS: Okay. Bye.[62]
The Government asserts that this conversation supports the
conclusion that Mr. Burgos knew of, or was willfully blind to,
Ramos’s distribution of drugs. Again, these conversations may
indicate that Mr. Burgos was aware of, or willfully blind to, some
criminal behavior on behalf of Ramos; however, they do not
62
Id. at 130-31.
28
establish any knowledge or red flags with respect to drug
activity.63
5.
To this point, we have addressed the probative value of
individual pieces of evidence introduced by the Government. It is,
however, “the cumulative probability of guilt created by all the
evidence, rather than the probability of guilt created by a single
piece of evidence, that is the touchstone in deciding whether a
reasonable jury could find the defendant guilty beyond a reasonable
doubt.” United States v. Williams, 698 F.3d 374, 379 (7th Cir.
2012). We find that in evaluating the evidence as a whole,
however, we must stack inference upon inference in such a way as to
make the conclusion that Mr. Burgos had knowledge of, or was
willfully blind to, Ramos’s drug distribution too speculative to
sustain Mr. Burgos’s conviction. These inferences include: (1)
that, by virtue of his experience as a police officer and his work
in the Main South area, Mr. Burgos knew the workload distribution
of the Vice Squad, (2) that, given his friendship with Ramos,
63
Tellingly, Ramos was asked on direct examination what he
understood Mr. Burgos to have meant by “Yes, so let’s take it easy
for now.” Id. at 132. He responded by saying that he understood
Mr. Burgos to have meant “[t]hat I had to take it easy if I was
doing something against the law.” Id. at 133 (emphasis added). In
other words, Ramos understood Mr. Burgos to be offering advice
against the possibility that Ramos was involved in “something”
illegal.
29
Mr. Burgos must have known about Ramos’s drug use and, therefore,
further should have suspected his drug dealing, (3) that, by virtue
of his patrolling the Main South area, he must have seen indicia of
drug activity at G & V and (4) that, because Ramos asked if he was
being watched, and Mr. Burgos confirmed that surveillance officers
were in the area and stated “let’s take it easy for now,”
Mr. Burgos must have been privy to Ramos’s drug distribution
activities. As we concluded in DeLutis, “[t]he piling of these
unfounded and unsupported inferences on top of each other by the
government is clearly contrary” to our own case law and that of the
Supreme Court. 722 F.2d at 907.
Indeed, we perceive little to distinguish the type of
evidence at issue here from that in Pérez-Meléndez, which we
concluded was insufficient to sustain the conviction for aiding and
abetting possession with intent to distribute cocaine. In
Pérez-Meléndez, based on an anonymous tip, DEA agents approached a
truck driven by Pérez-Meléndez and, after securing Pérez-Meléndez’s
consent to search the vehicle, discovered forty kilograms of
cocaine hidden in pallets containing reams of paper. 599 F.3d at
34. In his statement to the agents, Pérez-Meléndez stated that he
was an independent truck driver, who had received a telephone call
from co-defendant Rivera-Ríos that morning to determine if
Pérez-Meléndez could work as a truck driver that day. Id. at 35.
Pérez-Meléndez’s statement was not consistent with respect to (1)
30
who had rented the truck, (2) who (he or Rivera-Ríos) had received
the calls from the individual giving delivery instructions and (3)
the extent to which he and Rivera-Ríos had worked together in the
past. Id. at 35-36. Although acknowledging that much of the
transaction was suspicious, we nevertheless concluded that the
Government had not met its burden of establishing the elements of
aiding and abetting possession with intent to distribute narcotics:
Some of the inferences the district court
draws are certainly plausible, but their
significance is limited. A rational factfinder
could have drawn a plausible inference that
appellants knew they were involved in an illegal
activity because appellants’ statements and
omissions concerning their job and the manner in
which they were hired for and performed that work
earlier the same day are suspicious. However, we
find that a rational factfinder could not have
concluded beyond a reasonable doubt that appellants
committed the charged crime because reasonable
doubt should have remained that (1) appellants knew
that the precise nature of that activity involved
controlled substances generally or cocaine
specifically and (2) appellants were aware of a
high probability that illegal drugs were packaged
within the pallets and consciously and deliberately
avoided learning of that fact.
. . . .
. . . Any conclusion by the jury beyond that,
specifically imputing to appellants knowledge of or
willful blindness to the contents of the pallets,
was the product of pure speculation. This is
particularly true when one considers that the
burden is proof beyond a reasonable doubt.
The evidence the government presented in this
case would have been just as consistent with that
of a case involving the smuggling of contraband
other than a controlled substance. This contraband
could plausibly have been other goods, such as
31
weapons, stolen jewels or computer chips,
counterfeit currency, diamonds and other precious
minerals from Africa, cigars from Cuba, fuel, or
child pornography. Here the government presented
no evidence at trial that could have led a
reasonable jury to find beyond a reasonable doubt
that (1) appellants knew whatever contraband may
have been present involved a controlled substance
or (2) appellants were aware of a high probability
that illegal drugs were packaged within the pallets
and consciously and deliberately avoided learning
of that fact.
Id. at 43-46 (citations omitted).
We believe the same result obtains here. The combination
of both the Gang Unit and the Vice Squad surveilling G & V, Ramos’s
ability to secure items at well-below retail cost for resale to
Mr. Burgos, and Ramos’s inquiries, on two occasions, concerning
surveillance, were warning signs that something illegal was afoot
at G & V. There simply is no evidence, however, that Mr. Burgos
knew, or was aware of a high probability, that the illegal actions
involved drugs.
On the evidence before us, we cannot say that a rational
jury could have concluded, beyond a reasonable doubt, that
Mr. Burgos had knowledge of, or was willfully blind to, the
marijuana distribution operation being run by Ramos out of G & V.
Consequently, the Government did not meet its burden of proof with
respect to the second element of the charged conspiracy, and
Mr. Burgos’s conviction on that charge must be vacated.64
64
Because Mr. Burgos prevailed on his sufficiency of the
(continued...)
32
Conclusion
For the reasons set forth above, the judgment of the
district court is reversed, and the case is remanded with
instructions to enter a judgment of acquittal.
REVERSED and REMANDED
64
(...continued)
evidence argument concerning the second element of conspiracy, we
do not reach the issue of the sufficiency of the evidence with
respect to the third element of conspiracy--Mr. Burgos’s willing
participation therein--nor do we address any instructional error.
33