PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-3768
_____________
UNITED STATES OF AMERICA,
Appellant
v.
RICHARD CARABALLO-RODRIGUEZ
On appeal from the United States District Court
For the Eastern District of Pennsylvania
(District Court No. 2-08-cr-00328-002)
District Judge: Honorable Cynthia M. Rufe
Argued on March 5, 2013 before Merits Panel
Court Ordered Sua Sponte Rehearing En Banc on
March 12, 2013
Argued En Banc on May 29, 2013
Before: McKEE, Chief Judge, SCIRICA, RENDELL,
AMBRO, FUENTES, SMITH, FISHER, CHAGARES,
JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE
and SHWARTZ, Circuit Judges.
(Filed: August 8, 2013)
Zane David Memeger, Esquire
United States Attorney
Robert Zauzmer, Esquire (Argued)
Assistant United States Attorney
Chief of Appeals
Joseph T. Labrum, III, Esquire
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellant
Christopher D. Warren, Esquire (Argued)
1500 Walnut Street, Suite 1900
Philadelphia, PA 19102
Counsel for Appellee
2
OPINION
RENDELL, Circuit Judge:
This case is the last in a long line of cases in which the
parties and the district courts have had to divine whether,
notwithstanding the jury’s guilty verdict, there was sufficient
evidence—and whether we would conclude there was
sufficient evidence—for the jury to have determined that the
defendant knew that the object of the conspiracy in which he
participated was a controlled substance, as opposed to some
other type of contraband. We say that this case is “the last”
because, after considerable thought, we have concluded that,
in many of these opinions, we failed to apply the deferential
standard the law requires on review of sufficiency of the
evidence challenges. In those cases, we employed what we
have called a “strict approach”—which has been criticized by
other judges and commentators1—and in doing so, failed to
apply the proper deferential standard that we routinely apply
in reviewing other criminal cases when a defendant
challenges the sufficiency of the evidence.
1
See, e.g., United States v. Sliwo, 620 F.3d 630, 641 n.3 (6th
Cir. 2010) (Katz, J., dissenting); Diana Eisner Lipschutz,
Comment, “Are You Telling Me Those Computer Chips Were
Really Heroin?”: A Look at the Third Circuit’s Scope of
Appellate Review for Accomplice Liability in Controlled
Substances Crimes, 82 Temp. L. Rev. 497, 519 (2009).
3
A jury concluded that Defendant Richard Caraballo-
Rodriguez knew that he was transporting a controlled
substance when he participated in a conspiracy to transport
approximately five million dollars’ worth of cocaine from
San Juan, Puerto Rico to Philadelphia, Pennsylvania.2
Relying on the reasoning of our previous opinions in
considering Caraballo-Rodriguez’s post-trial motion for
acquittal, the District Court disagreed with the jury’s verdict
because “the evidence only shows that Caraballo-Rodriguez
knew that he was being entrusted with a large suitcase which
could contain [] a ‘wide variety of contraband items . . .
including stolen jewelry, laundered money, stolen computer
chips, and counterfeiting plates.’” (Supp. App. 44 (quoting
United States v. Idowu, 157 F.3d 265, 268 (3d Cir. 1998)).)
The District Court therefore granted Caraballo-Rodriguez’s
motion and entered a judgment of acquittal.
After hearing oral argument in this case, we voted to
rehear the case en banc to address “our circuit’s seemingly
2
In this case, the government requested that the jury be
instructed on willful blindness, which the District Court
granted. Thus, the government could satisfy the “knowledge”
requirement by demonstrating actual knowledge or willful
blindness, which is “a subjective state of mind that is deemed
to satisfy a scienter requirement of knowledge.” United
States v. Wert-Ruiz, 228 F.3d 250, 255 (3d Cir. 2000).
Willful blindness, however, “is not to be equated with
negligence or lack of due care. . . . [Rather,] the defendant
himself [must have been] subjectively aware of the high
probability of the fact in question, and not merely that a
reasonable man would have been aware of the probability.”
Id; see also note 7, infra.
4
paradoxical standard of review” on sufficiency of the
evidence challenges in drug conspiracy cases. United States
v. Boria, 592 F.3d 476, 488 n.12 (3d Cir. 2010) (Fisher, J.,
concurring). We did so to decide whether our review in this
discrete area should follow form with the “strict approach”
established by our precedent, or whether we will reestablish a
familiar course with respect to sufficiency of the evidence
challenges in other situations. We have decided to do the
latter, returning to the deferential review standard we
normally apply.
For the reasons that follow, we will vacate the District
Court’s order and remand for further proceedings consistent
with this opinion.
I.
On May 1, 2008, Appellee Richard Caraballo-
Rodriguez and one of his co-defendants, Luis Deya-Diaz,
triggered the suspicion of the Drug Enforcement
Administration (“DEA”) when they purchased last-minute
one-way airplane tickets from San Juan, Puerto Rico to
Philadelphia International Airport in cash, checked no
luggage, and held no carry-on baggage.3 As a result, DEA
agents in Philadelphia organized a surveillance team at the
airport.
Despite not having checked any baggage, both Deya-
Diaz and Caraballo-Rodriguez proceeded to the baggage
claim after deplaning. Another co-defendant, Juan Cordero,
3
Deya-Diaz testified that he “had like an overnight bag with
[him].” (Supp. App. 322.)
5
met the two men at the baggage claim. Deya-Diaz retrieved
two suitcases bearing distinctive markings from the baggage
carousel and followed Cordero out of the terminal and into a
parking garage. Caraballo-Rodriguez stayed in the baggage
claim area by himself, collected two additional suitcases with
distinctive markings, and then walked with the suitcases to
the parking garage.
In the parking garage, two vehicles were parked near
each other—a Suburban and a minivan. Deya-Diaz and
Caraballo-Rodriguez were each responsible for delivering the
suitcases to the Suburban and were then directed by Cordero
to get in the minivan. DEA agents then observed the two
vehicles leave the parking garage, going opposite directions
on Interstate 95. A man named Wilfredo Aquino drove the
Suburban northbound, and Cordero drove the minivan
southbound with Deya-Diaz and Caraballo-Rodriguez as
passengers.
Aquino was pulled over in the Suburban shortly after
leaving the airport. The state trooper who pulled him over
obtained consent to search the vehicle and found the four
suitcases in the back. According to the trooper, the bags were
quite heavy.4 He then broke the locks on the suitcases and
saw bricks of cocaine packed in the suitcases. A search
warrant subsequently confirmed that two of the suitcases had
4
Specifically, the state trooper testified: “I can’t remember
exactly now whether I pushed them, or drug them, or tried to
move them, and it was like they didn’t move, I mean it was
heavy. I’m like well, that’s not clothes, that’s for sure, there’s
no way.” (Supp. App. 125.)
6
twelve kilograms each of cocaine, and the other two suitcases
had thirteen kilograms of cocaine each. In total, there were
nearly fifty kilograms of cocaine between the four bags.5 An
expert testified that the shipment had a retail value of
approximately $5 million.
Meanwhile, the minivan driven by Cordero was
stopped by state troopers on I-95 South after a state trooper
observed the minivan swerve between lanes and take evasive
actions. Cordero, Deya-Diaz, and Caraballo-Rodriguez were
all taken into custody. The agents recovered cell phones from
the men upon arrest—Cordero’s phone was missing the chip
that stores information and call history because Cordero had
thrown the chip out of the driver-side window before being
pulled over. Deya-Diaz was carrying $456 in cash,
Caraballo-Rodriguez had $33 in cash, and Cordero had
$1,173 in cash. At the police barracks, only Deya-Diaz gave
a statement—he provided a story about his reasons for
traveling to Philadelphia, claiming that he was going to
Cordero’s house in either New Jersey or New York, and that
he had no idea that Caraballo-Rodriguez was also meeting
Cordero at the airport.
A grand jury in the Eastern District of Pennsylvania
returned an indictment charging Caraballo-Rodriguez,
Cordero, and Deya-Diaz with conspiring to distribute cocaine,
in violation of 21 U.S.C. § 846, possession of cocaine with
the intent to distribute, and aiding and abetting possession
5
The parties stipulated that a laboratory test found that the
total quantity of all the cocaine was 49.1 kilograms, with a
cocaine purity of 76%.
7
with intent to distribute cocaine in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. Deya-Diaz subsequently
entered a guilty plea and testified against Caraballo-
Rodriguez and Cordero, who both proceeded to trial and were
tried jointly.6
While on the stand, Deya-Diaz recanted the story he
gave at the police barracks and testified that he had
previously acted as a courier, shuttling cash between Puerto
Rico and New York. Before September 11, 2001, Deya-Diaz
would travel with large amounts of cash strapped to his body;
after September 11, he transported suitcases with cash from
North America to Puerto Rico. Although Deya-Diaz had
transported cash on several prior occasions, he testified that
he had not knowingly transported drugs before. According to
Deya-Diaz, in April 2008, an unidentified Dominican male
known to Deya-Diaz as “Domi” called him and offered him
$5,000 to fly to from Puerto Rico to Philadelphia and pick up
two suitcases at the Philadelphia airport. Domi told Deya-
Diaz that someone would recognize him at the airport and
take him to the parking garage, where Deya-Diaz would turn
over the suitcases. The trip was originally planned for April
25, 2008. Before the flight, Deya-Diaz met Domi in Puerto
Rico, and Domi repaid Deya-Diaz for the plane tickets,
showed him the suitcases he was to retrieve in Philadelphia,
asked Deya-Diaz to describe what he would wear at the
airport, and told Deya-Diaz that he would be paid $5,000
when he arrived in New York, after being driven from the
Philadelphia airport. Domi subsequently called Deya-Diaz
6
After a magistrate judge found that there was not probable
cause to support the arrest of Aquino, the prosecution did not
charge Aquino in the indictment.
8
and told him that the trip was rescheduled for May 1. Deya-
Diaz testified that no one told him that there were drugs in the
suitcases, and that he did not know that any other courier
would be on the flight.
Deya-Diaz further testified that Caraballo-Rodriguez
was not there when Deya-Diaz put his suitcases in the
Suburban, but that Caraballo-Rodriguez entered the van after
he was already seated. During the ride, Deya-Diaz asked
Cordero when he would be paid, but Deya-Diaz did not
remember Caraballo-Rodriguez saying anything. Deya-Diaz
testified that he, Cordero, and Caraballo-Rodriguez were
brought to the police barracks and while there, the three of
them discussed concocting a story to explain why they were
in Philadelphia.
When Deya-Diaz was questioned about his knowledge
of the contents of the suitcases, he initially said “I didn’t
know it was drugs. I knew that it was something bad that was
happening, because nobody is going to pay five thousand
dollars for picking up the suitcases.” (Supp. App. 308.) The
questioning continued:
Q: Now, going back to May 1st of 2008, did
anyone tell you what was going to be in the
suitcases on that occasion?
A: No.
Q: And what did you understand would be in the
suitcases?
9
A: My common sense tells me that paying five
thousand dollars just to come to Philadelphia to
pick up two suitcases at the airport, it wasn’t for
clothing.
Q: And did you –
A: I always guessed that it was something illegal.
Q: And did you come to realize it was drugs?
A: When the suitcases came down from the
conveyor and I picked up both suitcases, I
noticed that for their size they were very heavy.
(Id. at 312.) On cross-examination, Deya-Diaz said that when
he picked the suitcases up, he knew they contained
“something forbidden,” and “guessed” that it was drugs. (Id.
at 429.) He added, “[c]ommon sense, drugs. Who else would
take five thousand dollars to pick up a suitcase full of
clothes?” (Id. at 435.)
The government introduced phone records indicating
that Deya-Diaz had received calls from, and placed calls to,
the same phone number several times between April 25 and
May 1. Deya-Diaz testified that this number belonged to
Domi. Caraballo-Rodriguez’s phone records indicated that he
had had similar contact with the same phone number
throughout the same time period, although there was no
evidence as to the substance of those calls. Before the May 1
flight, both Deya-Diaz’s phone and Caraballo-Rodriguez’s
phone contacted that number as well.
10
The government also presented expert testimony of a
state narcotics agent, Alan Basewitz. Agent Basewitz
testified that this case involved several indicia of organized
drug trafficking:
If they have no checked bags, it’s a cash one
way ticket, it’s coming from San Juan, and there
is no carry on baggage from a passenger, those
characteristics in combination are something
that I would, if I could, go lights and siren to the
airport to observe, not to arrest, to see if
anybody is going to be claiming baggage.
(Id. at 615-16.) Agent Basewitz also described the typical
characteristics of couriers:
They are trusted individuals. The couriers, if
you’re transporting a significant amount, their
addresses or families and information are
known to the person who is either coordinating
or supplying. The inverse is not true, in most
instances. And they have to be trusted because
of the amounts that they ferry back and forth,
both if it’s cash, depending on which direction
you’re heading, or if it’s drugs.
They are, sometimes, trained what to say to
police, if they’re told to ignore them or come up
with a concoction of a story. It is a very risky
thing. Sometimes they are not told the exact
type of drug. Quite often during my proffers
and interviews and intelligence information
through conversations with informants and
11
cooperators and other law enforcement and
most through my personal interactions with
these individuals, they know it’s drugs. They
may not know the type, depending on the
group. They may not know the weight. But,
they know or should have known that it’s drugs.
(Id. at 622-23.)7
After a five-day trial, in which the government
presented the evidence discussed above, the jury was
instructed and given its charge. The District Court gave a
willful blindness instruction at the government’s request.8 On
7
Agent Basewitz distinguished the present situation from a
“blind mule” situation, such as when a person is asked to
carry a bag for a person known to him or when a baggage
handler switches baggage tags and a person’s tag is placed on
another suitcase containing drugs. (Supp. App. 624-26.)
8
The District Court’s willful blindness instruction stated, in
pertinent part:
In this case, there is a question whether . . .
Richard Caraballo-Rodriguez knew that the
luggage in question contained cocaine. When,
as in this case, knowledge of a particular fact or
circumstance is an essential part of the offense
charged, the government may prove that . . .
Caraballo-Rodriguez deliberately closed his
eyes to what would otherwise have been
obvious to him.
12
July 6, 2009, the jury returned a verdict convicting both
Caraballo-Rodriguez and Cordero of conspiracy to distribute
No one can avoid responsibility for a crime by
deliberately ignoring what is obvious. Thus,
you may find that . . . Caraballo-Rodriguez
knew that the luggage in question contained
cocaine based on evidence which proves that:
(1) . . . Caraballo-Rodriguez consciously and
deliberately tried to avoid learning about this
circumstance.
You may not find that . . . Caraballo-Rodriguez
knew that the luggage in question contained
cocaine if you find that the defendant actually
believed that this circumstance did not exist.
Also, you may not find that . . . Caraballo-
Rodriguez knew that the luggage in question
contained cocaine if you find only that . . .
Caraballo-Rodriguez should have known of the
circumstance or that a reasonable person would
have known of a high probability of the
circumstance. It is not enough that . . .
Caraballo-Rodriguez may have been stupid or
foolish, or may have acted out of inadvertence
or accident. You must find that . . . Caraballo-
Rodriguez [was] actually aware of a high
probability of the fact that the luggage in
question contained cocaine, deliberately
avoided learning about it, and did not actually
believe that it did not exist.
(Supp. App. 32 n.134.)
13
and possess with intent to distribute more than five kilograms
of cocaine, in violation of 21 U.S.C. § 846, and possession of
more than five kilograms of cocaine with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1).
Thereafter, Caraballo-Rodriguez and Cordero filed a
joint post-trial motion for acquittal, which the District Court
granted as to Caraballo-Rodriguez on September 7, 2011.
Looking to our precedent, the District Court concluded that
the government’s evidence was not sufficient to support an
inference that Caraballo-Rodriguez knew that the object of
the conspiracy was drugs. The District Court observed that:
(1) Deya-Diaz’s testimony did not include “statements . . .
made to or about” Caraballo-Rodriguez, and therefore Deya-
Diaz’s testimony did not “alter the calculus of evidence”; (2)
the government did not present any evidence of the substance
of the phone calls placed and received by Caraballo-
Rodriguez; (3) there was no evidence of a prior relationship
between the men; and (4) there was no evidence that
Caraballo-Rodriguez had acted as a courier before. (Supp.
App. 32-39.) In considering Agent Basewitz’s testimony, the
District Court surmised that “[i]f the jury accepted Basewitz’s
testimony, it may have . . . infer[red] that because Caraballo-
Rodriguez was a courier, he knew the object of the conspiracy
was to smuggle drugs.” (Id. at 39.) Despite the fact that the
jury heard Agent Basewitz’s testimony and Caraballo-
Rodriguez did not object to it, the District Court nonetheless
concluded that “in the absence of any other evidence from
which the jury could permissibly draw an inference of
knowledge, the court will not permit an expert’s conclusory
statements about the defendant’s mental state to tip the
14
balance.” (Id. at 44.) Accordingly, the District Court entered
a judgment of acquittal as to Caraballo-Rodriguez.9
The government’s timely appeal followed.
II.
We exercise plenary review over an appeal from the
grant of a judgment of acquittal, and independently apply the
same standard the district court uses in deciding the motion.
See Boria, 592 F.3d at 480.
Today we consider that standard. The way courts—
our Court and district courts—review challenges leveled at
the sufficiency of the evidence in criminal trials is a fairly
basic topic upon which many courts have expounded. As the
Supreme Court stated in Jackson v. Virginia, 443 U.S. 307
(1979), “the critical inquiry on review of the sufficiency of
the evidence to support a criminal conviction . . . is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Id. at 318-19 (emphasis in original). While we have set forth
the standard many times since Jackson, today we grapple
with how to faithfully adhere to it.
9
As to Cordero, the District Court held that “[a]lthough this
is admittedly a close case, we conclude that the Government’s
evidence against Cordero was sufficient to support the jury’s
verdict.” (Supp. App. 49.) We address Cordero’s appeal in a
separate opinion.
15
III.
Notwithstanding careful recitations of the appropriate
standard to apply when ruling on sufficiency of the evidence
claims, we have applied that standard in a more searching
manner when the issue involves knowledge of a controlled
substance. As noted below, this has produced inconsistent
results in drug conspiracy cases. In the present appeal, the
government urges that, sitting en banc, we should abandon
our case law that dissects the evidence presented at trial. It
insists that the jury’s verdict in this case is justified under an
ordinary sufficiency of the evidence standard of review.
Caraballo-Rodriguez, on the other hand, argues that this case
falls squarely within our line of precedent in which we have
held that the government failed to present “specific evidence”
of the defendant’s knowledge of the transaction’s subject
matter.
A.
To prove a conspiracy, the government must show: (1)
a shared unity of purpose; (2) an intent to achieve a common
illegal goal; and (3) an agreement to work toward that goal.
Boria, 592 F.3d at 481 (citing United States v. Mastrangelo,
172 F.3d 288, 291 (3d Cir. 1999)). The government must
establish each element beyond a reasonable doubt. United
States v. Coleman, 811 F.2d 804, 808 (3d Cir. 1987). It may
do so with direct or circumstantial evidence. United States v.
Brodie, 403 F.3d 123, 134 (3d Cir. 2005). Circumstantial
inferences drawn from the evidence must bear a “logical or
convincing connection to established fact.” United States v.
Cartwright, 359 F.3d 281, 291 (3d Cir. 2004).
When considering drug conspiracy cases over the past
several decades, we have viewed the second element—
16
“illegal goal”—as requiring proof that the defendant had
knowledge of the specific objective contemplated by the
particular conspiracy. Id. at 287. As mentioned above,
“knowledge” can be demonstrated by actual knowledge or
willful blindness. See Brodie, 403 F.3d at 148 (“The
knowledge element . . . may be satisfied upon a showing
beyond a reasonable doubt that a defendant had actual
knowledge or deliberately closed his eyes to what otherwise
would have been obvious to him concerning the fact in
question.” (internal quotation marks omitted)). Pursuant to
that requirement, we have examined the record in each case to
determine whether the government put forth “drug-related
evidence, considered with the surrounding circumstances,
from which a rational trier of fact could logically infer that
the defendant knew a controlled substance was involved in
the transaction at issue.” Boria, 592 F.3d at 481. While “we
have explicitly recognized that the government may
circumstantially establish the element of knowledge ‘grain-
by-grain until the scale finally tips,’” United States v.
Claxton, 685 F.3d 300, 310 (3d Cir. 2012) (quoting United
States v. Iafelice, 978 F.2d 92, 98 (3d Cir. 1992)), in many
cases we have nonetheless meticulously scrutinized the nature
and quality of the evidence, essentially reweighing it. As a
result, we have reached inconsistent conclusions regarding
the “knowledge” prong in our sufficiency of the evidence test
in drug conspiracy cases.
The trend that we revisit today began in United States
v. Wexler, 838 F.2d 88 (3d Cir. 1988). Looking back at
Wexler recently in Claxton, we characterized the path we had
taken: “we have arguably asked more of prosecutors than our
statements regarding the adequacy of circumstantial evidence
express, requiring some additional piece of evidence imputing
17
knowledge of drugs to the defendant even in the presence of
otherwise suspicious circumstances.” Claxton, 685 F.3d at
306 (internal quotation marks, alteration omitted). In Wexler
and several subsequent cases, we found that the government
had not offered specific evidence from which a jury could
infer that the defendant knew that a controlled substance—as
opposed to some other contraband—was the object of the
conspiracy. That failure, we held, was fatal and required
acquittal.
In Wexler, we concluded that the evidence, which
suggested that the defendant served as a lookout in a
conspiracy to transport hashish, was not sufficient for the jury
to find that the defendant knew that drugs were the object of
the conspiracy. 838 F.2d at 91-92. The defendant had
engaged in surveillance during the course of the drug
delivery, signaled to the driver of the truck containing the
hashish, talked to one of the drivers of the truck on two
separate occasions, and upon his arrest had a portable CB
radio he had purchased the day before under a false name. Id.
at 89-90. We nonetheless found that the record was “missing
‘the totality of evidence from which a reasonable juror could
logically infer’ that [the defendant] had knowledge of the
object of the conspiracy.” Id. at 92 (quoting Coleman, 811
F.2d at 808). Although we noted that there was “ample
circumstantial evidence . . . from which the jury could have
concluded that [the defendant] was involved in a conspiracy .
. . and that the conspiracy involved movement of the cargo of
the truck,” we concluded that there was no evidence that the
defendant knew that a controlled substance was the cargo in
the truck. Id. at 91. Notwithstanding the fact that the jury
had inferred that the defendant knew of the object of the
conspiracy, we noted that “[t]he evidence [was] just as
18
consistent, for example, with a conspiracy to transport stolen
goods, an entirely different crime.” Id. at 92.
Citing Wexler, we concluded similarly in United States
v. Salmon that the evidence was insufficient for the jury to
find that the defendant knew that drugs were involved in the
transaction at issue and reversed the conviction. 944 F.2d
1106 (3d Cir. 1991). There, the defendant had also performed
surveillance, spoken to co-conspirators, and possessed
surveillance equipment when he was arrested. Id. at 1114.
Additionally, the defendant opened a car’s trunk, and an
alleged co-conspirator approached the trunk and appeared to
retrieve a package of cocaine. Id. We rejected the
government’s argument that the defendant’s movements in
the parking lot combined with the consistency and wrapping
of the cocaine in a brown paper bag could allow a reasonable
jury to find beyond a reasonable doubt that the defendant
knew that cocaine or another controlled substance was the
object of the transaction. Id. We noted that the government
had not established that the package was ever in the trunk,
and that there was no evidence that the defendant knew what
the package contained. Id. at 1114-15.
We also reversed the jury’s verdict against the
defendant in United States v. Thomas, 114 F.3d 403 (3d Cir.
1997). There, the defendant’s co-conspirator, who was
cooperating with law enforcement, left a suitcase from which
drugs had previously been seized in a hotel room, and left a
key to the room at the front desk. Id. at 405. The defendant,
who was offered $500 by a stranger to enter the hotel room,
confirm the presence of the suitcase, and leave the door open,
was arrested after he exited the room. Id. at 404-05. There
was no evidence of a prior relationship between the defendant
19
and the co-conspirators, no evidence that the defendant had
actually spoken to the co-conspirators, no evidence of the
substance of suspicious phone calls placed and received by
the defendant, and no evidence that the defendant had even
picked up the suitcase. Id. at 405-06. Citing Wexler, we
concluded that although the defendant “knew that he was
somehow involved in an illicit activity,” under our case law
“there [was] no evidence from which a jury could permissibly
infer that [the defendant] knew that the object of the
conspiracy was to possess cocaine with the intent to
distribute.” Id. at 405, 406.
We next addressed the sufficiency of the evidence in a
drug conspiracy case in United States v. Idowu, 157 F.3d at
266. In that case, the defendant’s co-conspirator negotiated to
buy two kilograms of heroin from a DEA informant. Id. at
267. During the transaction, the defendant was introduced to
the DEA informant as the driver. Id. The defendant removed
a bag of cash from the trunk of the car, assured the informant
that the money was all there, and removed personal
documents from the bag before handing it to the informant.
Id. The defendant also removed a suitcase from the
informant’s car, placed it in his own car, opened the suitcase,
noticed that it was empty, and told his co-conspirator that
“[t]hey didn’t pack this thing.” Id. at 267-68. The informant
attempted to reassure the defendant and his co-conspirator
that something was concealed in the frame of the suitcase. Id.
at 268.
The jury convicted the defendant of conspiracy to
possess with intent to distribute heroin. Id. at 266. We
reversed, finding a “lack of specific evidence of [his]
knowledge of the transaction’s subject matter.” Id. at 270.
20
Although it was “crystal clear that [the defendant] was—and
knew that he was—involved in an illicit transaction of some
sort,” a divided panel concluded that there was not “sufficient
evidence that [he] knew that the subject matter of the
transaction was a controlled substance, rather than some other
form of contraband, such as stolen jewels or computer chips
or currency.” Id. at 266.
In dissent, Judge Stapleton urged that the evidence
supported the jury’s guilty verdict, noting that the jury could
have drawn permissible inferences from the facts: namely that
there was significant risk in the transaction, the defendant was
a “trusted confidant,” and the defendant had sole custody of
the cash at times. Id. at 271 (Stapleton, J., dissenting).
Furthermore, he observed that the defendant was assigned to
check the bag to make sure it contained what his co-
conspirator had negotiated for, from which the jury could
have easily inferred that the defendant knew his co-
conspirator was not paying for stolen jewels, computer chips,
or currency. Id. Under a “common sense approach to the
evidence,” Judge Stapleton concluded that “the jury properly
could conclude that [the defendant] was guilty as charged
beyond a reasonable doubt.” Id.
More recently, in United States v. Cartwright, 359
F.3d 281, we again concluded that the government had fallen
short of adducing evidence of the defendant’s knowledge that
the conspiracy involved drugs. In that case, the defendant
served as a lookout during a drug transaction. Id. at 286.
After the drug supplier retrieved drugs from his car—which
was in an area where there was no law enforcement
surveillance—he returned accompanied by the defendant. Id.
at 284. The government argued that the jury properly inferred
21
the defendant’s knowledge because: (1) the defendant first
appeared at the same time that the drug supplier was observed
carrying a bag of cocaine; (2) the defendant walked side-by-
side with the drug supplier, and the two were observed talking
with each other; (3) the defendant possessed a loaded semi-
automatic firearm, a cellular phone, $180 in cash, and a two-
way text messaging device upon his arrest; and (4) the
defendant did not possess keys to a vehicle of his own. Id. at
288. Noting that “where an inference as to a defendant’s
knowledge is based upon speculation, our case law forbids us
from upholding his conviction,” we concluded that the jury’s
inference that the defendant knew of the subject matter of the
transaction was impermissible because it was based solely on
speculation. Id. (citing Thomas, 114 F.3d at 406).
Accordingly, we reversed the judgment against the defendant.
We have subsequently viewed this line of cases as
requiring “some additional piece of evidence imputing
knowledge of drugs to the defendant.” Boria, 592 F.3d at
482. There has been confusion, however, as to what sort of
evidence must be offered to demonstrate “knowledge.” As
Judge Fisher noted in his concurring opinion in Boria, “[i]t
may be that the difficulty of producing evidence that the
defendant knew that the subject matter was a controlled
substance has turned our standard of review, not in name but
in application, into a requirement for direct evidence.” Id. at
488 n.12 (Fisher, J., concurring); see also Claxton, 685 F.3d
at 305-06 (“In drug conspiracy cases . . . we have arguably
asked more of prosecutors than our statements regarding the
adequacy of circumstantial evidence express . . . .”).
To add to the confusion, we have been inconsistent in
conducting our review of this knowledge element in drug
22
conspiracy cases. In another line of cases, addressing factual
situations not that different from the cases discussed above,
we purported to apply “our strict approach to sufficiency in
drug conspiracy cases,” but affirmed the jury’s verdict
because it drew what we viewed as a proper inference of
knowledge. Claxton, 685 F.3d at 307 (quoting Boria, 592
F.3d at 481 n.9).
For example, in United States v. Iafelice, 978 F.2d at
93, we held that the government’s evidence was sufficient to
show that the defendant knew that he was participating in a
criminal enterprise involving drugs, and we reversed the
district court’s grant of defendant’s motion for acquittal. In
Iafelice, the defendant drove a car to a drug transaction,
engaged in counter-surveillance before the drug deal, opened
the trunk, which contained the package of drugs, and took a
phone call during the course of the drug deal from his co-
conspirator who had negotiated the drug sale with an
undercover DEA agent. Id. at 94. In upholding the jury’s
verdict—and reversing the district court—we observed the
suspicious circumstances, and noted that “[t]he crucial
additional fact that the drugs were transported in a car owned
and operated by [the defendant] (coupled with the other
evidence . . . ) provide[d] the essential additional evidence
necessary to distinguish this case from the more limited facts
of Wexler and Salmon.” Id. at 97. As we noted, “[c]ommon
sense counsels that an owner and operator of a vehicle . . .
usually knows what is in that vehicle.” Id.
Then, in United States v. Reyeros, 537 F.3d 270 (3d
Cir. 2008), we concluded that a co-conspirator’s testimony
could provide additional evidence to allow a rational juror to
conclude beyond a reasonable doubt that a defendant knew
23
the purpose of a drug conspiracy. Id. at 279. In that case,
two brothers—Juan and Jorge Reyeros—negotiated with
several individuals to import cocaine into the United States.
Id. at 275-77. At trial, a co-conspirator testified that Juan told
the other members of the conspiracy that Jorge, a customs
inspector, would facilitate the importation, but the shipment
would have to be large enough to make it worth the risk to
Jorge’s career. Id. at 276. After the jury returned a guilty
verdict and the district court denied the brothers’ motions for
acquittal, we concluded that the co-conspirator’s testimony
would permit a rational juror to conclude that Jorge knew the
purpose of the conspiracy. Id. at 279. We also noted that
“[o]ther evidence supports that conclusion as well,” such as
the fact that “a jury could reasonably infer that Jorge would
ask his own brother, Juan, the nature of the contraband for
which he was putting his Customs career at risk,” as well as
the fact that Jorge was to receive a percentage of the imported
cocaine’s value, which suggested that he would want to know
the nature of the contraband. Id. at 279 n.12.
Following a drug conspiracy conviction in United
States v. Boria, 592 F.3d at 480, the district court granted the
defendant’s motion for acquittal. On appeal, however, we
concluded that there was sufficient evidence for a rational
jury to conclude that the defendant, who drove a tractor-
trailer that contained cocaine hidden among boxes of rotten
fruit, knew “something criminal was afoot.” Id. at 486.
Although that, by itself, was not sufficient to sustain a
conspiracy verdict, we held that a co-conspirator’s testimony
describing the defendant’s role in the conspiracy sufficed to
enable a rational jury to find that the defendant had
knowledge that he was participating in a conspiracy involving
drugs. Id. We reversed the district court’s ruling, explaining
24
that the suspicious circumstances and the “truly
distinguishing fact” that the co-conspirator testified that the
defendant was responsible for unloading drugs from the truck
and “tak[ing] the driver of the tractor-trailer to finish off what
needs to be done inside the truck . . . impute[d] to [the
defendant] knowledge that the tractor-trailer he was assigned
to direct to a garage contained drugs, which is the additional
fact necessary to support the jury’s guilty verdict.” Id. at 485.
As previously mentioned, Judge Fisher concurred separately
to note “the tension between this opinion and some of our
most recent case law.” Id. at 486 (Fisher, J., concurring).
Most recently, in United States v. Claxton, 685 F.3d at
301, we held that the evidence was sufficient to prove that the
defendant knew that the object of the conspiracy was drugs,
reversing the district court and upholding the jury’s guilty
verdict. The government presented evidence that the
defendant was a member of a group of individuals who
routinely brought cocaine from Colombia into Venezuela, and
then flew the cocaine to the Virgin Islands so that it could be
smuggled into the continental United States. Id. at 302.
Although there was no evidence that the defendant handled
drugs himself, a co-conspirator testified that the defendant
“retriev[ed] the girls out of the airport in St. Thomas, [took]
them to [another co-conspirator], check[ed] them into [a]
hotel[,] and [paid] them.” Id. (internal quotation marks
omitted). Consistent with this testimony, the “girls”—women
hired to transport the drug sales’ cash proceeds from North
Carolina to the Virgin Islands—testified as to their encounters
with the defendant. Id. at 302-04. Furthermore, another co-
conspirator repeatedly identified the defendant as a member
of the organization, and testified that he had met with the
defendant several times at a property where the organization’s
25
cocaine was stored and where members of the organization
talked about drug activities. Id. at 304.
A divided panel concluded that “the evidence, as a
whole, permits . . . a finding [of knowledge of the
conspiratorial object] because [the defendant] was expressly
identified as a member of the conspiracy, repeatedly took
actions to further its ends, and had a close and repeated
association with its members and facilities.” Id. at 309. We
held that although the co-conspirator testimony in this case
was different from that offered in Boria, the jury reasonably
inferred that the defendant knew the object of the conspiracy
given the totality of the evidence. Id. at 312. Although a jury
could have concluded that the defendant simply kept bad
company, we determined that we were bound by the jury’s
determination that the defendant knew what he was involved
in, as long as it was not irrational. Id.10
In his dissenting opinion, Judge Cowen attempted to
reconcile our precedent regarding the sufficiency of the
evidence in drug conspiracy cases. He observed that “an
examination of our precedent” suggested that “an inference of
knowledge can be drawn from the . . . identification as a
‘member of the organization,’ only when dominion and
control over the contraband is inherent to the role that the
defendant agreed to perform.” Id. at 314 (Cowen, J.,
dissenting). Judge Cowen also believed that the majority’s
reliance on the “totality of the circumstances” was
10
We see the majority opinion in Claxton as perhaps
presaging today’s ruling, as the majority there grappled with
the quantum of evidence and concluded that, given the
totality of the circumstances, the jury verdict should stand.
26
inconsistent with our precedent because the “totality of the
circumstances” analysis in our prior cases “relied on a
specific piece of additional evidence to support an inference
of knowledge of the conspiracy’s object.” Id. at 318. He
further opined that acquittal was required because the
evidence “equally support[ed] the inference drawn by the
majority—[the defendant’s] knowledge of drugs—and an
inference that [he] had knowledge that the conspiracy’s object
was weapons or some other contraband.” Id. at 315. Thus,
because the “additional” evidence required by our case law
was lacking, he concluded that the verdict should not stand.
Id. at 318.
B.
In looking back at these cases, our analysis has too
often been more akin to ad hoc second-guessing the juries’
verdicts than exercising a review function based on
sufficiency of the evidence.
We have set forth the appropriate standard in a
sufficiency of the evidence challenge many times. We
“review the record in the light most favorable to the
prosecution to determine whether any rational trier of fact
could have found proof of guilt[] beyond a reasonable doubt.”
Brodie, 403 F.3d at 133 (internal quotation marks and citation
omitted). Under this particularly deferential standard, we
“must be ever vigilant . . . not to usurp the role of the jury by
weighing credibility and assigning weight to the evidence, or
by substituting [our] judgment for that of the jury.” Id.
Furthermore, “we review the evidence as a whole, not in
isolation, and ask whether it is strong enough for a rational
trier of fact to find guilt beyond a reasonable doubt.” Boria,
27
592 F.3d at 480. We must sustain the jury’s verdict “if there
is substantial evidence, viewed in the light most favorable to
the government, to uphold the jury’s decision.” United States
v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003) (internal
quotation marks omitted).
However, in this particular area—drug conspiracy
cases—it appears that we have examined sufficiency by
looking at the evidence under a microscope. In all other
areas, our review for sufficiency is, as noted above, highly
deferential, and we will overturn a verdict only “if no
reasonable juror could accept the evidence as sufficient to
support the conclusion of the defendant’s guilt beyond a
reasonable doubt.” Coleman, 811 F.2d at 807 (quoting
United States v. Campbell, 702 F.2d 262, 264 (D.C. Cir.
1983)); see also United States v. Kemp, 500 F.3d 257, 293 (3d
Cir. 2007) (upholding the jury verdict in a public corruption
case and noting that “‘[t]here is no requirement . . . that the
inference drawn by the jury be the only inference possible or
that the government’s evidence foreclose every possible
innocent explanation’” (quoting Iafelice, 978 F.2d at 97 n.3));
Brodie, 403 F.3d at 126 (reversing the district court’s grant of
defendant’s motion for acquittal in a case in which the
defendant was convicted of violating the American-Cuban
embargo by conspiring to trade with Cuba).
That deference is warranted because we trust jurors to
judge the evidence, and we instruct them as to all aspects of
their decision making. Jurors are instructed extensively as to
what evidence they can consider, how to consider it, and how
to assess the credibility of witnesses, as well as the relevant
legal principles. We trust that they follow these instructions.
See, e.g., United States v. Sussman, 709 F.3d 155, 180 (3d
28
Cir. 2013) (“[T]he law presumes that jurors, conscious of the
gravity of their task, attend closely the particular language of
the trial court’s instructions in a criminal case and strive to
understand, make sense of, and follow the instructions given
them.” (internal quotation marks omitted)). Yet, in most of
the cases discussed above, we have not trusted the jurors.
Indeed, we have second-guessed them, acting not merely as
the thirteenth juror, but as the decisive vote on the jury. Too
often, we failed to ask whether any reasonable juror could
conclude that the defendant knew the transaction involved
drugs; instead, we reassessed the evidence independently.
Had we asked the appropriate question—“whether . . . any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt”—we now believe
the answer in most, if not all, of those cases would have been
“yes.” Jackson, 443 U.S. at 319 (emphasis in original).
The confusion generated by the inconsistent results in
our case law has worked to bedevil not only those adducing
the evidence—the prosecution—but also those who are called
upon to assess the evidence after the fact—namely, district
court judges. Thus, we take this opportunity to clarify the
appropriate standard to apply in reviewing a sufficiency of the
evidence challenge in drug conspiracy cases. The district
court—and we—are not to act as a thirteenth juror. Instead,
the jury’s verdict must be assessed from the perspective of a
reasonable juror, and the verdict must be upheld as long as it
does not “fall below the threshold of bare rationality.”
Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012) (“The jury
in this case was convinced, and the only question under
Jackson [v. Virginia] is whether that finding was so
insupportable as to fall below the threshold of bare
rationality.”).
29
Furthermore, we take this opportunity to clarify that,
although the prosecution must prove the defendant’s
knowledge of the conspiracy’s specific objective, that
knowledge need not be proven by direct evidence. To the
contrary, “[i]t is not unusual that the government will not
have direct evidence. Knowledge is often proven by
circumstances. A case can be built against the defendant
grain-by-grain until the scale finally tips.” Iafelice, 978 F.2d
at 98. Again, jurors are routinely instructed that their verdict
can be supported by direct or circumstantial evidence, and
reasonable inferences can be drawn from both types of
evidence.
With this in mind, we specifically disavow the
reasoning we previously embraced—that the jury’s verdict
could not stand when the evidence was as consistent with
contraband other than controlled substances, even though a
jury could rationally conclude that the defendant knew the
subject of the conspiracy was drugs. We specifically disavow
our concern in Wexler, for instance, that “[t]he evidence is
just as consistent, for example, with a conspiracy to transport
stolen goods, an entirely different crime.” 838 F.2d at 92.
While evidence proffered at trial may be consistent with
multiple possibilities, our role as a reviewing court is to
uphold the jury verdict—and not to usurp the role of the
jury—as long as it passes the “bare rationality” test.
Reversing the jury’s conclusion simply because another
inference is possible—or even equally plausible—is
inconsistent with the proper inquiry for review of sufficiency
of the evidence challenges, which is that “‘[t]he evidence
does not need to be inconsistent with every conclusion save
that of guilt if it does establish a case from which the jury can
find the defendant guilty beyond a reasonable doubt.’”
30
United States v. Cooper, 567 F.2d 252, 254 (3d Cir. 1977)
(quoting United States v. Allard, 240 F.2d 840, 841 (3d Cir.
1957)). It is up to the jury—not the district court judge or our
Court—to examine the evidence and draw inferences. Unless
the jury’s conclusion is irrational, it must be upheld. In our
role as reviewers, we must resist the urge to hypothetically
insert ourselves into the jury room for deliberations.
Of course, a finding as to a defendant’s knowledge is a
fact-specific inquiry, and we cannot prescribe a specific
formula as to what conduct or evidence is sufficient to infer
knowledge. Indeed, no one factor is dispositive, and the jury
is carefully instructed as to how it must view the evidence in
a given case. As we stated in United States v. Cooper, “‘[t]he
question is whether all the pieces of evidence against the
defendant, taken together, make a strong enough case to let a
jury find him guilty beyond a reasonable doubt.’” 567 F.2d at
254 (quoting Allard, 240 F.2d at 841). Nothing “additional”
in the way of evidence as to knowledge is required.
In reiterating this deferential standard, we are aligning
ourselves with the majority of our sister circuits, from whom
we had previously parted ways. In Boria, we specifically
noted in a footnote that most other courts of appeals do not
“adhere to our strict approach to sufficiency in drug
conspiracy cases.” 592 F.3d at 481 n.9.11 Our approach has
11
Indeed we contrasted the approaches of the Fifth, Sixth,
Seventh, and Tenth Circuits with that of the Second and
District of Columbia Circuits. See Boria, 592 F.3d at 481 n.9
(comparing the approaches of different courts with respect to
sufficiency of the evidence challenges in drug conspiracy
cases). But see Sliwo, 620 at 635 n.3 (citing Wexler in
31
been criticized, and as discussed above, this “strict approach”
has taken us away from the application of the appropriate
standard in sufficiency challenges. See, e.g., Sliwo, 620 F.3d
at 641 n.3 (Katz, J., dissenting) (“Application of Wexler in the
Third Circuit has led to . . . peculiar results. For example, it
has led Third Circuit panels to undertake detailed, thirteenth
juror-type analyses of the sufficiency of the evidence at trial,
in spite of the deferential standard of review that ordinarily
applies in such cases.”); see also Lipschutz, supra, at 510-13
(discussing cases from other circuits, which “demonstrate that
the Third Circuit is enigmatic in its willingness to overturn
jury verdicts in conspiracy and aiding and abetting controlled
substances cases based on sufficiency of evidence
challenges”).
C.
Applying our newly reestablished standard to the case
before us, we conclude that the jury’s verdict did not “fall
below the threshold of bare rationality.” Coleman, 132 S. Ct.
at 2065. It should therefore be reinstated.
Viewing the evidence in the light most favorable to the
government, as we must, the jury could have reasonably
concluded that Caraballo-Rodriguez knew that he was
involved in an illegal venture. Moreover, looking at the
evidence that the jury considered, it is clear that it was not
irrational for the jury to infer that Caraballo-Rodriguez
knew—or was willfully blind to the fact—that the illegal
venture involved transporting drugs.
reversing a jury’s verdict and the district court’s denial of the
defendant’s motion for acquittal).
32
The evidence introduced at trial established that
Caraballo-Rodriguez traveled from Puerto Rico to
Philadelphia with a small overnight bag and only $33, for the
sole purpose of taking two suitcases that he had not checked
and did not belong to him off the baggage conveyor and
putting those suitcases into a waiting vehicle. From this, the
jury could have easily concluded that he knew that was
involved in an illegal venture.
Furthermore, a rational jury could have inferred that
Caraballo-Rodriguez knew that the object of the venture was
transporting drugs. Deya-Diaz testified that he made
arrangements with Domi to be paid $5,000 to pick up
suitcases that he did not check. Given that Deya-Diaz and
Caraballo-Rodriguez had nearly identical phone records and
took the same trip, a rational jury could have inferred that
Caraballo-Rodriguez had the same arrangement. From that, a
rational jury could have inferred that Caraballo-Rodriguez
knew that he was being paid such a sum to transport a
controlled substance. Cf. United States v. Caminos, 770 F.2d
361, 366 (3d Cir. 1985) (holding that an inference of
deliberate ignorance was warranted when the defendant was
offered over $1,000 to deliver a $60 wood carving that
contained cocaine).
The evidence also suggested that Caraballo-Rodriguez
was trusted to be alone with several million dollars worth of
cocaine. When Deya-Diaz and Cordero walked to the
parking garage, they left Caraballo-Rodriguez at the baggage
carousel to pick up the two suitcases by himself. Based on
that, the jury could have inferred that Caraballo-Rodriguez
was not a “blind mule.” As Agent Basewitz’s expert
testimony suggested, although drug traffickers generally do
33
not explicitly tell couriers what they are carrying, they do not
typically trust valuable cargo to an unknowing dupe.12
Additionally, according to Deya-Diaz’s testimony, as
soon as he picked up the suitcases and felt their significant
weight, he surmised that they contained drugs. A rational
jury could have inferred the same knowledge on the part of
Caraballo-Rodriguez. Despite the fact that no DEA agent
saw Caraballo-Rodriguez specifically put the suitcases into
the Suburban, it would be rational for the jury to infer that
Caraballo-Rodriguez also experienced the weight of the
suitcases since he was responsible for taking the suitcases
from the baggage conveyor to the car. The District Court
noted that Deya-Diaz had a history of transporting cash, and
because he had previously felt the weight of suitcases full of
cash, he knew that the heavier suitcases in this case did not
contain cash, and therefore “common sense” told him they
contained drugs. Although there was no evidence that
Caraballo-Rodriguez had served as a courier before, it was
not unreasonable for the jury to find that Caraballo-Rodriguez
would have believed that the suitcases contained drugs once
he picked them up. Indeed, given the totality of the evidence
and surrounding suspicious circumstances, a rational jury
could have inferred that “common sense” would suggest to
anyone that two suitcases, each weighing at least 12
kilograms, contained drugs and not currency.
The jury certainly could have drawn other inferences.
But that is not the issue. Rather, looking at “the evidence as a
12
The jury heard Agent Basewitz’s testimony, to which
Caraballo-Rodriguez did not object. This testimony was
admitted and therefore must be considered as part of the
entire record. Boria, 592 F.3d at 480.
34
whole, not in isolation,” there is enough evidence to support
the jury’s inference of knowledge. Boria, 592 F.3d at 480.
The combination of Caraballo-Rodriguez’s travel plans,
Deya-Diaz’s testimony, the phone records, Agent Basewitz’s
expert testimony, and the jury’s own common sense
accumulated “grain-by-grain” until the jury could rationally
decide that “the scale finally tip[ped].” Iafelice, 978 F.2d at
98. This quantum of evidence provided a sufficient
foundation for the jury to rationally conclude beyond a
reasonable doubt that Caraballo-Rodriguez knew that the
object of the conspiracy was a controlled substance.
Although perhaps none of that evidence standing alone could
have supported the jury’s inference of knowledge, looking at
the record as a whole, the jury’s conclusion was not irrational.
As discussed above, it is not the business of a reviewing court
to play the role of an extra juror in assessing all the possible
inferences that could be drawn.
Moreover, the jury received a willful blindness
instruction, which permitted it to infer knowledge if the
evidence showed that “the defendant . . . was subjectively
aware of the high probability of the fact in question, and not
merely that a reasonable man would have been aware of the
probability.” Caminos, 770 F.2d at 365. Given the evidence
discussed above, the jury certainly could have reasonably
inferred that Caraballo-Rodriguez was aware of the “high
probability” that he was transporting a controlled substance.
IV.
Our opinions with respect to sufficiency of the
evidence challenges in drug conspiracy cases have not always
provided the government, defendants, or judges with clear
35
guidelines. Many cases have reached seemingly inconsistent
results, because we have appeared to act as the jury in
deciding which inference was the most plausible, rather than
asking the proper question, that is, whether the jury’s
inference was merely rational. We take this opportunity to
reiterate the appropriate standard for reviewing sufficiency of
the evidence claims, as discussed above.
Under that proper standard, the jury’s conclusion that
Caraballo-Rodriguez knew that he was involved in a drug
conspiracy was rational. Accordingly, we will vacate the
District Court’s judgment of acquittal and remand with
directions that the District Court reinstate the jury’s verdict of
conviction and proceed to sentencing.
36