United States v. Heras

09-3150-cr
U nited States v. H eras

UNITED STATES COURT OF APPEALS

F OR THE S ECOND C IRCUIT

August Term, 2009

(Argued: May 28, 2010 Decided: June 18, 2010)

Docket No. 09-3150-cr

U NITED S TATES OF A MERICA,

Appellant,
—v.—

N ELSON H ERAS,

Defendant-Appellee.
____________________

Before:

R AGGI, L YNCH, and W ALLACE,* Circuit Judges.

____________________

Appeal from a judgment of acquittal entered after trial in the United States District

Court for the Eastern District of New York (Charles P. Sifton, Judge), based on a

determination that the evidence was insufficient as a matter of law to permit the jury to find

that defendant had the intent to distribute narcotics necessary to convict for substantive and

*
Circuit Judge J. Clifford Wallace of the United States Court of Appeals for the Ninth
Circuit, sitting by designation.
conspiratorial violations of 21 U.S.C. § 841(a)(1).

V ACATED AND R EMANDED .

C HARLES N. R OSE, Assistant United States Attorney (Emily Berger, Assistant
United States Attorney, on the brief), for Benton J. Campbell, United
States Attorney, Eastern District of New York, Brooklyn, New York,
for Appellant.

J USTIN L EVINE, Bronx, New York, for Appellee.

R EENA R AGGI, Circuit Judge:

The United States appeals from a judgment of acquittal entered in favor of defendant

Nelson Heras in the United States District Court for the Eastern District of New York

(Charles P. Sifton, Judge). See Fed. R. Crim. P. 29(c)(2). Although a jury found Heras

guilty of both conspiracy to possess and aiding and abetting an attempt to possess with intent

to distribute 500 grams or more of cocaine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii)(II),

846; 18 U.S.C. § 2, the district court concluded that the trial evidence was insufficient as a

matter of law to establish the specific intent element of these crimes, see United States v.

Heras, No. 09-CR-86, 2009 WL 1874373 (E.D.N.Y. June 29, 2009). The district court

acknowledged that the evidence satisfactorily established that, on January 25, 2009, Heras

drove Simon Correa, whom Heras knew to be a drug dealer, to a hotel near John F. Kennedy

2
International Airport, knowing that the purpose of the trip was for Correa to take possession

of a quantity of drugs. The court further acknowledged that “[w]hen a drug trafficker

acquires drugs it may be presumed that the trafficker will distribute them.” Id. at *5.

Nevertheless, citing two footnotes in our opinion in United States v. Nelson, 277 F.3d 164,

197 n.37, 198 n.40 (2d Cir. 2002), the district court concluded that more specific evidence

of Heras’s own intent to distribute the drugs at issue was necessary to support conviction in

light of defendant’s statement to federal agents denying any stake in the January 25 drug

deal.

Nelson does not, in fact, support setting aside the verdict in this case. Nothing in that

opinion alters the well-established rule that, on a sufficiency challenge, the evidence must

be viewed in the light most favorable to the government. See Jackson v. Virginia, 443 U.S.

307, 319 (1979); United States v. Aguilar, 585 F.3d 652, 656 (2d Cir. 2009). This rule

required the district court, as it requires us, to assume that the jury did not credit Heras’s self-

serving protestation that he had “nothing to do” with Correa’s drug deal. Trial Tr. at 83; see

United States v. Burden, 600 F.3d 204, 214 (2d Cir. 2010). In any event, even if Heras, an

acknowledged marijuana dealer, viewed the January 25 cocaine transaction as Correa’s

alone, that hardly provides an innocent explanation for his actions in facilitating Correa’s

attempted drug possession, much less does it signal that Heras did not know that the specific

intent of such possession was distribution.

3
 In sum, we conclude that the evidence was sufficient to permit a jury to infer from

Heras’s knowledge that Correa was a drug dealer seeking to take possession of a quantity of

drugs and Heras’s knowing effort to further and facilitate that possession that Heras

necessarily adopted the specific intent underlying the attempted possession, namely,

distribution of any acquired drugs. Accordingly, we vacate the judgment of acquittal and

remand the case to the district court with instructions that it reinstate the jury verdict, proceed

to sentencing, and enter a judgment of conviction.

I. Background

A. The Attempted Possession of Cocaine

On January 24, 2009, federal agents at Kennedy Airport seized almost three pounds

of cocaine from Terry Pannell, a passenger arriving in the United States from Bogota,

Colombia: 1,102 grams of 76.6% pure cocaine hidden in the lining of Pannell’s briefcase,

and 311.5 grams of 77.58% pure cocaine hidden in Pannell’s leather portfolio.

Pannell agreed to cooperate with the agents in making a controlled delivery of the

seized cocaine at a nearby Holiday Inn. Toward that end, on January 24 and 25, 2009,

Pannell placed monitored telephone calls to both his Colombian source of supply and his

United States contact. In these calls, Pannell was instructed to deal with a man named

“Primo,” later identified as Simon Correa, also known as “Luichi.”

4
 At approximately 10:30 p.m. on January 25, 2009, federal agents observed Correa

arrive at the Holiday Inn in a minivan and proceed to Pannell’s room. In a recorded

conversation, Pannell asked Correa if he had brought the money to pay for the drugs. Correa

replied that he had not and that his “orders” were “to take everything” – an apparent

reference to both the briefcase and portfolio – and to return with the money the following

day. Controlled Delivery Tr. at 1. Pannell stated that he was told to give Correa only the

smaller quantity of cocaine in the portfolio and to wait for Correa to make payment before

giving him everything. Correa agreed, stating that he would be back “in a matter of an hour”

with the money. Id. at 2. In fact, as soon as Pannell gave Correa the portfolio, federal agents

placed Correa under arrest.

B. Heras’s Statements to Federal Authorities

Upon learning of Correa’s arrest, other federal agents surveilling the Holiday Inn

parking lot proceeded to the minivan in which Correa had arrived at the hotel. The van’s

engine and lights were turned off and two men were sitting inside: Heras in the driver’s seat

and Jorge Rodriguez in the passenger’s seat. The men were not formally arrested, but they

were brought to a nearby location for questioning.1

1
Rodriguez was never arrested in connection with the January 25, 2009 drug
transaction and, thus, we discuss him no further in this opinion.

5
 After providing biographical information, Heras asked the agents what was going on.

Advised that a serious federal crime had been committed involving the importation of

narcotics, Heras stated: “‘Whoa, whoa, whoa, whoa, whoa. Whatever happened up there,

that has to do with Simon. That has nothing to do with me.’” Trial Tr. at 83 (testimony of

Agent Robert Etienne regarding Heras’s statement).2 At this point, the agents advised Heras

of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). Heras orally

acknowledged that he understood his rights, and he stated that he wanted to cooperate and

was willing to speak without an attorney.

Heras told the agents he was at the Holiday Inn “to drop off a friend named Luichi,”

i.e., Correa. Trial Tr. at 84. Heras initially denied any knowledge of or involvement in a

drug deal, asserting that he understood Correa to be going to the hotel “to meet a girl,” and

explaining that he was waiting outside for a phone call telling him that Correa was “safe.”

Id. at 85. When agents challenged the plausibility of this account, Heras acknowledged that

Correa was a drug dealer and that he knew Correa was at the hotel to pick up drugs.

Although Heras denied knowing that purpose when he picked Correa up in Manhattan, Heras

admitted that the drug deal was “openly discussed” during the drive to Queens. Id. at 86.

At one point, Heras claimed that he was not going to permit Correa to get back in his car, a

2
Another agent present in the interview room recalled that Heras stated: “‘Whoa,
whoa, you know. I don’t know. This is Simon’s,’” or, “‘This is Luichi’s deal.’” Trial Tr.
at 125.

6
statement at odds not only with Heras’s waiting in the parking lot while Correa was in the

hotel, but also with Heras’s subsequent acknowledgment that he expected Correa to

compensate him for his assistance on January 25 as he had in the past: by connecting Heras

with suppliers for his own marijuana distribution business.

C. Telephone Contact Between Heras and Correa

Telephone records were introduced at trial showing nine calls between Correa and

Heras made between 8:29 p.m. on January 24, 2009, and 9:49 p.m. on January 25, 2009.

Although the content of these calls was generally unknown, one “call” from Correa to Heras

at 5:08 p.m. on January 25 was in fact a text message that, translated from Spanish into

English, stated: “‘What’s up? Dial me. It’s your cousin. Don’t abandon me.’” Id. at 131.

D. The Guilty Verdict and Judgment of Acquittal

On April 29, 2009, after a three-day trial, a jury found Heras guilty of conspiracy to

possess 500 grams or more of cocaine with intent to distribute, and attempt to possess the

same quantity of cocaine with intent to distribute. With respect to the attempt count, the

government had argued that Heras was guilty on a theory of aiding and abetting. See 18

U.S.C. § 2.

Pursuant to Fed. R. Crim. P. 29(c), Heras moved for a judgment of acquittal on both

counts, arguing that the evidence was insufficient as a matter of law to support the jury

verdict. The district court agreed, and on June 29, 2009, granted the defense motion. See

7
United States v. Heras, 2009 WL 1874373. Specifically, the district court found the evidence

insufficient to satisfy the specific intent element of a 21 U.S.C. § 841(a)(1) possession crime

(whether substantive or inchoate), i.e., an intent to distribute the possessed drugs. See id. at

*5-6. Because we discuss relevant aspects of the district court’s reasoning in the next section

of this opinion, we do not detail it here.

II. Discussion

A. Standard of Review

We review a challenged judgment of acquittal notwithstanding a guilty verdict de

novo, applying the same standard of constitutional sufficiency as the district court. See

United States v. Hawkins, 547 F.3d 66, 70-71 (2d Cir. 2008); United States v. Florez, 447

F.3d 145, 154 (2d Cir. 2006). A defendant challenging the sufficiency of the evidence “bears

a heavy burden,” United States v. Aguilar, 585 F.3d at 656, because a reviewing court must

sustain the jury’s guilty verdict if “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,” Jackson v. Virginia, 443 U.S. at 319 (emphasis in original).

“Under this stern standard, a court, whether at the trial or appellate level, may not usurp the

role of the jury by substituting its own determination of the weight of the evidence and the

reasonable inferences to be drawn for that of the jury.” United States v. MacPherson, 424

F.3d 183, 187 (2d Cir. 2005) (internal quotation marks, citations, brackets, and ellipsis

8
omitted). Rather, a court may enter a judgment of acquittal only if “the evidence that the

defendant committed the crime alleged is nonexistent or so meager that no reasonable jury

could find guilt beyond a reasonable doubt.” Id. (internal quotation marks omitted)

(emphasis added).

B. The Specific Intent Element of § 841(a)(1) Possession Crimes

Title 21 U.S.C. § 846 makes it a crime for any person to “attempt[] or conspire[] to

commit any offense defined in this subchapter.” Among the offenses defined in 21 U.S.C.

§ 841(a)(1) is the knowing possession of a controlled substance “with intent to . . .

distribute.” This is in contrast to 21 U.S.C. § 844, which makes it a lesser offense to possess

a controlled substance without regard to its intended disposition.

Thus, to convict Heras of conspiring or attempting to possess cocaine in violation of

§ 841(a)(1), the government was required to prove that he acted with the specific intent that

the cocaine at issue be distributed. See, e.g., United States v. Torres, 604 F.3d 58, 65 (2d Cir.

2010) (observing that to convict defendant of § 841(a)(1) conspiracy, “the government ‘must

prove at least the degree of criminal intent necessary for the substantive offense’” (quoting

United States v. Feola, 420 U.S. 671, 686 (1975))); United States v. Ogando, 547 F.3d 102,

107-08 (2d Cir. 2008) (noting that § 841(a)(1) conspiracy and aiding and abetting convictions

“require[] a showing of specific intent”); see generally United States v. Garcia, 587 F.3d 509,

515 (2d Cir. 2009) (holding that, in conspiracy cases, government must show that defendant

9
“knowingly engaged in the conspiracy with the specific intent to commit the offense[] that

[is] the object[] of the conspiracy” (internal quotation marks omitted)).

Proof of such intent need not have been direct. The law has long recognized that

criminal intent may be proved by circumstantial evidence alone. See United States v.

MacPherson, 424 F.3d at 189-90; United States v. Nelson, 277 F.3d at 197; United States v.

Salameh, 152 F.3d 88, 143 (2d Cir. 1998) (“[A]s a general rule most evidence of intent is

circumstantial.”); see also United States v. Torres, 604 F.3d at 67 (“[C]onspiracies are

undertakings in secret and often cannot be proven except through the use of circumstantial

evidence . . . .”). Nor did such proof have to demonstrate any agreement that Heras himself

would participate in the distribution, as well as in the acquisition, of the cocaine at issue.

“One can be a conspirator by agreeing to facilitate only some of the acts leading to the

substantive offense.” Salinas v. United States, 522 U.S. 52, 65 (1997); see also United States

v. Reifler, 446 F.3d 65, 96 (2d Cir. 2006) (holding that defendant may be convicted of aiding

and abetting “where the government proves that the underlying crime was committed by a

person other than the defendant”); United States v. Frampton, 382 F.3d 213, 223 (2d Cir.

2004) (holding that conviction for aiding and abetting depends on defendant’s “specific

intent of facilitating or advancing the principal’s commission of the underlying crime”).

In this case, a jury could reasonably infer Heras’s intent to distribute from evidence

indicating that he knew that the object of the charged drug possession was Correa’s

10
distribution of the contraband and that, with that knowledge, he agreed to facilitate the crime.

As the Supreme Court explained in Salinas, “[a] conspirator must intend to further an

endeavor which, if completed, would satisfy all of the elements of a substantive criminal

offense, but it suffices that he adopt the goal of furthering or facilitating the criminal

endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts

necessary for the crime’s completion.” 522 U.S. at 65 (emphasis added).

To be sure, mere knowledge of a criminal objective, such as the intended distribution

of possessed drugs, is not enough by itself to make a person a conspirator or an aider and

abettor. See United States v. Hawkins, 547 F.3d at 74; United States v. Frampton, 382 F.3d

at 223. But when a person possessing such knowledge agrees to facilitate or actually

facilitates the crime, a jury may reasonably infer from this combination of knowledge and

action that the defendant has adopted the known goal of the crime as his own. See Salinas

v. United States, 522 U.S. at 65; United States v. Santos, 541 F.3d 63, 73 (2d Cir. 2008)

(observing that in conspiracy case jury may “infer intent and agreement from knowledge,”

particularly in context of defendant’s interested cooperation or stake in scheme); United

States v. Hamilton, 334 F.3d 170, 180 (2d Cir. 2003) (holding that aiding and abetting

liability requires proof that defendant “knew of the crime” and “acted with the intent to

contribute to [its] success”).

11
 With these principles in mind, we consider the evidence supporting the jury verdict

against Heras.

C. The Trial Evidence Was Sufficient To Permit a Jury To Find that Heras Acted
with the Specific Intent To Facilitate Drug Distribution

To support Heras’s conviction for conspiracy and attempt, the evidence had to be

sufficient to permit a reasonable jury to conclude both that (1) Heras knew that Correa sought

to take possession of drugs on January 25, 2009, in order to distribute them, and (2) with

such knowledge, Heras agreed to and actually facilitated that criminal objective. The district

court determined that the evidence was not sufficient in either respect because, even though

it showed that “Heras learned during the car ride that Correa was going to a place to pick up

drugs, . . . there was no evidence that Heras knew of Correa’s plan for what to do with the

drugs after acquiring them or that Heras intended to further that part of the criminal venture.”

United States v. Heras, 2009 WL 1874373, at *5. We are obliged to disagree with this

assessment of both the record evidence and the law.

As to the former, powerful evidence supported a jury inference that Heras knew what

Correa would do with any drugs acquired on January 25, 2009: Heras told federal authorities

Correa was a drug dealer. As the district court itself observed, “[w]hen a drug trafficker

acquires drugs it may be presumed that the trafficker will distribute them.” Id.; cf. United

States v. Martinez, 54 F.3d 1040, 1043-44 (2d Cir. 1995) (identifying sufficient evidence of

intent to distribute where defendant “was not a user” yet possessed drugs and items related

12
to drug trafficking). That presumption would only have been reinforced in Heras’s mind by

the circumstantial evidence in this case. Notably, Correa had Heras travel from Manhattan

to Queens to effect possession of the drugs, a greater effort than is generally associated with

the acquisition of a personal-use quantity in New York City. Further, the Queens site for the

anticipated drug transfer – a hotel near the city’s major international airport – strongly

suggested that the contraband at issue had recently been imported, another circumstance

more indicative of a drug quantity intended for distribution rather than personal use. Finally,

even without knowing the content of the January 24-25 telephone calls between Correa and

Heras, the frequency of the calls and the coincidence of their occurrence – all placed in the

interval between the importation of the three pounds of cocaine into the United States and

the Correa-Heras trip to Queens to take possession of those drugs – are more reflective of a

jointly undertaken scheme to acquire drugs for distribution rather than for personal use.

To be sure, no evidence was introduced at trial indicating that Heras knew the

particulars of Correa’s distribution plan for any drugs acquired on January 25, 2009. But a

defendant need not know all the details of a criminal scheme to be guilty of conspiracy or

aiding and abetting. See Blumenthal v. United States, 332 U.S. 539, 557 (1947); United

States v. Huezo, 546 F.3d 174, 179-80 (2d Cir. 2008); United States v. Reifler, 446 F.3d at

96. Heras knew that Correa was a drug dealer and that he was traveling inter-borough to take

possession of a quantity of drugs. These facts, together with the other circumstantial

13
evidence cited, were sufficient to permit a reasonable jury to find that Heras knew that the

object of Correa’s crime was to distribute any acquired drugs.

The sufficiency of the evidence to support a finding of such knowledge is fatal to the

district court’s second conclusion that the evidence was insufficient, as a matter of law, to

demonstrate Heras’s intent “to further [the distribution] part of the criminal venture.” United

States v. Heras, 2009 WL 1874373, at *5. As previously observed, if a defendant, with

knowledge that the object of attempted drug possession is distribution, thereafter joins in and

attempts to further that drug possession, a jury may reasonably find from that combination

of knowledge and action that the defendant adopted the underlying intent to distribute as his

own. See Salinas v. United States, 522 U.S. at 65 (referencing defendant’s adoption of

conspiracy’s goals); United States v. Santos, 541 F.3d at 73 (holding that intent and

agreement may be inferred from defendant’s knowledge of conspiracy and actions in

furtherance of its object); United States v. Clark, 765 F.2d 297, 303 (2d Cir. 1985) (stating

that person with knowledge of criminal scheme was properly convicted of aiding and

abetting where evidence supported inference that he “shared the intent” of principal (internal

quotation marks omitted)).

The district court appears initially to have reached the same conclusion when it

alluded to the law’s general willingness to permit a jury to infer that a defendant intends the

ordinary consequences of his action. See United States v. Heras, 2009 WL 1874373, at *5.

14
Thus, a defendant who assists a confederate’s attempted possession of drugs, knowing that

the confederate intends to distribute them, can reasonably be found to intend the distribution

that he knows will be the ordinary consequence of any assistance he gives the scheme. The

district court nevertheless concluded that Heras’s actions in facilitating the attempted

possession of drugs by a known drug dealer were insufficient to support an inference of an

intent to distribute those drugs in light of Heras’s “innocent” explanation for his actions,

specifically, his statement to federal agents that “‘[w]hatever happened up there, that has to

do with Simon. That has nothing to do with me.’” Id. at *5-6 (quoting Trial Tr. at 83).

Citing United States v. Nelson, 277 F.3d at 197 n.37, 198 n.40, the district court concluded

that in the face of such exculpatory evidence, more than a presumption of intended ordinary

consequences was necessary to demonstrate that Heras conspired or attempted to possess

drugs with the requisite specific intent to distribute. The conclusion is unwarranted for

several reasons.

First, it misconstrues the point made in footnote 40 of our Nelson decision.3 The

offense charged in Nelson, a violation of 18 U.S.C. § 245(b)(2)(B) (prohibiting

discriminatory injury, intimidation, or interference with enjoyment of state-provided facility),

3
We need not separately address footnote 37 of Nelson, also cited by the district
court, because that footnote simply clarified that defendants in that case challenged the
“naked inference” contained in an ordinary consequences jury instruction, even though “no
evidence contradict[ed]” defendants’ presumed intent. 277 F.3d at 197 n.37.

15
required proof that defendants had the specific “intent to act against the victim on account

of her using public facilities.” 277 F.3d at 189. Referencing the ordinary consequences

presumption, Nelson concluded “that evidence that a victim was attacked while actually

engaged in a protected activity would ordinarily be enough to send the question of activities-

based intent to a jury, because such facts would afford the basis for an inference that the

assailant did intend to interfere with the protected activity.” Id. at 198 (internal quotation

marks and brackets omitted). In footnote 40, Nelson reiterated this point in rejecting

defendants’ sufficiency challenge, observing that “where a jury infers intent by deciding that

a given defendant meant to bring about the consequences of his actions, that defendant

cannot (without pointing to countervailing evidence that the jury ignored) unseat this finding

by challenging the sufficiency of the evidence.” Id. at 198 n.40. This statement indicates

only that no sufficiency challenge to a finding of intent based on an ordinary consequences

presumption can be mounted in the absence of countervailing evidence. It does not hold, as

the district court may have thought, that any proffer of countervailing evidence renders an

ordinary consequences presumption insufficient as a matter of law to support a finding of

intent. Plainly some actions may support presumptions of intent more forcefully than others.

Similarly, some countervailing evidence may rebut the presumption more conclusively than

other evidence. In short, Nelson establishes no bright line rule of insufficiency such as the

district court applied here.

16
 Second, Nelson does not signal any departure from the established principle that, on

a sufficiency challenge, a reviewing court must view the evidence in the light most favorable

to the prosecution. See United States v. Burden, 600 F.3d at 214 (crediting all inferences

drawn in government’s favor).4 In this case, that principle required the district court to

assume that the jury considered and discredited Heras’s protestation that he had “nothing to

do” with the drug transaction that Correa was attempting to consummate in the hotel room.

Trial Tr. at 83; see United States v. Payne, 591 F.3d 46, 60 (2d Cir. 2010) (“Assessments of

witness credibility and choices between competing inferences lie solely within the province

of the jury.”). Such an assumption requires little effort in this case. Heras’s quoted statement

was made at a time when he was plainly lying to the agents, telling them that he brought

Correa to the Holiday Inn to meet a girl. Only later did he admit knowing that Correa was

a drug dealer and that the trip from Manhattan to Queens was for Correa to take possession

of drugs. When we assume that the jury discredited Heras’s attempt to distance himself from

Correa’s drug deal, we are compelled to conclude that the jury could reasonably infer from

evidence signaling Heras’s knowledge of Correa’s distribution objective and the assistance

4
In fact, Nelson reiterated the principle: “In addressing [a sufficiency] challenge, ‘we
must consider the evidence in the light most favorable to the government.’ . . . And we ‘must
credit every inference that could have been drawn in the government’s favor.’” 277 F.3d at
195 (quoting United States v. Gore, 154 F.3d 34, 40 (2d Cir. 1998), and United States v.
Masotto, 73 F.3d 1233, 1241 (2d Cir. 1996)).

17
Heras provided Correa in taking possession of the drugs that Heras acted with the requisite

specific intent to distribute.5

Third, even if the jury did not discredit Heras’s initial statement to the authorities in

its entirety, the totality of the evidence was sufficient to permit the jury to find Heras guilty

of the charged crimes. Heras drove a known drug dealer to a hotel, knowing that the purpose

of the trip was for the dealer to take possession of a quantity of drugs. To the extent that was

the limit of Heras’s involvement, he may have thought that any possession acquired in the

hotel room and any distribution occurring thereafter was Correa’s affair and had “nothing to

5
These circumstances are distinguishable from those in United States v. Law, 528
F.3d 888 (D.C. Cir. 2008), also cited by the district court in support of its sufficiency
conclusion. In Law, the D.C. Circuit ruled that “when faced with an innocent explanation
sufficiently supported by the evidence to create a reasonable doubt” about defendant’s intent
to conceal the source of the funds at issue, “the Government’s burden is to present evidence
sufficient to dispel that doubt.” Id. at 896 (emphasis added). The evidence supporting
defendant’s innocent explanation for mortgage payments charged as money laundering in
Law could be found sufficient to raise a reasonable doubt, even by a reviewing court
considering the record in the light most favorable to the government, because the evidence
was undisputed: financial records showed that defendant profited by assuming responsibility
for the mortgage payments. See id. (noting that transactions engaged in for present personal
benefit and not to create appearance of legitimate wealth generally do not violate money
laundering statutes). In such circumstances, the D.C. Circuit concluded that it was
particularly important for the government to adduce evidence to dispel the doubt thus raised
as to defendant’s criminal intent “because of the fine line between laundering and merely
spending illicit funds.” Id. (observing that latter was insufficient to violate laundering
statute). We need not here decide whether we would adopt Law’s reasoning in similar
circumstances. We note only that, in this drug trafficking case, defendant’s protestation of
innocence was entirely self-serving and, far from being supported by undisputed evidence,
was undermined by the totality of the circumstances.

18
do” with him. The law, however, takes a different view. As already observed, a jury could

reasonably infer that Heras knew that the ultimate object of Correa’s intended possession was

distribution. When, with that knowledge, Heras acted to further Correa’s possession, Heras

demonstrated a sufficient commitment to the success of the overall scheme to be found liable

for the charged § 841(a)(1) crimes, even though his role was relatively minor. See United

States v. Huezo, 546 F.3d at 180 (holding that “single act” may suffice to demonstrate

involvement in criminal enterprise of substantial scope (internal quotation marks omitted));

United States v. Almanza, 225 F.3d 845, 846 (7th Cir. 2000) (“Anyone who agrees to join

a criminal undertaking is a conspirator, and he is liable for all the criminal acts of the

conspiracy that are foreseeable to him . . . regardless of how large or small his own role is.”

(citing, inter alia, Pinkerton v. United States, 328 U.S. 640, 646-47 (1946))); compare United

States v. Pitre, 960 F.2d 1112, 1121-22 (2d Cir. 1992) (holding defendant liable for

§ 841(a)(1) drug conspiracy where jury could infer that he “was aware that he was

transporting money to be used to purchase narcotics” and “acted intentionally and knowingly

as a driver in furtherance of the charged narcotics conspiracy”), with United States v.

Rodriguez, 392 F.3d 539, 544-48 (2d Cir. 2004) (acknowledging that lookouts may be liable

for § 841(a)(1) conspiracy but reversing conviction where evidence was insufficient to show

defendant “knew the specific nature of the conspiracy or underlying crime” (internal

quotation marks omitted)), and United States v. Cruz, 363 F.3d 187, 197-99 (2d Cir. 2004)

19
(reversing conviction of lookout where “little evidence in the record . . . suggest[ed] that

[defendant] knew of the specific crime . . . or that [he] intended to facilitate such a crime”).

Further supporting that finding was Heras’s admission that he expected that Correa

would compensate him for his assistance, as he had in the past, by putting him in touch with

suppliers for Heras’s own marijuana operation. To be sure, if the anticipated compensation

had depended on Correa’s profitable sale of the acquired drugs, that would have given Heras

an even greater stake in the conspiracy, providing still more powerful proof of his own intent

that the drugs be distributed. See United States v. Desimone, 119 F.3d 217, 224 (2d Cir.

1997) (holding that “expectation of compensation from the profits of the cocaine sale . . .

constituted proof of [defendant’s] interest in furthering the goals of the conspiracy”). But

anticipated compensation need not depend on the successful achievement of the criminal

scheme to provide evidence supporting a jury inference that a defendant knows and has

adopted the conspiracy’s goals. See, e.g., United States v. Peltz, 433 F.2d 48, 51 (2d Cir.

1970) (inferring conspiratorial agreement where defendant rewarded co-conspirator by

“procuring female company” for him). That is particularly so where, as here, a defendant

indicates that he has previously received compensation in the form of assistance in his own

drug distribution efforts from the known drug dealer whose distribution scheme defendant

is charged with joining and assisting.

III. Conclusion

20
 To summarize, we conclude that the trial evidence, viewed in the light most favorable

to the government, was sufficient to permit a reasonable jury to infer from Heras’s admitted

knowledge that Correa was a drug dealer seeking to take possession of drugs that (1) Heras

knew the intent of the possession was drug distribution; and (2) when, with that knowledge,

Heras agreed to and did facilitate the attempted possession, he adopted the intent to distribute

necessary to support convictions for conspiring and attempting to violate 21 U.S.C.

§ 841(a)(1). The judgment of acquittal is therefore VACATED, and the case is

REMANDED to the district court with instructions to reinstate the jury verdict, proceed to

sentencing, and enter a judgment of conviction.

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