United States Court of Appeals
For the First Circuit
No. 99-1924
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERTO ARIAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Elaine H. Thompson for appellant.
Christopher S. Rhee, Attorney, United States Department of
Justice, with whom Margaret E. Curran, United States Attorney,
and Zechariah Chafee, Assistant United States Attorney, were on
brief for appellee.
January 17, 2001
CYR, Senior Circuit Judge. Following a brief jury
trial, Roberto Arias appeals from the judgments of conviction
entered against him in the District of Rhode Island for (i)
aiding and abetting the possession of heroin by one Luis
Moscoso, with intent to distribute, see 21 U.S.C. § 841(a); 18
U.S.C. § 2, and (ii) conspiring to possess heroin, with intent
to distribute, see 21 U.S.C. § 846. We affirm those judgments.
I
BACKGROUND
The trial centered around what Arias knew about the
$20,000 “brick” of high-grade heroin — heavily wrapped in paper,
plastic and tape — which was removed from Moscoso’s jacket
pocket on November 5, 1998, after he and Arias were arrested by
narcotics detectives of the Providence Police Department
following their 15-to-20-minute mobile surveillance of a blue
Volkswagen owned and operated by Arias, with Moscoso in the
passenger seat. As there was no evidence that Arias ever
possessed the heroin, the government relied upon circumstantial
evidence in a successful effort to persuade the jury that the
exculpatory trial testimony given by Arias simply was not
credible.
3
Arias testified that he had “bumped into” Moscoso “on
the street” in New York City a few months earlier and urged him
to call “if he ever came [to Providence].” Then, according to
Arias, on November 5, 1998, Moscoso called, stated that he was
in the Providence area, and asked Arias to meet him at the
corner of Broad Street and Clayton Street and drive him to the
Providence Pizza Palace, where Moscoso was to meet someone named
“Miguel.”1
The government neither attempted to demonstrate, nor
claimed, that Arias ever saw, smelled or touched the heroin
Moscoso carried in his jacket pocket. Instead, it sought to
persuade the jury that the Arias testimony — particularly his
1Although the statement Arias attributed to Moscoso — that
Moscoso needed a ride to the Providence Pizza Palace to meet
“Miguel” — was central to the Arias defense, Arias neither
mentioned the nature of the relationship between “Miguel” and
Moscoso, nor the purpose of the anticipated meeting with
“Miguel.” Nor does the trial record contain any explanation as
to why Moscoso, having just arrived from New York City, would
need a ride to the Providence Pizza Palace, where, as the
evidence plainly demonstrated, he was to deliver the heroin.
Moreover, experienced narcotics detectives testified,
without contradiction, that drug dealers are notoriously
reluctant to deliver large quantities of illicit drugs to
locations with which they are unfamiliar. These witnesses
explained that drug dealers scrupulously avoid such arrangements
because it is common practice for drug dealers to “set up” a
competitor by placing an order for delivery to a location at
which the unwitting seller can be forcibly relieved of the
illicit drugs, thereby enabling the putative “buyer” to acquire
the drugs at no cost and with little concern that the victim
will report the loss to law enforcement authorities.
4
explanation for the bizarre maneuvers repeatedly performed by
the blue Volkswagen, as observed by the officers conducting the
clandestine mobile surveillance — abundantly demonstrated not
only Arias’ guilty knowledge of the criminal mission upon which
Moscoso was embarked, but Arias’ complicity in the mission as
well.
The circumstantial evidence presented by the government
sharply undercut the “mere presence” defense offered by Arias,
readily enabling the jury to find beyond a reasonable doubt that
at around 8:30 p.m. on November 5, 1998, the Providence Police
Department had received an anonymous tip that two Hispanic males
were en route to the Providence Pizza Palace from New York City
in a blue Volkswagen, bearing Rhode Island license plate CV-270,
with a large quantity of heroin. Detective Robert Enright, an
experienced narcotics officer, testified that he was assigned to
conduct mobile surveillance on the blue Volkswagen expected to
arrive shortly in the Broad Street area, near the entrance to
Roger Williams Park in Providence, en route from New York City.
Pursuant to standard practice, Detective Enright selected a
nondescript, unmarked, used vehicle for the surveillance.
At the time Detective Enright initially spotted the
blue Volkswagen, it was carrying two males, as anticipated, and
traveling —
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“at an excessive speed, faster than
everybody else[,] doing serpentine
maneuvers. [That is, it] was passing people
on the left and the right. [It] was using
the right lane to pass and just doing a
serpentine around the other vehicles ... on
Broad Street ... until right about the
overpass on Broad Street .... [A]fter that,
it was going slower than traffic and pulled
over ... to the curb ...[,] [t]he passenger
[i.e., Moscoso] ... exited the vehicle ...
walked a few feet ... stood in front of ...
a liquor store ...[,] did not [enter,] ...
[but] looked all around[,] the area.” The
driver [i.e., Arias] “stayed in the car and
was also looking around.”
No less curiously, the blue Volkswagen repeatedly made back-to-
back U-turns, in traffic, and from time to time departed the
busier streets, drove down a quiet residential street, then
parked briefly with its lights out before resuming its
circuitous route on major thoroughfares.
Moreover, on at least one occasion, while first in line
approaching a green traffic light at a busy intersection, Arias
stopped the blue Volkswagen, waited until the green light turned
to red, then proceeded swiftly through the intersection an
instant before the opposing traffic received the green light to
proceed into the intersection.2 Some of these maneuvers were
2Detective Enright further testified that on several
occasions after Moscoso had exited the Arias vehicle, observed
the traffic, and returned to the Volkswagen without speaking
with anyone, Arias would cause the vehicle to take off abruptly
— in a “jackrabbit start” — into the traffic flow.
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repeated several times by the blue Volkswagen during the
surveillance, which lasted from 15 to 20 minutes yet traversed
no more than four to five miles.
The trial focused principally upon the exculpatory
testimony provided by Arias, as well as extensive testimony from
various law enforcement officers responsible for the vehicular
surveillance of the blue Volkswagen. The government relied upon
circumstantial evidence and an appeal to juror commonsense,
essentially contending that the exculpatory testimony provided
by Arias simply was not credible, particularly in light of the
testimony by Detective Enright and other experienced narcotics
detectives who described the surveillance of the blue Volkswagen
in minute detail.
II
DISCUSSION
A. The Conspiracy Verdict
We must affirm the conspiracy conviction unless no
rational juror could have found that each essential element of
the alleged offense was established beyond a reasonable doubt.
See United States v. Josleyn, 99 F.3d 1182, 1190 (1st Cir.
1996), cert. denied sub nom. Billmyer v. United States, 519 U.S.
1116 (1997). “All credibility issues are to be resolved, and
every reasonable inference [is to be] drawn, in the light most
7
favorable to the verdict.” Id. (Emphasis added.) “[M]oreover,
as among competing inferences, two or more of which are
plausible, [we] must choose the inference that best fits the
prosecution’s theory of guilt.” United States v. Olbres, 61
F.3d 967, 970 (1st Cir. 1995). After carefully scrutinizing the
entire trial record, we conclude that the compelling
circumstantial evidence presented by the government, combined
with various corroborative credibility determinations well
within the exclusive province of the jury, afforded adequate
support for the conspiracy conviction. See id.
The central factfinding task for the jury was what, if
anything, an ostensibly unsuspecting Arias knew about the heroin
distribution mission upon which Moscoso was embarked as the blue
Volkswagen was en route to the Providence Pizza Palace for the
meeting with “Miguel.” The defense essentially maintained,
correctly enough, that Arias’ “mere presence” at the crime scene
and “mere association” with Moscoso were insufficient to support
the conspiracy charge. See United States v. Mangual-Corchado,
139 F.3d 34, 44 (1st Cir.); cert. denied sub nom. Cirilo-Munoz
v. United States, 525 U.S. 942 (1998); United States v. Batista-
Polanco, 927 F.2d 14, 18 (1st Cir. 1991). Rather, the
government had to prove, beyond a reasonable doubt, that Arias
and Moscoso “agreed, at least tacitly, to commit the substantive
8
offense which constituted the object of their agreement, and
that [Arias] voluntarily participated in ... [it.]” United
States v. DiMarzo, 80 F.3d 656, 661 (1st Cir.); cert. denied sub
nom. Alzate-Yepez v. United States, 519 U.S. 904 (1996).
On the other hand, as the government points out, the
jury was entitled to rely on circumstantial evidence to infer
any and all essential elements of the alleged conspiracy,
provided the evidence demonstrated, beyond a reasonable doubt,
more than mere presence at the crime scene and more than mere
association with those involved in the crime. See id. Finally,
the available circumstantial evidence is to be viewed in the
light most favorable to the verdict, in order to determine
whether it affords sufficient support for various incriminating
inferences the jury reasonably may have drawn from the Arias
trial testimony. See id.
Arias testified that when requested to drive Moscoso
to the Providence Pizza Palace to meet “Miguel,” he failed to
advise Moscoso that he did not know (i) how to get to the
junction of Broad Street and Clayton Street, where he was to
meet Moscoso, or (ii) whether the Providence Pizza Palace was
located in Providence or neighboring Cranston, Rhode Island.
Thus, the jury was entitled to draw a reasonable inference that
this implausible testimony either (i) constituted a fabricated
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foundation for the essential linchpin in the Arias defense
(viz., that the bizarre behavior of the blue Volkswagen and its
occupants, as observed by the officers conducting the mobile
surveillance, was due simply to the aimless meanderings of a
driver lost in an unfamiliar area) or (ii) demonstrated Arias’
“guilty knowledge” of the criminal mission upon which he and
Moscoso were jointly embarked. See, e.g., United States v.
O’Brien, 14 F.3d 703, 706 (1st Cir. 1994) (“[c]ircumstantial
evidence tending to show guilty knowledge need not compel a
finding of such knowledge in order to sustain a conviction; all
that is necessary is that reasonable jurors could be convinced
beyond a reasonable doubt that the defendant[] had guilty
knowledge.”) (quoting United States v. Flaherty, 668 F.2d 566,
579 (1st Cir. 1981)) (emphasis added).
The latter inference, wholly warranted on a commonsense
assessment of the entire trial record, see supra section I,
afforded adequate evidentiary support for a critical companion
inference as well: that the extreme countersurveillance
measures resorted to by Arias, in attempting to detect and/or
“shake” any mobile surveillance by competing drug dealers or by
law enforcement officers, were prompted by Arias’ guilty
knowledge that he and Moscoso were mutually embarked upon their
heroin distribution mission en route to the planned meeting with
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“Miguel” at the Providence Pizza Palace; hence, the otherwise
inexplicable countersurveillance activities repeatedly engaged
in by the blue Volkswagen, driven by Arias, as observed by the
narcotics detectives conducting the surveillance.
B. The Aiding and Abetting Verdict
We must affirm the aiding and abetting verdict unless
no rational juror could have found, beyond a reasonable doubt,
that (i) Moscoso intended to distribute to “Miguel” the large
cache of heroin in his jacket pocket; and (ii) Arias
“‘consciously shared’ [that] criminal design, associated himself
with it, and actively sought to ensure its success.” Mangual-
Corchado, 139 F.3d at 44 (citations omitted). The one matter
meriting limited discussion in the instant context is whether
there was enough evidence to establish, beyond a reasonable
doubt, that Arias “consciously shared” the criminal purpose
plainly harbored by Moscoso.
We need not belabor the point. The identical
circumstantial evidence and credibility assessments which
permitted the jury to determine, beyond a reasonable doubt, that
Arias conspired with Moscoso to possess the heroin for
distribution to “Miguel,” see II(A) supra, sufficed as well to
establish, beyond a reasonable doubt, that Arias consciously
shared and sought to further Moscoso’s intention to distribute
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the heroin to “Miguel,” by transporting Moscoso to the
Providence Pizza Palace, where Moscoso was to meet “Miguel.”
III
CONCLUSION
For the foregoing reasons, the judgments of conviction
are affirmed.3 SO ORDERED.
3
Arias further claims he is entitled, at the very least, to
an offense-level reduction, pursuant to U.S.S.G. § 3B1.2, on the
grounds that (i) he merely drove the car in which Moscoso was
transporting the heroin, and (ii) Moscoso was “the brains,” as
the district court itself observed at one point. Although we
assume arguendo that the failure to afford such a reduction sua
sponte is subject to plain error review — Arias admits he did
not request such a reduction — nothing in the evidence before us
indicates that it was error not to afford the reduction.
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