United States v. Paret-Ruiz

United States Court of Appeals
For the First Circuit

No. 06-2709

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE A. PARET-RUIZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,
and DiClerico,** District Judge.

Víctor González-Bothwell, Assistant Federal Public Defender,
with whom Joseph C. Laws, Jr., Federal Public Defender, was on
brief for appellant.
Mariana E. Bauzá, Assistant United States Attorney, with whom
Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, were on brief for appellee.

May 19, 2009

*
Of the District of New Hampshire, sitting by designation.
 DICLERICO, District Judge. Following a five-day trial,

appellant Jorge Alberto Paret-Ruiz (“Paret-Ruiz”) was found guilty

of conspiracy to import with intent to distribute, and to possess

with intent to distribute, five or more kilograms of cocaine. He

argues that the evidence was insufficient to sustain his

convictions, that the district court erred in denying his request

for a new trial based on his proffer of newly discovered evidence

and his claim that the government suppressed exculpatory evidence

in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the

government made an improper argument at trial by suggesting that

the jury could find him guilty based solely on an agreement with a

government agent. Because we conclude that the evidence admitted

at trial was insufficient to support Paret-Ruiz’s conviction, we

reverse the verdict and remand with instructions to enter a verdict

of not guilty. The other issues Paret-Ruiz raises need not be

addressed.

I.

A. Background Facts

The government presented its case through the testimony

of Agent Jesus González (“Agent González”), a special agent with

the Drug Enforcement Administration (“DEA”). The government also

played for the jury numerous audio recordings of conversations

between Agent González and Paret-Ruiz, and introduced Spanish and

English transcripts (“audio transcripts”) of the audio recordings

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into evidence. Because Paret-Ruiz asks us to review the

sufficiency of the evidence, it is his burden on appeal to provide

the relevant portions of the record. See Fed. R. App. P. 10(a);

Local Rule 11(a); Muniz Ramirez v. Puerto Rico Fire Services, 757

F.2d 1357, 1358 (1st Cir. 1985) (“[I]t is the appellant’s

responsibility to ensure that the record is complete, i.e., that it

contains all papers necessary for the determination of the issues

presented by the appeal.”). In his brief, Paret-Ruiz relies upon

Agent González’s testimony as well as a portion of those audio

transcripts which he claims are relevant. The record contains the

trial transcripts, which include Agent González’s testimony, and

the portions of the audio transcripts on which Paret-Ruiz relies.

The government, in its brief, relies entirely on Agent González’s

testimony, which includes references to the audio recordings. We

review Paret-Ruiz’s arguments on appeal based upon the record as

presented to us by the parties. Cf. United States v. Morales-

Madera, 352 F.3d 1, 11-12 (1st Cir. 2003) (finding record

sufficient for appellate review despite absence of one wiretap tape

which government did not rely upon to prove its case and which

government witness summarized in his testimony).

We recite the facts in the light most favorable to the

verdict. United States v. DeCologero, 530 F.3d 36, 47 (1st Cir.

2008). In 2003, the Federal Bureau of Investigation (“FBI”)

informed the DEA that one of its confidential informants (“FBI CI”)

was approached by Paret-Ruiz, who was looking to acquire a boat for

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the purpose of transporting cocaine from other Caribbean islands

into Puerto Rico. The DEA began its investigation of Paret-Ruiz’s

activities in January of 2004. On January 28, 2004, the FBI CI met

with Paret-Ruiz to discuss his request for a boat. Agent González

supervised the photographic surveillance of this meeting.

On February 3, 2004, Agent González posed as a drug

trafficker and met with the FBI CI and Paret-Ruiz aboard a boat

owned by the DEA that is used to conduct undercover drug

transactions. Agent González gave Paret-Ruiz a tour of the boat,

showing him the hidden compartments, which were of particular

interest to Paret-Ruiz. Paret-Ruiz initially indicated that he

wanted to purchase the boat, but Agent González informed him that

this was not possible. Paret-Ruiz then stated that several

different acquaintances had cocaine contacts in Antigua and St.

Maarten, and that he was interested in using the boat, and Agent

González’s services, to smuggle cocaine into Puerto Rico and

deliver it to these acquaintances. Agent González and Paret-Ruiz

also discussed the price of the cocaine and the costs of

transporting it. Through subsequent investigation, Agent González

discovered that Adalberto Coriano-Aponte (“Coriano”) had cocaine

contacts in St. Maarten, and that Coriano and Efraín Santana-Ortiz

(“Santana”), an acquaintance of Coriano’s, were two of the intended

recipients for the cocaine.1

1
At trial, Paret-Ruiz testified that he never actually
negotiated drug deals with anyone, that he lied to Agent González
about the deals, and that he did not know Coriano.

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 In a phone conversation on February 8, 2004, Paret-Ruiz

told Agent González that he had finished a meeting with some

individuals and asked if Agent González would show them the boat if

necessary. Paret-Ruiz did not identify these individuals, and

Agent González never confirmed their identities. Agent González

declined to show the undercover boat. In another phone

conversation on February 9, 2004, Paret-Ruiz told Agent González

that some individuals had two cocaine loads available, for 300 and

500 kilograms each, but that he had not discussed fees with them.

Following this conversation, Agent González, the FBI CI, Paret-

Ruiz, and another undercover DEA agent met at a restaurant. At

this meeting, Paret-Ruiz explained that he met with other

unidentified individuals the previous day and they offered him two

loads of cocaine, consisting of 200 and 500 kilograms, to be picked

up in Antigua, using Agent González’s undercover boat, which would

be escorted by police or military officials up to 30 miles out to

sea.

On February 10, 2004, Paret-Ruiz told Agent González that

he was going to meet with unidentified individuals to discuss their

February 9 meeting. At a February 13, 2004, meeting, Paret-Ruiz

again told Agent González of the other cocaine loads, consisting of

300 and 500 kilograms, that were still available in Antigua. Agent

González stated that he would like a fee of twelve to fifteen

percent, depending upon the size of the cocaine load. Paret-Ruiz

told Agent González that he would negotiate for twenty percent, so

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that he could make some money. They also discussed the possibility

that the owner of the drugs might accompany Agent González on his

boat from Antigua to Puerto Rico and instructions for loading the

cocaine from the boat into a vehicle for delivery in Puerto Rico.

During a meeting on February 24, 2004, Paret-Ruiz told

Agent González that he was going to meet with some unidentified

individuals in a few days to continue negotiations regarding the

cocaine loads from Antigua. At a February 25 meeting, Paret-Ruiz

told Agent González that one of the cocaine loads he had been

working on was no longer available because it had been picked up by

someone else, but that other loads were still available. Agent

González testified that he was unsure which loads Paret-Ruiz was

referring to in this conversation. Paret-Ruiz then accepted $2,000

from Agent González to travel to Antigua to confirm that there was

cocaine available for transport to Puerto Rico. However, Paret-

Ruiz never went to Antigua and did not repay the money. Later that

same day, Paret-Ruiz met with some unidentified individuals to

continue discussions.

On March 2, 2004, Paret-Ruiz told Agent González that he

met with two individuals about transporting cocaine using Agent

González’s boat, but they were not interested because they wanted

to buy, not rent, a boat to transport the drugs. Paret-Ruiz also

said that he was currently in discussions with another unnamed

individual. Agent González later discovered that the individual

was Santana. Agent González and Paret-Ruiz met again on March 16,

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2004. During the meeting, Paret-Ruiz made a phone call to someone,

later identified as Santana, and asked him to tell an unnamed

individual, later identified as Coriano, that he was meeting with

the owners of the boat, and to ask whether Coriano was still

interested in the drug transaction. Paret-Ruiz concluded the call,

and Santana called back some time later. After finishing his

conversation with Santana, Paret-Ruiz informed Agent González that

Santana and Coriano were still interested in obtaining

transportation for cocaine loads but that they could not agree on

the fee he and Agent González would take for transporting the

cocaine. Paret-Ruiz demanded a fee of twenty percent and Santana

would only offer sixteen percent, which Paret-Ruiz would not

accept. Paret-Ruiz stated, however, that he would meet with

Santana later that day. When Agent González asked to be included

in this meeting, Paret-Ruiz declined because he was afraid of being

excluded from a transaction.

On March 17, 2004, Paret-Ruiz told Agent González in a

phone conversation that Santana and Coriano were still interested

in working with them. On March 18, Paret-Ruiz and Agent González

met to discuss Paret-Ruiz’s meeting with Santana on March 16.

Paret-Ruiz told Agent González that other unidentified individuals

were arrested and that his negotiations with them regarding drug

loads had therefore terminated. Paret-Ruiz stated his concern

about the arrests and suggested that they should delay their drug

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transaction for awhile but that they would resume negotiations

later. The drug transaction never occurred.

In August of 2004, Agent González, as an undercover

agent, met with Coriano, the FBI CI, and another individual to

discuss the shipment of cocaine from St. Maarten into Puerto Rico.

Coriano had approached the FBI CI looking for transportation for

cocaine. In October of 2004, Santana spoke with the FBI CI and

told him that his discussions with Paret-Ruiz fell through because

they could not agree on the fee. In speaking with Santana, Paret-

Ruiz had apparently blamed the FBI CI for requiring a higher fee;

the FBI CI corrected Santana and told him that Paret-Ruiz was the

one demanding the higher fee.

B. Procedural History

On August 9, 2005, an indictment was returned against

Paret-Ruiz, Santana, and Coriano for conspiracy to import with

intent to distribute, and to possess with intent to distribute,

five or more kilograms of cocaine, from approximately November 1,

2003, through approximately March 18, 2004.2 See 21 U.S.C. §§ 841,

846, 960, and 963. At his arraignment, Paret-Ruiz pled not guilty

to the charges against him.

Paret-Ruiz’s trial began on June 19, 2006. At the close

of evidence, Paret-Ruiz moved for acquittal under Federal Rule of

Criminal Procedure 29, based on his claim that the evidence did not

2
Neither Santana nor Coriano went to trial.

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establish that there was an agreement to import or possess cocaine

with anyone other than Agent González and the FBI CI.3 The court

denied the motion. Paret-Ruiz then testified and rested on June

28. After the jury charge was given, Paret-Ruiz renewed his Rule

29 motion, which the court again denied. The jury found Paret-Ruiz

guilty on both counts of conspiracy.

At sentencing, Paret-Ruiz requested a sentence below the

applicable guideline range. The court responded, “The government

may be very much inclined to accept such an argument if, for

example, you waive your right to appeal.” At the court’s urging,

defense counsel spoke to Paret-Ruiz about a waiver, but Paret-Ruiz

declined. Paret-Ruiz was sentenced to 180 months in prison, which

was below the applicable guideline range.

II.

A. Sufficiency of the Evidence

Paret-Ruiz argues that the evidence was insufficient to

support his drug conspiracy convictions because there was no

evidence produced at trial that he reached an agreement to import

or possess cocaine with anyone other than a government agent. We

review Paret-Ruiz’s sufficiency of the evidence claim de novo,

considering the evidence in the light most favorable to the

3
Rule 29 provides that: “After the government closes its
evidence or after the close of all the evidence, the court on the
defendant’s motion must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a
conviction.” Fed. R. Crim. P. 29(a).

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verdict. United States v. Gomez-Rosario, 418 F.3d 90, 105 (1st

Cir. 2005). We will not overturn a guilty verdict “unless, viewing

the evidence in the light most favorable to the prosecution, no

reasonable jury could have rendered [it].” United States v.

Nelson-Rodriguez, 319 F.3d 12, 27 (1st Cir. 2003). Further, we

will not assess the credibility of witnesses, as that is a role

reserved for the jury. United States v. Nishnianidze, 342 F.3d 6,

14 (1st Cir. 2003).

To establish that the defendant is guilty of

participating in a narcotics conspiracy, the government must prove,

beyond a reasonable doubt, that “‘an agreement existed to commit

the underlying substantive offense, and that the defendant elected

to join the agreement, intending that the underlying offense be

committed.’” Gomez-Rosario, 418 F.3d at 105 (quoting United States

v. Medina-Martinez, 396 F.3d 1, 5 (1st Cir. 2005)). “The essence

of the crime is the conspirators’ agreement to act in concert” to

import, possess, and distribute illegal drugs. United States v.

Cruz, 568 F.2d 781, 782 (1st Cir. 1978); see United States v.

Rodriguez, 525 F.3d 85, 104 (1st Cir. 2008). The agreement must

exist between two or more persons, and as a matter of law, there

can be no conspiracy between a defendant and a government agent.

United States v. Castellini, 392 F.3d 35, 51 n. 11 (1st Cir. 2004);

United States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987).

An agreement between coconspirators may be proven by

circumstantial evidence, and it may be tacit. Gomez-Rosario, 418

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F.3d at 107; United States v. Portela, 167 F.3d 687, 695 (1st Cir.

1999); United States v. Concemi, 957 F.2d 942, 950 (1st Cir. 1992)

(“[A]n agreement . . . may be inferred from a development and

collocation of circumstances.”) (internal quotation marks omitted).

A conspiratorial agreement, therefore, “need not be express so long

as its existence can plausibly be inferred from the defendants’

words and actions . . . .” Concemi, 957 F.2d at 950. Further, the

conspiracy need not succeed for the conviction to stand. Nelson-

Rodriguez, 319 F.3d at 28.

The indictment in this case charged an agreement among

Paret-Ruiz, Santana, Coriano, and other known and unknown

individuals to import, possess, and distribute cocaine.4 The

evidence presented by the government to support the conspiracy

charges consisted of the testimony of Agent González, audio

recordings of conversations between Agent González and Paret-Ruiz,

and an audio recording of a conversation between Paret-Ruiz and

Santana which Agent González overheard.5 Because a conspiracy

cannot exist between a government agent and an individual, these

conversations are not direct evidence of the charged conspiracy.

The conversations may, however, constitute circumstantial evidence

4
In its brief and at oral argument, however, the government
only argued that Paret-Ruiz conspired with Santana and Coriano.
The government, therefore, has waived any arguments that Paret-Ruiz
conspired with additional unknown individuals. United States v.
Molina, 407 F.3d 511, 524 (1st Cir. 2005) (recognizing that
arguments not briefed by government are deemed waived).
5
Agent González testified that he heard only Paret-Ruiz’s
portion of the conversation.

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of a conspiracy among Paret-Ruiz, Santana, and Coriano if they show

that these individuals agreed to work together to import and

possess, with an intent to distribute, five or more kilograms of

cocaine in violation of United States law. See Nelson-Rodriguez,

319 F.3d at 28; United States v. Elledge, 723 F.2d 864, 866 (11th

Cir. 1984).

Agent González testified that Paret-Ruiz was involved in

discussions with numerous unidentified individuals regarding

cocaine loads in Antigua, and that several discussions fell through

for a variety of reasons. He also testified that Paret-Ruiz had

discussions with individuals he later identified as Santana and

Coriano, who had cocaine contacts in St. Maarten and Antigua. At

the March 16, 2004, meeting, Agent González overheard Paret-Ruiz’s

side of a phone conversation Paret-Ruiz had with an individual

later identified as Santana, in which he told Santana that he was

with the people who had the boat, and asked if Coriano was still

interested. Santana called Paret-Ruiz back and he confirmed that

Coriano was still interested. However, they could not agree on the

fee which Paret-Ruiz and Agent González would collect because

Paret-Ruiz insisted upon a twenty percent fee.

Following this meeting, Paret-Ruiz stated that Santana

and Coriano were still interested, but that he wanted to wait

because some individuals had recently been arrested on drug

charges. Agent González had no further conversations with Paret-

Ruiz. In August of 2004, Coriano met with Agent González and the

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FBI CI regarding the transportation of cocaine loads into Puerto

Rico. In October of 2004, the FBI CI met with Santana, who told

the FBI CI that the discussions with Paret-Ruiz fell through

because they could not agree on the fee.

This is a close case. While there is evidence of

numerous discussions between Paret-Ruiz and several unidentified

individuals regarding available cocaine loads as well as evidence

of Paret-Ruiz’s desire to effectuate a cocaine deal, there is a

lack of sufficient evidence showing that he actually reached an

“agreement to act in concert” with Santana and Coriano. Cruz, 568

F.2d at 782. Contrary to the government’s assertion, the evidence

often does not indicate which individuals Paret-Ruiz is referring

to in his discussions with Agent González.6 The government argues

that there is evidence that Paret-Ruiz, Santana, and Coriano agreed

on the specific amount of cocaine and the specifics regarding the

pick-up and transportation of the cocaine by boat. Agent

González’s testimony regarding his conversations with Paret-Ruiz,

however, establishes that an agreement existed only between Paret-

Ruiz and Agent González. Although Agent González testified that

Paret-Ruiz, Santana, and Coriano had generally “agreed,” he did not

testify as to what they agreed on, and in the same statement, Agent

González recalls that “they [Santana and Coriano] were still

6
Through later investigations, Agent González was only able to
identify Santana and Coriano as two of the individuals Paret-Ruiz
initially referred to on February 3, 2004, and as individuals with
whom he was in discussions with from March 2, 2004, through March
17, 2004.

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seeking transportation for the drug shipments,” which indicates

that they had not reached an agreement with Paret-Ruiz.

The government also cites to Nelson-Rodriguez, and argues

that a completed transaction is not necessary in proving the

existence of a conspiracy. In Nelson-Rodriguez, three of the

defendants appealed from their drug conspiracy convictions and

argued that the evidence was insufficient to support the existence

of a conspiracy because “many of the drug importation plans never

came to fruition” and their “negotiations failed to produce a

complete ‘meeting of the minds’ on issues such as the exact

location for the handover of the drugs at sea or the division of

the proceeds.” 319 F.3d at 28. Noting that a conspiracy

conviction does not require that the conspiracy succeed, nor that

the underlying act even be attempted, we held that there was

sufficient evidence for the jury to conclude that an agreement

existed among the defendants to “work together to buy and sell

illegal narcotics.” Id. The evidence in Nelson-Rodriguez showed

that the defendants had agreed to import several loads of cocaine

from Columbia and heroin from St. Maarten. Their agreement was

evidenced by their plans to procure a boat, navigational charts,

and radios, and by the designation of boat captains, coordinators,

security monitors, and drug distributors. An undercover agent also

met with two coconspirators on several occasions, at which they

agreed to work together to import 1,100 kilograms of cocaine from

Colombia, although the transaction ultimately fell through for

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numerous reasons. There was also evidence that a few of the

coconspirators successfully imported 250 kilograms of cocaine into

Puerto Rico.

In the present case, the evidence was sufficient for a

reasonable jury to find that Paret-Ruiz wanted to make a deal to

transport drugs into Puerto Rico. A reasonable jury could also

find that Coriano had cocaine connections in St. Maarten and

Antigua, that he and Santana were looking for someone to transport

and deliver the cocaine to them in Puerto Rico, and that Paret-Ruiz

and Santana had discussions regarding the transportation of

cocaine. The evidence was insufficient, however, for a reasonable

jury to conclude that Paret-Ruiz had an agreement with anyone other

than Agent González to work together to import and possess illegal

drugs. Unlike the evidence presented in Nelson-Rodriguez, which

showed that the coconspirators had agreed to work together to

import drugs, here there was only evidence of Paret-Ruiz’s failed

attempts to make a deal with Santana and Coriano.

The government further argues that by reaching a guilty

verdict after hearing Paret-Ruiz’s testimony, the jury necessarily

rejected it as untruthful, which provides further evidence of his

guilt. See United States v. Restrepo-Contreras, 942 F.2d 96, 99

(1st Cir. 1991). While we have applied this principle before when

upholding convictions, it has been in cases where there was,

independent of the defendant’s testimony, sufficient evidence of

guilt. See United States v. Hadfield, 918 F.2d 987, 999 (1st Cir.

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1990) (finding evidence of guilt “was further bolstered by what the

jury could have found to be a tall tale”). Here, Paret-Ruiz’s

testimony notwithstanding, there is insufficient evidence from

which a reasonable jury could conclude beyond a reasonable doubt

that Paret-Ruiz reached an agreement with Santana and Coriano to

import, possess, and distribute cocaine. Therefore, because we

find that the evidence, “‘viewed in the light most favorable to the

verdict[,] gives equal or nearly equal circumstantial support to a

theory of guilt and a theory of innocence of the crime charged,’”

we must reverse the conviction. United States v. Reyes, 352 F.3d

511, 518 (1st Cir. 2003) (quoting United States v. Morillo, 158

F.3d 18, 22 (1st Cir. 1998)).

Before concluding, we add a final note regarding the

trial court’s statements to Paret-Ruiz at sentencing. When Paret-

Ruiz requested that the court consider a sentence below the

guideline range, the court responded that the government may agree

to such a departure “if, for example, you waive your right to

appeal.” Paret-Ruiz declined to waive his right to appeal.

However, we caution the trial court against engaging in such

discussions with the defendant.

III.

For the foregoing reasons, based on the record as

presented to us, no rational jury could find Paret-Ruiz guilty

beyond a reasonable doubt of conspiracy to import cocaine with

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intent to distribute, or conspiracy to possess cocaine with intent

to distribute. We reverse the verdict and remand with instructions

to enter a verdict of not guilty.

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