United States v. Dellosantos

United States Court of Appeals
For the First Circuit

No. 09-2135

UNITED STATES OF AMERICA,

Appellee,

v.

RAMÓN DELLOSANTOS, a/k/a RAMÓN DELOSANTOS, a/k/a
RAMÓN DELASSANTOS, a/k/a RAMÓN SANTOS, a/k/a MONSTRITO,

Defendant, Appellant.

No. 09-2670

UNITED STATES OF AMERICA,

Appellee,

v.

RICHARD W. SZPYT, a/k/a ZIP,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Stahl, and Howard,
Circuit Judges.

James S. Hewes, for appellant Dellosantos.
Mary A. Davis, with whom Tisdale & Davis. P.A., was on brief
for appellant Szpyt.
 Margaret D. McGaughey, Appellate Chief, with whom Thomas E.
Delahanty II, United States Attorney, were on brief for appellee.

August 16, 2011

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 TORRUELLA, Circuit Judge. On October 22, 2008,

appellants Ramón Dellosantos and Richard W. Szpyt (collectively

"the Defendants"), together with sixteen other individuals,1 were

charged in a multiple-count superseding indictment. Count 1

alleged that all individuals (including the Defendants), in

violation of 21 U.S.C. §§ 841(a)(1), 846, "in the District of Maine

and elsewhere . . . knowingly and intentionally conspired with one

another and with others . . . to commit offenses against the United

States, namely, distribution and possession with intent to

distribute controlled substances, including 5 kilograms or more of

cocaine, and marijuana, and did aid and abet such conduct." A

trial followed, in which a jury found Szpyt and Dellosantos guilty

of the conduct charged in Count 1. Szpyt and Dellosantos

appealed.2

Because we find that the evidence at trial against both

Dellosantos and Szpyt prejudicially varied from the charge in

Count 1 of the indictment, we vacate their convictions.3

1
The other defendants were Robert L. Sanborn, James E. Weston,
Lee P. Chase, Sherwood K. Jordan, Andre T. Charron, Lara M.
Sanborn, Robert M. Boothby, Daniel A. Guarino, Zachary Deveau,
Kelley Monahan, Walter D. Towle, Jr., Robert A. Bouthot, Bruce
Hill, Michael Gochie, Michael A. Martin, and Cynthia A. Moore.
2
A third defendant, Sherwood K. Jordan, was also tried with Szpyt
and Dellosantos, but Jordan has not appealed his conviction.
3
This conclusion makes it unnecessary for us to address the other
issues raised by Dellosantos and Szpyt in their appeals.

-3-
 I. Facts and Background

We review the evidence and all the reasonable inferences

that arise therefrom in the light most favorable to the verdict.

See United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006).

In presenting its case, the government relied in part on

cooperating witnesses. Plinio Vizcaíno, testifying pursuant to a

plea agreement, testified extensively against Dellosantos.

Vizcaíno admitted that from 2004 to 2007 he distributed cocaine to

a handful of individuals, including Dellosantos,4 in Lawrence and

Haverhill, Massachusetts. Over the course of several years,

Vizcaíno supplied Dellosantos with cocaine ranging in quantity from

125 grams to several kilograms at a time. Vizcaíno also identified

his own and Dellosantos' voice in multiple recorded telephone

calls, which included discussions about cocaine. Vizcaíno

testified that Dellosantos had told him that he resold some of the

cocaine to "hippies" who rode motorcycles in New Hampshire and

Maine.

The government's primary cooperating witness was

Robert L. Sanborn, who also testified pursuant to a plea agreement.

Sanborn's testimony was generally focused on drug distribution in

Maine and he did not directly implicate Dellosantos in any illegal

activity. Sanborn admitted that he had been a vice-president and

4
Vizcaíno apparently knew Dellosantos as "José Ramón", and in his
testimony he refers to Dellosantos as "José Ramón".

-4-
"enforcer" of a motorcycle gang known as the "Iron Horsemen," and

that Szpyt had been the president of the gang's Maine chapter,

which consisted of roughly ten to fifteen members. Sanborn also

explained that Szpyt owned the Iron Horsemen clubhouse in Old

Orchard Beach, Maine. Despite his leadership position in the gang,

however, Szpyt lived outside of Maine, in Haverhill, Massachusetts.

Sanborn testified that in March 2005 he began selling

cocaine, which he purchased from James E. Weston, a fellow member

of the Iron Horsemen, who was in turn supplied by Szpyt. After a

few months of this distribution scheme, Sanborn and Szpyt

eliminated Weston as a middleman and began dealing directly with

each other. Although Sanborn occasionally received cocaine from

other sources, this arrangement between Szpyt and Sanborn continued

until Sanborn ceased distributing cocaine in late 2007 or early

2008 following his arrest.

Sanborn also admitted that in the late summer or early

fall of 2005 he began distributing marijuana in addition to

cocaine. There is no evidence that Sanborn consulted with or

received approval from Szpyt when he started to distribute

marijuana, or at any point thereafter. Sanborn's first source for

marijuana was Carl Demarco, but, in early 2006, Sanborn began

receiving his marijuana from Lee P. Chase, whom he had known "for

years over the bikes." Chase, in turn, obtained the marijuana from

an individual named Danny Boivin. Sanborn testified that in 2006

-5-
he started selling marijuana to Sherwood K. Jordan on a regular

basis, ten pounds at a time. On a couple of occasions, however,

there was a reversal of roles, and Sanborn would buy a supply of

marijuana from Jordan, "anywhere from 10 to 20" pounds. Sanborn

also admitted to selling (approximately every two weeks) anywhere

from eight to ten pounds of marijuana to Charlie Green, a fellow

member of the Iron Horsemen. Green generally received his

marijuana from a different gang member, Robert A. Bouthot, but

turned to Sanborn when Bouthot ran out of his supply.

Sanborn testified in detail about his cocaine purchases

from Szpyt, who Sanborn said was also supplying cocaine to other

members of the Iron Horsemen. During his testimony, Sanborn

explained the meaning of several recorded telephone calls. These

calls included conversations between Sanborn and Szpyt about

cocaine transactions, conversations between Sanborn and Chase or

Jordan about marijuana transactions (none of which mentioned either

Dellosantos or Szpyt), and conversations in which Sanborn discusses

selling drugs to and collecting payments from customers.

Sanborn testified that he had around twenty customers.

Some of these customers only purchased marijuana, some only

purchased cocaine, and some purchased both. Sanborn explained that

his "lifelong friend," Walter D. Towle, Jr., assisted him with both

the marijuana and cocaine operations. At times, people would visit

Sanborn's garage for various drug transactions, which were

-6-
conducted with varying amounts of discretion depending on who was

present. Szpyt would sometimes deliver cocaine to Sanborn at this

same garage, and on other occasions Sanborn, or someone on his

behalf, would travel to Massachusetts to pick up the cocaine from

Szpyt.

Sanborn testified that he would at times purchase cocaine

using proceeds from his marijuana sales, and vice versa. Sanborn

also admitted that, with the help of his wife, he maintained

ledgers to reflect all of his drug transactions that were done on

credit. He started this practice after a dispute with Szpyt over

the payment of $12,000, which Sanborn ended up paying because he

did not keep adequate records of his nefarious dealings.

Sanborn asserted that both his marijuana and cocaine

activities ceased in January 2008, a few months after he was

arrested.

The government also called a handful of other cooperating

witnesses.5 In essence, these witnesses corroborated Sanborn's

testimony, within their area of knowledge and participation, about

the distribution of cocaine and marijuana. None of them implicated

either Dellosantos or Szpyt in marijuana transactions. For

example, Towle confirmed his involvement in Sanborn's operations,

5
These other cooperating witnesses included the following co-
defendants, who pleaded guilty to the conspiracy charge in Count 1:
Lara Sanborn, Walter D. Towle, Jr., Lee P. Chase, Daniel A. Guarino
and Andre T. Charron.

-7-
which he said included traveling with Sanborn, on roughly ten

occasions, to Haverhill, Massachusetts, to pick up cocaine from

Szpyt. Notably, Lara Sanborn (Robert Sanborn's wife) testified

that she was especially careful to record -- in the aforementioned

ledgers -- her husband's cocaine transactions with Szpyt, because

Szpyt tended to argue over them. The ledgers demonstrated that

Sanborn paid his cocaine debt to Szpyt by transferring cash and

other items, such as motorcycles and cars. However, other than one

occasion where Sanborn reduced $750 from his cocaine debt by paying

Szpyt with half a pound of marijuana, Sanborn's drug ledgers did

not connect either Dellosantos or Szpyt with Sanborn's marijuana

distribution. Furthermore, neither these cooperating witnesses nor

any of the recorded conversations introduced at trial connected

Szpyt or Dellosantos to the marijuana distribution. In fact, with

regards to Dellosantos, none of these witnesses acknowledged ever

having met, seen, or known his name.

In addition to cooperating witnesses, the government

called a handful of law enforcement officers, including Brian T.

Tully, Mark Tully,6 Corey Sweatt, and Michael Hayes. Mark Tully,

a special agent with the Drug Enforcement Administration ("DEA"),

testified that in October 2006 he was contacted by DEA agents

investigating a drug trafficking organization operating in the

Atlanta area. These agents told Mark Tully, who was assigned to

6
Brian Tully and Mark Tully are brothers.

-8-
the DEA's Boston office at the time, that they had intercepted

calls involving an individual in Massachusetts who turned out to be

Vizcaíno. Mark Tully and other agents began an investigation,

which resulted in the arrest of around fifteen individuals,

including Vizcaíno, and the seizure of seventeen kilograms of

cocaine.

Brian Tully, also a special agent with the DEA, testified

about his involvement in the investigation of Robert Sanborn and

others for drug trafficking. During his testimony, he recounted a

series of events that occurred on September 12, 2007. On that

date, Brian Tully observed Dellosantos, seated in a white van

parked in front of Szpyt's residence in Haverhill, talking to Szpyt

who was standing by his window. After Dellosantos departed the

area, a surveilling agent asked the Massachusetts State Police to

stop the van. As Dellosantos' vehicle was stopped on the side of

the road, Brian Tully, who was observing the stop, noticed Szpyt

drive past the location on two or three occasions. Walter Hanley,

a sergeant with the Massachusetts State Police, eventually searched

Dellosantos' vehicle and found a total of $6,000 in cash from both

the van's center console and Dellosantos' person.7 Brian Tully was

7
Both Sanborns acknowledged that one intercepted call, Call 2567
on September 3, 2007, reflected Sanborn's instruction to his wife,
Lara Sanborn, to give Szpyt $5,000 toward a cocaine balance, and
enter the transaction in the ledger. The ledger in fact shows two
different entries for $5,000 on two different dates that month, one
on September 3 and the other on September 19. Although Sanborn
testified that he could not remember which entry reflected the

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in turn informed about this discovery, as well as Dellosantos'

claim that he had receipts accounting for the cash as the proceeds

of sales from his legitimate business. In an effort to protect the

secrecy of the wiretap, Brian Tully instructed Hanley to return the

money and let Dellosantos go.

Brian Tully also testified about an intercepted phone

call that occurred around the time of this traffic stop. As or

shortly after Dellosantos was pulled over, the DEA recorded Szpyt

calling his daughter and telling her to hide a "baggie." On the

recording, Szpyt's daughter explains that she could only find

"pot," to which Szpyt responds, "right, a bag, a big bag,

right? . . . Grab that and hide it."

Toward the end of his testimony, Brian Tully identified

Dellosantos and Szpyt as the voices in Calls 1800 and 1801, which

were recorded the day that Sanborn was arrested, September 21,

payment referred to in Call 2567, Lara Sanborn confirmed that she
had in fact paid Szpyt on September 3 and that the September 3
entry reflected the payment discussed in this call. The ledger
also suggests that Sanborn either paid Szpyt or otherwise reduced
his cocaine debt by $8,000 on September 10 and $4,000 on September
14.

The government asserts that the jury could have reasonably
inferred that the cash that the police found on Dellosantos on
September 12 was the "drug proceeds that Sanborn had recently
delivered to Szpyt." We disagree. Although it is certainly
conceivable that the money found in Dellosantos' possession was
money Sanborn had given to Szpyt in the previous couple of weeks,
we cannot see how a reasonable jury examining this evidence could
determine -- without speculating -- that the $6,000 found on
Dellosantos consisted, in whole or in part, of money that Sanborn
paid Szpyt.

-10-
2007. Among other things, Szpyt told Dellosantos "bad news going

on up here right now." The government also introduced Call 2026,

recorded three days later on September 24, between Szpyt and

Dellosantos.8 In the call, Szpyt asked Dellosantos to come over to

his house and expressed apprehension about talking on the phone.

Szpyt nonetheless proceeded to recount to Dellosantos the story of

Sanborn's recent arrest. Their conversation included the following

exchange:

Szpyt: Yes, whoa. Fucking, one of my fucking
idiot brothers got fucking popped up there.

Dellosantos: Oh yeah.

Szpyt: Yeah, fucking idiot was doing, fucking
weed deal or some fucking stupid thing.

Dellosantos: Fucking knuckle head.

Szpyt: Yeah, what a fucking knuckle head.
You know what I mean? I said, what are you
doing fucking around with that, you know what
I mean? . . .

Dellosantos: Oh my god.

Szpyt: I didn't know. I can only police my
fucking guys so much. Know what I mean.

Dellosantos: Yeah, yeah, yeah.

Szpyt: So I didn't know. I got no control,
you know what I mean, they are all men . . . .
I got no control over them . . . . He got
caught with twenty pounds.

8
Brian Tully did not identify the voices on the phone call, but
the government asserts the call was between Dellosantos and Szpyt,
the transcript of the call indicates it was between Dellosantos and
Szpyt, and the Defendants do not seem to contest this fact.

-11-
 Dellosantos: Oh my god. . . .

Szpyt also mentioned the possible criminal sanctions Sanborn faced:

Szpyt: Then they raided the house and I guess
they found a - some white powder substance in
the garage . . . . Yeah.

Dellosantos: Wow. . . .

Szpyt: I mean, up in Maine, weed is nothing.
Twenty pounds is a slap in the hand . . . .
You probably get five years . . . . Or three
years . . . . [B]ut that white stuff up there,
they take that serious.

Dellosantos: Yeah, they don't fuck around
with that shit, huh?

Szpyt: Yeah, they don't fuck around with that
. . . .

In this call, Szpyt also recited specific details about the

circumstances surrounding the arrest and subsequent search of

Sanborn's home.

Corey Sweatt, a deputy sheriff in York County, Maine,

also testified about the events of September 21, 2007. On that

date, Sweatt was called to assist with the ongoing DEA

investigation by stopping a vehicle on Route 111 in Lyman, Maine.

The driver turned out to be Sanborn, who invited Sweatt to conduct

a search of the vehicle. This search, conducted by other officers

who arrived at the scene, yielded a clear plastic bag with white

powder, as well as "[a] large amount of marijuana."

Michael Hayes, a deputy sergeant in the York County

Sheriff's Office and member of the DEA's task force, testified

-12-
about the execution of a search warrant at Sanborn's garage and

residence on September 21. Hayes testified that he found cocaine

next to a tool box in Sanborn's garage and two scales on top of the

tool box, one of which had cocaine residue on it. Hayes also

testified about his examination of the records of a gym in Methuen,

Massachusetts, which showed visits by Vizcaíno and Dellosantos at

the same time on several occasions.

After the government rested, Dellosantos and Szpyt moved

for acquittal pursuant to Federal Rule of Criminal Procedure 29.

The district court denied the motions, and the defendants went on

to present several witnesses whose testimony we need not recount

here. After the defendants rested, Dellosantos and Szpyt renewed

their Rule 29 motions, which were again denied.

Ultimately, the jury found Szpyt and Dellosantos (and

Jordan) guilty of conspiracy to distribute and possess with intent

to distribute cocaine and marijuana (Count 1). The jury also found

Szpyt guilty of four counts (Counts 18, 19, 32, and 39) of using a

communication facility to facilitate the commission of the

conspiracy set forth in Count 1.9

9
Szpyt does not challenge these last four convictions on any
basis independent from his challenge to Count 1. Count 40, which
also charged Szpyt with using a communication facility to
facilitate the commission of the conspiracy, was dropped during
trial on the government's motion. Count 7, which charged Szpyt
with unlawful possession of firearms, was also dismissed on the
government's motion.

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 II. Discussion

Both Dellosantos and Szpyt assert that the evidence

presented at trial was insufficient to support their convictions

under Count 1 and challenge the district court's denial of their

motions for judgment of acquittal. The Defendants' challenges to

the sufficiency of the evidence and to the denial of their motions

for judgment of acquittal raise a single issue and thus we apply

the traditional sufficiency of the evidence standard to these

claims. See United States v. Hernández, 218 F.3d 58, 64 n.4

(1st Cir. 2000). Because each Defendant moved for a judgment of

acquittal at the close of evidence, we review their sufficiency

claims de novo. See United States v. Rivera Calderón, 578 F.3d 78,

88 (1st Cir. 2009).

We begin our discussion by briefly sketching the relevant

law of conspiracy.

A. Conspiracy Law

A criminal conspiracy is an agreement between two or more

persons to accomplish an unlawful purpose. See United States v.

King, 627 F.3d 641, 651 (7th Cir. 2010). The agreement is the sine

qua non of a conspiracy, and this "element is not supplied by mere

knowledge of an illegal activity . . ., let alone by mere

association with other conspirators or mere presence at the scene

of the conspiratorial deeds." United States v. Zafiro, 945 F.2d

881, 888 (7th Cir. 1991); see also United States v. Pérez-González,

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445 F.3d 39, 49 (1st Cir. 2006) (same). "[I]t is therefore

essential to determine what kind of agreement or understanding

existed as to each defendant." United States v. Rivera-Santiago,

872 F.2d 1073, 1079 (1st Cir. 1989) (quoting United States v.

Glenn, 828 F.2d 855, 857 (1st Cir. 1987)) (internal quotation mark

omitted). The agreement need not, however, "be express, [and] may

consist of no more than a tacit understanding." United States v.

Morillo, 158 F.3d 18, 23 (1st Cir. 1998) (quoting United States v.

Echeverri, 982 F.2d 675, 679 (1st Cir. 1993)) (internal quotation

marks omitted).

Thus, in order to sustain a conviction for conspiracy

under 21 U.S.C. § 846, the evidence must show that (1) a conspiracy

existed, (2) the defendant had knowledge of the conspiracy, and

(3) the defendant knowingly and voluntarily participated in the

conspiracy. United States v. Portalla, 496 F.3d 23, 26 (1st Cir.

2007); Morillo, 158 F.3d at 23 (quoting United States v.

Gómez-Pabón, 911 F.2d 847, 852 (1st Cir. 1990)). Under the third

element, the evidence must establish that the defendant both

intended to join the conspiracy and intended to effectuate the

objects of the conspiracy. Portalla, 496 F.3d at 26.

B. The Defendants' Challenge to the Sufficiency of the Evidence

The Defendants deny that they joined the single

overarching conspiracy to distribute both cocaine and marijuana

charged in Count 1. Rather, they assert, the government introduced

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evidence suggesting only that they participated in a conspiracy to

distribute cocaine, and not the Maine-based conspiracy to

distribute both cocaine and marijuana that was charged in the

indictment. In short, although neither Defendant uses the term

"variance," their challenge here essentially amounts to a

contention that there was a variance between the charge in the

indictment and the evidence introduced at trial.

"'A variance occurs when the crime charged remains

unaltered, but the evidence adduced at trial proves different facts

than those alleged in the indictment.'" United States v. Mangual-

Santiago, 562 F.3d 411, 421 (1st Cir. 2009) (quoting United States

v. Yelaun, 541 F.3d 415, 419 (1st Cir. 2008)), cert. denied, 130 S.

Ct. 293 (2009). A variance alone, however, does not necessitate

disturbing a conviction; rather, "[a] variance is grounds for

reversal only if it is prejudicial . . . ." Id. (quoting United

States v. DeCicco, 439 F.3d 36, 47 (1st Cir. 2006)); see also

Glenn, 828 F.2d at 858. "Put differently, 'so long as the

statutory violation remains the same [as that alleged in the

indictment], the jury can convict even if the facts are somewhat

different than charged -- so long as the difference does not cause

unfair prejudice.'" United States v. Wihbey, 75 F.3d 761, 774 (1st

Cir. 1996) (quoting United States v. Twitty, 72 F.3d 228, 231 (1st

Cir. 1995)).

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 As will be explained below, we hold that evidence against

Dellosantos and Szpyt varied from the conspiracy specified in the

indictment, and that variance caused each of them to suffer unfair

prejudice. Accordingly, the district court erred in denying

Dellosantos' and Szpyt's Rule 29 motions to acquit.

1. The Variance

"When . . . a defendant asserts a claim of variance

premised on the notion that multiple conspiracies existed and that

his activities were not part of the charged conspiracy, the initial

question . . . is one of evidentiary sufficiency." United States

v. Pérez-Ruiz, 353 F.3d 1, 7 (1st Cir. 2003); see also United

States v. Niemi, 579 F.3d 123, 127 (1st Cir. 2009) ("Whether

evidence shows one or many conspiracies is a question of fact for

the jury and is reviewed only for sufficiency of the evidence."),

cert. denied, 130 S. Ct. 1912 (2010). In reviewing for sufficiency

of the evidence, "'we examine the evidence -- direct and

circumstantial -- as well as all plausible inferences drawn

therefrom, in the light most favorable to the verdict, and

determine whether a rational fact finder could conclude beyond a

reasonable doubt that the defendant committed the charged crime.'"

Niemi, 579 F.3d at 127 (quoting United States v. Wyatt, 561 F.3d

49, 54 (1st Cir. 2009)).

In determining whether a prejudicial variance exists in

the instant case, we first discuss the legal principles that govern

-17-
whether criminal activity constitutes multiple conspiracies, as

opposed to a single conspiracy. Next, we address whether the

evidence in the case at hand supported a finding of a single

overarching conspiracy, encompassing both Defendants and all the

relevant nefarious conduct, to distribute both cocaine and

marijuana. After concluding that the evidence did not support such

a conclusion, but rather that the evidence established at least two

distinct conspiracies, we analyze whether the evidence was

sufficient for a jury to have found the Defendants guilty of

joining either of the two conspiracies that were actually proven by

the government and, if so, we then determine whether the variance

(between the conspiracy charged and the conspiracy for which there

was sufficient evidence that the Defendants actually joined)

unfairly prejudiced the Defendants.10

10
This analytical approach is consistent with the framework set
forth in previous cases for analyzing when a variance between the
conspiracy charged and the conspiracy proven constitutes reversible
error:

(1) Is the evidence sufficient to permit a jury to find
the (express or tacit) agreement that the indictment
charges? (2) If not, is [the evidence] sufficient to
permit a jury, under a proper set of instructions, to
convict the defendant of a related, similar conspiracy?
(3) If so [i.e., the answer to (2) is yes], does the
variance affect the defendant's substantial rights or
does the difference between the charged conspiracy and
the conspiracy proved amount to "harmless error"?

Wihbey, 75 F.3d at 773 (second alteration in original) (quoting
Glenn, 828 F.2d at 858).

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 2. The Evidence Showed Multiple Conspiracies

"In determining whether the evidence supports the

existence of a single conspiracy, we ultimately look at the

totality of the evidence." Mangual-Santiago, 562 F.3d at 421.

There are three factors this court has found particularly helpful

in evaluating the evidence: "'(1) the existence of a common goal,

(2) interdependence among participants, and (3) overlap among the

participants.'" Id. (quoting United States v. Sánchez-Badillo, 540

F.3d 24, 29 (1st Cir. 2008), cert. denied, 129 S. Ct. 953 (2009)).

The first factor, common goal, "is given 'wide breadth.'"

Id. (quoting Sánchez-Badillo, 540 F.3d at 29). For example, "[a]

goal of selling cocaine for profit or furthering the distribution

of cocaine" may be sufficient evidence of a common goal. Id.

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

1999)) (internal quotation marks omitted). The second factor,

interdependence, concerns whether "'the activities of one aspect of

the scheme are necessary or advantageous to the success of another

aspect of the scheme.'" Id. at 422 (quoting Portela, 167 F.3d at

695). More specifically, "'Each individual must think the aspects

of the venture interdependent, and each defendant's state of mind,

and not his mere participation in some branch of the venture, is

key.'" Id. (quoting Portela, 167 F.3d at 695). We have explained

the significance of this factor:

[K]nown interdependence . . . makes it
reasonable to speak of a tacit understanding

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 between the distributor and others upon whose
unlawful acts the distributor knows his own
success likely depends. When such
interdependence is missing, when the
distributor is indifferent to the purposes of
others in the enterprise — say, other
distributors — the tacit understanding does
not exist.

Glenn, 828 F.2d at 857-58 (internal citation omitted); see also

Sánchez-Badillo, 540 F.3d at 29. Finally, the third factor,

overlap among the participants, "is satisfied by the pervasive

involvement of a single core conspirator, or hub character."

Mangual-Santiago, 562 F.3d at 422 (internal quotation marks

omitted). In considering these three factors, we must remember

that the existence of a single conspiracy does not require the

participants to know of all the other participants, understand all

the details of the conspiracy, or participate in each aspect of the

conspiracy. Id.; Sánchez-Badillo, 540 F.3d at 29.

In Sánchez-Badillo, we applied these three factors in

rejecting the contention of two co-defendants that they were not

part of a single conspiracy. 540 F.3d 24. In that case, the co-

defendants were convicted of conspiracy to distribute heroin,

cocaine, cocaine base, and marijuana. Id. at 27. One defendant

managed heroin and marijuana sales from the "lower point" in a

public housing project, and the other defendant managed cocaine and

marijuana sales from the "upper point" in the same housing project.

Id. at 28. Both locations, however, were "owned" by a boss, to

whom both defendants paid "rent." Id. at 27-28. This court

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affirmed the convictions. First, the evidence showed a common goal

of "serving [the boss'] illicit interests." Id. at 29. Second, a

reasonable jury could have found interdependence from the

following: the boss' "iron-fisted" control over the housing project

suggested that the defendants tacitly agreed to join the boss'

organization, the boss' representative worked at the lower point,

two dealers worked at both locations, one of the defendants served

as an enforcer for the boss, and on one occasion "participants in

the two points were arrested together and aided by participants in

the lower point." Id. at 29-30. Third, the evidence demonstrated

an overlap among the participants, as the boss was a "hub." Id. at

30-31.

In Glenn, on the other hand, we reversed a defendant's

conviction based on our conclusion that the evidence was

insufficient to prove that he had joined the single conspiracy

charged in the indictment. 828 F.2d 855. Glenn involved a

defendant convicted of conspiring to import and possess marijuana

and hashish. Id. at 857. The evidence showed that a group of core

conspirators met repeatedly to develop plans to smuggle marijuana

from Thailand and hashish from Pakistan, fraudulently borrowed $10

million to finance the operation, bought a boat for hashish

smuggling but used it for the marijuana smuggling, and purchased a

landing area where eight tons of marijuana were unloaded. Id. at

858. The evidence also showed that both the core conspirators and

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the defendant thought of the defendant as a subsidiary figure, the

defendant's duties only involved hashish, and the defendant was

generally only present at meetings about hashish. Id. Although

the defendant was aware of the marijuana smuggling and present at

a few meetings in which marijuana was discussed, we concluded that

the record did not support a conclusion that the defendant "thought

the two ventures interdependent, in the sense that the success of

the one might have facilitated completion of the other." Id. at

859. Consequently, the evidence was "insufficient to show that

[the defendant] expressly or tacitly agreed to do more than to

import and possess Pakistani hashish."11 Id.

In the instant case, looking at the totality of the

evidence, we conclude there was insufficient evidence to support

the finding of a single conspiracy. Rather, the evidence pointed

to at least two distinct conspiracies: (1) the Massachusetts-based

Vizcaíno-Dellosantos-Szpyt conspiracy to distribute cocaine, and

(2) the Maine-based Sanborn-centered conspiracy to distribute both

cocaine and marijuana (whose participants included, inter alia,

Robert L. Sanborn, Lara Sanborn and Walter D. Towle, Jr.).12

11
The court also concluded that the evidence against a co-
defendant varied from the charges in the indictment, though it
ultimately affirmed the co-defendant's conviction because the
variance did not prejudice the co-defendant. See Glenn, 828 F.2d
at 860-61.
12
For purposes of this appeal, it is unnecessary to determine
whether the Boivin-Chase-Sanborn-Jordan marijuana distribution
chain constituted a third conspiracy that was distinct from the

-22-
 First, the two conspiracies had materially different

goals, at least in part. Although they both sought to sell the

cocaine that traveled through the Vizcaíno-Dellosantos-Szpyt-

Sanborn supply chain, the Sanborn-centered conspiracy included a

second, equally important objective that the other conspiracy

lacked: the distribution of marijuana. Nor did the ventures share

the objective of serving a particular organization or boss. Cf.

Sánchez-Badillo, 540 F.3d at 29.

Second, even assuming without deciding that Dellosantos

and Szpyt knew of Sanborn's marijuana distribution operation (a

fact contested by the Defendants),13 we find that the two

conspiracies lacked sufficient interdependence, particularly

Sanborn-centered cocaine and marijuana distribution conspiracy.
13
In support of its contention that the Defendants knew of
Sanborn's marijuana distribution operation, the government claims,
that, on September 12, 2007, Dellosantos was recorded asking Szpyt
for "green paint" for a friend, which the government asserts was a
reference to marijuana. In his reply brief, "Dellosantos disputes
any knowledge or understanding of the phrase 'green paint.'"

As an initial matter, we note an inconsistency between the
government's depiction of this conversation and the record.
Exhibit 2C, which the government cites on appeal, includes a call
summary of the relevant conversation and that call summary
indicates Szpyt was asking Dellosantos about the green paint, not
vice versa.

Nevertheless, even if we accept the government's
characterization of the meaning of "green paint," this conversation
does not materially impact our analysis. Even if the September 12
discussion suggests that Dellosantos actually sold marijuana to
Szpyt or an associate of Szpyt's, there was no other evidence and
the government does not contend that Dellosantos provided marijuana
for the venture in Maine.

-23-
considering that the participants' states of mind are the "key" to

this inquiry. See Mangual-Santiago, 562 F.3d at 422. In this

regard, although the evidence showed that Szpyt and Dellosantos

"participated in some branch" (supplying cocaine) of the Sanborn-

centered operation, cf. id., nothing was presented to the jury to

suggest that either of them believed that the success of their

cocaine distribution operation likely depended on Sanborn's

marijuana distribution venture. See Glenn, 828 F.2d at 857-58.

For example, the evidence did not establish a situation

where an individual or group had an "iron-fisted control" over the

two distribution schemes. Cf. Sánchez-Badillo, 540 F.3d at 30. In

addition, Sanborn used different suppliers for his marijuana

distribution (namely, Demarco and Chase), and there was no evidence

that either Szpyt or Dellosantos relied upon the success of

Sanborn's marijuana distribution in order to sell their cocaine.

Cf. Mangual-Santiago, 562 F.3d at 422. Rather, as discussed below,

the record indicates that the Defendants were indifferent to

Sanborn's marijuana distribution scheme. See Glenn, 828 F.2d at

858 (noting that a tacit understanding does not exist when the

distributor is indifferent to the purposes of others in the

enterprise). In fact, there was little evidence to suggest that

Dellosantos even knew about the marijuana operation until Szpyt

told him of Sanborn's arrest.

-24-
 The government presented at trial a plethora of evidence

providing detailed descriptions of Szpyt's relationship with

Sanborn and the latter's marijuana distribution emporium. This

evidence established, inter alia, that Szpyt and Sanborn

communicated constantly, as the two were fellow Iron Horsemen who

spent much time together (both in Massachusetts and Maine) at Iron

Horsemen parties and handling cocaine distribution. Yet, there was

no evidence suggesting that the two ever discussed Sanborn's

marijuana distribution operation. Thus, the evidence strongly

suggested that Szpyt was only interested in his own unlawful ends

(i.e., distributing cocaine) and was indifferent with regards to

Sanborn's other unlawful activities. See Blumenthal v. United

States, 332 U.S. 539, 558 (1947) (noting that separate conspiracies

may be found when defendants have distinct ends, when they have no

interest in others' unlawful activities and when they do not aid

others in conducting those activities). The success of Szpyt's and

Dellosantos' cocaine distribution operation was no more dependent

on the success of Sanborn's marijuana distribution operation than

it was on the success of Sanborn's garage or any other (legal or

illegal) income-producing venture devised by Sanborn that might

have enabled him to pay off his cocaine debt to Szpyt. No evidence

was presented suggesting that either Szpyt or Dellosantos

understood the relationship differently.

-25-
 This weakness in the government's case is highlighted by

its heavy reliance on Call 2026 -- the conversation between

Dellosantos and Szpyt about Sanborn's arrest -- as "[p]erhaps the

most damning evidence" that Defendants understood their cocaine

distribution operation to have been interdependent with Sanborn's

marijuana distribution. Even viewing this conversation in the

light most favorable to the verdict, Szpyt was merely informing

Dellosantos about a fellow Iron Horsemen (and cocaine customer) who

was caught committing a serious crime. It was expected for both

Szpyt and Dellosantos to have been very interested in this story,

since, although Sanborn was caught doing a "weed deal," a search of

his home and an investigation of his other activities (e.g.,

cocaine distribution) might lead law enforcement officials to the

Defendants. However, this concern over Sanborn's ability to avoid

detection, by itself, does not suggest that the Defendants believed

that they had an interest in every income-producing unlawful

venture that Sanborn might have gotten himself into (in this case,

marijuana distribution). We cannot see how this conversation

suggests that either Szpyt or Dellosantos believed that their

cocaine distribution was interdependent with Sanborn's marijuana

operation. In fact, a recording of the transcript of Call 2026

(see ante at pp. 11-12) shows the opposite of what the government

claims, for Szpyt is complaining that he did not know about

-26-
Sanborn's marijuana trafficking: "I didn't know. I can only police

my fucking guys so much. . . . I got no control."

Third and finally, any evidence of overlap between the

two conspiracies was insufficient to outweigh the lack of

interdependence. To be sure, controlled substances that were

distributed in both conspiracies traveled through Sanborn.

However, there was no evidence Sanborn had any interactions with

Dellosantos or Vizcaíno or was even aware of their existence, aside

from his general knowledge that Szpyt obtained cocaine from a few

suppliers, one of whom Sanborn believed to be Hispanic. Nor was

there any evidence that Dellosantos specifically knew he supplied

Sanborn with cocaine. In short, Sanborn was not the type of "hub"

character that frequently exists in cases where this court has

found significant overlap and an overarching conspiracy.

Perhaps this case is best understood if we think of

Sanborn as a drug supermarket owner, who sold different products,

cocaine and marijuana, rather than bananas and tomatoes, from

different distributors: cocaine from the Vizcaíno-Dellosantos-Szpyt

chain and marijuana from the Demarco and Boivin-Chase suppliers.

Were we actually considering such fruit distribution chains in the

context of an actual supermarket, we would be hard put to argue

that the intersection of those two separate fruit product

distribution chains would be of any legal significance as far as

somehow making the members of the two separate chains overall

-27-
business partners. Neither would it be reasonable to argue that

merely distributing tomatoes to the supermarket, by itself, would

make the tomato distributor a partner in the supermarket's overall

business of selling bananas and other foods. When we transfer this

bucolic scenario to the present case, we can perceive no legally

significant difference in the outcome. The Vizcaíno-Dellosantos-

Szpyt criminal conspiracy to distribute cocaine was a different

criminal enterprise than the Boivin-Chase-Sanborn-Jordan marijuana

enterprise, with different products, a different source of supply,

different goals, and a different history. Similarly, distributing

cocaine (rather than tomatoes) to Sanborn's drug supermarket does

not, by itself, make Vizcaíno, Dellosantos and Szpyt partners in

Sanborn's drug supermarket business of distributing cocaine and

marijuana.

In sum, we conclude that the evidence did not support a

finding of a single overarching conspiracy covering all the

relevant drug dealing. With this conclusion in mind, we turn to

whether the evidence sufficed to prove that the Defendants joined

either of the two conspiracies that were actually proven by the

government and, if so, we then determine whether the variance

(between the conspiracy charged and the conspiracy for which there

was sufficient evidence that the Defendants actually joined)

unfairly prejudiced the Defendants.

-28-
 3. The Defendants did not Join the Conspiracy Specified
in the Indictment

As previously mentioned, the indictment charged the

Defendants with participation in a single Maine-based conspiracy to

distribute and possess with intent to distribute both cocaine and

marijuana. The evidence, however, established the existence of at

least two distinct conspiracies: (1) the Massachusetts-based

Vizcaíno-Dellosantos-Szpyt conspiracy to distribute cocaine, and

(2) the Maine-based Sanborn-centered conspiracy to distribute both

cocaine and marijuana.

Mindful of this variance, we find that the Defendants'

convictions cannot stand for two reasons. First, we find that the

evidence was insufficient to support a verdict that either Szpyt or

Dellosantos knowingly and voluntarily joined the Sanborn-centered

conspiracy to distribute both cocaine and marijuana. Second,

assuming without deciding that the evidence was sufficient to

permit a jury to find the Defendants guilty of joining the

Vizcaíno-Dellosantos-Szpyt conspiracy to distribute cocaine, we

find that the Defendants would be unfairly prejudiced by the

difference between the conspiracy specified in the indictment and

the Vizcaíno-Dellosantos-Szpyt conspiracy to distribute cocaine.

These two findings are discussed separately in the following

sections.

-29-
 a. The Evidence was Insufficient to Establish
that the Defendants Joined the Sanborn-
centered Conspiracy

While the indictment charged the Defendants with joining

a single overarching conspiracy to distribute both cocaine and

marijuana, the evidence proved at least two distinct conspiracies,

i.e., the Vizcaíno-Dellosantos-Szpyt conspiracy to distribute

cocaine and the Sanborn-centered conspiracy to distribute both

cocaine and marijuana. Under our previously mentioned framework,

if we were to find sufficient evidence for a jury to find the

Defendants guilty of joining the Sanborn-centered conspiracy, then

the question would arise as to whether the variance between the

charged conspiracy and the Sanborn-centered conspiracy was

harmless. See Wihbey, 75 F.3d at 773 (quoting Glenn, 828 F.2d at

858). We, however, do not have to answer this question

conclusively, given that, as discussed below, we find that the

evidence was insufficient for a rational factfinder to conclude

beyond a reasonable doubt that the Defendants joined the Sanborn-

centered conspiracy.

In order to establish the crime of conspiracy, the

government must prove, among other things, "the defendant's knowing

and voluntary participation in the conspiracy," which in turn

"requires that the government establish [defendant's] intention to

join the conspiracy and to effectuate the objects of the

conspiracy." Portalla, 496 F.3d at 26. As discussed below, the

-30-
evidence presented to the jury did not establish beyond a

reasonable doubt that either Szpyt or Dellosantos knowingly and

voluntarily intended to join the Sanborn-centered conspiracy and to

effectuate its objects.

The mere fact that Sanborn chose to diversify his illegal

activities by venturing out into the marijuana distribution

business and agreed to form a multi-object conspiracy with other

individuals to sell and distribute both cocaine and marijuana does

not, by itself, make the Defendants a party to such a conspiracy,

even if the Defendants had knowledge of the same. See Zafiro, 945

F.2d at 888; see also United States v. Melchor-López, 627 F.2d

886, 891 (9th Cir. 1980) ("[M]ere association with members of a

conspiracy, the existence of an opportunity to join a conspiracy,

or simple knowledge, approval of, or acquiescence in the object or

purpose of the conspiracy . . . is not sufficient to make one a

conspirator."); United States v. Collins, 552 F.2d 243, 245

(8th Cir. 1977) ("Knowledge of the existence or acquiescence in a

conspiracy does not serve to render one a part of the

conspiracy."). Rather, as discussed previously, the evidence

suggested that the Defendants were indifferent to Sanborn's

marijuana operations, and therefore it was not reasonable to

conclude that the Defendants agreed to join the Sanborn-centered

conspiracy to distribute both cocaine and marijuana. Just as the

hashish smuggler in Glenn was aware that his co-conspirators were

-31-
involved in marijuana smuggling but was himself uninterested in

marijuana, see 828 F.2d at 857-59, Szpyt and Dellosantos, both

cocaine distributors, were allegedly aware of Sanborn's involvement

in marijuana distribution but were themselves uninterested in the

marijuana operations. Furthermore, there was no evidence that

either Szpyt or Dellosantos profited from marijuana.

In addition, we are unpersuaded by the Government's

proposal that the fact that Szpyt spent significant time in Maine

and assumed a leadership role in the Iron Horsemen suggested that

he intended to join the Sanborn-centered conspiracy to distribute

both cocaine and marijuana. There is no evidence that Szpyt's role

in the Iron Horsemen was in any way connected to Sanborn's

marijuana network. In fact, contrary to what the government

claims, the recorded conversation between Dellosantos and Szpyt

regarding Sanborn's marijuana arrest, in which Szpyt is complaining

to Dellosantos of Sanborn's "fucking stupidity," in fact suggests

Szpyt's lack of participation in Sanborn's marijuana activities:

"[O]ne of my . . . idiot brothers got . . . popped up there. . . .

[D]oing . . . fucking weed deal or some fucking stupid thing. . .

. I didn't know. I can only police my fucking guys so much. . . .

I got no control . . . they are all men . . . . He got caught with

twenty pounds [of marijuana]."14

14
Although our standard of review is deferential, it is not
meaningless. We are still required to decide whether the evidence,
viewed in the light most favorable to the prosecution and "drawing

-32-
 The government also points to certain other snippets of

evidence regarding Szpyt that neither individually nor jointly

establish beyond a reasonable doubt that he intended to join the

Sanborn-centered conspiracy to distribute both cocaine and

marijuana.

First, the government points to the previously mentioned

occasion where Sanborn reduced $750 from his cocaine debt to Szpyt

by paying him with half a pound of marijuana. We note, however,

that this singular exchange of marijuana for a cocaine debt does

not factually or legally make Szpyt a member of the Sanborn-

centered conspiracy, any more than if Sanborn had paid Szpyt in

cash or with a sack of Maine potatoes. That single payment with

marijuana was merely a barter of goods, not the joining of Szpyt

into the Sanborn-centered conspiracy.15

all plausible inferences therefrom, would allow a rational
factfinder to conclude beyond a reasonable doubt that the defendant
committed the charged crime." United States v. Cruz-Rodríguez,
541 F.3d 19, 26 (1st Cir. 2008) (emphasis added). Thus, we
respectfully disagree with Judge Howard's suggestion, infra at 45,
that, despite the overall lack of evidence, this conversation
(viewed in the light most favorable to the government) was
sufficient to prove beyond a reasonable doubt that Szpyt intended
to both join the Sanborn-centered conspiracy and effectuate its
objects. See Portalla, 496 F.3d at 26.
15
In his concurring/dissenting opinion, Judge Howard cites United
States v. Moran, 984 F.2d 1299, 1303 (1st Cir. 1993) to support his
proposition that this single transaction proved beyond a reasonable
doubt that Szpyt tacitly agreed to enter a conspiracy involving,
inter alia, marijuana distribution. We respectfully disagree.
Moran notes that "even a single sale for resale, embroidered with
evidence suggesting a joint undertaking between buyer and seller,
could suffice [to find a conspiracy]." 984 F.2d at 1303. In the

-33-
 Second, the government points to the recorded

conversation between Szpyt and his daughter indicating that, at one

point, Szpyt possessed a "big" bag of marijuana. Again, we are

unpersuaded. In the first place, this occurred in the United

States, where trafficking in marijuana is endemic. Thus, the

marijuana could just as well have been from a source in

Massachusetts, or elsewhere, and it may have been for Szpyt's

personal use.16 Moreover, there is no evidence as to what was the

amount in the "big" bag, or more importantly for our purposes,

whether it was in any way connected to the Sanborn-centered

conspiracy based in Maine.

Finally, we note that the government presented an

abundance of evidence of Sanborn's marijuana network, including

direct testimony of Sanborn's marijuana emporium and a selection of

hundreds of telephone conversations (from a pool of thousands of

calls intercepted by the government) involving hours of intercepted

communications, which memorialized the marijuana dealings

attributed by the government to the Sanborn-centered conspiracy.

It is quite significant that none of these recordings (dealing with

present case, however, there was no evidence that the marijuana
exchanged in this single barter transaction was for resale, and the
transaction was not "embroidered with evidence" suggesting that
Szpyt intended to both join the Sanborn-centered conspiracy and
effectuate its objects. Cf. id. To the contrary, as previously
mentioned, the evidence indicated that Szpyt was indifferent to
Sanborn's marijuana distribution operation.
16
The record showed that Szpyt smoked marijuana.

-34-
the Sanborn-centered conspiracy) even randomly mention either

Dellosantos or Szpyt. Furthermore, there were numerous recorded

telephone calls between Szpyt and Sanborn dealing with cocaine and

in none is there even an inkling that the Defendants were part of

the marijuana distribution scheme that Sanborn independently

organized and directed.17

In sum, we conclude that the evidence was insufficient

for a rational factfinder to conclude beyond a reasonable doubt

that either Dellosantos or Szpyt joined the Sanborn-centered

conspiracy. In light of this conclusion, we now turn to whether

the Defendants' convictions can nonetheless stand based on a

finding that the Defendants joined the other conspiracy proven by

the government, i.e., the Vizcaíno-Dellosantos-Szpyt conspiracy to

distribute cocaine.

b. The Defendants were Unfairly Prejudiced by
the Variance Between the Conspiracy
Specified in the Indictment and the
Vizcaíno-Dellosantos-Szpyt Conspiracy

"We review de novo the question whether a variance

affected a defendant's substantial rights." Wihbey, 75 F.3d at

774.

Although the indictment charged a single overarching

conspiracy to distribute both cocaine and marijuana, the evidence

17
The only exception to this is the aforementioned conversation
in which Szpyt emphatically tells Dellosantos of Sanborn's arrest
for his marijuana activities, of which Szpyt claims lack of
control.

-35-
established the existence of at least two distinct conspiracies:

the Maine-based Sanborn-centered conspiracy to distribute both

cocaine and marijuana and the Massachusetts-based Vizcaíno-

Dellosantos-Szpyt conspiracy to distribute cocaine. As discussed

in the preceding section, the evidence was insufficient to support

a finding that the Defendants joined the Sanborn-centered

conspiracy. On the other hand, the evidence was arguably

sufficient to support a finding that the Defendants joined the

other conspiracy proven by the government, i.e., the Vizcaíno-

Dellosantos-Szpyt conspiracy. Furthermore, because the statutory

violation for joining the Vizcaíno-Dellosantos-Szpyt conspiracy

remains the same as that alleged in the indictment (i.e., 21 U.S.C.

§ 846), the jury, under a proper set of instructions, could

arguably have convicted the Defendants of participating in the

Vizcaíno-Dellosantos-Szpyt conspiracy so long as the difference

between the conspiracy specified in the indictment and the

Vizcaíno-Dellosantos-Szpyt conspiracy "d[id] not cause unfair

prejudice." Wihbey, 75 F.3d at 773. Nevertheless, for the reasons

stated below, we conclude that the Defendants were unfairly

prejudiced by the difference between the conspiracy specified in

Count 1 and the Vizcaíno-Dellosantos-Szpyt conspiracy, and,

therefore, vacate their convictions. See id. (noting that, where

there is a variance, a jury cannot convict if the difference causes

unfair prejudice).

-36-
 We have previously recognized at least three ways in

which a variance might "affect the substantial rights" of the

accused. Id. at 774 (citing United States v. Sutherland, 929 F.2d

765, 772-73 (1st Cir. 1991)).

First, a defendant may receive inadequate
notice of the charge against him and thus be
taken by surprise at trial. Second, a
defendant may be twice subject to prosecution
for the same offense. Third, a defendant may
be prejudiced by "evidentiary spillover": the
"transference of guilt" to a defendant
involved in one conspiracy from evidence
incriminating defendants in another conspiracy
in which the particular defendant was not
involved.

Id.

In the instant case, the Defendants (and their counsel)

were, at the very least, deprived of adequate notice of the charges

against them, and they were therefore limited in their ability to

prepare a defense at trial. Specifically, the Defendants were

forced to defend against an allegation that they joined a Maine-

based conspiracy to distribute both cocaine and marijuana, when in

fact the government introduced evidence suggesting that the

Defendants joined (with different co-conspirators) a Massachusetts-

based conspiracy to distribute cocaine, i.e., the Vizcaíno-

Dellosantos-Szpyt conspiracy. See Yelaun, 541 F.3d at 419 (noting

that a variance may prejudice a defendant by, among other things,

"undermining the defendant's right to have sufficient knowledge of

the charge against him to prepare an effective defense and avoid

-37-
surprise at trial" (internal quotation marks omitted)).

Accordingly, we find that the difference between the conspiracy

specified in the indictment and the Vizcaíno-Dellosantos-Szpyt

conspiracy unfairly prejudiced the Defendants.

In addition, there should be little question that the

jury's decision to find the Defendants guilty of joining the

conspiracy specified in Count 1 (to distribute both cocaine and

marijuana) was influenced by the plethora of evidence implicating

the other sixteen indicted co-defendants (including Sanborn) in a

conspiracy involving marijuana. As previously mentioned, this

evidence included direct testimony from various co-defendants --

who pled guilty to the conspiracy in Count 1 -- and a selection of

hundreds of telephone conversations (from a pool of thousands of

calls intercepted by the government) involving hours of intercepted

communications, which memorialized the marijuana dealings of the

other sixteen individuals indicted under Count 1. Thus, under the

guise of its single conspiracy theory, the government subjected the

Defendants to voluminous testimony relating to unconnected crimes

in which they took no part. This situation created a pervasive

risk of "evidentiary spillover," where the jury might have unfairly

transferred to the Defendants the guilt relating to the other

sixteen indicted individuals. Specifically, there was a pervasive

risk that such transference of guilt might have led the jury to

find the Defendants guilty of joining the conspiracy specified in

-38-
Count 1 (dealing with both cocaine and marijuana), despite the fact

that the evidence was insufficient to support such a finding.

In sum, we find that the variance between the conspiracy

specified in the indictment and the evidence at trial was unfairly

prejudicial to both Defendants. The evidence established at least

two conspiracies, (1) the Sanborn-centered conspiracy, and (2) the

Vizcaíno-Dellosantos-Szpyt conspiracy. With regards to the first

conspiracy (i.e., the Sanborn-centered conspiracy), the evidence

was insufficient to support a finding that the Defendants joined

the same. In addition, although the evidence was arguably

sufficient to support a finding that the Defendants joined the

second conspiracy proven (i.e., the Vizcaíno-Dellosantos-Szpyt

conspiracy), we find that the variance between the conspiracy

specified in the indictment and the Vizcaíno-Dellosantos-Szpyt

conspiracy unfairly prejudiced the Defendants. Accordingly, we

vacate both Dellosantos' and Szpyt's convictions under Count 1.18

18
The government argues in a cursory manner that, even if the
evidence did not establish that the Defendants agreed to join a
single conspiracy to distribute both marijuana and cocaine -- as
charged in the indictment -- Griffin v. United States, 502 U.S. 46
(1991) requires us to affirm the Defendants' convictions insofar as
the evidence was sufficient to connect the Defendants to a
conspiracy to distribute only cocaine (i.e., to the Vizcaíno-
Dellosantos-Szpyt conspiracy). This argument is waived in light of
the government's perfunctory treatment of Griffin and lack of
developed argumentation. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990). But even if it were not waived, the argument
would still fail as it is not supported by Griffin.

In Griffin, the defendant was indicted for conspiring to defraud
a federal government agency in violation of 18 U.S.C. § 371, by

-39-
 III. Conclusion

Based on the above, we conclude that the district court

erred in denying Dellosantos and Szpyt's Rule 29 motions.

Accordingly, Dellosantos' conviction on Count 1 of the indictment

is vacated. Similarly, Szpyt's conviction on Count 1 and all

charges based thereon are also vacated.

Vacated.

"Concurring and Dissenting opinion follows"

joining a single conspiracy with two objects. The jury returned a
general guilty verdict that did not specify whether the jury had
convicted the defendant of participating in one objective of the
charged conspiracy (for which there was sufficient proof) or for
participating in the other objective, for which (as the government
conceded) there was not sufficient evidence. The Supreme Court
affirmed, holding that a general guilty verdict on a dual-object
single conspiracy count need not be set aside merely because the
defendant was not implicated in one of the objects of the charged
conspiracy, where the evidence was sufficient to find that the
defendant participated in the other object of such conspiracy. Id.
at 48-52. On the other hand, the important point as far as this
case is concerned is that the defendant in Griffin had agreed to
the dual-object single conspiracy that was charged, thus a finding
that the defendant had participated in one of this conspiracy's
objectives was enough to sustain the conviction. In the present
case, however, the government failed to prove beyond a reasonable
doubt that Dellosantos and Szpyt agreed to join the conspiracy that
was charged.

Thus, Griffin did not abrogate the well settled principle that,
where a single conspiracy is charged and multiple conspiracies are
proven, the government must prove that the charged conspiracy
existed and that defendants agreed to join that conspiracy, and not
some other conspiracy. See, e.g., United States v. Trainor,
477 F.3d 24, 35 n.20 (1st Cir. 2007) (noting that jury instructions
explaining this principle were proper).

-40-
 HOWARD, Circuit Judge (concurring in part and dissenting

in part). The majority's framework for deciding these cases relies

on circuit precedent that I doubt can be reconciled with the usual

mode, after Griffin v. United States, 502 U.S. 46 (1991), of

analyzing convictions on indictments alleging multiple-object

conspiracies. Even under my respected colleagues' framework, there

was sufficient evidence to convict Szpyt if not Dellosantos.

I.

In Griffin, a defendant was charged in a single count

with conspiracy to defraud the government by means of two objects.

Id. at 47. At trial the government linked the defendant to one

object but not the other. Id. at 48. The jury convicted in a

general guilty verdict. Id. The Supreme Court affirmed the

conviction: It held that a general guilty verdict on a dual-object

conspiracy charge must stand as long as the evidence is adequate to

support conviction as to one of those objects, even if the evidence

is inadequate as to the other. Id. at 48-52.

We have applied Griffin and upheld general guilty

verdicts in single-count, multiple-object conspiracies in a variety

of contexts. For example, in United States v. Mitchell, the

defendant challenged his conviction under a single count for

conspiracy to violate (1) the arson statute, and (2) the wire-fraud

statute. 85 F.3d 800, 809 (1st Cir. 1996). Among other things,

the defendant argued that there was insufficient evidence to prove

-41-
the wire-fraud object of the conspiracy. Id. at 811. We rejected

that argument, however, based on Griffin and the defendant's

failure to contest the sufficiency of the evidence as to the other

object of the conspiracy. Id.; see also United States v. Gerhard,

615 F.3d 7, 30 (1st Cir. 2010), cert. denied sub nom. Riley v.

United States, 131 S. Ct. 1536 (2011); United States v. Capozzi,

486 F.3d 711, 718-19 (1st Cir. 2007).

Similarly, the indictment here charged a single

conspiracy to violate a narcotics statute by means of two objects:

(1) distributing cocaine; and (2) distributing marijuana. As I

read Griffin and our case law, it seems to me that the government's

burden at trial was to prove that a conspiracy to distribute

narcotics existed, and to tie each defendant to the agreement to

distribute one or more of the drugs involved in that conspiracy;

that is, either cocaine or marijuana or both. At least that is how

several other circuits have read Griffin in cases like this one,19

and this approach flows logically from the settled law that a

general verdict on a multiple-count indictment will stand even if

19
United States v. Calle, 120 F.3d 43, 44 (5th Cir. 1997), cert.
denied 523 U.S. 1012 (1998); United States v. Henry, 71 F. Appx.
493, 499-500 (6th Cir. 2003) (per curiam), cert. denied sub nom.
Rosenboro v. United States, 540 U.S. 1134 (2004); United States v.
Vaziri, 164 F.3d 556, 566-67 (10th Cir. 1999), cert. denied sub
nom. Quarterman v. United States, 533 U.S. 923 (2001); United
States v. Barnes, 158 F.3d 662, 672 (2d Cir. 1998); accord United
States v. Banks, 10 F.3d 1044, 1054-55 (4th Cir. 1993) (same, but
without citing Griffin), cert. denied sub nom. Blow v. United
States, 511 U.S. 1090 (1994).

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some counts were not proved and that charges leveled in the

conjunctive need only be proved in the disjunctive.20

But the government has to make the argument to benefit

from it. Here, the government does little more than cite the

relevant authority. It makes no meaningful attempt to explain how

that authority applies in these cases, its effect (if any) on

variance analysis, or whether the jury charge (and the government's

failure to object) limits its application in these cases, not to

mention potential issues in sentencing based on a general guilty

verdict when multiple drugs are involved. Answers to those

questions are not obvious, especially in light of our precedent

relied on by the majority. And we cannot do the government's

20
The majority attempts to distinguish Griffin as follows: "the
defendant in Griffin had agreed to the dual-object single
conspiracy that was charged, thus a finding that the defendant had
participated in one of this conspiracy's objectives was enough to
sustain the conviction." Ante, at 39 n.18. But that statement
merely begs the question. In Griffin, the proof failed to
establish that the defendant was even aware of one of the two
objects of the conspiracy, see 502 U.S. at 48, a critical fact that
the lower court's decision had made crystal clear. United States
v. Beverly, 913 F.2d 337, 348, 360 (7th Cir. 1990), aff'd, Griffin,
502 U.S. 46 (recognizing that there was "no proof that [Ms.
Griffin] knew Mr. Beverly was a drug dealer" but affirming her
conviction anyway because she participated in the conspiracy's
other object). Thus, the defendant could not have agreed to both
objects of the dual-object single conspiracy in Griffin. Moreover,
our precedent applying Griffin has never required that a defendant
agree to both objects in order to sustain a conspiracy conviction.
Indeed, in Mitchell, this court rejected the defendant's plaint
that "the Government was allowed to argue a 'grab bag' of theories
and ask the jury to guess as to which agreement Mitchell
contemplated" because under Griffin "the jury could find Mitchell
guilty on Count I if the government proved either of the objects of
the conspiracy." Mitchell, 85 F.3d at 810 (emphasis supplied).

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homework, even if the government may be on to something. United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

II.

That issue aside, my colleagues reach the wrong result in

any event, at least for Szpyt. In Szpyt's brief, he flatly admits

to the cocaine scheme; and the evidence adduced at trial showed

that he was not only aware of -- but directly benefitted from --

the marijuana scheme. An entry in Sanborn's ledger reflected that

Szpyt accepted a half-pound of marijuana in lieu of $750 toward the

balance of Sanborn's cocaine debt. That transaction was confirmed

at trial by Sanborn's wife. The majority says that this one-time

payment of a half-pound of marijuana is "merely a barter of goods."

Ante, at 33. I find that characterization peculiar in a narcotics

case. But in any event the majority's criticism misses the point:

a single transaction in the context of other evidence suggesting a

joint undertaking can prove tacit agreement. United States v.

Moran, 984 F.2d 1299, 1303 (1st Cir. 1993).

And here the evidence did suggest that Szpyt played some

role in the marijuana undertaking. For example, in one recorded

call, Szpyt relayed to Dellosantos the details of Sanborn's arrest

for a "weed deal" and bemoaned that "I can only police my fucking

guys so much." The statement, which the jury easily could have

concluded was tongue-in-cheek, implies not only that he knew about

marijuana distribution, but also that he exercised at least some

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measure of control over it, although in his view not enough. The

inference makes sense in light of Szpyt's leadership position over

gang members distributing marijuana in Maine, and the fact that he

owned the clubhouse in Old Orchard Beach where they met. Even if

that is not the only inference the jury could have drawn, it is

certainly plausible and at this stage we must draw all such

inferences in favor of guilt. United States v. Cruz-Rodríguez, 541

F.3d 19, 26 (1st Cir. 2008).

On top of this, the evidence indicated that Szpyt

possessed some quantity of marijuana. Following a meeting between

Szpyt and Dellosantos, police acting in cooperation with federal

authorities pulled over Dellosantos' van for a traffic violation.

The officers observed Szpyt drive past the stopped vehicle several

times. In a recorded call at about the same time, Szpyt called

home and exhorted his daughter to hide the "big bag" of "pot." The

majority says that Szpyt's cache of marijuana could have been for

his personal consumption. Perhaps they are right. But viewing all

the evidence together (and not each piece separately and in

isolation as the majority does), and in light of the deference that

our precedent requires, I believe that the jury was free, although

not compelled, to convict Szpyt.

So I respectfully dissent in case no. 09-2670. But I

have sincere doubts that the result in either case is correct.

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