United States v. Plaza-Santiago

United States Court of Appeals
For the First Circuit

Nos. 11-2160
12-1814

UNITED STATES OF AMERICA,

Appellee,

v.

NORMA SANTOS-SOTO,
CARLOS PLAZA-SANTIAGO,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.

Gail S. Strassfeld, for appellant Santos-Soto.
Ramón M. González, for appellant Plaza-Santiago.
Tiffany V. Monrose, Scott H. Anderson, Assistant United States
Attorneys, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney,
Chief, Appellate Division, were on brief, for appellee.

August 24, 2015
 TORRUELLA, Circuit Judge. After a six-day jury trial,

Defendants-Appellants Norma Santos-Soto ("Santos") and Carlos

Plaza-Santiago ("Plaza"), former police agents of the Puerto Rico

Police, were convicted of conspiracy to injure, oppress, threaten,

and intimidate persons in the town of Arecibo in the exercise of

their constitutional rights in violation of 18 U.S.C. § 241

(Count 1) and conspiracy to possess with intent to distribute

controlled substances in violation of 21 U.S.C. §§ 841, 846

(Count 2). On appeal, they challenge the sufficiency of the

evidence supporting their convictions on Count 2.1 After careful

consideration, we reverse Santos's conviction on Count 2 for

insufficient evidence, but find that there was sufficient evidence

to convict Plaza on Count 2. We, therefore, affirm his conviction.

I. Background

A. Factual Background

We recite the facts as the jury could have found them,

viewing the evidence in the light most favorable to the jury's

verdict. See United States v. Beltrán, 503 F.3d 1, 2 (1st Cir.

2007). Santos and Plaza used to work as police agents in the

Arecibo Drug Division of the Puerto Rico Police. In 2007, as

members of the "Confidentiality" section, Defendants worked with

undercover agents, including Agent José Rodríguez-Vázquez

("Rodríguez"). Santos was in charge of undercover agent Rodríguez.

1
Defendants do not challenge their convictions on Count 1.

-2-
 On July 5, 2007, the Puerto Rico Police, Arecibo Drug

Division, executed arrest warrants against some individuals. Two

of these individuals -- Juan Carlos Aquino-Méndez ("Aquino") and

Roberto González-Medina ("González-Medina") -- were arrested based

on complaints filed for an alleged drug transaction that took place

on February 7, 2007. These complaints were predicated on a sworn

affidavit prepared on February 9, 2007, by undercover agent

Rodríguez, where he stated that he and a confidential informant,

Gerald Hernández-Vera ("Hernández"), had purchased two ounces of

cocaine from Aquino and González-Medina on February 7, 2007.

However, the information contained in this affidavit detailing the

transaction was false.

The February Incident

On February 7, 2007, Rodríguez and Hernández did not

purchase any drugs from either Aquino or González-Medina. Instead,

on February 6, 2007, agent Edgardo Hernández-López (a/k/a "Eggy"),

a police officer at the Arecibo Illegal Weapons Unit of the Puerto

Rico Police, gave two ounces of cocaine to Hernández to plant on

Aquino and González-Medina in order to frame them, because Eggy had

a personal grudge against Aquino. On February 7, 2007, Rodríguez

and Hernández were supposed to do a controlled buy of drugs from

Aquino's alleged pusher, González-Medina. They drove together to

González-Medina's house and Hernández got out of the car and walked

to the rear side of González-Medina's house to do the controlled

-3-
buy while Rodríguez stayed in the car. Hernández talked briefly to

González-Medina's father, but did not purchase any drugs or talk to

anyone else. At the time, Hernández had the drugs that Eggy had

given him the day before hidden in his boot, but he did not tell

this to Rodríguez. Instead, Hernández took out the drugs from his

boot and, upon returning to the car, told Rodríguez that González-

Medina had just sold him those drugs on behalf of Aquino.

Rodríguez then took Hernández home and left with the drugs. While

this was taking place, Santos and Plaza were together in a police

car in the general vicinity, but they did not see the "transaction"

take place. Santos afterwards submitted the drugs for testing to

the Institute of Forensic Science,2 which concluded that they were

in fact cocaine.

Two days later, on February 9, 2007, Rodríguez prepared

a sworn affidavit, in which he stated that he and the confidential

informant, Hernández, had purchased two ounces of cocaine from

Aquino and González-Medina on February 7, 2007. Rodríguez's sworn

affidavit of February 9, 2007, was then used to support complaints

charging Aquino and González-Medina with state drug-related

offenses, and arrest warrants were issued against them in July

2007.

The July Incident

2
This was normal procedure.

-4-
 The arrest warrants for Aquino and González-Medina were

to be executed on July 5, 2007. Santos assigned the arrest

warrants related to the February incident to Agent Bernie González-

Vélez ("González-Vélez"), who had joined the Arecibo Drug Division

earlier that year. According to González-Vélez's trial testimony,3

Santos, Plaza, and two other police agents developed a plan whereby

González-Vélez and Rodríguez were to conduct a buy-bust operation.

Pursuant to the plan, González-Vélez would go to Aquino's house

with Rodríguez to buy some drugs from Aquino. After paying for the

drugs, González-Vélez would execute the arrest warrant issued as a

result of the February complaint. However, Hernández again got

cocaine prior to the planned buy-bust. Earlier that day, Hernández

obtained fifty baggies of cocaine from Eggy and Agent José González

(a/k/a "Tuti"), who also worked at the Arecibo Illegal Weapons Unit

of the Puerto Rico Police. Both Eggy and Tuti told Hernández to

plant the cocaine on Aquino. According to Hernández's trial

testimony, Plaza called him on July 5, 2007, and told him to

purchase fifty bags of cocaine from Aquino.

Hernández consumed three to five of the fifty baggies of

cocaine that Eggy and Tuti had given him, and then met with

González-Vélez and Rodríguez. Hernández gave the remaining forty-

five to forty-seven baggies of cocaine to Rodríguez, and told him

that he had purchased the drugs from Aquino earlier that day.

3
González-Vélez testified pursuant to a plea agreement.

-5-
Hernández told González-Vélez and Rodríguez that they still needed

to pay Aquino for the drugs. Because Hernández had already gotten

the drugs, the original buy-bust plan was changed. The officers

then planned to pay Aquino for the cocaine that he had allegedly

sold Hernández earlier that day, and then arrest him after making

the payment. When González-Vélez and Rodríguez suggested that

Hernández go with them to pay Aquino for the drugs, Hernández

refused. Instead, he requested to be taken home because he feared

that Aquino would label him as a snitch and kill him. González-

Vélez then radioed the patrol car where Santos and Plaza were and

informed them that Hernández did not want to go to Aquino's house

and wanted to be taken home instead. Plaza told González-Vélez to

take Hernández home, which he did. At no time did González-Vélez

tell Plaza that Hernández had already "purchased" the drugs from

Aquino or that they already had the drugs.

After dropping Hernández at his house, Rodríguez and

González-Vélez arrived at Aquino's house to execute the arrest

warrant. There were no other police officers at Aquino's house,

but other officers had agreed to be nearby. Rodríguez exited the

car and called for Aquino. When Aquino came out of his house,

Rodríguez told him that he was there to pay for the drugs he had

given earlier to Hernández, but Aquino denied any knowledge of the

drugs. Rodríguez then identified Aquino by taking off his watch --

a prearranged signal -- and returned to the car while Aquino went

-6-
back into his house. González-Vélez then exited the car and called

Aquino. When Aquino once again came out of his house, González-

Vélez arrested him and searched him, but did not find anything

illegal. González-Vélez then radioed Santos, Plaza, and two other

agents who were all together in the same police car and told them

that "the target had been arrested." He did not mention anything

about the drugs. Santos, Plaza, and the other two agents arrived

at Aquino's house in less than ten minutes. Other officers arrived

shortly thereafter. Immediately upon his arrival Plaza asked

González-Vélez for the "bundle" of cocaine. González-Vélez then

gave Plaza the drugs that Rodríguez had given him. Plaza took the

"bundle" and told Aquino, "This is yours." Aquino denied that it

was his. The officers then searched Aquino's house for

approximately twenty minutes but did not find anything illegal.

All they found was over $2,000 in a drawer, which González-Vélez

seized. Aquino was taken to the police station in a van, while

González-Vélez left with Rodríguez.

Later that day, Plaza arrested Hernández at his house,

though his arrest was fake.4 He was also taken to the police

station and left in a holding cell until the next day, when he was

released on bail, which was paid for by Plaza.

4
Other people, including González-Medina, were also arrested on
July 5, 2007.

-7-
 After all the arrests were made on July 5, 2007, the

agents went back to the police station. There, González-Vélez

asked Santos and Plaza what would happen because the drugs had not

been seized from Aquino and the buy-bust had not taken place.

Santos and Plaza instructed González-Vélez to tell the district

attorney that he had seized the drugs from Aquino's person.

González-Vélez told Santos and Plaza that "the facts didn't occur

like that," to which they responded that "it was Aquino's drugs,

submit the case like that." González-Vélez did exactly as Santos

and Plaza had instructed. He told the district attorney that he

had a search warrant for Aquino and that when he arrested and

searched him, he seized drugs and money from Aquino.5

In September 2007, in collaboration with the Federal

Bureau of Investigation ("FBI"),6 González-Vélez had three recorded

conversations with Santos about the July 5 incident. In these

conversations, Santos -- unaware that she was being recorded --

told González-Vélez that he should stick to "the same story" he

previously told the district attorney back in July 2007. González-

Vélez was unable to record any conversations with Plaza. Also in

September 2007, Santos talked to FBI agent Julio Tobar. She told

5
Based on this information, Aquino was charged in state court
with drug-related offenses. González-Vélez testified against him
in the state proceedings, where he maintained the false version of
the events that he had previously told the district attorney.
6
It is unclear from the record how the FBI first became involved
in this case.

-8-
Tobar that on July 5, 2007, she learned from Hernández that he had

received baggies of cocaine from Aquino, and admitted to Tobar that

she instructed González-Vélez to "charge Aquino as if the drugs had

been found in his possession," despite knowing that the drugs had

not been found on Aquino or in his house.

Subpoenaed phone records of Eggy, Tuti, and Plaza for the

months of February, June, July, and September 2007, showed that the

telephone calls between Plaza, Eggy, and Tuti significantly

increased in frequency on the days before, of, and following the

February and July incidents.7 Specifically, on February 6, 2007 --

the day when Eggy gave Hernández two ounces of cocaine to plant on

Aquino and González-Medina -- the records showed three telephone

calls between Eggy, Tuti, and Plaza. First, Eggy called Tuti, then

Plaza called Tuti, and afterwards Eggy and Tuti had another

telephone conversation. On the following day, the day of the

February incident, there were nine telephone calls between Eggy,

Tuti, and Plaza, and Plaza participated in four of them. In the

morning, Tuti called Eggy, and then called Plaza. Between 4:18 pm

and 4:40 pm, the three agents had four telephone conversations.

First, Eggy and Tuti talked, then Plaza called Tuti, and after

speaking with Plaza, Tuti called Eggy. The three of them had

additional telephone conversations during the evening. A similar

7
Santos's telephone records were not subpoenaed.

-9-
pattern was reflected in the records for February 8, the day after

the February incident.

The records also showed that from July 2 to July 6, 2007,

Plaza had seventeen telephone calls with Tuti and Eggy,8 and Plaza

initiated more than forty percent of these calls.9 Six of the

seventeen telephone calls were prior to the buy-bust, while the

remaining eleven were either during or after the planned buy-bust.

In addition, during this same period, Tuti and Eggy called each

other on thirty-one occasions. The evidence showed not only that

Plaza, Tuti, and Eggy were in constant communication during these

days, but also that their telephone calls were relatively

contemporaneous. Many times two of the agents would talk and

immediately upon hanging up the phone, one of them would

communicate with the third agent. For example, on July 5, 2007,

one hour before the buy-bust operation was scheduled to begin, Tuti

and Plaza had a telephone conversation at 3:01 pm that lasted for

two minutes. Immediately after hanging up with Plaza, Tuti called

Eggy at 3:03 pm. Similarly, later that same day, and close in time

to the planned buy-bust operation, Plaza called Tuti at 6:58 pm and

talked to him for two minutes. Immediately after finishing his

8
Ten of these telephone calls were with Tuti, and the remaining
seven were with Eggy.
9
Fourteen out of the seventeen telephone calls were made on the
days before, of, and following the July incident. Eight of these
calls were made on July 5, 2007.

-10-
conversation with Plaza, Tuti called Eggy at 7:01 pm. The evidence

reflects the same pattern of contemporaneous calls between the

three of them on the day following the arrest of Aquino, when six

telephone calls were made between Eggy, Tuti, and Plaza within a

time frame of barely eight minutes.10

The telephone records admitted into evidence showed that

the telephone calls between Plaza, Eggy, and Tuti around the

February and July incidents constituted a spike in relation to the

telephone records for the rest of the period examined, which showed

that Plaza barely communicated with Eggy or Tuti by phone.11

10
For example, on July 6, 2007, Eggy called Tuti at 3:25 pm and
talked to him for four minutes, until 3:29 pm. At 3:29 pm Eggy
received an incoming call from Plaza. He talked to Plaza for two
minutes, until 3:31 pm, when he then received a call from Tuti at
3:31 pm. At 3:32 pm, one minute after Plaza finished his
conversation with Eggy, Plaza called Tuti on his phone. Then, right
after finishing his conversation with Plaza, Tuti called Eggy at
3:33 pm.
11
The evidence does not reflect a single telephone call between
Plaza and Eggy from late January to February 28, 2007, other than
the ones he had on the days of and after the February incident. In
addition, the telephone records reflect that during the entire
months of June and July 2007, Plaza and Eggy communicated by phone
on only three days, aside from the days of and after the July
incident. As to his telephone conversations with Tuti, the
evidence showed that during the entire month of February 2007,
aside from the days of and after the February incident, Plaza
communicated with Tuti by phone only on February 14, 2007, which
was the day before the Institute of Forensic Science received the
drugs from the February incident for testing. The telephone
records also reflect that from June 1 to July 31, 2007, Plaza and
Tuti communicated by phone on only one day aside from the days
around the July incident. We note several telephone calls between
Plaza and Tuti in September 2007. Although the parties do not make
anything of it, we acknowledge that these calls were made around
the time that the FBI initiated its investigation in this case.

-11-
B. Procedural Background

On October 1, 2007, a grand jury returned a two-count

indictment charging Santos and Plaza, along with others,12 with

(1) conspiracy to injure, oppress, threaten, and intimidate persons

in the town of Arecibo in the exercise of their constitutional

rights in violation of 18 U.S.C. § 241 (Count 1), and

(2) conspiracy to possess with intent to distribute controlled

substances in violation of 21 U.S.C. §§ 841, 846 (Count 2).13

Santos and Plaza were tried jointly. At the close of the

government's case, both Defendants moved for judgments of acquittal

under Rule 29 of Federal Criminal Procedure, which the district

court denied. After presenting their witnesses, Defendants renewed

their motions for acquittal, which were again denied. On

October 28, 2010, after a six-day trial, the jury found Santos and

Plaza guilty of both counts. Santos was sentenced to concurrent

terms of fifty-one months of imprisonment on each count, to be

followed by concurrent three-year terms of supervised release on

each count, and a $200 special monetary assessment. The district

12
The confidential informant, Hernández, and agents González-Vélez
and Rodríguez were also indicted. Hernández pled guilty to the two
conspiracy charges, González-Vélez pled guilty to conspiracy to
violate constitutional rights, and Rodríguez pled guilty to a
charge of withholding information of a felony.
13
In United States v. Cortés-Cabán, 691 F.3d 1, 16 (1st Cir.
2012), we held that a conspiracy by law enforcement officers to
plant controlled substances on victims in order to fabricate
criminal cases entails the specific intent to distribute within the
meaning of § 841(a)(1).

-12-
court sentenced Plaza to concurrent terms of forty-one months of

imprisonment on each count, to be followed by concurrent three-year

terms of supervised release on each count, and a $200 special

monetary assessment. Santos and Plaza appeal their Count 2

convictions only.

On appeal, Santos and Plaza challenge the sufficiency of

the evidence supporting their convictions on Count 2, and claim

that the district court erred in denying their respective motions

for acquittal. Santos argues that the government did not present

any evidence that she knew the drugs involved in the February or

July incidents did not come from González-Medina or Aquino and,

thus, there was no evidence that she had knowledge of the

conspiracy to possess with intent to distribute controlled

substances. Santos also claims that the government failed to prove

that she possessed the intent to distribute controlled substances;

that is, that "the cocaine be transferred between police officers

in order to be planted on any victim."

Plaza alleges that, as to the February incident, there

was no evidence that he had anything to do with the drugs received

from Eggy and Tuti for the purpose of fabricating a case against

Aquino. In relation to the July incident, Plaza claims that the

government failed to produce evidence showing beyond a reasonable

doubt that he knew of the existence of the conspiracy to possess

-13-
with intent to distribute controlled substances and that he

knowingly and intentionally joined said conspiracy.

II. Discussion

We review de novo the district court's denial of a motion

made under Rule 29 for judgment of acquittal. United States v.

Ulloa, 760 F.3d 113, 118 (1st Cir. 2014). In so doing, "we examine

the evidence, both direct and circumstantial, in the light most

favorable to the jury's verdict." United States v. Trinidad-

Acosta, 773 F.3d 298, 310 (1st Cir. 2014) (internal quotation marks

and citations omitted). We do not focus on each piece of evidence

separately. Rather, we evaluate the sum of all the evidence and

inferences drawn therefrom, and determine whether that sum is

enough for any reasonable jury to find all the elements of the

crime proven beyond a reasonable doubt, even if the individual

pieces of evidence are not enough when viewed in isolation. United

States v. Shaw, 670 F.3d 360, 362 (1st Cir. 2012) ("Individual

pieces of evidence viewed in isolation may be insufficient in

themselves to prove a point, but in cumulation may indeed meet the

mark."); United States v. Mena-Robles, 4 F.3d 1026, 1031 (1st Cir.

1993) ("[J]uries are not required to examine the evidence in

isolation, for individual pieces of evidence, insufficient in

themselves to prove a point, may in cumulation prove it. The sum

of an evidentiary presentation may well be greater than its

constituent parts." (internal quotation marks omitted)). Also, in

-14-
reviewing the sufficiency of the evidence, "[w]e do not assess the

credibility of a witness, as that is a role reserved for the jury.

Nor need we be convinced that the government succeeded in

eliminating every possible theory consistent with the defendant's

innocence." Trinidad-Acosta, 773 F.3d at 310-11 (internal quotation

marks and citations omitted). "Rather, we must decide whether that

evidence, including all plausible inferences drawn therefrom, would

allow a rational factfinder to conclude beyond a reasonable doubt

that the defendant committed the charged crime," id. at 311

(internal quotation marks and citations omitted), even if that

conclusion is not inevitable. United States v. Floyd, 740 F.3d 22,

30 (1st Cir. 2014) (The evidence "suffices if the conclusions that

the jury draws from [it], although not inevitable, are

reasonable."). "The verdict must stand unless the evidence is so

scant that a rational factfinder could not conclude that the

government proved all the essential elements of the charged crime

beyond a reasonable doubt." United States v. Rodríguez-Vélez, 597

F.3d 32, 39 (1st Cir. 2010) (emphasis omitted); United States v.

Azubike, 564 F.3d 59, 64 (1st Cir. 2009) (holding that so long as

"any reasonable jury could find all the elements of the crime

beyond a reasonable doubt, we must uphold the conviction" (internal

quotation marks omitted)). Thus, "defendants challenging

convictions for insufficiency of evidence face an uphill battle on

-15-
appeal." United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir.

2008) (citation omitted) (internal quotation marks omitted).

Nevertheless, "we must 'reject those evidentiary

interpretations and illations that are unreasonable, insupportable,

or overly speculative.'" United States v. Rodríguez-Martínez, 778

F.3d 367, 371 (1st Cir. 2015) (quoting United States v. Spinney, 65

F.3d 231, 234 (1st Cir. 1995)). "Where the evidence presented does

not support the inference that a defendant had knowledge of the

crime, we have consistently found the evidence insufficient." Id.

(citing United States v. Pérez-Meléndez, 599 F.3d 31, 42 (1st Cir.

2010)).

To sustain a drug-conspiracy conviction, the government

must prove beyond a reasonable doubt that the defendant "knew about

and voluntarily participated in the conspiracy, 'intending to

commit the underlying substantive offense.'" United States v.

Acosta-Colón, 741 F.3d 179, 190 (1st Cir. 2013) (quoting United

States v. Ortiz de Jesús, 230 F.3d 1, 5 (1st Cir. 2000)). "An

agreement to join a conspiracy may be express or tacit, and may be

proved by direct or circumstantial evidence," Trinidad-Acosta, 773

F.3d at 311 (quoting United States v. Liriano, 761 F.3d 131, 135

(1st Cir. 2014)), such as inferences "drawn from members' words and

actions and from the interdependence of activities and persons

involved." Acosta-Colón, 741 F.3d at 190 (internal quotation marks

omitted); see also United States v. Martínez-Medina, 279 F.3d 105,

-16-
113-14 (1st Cir. 2002) ("The jury may infer an agreement

circumstantially by evidence of, inter alia, a common purpose

. . . , overlap of participants, and interdependence of various

elements in the overall plan.").

A defendant need not know the full extent of the

drug-trafficking conspiracy or the identities of all the

co-conspirators to be convicted. See Ortiz de Jesús, 230 F.3d

at 5. Further, a defendant may be found to be a part of the

drug-trafficking conspiracy -- despite a lack of participation in

the drug collection, handling, or sales -- based upon performance

of ancillary functions (e.g., accounting, communications, and

strong-arm enforcement). See United States v. García-Torres, 280

F.3d 1, 4 (1st Cir. 2002); see also Trinidad-Acosta, 773 F.3d at

311 ("[E]ach coconspirator need not know of or have contact with

all other members, nor must they know all of the details of the

conspiracy or participate in every act in furtherance of it."

(internal quotation marks omitted)). However, "it is hard to

imagine how someone furnishing a peripheral service to a drug

conspiracy could be deemed to 'join' that conspiracy unless he knew

both that the drug conspiracy existed and that the peripheral

service being furnished was designed to foster the conspiracy."

García-Torres, 280 F.3d at 4 (emphasis omitted). With that

background in place, we turn to the individual Defendants.

A. Santos

-17-
 As noted above, the evidence showed that Santos was in

charge of undercover agent Rodríguez, who was told by Hernández

that the two ounces of cocaine from the February incident were

purchased from Aquino. Although Santos was with Plaza and other

agents in the general vicinity during the February incident, she

did not see the alleged "transaction" take place. Santos did

submit the drugs related to the February incident to the laboratory

for testing. She also assigned the arrest warrants related to the

February incident to González-Vélez and, in conjunction with other

officers, developed the plan for the buy-bust operation of July 5.

In relation to the July incident, the evidence showed

that Hernández once again told Rodríguez that he had purchased

fifty baggies of cocaine from Aquino, and that at the time of the

alleged transaction Santos was in the same police car as Plaza and

other agents, and they were in the general vicinity.

While at some point Santos learned that the drugs had not

been seized from Aquino's person, she still instructed González-

Vélez to lie to the district attorney and tell him that they had in

fact been seized from Aquino at the time of his arrest. She also

encouraged González-Vélez several times to stick to this lie.

Santos alleges that this evidence is insufficient for a

reasonable jury to conclude beyond a reasonable doubt that she had

knowledge of the conspiracy to distribute controlled substances and

knowingly and voluntarily participated in it. We agree.

-18-
 The trial testimony revealed that Hernández never

disclosed that he had gotten the drugs from someone other than

Aquino or González-Medina, and the government offered no evidence

from which to infer that Santos knew that the drugs involved in the

February or July incidents came from someone other than Aquino. In

fact, at oral argument the government stated that it could not

point to any evidence demonstrating that Santos did not believe

that Aquino was the real source of the drugs.

As evidence supporting Santos's Count 2 conviction, the

government points most strongly to Santos's encouragement of

González-Vélez to lie to the district attorney by telling him that

he had seized the drugs from Aquino. In fact, when asked at oral

argument about the scant evidence against Santos supporting her

Count 2 conviction, the government stated that "Santos joined the

conspiracy late, when she asked [González-Vélez] to lie."

According to the government, by so doing Santos "tacitly agreed to

join the conspiracy to possess with intent to distribute controlled

substances." In fact, the government stated at oral argument that

Santos's encouragement of González-Vélez to lie to the district

attorney was the "only evidence" of Santos's knowledge about the

distribution of controlled substances.

It is well-established that a defendant need not know the

full extent of a conspiracy, the identity of all the

co-conspirators, may join the conspiracy late, and participate in

-19-
only ancillary functions. See United States v. Soto-Beníquez, 356

F.3d 1, 23 (1st Cir. 2003); García-Torres, 280 F.3d at 4; Ortiz de

Jesús, 230 F.3d at 5. However, a defendant must know that a

conspiracy exists and that his participation, even if limited to a

peripheral service, is designed to foster that conspiracy.

García-Torres, 280 F.3d at 4. Here, the evidence shows that Santos

encouraged González-Vélez to lie to the district attorney regarding

the seizure of the drugs. Although this and other evidence could

be sufficient to find "a conspiracy to violate the civil rights of

the victims by providing false evidence to the Commonwealth

Courts," (Count 1) this evidence is insufficient to prove that

Santos knew of the conspiracy to distribute controlled substances

and elected to join it intending that the underlying offense be

committed (Count 2). Santos's knowledge of a conspiracy to possess

with intent to distribute controlled substances cannot be based

only on her knowledge of a different conspiracy -- the conspiracy

to violate the civil rights of victims.

By the same token, although Santos submitted the drugs to

the Institute of Forensic Science for testing, this does not lead

to a reasonable conclusion that she was distributing the drugs in

furtherance of the conspiracy. "[I]t is hard to imagine how

someone furnishing a peripheral service to a drug conspiracy could

be deemed to 'join' that conspiracy unless he knew both that the

-20-
drug conspiracy existed and that the peripheral service being

furnished was designed to foster the conspiracy." Id.

Without evidence from which the jury could infer beyond

a reasonable doubt that Santos knew of the conspiracy to possess

with intent to distribute controlled substances, Santos's

conviction on Count 2 cannot stand.

B. Plaza

The record shows that on July 5, 2007, Eggy and Tuti gave

Hernández fifty baggies of cocaine to plant on Aquino. On that

same date, Plaza called Hernández and instructed him to buy fifty

baggies of cocaine from Aquino. Upon his arrival at Aquino's house

after González-Vélez had arrested Aquino, Plaza asked González-

Vélez for the "bundle" of drugs and, once González-Vélez gave him

the drugs, Plaza confronted Aquino stating, "This is yours." Some

time later at the police station, when González-Vélez asked Plaza

how to submit the case to the district attorney because the drugs

had not been seized from Aquino's person, Plaza instructed

González-Vélez to lie to the district attorney and claim that the

drugs had in fact been seized from Aquino's person. The trial

evidence also showed that there was a spike in telephone calls

between Plaza, Eggy, and Tuti on the days before, of, and following

both the February and July incidents, when the three agents were in

constant communication and had numerous relatively contemporaneous

telephone calls.

-21-
 Plaza contends that this evidence is insufficient for a

rational jury to conclude that he is guilty beyond a reasonable

doubt of having participated in the drug conspiracy. He alleges

that the fact that he instructed Hernández to buy from Aquino the

exact amount of cocaine provided by Eggy and Tuti is not indicative

that he was part of the drug conspiracy. Plaza also claims that

the telephone calls between him, Eggy, and Tuti were unrelated to

the alleged conspiracy, as they all worked together, knew each

other for years and communicated frequently for business and

personal reasons. Plaza further argues that the testimony from his

two witnesses contradicts the testimony of one of the government's

main witnesses. Finally, he claims that the government failed to

call Aquino and González-Medina -- the victims -- to testify in

this case, and to bring charges against Eggy and Tuti, the drug

suppliers. His contentions lack merit.

Viewing the direct and circumstantial evidence in the

light most favorable to the guilty verdict, a reasonable jury could

conclude that Plaza knowingly and voluntarily participated in the

conspiracy and intended to commit the underlying substantive

offense. See Mena-Robles, 4 F.3d at 1031 (articulating the

requirements to convict a defendant of conspiracy as the intent "to

agree and to commit the substantive offense that was the object of

the agreement"). Such knowing and voluntary participation and

intent are demonstrated by Plaza's actions and words during both

-22-
incidents. See id. ("[J]uries are not required to examine the

evidence in isolation, for individual pieces of evidence,

insufficient in themselves to prove a point, may in cumulation

prove it. The sum of an evidentiary presentation may well be

greater than its constituent parts." (quoting United States v.

Ortiz, 966 F.2d 707, 711 (1st Cir. 1992))). There was evidence

that on the days before, of, and after the two incidents, Plaza was

in constant communication with Eggy and Tuti via their personal

telephones, and that Plaza initiated a significant amount of these

calls. This, even though Tuti and Eggy worked in a different area

within the Puerto Rico Police -- the Arecibo Illegal Weapons Unit

-- and they were not involved in the planned buy-bust operation

that was being conducted by the Arecibo Drug Division. Not only

were Plaza's telephone calls with Eggy and Tuti constant during

those days, but the telephone calls between the three of them were

also relatively contemporaneous, with many times two of the agents

finishing a conversation and immediately calling the third agent.

The evidence also showed that Plaza otherwise rarely had telephone

conversations with either Tuti or Eggy, and that the records only

showed a spike in calls between them around the two incidents.

Furthermore, there was evidence that on the day of the planned buy-

bust operation, all communications related to the operation were

made over a dedicated police radio frequency and not over the

agents' personal telephones. In addition, the evidence showed that

-23-
Plaza instructed González-Vélez to lie to the district attorney and

claim that the drugs had in fact been seized from Aquino, despite

being repeatedly told by González-Vélez that this was not true.

When viewed as a sum of the evidentiary presentation, a reasonable

inference could be drawn that Plaza had no legitimate, work-related

reason to be in constant communication with Eggy and Tuti around

the days of the two incidents -- much less using their personal

telephones -- and that his unusually frequent and relatively

contemporaneous telephone calls with Tuti and Eggy show that he was

aware of the "essential nature" of the conspiracy and intended to

commit the substantive offense in that he planned to plant those

drugs on Aquino.14 See United States v. Geer, 923 F.2d 892, 894

(1st Cir. 1991).

Plaza points out that the government did not provide

evidence as to the content of the telephone conversations, and that

it did not prove that there was a substantial number of calls made

around the time of the two incidents, compared with the calls made

during other months prior to or subsequent to the dates of the

incidents. Plaza further claims that he knew Tuti and Eggy for

14
In reaching our conclusion, we do not rely on the fifty-baggies
congruence or on Plaza's "this is yours" comment, since we do not
find that they have any inculpatory weight under the circumstances
of this case.

-24-
years as coworkers and thus the three of them frequently

communicated for both personal and business reasons.15

Contrary to Plaza's assertions, the government did

introduce telephone records that extended beyond the dates of the

two incidents. The telephone records of Eggy and Tuti encompassed

all telephone calls to and from their telephones for the entire

months of February, June, July, and September 2007. A review of

these telephone records clearly revealed an unusual spike in

telephone calls between Plaza and the drug suppliers on the days

before, of, and following both incidents. In any event, the issue

on review is not whether there exists an innocent explanation; the

issue is whether when examining the evidence as a whole the jury

could reasonably reject that explanation. United States v. Floyd,

740 F.3d 22, 30 (1st Cir. 2014).

Plaza further argues that the testimonies of his two

witnesses -- Feliciano and Centeno -- contradict the testimony of

one of the government's main witnesses. However, the jury heard

the testimony of all the witnesses and made its credibility

determinations. On appeal, we cannot re-weigh the evidence or

second-guess the jury's credibility determinations.16 See Trinidad-

15
In its brief, the government pointed out that "absolutely no
evidence was produced regarding the length of time [Eggy, Tuti, and
Plaza] knew each other, where they lived, or whether they had
frequent personal or business communications."
16
Furthermore, after a careful review of the record we disagree
that any such contradictions exist.

-25-
Acosta, 773 F.3d at 310-11 ("We do not assess the credibility of a

witness, as that is a role reserved for the jury." (quoting Troy,

583 F.3d at 24)); Acosta-Colón, 741 F.3d at 191 ("[T]hough we

exercise de novo review, we can neither re-weigh the evidence nor

second-guess the jury's credibility calls."); United States v.

Ayala-García, 574 F.3d 5, 11 (1st Cir. 2009) ("[T]he jury [is] free

to choose which of the two conflicting accounts of the events to

believe, so long as the evidence viewed in the government's favor

is adequate to establish guilt beyond a reasonable doubt.").

Finally, we decline Plaza's invitation to find the

evidence insufficient to support his conviction because the

government did not call all possible witnesses to testify, or

include in the indictment other co-conspirators. When we assess

the sufficiency of the evidence supporting a conviction, we must

focus on the evidence actually submitted at trial. See Trinidad-

Acosta, 773 F.3d at 310-11; see also United States v.

Guzmán-Montañez, 756 F.3d 1, 12 (1st Cir. 2014) (emphasizing that

what matters is the evidence introduced at trial); United States v.

García, 758 F.3d 714, 721-22 (6th Cir. 2014) (holding that in

evaluating a sufficiency-of-the-evidence challenge "we may not

consider the potential magnitude of the evidence not presented,"

because doing so would be "an invitation to examine whether the

Government might have presented a more convincing case, not whether

-26-
it in fact presented a sufficient one").17 Because the basis for

the jury verdict is the evidence that was submitted for its

consideration, we do not consider the magnitude of additional

evidence that could have been presented in determining whether the

evidence that was actually submitted was sufficient to convict the

defendant. Nor do we take into consideration that certain

individuals were not indicted, as that is a matter within the sole

discretion of the prosecution. See United States v. Nixon, 418

U.S. 683, 693 (1974) (noting that "Executive Branch has exclusive

authority and absolute discretion to decide whether to prosecute a

case"). And, here, we conclude that the sum of all the evidence

and the inferences drawn therefrom, especially the evidence of

Plaza's telephone communications with Eggy and Tuti, the drug

suppliers, and the evidence that he instructed González-Vélez to

falsely submit the case to the local district attorney, is

sufficient circumstantial evidence that Plaza was aware of, and

knowingly participated in the conspiracy to possess with intent to

distribute controlled substances. See Floyd, 740 F.3d at 30 (The

court's "focus must be on the evidence as a whole. . . . [and] [i]t

suffices if the conclusions that the jury draws from the evidence,

although not inevitable, are reasonable."). While the conclusion

17
Moreover, we have repeatedly stated that "[t]estimony from even
just 'one witness can support a conviction.'" United States v.
Alejandro-Montañez, 778 F.3d 352, 357 (1st Cir. 2015) (quoting
United States v. De La Paz-Rentas, 613 F.3d 18, 25 (1st Cir.
2010)).

-27-
that Plaza knew of the drug conspiracy and participated in it

intending that the underlying substantive offense be committed may

not be inevitable based on the evidence, it soundly rests on

sufficient evidence. Thus, Plaza's conviction on Count 2 is

affirmed.

III. Conclusion

The evidence submitted at trial to support Santos's

conviction on Count 2 was insufficient for a reasonable jury to

conclude beyond a reasonable doubt that she had knowledge of the

drug conspiracy and voluntarily participated in it, intending that

the underlying substantive offense be committed. Thus, Santos's

conviction on Count 2 is reversed. In contrast, this evidence,

which included acts specifically attributed to Plaza, was

sufficient to sustain Plaza's conviction as to the same Count 2.

Therefore, Plaza's conviction on Count 2 is affirmed.

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