United States v. Diaz-Calderon

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4967

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ABIMAEL ANTONIO DIAZ-CALDERON,

Defendant - Appellant.

No. 05-4976

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ELMER DE PAZ GARCIA,

Defendant - Appellant.

No. 05-4978

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus
SAUL SOLIS DIAZ,

Defendant - Appellant.

No. 05-4992

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANGEL AUGUSTIN HERNANDEZ,

Defendant - Appellant.

No. 05-5055

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

ELMER DE PAZ GARCIA,

Defendant - Appellee.

No. 05-5059

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

2
 versus

SAUL SOLIS DIAZ,

Defendant - Appellee.

No. 05-5074

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

versus

ANGEL AUGUSTIN HERNANDEZ,

Defendant - Appellee.

Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-05-15)

Argued: October 25, 2006 Decided: February 1, 2007

Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished
opinion. Judge Duncan wrote the opinion, in which Judge Wilkinson
joined. Judge Michael wrote a separate opinion concurring in part
and dissenting in part.

ARGUED: Dale Warren Dover, Alexandria, Virginia; Michael Steven
Arif, MARTIN & ARIF, Springfield, Virginia; Thomas Brian Walsh,
PETROVICH & WALSH, P.L.C., Springfield, Virginia; Joseph John
McCarthy, Alexandria, Virginia, for Appellants/Cross-Appellees.

3
Lawrence Joseph Leiser, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee/Cross-Appellant. ON BRIEF: Chuck Rosenberg, United States
Attorney, Michael Frank, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee/Cross-Appellant.

Unpublished opinions are not binding precedent in this circuit.

4
DUNCAN, Circuit Judge:

Abimael Antonio Diaz-Calderon, Elmer De Paz Garcia, Saul Solis

Diaz, and Angel Augustin Hernandez appeal their convictions and

sentences arising out of a conspiracy to import cocaine into the

United States from Guatemala. For the reasons that follow, we

affirm all of the appellants’ convictions and affirm the sentences

of Diaz-Calderon and Diaz. We vacate the sentences of Garcia and

Hernandez, and remand for resentencing.

I.

On December 11, 2004, TACA Airlines flight number 584 arrived

at Washington-Dulles International Airport (“Dulles”) from

Guatemala carrying a courier employed by Hyattsville, Maryland-

based Nor Oriente Express. The courier was transporting a number

of duffel bags filled with various items from Guatemala to the

United States. When the United States Customs and Border

Protection service inspected these bags, officers discovered three

separate packages of cocaine hidden in separate individually

wrapped car seat cushions. Each cushion was addressed to a

specific individual in Maryland: one containing 281 grams of

cocaine was addressed to Avigail Morataya, one containing 78 grams

was addressed to Jorge Meija, and one containing 543 grams was

addressed to Gunder Diaz.

After removing and weighing each of the packages of cocaine,

customs officers combined the entire quantity of drugs in a single

5
bag for storage and transport. Then, in order to identify the

intended recipients of the packages, special agents with

Immigration and Customs Enforcement (“ICE”) arranged for a

controlled delivery of the seat cushions through--and with the

cooperation of--Nor Oriente Express in Maryland. In setting up the

operation, ICE agents replaced the packages of cocaine with

packages of a “sham” substance that appeared similar to cocaine,

but only contained trace amounts of the drug. Agents then

refashioned each of the seat cushions to appear as it had before

discovery of the cocaine.

On December 12, 2004, as the ICE agents were setting up the

controlled delivery, appellant Diaz entered the facility and asked

for the package addressed to Jorge Meija. Diaz was told the

package was not ready and that he would have to return later. Over

the following three hours, appellants Garcia, Diaz-Calderon, and

Diaz appeared at Nor Oriente Express separately and asked for the

packages addressed to Gunder Diaz, Avigail Morataya and Jorge

Meija, respectively. Each was arrested after signing for the

package under the assumed name.

After arresting appellant Diaz-Calderon, ICE agents found

several documents in his possession, including a letter that

indicated three packages that he requested would be arriving for

him in a car seat cushion. The second document was a handwritten

6
note that contained the address listed on the package Diaz-Calderon

retrieved.

After ICE agents arrested appellant Diaz and he waived his

Miranda rights, Diaz told agents that Lucero Lopez, who was

arrested while waiting for Diaz at Nor Oriente Express, paid him

$20 to retrieve the package addressed to Jorge Meija. Diaz

admitted that he thought the package contained drugs and knew that

what he was doing was illegal because he had to use an assumed name

and Lopez did not want to retrieve the package.

After appellant Garcia was arrested and waived his Miranda

rights, he cooperated with ICE agents by arranging to hand off the

Gunder Diaz package to Hernandez, the person who directed him to

retrieve it. Shortly thereafter, Hernandez appeared, along with

another individual, to retrieve the package from Garcia. ICE

agents promptly arrested Hernandez. During an ensuing interview at

the scene, Hernandez denied knowledge of the package, claimed that

it contained fan belts, and said that it was for a friend whose

phone number he did not know. Believing that Hernandez was lying,

ICE agents terminated the interview. However, as Hernandez was led

away, he admitted that Lucero Lopez sent him to pick up the package

and he had lied out of fear that Lopez would determine that

Hernandez “was giving him up basically.” J.A. 620.

In March 2005, the government filed a Second Superceding

Indictment that charged each appellant with a single count of

7
conspiracy to import cocaine in violation of 21 U.S.C. §§ 952(a) &

963, unlawful importation of cocaine in violation of 21 U.S.C. §

952(a), and unlawful distribution of cocaine in violation of 21

U.S.C. § 841(a)(1). The district court conducted a bench trial in

July 2005 at which it found each appellant guilty of one count of

conspiracy to import cocaine and dismissed the remaining charges.

The district court sentenced Diaz-Calderon to 63 months

imprisonment after attributing to him the entire amount of cocaine

in all three car seat cushions. The district court sentenced

Garcia to 21 months, Hernandez to 24 months, and Diaz to 21 months,

after attributing 78 grams of cocaine, which was the smallest

individual quantity contained in any of the three seat cushions, to

each appellant. Appellants timely appealed both their convictions

and sentences. The government cross-appealed the sentences of

Garcia and Hernandez.

Appellants raise two primary arguments on appeal.1 First,

appellants challenge the sufficiency of the evidence on numerous

points regarding their convictions for conspiracy to import a

controlled substance. Second, appellants challenge the quantity of

drugs used by the district court to calculate each of their

sentences. We consider each argument in turn.

1
We have reviewed each of appellants’ arguments not discussed
herein and find each without merit.

8
 II.

Appellants first raise arguments regarding the sufficiency of

the evidence underlying their convictions. Our review of a

challenge to the sufficiency of evidence is extremely deferential.

Indeed,

[w]e must uphold a . . . verdict if there is substantial
evidence, viewed in the light most favorable to the
Government, to support it. Substantial evidence is that
evidence which a reasonable finder of fact could accept
as adequate and sufficient to support a conclusion of a
defendant's guilt beyond a reasonable doubt.

United States v. Cardwell, 433 F.3d 378, 390 (2005) (quotations

omitted). With this standard in mind, we turn to appellants’

arguments.

A.

Appellants first argue that the government did not offer

sufficient evidence to prove that the cocaine at issue was imported

from Guatemala, as alleged in the indictment. Appellants find

insufficiency in the fact that the customs officer, who testified

at trial, could only circumstantially connect the Nor Oriente

courier with TACA flight 584 from Guatemala. However, the

circumstances relied on by that officer sufficiently establish that

the cocaine entered the United States from Guatemala.

The customs officer testified that TACA regularly operated

flight 584 between Guatemala and Dulles; that flight 584 arrived at

Dulles on December 11, 2004; and that passengers from that flight

9
were the only individuals clearing customs at the time the cocaine

was discovered in the courier’s bags. J.A. 457-60. Even without

viewing this evidence in a light most favorable to the government,

these facts clearly support the conclusion that the Nor Oriente

Express courier, along with the packages of cocaine, arrived on

flight 584 from Guatemala.

B.

Appellants Garcia, Hernandez, and Diaz next argue that the

government failed to offer sufficient evidence to prove that they

knowingly entered a conspiracy to import cocaine. Each argues that

he had no knowledge of the criminal enterprise because he was

unaware of the true contents of the package he handled. The

record, however, demonstrates that these appellants either knew or

were willfully blind to the conspiracy.

In order to prove a conspiracy charge, the government must

establish, inter alia, that the defendant knowingly agreed to

engage in unlawful activity. United States v. Cropp, 127 F.3d 354,

361 (4th Cir. 1997); United States v. Clark, 928 F.2d 639, 641-42

(4th Cir. 1991). The government can establish knowledge by showing

that a defendant either actually knew of the conspiracy, Cropp, 127

F.3d at 361, or was willfully blind to it by “purposely clos[ing]

his eyes to avoid knowing what was taking place around him.”

United States v. Ruhe, 191 F.3d 376, 384 (4th Cir. 1999) (quoting

United States v. Schnabel, 939 F.3d 197, 203 (4th Cir. 1991)).

10
Because the circumstances of each appellant’s involvement differed

slightly, we will consider the knowledge of each individually.

With respect to Diaz, the government presented clear evidence

of willful blindness. After his arrest, Diaz admitted to believing

that the package he retrieved from Nor Oriente contained illegal

drugs. Diaz, however, took no steps to confirm or deny such

suspicions and did not let them prevent him from retrieving the

package. On these facts, it is clear that Diaz “suspected

[illegality;] realized its probability; but . . . refrained from

obtaining the final confirmation because he wanted . . . to be able

to deny knowledge.” Ruhe, 191 F.3d at 384 (citation omitted).

Therefore, we are unpersuaded by his argument on this point.

With respect to Hernandez, the record contains a plethora of

evidence that establishes his actual knowledge of the conspiracy.

Put simply, we find it implausible that Hernandez had no knowledge

of the conspiracy, and yet (1) engaged and directed Garcia in the

retrieval of a package containing 543 grams of cocaine; (2)

appeared almost immediately after Garcia phoned him to take

possession of the package; and (3) had sufficient fear of Lucero

Lopez to spin a series of incredible--and eventually admitted--lies

to ICE agents. The more reasonable and plausible interpretation of

these facts is that Hernandez was an integral member of the

conspiracy with actual knowledge of its illicit nature. Therefore,

we find no merit to his argument.

11
 Finally, with respect to Garcia, the totality of the

circumstances surrounding his retrieval of the Gunder Diaz package

was sufficient for the district court to conclude his willful

blindness to the conspiracy. We find to be determinative the fact

that Garcia retrieved an internationally shipped package using a

false name at the direction of Hernandez, who had no apparent

connection to the package and who, by all accounts, was capable of

retrieving it himself. Further damning is the fact that Garcia and

Hernandez had arranged a rendezvous point several miles from Nor

Oriente Express because Garcia believed that Hernandez did not want

the package delivered to his apartment. Taken together, we believe

these facts establish, at the very least, that Garcia “purposely

closed his eyes to” both the illegality of his actions and the

enterprise in which he was involved. Ruhe, 191 F.3d at 384

(quotations omitted).2

We do, however, recognize that, although the evidence against

Garcia is damning, it does not inexorably lead to a conclusion of

willful blindness. A finder of fact conducting a plenary review of

this evidence in the first instance might very well reach a

conclusion different from ours. We, however, are not afforded the

luxury of such broad review. Rather, we are constrained to view

2
Because we conclude that “the evidence supports an inference
of deliberate ignorance,” we do not agree with our dissenting
colleague that the stringency of the willful blindness doctrine
prevents its application on these facts. Ruhe, 191 F.3d at 384
(quotations omitted).

12
the “evidence in the light most favorable to the government”

specifically to determine whether it supports the defendant’s

guilt. United States v. Wilson, 198 F.3d 467, 470 (4th Cir. 1999)

(quotations omitted). When we do so, we are left with no doubt

that a reasonable trier of fact could find willful blindness where

an individual retrieves a package under an assumed name for a third

party, who could have retrieved the package himself, without

inquiring as to the necessity or legality of his actions.

Therefore, we find no merit to Garcia’s argument.

C.

Appellants next challenge their convictions by arguing that

they could not have participated in a conspiracy to import because

any such conspiracy concluded prior to their involvement. This

argument fails in light of United States v. Lowry, in which we held

that “importation of controlled substances . . . is a ‘continuous

crime’ that is not complete until the controlled substance reaches

its final destination.” 675 F.2d 593, 596 (4th Cir. 1982)

(quotation omitted). The fact that the cocaine, or the substitute

therefor, remained sealed in the car seat cushions throughout the

times relevant to this appeal--with none of the appellants directly

handling or attempting to remove it--supports a conclusion that the

drugs never reached their final destination. Therefore, the

13
conspiracy to import was ongoing at the time of appellants’

involvement and we reject their argument.3

D.

Appellants next challenge the government’s use of substitute

cocaine in the controlled delivery of the seat cushions, arguing

that there was insufficient evidence of the amount or composition

of the substance to support their convictions. In essence,

appellants argue that the government could secure their conviction

only if it proved that the car seat cushions contained actual

cocaine when retrieved by appellants. This argument fails,

however, because each appellant’s conspiracy conviction flows from

his agreement to accomplish an illegal goal, rather than its

actual--or even possible--accomplishment.

“The law of conspiracy . . . permit[s] the imposition of

criminal sanctions for [an] agreement alone, plus an overt act in

pursuit of it, regardless of whether the crime agreed upon actually

is committed.” United States v. Feola, 420 U.S. 671, 694 (1975);

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

(“[T]he crime of conspiracy . . . is complete upon the agreement to

do an unlawful act as implemented by one or more overt acts.”

3
This conclusion also forecloses appellants’ argument that
venue was improper in the Eastern District of Virginia. In drug
importation cases, venue is appropriate in any jurisdiction through
which the drugs pass. Lowry, 675 F.2d at 596. Given that the
drugs at issue here passed through the Eastern District of Virginia
by arriving at Dulles, venue was appropriate in that jurisdiction.

14
(quotations omitted)). Indeed, factual impossibility is not a

defense to a charge of conspiracy. United States v. Jimenez Recio,

537 U.S. 270, 275 (2003); United States v. Dixon, 449 F.3d 194, 202

(1st Cir. 2006); United States v. Burke, 431 F.3d 883, 886 (5th

Cir. 2005); United States v. Belardo-Quinõnes, 71 F.3d 941, 944

(1st Cir. 1995); United States v. Clemente, 22 F.3d 477, 480-81 (2d

Cir. 1994). In the context of drug crimes, these principles leave

a defendant culpable for conspiracy even if no illegal substance

was ever involved. Burke, 431 F.3d at 886; United States v.

Murray, 527 F.2d 401, 411-12 (5th Cir. 1976).

These well-established principles negate the relevance of any

failure on the part of the government to prove the quantity or

composition of the substitute cocaine. Put simply, each

appellant’s conviction rests on his agreement to import cocaine and

action taken in furtherance thereof, rather than any specific

aspect of the actual substance involved.

III.

Appellants next argue that the district court erred in the

quantity of drugs it used to calculate their sentences. On cross-

appeal, the government contends that the district court erred by

attributing too small a quantity of drugs to Garcia and Hernandez.

Normally, we review challenges to the determination of drug

quantities for clear error. United States v. Kiulin, 360 F.3d 456,

461 (4th Cir. 2004). However, here, the parties do not dispute the

15
amount of drugs at issue and, instead, focus on whether the

district court properly applied the guidelines in the attribution

of drug quantities for sentencing purposes. Where we are

confronted solely with an issue of “guidelines application, our

standard of review approaches de novo.” United States v.

Fullilove, 388 F.3d 104, 106 (4th Cir. 2004).

Under the guidelines, the sentence of a defendant convicted of

a drug importation crime is calculated based on the quantity of

drugs that he personally “aided, abetted, counseled, commanded,

induced, procured, or willfully caused” to be imported into the

United States. U.S.S.G. § 1B1.3(a)(1)(A) (2004). In other words,

a defendant is responsible for the full amount of drugs “with which

he was directly involved.” § 1B1.3(a)(1)(A), application note 2;

Fullilove, 388 F.3d at 106-07. A defendant’s lack of knowledge or

foresight of a specific quantity of drugs is irrelevant for

sentencing purposes where such a direct connection exists.4 See §

4
Issues of foreseeability do play a role in calculating a drug
conspiracy sentence where a defendant lacks a direct connection to
certain quantities of drugs involved in the enterprise. See §
1B1.3(a)(1)(B) (calculating base offense level for conspiracy based
on “all reasonably foreseeable acts and omissions of others in
furtherance of . . . jointly undertaken criminal activity”); United
States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (“The defendant need
not have actual knowledge of the exact quantity of narcotics
involved in the entire conspiracy; rather, it is sufficient if he
could reasonably have foreseen the quantity involved.”). Such
concerns are not at issue here because the district court held that
none of the appellants could have foreseen any of the drug
quantities involved and the government does not challenge this
finding on appeal.

16
1B1.3, illustration (a)(1) (noting that a defendant who carries a

suitcase filled with a controlled substance “is accountable for the

controlled substance in the suitcase regardless of his knowledge or

lack of knowledge of the actual type or amount of that controlled

substance”); United States v. Imariagbe, 999 F.2d 706, 707-08 (2d

Cir. 1993) (holding defendant liable for full amount of heroin in

suitcase even though he believed he was carrying a significantly

smaller quantity). With this background in mind, we turn to

appellants’ arguments.

The district court properly attributed to Diaz-Calderon the

full 902 grams of cocaine contained in all three car seat cushions.

The letter found in Diaz-Calderon’s possession at the time of his

arrest directly linked him to all three packages and justified

calculating his sentence based on the cocaine contained therein.

Therefore, we find no error in Diaz-Calderon’s sentence.5

The district court, however, erred by attributing to both

Hernandez and Garcia the 78 grams of cocaine that was the “smallest

amount of drugs . . . in any of the three packages,” rather than

the 543 grams in the package that both handled. J.A. 890-91; see

5
We also find no merit to Diaz-Calderon’s argument that the
902 grams of cocaine used by the district court at sentencing was
not found by the finder of fact beyond a reasonable doubt, and
therefore its use violated the principles set forth in United
States v. Booker, 543 U.S. 220 (2005), and its progeny. The
district court sat as finder of fact here and specifically found
that Diaz-Calderon was responsible for the entire amount of cocaine
beyond a reasonable doubt. J.A. 862-64.

17
also J.A. 879. The court applied the smaller amount out of concern

that the uneven distribution of cocaine across the three packages

would result in divergent sentences for Hernandez, Garcia and Diaz

for what the court viewed as essentially the same conduct (i.e.,

retrieving a package of cocaine with no specific knowledge of its

contents). See J.A. 879, 890-91. In other words, the court viewed

each of these appellants as similarly culpable--and deserving of a

similar sentence--because none was aware of or could have foreseen

the actual amount of cocaine in the packages that they handled.

Id. The sentencing guidelines, however, do not support that

analysis.

As previously noted, a defendant is culpable for the entire

amount of drugs with which he is directly involved, regardless of

knowledge or foresight. See § 1B1.3, comment 2, illustration

(a)(1); Imariagbe, 999 F.2d at 707-08. Given that both Hernandez

and Garcia directly handled the Gunder Diaz package, the district

court should have sentenced them based on the full 543 grams

contained therein without considering their knowledge or foresight.

Such quantity would have yielded a base offense level of 26 and a

guidelines range of 63 to 78 months,6 rather than the base offense

level of 16 and the resulting 21 to 27 month range used by the

district court. Therefore, we conclude that the district court

6
Both Hernandez and Garcia were assigned a criminal history
score of I.

18
calculated the sentences of both Hernandez and Garcia based on a

misapplication of the sentencing guidelines. Both sentences are

vacated as unreasonable and remanded for resentencing. See United

States v. Green, 436 F.3d 449, 457 (4th Cir. 2006) (holding that if

a “sentence is based on an error in construing or applying the

Guidelines, it will be found unreasonable and vacated”).7

Finally, with respect to Diaz, we conclude that the district

court properly calculated his sentence based on the 78 grams of

cocaine that was contained in the Jorge Meija package that he

retrieved from Nor Oriente Express. His direct involvement with

that package was sufficient to justify calculating his sentence

based on the amount of drugs contained therein.

IV.

Based on the foregoing, we affirm each appellant’s conviction;

affirm the sentences of Diaz and Diaz-Calderon; and vacate the

sentences of Hernandez and Garcia, and remand each to the district

court for resentencing.

AFFIRMED IN PART; VACATED AND REMANDED IN PART

7
We note that the district court is not without recourse on
remand to address its equitable concerns. The district court
retains the discretion to select a sentence that varies from the
prescribed guidelines range in order to serve the factors set forth
in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), so long as the
court “articulate[s] the reasons for the sentence imposed,” the
sentence falls within the statutorily prescribed range, and the
sentence is reasonable. United States v. Hillyer, 457 F.3d 347,
351 (4th Cir. 2006).

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MICHAEL, Circuit Judge, concurring in part and dissenting in part:

I concur in the majority opinion to the extent it affirms the

convictions and sentences of Abimael Antonio Diaz-Calderon and Saul

Solis Diaz. I respectfully dissent from the determination that the

government presented sufficient evidence to convict Elmer De Paz

Garcia and Angel Augustin Hernandez. A conviction for conspiring

to import a controlled substance requires evidence that the

defendant knew that the conspiracy involved such a substance. The

knowledge requirement is not satisfied by a mere showing that the

defendant knew that he was involved in some form of illicit

activity. The government produced no evidence to support a finding

that either Garcia or Hernandez knew of his involvement in a drug

conspiracy. I would therefore reverse their convictions.

I.

On December 12, 2004, Garcia went to the office of Nor

Oriente Express in Hyattsville, Maryland, to pick up a package at

Hernandez’s request. The package had previously been intercepted

by Immigration and Customs Enforcement (ICE) agents when it arrived

at Washington-Dulles International Airport from Guatemala. The ICE

agents structured a controlled delivery of the package through Nor

Oriente Express.

At Nor Oriente, Garcia asked for a package addressed to

“Gunder Diaz” and signed a receipt with that name. He was

20
immediately arrested. He appeared surprised when told that he was

being arrested for picking up a package containing drugs. Garcia

told the agents that another person had sent him to retrieve the

package, and he cooperated with the agents by arranging to meet

that person in the parking lot of a nearby store. When the other

person, Hernandez, arrived at the meeting place and took the

package from Garcia, Hernandez was also arrested. Hernandez

initially denied knowing anything about the package, but proceeded

to offer a series of explanations. He claimed that the package was

a gift of fan belts from a friend. He then said that the package

was intended for “Dunio,” but he could not remember Dunio’s phone

number. He finally admitted that Lucero Lopez was the person who

asked him to pick up the package, and he said that he had lied

about Dunio because he was scared about giving up Lopez.

II.

The behavior of Garcia and Hernandez is suspicious, but it

does not support a reasonable finding that either man knew or

believed that the package contained drugs. Such knowledge or

belief is essential to support a conviction for a drug conspiracy.

See United States v. Lewis, 676 F.2d 508, 512 (11th Cir. 1982).

To establish a conspiracy to import a controlled substance,

the government must prove beyond a reasonable doubt that (1) an

agreement existed between two or more persons to import such a

21
substance; (2) the defendant knew of the agreement or conspiracy;

and (3) the defendant knowingly and voluntarily became a part of

the conspiracy. United States v. Burgos, 94 F.3d 849, 857 (4th

Cir. 1996). At a minimum, the government must show that the

defendant knew or was willfully blind to the fact that the

conspiracy involved the importation of a controlled substance. See

Lewis, 676 F.2d at 512. The defendant need not know the particular

drug involved so long as he knew that the essential objective of

the conspiracy was to import drugs. Id. Evidence that he only

knew the conspiracy involved some form of illegal conduct does not

suffice to prove a drug conspiracy.

The majority affirms Garcia’s conviction because it concludes

that a reasonable trier of fact could find that he was willfully

blind to the nature of the conspiracy. I disagree. Knowledge is

imputed to an alleged conspirator under a willful blindness theory

only in rare circumstances. United States v. Ruhe, 191 F.3d 376,

385 (4th Cir. 1999). A finding of willful blindness is appropriate

only when the evidence shows that the defendant suspected the

nature of the conspiracy, realized its probability, and refrained

from confirming his suspicions because he wanted to be able to deny

knowledge later. See id. at 384-85. In other words, the evidence

must at least support an inference that the defendant purposely

remained ignorant of the nature of the illegal acts. United States

22
v. Withers, 100 F.3d 1142, 1145 (4th Cir. 1996). This requires

more than mere negligence in not obtaining knowledge. See id.

The evidence against Garcia boils down to this: (1) he agreed

to pick up a package addressed neither to him nor to the person who

asked him to retrieve it; (2) he signed for the package under a

false name; and (3) he agreed, at the agents’ request, to deliver

the package to Hernandez in a public place rather than at

Hernandez’s home. Garcia retrieved the package at a legitimate

place of business, and nothing indicated that the package contained

drugs. There was no evidence that Garcia had performed similar

tasks in the past or that he had prior involvement in drug activity

that might have raised his suspicions on this occasion. There was

also no evidence that Garcia was paid to pick up the package or

that he knew Lopez, the person who asked Hernandez to retrieve the

package. Cf. Withers, 100 F.3d at 1144-45. The fact that Garcia

did not sign his own name is suspicious, but it is not enough to

permit a reasonable factfinder to conclude that Garcia was

willfully blind to his participation in a conspiracy to import

drugs. See United States v. Samad, 754 F.2d 1091, 1099 (4th Cir.

1984). At most, the circumstances might have caused him to suspect

that something illicit was afoot with respect to the package. His

failure to confirm this suspicion, however, cannot support the more

specific finding that he was willfully blind to his involvement in

a drug conspiracy.

23
 For similar reasons, I would conclude that Hernandez neither

had actual knowledge of nor was willfully blind to the nature of

the drug importation conspiracy. The evidence against Hernandez

indicates that he had more reason than Garcia to suspect some form

of illicit activity, but it fails to show either that Hernandez

knew he was involved in a drug conspiracy or suspected that drugs

were involved. Even when viewed in the light most favorable to the

government, the evidence shows only that Hernandez was suspicious

enough of the package’s contents to send someone else to retrieve

it and to provide the agents with conflicting false stories about

it. A factfinder here cannot make the leap from suspicion of

illegal activity to suspicion of drug activity without additional

evidence, such as some indication that Hernandez had prior

experience in the drug trade or knowledge of Lopez’s involvement

with drugs, which would have alerted him to the nature of the

conspiracy. A defendant cannot knowingly and willfully join a drug

conspiracy unless he knows its nature or was willfully blind to it.

Hernandez does not fit in either category.

The power to prosecute is a mighty power, and it must be

exercised with utmost care. I believe the prosecution here should

have exercised more care in evaluating the strength of its case

before seeking convictions against Garcia and Hernandez. I would

reverse their convictions for lack of sufficient evidence.

24