United States v. Boria

FISHER, Circuit Judge,

concurring.

I agree with the majority that co-conspirator Alvarado’s testimony imputes to Boria knowledge that the tractor-trailer driven by Diaz contained drugs, and thus that a rational jury could find beyond a reasonable doubt that Boria knew he was transporting a controlled substance, as opposed to some other form of contraband. I write separately for the reasons stated herein.

In reviewing a challenge to the sufficiency of the evidence, “we must view the evidence in the light most favorable to the Government and sustain the verdict if any rational juror could have found the elements of the crime beyond a reasonable doubt.” United States v. Reyeros, 537 F.3d 270, 277 (3d Cir.2008) (quotations, alteration, and citation omitted). In doing so, we must remember that “we do not view the government’s evidence in isolation, but rather, in conjunction and as a whole.” United States v. Brodie, 403 F.3d 123, 134 (3d Cir.2005).

Taken as a whole, the facts stated by the majority allow a rational jury to make several alternative inferences. One rational inference is that Boria was hired by Morel to direct Diaz and the tractor-trailer to a garage and unload, not just boxes of rotten fruit, but what Boria knew to be drugs. Because we must view the evidence in the light most favorable to the Government, Reyeros, 537 F.3d at 277, the fact that alternative inferences exist is irrelevant. See United States v. Iafelice, 978 F.2d 92, 97 n. 3 (3d Cir.1992) (“There is no requirement ... that the inference drawn by the jury be the only inference possible or that the government's evidence foreclose every possible innocent explanation.”). Therefore, even though the jury could have also rationally inferred, among other things, that Boria was employed to direct the tractor-trailer to a garage and unload its contents without knowing the exact nature of the load, this did not entitle the District Court to overturn the jury’s guilty verdict.

Agreeing with the majority’s final holding, I write this concurrence to highlight the tension between this opinion and some of our most recent case law. We have stated the standard of review in conspiracy cases to be as follows: “In order for us to sustain a defendant’s conviction for con*487spiraey, the government must have put forth evidence tending to prove that defendant entered into an agreement and knew that the agreement had the specific unlawful purpose charged in the indictment.” United States v. Cartwright, 359 F.3d 281, 286-87 (3d Cir.2004) (quoting United States v. Idoum, 157 F.3d 265, 268 (3d Cir.1998)) (additional quotations and citations omitted). “ ‘The elements of a conspiracy may be proven entirely by circumstantial evidence.’ ” Id. at 286 (quoting United States v. Wexler, 838 F.2d 88, 90 (3d Cir.1988)). In “[a]pplying this rule, ‘[w]e have consistently held in cases of this genre that, even in situations where the defendant knew that he was engaged in illicit activity, and knew that “some form of contraband” was involved in the scheme in which he was participating, the government is obliged to prove beyond a reasonable doubt that the defendant had knowledge of the particular illegal objective contemplated by the conspiracy.’ ” Id. at 287 (quoting Idowu, 157 F.3d at 266-67) (additional citations omitted). Therefore, “the proper question before us with respect to both the conspiracy and the aiding and abetting charges is ‘whether there was sufficient evidence that [Boria] knew that the subject matter of the transaction was a controlled substance, rather than some other form of contraband, such as stolen jewels or computer chips or currency.’ ” Id. (quoting Idowu, 157 F.3d at 266).11

The tension lies in the different legal conclusions this Court has drawn based on differing sets of facts. The majority groups this case with Reyeros and Iafelice due to the “suspicious circumstances of this case” and, more importantly, co-conspirator Alvarado’s testimony that Boria’s role was to “take the tractor-trailer ... to a garage to unload the drugs that were in the back of the tractor-trailer.” (App.139.) While I agree that the unique presence of coconspirator testimony, which is absent from this Court’s prior decisions in this area, sufficiently imputes knowledge to Boria, I view this case to be distinguishable from Reyeros and Iafelice. In addition, I believe that the outcome of this case conflicts with the spirit of our prior decision in Idowu.

Iafelice was a possession case. Accordingly, our inquiry in Iafelice was “whether there was sufficient evidence to conclude that [the defendant] had constructive possession of the drugs, and whether he had an intent to distribute those drugs.” 978 F.2d at 96. We stated that “[constructive possession exists if an individual ‘knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons.’ ” Id. (quoting United States v. Blackston, 940 F.2d 877, 883 (3d Cir.1991)). In distinguishing the case from Wexler and Salmon, we concluded that the “truly distinguishing fact” was the defendant’s ownership and operation of the vehicle transporting the drugs: “[o]wnership and operation of the car are highly relevant facts that could reasonably have been considered by a jury in evaluating [the defendant’s] knowledge of, and dominion and control over, the drugs.” Id. at 96-97. Boria, in contrast, was convicted of conspiracy to possess with intent to distribute, and aiding and abetting the possession with intent to distribute, cocaine. Accordingly, our focus here is not whether Boria had “dominion or control” over the drugs, but rather whether Boria “entered into an agreement and knew that the agreement had the specific unlawful pur*488pose charged in the indictment.” Cartwright, 359 F.3d at 287 (quoting Idowu, 157 F.3d at 268) (additional quotations and citations omitted). Therefore, because the nature of the inquiry is different, Boria’s control over the tractor-trailer here, while relevant, is arguably not as dispositive as the defendant’s ownership and operation of the vehicle in Iafelice.

Although a conspiracy case, Reyeros is also distinct. Like the instant case, our holding in Reyeros relied primarily on co-conspirator testimony. 537 F.3d at 279. However, as the majority acknowledges in footnote 10, the Reyeros coconspirator testified to a statement allegedly made by the defendant himself, whereas here Alvarado only testified to his own understanding of Boria’s role in the conspiracy. Id. Furthermore, the Reyeros court cited additional evidence from which the jury could have reasonably inferred that the defendant had knowledge of the subject matter of the transaction: the defendant had a familial relationship with a co-conspirator and there was evidence that the defendant would be paid a percentage of the value of the cocaine imported. Id. at 279 n. 12. The Government presented no analogous evidence against Boria.

Of course, the fact that Iafelice and Reyeros are distinguishable by no means invalidates the majority’s holding, with which I agree. The majority cites additional circumstantial evidence not present in Iafelice or Reyeros, namely, Boria’s suspicious behavior in the early morning hours of February 6, 2007, that I believe enables the Government to make its case.

Our prior decision in Idowu creates an even greater incongruity. Although we held in Idowu that the evidence was insufficient to show that the defendant knew that the subject matter of the transaction was a controlled substance, 157 F.3d at 270, it seems that the Government’s case against the Idowu defendant was altogether stronger than the Government’s case against Boria here: unlike Boria, the Idowu defendant had a preexisting relationship with the co-conspirator; drove the co-conspirator to the transaction; was present in the vehicle when the co-conspirator invited the informant to enter the car to discuss the transaction (the informant declined); counted the money for the transaction; carried the money for the transaction in his bag; and searched the informant’s suitcase for the contraband, remarking, “They didn’t pack this thing.” Id. at 267-68. Boria, in contrast, had thus far only begun to direct a tractor-trailer to a garage, where he would presumably unload the trailer, when he was apprehended. Therefore, although the different facts clearly allow for different conclusions, I view Idowu and this opinion to be, in a broader sense, incompatible.12

In summary, I agree with the majority that, viewing the evidence in the light most favorable to the Government, co-conspirator Alvarado’s testimony allows a rational jury to find beyond a reasonable doubt that Boria knew he was transporting a controlled substance, as opposed to some other form of contraband. I write sepa*489rately solely to highlight the tension between this opinion and our prior case law.

. As the majority explains in footnote 8, the standard is the same for Boria's aiding and abetting conviction.

. The inconsistencies may stem from our circuit’s seemingly paradoxical standard of review. Although we acknowledge that "[t]he elements of a conspiracy may be proven entirely by circumstantial evidence,” Cartwright, 359 F.3d at 286 (quoting Wexler, 838 F.2d at 90), we require that there be "sufficient evidence that [the defendant] knew that the subject matter of the transaction was a controlled substance, rather than some other form of contraband,” id. at 287 (quoting Idowu, 157 F.3d at 266). It may be that the difficulty of producing evidence that the defendant knew that the subject matter was a controlled substance has turned our standard of review, not in name but in application, into a requirement for direct evidence.