United States v. Arias

          United States Court of Appeals
                       For the First Circuit


No. 99-1924

                     UNITED STATES OF AMERICA,

                             Appellee,

                                 v.

                           ROBERTO ARIAS,

                       Defendant, Appellant.




         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]



                               Before

                       Boudin, Circuit Judge,

                     Cyr, Senior Circuit Judge,

                     and Lynch, Circuit Judge.




     Elaine H. Thompson for appellant.
     Christopher S. Rhee, Attorney, United States Department of
Justice, with whom Margaret E. Curran, United States Attorney,
and Zechariah Chafee, Assistant United States Attorney, were on
brief for appellee.
January 17, 2001
            CYR, Senior Circuit Judge.                Following a brief jury

trial, Roberto Arias appeals from the judgments of conviction

entered     against him in the District of Rhode Island for (i)

aiding    and    abetting    the   possession      of     heroin   by    one    Luis

Moscoso, with intent to distribute, see 21 U.S.C. § 841(a); 18

U.S.C. § 2, and (ii) conspiring to possess heroin, with intent

to distribute, see 21 U.S.C. § 846.              We affirm those judgments.



                                         I

                                   BACKGROUND

            The trial centered around what Arias knew about the

$20,000 “brick” of high-grade heroin — heavily wrapped in paper,

plastic and tape — which was removed from Moscoso’s jacket

pocket on November 5, 1998, after he and Arias were arrested by

narcotics       detectives   of    the       Providence    Police       Department

following their 15-to-20-minute mobile surveillance of a blue

Volkswagen owned and operated by Arias, with Moscoso in the

passenger seat.          As there was no evidence that Arias ever

possessed the heroin, the government relied upon circumstantial

evidence in a successful effort to persuade the jury that the

exculpatory      trial   testimony    given      by   Arias   simply      was   not

credible.




                                         3
          Arias testified that he had “bumped into” Moscoso “on

the street” in New York City a few months earlier and urged him

to call “if he ever came [to Providence].”   Then, according to

Arias, on November 5, 1998, Moscoso called, stated that he was

in the Providence area, and asked Arias to meet him at the

corner of Broad Street and Clayton Street and drive him to the

Providence Pizza Palace, where Moscoso was to meet someone named

“Miguel.”1

          The government neither attempted to demonstrate, nor

claimed, that Arias ever saw, smelled or touched the heroin

Moscoso carried in his jacket pocket.    Instead, it sought to

persuade the jury that the Arias testimony — particularly his



     1Although the statement Arias attributed to Moscoso — that
Moscoso needed a ride to the Providence Pizza Palace to meet
“Miguel” — was central to the Arias defense, Arias neither
mentioned the nature of the relationship between “Miguel” and
Moscoso, nor the purpose of the anticipated meeting with
“Miguel.” Nor does the trial record contain any explanation as
to why Moscoso, having just arrived from New York City, would
need a ride to the Providence Pizza Palace, where, as the
evidence plainly demonstrated, he was to deliver the heroin.
     Moreover, experienced narcotics detectives testified,
without contradiction, that drug dealers are notoriously
reluctant to deliver large quantities of illicit drugs to
locations with which they are unfamiliar.       These witnesses
explained that drug dealers scrupulously avoid such arrangements
because it is common practice for drug dealers to “set up” a
competitor by placing an order for delivery to a location at
which the unwitting seller can be forcibly relieved of the
illicit drugs, thereby enabling the putative “buyer” to acquire
the drugs at no cost and with little concern that the victim
will report the loss to law enforcement authorities.

                               4
explanation for the bizarre maneuvers repeatedly performed by

the blue Volkswagen, as observed by the officers conducting the

clandestine mobile surveillance — abundantly demonstrated not

only Arias’ guilty knowledge of the criminal mission upon which

Moscoso was embarked, but Arias’ complicity in the mission as

well.

         The circumstantial evidence presented by the government

sharply undercut the “mere presence” defense offered by Arias,

readily enabling the jury to find beyond a reasonable doubt that

at around 8:30 p.m. on November 5, 1998, the Providence Police

Department had received an anonymous tip that two Hispanic males

were en route to the Providence Pizza Palace from New York City

in a blue Volkswagen, bearing Rhode Island license plate CV-270,

with a large quantity of heroin.   Detective Robert Enright, an

experienced narcotics officer, testified that he was assigned to

conduct mobile surveillance on the blue Volkswagen expected to

arrive shortly in the Broad Street area, near the entrance to

Roger Williams Park in Providence, en route from New York City.

Pursuant to standard practice, Detective Enright selected a

nondescript, unmarked, used vehicle for the surveillance.

         At the time Detective Enright initially spotted the

blue Volkswagen, it was carrying two males, as anticipated, and

traveling —


                               5
          “at   an  excessive   speed,   faster   than
          everybody    else[,]    doing     serpentine
          maneuvers. [That is, it] was passing people
          on the left and the right. [It] was using
          the right lane to pass and just doing a
          serpentine around the other vehicles ... on
          Broad Street ... until right about the
          overpass on Broad Street .... [A]fter that,
          it was going slower than traffic and pulled
          over ... to the curb ...[,] [t]he passenger
          [i.e., Moscoso] ... exited the vehicle ...
          walked a few feet ... stood in front of ...
          a liquor store ...[,] did not [enter,] ...
          [but] looked all around[,] the area.” The
          driver [i.e., Arias] “stayed in the car and
          was also looking around.”

No less curiously, the blue Volkswagen repeatedly made back-to-

back U-turns, in traffic, and from time to time departed the

busier streets, drove down a quiet residential street, then

parked   briefly   with   its   lights   out   before   resuming   its

circuitous route on major thoroughfares.

          Moreover, on at least one occasion, while first in line

approaching a green traffic light at a busy intersection, Arias

stopped the blue Volkswagen, waited until the green light turned

to red, then proceeded swiftly through the intersection an

instant before the opposing traffic received the green light to

proceed into the intersection.2       Some of these maneuvers were



    2Detective Enright further testified that on several
occasions after Moscoso had exited the Arias vehicle, observed
the traffic, and returned to the Volkswagen without speaking
with anyone, Arias would cause the vehicle to take off abruptly
— in a “jackrabbit start” — into the traffic flow.

                                  6
repeated   several   times   by   the   blue   Volkswagen   during   the

surveillance, which lasted from 15 to 20 minutes yet traversed

no more than four to five miles.

           The trial focused principally upon the exculpatory

testimony provided by Arias, as well as extensive testimony from

various law enforcement officers responsible for the vehicular

surveillance of the blue Volkswagen.      The government relied upon

circumstantial evidence and an appeal to juror commonsense,

essentially contending that the exculpatory testimony provided

by Arias simply was not credible, particularly in light of the

testimony by Detective Enright and other experienced narcotics

detectives who described the surveillance of the blue Volkswagen

in minute detail.

                                   II

                             DISCUSSION

A.   The Conspiracy Verdict

           We must affirm the conspiracy conviction unless no

rational juror could have found that each essential element of

the alleged offense was established beyond a reasonable doubt.

See United States v.     Josleyn, 99 F.3d 1182, 1190 (1st Cir.

1996), cert. denied sub nom. Billmyer v. United States, 519 U.S.

1116 (1997).   “All credibility issues are to be resolved, and

every reasonable inference [is to be] drawn, in the light most


                                   7
favorable to the verdict.”            Id.       (Emphasis added.)        “[M]oreover,

as   among    competing   inferences,             two     or   more   of   which    are

plausible, [we] must choose the inference that best fits the

prosecution’s theory of guilt.”                   United States v. Olbres, 61

F.3d 967, 970 (1st Cir. 1995).              After carefully scrutinizing the

entire     trial    record,      we     conclude           that    the     compelling

circumstantial evidence presented by the government, combined

with   various     corroborative        credibility            determinations      well

within the exclusive province of the jury, afforded adequate

support for the conspiracy conviction.                    See id.

             The central factfinding task for the jury was what, if

anything, an ostensibly unsuspecting Arias knew about the heroin

distribution mission upon which Moscoso was embarked as the blue

Volkswagen was en route to the Providence Pizza Palace for the

meeting with “Miguel.”           The defense essentially maintained,

correctly enough, that Arias’ “mere presence” at the crime scene

and “mere association” with Moscoso were insufficient to support

the conspiracy charge.          See United States v. Mangual-Corchado,

139 F.3d 34, 44 (1st Cir.); cert. denied sub nom. Cirilo-Munoz

v. United States, 525 U.S. 942 (1998); United States v. Batista-

Polanco,     927   F.2d   14,    18    (1st        Cir.    1991).        Rather,    the

government had to prove, beyond a reasonable doubt, that Arias

and Moscoso “agreed, at least tacitly, to commit the substantive


                                            8
offense which constituted the object of their agreement, and

that    [Arias]    voluntarily    participated    in    ...   [it.]”   United

States v. DiMarzo, 80 F.3d 656, 661 (1st Cir.); cert. denied sub

nom. Alzate-Yepez v. United States, 519 U.S. 904 (1996).

             On the other hand, as the government points out, the

jury was entitled to rely on circumstantial evidence to infer

any    and   all   essential   elements    of   the    alleged   conspiracy,

provided the evidence demonstrated, beyond a reasonable doubt,

more than mere presence at the crime scene and more than mere

association with those involved in the crime.             See id.   Finally,

the available circumstantial evidence is to be viewed in the

light most favorable to          the   verdict, in order to determine

whether it affords sufficient support for various incriminating

inferences the jury reasonably may have drawn from the Arias

trial testimony.       See id.

             Arias testified that when requested to drive Moscoso

to the Providence Pizza Palace to meet “Miguel,” he failed to

advise Moscoso that he         did not know (i) how to get to the

junction of Broad Street and Clayton Street, where he was to

meet Moscoso, or (ii) whether the Providence Pizza Palace was

located in Providence or neighboring Cranston, Rhode Island.

Thus, the jury was entitled to draw a reasonable inference that

this implausible testimony either (i) constituted a fabricated


                                       9
foundation for the essential linchpin in the Arias defense

(viz., that the bizarre behavior of the blue Volkswagen and its

occupants, as observed by the officers conducting the mobile

surveillance, was due simply to the aimless meanderings of a

driver lost in an unfamiliar area) or (ii) demonstrated Arias’

“guilty knowledge” of the criminal mission upon which he and

Moscoso were jointly embarked.            See, e.g., United States v.

O’Brien, 14 F.3d 703, 706 (1st Cir. 1994) (“[c]ircumstantial

evidence tending to show guilty knowledge need not              compel a

finding of such knowledge in order to sustain a conviction; all

that is necessary is that reasonable jurors could be convinced

beyond   a   reasonable    doubt   that   the   defendant[]   had   guilty

knowledge.”) (quoting United States v. Flaherty, 668 F.2d 566,

579 (1st Cir. 1981)) (emphasis added).

             The latter inference, wholly warranted on a commonsense

assessment of the entire trial record,           see supra section I,

afforded adequate evidentiary support for a critical companion

inference     as   well:    that   the    extreme    countersurveillance

measures resorted to by Arias, in attempting to detect and/or

“shake” any mobile surveillance by competing drug dealers or by

law   enforcement     officers,    were   prompted    by   Arias’   guilty

knowledge that he and Moscoso were mutually embarked upon their

heroin distribution mission en route to the planned meeting with


                                    10
“Miguel” at the Providence Pizza Palace; hence, the otherwise

inexplicable countersurveillance activities repeatedly engaged

in by the blue Volkswagen, driven by Arias, as observed by the

narcotics detectives conducting the surveillance.

B.   The Aiding and Abetting Verdict

             We must affirm the aiding and abetting verdict unless

no rational juror could have found, beyond a reasonable doubt,

that (i) Moscoso intended to distribute to “Miguel” the large

cache   of    heroin      in    his   jacket       pocket;    and    (ii)       Arias

“‘consciously shared’ [that] criminal design, associated himself

with it, and actively sought to ensure its success.”                      Mangual-

Corchado, 139 F.3d at 44 (citations omitted).                   The one matter

meriting limited discussion in the instant context is whether

there was enough evidence to establish, beyond a reasonable

doubt, that Arias “consciously shared” the criminal purpose

plainly harbored by Moscoso.

             We   need    not   belabor      the    point.       The    identical

circumstantial      evidence      and     credibility        assessments        which

permitted the jury to determine, beyond a reasonable doubt, that

Arias   conspired        with   Moscoso      to    possess     the     heroin     for

distribution to “Miguel,” see II(A) supra, sufficed as well to

establish, beyond a reasonable doubt, that Arias consciously

shared and sought to further Moscoso’s intention to distribute


                                        11
the   heroin   to    “Miguel,”    by    transporting   Moscoso   to   the

Providence Pizza Palace, where Moscoso was to meet “Miguel.”



                                    III

                                 CONCLUSION



          For the foregoing reasons, the judgments of conviction

are affirmed.3      SO ORDERED.




      3
      Arias further claims he is entitled, at the very least, to
an offense-level reduction, pursuant to U.S.S.G. § 3B1.2, on the
grounds that (i) he merely drove the car in which Moscoso was
transporting the heroin, and (ii) Moscoso was “the brains,” as
the district court itself observed at one point. Although we
assume arguendo that the failure to afford such a reduction sua
sponte is subject to plain error review — Arias admits he did
not request such a reduction — nothing in the evidence before us
indicates that it was error not to afford the reduction.

                                       12