United States Court of Appeals
For the First Circuit
No. 02-2496
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES GOMES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Mark L. Stevens, by appointment of the Court, for appellant.
Donald L. Cabell, Assistant U.S. Attorney, with whom Michael
J. Sullivan, United States Attorney, was on brief for appellee.
July 21, 2004
COFFIN, Senior Circuit Judge. Appellant James Gomes
challenges the sufficiency of the evidence underlying his
conviction for conspiracy to possess cocaine base with intent to
distribute, in violation of 18 U.S.C. § 846. He claims that the
evidence, which described a single purchase, showed only a buyer-
seller relationship and not the requisite agreement to deal drugs.
Because we believe the jury reasonably could find a plan between
appellant and his seller to further distribute the cocaine, we
affirm the conviction.
I. Factual Background
Gomes originally was targeted by law enforcement agents as
part of an extensive undercover investigation into illegal firearms
dealing in and around Brockton, Massachusetts. Two paid government
informants, Jose Troche and Neil Baptista, purchased two firearms
from Gomes in September 2000. The drug sale at issue here arose
when the three men met again on December 11, ostensibly for another
gun transaction. Because the conspiracy charge is based entirely
on interactions that occurred that day, we shall recount the
sequence of events in some detail. We present the facts as the
jury rationally could have found them, based on the testimony and
other evidence presented at trial, and in the light most favorable
to the government.1 United States v. Fenton, 367 F.3d 14, 17 (1st
1
Troche was outfitted with recording equipment and the
conversations among the men that day were taped. The audio
recordings were played for the jurors, who also were given
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Cir. 2004); United States v. Henderson, 320 F.3d 92, 97 (lst Cir.
2003).
The trio came together on December 11 when Troche and Baptista
drove in Troche's car to pick up Gomes at his home in Brockton at
about 3 p.m. Gomes directed Troche to a multi-unit dwelling at 68
Calmar Street, also in Brockton, and on the way he offered to
obtain some crack cocaine for Troche and Baptista. Gomes told the
others that they could easily make money selling cocaine and that
it would take him about an hour to get the drug. When they reached
68 Calmar Street, Gomes went inside alone. He returned about ten
minutes later and reported a price of $1,500.
The men then left 68 Calmar Street and, as they drove around,
discussed the possibility of dealing drugs together. At one point,
Gomes stated that he was planning to purchase half a kilogram for
$15,000. The informants dropped Gomes off at his house and then
met with their law enforcement handlers to discuss the drug
proposition. The pair was given $1,500 in cash to buy drugs, and
they picked up Gomes again and returned to 68 Calmar Street to buy
the cocaine.
Troche testified that all three men went inside, and Gomes
then introduced Troche to the apartment's tenant, a woman named
Jannelle. The transcript of the audio recording indicates a
transcripts of the recordings. Troche and Baptista also testified
at trial.
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slightly different sequence of events.2 It appears that Gomes
initially went upstairs to check on the status of the drugs and
then came back outside, either with Jannelle or followed by her
shortly thereafter. Troche apparently was introduced to Jannelle
at that time, before going up to her apartment. Other people also
were outside the building, at least some of whom went inside when
someone announced that the police were coming. In the apartment,
Troche at one point observed Gomes speaking with Jannelle, but he
could not hear the conversation. At the conclusion of their
exchange, Gomes approached Troche and told him the cocaine was not
ready yet.
The three men left the apartment, drove around for a few
minutes, and then returned to 68 Calmar Street. At this point,
Troche's testimony and the transcript again diverge somewhat. From
the transcript, supplemented by the testimony where helpful, it
appears that all three men re-entered Jannelle's building, but that
Gomes initially entered the apartment without the other two. He
came back out into the hallway to negotiate with Troche on a final
price for the drugs, agreeing upon $1,350, and Troche gave him the
cash. The transcript suggests that all three men entered the
apartment at this time, at which point Jannelle became upset that
there were so many people there. Baptista and a number of others
2
This difference, as well as others noted infra, have no
impact on our analysis.
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left. Appellant remained in the apartment, and Troche also stayed
briefly, but he then walked down the stairs and waited in a
stairwell. Ten to fifteen minutes later, Troche knocked on the
apartment door, which was opened by Gomes, who told him that the
cocaine was ready. Troche followed Gomes into the apartment, where
he saw Jannelle hand Gomes a plastic bag containing an ounce of
crack cocaine. Gomes walked over to Troche and handed him the
drugs. The two men then left the apartment and building together.
Gomes was arrested a week later and ultimately charged with
two counts of being a felon in possession of firearms, in violation
of 18 U.S.C. § 922(g)(1), and one count of conspiracy to possess
five or more grams of cocaine base with intent to distribute, in
violation of 18 U.S.C. § 846. The jury found him guilty on one of
the firearms counts and the drug count. He was sentenced to ten-
year prison terms on each of the two counts, to be served
concurrently. On appeal, he challenges only his drug conspiracy
conviction.
II. Discussion
Appellant asserts that the government failed to prove that he
conspired to distribute cocaine because the record contains no
evidence of an agreement between him and Jannelle to pursue jointly
an unlawful objective and instead shows only a simple drug
purchase. To establish a conspiracy, the government needed to show
that the defendant "entered into an agreement with another to
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commit a crime, here, an agreement . . . to distribute cocaine . .
. ." United States v. Innamorati, 996 F.2d 456, 469-70 (lst Cir.
1993); see also Fenton, 367 F.3d at 19 ("A conspiracy is an
agreement between two or more persons, including the defendant, to
commit a particular crime."). Appellant is correct that a single
drug sale, without more, does not establish a conspiracy. See
United States v. Rivera-Ruiz, 244 F.3d 263, 269 (lst Cir. 2001).
But we have observed that "[e]ven a single sale for resale,
embroidered with evidence suggesting a joint undertaking between
buyer and seller, could suffice," United States v. Moran, 984 F.2d
1299, 1303 (lst Cir. 1993). See also, e.g., Rivera-Ruiz, 244 F.3d
at 271; United States v. Portela, 167 F.3d 687, 696-98 (lst Cir.
1999).
The question we thus face is whether there are sufficient
meaningful threads in the details of the single sale before us to
permit the jury to find a joint undertaking. Viewing the evidence,
as we must, in the government's favor, and drawing from it all
reasonable inferences, we think there are.
In his opening conversation with Troche and Baptista about
drug dealing, during the first trip to Calmar Street, appellant
asserted that he could obtain drugs within the hour and that the
other two could make significant money selling cocaine. A jury
reasonably could infer from this dialogue that appellant had an on-
going relationship with a supplier, giving him confidence that he
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could acquire cocaine virtually as soon as he asked for it. And,
in fact, that inference was reinforced by the subsequent series of
events, beginning with the $1,500 offer after the first stop at
Calmar Street (when appellant went inside alone) and concluding
with the transfer of cocaine from appellant to Troche. The
evidence indicates that, as the drug preparations proceeded in
Jannelle's apartment, she remained comfortable with appellant's
presence despite her discomfort with others being there. A jury
could thus find that Jannelle's conduct as she worked on the
cocaine reflected a familiar course of dealing between the two in
relation to her drug activity.
Even if a history of repeated sales of small quantities left
room for doubt about a conspiracy to further distribute the drugs,
the facts in this record offer more. Here, the circumstances
include Troche's visible presence as appellant's waiting customer.
When Jannelle objected to the large number of people in her
apartment, Troche – a newcomer to this group – was nevertheless
allowed to stay with appellant. Later, after waiting in the
stairwell for some time, Troche was brought into the kitchen and
became the final recipient – in Jannelle's presence – of the newly
prepared drugs she handed to appellant. Moreover, the price
negotiations were suggestive of consultation with Jannelle; both
the $1,500 original amount and the $1,350 ultimate price were
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offered after appellant returned from a solo entry into her
apartment.
While these facts do not compel an inference that the sale to
Troche was a joint enterprise of appellant and Jannelle, they at
least render such a conclusion reasonable. Circumstantially, the
evidence suggested that appellant regularly procured drugs from
Jannelle and that, at least in this instance, she knew that he was
making the purchase on behalf of a customer who was waiting nearby.
The actual transfer occurred in her kitchen, and the jury
reasonably could conclude that she observed it take place. In
other words, the evidence points not simply to a sale to Gomes but
to a delivery of cocaine to Gomes for further distribution to
another. Given that "[t]he evaluation of the facts is entrusted
largely to the jury," Moran, 984 F.2d at 1303, and that "[w]e
defer, within reason, to inferences formulated by the jury in the
light of its collective understanding of human behavior in the
circumstances revealed by the evidence," United States v. Passos-
Paternina, 918 F.2d 979, 985 (lst Cir. 1990), we cannot say that
the jury's outcome here was unsupportable.
The judgment of conviction on the drug conspiracy count is
therefore affirmed.
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