United States Court of Appeals
For the First Circuit
No. 06-2709
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE A. PARET-RUIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and DiClerico,** District Judge.
Víctor González-Bothwell, Assistant Federal Public Defender,
with whom Joseph C. Laws, Jr., Federal Public Defender, was on
brief for appellant.
Mariana E. Bauzá, Assistant United States Attorney, with whom
Rosa E. Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, were on brief for appellee.
May 19, 2009
*
Of the District of New Hampshire, sitting by designation.
DICLERICO, District Judge. Following a five-day trial,
appellant Jorge Alberto Paret-Ruiz (“Paret-Ruiz”) was found guilty
of conspiracy to import with intent to distribute, and to possess
with intent to distribute, five or more kilograms of cocaine. He
argues that the evidence was insufficient to sustain his
convictions, that the district court erred in denying his request
for a new trial based on his proffer of newly discovered evidence
and his claim that the government suppressed exculpatory evidence
in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the
government made an improper argument at trial by suggesting that
the jury could find him guilty based solely on an agreement with a
government agent. Because we conclude that the evidence admitted
at trial was insufficient to support Paret-Ruiz’s conviction, we
reverse the verdict and remand with instructions to enter a verdict
of not guilty. The other issues Paret-Ruiz raises need not be
addressed.
I.
A. Background Facts
The government presented its case through the testimony
of Agent Jesus González (“Agent González”), a special agent with
the Drug Enforcement Administration (“DEA”). The government also
played for the jury numerous audio recordings of conversations
between Agent González and Paret-Ruiz, and introduced Spanish and
English transcripts (“audio transcripts”) of the audio recordings
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into evidence. Because Paret-Ruiz asks us to review the
sufficiency of the evidence, it is his burden on appeal to provide
the relevant portions of the record. See Fed. R. App. P. 10(a);
Local Rule 11(a); Muniz Ramirez v. Puerto Rico Fire Services, 757
F.2d 1357, 1358 (1st Cir. 1985) (“[I]t is the appellant’s
responsibility to ensure that the record is complete, i.e., that it
contains all papers necessary for the determination of the issues
presented by the appeal.”). In his brief, Paret-Ruiz relies upon
Agent González’s testimony as well as a portion of those audio
transcripts which he claims are relevant. The record contains the
trial transcripts, which include Agent González’s testimony, and
the portions of the audio transcripts on which Paret-Ruiz relies.
The government, in its brief, relies entirely on Agent González’s
testimony, which includes references to the audio recordings. We
review Paret-Ruiz’s arguments on appeal based upon the record as
presented to us by the parties. Cf. United States v. Morales-
Madera, 352 F.3d 1, 11-12 (1st Cir. 2003) (finding record
sufficient for appellate review despite absence of one wiretap tape
which government did not rely upon to prove its case and which
government witness summarized in his testimony).
We recite the facts in the light most favorable to the
verdict. United States v. DeCologero, 530 F.3d 36, 47 (1st Cir.
2008). In 2003, the Federal Bureau of Investigation (“FBI”)
informed the DEA that one of its confidential informants (“FBI CI”)
was approached by Paret-Ruiz, who was looking to acquire a boat for
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the purpose of transporting cocaine from other Caribbean islands
into Puerto Rico. The DEA began its investigation of Paret-Ruiz’s
activities in January of 2004. On January 28, 2004, the FBI CI met
with Paret-Ruiz to discuss his request for a boat. Agent González
supervised the photographic surveillance of this meeting.
On February 3, 2004, Agent González posed as a drug
trafficker and met with the FBI CI and Paret-Ruiz aboard a boat
owned by the DEA that is used to conduct undercover drug
transactions. Agent González gave Paret-Ruiz a tour of the boat,
showing him the hidden compartments, which were of particular
interest to Paret-Ruiz. Paret-Ruiz initially indicated that he
wanted to purchase the boat, but Agent González informed him that
this was not possible. Paret-Ruiz then stated that several
different acquaintances had cocaine contacts in Antigua and St.
Maarten, and that he was interested in using the boat, and Agent
González’s services, to smuggle cocaine into Puerto Rico and
deliver it to these acquaintances. Agent González and Paret-Ruiz
also discussed the price of the cocaine and the costs of
transporting it. Through subsequent investigation, Agent González
discovered that Adalberto Coriano-Aponte (“Coriano”) had cocaine
contacts in St. Maarten, and that Coriano and Efraín Santana-Ortiz
(“Santana”), an acquaintance of Coriano’s, were two of the intended
recipients for the cocaine.1
1
At trial, Paret-Ruiz testified that he never actually
negotiated drug deals with anyone, that he lied to Agent González
about the deals, and that he did not know Coriano.
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In a phone conversation on February 8, 2004, Paret-Ruiz
told Agent González that he had finished a meeting with some
individuals and asked if Agent González would show them the boat if
necessary. Paret-Ruiz did not identify these individuals, and
Agent González never confirmed their identities. Agent González
declined to show the undercover boat. In another phone
conversation on February 9, 2004, Paret-Ruiz told Agent González
that some individuals had two cocaine loads available, for 300 and
500 kilograms each, but that he had not discussed fees with them.
Following this conversation, Agent González, the FBI CI, Paret-
Ruiz, and another undercover DEA agent met at a restaurant. At
this meeting, Paret-Ruiz explained that he met with other
unidentified individuals the previous day and they offered him two
loads of cocaine, consisting of 200 and 500 kilograms, to be picked
up in Antigua, using Agent González’s undercover boat, which would
be escorted by police or military officials up to 30 miles out to
sea.
On February 10, 2004, Paret-Ruiz told Agent González that
he was going to meet with unidentified individuals to discuss their
February 9 meeting. At a February 13, 2004, meeting, Paret-Ruiz
again told Agent González of the other cocaine loads, consisting of
300 and 500 kilograms, that were still available in Antigua. Agent
González stated that he would like a fee of twelve to fifteen
percent, depending upon the size of the cocaine load. Paret-Ruiz
told Agent González that he would negotiate for twenty percent, so
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that he could make some money. They also discussed the possibility
that the owner of the drugs might accompany Agent González on his
boat from Antigua to Puerto Rico and instructions for loading the
cocaine from the boat into a vehicle for delivery in Puerto Rico.
During a meeting on February 24, 2004, Paret-Ruiz told
Agent González that he was going to meet with some unidentified
individuals in a few days to continue negotiations regarding the
cocaine loads from Antigua. At a February 25 meeting, Paret-Ruiz
told Agent González that one of the cocaine loads he had been
working on was no longer available because it had been picked up by
someone else, but that other loads were still available. Agent
González testified that he was unsure which loads Paret-Ruiz was
referring to in this conversation. Paret-Ruiz then accepted $2,000
from Agent González to travel to Antigua to confirm that there was
cocaine available for transport to Puerto Rico. However, Paret-
Ruiz never went to Antigua and did not repay the money. Later that
same day, Paret-Ruiz met with some unidentified individuals to
continue discussions.
On March 2, 2004, Paret-Ruiz told Agent González that he
met with two individuals about transporting cocaine using Agent
González’s boat, but they were not interested because they wanted
to buy, not rent, a boat to transport the drugs. Paret-Ruiz also
said that he was currently in discussions with another unnamed
individual. Agent González later discovered that the individual
was Santana. Agent González and Paret-Ruiz met again on March 16,
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2004. During the meeting, Paret-Ruiz made a phone call to someone,
later identified as Santana, and asked him to tell an unnamed
individual, later identified as Coriano, that he was meeting with
the owners of the boat, and to ask whether Coriano was still
interested in the drug transaction. Paret-Ruiz concluded the call,
and Santana called back some time later. After finishing his
conversation with Santana, Paret-Ruiz informed Agent González that
Santana and Coriano were still interested in obtaining
transportation for cocaine loads but that they could not agree on
the fee he and Agent González would take for transporting the
cocaine. Paret-Ruiz demanded a fee of twenty percent and Santana
would only offer sixteen percent, which Paret-Ruiz would not
accept. Paret-Ruiz stated, however, that he would meet with
Santana later that day. When Agent González asked to be included
in this meeting, Paret-Ruiz declined because he was afraid of being
excluded from a transaction.
On March 17, 2004, Paret-Ruiz told Agent González in a
phone conversation that Santana and Coriano were still interested
in working with them. On March 18, Paret-Ruiz and Agent González
met to discuss Paret-Ruiz’s meeting with Santana on March 16.
Paret-Ruiz told Agent González that other unidentified individuals
were arrested and that his negotiations with them regarding drug
loads had therefore terminated. Paret-Ruiz stated his concern
about the arrests and suggested that they should delay their drug
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transaction for awhile but that they would resume negotiations
later. The drug transaction never occurred.
In August of 2004, Agent González, as an undercover
agent, met with Coriano, the FBI CI, and another individual to
discuss the shipment of cocaine from St. Maarten into Puerto Rico.
Coriano had approached the FBI CI looking for transportation for
cocaine. In October of 2004, Santana spoke with the FBI CI and
told him that his discussions with Paret-Ruiz fell through because
they could not agree on the fee. In speaking with Santana, Paret-
Ruiz had apparently blamed the FBI CI for requiring a higher fee;
the FBI CI corrected Santana and told him that Paret-Ruiz was the
one demanding the higher fee.
B. Procedural History
On August 9, 2005, an indictment was returned against
Paret-Ruiz, Santana, and Coriano for conspiracy to import with
intent to distribute, and to possess with intent to distribute,
five or more kilograms of cocaine, from approximately November 1,
2003, through approximately March 18, 2004.2 See 21 U.S.C. §§ 841,
846, 960, and 963. At his arraignment, Paret-Ruiz pled not guilty
to the charges against him.
Paret-Ruiz’s trial began on June 19, 2006. At the close
of evidence, Paret-Ruiz moved for acquittal under Federal Rule of
Criminal Procedure 29, based on his claim that the evidence did not
2
Neither Santana nor Coriano went to trial.
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establish that there was an agreement to import or possess cocaine
with anyone other than Agent González and the FBI CI.3 The court
denied the motion. Paret-Ruiz then testified and rested on June
28. After the jury charge was given, Paret-Ruiz renewed his Rule
29 motion, which the court again denied. The jury found Paret-Ruiz
guilty on both counts of conspiracy.
At sentencing, Paret-Ruiz requested a sentence below the
applicable guideline range. The court responded, “The government
may be very much inclined to accept such an argument if, for
example, you waive your right to appeal.” At the court’s urging,
defense counsel spoke to Paret-Ruiz about a waiver, but Paret-Ruiz
declined. Paret-Ruiz was sentenced to 180 months in prison, which
was below the applicable guideline range.
II.
A. Sufficiency of the Evidence
Paret-Ruiz argues that the evidence was insufficient to
support his drug conspiracy convictions because there was no
evidence produced at trial that he reached an agreement to import
or possess cocaine with anyone other than a government agent. We
review Paret-Ruiz’s sufficiency of the evidence claim de novo,
considering the evidence in the light most favorable to the
3
Rule 29 provides that: “After the government closes its
evidence or after the close of all the evidence, the court on the
defendant’s motion must enter a judgment of acquittal of any
offense for which the evidence is insufficient to sustain a
conviction.” Fed. R. Crim. P. 29(a).
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verdict. United States v. Gomez-Rosario, 418 F.3d 90, 105 (1st
Cir. 2005). We will not overturn a guilty verdict “unless, viewing
the evidence in the light most favorable to the prosecution, no
reasonable jury could have rendered [it].” United States v.
Nelson-Rodriguez, 319 F.3d 12, 27 (1st Cir. 2003). Further, we
will not assess the credibility of witnesses, as that is a role
reserved for the jury. United States v. Nishnianidze, 342 F.3d 6,
14 (1st Cir. 2003).
To establish that the defendant is guilty of
participating in a narcotics conspiracy, the government must prove,
beyond a reasonable doubt, that “‘an agreement existed to commit
the underlying substantive offense, and that the defendant elected
to join the agreement, intending that the underlying offense be
committed.’” Gomez-Rosario, 418 F.3d at 105 (quoting United States
v. Medina-Martinez, 396 F.3d 1, 5 (1st Cir. 2005)). “The essence
of the crime is the conspirators’ agreement to act in concert” to
import, possess, and distribute illegal drugs. United States v.
Cruz, 568 F.2d 781, 782 (1st Cir. 1978); see United States v.
Rodriguez, 525 F.3d 85, 104 (1st Cir. 2008). The agreement must
exist between two or more persons, and as a matter of law, there
can be no conspiracy between a defendant and a government agent.
United States v. Castellini, 392 F.3d 35, 51 n. 11 (1st Cir. 2004);
United States v. Giry, 818 F.2d 120, 126 (1st Cir. 1987).
An agreement between coconspirators may be proven by
circumstantial evidence, and it may be tacit. Gomez-Rosario, 418
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F.3d at 107; United States v. Portela, 167 F.3d 687, 695 (1st Cir.
1999); United States v. Concemi, 957 F.2d 942, 950 (1st Cir. 1992)
(“[A]n agreement . . . may be inferred from a development and
collocation of circumstances.”) (internal quotation marks omitted).
A conspiratorial agreement, therefore, “need not be express so long
as its existence can plausibly be inferred from the defendants’
words and actions . . . .” Concemi, 957 F.2d at 950. Further, the
conspiracy need not succeed for the conviction to stand. Nelson-
Rodriguez, 319 F.3d at 28.
The indictment in this case charged an agreement among
Paret-Ruiz, Santana, Coriano, and other known and unknown
individuals to import, possess, and distribute cocaine.4 The
evidence presented by the government to support the conspiracy
charges consisted of the testimony of Agent González, audio
recordings of conversations between Agent González and Paret-Ruiz,
and an audio recording of a conversation between Paret-Ruiz and
Santana which Agent González overheard.5 Because a conspiracy
cannot exist between a government agent and an individual, these
conversations are not direct evidence of the charged conspiracy.
The conversations may, however, constitute circumstantial evidence
4
In its brief and at oral argument, however, the government
only argued that Paret-Ruiz conspired with Santana and Coriano.
The government, therefore, has waived any arguments that Paret-Ruiz
conspired with additional unknown individuals. United States v.
Molina, 407 F.3d 511, 524 (1st Cir. 2005) (recognizing that
arguments not briefed by government are deemed waived).
5
Agent González testified that he heard only Paret-Ruiz’s
portion of the conversation.
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of a conspiracy among Paret-Ruiz, Santana, and Coriano if they show
that these individuals agreed to work together to import and
possess, with an intent to distribute, five or more kilograms of
cocaine in violation of United States law. See Nelson-Rodriguez,
319 F.3d at 28; United States v. Elledge, 723 F.2d 864, 866 (11th
Cir. 1984).
Agent González testified that Paret-Ruiz was involved in
discussions with numerous unidentified individuals regarding
cocaine loads in Antigua, and that several discussions fell through
for a variety of reasons. He also testified that Paret-Ruiz had
discussions with individuals he later identified as Santana and
Coriano, who had cocaine contacts in St. Maarten and Antigua. At
the March 16, 2004, meeting, Agent González overheard Paret-Ruiz’s
side of a phone conversation Paret-Ruiz had with an individual
later identified as Santana, in which he told Santana that he was
with the people who had the boat, and asked if Coriano was still
interested. Santana called Paret-Ruiz back and he confirmed that
Coriano was still interested. However, they could not agree on the
fee which Paret-Ruiz and Agent González would collect because
Paret-Ruiz insisted upon a twenty percent fee.
Following this meeting, Paret-Ruiz stated that Santana
and Coriano were still interested, but that he wanted to wait
because some individuals had recently been arrested on drug
charges. Agent González had no further conversations with Paret-
Ruiz. In August of 2004, Coriano met with Agent González and the
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FBI CI regarding the transportation of cocaine loads into Puerto
Rico. In October of 2004, the FBI CI met with Santana, who told
the FBI CI that the discussions with Paret-Ruiz fell through
because they could not agree on the fee.
This is a close case. While there is evidence of
numerous discussions between Paret-Ruiz and several unidentified
individuals regarding available cocaine loads as well as evidence
of Paret-Ruiz’s desire to effectuate a cocaine deal, there is a
lack of sufficient evidence showing that he actually reached an
“agreement to act in concert” with Santana and Coriano. Cruz, 568
F.2d at 782. Contrary to the government’s assertion, the evidence
often does not indicate which individuals Paret-Ruiz is referring
to in his discussions with Agent González.6 The government argues
that there is evidence that Paret-Ruiz, Santana, and Coriano agreed
on the specific amount of cocaine and the specifics regarding the
pick-up and transportation of the cocaine by boat. Agent
González’s testimony regarding his conversations with Paret-Ruiz,
however, establishes that an agreement existed only between Paret-
Ruiz and Agent González. Although Agent González testified that
Paret-Ruiz, Santana, and Coriano had generally “agreed,” he did not
testify as to what they agreed on, and in the same statement, Agent
González recalls that “they [Santana and Coriano] were still
6
Through later investigations, Agent González was only able to
identify Santana and Coriano as two of the individuals Paret-Ruiz
initially referred to on February 3, 2004, and as individuals with
whom he was in discussions with from March 2, 2004, through March
17, 2004.
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seeking transportation for the drug shipments,” which indicates
that they had not reached an agreement with Paret-Ruiz.
The government also cites to Nelson-Rodriguez, and argues
that a completed transaction is not necessary in proving the
existence of a conspiracy. In Nelson-Rodriguez, three of the
defendants appealed from their drug conspiracy convictions and
argued that the evidence was insufficient to support the existence
of a conspiracy because “many of the drug importation plans never
came to fruition” and their “negotiations failed to produce a
complete ‘meeting of the minds’ on issues such as the exact
location for the handover of the drugs at sea or the division of
the proceeds.” 319 F.3d at 28. Noting that a conspiracy
conviction does not require that the conspiracy succeed, nor that
the underlying act even be attempted, we held that there was
sufficient evidence for the jury to conclude that an agreement
existed among the defendants to “work together to buy and sell
illegal narcotics.” Id. The evidence in Nelson-Rodriguez showed
that the defendants had agreed to import several loads of cocaine
from Columbia and heroin from St. Maarten. Their agreement was
evidenced by their plans to procure a boat, navigational charts,
and radios, and by the designation of boat captains, coordinators,
security monitors, and drug distributors. An undercover agent also
met with two coconspirators on several occasions, at which they
agreed to work together to import 1,100 kilograms of cocaine from
Colombia, although the transaction ultimately fell through for
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numerous reasons. There was also evidence that a few of the
coconspirators successfully imported 250 kilograms of cocaine into
Puerto Rico.
In the present case, the evidence was sufficient for a
reasonable jury to find that Paret-Ruiz wanted to make a deal to
transport drugs into Puerto Rico. A reasonable jury could also
find that Coriano had cocaine connections in St. Maarten and
Antigua, that he and Santana were looking for someone to transport
and deliver the cocaine to them in Puerto Rico, and that Paret-Ruiz
and Santana had discussions regarding the transportation of
cocaine. The evidence was insufficient, however, for a reasonable
jury to conclude that Paret-Ruiz had an agreement with anyone other
than Agent González to work together to import and possess illegal
drugs. Unlike the evidence presented in Nelson-Rodriguez, which
showed that the coconspirators had agreed to work together to
import drugs, here there was only evidence of Paret-Ruiz’s failed
attempts to make a deal with Santana and Coriano.
The government further argues that by reaching a guilty
verdict after hearing Paret-Ruiz’s testimony, the jury necessarily
rejected it as untruthful, which provides further evidence of his
guilt. See United States v. Restrepo-Contreras, 942 F.2d 96, 99
(1st Cir. 1991). While we have applied this principle before when
upholding convictions, it has been in cases where there was,
independent of the defendant’s testimony, sufficient evidence of
guilt. See United States v. Hadfield, 918 F.2d 987, 999 (1st Cir.
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1990) (finding evidence of guilt “was further bolstered by what the
jury could have found to be a tall tale”). Here, Paret-Ruiz’s
testimony notwithstanding, there is insufficient evidence from
which a reasonable jury could conclude beyond a reasonable doubt
that Paret-Ruiz reached an agreement with Santana and Coriano to
import, possess, and distribute cocaine. Therefore, because we
find that the evidence, “‘viewed in the light most favorable to the
verdict[,] gives equal or nearly equal circumstantial support to a
theory of guilt and a theory of innocence of the crime charged,’”
we must reverse the conviction. United States v. Reyes, 352 F.3d
511, 518 (1st Cir. 2003) (quoting United States v. Morillo, 158
F.3d 18, 22 (1st Cir. 1998)).
Before concluding, we add a final note regarding the
trial court’s statements to Paret-Ruiz at sentencing. When Paret-
Ruiz requested that the court consider a sentence below the
guideline range, the court responded that the government may agree
to such a departure “if, for example, you waive your right to
appeal.” Paret-Ruiz declined to waive his right to appeal.
However, we caution the trial court against engaging in such
discussions with the defendant.
III.
For the foregoing reasons, based on the record as
presented to us, no rational jury could find Paret-Ruiz guilty
beyond a reasonable doubt of conspiracy to import cocaine with
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intent to distribute, or conspiracy to possess cocaine with intent
to distribute. We reverse the verdict and remand with instructions
to enter a verdict of not guilty.
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