United States v. Perez-Melendez

United States Court of Appeals
For the First Circuit

No. 08-2225
UNITED STATES OF AMERICA,
Appellee,

v.

DANIEL PÉREZ-MELÉNDEZ,
Defendant, Appellant.

No. 08-2226
UNITED STATES OF AMERICA,
Appellee,

v.

ÁNGEL RIVERA-RÍOS,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]

Before
Torruella, Lipez, and Howard,
Circuit Judges.

Lydia Lizarríbar-Masini, for appellant Rivera-Ríos.
María Soledad Ramírez-Becerra, for appellant Pérez-Meléndez.
Ernesto López-Soltero, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Luke Cass, Assistant United States Attorney, were on
brief for appellee.

March 17, 2010
 TORRUELLA, Circuit Judge. This is a consolidated opinion

addressing two related appeals. Each appeal arises from criminal

convictions stemming from events of October 11, 2007, when Daniel

Pérez-Meléndez ("Pérez-Meléndez") and Ángel Rivera-Ríos ("Rivera-

Ríos") (collectively "appellants") were transporting what law

enforcement officials discovered to be forty kilograms of cocaine.

After careful review of the record, because we find that the

evidence adduced at trial was insufficient to support the jury

verdict, we reverse the district court's rulings and remand the

case to the district court with instructions to enter judgments of

acquittal.

I. Background

A. Facts

We outline the facts relevant to the appeals. Other

details may be found in the district court's opinion. See United

States v. Pérez-Meléndez, 571 F. Supp. 2d 322 (D.P.R. 2008).

1. Doral Freight Logistics

When she testified at trial, Virginia María Cruz-Martínez

("Cruz-Martínez") had been a customer service employee for three

years at Doral Freight Logistics ("Doral"), a Caribbean shipping

company based in Amelia Industrial Park in Guaynabo, Puerto Rico.

Cruz-Martínez testified that shipments from the Dominican Republic

come to Doral via a sealed van on a boat that docks at Mayaguez,

Puerto Rico, and then are driven by the shipper to Doral's

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headquarters in Guaynabo. Cruz-Martínez stated that when such a

van arrives at Doral, the manifest that is included with the

shipment is sent to the Customs and Treasury departments for the

appropriate clearances. Once the clearances are returned to Doral,

Doral notifies the client that the merchandise is available and

provides the client with the option of either picking up the

merchandise or having Doral deliver it. If the client opts to pick

up the merchandise and sends truck drivers to do so, Doral verifies

that all clearances have been obtained and then provides the driver

with a receipt to sign. Doral then gives the driver a copy of the

receipt and a copy of the manifest, the latter of which "states all

the shipments that are inside the van." If the client opts to have

Doral deliver the merchandise, Doral hires "independent drivers"

and pays them based on the size of the load and the distance to the

destination. Cruz-Martínez said that Doral would pay a driver

approximately $70-$100 to deliver a load to Caguas, approximately

$200 to deliver a load to Ponce, and approximately $250 to deliver

a load to Mayaguez.

According to Cruz-Martínez, Industria de Sobres

Dominicanos, S.A. ("ISD"), a company in the Dominican Republic,

sent six shipments of wrapped pallets of reams of paper to Doral

between May and October of 2007, to be ultimately delivered to

another company, Industrial Paper, in Puerto Rico. Cruz-Martínez

testified that it is not Doral's company policy to unwrap such

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pallets to open them. Usually, ISD would pay for its shipment by

money order before pick-up, but on one occasion, Cruz-Martínez

said, "the truck drivers" may have paid during pick-up. Cruz-

Martínez stated that someone identifying himself as José Albarrán

("Albarrán") would call on behalf of ISD to provide instructions

about when the shipment would be sent and picked up, and to inquire

about the status of the clearance. Cruz-Martínez said she never

met Albarrán in person, having dealt with him only over the

telephone.

Cruz-Martínez testified that she was present at work for

four of the six shipments ISD sent to Doral for Industrial Paper,

and that appellants picked up all four of them. These shipments

were dated May 15, June 9, August 18, and October 6 as the dates of

departure from the Dominican Republic. Cruz-Martínez further

testified that Rivera-Ríos signed for three of the shipments but

that he twice indicated his first name was "Ángel" and the third

time indicated it was "Raúl." Cruz-Martínez stated that the

signature on the fourth receipt -- dated October 11, 2007 as the

pick-up date -- was difficult to read but that she thought that the

first name was "Raúl," "David," or "Daniel," and the last name was

"Meléndez-Pérez."

2. Vehicle Identification

On October 11, 2007, at approximately 1:30 p.m., Luis

Crespo ("Crespo"), an Alcohol, Tobacco, Firearms, and Explosives

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("ATF") Task Force Agent of the Puerto Rico Police Department, and

another ATF Task Force Agent received a telephone call from a

confidential source. The source reported that a white truck

located in Amelia Industrial Park behind R.J. Reynolds contained

"some kilos" of cocaine intended for shipment. The source further

reported that three people were planning to rob the truck of its

contents, and provided the names of these individuals and the

makes, models, and license plate numbers of the vehicles they would

be driving. The source did not provide Pérez-Meléndez's name.1

Crespo notified his superiors and then went to the designated area

with the purpose of finding the truck, which he did. Crespo

followed the truck from Amelia Industrial Park to the Plaza del

Mercado, the farmer's market area, of Caguas, where the truck

stopped and ATF agents, including Crespo, approached it. The ATF

agents told the truck driver, Pérez-Meléndez, and the only

passenger, Rivera-Ríos, to exit the vehicle.

3. Vehicle Search

At 3:15 p.m., Pérez-Meléndez provided handwritten consent

to ATF and Drug Enforcement Agency ("DEA") agents to search the

truck. Pérez-Meléndez wrote the consent in Crespo's presence and

signed it, along with a different ATF agent and a DEA agent. The

agents then searched the truck, in which they found what appeared

1
Crespo was not asked during trial whether the confidential
source provided Rivera-Ríos's name.

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to be six pallets of paper wrapped in plastic. After not detecting

any narcotics themselves, the agents called the K-9 Division of the

Puerto Rico Police Department, which sent a dog that was trained to

detect the presence of controlled substances. After being

commanded to search the contents of the truck, the dog indicated,

by scratching with his front paws, the possibility that drugs were

in some of the pallets.

Later that day, Crespo and other agents sought a search

warrant to search the truck, as identified by its license plate

number, model, color, and Vehicle Identification Number. During

that process, the truck was taken to the DEA's High Intensity Drug

Trafficking Area office in Hato Rey. After a judge authorized the

search warrant at 11:38 p.m. and until around 3:00 a.m. the

following day, Crespo and other agents unloaded and searched the

pallets of paper, discovering what amounted to forty kilograms of

cocaine. Expert witnesses for the government testified at trial

about the specific characteristics and value of the cocaine. One

expert stated that the shipment was cocaine hydrochloride, 70.4

percent pure, with a net weight of 20.02 kilograms. Another expert

stated that the value of the cocaine was, per kilogram, $16,000

wholesale or $40,000 retail, for a total street value of $1.6

million. Crespo and other agents were not able to determine the

cargo's destination either during their fourteen-hour intervention

or by the time Crespo testified on April 28, 2008.

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 4. Appellants' Questioning

Neither appellant testified at trial. As such, "no

question is raised about what inferences a jury may rationally draw

from its observation of [their] testimony." United States v.

Nieves-Castaño, 480 F.3d 597, 601 (1st Cir. 2007). However, both

appellants were questioned on October 11, 2007.

a. Pérez-Meléndez Questioning

During the intervention in Caguas, ATF Special Agent

Mayea Sumalla ("Sumalla") and ATF Special Agent Salez Núñez advised

Pérez-Meléndez of his Miranda rights, after which Pérez-Meléndez

signed a written waiver of those rights and submitted himself to

questioning while seated inside a government vehicle. Pérez-

Meléndez told the agents that he was a self-employed truck driver

who did not own the truck he was driving that day or any other

vehicle. Pérez-Meléndez stated he had known the passenger of the

truck for about three years but could not tell the agents his name,

although he said he believed it started with the letter "A."

Pérez-Meléndez then consented to a search of his cell phone, which

revealed calls from someone named "Ángelo," whom Pérez-Meléndez

identified as Rivera-Ríos. Pérez-Meléndez reported that he received

a telephone call from Rivera-Ríos that morning at 9:00 a.m.,

during which Rivera-Ríos asked Pérez-Meléndez if he could work as

a truck driver that day. Between 2:00 p.m. and 3:00 p.m., Pérez-

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Meléndez had a friend drop him off at a gas station in the Cataño

area, where he met Rivera-Ríos.

According to Sumalla, Pérez-Meléndez contradicted himself

on at least three issues. First, Pérez-Meléndez offered

inconsistent statements "several times" about whether he or Rivera-

Ríos rented the truck. At one point during the questioning, Pérez-

Meléndez said that Rivera-Ríos had rented the truck, and was

already waiting for him with it when they met at the gas station.

At another point, Pérez-Meléndez stated that he himself had rented

the truck, from a friend.

Second, Pérez-Meléndez offered inconsistent statements

"several times" about who provided instructions to him on where to

drive and what to do. At one point during the questioning, Pérez-

Meléndez stated that Rivera-Ríos gave him instructions the entire

time. Rivera-Ríos allegedly told him the specific warehouse to

which to drive, where a warehouse employee loaded onto the truck

six pallets of what Pérez-Meléndez said he believed to be reams of

paper, and after which Rivera-Ríos told him to drive on an

expressway and stop at a second warehouse, in Caguas. At another

point, Pérez-Meléndez stated that, once he and Rivera-Ríos drove

onto the expressway between Cataño and Caguas, Pérez-Meléndez began

receiving telephone calls from what sounded like a male person

whose identity Pérez-Meléndez did not know and whom Pérez-Meléndez

did not question but from whom Pérez-Meléndez had received calls

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"in the past when he would do similar jobs." Pérez-Meléndez would

do "whatever the caller would tell him to do." At still another

point, Pérez-Meléndez stated that perhaps it was Rivera-Ríos who

was accepting telephone calls from the unidentified person and that

the instructions Pérez-Meléndez received were indirectly issued to

him from the caller through Rivera-Ríos.

Third, Pérez-Meléndez offered inconsistent statements

about the extent to which he knew and had worked with Rivera-Ríos,

and about their professional relationship. At one point during the

questioning, Pérez-Meléndez stated that he had "done jobs" for

Rivera-Ríos in the past. Rivera-Ríos would pay Pérez-Meléndez $100

for those assignments, either before or at the conclusion of the

job. By the time of the interview, Pérez-Meléndez reported, he had

not yet been paid for the job that day. Later in the interview,

Pérez-Meléndez stated that October 11, 2007 was the first time he

had worked for Rivera-Ríos. At still another point in the

interview, Pérez-Meléndez described Rivera-Ríos not as the former's

employer but as his assistant.

b. Rivera-Ríos Questioning

ATF Task Force Agent Marcos Rodríguez-Mercado

("Rodríguez-Mercado") was among the agents who followed and then

arrested Pérez-Meléndez and Rivera-Ríos on October 11, 2007. After

Rodríguez-Mercado read Rivera-Ríos his Miranda rights, Rivera-Ríos

signed, at 7:00 p.m. in the ATF office, a written waiver of those

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rights and submitted himself to questioning. At trial, Rodríguez-

Mercado testified to what Rivera-Ríos said during that interview,

which Rodríguez-Mercado conducted alone. Rivera-Ríos stated that

the owner of the truck, Roberto Morales ("Morales"), was a "friend"

of his. Rivera-Ríos also reported that another "friend," whom

Rivera-Ríos said he could identify only as "David," called him to

make the delivery that day and that Rivera-Ríos had performed a

delivery for the same person once before. During that previous

delivery, Rivera-Ríos and "David" met in person in Trujillo Alto,

transferred some merchandise between vehicles, and Rivera-Ríos was

paid $400. Concerning the delivery on the date of the interview,

Rivera-Ríos said that "David" instructed him to go to the Amelia

Industrial Park, where company employees loaded the merchandise

onto the truck. Rivera-Ríos said he did "[w]hatever they tell

him."

DEA Special Agent Eduardo Álamo-Ramos ("Álamo-Ramos") was

among the DEA agents whom the ATF agents called to Caguas to assist

them on October 11, 2007. Álamo-Ramos questioned Rivera-Ríos after

Rodríguez-Mercado finished his own interview with the appellant.

At trial, Álamo-Ramos testified to what Rivera-Ríos said during

that interview. Rivera-Ríos reportedly said that on October 9,

2007, at approximately 10:00 p.m., he received a telephone call

from a male person whose name Rivera-Ríos did not know. That male

caller asked Rivera-Ríos if he was available to deliver a shipment

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to an unspecified location in Caguas. Rivera-Ríos accepted the

offer and then called Morales to ask if he could borrow his truck

to perform the delivery. Because Rivera-Ríos's truck-driving

license had expired, he then contacted Pérez-Meléndez to ask him to

drive the truck. Pérez-Meléndez agreed. On October 11, 2007,

appellants traveled to Doral, picked up the paper pallets, and

drove them to a warehouse near the farmer's market area in Caguas,

"where they were to receive final instructions on where the truck

was to be delivered." When asked whether Rivera-Ríos had performed

any other deliveries for the unidentified male caller, Rivera-Ríos

responded that he had, on a single occasion, and related similar

details about the location, transfer, and payment as he had to

Rodríguez-Mercado, adding that that delivery occurred in either

July or August of 2007. At no point during the interview with

Álamo-Ramos did Rivera-Ríos produce paperwork for either the

July/August 2007 or October 2007 shipments.

B. Procedural History

1. 2007 Indictment and Relevant Statutes

On October 17, 2007,2 a grand jury sitting in the U.S.

District Court for the District of Puerto Rico charged appellants

with one count of "aiding and abetting each other . . . [to]

2
Pérez-Meléndez's appellate brief inaccurately states that the
indictment referred to the date on which the charged offense
occurred as being "on or about October 17, 2007," when it was
actually "[o]n or about October 11, 2007."

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knowingly and intentionally possess with intent to distribute five

(5) kilograms or more of a mixture or substance containing a

detectible amount of cocaine, a Schedule II Narcotic Drug

Controlled Substance" in violation of 21 U.S.C. §§ 841(a)(1)3 and

(b)(1)(A)4 and 18 U.S.C. § 2.5

2. 2008 Trial and Rule 29 Motion for Acquittal

A jury trial was held from April 28 to 30, 2008.6 At the

close of the government's case, Pérez-Meléndez's attorney moved for

a judgment of acquittal under Rule 29 of the Federal Rules of

Criminal Procedure ("Rule 29 motion").7 His attorney argued that

3
21 U.S.C. § 841(a)(1) provides that, "[e]xcept as authorized by
this title, it shall be unlawful for any person knowingly or
intentionally to manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a controlled
substance . . . ."
4
21 U.S.C. § 841(b)(1)(A) provides penalties for violations of
§ 841(a).
5
18 U.S.C. § 2 provides:

(a) Whoever commits an offense against the United States
or aids, abets, counsels, commands, induces, or procures
its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if
directly performed by him or another would be an offense
against the United States, is punishable as a principal."
6
Pérez-Meléndez's appellate brief inaccurately states the year of
the trial as "2007."
7
Rule 29 of the Federal Rules of Criminal Procedure provides, in
relevant part:

(a) Before Submission to the Jury.

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the government did not satisfy its burden of proving "beyond a

reasonable doubt each and every element of the crime charged"

because it had "failed to present any evidence that [Pérez-

Meléndez] knowingly possessed narcotics." The district judge

reserved decision on the motion. After a recess, defense counsel

declined to present any evidence and, instead, renewed their Rule

29 motion. The district court again reserved decision on the

motion.

3. 2008 Jury Instructions and Conviction

The district court instructed the jury that, in order to

convict appellants of the charged crime, the government had to

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. The court may on its own consider whether
the evidence is insufficient to sustain a conviction. If
the court denies a motion for a judgment of acquittal at
the close of the government's evidence, the defendant may
offer evidence without having reserved the right to do
so.

(b) Reserving Decision.

The court may reserve decision on the motion, proceed
with the trial (where the motion is made before the close
of all the evidence), submit the case to the jury, and
decide the motion either before the jury returns a
verdict or after it returns a verdict of guilty or is
discharged without having returned a verdict. If the
court reserves decision, it must decide the motion on the
basis of the evidence at the time the ruling was
reserved.

Fed. R. Crim. P. 29(a), (b).

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prove beyond a reasonable doubt the following three elements: (1)

"First, that the Defendants on that date possessed a mixture

containing a detectable amount of cocaine, either actually or

constructively"; (2) "[s]econd, that they did so with a specific

intent to distribute the cocaine over which they had actual or

constructive possession;" and (3) "third, that they did so

knowingly and intentionally." The court further instructed the

jury that, in order to establish aiding and abetting liability, the

government had to prove beyond a reasonable doubt the following two

elements: (1) "one, someone committed the charged crime (in this

case, one of the two defendants)"; and (2) "two, that the other

Defendant willfully associated himself in some way with the crime

and willfully participated in it as he would in something he wished

to bring about." The court explained that

[t]his means that the Government must prove
that one or the other Defendant consciously
shared the other Defendant's knowledge of the
underlying criminal act and intended to help
him. The Defendant need not perform the
underlying criminal act, be present when it is
performed, or be aware of the details of its
execution to be guilty of aiding and abetting.
But a general suspicion that an unlawful act
may occur or that something criminal is
happening is not enough. Mere presence at the
scene of a crime and knowledge that a crime is
being committed are also not sufficient to
establish aiding and abetting.

During a charging conference, defense counsel for Pérez-

Meléndez objected to the district court's plan to issue a jury

instruction concerning the willful blindness doctrine.

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Nevertheless, later during the trial, the presiding judge issued

the following jury instruction, concerning "'Willful Blindness' as

a way to satisfy 'Knowingly'":

In deciding whether Daniel Pérez-Meléndez and
Ángel Rivera-Ríos acted knowingly, you may
infer that they had knowledge of a fact if you
find that they deliberately closed their eyes
to a fact that otherwise would have been
obvious to them. In order to infer knowledge,
you must find that two things have been
established. First, that Daniel Pérez-
Meléndez and Ángel Rivera-Ríos were aware of a
high probability that illegal drugs were
packaged within the pallets. Second, that
Daniel Pérez-Meléndez and Ángel Rivera-Ríos
consciously and deliberately avoided learning
of that fact. That is to say, Daniel Pérez-
Meléndez and Ángel Rivera-Ríos willfully made
themselves blind to that fact. It is entirely
up to you to determine whether they
deliberately closed their eyes to the fact
and, if so, what inference, if any, should be
drawn. However, it is important to bear in
mind that mere negligence or mistake in
failing to learn the fact is not sufficient.
There must be a deliberate effort to remain
ignorant of the fact.

Counsel for Pérez-Meléndez then reminded the district

court judge of her objection to this jury instruction during the

charging conference. The judge denied the objection. Because the

charging conference had not been on the record, the judge

instructed counsel for Pérez-Meléndez to put the objection in

writing.

On April 30, 2008, the jury found appellants guilty of

the indicted charge.

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 4. 2008 Pérez-Meléndez's Motion and Rivera-
Ríos's Joinder

On May 6, 2008, Pérez-Meléndez filed a motion for a

judgment of acquittal and objection to the willful blindness

instruction. The same day, Rivera-Ríos filed a motion, which was

granted, to join Pérez-Meléndez's motion.

Regarding the motion for a judgment of acquittal, Pérez-

Meléndez argued that the government had fallen short of its burden

of proving beyond a reasonable doubt each and every element of the

crime because it had not provided any evidence of his knowing

affirmative or willfully blind participation in the illegal

activity or that he had specific knowledge of the presence of

narcotics.

Regarding the objection to the willful blindness

instruction, Pérez-Meléndez argued that the requirements for giving

the instruction were not satisfied. To establish the requirements,

Pérez-Meléndez cited our ruling in United States v. Gabriele, which

found that

A willful blindness instruction is warranted
if (1) the defendant claims lack of knowledge;
(2) the evidence would support an inference
that the defendant consciously engaged in a
course of deliberate ignorance; and (3) the
proposed instruction, as a whole, could not
lead the jury to conclude that an inference of
knowledge was mandatory.

63 F.3d 61, 66 (1st Cir. 1995). Pérez-Meléndez argued that the

instruction was not warranted because the government failed to

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satisfy the second requirement, that "the evidence would support an

inference that [Pérez-Meléndez] consciously engaged in a course of

deliberate ignorance."

5. 2008 United States' Motion

On May 22, 2008, the United States filed a motion in

opposition. The United States argued that evidence presented at

trial, specifically the testimony of law enforcement agents and

appellants' own statements not made at trial, demonstrated

appellants' knowledge as to what they were transporting in the

truck they were riding in on October 11, 2007. The United States

argued that the jury could have found appellants' knowledge based

on either an actual knowledge or willful blindness theory. The

evidence to which the United States pointed was the following: the

truck was carrying narcotics, appellants occupied the truck while

the cocaine was inside, and it had been proven that appellants had

made similar deliveries "four" times before.8 The United States

concluded that Pérez-Meléndez's motion should be denied because,

viewing the evidence in the required light most favorable to the

prosecution, each of the elements of the charged offense was proven

beyond a reasonable doubt.

8
The government misstates the amount of times for which evidence
was presented that appellants had made similar deliveries before
October 11, 2007. It was three. See supra, Part I(A)(1).

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 6. 2008 District Court Opinion and Order,
Sentencing, and Appeal

On August 8, 2008, the district court denied appellants'

motion for judgment of acquittal. Pérez-Meléndez, 571 F. Supp. 2d

at 329. The district court determined that "the government

provided sufficient evidence, including reasonable inferences, that

when considered as a whole, warrant the jury's conclusion that the

defendants were guilty beyond a reasonable doubt." Id. at 329.

The district court also found the willful blindness instruction to

the jury to have been proper. Id. On August 21, 2008, the

district court sentenced each of the appellants to 120 months of

imprisonment, supervised release for a term of five years, and a

monetary penalty of $100.

On August 22, 2008, Pérez-Meléndez filed a timely notice

of appeal to this court. Three days later, Rivera-Ríos also filed

a timely notice of appeal to this court. Appellants contend that

the district court erred in two matters. First, they argue, the

district court erred in denying appellants' motion for a judgment

of acquittal because there was insufficient evidence to sustain the

jury verdict. Second, they claim, the district court erred in

issuing a willful blindness instruction to the jury despite

appellants' objection because the evidence the government presented

at trial did not support an inference that appellants consciously

engaged in a course of deliberate ignorance, one of the three

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requirements to warrant such an instruction. We begin our

discussion below with appellants' first claim.

II. Discussion

A. Sufficiency of the Evidence

Appellants argue that the district court committed error

in denying the Rule 29 motion Pérez-Meléndez filed and which

Rivera-Ríos joined. We agree. As discussed below, we reverse the

district court's ruling.

1. Standard / Scope of Review

We review the denial of a Rule 29 motion for judgment of

acquittal de novo. United States v. Troy, 583 F.3d 20, 24 (1st

Cir. 2009). In so doing,

we examine the evidence, both direct and
circumstantial, in the light most favorable to
the jury's verdict. We do not assess the
credibility of a witness, as that is a role
reserved for the jury. Nor need we be
convinced that the government succeeded in
eliminating every possible theory consistent
with the defendant's innocence. Rather, we
must decide whether that evidence, including
all plausible inferences drawn therefrom,
would allow a rational factfinder to conclude
beyond a reasonable doubt that the defendant
committed the charged crime.

Id. (emphasis added) (internal citations and quotation marks

omitted). "If a reasonable jury could have found that the

government had proven each element of the crime beyond a reasonable

doubt, we will affirm the conviction." United States v. Angulo-

Hernández, 565 F.3d 2, 7 (1st Cir. 2009) (emphasis added). "We

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have described this standard of review as 'formidable,' and

defendants challenging convictions for insufficiency of evidence

face an uphill battle on appeal." United States v. Lipscomb, 539

F.3d 32, 40 (1st Cir. 2008) (internal citation, quotation marks,

and brackets omitted). We have repeatedly asserted, however, that,

"despite the prosecution-friendly overtones of the standard of

review, appellate oversight of sufficiency challenges is not an

empty ritual." United States v. De La Cruz Paulino, 61 F.3d 986,

999 n.11 (1st Cir. 1995).

2. Legal Framework

We have previously found that,

[i]n order to establish aiding and abetting
liability, the government must prove, first,
that the principal committed the substantive
offense charged, and second, that the
accomplice became associated with the
principal's criminal endeavor and took part in
it, intending to assure its success. While we
have acknowledged that the challenge in aiding
and abetting cases is framing the intent
element for the jury, we have explicitly
declined to require the shared intent language
found in some of our opinions and in the First
Circuit Pattern Jury Instructions. Instead,
we have observed that a showing that the
defendant consciously shared the principal's
knowledge of the underlying criminal act, and
intended to help him is one way for the
government to fulfill its burden to show that
a defendant participated in the venture and
sought by his actions to make it succeed.

United States v. González, 570 F.3d 16, 28-29 (1st Cir. 2009)

(emphasis added) (internal citations and quotation marks omitted).

"[M]ere association with the principal, or mere presence at the

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scene of a crime, even when combined with knowledge that a crime

will be committed, is not sufficient to establish aiding and

abetting liability." United States v. Medina-Román, 376 F.3d 1, 4

(1st Cir. 2004). Rather, "proof of sufficient participation in the

crime, as well as knowledge of it, is required to convict . . . .

[W]here, as here, a defendant actively participates in a venture,

but denies any knowledge of the venture's illegal nature, the

government must adequately prove knowledge, more so than

participation." United States v. Guerrero, 114 F.3d 332, 342 (1st

Cir. 1997) (emphasis added).

Willful blindness serves as an alternate theory on which

the government may prove knowledge. See, e.g., United States v.

Griffin, 524 F.3d 71, 78 (1st Cir. 2008) ("Evidence presented at

trial may support either a finding of actual knowledge or a finding

of willful blindness."); Guerrero, 114 F.3d at 343 (holding that

evidence supports "a finding of positive knowledge, or at least

deliberate ignorance"). The willful blindness instruction given in

this case permitted the jury to infer knowledge if the jury found

that the government has established, beyond a reasonable doubt,

that the defendants (1) "were aware of a high probability that

illegal drugs were packaged within the pallets," and (2)

"consciously and deliberately avoided learning of that fact." App.

10; see United States v. Lizardo, 445 F.3d 73, 86 (1st Cir. 2006)

(approving nearly identical instruction). Such an instruction

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"allows the jury to impute knowledge to [a defendant] of what

should be obvious to him, if it found, beyond a reasonable doubt,

a conscious purpose to avoid enlightenment." United States v. St.

Michael's Credit Union, 880 F.2d 579, 585 (1st Cir. 1989) (internal

quotation marks and citation omitted).

3. Analysis

a. The Government's Task

To convict appellants under 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A) and 18 U.S.C. § 2, the government had to prove beyond a

reasonable doubt that appellants knew or were willfully blind to

the fact that the pallets of reams of paper they transported

contained a controlled substance. The government need not have

proved beyond a reasonable doubt, however, that appellants knew or

were willfully blind to the fact that the controlled substance was

cocaine specifically. See United States v. Dowdell, No. 08-1855,

2010 U.S. App. LEXIS 2859, at *49 (1st Cir. Feb. 12, 2010) (where

defendant was prosecuted under 21 U.S.C. § 841(a)(1), "which

prohibits distribution of any controlled substance regardless of

type, drug identity had no bearing on the substance of the charge")

(emphasis in original); United States v. Azubike (Azubike II), 564

F.3d 59, 61, 64, 66 (1st Cir. 2009) (government had to prove beyond

a reasonable doubt that a briefcase contained a controlled

substance where defendant was charged specifically with possessing

heroin); United States v. Azubike (Azubike I), 504 F.3d 30, 31,

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35, 36-38 (1st Cir. 2007) (same). As will be discussed below, the

government failed to meet its burden.

b. The Circumstantial Evidence and the
District Court's Inferences Drawn Therefrom

The government relied upon circumstantial evidence to

prove appellants' knowing participation or willful blindness in the

transportation of a controlled substance. The circumstantial

evidence the government presented was: (1) inconsistent statements

each appellant made, (2) inconsistent statements between appellants

and Cruz-Martínez, and (3) appellants' statements or omissions

concerning particular aspects of their delivery on October 11,

2007. Taken as a whole, the government argued, "[t]he evidence at

trial showed the defendants knowingly and intentionally possessed,

either actually or constructively, a controlled substance with the

specific intent to distribute. The evidence supported a finding of

either actual knowledge or willful blindness for the crime's intent

element." Reply Br. at 12-13.

"In circumstantial cases such as this one, the evidence

is sufficient to convict if it adequately supports the requisite

two-step inference: (1) that the vessel was engaged in obviously

illegal activity and (2) that each defendant was ready to assist in

the criminal enterprise." Guerrero, 114 F.3d at 342. As we

discuss below, the circumstantial evidence was not sufficient to

convict because it did not adequately support the inference that

appellants either actually knew about or were willfully blind to

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the controlled substances they were transporting within the pallets

of reams of paper.

Appellants contradicted themselves on multiple issues.

Pérez-Meléndez, when questioned on October 11, 2007, offered

inconsistent statements about three matters: (1) whether he or

Rivera-Ríos rented the truck, (2) who provided instructions to him

on where to drive and what to do, and (3) the extent to which he

knew and had worked with Rivera-Ríos, and about their professional

relationship. Rivera-Ríos also contradicted himself when

questioned on the same date. When speaking to ATF Task Force Agent

Rodríguez-Mercado and DEA Special Agent Álamo-Ramos, Rivera-Ríos

alternated between saying that the person who issued instructions

to him that day was his friend, "David," and an unidentified male

caller. The district court concluded that "[t]he inconsistencies

in defendants' recollections of events when speaking to law

enforcement raise the inference that they lied to conceal their

knowledge of the illegal nature of the activity in which they were

involved." Pérez-Meléndez, 571 F. Supp. 2d at 328.

Not only did appellants contradict themselves, but

appellants contradicted a third party, in that Pérez-Meléndez

contradicted Cruz-Martínez at one point during his questioning on

at least one issue. Cruz-Martínez's testimony at trial conflicted

with appellants' statements during their questioning on October 11,

2007. Cruz-Martínez testified that appellants made at least three

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other pickups for ISD at Doral. During their questioning, Pérez-

Meléndez alternated between stating he worked with Rivera-Ríos

multiple times and just once before, and Rivera-Ríos stated that he

had only once before performed a delivery for the same male caller,

whom he alternately said was unidentified or identified only as

"David." The district court concluded that "[t]his not only shows

prior participation by the defendants in criminal endeavors, but it

also raises the inference that the defendants prevaricated

concerning their prior involvement." Id.

The district court makes much ado about what it refers to

as appellants' "explanation, or more succinctly, their lack of

explanation, to law enforcement of certain details concerning the

delivery job." Id. First, appellants claimed that, when they

accepted and initiated the delivery on October 11, 2007, they did

not know their precise final destination other than that it was in

Caguas. Appellants claimed to have received more specific

instructions once en route. Second, appellants may not have known

who, exactly, hired them. Pérez-Meléndez said it was either

Rivera-Ríos or an unidentified male caller. Rivera-Ríos said it

was either an unidentified male caller or a male caller identified

only as "David." The district court noted that Rivera-Ríos stated

he had done another job for the same client, which involved

transferring merchandise from one truck to another. Id. Third,

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appellants did not produce documentation about the October 11, 2007

delivery. The district court thus concluded the following:

All of these details raise additional
questions such as who accepts jobs from an
unknown individual to deliver to an unknown
location? Another question is why hire a
truck and driver to deliver a shipment if the
shipment is only to be delivered to another
truck rather than a fixed location? These
questions beg for answers. The implausible
nature of the delivery jobs, as described by
defendants to law enforcement, suggests that
defendants closed their eyes to the criminal
activity in which they were involved. It also
allows the inference that defendants knew they
were involved in transporting drugs because a
legitimate business would not typically act as
the defendants did or as their mysterious
client did in this case.

Id. (citations omitted).

c. Our Analysis of the Circumstantial
Evidence

Some of the inferences the district court draws are

certainly plausible, but their significance is limited. A rational

factfinder could have drawn a plausible inference that appellants

knew they were involved in an illegal activity because appellants'

statements and omissions concerning their job and the manner in

which they were hired for and performed that work earlier the same

day are suspicious. However, we find that a rational factfinder

could not have concluded beyond a reasonable doubt that appellants

committed the charged crime because reasonable doubt should have

remained that (1) appellants knew that the precise nature of that

activity involved controlled substances generally or cocaine

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specifically and (2) appellants were aware of a high probability

that illegal drugs were packaged within the pallets and consciously

and deliberately avoided learning of that fact.

As we have previously observed, "knowledge that one is

guilty of some crime is not the same as knowledge that one is

guilty of the crime charged." Nieves-Castaño, 480 F.3d at 601

(emphasis in original). A significant body of case law from other

circuits exists in which insufficiency of evidence was found where

a defendant may have known he was participating in an illegal

activity but there was little or no evidence to suggest that the

defendant knew that the activity involved drugs specifically, and

we adopt that position here. See, e.g., United States v. Cruz, 363

F.3d 187, 189, 198 (2d Cir. 2004) ("[T]he government failed to

introduce sufficient evidence such that a reasonable trier of fact

could find [defendant] guilty beyond a reasonable doubt" of aiding

and abetting a drug-related crime because "[p]roof that the

defendant knew that some crime would be committed is not enough.")

(emphasis in original); United States v. Cartwright, 359 F.3d 281,

283, 286 (3d Cir. 2004) ("[T]he evidence adduced at trial did not

support an inference that [defendant] knew he was participating in

a transaction that involved a controlled substance, as opposed to

some other form of contraband . . . . Although [the] evidence may

be sufficient to prove that [defendant] knew he was participating

in some sort of illegal transaction, these facts nonetheless are

-27-
insufficient to prove beyond a reasonable doubt that [defendant]

knew the transaction involved drugs."); United States v. Fitz, 317

F.3d 878, 883 (8th Cir. 2003) (reversing jury verdict on the basis

of insufficient evidence where the defendant may have been aware a

transaction was illegitimate but there was no evidence that he was

a knowing participant in the drug conspiracy.); United States v.

Idowu, 157 F.3d 265, 266 (3d Cir. 1998) ("[E]ven 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.")

(internal quotation marks omitted); United States v. Thomas, 114

F.3d 403, 405-06 (3d Cir. 1997) (reversing jury verdict on the

basis of insufficient evidence where the defendant "knew that he

was somehow involved in an illicit activity" but there was no

evidence that he "knew that drugs were involved."); United States

v. Wexler, 838 F.2d 88, 91 (3d Cir. 1988) (reversing jury verdict

on the basis of insufficient evidence, despite "ample

circumstantial evidence . . . from which the jury could have

concluded that [the defendant] was involved in a conspiracy with

co-defendants . . . and that the conspiracy involved movement of

the cargo of the truck . . . [but] missing is any evidence that

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[the defendant] knew that a controlled substance was . . . [in the]

truck.").

While over-emphasizing the factors mentioned above, the

district court under-emphasized other factors in assessing whether

the evidence was sufficient to permit a jury to conclude, beyond a

reasonable doubt, that appellants knew or were willfully blind to

the fact that the pallets of reams of paper they transported

contained a controlled substance. Specifically, the district court

downplays the significance of the cocaine's packaging and the fee

appellants received for transporting the pallets, stating: "The

fact that the drugs were artfully concealed within reams of paper

and that the plaintiffs told law enforcement that they were not

paid an unusually excessive amount in the past (between $100 and

$400) are not outcome determinative." Pérez-Meléndez, 571 F. Supp.

2d at 329. While we agree these factors are not "outcome

determinative," we also find that, partly because of them, a

rational factfinder should have retained reasonable doubt that

appellants knew or were willfully blind to the fact that the

pallets contained a controlled substance. The cocaine was

concealed so well in packaging Doral left unwrapped that a team of

law enforcement agents could not detect it themselves and needed a

trained canine to do so. Although "[w]e have eschewed . . . a

myopic inquiry into whether one particular indication of knowledge

(such as a smell) did, or did not, exist[,] . . . we turn to other

-29-
factors to determine whether or not the government sufficiently

established the [defendants'] knowledge of the presence of a

controlled substance." Guerrero, 114 F.3d at 342 (citations and

internal quotations omitted). One such factor is "the absence of

a legitimate purpose for the voyage." Id. Here, however, a

legitimate purpose for the voyage was present, in that appellants

were transporting what appeared to be pallets of reams of paper to

what appeared to be a paper company. See United States v. Mehtala,

578 F.2d 6, 10 (1st Cir. 1978) (finding no criminal participation

given that "the small packages of drugs were easily hidden" and the

absence of evidence indicating that the defendant "embarked on the

voyage for any purpose other than a pleasure cruise"). Moreover,

the $100 fee that Pérez-Meléndez said he received for similar jobs

as the one on October 11, 2007 was in the same range as what Doral

would pay independent contractors it would hire for such

deliveries. The $400 fee that Rivera-Ríos said he received for a

similar job was four times what Doral would pay independent

contractors, but not necessarily excessive.

There were other factors the district court did not

identify that should have further left a rational factfinder with

reasonable doubt that appellants knew or were willfully blind to

the fact that the pallets contained a controlled substance. Doral,

an authorized company in Puerto Rico engaged in the lawful business

of transporting shipments from, among other places, the Dominican

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Republic and which was not charged with any wrongdoing in this

case, provided appellants with documentation indicating (1) that

the Customs and Treasury departments had provided clearances on the

shipment and (2) what that shipment (supposedly) contained. The

truck appellants drove was a common vehicle unequipped with

weaponry or sophisticated technology. Cf. Guerrero, 114 F.3d at

337 (where, despite no presence of weapons, presence of

sophisticated navigational equipment suggested transportation of

contraband). Appellants drove the vehicle during the daytime

through an industrial zone, where such commercial traffic was

common, having picked up its shipment from a shipping company no

party claims was illegitimate. There was no evidence in the record

indicating that appellants owned, previously possessed or

controlled, or were otherwise involved in packing the pallets of

reams of paper. The confidential source did not reportedly

identify either appellant when the source called ATF agents and

provided the agents with other details about a planned robbery. To

be clear, it is not the presence of these factors alone that should

leave a rational factfinder with reasonable doubt. Instead, it is

the presence of these factors, together with the absence of any

evidence supporting a finding of knowledge or willful blindness to

the transportation of controlled substances, that supports our

conclusion that no rational jury could find knowledge or willful

blindness beyond a reasonable doubt.

-31-
 Although the government is allowed to prove by

circumstantial evidence that appellants knew or were willfully

blind to the fact that the pallets in question contained drugs,

here it only succeeded in establishing, at most, that appellants

knew or were willfully blind to the fact that something illegal was

afoot.9 Any conclusion by the jury beyond that, specifically

imputing to appellants knowledge of or willful blindness to the

contents of the pallets, was the product of pure speculation. This

is particularly true when one considers that the burden is proof

beyond a reasonable doubt. See Idowu, 157 F.3d at 270 (holding

that there was insufficient evidence that the object of the

transaction was drugs and that "no reasonable jury could have

concluded that the government had met its burden of proof, which

requires proof beyond a reasonable doubt"); United States v. Olivo-

Infante, 938 F.2d 1406, 1409 (1st Cir. 1991).

The evidence the government presented in this case would

have been just as consistent with that of a case involving the

smuggling of contraband other than a controlled substance. This

contraband could plausibly have been other goods, such as weapons,

stolen jewels or computer chips, counterfeit currency, diamonds and

9
Judge Torruella wishes to note that he disagrees with the other
members of the panel on the issue of whether the jury could have
found, beyond a reasonable doubt, that appellants knew about or
were willfully blind to any illegality. In Judge Torruella's
opinion, the evidence does not establish, beyond a reasonable
doubt, that appellants knew about or were willfully blind to such
criminal activity.

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other precious minerals from Africa, cigars from Cuba, fuel, or

child pornography. See, e.g., United States v. José, 499 F.3d 105,

106-07 (1st Cir. 2007) (concerning defendant charged with

attempting to smuggle cash while departing from Luis Muñoz Marín

International Airport in Puerto Rico); Rivera-Jiménez v. Pierluisi,

362 F.3d 87, 91 (1st Cir. 2004) (concerning plaintiff law

enforcement agent assigned to investigate weapons smuggling in

Puerto Rico); United States v. Maravilla, 907 F.2d 216, 222 (1st

Cir. 1990) (concerning defendant who was reportedly involved in

smuggling gold statues through an airport in Puerto Rico); United

States v. Lespier, 601 F.2d 22, 24 (1st Cir. 1979) (concerning

defendant charged with smuggling cases of liquor aboard a boat off

of Puerto Rico). Here the government presented no evidence at

trial that could have led a reasonable jury to find beyond a

reasonable doubt that (1) appellants knew whatever contraband may

have been present involved a controlled substance or (2) appellants

were aware of a high probability that illegal drugs were packaged

within the pallets and consciously and deliberately avoided

learning of that fact.

This case can be distinguished from other recent cases in

which we have found that the evidence was sufficient to uphold a

jury's verdict where defendants were charged with similar crimes.

For example, in Azubike I and Azubike II, we ruled that there was

sufficient evidence to convict the defendant for conspiring to

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distribute heroin and possessing heroin with intent to distribute,

in violation of 21 U.S.C. §§ 841(a)(1), 846, on the basis that he

knew a briefcase he picked up from another individual contained

drugs. 564 F.3d at 69; 504 F.3d at 42. In that case, which we

acknowledged was "close," Azubike I, 504 F.3d at 36, we relied on

the following facts, among others, to draw inferences that

supported the jury's verdict. First, a recording of a telephone

conversation between the defendant and the other individual

indicated that the defendant emphatically resisted discussing the

nature of the "stuff" on the telephone, suggesting that the

defendant knew the contents of the briefcase and that they should

not be discussed over the telephone. Azubike I, 504 F.3d at 37;

Azubike II, 564 F.3d at 64. Second, based in part on a log of 178

telephone calls among them within a one-and-a-half-month period,

the defendant apparently was closely associated with two

individuals who had a direct relationship with the source of the

drugs, further suggesting that the defendant knew the contents of

the briefcase. Azubike II, 564 F.3d at 63-64. Here, however, we

have no such similar circumstances. There is no evidence that

appellants themselves resisted or otherwise tried to conceal the

true nature of the shipment. While Cruz-Martínez testified that

appellants worked together at least four times in 2007, and Pérez-

Meléndez at one point stated he had known Rivera-Ríos for three

years, neither of the appellants appears to have had a close

-34-
relationship with their overall employer, who was either unknown to

appellants or was known to Rivera-Ríos as someone named "David,"

for whom Rivera-Ríos said he had worked only once before, a claim

about which there is no contradictory evidence in the record.

We thus find that there is insufficient evidence that

appellants knew or were willfully blind to the fact that controlled

substances were hidden in the pallets of reams of paper. We thus

find that the evidence was not sufficient to convict appellants

because it did not adequately support the requisite two-step

inference that (1) the truck Pérez-Meléndez was driving and in

which Rivera-Ríos was a passenger was engaged in the obvious

transportation of a controlled substance or (2) that each appellant

was ready to assist in that criminal enterprise. The evidence

would not allow a rational factfinder to conclude beyond a

reasonable doubt that appellants committed the charged crime.

Thus, because the government failed to prove an essential element

of the crime charged against appellants by proof beyond a

reasonable doubt -- that appellants knowingly possessed cocaine --

the Constitution mandates acquittal on the charge against both

appellants. See In re Winship, 397 U.S. 358, 364 (1970) ("[W]e

explicitly hold that the Due Process Clause protects the accused

against conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is

charged.").

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 B. Willful Blindness Jury Instruction

Having found the evidence insufficient to sustain the

jury verdict against appellants, we need not deal with appellants'

argument concerning the adequacy of the willful blindness jury

instruction. See United States v. Carucci, 364 F.3d 339, 340, 347

n.8 (1st Cir. 2004) (finding that the court need not address a

defendant's challenge to the trial court's willful blindness

instruction to the jury where the court held that the evidence

against the defendant was insufficient to establish criminal

liability under the relevant statute).

III. Conclusion

In light of the specific facts in this case, we conclude

that there was insufficient evidence of appellants' criminal

scienter that they were transporting five kilograms or more of

cocaine specifically or a controlled substance generally. We

therefore hold that no reasonable jury could have concluded that

the government had met its burden of proof, which requires proof

beyond a reasonable doubt. Accordingly, the judgment of the

district court will be reversed. Appellants' convictions and

sentences are vacated and the case is remanded for proceedings

consistent with this opinion.

Reversed, Vacated and Remanded.

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