Filed: Oct. 16, 2000
Latest Update: Feb. 21, 2020
Summary: with whom Guillermo Gil, United States Attorney, and Jorge E., Vega-Pacheco, Assistant United States Attorney, were on brief appellate court must canvass the evidence (direct and Because this appeal raises issues peculiar to, Hernández, we have chosen to decide it in a separate opinion.
[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1002
UNITED STATES OF AMERICA,
Appellee,
v.
LUIS A. HERNANDEZ VEGA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Raymond L. Sanchez Maceira, by appointment of the court, for
appellant.
Jacabed Rodriguez-Coss, Assistant United States Attorney,
with whom Guillermo Gil, United States Attorney, and Jorge E.
Vega-Pacheco, Assistant United States Attorney, were on brief,
for appellee.
October 11, 2000
SELYA, Circuit Judge. On April 10, 1997, a federal
grand jury sitting in the District of Puerto Rico returned a
three-count indictment against a number of individuals. In
Count 2 of the indictment, the grand jury charged several
persons, including Luis A. Hernández Vega (Hernández), with
conspiring to distribute controlled substances in violation of
21 U.S.C. § 846. Following a five-week trial, a petit jury
found Hernández guilty as charged. The district court
thereafter sentenced Hernández to serve 235 months in prison.
Hernández appeals.1 Having carefully reviewed the record, we
affirm.
On appeal, Hernández's basic argument entails a
challenge to the sufficiency of the evidence. In particular, he
asseverates that the government's proof failed to show that he
was privy to the conspiracy. This challenge invokes a familiar
standard of review: when evaluating the sufficiency of the
evidence presented against a defendant in a criminal case, an
appellate court must "canvass the evidence (direct and
circumstantial) in the light most agreeable to the prosecution
1 Hernández stood trial with eight codefendants (all of whom
were found guilty), and we consolidated all nine appeals. Seven
of them, including this one, were argued together on September
14, 2000. The other two were submitted on the briefs to the
same panel. Because this appeal raises issues peculiar to
Hernández, we have chosen to decide it in a separate opinion.
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and decide whether that evidence, including all plausible
inferences extractable therefrom, enables a rational factfinder
to conclude beyond a reasonable doubt that the defendant
committed the charged crime." United States v. Noah, 130 F.3d
490, 494 (1st Cir. 1997).
A defendant may culpably join a drug-trafficking
conspiracy without knowing the full extent of the enterprise or
the identities of all the coconspirators. See United States v.
Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989). The
controlling statute is 21 U.S.C. § 846. To convict a defendant
of violating section 846, the government must "show beyond a
reasonable doubt that a conspiracy existed and that a particular
defendant agreed to participate in it, intending to commit the
underlying substantive offense." United States v. Sepulveda,
15
F.3d 1161, 1173 (1st Cir. 1993); accord United States v.
Marréro-Ortiz,
160 F.3d 768, 772 (1st Cir. 1998). In proving
the agreement, however, "[t]here are no particular formalities."
Sepulveda, 15 F.3d at 1173. Conspiratorial agreements may take
a wide variety of forms. Moreover, they "may be express or
tacit and may be proved by direct or circumstantial evidence."
Id. It follows logically that the conspiracy's existence, and
a particular defendant's membership in it, may be inferred from
the participants' "words and actions and the interdependence of
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activities and persons involved." United States v. Boylan, 898
F.2d 230, 241-42 (1st Cir. 1990).
Against this backdrop, we turn to the appellant's
principal assignment of error. Hernández concedes, as he must,
that the government proved the existence of a large, long-
lasting conspiracy to peddle various controlled substances. The
question, then, is whether the government proved that he agreed
to join it. We conclude that this question must be answered
affirmatively.
At trial, the government adduced evidence that
Hernández sold contraband at "drug points" operated by the
conspiracy and that he was entrusted with the safekeeping of
firearms used by the gang in the murders of rival drug dealers.
Standing alone, this evidence likely would suffice to undergird
his conviction. See, e.g., Rivera-Santiago, 872 F.2d at 1079
(holding that "[t]he fact that [the defendant] participated in
one retail link of the distribution chain, knowing that it
extended beyond his individual role, [is] sufficient" to
demonstrate his membership in a drug-trafficking conspiracy).
Here, however, the government also introduced more damning
evidence: testimony from a percipient witness who stated that
Hernández would "settle out" dealers, that is, he would come to
a drug point, count the receipts collected by the ring's retail
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vendors at that drug point, allow each vendor to keep his or her
agreed remuneration, and ensure that the remainder of the funds
was remitted to the ringleaders. This level of involvement
plainly sufficed to sustain the challenged conviction.
The appellant seeks to deflect the force of this proof
by assailing its source. This translates into an all-out
assault on the credibility of the government's witnesses. This
line of attack is forcefully mounted, but it does not avail the
appellant. In passing upon challenges to the sufficiency of the
evidence, we are bound to refrain from making independent
judgments as to the credibility of witnesses. See Noah, 130
F.3d at 494; United States v. Echeverri,
982 F.2d 675, 677 (1st
Cir. 1993). We recently summed up this principle in United
States v. Alicea,
205 F.3d 480 (1st Cir. 2000), in which we
wrote that "[e]xcept in the most unusual circumstances . . .
credibility determinations are for the jury, not for an
appellate court."
Id. at 483. This case comes within the
general rule, not the long-odds exception to it. And the
appellant's effort to highlight the trial testimony of other
(more favorable) witnesses suffers from the same infirmity.
The short of it is that the evidence introduced at
trial, taken in the light most congenial to the government's
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theory of the case, sufficed to ground a conviction. No more
was exigible.
The appellant puts a twist on his insufficiency
challenge, arguing that he was tried and convicted on the wrong
charge. As he sees it, the evidence shows at most that he
assisted only after the conspiracy was up and running (that is,
only after the agreement to distribute narcotics had been
forged) and that, therefore, "he cannot be charged with aiding
and abetting a conspiracy because, when the drug conspirators
agreed to [commit] one of the specified offenses . . ., all the
elements of 21 U.S.C. § 846 had been met." Appellant's Reply
Brief at 7. Hernández suggests, instead, that he should have
been charged as an accessory after the fact and not a
coconspirator. This argument is disingenuous.
To be sure, an agreement to commit the substantive
offense is an essential element of a conspiracy charge. See
United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995);
Echeverri, 982 F.2d at 679. But whether or not a defendant is
privy to the scheme at its commencement is not determinative of
his guilt. To the contrary, the law is settled that a defendant
cannot "escape criminal responsibility on the grounds that he
did not join the conspiracy until well after its inception."
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United States v. Pool, 660 F.2d 547, 560 (5th Cir. 1981). Judge
Aldrich captured the essence of this point in memorable prose:
[A] conspiracy is like a train. When a
party knowingly steps aboard, he is part of
the crew, and assumes conspirator's
responsibility for the existing freight — or
conduct — regardless of whether he is aware
of just what it is composed.
United States v. Baines, 812 F.2d 41, 42 (1st Cir. 1987). Here,
the jury had before it evidence from which it reasonably could
infer beyond any reasonable doubt that the appellant knew of the
conspiratorial plan, shared the coconspirators' common purpose,
and acted to further that plan and purpose. On that basis, he
was properly charged with, and lawfully convicted of, a section
846 conspiracy.
The appellant has one more arrow in his quiver — but
it will not fly. He attempts in conclusory fashion to adopt
"the discussion and arguments set forth" by his codefendants.
Appellant's Brief at 3. We need not linger long over this
feeble effort.
In general, appellants prosecuting consolidated appeals
may adopt each other's arguments. See Fed. R. App. P. 28(i).
But arguments adopted by reference "must be readily
transferrable from the proponent's case to the adopter's case."
United States v. David, 940 F.2d 722, 737 (1st Cir. 1991).
Thus, to free-ride on another appellant's issue, a party has a
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burden to show that he is in the same legal and factual position
as the proponent vis-à-vis the issue, or, at least, to show how
the issue relates to his situation. See, e.g., United States v.
Castro-Lara, 970 F.2d 976, 982 (1st Cir. 1992);
David, 940 F.2d
at 737; United States v. Zannino,
895 F.2d 1, 17 (1st Cir.
1990). In this instance, Hernández has not made the slightest
effort to show that the arguments he seeks to adopt are
applicable to him (or if so, how they pertain). Hence, we treat
his perfunctory attempt at adoption as insufficient to put those
issues in play. See
Zannino, 895 F.2d at 17.
We need go no further. We conclude, without serious
question, that the evidence presented, when viewed in the
requisite light, supports the jury's conclusion. Consequently,
the appellant's conviction must be
Affirmed.
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