U.S. v. Clifford, 92-1748

• Decision Date: 07 October 1992
• Docket Number: No. 92-1748,92-1748
• Citation: 979 F.2d 896
• Parties: UNITED STATES of America, Appellee, v. Paul J. CLIFFORD, Defendant, Appellant. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 896

979 F.2d 896

UNITED STATES of America, Appellee, v. Paul J. CLIFFORD, Defendant, Appellant.

No. 92-1748.

United States Court of Appeals,First Circuit.

Heard Oct. 7, 1992.

Decided Nov. 20, 1992.

Charles P. McGinty, Federal Defender, for defendant, appellant.

Brien T. O'Connor, Asst. U.S. Atty., with whom A. John Pappalardo, U.S. Atty., was on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and BOUDIN, Circuit Judge.

COFFIN, Senior Circuit Judge.

Defendant was convicted by a jury, under Count 1, for conspiracy to possess with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1) and 846, and, under Count 23, for aiding and abetting the possession with intent to distribute, 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Defendant appeals from denials of motions for acquittal addressed to each count, arguing that the verdict relies impermissibly on speculative inference. We find that the evidence, though circumstantial, was sufficient to support the verdict.

Before recapping and weighing the evidence, we briefly note the standards governing our review. We consider the evidence in the light most favorable to the prosecution. United States v. Torres Lopez, 851 F.2d 520, 527 (1st Cir.1988). We therefore "draw[ ] all legitimate inferences and resolv[e] all credibility determinations in favor of the verdict." United States v. Angiulo, 897 F.2d 1169, 1197 (1st Cir.1990). "Nor does the government have to disprove every reasonable hypothesis of innocence." Torres Lopez, 851 F.2d at 527-28.

To support a verdict of guilt, the evidence must prove each element of a conspiracy charge beyond a reasonable doubt. These elements are the existence of a conspiracy (not in issue here), the defendant's knowledge of it, and his voluntary participation in it. In addition, the government must show defendant's intent both to agree with his co-conspirators and to commit the substantive offense. United States v. David, 940 F.2d 722, 735 (1st Cir.1991). When the conspiracy concerns drugs, the evidence must show the defendant's intent to commit the underlying drug offense. See United States v. Ocampo, 964 F.2d 80, 82 (1st Cir.1992). The evidence, of course, may be circumstantial. United States v. Rivera-Santiago, 872 F.2d 1073, 1079 (1st Cir.1989).

We turn now to the facts that a jury reasonably could find and the inferences it legitimately could draw in this case.

The overall factual background concerns the operations of a Boston-based marijuana smuggling organization. The organization had offloaded marijuana twice previously at the Trio Algarvio fish processing plant in New Bedford. The facts in this case involve a botched effort on May 16 and 17, 1986. A vessel, the Breton Seahorse, loaded with 26 tons of marijuana, intended to discharge its cargo at the Trio Algarvio plant. Instead, the Coast Guard intercepted the ship on May 16, and impounded it at Woods Hole.

At about 6 p.m. on the evening of May 16, the intended offloaders assembled at a warehouse in South Boston. None of the offloaders at trial testified to knowing at this point that the venture involved drugs. The 14 men, clad in dark clothes, waited together in a single refrigeration truck for an hour before driving for another hour to the Trio Algarvio plant.

One of the offloading crew was Matthew McGee, who had participated in two similar marijuana offloading operations in 1983 and 1984. McGee also helped to organize the offload of the Breton Seahorse.

During the trip to the plant, according to witness Brian Small, there was talk about unloading marijuana, and "a few people said, talked about, you know, maybe stealing a little bit for their own self or that kind of thing." As the crew was ending its journey to the plant, Small also heard a voice comment "[O]h, I hope this thing goes down, I needed [sic] the money ... [and] I can't wait until this pot comes in."

Once in New Bedford, all the men from the truck entered the plant, located on the water, where they spent nine hours waiting for the Breton Seahorse. During their long wait, Small overheard renewed discussion "same as like [in] the truck" about the planned marijuana offload. Other witnesses overheard discussion that the crew was waiting for a boat and speculation on the boats that were visible from a window overlooking the harbor "if that was it or not."

Shortly before 5 a.m. on May 17, no boat having arrived, the crew left the fish processing plant together in a single truck. The police soon stopped the truck and apprehended the crew hiding in the back. The only direct evidence implicating defendant is the fact that he was one of the persons on the truck when it was stopped and inspected.

From the time the entire crew assembled in South Boston to the time of their arrest, there was no evidence that any member of the offloading crew departed, tried to depart, or otherwise separated himself from the enterprise. Nor was there any evidence of coercion to keep the offloaders in place.

We acknowledge that these are not all the facts or testimony in the case. In particular, other witnesses remembered no conversations about marijuana, and no witness identified defendant as present on the truck en route to the plant or in the plant itself. But these are the facts, considered favorably to the government's case, that support the jury's verdict.

From these facts, the jury reasonably could draw a series of inferences to connect defendant to the conspiracy. The jury could find from defendant's presence in the truck at the time of arrest, that he had been with the others inside the plant. Because everyone inside the plant except the drivers, who were identified, had arrived together in the back of the refrigeration truck, the jury could find that defendant had been in the truck on the trip to the plant, too. Because there had been discussion of the imminent shipment of marijuana in the truck and the "same" kind of discussion in the plant, the jury could find that defendant knew he was engaged in a drug transaction. Indeed, the jury could believe it likely that McGee, who had participated in planning this operation, would...