                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2002

USA v. Burgos
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-1059




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Recommended Citation
"USA v. Burgos" (2002). 2002 Decisions. Paper 302.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/302


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                                                NOT PRECEDENTIAL


                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT



                         No. 00-1059



                   UNITED STATES OF AMERICA

                               v.

                      FRANCISCO BURGOS,

                                    Appellant



   ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
               EASTERN DISTRICT OF PENNSYLVANIA

             (District Court No. 98-cr-00335-001)
      District Court Judge: Franklin S. Van Antwerpen




          Submitted Under Third Circuit LAR 34.1(a)
                         May 7, 2002

     Before: NYGAARD, ALITO, and ROSENN, Circuit Judges.

                (Opinion Filed:   May 24, 2002)




                     OPINION OF THE COURT



PER CURIAM:
     Appellant Burgos challenges the sufficiency of the evidence for his conviction of
conspiracy to distribute crack cocaine. Because we conclude that the evidence of
conspiracy was sufficient for a jury to convict Burgos, we affirm the judgment of the
District Court.
                              I.
     According to the testimony presented at trial, Francisco Burgos was a crack
cocaine dealer in Allentown, Pennsylvania. For six months leading up to the police
sting, Burgos had used Tomas Carresquilla, under an arrangement approximating
consignment, to distribute crack cocaine to customers. Carresquilla operated on credit
from Burgos. Burgos would supply crack to Carresquilla, who would in turn sell it in
small doses to customers, and then "afterwards" Carresquilla would pay Burgos for the
crack that Burgos had advanced to him. Supp. App. at 20. Burgos used Jorge Vega to
collect drug debts owed to Burgos. Burgos and Vega were arrested together when they
met Carresquilla (who had agreed to cooperate in the police sting) to collect on a debt for
crack to Carresquilla.
     Burgos was charged with three criminal counts. Count 1 was conspiracy to
distribute cocaine, in violation of 21 U.S.C. 846, Count 2 was distribution of crack
cocaine, in violation of 21 U.S.C. 841, and Count 3 was use of a gun during a drug-
trafficking offense, in violation of 18 U.S.C. 924(c). The jury convicted Burgos on all
three counts. Burgos was sentenced to "186 months on each of Counts 1 and 2, to run
concurrently with each other" and to "60 months on Count 3 to run consecutively to the
terms imposed on Counts 1 and 2 for a total term of 246 months imprisonment." On
appeal, Burgos contests only the conviction for conspiracy (Count 1). He does not
challenge the convictions for Count 2 or Count 3.
                              II.
     The only issue on appeal is whether the government presented sufficient evidence
such that a reasonable jury could find, beyond a reasonable doubt, that a conspiracy
existed between Burgos and someone else. Appellant argues that, according to precedent
in this Circuit, "the question then becomes whether this factor alone [that Burgos sold
crack on credit to Carresquilla] was enough" for the jury to find conspiracy. Appellant’s
Reply Br. at 9. Even if we were to accept Appellant’s characterization of the issue, we
hold that the evidence of conspiracy was sufficient to support the jury’s verdict.
     The elements of conspiracy are as follows: a unity of purpose between the alleged
conspirators, an intent to achieve a common goal, and an agreement to work together
toward that goal. See United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999). Because
direct evidence of a qualifying agreement is rare, conspiracy can be inferred from
circumstantial evidence that the participants’ activities "’could not have been carried on
except as the result of a preconceived scheme or common understanding.’" United States
v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001) (quoting United States v. Ellis, 595 F.2d
154, 160 (3d Cir. 1979)).
     In Gibbs, this Court listed several "factors" that courts consider to determine
whether a buyer/seller of drugs was also part of a conspiracy: (1) the length of affiliation
between the defendant and the conspiracy; (2) whether there is an established method of
payment; (3) the extent to which transactions are standardized; and (4) whether there is a
demonstrated level of mutual trust. See 190 F.3d at 199 (citations omitted). The Court
offered two common indicia of mutual trust, one of which was a "credit relationship."
Id. at 200.
                                B.
     The Gibbs Court cautioned that "[t]hough no one of these factors alone will
necessarily be sufficient   without more    to establish a mere buyer’s agreement to join
the conspiracy . . . , the presence of one or more of these factors furthers the inference . .
." Id. at 200. Seizing on the first half of this statement, Burgos argues that because the
Government established only one of the several factors in Gibbs    a credit relationship
between Burgos and Carresquilla    the evidence is insufficient.
     Recently, this Court in Pressler clarified that these "factors" from Gibbs are not
direct proof of conspiracy. 256 F.3d at 149. Rather, "it is more accurate to say that the
presence of certain facts often provides circumstantial evidence of the underlying
agreement that is itself necessary to make out a conspiracy case." Id. at 147.
     In the case before us, the credit relationship between Burgos and Carresquilla was
established. Because Burgos repeatedly supplied crack to Carresquilla on credit, it would
be reasonable to conclude that Burgos and Carresquilla had a stake in each other’s
success. The pattern by which Burgos advanced crack to Carresquilla, who paid for it
only after Carresquilla had resold it, connotes mutual trust. The jury was thus entitled to
reasonably infer from this evidence that Burgos and Carresquilla had entered a
conspiracy beyond a reasonable doubt.
                              III.
     For the foregoing reasons, the District Court’s judgement is AFFIRMED.
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.




                                     Circuit Judge
