
USCA1 Opinion

	




          November 20, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1748                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  PAUL J. CLIFFORD,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Charles P. McGinty, Federal Defender, for appellant.            __________________            Brien T. O'Connor, Assistant United States  Attorney, with whom A.            _________________                                               __        John Pappalardo, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                 ____________________               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.          ______ ________                                         -3-               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.                                         -4-               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  have  indicated that  it  was a          marijuana  offloading operation.   Finally,  the jury  could find          that  because  at  no  time  during the  night  had  he  tried to          dissociate himself from the  enterprise, defendant agreed to join          both in the conspiracy  and in the commission of  the substantive          offense.               Defendant argues vigorously that this reasoning  is "linking          inference upon inference  in an impermissible chain to  support a                                         -5-          conviction."   Admittedly,  the  chain contains  only one  direct          piece of evidence of  defendant's association with the operation,          his arrest  in the  truck, but  the links as  a whole  are forged          reasonably.  We  can do  no better in  responding to  defendant's          argument  than to quote  what our  colleague Judge  Aldrich wrote          almost thirty years ago:                    The   defendant   cautions   us  against   "piling               inference  upon  inference."    As  interpreted by  the               defendant this means that  a conviction could rarely be               justified by  circumstantial evidence.   See 1 Wigmore,                                                        ___               Evidence,   41 (3d ed. 1940).   The rule is not that an               inference, no matter how  reasonable, is to be rejected               if  it,  in  turn,  depends   upon  another  reasonable               inference;   rather the question is  merely whether the               total evidence, including  reasonable inferences,  when               put  together  is  sufficient  to  warrant  a  jury  to               conclude that  defendant is guilty  beyond a reasonable               doubt.            Dirring  v.  United States,  328 F.2d  512,  515 (1st  Cir. 1964)          _______      _____________          (citations omitted); see also United States v. Clotida, 892  F.2d                               ________ _____________    _______          1098, 1104 (1st Cir. 1989).   In this case, we conclude  that the          several inferences  are rationally based on  the underlying facts          and that the overall  evidence adequately supports the conviction          for conspiracy.                 This  does not quite end our inquiry, for defendant also was          convicted of aiding  and abetting possession  with the intent  to          distribute  marijuana.     For  the  conviction   to  stand,  the          government must prove that  defendant associated himself with the          underlying venture, participated in it as something he wished  to          bring about, and sought by his actions to make it succeed.  Nye &                                                                      _____          Nissen v. United States, 336 U.S. 613, 619 (1949).            ______    _____________                                         -6-               We  agree   with  the   government  that  the   evidence  of          defendant's actions and participation satisfies these strictures.          As  we noted above, there was  sufficient evidence that defendant          gathered with the other offloaders at the South Boston warehouse,          travelled to New Bedford, and spent the night waiting to unload a          vessel that never arrived.   From these secretive and  suspicious          circumstances  alone,   the  jury  reasonably  could  infer  that          defendant was participating knowingly in a criminal venture.               Defendant  argues  that  even  if the  evidence  supports  a          finding that he agreed to participate in an offload of marijuana,          it does not support a finding that  he intended to participate in          the  distribution of  the drug.   We  disagree.   The need  for a          truckload of  offloaders points to large  quantities of marijuana          not  intended for immediate personal  use.  See  United States v.                                                      ___  _____________          Geer,  923 U.S.  892, 894-95  (1st Cir.  1991) (jury  could infer          ____          existence of conspiracy to distribute drugs from large quantities          of drugs  involved).  From  the size of  the operation,  the jury          could infer that defendant knew that the offload was but one step          in  the   distribution  chain.    The   evidence  of  defendant's          participation in an offload of such large quantities of marijuana          is sufficient proof that he intended to distribute the drug.  See                                                                        ___          Rivera-Santiago,  872  F.2d  at  1081-82  (defendant  who  stored          _______________          truckload  of marijuana  found  to be  aider  and abettor).    We          therefore hold  that there was sufficient evidence to support the          conviction for aiding and abetting the  possession with intent to          distribute.                                         -7-               We  deem  it appropriate,  nonetheless,  to  comment on  the          paucity  of   direct  evidence  implicating  defendant   in  this          enterprise.        Although   constrained   to   find  that   the          circumstantial  evidence  presented   does  support   defendant's          conviction, we  caution that  the inferential chain  is stretched          close   to  its  breaking  point.    The  alloy  for  forging  an          inferential   chain   should   contain  more   direct   and  less          circumstantial evidence lest it snap at the first test.                Given  the  profusion  of   individuals  embroiled  in  this          venture,1  and the length of time which the offloading crew spent          together,   it  is  difficult   to  understand  the  government's          inability  to find at least  one person who  could give testimony          directly implicating defendant.   Prosecutors must be wary of the          hazards  of   relying  on  inference  when   harder  evidence  is          available.               Affirmed.               ________                                        ____________________               1    The failed  offload of the Breton  Seahorse resulted in                                               ________________          an  indictment against  defendant  and 25  co-defendants.   Still          others were granted immunity in return for their testimony.                                         -8-
