             United States Court of Appeals
                        For the First Circuit

No. 11-2200

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                           JUAN RÍOS-ORTIZ,

                         Defendant, Appellant.



             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF PUERTO RICO

            [Hon. Daniel R. Domínguez, U.S. District Judge]



                                Before

                           Lynch, Chief Judge,
                       Torruella, Circuit Judge,
                    and DiClerico,** District Judge.



     Mark E. Howard, with whom Howard & Ruoff, PLLC, was on brief,
for appellant.
     Justin Reid Martin, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, were on brief,
for appellee.


                           February 27, 2013



     *
         Of the District of New Hampshire, sitting by designation.
            DICLERICO, District Judge. Appellant Juan Ríos-Ortiz

(“Ríos”) was convicted after a jury trial of conspiracy to possess

with    intent   to   distribute   controlled   substances   (Count    One),

distribution of a controlled substance (Count Six), and possessing

and providing contraband to a prison (Count Seven).                   He was

sentenced to a term of imprisonment of seventy-eight months.

            Ríos appeals his conviction on Count One, arguing that

the evidence was insufficient to support a conviction as to the

charged conspiracy.       Specifically, Ríos argues that the evidence

was insufficient to establish a single conspiracy beginning on or

about December 2009 and continuing until on or about February 2,

2010.

            For the reasons that follow, we affirm the judgment of

the district court.

                                     I.

            The facts are recited in the light most favorable to the

verdict being appealed.      United States v. Poulin, 631 F.3d 17, 18

(1st Cir. 2011). As of December 2009, Ríos was employed as a

forklift operator at Carribean Produce (“CP”), a company that

distributes fruits, vegetables, and eggs to, among other customers,

the Metropolitan Detention Center Guaynabo (“MDC”) in San Juan,

Puerto Rico. Typically, a customer would place an order with

someone in CP’s client service department.         The employee who took

the customer’s order would create a “picking list,” which is given


                                     -2-
to a dispatcher. The dispatcher would select the boxes of products

ordered by a customer from various coolers within CP’s warehouse,

put the boxes on pallets, and wrap the boxes with tape.              Another

employee would then compare the products on the pallets with the

picking list and, if the selected items matched the picking list,

a forklift operator would load the pallets onto a delivery truck

for shipment to the customer.               Ríos, like other CP forklift

operators, sometimes acted as a dispatcher for an order.

            MDC orders were picked up from CP by Jesús Piñero, an

independent driver who made deliveries from CP to MDC on a weekly

basis.   All food deliveries to MDC were received at the facility’s

warehouse    by    the    foods   service    warehouse   supervisor.     The

supervisor inspected the delivery to ensure that none of the food

items were damaged or spoiled.        An inmate forklift operator would

then unload and transfer the delivery to the rear gate of the

facility.    There, an officer would x-ray a part of the shipment, as

determined    on   a     shipment-by-shipment    basis   at   the   officer’s

discretion, to screen for contraband or damage.               Once the goods

passed through the screening process, they would be brought to the

food service area to be unloaded and stocked inside the facility’s

walk-in coolers.

            On December 29, 2009, CP prepared an order for MDC

(“December 29th order”). Piñero delivered the order to MDC and 10%

of the shipment was x-rayed.        No contraband or damage was found at


                                      -3-
that time.     The order was then unloaded and stocked in MDC’s

coolers.

            The following day, Norman Vélez, a cook supervisor at MDC

whose duties included receiving and storing food items, was working

in the food service department.        As Vélez approached cooler number

five, which held vegetables, he saw the inmate who had been

cleaning the cooler attempt to close the door quickly.                  Vélez

thought that the inmate’s movement was suspicious and held the

cooler door open.    Vélez looked inside and saw another inmate, who

was not authorized to be in that area, searching one of the boxes

of produce.    Vélez removed the inmate from the cooler, locked it,

and called for backup.

            Vélez and José Rosa, a special investigator supervisor at

MDC, searched the cooler.      While inspecting CP’s delivery from the

previous day, Vélez and Rosa found several bags of contraband,

wrapped in electrical tape, inside a box of celery.                  The bags

contained    eight   cell   phones,    SIM   cards,   cell   phone    charger

connectors,   cigarettes,      alcohol,     Xanax   pills   (containing    the

controlled substance alprazolam), Percocet pills (containing the

controlled substance oxycodone), cocaine, heroin, and marijuana.

In addition, one of the bags contained a piece of paper with what

Rosa described at trial as a “possible nickname” on it.

            Carlos   Falcón,   the    distribution    manager   at   CP,   was

notified about the contraband that had been found in the celery


                                      -4-
box.       Falcón checked CP’s surveillance system, which consisted of

twenty-seven cameras in the warehouse and a hard disk that records

for sixteen days before it is automatically overwritten.                 Falcón

testified that he reviewed the video that showed the preparation of

the December 29th order.       According to Falcón, Ríos acted as the

dispatcher for that order.         Falcón testified that Ríos performed

his dispatch duties normally, except that he reinforced one celery

box heavily with tape.1

               After MDC discovered the contraband in the December 29th

order, CP began sealing the door on Piñero’s truck after loading

for all future deliveries to ensure that he would not be a suspect

if contraband were found again.                 In addition, CP also began

requiring      all   dispatchers   to    fill    out    a   document   called   a

“tablilla,” which contained the details of the order.2

               On February 2, 2010, Piñero delivered another order from

CP to MDC (“February 2nd order”).             At MDC, the seal on Piñero’s

truck was broken, and the delivery was unloaded.                   While being

unloaded, a box containing eggs began to break open from the

bottom. The box was immediately placed on the x-ray machine, which

showed that the box contained contraband.              FBI Agent Dave Becerra,


       1
       The jury was not able to view the video showing Ríos’s
preparation of the December 29th order because it had been
automatically overwritten under the normal procedure.
       2
       CP’s regular policy was to require tablillas to be filled
out for every delivery, but it was not strictly enforced prior to
the incident with the December 29th order.

                                        -5-
who was at MDC conducting interviews regarding the December 29th

order, took the box to his office.

            The box of eggs contained several bags of contraband

wrapped in electrical tape as were the bags of contraband found in

the December 29th order. The contraband included nine cell phones,

a   large quantity      of cigarettes,         and    over    one    thousand      pills

containing either alprazolam or oxycodone.                    Becerra removed the

tape from the bags of contraband and sent it to the FBI lab in

Quantico, Virginia for fingerprint analysis.                    The FBI found two

latent fingerprints,         one    of   which   belonged       to   Ríos.         Ríos’s

fingerprint was found on the adhesive side of the tape.

            Upon learning of the contraband in the February 2nd

order, Falcón again consulted CP’s surveillance system.                      As Falcón

testified at trial, the video showed Ríos working as a dispatcher

and performing his duties abnormally for that order.3                  For example,

Ríos stacked the egg boxes too high, removed a tray of eggs from

one of the boxes and took it to the corner of the room, and took

longer than normal to prepare the order, none of which is standard

procedure for a dispatcher.          Unlike the video of the December 29th

order,    the   video   of    the    February        2nd     order   had     not    been

overwritten, and it was shown to the jury at trial.




      3
       Ríos was also listed as the dispatcher on the tablilla for
the February 2nd order.

                                         -6-
           At the close of the government’s case, Ríos moved for a

judgment of acquittal as to all counts under Fed. R. Crim. P. 29.4

The court reserved its ruling on the motion, and Ríos rested

without testifying or presenting any witnesses.

           The jury convicted Ríos of Count One (conspiracy), Count

Six (distribution of a controlled substance - oxycodone), and Count

Seven (providing contraband to a prison).               Counts Six and Seven

related to the February 2nd order.            The jury acquitted Ríos of

Counts Two, Three, Four, and Five, all of which related to the

December 29th order.

                                     II.

           On   appeal,    Ríos    raises     several    challenges   to   his

conspiracy conviction.      He contends that the district court erred

in denying his Rule 29 motion as to his conspiracy conviction

because there was no evidence of a conspiratorial agreement; that

his   conviction   for    conspiracy    and    his   acquittal   on   certain

underlying      substantive       offenses     constitute      impermissible

inconsistent verdicts; and that although the government charged one

overarching conspiracy, at best it proved multiple conspiracies,

representing a prejudicial variance.          All of Ríos’s challenges are

based on the contention that the evidence was insufficient to


      4
       Rule 29 provides that: “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.” Fed. R. Crim. P. 29(a).

                                     -7-
support a conviction on Count One for a conspiracy beginning on or

about December 2009 and continuing to on or about February 2, 2010.

                 We review Ríos’s sufficiency of the evidence claim de

novo, considering the evidence in the light most favorable to the

verdict.        United States v. Green, 698 F.3d 48, 56 (1st Cir. 2012).

“A reversal is warranted only where no rational factfinder could

have concluded that the evidence presented at trial, together with

all reasonable inferences, established each element of the crime

beyond a reasonable doubt.” United States v. Symonevich, 688 F.3d

12, 23 (1st Cir. 2012).

A.               Existence of a Conspiratorial Agreement

                 Ríos argues that the trial court erred in denying his

Rule       29    motion      because    the    evidence   adduced   at   trial    was

insufficient to support the existence of an agreement to possess

and distribute controlled substances.                Specifically, he points to

the lack of evidence concerning any interactions or communications

between         Ríos   and    another    co-conspirator    prior    to   either   the

December 29th order or the February 2nd order.5                     He argues that

there was no evidence of knowledge and coordination of efforts and




       5
       Ríos also contends, in passing, that he only acted as a
dispatcher for the orders because he was told to do so by a
supervisor, which he argues goes against the government’s theory
that he was part of a conspiracy. To the extent that Ríos intends
to make that argument, the fact that he may have been told to act
as a dispatcher for the orders does not undermine the existence of
a conspiracy.

                                              -8-
therefore, a jury could not have found beyond a reasonable doubt

that he participated in a conspiracy.

            “‘To   prove    conspiracy     in   a   [narcotics]    case,   the

government must prove beyond a reasonable doubt that an agreement

existed to commit the underlying substantive offense, and that the

defendant   elected   to    join   the   agreement,    intending    that   the

underlying offense be committed.’” United States v. Landrón-Class,

696 F.3d 62, 69 (1st Cir. 2012) (quoting United States v. Medina-

Martínez, 396 F.3d 1, 5 (1st Cir. 2005)).              “‘The essence of the

crime is the conspirators’ agreement to act in concert’ to import,

possess, and distribute illegal drugs.”             United States v. Paret-

Ruiz, 567 F.3d 1, 5-6 (1st Cir. 2009) (quoting United States v.

Cruz, 568 F.2d 781, 782 (1st Cir. 1978)); see also United States v.

Rodríguez, 525 F.3d 85, 104 (1st Cir. 2008).

            “An agreement between coconspirators may be proven by

circumstantial evidence, and it may be tacit.”             United States v.

Rivera-Donate, 682 F.3d 120, 134 (1st Cir. 2012) (quoting Paret-

Ruiz, 567 F.3d at 6) (internal quotation marks omitted); see also

United States v. Gómez-Rosario, 418 F.3d 90, 107 (1st Cir. 2005);

United States v. Concemi, 957 F.2d 942, 950 (1st Cir. 1992) (“an

agreement . . . may be inferred from a development and collocation

of circumstances”) (quoting United States v. Smith, 680 F.2d 255,

259 (1st Cir.      1982))   (internal      quotation   marks   omitted).     A

conspiratorial agreement, therefore, “need not be express so long


                                     -9-
as its existence can plausibly be inferred from the defendants’

words and actions . . . .”             United States v. Famania-Roche, 537

F.3d 71, 78 (1st Cir. 2008) (quoting United States v. Boylan, 898

F.2d   230,    241-42   (1st    Cir.    1990))    (internal   quotation   marks

omitted); see also United States v. Pérez-Ruiz, 353 F.3d 1, 7 (1st

Cir. 2003) (a defendant cannot succeed with a sufficiency challenge

“as long as a plausible reading of the record supports the jury’s

implied finding that [the defendant] knowingly participated in the

charged conspiracy”).

              In this case, the government presented circumstantial

evidence to demonstrate the existence of an agreement to distribute

controlled substances.         Ríos prepared and loaded onto the delivery

truck both orders for MDC.               According to testimony, for the

December 29th order, CP’s security cameras showed Ríos heavily

taping the celery box that held the bags containing the contraband.

At MDC, Vélez found an unauthorized inmate searching through the

box of celery containing the bags of contraband, which were wrapped

in electrical tape, and one of the bags contained a card with a

possible nickname on it.          For the February 2nd order, the video

taken by CP’s security camera and presented to the jury showed Ríos

preparing the orders in a manner that was contrary to proper

procedure, and removing a tray of eggs from a box and taking the

tray to the corner of the warehouse.             At MDC, one of the egg boxes

was found to contain bags of contraband wrapped in electrical tape


                                        -10-
as were the bags of contraband found in the December 29th order.

The tape that wrapped one of the bags had several fingerprints on

the adhesive side, one of which belonged to Ríos.                In addition, the

egg box containing the bags of contraband had a red mark on it.

                  When viewed in the light most favorable to the verdict,

this evidence is sufficient to permit a jury to reasonably conclude

that       Ríos    was   a   participant   in   a   conspiracy    to   distribute

controlled substances. Ríos prepared the orders, both of which

contained some sort of marker which could have been an act of

communication with a co-conspirator within MDC.6             In addition, the

jury could have concluded that the several sets of fingerprints on

the tape used to wrap a bag of contraband in the February 2nd order

were those of a co-conspirator outside of MDC.                     Although Ríos

points to the lack of communications with co-conspirators, “[a]



       6
       In the case of the December 29th order, the marker was the
extra tape on the celery box. In the case of the February 2nd
order, the marker was the red mark on the egg box. Ríos suggests
that the extra tape on the celery box in the December 29th order
could not have been a marker because the contraband was not
discovered until the following day. Ríos argues that the “lapse of
time, during which contraband was sitting in a cooler at MDC,
available to be discovered by anyone who had access to that area of
the facility, defies a conclusion that the tape on the box was an
attempt to communicate.” That argument is belied by the testimony
of Victor Roberto Vega, MDC’s food service supervisor, who
testified that produce is often delivered and stored a week before
it is used. Regardless, when the evidence is viewed in the light
most favorable to the verdict, the jury could have concluded that
the extra tape on the celery box was intended to be used as a
marker to communicate with a co-conspirator, particularly when
considered along with the card found inside one of the bags of
contraband with a possible nickname on it.

                                       -11-
defendant can be indicted and convicted even if the names of his

co-conspirators are unknown, as long as the government presents

evidence of an agreement between two or more persons.”               United

States v. Nason, 9 F.3d 155, 159 (1st Cir. 1993).            “The essence of

a conspiracy is the existence of the conspiracy agreement, not the

identity of those who agree.”       Id.    Therefore, sufficient evidence

existed to support the existence of a conspiracy.

B.        Inconsistent Verdicts

          Ríos   also     argues     that    the    jury’s    verdicts     are

inconsistent and that his conviction must be overturned.                   He

contends that acquittal on the substantive charges relating to the

December 29th order is inconsistent with his conviction on the

conspiracy   charge,    which    alleges    those   substantive   crimes    as

objects of the conspiracy.

          “Consistency in the verdict is not necessary. Each count

in an indictment is regarded as if it was a separate indictment.”

Dunn v. United States, 284 U.S. 390, 393 (1932). Inconsistent

verdicts “may be the result of [jurors’] lenity, coupled with the

Government’s inability to invoke review.” United States v. Powell,

469 U.S. 57, 66 (1984).         Therefore, “the best course to take is

simply to insulate jury verdicts from review on this ground.”              Id.

at 69; see also United States v. Cianci, 378 F.3d 71, 92 (1st Cir.

2004); United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000)




                                    -12-
(a “jury verdict [which] is internally inconsistent . . . is

essentially unreviewable”).

             With regard to charges of conspiracy, “[t]he substantive

crime and the conspiracy to commit it are separate offenses.”

United States v. López, 944 F.2d 33, 41 (1st Cir. 1991).          “Although

it may seem inconsistent . . . to convict on the conspiracy charge,

and acquit the same defendant on the substantive charge alleged to

have been the object of the conspiracy, the Supreme Court has made

it clear that verdict inconsistency in itself is not a sufficient

basis for vacating a conviction.”      Id.       Therefore, so long as there

is “sufficient evidence to sustain a rational verdict of guilt

beyond   a    reasonable   doubt”    for     a    conspiracy   charge,   “an

inconsistent verdict should stand.”           United States v. Figueroa-

Encarnación, 343 F.3d 23, 30 n.4 (1st Cir. 2003) (quoting López,

944 F.2d at 41) (internal quotation marks omitted);                see also

Powell, 469 U.S. at 66; United States v. Cornelius, 696 F.3d 1307,

1317 (10th Cir. 2012) (“‘[T]he fact that contrary verdicts are

returned as between a conspiracy count and a count charging a

substantive offense presents no such inconsistency as requires

reversal.’”) (quoting W.E. Shipley, Annotation, Inconsistency of

Criminal Verdicts as Between Different Counts of Indictment or

Information, 18 A.L.R. 3d 259 § 30[a] (1968)).

             Ríos does not contend that inconsistent verdicts are

impermissible generally or in all conspiracy cases.              Rather, he


                                    -13-
argues that a defendant may be convicted of a conspiracy charge and

acquitted of the substantive charges which form the objects of the

conspiracy only when there is sufficient evidence to support a

conspiracy conviction.        In other words, Ríos’s argument concerning

inconsistent verdicts repeats his insufficiency of the evidence

claim.    As discussed, the evidence was sufficient to support the

existence of a conspiracy.        Therefore, the asserted inconsistency

in the verdict is not grounds for reversal.

C.          Variance

            Ríos    further    argues    that    to    the   extent    there   was

sufficient evidence of conspiracy, the evidence demonstrated two

separate conspiracies rather than one overarching conspiracy, as

was charged in the indictment.             Therefore, he contends that a

variance occurred which affected his substantial rights, and his

conviction must be reversed.

            “A    variance    occurs    when    the    crime   charged    remains

unaltered, but the evidence adduced at trial proves different facts

than those alleged in the indictment.”                United States v. Yelaun,

541 F.3d 415, 419 (1st Cir. 2008).            “[T]o be grounds for reversal,

a    variance    must   be   severe    enough   to    affect   the    defendant’s

substantial rights.”         United States v. Mubayyid, 658 F.3d 35, 54

(1st Cir. 2011).        “When, as here, a defendant asserts a claim of

variance that is premised on the notion that multiple conspiracies

existed and that his activities were not part of the charged


                                       -14-
conspiracy, the initial question . . . is one of evidentiary

sufficiency.”   Rivera-Donate, 682 F.3d at 128 (quoting Pérez-Ruiz,

353 F.3d at 7) (internal quotation marks omitted).

           In order to find that a single conspiracy charge existed,

it must have been possible for the jury to “infer from the acts and

statements of the witnesses a single ongoing ‘agreement’ that

embraced [Ríos] and other co-conspirators.”           United States v.

Jones, 674 F.3d 88, 92 (1st Cir. 2012).      In determining whether the

evidence   supports   the   existence   of   a   single   conspiracy,   we

ultimately look at the totality of the circumstances.         See United

States v. Sánchez-Badillo, 540 F.3d 24, 29 (1st Cir. 2008). “While

the nature of the illegal activity, the method of operation, and

the scope of conspirator involvement are factors to be considered

in determining whether a single conspiracy has been proved, if the

totality of the evidence is adequate to demonstrate that all of the

alleged    coconspirators    directed   their     efforts   towards     the

accomplishment of a common goal or overall plan, then the existence

of a single conspiracy can be found.”        United States v. Drougas,

748 F.2d 8, 17 (1st Cir. 1984); see also Sánchez-Badillo, 540 F.3d

at 29 (factors to consider include “(1) the existence of a common

goal, (2) interdependence among the participants, and (3) overlap

among the participants”); United States v. LiCausi, 167 F.3d 36, 45

(1st Cir. 1999) (factors to consider include “the commonality vel

non of the nature, motive, design, implementation, and logistics of


                                 -15-
the illegal activities”).              Although conflicting inferences may

arise, so long as the evidence is adequate to permit a reasonable

trier of fact to have found a single conspiracy beyond a reasonable

doubt, the jury’s finding will not be disturbed on appeal.                             See

Boylan, 898 F.2d at 243.

          In this case, a reasonable trier of fact could have found

the existence of a single conspiracy beyond a reasonable doubt.

Both the December 29th order and the February 2nd order had a

common goal: smuggling illegal contraband into MDC.                        Ríos prepared

both orders and wrapped the contraband in both orders in a similar

fashion with electrical tape, and a partial fingerprint belonging

to Ríos was found on the sticky part of one of the wrappings.

Therefore, a common goal and design, as well as Ríos’s involvement,

could be discerned between the two incidents. See Sánchez-Badillo,

540 F.3d at 29 (discussing the “wide breath” of the common goal

requirement).        Although        Ríos    points   to    the lack        of   evidence

regarding the similarity of the CP workers or MDC kitchen inmates

who were present during the two deliveries, that lack of proof does

not undermine a finding that a single conspiracy existed.                              See

United States v. Cruz-Rodríguez, 541 F.3d 19, 28 (1st Cir. 2008) (a

conspiracy may be proven without establishing that “(1) each

conspirator knew of or had contact with all other members; (2) each

conspirator     knew    of     all    the     details      of   the    conspiracy       or

participated    in     every    act    in    furtherance        of   it;    or   (3)   the


                                            -16-
conspiratorial ‘cast of characters’ remained intact throughout the

duration of the entire enterprise”); see also United States v.

Franco-Santiago, 681 F.3d 1, 9 (1st Cir. 2012)        (government does

not have to prove that the defendant had “knowledge of every other

participant, or of the details of the conspiracy, but knowledge of

the   broader    conspiracy’s   existence   is   critical”)   (internal

quotation marks and citations omitted).

          Accordingly, when viewed in the light most favorable to

the prosecution, the evidence would allow a rational jury to

determine beyond a reasonable doubt that the single conspiracy

charged in the indictment existed and, therefore, a variance did

not exist.      See United States v. Maryea, ___ F.3d ___, 2013, WL

150316, at *20 n.4 (1st. Cir. Jan. 15, 2013) (“Since we do not find

that the evidence established an agreement different from that

charged, we need not address the issue of variance.”).        Therefore,

“[w]e . . . need not reach the issue of whether [Ríos] was

prejudiced by any variance in our analysis.”       Id.

                                  III.

          For the foregoing reasons, the judgment of the district

court is affirmed.

          Affirmed.




                                  -17-
