          United States Court of Appeals
                      For the First Circuit


Nos. 13-1633 & 13-1657

                    UNITED STATES OF AMERICA,

                             Appellee,

                                v.

       JOSE L. MARTINEZ-RODRÍGUEZ AND JOEL SANTINI-MENDEZ,

                      Defendants-Appellants.



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

          [Hon. Francisco A. Besosa, U.S. District Judge]



                              Before

                    Howard, Lipez, and Barron,
                         Circuit Judges.



     Michael R. Hasse, for Jose L. Rodríguez-Martinez, appellant.
     Victoria   M.   Bonilla-Argudo,   for   Joel  Santini-Mendez,
appellant.
     Rosa Emilia Rodríguez-Velez, United States Attorney, with whom
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Tiffany V. Monrose, Assistant United States
Attorney, were on brief for appellee.



                         February 20, 2015
            LIPEZ, Circuit Judge.            Appellants Jose Luis Rodríguez-

Martinez ("Rodríguez") and Joel Santini-Mendez ("Santini") were

sentenced in the United States District Court of Puerto Rico to

terms of eighty-eight months and seventy months, respectively, for

aiding and abetting the attempted possession of narcotics with

intent to distribute in violation of 21 U.S.C. § 841, and aiding

and abetting the possession of a firearm in furtherance of a drug-

trafficking crime in violation of 18 U.S.C. § 924(c). Separately,

Rodríguez pled guilty to being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1).

            On appeal, each defendant challenges the sufficiency of

the evidence to support certain convictions. Rodríguez claims that

there was insufficient evidence for the jury to conclude that he

aided and abetted Santini's attempted possession of narcotics (and,

as   a   result,    that    his   possession        of    a   firearm    was   not   in

furtherance of that crime). Santini, by contrast, claims there was

insufficient evidence to show he possessed a firearm in furtherance

of a drug-trafficking crime.

            We agree that the government failed to produce sufficient

evidence from which a rational jury could conclude that there was

a relationship between the respective contraband possessed by

Santini    and   Rodríguez,       and   we   thus    reverse     those    challenged

convictions.       Having    concluded       that        we   must   reverse    those




                                         -2-
convictions, we do not reach the other trial and sentencing errors

that the defendants raise.

                                I.

A. Factual Background

          We recite the facts as the jury could have found them,

viewing the evidence in the light most favorable to the jury

verdict. See United States v. Beltran, 503 F.3d 1, 2 (1st Cir.

2007). On August 10, 2012 two police officers, Edwin Morales-

Sanchez ("Morales") and Orlando Abreu of the Carolina Puerto Rico

Police Department Traffic Patrol, conducted a traffic stop at the

intersection of Puerto Rico Roads 181 and 852. Morales had spotted

a 2002 Honda Accord as it was leaving a parking lot from a hardware

store with tinted windows that he suspected were in violation of

Puerto Rico traffic law.1 Santini was in the driver's seat of the

car, and Rodríguez was in the front passenger seat.

          As soon as the car was pulled over by the police,

Rodríguez stepped out of the car, said "Thank you" to Santini,

began walking along the side of the street adjacent to a stone

wall, and made a call on his cell phone. When Rodríguez remained

stationary at the wall, Morales turned to Santini and informed him

that he had stopped the car because of its tinted windows. He then


     1
      The police officers suspected the tint on the windows was in
violation of article 1005 of Law 22 of the Traffic Laws of the
Commonwealth of Puerto Rico [Window Tint Violation]. The Honda
Accord's window tint was ultimately determined to be within legal
limits.

                               -3-
asked for the car's registration and Santini's driver's license.

Santini told Morales that the car was not his and that he needed to

look in the glove compartment to see if he could find the car's

registration.

          Morales and Abreu then observed Rodríguez's hands shaking

as he was talking on his cell phone. Abreu approached Rodríguez and

said, "Do me a favor and lift up your shirt." Rodríguez responded,

"Why? Why do I have to lift up my shirt? But why?" Morales then

asked Rodríguez to put his hands on the wall, and Abreu proceeded

to lift Rodríguez's shirt and then "bent down to put something on

the ground." Morales then observed a fully loaded, .45 caliber

Glock Model 21 pistol with an extended magazine of twenty-four

bullets on the ground. In addition, $93.50 was found on Rodríguez.

Rodríguez was then arrested.

          Morales turned to Santini, informing him that he was

going to search him. After he searched his waist area and his

chest, he felt Santini's pockets "bulging" and asked him to empty

the contents of his pockets onto the trunk of the car. Santini

placed a large clear bag on the trunk containing 10.2 grams of a

white powdery substance, which Morales thought was cocaine. In

actuality, as subsequent testing determined, the white powder was

not cocaine. Santini also placed a 13.1 gram bag of marijuana onto

the trunk and $1,029 in cash, in the form of forty-seven $20 bills,




                               -4-
a   single    $5     bill,   and   eighty-four   $1    bills.   Inside    the   bag

containing the marijuana there were ten small, clear plastic bags.

              Santini and Rodríguez were separately taken to the police

station      where    they   were   questioned    by    Agent   Omar     Meléndez-

Maldonado, a Task Force officer for the DEA. Santini stated that

Rodríguez was his brother-in-law. He admitted to purchasing the

white powdery substance (the "sham"2 cocaine) for $150 at the

Manuel A. Perez Housing Project and that it was intended for

resale. He stated that the marijuana was for his personal use.

Rodríguez told Agent Meléndez that he did not have a permit to

carry the Glock pistol and that he purchased it for $800 at the

Monte Park Housing Project. He admitted that he had shot the weapon

on three prior occasions.

B. Procedural Background

              On August 16, 2012, a grand jury returned a two-count

indictment charging Rodríguez and Santini with aiding and abetting

the attempted possession of narcotics with the intent to distribute

in violation of 21 U.S.C. § 841(a)(1) (Count Two), and aiding and

abetting the possession of a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. § 924(c) (Count Three).

On October 17, 2012, a superseding indictment was filed adding the

charge of felon in possession of a firearm in violation of 18




      2
          Santini referred to the "sham" cocaine as "corte."

                                        -5-
U.S.C. § 922(g)(1) against Rodríguez (Count One). He pled guilty to

that charge.

             On December 20, 2012, after a three-day trial, a jury

found Rodríguez and Santini guilty of Counts Two and Three. On

April 19, 2013, the district court sentenced Rodríguez to sixteen

months imprisonment for Counts One and Two, and seventy-two months

as to Count Three, to be served consecutively for a total of

eighty-eight months. The district court sentenced Santini to ten

months as to Count Two, and sixty months as to Count Three, to be

served consecutively for a total of seventy months.3

             On appeal, Rodríguez challenges the sufficiency of the

evidence to support the convictions for attempted possession of

drugs with the intent to distribute and the possession of a firearm

in   furtherance    of    a    drug-trafficking     offense.      Santini    only

challenges    the   sufficiency       of   the   evidence    to    support    his

conviction for possession of a firearm in furtherance of drug

trafficking.

                                       II.

             Challenges   to    the   sufficiency    of     the   evidence   are

reviewed de novo. Beltran, 503 F.3d at 2. The inquiry into the

sufficiency of the evidence focuses on whether a rational jury



      3
        Aiding and abetting the possession of a firearm in
furtherance of a drug-trafficking offense in violation of 18 U.S.C.
§ 924(c) (Count Three) carries a mandatory minimum consecutive
imprisonment term of five years. See U.S.S.G. § 2K2.4.

                                       -6-
could have found that the government proved each element of the

crime beyond a reasonable doubt. United States v. Appolon, 715 F.3d

362, 367 (1st Cir. 2013). We evaluate the evidence in the light

most   favorable   to   the   prosecution   and     draw   all   reasonable

evidentiary and credibility inferences in favor of the verdict.

United States v. García-Carrasquillo, 483 F.3d 124, 129-30 (1st

Cir. 2007). Accordingly, "[d]efendants challenging convictions for

insufficiency of evidence face an uphill battle on appeal." United

States v. Pagán-Ferrer, 736 F.3d 573, 590 (1st Cir. 2013) (quoting

United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008)).

           Nevertheless,      we   must   "reject     those      evidentiary

interpretations and illations that are unreasonable, insupportable,

or overly speculative." United States v. Spinney, 65 F.3d 231, 234

(1st Cir. 1995). Where the evidence presented does not support the

inference that a defendant had knowledge of the crime, we have

consistently found the evidence insufficient. See United States v.

Pérez-Meléndez, 599 F.3d 31, 42 (1st Cir. 2010) (holding that

"circumstantial evidence was not sufficient to convict because it

did not adequately support the inference that appellants either

actually knew about or were willfully blind to the controlled

substances they were transporting").




                                   -7-
A. Rodríguez (Aiding and Abetting an Attempt to Possess Narcotics
with Intent to Distribute)

            The Supreme Court recently clarified that aiding and

abetting    liability       requires   the      government   to   show    that    the

defendant had "advance knowledge" of the elements of the offense.

Rosemond v. United States, 134 S. Ct. 1240, 1249 (2014). Advance

knowledge    "means    knowledge       at   a   time   the   accomplice     can   do

something with it — most notably, opt to walk away." Id. at

1249–50. Rodríguez contends that a reasonable jury could not have

found him guilty of aiding and abetting an attempt to possess

narcotics    with     the    intent    to    distribute      because     there    was

insufficient evidence that he had knowledge of Santini's possession

of narcotics.4

            As noted, the evidence showed that Rodríguez and Santini,

who are brothers-in-law, were driving together when they were

pulled over by the police for a suspected traffic code violation.

Once they were pulled over, Rodríguez, seated in the passenger

seat, got out of the car, said "Thank you" to Santini and, after

walking to the corner of the block, made a call on his cell phone.

His hands were shaking. Suspicious that Rodríguez's shaking hands

evinced a consciousness of guilt, Morales asked Rodríguez to put



     4
        The government also argued that Rodríguez was in
constructive possession of the drugs secreted in Santini's pocket.
As a finding of constructive possession requires that Rodríguez was
aware of Santini's possession of the drugs, we need not analyze
this argument separately.

                                        -8-
his hands on the wall, and Abreu proceeded to lift Rodríguez's

shirt and then "bent down to put something on the ground." Morales

then observed a fully loaded, .45 caliber Glock Model 21 pistol

with an extended magazine of twenty-four bullets on the ground.

            A search of Santini revealed that he was carrying 10.2

grams of a white powdery substance, a 13.1 gram bag of marijuana,

ten small, clear, plastic bags, and $1,029 in cash. The government

argues that Santini and Rodríguez's family relationship, their

joint travel, and Rodríguez's visible nervousness when the car was

pulled over, provide enough circumstantial evidence to establish

that Rodríguez was aware of the drugs in Santini's pocket. We

disagree.

            The evidence did not disclose how long Santini and

Rodríguez were together in the car, or what they were doing before

they were in the car prior to arriving at the hardware store. There

was no evidence about the nature of their relationship, other than

that they are brothers-in-law, nor any evidence that they had

discussed or planned to carry out a drug-trafficking offense. There

was no evidence at all about their prior dealings with each other.

            Morales' testimony revealed that he never saw a bulge in

Santini's pockets, where the drugs and $1,029 in cash were stored.

He only asked Santini to empty his pockets because he "felt that

they were bulging" when he was conducting his search of Santini.

The government offered no evidence suggesting that the drugs or


                                 -9-
$1,029 in cash found on Santini were visible to Rodríguez at any

point. In fact, Morales testified that the drugs and cash were only

visible to the arresting officers once Santini placed them on the

trunk of the car. This fact is not surprising. Santini was in

possession of a small quantity of drugs: a 10.2 gram bag of a white

powdery substance that he purchased for $150, and a 13.1 gram bag

of marijuana.

           The   government    points   most   strongly   to    Rodríguez's

nervous behavior after he exited the car to support his knowledge

of, and involvement in, Santini's drug trafficking.            But there is

a   competing,   alternative   explanation     for   Rodriguez's    nervous

demeanor upon being pulled over: namely, that he was in possession

of a firearm that he had purchased, illegally, at a housing project

and for which he lacked a permit. Typically, this competing

inference would pose no difficulty for the government. In order to

proffer sufficient evidence to support a conviction "the government

need not exclude every possible explanation" for a defendant's

conduct.   García-Carrasquillo, 483 F.3d at 131.          Indeed, in most

any other case, the jury would be "free to choose which of the two

conflicting accounts of the evidence to believe, so long as the

evidence viewed in the government's favor is adequate to establish

guilt beyond a reasonable doubt."        United States v. Ayala-García,

574 F.3d 5, 11 (1st Cir. 2009).         Yet, here, Rodríguez's behavior

provided what appears to be the government's sole evidence, beyond


                                  -10-
mere speculation, that Rodríguez had knowledge of and was aiding

and abetting the drug crime. Without additional circumstantial

evidence from which the jury could rationally infer that one was

more supportable than the other, that evidence of nervous behavior

permits two equally plausible inferences. We "must reverse a

conviction on the grounds of evidentiary insufficiency where an

equal or nearly equal theory of guilt and a theory of innocence is

supported by the evidence viewed in the light most favorable to the

verdict."     United States v. Woodward, 149 F.3d 46, 57 (1st Cir.

1998) (quotation and alteration omitted).             Because the government

offered   scant    additional      evidence    to    support    its    proffered

inference here, "a reasonable jury must necessarily entertain a

reasonable     doubt"    about    Rodríguez's       knowledge   of     Santini's

possession of narcotics.         United States v. Andujar, 49 F.3d 16, 20

(1st Cir. 1995).

             Given all of these deficiencies in the government's case

against Rodríguez, the case becomes what it cannot be to support a

conviction of aiding and abetting liability against Rodríguez — a

mere presence case. We have said repeatedly that mere presence

alone "is insufficient to prove knowing possession of narcotics."

United States v. Martinez, 922 F.2d 914, 923 (1st Cir. 1991)

(internal     citation    omitted);      see    also     United       States   v.

Medina-Román, 376 F.3d 1, 4 (1st Cir. 2004) (stating that evidence

is insufficient to support a conviction of aiding and abetting


                                     -11-
where it is based on "mere association" or "mere presence at the

scene of a crime") (quoting United States v. Luciano-Mosquera, 63

F.3d 1142, 1150 (1st Cir. 1995)). We would be undermining that

important proposition of law if we allowed this conviction to

stand.5

B. Santini (Possession of a Firearm in Furtherance of a Drug-
trafficking Offense)

            The   government   relied    on   two   theories   to   support

Santini's conviction for possession of a firearm in furtherance of

a drug-trafficking crime: constructive possession and aiding and

abetting liability.     Both depend in some respect on showing that

Santini had knowledge that Rodríguez was carrying the firearm. A

finding of constructive possession requires a showing "that the

person knows (or has reason to know) that the firearm is within

easy reach, so that he can take actual possession of it virtually

at will."   United States v. Robinson, 473 F.3d 387, 399 (1st Cir.

2007). To aid and abet a § 924(c) violation Santini must have had

"advance knowledge" Rodríguez was carrying a gun. Rosemond, 134 S.

Ct. at 1249. "[A]n unarmed accomplice cannot aid and abet a

§ 924(c) violation unless he has foreknowledge that his confederate




     5
       Because we hold that the government failed to establish
Rodríguez's knowledge of the drugs, we must also vacate on that
basis his conviction for aiding and abetting the possession of a
firearm in furtherance of a drug-trafficking offense in violation
of 18 U.S.C. § 924(c).

                                  -12-
will commit the offense with a firearm." Id. (internal quotation

marks omitted).

          Santini was driving the Honda Accord and Rodríguez, in

the passenger seat, was in possession of a .45 caliber Glock pistol

and an extended magazine. At oral argument, the government stressed

that a Honda Accord is such a small car that Santini must have seen

that Rodríguez was carrying the Glock pistol with its extended

magazine. However, according to the evidence presented at trial,

the arresting officers saw the gun for the first time when they

asked Rodríguez to lift his shirt. They did not report seeing the

gun when Rodríguez was walking from the car, or when he was

standing on the corner talking on his cell phone. The officers

stated that they only asked Rodríguez to lift his shirt because he

was acting suspiciously, not because they saw the bulge of the gun.

Moreover, the government failed to emphasize any circumstantial

evidence from which the jury could conclude that Santini was aware

of the firearm while Rodríguez was in the vehicle. Given this

failure, and the evidence at the jury's disposal, the government's

argument that Santini must have seen the gun on Rodríguez's person

— and thus either constructively possessed the firearm or aided and

abetted Rodríguez's possession — rests on speculation.

          Cases upholding aiding and abetting convictions that have

found advance knowledge of a firearm had facts strikingly different

from those here. For example, in United States v. Diaz-Castro, we


                               -13-
held that a defendant had advance knowledge of his co-defendant's

possession of a firearm where his co-defendant testified that he

instructed him to bring a firearm to the drug deal to provide

security. 752 F.3d 101, 107 (1st Cir. 2014). Similarly, the Seventh

Circuit found that a defendant had advance knowledge of his co-

defendant's possession of a gun sufficient for aider and abetter

status under Rosemond where he and his co-defendant cooperatively

stole a car, kidnapped its driver, and his co-defendant held the

driver at gunpoint while he was in the car. United States v.

Newman, 755 F.3d 543, 546 (7th Cir. 2014).

          In the final analysis, the government's case against

Santini on the charge of possession of a firearm in furtherance of

a drug-trafficking offense rests on the same faulty premise that

undoes the case against Rodríguez — that mere presence in the car

with an alleged accomplice is enough to establish the guilty

knowledge required by aider and abetter liability. It is not. We

must also vacate the firearm conviction against Santini.

                               III.

          With Santini, the driver of the car, in possession of a

small quantity of drugs (or what appeared to be drugs), and

Rodríguez, the passenger, in possession of a Glock pistol, the

circumstances of their arrest were suspicious. A grand jury found

in these circumstances probable cause to believe that Santini and

Rodríguez were aiding and abetting each other in the attempted


                               -14-
possession of drugs and the use of a firearm in furtherance of drug

trafficking. At trial, however, the government must convert that

suspicion of criminal conduct and that probable cause into proof

beyond a reasonable doubt. For the reasons stated, the government

failed to do that here.

            We hold that the evidence was insufficient for a rational

jury to convict Rodríguez of aiding and abetting an attempt to

possess narcotics with the intent to distribute in violation of 21

U.S.C. § 841. It follows, therefore, that he could not be guilty of

possession of a firearm in furtherance of that offense in violation

of   18   U.S.C.   §   924(c).   Similarly,   we   hold   that   there   was

insufficient evidence for a rational jury to convict Santini of

aiding and abetting the possession of a firearm in furtherance of

a drug-trafficking offense in violation of 18 U.S.C. § 924(c). We

vacate these convictions and order the entry of judgments of

acquittal with respect to them. The judgment of conviction based on

Rodríguez's guilty plea to possession of a firearm by a prohibited

person in violation of 18 U.S.C. § 922(g)(1) remains in place, as

does Santini's conviction at trial for possession of drugs with the

intent to distribute in violation of 21 U.S.C. § 841. We remand to

the district court for re-sentencing on those convictions.

            So ordered.




                                    -15-
