           United States Court of Appeals
                      For the First Circuit

No. 14-2183

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                   CARLOS JAVIER MAYMÍ-MAYSONET,

                       Defendant, Appellant.


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

           [Hon. Gustavo A. Gelpí, U.S. District Judge]


                              Before

                  Torruella, Hawkins,* and Barron,
                          Circuit Judges.



     Raymond Rivera-Esteves, for appellant.
     Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United States
Attorney, were on brief, for appellee.



                         February 5, 2016




*
    Of the Ninth Circuit, sitting by designation.
            HAWKINS,       Circuit    Judge.        Following      a    jury    trial,

defendant       Carlos   Javier    Maymí-Maysonet      ("Maymí")        appeals   his

convictions for conspiring to possess and aiding and abetting to

possess with intent to distribute five kilos or more of cocaine.

Maymí contends there was insufficient evidence to sustain the

conviction.       We affirm.

                         FACTS AND PROCEDURAL HISTORY

            In July 2012, Homeland Security agents were conducting an

undercover sting operation at the Hampton Inn & Suites in Isla

Verde, Carolina, Puerto Rico.              Posing as sellers, they planned a

sham drug transaction for five kilos of cocaine at $19,000/kilo.

Agents were stationed outside the hotel conducting surveillance and

inside a hotel room posing as drug traffickers. The primary target

of the investigation was co-defendant Tirson Rodríguez-Belliard

("Rodríguez").       To arrange the transaction, the agents were using

the cooperation of a confidential informant ("CI"), who did not

testify at trial.

            Around noon, an agent observed Rodríguez and a companion,

later identified as co-defendant García-Calderón ("García") arrive,

park   on   a    service   road,     and    walk   towards   the       nearby   Lupi's

Restaurant.       Around 1:11 p.m., the agent saw Rodríguez and García

returning from the restaurant, now accompanied by defendant Maymí.

The three went to the area where Rodríguez had parked and stationed

themselves against a fence.


                                           -2-
           Shortly thereafter, around 1:37 p.m., the trio were

joined by the CI.    The men spoke for about three minutes, and then

the CI left and walked towards the hotel.    At 1:59 p.m., the three

defendants walked towards the Hampton Inn; Rodríguez and García

positioned themselves near the driveway entrance, while Maymí

headed towards a nearby cockfighting ring.     Two minutes later, a

red Suzuki vehicle exited the cockfighting ring parking lot and

drove past the Hampton Inn; the agent could not see who was driving

or how many passengers were in the vehicle.

           The red Suzuki returned seventeen minutes later (at 2:18

p.m.) and drove into the Hampton Inn parking lot through its

driveway entrance and parked.     Rodríguez and García had remained

stationed by the hotel driveway while the vehicle was gone.    Upon

its return, they followed it into the hotel parking lot and out of

the view of the agent.    Two minutes later (2:20 p.m.), the agents

inside the hotel received the call indicating the money for the

drugs had arrived.     At 2:26, Rodríguez and García met the CI in

front of the hotel lobby and were joined by the agents inside the

hotel.   Rodríguez was now carrying a black bag.

           García asked the agents if they would go upstairs, count

the money, and send the narcotics down for somebody else to take it

away ("bring down the work so that the guys can leave . . . .").

Rodríguez, the CI, and one of the agents went upstairs while García

and the other agent remained in the hotel lobby.    The agent asked


                                 -3-
García if he had eaten, and García replied that he and his

companions had eaten.

           Rodríguez    was   arrested     upstairs   in   the    hotel    room.

Agents seized the black bag, which contained $92,500.               Rodríguez

also had $10,000 in his pocket.          At approximately the same time,

García was arrested.     Three individuals were also arrested in the

red Suzuki -- the driver, another passenger, and Maymí.                   At the

time of his arrest, immediately after exiting the back seat of the

vehicle, Maymí was found to have $10,500 in cash on his person.1

           The U.S. Attorney's Office decided not to prosecute the

driver and other passenger in the Suzuki, but did bring indictments

against Maymí, García, and Rodríguez.         The government also decided

not to use the CI as a witness.       García and Rodríguez pled guilty

prior to trial.    After Maymí's two-day trial, the jury returned a

verdict of guilty on both counts.           Maymí moved for a judgment of

acquittal, which the court denied.            Maymí was sentenced to 240

months in prison and 10 years of supervised release.

                          STANDARD OF REVIEW

           We review "preserved challenges to the sufficiency of the

evidence de novo."     United States v. Peña, 586 F.3d 105, 111 (1st

Cir.   2009).     We   must   view   "the    evidence,     both   direct     and

circumstantial, in the light most favorable to the prosecution and



1
   The parties stipulated at trial that this money was returned to
Maymí.

                                     -4-
decide whether that evidence, including all plausible inferences

drawn therefrom, would allow a rational factfinder to conclude

beyond a reasonable doubt that the defendant committed the charged

crime." United States v. Cruz-Rodríguez, 541 F.3d 19, 26 (1st Cir.

2008).

                                   DISCUSSION

            Maymí contends that the government failed to present

sufficient evidence that he knowingly joined a conspiracy or

knowingly aided and abetted Rodríguez and García in committing a

crime.    While there is no direct evidence of Maymí's knowledge in

this case, reliance on indirect evidence is "both permissible and

commonplace," United States v. Spinney, 65 F.3d 231, 234 (1st Cir.

1995); circumstantial evidence and the inferences drawn from it may

be sufficient to sustain a conviction. United States v. Louder, 23

F.3d 586, 589-90 (1st Cir. 1994).                The evidence need not exclude

"every     possible        hypothesis     of     innocence"     to   support    the

convictions.     See United States v. Quejada-Zurique, 708 F.2d 857,

861 (1st Cir. 1983). However, "if the evidence viewed in the light

most    favorable     to    the   verdict       gives   equal   or   nearly    equal

circumstantial support to a theory of guilt and a theory of

innocence of the crime charged, this court must reverse the

conviction." United States v. Flores-Rivera, 56 F.3d 319, 323 (1st

Cir. 1995).     Nonetheless, the "evidence in a criminal case should

be     viewed   in    its     totality,     for     evidence    --   particularly


                                          -5-
circumstantial      evidence     --    often       has   an   exponential     effect."

United    States    v.   O'Brien,      14    F.3d    703,     707   (1st   Cir.    1994)

(citation omitted).

             Maymí argues that his presence at the scene of the

meeting between the co-defendants and the CI cannot demonstrate his

willing participation in the illegal activities. The jury here was

properly instructed that mere presence at the scene of a crime is

not enough, but that the requisite intent may be inferred from the

surrounding circumstances. See id. at 859. In addition, "[j]urors

can be assumed to know that criminals rarely welcome innocent

persons    as     witnesses    to     serious      crimes     and   rarely    seek    to

perpetrate       felonies     before     larger-than-necessary             audiences."

United States v. Ortiz, 966 F.2d 707, 712 (1st Cir. 1992).

             Furthermore, Maymí was not only present at the meeting

with the CI, he was also found in the backseat of the red Suzuki in

the hotel parking lot with a substantial amount of cash on his

person.    The car departed the parking lot two minutes after Maymí

returned from the conversation by the fence with the co-defendants,

and returned to the hotel two minutes before the co-defendants

notified    the    agents     they    had    the    money     for   the    deal.     The

co-defendants waited at the entrance of the hotel parking lot,

watched the vehicle leave, and walked in its direction when it

returned.       And, minutes after the vehicle returned, Rodríguez was

spotted in the parking lot with a black bag in his hands -- the


                                            -6-
same black bag that would be found to contain the money to be used

to purchase the drugs.      This timing supports an inference that the

car left to pick up the money for the transaction.                "When a

plausible read of the record supports the verdict, we will not

overturn the jury's determination on appeal."           United States v.

Morales-de Jesús, 372 F.3d 6, 21 (1st Cir. 2004).2

           If each piece of the puzzle were viewed individually,

then Maymí would have a better argument. But taken altogether, the

indirect evidence pushes these "mere coincidences" over the edge.

See O'Brien, 14 F.3d at 707 ("A beehive near a country lane tells

a stranger very little about the use to which the property is

devoted.   Yet, if there are eighty or ninety beehives in a shed,

who would doubt that he had stumbled upon an apiary?").               Jurors

"are neither required to divorce themselves from their common sense

nor abandon the dictates of mature experiences."        United States v.

Hernández, 995 F.2d 307, 314 (1st Cir. 1993). Viewing the evidence

in the light most favorable to the government, as we must, we

cannot   say   that   the   evidence   "gives   equal   or   nearly    equal


2
    We also note that we are called upon to consider "the record
evidence (and any reasonable inferences therefrom) as a whole
. . ." to determine whether the evidence is sufficient to sustain
the verdict. United States v. Downs-Moses, 329 F.3d 253, 261 (1st
Cir. 2003) (emphasis added).       Thus, we will not engage in
speculation about what stronger evidence the government could have
presented in its case-in-chief. We ask only whether the evidence
it did present, viewed in the light most favorable to the
prosecution, would have permitted a rational jury to find the
defendant guilty beyond a reasonable doubt. Id. The civil cases
cited by the dissent in footnote 1 do not alter our task.

                                   -7-
circumstantial support to a theory of guilt and a theory of

innocence," Flores-Rivera, 56 F.3d at 323.    Here, there are too

many proximate connections between Maymí's actions and those of the

drug traffickers.   And so the jury could reasonably infer Maymí's

knowing participation in or aiding and abetting the conspiracy from

the sequence of events.

          AFFIRMED.



                    -Dissenting Opinion Follows-




                                -8-
             TORRUELLA, Circuit Judge, dissenting.            There is no doubt

that reliance on circumstantial evidence to support a conviction is

permissible.        United States v. Spinney, 65 F.3d 231, 234 (1st Cir.

1995). A factfinder may certainly draw reasonable inferences based

on the evidence.        See United States v. Loder, 23 F.3d 586, 589-90

(1st Cir. 1994). "[T]he cumulative probability of guilt created by

all the evidence, rather than the probability of guilt created by

a single piece of evidence, . . . is the touchstone in deciding

whether a reasonable jury could find the defendant guilty beyond a

reasonable doubt."        United States v. Burgos, 703 F.3d 1, 15 (1st

Cir. 2012) (quoting United States v. Williams, 698 F.3d 374, 379

(7th Cir. 2012)).        And, of course, a jury verdict that represents

a "plausible rendition of the record" must be allowed to stand.

United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992).

             But "to sustain a conviction for conspiracy . . . the

evidence must show that (1) a conspiracy existed, (2) the defendant

had knowledge of the conspiracy, and (3) the defendant knowingly

and voluntarily participated in the conspiracy."              United States v.

Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011).               "With respect to

the   second    element,       the   Government   must   establish    that     the

defendant had knowledge of the crime charged." Burgos, 703 F.3d at

10 (citing United States v. Pérez-Meléndez, 599 F.3d 31, 43 (1st

Cir. 2010)).         Specifically, where a defendant is charged with

conspiracy     to    possess    a    controlled   substance    with   intent   to


                                         -9-
distribute,    "[s]howing    that     the    defendant      had    knowledge    of

generalized illegality is insufficient; the Government must show

that the defendant knew the conspiracy involved a controlled

substance . . ." Id. (internal citations omitted) (emphasis added)

(citing Pérez–Meléndez, 599 F.3d at 41).              To satisfy the third

requirement, the Government had to show "that the defendant both

intended to join the conspiracy and intended to effectuate the

objects of the conspiracy."       Dellosantos, 649 F.3d at 116 (citing

United States v. Portalla, 496 F.3d 23, 26 (2007)). To satisfy the

third prong, "[a] defendant 'must in some sense promote [the

conspiracy]    himself,   make   it    his    own,   have     a    stake   in   its

outcome.'"     Burgos, 703 F.3d at 11 (quoting United States v.

Aponte-Suárez, 905 F.2d 483, 491 (1st Cir. 1990)).

             "[T]o   establish   aiding      and   abetting       liability,    the

[G]overnment [had to] prove, first, that the principal committed

the substantive offense charged, and second, that the accomplice

'became associated with [the principal's criminal] endeavor and

took part in it, intending to assure its success.'"                United States

v. González, 570 F.3d 16, 28-29 (1st Cir. 2009) (quoting United

States v. Matos-Quiñones, 456 F.3d 14, 20 n.5 (1st Cir. 2006)). In

the context of aiding and abetting, "knowledge that one is guilty

of some crime is not the same as knowledge that one is guilty of

the crime charged." Pérez-Meléndez, 599 F.3d at 43 (quoting United

States   v. Nieves-Castaño, 480 F.3d 597, 601 (1st Cir. 2007)


                                      -10-
(emphasis in original)).           As we have elsewhere observed, "[m]ere

presence at the scene or even knowledge that the crime is being

committed     is     generally   insufficient       to    establish    aiding   and

abetting."     United States v. Quejada-Zurique, 708 F.2d 857, 859

(1st Cir. 1983) (citing United States v. Tarr, 589 F.2d 55, 59 (1st

Cir. 1978); see also United States v. Guerrero, 114 F.3d 332, 342

(1st Cir. 1997); United States v. Steuben, 850 F.2d 859, 864 (1st

Cir. 1988).

             This Court's precedent compels me to conclude that the

evidence in this case was not sufficient to give the jury a basis

for finding Maymí guilty beyond a reasonable doubt, United States

v. Cruz-Rodríguez, 541 F.3d 19, 26 (1st Cir. 2008), of either

conspiracy or aiding and abetting. With respect to conspiracy, the

Government failed to prove the essential second and third prongs of

that charge, that Maymí knew of the conspiracy -- specifically,

that he knew that the conspiracy involved a controlled substance --

and voluntarily participated in it.               See Dellosantos, 649 F.3d at

116.    That evidentiary gap likewise precluded satisfaction of the

second prong of aiding and abetting.              González, 570 F.3d at 28-29.

             The     Government,    and   majority,       believe    that   Maymí's

presence during the conversation with the CI, the content of which

was    not   known    to   the   jury,    along    with   other     circumstantial

evidence, was sufficient to indicate his knowledge of the drug

deal.    I think it is clear that it was not.                 Had evidence been


                                         -11-
produced that the conversation Rodríguez, García, Maymí, and the CI

held by the fence involved planning a drug transaction, the

Government's burden of proof likely would have been satisfied, and

handily. However, the Government failed to have the CI testify and

did not timely submit the recording of that conversation.3

          Although   the   majority   emphasizes   that   the   jury   was

instructed that "mere presence at the scene of a crime is not

enough," supra at 7, it misses the obvious: Maymí was not present

for the crime or at the crime scene.        Unlike the defendant in

Ortiz, for example, who was silently present during a drug deal,



3
   The majority notes that the CI did not testify at trial. Supra
at 2. I would add that the record reflects that the Government
submitted an informative motion regarding the CI, United States'
Informative Motion, United States v. Maymí-Maisonet, No. 3:12-cr-
00623-GAG-SCC (D.P.R. Sept. 25, 2013), ECF No. 91, which suggests
the Government originally intended that he testify. Maymí's brief
noted that "[t]he case initially included a witness identified
herein as the CI. Discovery relating to the trustworthiness of the
CI was provided to the defense and the district court was informed
by the Government before trial that the said witness would not be
used." The Government also had but was not able to use in its case
in chief "a recording wherein the defendant is heard conversing
with the CI and with the two other defendants discussing the money
issue -- the bringing of the money for the purchase of the cocaine"
as doing so, counsel conceded to the court, would be "unduly
prejudicial" due to late notice to defense counsel.        That the
Government did not call the CI to testify gives rise to a negative
inference as to the favorability of that testimony. Cf. Layne v.
Vinzant, 657 F.2d 468, 472 (1st Cir. 1981). And, needless to say,
the fact that the Government had a recording of a conversation
regarding the money allegedly used in the charged transaction, but
was unable to use by reason of the Government's own inaction,
cannot only not be used as evidence of knowledge of the criminal
enterprise but raises a presumption that the "evidence" not used
was not favorable to the Government. Cf. Commercial Ins. Co., of
Newark, N.J. v. González, 512 F.2d 1307, 1314 (1st Cir. 1975).

                                 -12-
Maymí was present during a conversation among people who later

conducted a drug deal.   966 F.2d at 713.   Maymí was never at the

scene of the crime, the hotel room.   He was in the backseat of the

Suzuki outside, which one may glean was not a crime scene, nor

connected to the crime, as its two other occupants were released.

          Nor did the cash found on Maymí show knowledge of or

participation in the drug crime. The Government did not argue that

the $10,500 found on Maymí -- which was, as the majority notes,

returned to Maymí, supra at 5, n.1, a strong indication that law

enforcement could not connect the cash to the crime -- was used to

facilitate the drug deal.   In fact, in its opening argument, the

Government provided that the $102,500 found with Rodríguez was the

payment for the "cocaine," making no mention of the $10,500.4   In

closing, the Government -- even as it conceded that Maymí's cash

was returned -- argued only that the $10,500 was significant

because "not everyone is going to carry more than $10,000 in cash

in their pockets just to walk around."

          García's statements about how his company had already

eaten and "the guys" were in the car, also fail to support even the


4
   I note at this juncture, as a general matter, that I view with
increasing skepticism the practice of creating artificial criminal
situations to arrest and prosecute individuals for real crimes.
See, e.g., United States v. Kindle, 698 F.3d 401, 412-16 (7th Cir.
2012) (Posner, J., concurring in part and dissenting in part),
rev'd en banc sub nom. United States v. Mayfield, 771 F.3d 417 (7th
Cir. 2014); United States v. Hudson, 3 F. Supp. 3d 772 (C.D. Cal.),
rev'd sub nom. United States v. Dunlap, 593 F. App'x 619 (9th Cir.
2014).

                               -13-
inference that Maymí knew of the drug deal.               Here, no direct

evidence indicated García was referring to the Suzuki; established

that "the guys" included Maymí, as the car had two other occupants;

or tied the red Suzuki to the drug crime.               The release of the

Suzuki's other occupants and return of Maymí's $10,500 suggest a

lack of involvement.

             The circumstantial evidence presented, and the reasonable

inferences that could have been drawn from it, simply did not

suffice to allow a jury to conclude beyond a reasonable doubt that

Maymí knew of the conspiracy to possess and distribute a controlled

substance or that he knowingly aided and abetted that crime.            See

Spinney, 65 F.3d at 234.       From the circumstantial evidence, the

jury may have inferred that (1) Maymí went to get, or get in, the

Suzuki; left in the car; and returned to the Hampton Inn because of

the conversation with Rodríguez, García, and the CI; (2) Rodríguez

retrieved the black bag later found to contain the cash from the

Suzuki; and (3) García's statement to Ramos about "the guys"

referred to the driver and at least one other occupant of the

Suzuki, implicating them as people waiting to receive the "work"

and leave with it -- and no more.          See Loder, 23 F.3d at 589-90.

             As in Loder, where this Court held that knowledge of a

mail fraud scheme could not be imputed when no evidence was

introduced     that   information   concerning    the    scheme   was   ever

communicated to the defendant, here there is no basis for finding


                                    -14-
that information about the charged crime was communicated to Maymí.

23 F.3d at 592.    There is notably less basis for making such an

inference here than there was in Burgos, in which this Court held

that even a phone conversation recorded via wiretap in which a

police   officer    defendant    informed      a   drug    distributor      of

surveillance and warned, "let's take it easy for now," along with

an unrecorded five-to-ten minute conversation between the two men

on the street, 703 F.3d at 6, and evidence of their acquaintance,

could only support an inference of knowledge of general illegal

activity.    Id. at 13-15.

            The majority relies on the principle that a jury verdict

that represents a "plausible rendition of the record," including

inferences, must be allowed to stand.         Ortiz, 966 F.2d at 711; see

also United States v. Morales-de Jesús, 372 9 F.3d 6, 21 (1st Cir.

2004).   It has neglected the corollary that inferences that are

"certainly plausible" may still have limited significance.                  See

Pérez-Meléndez,    599   F.3d   at   43-44;   Burgos,     703   F.3d   at   17.

Suggestive though they may be, none of the available inferences

here establish that Maymí knew of the drug crime specifically or

knowingly participated in its commission.            Only by "stack[ing]

inference upon inference" of limited significance in contravention

of our precedent has the majority determined that the jury could

have found Maymí's guilt beyond a reasonable doubt.              Burgos, 703

F.3d at 9 (citing United States v. Valerio, 48 F.3d 58, 64 (1st


                                     -15-
Cir. 1995)). Without stacking inferences, this Court is left with,

at the very most, evidence that suggests knowledge of "generalized

illegality," which Burgos held insufficient to sustain a conviction

for conspiracy, 703 F.3d at 10, 16, and Pérez-Meléndez determined

insufficient to support a conviction for aiding and abetting.   599

F.3d at 46-47.

          I thus respectfully dissent from the judgment.




                               -16-
