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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br> <br>No. 97-2099 <br> <br>                          UNITED STATES, <br>                            Appellee, <br> <br>                                v. <br> <br>                        FIDEL A. MORILLO, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>         [Hon. Salvador E. Casellas, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                      Boudin, Circuit Judge, <br>Schwarzer, Senior District Judge, <br>and Saris, District Judge. <br> <br>                      _____________________ <br> <br>     Edgardo Rodrguez-Quilichini, Assistant Federal Public <br>Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, <br>was on brief, for appellant. <br>     Desire Laborde-Sanfiorenzo, Assistant United States Attorney, <br>with whom Guillermo Gil, United States Attorney, Jos A. Quiles- <br>Espinosa, Senior Litigation Counsel, and Camille Vlez-Riv, <br>Assistant United States Attorney, were on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                        October 13, 1998 <br>                      ____________________

          SARIS, District Judge.  Appellant Fidel Morillo was arrested <br>along with five others in connection with the seizure of three <br>kilos of cocaine from drug couriers in the San Juan, Puerto Rico <br>airport.  At trial, the government contended that Morillo's role <br>in the conspiracy was to allow his alleged co-conspirators to use <br>his apartment as the operational center of the drug conspiracy.  <br>A jury convicted Morillo of conspiracy in violation of 21 U.S.C. <br> 846 but found him not guilty of possession of cocaine with <br>intent to distribute in violation of 21 U.S.C.  841 and 18 <br>U.S.C.  2.  His sole argument on appeal is that the evidence <br>against him was insufficient to support a conviction and that, <br>therefore, the trial judge should have allowed his motion for <br>acquittal.  After a careful review of the record, we now reverse, <br>although we agree with the trial judge that this is a close case. <br>I.  FACTUAL BACKGROUND <br>          We summarize the relevant facts, "interpreting the record in the <br>light most helpful to the government."  United States v.  Ortiz, <br>966 F.2d 707, 710 (1st Cir. 1992). <br>          In April 1996, Fidel Morillo leased an apartment located at HY-1, <br>252 Street, in the "Country Club" neighborhood of Carolina, <br>Puerto Rico ("HY-1").  It is near the San Juan airport.  Morillo <br>had been experiencing marital difficulties and moved into HY-1 <br>with his mistress, Felicia Santos.  At the inception of the <br>lease, Morillo was given the only key to the apartment.  The <br>small apartment, furnished by Morillo, had a living room, a <br>kitchen and a bedroom, which was separated from the living room <br>by a door.  Morillo, who worked as an installer at a water heater <br>supply company, stopped spending the night at the apartment in <br>mid-August 1996, when he moved back to his wife's house.  <br>However, he made rent payments on HY-1 through October 1996.  <br>Santos continued to live in the apartment until early- to mid- <br>September 1996, when she went to New York for about fifteen days.  <br>During that period, landlord Ysidro Fernndez, who lived in an <br>attached house, only saw Morillo's truck at the apartment once or <br>twice.  Santos returned briefly on October 2, only long enough to <br>tell the landlord that she was leaving permanently to return to <br>her native Santo Domingo, Dominican Republic.  <br>     Also on October 2, co-conspirators Fiordaliza Durn and Rosa <br>Peguero flew from John F. Kennedy Airport in New York to San Juan <br>for the purpose of transporting cocaine from Puerto Rico back to <br>New York.  Two brothers, co-conspirators Eddison and Hanzel <br>Nez, picked the women up at the San Juan airport early that <br>evening and brought them to HY-1.  Hanzel Nez let the women <br>into the apartment with a key.  No one was in the apartment when <br>Durn and Peguero were dropped off there, without their luggage, <br>and they slept together in the single unoccupied bedroom. <br>     At approximately 9:00 or 9:30 the next morning, October 3, <br>Morillo knocked on the apartment door of HY-1.  Peguero, who had <br>met Morillo in September 1996 when she previously stayed in the <br>apartment, opened the door and let Morillo in.  Morillo changed <br>into some clothes that were kept in the bedroom closet.  Durn, <br>who had never met Morillo, was wearing a man's shirt that she had <br>obtained from the bedroom closet, and she told him she did not <br>know "to whom it belongs."  Morillo told Durn it was his shirt <br>but that she could keep it because it did not fit him anymore.  <br>Morillo used the telephone in the living room briefly and then, <br>at Peguero's request, took her to a nearby bodega for cigarettes <br>in a large red van.  After taking Peguero back to HY-1, Morillo <br>left the apartment.  There is no evidence that there were drugs <br>or paraphernalia in plain view anywhere in the apartment during <br>Morillo's October 3 visit.  Also, there is no evidence that <br>Morillo spoke with Peguero or Durn, both of whom testified at <br>trial, about the purpose of their sojourn. <br>     Morillo did not return to HY-1 or have any other contact with the <br>two women or the Nez brothers on October 3.  The brothers <br>stopped by HY-1 after Morillo's visit and were in and out <br>throughout the day along with an unidentified man.  At some <br>point, they brought to HY-1 another woman, co-conspirator <br>Altagracia Domnguez, who was a cousin of Morillo's mistress, <br>Santos.  Like Peguero, Domnguez had been at the apartment during <br>her September visit to Puerto Rico.  During the day, the Nez <br>brothers assisted the couriers with arrangements to return to New <br>York, including visits to several travel agents.  The brothers <br>took the women to a shopping mall and met them later that evening <br>for dinner.  Morillo did not participate in any of these <br>activities.  Domnguez slept in HY-1 with Durn and Peguero on <br>the night of October 3.  The men slept elsewhere. <br>     Between 9:00 and 10:00 a.m. on October 4, the Nez brothers and <br>the other man returned to HY-1 with luggage and a black bag <br>containing the drugs.  The three men went into the bedroom, took <br>out three kilogram bags of cocaine, and prepared them for <br>transportation to New York with transparent paper, tape and <br>Vaseline.  At least one of the men and Domnguez secured the <br>packages of cocaine to the thighs of Durn and Peguero.  <br>Domnguez was scheduled to return to New York with more drugs <br>later that afternoon.  The drug paraphernalia, cellophane wraps, <br>tape and a calling card covered with white powder residue were <br>scattered in plain view throughout the bedroom on the bed and the <br>bureau as the women prepared to leave the apartment.  <br>     At about 10:00 or 10:30 a.m. on October 4, Morillo went to the <br>house physically attached to HY-1 to see Fernndez, the landlord <br>and Morillo's trusted co-worker and friend.  Morillo asked <br>Fernndez if he could borrow Fernndez' car, a late-model green <br>Hyundai, to go to their workplace because his vehicle was in the <br>shop.  Morillo left the building in the Hyundai for approximately <br>half an hour and returned the car at about 11:00 a.m.  While he <br>was gone, Fernndez walked through an unlocked door into the <br>living room of HY-1, as was his custom, to get something from the <br>refrigerator.  He saw one "fat" man, whom he did not recognize, <br>sleeping on the living room couch.  When Morillo returned in the <br>Hyundai, he gave the car keys back to Fernndez.   <br>     Sometime around 11:00 a.m., after the drugs were attached to the <br>couriers and just as Eddison Nez was preparing to take the two <br>women to the airport, Morillo stopped by HY-1 itself for the <br>first time since his brief visit the previous day.  As Morillo <br>walked into the living room, he said in Spanish, "Oh, las <br>muchachas se van ya?" or "Are the girls leaving now?"  <br>Immediately thereafter, Eddison Nez, Durn and Peguero left the <br>apartment in a green Mitsubishi Mirage.  When they left for the <br>airport, the door to the bedroom was open.  Morillo remained in <br>the apartment with Hanzel Nez, Domnguez and the other man.  He <br>was not present when the drugs were prepared, packaged, and put <br>on the "mules." Only five to eight minutes after he had returned <br>with the Hyundai, Morillo went back to the attached house to ask <br>Fernndez for a ride in the Hyundai to pick up Morillo's red <br>pickup truck at the shop, where he and his wife had left it <br>earlier that day.  Fernndez said he could not go with Morillo, <br>but he let him re-borrow the Hyundai.   Meanwhile, at approximately <br>11:10 a.m., federal agents began following the Mitsubishi a short <br>distance from the apartment at another house, where Eddison Nez <br>had stopped to pick up a plane ticket.  They went directly to the <br>San Juan airport from the house.  At approximately 11:20 a.m., <br>Durn and Peguero got out of the car at the airport, and Eddison <br>Nez drove away.  Durn and Peguero were stopped and then <br>questioned, searched and arrested in the airport's DEA office.  A <br>total of three kilos of cocaine was seized from the two women, <br>along with two plane tickets from San Juan to Kennedy Airport.  <br>Agents followed the Mitsubishi after it left the airport, but <br>they stopped following it or lost the car between noon and 12:20 <br>p.m. <br>     At around 12:30 p.m., agents spotted the Mitsubishi near the <br>point where they had lost contact with it.  The car was stopped <br>in front of a travel agency about 1000 meters from HY-1, and the <br>agents saw Domnguez get into the car.  They stopped the <br>Mitsubishi after it drove away and placed Hanzel Nez and <br>Domnguez, the only occupants of the car, under arrest.  During <br>the stop and arrest, agents recognized Eddison Nez riding by <br>the scene in the passenger seat of Fernndez' Hyundai.  The <br>agents put on their car's siren and signaled the Hyundai to pull <br>over.  Then Eddison Nez looked behind him and, seeing the <br>police officer in the middle of the street aiming a pistol at the <br>Hyundai from a range of ten feet, motioned to the car's driver, <br>Morillo, to continue driving.  Morillo slowed the car but drove <br>approximately fifty meters before he stopped.  Both Morillo and <br>Eddison Nez were arrested on the scene. <br>     Tracing the Hyundai back to HY-1, the police arrived at the <br>apartment around 3:00 p.m. and found both the front and back <br>doors open.  They searched Fernndez' house with his consent and, <br>pursuant to a search warrant, searched the apartment on the <br>evening of October 4 after 10:00 p.m.  They seized Morillo's work <br>beeper and his personal telephone book from the living room.  <br>There were also two phone bills, one under Santos' name dated <br>August 22, 1996.  The police seized some transparent paper, tape <br>and a jar of Vaseline (in a Walgreen's bag), which were all still <br>in plain view on the bed and bureau in the bedroom.  They also <br>seized a phone card, dusted with white residue, from the top of a <br>bureau, which was also sprinkled with that powder, and an <br>electronic scale from the bedroom closet.  Finally, police found <br>two more kilos of cocaine, together with more drug paraphernalia, <br>under the bed in the bedroom, wrapped in a woman's robe or <br>nightgown.  Domnguez' bag and clothes were still in the bedroom.  <br>The package of two kilos of cocaine could not be seen without <br>lifting two mattresses and disrobing them.  The door to the <br>bedroom was closed at the time the police entered.  The bedroom <br>was in the same condition at the time of the search as it was <br>when Peguero and Durn left for the airport.  A videotape of the <br>appearance of the apartment at the time of the search was <br>introduced into evidence and played for the jury. <br>     Morillo, the Nez brothers, Domnguez, Durn and Peguero were <br>indicted on one count of conspiracy to distribute cocaine and one <br>count of possession of cocaine with intent to distribute.  Durn <br>and Peguero, pursuant to plea agreements, testified at the joint <br>trial of Morillo and the Nez brothers in January 1997.  The <br>Nez brothers were found guilty on both counts of the <br>indictment.  The jury found Morillo guilty on Count I <br>(conspiracy) and not guilty on Count II (possession with intent <br>to distribute).  Although pronouncing it a close call, the trial <br>judge denied Morillo's motion for acquittal at the end of the <br>government's case and again after all the evidence was presented.  <br>Morillo was sentenced to 78 months in prison on August 1, 1997.  <br>This appeal followed. <br>II.  SUFFICIENCY OF THE EVIDENCE <br>     Morillo asserts that the trial judge erred in denying his motion <br>for acquittal because there was insufficient evidence for a jury <br>to convict him of conspiracy to distribute cocaine with the Nez <br>brothers, Peguero, Durn and Domnguez. <br>     Our review on this single appeal issue is familiar, often <br>recited, and limited: <br> <br>          The challenges to the sufficiency of the evidence and to the <br>          denial of the motion for judgment[] of acquittal raise a single <br>          issue.  We assess the sufficiency of the evidence as a whole, <br>          including all reasonable inferences, in the light most favorable <br>          to the verdict, with a view to whether a rational trier of fact <br>          could have found the defendant guilty beyond a reasonable doubt.  <br>          We do not weigh witness credibility, but resolve all credibility <br>          issues in favor of the verdict.  The evidence may be entirely <br>          circumstantial, and need not exclude every reasonable hypothesis <br>          of innocence; that is, the factfinder may decide among reasonable <br>          interpretations of the evidence. <br> <br>United States v. Garca, 983 F.2d 1160, 1164 (1st Cir. 1993) <br>(quoting United States v. Batista-Polanco, 927 F.2d 14, 17 (1st <br>Cir. 1991) (citations omitted)); see also United States v. Berros, 132 F.3d 834, 841 (1st Cir. 1998).  In making their <br>decision, jurors "may draw reasonable inferences from the <br>evidence based on shared perceptions and understandings of the <br>habits, practices, and inclinations of human beings."  United <br>States v.  Ortiz, 966 F.2d 707, 712 (1st Cir. 1992).  Therefore, <br>when assessing a sufficiency challenge, we require jurors neither <br>"to divorce themselves from their common sense nor to abandon the <br>dictates of mature experience."  Id.   <br>     However, in applying their common sense, the jurors cannot <br>convict unless the evidence is sufficient to find guilt beyond a <br>reasonable doubt.  See United States v. Valerio, 48 F.3d 58, 64 <br>(1st Cir. 1995).  If the evidence "'viewed in the light most <br>favorable to the verdict gives equal or nearly equal <br>circumstantial support to a theory of guilt and a theory of <br>innocence of the crime charged,' this court must reverse the <br>conviction.  This is so because . . . where an equal or nearly <br>equal theory of guilt and a theory of innocence is supported by <br>the evidence viewed in the light most favorable to the <br>prosecution, 'a reasonable jury must necessarily entertain a <br>reasonable doubt.'"  United States v.  Flores-Rivera, 56 F.3d <br>319, 323 (1st Cir. 1995) (omission  in original) (quoting United <br>States v. Snchez, 961 F.2d 1169, 1173 (5th Cir. 1992)).  We must <br>conduct a close review of the record and "reject those <br>evidentiary interpretations and illations that are unreasonable, <br>insupportable, or overly speculative."  United States v. Spinney, <br>65 F.3d 231, 234 (1st Cir. 1995). <br>     The only crime at issue in this appeal is conspiracy to <br>distribute narcotics.  21 U.S.C.  846.  "To prove the elements <br>of the crime of conspiracy, the government must show the <br>existence of a conspiracy, the defendant's knowledge of the <br>conspiracy, and the defendant's voluntary participation in the <br>conspiracy."  United States v. Gmez-Pabn, 911 F.2d 847, 852 <br>(1st Cir. 1990).  Though the government need not prove an overt <br>act in order to establish a violation of 21 U.S.C.  846, the <br>fact that a defendant "knew what was going on" is, on its own, <br>"not enough to establish intent to conspire."  United States v. <br>O'Campo, 973 F.2d 1015, 1020 (1st Cir. 1992) (quoting United <br>States v. Ocampo, 964 F.2d 80, 82 (1st Cir. 1992)).  To prove <br>that the defendant belonged to and voluntarily participated in <br>the conspiracy, the government must prove two  kinds of intent: <br>"intent to agree and intent to commit the substantive offense."  <br>Gmez-Pabn, 911 F.2d at 853 (quoting  United States v. Rivera- <br>Santiago, 872 F.2d 1073, 1079 (1st Cir. 1989)).  Due to the <br>clandestine nature of criminal conspiracies,  "[t]he agreement <br>itself 'need not be express, but may consist of no more than a <br>tacit understanding.'"  United States v. Echeverri, 982 F.2d 675, <br>679 (1st Cir. 1993) (quoting United States v. Glover, 814 F.2d <br>15, 16 (1st Cir. 1987)). <br>     The government contends that Morillo participated in the drug <br>trafficking conspiracy by knowingly permitting his apartment to <br>be used as the operational center for housing the "mules" and for <br>storing and packaging the cocaine.  When a defendant has <br>knowledge of a drug trafficking conspiracy, willfully allowing <br>others to use a dwelling for the drug distribution activity is <br>sufficient to support a conspiracy conviction.  See Rivera- <br>Santiago, 872 F.2d at 1080-81 (affirming a conspiracy conviction <br>where there was direct evidence that the owner of a house agreed <br>to allow a truckload of marijuana to be stored there); cf. United <br>States v. Luciano-Mosquera, 63 F.3d 1142, 1150 (1st Cir. 1995) <br>(providing a house for a meeting at which guns were displayed and <br>discussed and at which defendant was present supported liability <br>for substantive crime under an aiding and abetting theory). <br>     A close review of the trial record reveals that no direct <br>evidence was submitted to the jury showing that Morillo agreed <br>that the Nez brothers and the three women could use his <br>apartment as a base for the drug shipment.  The jury heard <br>evidence that Morillo had met Peguero and Domnguez previously in <br>HY-1 in September.  They also heard, however, that Domnguez was <br>the cousin of Morillo's former mistress, Santos, and that Santos <br>was still living in HY-1 when Peguero and Domnguez made their <br>September visit to Puerto Rico.  The government emphasizes Hanzel <br>Nez' possession of the apartment key as evidence that Morillo <br>lent his apartment to the conspirators.  Whether Hanzel obtained <br>the key from Morillo or from the recently departed Santos, <br>Morillo's comfort level with and hospitality to the others at HY- <br>1 support the reasonable inference that Morillo had authorized <br>them to use the apartment, at least with respect to October 3 and <br>4.  But the reasonable inferences regarding the scope of <br>Morillo's agreement to lend stop there.  The jury heard no <br>evidence of any involvement of Morillo in any other aspect of the <br>conspiracy, such as planning the shipment with the Nez <br>brothers, handling drugs or buying plane tickets.  Although the <br>jury could reasonably infer that Morillo authorized the use of <br>the apartment, there is insufficient evidence connecting that <br>authorization to the purpose of possessing and distributing <br>cocaine.  See United States v. Andjar, 49 F.3d 16, 21-22 (1st <br>Cir. 1995) (reversing the conspiracy conviction of a defendant <br>who made his office and warehouse available to conspirators and <br>even arranged meetings between them where there was no proof that <br>he "was aware that the meetings concerned a pending drug deal" <br>before the fact). <br>     Absent evidence of a prior agreement to lend the apartment to the <br>others in furtherance of the drug conspiracy, the path to a <br>supportable conviction necessarily begins with the question of <br>when, if ever, Morillo gained knowledge of the conspiracy based <br>at the apartment.  Many of our cases in which we have allowed an <br>inference of knowledge have involved defendants who have actually <br>lived in the subject apartment during the course of the <br>conspiracy; in each of these cases, the jury's conclusion that <br>the defendant knew about the distribution scheme followed almost <br>inexorably from his or her knowledge of large amounts of drugs or <br>distribution paraphernalia.  See, e.g., Echeverri, 982 F.2d at <br>679 (affirming the conviction of a "sole tenant" of a "tiny <br>apartment" in which drugs, a scale and a ledger were found within <br>feet of the tenant); United States v. Vargas, 945 F.2d 426, 429- <br>30 (1st Cir. 1991) (affirming the distribution conspiracy <br>conviction of a tenant who was the "only tenant and occupant" of <br>an apartment to which occupant had exclusive access and in which <br>drugs were found and drug records were in open view); United <br>States v. Tabares, 951 F.2d 405, 409 (1st Cir. 1991) (affirming <br>the conspiracy convictions of defendants who paid the rent and <br>lived in the apartment where drugs and paraphernalia were found <br>and which was leased in one defendant's name).  Importantly, the <br>issue in determining knowledge is not whether the drugs or <br>paraphernalia were "accessible" to the defendant when he was in <br>the apartment, but rather whether the defendant knew of the <br>drugs' existence.  See Valerio, 48 F.3d at 64 & n.4 (reversing <br>the conspiracy conviction of the short-term occupant of an <br>apartment in which a large cache of drugs was stored out of plain <br>view). <br>     Here, the evidence of what Morillo saw in the apartment is <br>insufficient to support an inference of knowledge of the purpose <br>of the conspiracy on October 2 or 3.  Morillo had not actually <br>lived in the apartment for six weeks.  The first time he visited <br>the apartment during the course of the conspiracy was early in <br>the day on October 3.  Peguero and Durn were there, without <br>luggage.  The three kilos destined for their thighs had not yet <br>been brought to the apartment.  Even if the two kilos in the robe <br>were under the bed at that time -- and there is no evidence they <br>were -- those drugs were not in plain view.  Knowledge of that <br>package cannot be imputed to Morillo.  Morillo went into the <br>bedroom closet on October 3, where the scale was later found, <br>but, again, there is no evidence of when the scale was put there.  <br>Morillo's casualness with the women's presence, his offering his <br>shirt to Durn, and his taking Peguero for cigarettes, although <br>suspicious, are insufficient to support an inference of knowledge <br>on October 3 of a conspiracy to transport three kilos of cocaine <br>to New York.  Morillo did not come by HY-1 again for at least 26 <br>hours. <br>     The evidence concerning October 4 paints a different picture.  <br>Morillo arrived at the apartment as early as 11:00 a.m., just as <br>Eddison Nez and the couriers were departing for the airport.  <br>The jury could have reasonably concluded that Morillo knew that <br>the apartment was being used for drug distribution at that point <br>because the bedroom door was wide open at the time the <br>"muchachas" hurried out to the airport.  The apartment was tiny, <br>and Morillo had belongings in the bedroom.  The bedroom was <br>littered with drug packaging paraphernalia and cocaine residue, <br>of which even he, for this purpose a short-term visitor, could be <br>deemed to have knowledge.  An inference that he knew about the <br>two kilos still stored under the bed, however, remains <br>unsupportable by the evidence.  <br>     The government argues that Morillo's presence at the apartment <br>during such a "critical juncture" of the conspiracy allowed the <br>jury to infer prior knowledge of the conspiracy's purpose.  <br>United States v. Mangual-Corchado, 139 F.3d 34, 47-48 (1st Cir. <br>1998); United States v. Lema, 909 F.2d 561, 570-71 (1st Cir. <br>1990).  Because it "runs counter to human experience to suppose <br>that criminal conspirators would welcome innocent nonparticipants <br>as witnesses to their crimes," we have accepted that juries may <br>infer a defendant's culpable involvement from the fact that other <br>conspirators continued their criminal activity despite the <br>defendant's arrival in a den of iniquity.  Batista-Polanco, 927 <br>F.2d at 18 (rejecting the hypothesis that participants in a <br>distribution scheme "would permit a noncontributing interloper" <br>to remain for 45 minutes in a small apartment "conspicuously <br>strewn with evidence of a large scale heroin packaging operation <br>. . . while their conspicuous criminal conduct continued <br>unabated"); see also Ortiz, 966 F.2d at 712 (observing that <br>criminals "rarely seek to perpetrate felonies before larger-than- <br>necessary audiences").  The government's position is essentially <br>that Morillo's presence during the criminal activity on October 4 <br>allowed the jury to draw an inference of knowing participation <br>prior to his arrival that day. <br>     Morillo counters that the jury could not make such an inference <br>of prior knowledge from his mere presence on October 4.  "Mere <br>presence at the scene of the crime" or "mere association with <br>conspirators," Gmez-Pabn, 911 F.2d at 853, is not automatically <br>sufficient to establish guilt.  Compare Andjar, 49 F.3d at 21-22 <br>(reversing conviction because, despite the defendant's presence <br>nearby, the government failed to prove that the defendant knew <br>that conspirators were using his office, which the defendant had <br>lent them, for a drug conspiracy) with Ocampo, 964 F.2d at 82-83 <br>(holding that evidence that the defendant was living for four to <br>six months with her trafficking boyfriend in a small apartment <br>where a beeper, drug paraphernalia and drugs were kept was <br>insufficient to establish her intent to conspire even though <br>there was a fair inference that she knew what was going on).  The <br>ultimate question is always whether the circumstances of the <br>particular case add up to showing both knowledge and voluntary <br>participation in a conspiracy beyond a reasonable doubt.  SeeUnited States v. Rogers, 121 F.3d 12, 15 (1st Cir. 1997) <br>(describing the distinction between "mere" presence and <br>"culpable" presence).  In this case, if Morillo's knowledge had <br>been early enough, the evidence would be sufficient to support a <br>conspiracy conviction because it would support a reasonable <br>inference that the defendant had made his apartment available <br>with the intent to facilitate the crime. <br>     In our opinion, the evidence presented by the government of the <br>behavior of Morillo and the others is insufficient for a <br>reasonable factfinder to conclude beyond a reasonable doubt that <br>Morillo knew about the conspiracy before 11:00 a.m. on October 4, <br>1996, when it was substantially completed so far as the use of <br>Morillo's apartment was concerned.  Morillo's spontaneous <br>statement that "The girls are leaving now" is innocent on its <br>face and does not support an inference of prior knowledge of the <br>drug conspiracy.  The conspirators' insouciance about leaving the <br>bedroom door open with drug paraphernalia conspicuously strewn <br>about does suggest either that the others knew that Morillo knew <br>the purpose of the trip or trusted him sufficiently not to clean <br>up.  However, unlike in cases adhering to the common sense adage <br>that criminals rarely welcome innocent persons as witnesses to <br>serious crimes, Morillo was not present during the packaging of <br>the drugs or the preparation of the couriers.   <br>     Also, though Morillo was the "sole rent payer," his situation <br>does not fall neatly into the line of those cases that reject <br>sufficiency challenges by occupants with "the exclusive right to <br>control the comings and goings" in an apartment because Morillo, <br>although the lessee, no longer resided in the apartment and was <br>rarely there.  Echeverri, 982 F.2d at 678 & n.2 (holding evidence <br>of conspiracy was sufficient where the defendant was "hardly <br>powerless to determine who and what could come inside").  <br>Further, his erstwhile mistress Santos, who was a cousin of one <br>conspirator and knew at least one other, had been living there <br>after Morillo moved out in mid-August and had left the country <br>the very day the conspiracy commenced.  Any inference imputing <br>knowledge of the distribution conspiracy prior to his visit to <br>the apartment on October 4 is overly speculative and not <br>supportable by the evidence and, therefore, must be rejected.  <br>See Andjar, 49 F.3d at 22 ("[A]fter-the-fact knowledge of an <br>illegal conspiracy and presence at the operative location are <br>relevant factors for the jury to consider.  Nevertheless, these <br>factors alone are insufficient to establish a conspiracy <br>conviction."). <br>     Finally, the evidence of voluntary participation by Morillo afterhe gained knowledge is insufficient to support a guilty verdict <br>beyond a reasonable doubt.  Morillo was arrested while driving <br>Hernndez' Hyundai with Eddison Nez in the passenger seat after <br>federal agents broke off their observation of the Mitsubishi that <br>Eddison Nez had used to take Durn and Peguero to the airport.  <br>The evidence, taken in the light most favorable to the <br>government, indicates that Morillo slowed but did not stop and, <br>at Eddison Nez' urging, drove the car approximately 50 meters <br>after being signaled to stop by the police, who were in the <br>process of arresting Hanzel Nez and Domnguez in the Mitsubishi <br>on the side of the road.  Although the jury was entitled to treat <br>this sluggish flight as evidence of consciousness of guilt, seeUnited States v. Lpez, 944 F.2d 33, 40 (1st Cir. 1991), the fact <br>that Morillo was giving Eddison Nez a ride, without any <br>evidence of conspiratorial purpose, falls short of voluntary <br>participation in a serious criminal conspiracy.  Even if Morillo <br>knew of the conspiracy when he was arrested, the government <br>cannot escape its burden to prove Morillo's intent to agree and <br>to commit the substantive offense at a time that he had such <br>knowledge.  Lending one's apartment to others for use as a safe <br>house for a drug shipment supports a conspiracy conviction.  <br>Nonetheless, the facts of this case, in which the evidence <br>presented by the government did not support a fair inference of <br>knowledge beyond a reasonable doubt until the apartment's use was <br>all but completed, are insufficient to sustain Morillo's <br>conviction. <br>     For these reasons, Morillo's conviction is REVERSED. <br></pre>

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