United States v. Frank Kahled Burgos, United States of America v. Alexio Burnard Gobern

849 any explanation pos- give sufficient case for tortious also failed interference to timecards. discrepancies summary judgment.11 with the survive sible meeting 4. At the first with Roberts and V. Varrallo, “by appear made it his silence he not made the statements” au- that he had prove If can allegations, Varrallo his he not thorizing unlimited overtime and “had wrongful reprehensible will have shown concern- given such instructions [Varrallo] part on right behavior of Abel and the time card entries.” Varrallo Affi- [his] remedy cannot, however, a tort therefor. He at 6. davit any legal duty show that Hammond had not behavior, proved, him, pattern of if would suspicion Such to fire even on the weakest or wrongful sufficient to show intentional be Accordingly, none at all. we will affirm the interference. judgment of the district court as to all claims Hammond, against reverse as to the claim third element is causation. Abel The Abel, against pro- and remand for further nothing could appeal tends on he have ceedings opinion. consistent with this job because said would have saved Varrallo’s January discrepan- 16 30 time card According explained. cannot be cies records,

building Varrallo could not have working many as he

been hours claimed However, days. apparent flurry

on those (four days January of snow between Janu- America, UNITED STATES of alone), January ary 9 and 17 means Plaintiff-Appellee, Varrallo, working possibly in addition to lunch, carrying through might have been time” from one or more of those over “snow BURGOS, Frank Kahled Defendant- mind, days. any by confirmation With this Appellant. explanation to

Abel of Varrallo’s Roberts America, UNITED STATES might have caused her to view the entire Plaintiff-Appellee, sympathetically. situation more Further- more, testimony according deposition to the Roberts, brought it was not until Abel GOBERN, Alexio Burnard discrepancies March apparent atten- Defendant-Appellant. Kathy tion of Roberts and Hammond that 93-5899, Nos. 93-5919. Kathy Hammond decided we had “[t]hat enough policy go violations of our ahead Appeals, United States Court of with termination.” It is not clear that the Fourth Circuit. January discrepancies, unexplained, even if 26, Argued Sept. 1995. by have caused termination would Varrallo’s 23, Aug. Decided genuine This too is a issue of themselves. trial.

fact for clearly provided

Finally, Varrallo has evi- damages. of actual He has made out

dence Supreme beyond authority, good suggestion or not "in 11. of the Court of New otherwise Mart, corporate Jersey Printing falls 563 A.2d at 43—that a faith in the interest” outside See, e.g., George against employee company scope privilege. an of a for tor- A. Fuller suit Medicine, prospective advantage Chicago College Osteopathic Co. v. tious interference with ex- 1326, (7th Cir.1983); might pected company F.2d Murtha v. to come from that 1333 Ass'n, 913, by agency privilege barred set out in the Yonkers Child Care N.Y.2d 219, 220, (1978); (Second) Agency § 343—would N.Y.S.2d 383 N.E.2d Restatement Assocs., Windsor, one, Kartiganer apply P.C. v. Town New to a case such as this where Abel not, (N.Y.App. allegedly Kathy unlike Ham- 108 A.D.2d 485 N.Y.S.2d Roberts dismissed, mond, Div.), (1985); acting appeal 65 N.Y.2d 925 "on behalf of” Hammond. Cases Advisors,Inc., indicating Bancorp Management Printing Welchv. cited Mart court as (1983), possible problem employee make it that an Or. 675 P.2d clear modified motives, malice, ofreh’g, personal denial 296 Or. 679 P.2d 866 who acts for out of crime, aiding abetting

base (West 1969) § 2 violation of 18 U.S.C.A. 841(a)(1), again § challenging U.S.C.A. sufficiency support of the evidence to conviction. appeals

Gobern also his sentence on two First, grounds. he asserts that the district failing depart court erred downward behavior, an act based on isolated of aberrant pursuant Sentencing to United States Com- mission, Manual, Chapter Guidelines Part Cochran, Norman As- ARGUED: Thomas 4(d) (1992). A, Second, describing himself as Defender, Greensboro, sistant Federal Public color,” “person posits that his Carolina, Burgos; Appellant for Jo- North Equal sentence violates Protection Giaramita, Jr., Brooklyn, York, seph R. New involving Clause because offenses cocaine Appellant for Gobern. Michael Francis Jo- severely punished base are more than of- Attorney, seph, Assistant United States involving powder, fenses cocaine and since Greensboro, Carolina, Appellee. North “persons frequently of color” are more Peebles, ON BRIEF: Todd M. Peebles & offenses, they victed of cocaine base are dis- Schramm, Winston-Salem, Carolina, North proportionately punished. Holton, Appellant Walter C. for Gobern. Greensboro, Attorney, North

United States ap- consolidated and We Gobern’s Carolina, Appellee. peals and elected to hear them en banc. We opportunity clarify take this of this law WILKINSON, Judge, and Before Chief respecting challenges circuit to the sufficien- HALL, RUSSELL, WIDENER, cy conspir- in of the evidence connection with WILKINS, MURNAGHAN, ERVIN, convictions, acy doing, in and so we affirm NIEMEYER, HAMILTON, LUTTIG, the convictions of and In Gobern. WILLIAMS, MICHAEL, MOTZ, and convictions, affirming the we honor two bed- Judges. Circuit Anglo-American jurispru- principles rock prove must by dence: the Government each ele- part part in in Affirmed and dismissed doubt, beyond a ment of a crime reasonable published opinion. Judge wrote WILLIAMS and the determines whether the Govern- majority opinion, Judge in which Chief evidentiary RUSSELL, this burden. ment has satisfied Judges WILKINSON and determining WIDENER, WILKINS, NIEMEYER, Our review is limited to whether supports HAMILTON, joined. substantial evidence the conviction. Judge and LUTTIG challenges addressing In Gobern’s to his sen- concurring opinion wrote an in MICHAEL tence, principles of we also honor entrenched dissenting part, Judges in part and which HALL, MURNAGHAN, ERVIN, jurisprudence: court’s a deliberate re- and MOTZ by depart court to down- fusal the district joined. sentencing dis- appealable; ward is not involving OPINION parities between offenses cocaine deny equal powder cocaine do not base and WILLIAMS, Judge: Circuit Thus, protection respecting of the law. Go- appeals, Frank Bur- these consolidated sentence, appeal from his we dismiss bern’s gos appeal and Alexio Gobern their convic- part part. and affirm possess tions for with intent to base, First, the facts adduced at distribute cocaine violation of we shall recite 841(a)(1) (West separate §§ and Gobern. U.S.C.A. and 846 1981 & the trials Second, Burgos’s and Go- Supp.1996), contending that the evidence was we shall address Ad- convictions and whether insufficient to sustain their convictions. bern’s ditionally, to sustain them. Burgos appeals his conviction for the evidence was sufficient Third, Burgos’s challenge possession address with intent to distribute cocaine we shall York, that he and aiding abetting con- from New and denied possession Interestingly, knew other. the evidence was suffi- Gonzales each and whether viction Finally, train tickets bore support it. we shall address Gonzales’s Gobern’s cient numbers, purchased simul- challenges consecutive were to his sentence. Gobern’s locale, taneously at and were both the same York, round-trip New tickets from New I. Carolina, York, Greensboro, issued North light favorable to the Taken in the most January with a return date of on States, Government, see Evans United 27,1993. January 1881, 1883-84, 255, 257, 112 U.S. concluding After their conversation with (1992), the evidence adduced at L.Ed.2d 57 Gobern, Kaplan proceed- Officers Blanks and following Burgos’s trial established the facts. just immediately lavatory exited ed January law enforcement offi- On Piner, while Cameron who Officer Kaplan Berkley Blanks and Daniel were cers terminal, recently had arrived at the train performing narcotics interdiction at the train Gobern, Burgos, and Gonzales. On Greensboro, Carolina, watched North focus- station sink, Kaplan Blanks and found York, Officers arriving on a train from New New box, package and a cereal both York, the Christmas city a known for contraband source ripped open, crumpled of which were Kaplan Blanks and ob- narcotics. Officers newsprint January 1993 from The Gobern, dated Anthony Burgos, Gon- served News, Pages train, Daily newspaper. a New York together zales disembark from the Daily News from the same edition of The separately into the terminal. Officer walk floor and in the wastebas- were found Blanks testified that he initiated a conversa- lavatory. Gonzales, ket of the Also the wastebasket who informed tion with Officer paper in pieces which Christmas traveling Blanks he was alone New package wrapped, had been as York, Gobern, the Christmas familiarity with and denied package well as remnants of the itself. Se- presented bearing a train ticket the name creted behind the commode was mass “Anthony Kaplan Flores.” testified Officer newsprint, which concealed alumi- wadded Burgos, produced a spoke that he with who foil, turn, which, plastic num in concealed a bearing train ticket his own name. Accord- base, bag containing grams 78.5 of cocaine an Blanks, knap- to Officer Gobern carried Kaplan amount which Officers Blanks and package wrapped and a in sack Christmas quantity. Signifi- ribbon, bow, testified was a distribution paper but which bore no cantly, newspaper concealing the foil and card; also, carefully observed Officer Gobern plastic bag edition of The was from the same Blanks’s conversation with Gonzales. sink, Daily News that was on the scattered Blanks and walked to As Officer Gonzales floor, in around the and the wastebasket. terminal, the front of the Gobern followed newsprint only Not was this wadded mass of them, them, continued to observe halted News, Daily complemented it from The but halted, when Officer Blanks and Gonzales newspaper completed perfectly and edi- knap- package and and with Christmas Blanks tion found near the sink. Officers sack, proceeded lavatory, into the terminal lavatory, Kaplan and Officer and exited minutes; one to two where he remained Gobern, Burgos, Blanks observed and Gon- small, lavatory measuring 9.5 feet was attempt taxicab. zales to board the same lavatory square. Gobern then exited the they depart, Before could Gobern was arrest- car- package, without the Christmas but still ed, Burgos agreed ac- and and Gonzales rying knapsack. Officers Blanks and company Kaplan for Officers Blanks and unequivocally Kaplan testified that no one by questioning. Burgos questioned was then entered, occupied, lavatory else or exited Drug Special Agent Wayne Kowalski of the occupied exiting while it. Gobern On Agency. Enforcement Gobern, lavatory, Kaplan’s request, at Officer trial, ticket, which, Agent produced Burgos’s Special train At Kowalski his like Gon- (1) ticket, “Anthony Burgos he knew zales’s bore the name testified that stated: (2) Gonzales, Gobern; Flores,” conversed traveling alone but not he stated that he was (3) train; Burgos testified further that Gonzales and Gobern Gonzales Burgos pur- was in the Christ- was alone when he solicited that cocaine base he knew possessed According Burgos, since package, which Gobern chase his train tickets. mas (4) York; he knew that the leaving and New he then boarded the train himself. While at a col- board, Gonzales, was to be distributed approached by cocaine base on he was Greensboro, Specifi- North Carolina. lege Gobern, Burgos knowing, whom denied Agent Kowalski avowed cally, Special women, who have remained nameless two ... carried Burgos admitted that “Gobern faceless, Burgos. all of whom sat behind pack- package wrapped as Christmas further, Testifying Burgos car- stated he (J.A. trip down.” at age throughout ... sandwiches, him on the train ried with cook- added). 67.) Moreover, “Burgos (emphasis ies, potato chips, all of which were dope_ they [I]t had ... knew wrapped plastic bags plastic similar to the understanding they going to sell the his bag bearing fingerprint in which the co- (J.A. 67.) University.” T at dope at the A & however, Burgos, caine base was found. did Burgos any knew that Dispelling doubt brought, all not consume of the food he but containing plastic bag the cocaine base Gonzales, Gobern, rather shared it with package since the trio in the Christmas Specifically, gave the women. he sand- York, Special Agent Kowalski testi- left New wiches, bags, plastic still encased that he asked “whether he knew fied gave Gonzales and Gobern and the cookies to package” that there was crack cocaine the women. it, they knew had “said that he Moreover, Burgos avowed that he had no (J.A. 66-67.) it.” at Addi- he didn’t see but discussions with Gonzales Gobern tionally, Special Agent Kowalski testified cerning narcotics while on train. Re- was in Burgos stated that he Greens- Carolina, garding his intentions North friend, did not mention visiting boro visiting Burgos testified after friends for Carolina, Laurinburg, North traveling to Greensboro, day play one he intended to schoolmates, play with his former basketball basketball with former schoolmates Lau- trial; indeed, the train testified respect rinburg. With to the Christmas stop at men traveled did not on which the package, Burgos testified that car- Gobern tri- Laurinburg. Also introduced package, yet no such Christmas ried revealing that Go- al was forensic testified that cross-examination he fingerprints on the bern’s Christmas wrapped packages no on the train nor did paper, Burgos’s finger- wrapping and any implements wrap possess Gobern used impressed sealing mecha- print was on paper, tape, packages, such as or scissors. top plastic bag nism at the of the which cross-examination, Likewise, Burgos could on base, although forensic contained the cocaine explanation for his on the offer no Burgos’s fin- analysis did not establish when base, containing plastic bag the cocaine nor impressed plastic bag. on the gerprint was glaring, Burgos explain the direct could testimony dramatically Burgos’s differed testimony his and that of tradictions between Burgos tes- Special Agent Kowalski’s. Special Agent Kowalski. ticket, his train purchasing tified that while in testimony Burgos’s trial was Other Gonzales, only by Burgos knew whom vein, testimony namely Burgos’s like “Tone,” Burgos purchase requested alias markedly diverged from that of law enforce- gave Burgos train for him and two tickets instance, initially Burgos agents. ment For paper a reservation number and piece of with exiting preceded he Gobern in testified that Burgos on it. and the name “Flores” written train, then recanted and stated that but telephone exchanged also numbers. Gonzales Burgos him. before Gobern disembarked Burgos purchased round-trip three train Blanks cursed and also testified that Officer in his own and tickets: One for himself name him, at but Officer brandished a firearm two for Gonzales the name of the other speaking Burgos, let Blanks denied even Flores,” “Anthony the two for Gonzales each using profanity displaying a firearm. alone having two-day stay in Greensboro and ap- January Additionally, Burgos avowed that he City on returning to New York counsel, arraignment Kaplan, surveyed peared at without but ficers Blanks and Gobern repudiated this and Officer Blanks’s conversation with Gonzales subsequently statement Also, and present with interest. Officers Blanks testified that counsel was indeed they accompanied Kaplan testified that as arraignment. him at The record is rife with terminal, they examples Burgos’s vague, equivocal, Burgos and Gonzales to the with occasionally walking and contradictory responses. discontinued and Gonzales, stopped Burgos to talk to Burgos pos- was convicted of simultaneously Gobern discontinued and re- base, to distribute cocaine sess with intent walking. sumed 841(a)(1), 846, §§ violation of 21 U.S.C.A. possession with intent to distribute cocaine Kaplan Officers Blanks and also testified base, § 2 in violation of 18 U.S.C.A. and 21 package Gobern carried Christmas 841(a)(1), aiding § and abet- U.S.C.A. wrapped red-and-green-striped paper with ting, imprison- and sentenced to 131 months further, Testifying knapsack. and a Officers convictions, Burgos appeals ment. his chal- Kaplan pro- Blanks and related that Gobern evidence, lenging sufficiency directly lavatory into at the ceeded the small appeal he does not his sentence. package train station the Christmas knapsack, exiting but that on the lavato-

II. ry, conspicuously carrying not Gobern was package. the Christmas As Gobern exited We now consider the evidence adduced at lavatory, requested Officer Blanks Although trial. Gobern’s Gobern was tried ticket, produce Gobern his train which also prior Burgos’s arraignment, and convicted “Anthony According bore the name Flores.” the evidence adduced at Gobern’s trial was Kaplan, to Officer Gonzales’s and Gobern’s substantially similar to the evidence adduced numbered, sequentially pur- tickets were trial, later but differed in some date, same chased locale on the same respects. example, Special Agent For Kow- durations, and had identical destinations and testify alski did not at Gobern’s trial that namely that the tickets were purchased Gonzales, Burgos stated he knew York, two-day trip arriving New were for a traveled with Gobern and Gonzales aboard January in Greensboro on 1993 and re- train, Gobern carried the Christmas turning City January to New York package City, from New York Blanks avowed that Officer Gobern base, knew that cocaine slated for distribu- traveling him informed that he was alone and Greensboro, package. tion Also knowing speaking denied Gonzales. While trial, at Gobern’s there was no evidence re- Kaplan, with Officers Blanks and specting Burgos’s fingerprint when im- behavior; instance, exhibited nervous pressed plastic bag, did eye hands shook and he avoided contact. testify brought at Gobern’s trial that he him trip food with on the train from New inspecting lavatory On after convers- City. York Gobern, ing Kaplan with Officers Blanks and trial, At Kap- package Gobern’s Officers Blanks and found the cleaved Christmas and that, perform- lan testified in connection with pack- torn cereal box on the sink. Used as ing duty ing their of narcotics interdiction at the material connection with the Christ- station, they package train pages Greensboro witnessed mas and cereal box were of Gobern, News, Burgos, Daily newspaper. and Gonzales in The disembark New York arriving Pages a train Daily tandem from from New York from the same edition of The City, box, city a known source contraband News were the cereal the wastebas- narcotics, ket, separately. and enter the ripped terminal and littered about the Christmas approached package. Officer Blanks that he Kaplan testified As Officers Blanks and Gonzales, further, “Anthony inspected lavatory who identified himself as behind the Gonzales,” produced they plastic bag containing a train ticket bear- commode found a ing “Anthony grams the name Flores.” While Offi- 78.5 of cocaine base that was con- Gonzales, foil, questioning cer Blanks Officer cealed aluminum which was surround- Kaplan questioned Burgos. According pages to Of- ed wadded from the same edition of involving equal that found elsewhere. fenses amounts of cocaine Daily News as The powder “persons equal pro- denies of color” fingerprints were recovered Gobern’s wrapping paper they on red-and-green-striped tection of the law because are more Burgos’s finger- package, frequently involving convicted of offenses co- the Christmas base, plastic bag print recovered from the caine while Caucasians are more fre- grams Spe- containing quently involving the 78.5 of cocaine. convicted violations co- Agent powder. cial Kowalski testified that forensic caine Burgos’s fingerprint

analysis proved that plastic bag. Blanks and was on the Officers III. Kaplan adamant that no one else en- challenge Gobern sufficien- tered, lavatory occupied, departed cy support conspiracy of the evidence to their was in it. Officer Blanks stat- while Gobern Construing convictions. all of the evidence that, lavatory, exiting the he witnessed ed and the inferences to be drawn therefrom in Gobern, attempt to Burgos, and Gonzales Government, light most favorable to the the same taxicab. board we conclude that a rational could find conspiracy pos- to was convicted of Gobern the evidence was sufficient to sustain to cocaine base sess with intent distribute conspiracy their convictions. co- possession with intent distribute 841(a)(1) §of involv- caine base. Violations A. fifty grams than of cocaine base more statutory mandatory minimum provide for a years. prison sentence of ten prove conspiracy possess To co 841(b)(1)(A) (West Supp.1995). § U.S.C.A. distribute, caine base with intent Guidelines, Sentencing Gobern’s Under (1) must establish that: an Government thirty-two, total offense level of combined agreement possess with cocaine intent to one, history category a criminal re- per distribute existed between two or more range guideline sulted in a to 151 (2) sons; conspir the defendant knew of the imprisonment, with his convictions months (3) acy; knowingly the defendant purposes entry judg- consolidated for voluntarily part of this became The district court sentenced Gobern ment. Collazo, See United States imprisonment. months (4th denied, Cir.1984), 469 U.S. appeals his 83 L.Ed.2d 773

Gobern conviction conviction, Regarding Laughman, and his sentence. United States Cir.), cert. 447 U.S. asserts that the evidence was insuffi- Gobern (1980), support respect it. to his 100 S.Ct. 65 L.Ed.2d 1117 cient to With sentence, explained “gravamen of the challenges. raises two we First, agreement posits court crime of is an to ef he that the district erred nature, very By a criminal act.” failing depart downward based on aber- fectuate its covert, gravamen position of his is clandestine rant behavior. thereby resulting in prior frequently little direct is that Gobern had no involvement with agreement. an See Blu drug trafficking offenses and his involvement evidence of such States, 539, 557, was menthal v. United in the crimes for which he was convicted 248, 256-57, (1947); anomaly keeping 92 L.Ed. 154 an not in with his character. Wilson, 967, Second, although v. 721 F.2d 973 he failed to raise the issue United States (4th Cir.1983). Hence, court, Gobern, conspiracy gener a in the district who describes color,” ally proved is circumstantial evidence “person himself as a maintains on in the circumstantial statutory mandatory mini- and the context which appeal that Iannelli v. United 21 U.S.C.A. evidence is adduced. See mum sentence under (West States, 770, 10, 841(b)(1)(A) 777 n. 95 S.Ct. Supp.1995) § violates the 420 U.S. (1975); 10, 1284, According 1289 n. 43 L.Ed.2d 616 Equal Clause. to Go- Protection (4th Dozie, 95, bern, 27 F.3d 97 punishments States v. meting greater out for United Cir.1994) curiam); States v. An- (per United involving offenses cocaine base than for of- 858 (11th

drews, 1312, Cir.), Critically, necessary it is not F.2d 1318 cert. existence. 953 1210, 3007, 3008, a denied, proof conspiracy of a that it have dis- 112 505 U.S. S.Ct. (1992). crete, structure; Indeed, organizational conspira a identifiable 120 L.Ed.2d 882 requisite agreement to act in concert may proved wholly by cy be circumstantial Iannelli, any at 777 n. need not result such formal struc- See 420 U.S. evidence. [I]ndeed[,] 10; contemporary drug ... 10, v. ture[.] 95 S.Ct. at 1289 n. United States (7th Durrive, Cir.1990); 1221, conspiracies contemplate[ only ... a [can] ] 1229 902 F.2d loosely-knit linked Laughman, association members 618 F.2d 1074. Circumstan only by sustaining mutual tending prove conspiracy tial a their interest catering may “relationship enterprise the overall consist of a defendant’s drug conspiracy, particular ultimate demands of a with other members of the association, sumption market.... length [the defendant’s] of this conduct, of the attitude and the nature [and] Banks, 1044, v. 10 F.3d 1054 United States Collazo, conspiracy.” 732 F.2d at 1205. A — (4th Cir.1993), denied, -, cert. U.S. therefore, “may conspiracy, be inferred from (1994). 1850, 114 128 L.Ed.2d 475 S.Ct. ‘development a and collocation of circum Thus, many conspiracies while are executed States, stances’.” Glasser v. United 315 precision, conspiracy fact that a 60, 457, 469, 80, 62 L.Ed. U.S. S.Ct. 86 680 loosely-knit, haphazard, or ill-conceived does (1942) Manton, (quoting United States v. any conspiracy any it a not render less —or (2d 834, Cir.1939), denied, 839 cert. less unlawful. 664, 590, L.Ed. 1012 309 U.S. 60 S.Ct. course, proving Of in addition to (1940)). Circumstantial evidence sufficient conspiracy beyond a the existence of a rea support conspiracy a conviction need not doubt, the sonable Government must also every hypothesis exclude reasonable of inno prove a defendant’s connection to the con cence, provided the summation of the evi spiracy beyond a doubt. To reasonable satis permits guilt beyond dence a conclusion of burden, fy that the Government need not reasonable doubt. See Holland prove particu that the defendant knew the States, 121, 139-40, 127, 348 U.S. 75 S.Ct. conspiracy eoeonspira lars of the or all of his (1954). 137-38, 99 L.Ed. 150 While circum Blumenthal, 557, tors. See 332 U.S. at may sufficiently support stantial evidence 256-57; Brooks, S.Ct. United States v. conviction, conspiracy the Government nev 1138, Cir.), F.2d proof ertheless must establish of each ele U.S. 120 L.Ed.2d 917 conspiracy beyond ment of a reasonable (1992). Indeed, properly may a defendant Glasser, doubt. See 315 U.S. at 62 S.Ct. conspiracy convicted of require at 469. To less of the Government knowledge without full of all of con [the prove would eviscerate its burden to all ele details, joins spiracy’s] but if he the con beyond ments of a crime a reasonable doubt spiracy understanding with an of the un vigilance it of relieve its burden joins willfully lawful nature thereof prosecuting thereby violating bed crimes — occasion, plan it on one is sufficient to principles Anglo-American juris rock of our conspiracy, though convict him of even he prudence. Winship, In re participated had not before and even 90 S.Ct. 25 L.Ed.2d 368 though played only part. he minor preceding precepts demonstrate Roberts, United States v. quality that a can have an elusive (4th Cir.1989); see also United States — may and that a defendant be convicted of Mezzanatto, -, -, U.S. knowledge with little or no (1995) 797, 805, (recognizing 130 L.Ed.2d 697 enterprise: entire breadth of the criminal “big there are fish” and “small fish” elementary may conspiracies). conspirators’ agree- It is of course that one Like the ment, participation be a member of without a defendant’s the con- members, may knowing scope, spiracy explicit; its full or all its “need not be it taking part range and without in the full inferred from circumstantial evidence.” Prince, 953, period its activities or over the whole of its United States v. 883 F.2d 957

859 Cir.1989). conspiracy prosecutions.” in Id. (11th selling nar warranted In to addition myri may “heightened vigilance,” a Giunta fo- cotics, assume Given this participation forms, firearms supplying as its review not on the circumstantial such cused ad of other coconspira- money conspiracy, for tending prove orders a purchasing or to store narcotics permitting them “specific tors or weaknesses” in the rather on the home, see in one’s other contraband evidentiary picture. reversing Id. Giun- (7th James, 40 F.3d convictions, United States court concluded that the ta’s Cir.1994), on other on remand case failed for want of “evi- Government’s modified (7th Cir.1996); pur or grounds, 79 F.3d independent” about conduct of the cir- dence coconspirators, for see chasing plane tickets surrounding the crimi- cumstantial evidence Sanchez, F.2d United States activity. Id. at nal (5th 918, 113 Cir.), 506 U.S. cert. denied pronouncements, espe- unilateral Giunta’s (1992). Thus, a 121 L.Ed.2d 248 S.Ct. vigilance” cially application “heightened its conduct, selling narcot variety apart from conviction, squared reverse a cannot be ics, conspira in a participation can constitute precepts conspir- with the aforementioned a conviction. cy to sustain sufficient First, acy law. we note that Krulewitch was jurispru of our Regrettably, some concurring opinion a reflected the lacking applica as uniform can be read dence Justice, single whom the thoughts of a Court conspiracy principles of respect to tion with subsequently described as “no friend Giunta, instance, States v. For law. Iannelli, conspiracy,” law of 420 U.S. (4th Cir.1991), may be read as 925 F.2d 758 Second, do not share at 1290. we degree demanding heightened of review a Giunta’s, Jackson’s, or the dissent’s Justice conspira sufficiency challenges to regarding conspiracy is a Franken- skepticism Giunta, dissent, cy like the convictions. grown that has out of control. stein’s monster reasoning Jackson’s premised its on Justice Jackson’s, Giunta’s, respect, Justice In this concurring opinion in Krulewitch v. United prognostication that and the dissent’s dire States, 93 L.Ed. conspiracy indict for the Government would (1949), justice single ex in which a has not in lieu of the substantive offense perhaps the Govern pressed reserve that typi- materialized because the Government than the conspiracy for rather ment indicted offenses, exclusively cally indicts for both securing a con because substantive offense conspiracy example, offense. For for the putatively easier. See spiracy conviction was in- possession indicted for Giunta, expounding at 765. In aiding cocaine base and tent to distribute reservation, the Giunta Justice Jackson’s abetting, conspiracy with intent as well charge conspiracy that a court observed with intent to distribute cocaine base. possess “ weapon prose ‘potent and oft-used Third, to exercise invitation Giunta’s arsenal,’ particularly connection cutorial focusing vigilance” by “heightened trafficking prosecutions that drug with the ap- weaknesses” the evidence “specific dock increasingly dominate federal criminal principles that pears loggerheads with the Giunta, (quoting 925 F.2d at 766 Unit ets.” conviction, reviewing we ac- Caro, 411, 418 ed States v. light most favorable to cept the facts Cir.1978) J.)). connection, (Goldberg, In this circum- and consider Government affirming suggested Giunta the circum- and the context which stances lending could act as an obfuscation conviction adduced, bearing in mind evidence is stantial “ specula ‘slippery facts and the credence wholly by proved can be conspiracy] necessary uphold [the tions evidence. circumstantial ” Caro, (quoting F.2d at id. conviction.’ erroneously contends The dissent 418) (alteration resulting in original), often apply did not create that Giunta unfairness,” id. Given Gi “special risks of reviewing conspira heightened standard skepticism regarding conspiracy, the unta ’s post & n. 3. cy at 882-85 convictions. “[hjeightened vigilance court announced that Rather, conelusorily in a it asserts block specu risks of guard against the increased standard, conspir- lation, quote that is consistent with though heightened Giunta not a 860 Giunta, however, crime,

acy expressly purposes, law. creat- for the same criminal “heightened vigilance” improvident part ed the conspirators.” of all indicted Id. at 237- phrase language appear does not 38. While the dissent cites Bell and Giunta —the jurisprudence prior vig- our Giunta —and proposition for this as “the black letter law of orously applied it to reverse Giunta’s convic- 882, conspiracy,” post persuad- at we are not error, Perpetuating tion. the same the dis- proposition represents ed this black letter “ candidly judgment sent substitutes its ‘raw Rather, conspiracy conspir- law. black letter ” call,’ 4, jury’s n. post see at 885 for the de- acy requires prove: law the Government guilt. court, appellate An termination (1) agreement “ an between two or more however, may judg- not substitute ‘raw (2) act; ” persons, which constitutes the reviewing sufficiency ment call’ chal- thereby an intent to achieve a certain ob- lenges; our task if is to determine substan- which, jective under the common law defi- evidence, favorably tial viewed most nition, doing is the of either an unlawful Government, supports beyond the conviction by act or a lawful act unlawful means. a reasonable doubt. Because of Giunta’s “ ” judgment substitution of ‘a raw call’ for Wayne Scott, Jr., R. LaFave & Austin W. verdict, jury’s reliance on the Krulew- (2d 6, 6.4, § Criminal Law Ch. 525 ed. concurrence, binding itch prece- rather than 1986). regard, “[conspiracy In this is an dent, “heightened vigilance,” its reference to offense, inchoate essence which is an weaknesses,” “specific and its focus on rath- agreement act[, to commit an unlawful totality er than the circumstances agreement t]he need not be shown to have evidence, assessing the Giunta is not consis- Iannelli, explicit.” been 420 U.S. 777 & n. conspiracy tent jurisprudence.1 with our 10, 1289-90;2 95 S.Ct. at see also United (4th

Likewise, Bell, 907, Morsley, States v. 64 F.3d 919 United States Cir.1995) (4th Cir.1992), (holding squared F.2d 232 cannot be there need not be conspiracy specific agreement with these tenets of a law. Accord in order to Bell, conviction), ing conspiracy conspiracy “[a] is not shown until sustain a cert. de - nied, -, government presented 749, has evidence of a U.S. 116 S.Ct. (1996). specific agreement specific to commit a L.Ed.2d 697 Because we believe that protestation notwithstanding, 1. The language dissent's see in which such incorrect been has em 884-85, post Moreover, at 883-84 n. 3 and the fact that our braced. because in this Circuit we phenomenal Court has cited accord, Giunta is not be interpanel Busby observe the rule of see merely unchallenged cause we have cited it for Inc., 833, (4th Supply, v. Crown 896 F.2d 840-41 See, precepts conspiracy e.g., law. 311, United 1990) (en banc), subsequent panel Cir. could Heater, (4th Cir.1995) States v. 63 F.3d requires not overrule Giunta—a feat that the en (relying conspira on Giunta for the elements of a banc Court. As we are now so convened to cy propositions and the that we must take the law, analyze conspiracy tenets of we take this light facts in the most favorable to the Govern opportunity to do so. reviewing ment in spiracy dence); convictions and that a con proved by can be circumstantial evi posits mistakenly 2. The dissent that we have cit- Johnson, United States v. 54 F.3d proposition conspiracy ed Iannelli for the that a (4th Cir.) (citing proposition Giunta for the specific, need be but this is incorrect. Pre- light that we must view the facts in the most cisely, quoted stating we have Iannelli as that a conviction), reviewing favorable to the Government in conspiracy explicit respecting need not be its - -, t. U.S. 116 S.Ct. cer objectives gist because the of a is the (1995); 133 L.Ed.2d 188 United States v. agreement to commit an unlawful act. Given Harris, (4th Cir.1994) (rely generally operation, that a a covert proposition conspira on Giunta for the that a such, explicit it is often short on information. As cy may evidence); proved by circumstantial is often "inferred from facts and Kennedy, States Iannelli, circumstances of the case.” 420 U.S. at Cir.1994) (citing precept Giunta for the that we 777-78 n. 95 S.Ct. at 1289-90 n. 10. The accept favorably must the facts to the Govern misperceives conviction), dissent the difference between reviewing conspiracy ment in spiracy denied, - U.S. -, activity to commit the crime and the 130 L.Ed.2d not, however, participation conspiracy: can constitute We have followed or law, requires "heightened vigilance,” specific "spe endorsed former a violation of a Giunta’s " " judgment activity cific weaknesses” or 'raw call’ lan while the latter is evidenced so, guage, tellingly the dissent cites no cases further the

861 joined conspir- or have conspiracy, of of the proper contours precepts set these inception. acy from its law, regarding setting parameters conspiracy to difficult agreement is specificity of the jurispru Again, regrettably, some of our elastic, principles ad hoc with the harmonize between the burden of dence is confused conspiracy jurisprudence.3 shape that our prove proof must meet to the Government conspiracy to the the defendant’s connection Moreover, man precedents have our degree connection the Government and the that a it has been shown that “[o]nce dated as a show to establish the defendant must exists, only need es the evidence conspiracy instance, in conspiracy. For member of the de between the slight a connection tablish 1123, 1133 Truglio, F.2d 731 United States support convic conspiracy to fendant and the (4th denied, 862, Cir.), 105 cert. 469 U.S. 1147; Brooks, at see also 957 F.2d tion.” (1984), 197, L.Ed.2d 130 we stated 83 S.Ct. Seni, 277, n. 7 662 F.2d 285 United States establishing the existence of the that after 950, 102 (4th Cir.1981), 455 U.S. defendant, conspiracy, in order to convict have 1453, 664 We 71 L.Ed.2d S.Ct. only “slight need show evi the Government principle, explain to this repeatedly adhered connecting the defendant to the con dence” law; conspiracy of the ing that while the existence of the spiracy. This is a misstatement to it must be connection and the defendant’s explain, must as we now the Government doubt, the defen beyond a reasonable proved conspiracy and the prove the existence of the only conspiracy need beyond dant’s connection to it a reason defendant’s connection See, e.g., doubt, v. Al- “slight.” United States the Su be which is standard able Dozie, (4th see, Cir.1995); Talib, consistently, employed preme 55 F.3d Court has Glasser, 469; at 97; Whittington, at e.g., States v. 315 U.S. 27 F.3d at United (4th Cir.1994); conspira connection to the but a defendant’s 26 F.3d “slight.” Sustaining a cy merely be Chorman, need States v. con “slight evidence” is conviction based on Cir.1990); F.2d at 1076. Baughman, 618 obligation prove trary to the Government’s the defendant’s connection Requiring that beyond doubt. crimes a reasonable “slight” way in no allevi conspiracy be proving burden ates the Government’s Likewise, increasing as Bell can be read conspiracy and the defen existence required to tie a quantitative connection beyond to it a reasonable dant’s connection conspiracy. the Bell a While defendant to “slight” does not describe The term doubt. that Bell Cruz court concluded of evidence that the Govern quantum possession with intent properly convicted Bell, narcotics, at must elicit order establish ment see to distribute conspiracy that convictions conspiracy, but rather the connection their it reversed conspiracy. maintains with the of the connections” defendant “[t]he because “specific a “slight between the demonstrate Requiring a connection” insufficient to acts,” wrongful at conspiracy id. agreement the established to commit defendant and view, Bell demanded conspiracy law In our because complements the canons can read as requirement, it specificity not know all of his a defendant need substantial, slight, not comprehend implying the reach of the coconspirators, to a necessary tie a defendant enterprises nection conspiracy, participate in all the conspiracy elastic, to harmonize with "is difficult erroneously suggests we have 3. The dissent conspir- shape principles our ad hoc crime of the elements of the confused Thus, simply acy jurisprudence.” we concluded challenge. evidentiary sufficiency with an specific as demonstrat- prescribing conduct post states we have char- at 881-82. The dissent odds participation was at in a conspiracy jurisprudence "a collec- as acterized " conspiracy need not 'elastic, precept that a with the principles.’ at 881 ad hoc Post tion of discrete, organizational identifiable suggestion we "have a because 882. This is a facile & Banks, structure,” "loosely-knit.” but can be great pains tenets of to articulate the have taken not, therefore, created sug- We making F.3d at 1054. have conspiracy jurisprudence. "sweeping statement” pre- cloth a from whole gestion, takes out of context the the dissent reduced to mere conspiracy law has been our cept need not be evidenced that a " 'elastic, principles.’ acts; therefore, Post prescribe ad hoc attempting "collection of specific participation at 881. specific acts that constitute therefore, Glasser, disagree, support with the it.” We added). (emphasis reviewing dissent’s characterization that Bell cannot be A court, confusing respecting therefore, the law may construed overturn substan rule, 882, 883, slight post connection see at tially merely supported verdict because it 885-86. unpalatable finds the verdict or determines another, reasonable verdict would be Thus, Truglio conspiracy sustained Rather, preferable. a we shall reverse ver evidence,” “slight convictions based on while dict if the a lack record demonstrates implying Bell can be read as that the Govern jury guilt a which could find only prove ment must not the existence of beyond a reasonable doubt. See United doubt, conspiracy beyond a reasonable Cir.1995), (4th Lowe, 1137, 1142 States 65 F.3d but also that the defendant’s connection to denied, - U.S. -, rt. 117 S.Ct. ce substantial, conspiracy slight. be We (1996). 49, explaining - L.Ed.2d - In view, polarized cannot subscribe to either review, scope the circumscribed of our finding incorrectly appli each extreme its Supreme explained in Court Burks v. United conspiracy Accordingly, cation of law. we States, 1, 17, 2141, 2150, 437 U.S. 98 S.Ct. 57 symmetry consistency restore to our law (1978), 1 “appellate L.Ed.2d reversal on respecting proving the distinction between grounds of insufficient evidence ... will be establishing the existence of a prosecution’s confined to cases where the Fidelity a defendant’s connection to it. Thus, failure is clear.” in the context of a the Constitution directs us to hold that the action, criminal substantial evidence is evi prove Government must the existence of a dence that a reasonable finder of fact could doubt, conspiracy beyond a reasonable accept adequate support and sufficient to upon establishing only conspiracy, guilt beyond a conclusion of a defendant’s slight linking connection need be made reasonable doubt. See United States support defendant to the Smith, (4th 914, Cir.), 917 cert. de conviction, although this connec - nied, -, 454, U.S. 115 S.Ct. 130 proved beyond tion also must be a reasonable (1994). applying L.Ed.2d 363 In this stan dispel any doubt. We other formulation of review, cognizant dard we must remain Circuit, precept from the Fourth jury, reviewing the fact that “[t]he not the any particular, the extent decisions—and court, weighs credibility of the evidence Bell, Giunta, Truglio inconsistent —are any and resolves conflicts in the evidence dictate, expressly with this we overrule presented, supports and if the evidence dif them.4 ferent, interpretations, reasonable interpretation decides which to believe.” 143, Murphy, United States v. 148 (citations Cir.1994) omitted), We now turn to cert. de our standard of - nied, Glasser, -, 954, Supreme review. ex U.S. 115 S.Ct. 130 Court plained Deferring jury’s that a verdict L.Ed.2d 897 “must sus evidence, tained if taking findings, “appellate there is substantial an ... court must sustain Government, evidence, the view most favorable to the if the verdict there is substantial pervasive, Burgos knowingly 4. One of the wilfully participated dissent's fatal flaws is its [in conspiracy].”); (stating 886-87 recognize duty facts that the failure to that our is to review persuasive finding dissent would have found guilt); law, engage facts and not to in raw decisionmak- ("[C]ould juror 888 a reasonable still infer ing, which is the task of the finder fact. Suc- pack- ... must have assisted in the stated, cinctly the dissent fails to understand the aging prior boarding of the cocaine [base] distinction between review and substitution. Re- not.”); ("Could train in New York? I think 890 peatedly, narrowly the dissent focuses on review- then the association evidence and the ing pieces reviewing selected of evidence in juror rationally evidence ... lead to conclude establishing guilt, post total circumstances see at Burgos wilfully participated ... [the ("I just examples 882 will mention a few [of the not.”), spiracy]? Again, I think but that is imma- ("I clear, guilt].”); establishing facts 886 think it court, appellate terial. As an our function is to [despite guilt] error, the evidence of that the Govern- judgment review for not to substitute our present ment jury. failed to substantial evidence that for that of the 81, (sustaining conspiracy 62 S.Ct. at 469-70 light most favorable viewed Burks, on the circumstances sur Government, U.S. convictions based uphold it.” Likewise, activity). court rounding the criminal As the determina- at 2150. Douglas, F.2d States v. prov- credibility “are within the sole tions of (7th Cir.), abrogated grounds other susceptible to jury and are not ince of Durrive, 1142; Lowe, 902 F.2d at and cert. de see 65 F.3d at judicial review.” nied, 110 S.Ct. Glasser, at 469. U.S. also elucidated, (1989), cogently L.Ed.2d 87 so deter- Thus, function is not to appellate evidence, any single piece of stand reviewing “[w]hile is con- court whether mine alone, doubt, but, might have been insufficient to beyond reasonable guilt vinced participation in defendant’s] in- establish [the and the reasonable viewing the evidence jury a could drug conspiracy, the ... rational light therefrom to be drawn ferences Government, totality of the evidence” that “whether infer the the favorable to most appellate conspiracy existed. The focus of support adduced at trial could review, therefore, sufficiency of the of evi guilty beyond a any rational determination Powell, com support dence to a conviction is on the States v. doubt.” United reasonable 471, 478, in 67, plete picture, viewed in context and 57, 105 S.Ct. 469 U.S. Government, (1984).5 light favorable to the re- most The focus of our L.Ed.2d 461 portrayed. all therefore, of the evidence view, is whether: [has] satisfied] ... The Government jury could given proof the [its]

courts that B. guilty rationally have reached a verdict by preceding principles, Guided do not doubt. We beyond a reasonable Burgos’s challenges address first we safeguards against further believe sufficiency to sustain his con of the evidence irrationality necessary. are Burgos asserts that his spiracy conviction. Id. the Gov conviction must be reversed because prove participated that he sufficiency chal ernment failed to to our review of Critical disagree. Viewing any conspiracy. We evi in complete picture that the lenges is the Al-Talib, to be all of evidence and the inferences F.3d at presents. dence See at Bur- that were adduced drawn therefrom Consequently, we must not rend 931. light favorable to the gos’s trial in the most is woven lest which the evidence garment of Government, conclude that the evidence in we analyze isolation. each individual fiber we for a to find Durrive, against Burgos is sufficient The Su 902 F.2d at 1229. participat beyond doubt that he a reasonable that we not preme has admonished Court fashion, and Gonzales in a with Gobern piecemeal but ed in a examine evidence See, North Carolina cocaine base at e.g., to distribute in context. it cumulative consider — Indeed, University. the dissent does -, TA & Whitley, 115 S.Ct. Kyles v. U.S. conspiracy existed be (1995) disagree that a 1555, (explaining 131 L.Ed.2d 490 Gonzales, merely tween Gobern cumulative ef must evaluate the the courts sufficiency of the evi prose takes issue with in with the connection fect of evidence Burgos’s participation regarding dence exculpatory revealing cution’s Glasser, at 80- 315 U.S. petitioner); habeas 2482, prosecution West, need not prosecution,” that the Wright 112 S.Ct. 505 U.S. (1992), except every hypothesis collateral affirmatively a case on out 120 L.Ed.2d 225 "rule review, similarly explained the limited the Court reviewing guilt,” court and that that of sufficiency chal- appellate review of nature facts that of historical "faced with a record lenges: pre- conflicting supports inferences must Virginia, 443 U.S. [v. In Jackson appear affirmatively if it does not sume—even (1979)], we em- L.Ed.2d 560 fact resolved the trier of in the record—that repeatedly owed to the phasized the deference prosecution, any favor of the such conflicts in and, sharply correspondingly, the fact trier of defer to that resolution.” and we must sufficiency re- constitutional limited nature of (first 296-97, empha- S.Ct. at 2492-93 Id. at evidence is to be We said that "all view. added). sis light to the most favorable considered in damning physical spiracy import most evidence es- conviction cocaine because

tablishing Burgos’s participation in the con- fingerprints placed the defendant’s spiracy is that his left index was packages drugs subsequent drugs’ sealing impressed on the mechanism at the packages insertion and all indicted ziplock plastic bag in top of the which the persons were aboard a boat modified to con plastic bag base was located. This cocaine area), drugs in a drug-smuggling ceal known turn, foil, which, wrapped in wrapped newspaper, packaged which was (1990); 108 L.Ed.2d 961 States box, wrapped in a which was Christmas Arzold-Amaya, 867 F.2d short, paper; the cocaine was inten- base Cir.) (affirming drug conspiracy convictions tionally thoroughly concealed. fingerprints being based on the defendants’ energy denigrating much fin- devotes containing on a found box cocaine and on evidence, because, gerprint particularly he vicinity beer bottles found in the crimi posits, this evidence is the sole evidence link- activity, nal presence the defendants’ conspiracy, him to “ ” position that we drug house,’ paraphernalia at a ‘stash frivolous, considering find all of the evidence secretary identification of defendant jury. before the denied, coconspirator), of a cert. 493 U.S. appellate consistently Federal courts have 933, 322, 110 S.Ct. 107 L.Ed.2d 312 fingerprints concluded constitute mate Burgos’s fingerprint impressed on the seal rial, cogent proof in sustaining conspiracy plastic bag containing mechanism of the narcotics, particu convictions for contraband base, cocaine which was concealed inside a larly when viewed the context of other cir wrapped package, significant piece is a See, e.g., cumstantial evidence. establishing knowing his and willful (10th Langston, States 970 F.2d participation conspiracy. in the Cir.) (affirming conspiracy a narcotics convic fingerprint against Burgos present tion because the defendant was strikingly similar to that in United States v. laboratory the location where the used to Hastamorir, (11th Cir.1989). 881 F.2d 1551 operating, manufacture narcotics was the Hastamorir, In Defendant Ledezma con- prominent odor of chemicals was at the loca conspiracy tended that his conviction for tion, point the defendant’s car at one reeked possess with intent to distribute cocaine must ether, testimony there was that “all” in be reversed want of sufficient evidence. persons laboratory, volved had overseen the tying Id. at 1557. The evidence Ledezma to fingerprint and defendant’s was on laborato conspiracy fingerprints the was his ry instruments), packages exterior of two of cocaine. Id. (1992); 121 L.Ed.2d 358 Unit Ledezma, According this evidence “in no Aichele, (9th ed States 941 F.2d way demonstrate[d] he knew what was Cir.1991) (noting finger that defendant’s packages any inside the or that he had intent prints laboratory equipment, on the odor of illegal to commit an act.” Id. The Eleventh controlled substances in his residence and rejected argument Circuit and affirmed office, and keys the fact that the defendant’s conspiracy his conviction. The court rea- opened laboratory the constituted sufficient evidence, fingerprint soned that the when conviction); conspiracy evidence to sustain a coupled with Ledezma’s contradicted testi- Ivey, United States v. Cir.1990) mony that he eoconspira- was not with other (sustaining conviction tors, permitted jury the to infer that Ledez- because the defendant’s was on perjured ma himself package containing the to conceal his role the the cocaine that a co- collected, conspirator According Id. to the Eleventh defendant identi Circuit, by fied himself the combined effect of a driver’s license number defendant him, collecting money credibility when with no fingerprints sent to and his on and tele phone packages containing conversations between supported the defendant cocaine coconspirators conviction, considering totality coincided with these events); Obregon, United States v. construing circumstantial evidence and all (11th Cir.) (upholding 1311-12 a con- inferences in favor of the Government. As visit to the train except for the occasional issue is explained, the court the Hastamorir Thus, only positive lavatory. not was there was con- court appellate whether doubt, testimony Burgos’s knowing and willful reasonable beyond all guilt vinced but, conspiracy, as participation of this convinced but whether Hastamorir, testimony contradicted Bur- based on sub- verdict was and its conclusion testimony, permitting gos’s trial Id. at 1558. evidence. stantial perjured that he had himself. infer from adduced circumstances The factual Special Agent Contending that rea- because give rise to the testimony likewise Bur- the train and knowingly and Kowalski was not aboard inference sonable credibility damaged of de- because conspiracy. gos’s voluntarily participated evidence, the dissent asserts meanor testified Agent Kowalski Special support position. our does not wrapped Hastamorir possessed that Gobern told him post n. 11. We are baffled inception 892-93 package Christmas Apparently, this incorrect contention. journey in New York: prerequisite require as dissent would say whether he talked Q: [Burgos] Did that law en- conviction sustain they and Gobern while Gonzale[s] agents present while the con- forcement the train? plans. Hasta- spirators formulate their Yes, rode with them. [Burgos] did. A: He morir, here, lied, and the the defendant was the one that Mr. He told me testimony of jury in each case found the wrapped aas package who earned than that of more witnesses credible other package. Christmas contends that defendants. The dissent any statements Q: right. Did he make All purely sustaining a based we are conviction pack- had this long Mr. how Gobern as to holding, Burgos. Our howev- disbelief age? er, fact that Bur- on the rests unremarkable package the Mr. had said Gobern A: He conflicting of the same gos gave renditions trip down. throughout the events, jury to believe the and the chose you anything he tell Q: right. And did All Special Agent Kowalski. he told to rendition Burgos Gonzale[s]— Mr what Mr. or about 866-70, Moreover, explain, at as we see infra told Mr. Gobern Gonzale[s] or Mr. what stand, Burgos did takes the if a defendant during package in the about what was him him, here, jury this is and the disbelieves trip? the train guilt. simply added evidence of me was that he Burgos A: Mr. told What erroneously posits that there dissent The although he they dope, that had knew Burgos as- establishing that is no his understand- it. And it was see didn’t prior cocaine base packaging the sisted me —it was his he is what told —this post at boarding in New York. See the train the understanding they going to sell were 865-66, at As we demonstrate 887-89. infra University. dope the A &T at however, jury could infer a reasonable packaging Burgos that did assist facts the he knew that you him Q: Did ask whether boarding train in cocaine base before package? crack cocaine there dissent also In this regard, York. New it, they he knew had He A: Yes. said Special Agent Kowal- incorrectly states actually see it. but he didn’t Burgos said Gobern never testified that ski added). he left New base when 67-68.) possessed the cocaine (J.A. In addi- (emphasis at Here, 879-80, 887-89. post at York. See that he tion, Agent Kowalski testified Special testimony estab- Agent Kowalski’s Burgos’s Special Burgos and one of fingerprinted knowledge Burgos had bag. More- lished plastic fingerprints was Bur- Gobern, cocaine base: distribute conspiracy to over, testified Burgos himself gos knew Gonzales Gonzales, him for behind and the women sat base, being that it was transporting cocaine anyone trans- trip, he did see the entire City to York Greens- transported from New wrap bag, or rew- plastic into fer material who carried boro, was the one that Gobern his seat leave package, nor did he rap wrapped package containing apply Christmas principles fails to that a defendant base, may the cocaine and that the cocaine base be a member of a without was to be distributed North Carolina A & knowledge participation of or scope in its full University.6 conjunction T with this testi- and that a tightly- need not abe mony, the evidence that left index organization precision. knit run Only fingerprint sealing was on the mechanism of by viewing Special Agent Kowalski’s testimo- plastic bag containing the cocaine base ny and all the evidence adduced at trial in a Burgos’s testimony that there were no light Burgos by most favorable to fault- wrap rewrap package materials ing the disproving Government for not Bur- permitted aboard the train to infer gos’s contradictory vague explanations packaging assisted the cocaine fingerprint for the evidence can the dissent base New York. Even the dissent ac- conclude as a matter of law that no rational knowledges that the time Gobern inwas foregoing could draw the inferences. lavatory train station was too brief an inter- light Viewed most favorable to the Gov- lude for him grams to transfer the 78.5 ernment, the evidence established that Bur- cocaine plastic bag base into the before con- gos was not a traveling companion, mere cealing it behind the commode. The dissent knowing, participant willful in this narcotics stubbornly however, acknowledge, refuses to distribution that, evidence, juror based on this a rational enlarge dissent also would scope could conclude that participated in sufficiency of our asking review whether conspiracy by packaging the cocaine base Burgos’s conviction can be sustained in the York, in New if even this conclusion were not proof absence of explanation that his for his compelled. The issue is not “[a] whether view, was false. In the dissent’s juror disagree too,” rational would on this the Government shouldered the burden of post at juror but whether a rational producing put “evidence that Gobern did not could find that in packaging assisted empty plastic cocaine into an bag bearing York, the cocaine base in New and a rational Burgos’s fingerprint during juror Indeed, the twelve hour certainly could. we find this to York,” train post ride from New be the rational conclusion: How else could view, Subscribing however, to this Burgos’s fingerprint contra- be found on an item venes principles well-established wrapped package inside a of criminal wrapped that was Holland, law. In inception Supreme since the the trip of the Court New es- chewed Regardless, jury York? the contention that the was free to the “Govern- draw conclusion, ... every ment[ ] either and must substantial exclude evidence reasonable supports hypothesis guilt. the conclusion of other guilt.” than that of Hol- land, U.S. 137. We Despite the evidence and inferences estab- cannot, therefore, find guilt the evidence of lishing Burgos’s knowing partic- and willful simply insufficient because it failed to dis- ipation in conspiracy, the our dissenting col- prove every possible hypothesis regarding leagues assert that we have excised from Burgos’s purported jury innocence. The conspiracy jurisprudence requirement the Burgos’s considered defense as well as the that substantial support jury’s the case, Government’s and our limited task in finding that a defendant knowingly will- and reviewing the simply verdict is to assure that fully participated in a To the substantial supports it. contrary, specifically recognize we this re- quirement offense, of the supra reiterate, see at 857- To Burgos’s fingerprint im- 58, 858-59, explain and pressed that the Government on sealing the plastic mechanism of a prove beyond doubt, must it bag foil, reasonable see wrapped in packed aluminum supra at reciting 858-59. While newspaper, the funda- and wrapped pack- encased in a law, mental trial, tenets of age. the dissent At explained presence the regard, speculates why In this the dissent on tive. regarding The record is silent whether Gonzales, prosecuted the Government never at- Gonzales is even alive or if the Government is tempting position nega- to bolster its cognizant based on a of his whereabouts. Cir.1972) testimony the (noting that of the sealing the mechanism on his was, agent stand- arresting law enforcement testifying that Gobern bag plastic of the conviction). alone, pre- sufficient to affirm a sandwich consumed apparently Agent Burgos, placed testimony Special Kowalski and, to The unbeknownst pared, bag without to convict plastic in the have sufficient base would been cocaine it. as a fingerprints regardless of his any conspiracy, his own status leaving although Here, he sat pre- further we are officer. Burgos testified law enforcement trip from New during example of two wit- in front of Gobern classic with the sented package York, the Christmas testimony regard- saw conflicting he never offering nesses To the train. disembarking from events, jury to prior decided and ing the same testimony, of the rendition accept Burgos’s accept to re- testimony and which which that Gobern find have had to jury would accepted by the testimony that was ject; lavatory, bag, entered plastic saved support the jury appeal is sufficient this package and Christmas open tore Indeed, argument, counsel at oral verdict. newspaper box, and unwrapped the cereal accept for a Burgos conceded that for base, placed cocaine from the aluminum foil testimony Special Agent Kowalski bag without plastic in the base the cocaine is not irrational. Kaplan Blanks and Officers plastic wrapped the fingerprint, leaving his concession, cou- especially when this Given foil, the aluminum swaddled bag in aluminum plastic fingerprint on the Burgos’s pled with co- secreted newspaper, and foil challenge conspir- hardly his Burgos can bag, im- The the commode. behind caine base acy conviction. within two transpiring of this plausibility Special stark contradiction dissent concedes. deep, as the runs minutes however, testimony, Bur- Agent Kowalski’s of events while account Regardless, making statements certain gos denied implausible, material highly strikes us Kowalski, claiming he Agent Special disbe- is the fact that purposes our carried the events, that Gobern its him never told of the this version lieved he train or that rational, given package particularly Christmas disbelief traveling to testimony of Offi- and Gonzales knew Gobern and content context Bur- Special Agent cocaine base. to distribute Kaplan Greensboro cers Blanks for the explanation blatant offer no gos could Kowalski. Agent Special his discrepancies between of the evidence competing versions testimony. contradicted Kowalski’s Bur- by Special Agent Kowalski related conflicting responses his own testimony and another, circumstance critical gos establish undoubtedly and cross-examination on direct in the con- Burgos’s participation supporting thereby support credibility, undermined testified Special Agent Kowalski spiracy. Burgos attempted ing the inference him that he knew Gonzales Burgos told that participation his disavow and Go- both Gonzales and conversed conflicting to the tales Relating implausible, Addition- York. train from New bern cir rationally further jury viewed can testified that Agent ally, Special Kowalski See, indicating guilt. cumstantial cocaine base he knew that Burgos admitted 295-96, at 112 S.Ct. 505 U.S. at e.g., Wright, that Gobern package in the Christmas was contradic a that defendant’s (explaining 2492 the the commencement possessed answers contribute tory, and evasive vague, the cocaine base York and that trip in New v. John States finding guilt); United a college at a distribution for was slated Cir.1995) (ob (8th 1120, son, 1128 64 F.3d a law en- As Greensboro, North Carolina. agents lying enforcement serving to law that Agent Special Kowalski’s agent, forcement de finding guilt), cert. to a contributes jury. likely testimony compelling was — 971, -, 133 nied, 116 S.Ct. U.S. Arra, 836, F.2d 849 v. 630 United States (1996); v. Stan States United L.Ed.2d 891 Cir.1980) (1st testimony (stating that Cir.1994) (not (11th 1314, 1321 ley, 24 F.3d have been would arresting officers alone implausi conflicting statements ing that conviction); United sustain sufficient to guilt enter indicia of 354, (8th are ble stories 359 F.2d Carney, 468 v. States 868 sustaining defendant], for

calculus convic it was further entitled to consider tions); Casilla, 600, United States v. 20 F.3d it perjured whatever concluded to be testimo- (5th Cir.) (explaining 606 testimony that trial ny as guilt.” Wright, affirmative evidence of that is inconsistent with various statements 296, 505 112 U.S. Prepos- S.Ct. officials, to customs especially made when Burgos’s seem, terous as testimony may accompanied by other circumstantial evi jury it, could obviously have believed dence, gives rise to a reasonable inference not; jury instead, jury did Bur- believed a participated defendant in a narcotics gos’s Special Agent admissions Kowalski. attempted participation), conceal his Determining credibility of witnesses and re- — denied, -, t. U.S. 115 cer solving conflicting testimony falls within the 240, (1994); 130 L.Ed.2d 163 United province factfinder, reviewing not the Solis, (9th 307, v. 841 F.2d States 310 Cir. court. See Bailey, United States v. 444 U.S. 1988)(stating “making up implausible an 394, 414-15, 624, 636-37, 100 S.Ct. 62 story” a cover is circumstance contributing to (1980). L.Ed.2d 575 mistakenly The dissent finding guilt a in connection with drug declines to recognize jury evidently conspiracy). only Not Burgos deny did mak Burgos perjured believed himself. As the Special Kowalski, Agent statements to he Wright court explained, perjured his testimo- jury also offered the implausible explana an ny could have been viewed as affirmative fingerprint. tion for his guilt. Thus, evidence of lying Indeed, in United States v. on may Ben the stand have aided in establishing nett, (11th 1134, Cir.1988), 848 F.2d 1139 guilty. the fact that he was Eleventh Circuit recognized “that defen Yet another supporting circumstance implausible explanation may dant’s constitute guilty verdict Burgos, Gobern, fact positive in support jury of a ver and Gonzales boarded train from New York dict,” and noted finding that such a City. steadfastly We acknowledged have particularly apropos because the defendants’ City New York city is a known source “explanation dubious, of their activities was if See, for drugs.7 contraband e.g., United wholly incredible.” Observing juries (4th States v. McFarley, 1188, 991 F.2d 1192 tales, take account of incredible Bennett ex Cir.), 949, 510 U.S. 114 S.Ct. plained that jury might “[a] reasonable well 393, 126 (1993); L.Ed.2d 342 United States explanation disbelieve the and conclude that Alpert, 958, (4th 816 Cir.1987); F.2d 961 lying [defendants] were attempt an 78, United States Gooding, up illegal 695 F.2d 83 cover activities.” Id. A defen (4th Cir.1982); credibility see also dant’s is a United States v. material Car consideration ter, 1095, (D.C.Cir.1993) (not establishing guilt, 1097 and if a defendant ing that City the stand ... New city “take[s] York is a charges and denies the source drugs); Glover, liar, and the thinks United States v. he’s becomes (2d Cir.1992) guilt evidence of (same); 1006 add the other evi Cooke, (6th Zafiro, dence.” United States v. States v. F.2d F.2d Cir. 1990) Cir.1991), aff'd, (same); Harris, United States v. (3d Cir.1973) (same). L.Ed.2d 317 F.2d As Addi Wright explained, Court evaluating tionally, “[i]n all together three men traveled testimony [the train, defendant’s] ... Gobern and Gonzales scheduled the entitled to discount [the defendant’s] credibil same return trip, Burgos’s plans travel ... ity jury if [a]nd the did disbelieve them,8 [the enabled him accompany to is which Contrary mischaracterization, to the dissent's trip. same post return at 889-90. While we we do traveling not hold that from a city source Burgos do not know if scheduled the same return automatically conspira- renders a trip him, one narcotics because his ticket was returned to we post Rather, tor. See at 889-90. simply we Burgos planned note do know stay testified that he to traveling city that a from source is a valid day, consid- in Greensboro Laurinburg one then travel to eration that guilt. enters the play calculus of to basketball with some friends. We also Burgos’s know plans that travel him to enabled 8. The by stating dissent takes us to task travel that with Gobern and Gonzales at least there is no evidence trip that scheduled the down from New York to where Greensboro

869 why Burgos may questioned reasonably have bolstering an infer evidence circumstantial long presence in the of for so conspira remained distribution drug in a guilt of ence 1128; traffickers. known narcotics Johnson, See, 64 F.3d e.g., cy. 149, 1 151 n. Sloley, F.3d 19 v. States United Gobern, Burgos, and Gon only did Not — -, denied, 114 Cir.), (4th U.S. cert. city, from a source together zales travel Sanchez, (1994); 2757, 873 129 L.Ed.2d S.Ct. purchased who Gobern’s it was Hanson, 1178; v. States United 961 F.2d the three men so that tickets Gonzales’s Cir.1986). (5th This cir 757, 765 801 F.2d train, adding aboard same could travel import greater assumes evidence cumstantial tending evidence to circumstantial more testimony that Burgos’s because here conspira in the Burgos’s participation prove was contradicted separately (ob men traveled James, See, 40 F.3d at 873 cy. e.g., Kowalski, to tending illustrate Agent Special tickets for purchasing airline serving that Hastamorir, 881 Burgos’s guilt. See further evi cogent circumstantial conspirators is free that the (holding 1557 F.2d at conspiracy a tending to establish dence testimony false disregard the defendant’s to every in a participant illustrating that not conspiracy); in the participate he did actually trafficking conspiracy sells drug 1522, 1525 Eley, F.2d v. 723 States United goods furnish many participants drugs, but Cir.1984) (concluding that a (11th defendant’s conspiracy, pro as such for the or services constitutes of events explanation outlandish shelter); firearms, or viding money-orders, verdict). guilty a supporting positive Sanchez, (noting, in sus 1178 F.2d at 961 sufficiency the evidence to taining of Bur- Moreover, dispositive, although not conviction, that conspiracy support drug a of criminal activi presence at scene gos’s plane tickets for procured the totality the defendant in the probative ty material “is flight). same coconspirators par her determining his circumstances” the[ ] Furthermore, testimo according his own to v. States conspiracy. United in a ticipation Gonzales, acquainted with (11th Cir.1986); ny, Burgos 606, Jenkins, 612 779 F.2d apparently were Saadeh, men all three 61 F.3d v. States United see also York, Bur- in New neighborhood Cir.) same (7th while mere (stating that 510, 525 exchanged telephone num gos and support Gonzales alone insufficient presence familiarity constitutes type This bers. conviction, coupled with presence further circumstantial conspiracy suffices that advances an act James, — conspiracy. See denied, in the participated conviction), U.S. cert. to sustain acquain (recognizing at 873 40 F.3d L.Ed.2d 428 -, 133 associat ability others to contact tance at a presence import of Recognizing conspiracy permits ed with opined that scene, Circuit the Eleventh crime participated in that a defendant conclude be sustained will convictions Disla, v. 805 States United conspiracy); surrounding per circumstances “when Cir.1986) (9th (appreciating 1340, 1349 F.2d conspiratorial at the scene presence son’s con among coconspirators friendship knowledge of its activity so obvious are conspiracy); United finding of tributes him.” fairly attributed can character (11th Meester, v. States Figueroa, States Cir.) with co- acquaintance (observing that Cir.1983). den The dissent would support conspirators tends presence on Burgos’s the relevance igrate conviction), U.S. sustaining majority train, accusing the (1985); also see 88 L.Ed.2d association. Sin mere based on a conviction Martinez, F.2d fact, ignores all United States the dissent this one out gling Cir.1993) of ex (2d (noting import establishing other evidence among conspir telephone numbers changing Bur- jury may have viewed well guilt. The exchange num ability to ators and train car presence continued gos’s guilt in a finding of bers contributes or association. presence than mere more conspiracy); United distribution it, narcotics before evidence all the view of base. cocaine distribution located, point is A & T University Carolina North Gomez, States v. discrepancies Burgos’s between Spe- Cir.1991) (observing coconspirators that pos Agent cial testimony Kowalski’s are infer- numbers). sessed telephone each others’ Burgos’s ences. conflicting Spe- stories and Agent cial Kowalski’s direct testimony are The dissent attempts to undermine the inferences, positive but are statements probity by of this asserting evidence that Burgos that knowingly willingly partici- there was “no evidence presented showing pated in The final contention Burgos that ... police lied to the about Burgos that prior had no narcotics convic- knowing Gobern and Gonzales.” Post at 894. tions is not an element of the crime of con- We do not find this statement accurate. spiracy and hence not a burden of the Gov- Special Agent Kowalski Burgos testified that ernment prove. to rationale, Under that no Gonzales, said he knew but not Gobern. one could breach the criminal law for the Burgos testified somewhat contradictorily, first time for want of a history. criminal however, only that he knew Gonzales as Inexplicably, harps the dissent on these cir- “Tone,” subsequently Spe- that he told cumstances, yet ignores the overwhelming Agent cial Kowalski that he did not know circumstantial guilt. task, evidence of Our man, only either but knew Gonzales from the however, is to review the that evidence area. In addition contradictory nature presented, not as the dissent has done to Burgos’s accounts, veracity of his as- prescribe the evidence that it would have sertions is further thwarted the fact that liked to have seen elicited. the men attempted also depart the termi- Concluding that the insufficient single taxicab; nal in a thus, they not only Burgos’s conviction, sustain the dissent left New York in tandem and traveled simul- ignores the abundance of direct and circum- taneously, attempted but also depart stantial Conspicuously, evidence. for exam- train collectively. terminal ple, the dissent fails to Burgos mention that Implying that we filling are in evidentiary exchanged telephone numbers with Gonzales. gaps guflt, with inferences of the dissent Also, the dissent refuses to acknowledge that impermissibly draws inferences of Burgos’s testimony was evasive and self-con- innocence based supposed gaps in the tradictory incredibly incriminating charac- — argument evidence and the discrep- teristics —and his counsel conceded at Special ancies Agent between Kowalski’s and argument oral guilty that the verdict was not Burgos’s conflicting rendition the events irrational. The dissent also disingenuously only are post inferences. See at 891-93 & n. attempts to ascribe purposes innocuous instance, 11. For the dissent contends no surreptitious instance, conduct. For the dis- witnesses testified Burgos knew Gobern sent states Burgos summoned the cab before trip, presented train no evidence solely himself, testified that planned to travel with Gobern “we standing were all outside .... [it] was Gonzales, proof adduced no Gobern, (J.A me 126R.) and Gonzale[s].” at Burgos previously had engaged in narcotics This also begs question why Burgos trafficking implements or carried of the traf- (J.A reservations,” “made the 126-S,) cab ficking trade. These alleged “gaps” in the if, stated, as he his friend Robert Lewis was exist, First, do not however. Bur- pick up him at the train upon station gos testified that he knew Gonzales from telephone call, but when Lewis did not an- areas they frequented in York New and Go- swer, Burgos Henry called DeGraffenreed, bern was also around those areas. More- who said he would be there in thirty minutes. over, we have demonstrated that the jury addition, Officer Blanks explicitly testified could infer that planned and Gobern that all subjects, “three including Mr. Bur- together: travel Burgos purchased Go- gos, was getting [sic] in the back of the cab bern’s tickets, and Gonzales’s train (J.A. traveled together.” 50.) The dissent also with Gonzales, provided Gobern and them questions Burgos’s guilt because he carried food, and remained in their company no cash. jury may have perceived Bur- rather than distance himself from them. gos We escorting source, i.e., his cash also disagree with base, characterization that cocaine to Greensboro where he and his cash; respect, disregards yet into the dissent another eoconspirators would convert it short, reasonably precept conspiracy jurisprudence: find that he of do jury could We the manner, analyze piecemeal in a sale the cocaine not evidence no because the had cash effect, must consider its cumulative had not occurred. but base precisely what which is we have accom- evidence, if viewed some this While plished. Conversely, the dissent dissects the isolation, innocuous, appear [an] “such could by sepa- direct and circumstantial evidence mark; inquiry is argument misses the our rately pieces, not dismissing selective ana- jury find the any reasonable could whether We, lyzing all of the evidence context. facts, crime, beyond the on these elements of therefore, Burgos’s affirm conviction for con- doubt, [Burgos] is not whether a reasonable spiracy possess to with to intent distribute Aichele, guilty.” 941 F.2d at plausibly not cocaine base.9 Construing this and its 764. all of evidence in favor inferences Govern- reasonable C. inexorably that to conclusion ment leads analyze de We now the evidence to Burgos’s supports substantial evidence support termine whether it was sufficient to sum of the spiracy conviction. The total conspiracy conviction. As an initial Gobern’s (1) physical evi- presented reveals: matter, much of the evidence rationale forensically proving Burgos’s fin- dence that compels that us affirm con to sealing gerprint on the mechanism the was against Burgos applies equally viction to Go- bag plastic in the Christ- cocaine base-filled that, on bern. We conclude based the evi package that carried New mas Gobern trial, presented dence at Gobern’s rational (2) York; that knew the Christmas find, doubt, jury beyond a reasonable could it package cocaine base and that contained conspired that another with to dis Gobern college in for distribution at a was slated Carolina; in tribute cocaine base North (3) Carolina; Greensboro, Burgos pur- North deed, his role in the is chal tickets; chased and Gobern’s train Gonzales’s lenged, challenge nor his does he conviction (4) package a cereal box Christmas of possession. and sentence sink, newspaper ripped open on the was observed, Burgos, lavatory, previously Go- and this news- As we scattered about bern, together and Gonzales traveled paper was from same edition of same York, traveling together newspaper wrapped train from New around the aluminum totality probative of the plastic bag with Bur- foil swaddled prove used to gos’s fingerprint that contained the cocaine circumstances (5) See, Johnson, 1128; base; Sloley, e.g., F.3d at familiar Gonzales with they Although F.3d at 151 n. traveled and conversed with Gobern and Gonzales 1. Gobern, tandem, Burgos, sepa during trip, provided train as well and Gonzales (6) nourishment; terminal, yet incul Burgos’s rated once at the another them with testi- conduct, conspiratorial see mony conflicting, equivocal pating feature of was riddled with Cardenas, by Special F.3d responses and was contradicted United States — -, (7) Gobern, Cir.1993), Kowalski; Burgos, U.S. Agent (1994) (not attempted termi- 128 L.Ed.2d 876 to leave the train Gonzales case, ing, drug importation conspiracy single pletho- in a Based in a nal taxicab. evidence, together, but we conclude a rational the defendants traveled ra crossing the beyond separated then when could find reasonable doubt border), it conspiracy; tends establish Burgos participated States because Gobern, indeed, knew one hard-pressed accept Burgos, Gonzales we would be consciously sought de- evade that a could conclude otherwise. another another, concludes, transported co- Ironically, post Gobern see one dissent evidence, more, good plus a All of this bit 889-90 & that there was sufficient evidence caine. trial, yet anomalously, adduced at Gobern of based on the convict tickets, regard Burgos, sequentially concludes numbered and the facts that the dissent together, they evidence is insufficient sustain and Gonzales traveled re- this same date, they knowing conviction. turned on same denied 872 acquaintance. tection of their After seem- James, distribution conspiracy); 40 F.3d at

ingly separating, Burgos, Gobern, (noting 873 reviewing Gon- sufficiency a regrouped zales then attempted challenge a conspiracy to enter conviction the fact the same taxicab. that the purchased addition to defendant traveling tickets for co- Gonzales, conspirators with under an alias traveled constituted evi Gobern Sanchez, guilt); dence City, from New York a of city known 961 F.2d at source for 1178 (concluding substances, that a controlled defendant’s use of an McFarley, see alias 991 purchase plane eoconspira- F.2d at 1192. tickets for her pieces These of circumstantial tors on flight the same is guilt evidence of help comprise evidence also totality conspiracy); (observ a Ayala, 887 F.2d at 69 necessary circumstances support Go- ing that a purchasing defendant’s three train conspiracy bern’s conviction. tickets, names, two of which bore identical There is still more. Gobern’s demeanor aids in establishing sufficient evidence to also inculpating constituted circumstantial conviction); support Disla, a 805 F.2d at instance, evidence. For surveyed (ruling 1349 that concealing identity with interest Officer Blank’s conversation participants to a enterprise criminal proba is Gonzales. The rationally could tive guilt evidence demonstrating in a con perceived have such countersurveillance as spiracy); Hanson, (elucidat 801 F.2d at 765 participating conspiracy, see United ing that bearing two defendants the same (9th Penagos, 346, States v. 823 F.2d 348 alias finding guilt contributed to in a nar Cir.1987), and as circumstantial evidence conspiracy). Moreover, cotics the tickets tending to establish the existence of a con held Gobern and Gonzales bore consecu spiracy, Sasson, see United States v. 62 F.3d numbers, tive purchased on the same — (7th 874, Cir.1995), denied, 887 cert. U.S. date, locale, at the same for the same desti -, 953, 116 (1996); 133 L.Ed.2d 876 nation and the same return date. Possessing Saadeh, 525; Brooks, 61 F.3d at 957 F.2d at sequentially numbered tickets is further indi- Indeed, the Seventh Circuit has con cia conspiracy. See United States v. cluded that eountersurveillanee standing Fuentes-Moreno, (1st 24, 895 F.2d 26 Cir. alone is sufficient to convict a defendant of 1990) (noting that purchased airline tickets conspiracy to possess with intent to distrib the same date place same bearing drugs. ute Pazos, See United States 993 sequential probative numbers is circumstan 136, 137(7th Cir.1993). F.2d Countersurveil- tial evidence of a conspiracy); also United cf. provides lance with an essential Montas, 775, (1st States v. 41 F.3d 777 Cir. ensuring service in is 1994) (noting baggage-claim consecutive cloaked and executed in a manner to avoid check adjacent numbers and assign seat exposure. In addition to his countersurveil- ments contribute to a finding guilt), cert. lance, nervous, Gobern was and nervous be — denied, -, U.S. 115 S.Ct. 131 havior is further circumstantial evidence (1995); L.Ed.2d 873 Cipri United States v. from which reasonably could infer ano, (7th Cir.1985) 765 F.2d (per guilt. Stanley, 1321; 24 F.3d at Carde curiam) (holding that possessing sequentially nas, 1157; 9 F.3d at v. Pine States numbered airline tickets contributes to totali da-Ortuno, (5th Cir.), ty of circumstances warranting probable U.S. arrest). Moreover, cause for Officer Blanks (1992); L.Ed.2d 587 Ayala, United States v. testified that the together men traveled Cir.1989). they attempted to the train leave termi by boarding nal single taxicab. In addition to the surfeit of evidence dis- far, cussed thus both Gobern and Gonzales course, Of a highly piece material of evi- produced train bearing tickets the name “An- establishing dence and Gobern’s thony Flores.” Employing an alias and at- participation in it was that Burgos’s finger- tempting identity to conceal reinforces the print was found on sealing mechanism of conclusion of the existence of a plastic bag containing the cocaine base See, Johnson, e.g., 64 F.3d at 1128 (giving that inwas the Christmas package Gobern false names is guilt evidence of drug carried. fact that Burgos’s fingerprint drugs greater than would be used pack- in a wrapped article on an interior Roberts, consumption. personal See the inception the of by from age held Multiple persons possessing a at F.2d rational to a demonstrate trip could train drugs working and in con large quantity of Burgos and Gobern of fact finder pos constructive sufficiently establish cert Based cocaine base. the to distribute spired Watkins, v. 662 States evidence, session. United rational See circumstantial on this (4th Cir.1981), 1090, cert. de 1097-98 F.2d doubt beyond a reasonable find could 1613, 989, nied, 71 102 S.Ct. 455 U.S. conspiracy and of a Gobern’s existence (1982). L.Ed.2d 849 and Viewing this it. evidence to connection it in drawn inferences reasonable guilty aiding of A defendant Government, to light most favorable “knowingly associated abetting if he has and sup- evidence that substantial we conclude participated the criminal with and himself conspiracy. for conviction ports Gobern’s Winstead, v. 708 United States venture.” Cir.1983). (4th 925, In order to 927 F.2d IV. association, must es the Government prove for Burgos’s conviction consider nowWe participated in the defendant tablish that the to distribute cocaine with intent possession intent, requires which criminal principal’s crime, in abetting that aiding and and base princi cognizant of the that a defendant be 1969) (West and § 2 of 18 U.S.C.A. violation lawlessness of pal’s intent and the criminal 1981). (West 841(a)(1) Mount- § 21 U.S.C.A. explained in activity. id. As See we possession challenge to the the same (4th Arrington, F.2d 701 v. 719 United States conviction, as to the conviction denied, 1028, Cir.1983), 104 465 U.S. cert. pos- proving posits that the evidence (1984), 1289, be “[t]o L.Ed.2d 691 79 abetting aiding is insufficient and and session aiding abetting, ‘[p]artic and convicted of Again, dis- we support his conviction. to stage illegal of an venture is ipation every jury’s finding sub- agree affirm and stage at some required, only participation his conviction. supports stantial knowledge the result and accompanied by of ” necessary prove to The elements Id. bring about that result.’ intent with intent possession a conviction Hathaway, v. 534 (quoting States 705 United (1) possession are: denied, cocaine base (1st Cir.), 386, distribute 429 U.S. cert. F.2d 399 (2) base; pos knowledge (sec (1976)) cocaine 64, 79 50 L.Ed.2d 97 S.Ct. (3) session; to distribute intention' same evi original). The ond alteration Nelson, 6 v. States base. See United cocaine participation establishing a defendant’s dence (4th Cir.1993), de cert. 1053 F.3d may support a conclusion in a — -, 128 nied, 114 S.Ct. U.S. principal’s participated a defendant (1994). may “ac Possession be 870 possess L.Ed.2d and distribute unlawful intent constructive, may or and it be sole aiding guilt tual thereby proving drugs, Thus, be “[possession need not joint.” Id. id. at 705-06. abetting well. See exclusive, may shared with others.” be concerning possession (alteration The focus at 1077 Laughman, 618 F.2d omitted). centers on abetting aiding and count (internal marks quotation original) impressed on the being fingerprint by Burgos’s may proved be possession Constructive base, evi exercised, containing the cocaine plastic bag defendant demonstrating “that the is insufficient Burgos maintains exercise, dence that dominion power or had Relying on Unit conviction. support his v. States over item.” control (4th Fossen, (4th Cir.), v. Van ed States Rusher, F.2d Corso, 439 Cir.1972), States and United Cir.1971) curiam), Burgos (4th (per F.2d 956 conspiracy, “[con Like L.Ed.2d mandates precedent that circuit contends may be established possession structive aiding and possession reversal of or direct evidence.” circumstantial either Corso, Corso In abetting conviction. Nelson, requisite intent F.3d at 1053. union entering a credit federal quantity convicted if the may inferred to distribute larceny. with the intent to commit participation Cor demonstrate so, only Harris, 956-57. The United States 530 F.2d 576 Cir.1976) demonstrating guilt curiam), however, Corso’s was a match (per we distin- guished book cover Corso’s it principles articulated in Corso jam was used to a door lock in the and Van Fossen. Harris was convicted of budding where the credit robbery union offices were fingerprints bank basis located, piece driver, a broken of a screw holdup presented taken from the note he union, screw driver located in the credit the bank teller and Harris’s confession. Id. testimony purchased goods Corso, Corso Relying on at 579. on challenged Hams by making payments conviction, credit cash down soon asserting his the evidence burglary the after of the credit union had was insufficient to sustain the conviction. Id. occurred. Id. at 957. exception rejected assertion, With of We explaining: cover, the matchbook fingerprints Corso’s Harris fingerprints contends that the iden- crime, were found of scene tified his on the written [holdup] note proof and there establishing was no when presented to the bank teller could have fingerprints Corso’s were impressed on the impressed been paper on the before the matchbook cover. Id. Explaining that presented. demand was written or Our was no “there direct evidence as to owner holding in dispositive Corso is not of this ship possession of either screwdriver” and question opinion because that merely “no direct evidence to show that [Corso’s] fingerprint states that when evidence is of fingerprints impressed upon were questionable value, probative it cannot sus- burgla [matchbook] cover at the time tain a if it only conviction is the substan- ry,” conviction, the court reversed Corso’s presented. tive evidence In the present summarily stating that probative “[t]he value ease, fingerprint evidence was in addi- fingerprints of an upon readily accused’s tion to incriminating by admissions object highly questionable, movable is unless by government’s defendant as shown it can be shown that prints such could have evidence. impressed only been during the commission Id. Bryant, See also United States of the crime.” Id. (4th Cir.1972) F.2d 250-51 (concluding Corso, Relying on in Van Fossen we re- discovery that the fingerprints apparently Van versed Fossen’s possess- conviction for recently impressed in an gen- area that was ing engraving plates with intent use them erally public inaccessible to the constituted to counterfeit federal reserve notes and conviction). sufficient evidence to sustain the printing and photographing images of the Similarly, Anderson, in United States v. Fossen, notes. Van 460 F.2d at 39. The Cir.1979), F.2d we followed evidence on which Van Fossen was convicted Harris’s characterization of Corso and re- fingerprints consisted of his an engraving jected the defendant’s contention “that fin- plate a photographic negative and used gerprints objects per on movable lack se counterfeiting. Id. at 39-40. In reversing probative regard, value.” the dis- conviction, Van Fossen’s we focused on the sent’s characterization of Anderson as “rec- temporal nature of when the crime was com- onciling” perplexing. these cases is mitted and when Van fingerprints Fossen’s While reasoning holdings and of Corso impressed were plate on the negative. and Van Fossen have been limited subse- “[bjeeause at 41. Id. We concluded that no decisions, quent we conclude nonetheless evidence in the suggested] record that the they inapt respect are with Burgos’s pos- [fingerjprints impressed when the session conviction. Unlike Corso Van committed,” crime jury’s was verdict was Fossen, fingerprint evidence was not the conjecture based “on suspicion.” Id. only incriminating establishing evidence Bur- According Burgos, rather, Corso and gos’s guilt; Van Fos- there was an abundance compel sen reversal of his conviction because establishing was they establish that his guilty of possession with intent to distribute plastic bag probative base, lacks sufficient value to namely cocaine the evidence establish- and thus was cocaine base distribute guilty of ing that abetting the crime of aiding and guilty Bur- proved that sufficient Because cocaine possess with intent to distribute possession gos participated base, Burgos’s con- proof Accordingly, we affirm base. cocaine to distribute intent to distrib- possession to con- with intent is sufficient viction possession of constructive aiding abetting. with intent distrib- ute base possession cocaine vict him of at 1076. Laughman, ute. V. maintaining the evi-

The dissent’s pos- to sustain insufficient dence sentence. Go- turn to Gobern’s We now abetting counts aiding and session conspiracy pursuant to was convicted bern it is reasons that the same erroneous 841(a)(1), posses- §§ 846 and of 21 U.S.C.A. conspiracy convic- regarding erroneous § 2 and to 18 pursuant sion U.S.C.A. incorrect Contrary to the dissent’s tion. 841(a)(1). rendered § A conviction U.S.C.A. for our assertion, a basis provide we do 841(a)(1) involving more than § pursuant fails the dissent concluding that holdings, in a man- fifty grams cocaine base results of aiding and possession and to understand ten-year prison sentence datory minimum First, Burgos’s abetting law. (West 841(b)(1)(A) § pursuant to U.S.C.A. sealing mechanism on the found therefore, Gobern, incurred Supp.1995). grams of cocaine bag containing 78.5 plastic mandatory sentence of statutory minimum substantially base, inconsistent quantity level of thir- years. a total ten With offense simply is The dissent personal use. with one, category of history criminal ty-two and a law that fact and a matter of as incorrect 121- range of guideline Gobern achieved establishing Burgos’s only evidence the and the district imprisonment, 151 months Second, Special fingerprint. the guilt im- to months Gobern court sentenced Burgos told Agent Kowalski testified to 18 U.S.C.A. Pursuant prisonment.10 Christmas Gobern’s that he knew him (West 1985), challenges his § Gobern base, he cocaine and contained package First, he asserts grounds. on two sentence planned to and Gonzales that Gobern knew failing erred district court the base Greensboro. the cocaine distribute single act of on his depart based downward journey by Third, the Burgos facilitated U.S.S.G., 1, Pt. Ch. behavior. aberrant sustenance, as as well tickets and providing Second, the A, 4(d), asserts for Gobern p.s. by sitting near- base the cocaine protecting statutory sen- appeal that the first time Fourth, in addi- trip. by during the entire powder co- versus tencing for cocaine ratio testimony, Burgos this conclusive tion Equal Pro- the violates caine offenses base knowledge the of his attempted to conceal challenge to first Gobern’s tection Clause. such by denying that he made base cocaine and his second appealable, is not his sentence Agent Kowalski. Special statements challenge is meritless. dis- and that Viewing all of light III.B. the in Part earlier cussed A. con- Government favorable the most district the first contends Gobern inferences favor struing all reasonable depart downward failing court erred Government, that a ration- conclude we the behavior. single act of aberrant based on possession convict jury could al Gobern, in the participation his According to Un- cocaine base. intent to distribute of the cocaine possession and his proving Arrington, same the der acts; relies specifically he are isolated base participation Burgos’s prior connection has no that he exer- fact jury’s that he conclusion supports the activity. district trafficking drug to with with intent possession constructive cised 841(b)(1)(A). Regard- §in pursuant contained minimum though he was sentenced Even Sentencing less, Guidelines, undergirding the Sentencing Gobern does not rationale same, 841(b)(1)(A) Sentencing § Guidelines violate tend that the Guidelines rather, Clause; limits Equal Equal Protection Clause. Protection neither violates mandatory statutory solely challenge disagreed court with this characterization of that a ap- sentence violates the law is crimes, participation pealable). Gobern’s and the ob- Determining whether Gobern’s serving participation that Gobern’s sentence Equal violates Protection planned calculated, crimes was issue, legal evi- Clause entails of a resolution previously wrapped denced review, which freely Christmas successive courts see package, well-planned trip, Murphy, consecu- F.3d at 145.

tive numbers having on the train tickets 841(b)(1)(A) provides Subsection duration, same destination and mandatory ten-year minimum sentence for obtaining food; providing tickets and 841(a)(1) § violations of involving more than therefore, the district court declined to de- fifty grams base, of cocaine and results in a part downward. sentencing disparity between offenses involv

Here, ing cocaine involving Gobern committed an of base versus those co statutorily fense that 841(a)(1), § caine powder. mandated a minimum Under one unit of of 120 imprisonment, months cocaine equated base is the district with 100 units of thus, court powder; sentenced him to 121 cocaine imprison months possessing a much ment Sentencing quantity under smaller Guidelines. cocaine base results in a departures lengthier Guideline apply do not to a sentence than possessing sen the same by statute, tence quantity Gobern, mandated powder. see United cocaine States who Crittendon, color,” F.2d “person describes himself as a pos Cir. 1989), so the most that its sentencing disparity that the district court violates the departed month, Equal could have Protection one a fact of Clause because Caucasians which the frequently district court are more In sen aware. convicted of offenses Gobern, tencing involving the district recognized powder, “persons court cocaine while authority downward, that it had depart color” frequently are more convicted of of refused, but it explaining involving fenses the circum cocaine base. stances did not warrant a depar downward We consistently have sustained the consti ture. If a cognizant district court is of its tutionality sentencing disparity between authority depart, so, but does not do such cocaine base and powder cocaine based on an depart a refusal to guide downward from the equal protection challenge, rejecting re range simply line is appealable. not See peatedly argument now Bayerle, 28, United States v. 898 F.2d 30-31 See, seeks to advance. e.g., United States v. (4th Cir.), denied, 819, cert. 498 U.S. 111 Fisher, (4th Cir.) (sen 96, 58 F.3d 99-100 65, (1990). 112 S.Ct. L.Ed.2d 39 According 841(b)(1)(A) disparity tencing § under does

ly, we dismiss challenge this to Gobern’s Equal not violate Clause), Protection sentence. — denied, U.S. -, 329, 133 cert. 116 S.Ct. (1995); Jones, L.Ed.2d 229 United States v.

B. 1145, (4th Cir.1994) 18 F.3d 1151 (sentencing challenge Gobem’s second disparity to his under Sentencing Guidelines sentence is that Equal it violates the Protec does not Equal violate the Protection tion challenge Clause. This Clause); was not raised in D’Anjou, States v. 16 F.3d court, — (4th the district 604, Cir.) generally while we (same), denied, do cert. not address -, issues the first instance on U.S. 114 S.Ct. 129 L.Ed.2d 871 appeal, we can (1994); address an issue not raised in Bynum, United States v. 3 F.3d (4th the district plain Cir.1993) court if error (same), would result declining from our review. See United U.S. 127 L.Ed.2d 416 Olano, States v. 732-33, (1994); Thomas, United States v. 1770, 1776-77, Cir.1990) L.Ed.2d 508 39-40 (sentencing disparity We challenge review this 841(b)(1)(A) § because a sentence under does violate the that violates the Clause). Constitution plain Equal would be Protection We observed in ly erroneous imposed as one DAnjou violation of “[e]very appellate federal court Bayerle, law. 31; 898 F.2d at also see 18 to equal protection consider the challenge 3742(a)(1) (West 1985) § U.S.C.A. (providing under the racial disparity theory agreed has 841(b)(1)(A) basis, it § which D’Anjou, has rational this conclusion.” with n. 7 does: Bynum, F.3d at 774 also 612; see rejecting conten- Gobern’s (collecting cases rationally Congress could have concluded in-

tion). Gobern precedents, Despite these great- base is a that distribution of cocaine conclusion based us to reconsider vites society than distribution of menace to er Sentencing to the possible amendments greater warranted powder cocaine Guidelines, invitation —as we decline his and, expensive it less penalties because rejected specifically Congress Congress. did accessible, therefore, it is more because proposed Sentencing Commission’s than cocaine more considered addictive penalty disparity to lessen amendment specifically tar- powder and because it is cocaine-powder versus cocaine-base between youth. geted toward drugs: quantity of premised on offenses Thomas, Accordingly, we 900 F.2d at 39-40. disapproves the Commission’s [Congress] contention that his that Gobern’s conclude equalize amendment recommended Equal Protection sentence violates distributing powder crack penalties for Clause is without merit. cocaine, the current thereby preserving traf- crack cocaine guideline sentences VI.

ficking offenses.... totality circum- of the Considering the light viewing

stances 29,1995, Judiciary Government, Commit- On June we con- most favorable hearing held a Subcommittee jury certainly tee’s Crime could have that a rational clude Sentencing Commission’s beyond to examine a reason- found substantial sentencing changes to the recommended to convict able doubt equalize penalties would guidelines that intent to distrib- possess powder quantities of crack for similar convict cocaine base and to ute witnesses, Many hearing cocaine. to distribute cocaine possession with intent Sentencing including members of abetting. Accordingly, aiding and base and Commission, important dif- acknowledged conspiracy Burgos’s Gobern’s we affirm powder co- likewise, convictions; Burgos’s between crack ferences we affirm .... abetting caine: convic- aiding and possession and respect- sentence Regarding Gobern’s tion. 22, 1995, Judiciary Com- On June departure, because the ing the downward heard com- Subcommittee mittee’s Crime ability to cognizant of its court was district testimony law enforcement pelling downward, to do so is its refusal depart They Congress, leaders.... warned thus, portion we appealable; dismiss terms, crack not to lower unmistakable reject Gobem’s contention appeal. We of- powder cocaine to those of penalties Equal Protec- violates that his sentence fenses, more destructive because of the Accordingly, his sentence tion Clause. of the crack market. nature affirmed. 104-272,104th Cong., 1st Sess. H.R.Rep. No. PART AND DIS- IN AFFIRMED reprinted 1995 U.S.C.C.A.N. 1— PART. IN MISSED what Con- shall not endorse 336-37. We rejected. gress specifically has MICHAEL, dissenting in Judge, Circuit not violate sentence does Gobem’s concurring part: part and law because “the Equal Protection Clause ago, Jackson Nearly century Justice face[,] a half ... there its not discriminate on does history of the law that the expressed concern discriminatory application argument of is no ‘tendency of a “exemplifies the conspiracy law[,] advanced ... nor of the of its to the limit expand principle to itself the hearts discriminatory purpose entered States, logic.’” Krulewitch v. D’Anjou, [the law].” who enacted of those 440, 445, 93 L.Ed. such U.S. to demonstrate Failing at 612. (1949) (Jackson, J., (quoting B. concurring) if only to determine showing, we review Cardozo, part work, The Nature the Judicial drug Process As of routine interdiction 51). Kaplan Justice Jackson further warned that: Police Officer Daniel stopped and questioned Burgos before he reached the unavailing protest against of courts building. Burgos produced terminal his growing conspiracy habit to indict for ticket, train which was in his name. Police prosecuting in lieu of for the substantive Berkley stopped ques- Officer Blanks itself, thereto, sug- offense or in addition Gonzales, paused tioned and Gobern to watch gests practice that loose toas this offense questioning of Gonzales. Officer Blanks constitutes a threat to fairness our ad- and Gonzales then walked to the front of the justice. ministration of building, terminal and Gobern followed and 445-46, Id. at 69 S.Ct. at 719-20. Unfortu- watched. At request, Officer Blanks’ Gon- nately, today’s majority I opinion believe ticket, produced zales train which inwas expressed by confirms the fears Justice Jack- “Anthony time, the name of By Flores.” majority son. The has turned the law of Kaplan Officer had finished questioning Bur- conspiracy alleged least in the context of —at gos joined and had Officer Blanks and Gon- drug conspiracies the law of “mere as- —into zales in front of building. the terminal Burgos’s sociation.” conviction stands sim- Gobern then building entered the terminal ply hung because he wrong around with the and walked to the men’s restroom with the people long Indeed, on a train ride. as of wrapped package knapsack. Ap- and the today there seems to be little that does not proximately later, one to two minutes I, therefore, allow inference of came out of the knapsack restroom with the respectfully majority insofar dissent as the wrapped n package. without the No one opinion affirms conviction. else entered or exited during the restroom I do believe that prin- based on traditional restroom, this time. After Gobern exited the law, ciples there was sufficient Kaplan Officer questioned him. stopped presented trial Gobem’s to show' Kaplan Officer asked for Gobern’s train tick- that he was involved et, which “Anthony was also the name of though I, Burgos. not with there- Gonzales — Flores.” Both Gobern and Gonzales denied fore, judgment, concur in the but not the they knew each they other or that reasoning, majority of the insofar as it sus- traveling together. However, both Gobem’s tains Gobern’s I conviction. also and sequential Gonzales’s tickets were in or- majority’s concur in dispo- treatment and der, name, bore the same were issued on sition sentencing issues raised Go- January and had identical return dates of bern. January 27. Kaplan Officers and Blanks then searched I. telling the restroom after Officer Cameron Gobern, Gonzales, Piner to watch and Bur- A. gos. Inside the restroom the officers saw Burgos’s At following trial the facts were package the Christmas and cereal box torn presented jury. 25, 1993, January sink, the On open on they balled-up the and found a men, Gobern, three Alexio B. Anthony News, City newspaper, Gon- New York Daily zales, Burgos, and Frank K. traveled on the behind the commode. newspaper, Inside the City same train from foil; New York to Greens- the officers found aluminum inside the boro, Gobern, Gonzales, North Carolina. aluminum ziploe plastic foil was a bag con- Burgos got and off the train at taining the AmTrak “crack” cocaine. finding After off, station in Burgos cocaine, Greensboro. was first Kaplan Officers and Blanks went followed Gobern, Gonzales and then Gobern. outside and Burgos, saw and Gon- They together platform. did not walk standing on the pay phone. zales near a There was Christmas-wrapped pack- door, Gobern carried a open a cab appeared with an it and that age knapsack. Gobern, and a blue Although Burgos, prepar- and Gonzales were package elaborately was not wrapped, ing arrested, it had to leave. Gobern was and Bur- no loose gos ends. and go Gonzales were asked to to the any Q: right. All he make statements Did police station all three At the station. police pack- long to how Mr. had this fingerprinted. Gobern and questioned men were age? DEA of the Agent Wayne Kowalski Special fingerprint- questioning package

conducted A: He said Mr. Gobern had the was evening Gobern end of the ing. At the throughout trip down. detained, re- Burgos and Gonzales were you anything Q: right. All And he tell did

leased. Burgos Mr. or Mr. about what Gonzales— Mr. told him what Mr. Gonzales or Gobern wrapping sent the Police The Greensboro package during what was in the about box, newspaper, and aluminum paper, cereal trip? train lab to a North Carolina foil Burgos told me was that he A: What Mr. sent the cocaine analysis. Agent Kowalski they dope although he knew that had the lab in Miami for plastic bag to a DEA it his understand- didn’t see it. And was prints were analysis. Three of Gobern’s told me —it was his is what he —this one of wrapping paper, and on the found going understanding they to sell the plastic bag. Burgos’s prints was found University. dope at the A & T the cocaine when not be determined It could placed in the bag or when Burgos ^[******] foil was not bag. The aluminum touched that Q: you Did him he knew ask whether for cocaine residue. tested package? in the there was crack cocaine it, they he knew had A: Yes. He said testified trial Kowalski Burgos’s Agent At actually see it. he didn’t January Burgos on questioned when he that question and are the closest That last answer (1) (Burgos) knew Burgos he said that testifying that Agent (2) that Kowalski came Gobern, not know but did Gonzales was inside said that crack train with Gon- Burgos “drove down on Yet, trip. Agent throughout (3) package York,” New and Gobern from zales only “yes” Kowalski’s answer throughout trip package had the “Gobern (Kowalski) asked question of whether he (4) down,” “had and Gonzales (Burgos) he knew that there (5) whether it,” and although Burgos did not see dope Agent Kowalski package. crack in the going “were to sell that Gobern Gonzales testified, mistakenly majority as the never University.” T dope at the A & (Bur- contends, that he admitted addition, the ma- Government inwas the Christ- gos) “knew cocaine base Agent Kowalski testified jority claim that possessed from the package that Gobern mas (1) he knew that crack Burgos said trip in York....” New commencement (2) wrapped package cocaine was said, based on Nor can it be Ante at 867. cocaine inside the had the crack that Gobern any testimony or other evi- Agent Kowalski’s New the time he left wrapped package from trial, bag plastic that the dence 12; & ante at 854-55 Govt. Br. York. package wrapped “since was inside the trial it is from the While evident 865-67. Id. trip York[.]” New inception of the transcript United States Assistant at 866. attempted to elicit such Attorney repeatedly Burgos that he was testified In his defense Kowalski, reading Agent a testimony from City attending college in New York currently Agent transcript Kowalski shows traveling to North Carolina that he was in fact so testified: never day spend a planned to to visit friends. He [Burgos] say whether he talked Q. Did Greensboro, destination but ultimate his they on while were Institute, and Gobern Gonzales he prep school Laurinburg train? had attended. York train New Burgos boarded the Yes, He rode with them. A. he did. He ticket line City. near the front one who While Mr. was the told me that Station, by An- approached he was at Penn package wrapped as a Christ- carried the Burgos thony knew Gonzales Gonzales. package. mas “Tone,” Lewis, neighborhood though from his as he Robert Burgos’s friend of last name. did not know Gonzales’s Because student at University, North Carolina A & T late, running Burgos Gonzales asked he was Burgos days testified that called him a few (Gonzales’s) tickets, get gave and he trip. before the train Burgos told Lewis that Burgos money piece paper the ticket and a although coming he was down to visit him in Greensboro, with the reservation numbers. The tickets purpose his main was to visit “Anthony Flores,” were the name of addition, and Laurinburg In Institute. Vernon name, knowing Burgos Johnson, Gonzales’s last dormitory Laurinburg director at thought nothing gave of it. He Gonzales the Burgos Institute testified that called him in tickets, train, by boarded the and sat down January (Burgos) 1993 and said that he seated, Gonzales, himself. After he was coming Go- Laurinburg down to play Institute to bern, young by. basketball, and two women came Gon- past. which he had done in the Burgos zales introduced Gobern. Gon- final witness was a character wit- zales, Gobern, ness, and the two women sat behind McDuffy, Frank the headmaster of Burgos on train. Laurinburg McDuffy Institute. testified that Burgos he and developed relationship had trip from New York to Greensboro son, like that Burgos between father and hours, approximately lasted twelve and Bur- truthful, opinion was in his and that gos brought had sandwiches and snacks to Laurinburg would visit when he was in North packed ziploc eat. He had bags. the food Carolina. Gonzales, He offered some of his food to Gobern, and the Eventually, women. evidence, Gon- jury Based convicted zales and Gobern ate some of the sandwiches. Burgos possess cocaine base they did not see what did with the with intent to distribute. The also con- ziploc bags they after ate the food. Accord- possession victed of cocaine base Burgos, ziploc bags were of the with intent to distribute. He was sentenced type same containing the one found imprisonment. to 131 months cocaine. B.

Burgos further testified that the conversa- tion on “general the train consisted of stuff: At many Gobern’s trial of the same facts music, girls.” Burgos also said that he ex- presented were also jury. For exam- changed telephone Gonzales, numbers with ple, was told that Gobern entered though exchange he did not numbers with building the AmTrak terminal walked Gobern. wrapped pack- men’s restroom with the

In testimony provided by age contrast to the knapsack; and the that Gobern came out Kowalski, Agent Burgos testified that knapsack there the restroom with the but with- was no drugs conversation about wrapped on the train out the package; and that after and that wrapped package restroom, he did not see the Gobern left Kaplan Officer until being ques- Gonzales and Gobern were stopped questioned addition, him. tioned police at the train testimony station. there was questioned that when Burgos explained that he called a cab after both Gobern they and Gonzales denied Officer Blanks told him in a hostile they manner knew each other or that traveling were Also, to leave the train station. together. He called the cab the two train tickets intro- himself, not for Gobern and Gonzales. duced at trial Gobern’s showed that both his arrived, Burgos When the cab open moved to sequential and Gonzales’s tickets or- door, der, stopped name, Officer Piner him and bore the same were issued on told him Burgos stepped January not to leave. After and had identical return dates of back platform, And, Kaplan January course, Officers 27. Gobern’s Blanks came out of presented the train station and was with showing evidence that arrested Gobern. the crack cocaine was found in the restroom.1 Although evidence alleged was also in- said that was involved in the trial, troduced at conspiracy, Gobem’s and the pitch Government the Government’s main to Go-

881 Miranda-Uriarte, (quoting trial United States presented at Gobern’s evidence The (9th 1345, Cir.1981)), F.2d 1349-50 cert. however, presented 649 not, to that identical 1085, 859, 474 106 S.Ct. 88 Agent U.S. trial trial. At Gobem’s (1986); Laugh L.Ed.2d 898 United States v. testify concerning state- did Kowalski (4th Cir.) man, 1067, (“Simply F.2d 1075 618 police station. by Burgos at the made ments proving the existence of a ... Thus, that jury was not told Gobern’s against cannot a verdict an individual (1) sustain (Burgos) he knew Gonzales that said showing (2) There must also be a Gobern, defendant. Burgos rode not know did knowledge conspira of the that defendant’s train with and Gobern down on the Gonzales cy’s purpose indicating action (3) and some his York, had the that Gobern from New (citations omitted), (4) down, participation.”) de throughout trip package nied, 925, 3018, 447 U.S. 100 S.Ct. 65 although dope Bur- had Gobern and Gonzales (1980); (5) 1117 see States v. it, L.Ed.2d United that Gobern gos did not see (4th Cir.) Brooks, 1138, (up dope at the A going to sell the Gonzales were holding drug conspiracy conviction when University. T& “ample establishing the there was evidence addition, testify at did not In participation of [the defendants] active did or Gonzales. trial and neither added), conspiracy”) (emphasis cert. de conspiracy to jury convicted Gobern of nied, 505 U.S. to distribute possess cocaine base with intent L.Ed.2d 917 See also United States co- to distribute possession with intent (7th Cir.1993) Campbell, 985 F.2d to 121 was sentenced caine base. Gobern (“To link, participatory establish that imprisonment. months evidence to Government must offer sufficient knew of demonstrate that the defendant II. join conspiracy and that he intended outset, agree I emphasize I At the design criminal associate himself with its majority’s conclusion that once with the Cloughessy, purpose.”); States v. established, the Govern conspiracy has been (9th Cir.1977) (To 190, 191 establish a F.2d only “slight connection” show a ment need connection, slight pro has to be “[e]vidence defendant and the established between the had [the defendant] duced to show addition, ante at 860-61 knowledge conspiracy and acted of the majority expressly state does not while of it. Mere casual association furtherance “slight con what it believes to constitute (cita enough.”) conspiring people is not nection,” majority agrees that I assume the omitted). tions “slight the Govern to establish a connection” said, however, I believe With that present substantial ment must majority concept of what has confused the knowingly and showing that the defendant princi- with the elements make conspiracy. Al wilfully participated in the whether suffi- ples by which we determine always completely though we have not been presented to estab- cient evidence has been standard, States v. faithful to this see United Thus, agree I cannot elements. lish those (4th Cir.), cert. de Truglio, 731 F.2d 1123 majority’s sweeping statement with the nied, 83 L.Ed.2d conspiracy jurisprudence” is collection “our (1984), this circuit and it is the law of “elastic, at 861. principles.” hoc Ante ad Chindawongse, 771 States v. others. United Cir.1985) (“The covert nature of doubt because of the No F.2d conspiracies, particular evidence ‘slight ... must be of a most of the connection’ may rely upon which the Government reasonably support a con quality which will and a defendant’s wilfully participat establish that the defendant clusion from case to often differs to further nection thereto plan unlawful with intent ed And, course, may the Government object purpose conspiracy.”) case. some crack cocaine. and Gonzales con- bem's was that Gobern together possess spired and distribute the

882 crime, prove agreement rely upon specific circumstantial evidence to a to commit a for agreement, a defendant’s conspiratorial purpose, part the same criminal knowledge conspiracy, of the a defen- conspirators. all indicted participation in dant’s it. Id. at 857. Co- (emphasis original); at Id. 237-38 see conspirators do not often advertise the fact Giunta, 758, United States v. 925 F.2d 764 endeavor, they illegal are involved in an (4th Cir.1991) (“[C]ircumstantial evidence and it is uncommon for them to memorialize proves nothing more than association agreement in a their written document. See persons, between two even if one has a fixed States, 770, Iannelli v. United U.S. intent known to the other to commit an un 10, 1284, 10, n. n. 95 S.Ct. 43 L.Ed.2d act, permit lawful is not sufficient to (1975) (“The agreement need be requisite agreement inference of the between explicit. shown to be It can instead be in- act.”) the two to act in concert to commit the ferred from the facts and circumstances of (citations omitted); Pupo, States ease.”) (citation omitted).2 (4th Cir.) (en banc) 1235, 841 F.2d Likewise, conspiracies because have “an (agreeing knowledge, acquies that “mere 858-59, quality,” elusive ante at and are often cence, approval enough or aof crime is not ill-conceived,” “loosely-knit, haphazard, or part establish that an individual is of a con id., conspiracy concept has an elastic spiracy drugs. to distribute Nor is mere Krulewitch, quality to it. at See 336 U.S. presence at the scene of a distribution of (Jackson, J., concurring) 69 S.Ct. at 719 drugs prove participation sufficient to in a (“This present case illustrates a drift (citations omitted), denied, conspiracy.”) cert. conspiracy federal law of which warrants 488 U.S. 102 L.Ed.2d 87 some further comment because it is charac- (1988). Laughman, See also elastic, long teristic evolution of that (“[T]he gist gravamen of the crime of offense.”). sprawling pervasive conspiracy agreement an is to effectuate a Yet, elasticity concept of the does not- act.”) (emphasis original; criminal citation principles by in turn soften the which we omitted). determine whether substantial evidence has hold, does, “elastic, majority To as the presented showing been that a crime has principles” govern ad addition, application hoc elasticity been committed. conspiracy the law of concept the facts of a case is does not reheve the Govern decisionmaking to condone without prove ment of its burden to clear each element of principles decisionmaking beyond particular- the crime that is reasonable doubt. Ac — cordingly, ly determining any for though conspiracy the law of ill-suited whether Indeed, application, flexible in crime has its it is not boundless. been committed. one Bell, present- United States v. need look no than further the cases Cir.1992), majori- 114 ed here to be certain that under the ty’s 126 L.Ed.2d 77 approach any As we fact that shows that indi- rightly (or recognized past, have together under simply viduals associated conspiracy: the black letter law acquainted) may be turned into evidence showing being person conspiracy than the existence of a and a [ M]ore bad with intent required participation to commit a crime is defendant’s therein. I will [before just examples point conviction can be A mention a few sustained]. (the govern infra): is not shown until rest are discussed detail (1) presented it, specific majority ment has evidence of sees course, agreement 2. Of participation conspiracy.” the fact that the need not stitute id. (i.e., tacit) explicit agreement may Again, be may be does at 860-61 n. 2. the Government agreement evidence, specif- prove not mean that the need not be its case based on circumstantial ic, (to majority incorrectly suggests. sufficient) as the See ante but that evidence must be such (mistakenly citing support juror at 860 beyond Iannelli as that a rational could believe a rea- proposition conspiratorial agreement specific agree- that the sonable doubt that there existed a And, specific). "misper- need not be specific I am not ment to commit crime and that the ceiv[ing] knowingly wilfully participated the difference between defendant activity commit the crime and the that can con-

883 “elastic, (2) short, Gonzales, principles” ad hoc Burgos, reliance with acquainted Gonzales, conspiracy from the same allows for convictions to be based and Gobern (3) Burgos and Gon- neighborhood, than a defendant’s associa- on no more “mere are all facts exchanged phone numbers alleged co-conspirators, zales rather tion” with con- Burgos participated showing that establishing than substantial evidence the ex- I believe at 869-70. While spiracy. See ante of a and a defendant’s istence say hard-pressed to that these one would be participation knowing and wilful therein. associa- anything more than mere facts show Moreover, majori- agree I with the cannot that, tion, at very association and a weak ty that our decisions either United States “elastic, princi- hoc majority’s ad under the v. are incor- Bur- v. Giunta or United States Bell are all facts that establish ples,” these guilt. rectly properly These decisions gos’s decided. principles conspir- applied stated and basic of rep say, analysis as that such Needless Yet, acy majority has now chosen law. practice” that Jus kind of “loose resents the because, according to overrule them against specifically warned tice Jackson (1) majority, “appli[es] the decision Giunta Krulewitch, practice that “constitutes vigilance’ ‘heightened [con- ... to reverse in our administration to fairness threat conviction,” 446, 859, spiracy] suggesting at 720 ante justice.” 69 S.Ct. 336 U.S. Bell, J., (Jackson, concurring). reviewing also 954 con- heightened “a standard for (2) convictions,” 859; courts should (recognizing that spiracy F.2d at 237 id. at the deci- apply Giunta) a con significant reluctance to have “a (along in Bell “cannot be sion whose most to individuals spiracy conviction squared conspiracy, law of id. at with” the wrong choosing the crime is heinous (3) 860; increasing “Bell can be read as Falcone, friends”); 109 F.2d v. United States required quantitative connection to tie J.) (“so (2d Cir.) (Hand, many prose 579, 581 conspiracy,” to a id. at 861. defendant sweep drag-net within cutors seek is, however, flatly wrong majority associat conspiracy all those who have been perceive the decisions and Bell Giunta the main any degree whatever with ed in law creating any conflict with the established opportunities of That there are offenders. And, fact, any perceived very is oppression in such a doctrine great ma- simply a manifestation conflict circumscribing only by plain, and it is misunderstanding law jority’s own about the comprehensive indictments scope of such all reviewing conspiracy and our role in avoided.”), aff'd, 311 U.S. they can be 204, spiracy convictions.3 205, 85 L.Ed. 128 61 S.Ct. Baker, (1993); 1991, v. 73 United States we have 126 L.Ed.2d was decided in 3. Since Giunta decisions, denied, (4th Cir.1993), published cert. 510 sixteen 985 F.2d 1248 cited the case in 682, 1040, today either criticized 126 L.Ed.2d 650 we have never once before U.S. 114 S.Ct. (4th (1994); questioned analysis Mabry, of law. its or statements F.2d 127 or States v. 953 United decisions, denied, 914, published Cir.1991), thirteen in sixteen S.Ct. Of those 504 U.S. 112 cert. upheld con 1951, (1992); We volved convictions. and we reversed 118 L.Ed.2d 555 decisions, decisions, see those thirteen victions in ten of of those see United convictions in three Heater, (4th Cir. Dozie, (4th Cir.1994); v. 63 F.3d 311 United States United 27 F.3d 95 States v. Johnson, 1995); 54 F.3d 1150 Cir.1993); States v. (4th United Winfield, F.2d 1076 v. 997 States -, denied, (4th Cir.), S.Ct. - U.S. 116 cert. Bell, supra. v. United States 266, (1995); v. United States 133 L.Ed.2d 188 1992, we have cited was decided in Since Bell Cir.1994); Harris, (4th United F.3d 1262 39 decisions, published like the case in ten Cir.1994), (4th Kennedy, 876 v. 32 F.3d States Giunta, today either never once before - we have 939, -, denied, 130 U.S. 115 S.Ct. cert. analysis questioned statements its Moore, criticized or 11, (1995); States v. L.Ed.2d 883 United decisions, eight published - those ten denied, of law. Of Cir.1993), (4th U.S. cert. F.3d 475 upheld We convictions. (1994); involved -, L.Ed.2d 486 114 S.Ct. 128 decisions, Cir.1993), eight see (4th in seven of those Banks, convictions F.3d 1044 States v. 10 United Lamarr, (4th denied, Cir. F.3d 964 v. 75 - U.S. -, United States 114 S.Ct. cert. 128 L.Ed.2d (4th 1996); Morsley, Mills, 64 F.3d 907 States v. (1994); United v. United States - -, denied, Cir.1995), denied, U.S. 116 S.Ct. cert. (4th Cir.), 510 U.S. cert. 995 F.2d 904, (1996); (1993); United States L.Ed.2d 697 126 L.Ed.2d 233 Heater, Capers, Chambers, (4th supra; States v. United States Johnson, Cir.1995); United States v. Cir.), Giunta, apply involving alleged drug appropriate an state and the standard of a case sufficiency reviewed the entire trial rec- conspiracy, governs we review that of the evi- “shadowy one” And, course, found that it was a challenges ord and appeal. dence of conduct, there was little evidence of and that only that standard demands that we not independent of conversations between inves- draw all in favor of reasonable inferences the alleged conspirators, tigative agents and the Government, but that we also look to the requisite agreement pointing the criminal to record, including evidentiary entire both the conspiracy demands. 925 the law of strengths and of weaknesses the Govern- expressed concern that F.2d at 765. We case, ment’s to determine whether the con- circumstance, danger guilt of “[i]n victions could be sustained. As we stated speculation from being found on the basis of quite clearly comprehensively: criminally disposed between mere association suggest do not of course [ W]e behavior, people, criminal and like related judiciary may any under circumstances is acute.” Id. We then cited considerations properly conspiracy prosecutions view in opinion Krulewitch and Justice Jackson’s disfavor, general judi with nor skew the Goldberg’s opinion Judge in United States appellate cial function at trial level Caro, Cir.1978), saying Conspiracy to reflect that disfavor. is a that: crime no less than are “substantive” of Judge Goldberg In the decade since fenses; Virginia the Jackson v. standard Caro, in conspiracy wrote has of course applies equally assessing proof to of both. “potent weapon continued a in oft-used sufficiency Our assessment of the arsenal,” prosecutorial particularly in evidence to convict of here drug trafficking prose- connection with the proceed must therefore of course as it increasingly cutions that dominate federal respect any would of substantive of criminal dockets. And Justice Jackson’s special, fense. There is no more strin special concerns about the risks of unfair- gent standard in What is conspiracy prosecutions general ness however, appropriate, recognition, is the simply magnified drug have been carrying forward Justice Jackson’s in spiracy prosecutions as understandable Krulewitch, very “elasticity” of outrage charged and frustration have may concept frequent drugs” presently underway “war on ly produce “slippery” does tend to more policy. avowed national proof facts in prosecutions than do Giunta, at offenses, less “elastic” substantive with a believes, Contrary majority to what the see corresponding greater danger specu 858-59, “pronouncements” only at ante these may required lation rather than reason is, recognized guard the obvious. That necessary leaps to make the of inferences against danger convicting a of defendant guilt. Heightened vigilance to find speculation based on rather than fact —a dan- guard against spec the increased risks of ger especially acute when is ulation, though heightened not a stan charged must take care to ensure that —we dard, conspiracy prose is warranted in presented jury. sufficient evidence is cutions. majority is now bothered that Giunta Our assessment of the evidence here “heightened vigilance” we chose the words exactly degree “slipperiness” reveals of suggesting make this clear. But far from proof of factual that Justice Jackson feared appropriate apply heightened that it is “a general phenomenon Judge as a and that reviewing conspiracy standard for convic- tions,” Goldberg present in just opposite. found Caro. Our con- id. we did stating light judgment After facts in clusion —a raw call at most odds Government, favorable we went on to the district court —is that because control,” Mills, grown supra; supra; out ante neither Giun- United States v. Chambers, supra; we reversed States v. growth. ta or Bell have been used to curb its one, Winfield, supra. see United States v. (as majority suggests) If I believe that "conspiracy is a Frankenstein's monster that has crime, guilty individuals in various re- are some the sell- cumulative weakness of its only here could lead spects, possession the evidence er for with intent to distribute by unacceptable pro- finding guilt distribution, an simple and the user for than speculation rather Neither, however, cess of raw possession. guilty beyond inferring guilt process of reasoned conspiracy because there is no evidence a reasonable doubt. showing they specifically agreed to com- one ultimate assessment is

Because our Nor, matter, anymit crime. for that is there weakness of the evidence of cumulative any knowing partic- evidence of and wilful analyze it in respects, we terms various ipation conspiracy.5 in a precede specific We the those weaknesses. addition, In our decision in Bell does not proper the observation that analysis with quantitative the re- “increas[e] connection has been our earlier account of facts quired conspiracy.” to tie a defendant to a light in considerable detail and set out ante at 861. In Bell we held that the appropriate evidence assessment conspiracy defendants’ to be convictions had standard, precisely serve as a frame- reversed because the Government failed to analysis. say, That is to work for present showing sufficient that evidence essentially as recited are those devel- facts specific agreement a there existed to commit oped by the evidence considered in (“The specific a 954 F.2d at crime. government. light to the most favorable general support far too a con- evidence is added; Giunta, (emphasis 925 F.2d at 766 any a viction for concerted action incident to omitted).4 footnote Therefore, specific conspiracy.”). other than Bell, nothing there is remarkable As for saying enough, that “mere association” is not requiring about the Government to show id. at we had no occasion to discuss what specific agreement to commit existence of “a “quantitative connection” the Government conspiracy a convic- specific a crime” before existing conspiracy must show between an tion can be obtained. See 954 F.2d 237-38 and a defendant before the defendant’s con- original). Suppose, for in- (emphasis in spiracy conviction can be obtained. stance, agents law enforcement discover that sum, a defendant’s connection with an being a drugs are stored and sold at certain existing conspiracy is not established unless location, location, go to that and find that one showing is that there substantial selling drugs and indi- individual is another is, course, voluntarily part in the defendant took some using drugs. is There no vidual affirmatively him Both action that links with the conspiracy shown from these facts. Giunta, presented jury a presented could infer that 4. As in the cases here ulti- Gonzales, mately judgment spiracy come down to "a raw call" existed between Gobem and sufficiency knowledge conspira- evi- Burgos about the of the Government's and that had against Burgos explain and Gobem. As I reasonably dence cy, jury infer but that a could not requires Burgos’s infra, I believe that "call" Burgos’s participation in the Gobem/Gonzales conviction be reversed and that Gobem's be af- (asserting Burgos’s conspiracy. Compare id. majority evidently Surprisingly, firmed. be- argument “counsel conceded at oral presented lieves that once the facts are and the irrational”). guilty verdict was not applied, properly is stated and the ultimate law sufficient evidence has been decision of whether Morsley, States v. 5. Our decision in United presented judgment to the is not a call. See - denied, (4th Cir.1995), U.S. F.3d cert. Yet, deciding at 858-59 & 861-62 n. 4. if ante (1996), -, is 116 S.Ct. 133 L.Ed.2d 697 presented whether sufficient evidence has been case, contrary. existed In that there not call, judgment is not a then I am not buy unreg an and sell established what is. sure Id. istered firearms for both cocaine and cash. question there was no that a at 919. Because Moreover, call, judgment malting I have among conspiratorial agreement indi existed not, believes, "disingenuously majority as the firearms, selling we ana the unlicensed viduals purposes attempted] to ascribe innocuous lyzed whether the defen the case to determine surreptitious conduct.” Ante at 870. Rather wilfully knowingly participated in that and dants being disingenuous, my analysis is based on than (assert Compare at 860-61 Id. ante existing circuit and the evidence law in this Morsley holds that "there need not separate Burgos presented at the trials of specific agreement in order point evidence of counsel made a similar Gobem. conviction”). argument, explaining that based on the sustain at oral bought showing knowingly deny that he two train tickets on conspiracy and he behalf, joined conspiracy. E.g. near wilfully Gonzales’ he sat Gobern trip, Chindawongse, throughout Gonzales or that he United States (4th Cir.1985), during talked Gonzales What, course, trip. Burgos deny does 88 L.Ed.2d participated that he hold otherwise allows the Government to To Gobern/Gonzales conspiracy, any punish person upon that has denied such convict and based ques- conspirators. participation from the he was person’s mere association with moment Thus, by Agent never the law. tioned Kowalski. the Gov- That has been prove beyond a ernment had to reasonable apply long- I will now these basic and wilfully joined partici- doubt that conspiracy principles to the facts established pated in the Gobern/Gonzales separate presented trials of further, promote, with the intent to and ac- and Gobern. complish purpose. its criminal trial, however, At the Government offered A. admission, testimony, co-conspirator no or Burgos’s present- trial At the Government showing Burgos wilfully declaration that jury showing ed substantial evidence to the joined participated in the Gobern/Gon- Burgos that associated with Gobern conspiracy. zales The Government offered clear, however, I think it that Gonzales. the Burgos possessed no evidence that tools of present failed to substantial evi- Government drug (e.g., unexplained the trade firearms or Burgos knowingly wilfully that dence cash). The Government offered no evidence in participated drug Gobern/Gonzales drugs Burgos’s posses- that were found spiracy possess crack to cocaine with intent sion. The Government offered no evidence to distribute. Burgos that used an alias. The Government light most favorable the Viewed Burgos no offered evidence that was sched- Government, Burgos’s the evidence at trial uled to travel back to New York on the same established the existence of a be- train as Gobern and Gonzales. The Govern- impor- tween Gobern and Gonzales. Most Burgos ment offered no evidence that made tantly, testimony Agent Kowalski’s about to travel reservations with Gobern and Gon- Burgos’s alleged that admissions shows Go- zales. And the Government offered no evi- together bern and Gonzales traveled prior that Burgos dence knew Gobern City New York with the intent to distribute trip. time of the train Greensboro, crack cocaine in North .Car- only by There are thus two facts offered olina.6 Burgos partici- to show that Government Agent testimony pated conspiracy. Kowalski’s further shows a Gobern/Gonzales (as First, Burgos’s) Burgos Burgos’s fingerprint does that associated was discovered on during trip plastic bag with Gobern and Gonzales that contained the crack co- Indeed, caine, second, Gobern, City. Burgos Burgos, from New York does and Gon- does, Nevertheless, Agent point testimony Burgos 6. Kowalski’s on this at the time made his al- however, Kowalski, question explored leged Agent police raise a not admissions to If, Burgos’s questioned by Agent way knowing Burgos at trial. when had no would later arrest, night Burgos deny making Kowalski on the of Gobem’s the statements or that he would and, therefore, implicate unlikely did in fact Gobern Gonzales later be indicted be possess testify and distribute crack co- at a trial of Gobern or Gonzales. I want caine, why by my question then was released to make clear that central here is Gonzales Indeed, not, believes, police? day majority why to this Gonzales has never as the Gonzales was Burgos prosecuted, been indicted on the crimes for which never see ante at 866 n. but rather course, charged. Burgos’s why police it Of is Gonzales was released were, alleged Agent alleged right admissions to Kowalski after made his admissions. Also, among things, point suggest other not in furtherance of the I raise this not to that the and, thus, alleged conspiracy likely police improperly any would not handled these cases (which may way, merely suggest Agent admissible at a trial of Gonzales also Kowalski’s explain why Agent testify testimony Kowalski did not as to at trial does raise some in- trial). Burgos’s alleged explained. have never been admissions Gobern’s consistencies which Moreover, January if I traveling “together” on the restroom. even were to zales were majority’s attempt disagree majority Despite point, with the on this 1993. guilt, certainly fibers into a cloak of could weave these two infer that one or two (separately Where, however, facts see ante these minutes is too little time. I together) provide disagree majority not substantial evidence do with the on do is its con- wilfully partici- Burgos knowingly and tention that the evidence and in- reasonable pated in a ferences show that must have assist- Gobera/Gonzáles packaging

ed in the of the crack cocaine prior boarding the train in York. A New juror disagree rational would on this too. says fingerprint is The Government Burgos participated probative evidence It is axiomatic that when a defendant chal- could ra- because lenges sufficiency his conviction on im- tionally fingerprint infer grounds, we must take the facts in pressed baggie when it contained on Government, light most favorable to the Although the crack cocaine. Government’s and we must further draw all reasonable expert acknowledged he did inferences in favor of the Government. That bag when know whether touched the not, however, standard of review a license crack,7 argues it contained the Government pile to state an inference as fact and to one that the inference nevertheless can be drawn. top until inference another the conclu- sion is far reached removed from the actual majority agrees with the Government The presented. majori- facts But that is what the points out that did not have Gobern ty has done here. time to transfer the crack cocaine sufficient during plastic bag to the his one or two particular, dispute jury I do not that the in Ante minutes the train station restroom. Burgos bag could infer that touched the majority points at 865-66. The also to the when it contained cocaine there was evi- if testimony Agent Kowalski and contends in wrapped dence that the cocaine was the “a could infer from the that reasonable package throughout trip the entire from New Burgos packaging that assist in the facts did is, however, York. There no such evidence. boarding in cocaine base before the train Agent Burgos While Kowalski testified that And, particular, in New York.” Id. at 865. possessed package said that Gobern the majority Agent that the believes because York, throughout trip the down from New Burgos Kowalski testified that had knowl- Burgos Agent Kowalski never testified that edge wrap- of the and did not see plastic bag containing the co- said that the train, ping a rational materials board wrapped package caine was inside the juror Burgos could infer that touched the may throughout trip. the entire Gobern plastic bag it crack that while contained "wrapped package way all have carried a packaging he assisted in the before the men may from New York. He also have carried train in boarded the New York. Id. 865- way the crack all the from New York. Still asks, rhetorically majority The then 66. no that carried the there is Gobern Burgos’s fingerprint “How else could be plastic bag wrapped package inside the wrapped package on an item inside a found inception trip from “since the of the New inception wrapped that was since the Accordingly, there is no evidence to York[.]” trip (emphasis from New York?” Id. at 866 majority’s support the assertion original). packaging of the cocaine. Go- assisted hours, Obviously, majority train twelve so he agree I with the bern was on the just implausible put one or two minutes to extent it is to think did not have half a plastic plastic bag, in the he had put the cocaine base the cocaine Gobern day. bag during spent the one or two minutes he States, fingerprint impressed Compare Stoppelli at a time when the v. United substance), 391, 393, Cir.) (defendant's finger- envelope powdery contained a 394 n. 4 heroin; print envelope containing 95 L.Ed. 631 was found on expert opinion testified that in his defendant's Nonetheless, juror

Indeed, still Burgos testified that could a reasonable the fact that (and any beyond with which not see materials infer believe it true a reasonable he did rewrap package doubt) wrap or could Gobern must have assisted train not mean that Gobern aboard the does boarding packaging prior the cocaine wrap open package or and close the did not the train in New York? I think not. Because day during spent the half he on the train. testimony Agent Kowalski there was no from presents Any child that has ever looked else) (or anyone cocaine was in the that the a Christmas tree before Christmas under wrapped package throughout trip the entire morning packages opened can knows that York, from New there is no evidence that scissors, wrap- and closed without the aid put empty the cocaine into an Gobern did Here, tape. there are ping paper, or several plastic bag bearing Burgos’s fingerprint dur- why may reasons have han- different twelve hour train ride from New packaged repackaged the crack dled Indeed, juror all a rational could York. during trip the train from New York. cocaine pre- know and infer based on the evidence majority wrong says it is also when plastic baggie sented here is that: placed wrapped package inside at some accept Burgos’s To rendition the testi- got unknown time before Gobern off the mony, would have had to find that train. plastic bag, Gobern saved the entered the Furthermore, suppose wrong that I am lavatory, open package tore the Christmas juror reasonably and that a rational could box, unwrapped newspa- and the cereal infer that did fact touch or hold per and aluminum foil from the cocaine bag point Gobern’s crack-filled at some be- base, placed plastic the cocaine base (or during men train fore the boarded the bag leaving fingerprint, without itself).8 foil, juror wrapped plastic bag trip jump train How does a aluminum newspa- swaddled the aluminum foil in the conclusion per, joined Burgos wilfully participated secreted the cocaine base behind the commode. with intent Gobern/Gonzales accomplish pur- to further and its criminal simply Ante at 867. This is not true. Once pose? Although juror speculate a could that again, Agent Kowalski never testified that simply one who touched another’s container (Burgos) Burgos said that he knew cocaine drugs join had the intent to in and associ- package base was the Christmas that Go- possess ate himself with an endeavor to possessed bern from the commencement of ultimately drugs, distribute those I do not Therefore, trip although in New York. qualify think this as a would rational infer- juror Agent would be free to believe Kowal- “Unquestionably print ence. raises testimony Burgos’s ski’s and disbelieve testi- (which suspicion. suspicion, strong But a even a mony entirety I its assume that one, States, did), jurors juror enough.” is not Hiet v. Burgos’s United rational would (D.C.Cir.1966). 365 F.2d I therefore plastic still no basis to conclude that have think it baggie Burgos’s fingerprint with on it was clear conviction cannot placed wrapped package prior fingerprint in the to the be sustained based on the evi- time that the men left New York. dence.9 determinative) Again, expert fingerprint upon parties rely 8. the Government’s tes which both long Burgos's finger that, tified he had no idea how say in their briefs. I read those cases to if print bag. was on the See United States v. Town fingerprint impressed readily was on a mova- (8th Cir.1991) ("There ley, object, ble and if the Government failed to show fingerprints is no evidence when or where the print impressed only that the could have been tape wrapping [on cocaine] a bar of were made. during charged, the commission of the crime police fingerprint expert finger The prints testified that point then the Government must to additional time’; long possible' 'can last for a '[i]t's (beyond fingerprint) substantive "). long year.’ ‘evenas sustain the conviction. See United States Anderson, (4th Cir.1979) 508-09 My analysis

9. here is consistent with our circuit's (i.e., (reconciling following fingerprint cases: United States v. sufficiency cases of the evidence Harris, (4th Cir.1976); fingerprint alleged cases where evidence was 530 F.2d 576 Indeed, evidence that Burgos traveled on Gonzales, the same train with Gobern and course, question, of remains whether going Burgos while far to show that associat- other evidence the Government’s somehow Gonzales, ed with Gobern and does little to gap bridges the between the Burgos knowingly wilfully show that par- Burgos’s alleged participate intent to ticipated in drug conspir- Gobern/Gonzales Viewed Gobem/Gonzales Bell, (“More acy. See 954 F.2d at 237 than Government, light most favorable to the people mere association with bad who are following: Bur- other evidence showed the committing required conspira- crimes is for a Gonzales, gos, and Gobern were all from conviction.”). cy Giunta, See also 925 F.2d at York; Burgos acquainted New with (“[Cjircumstantial proves evidence that ride; prior Gonzales New York to the train nothing more than association between two Burgos sat near Gobern and Gonzales persons, even if one has a fixed intent known ride; Burgos exchanged train and Gonzales act, to the other to commit an unlawful is not numbers; telephone Burgos they was told permit sufficient to the inference req- drugs; got had the three men off the train agreement uisite between the two to act in other; after the men act.”) (citations one the three concert to commit the omit- ted). getting together seen into a cab when the

police arrested Gobern.10 Nevertheless, to buttress its conclusion Burgos participated in a Gobern/Gon- said, being single That anot witness testi- conspiracy, majority zales attempts fied that had ever met Gobern before distill a number of discrete facts and infer- Also, train ride. while said he single Burgos, ences from the fact that Go- York, acquainted with Gonzales New bern, and Gonzales traveled on the same presented scope no evidence was example, majority evidently train. For relationship, their save for the fact that Bur- persons traveling believes from “source gos exchanged telephone and Gonzales num- cities,” City, such as New York are more bers while on the train —a fact that shows likely and, drug conspirators; to be accord- hardly any relationship had majority, traveling from such a Gonzales, conspiratorial much less a one. city guilt. is affirmative evidence of Ante at I might agree traveling 868-69. While Likewise, presented the Government no city” bearing from a “source is a fact that has witnesses from New York or the train ride. on whether law enforcement officials have a presented The Government no evidence to suspicion” drugs being “reasonable are Burgos planned show that had to travel to smuggled, I fail to see how our Fourth Greensboro with Gobern and Gonzales. jurisprudence Amendment bears on the Burgos pre- There was no evidence that had question of whether sufficient evidence was viously engaged any drug activity in with (or presented showing Burgos anyone that And, anyone Gobern and or Gonzales else. traveling City) knowing- else from New York above, Burgos as stated was not found to be ly wilfully participated drug conspir- and in a possession any drugs, any any in weapon, acy. cash, large any amount of or other items that might drugs Similarly, Burgos an picked up indicate involvement with that Gobern’s tickets, Burgos the other two men. and train Gonzales’s Fossen, (4th Cir.1972); Piner, men). eye According States v. Van 460 F.2d 38 an on three (4th Bryant, however, United States 454 F.2d 248 Cir. Kaplan when and Blanks came out of Corso, 1972); (4th United States v. 439 F.2d 956 crack, the bathroom with the and Go- Gonzales 1971)). Cir. standing pay bern were near a on sidewalk phone, point at which Gobern was arrested. testimony Officer Blanks’s about the cab was 10. open (Burgos testified that he went to the door of testimony inconsistent with Officer Piner's later stepped the cab but back to the curb when Piner (Officer cab). Kaplan nothing said about a course, leave.) told him he could not Of Kaplan Blanks said that when he and of the bathroom with the came out could have believed Officer and Blanks disbe- cocaine, Burgos, Gon- zales, Burgos. lieved Officer Piner and getting togeth- and Gobern were into a cab (notwithstanding keep er that Piner was asked to Gonzales, the defendant touched Gonzales, Burgos, and not shown knew drags). while it contained the neighborhood in container the same were Gobem York, Burgos and Gobern ex- New Ninth Circuit’s decision numbers, telephone and that changed F.2d 546 Vasquez-Chan, States leaving the train station appeared to be three case, Cir.1992), DEA point. In that is on together all “facts” that are in a cab ring Agents drag infiltrated a and identified Burgos’s guilt. help prove majority believes par- suspected of persons several who were Yet, facts that these are Ante at 869-70. Eventually, drag trafficking. ticipating in (or separately) are inno- together taken when kilograms DEA seized over six hundred little, They if provide on their face. cent in a house which the of cocaine found participated in a any, Burgos temporarily residing. One defendants were drug conspiracy. defendant, housekeeper, Vasquez, was the defendant, Gaxiola, awas and the other Gobern, addition, Burgos, and while In had been houseguest. Neither defendant train from New were on the same Gonzales having co-conspirators mentioned City, showing that there is no evidence York However, participated drag ring. trip Burgos the same return scheduled agents house when the DEA arrived Gonzales, lied Gobem present. Id. at 549. both defendants Agent Kowalski when he said he was Gaxiola, Burgos, Gonzales, Vasquez Both like traveling or that with Gobern agreed speak with the law enforcement seated near Gobem and remained Vasquez admitted that she had re- officials. co-conspira- they were his Gonzales because sided in the house for three months. She Also, n. tors. See ante at 868-69 & said that she worked as a caretaker for possessed and Gonzales se- while Gobem paid man Peralta and was between named tickets, train both in the quentially numbered every days; money fifteen $300 $800 Flores,” “Anthony Burgos’s ticket name According by messenger. arrived to Vas- evidently name and not in his own residence, quez, she did not lease or rent the sequential order with the tickets of Gobern utility although agents found a bill her Indeed, even when taken Gonzales. Vasquez and the name of Peralta. also name Government, light most favorable to the told the officers that the cocaine had been undercut, support, rather than these facts days by messengers three delivered about partici- majority’s conclusion that earlier, although could not describe them she Giunta, pated drug conspiracy. in a addition, Vasquez possessed police. evidence, (considering presented F.2d passport. a false Id. Government, by the that had the effect of undercutting supporting than rather the Gov- Gaxiola, agents that she As for she told the deciding that insuffi- ernment’s ease when Vasquez’s roommate Mexico and had been drag presented cient evidence was visit- that she and her infant child had been spiracy charge). ing Vasquez staying at the house for a majority The vast of the cocaine few weeks. Could then the association evidence and was found in the bedroom where Gaxiola and evidence, together, taken lead slept. finger- her child Twelve of Gaxiola’s juror beyond rationally to conclude a rea- prints the containers in which were found on wilfully Burgos participat- sonable doubt finger- the cocaine was stored. While no in, accomplish ed and intended to further and plastic bags inside prints were found on the of, purpose conspir- the Gobem/Gonzales containers, finger- one of Gaxiola’s acy? Again, I think not. If the fact that a on the inside surface of the prints was found merely drag defendant associates with a housing a container the cocaine. cover for conspiracy, I prove dealer is insufficient to Id. suddenly pro- doubt the evidence would be pelled sufficiency by Vasquez Both and Gaxiola were indicted into the realm of by jury at one time and convicted additional fact the defendant distribute, pos- possess cocaine with intent to touched the container that stored the dealer’s session, aiding abetting. appeal On drags (especially when the has Government words, we, they guilt. claimed that the evidence was insuffi- of In other can as the done, majority 865-66, all counts. The Ninth has cient on Circuit re- see ante at 867- fill in factual gaps versed the convictions. On the in the Govern- proof by negative ment’s charge, grounded the court held: inference assumption on jury that the disbelieved government While submitted more Agent and believed Kowalski’s ac- enough than evidence that narcotics con- count of what said to him about spiracy among existed several defendants Specifically, Gobern and Gonzales? if the Vasquez, other that Gaxiola and the evi- correct, majority Burgos’s participation in dence does not establish that the defen- by can be established de- agreed knowingly dants here to or assisted arising meanor evidence deni- Vasquez’s Gaxiola’s and al Agent that he told Kowalski that Gobern actions are consistent with those of an drug and Gonzales were in involved traffick- housekeeper houseguest innocent who ing. ongoing have no involvement in the narcot- ics transaction.... Although this squarely circuit has not ad dressed the issue of what per inferences are (emphasis original). Id. disbelief, (before missible from we have to fingerprint against As for the day) indicated that the Government cannot Gaxiola, the court said: prove by negative its case inferences based closed, opened, The canisters —some some on demeanor evidence. See United States empty, some some filled with cocaine— Fountain, Cir.1993) bedroom; were located in her it is reason- (“while may [the defendant’s] evidence able to assume that touched them at she disbelieved, which, it nothing contained time, including some on one occasion the disbelief, through posi could be converted canister, passed inside lid of a as she proof marijuana by tive of distribution of space and out of the room or made in the him”). I would opportunity take this small bedroom so that she and her infant adopt longstanding view that demeanor place child could have a comfortable (ie., evidence inferred from the as sleep. presented The evidence at Gaxiola’s sumption that the disbelieved the defen any trial did establish reason to believe testimony) appel dant’s does not allow us explanation that an innocent of that evi- evidentiary late fill gaps review to any likely dence was than less the incrimi- Dyer Government’s case. See v. MacDou nating explanation by gov- advanced (2d Cir.1952) J.). (Hand, gall, 201 F.2d 265 .... ernment Even when the Wellborn, III, generally Guy Olin De evidence is combined with other evi- meanor, 76 Cornell L.Rev. 1101-02 Gaxiola, against legally dence it is insuffi- (1991) (“Hundreds say of eases ... [m]ere cient to establish the mind of a reason- testimony proof disbelief of is not of facts of doubt, juror, beyond able a reasonable opposite tendency.”). an nature or possessed she the cocaine located When, here, there is a conviction and staying. house which she was credibility made determinations Id, (emphasis original). 551-52 testimony based on the defendant’s and con- say, presented Needless to the evidence Government, flicting testimony from the (and against damning is no more only guilt may affirmative evidence of we so) actually pre- far less than the evidence appellate assume on review is attributable to against Vasquez sented and Gaxiola. testimony offered the Government. is, course, nothing There remarkable 3. about this standard. It is black letter law question jury There remains whether in that the we must assume that the credited evidence, reviewing sufficiency the of on the evidence the Government’s and we must ac- review, by appellate assuming cept purposes can we affirm such evidence as true for of jury apparent deciding guilt that the converted its disbelief whether sufficient evidence of Burgos’s testimony positive presented trial. of into evidence was thinking gave it rational however, wrong in clear, may not that we I think it verdict; yet, that evi- did, since support to a If then than this. we more assume impossi- it will be disappeared, has meaning- dence be rendered review would

appellate say he appellate court to which for an (except specu- ble is no basis there less because Thus, the final he would become lation) was. evidence the what additional to decide the of in all cases where credibility arbiter light its deter- of jury inferred might be de- presented court Indeed, witnesses that the Govern- to hold minations. terminative. with additional credited ment can be affir- negative on guilt based of mative evidence Zeig v. F.2d at 269. See United States against made the credibility (D.C.Cir.1993) (“There determinations ler, 994 F.2d of relieve the Government would defendant deciding way of when the principled no is its case. It would proving of the burden enough to sus proof, less than government’s by Judge discussed problem raise the conviction, enough to is nevertheless tain the MacDougall, 201 Dyer v. Hand in Learned from the adding negative inferences allow (2d Cir.1952), and allow the Govern- F.2d 265 testimony gaps.”); fill to the defendant’s by having us assume prove to its case ment Sliker, n. States v. United whether “there is sub- which is at issue: Cir.1984) (2d (“Although ais [demeanor] evidence, taking the view most favor- stantial consider, jury for the legitimate factor Government, support [the able to the remedy deficiency in the Govern could not States, jury’s Glasser verdict].” existed.”), if proof one ment’s 457, 469, 86 L.Ed. 62 S.Ct. 315 U.S. 84 L.Ed.2d 832 (1942). slander, for libel and Dyer, Accordingly, Burgos’s jury In an action was free to be- proposed testimony to call the defendants Bur- plaintiff Agent Kowalski’s as to lieve stand, deny uttering admissions, accept have them gos’s alleged to the and we must slander, jury rely upon everything to disbe- jury and then to be true that the believed witnesses, Likewise, proving plain- thus Agent lieve Kowalski said. rejected argu- Judge making Hand tiffs case. denied the state- extent Kowalski, evidence would Agent accept that such “demeanor” must ment we ments plaintiffs Yet, ease. prove jury Burgos. be sufficient where that the disbelieved explained that while a witness’s Judge testimony Agent Hand not in of Kowalski is part testimony of the evidence” and Burgos, demeanor “is such as conflict with the “may they should” take jury and indeed question critical of whether on the consideration, party to to allow one conspiracy, it into participated a Gobern/Gonzales negative on inferences prove gaps its case based to fill in the we are still free meaningless: appellate review proof by considering would render Government’s alleged part that he of that He, the “demean- denial who has seen and heard guilt.11 evidence, evidence of may right as affirmative have been or” group Burgos) of three. At the Agent was in the second was not on the train with Kowalski Gobem, Gonzales; thus, trial, Agent Burgos, flatly arrest and at he denied time of his any provide not and did not Kowalski could knowing any who had of the three individuals alleged independent Burgos's admis- clearly previously arrested —a fact that was been this, transpired. light In sions as to what light prior of the customs officer's obser- lie majority's Circuit's deci- reliance on the Eleventh finger- vations. 881 F.2d at 1554. Ledezma's Hastamorir, sion in United States packages wrapping prints were also found (11th Cir.1989), misplaced. ante at kilograms trial two of cocaine. Id. at 1555. At Hastamorir, ob- customs officers 864-65. possess Ledezma was convicted conversing suspected drug traffickers served six appeal with intent to distribute. On cocaine restaurant. Three of the individuals at mall ground Eleventh Circuit affirmed parking the mall lot then left the restaurant for testimony false that he was not "Ledezma's thirty kilograms exchange proceeded to reasonably entitled the [the restaurant] then arrested. These individuals were cocaine. participated infer that he was aware of arrests, the three other individu- Unaware of the is, activity at the mall.” Id. That left, criminal for the mall at the restaurant then also als guilt affirmative evidence of could infer they parking where too were arrested. De- lot (whom testimony perjured majority shown to be likens to based on Ledezma fendant

893 sufficiency light most Finally, making deter- Viewed favorable to the mination, Government, given any credit I have not the evidence here was insuffi- I explanations. juror Nor have Burgos’s innocent cient for a rational to conclude to a disprove certitude,” Jackson, all in- required the Government to “near 443 at U.S. hypotheses. 2786-87, The law is clear that nocent Burgos wilfully partici- that S.Ct. every need not exclude rea- the Government pated in conspiracy. the Gobern/Gonzales inno- hypothesis consistent with sonable Consequently, the evidence was insufficient States, v. 348 U.S. cence. Holland United Burgos’s as a matter of law to sustain 139-40, 127, 137-38, 75 S.Ct. 99 L.Ed. spiracy conviction. (1954) (rejecting the view that where relies on circumstantial evi- the Government B. dence, every it must “exclude reasonable guilt”); hypothesis other than that of see far, From what I have said thus it would 307, 326, Virginia, Jackson v. U.S. appear evident that Gobern’s con (ha- (1979) 2781, 2792, 61 L.Ed.2d 560 Indeed, viction must be sustained. at Bur- confirming that beas case Government trial, testimony gos’s Agent Kowalski duty every has no “affirmative to rule out Burgos’s alleged provided as to admissions except guilt beyond that of a hypothesis sufficient evidence to establish the existence doubt”). question “The is not reasonable of a At Go- Gobern/Gonzales possibili- whether the evidence forecloses all however, trial, Agent bern’s Kowalski did not court, ty mind of the but of doubt testify Burgos’s alleged as to admissions. evidence, merely whether construed Therefore, trial, unlike at the Gov favorably prosecution, for the is such most only present ernment not had to evidence jury might guilty find the defendant knowingly wilfully partici Gobem beyond Crawley doubt.” v. reasonable pated possess a conspiracy crack co (4th States, 811-12 United (i.e., caine with intent to distribute evidence Cir.1959). “slight of a connection” to an established What we have here is a case where the conspiracy), but the Government also had to inference, urges upon Government inference present evidence to the substantial supported by not rational all of which are or showing conspiratorial the existence of Supreme advised the record. Court agreement possess crack cocaine with in long ago “charges are not See, Bell, e.g., tent to distribute. 954 F.2d at by piling upon to be made out inference 764; 237-38; Giunta, Laugh F.2d at inference,” States, Direct Sales Co. United man, 618 F.2d at 1074. 703, 711, 319 U.S. 63 S.Ct. (1943), majority directly analysis never L.Ed. 1674 we too have warned its that, although jury may conspirato- acknowledges Agent the fact that Kowalski infer relationship, analysis testify Burgos’s alleged rial admis- “[s]uch inferential did not boundless,” Bell, Nor, matter, is not 954 F.2d at 236. sions at Gobem’s trial. eyewitness contrary, negative direct evidence to the not rived from demeanor evidence and negative credibility demeanor de- credibility against Burgos. made determinations against terminations made the defendant. review, appellate they On are insufficient to fill case, present majority great In the makes gaps Wright Government's case. Cf. (like attempts to show that defendant West, 277, 296, 2482, 2492, Hastamorir) parts Ledezma in fabricated of his (1992) (cited by majority, 120 L.Ed.2d 225 testimony at trial. See ante at 865-66. Howev- 867-69) (jury may perjured ante at consider testi- er, Burgos’s alleged fabrications are based on the mony guilt); as affirmative evidence of Agent inference that the credited Kowalski's Bennett, States v. admissions, testimony Burgos's alleged as to Cir.1988) (cited 868-69) by majority, ante at independent Agent of Burgos Kowalski’s testi- (defendants' police and testi- admissions to mony proves lied at the time of mony on the stand were viewed as affirmative questioning perjured himself on the stand. guilt and testi- evidence of when such admissions agree certainly I that there are inconsistencies eyewit- mony were shown to be false direct Burgos's alleged between Agent admissions made to contrary credibility trial, ness evidence to the testimony Kowalski and his —not conflicting testimony). those inconsistencies are based on inferences de- determinations based on Burgos presented showing that pre- no evidence majority state what evidence does (the evidence traveling was under an alias trial shows that Gobern at Gobern’s sented contrary), a actually to the had return agreement with either Gon- was specific had a Gonzales, or trip scheduled with Gobern and zales, possess both to crack co- Burgos, or knowing police about Gobern and to Because the lied to the intent distribute. caine with Nonetheless, finger- based on the Burgos at about Gobern’s Gonzales. presented evidence majority again erroneous- presented print than that evidence less trial was even is, course, Burgos’s trial, ly that fact that “[t]he of insuffi- concludes there own an interior article upon record was on in the Gobern cient evidence agreement package by from conspiratorial wrapped be- a held Gobern to find a which trip Burgos. inception of the train could demon- and tween Gobern finder of fact that strate to a rational however, believe, that even without I co- conspired to distribute the and Gobern testimony, there is still Agent Kowalski’s (emphasis Ante at 872-73 caine base.” upon which to find con- sufficient However, majority not original). does and agreement between Gobern spiratorial that explain what evidence shows Gobern therefore, Gonzales, would, sustain and I Go- (ie possessed cocaine in an “interior article” ground. conspiracy conviction on that bern’s wrapped package from the baggie) of the presented with evidence Gobern’s inception trip. of the train The reason for sequentially of the numbered in the form quite simple. There is no such evi- this is and train tickets that showed Gobern dence.12 traveling together an under Gonzales were planned to to New York alias and return III. days. City together within two no on Count Two The evidence fares better presented Gobern also against Burgos, of the indictment returned knowing each other and Gonzales denied charged possession of cocaine which both questioned police, an obvious when distribute, in violation of base with intent to And, up relationship. attempt to cover their aiding abetting § and U.S.C. doubt, presented to the the evidence without distribute, in viola- possession with intent possessed the jury showed that Gobern § 2. tion of 18 U.S.C. From this evidence I believe crack cocaine. juror a rational could find that there charge, possession while the As for conspiratorial agreement between existed that the de Government need establish possess and distrib- Gobern Gonzales actually possessed drugs, the fendant Gov drugs that carried.

ute the possession, “constructive ernment must show ‘exercises, course, implicate facts which occurs when the defendant none of these Of exercise, Rather, and con any way. they power has dominion Burgos undercut ” is, any showing guilt. That trol over the item.’ United States Sa- of his there was (7th Cir.1993) (cited by part 12. To cast Gobem/Gon- 872) (sufficient emphasizes majority, conspiracy, majority evidence estab- also ante zales Gobern, Gonzales, Burgos appeared part conspiracy when, of based on lished defendant as train, separate disembarking regrouped among when other act of countersurveillance stand, traveling defendant, things, weapon, at the taxi and were with a loaded armed city." Ante at 871-72. As I have ex- "source alleged co-conspirator at arrived with location however, plained, transaction, these acts fall well short of prearranged drug made initial con- establishing Burgos knowingly wilfully informant, and remained tact with Government conspiracy, participated in a negotiations, Gobem/Gonzales parking during the deal’s lot they specific agreement much less do establish visually generally closely surveying the area Gobern, Gonzales, pos- between scrutinizing transaction was automobile in which sess to distribute. crack cocaine with intent believe, however, standing negotiated). I sight questioning addition, plain to observe the fellow majority’s that the conclusion surveillance, hardly passenger amounts to much watching questioned by person act of another most this is a case police amounting less countersurveillance. At is "countersurveillance” And, course, rubbernecking. while Gobern guilt especially wrongheaded. evidence of Gonzales, police questioning there Perhaps observed the ante at 872. one defendant acts as a if showing presented that Gobern drug purchase, might was no evidence "lookout” we have a for a Pazos, Burgos. questioning countersurveilled different situation. See United States (4th Cir.1984) mad, 1091, believe, however, I F.2d 1096 amount of cash. that 754 1077). Laughman, F.2d at (quoting prove 618 Government has failed to its case. See Also, individual Vasquez-Chan, “[a]n our circuit has said United v. States 978 F.2d another, 546, (9th Cir.1992). may drugs jointly with possess 550-53 drugs presence premises where mere A Burgos ownership, conclusion that had found, pos or association with one who are dominion, or control over the contents of the drugs, sesses is insufficient to establish the “requires bridging evidentiary container an 21 possession needed for a conviction under gap speculation,” with rank Goldsmith v. 841(a).” Samad, 1096; § 754 F.2d at U.S.C. Witkowski, (4th 697, Cir.1992), 981 F.2d 703 Rusher, accord United States v. 966 F.2d denied, 913, 113 3020, 125 cert. 509 U.S. (4th 926, Cir.), L.Ed.2d 709 Consequently, the evi (1992). Thus, 351, 121 L.Ed.2d 266 dence Burgos was not sufficient to show that juror Burgos guilty a rational could not find possession had constructive of crack ulti possession beyond a reasonable doubt mately seized from the train station bath merely he associated with because Gonzales Thus, room. it was insufficient to sustain they drugs and Gobem and knew that had to Burgos’s possession conviction for with intent despite majority’s distribute. And con charged to distribute as in Count Two of the contrary, clusion to the ante indictment.13 fingerprint does rescue the Government’s aiding for abetting charge, As and case. appeal Government’s brief on argu- makes no argument is that The Government’s why ment on how or the evidence was suffi- bag Burgos could infer that touched the support charge. cient to only men- But when it contained cocaine. how does the tion of it the Government’s brief is this dominion, jury get ownership, or control unenlightening “Aiding sentence: and abet- 25, 1993, January on from this evidence of ting charged pos- in connection with the prior touching? argu- The Government’s session with intent to distribute.” Br. Govt. juror rationally suggests ment could infer majority at 10. The does not do much better that if a defendant at one time touched an summarily concludes that because the object serving drugs, container evidence was sufficient to sustain power to exercise defendant has the owner- conviction, it is sufficient to sus- dominion, ship, drugs. or control over those aiding abetting tain the conviction. Ante argues that The Government the inference is disagree. at 875. I (1) though rational here even the container aiding abetting, To establish the Gov- Burgos premises, or at was not found on prove beyond (2) ernment had to a reasonable drugs belonged there was evidence the (3) doubt that with else, became associated no someone there was evidence of (4) participated possession Goberris any prior drug activity by Burgos, and “crack” possession any not found in cocaine and acted with drugs weapons unusually large specific or an intent to facilitate crime and Lucas, Fossen, United States v. 67 F.3d 956 In United States v. Van Cf. (D.C.Cir.1995) (reversing posses (4th 1972), conviction for Cir. we left undecided whether the apart sion of narcotics where defendant sublet “possessed” engraving plates defendant certain found, drugs receipt ment in which were photographic negatives used in counterfeit apart the ment, defendant's name was found ing despite fingerprints the fact that his were fingerprints and the defendant's words, illegal found on items. In other drugs); containing found on a shoe box United fact that the defendant at one time touched Earl, (9th Cir.1994) (per v. 27 F.3d 423 States necessarily items did not mean he had owner curiam) (DEAagents found defendant inside resi dominion, course, ship, or control over them. Of drugs, drug paraphernalia dence that contained Burgos's impressed fingerprint was not weapons, and an informant testified that (the crack) illegal item here but rather on that stayed there and "conducted crime” defendant there; container, plastic bag. States item's Cf. the court found this evidence to be insuffi (in (8th Cir.1992) Keeper, v. possession, cient to show constructive and the plas dicta court said on a defendant's by evidence was not made sufficient the addition cocaine, bag containing large tic amount of fingerprints al fact defendant's were found itself, (in residence) enough possession would not be to show plate may on a have con cocaine). doubt). beyond tained traces of the cocaine a reasonable make it succeed. United States the desire (D.C.Cir.1990); Poston, see F.2d Tandy Corp., 773 F.2d

Flowers Cir.1985) that, in criminal con- (noting may guilty found

text, a defendant abetting if he “shared in the

aiding and intent”); v. criminal United States

principal’s Cir.1983). Winstead, F.2d

Here, light favorable viewed most Government, the evidence was insuffi- juror beyond a rational to conclude

cient for Go- doubt that assisted

a reasonable activity the intent criminal

bern’s it the desire to make succeed.

facilitate it and evi- fingerprint and the associational strong.14 Accord- simply not

dence abetting charge does

ingly, aiding and salvage Burgos’s conviction on Count

Two.

[*] ^{[*] [*] [*] [*] [*]} respectfully from the ma-

Again, I dissent Burgos’s conviction.

jority’s affirmance of HALL, MURNAGHAN, Judge

Judge ERVIN, join in Judge this

Judge MOTZ

opinion. America,

UNITED STATES

Plaintiff-Appellee, BULLOCK, K.B., Edward

Kenneth a/k/a Pete, Defendant-Appellant. a/k/a

No. 95-5088. Appeals, States Court of

Fourth Circuit. July

Argued 1996. Aug.

Decided (4th Cir.1983), saying evidence was 705-06 14. I am not that because the count, it insufficient on the ly necessari- 79 L.Ed.2d 691 aiding case, however, abet- was insufficient to sustain the the evidence was insufficient ting charge. The elements of the crime of con- Burgos knowingly and wilful to show either required aiding spiracy to show differ from those ly participated or that he aided may abetting, and evidence be insufficient possession and abetted Gobem's with intent to yet sufficient to sustain the sustain former distribute. Arrington, latter. See United States

Case Details

Case Name: United States v. Frank Kahled Burgos, United States of America v. Alexio Burnard Gobern

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 23, 1996

Citation: 94 F.3d 849

Docket Number: 93-5899, 93-5919

Court Abbreviation: 4th Cir.