954 F.

2d 232

UNITED STATES of America, Plaintiff-Appellee,

v.
Jorge BELL, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Lorenzo Rivas CRUZ, Defendant-Appellant.
Nos. 90-5727, 90-5728.

United States Court of Appeals,

Fourth Circuit.
Argued Oct. 4, 1991.
Decided Jan. 21, 1992.
As Amended March 2, 1992.

Urs Roland Gsteiger, Petree, Stockton & Robinson, Winston-Salem, N.C.,

argued, for defendant-appellant Bell.
David Ferris Tamer, Law Offices of David F. Tamer, Winston-Salem,
N.C., argued, for defendant-appellant Cruz.
Paul Alexander Weinman, Asst. U.S. Atty., Greensboro, N.C., argued
(Robert H. Edmunds, Jr., U.S. Atty., on brief), for plaintiff-appellee.
Before MURNAGHAN, Circuit Judge, HERLONG, District Judge for the
District of South Carolina, sitting by designation, and MERHIGE, Senior
United States District Judge for the Eastern District of Virginia, sitting by
designation.
OPINION
MURNAGHAN, Circuit Judge:

On June 25, 1990, the United States Grand Jury for the Middle District of
North Carolina returned a four count indictment against Gregorio Peguero,
Jorge Bell, Lorenzo Cruz, Jose Fernandez, and Eustaquio Sosa. The five
defendants were charged with conspiracy to possess with intent to distribute

marijuana, "crack" cocaine, and cocaine, and with specific incident possession
offenses.
2

All five defendants were charged with conspiracy to possess with intent to
distribute the sum of four separate quantities of drugs, found at four different
locations at different times. Defendants Bell and Cruz were charged, in addition
to the conspiracy, with possession of 13.55 grams of "crack" cocaine. The
indictment also included a weapons possession count that was later dropped by
the government at the start of the trial.

Cruz and Bell were arraigned in the United States District Court for the Middle
District of North Carolina in Winston-Salem on July 3, 1990. A jury found
them guilty on all counts charged. Both defendants moved for a judgment of
acquittal pursuant to Fed.R.Crim.P. 29. Both motions were denied.

At a sentencing hearing on November 2, 1990, the district judge calculated a

151-188 month sentencing guideline range for Bell, sentencing him to 165
months plus five years of supervised release. He calculated a 121-151 month
range for Cruz, and sentenced him to 134 months plus five years of supervised
release.

We affirm the possession conviction, but reverse the conspiracy conviction and
hence remand for resentencing pursuant to our findings.

I.
6

Evidence of various activities of defendants was presented at trial. On March

17, 1990, Bell was cited in Maryland for a moving violation while driving a
1979 Oldsmobile, a car registered in the name of Leocadio Reyes.

On April 18, Cruz was observed by a law enforcement officer driving a gold
1988 Ford Taurus near 1212 East 12th St. in Winston-Salem, an area of
extensive drug trafficking, according to law enforcement officials.

On April 19, Bell was again cited, this time in North Carolina, for speeding
while driving the Oldsmobile registered in Reyes' name. Bell also was
observed at least one other time driving the 1979 Oldsmobile by law
enforcement officials.

On April 20, a residence at 535-D Martin Luther King Drive in Winston-Salem

was searched by officers of the Bureau of Alcohol, Tobacco and Firearms and

the Winston-Salem Police. The only person in the apartment at the time of the
search was Peguero, Bell and Cruz's alleged co-conspirator. No evidence was
presented at trial as to who was the legal resident of the apartment, but keys to
its door were found on Peguero during the search. Also uncovered in the search
were: 30.71 grams of "crack" cocaine found in a brown paper bag on the
second floor landing at the top of a staircase; the two traffic citation receipts for
the violations by Bell operating the 1979 Oldsmobile plus two more traffic
tickets issued to Bell, found in a shirt hanging in a closet in one of the
bedrooms; a series of photographs picturing Bell: one with him standing near
the entrance to the 535-D apartment, one with him and Peguero standing by a
green Volvo, one with Bell standing by the 1979 Oldsmobile and one with Bell
in front of the gold 1988 Taurus Cruz had been seen driving on April 18. There
were no fingerprints of either Cruz or Bell found in the apartment.
10

On April 26 at approximately noon, Cruz was observed leaving a residence at

1926 Pleasant Street in Winston-Salem by a lieutenant on the Winston-Salem
police force. Cruz was driving a maroon Chevrolet. The police officer
proceeded to follow Cruz for about twenty minutes. Finally, Cruz pulled over,
exited his car and demanded of the plain clothes officer to know why he was
being followed. The officer informed Cruz that he was a police officer, and
Cruz, leaving the car parked by the side of the road, left the scene on foot.

11

Later that same day, at 11:30 P.M., Bell was stopped for operating the 1979
Oldsmobile without headlights. Cruz and another alleged coconspirator, Jose
Fernandez, were passengers in the car, with Cruz in the backseat. The two
passengers slowly began to walk off in opposite directions after the car had
come to a stop. The two patrol officers detained all three men, and soon joined
by five other local and federal officers, began to search the car. Bell stayed near
the car and carried on a conversation with one of the policemen. Cruz and
Fernandez were led to a curb some distance from the car, where they sat down
and remained calm and quiet for a time.

12

One of the officers noticed in his search that the backseat of the Oldsmobile
was not tightly fixed to the floor of the car, and he removed the seat and began
to search underneath it. At this point, observing the car being dismantled, Cruz
and Fernandez became excited, exclaiming: "They're tearing it apart. They're
tearing the car apart!"

13

The officers found a secret compartment under the backseat, but could not find
the opening mechanism for it for some time. After about twenty minutes, two
switches were found under the dashboard near the ashtray which opened the
compartment. Inside the police found 13.55 grams of "crack" and a loaded

9mm pistol. A police scanner, useful in monitoring police radio

communications, was also found in the front seat. No fingerprints were
obtained from the drugs or the gun. No drugs, weapons, or excessive amount of
cash were found on either Cruz or Bell. Cash totaling $950.00 was recovered
from Fernandez.
14

On April 28, officers went to the residence at 1929 Pleasant Street. Two
occupants of the house, including the fifth alleged coconspirator, Eustaquio
Sosa, gave permission to search the premises. In the house the officers
discovered nearly $19,500 in a bedroom, and a notebook with cryptic entries
including names and numbers. In the garage two cars were found: a green
Volvo (pictured with Bell and Peguero in one of the photos found at 535-D
Martin Luther King Drive) and a gold Taurus (also pictured with Bell in one of
the photos, and the same car Cruz had been seen driving on April 18).

15

A search of the cars uncovered a secret compartment in the gold Taurus quite
similar to the one in the 1979 Oldsmobile. Traces of cocaine were found in the
compartment, and $28,810 was also found in the car. In the trunk of the green
Volvo $25,900 was found. A small bag of green vegetable matter, later
determined to be marijuana, also was found in the garage.

II.
16

Defendants Bell and Cruz were arraigned on two separate counts; the first for
possession with intent to distribute the 13.55 grams of "crack" found in the car
they were riding in on April 27, and the second for conspiring to distribute
"crack", cocaine, and marijuana more generally between February 2 and April
28, 1990. The district court properly denied defendants' motions for acquittal as
to the possession count. Accordingly, we affirm that decision.

17

"Constructive possession exists when the defendant exercises, or has the power
to exercise, dominion and control over the item." United States v. Zandi, 769
F.2d 229, 234 (4th Cir.1985). Of course, knowledge of the presence of the
controlled substance is essential to an assertion of constructive possession.
United States v. Schocket, 753 F.2d 336, 340 (4th Cir.1985). "[P]ossession
need not be exclusive, but may be shared by others, and is susceptible of proof
by circumstantial as well as direct evidence." United States v. Laughman, 618
F.2d 1067, 1077 (4th Cir.1980).

18

Intent to distribute a controlled substance may be inferred by a jury from the

quantity of drugs found in the defendant's possession. United States v. Roberts,

881 F.2d 95, 99 (4th Cir.1989). The thirteen plus grams of crack found in the
Oldsmobile is a "large quantity", supporting the factfinder's inference that an
intent to distribute existed. Id.
19

In analyzing the case at hand, and reviewing the denial of a motion for
acquittal, "... we must review the evidence and all reasonable inferences arising
from it in the light most favorable to the government," Laughman, 618 F.2d at
1076 (citing Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680
(1942)), as we determine whether a factfinder could have inferred, beyond a
reasonable doubt, that the crime was committed. United States v. Anderson,
611 F.2d 504, 508 (4th Cir.1979).

20

When there is no actual possession of the contraband, as here, because the

drugs are hidden in an elaborate compartment, constructive possession must be
shown. In United States v. Grubbs, 773 F.2d 599 (4th Cir.1985), we had the
opportunity to address a situation in which drugs were cleverly concealed, and
the appellants argued that they had no knowledge of their presence.

21

In Grubbs, Coast Guard officials boarded a boat suspected of carrying drugs.

They searched the boat for more than thirty minutes, and found nothing.
Undaunted, the officials maintained radar surveillance of the boat, and
intercepted it again later. A second search indicated a significant weight
discrepancy on the vessel, and it was taken back to shore where a final search
uncovered a significant quantity of drugs. In that case, the defendants
contended that they had no knowledge of the well-hidden marijuana.

22

The Grubbs court ruled that the totality of the circumstances of the arrest, and
the alleged possession, were relevant in determining whether knowledge could
be imputed to the defendants. We noted that "the jury was entitled to give
weight to the circumstances surrounding appellant's apprehension and arrest."
773 F.2d at 602. Moreover, we ruled that "[t]aken as a whole, the evidence in
this case is clearly sufficient to allow a jury to infer that each defendant had
knowledge of the void areas on the ship and the bales of marijuana ..." Id.

23

The case at hand presents facts strikingly similar to those in Grubbs. There is
ample evidence, albeit primarily circumstantial, allowing for a reasonable
inference on the part of the jury that both of the defendants knew of the drugs
in the secret compartment in the 1979 Oldsmobile. The issue on appeal is not
whether we are convinced by the evidence on the record, but whether a trier of
fact could have reasonably been convinced. The case against Bell is stronger
since he was obviously extensively familiar with the vehicle in which the drugs

were found. But Cruz' presence in the car, his brief attempt to leave the scene at
the time the car was stopped, his apparent relationship with Bell on other
occasions, and his "nervous" response to the search, are sufficient, though
barely so, to allow for an inference by the jury free of "reasonable" doubt. The
motion for acquittal of possession of 13.55 grams of crack cocaine was properly
denied.
III.
24

Bell and Cruz, along with three others, were also convicted of conspiring to
possess with the intent to distribute various drugs. The district court erred in not
granting defendants' motion for acquittal as to the conspiracy charge.

25

In order to support a conviction for conspiracy, the government must show,

first, that a conspiracy existed; then, that the defendant had knowledge of the
conspiracy; and finally, that the defendant voluntarily became a part of the
conspiracy. United States v. Badolato, 701 F.2d 915, 920 (11th Cir.1983).
"Proof of conspiracy may of course be by circumstantial evidence; it need not
and normally will not be by direct evidence." United States v. Giunta, 925 F.2d
758, 764 (4th Cir.1991). Complete knowledge of all aspects of the conspiracy is
not required:

26
[O]ne
may become a member of a conspiracy without full knowledge of all of its
details, but if he joins the conspiracy with an understanding of the unlawful nature
thereof and willfully joins in the plan on one occasion, it is sufficient to convict him
of conspiracy, even though he had not participated before, and even though he
played only a minor part.
27

United States v. Roberts, 881 F.2d 95, 101 (4th Cir.1989).

28

We have ruled that the totality of the circumstances shown by the government
may suffice to infer the agreement necessary for a conspiracy conviction.
Anderson, 611 F.2d at 504. See also United States v. Crockett, 813 F.2d 1310,
1316 (4th Cir.1987). In a case similar to the one at hand, we held that:

29 gist or gravamen of the crime of conspiracy is an agreement to effectuate a

[T]he
criminal act. We also recognize that the existence of a conspiratorial agreement need
not be proven by direct evidence, but may be inferred from the facts and
circumstances of the case, i.e. circumstances indicating that two or more people
acted in concert to achieve an illegal goal.
30

Laughman, 618 F.2d at 1074 (citations omitted).

31

32

Such inferential analysis is not boundless, however. The federal courts have
held that, though elements of a conspiracy may be proven by circumstantial
evidence, "each element of the offense must be proven beyond a reasonable
doubt." United States v. Wexler, 838 F.2d 88, 90 (3rd Cir.1988). The standard
for reviewing a conviction for conspiracy is the same as that mentioned above
for conviction for possession with intent: "the evidence and all reasonable
inferences arising from it must be viewed in the light most favorable to the
government, the prevailing party." Laughman, 618 F.2d at 1075.
One element that the government must prove beyond a reasonable doubt is that
some specific conspiracy existed. As we have said:

33
[C]ircumstantial
evidence that proves nothing more than association between two
persons, even if one has a fixed intent known to the other to commit an unlawful act,
is not sufficient to permit the inference of the requisite agreement between the two to
act in concert to commit the act. Because conspiracy requires agreement between at
least two persons to take a concerted action, if the purposes of the alleged
coconspirators are different, though both are aimed at unlawful goals, there is no
conspiracy.
34

Giunta, 925 F.2d at 764.

35

The Third Circuit has held that "[o]ne of the requisite elements the government
must show in a conspiracy case is that the alleged conspirators shared a 'unity
of purpose,' the intent to achieve a common goal, and an agreement to work
together toward that goal." Wexler, 838 F.2d at 90-91.

36

In Wexler, appellant was convicted of conspiracy to possess hashish. Appellant,

identified as the driver of a "look-out" car, retreated dramatically from an area
where drugs were being transferred from one vehicle to another, after he made
"eye contact" with a police officer. The car he was in at the time had been
rented in his name. Appellant was also seen talking to another co-defendant
subsequent to another drug transfer in the vicinity. The defendant was later
arrested in the process of further counter-surveillance activities. A Citizen's
Band radio was found in his car at the time of arrest, and the sales record
indicated that it had been purchased at a store near appellant's house by a man
who gave a phony name and address. The court ruled that though it could quite
readily be inferred that appellant was up to no good, such an inference was not
sufficient to justify conviction for a specific conspiracy:

37
[T]here
is ample circumstantial evidence in this case from which the jury could have
concluded that [appellant] was involved in a conspiracy with co-defendants ... and

that the conspiracy involved the movement of cargo in the truck.... What is missing
is any evidence that [appellant] knew that a controlled substance was couched
behind the doors of the Ryder truck. That knowledge is an essential element of the
conspiracy charged. Without it the conviction must fail. As we recently stated, "there
must be evidence tending to prove that defendant entered into an agreement and had
the specific unlawful purpose charged in the indictment."
38

Wexler, 838 F.2d at 91. The court went on to state that "the evidence is just as
consistent, for example, with a conspiracy to transport stolen goods, an entirely
different crime." Id. at 92.

39

In United States v. Cooper, 567 F.2d 252 (3rd Cir.1977), appellant was
convicted of conspiracy to possess controlled substances when he drove a van
across the country in which drugs were kept in the back under padlock. An
auxiliary partition had been constructed in the van to prevent anyone, including
appellant, from seeing what was in the back. The court ruled that:

40
[t]here
is no evidence that he knew what was padlocked in the rear compartment and
no evidence that illegal plans were discussed during the telephone calls to his home
... in the absence of some evidence that he knew of the contents of the locked
compartment or some evidence that he engaged in telephone or other communication
of a conspiratorial nature, no factfinder could find beyond a reasonable doubt that
[appellant] was a member of [the] conspiracy.
41

Id. at 254-55. See also United States v. Glasgow, 658 F.2d 1036 (5th Cir.1981)
(similar facts with a similar result).

42

In United States v. Waddy, 536 F.2d 632 (5th Cir.1976), the court ruled that a
man who "was in and out of the rooms of some of those participating in
marijuana activities," and had carried suitcases for these men, and otherwise
closely associated with them was not guilty of conspiracy. Id. at 634. The court
concluded its evaluation by noting that "Twenty-four hundred years before this
era Euripides observed that 'every man is like the company he keeps.'
[Appellant] kept bad company but of that he was not charged or convicted." Id.

43

The application of Wexler, Cooper, and Waddy here indicates that the district
court erred in not granting the Rule 29 motion for acquittal of the conspiracy
charge. All three of those cases indicate a significant reluctance to apply a
conspiracy conviction to individuals whose most heinous apparent crime is
choosing the wrong friends. More than mere association with bad people who
are committing crimes is required for a conspiracy conviction. And as Wexler

suggests, more than being a bad person with the intent to commit a crime is
required. A conspiracy is not shown until the government has presented
evidence of a specific agreement to commit a specific crime, for the same
criminal purpose, on the part of all indicted conspirators.
44

The evidence of the connections between Bell and Cruz, Bell and Peguero,
Cruz and the house at 1939 Pleasant Street, both men and the cars with the
secret compartments, and both men with exorbitant sums of money, are
assuredly indicative of intended wrong doing on the part of Bell and Cruz. But
exactly what specific agreement to commit wrongful acts is indicated? The
evidence is far too general to support a conviction for any concerted action
incident to a specific conspiracy.

45

The evidence against Cruz, when viewed in a light most favorable to the
government, indicates that he believed that something illegal was being hauled
in at least two cars that he was either driving or riding in. It can even reasonably
be inferred that he knew there were drugs in the 1979 Oldsmobile. But beyond
knowing possession of those drugs, which can be inferred, there is no evidence
of any specific agreement to do anything with any of the other three alleged
coconspirators.

46

Cruz was observed leaving the residence at 1926 Pleasant Street, but neither the
fact of his presence there, nor of his odd and incriminating activity following
his encounter with the police officer, suggest any specific agreement between
him and the residents of that house, or defendant Peguero. It is not enough to
show that Cruz was intent on an unlawful purpose, or even that he was aware of
the unlawful specific purpose of his alleged colleagues. The agreement between
co-conspirators must be to promote the same unlawful goals, otherwise there is
no conspiracy. Giunta, 925 F.2d at 764. There is no evidence that Cruz played
any part in any specific unlawful goal or activity relating to the 30.71 grams of
crack found in the 535-D Martin Luther King Drive apartment. His obvious
association with men acting in violation of the law, and his obvious attempts to
violate the law, are not sufficient to make a showing that all the men together
were acting to violate the same laws at the same times, pursuant to a specific
agreement. Without any evidence to support such a conclusion, the conviction
for conspiracy cannot stand.

47

There is more evidence tying Bell to the residence at 535-D Martin Luther
King Drive, and with defendant Peguero, but there is still no indication of a
shared intent to commit any specific act. The photographs and the personal
effects found at the residence, and the indication that Bell was a frequent driver
of the 1979 Oldsmobile, and perhaps other cars, is enough to indicate that he

was involved in nefarious activity, but not enough to show constructive

possession of the 30.71 grams of crack found at 535-D Martin Luther King
Drive and not enough to indicate any specific plans for the drugs between
himself, Peguero, Cruz, or anyone else.
48

The district court consequently erred when it rejected Bell's and Cruz' motions
for acquittal on the conspiracy charge connecting them with nefarious drug
activity in the region between February and April of 1990. They do, however,
remain convicted for possession with intent to distribute the 13.55 grams of
crack cocaine found in the 1979 Oldsmobile on April 27.

49

We reverse and remand for resentencing determined solely on the basis of the
13.55 gram possession conviction. Because Bell and Cruz were not effectively
convicted of conspiracy, the other issues in the case, relating to inclusion of
various amounts of drugs connected with the conspiracy to determine an
offense level, and of the effect of confidential testimony about the conspiracy at
the sentencing hearing, need not be reached.
The judgments are accordingly

50

AFFIRMED IN PART AND REVERSED IN PART.