Filed: September 17, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 93-5899(L)

(CR-93-13)

United States of America,

Plaintiff - Appellee,

versus

Frank Kahled Burgos, et al,

Defendants - Appellants.

ORDER

The Court amends its opinion filed August 23, 1996, as

follows:

On page 2 of Volume 1 and page 40 of Volume 2, section 1,

line 3 -- "Widener," is added after Judge Russell and before Judge

Wilkins.

On page 2 of Volume 1 and page 40 of Volume 2, section 1 --

line 4, referring to Judge Widener's concurring opinion, is

deleted.
-2-

On pages 49-50 of Volume 2 -- Judge Widener's concurring

opinion is deleted.

On page 50 of Volume 2 -- footnotes 1 and 2 are deleted.

For the Court - By Direction

/s/ Patricia S. Connor

Acting Clerk
Volume 1 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 93-5899

FRANK KAHLED BURGOS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 93-5919

ALEXIO BURNARD GOBERN,

Defendant-Appellant.

Appeals from the United States District Court

for the Middle District of North Carolina, at Greensboro.

N. Carlton Tilley, Jr., and William L. Osteen, Sr.,

District Judges.

(CR-93-13)

Argued: September 26, 1995

Decided: August 23, 1996

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,

HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,

HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,

Circuit Judges.

_________________________________________________________________
Affirmed in part and dismissed in part by published opinion. Judge

Williams wrote the majority opinion, in which Chief Judge Wilkinson

and Judges Russell, Widener, Wilkins, Niemeyer, Hamilton, and Luttig

joined. Judge Michael wrote an opinion concurring in part and 

dissenting in part, in which Judges Hall, Murnaghan, Ervin, and Motz 

joined.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Norman Cochran, Assistant Federal Public

Defender, Greensboro, North Carolina, for Appellant Burgos;

Joseph R. Giaramita, Jr., Brooklyn, New York, for Appellant Gobern. Michael Francis Joseph, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee. ON BRIEF: Todd M. Peebles, PEEBLES & SCHRAMM, Winston-Salem, North Carolina, for

Appellant Gobern. Walter C. Holton, United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

In these consolidated appeals, Frank Burgos and Alexio Gobern

appeal their convictions for conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C.A. §§ 841(a)(1) and 846

(West 1981 & Supp. 1996), contending that the evidence was insufficient to sustain their convictions. Additionally, Burgos appeals his

conviction for possession with intent to distribute cocaine base and

aiding and abetting that crime, in violation of 18 U.S.C.A. § 2 (West

1969) and 21 U.S.C.A. § 841(a)(1), again challenging the sufficiency

of the evidence to support his conviction.

Gobern also appeals his sentence on two grounds. First, he asserts

that the district court erred in failing to depart downward based on an

isolated act of aberrant behavior, pursuant to United States Sentencing

Commission, Guidelines Manual, Chapter 1, Part A, 4(d) (1992). Second, describing himself as a "person of color," Gobern posits that his

 2
sentence violates the Equal Protection Clause because offenses

involving cocaine base are more severely punished than offenses

involving cocaine powder, and since "persons of color" are more frequently convicted of cocaine base offenses, they are disproportionately punished.

We consolidated Burgos's and Gobern's appeals and elected to

hear them en banc. We take this opportunity to clarify the law of this

circuit respecting challenges to the sufficiency of the evidence in connection with conspiracy convictions, and in so doing, we affirm the

convictions of Burgos and Gobern. In affirming the convictions, we

honor two bedrock principles of Anglo-American jurisprudence: the

Government must prove each element of a crime beyond a reasonable

doubt, and the jury determines whether the Government has satisfied

this evidentiary burden. Our review is limited to determining whether

substantial evidence supports the conviction. In addressing Gobern's

challenges to his sentence, we also honor entrenched principles of this

court's jurisprudence: a deliberate refusal by the district court to

depart downward is not appealable; and sentencing disparities

between offenses involving cocaine base and cocaine powder do not

deny equal protection of the law. Thus, respecting Gobern's appeal

from his sentence, we dismiss in part and affirm in part.

First, we shall recite the facts adduced at the separate trials of Burgos and Gobern. Second, we shall address Burgos's and Gobern's

conspiracy convictions and whether the evidence was sufficient to

sustain them. Third, we shall address Burgos's challenge to his possession and aiding and abetting conviction and whether the evidence

was sufficient to support it. Finally, we shall address Gobern's challenges to his sentence.

I.

Taken in the light most favorable to the Government, see Evans v.

United States, 504 U.S. 255, 257 (1992), the evidence adduced at

Burgos's trial established the following facts. On January 25, 1993,

law enforcement officers Berkley Blanks and Daniel Kaplan were

performing narcotics interdiction at the train station in Greensboro,

North Carolina, focusing on a train arriving from New York, New

York, a known source city for contraband narcotics. Officers Blanks

 3
and Kaplan observed Burgos, Gobern, and Anthony Gonzales disembark together from the train, but walk separately into the terminal.

Officer Blanks testified that he initiated a conversation with Gonzales,

who informed Officer Blanks he was traveling alone from New York,

denied familiarity with Gobern, and presented a train ticket bearing

the name "Anthony Flores." Officer Kaplan testified that he spoke

with Burgos, who produced a train ticket bearing his own name.

According to Officer Blanks, Gobern carried a knapsack and a package wrapped in Christmas paper but which bore no ribbon, bow, or

card; also, Gobern carefully observed Officer Blanks's conversation

with Gonzales.

As Officer Blanks and Gonzales walked to the front of the terminal, Gobern followed them, continued to observe them, halted when

Officer Blanks and Gonzales halted, and with the Christmas package

and knapsack, proceeded into the terminal lavatory, where he

remained one to two minutes; this lavatory was small, measuring 9.5

feet square. Gobern then exited the lavatory without the Christmas

package, but still carrying the knapsack. Officers Blanks and Kaplan

testified unequivocally that no one else entered, occupied, or exited

the lavatory while Gobern occupied it. On exiting the lavatory, Gobern, at Officer Kaplan's request, produced his train ticket, which, like

Gonzales's ticket, bore the name "Anthony Flores," stated that he was

traveling alone from New York, and denied that he and Gonzales

knew each other. Interestingly, Gonzales's and Gobern's train tickets

bore consecutive numbers, were purchased simultaneously at the

same locale, and were both round-trip tickets from New York, New

York, to Greensboro, North Carolina, issued on January 25, 1993,

with a return date of January 27, 1993.

After concluding their conversation with Gobern, Officers Blanks

and Kaplan proceeded immediately to the lavatory just exited by Gobern while Officer Cameron Piner, who had recently arrived at the train

terminal, watched Burgos, Gobern, and Gonzales. On the sink, Officers Blanks and Kaplan found the Christmas package and a cereal

box, both of which were ripped open, and crumpled newsprint dated

January 9, 1993 from The Daily News, a New York newspaper. Pages

from the same edition of The Daily News were found on the floor and

in the wastebasket of the lavatory. Also in the wastebasket were

pieces of the Christmas paper in which the Christmas package had

 4
been wrapped, as well as remnants of the package itself. Secreted

behind the commode was a mass of wadded newsprint, which concealed aluminum foil, which, in turn, concealed a plastic bag containing 78.5 grams of cocaine base, an amount which Officers Blanks and

Kaplan testified was a distribution quantity. Significantly, the newspaper concealing the foil and plastic bag was from the same edition

of The Daily News that was on the sink, scattered around the floor,

and in the wastebasket. Not only was this wadded mass of newsprint

from The Daily News, but it complemented and completed perfectly

the newspaper edition found near the sink. Officers Blanks and

Kaplan exited the lavatory, and Officer Blanks observed Burgos,

Gobern, and Gonzales attempt to board the same taxicab. Before they

could depart, Gobern was arrested, and Burgos and Gonzales agreed

to accompany Officers Blanks and Kaplan for questioning. Burgos

was then questioned by Special Agent Wayne Kowalski of the Drug

Enforcement Agency.

At Burgos's trial, Special Agent Kowalski testified that Burgos

stated: (1) he knew Gonzales, but not Gobern; (2) he conversed with

Gonzales and Gobern on the train; (3) he knew that cocaine base was

in the Christmas package, which Gobern possessed since leaving New

York; and (4) he knew that the cocaine base was to be distributed at

a college in Greensboro, North Carolina. Specifically, Special Agent

Kowalski avowed that Burgos admitted that "Gobern. . . carried the

package wrapped as a Christmas package . . . throughout the trip

down." (J.A. at 67.) (emphasis added). Moreover, "Burgos . . . knew

that they had dope. . . . [I]t was his understanding they were going

to sell the dope at the A&T University." (J.A. at 67.) Dispelling any

doubt that Burgos knew that the plastic bag containing the cocaine

base was in the Christmas package since the trio left New York, Special Agent Kowalski testified that he asked Burgos"whether he knew

that there was crack cocaine in the package" and Burgos "said that he

knew they had it, but he didn't see it." (J.A. at 66-67.) Additionally,

Special Agent Kowalski testified that Burgos stated that he was in

Greensboro visiting a friend, but did not mention traveling to Laurinburg, North Carolina, to play basketball with his former schoolmates,

as Burgos testified at trial; indeed, the train on which the men traveled

did not stop at Laurinburg. Also introduced at Burgos's trial was

forensic evidence revealing that Gobern's fingerprints were on the

Christmas wrapping paper, and that Burgos's fingerprint was im-

 5
pressed on the sealing mechanism at the top of the plastic bag which

contained the cocaine base, although forensic analysis did not establish when Burgos's fingerprint was impressed on the plastic bag.

Burgos's testimony differed dramatically from Special Agent Kowalski's. Burgos testified that while purchasing his train ticket, Gonzales, whom Burgos knew only by the alias "Tone," requested that

Burgos purchase two train tickets for him and gave Burgos a piece of

paper with a reservation number and the name "Flores" written on it.

Burgos and Gonzales also exchanged telephone numbers. Burgos purchased three round-trip train tickets: One for himself in his own name

and the other two for Gonzales in the name of "Anthony Flores," the

two for Gonzales each having a two-day stay in Greensboro and

returning to New York City on January 27, 1993. Burgos testified further that Gonzales was alone when he solicited Burgos to purchase his

train tickets. According to Burgos, he then boarded the train by himself. While on board, he was approached by Gonzales, Gobern, whom

Burgos denied knowing, and two women, who have remained nameless and faceless, all of whom sat behind Burgos. Testifying further,

Burgos stated that he carried with him on the train sandwiches, cookies, and potato chips, all of which were wrapped in plastic bags similar to the plastic bag bearing his fingerprint in which the cocaine base

was found. Burgos, however, did not consume all of the food he

brought, but rather shared it with Gonzales, Gobern, and the women.

Specifically, he gave sandwiches, still encased in the plastic bags, to

Gonzales and Gobern and gave the cookies to the women.

Moreover, Burgos avowed that he had no discussions with Gonzales and Gobern concerning narcotics while on the train. Regarding

his intentions in North Carolina, Burgos testified that after visiting

friends for one day in Greensboro, he intended to play basketball with

former schoolmates in Laurinburg. With respect to the Christmas

package, Burgos testified that Gobern carried no such Christmas

package, yet on cross-examination he testified that Gobern wrapped

no packages on the train nor did Gobern possess any implements used

to wrap packages, such as paper, tape, or scissors. Likewise, on crossexamination, Burgos could offer no explanation for his fingerprint on

the plastic bag containing the cocaine base, nor could Burgos explain

the glaring, direct contradictions between his testimony and that of

Special Agent Kowalski.

 6
Other testimony in Burgos's trial was in a like vein, namely that

Burgos's testimony diverged markedly from that of law enforcement

agents. For instance, Burgos initially testified that he preceded Gobern in exiting the train, but then recanted and stated that Gobern disembarked before him. Burgos also testified that Officer Blanks cursed

and brandished a firearm at him, but Officer Blanks denied even

speaking to Burgos, let alone using profanity or displaying a firearm.

Additionally, Burgos avowed that he appeared at arraignment without

counsel, but subsequently repudiated this statement and testified that

counsel was indeed present with him at arraignment. The record is

rife with examples of Burgos's vague, equivocal, and contradictory

responses.

Burgos was convicted of conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C.A. §§ 841(a)(1), 846,

possession with intent to distribute cocaine base, in violation of 18

U.S.C.A. § 2 and 21 U.S.C.A. § 841(a)(1), and aiding and abetting,

and sentenced to 131 months imprisonment. Burgos appeals his convictions, challenging the sufficiency of the evidence, but he does not

appeal his sentence.

II.

We now consider the evidence adduced at Gobern's trial. Although

Gobern was tried and convicted prior to Burgos's arraignment, the

evidence adduced at Gobern's trial was substantially similar to the

evidence adduced at Burgos's later trial, but differed in some respects.

For example, Special Agent Kowalski did not testify at Gobern's trial

that Burgos stated he knew Gonzales, Burgos traveled with Gobern

and Gonzales aboard the train, Gobern carried the Christmas package

from New York City, and Burgos knew that cocaine base, slated for

distribution in Greensboro, was in the package. Also at Gobern's trial,

there was no evidence respecting when Burgos's fingerprint was

impressed on the plastic bag, and Burgos did not testify at Gobern's

trial that he brought food with him on the train trip from New York

City.

At Gobern's trial, Officers Blanks and Kaplan testified that, in connection with performing their duty of narcotics interdiction at the

Greensboro train station, they witnessed Burgos, Gobern, and Gon-

 7
zales disembark in tandem from a train arriving from New York City,

a known source city for contraband narcotics, and enter the terminal

separately. Officer Blanks testified that he approached Gonzales, who

identified himself as "Anthony Gonzales," but produced a train ticket

bearing the name "Anthony Flores." While Officer Blanks was questioning Gonzales, Officer Kaplan questioned Burgos. According to

Officers Blanks and Kaplan, Gobern surveyed Officer Blanks's conversation with Gonzales with interest. Also, Officers Blanks and

Kaplan testified that as they accompanied Burgos and Gonzales to the

terminal, they occasionally discontinued walking and stopped to talk

to Burgos and Gonzales, and Gobern simultaneously discontinued and

resumed walking.

Officers Blanks and Kaplan also testified that Gobern carried a

Christmas package wrapped with red-and-green-striped paper and a

knapsack. Testifying further, Officers Blanks and Kaplan related that

Gobern proceeded directly into the small lavatory at the train station

with the Christmas package and the knapsack, but that on exiting the

lavatory, Gobern conspicuously was not carrying the Christmas package. As Gobern exited the lavatory, Officer Blanks requested that

Gobern produce his train ticket, which also bore the name "Anthony

Flores." According to Officer Kaplan, Gonzales's and Gobern's tickets were sequentially numbered, purchased at the same locale on the

same date, and had identical destinations and durations, namely that

the tickets were purchased in New York, were for a two-day trip

arriving in Greensboro on January 25, 1993 and returning to New

York City on January 27, 1993. Officer Blanks avowed that Gobern

informed him that he was traveling alone and denied knowing Gonzales. While speaking with Officers Blanks and Kaplan, Gobern

exhibited nervous behavior; for instance, his hands shook and he

avoided eye contact.

On inspecting the lavatory after conversing with Gobern, Officers

Blanks and Kaplan found the cleaved Christmas package and a torn

cereal box on the sink. Used as packing material in connection with

the Christmas package and cereal box were pages of The Daily News,

a New York newspaper. Pages from the same edition of The Daily

News were in the cereal box, the wastebasket, and littered about the

ripped Christmas package. As Officers Blanks and Kaplan inspected

the lavatory further, behind the commode they found a plastic bag

 8
containing 78.5 grams of cocaine base that was concealed in aluminum foil, which was surrounded by wadded pages from the same edition of The Daily News as that found elsewhere. Gobern's fingerprints

were recovered from the red-and-green-striped wrapping paper on the

Christmas package, and Burgos's fingerprint was recovered from the

plastic bag containing the 78.5 grams of cocaine. Special Agent Kowalski testified that forensic analysis proved that Burgos's fingerprint

was on the plastic bag. Officers Blanks and Kaplan were adamant that

no one else entered, occupied, or departed the lavatory while Gobern

was in it. Officer Blanks stated that, on exiting the lavatory, he witnessed Burgos, Gobern, and Gonzales attempt to board the same taxicab.

Gobern was convicted of conspiracy to possess with intent to distribute cocaine base and possession with intent to distribute cocaine

base. Violations of § 841(a)(1) involving more than fifty grams of

cocaine base provide for a statutory mandatory minimum prison sentence of ten years. See 21 U.S.C.A. § 841(b)(1)(A) (West Supp.

1995). Under the Sentencing Guidelines, Gobern's total offense level

of thirty-two, combined with a criminal history category of one,

resulted in a guideline range of 121 to 151 months imprisonment,

with his convictions consolidated for purposes of entry of judgment.

The district court sentenced Gobern to 121 months imprisonment.

Gobern appeals his conspiracy conviction and his sentence.

Regarding his conviction, Gobern asserts that the evidence was insufficient to support it. With respect to his sentence, Gobern raises two

challenges. First, he posits that the district court erred in failing to

depart downward based on aberrant behavior. The gravamen of his

position is that Gobern had no prior involvement with drug trafficking

offenses and his involvement in the crimes for which he was convicted was an anomaly not in keeping with his character. Second,

although he failed to raise the issue in the district court, Gobern, who

describes himself as a "person of color," maintains on appeal that the

statutory mandatory minimum sentence under 21 U.S.C.A. § 841(b)

(1)(A) (West Supp. 1995) violates the Equal Protection Clause.

According to Gobern, meting out greater punishments for offenses

involving cocaine base than for offenses involving equal amounts of

cocaine powder denies "persons of color" equal protection of the law

because they are more frequently convicted of offenses involving

 9
cocaine base, while Caucasians are more frequently convicted of violations involving cocaine powder.

III.

Burgos and Gobern challenge the sufficiency of the evidence to

support their conspiracy convictions. Construing all of the evidence

and the inferences to be drawn therefrom in the light most favorable

to the Government, we conclude that a rational jury could find that

the evidence was sufficient to sustain their conspiracy convictions.

A.

1.

To prove conspiracy to possess cocaine base with intent to distribute, the Government must establish that: (1) an agreement to possess

cocaine with intent to distribute existed between two or more persons;

(2) the defendant knew of the conspiracy; and (3) the defendant

knowingly and voluntarily became a part of this conspiracy. See

United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir. 1984), cert.

denied, 469 U.S. 1105 (1985). In United States v. Laughman, 618

F.2d 1067, 1074 (4th Cir.), cert. denied, 447 U.S. 925 (1980), we

explained that the "gravamen of the crime of conspiracy is an

agreement to effectuate a criminal act." By its very nature, a conspiracy is clandestine and covert, thereby frequently resulting in little

direct evidence of such an agreement. See Blumenthal v. United

States, 332 U.S. 539, 557 (1947); United States v. Wilson, 721 F.2d

967, 973 (4th Cir. 1983). Hence, a conspiracy generally is proved by

circumstantial evidence and the context in which the circumstantial

evidence is adduced. See Iannelli v. United States, 420 U.S. 770, 777

n.10 (1975); United States v. Dozie, 27 F.3d 95, 97 (4th Cir. 1994)

(per curiam); United States v. Andrews, 953 F.2d 1312, 1318 (11th

Cir.), cert. denied, 505 U.S. 1210 (1992). Indeed, a conspiracy may

be proved wholly by circumstantial evidence. See Iannelli, 420 U.S.

at 777 n.10; United States v. Durrive, 902 F.2d 1221, 1229 (7th Cir.

1990); Laughman, 618 F.2d at 1074. Circumstantial evidence tending

to prove a conspiracy may consist of a defendant's "relationship with

other members of the conspiracy, the length of this association, [the

defendant's] attitude [and] conduct, and the nature of the conspiracy."

 10
Collazo, 732 F.2d at 1205. A conspiracy, therefore, "may be inferred

from a `development and collocation of circumstances'." Glasser v.

United States, 315 U.S. 60, 80 (1942) (quoting United States v.

Manton, 107 F.2d 834, 839 (2d Cir. 1939), cert. denied, 309 U.S. 664

(1940)). Circumstantial evidence sufficient to support a conspiracy

conviction need not exclude every reasonable hypothesis of innocence, provided the summation of the evidence permits a conclusion

of guilt beyond a reasonable doubt. See Holland v. United States, 348

U.S. 121, 139-40 (1954). While circumstantial evidence may sufficiently support a conspiracy conviction, the Government nevertheless

must establish proof of each element of a conspiracy beyond a reasonable doubt. See Glasser, 315 U.S. at 80. To require less of the Government would eviscerate its burden to prove all elements of a crime

beyond a reasonable doubt and relieve it of its burden of vigilance in

prosecuting crimes -- thereby violating bedrock principles of our

Anglo-American jurisprudence. See In re Winship, 397 U.S. 358

(1970).

The preceding precepts demonstrate that a conspiracy can have an

elusive quality and that a defendant may be convicted of conspiracy

with little or no knowledge of the entire breadth of the criminal enterprise:

It is of course elementary that one may be a member of

a conspiracy without knowing its full scope, or all its members, and without taking part in the full range of its activities

or over the whole period of its existence. Critically, it is not

necessary to proof of a conspiracy that it have a discrete,

identifiable organizational structure; the requisite agreement

to act in concert need not result in any such formal structure[.] [I]ndeed[,] . . . contemporary drug conspiracies[ can]

contemplate[ ] . . . only a loosely-knit association of members linked only by their mutual interest in sustaining the

overall enterprise of catering to the ultimate demands of a

particular drug consumption market . . . .

United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993), cert.

denied, 114 S. Ct. 1850 (1994). Thus, while many conspiracies are

executed with precision, the fact that a conspiracy is loosely-knit,

 11
haphazard, or ill-conceived does not render it any less a conspiracy

-- or any less unlawful.

Of course, in addition to proving the existence of a conspiracy

beyond a reasonable doubt, the Government must also prove a defendant's connection to the conspiracy beyond a reasonable doubt. To

satisfy that burden, the Government need not prove that the defendant

knew the particulars of the conspiracy or all of his coconspirators. See

Blumenthal, 332 U.S. at 557; United States v. Brooks, 957 F.2d 1138,

1147 (4th Cir.), cert. denied, 505 U.S. 1228 (1992). Indeed, a defendant properly may be convicted of conspiracy

without full knowledge of all of [the conspiracy's] 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.

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

United States v. Mezzanatto, 115 S. Ct. 797, 805 (1995) (recognizing

that there are "big fish" and "small fish" in conspiracies). Like the

conspirators' agreement, a defendant's participation in the conspiracy

"need not be explicit; it may be inferred from circumstantial evidence." United States v. Prince, 883 F.2d 953, 957 (11th Cir. 1989).

In addition to selling narcotics, that participation may assume a myriad of other forms, such as supplying firearms or purchasing money

orders for coconspirators or permitting them to store narcotics and

other contraband in one's home, see United States v. James, 40 F.3d

850, 873 (7th Cir. 1994), modified on remand on other grounds, 79

F.3d 553 (7th Cir. 1996); or purchasing plane tickets for coconspirators, see United States v. Sanchez, 961 F.2d 1169, 1178 (5th Cir.),

cert. denied 506 U.S. 918 (1992). Thus, a variety of conduct, apart

from selling narcotics, can constitute participation in a conspiracy sufficient to sustain a conviction.

Regrettably, some of our jurisprudence can be read as lacking uniform application with respect to principles of conspiracy law. For

instance, United States v. Giunta, 925 F.2d 758 (4th Cir. 1991), may

be read as demanding a heightened degree of review regarding suffi-

 12
ciency challenges to conspiracy convictions. Giunta, like the dissent,

premised its reasoning on Justice Jackson's concurring opinion in

Krulewitch v. United States, 336 U.S. 440 (1949), in which a single

justice expressed reserve that perhaps the Government indicted for

conspiracy rather than the substantive offense because securing a conspiracy conviction was putatively easier. See Giunta, 925 F.2d at 765.

In expounding on Justice Jackson's reservation, the Giunta court

observed that a conspiracy charge was a "`potent and oft-used weapon

in the prosecutorial arsenal,' particularly in connection with the drug

trafficking prosecutions that increasingly dominate federal criminal

dockets." Giunta, 925 F.2d at 766 (quoting United States v. Caro, 569

F.2d 411, 418 (5th Cir. 1978) (Goldberg, J.)). In this connection,

Giunta suggested that affirming a conspiracy conviction could act as

an obfuscation lending credence to "`slippery facts and the speculations necessary to uphold [the conspiracy] conviction.'" id. (quoting

Caro, 569 F.2d at 418) (alteration in original), often resulting in "special risks of unfairness," id. Given Giunta's skepticism regarding conspiracy, the court announced that "[h]eightened vigilance to guard

against the increased risks of speculation, though not a heightened

standard, is warranted in conspiracy prosecutions." Id. Given this

"heightened vigilance," Giunta focused its review not on the circumstantial evidence tending to prove a conspiracy, but rather on the

"specific weaknesses" in the evidentiary picture. Id. In reversing

Giunta's convictions, the court concluded that the Government's case

failed for want of "evidence about conduct independent" of the circumstantial evidence surrounding the criminal activity. Id. at 765.

Giunta's unilateral pronouncements, especially its application of

"heightened vigilance" to reverse a conviction, cannot be squared

with the aforementioned precepts of conspiracy law. First, we note

that Krulewitch was a concurring opinion that reflected the thoughts

of a single Justice, whom the Court subsequently described as "no

friend of the law of conspiracy," Iannelli, 420 U.S. at 778. Second,

we do not share Justice Jackson's, Giunta's, or the dissent's skepticism that conspiracy is a Frankenstein's monster that has grown out

of control. In this respect, Justice Jackson's, Giunta's, and the dissent's dire prognostication that the Government would indict for conspiracy in lieu of the substantive offense has not materialized because

the Government typically indicts for both offenses, not exclusively for

the conspiracy offense. For example, Burgos was indicted for posses-

 13
sion with intent to distribute cocaine base and aiding and abetting, as

well as conspiracy with intent to possess with intent to distribute

cocaine base. Third, Giunta's invitation to exercise "heightened vigilance" by focusing on the "specific weaknesses" in the evidence

appears at loggerheads with the principles that in reviewing a conspiracy conviction, we accept the facts in the light most favorable to the

Government and consider the circumstances and the context in which

the circumstantial evidence is adduced, bearing in mind that a conspiracy can be proved wholly by circumstantial evidence.

The dissent erroneously contends that Giunta did not create or

apply a heightened standard for reviewing conspiracy convictions.

See post at 60-64 & n.3. Rather, it conclusorily asserts in a block

quote that Giunta is consistent with conspiracy law. Giunta, however,

expressly created the improvident "heightened vigilance" language --

the phrase does not appear in our jurisprudence prior to Giunta -- and

vigorously applied it to reverse Giunta's conviction. Perpetuating the

same error, the dissent candidly substitutes its"`raw judgment call,'"

see post at 64 n.4, for the jury's determination of guilt. An appellate

court, however, may not substitute a "`raw judgment call'" in reviewing sufficiency challenges; our task is to determine if substantial evidence, viewed most favorably to the Government, supports the

conviction beyond a reasonable doubt. Because of Giunta's substitution of "`a raw judgment call'" for the jury's verdict, reliance on the

Krulewitch concurrence, rather than binding precedent, its reference

to "heightened vigilance," and its focus on"specific weaknesses,"

rather than the totality of the circumstances in assessing the evidence,

Giunta is not consistent with our conspiracy jurisprudence.1

_________________________________________________________________

1 The dissent's protestation notwithstanding, see post at 61-62 n.3 and

63-64, the fact that our Court has cited Giunta is not phenomenal

because we have merely cited it for unchallenged precepts of conspiracy

law. See, e.g., United States v. Heater, 63 F.3d 311, 323 (4th Cir. 1995)

(relying on Giunta for the elements of a conspiracy and the propositions

that we must take the facts in the light most favorable to the Government

in reviewing convictions and that a conspiracy can be proved by circumstantial evidence); United States v. Johnson, 54 F.3d 1150, 1153 (4th

Cir.) (citing Giunta for the proposition that we must view the facts in the

light most favorable to the Government in reviewing a conviction), cert.

denied, 116 S. Ct. 266 (1995); United States v. Harris, 39 F.3d 1262,

 14
Likewise, United States v. Bell, 954 F.2d 232 (4th Cir. 1992), cannot be squared with these tenets of conspiracy law. According to Bell,

"[a] conspiracy is not shown until the government has presented evidence of a specific agreement to commit a specific crime, for the same

criminal purposes, on the part of all indicted conspirators." Id. at 237-

38. While the dissent cites Bell and Giunta for this proposition as "the

black letter law of conspiracy," post at 59, we are not persuaded this

proposition represents black letter conspiracy law. Rather, black letter

conspiracy law requires the Government to prove:

(1) an agreement between two or more persons, which constitutes the act; and (2) an intent thereby to achieve a certain

objective which, under the common law definition, is the

doing of either an unlawful act or a lawful act by unlawful

means.

Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law Ch. 6, § 6.4,

at 525 (2d ed. 1986). In this regard, "[c]onspiracy is an inchoate

offense, the essence of which is an agreement to commit an unlawful

act[, and t]he agreement need not be shown to have been explicit."

Iannelli, 420 U.S. at 777 & n.10;2 see also United States v. Morsley,

_________________________________________________________________

1267 (4th Cir. 1994) (relying on Giunta for the proposition that a conspiracy may be proved by circumstantial evidence); United States v.

Kennedy, 32 F.3d 876, 886 (4th Cir. 1994) (citing Giunta for the precept

that we must accept the facts favorably to the Government in reviewing

a conspiracy conviction), cert. denied, 115 S. Ct. 939 (1995). We have

not, however, followed or endorsed Giunta's "heightened vigilance,"

"specific weaknesses" or "`raw judgment call'" language, and tellingly

so, the dissent cites no cases in which such incorrect language has been

embraced. Moreover, because in this Circuit we observe the rule of interpanel accord, see Busby v. Crown Supply, Inc., 896 F.2d 833, 840-41

(4th Cir. 1989) (en banc), a subsequent panel could not overrule Giunta

-- a feat that requires the en banc Court. As we are now so convened to

analyze tenets of conspiracy law, we take this opportunity to do so.

2 The dissent posits that we have mistakenly cited Iannelli for the proposition that a conspiracy need not be specific, but this is incorrect. Precisely, we have quoted Iannelli as stating that a conspiracy need not be

explicit respecting its objectives because the gist of a conspiracy is the

 15
64 F.3d 907, 919 (4th Cir. 1995) (holding that there need not be evidence of a specific agreement in order to sustain a conspiracy conviction), cert. denied, 116 S. Ct. 749 (1996). Because we believe that

these precepts set the proper contours of conspiracy law, setting

parameters regarding specificity of the agreement is difficult to harmonize with the elastic, ad hoc principles that shape our conspiracy

jurisprudence.3

Moreover, our precedents have mandated that "[o]nce it has been

shown that a conspiracy exists, the evidence need only establish a

slight connection between the defendant and the conspiracy to support

conviction." Brooks, 957 F.2d at 1147; see also United States v. Seni,

662 F.2d 277, 285 n.7 (4th Cir. 1981), cert. denied, 455 U.S. 950

(1982). We have adhered repeatedly to this principle, explaining that

_________________________________________________________________

agreement to commit an unlawful act. Given that a conspiracy is generally a covert operation, it is often short on explicit information. As such,

a conspiracy is often "inferred from the facts and circumstances of the

case." Iannelli, 420 U.S. at 777-78 n.10. The dissent misperceives the

difference between conspiracy to commit the crime and the activity that

can constitute participation in the conspiracy: the former requires a violation of a specific law, while the latter is evidenced by the activity to further the conspiracy.

3 The dissent erroneously suggests that we have confused the elements

of the crime of conspiracy with an evidentiary sufficiency challenge. See

post at 58. The dissent states we have characterized conspiracy jurisprudence as "a collection of `elastic, ad hoc principles.'" Post at 58 & 59.

This is a facile suggestion because we have taken great pains to articulate

the tenets of conspiracy jurisprudence. In making this suggestion, the dissent takes out of context the precept that a conspiracy need not be evidenced by specific acts; therefore, attempting to prescribe specific acts

that constitute participation in a conspiracy "is difficult to harmonize

with the elastic, ad hoc principles that shape our conspiracy jurisprudence." Thus, we simply concluded that prescribing specific conduct as

demonstrating participation in a conspiracy was at odds with the precept

that a conspiracy need not "have a discrete, identifiable organizational

structure," but can be "loosely-knit." Banks, 10 F.3d at 1054. We have

not, therefore, created from whole cloth a "sweeping statement" that our

conspiracy law has been reduced to a mere "collection of `elastic, ad hoc

principles.'" Post at 58.

 16
while the existence of the conspiracy and the defendant's connection

to it must be proved beyond a reasonable doubt, the defendant's connection to the conspiracy need only be "slight." See, e.g., United

States v. Al-Talib, 55 F.3d 923, 931 (4th Cir. 1995); Dozie, 27 F.3d

at 97; United States v. Whittington, 26 F.3d 456, 465 (4th Cir. 1994);

United States v. Chorman, 910 F.2d 102, 109 (4th Cir. 1990);

Laughman, 618 F.2d at 1076. Requiring that the defendant's connection to the conspiracy be "slight" in no way alleviates the Government's burden of proving the existence of the conspiracy and the

defendant's connection to it beyond a reasonable doubt. The term

"slight" does not describe the quantum of evidence that the Government must elicit in order to establish the conspiracy, but rather the

connection that the defendant maintains with the conspiracy. Requiring a "slight connection" between the defendant and the established

conspiracy complements the canons of conspiracy law that a defendant need not know all of his coconspirators, comprehend the reach

of the conspiracy, participate in all the enterprises of the conspiracy,

or have joined the conspiracy from its inception.

Again, regrettably, some of our jurisprudence is confused between

the burden of proof the Government must meet to prove the defendant's connection to the conspiracy and the degree of connection the

Government must show to establish the defendant as a member of the

conspiracy. For instance, in United States v. Truglio, 731 F.2d 1123,

1133 (4th Cir.), cert. denied, 469 U.S. 862 (1984), we stated that after

establishing the existence of the conspiracy, in order to convict the

defendant, the Government need only show "slight evidence" connecting the defendant to the conspiracy. This is a misstatement of the

law: as we now explain, the Government must prove the existence of

the conspiracy and the defendant's connection to it beyond a reasonable doubt, which is the standard the Supreme Court has employed

consistently, see, e.g., Glasser, 315 U.S. at 80; but a defendant's connection to the conspiracy merely need be "slight." Sustaining a conviction based on "slight evidence" is contrary to the Government's

obligation to prove crimes beyond a reasonable doubt.

Likewise, Bell can be read as increasing the quantitative connection

required to tie a defendant to a conspiracy. While the Bell court concluded that Bell and Cruz were properly convicted of possession with

intent to distribute narcotics, see Bell, 954 F.2d at 235, it reversed

 17
their conspiracy convictions because "[t]he evidence of the connections" was insufficient to demonstrate a "specific agreement to commit wrongful acts," id. at 238. In our view, because Bell demanded

a specificity requirement, it can be read as implying that a substantial,

not slight, connection is necessary to tie a defendant to a conspiracy.

We disagree, therefore, with the dissent's characterization that Bell

cannot be construed as confusing the law respecting the slight connection rule, see post at 59, 61, 64-65.

Thus, Truglio sustained conspiracy convictions based on "slight

evidence," while Bell can be read as implying that the Government

must not only prove the existence of the conspiracy beyond a reasonable doubt, but also that the defendant's connection to the conspiracy

be substantial, not slight. We cannot subscribe to either polarized

view, finding each incorrectly extreme in its application of conspiracy

law. Accordingly, we restore symmetry and consistency to our law

respecting the distinction between proving the existence of a conspiracy and establishing a defendant's connection to it. Fidelity to the

Constitution directs us to hold that the Government must prove the

existence of a conspiracy beyond a reasonable doubt, but upon establishing the conspiracy, only a slight connection need be made linking

a defendant to the conspiracy to support a conspiracy conviction,

although this connection also must be proved beyond a reasonable

doubt. We dispel any other formulation of this precept from the

Fourth Circuit, and to the extent any decisions -- and in particular,

Bell, Giunta, and Truglio -- are inconsistent with this dictate, we

expressly overrule them.4

_________________________________________________________________

4 One of the dissent's pervasive, fatal flaws is its failure to recognize

that our duty is to review facts and law, not to engage in raw

decisionmaking, which is the task of the finder of fact. Succinctly stated,

the dissent fails to understand the distinction between review and substitution. Repeatedly, the dissent narrowly focuses on reviewing selected

pieces of evidence in reviewing the total circumstances establishing guilt,

see post at 60 ("I will mention just a few examples [of the facts establishing guilt]."); 66 ("I think it clear, [despite the evidence of guilt] that the

Government failed to present substantial evidence that Burgos knowingly

and wilfully participated [in the conspiracy]."); 67-68 (stating facts that

the dissent would have found persuasive in finding guilt); 70 ("[C]ould

a reasonable juror still infer . . . that Burgos must have assisted in the

 18
2.

We now turn to our standard of review. In Glasser, the Supreme

Court explained that a jury verdict "must be sustained if there is substantial evidence, taking the view most favorable to the Government,

to support it." Glasser, 315 U.S. at 80 (emphasis added). A reviewing

court, therefore, may not overturn a substantially supported verdict

merely because it finds the verdict unpalatable or determines that

another, reasonable verdict would be preferable. Rather, we shall

reverse a verdict if the record demonstrates a lack of evidence from

which a jury could find guilt beyond a reasonable doubt. See United

States v. Lowe, 65 F.3d 1137, 1142 (4th Cir. 1995), petition for cert.

filed, 64 U.S.L.W. 3709 (U.S. Feb. 22, 1996) (No. 95-1659). In

explaining the circumscribed scope of our review, the Supreme Court

explained in Burks v. United States, 437 U.S. 1, 17 (1978), that "appellate reversal on grounds of insufficient evidence . . . will be confined to cases where the prosecution's failure is clear." Thus, in the

context of a criminal action, substantial evidence is evidence that a

reasonable finder of fact could accept as adequate and sufficient to

support a conclusion of a defendant's guilt beyond a reasonable

doubt. See United States v. Smith, 29 F.3d 914, 917 (4th Cir.), cert.

denied, 115 S. Ct. 454 (1994). In applying this standard of review, we

must remain cognizant of the fact that "[t]he jury, not the reviewing

court, weighs the credibility of the evidence and resolves any conflicts in the evidence presented, and if the evidence supports different,

reasonable interpretations, the jury decides which interpretation to

believe." United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994)

(citations omitted), cert. denied, 115 S. Ct. 954 (1995). Deferring to

the jury's findings, an "appellate court . . . must sustain the verdict

if there is substantial evidence, viewed in the light most favorable to

the Government, to uphold it." Burks, 437 U.S. at 17. Likewise, determinations of credibility "are within the sole province of the jury and

_________________________________________________________________

packaging of the cocaine [base] prior to boarding the train in New York?

I think not."); 74 ("Could then the association evidence and the fingerprint evidence . . . lead a juror rationally to conclude . . . that Burgos wilfully participated in [the conspiracy]? Again, I think not."), but that is

immaterial. As an appellate court, our function is to review for error, not

to substitute our judgment for that of the jury.

 19
are not susceptible to judicial review." Lowe, 65 F.3d at 1142; see

also Glasser, 315 U.S. at 80. Thus, the appellate function is not to

determine whether the reviewing court is convinced of guilt beyond

reasonable doubt, but, viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the Government, "whether the evidence adduced at trial could support any

rational determination of guilty beyond a reasonable doubt." United

States v. Powell, 469 U.S. 57, 67 (1984).5 The focus of our review,

therefore, is whether:

The Government . . . [has] satisf[ied] the courts that given

[its] proof the jury could rationally have reached a verdict

of guilty beyond a reasonable doubt. We do not believe that

further safeguards against jury irrationality are necessary.

Id.

Critical to our review of sufficiency challenges is the complete picture that the evidence presents. See Al-Talib, 55 F.3d at 931. Consequently, we must not rend the garment of which the evidence is

woven lest we analyze each individual fiber in isolation. See Durrive,

902 F.2d at 1229. The Supreme Court has admonished that we not

examine evidence in a piecemeal fashion, but consider it in cumulative context. See, e.g., Kyles v. Whitley, 115 S. Ct. 1555 (1995)

_________________________________________________________________

5 In Wright v. West, 505 U.S. 277 (1992), a case on collateral review,

the Court explained the similarly limited nature of appellate review of

sufficiency challenges:

In Jackson [v. Virginia, 443 U.S. 307 (1979)], we emphasized

repeatedly the deference owed to the trier of fact and, correspondingly, the sharply limited nature of constitutional sufficiency review. We said that "all of the evidence is to be

considered in the light most favorable to the prosecution," that

the prosecution need not affirmatively "rule out every hypothesis

except that of guilt," and that a reviewing court"faced with a

record of historical facts that supports conflicting inferences

must presume--even if it does not affirmatively appear in the

record--that the trier of fact resolved any such conflicts in favor

of the prosecution, and we must defer to that resolution."

Id. at 296-97 (first emphasis added).

 20
(explaining that the courts must evaluate the cumulative effect of evidence in connection with the prosecution's revealing exculpatory evidence to a habeas petitioner); Glasser, 315 U.S. at 80-81 (sustaining

conspiracy convictions based on the circumstances surrounding the

criminal activity). As the court in United States v. Douglas, 874 F.2d

1145, 1153 (7th Cir.), abrogated on other grounds by Durrive, 902

F.2d at 1228, and cert. denied, 493 U.S. 841 (1989), so cogently elucidated, "[w]hile any single piece of evidence, standing alone, might

have been insufficient to establish [the defendant's] participation in

the . . . drug conspiracy, a rational jury could infer from the totality

of the evidence" that a conspiracy existed. The focus of appellate

review, therefore, of the sufficiency of evidence to support a conviction is on the complete picture, viewed in context and in the light

most favorable to the Government, that all of the evidence portrayed.

B.

Guided by the preceding principles, we address first Burgos's challenges to the sufficiency of the evidence to sustain his conspiracy

conviction. Burgos asserts that his conviction must be reversed

because the Government failed to prove that he participated in any

conspiracy. We disagree. Viewing all of the evidence and the inferences to be drawn therefrom that were adduced at Burgos's trial in the

light most favorable to the Government, we conclude that the evidence against Burgos is sufficient for a jury to find beyond a reasonable doubt that he participated in a conspiracy with Gobern and

Gonzales to distribute cocaine base at North Carolina A&T University. Indeed, the dissent does not disagree that a conspiracy existed

between Gobern and Gonzales, but merely takes issue with the sufficiency of the evidence regarding Burgos's participation in this conspiracy.

The most damning physical evidence establishing Burgos's participation in the conspiracy is that his left index fingerprint was

impressed on the sealing mechanism at the top of the ziplock plastic

bag in which the cocaine base was located. This plastic bag was

wrapped in foil, which, in turn, was wrapped in newspaper, which

was packaged in a box, which was wrapped in Christmas paper; in

short, the cocaine base was intentionally and thoroughly concealed.

Burgos devotes much energy to denigrating the fingerprint evidence,

 21
particularly because, he posits, this evidence is the sole evidence linking him to the conspiracy, a position that we find frivolous, considering all of the evidence before the jury.

Federal appellate courts consistently have concluded that fingerprints constitute material, cogent proof in sustaining conspiracy convictions for contraband narcotics, particularly when viewed in the

context of other circumstantial evidence. See, e.g., United States v.

Langston, 970 F.2d 692, 706 (10th Cir.) (affirming a narcotics conspiracy conviction because the defendant was present at the location

where the laboratory used to manufacture narcotics was operating, the

odor of chemicals was prominent at the location, the defendant's car

at one point reeked of ether, there was testimony that "all" involved

persons had overseen the laboratory, and defendant's fingerprint was

on laboratory instruments), cert. denied, 506 U.S. 965 (1992); United

States v. Aichele, 941 F.2d 761, 763 (9th Cir. 1991) (noting that

defendant's fingerprints on laboratory equipment, the odor of controlled substances in his residence and office, and the fact that the

defendant's keys opened the laboratory constituted sufficient evidence to sustain a conspiracy conviction); United States v. Ivey, 915

F.2d 380, 385 (8th Cir. 1990) (sustaining a conspiracy conviction

because the defendant's fingerprint was on the package containing the

cocaine that a coconspirator collected, the defendant identified himself by his driver's license number when collecting money sent to

him, and telephone conversations between the defendant and coconspirators coincided with these events); United States v. Obregon, 893

F.2d 1307, 1311-12 (11th Cir.) (upholding a conspiracy conviction to

import cocaine because the defendant's fingerprints were placed on

packages of drugs subsequent to the drugs' insertion in the packages

and all indicted persons were aboard a boat modified to conceal drugs

in a known drug-smuggling area), cert. denied, 494 U.S. 1090 (1990);

United States v. Arzola-Amaya, 867 F.2d 1504, 1513 (5th Cir.)

(affirming drug conspiracy convictions based on the defendants' fingerprints being found on a box containing cocaine and on beer bottles

found in the vicinity of the criminal activity, the defendants' presence

and drug paraphernalia at a "`stash house,'" and identification of a

defendant by the secretary of a coconspirator), cert. denied, 493 U.S.

933 (1989). Burgos's fingerprint impressed on the sealing mechanism

of the plastic bag containing cocaine base, which was concealed

 22
inside a wrapped package, is a significant piece of evidence establishing his knowing and willful participation in the conspiracy.

The fingerprint evidence against Burgos is strikingly similar to that

in United States v. Hastamorir, 881 F.2d 1551 (11th Cir. 1989). In

Hastamorir, Defendant Ledezma contended that his conviction for

conspiracy to possess with intent to distribute cocaine must be

reversed for want of sufficient evidence. Id. at 1557. The evidence

tying Ledezma to the conspiracy was his fingerprints on the exterior

of two packages of cocaine. Id. According to Ledezma, this evidence

"in no way demonstrate[d] that he knew what was inside the packages

or that he had any intent to commit an illegal act." Id. The Eleventh

Circuit rejected this argument and affirmed his conspiracy conviction.

The court reasoned that the fingerprint evidence, when coupled with

Ledezma's contradicted testimony that he was not with other coconspirators, permitted the jury to infer that Ledezma perjured himself to

conceal his role in the conspiracy. Id. According to the Eleventh Circuit, the combined effect of a defendant with no credibility and his

fingerprints on packages containing cocaine supported the conspiracy

conviction, considering the totality of circumstantial evidence and

construing all inferences in favor of the Government. As the

Hastamorir court explained, the issue is not whether the appellate

court was convinced of guilt beyond all reasonable doubt, but whether

the jury was convinced of this conclusion and its verdict was based

on substantial evidence. Id. at 1558.

The factual circumstances adduced from the testimony likewise

give rise to the reasonable inference that Burgos knowingly and voluntarily participated in the conspiracy. Special Agent Kowalski testified that Burgos told him that Gobern possessed the wrapped

Christmas package from the inception of the journey in New York:

Q: Did [Burgos] say whether he talked to Gonzale[s] and

Gobern while they were on the train?

A: Yes, [Burgos] did. He rode with them. He told me that

Mr. Gobern was the one who carried the package wrapped

as a Christmas package.

Q: All right. Did he make any statements as to how long

Mr. Gobern had this package?

 23
A: He said Mr. Gobern had the package throughout the

trip down.

Q: All right. And did he tell you anything about what Mr.

Burgos or Mr Gonzale[s] -- what Mr. Gonzale[s] or Mr.

Gobern told him about what was in the package during the

train trip?

A: What Mr. Burgos told me was that he knew that they

had dope, although he didn't see it. And it was his understanding -- this is what he told me -- it was his understanding they were going to sell the dope at the A&T University.

. . . .

Q: Did you ask him whether he knew that there was crack

cocaine in the package?

A: Yes. He said that he knew they had it, but he didn't

actually see it.

(J.A. at 67-68.) (emphasis added). In addition, Special Agent Kowalski testified that he fingerprinted Burgos and one of Burgos's fingerprints was on the plastic bag. Moreover, Burgos himself testified that

Gobern, Gonzales, and the women sat behind him for the entire trip,

he did not see anyone transfer material into a plastic bag, wrap or

rewrap the package, nor did he leave his seat except for the occasional

visit to the train lavatory. Thus, not only was there positive testimony

of Burgos's knowing and willful participation in the conspiracy, but,

as in Hastamorir, the testimony contradicted Burgos's trial testimony,

permitting the jury to infer that he had perjured himself.

Contending that because Special Agent Kowalski was not aboard

the train and Burgos's credibility was damaged because of demeanor

evidence, the dissent asserts that Hastamorir does not support our

position. See post at 78-79 n.11. We are baffled by this incorrect contention. Apparently, the dissent would require as a prerequisite to sustain a conspiracy conviction that law enforcement agents be present

while the conspirators formulate their plans. In Hastamorir, as here,

 24
the defendant lied, and the jury in each case found the testimony of

other witnesses more credible than that of the defendants. The dissent

contends that we are sustaining a conviction based purely on disbelief

of Burgos. Our holding, however, rests on the unremarkable fact that

Burgos gave conflicting renditions of the same events, and the jury

chose to believe the rendition he told to Special Agent Kowalski.

Moreover, as we explain, see infra pp. 27-33, if a defendant takes the

stand, as Burgos did here, and the jury disbelieves him, this is simply

added evidence of guilt.

The dissent erroneously posits that there is no evidence establishing that Burgos assisted in packaging the cocaine base prior to boarding the train in New York. See post at 69-71. As we demonstrate infra

at 25-28, however, a reasonable jury could infer from the facts that

Burgos did assist in packaging the cocaine base before boarding the

train in New York. In this regard, the dissent also incorrectly states

that Special Agent Kowalski never testified that Burgos said Gobern

possessed the cocaine base when he left New York. See post at 53-54,

69-71. Here, Special Agent Kowalski's testimony established that

Burgos had knowledge of the conspiracy to distribute cocaine base:

Burgos knew that Gonzales and Gobern were transporting cocaine

base, that it was being transported from New York City to Greensboro, that Gobern was the one who carried the wrapped Christmas

package containing the cocaine base, and that the cocaine base was

to be distributed at North Carolina A&T University.6 In conjunction

with this testimony, the evidence that Burgos's left index fingerprint

was on the sealing mechanism of the plastic bag containing the

cocaine base and Burgos's testimony that there were no materials to

wrap or rewrap the package aboard the train permitted the jury to

infer that Burgos assisted in packaging the cocaine base in New York.

Even the dissent acknowledges that the time Gobern was in the train

station lavatory was too brief an interlude for him to transfer the 78.5

grams of cocaine base into the plastic bag before concealing it behind

the commode. The dissent stubbornly refuses to acknowledge, however, that, based on this evidence, a rational juror could conclude that

_________________________________________________________________

6 In this regard, the dissent speculates on why the Government never

prosecuted Gonzales, attempting to bolster its position based on a negative. The record is silent regarding whether Gonzales is even alive or if

the Government is cognizant of his whereabouts.

 25
Burgos participated in the conspiracy by packaging the cocaine base

in New York, even if this conclusion were not compelled. The issue

is not whether "[a] rational juror would disagree on this too," post at

69, but whether a rational juror could find that Burgos assisted in

packaging the cocaine base in New York, and a rational juror certainly could. Indeed, we find this to be the rational conclusion: How

else could Burgos's fingerprint be found on an item inside a wrapped

package that was wrapped since the inception of the trip from New

York? Regardless, the jury was free to draw either conclusion, and

substantial evidence supports the conclusion of guilt.

Despite the evidence and inferences establishing Burgos's knowing

and willful participation in the conspiracy, our dissenting colleagues

assert that we have excised from conspiracy jurisprudence the

requirement that substantial evidence support the jury's finding that

a defendant knowingly and willfully participated in a conspiracy. To

the contrary, we specifically recognize this requirement of the

offense, see supra p. 10; 12, and explain that the Government must

prove it beyond a reasonable doubt, see supra pp. 11-12. While reciting the fundamental tenets of conspiracy law, the dissent fails to apply

the principles that a defendant may be a member of a conspiracy without knowledge of or participation in its full scope and that a conspiracy need not be a tightly-knit organization run with precision. Only

by viewing Special Agent Kowalski's testimony and all the evidence

adduced at trial in a light most favorable to Burgos and by faulting

the Government for not disproving Burgos's contradictory and vague

explanations for the fingerprint evidence can the dissent conclude as

a matter of law that no rational jury could draw the foregoing inferences. Viewed in a light most favorable to the Government, the evidence established that Burgos was not a mere traveling companion,

but a knowing, willful participant in this narcotics distribution conspiracy.

The dissent also would enlarge the scope of our sufficiency review

by asking whether Burgos's conviction can be sustained in the

absence of proof that his explanation for his fingerprint was false. In

the dissent's view, the Government shouldered the burden of producing "evidence that Gobern did not put the cocaine into an empty plastic bag bearing Burgos's fingerprint during the twelve hour train ride

from New York," post at 70. Subscribing to this view, however, con-

 26
travenes well-established principles of criminal law. In Holland, the

Supreme Court eschewed the contention that the "Government[ ] . . .

must exclude every reasonable hypothesis other than that of guilt."

Holland, 348 U.S. at 139. We cannot, therefore, find the evidence of

guilt insufficient simply because it failed to disprove every possible

hypothesis regarding Burgos's purported innocence. The jury considered Burgos's defense as well as the Government's case, and our limited task in reviewing the verdict is simply to assure that substantial

evidence supports it.

To reiterate, Burgos's fingerprint was impressed on the sealing

mechanism of a plastic bag wrapped in aluminum foil, packed in

newspaper, and encased in a wrapped package. At trial, Burgos

explained the presence of his fingerprint on the sealing mechanism of

the plastic bag by testifying that Gobern apparently consumed a sandwich Burgos prepared, and, unbeknownst to Burgos, placed the

cocaine base in the plastic bag without leaving any of his own fingerprints on it. Burgos testified further that although he sat in front of

Gobern during the trip from New York, he never saw the Christmas

package prior to disembarking from the train. To accept Burgos's rendition of the testimony, the jury would have had to find that Gobern

saved the plastic bag, entered the lavatory, tore open the Christmas

package and the cereal box, unwrapped the newspaper and aluminum

foil from the cocaine base, placed the cocaine base in the plastic bag

without leaving his fingerprint, wrapped the plastic bag in aluminum

foil, swaddled the aluminum foil in the newspaper, and secreted the

cocaine base behind the commode. The implausibility of this transpiring within two minutes runs deep, as the dissent concedes. Regardless, while this account of events strikes us as highly implausible,

material for our purposes is the fact that the jury disbelieved this version of the events, and its disbelief was rational, particularly given the

context and content of the testimony of Officers Blanks and Kaplan

and Special Agent Kowalski.

The competing versions of the evidence related by Special Agent

Kowalski and Burgos establish another, critical circumstance supporting Burgos's participation in the conspiracy. Special Agent Kowalski

testified that Burgos told him that he knew Gonzales and conversed

with both Gonzales and Gobern on the train from New York. Additionally, Special Agent Kowalski testified that Burgos admitted that

 27
he knew cocaine base was in the Christmas package that Gobern possessed from the commencement of the trip in New York and that the

cocaine base was slated for distribution at a college in Greensboro,

North Carolina. As a law enforcement agent, Special Agent Kowalski's testimony was likely compelling to the jury. See United States

v. Arra, 630 F.2d 836, 849 (1st Cir. 1980) (stating that the testimony

of the arresting officers alone would have been sufficient to sustain

the conviction); United States v. Carney, 468 F.2d 354, 359 (8th Cir.

1972) (noting that the testimony of the arresting law enforcement

agent was, standing alone, sufficient to affirm the conviction). The

testimony of Special Agent Kowalski would have been sufficient to

convict Burgos of conspiracy, regardless of his status as a law

enforcement officer. Here, we are presented with the classic example

of two witnesses offering conflicting testimony regarding the same

events, and the jury decided which testimony to accept and which to

reject; the testimony that was accepted by the jury in this appeal is

sufficient to support the verdict. Indeed, at oral argument, counsel for

Burgos conceded that for a jury to accept the testimony of Special

Agent Kowalski and Officers Blanks and Kaplan is not irrational.

Given this concession, especially when coupled with Burgos's fingerprint on the plastic bag, Burgos can hardly challenge his conspiracy

conviction.

In stark contradiction to Special Agent Kowalski's testimony, however, Burgos denied making certain statements to Special Agent Kowalski, claiming that he never told him that Gobern carried the

Christmas package on the train or that he knew Gobern and Gonzales

were traveling to Greensboro to distribute cocaine base. Burgos could

offer no explanation for the blatant discrepancies between his and

Special Agent Kowalski's testimony. Burgos's contradicted testimony

and his own conflicting responses on direct and cross-examination

undoubtedly undermined his credibility, thereby supporting the inference that Burgos attempted to disavow his participation in the conspiracy. Relating implausible, conflicting tales to the jury can be

rationally viewed as further circumstantial evidence indicating guilt.

See, e.g., Wright, 505 U.S. at 295-96 (explaining that a defendant's

contradictory, vague, and evasive answers contribute to a finding of

guilt); United States v. Johnson, 64 F.3d 1120, 1128 (8th Cir. 1995)

(observing that lying to law enforcement agents contributes to a finding of guilt), cert. denied, 116 S. Ct. 971 (1996); United States v.

 28
Stanley, 24 F.3d 1314, 1321 (11th Cir. 1994) (noting that conflicting

statements and implausible stories are indicia of guilt and enter the

calculus for sustaining conspiracy convictions); United States v.

Casilla, 20 F.3d 600, 606 (5th Cir.) (explaining that trial testimony

that is inconsistent with various statements made to customs officials,

especially when accompanied by other circumstantial evidence, gives

rise to a reasonable inference that a defendant participated in a narcotics conspiracy and attempted to conceal his participation), cert.

denied, 115 S. Ct. 240 (1994); United States v. Solis, 841 F.2d 307,

310 (9th Cir. 1988) (stating that "making up an implausible cover

story" is a circumstance contributing to a finding of guilt in connection with a drug conspiracy). Not only did Burgos deny making statements to Special Agent Kowalski, he also offered the jury an

implausible explanation for his fingerprint.

Indeed, in United States v. Bennett, 848 F.2d 1134, 1139 (11th Cir.

1988), the Eleventh Circuit recognized "that a defendant's implausible explanation may constitute positive evidence in support of a jury

verdict," and noted that such a finding was particularly apropos

because the defendants' "explanation of their activities was dubious,

if not wholly incredible." Observing that juries take account of incredible tales, Bennett explained that "[a] reasonable jury might well disbelieve the explanation and conclude that the [defendants] were lying

in an attempt to cover up illegal activities." Id. A defendant's credibility is a material consideration in establishing guilt, and if a defendant

"take[s] the stand . . . and denies the charges and the jury thinks he's

a liar, this becomes evidence of guilt to add to the other evidence."

United States v. Zafiro, 945 F.2d 881, 888 (7th Cir. 1991), aff'd, 506

U.S. 534 (1993). As the Wright Court explained, "[i]n evaluating [the

defendant's] testimony . . . the jury was entitled to discount [the

defendant's] credibility . . . [a]nd if the jury did disbelieve [the defendant], it was further entitled to consider whatever it concluded to be

perjured testimony as affirmative evidence of guilt." Wright, 505 U.S.

at 296. Preposterous as Burgos's testimony may seem, the jury could

have believed it, but obviously the jury did not; instead, the jury

believed Burgos's admissions to Special Agent Kowalski. Determining credibility of witnesses and resolving conflicting testimony falls

within the province of the factfinder, not the reviewing court. See

United States v. Bailey, 444 U.S. 394, 414-15 (1980). The dissent

mistakenly declines to recognize that the jury evidently believed Bur-

 29
gos perjured himself. As the Wright court explained, his perjured testimony could have been viewed as affirmative evidence of his guilt.

Thus, Burgos's lying on the stand may have aided in establishing the

fact that he was guilty.

Yet another circumstance supporting a guilty verdict is the fact that

Burgos, Gobern, and Gonzales boarded a train from New York City.

We have steadfastly acknowledged that New York City is a known

source city for contraband drugs.7 See, e.g., United States v.

McFarley, 991 F.2d 1188, 1192 (4th Cir.), cert. denied, 114 S. Ct.

393 (1993); United States v. Alpert, 816 F.2d 958, 961 (4th Cir.

1987); United States v. Gooding, 695 F.2d 78, 83 (4th Cir. 1982); see

also United States v. Carter, 985 F.2d 1095, 1097 (D.C. Cir. 1993)

(noting that New York City is a source city for drugs); United States

v. Glover, 957 F.2d 1004, 1006 (2d Cir. 1992) (same); United States

v. Cooke, 915 F.2d 250, 251 (6th Cir. 1990) (same); United States v.

Harris, 482 F.2d 1115, 1116 (3d Cir. 1973) (same). Additionally, all

three men traveled together on the train, Gobern and Gonzales scheduled the same return trip, and Burgos's travel plans enabled him to

accompany them,8 which is circumstantial evidence bolstering an

inference of guilt in a drug distribution conspiracy. See, e.g., Johnson,

64 F.3d at 1128; United States v. Sloley, 19 F.3d 149, 151 n.1 (4th

Cir.), cert. denied, 114 S. Ct. 2757 (1994); Sanchez, 961 F.2d at 1178;

United States v. Hanson, 801 F.2d 757, 765 (5th Cir. 1986). This circumstantial evidence assumes greater import here because Burgos's

testimony that the men traveled separately was contradicted by Spe-

_________________________________________________________________

7 Contrary to the dissent's mischaracterization, we do not hold that

traveling from a source city automatically renders one a narcotics conspirator. See post at 72-73. Rather, we simply note that traveling from a

source city is a valid consideration that enters the calculus of guilt.

8 The dissent takes us to task by stating that there is no evidence that

Burgos scheduled the same return trip. See post at 73. While we do not

know if Burgos scheduled the same return trip because his ticket was

returned to him, we do know Burgos testified that he planned to stay in

Greensboro one day, then travel to Laurinburg to play basketball with

some friends. We also know that Burgos's travel plans enabled him to

travel with Gobern and Gonzales at least on the trip down from New

York to Greensboro where North Carolina A&T University is located,

the distribution point of the cocaine base.

 30
cial Agent Kowalski, tending to illustrate further Burgos's guilt. See

Hastamorir, 881 F.2d at 1557 (holding that the jury was free to disregard the defendant's false testimony that he did not participate in the

conspiracy); United States v. Eley, 723 F.2d 1522, 1525 (11th Cir.

1984) (concluding that a defendant's outlandish explanation of events

constitutes positive evidence supporting a guilty verdict).

Moreover, although not dispositive, Burgos's presence at the scene

of criminal activity "is material and probative in the totality of the[ ]

circumstances" in determining his participation in a conspiracy.

United States v. Jenkins, 779 F.2d 606, 612 (11th Cir. 1986); see also

United States v. Saadeh, 61 F.3d 510, 525 (7th Cir.) (stating that

while mere presence alone is insufficient to support a conspiracy conviction, presence coupled with an act that advances the conspiracy

suffices to sustain conviction), cert. denied, 116 S. Ct. 521 (1995).

Recognizing the import of presence at a crime scene, the Eleventh

Circuit opined that conspiracy convictions will be sustained "when

the circumstances surrounding a person's presence at the scene of

conspiratorial activity are so obvious that knowledge of its character

can fairly be attributed to him." United States v. Figueroa, 720 F.2d

1239, 1246 (11th Cir. 1983). The dissent would denigrate the relevance of Burgos's presence on the train, accusing the majority of sustaining a conviction based on mere association. Singling out this one

fact, the dissent ignores all the other evidence establishing Burgos's

guilt. The jury may well have viewed Burgos's continued presence in

the train car as more than mere presence or association. In view of all

the evidence before it, the jury reasonably may have questioned why

Burgos remained for so long in the presence of known narcotics traffickers.

Not only did Burgos, Gobern, and Gonzales travel together from

a source city, but it was Burgos who purchased Gobern's and Gonzales's tickets so that the three men could travel aboard the same

train, adding more circumstantial evidence tending to prove Burgos's

participation in the conspiracy. See, e.g., James, 40 F.3d at 873

(observing that purchasing airline tickets for conspirators is cogent

circumstantial evidence tending to establish a conspiracy and illustrating that not every participant in a drug trafficking conspiracy actually

sells drugs, but many participants furnish goods or services for the

conspiracy, such as providing moneyorders, firearms, or shelter);

 31
Sanchez, 961 F.2d at 1178 (noting, in sustaining the sufficiency of the

evidence to support a drug conspiracy conviction, that the defendant

procured the plane tickets for her coconspirators on the same flight).

Furthermore, according to his own testimony, Burgos was acquainted

with Gonzales, all three men apparently were from the same neighborhood in New York, and Burgos and Gonzales exchanged telephone numbers. This type of familiarity constitutes further

circumstantial evidence that Burgos participated in the conspiracy.

See James, 40 F.3d at 873 (recognizing that acquaintance and ability

to contact others associated with the conspiracy permits a jury to conclude that a defendant participated in the conspiracy); United States

v. Disla, 805 F.2d 1340, 1349 (9th Cir. 1986) (appreciating that

friendship among coconspirators contributes to a finding of conspiracy); United States v. Meester, 762 F.2d 867, 882 (11th Cir.) (observing that acquaintance with coconspirators tends to support conspiracy

conviction), cert. denied, 474 U.S. 1024 (1985); see also United

States v. Martinez, 987 F.2d 920, 922 (2d Cir. 1993) (noting the

import of exchanging telephone numbers among conspirators and that

this ability to exchange numbers contributes to a finding of guilt in

a narcotics distribution conspiracy); United States v. Gomez, 927 F.2d

1530, 1532 (11th Cir. 1991) (observing that coconspirators possessed

each others' telephone numbers).

The dissent attempts to undermine the probity of this evidence by

asserting that there was "no evidence presented showing that Burgos

. . . lied to the police about knowing Gobern and Gonzales." Post at

81. We do not find this statement accurate. Special Agent Kowalski

testified that Burgos said he knew Gonzales, but not Gobern. Burgos

testified somewhat contradictorily, however, that he only knew Gonzales as "Tone," and subsequently that he told Special Agent Kowalski that he did not know either man, but only knew Gonzales from the

area. In addition to the contradictory nature of Burgos's accounts, the

veracity of his assertions is further thwarted by the fact that the men

also attempted to depart the terminal in a single taxicab; thus, they not

only left New York in tandem and traveled simultaneously, but also

attempted to depart from the train terminal collectively.

Implying that we are filling in evidentiary gaps with inferences of

guilt, the dissent impermissibly draws inferences of Burgos's innocence based on supposed gaps in the evidence and the argument that

 32
the discrepancies between Special Agent Kowalski's and Burgos's

conflicting rendition of the events are only inferences. See post at 76-

80 & n.11. For instance, the dissent contends no witnesses testified

that Burgos knew Gobern before the train trip, presented no evidence

that Burgos planned to travel with Gobern and Gonzales, and adduced

no proof that Burgos previously had engaged in narcotics trafficking

or carried implements of the trafficking trade. These alleged "gaps"

in the evidence do not exist, however. First, Burgos testified that he

knew Gonzales from areas they frequented in New York and Gobern

was also around those areas. Moreover, we have demonstrated that

the jury could infer that Burgos and Gobern planned to travel

together: Burgos purchased Gobern's and Gonzales's train tickets,

traveled with Gobern and Gonzales, provided them with food, and

remained in their company rather than distance himself from them.

We also disagree with the characterization that the discrepancies

between Burgos's and Special Agent Kowalski's testimony are inferences. Burgos's conflicting stories and Special Agent Kowalski's

direct testimony are not inferences, but are positive statements that

Burgos knowingly and willingly participated in the conspiracy. The

final contention that Burgos had no prior narcotics convictions is not

an element of the crime of conspiracy and hence not a burden of the

Government to prove. Under that rationale, no one could breach the

criminal law for the first time for want of a criminal history. Inexplicably, the dissent harps on these circumstances, yet ignores the overwhelming circumstantial evidence of guilt. Our task, however, is to

review the evidence that was presented, not as the dissent has done

to prescribe the evidence that it would have liked to have seen elicited.

Concluding that the evidence is insufficient to sustain Burgos's

conviction, the dissent ignores the abundance of direct and circumstantial evidence. Conspicuously, for example, the dissent fails to

mention that Burgos exchanged telephone numbers with Gonzales.

Also, the dissent refuses to acknowledge that Burgos's testimony was

evasive and self-contradictory -- incredibly incriminating characteristics -- and that his counsel conceded at oral argument that the guilty

verdict was not irrational. The dissent also disingenuously attempts to

ascribe innocuous purposes to surreptitious conduct. For instance, the

dissent states that Burgos summoned the cab solely for himself, but

Burgos testified that "we were all standing outside. . . . [it] was me

 33
Gobern, and Gonzale[s]." (J.A. at 126R.) This also begs the question

of why Burgos "made the cab reservations," (J.A. at 126-S,) if, as he

stated, his friend Robert Lewis was to pick him up at the train station

upon his telephone call, but when Lewis did not answer, Burgos called Henry DeGraffenreed, who said he would be there in thirty minutes. In addition, Officer Blanks testified explicitly that all "three

subjects, including Mr. Burgos, was [sic] getting in the back of the

cab together." (J.A. at 50.) The dissent also questions Burgos's guilt

because he carried no cash. The jury may have perceived Burgos as

escorting his cash source, i.e., the cocaine base, to Greensboro where

he and his coconspirators would convert it into cash; in short, the jury

reasonably could find that he had no cash because the sale of the

cocaine base had not occurred.

While some of this evidence, if viewed in isolation, could appear

innocuous, "such [an] argument misses the mark; our inquiry is

whether any reasonable jury could find the elements of the crime, on

these facts, beyond a reasonable doubt, not whether[Burgos] is plausibly not guilty." Aichele, 941 F.2d at 764. Construing all of this evidence and its reasonable inferences in favor of the Government leads

inexorably to the conclusion that substantial evidence supports Burgos's conspiracy conviction. The sum total of the evidence presented

reveals: (1) physical evidence forensically proving that Burgos's fingerprint was on the sealing mechanism of the cocaine base-filled plastic bag in the Christmas package that Gobern carried from New York;

(2) Burgos knew that the Christmas package contained cocaine base

and that it was slated for distribution at a college in Greensboro,

North Carolina; (3) Burgos purchased Gonzales's and Gobern's train

tickets; (4) the Christmas package and a cereal box were ripped open

on the sink, newspaper was scattered about the lavatory, and this

newspaper was from the same edition of the same newspaper wrapped

around the aluminum foil that swaddled the plastic bag with Burgos's

fingerprint that contained the cocaine base; (5) Burgos was familiar

with Gonzales and conversed with Gobern and Gonzales during the

train trip, as well as provided them with nourishment; (6) Burgos's

testimony was riddled with conflicting, equivocal responses and was

contradicted by Special Agent Kowalski; (7) Burgos, Gobern, and

Gonzales attempted to leave the train terminal in a single taxicab.

Based on the plethora of evidence, we conclude that a rational jury

could find beyond a reasonable doubt that Burgos participated in the

 34
conspiracy; indeed, we would be hard-pressed to accept that a jury

could conclude otherwise. In this respect, the dissent disregards yet

another precept of conspiracy jurisprudence: We do not analyze evidence in a piecemeal manner, but must consider its cumulative effect,

which is precisely what we have accomplished. Conversely, the dissent dissects the direct and circumstantial evidence by separately dismissing selective pieces, not by analyzing all of the evidence in

context. We, therefore, affirm Burgos's conviction for conspiracy to

possess with intent to distribute cocaine base. 9

C.

We now analyze the evidence to determine whether it was sufficient to support Gobern's conspiracy conviction. As an initial matter,

much of the evidence and rationale that compels us to affirm the conspiracy conviction against Burgos applies equally to Gobern. We conclude that, based on the evidence presented at Gobern's trial, a

rational jury could find, beyond a reasonable doubt, that Gobern conspired with another to distribute cocaine base in North Carolina;

indeed, his role in the conspiracy is not challenged, nor does he challenge his conviction and sentence of possession.

As we previously observed, Burgos, Gobern, and Gonzales traveled together on the train from New York, and traveling together is

probative evidence of the totality of the circumstances used to prove

a conspiracy. See, e.g., Johnson, 64 F.3d at 1128; Sloley, 19 F.3d at

151 n.1. Although they traveled in tandem, Burgos, Gobern, and Gonzales separated once at the terminal, yet another inculpating feature

of conspiratorial conduct, see United States v. Cardenas, 9 F.3d 1139,

1157 (5th Cir. 1993), cert. denied, 114 S. Ct. 2150 (1994) (noting, in

a drug importation conspiracy case, that the defendants traveled

_________________________________________________________________

9 Ironically, the dissent concludes, see post at 72-73 & 80, that there

was sufficient evidence to convict Gobern of conspiracy based on the

sequentially numbered tickets, and the facts that Gobern and Gonzales

traveled together, they returned on the same date, they denied knowing

one another, and Gobern transported the cocaine. All of this evidence,

plus a good bit more, was adduced at Burgos's trial, yet anomalously, the

dissent concludes that with regard to Burgos, this same evidence is insufficient to sustain his conviction.

 35
together, but then separated when crossing the United States border),

because it tends to establish that Burgos, Gobern, and Gonzales knew

one another but consciously sought to evade detection of their

acquaintance. After seemingly separating, Burgos, Gobern, and Gonzales then regrouped and attempted to enter the same taxicab. In addition to traveling with Burgos and Gonzales, Gobern traveled from

New York City, a known source city for controlled substances, see

McFarley, 991 F.2d at 1192. These pieces of circumstantial evidence

also help comprise the totality of the circumstances necessary to support Gobern's conspiracy conviction.

There is still more. Gobern's demeanor also constituted inculpating

circumstantial evidence. For instance, Gobern surveyed with interest

Officer Blank's conversation with Gonzales. The jury rationally could

have perceived such countersurveillance as participating in the conspiracy, see United States v. Penagos, 823 F.2d 346, 348 (9th Cir.

1987), and as circumstantial evidence tending to establish the existence of a conspiracy, see United States v. Sasson, 62 F.3d 874, 887

(7th Cir. 1995), cert. denied, 116 S. Ct. 953 (1996); Saadeh, 61 F.2d

at 525; Brooks, 957 F.2d at 1147. Indeed, the Seventh Circuit has concluded that countersurveillance standing alone is sufficient to convict

a defendant of conspiracy to possess with intent to distribute drugs.

See United States v. Pazos, 993 F.2d 136, 137 (7th Cir. 1993). Countersurveillance provides a conspiracy with an essential service in

ensuring that the conspiracy is cloaked and executed in a manner to

avoid exposure. In addition to his countersurveillance, Gobern was

nervous, and nervous behavior is further circumstantial evidence from

which a jury reasonably could infer guilt. See Stanley, 24 F.3d at

1321; Cardenas, 9 F.3d at 1157; United States v. Pineda-Ortuno, 952

F.2d 98, 102 (5th Cir.), cert. denied, 504 U.S. 928 (1992); United

States v. Ayala, 887 F.2d 62, 69 (5th Cir. 1989).

In addition to the surfeit of evidence discussed thus far, both Gobern and Gonzales produced train tickets bearing the name "Anthony

Flores." Employing an alias and attempting to conceal identity reinforces the conclusion of the existence of a conspiracy. See, e.g.,

Johnson, 64 F.3d at 1128 (giving false names is evidence of guilt in

a drug distribution conspiracy); James, 40 F.3d at 873 (noting that in

reviewing a sufficiency challenge to a conspiracy conviction the fact

that the defendant purchased tickets for coconspirators under an alias

 36
constituted evidence of guilt); Sanchez, 961 F.2d at 1178 (concluding

that a defendant's use of an alias to purchase plane tickets for her

coconspirators on the same flight is evidence of guilt in a conspiracy);

Ayala, 887 F.2d at 69 (observing that a defendant's purchasing three

train tickets, two of which bore identical names, aids in establishing

sufficient evidence to support a conviction); Disla, 805 F.2d at 1349

(ruling that concealing the identity of participants to a criminal enterprise is probative evidence demonstrating guilt in a conspiracy);

Hanson, 801 F.2d at 765 (elucidating that two defendants bearing the

same alias contributed to finding of guilt in a narcotics conspiracy).

Moreover, the tickets held by Gobern and Gonzales bore consecutive

numbers, were purchased on the same date, at the same locale, for the

same destination and the same return date. Possessing sequentially

numbered tickets is further indicia of the conspiracy. See United

States v. Fuentes-Moreno, 895 F.2d 24, 26 (1st Cir. 1990) (noting that

airline tickets purchased the same date in the same place and bearing

sequential numbers is probative circumstantial evidence of a conspiracy); cf. also United States v. Montas, 41 F.3d 775, 777 (1st Cir.

1994) (noting that consecutive baggage-claim check numbers and

adjacent seat assignments contribute to a finding of guilt), cert.

denied, 115 S. Ct. 1986 (1995); United States v. Cipriano, 765 F.2d

610, 612 (7th Cir. 1985) (per curiam) (holding that possessing

sequentially numbered airline tickets contributes to totality of circumstances warranting probable cause for arrest). Moreover, Officer

Blanks testified that the men traveled together and that they attempted

to leave the train terminal by boarding a single taxicab.

Of course, a highly material piece of evidence establishing a conspiracy and Gobern's participation in it was that Burgos's fingerprint

was found on the sealing mechanism of the plastic bag containing the

cocaine base that was in the Christmas package Gobern carried. The

fact that Burgos's fingerprint was on an interior article wrapped in a

package held by Gobern from the inception of the train trip could

demonstrate to a rational finder of fact that Burgos and Gobern conspired to distribute the cocaine base. Based on this circumstantial evidence, a rational jury could find beyond a reasonable doubt the

existence of a conspiracy and Gobern's connection to it. Viewing this

evidence and the reasonable inferences drawn from it in the light most

favorable to the Government, we conclude that substantial evidence

supports Gobern's conviction for conspiracy.

 37
Volume 2 of 2

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 93-5899

FRANK KAHLED BURGOS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 93-5919

ALEXIO BURNARD GOBERN,

Defendant-Appellant.

Appeals from the United States District Court

for the Middle District of North Carolina, at Greensboro.

N. Carlton Tilley, Jr., and William L. Osteen, Sr.,

District Judges.

(CR-93-13)

Argued: September 26, 1995

Decided: August 23, 1996

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,

HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,

HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,

Circuit Judges.

_________________________________________________________________
Affirmed in part and dismissed in part by published opinion. Judge

Williams wrote the majority opinion, in which Chief Judge Wilkinson

and Judges Russell, Widener, Wilkins, Niemeyer, Hamilton, and Luttig 

joined. Judge Michael wrote an opinion concurring in part and 

dissenting in part, in which Judges Hall, Murnaghan, Ervin, and Motz 

joined.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Norman Cochran, Assistant Federal Public

Defender, Greensboro, North Carolina, for Appellant Burgos;

Joseph R. Giaramita, Jr., Brooklyn, New York, for Appellant Gobern. Michael Francis Joseph, Assistant United States Attorney,

Greensboro, North Carolina, for Appellee. ON BRIEF: Todd M. Peebles, PEEBLES & SCHRAMM, Winston-Salem, North Carolina, for

Appellant Gobern. Walter C. Holton, United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

OPINION

IV.

We now consider Burgos's conviction for possession with intent to

distribute cocaine base and aiding and abetting that crime, in violation

of 18 U.S.C.A. § 2 (West 1969) and 21 U.S.C.A. § 841(a)(1) (West

1981). Mounting the same challenge to the possession conviction as

to the conspiracy conviction, Burgos posits that the evidence proving

possession and aiding and abetting is insufficient to support his conviction. Again, we disagree and affirm the jury's finding that substantial evidence supports his conviction.

The elements necessary to prove a conviction for possession with

intent to distribute cocaine base are: (1) possession of the cocaine

base; (2) knowledge of this possession; and (3) intention to distribute

the cocaine base. See United States v. Nelson, 6 F.3d 1049, 1053 (4th

Cir. 1993), cert. denied, 114 S. Ct. 2142 (1994). Possession may be

"actual or constructive, and it may be sole or joint." Id. Thus,

 40
"[p]ossession need not be exclusive, but may be shared with others."

Laughman, 618 F.2d at 1077 (alteration in original) (internal quotation marks omitted). Constructive possession may be proved by demonstrating "that the defendant exercised, or had the power to exercise,

dominion and control over the item." United States v. Rusher, 966

F.2d 868, 878 (4th Cir.), cert. denied, 506 U.S. 926 (1992). Like conspiracy, "[c]onstructive possession may be established by either circumstantial or direct evidence." Nelson, 6 F.3d at 1053. The requisite

intent to distribute may be inferred if the quantity of drugs is greater

than would be used for personal consumption. See Roberts, 881 F.2d

at 99. Multiple persons possessing a large quantity of drugs and working in concert sufficiently establish constructive possession. See

United States v. Watkins, 662 F.2d 1090, 1097-98 (4th Cir. 1981),

cert. denied, 455 U.S. 989 (1982).

A defendant is guilty of aiding and abetting if he has "knowingly

associated himself with and participated in the criminal venture."

United States v. Winstead, 708 F.2d 925, 927 (4th Cir. 1983). In order

to prove association, the Government must establish that the defendant participated in the principal's criminal intent, which requires that

a defendant be cognizant of the principal's criminal intent and the

lawlessness of his activity. See id. As we explained in United States

v. Arrington, 719 F.2d 701 (4th Cir. 1983), cert. denied, 465 U.S.

1028 (1984), "[t]o be convicted of aiding and abetting, `[p]articipation

in every stage of an illegal venture is not required, only participation

at some stage accompanied by knowledge of the result and intent to

bring about that result.'" Id. at 705 (quoting United States v.

Hathaway, 534 F.2d 386, 399 (1st Cir.), cert. denied, 429 U.S. 819,

(1976)) (second alteration in original). The same evidence establishing a defendant's participation in a conspiracy may support a conclusion that a defendant participated in the principal's unlawful intent to

possess and distribute drugs, thereby proving guilt of aiding and abetting as well. See id. at 705-06.

The focus concerning the possession and aiding and abetting count

centers on Burgos's fingerprint being impressed on the plastic bag

containing the cocaine base, evidence that Burgos maintains is insufficient to support his conviction. Relying on United States v. Van

Fossen, 460 F.2d 38 (4th Cir. 1972), and United States v. Corso, 439

F.2d 956 (4th Cir. 1971) (per curiam), Burgos contends that circuit

 41
precedent mandates a reversal of the possession and aiding and abetting conviction. In Corso, Corso was convicted of entering a federal

credit union with the intent to commit larceny. See Corso, 439 F.2d

at 956-57. The only evidence demonstrating Corso's guilt was a

matchbook cover with Corso's fingerprint on it that was used to jam

a door lock in the building where the credit union offices were

located, a broken piece of a screw driver, a screw driver located in the

credit union, and testimony that Corso purchased goods on credit by

making cash down payments soon after the burglary of the credit

union had occurred. Id. at 957. With the exception of the matchbook

cover, Corso's fingerprints were not found at the scene of the crime,

and there was no proof establishing when Corso's fingerprints were

impressed on the matchbook cover. Id. Explaining that "there was no

direct evidence as to ownership or possession of either screwdriver"

and "no direct evidence to show that [Corso's] fingerprints were

impressed upon the [matchbook] cover at the time of the burglary,"

the court reversed Corso's conviction, summarily stating that "[t]he

probative value of an accused's fingerprints upon a readily movable

object is highly questionable, unless it can be shown that such prints

could have been impressed only during the commission of the crime."

Id.

Relying on Corso, in Van Fossen we reversed Van Fossen's conviction for possessing engraving plates with intent to use them to

counterfeit federal reserve notes and printing and photographing

images of the notes. Van Fossen, 460 F.2d at 39. The evidence on

which Van Fossen was convicted consisted of his fingerprints on an

engraving plate and a photographic negative used in counterfeiting.

Id. at 39-40. In reversing Van Fossen's conviction, we focused on the

temporal nature of when the crime was committed and when Van

Fossen's fingerprints were impressed on the plate and negative. Id. at

41. We concluded that "[b]ecause no evidence in the record suggest[ed] that the [finger]prints were impressed when the crime was

committed," the jury's verdict was based "on conjecture and suspicion." Id.

According to Burgos, Corso and Van Fossen compel reversal of his

conviction because they establish that his fingerprint on the plastic

bag lacks sufficient probative value to demonstrate participation in

the conspiracy. In United States v. Harris, 530 F.2d 576 (4th Cir.

 42
1976) (per curiam), however, we distinguished the principles articulated in Corso and Van Fossen. Harris was convicted of bank robbery

on the basis of fingerprints taken from the holdup note he presented

to the bank teller and Harris's confession. Id. at 579. Relying on

Corso, Harris challenged his conviction, asserting that the evidence

was insufficient to sustain the conviction. Id. We rejected his assertion, explaining:

Harris contends that the fingerprints identified as his on the

written [holdup] note presented to the bank teller could have

been impressed on the paper before the demand was written

or presented. Our holding in Corso is not dispositive of this

question because that opinion merely states that when fingerprint evidence is of questionable probative value, it cannot sustain a conviction if it is the only substantive evidence

presented. In the present case, the fingerprint evidence was

in addition to the incriminating admissions by the defendant

as shown by the government's evidence.

Id. See also United States v. Bryant, 454 F.2d 248, 250-51 (4th Cir.

1972) (concluding that the discovery of fingerprints apparently

recently impressed in an area that was generally inaccessible to the

public constituted sufficient evidence to sustain the conviction). Similarly, in United States v. Anderson, 611 F.2d 504, 509 (4th Cir. 1979),

we followed Harris's characterization of Corso and rejected the

defendant's contention "that fingerprints on movable objects per se

lack probative value." In this regard, the dissent's characterization of

Anderson as "reconciling" these cases is perplexing.

While the reasoning and holdings of Corso and Van Fossen have

been limited by subsequent decisions, we conclude nonetheless that

they are inapt with respect to Burgos's possession conviction. Unlike

Corso and Van Fossen, the fingerprint evidence was not the only

incriminating evidence establishing Burgos's guilt; rather, there was

an abundance of evidence establishing that Burgos was guilty of possession with intent to distribute cocaine base, namely the evidence

establishing that Burgos was guilty of conspiracy. Because sufficient

evidence proved that Burgos participated in the conspiracy to possess

with intent to distribute cocaine base, proof of constructive possession

 43
is sufficient to convict him of possession with intent to distribute. See

Laughman, 618 F.2d at 1076.

The dissent's maintaining that the evidence was insufficient to sustain the possession and aiding and abetting counts is erroneous for the

same reasons that it is erroneous regarding the conspiracy conviction.

Contrary to the dissent's incorrect assertion, we do provide a basis for

our holdings, concluding that the dissent fails to understand possession and aiding and abetting law. First, Burgos's fingerprint was

found on the sealing mechanism of the plastic bag containing 78.5

grams of cocaine base, a quantity substantially inconsistent with personal use. The dissent is simply incorrect as a matter of fact and law

that the only evidence establishing Burgos's guilt was the fingerprint.

Second, Special Agent Kowalski testified that Burgos told him that

he knew Gobern's Christmas package contained cocaine base, and he

knew that Gobern and Gonzales planned to distribute the cocaine base

in Greensboro. Third, Burgos facilitated the journey by providing

tickets and sustenance, as well as protecting the cocaine base by sitting nearby during the entire trip. Fourth, in addition to this conclusive testimony, Burgos attempted to conceal his knowledge of the

cocaine base by denying that he made such statements to Special

Agent Kowalski. Viewing all of this evidence and that discussed earlier in Part III.B. in the light most favorable to the Government and

construing all reasonable inferences in favor of the Government, we

conclude that a rational jury could convict Burgos of possession with

intent to distribute cocaine base. Under Arrington, the same evidence

proving Burgos's participation in the conspiracy supports the jury's

conclusion that he exercised constructive possession with intent to

distribute the cocaine base and thus was guilty of aiding and abetting

the crime of possession with intent to distribute cocaine base. Accordingly, we affirm Burgos's conviction of possession with intent to distribute cocaine base and aiding and abetting.

V.

We now turn to Gobern's sentence. Gobern was convicted of conspiracy pursuant to 21 U.S.C.A. §§ 841(a)(1), 846 and of possession

pursuant to 18 U.S.C.A. § 2 and 21 U.S.C.A. § 841(a)(1). A conviction rendered pursuant to § 841(a)(1) involving more than fifty grams

of cocaine base results in a mandatory minimum ten-year prison sen-

 44
tence pursuant to 21 U.S.C.A. § 841(b)(1)(A) (West Supp. 1995).

Gobern, therefore, incurred a statutory mandatory minimum sentence

of ten years. With a total offense level of thirty-two and a criminal

history category of one, Gobern achieved a guideline range of 121-

151 months imprisonment, and the district court sentenced Gobern to

121 months imprisonment.10 Pursuant to 18 U.S.C.A. § 3742 (West

1985), Gobern challenges his sentence on two grounds. First, he

asserts that the district court erred in failing to depart downward

based on his single act of aberrant behavior. See U.S.S.G., Ch.1, Pt.

A, 4(d), p.s. Second, Gobern asserts for the first time on appeal that

the statutory sentencing ratio for cocaine powder versus cocaine base

offenses violates the Equal Protection Clause. Gobern's first challenge to his sentence is not appealable, and his second challenge is

meritless.

A.

Gobern contends first that the district court erred in failing to

depart downward based on a single act of aberrant behavior. According to Gobern, his participation in the conspiracy and his possession

of the cocaine base are isolated acts; he specifically relies on the fact

that he has no prior connection with drug trafficking activity. The district court disagreed with this characterization of Gobern's participation and the crimes, observing that Gobern's participation in the

crimes was planned and calculated, as evidenced by the previously

wrapped Christmas package, the well-planned trip, the consecutive

numbers on the train tickets having the same destination and duration,

and Burgos's obtaining the tickets and providing food; therefore, the

district court declined to depart downward.

Here, Gobern committed an offense that statutorily mandated a

minimum of 120 months imprisonment, and the district court sentenced him to 121 months imprisonment under the Sentencing Guide-

_________________________________________________________________

10 Even though he was sentenced pursuant to the Sentencing Guidelines, Gobern does not contend that the Sentencing Guidelines violate the

Equal Protection Clause; rather, Gobern limits his challenge solely to the

statutory mandatory minimum contained in § 841(b)(1)(A). Regardless,

the rationale undergirding the Sentencing Guidelines and § 841(b)(1)(A)

is the same, and neither violates the Equal Protection Clause.

 45
lines. Guideline departures do not apply to a sentence mandated by

statute, see United States v. Crittendon, 883 F.2d 326, 331 (4th Cir.

1989), so the most that the district court could have departed was one

month, a fact of which the district court was aware. In sentencing

Gobern, the district court recognized that it had the authority to depart

downward, but it refused, explaining that the circumstances did not

warrant a downward departure. If a district court is cognizant of its

authority to depart, but does not do so, such a refusal to depart downward from the guideline range is simply not appealable. See United

States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 498 U.S.

819 (1990). Accordingly, we dismiss this challenge to Gobern's sentence.

B.

Gobern's second challenge to his sentence is that it violates the

Equal Protection Clause. This challenge was not raised in the district

court, and while we generally do not address issues in the first

instance on appeal, we can address an issue not raised in the district

court if plain error would result from our declining review. See United

States v. Olano, 507 U.S. 725, 732-33 (1993). We review this challenge because a sentence that violates the Constitution would be

plainly erroneous as one imposed in violation of law. See Bayerle,

898 F.2d at 31; see also 18 U.S.C.A. § 3742(a)(1) (West 1985) (providing that a sentence that violates the law is appealable). Determining whether Gobern's sentence violates the Equal Protection Clause

entails resolution of a legal issue, which successive courts freely

review, see Murphy, 35 F.3d at 145.

Subsection 841(b)(1)(A) provides for a mandatory minimum tenyear sentence for violations of § 841(a)(1) involving more than fifty

grams of cocaine base, and results in a sentencing disparity between

offenses involving cocaine base versus those involving cocaine powder. Under § 841(a)(1), one unit of cocaine base is equated with 100

units of cocaine powder; thus, possessing a much smaller quantity of

cocaine base results in a lengthier sentence than possessing the same

quantity of cocaine powder. Gobern, who describes himself as a "person of color," posits that the sentencing disparity violates the Equal

Protection Clause because Caucasians are more frequently convicted

 46
of offenses involving cocaine powder, while "persons of color" are

more frequently convicted of offenses involving cocaine base.

We have consistently sustained the constitutionality of sentencing

disparity between cocaine base and cocaine powder based on an equal

protection challenge, rejecting repeatedly the argument that Burgos

now seeks to advance. See, e.g., United States v. Fisher, 58 F.3d 96,

99-100 (4th Cir.) (sentencing disparity under § 841(b)(1)(A) does not

violate the Equal Protection Clause), cert. denied, 116 S. Ct. 329

(1995); United States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994)

(sentencing disparity under the Sentencing Guidelines does not violate the Equal Protection Clause); United States v. D'Anjou, 16 F.3d

604, 612 (4th Cir.) (same), cert. denied, 114 S. Ct. 2754 (1994);

United States v. Bynum, 3 F.3d 769, 774 (4th Cir. 1993) (same), cert.

denied, 114 S. Ct. 1105 (1994); United States v. Thomas, 900 F.2d 37,

39-40 (4th Cir. 1990) (sentencing disparity under§ 841(b)(1)(A) does

not violate the Equal Protection Clause). We observed in D'Anjou

that "[e]very federal appellate court to consider the equal protection

challenge under the racial disparity theory has agreed with this conclusion." D'Anjou, 16 F.3d at 612; see also Bynum, 3 F.3d at 774 n.7

(collecting cases rejecting Gobern's contention). Despite these precedents, Gobern invites us to reconsider this conclusion based on possible amendments to the Sentencing Guidelines, but we decline his

invitation -- as did Congress. Congress specifically rejected the Sentencing Commission's proposed amendment to lessen the penalty disparity between cocaine-base versus cocaine-powder offenses

premised on quantity of drugs:

[Congress] disapproves the Commission's recommended

amendment to equalize the penalties for distributing crack

and powder cocaine, thereby preserving the current guideline sentences for crack cocaine trafficking offenses. . . .

. . . .

On June 29, 1995, the Judiciary Committee's Crime Subcommittee held a hearing to examine the Sentencing Commission's recommended changes to the sentencing

guidelines that would equalize penalties for similar quantities of crack and powder cocaine. Many of the hearing wit-

 47
nesses, including members of the Sentencing Commission,

acknowledged important differences between crack and

powder cocaine: . . . .

On June 22, 1995, the Judiciary Committee's Crime Subcommittee heard compelling testimony from law enforcement leaders . . . . They warned Congress, in unmistakable

terms, not to lower crack penalties to those of powder

cocaine offenses, because of the more destructive nature of

the crack market.

H.R. Rep. No. 104-272, 104th Cong., 1st Sess. 141, reprinted in 1995

U.S.C.C.A.N. 335, 336-37. We shall not endorse what Congress has

specifically rejected.

Gobern's sentence does not violate the Equal Protection Clause

because "the law does not discriminate on its face[,] . . . there is no

argument of discriminatory application of the law[,] . . . nor evidence

advanced that a discriminatory purpose entered the hearts of those

who enacted [the law]." D'Anjou, 16 F.3d at 612. Failing to demonstrate such a showing, we review only to determine if § 841(b)(1)(A)

has a rational basis, which it does:

Congress could rationally have concluded that distribution

of cocaine base is a greater menace to society than distribution of cocaine powder and warranted greater penalties

because it is less expensive and, therefore, more accessible,

because it is considered more addictive than cocaine powder

and because it is specifically targeted toward youth.

Thomas, 900 F.2d at 39-40. Accordingly, we conclude that Gobern's

contention that his sentence violates the Equal Protection Clause is

without merit.

VI.

Considering the totality of the circumstances and viewing the evidence in the light most favorable to the Government, we conclude that

a rational jury certainly could have found substantial evidence beyond

 48
a reasonable doubt to convict Burgos and Gobern of conspiracy to

possess with intent to distribute cocaine base and to convict Burgos

of possession with intent to distribute cocaine base and aiding and

abetting. Accordingly, we affirm Burgos's and Gobern's conspiracy

convictions; likewise, we affirm Burgos's possession and aiding and

abetting conviction. Regarding Gobern's sentence respecting the

downward departure, because the district court was cognizant of its

ability to depart downward, its refusal to do so is not appealable; thus,

we dismiss that portion of the appeal. We reject Gobern's contention

that his sentence violates the Equal Protection Clause. Accordingly,

his sentence is affirmed.

AFFIRMED IN PART AND DISMISSED IN PART

 49
MICHAEL, Circuit Judge, dissenting in part and concurring in part:

Nearly a half century ago, Justice Jackson expressed concern that

the history of the law of conspiracy "exemplifies the `tendency of a

principle to expand itself to the limit of its logic.'" Krulewitch v.

United States, 336 U.S. 440, 445 (1949) (Jackson, J., concurring)

(quoting B. Cardozo, The Nature of the Judicial Process 51). Justice

Jackson further warned that:

The unavailing protest of courts against the growing habit

to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in addition thereto, suggests that

loose practice as to this offense constitutes a threat to fairness in our administration of justice.

Id. at 445-46. Unfortunately, I believe that today's majority opinion

confirms the fears expressed by Justice Jackson. The majority has

turned the law of conspiracy--at least in the context of alleged drug

conspiracies--into the law of "mere association." Burgos's conviction

stands simply because he hung around with the wrong people on a

 50
long train ride. Indeed, as of today there seems to be little that does

not allow inference of conspiracy. I, therefore, respectfully dissent

insofar as the majority opinion affirms Burgos's conviction.

I do believe that based on traditional principles of conspiracy law,

there was sufficient evidence presented at Gobern's trial to show that

he was involved in a conspiracy with Gonzales--though not with

Burgos. I, therefore, concur in the judgment, but not the reasoning, of

the majority insofar as it sustains Gobern's conspiracy conviction. I

also concur in the majority's treatment and disposition of the sentencing issues raised by Gobern.

I.

A.

At Burgos's trial the following facts were presented to the jury. On

January 25, 1993, three men, Alexio B. Gobern, Anthony Gonzales,

and Frank K. Burgos, traveled on the same train from New York City

to Greensboro, North Carolina. Gobern, Gonzales, and Burgos got off

the train at the AmTrak station in Greensboro. Burgos was first off,

followed by Gonzales and then Gobern. They did not walk together

on the platform. Gobern carried a Christmas-wrapped package and a

blue knapsack. Although the package was not elaborately wrapped, it

had no loose ends.

As part of routine drug interdiction work, Police Officer Daniel

Kaplan stopped and questioned Burgos before he reached the terminal

building. Burgos produced his train ticket, which was in his name.

Police Officer Berkley Blanks stopped and questioned Gonzales, and

Gobern paused to watch the questioning of Gonzales. Officer Blanks

and Gonzales then walked to the front of the terminal building, and

Gobern followed and watched. At Officer Blanks' request, Gonzales

produced his train ticket, which was in the name of"Anthony Flores."

By this time, Officer Kaplan had finished questioning Burgos and had

joined Officer Blanks and Gonzales in front of the terminal building.

Gobern then entered the terminal building and walked to the men's

restroom with the wrapped package and the knapsack. Approximately

 51
one to two minutes later, Gobern came out of the restroom with the

knapsack but without the wrapped package. No one else entered or

exited the restroom during this time. After Gobern exited the restroom, Officer Kaplan stopped and questioned him. Officer Kaplan

asked for Gobern's train ticket, which was also in the name of "Anthony Flores." Both Gobern and Gonzales denied that they knew each

other or that they were traveling together. However, both Gobern's

and Gonzales's tickets were in sequential order, bore the same name,

were issued on January 25, and had identical return dates of January

27.

Officers Kaplan and Blanks then searched the restroom after telling

Officer Cameron Piner to watch Gobern, Gonzales, and Burgos.

Inside the restroom the officers saw the Christmas package and a

cereal box torn open on the sink, and they found a balled-up New

York City newspaper, The Daily News, behind the commode. Inside

the newspaper, the officers found aluminum foil; inside the aluminum

foil was a ziploc plastic bag containing "crack" cocaine. After finding

the cocaine, Officers Kaplan and Blanks went outside and saw Gobern, Burgos, and Gonzales standing near a pay phone. There was a

cab with an open door, and it appeared that Gobern, Burgos, and Gonzales were preparing to leave. Gobern was arrested, and Burgos and

Gonzales were asked to go to the police station. At the police station

all three men were questioned and fingerprinted. Special Agent

Wayne Kowalski of the DEA conducted the questioning and fingerprinting. At the end of the evening Gobern was detained, and Burgos

and Gonzales were released.

The Greensboro Police sent the wrapping paper, cereal box, newspaper, and aluminum foil to a North Carolina lab for fingerprint analysis. Agent Kowalski sent the cocaine and plastic bag to a DEA lab

in Miami for analysis. Three of Gobern's prints were found on the

wrapping paper, and one of Burgos's prints was found on the plastic

bag. It could not be determined when the cocaine was placed in the

bag or when Burgos touched the bag. The aluminum foil was not

tested for cocaine residue.

At Burgos's trial Agent Kowalski testified that when he questioned

Burgos on January 25, Burgos said (1) that he (Burgos) knew Gonzales but did not know Gobern, (2) that Burgos "drove down on the

 52
train with Gonzales and Gobern from New York," (3) that "Gobern

had the package throughout the trip down," (4) that Gobern and Gonzales "had dope although Burgos did not see it," and (5) that Gobern

and Gonzales "were going to sell the dope at the A&T University."

In addition, the Government and the majority claim that Agent

Kowalski testified that Burgos said (1) that he knew that crack

cocaine was in the wrapped package and (2) that Gobern had the

crack cocaine inside the wrapped package from the time he left New

York. Govt. Br. at 12; ante at 5, 25-26 & 27-28. While it is evident

from the trial transcript that the Assistant United States Attorney

repeatedly attempted to elicit such testimony from Agent Kowalski,

a reading of the transcript shows that Agent Kowalski never in fact

so testified:

Q. Did [Burgos] say whether he talked to Gonzales and

Gobern while they were on the train?

A. Yes, he did. He rode with them. He told me that Mr.

Gobern was the one who carried the package wrapped as a

Christmas package.

Q: All right. Did he make any statements as to how long

Mr. Gobern had this package?

A: He said Mr. Gobern had the package throughout the

trip down.

Q: All right. And did he tell you anything about what Mr.

Burgos or Mr. Gonzales -- what Mr. Gonzales or Mr. Gobern told him about what was in the package during the train

trip?

A: What Mr. Burgos told me was that he knew that they

had the dope although he didn't see it. And it was his understanding -- this is what he told me -- it was his understanding they were going to sell the dope at the A&T University.

* * * *

 53
Q: Did you ask him whether he knew that there was crack

cocaine in the package?

A: Yes. He said he knew they had it, but he actually didn't

see it.

That last question and answer are the closest that Agent Kowalski

came to testifying that Burgos said that the crack was inside the package throughout the trip. Yet, Agent Kowalski's answer of "yes" is

only to the question of whether he (Kowalski) asked Burgos whether

he (Burgos) knew that there was crack in the package. Agent Kowalski never testified, as the majority mistakenly contends, that Burgos

admitted that he (Burgos) "knew cocaine base was in the Christmas

package that Gobern possessed from the commencement of the trip

in New York . . . ." Ante at 28. Nor can it be said, based on Agent

Kowalski's testimony or any other evidence in Burgos's trial, that the

plastic bag was inside the wrapped package "since the inception of the

trip from New York[.]" Id. at 26.

In his defense Burgos testified that he was currently attending college in New York City and that he was traveling to North Carolina

to visit friends. He planned to spend a day in Greensboro, but his ultimate destination was Laurinburg Institute, a prep school he had

attended.

Burgos boarded the train in New York City. While near the front

of the ticket line at Penn Station, he was approached by Anthony

Gonzales. Burgos knew Gonzales from his neighborhood as "Tone,"

though he did not know Gonzales's last name. Because he was running late, Gonzales asked Burgos to get his (Gonzales's) tickets, and

he gave Burgos the ticket money and a piece of paper with the reservation numbers. The tickets were in the name of"Anthony Flores,"

and not knowing Gonzales's last name, Burgos thought nothing of it.

He gave Gonzales the tickets, boarded the train, and sat down by himself. After he was seated, Gonzales, Gobern, and two young women

came by. Gonzales introduced Burgos to Gobern. Gonzales, Gobern,

and the two women sat behind Burgos on the train.

The trip from New York to Greensboro lasted approximately

twelve hours, and Burgos had brought sandwiches and snacks to eat.

 54
He had packed the food in ziploc bags. He offered some of his food

to Gonzales, Gobern, and the women. Eventually, Gonzales and Gobern ate some of the sandwiches. Burgos did not see what they did with

the ziploc bags after they ate the food. According to Burgos, the

ziploc bags were of the same type as the one found containing the

cocaine.

Burgos further testified that the conversation on the train consisted

of "general stuff: music, girls." Burgos also said that he exchanged

telephone numbers with Gonzales, though he did not exchange numbers with Gobern.

In contrast to the testimony provided by Agent Kowalski, Burgos

testified that there was no conversation about drugs on the train and

that he did not see the wrapped package until Gonzales and Gobern

were being questioned by the police at the train station. Burgos

explained that he called a cab after Officer Blanks told him in a hostile manner to leave the train station. He called the cab for himself,

not for Gobern and Gonzales. When the cab arrived, Burgos moved

to open the door, but Officer Piner stopped him and told him not to

leave. After Burgos stepped back to the platform, Officers Kaplan and

Blanks came out of the train station and arrested Gobern.

Robert Lewis, a friend of Burgos's and a student at North Carolina

A&T University, testified that Burgos called him a few days before

the train trip. Burgos told Lewis that although he was coming down

to visit him in Greensboro, his main purpose was to visit Laurinburg

Institute. In addition, Vernon Johnson, a dormitory director at Laurinburg Institute testified that Burgos called him in January 1993 and

said that he (Burgos) was coming down to Laurinburg Institute to

play basketball, which he had done in the past. Burgos's final witness

was a character witness, Frank McDuffy, the headmaster of Laurinburg Institute. McDuffy testified that he and Burgos had developed

a relationship like that between father and son, that Burgos was in his

opinion truthful, and that Burgos would visit Laurinburg when he was

in North Carolina.

Based on this evidence, the jury convicted Burgos of conspiracy to

possess cocaine base with intent to distribute. The jury also convicted

 55
Burgos of possession of cocaine base with intent to distribute. He was

sentenced to 131 months imprisonment.

B.

At Gobern's trial many of the same facts were also presented to the

jury. For example, the jury was told that Gobern entered the AmTrak

terminal building and walked to the men's restroom with the wrapped

package and the knapsack; that Gobern came out of the restroom with

the knapsack but without the wrapped package; and that after Gobern

left the restroom, Officer Kaplan stopped and questioned him. In

addition, there was testimony that when questioned both Gobern and

Gonzales denied that they knew each other or that they were traveling

together. Also, the two train tickets introduced at Gobern's trial

showed that both his and Gonzales's tickets were in sequential order,

bore the same name, were issued on January 25, and had identical

return dates of January 27. And, of course, Gobern's jury was presented with evidence showing that the crack cocaine was found in the

restroom.1

The evidence presented at Gobern's trial was not, however, identical to that presented at Burgos's trial. At Gobern's trial Agent Kowalski did not testify concerning statements made by Burgos at the police

station. Thus, Gobern's jury was not told that Burgos said (1) that he

(Burgos) knew Gonzales but did not know Gobern, (2) that Burgos

rode down on the train with Gonzales and Gobern from New York,

(3) that Gobern had the package throughout the trip down, (4) that

Gobern and Gonzales had dope although Burgos did not see it, and

(5) that Gobern and Gonzales were going to sell the dope at the A&T

University.

In addition, Gobern did not testify at his trial and neither did Burgos or Gonzales.

_________________________________________________________________

1 Although the fingerprint evidence was also introduced at Gobern's

trial, and the Government said that Burgos was involved in the alleged

conspiracy, the Government's main pitch to Gobern's jury was that Gobern and Gonzales conspired together to possess and distribute the crack

cocaine.

 56
The jury convicted Gobern of conspiracy to possess cocaine base

with intent to distribute and possession with intent to distribute

cocaine base. Gobern was sentenced to 121 months imprisonment.

II.

At the outset, I emphasize that I agree with the majority's conclusion that once a conspiracy has been established, the Government

need only show a "slight connection" between the defendant and the

established conspiracy. See ante at 16-17. In addition, while the

majority does not expressly state what it believes to constitute a

"slight connection," I assume the majority agrees that to establish a

"slight connection" the Government must present substantial evidence

showing that the defendant knowingly and wilfully participated in the

conspiracy. Although we have not always been completely faithful to

this standard, see United States v. Truglio, 731 F.2d 1123 (4th Cir.),

cert. denied, 469 U.S. 862 (1984), it is the law of this circuit and others. United States v. Chindawongse, 771 F.2d 840, 844 (4th Cir.

1985) ("The evidence of the `slight connection' . . . must be of a quality which will reasonably support a conclusion that the defendant wilfully participated in the unlawful plan with intent to further some

object or purpose of the conspiracy.") (quoting United States v.

Miranda-Uriarte, 649 F.2d 1345, 1349-50 (9th Cir. 1981)), cert.

denied, 474 U.S. 1085 (1986); United States v. Laughman, 618 F.2d

1067, 1075 (4th Cir.) ("Simply proving the existence of a conspiracy

. . . cannot sustain a verdict against an individual defendant. There

must also be a showing of that defendant's knowledge of the conspiracy's purpose and some action indicating his participation.") (citations omitted), cert. denied, 447 U.S. 925 (1980); see United States

v. Brooks, 957 F.2d 1138, 1147 (4th Cir.) (upholding drug conspiracy

conviction when there was "ample evidence establishing the active

participation of [the defendants] in the conspiracy") (emphasis

added), cert. denied, 505 U.S. 1228 (1992). See also United States v.

Campbell, 985 F.2d 341, 345 (7th Cir. 1993) ("To establish that participatory link, the Government must offer sufficient evidence to demonstrate that the defendant knew of the conspiracy and that he

intended to join and associate himself with its criminal design and

purpose."); United States v. Cloughessy, 572 F.2d 190, 191 (9th Cir.

1977) (To establish a slight connection, "[e]vidence has to be produced to show that [the defendant] had knowledge of the conspiracy

 57
and acted in furtherance of it. Mere casual association with conspiring

people is not enough.") (citations omitted).

With that said, however, I believe that the majority has confused

the concept of what elements make a conspiracy with the principles

by which we determine whether sufficient evidence has been presented to establish those elements. Thus, I cannot agree with the

majority's sweeping statement that "our conspiracy jurisprudence" is

a collection of "elastic, ad hoc principles." Ante at 16.

No doubt because of the covert nature of most conspiracies, the

particular evidence upon which the Government may rely to establish

a conspiracy and a defendant's connection thereto often differs from

case to case. And, of course, the Government may rely upon circumstantial evidence to prove a conspiratorial agreement, a defendant's

knowledge of the conspiracy, and a defendant's participation in it. Id.

at 10. Co-conspirators do not often advertise the fact that they are

involved in an illegal endeavor, and it is uncommon for them to

memorialize their agreement in a written document. See Iannelli v.

United States, 420 U.S. 770, 777 n.10 (1975) ("The agreement need

not be shown to be explicit. It can instead be inferred from the facts

and circumstances of the case.") (citation omitted).2

Likewise, because conspiracies have "an elusive quality," ante at

11-12, and are often "loosely-knit, haphazard, or ill-conceived," id.,

the conspiracy concept has an elastic quality to it. See Krulewitch,

336 U.S. at 445 (Jackson, J., concurring) ("This case illustrates a pres-

_________________________________________________________________

2 Of course, the fact that the agreement need not be explicit (i.e., the

agreement may be tacit) does not mean that the agreement need not be

specific, as the majority incorrectly suggests. See ante at 15 (mistakenly

citing Iannelli as support for the proposition that the conspiratorial agreement need not be specific). And, I am not "misperceiv[ing] the difference

between conspiracy to commit the crime and the activity that can constitute participation in the conspiracy." See id. at 15-16 n.2. Again, the

Government may prove its case based on circumstantial evidence, but

that evidence (to be sufficient) must be such that a rational juror could

believe beyond a reasonable doubt that there existed a specific agreement

to commit a specific crime and that the defendant knowingly and wilfully

participated in the conspiracy.

 58
ent drift in the federal law of conspiracy which warrants some further

comment because it is characteristic of the long evolution of that elastic, sprawling and pervasive offense.").

Yet, the elasticity of the concept does not in turn soften the principles by which we determine whether substantial evidence has been

presented showing that a crime has been committed. In addition, the

elasticity of the concept does not relieve the Government of its burden

to prove each element of the crime beyond a reasonable doubt.

Accordingly, though the law of conspiracy is flexible in its application, it is not boundless. United States v. Bell, 954 F.2d 232, 236 (4th

Cir. 1992), cert. denied, 510 U.S. 835 (1993). As we have rightly recognized in the past, under the black letter law of conspiracy:

[M]ore than being a bad person with intent to commit a

crime is required [before a conspiracy conviction can be

sustained]. 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.

Id. at 237-38 (emphasis in original); see United States v. Giunta, 925

F.2d 758, 764 (4th Cir. 1991) ("[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.") (citations omitted);

United States v. Pupo, 841 F.2d 1235, 1238 (4th Cir.) (en banc)

(agreeing that "mere knowledge, acquiescence, or approval of a crime

is not enough to establish that an individual is part of a conspiracy to

distribute drugs. Nor is mere presence at the scene of a distribution

of drugs sufficient to prove participation in a conspiracy.") (citations

omitted), cert. denied, 488 U.S. 842 (1988). See also Laughman, 618

F.2d at 1074 ("[T]he gist or gravamen of the crime of conspiracy is

an agreement to effectuate a criminal act.") (emphasis in original;

citation omitted).

To hold, as the majority does, that "elastic, ad hoc principles" govern the application of the law of conspiracy to the facts of a case is

to condone decisionmaking without clear principles-- decisionmak-

 59
ing that is particularly ill-suited for determining whether any crime

has been committed. Indeed, one need look no further than the cases

presented here to be certain that under the majority's approach any

fact that shows that individuals associated together (or were simply

acquainted) may be turned into evidence showing the existence of a

conspiracy and a defendant's participation therein. I will mention just

a few examples at this point (the rest are discussed in detail infra): as

the majority sees it, (1) that Burgos was acquainted with Gonzales,

(2) that Burgos, Gonzales, and Gobern were from the same neighborhood, and (3) that Burgos and Gonzales exchanged phone numbers

are all facts showing that Burgos participated in a conspiracy. See

ante at 32. While I believe one would be hard-pressed to say that

these facts show anything more than mere association, and a very

weak association at that, under the majority's "elastic, ad hoc principles," these are all facts that establish Burgos's guilt.

Needless to say, analysis such as that represents the kind of "loose

practice" that Justice Jackson specifically warned against in

Krulewitch, a practice that "constitutes a threat to fairness in our

administration of justice." 336 U.S. at 446 (Jackson, J., concurring).

See also Bell, 954 F.2d at 237 (recognizing that courts should have

"a significant reluctance to apply a conspiracy conviction to individuals whose most heinous crime is choosing the wrong friends"); United

States v. Falcone, 109 F.2d 579, 581 (2d Cir.) (Hand, J.) ("so many

prosecutors seek to sweep within the drag-net of conspiracy all those

who have been associated in any degree whatever with the main

offenders. That there are opportunities of great oppression in such a

doctrine is very plain, and it is only by circumscribing the scope of

such all comprehensive indictments that they can be avoided."), aff'd,

311 U.S. 205 (1940). In short, reliance on "elastic, ad hoc principles"

allows for conspiracy convictions to be based on no more than a

defendant's "mere association" with alleged co-conspirators, rather

than substantial evidence establishing the existence of a conspiracy

and a defendant's knowing and wilful participation therein.

Moreover, I cannot agree with the majority that our decisions in

either United States v. Giunta or United States v. Bell are incorrectly

decided. These decisions properly stated and applied basic principles

of conspiracy law. Yet, the majority has now chosen to overrule them

because, according to the majority, (1) the decision in Giunta "ap-

 60
pli[es] . . . `heightened vigilance' to reverse a [conspiracy] conviction," ante at 13, suggesting "a heightened standard for reviewing

conspiracy convictions," id. at 14; (2) the decision in Bell (along with

Giunta) "cannot be squared with" the law of conspiracy, id. at 15; and

(3) "Bell can be read as increasing the quantitative connection

required to tie a defendant to a conspiracy," id. at 17.

The majority is, however, flatly wrong to perceive the decisions in

Giunta and Bell as creating any conflict with the established law of

conspiracy. And, in fact, any perceived conflict is simply a manifestation of the majority's own misunderstanding about the law of conspiracy and our role in reviewing conspiracy convictions.3

_________________________________________________________________

3 Since Giunta was decided in 1991, we have cited the case in sixteen

published decisions, and we have never once before today either criticized or questioned its analysis or statements of law. Of those sixteen

published decisions, thirteen involved conspiracy convictions. We

upheld convictions in ten of those thirteen decisions, see United States

v. Heater, 63 F.3d 311 (4th Cir. 1995); United States v. Johnson, 54 F.3d

1150 (4th Cir.), cert. denied, 116 S. Ct. 266 (1995); United States v.

Harris, 39 F.3d 1262 (4th Cir. 1994); United States v. Kennedy, 32 F.3d

876 (4th Cir. 1994), cert. denied, 115 S. Ct. 939 (1995); United States

v. Moore, 11 F.3d 475 (4th Cir. 1993), cert. denied, 114 S. Ct. 1864

(1994); United States v. Banks, 10 F.3d 1044 (4th Cir. 1993), cert.

denied, 114 S. Ct. 1850 (1994); United States v. Mills, 995 F.2d 480 (4th

Cir.), cert. denied, 510 U.S. 904 (1993); United States v. Chambers, 985

F.2d 1263 (4th Cir.), cert. denied, 510 U.S. 834 (1993); United States v.

Baker, 985 F.2d 1248 (4th Cir. 1993), cert. denied, 114 S. Ct. 682

(1994); United States v. Marby, 953 F.2d 127 (4th Cir. 1991), cert.

denied, 504 U.S. 914 (1992); and we reversed convictions in three of

those decisions, see United States v. Dozie, 27 F.3d 95 (4th Cir. 1994);

United States v. Winfield, 997 F.2d 1076 (4th Cir. 1993); United States

v. Bell, supra.

Since Bell was decided in 1992, we have cited the case in ten published decisions, and like Giunta, we have never once before today either

criticized or questioned its analysis or statements of law. Of those ten

published decisions, eight involved conspiracy convictions. We upheld

convictions in seven of those eight decisions, see United States v.

Lamarr, 75 F.3d 964 (4th Cir. 1996); United States v. Morsley, 64 F.3d

907 (4th Cir. 1995), cert. denied, 116 S. Ct. 749 (1996); United States

v. Heater, supra; United States v. Capers, 61 F.3d 1100 (4th Cir. 1995);

 61
In Giunta, a case involving an alleged drug conspiracy, we

reviewed the entire trial record and found that it was a "shadowy one"

and that there was little evidence of conduct, independent of conversations between investigative agents and the alleged conspirators,

pointing to the requisite criminal agreement that the law of conspiracy

demands. 925 F.2d at 765. We expressed concern that"[i]n this circumstance, the danger of guilt being found on the basis of speculation

from mere association between criminally disposed people, related

criminal behavior, and like considerations is acute." Id. We then cited

Justice Jackson's opinion in Krulewitch and Judge Goldberg's opinion in United States v. Caro, 569 F.2d 411, 418 (5th Cir. 1978), saying that:

In the decade since Judge Goldberg wrote in Caro , conspiracy has of course continued a "potent and oft-used

weapon in the prosecutorial arsenal," particularly in connection with the drug trafficking prosecutions that increasingly

dominate federal criminal dockets. And Justice Jackson's

concerns about the special risks of unfairness in conspiracy

prosecutions in general have simply been magnified in drug

conspiracy prosecutions as understandable outrage and frustration have charged the "war on drugs" presently underway

as avowed national policy.

Giunta, 925 F.2d at 766.

Contrary to what the majority believes, see ante at 12-13, these

"pronouncements" only recognized the obvious. That is, to guard

against the danger of convicting a defendant based on speculation

rather than fact--a danger especially acute when conspiracy is

charged--we must take care to ensure that sufficient evidence is presented to the jury. The majority is now bothered that in Giunta we

_________________________________________________________________

United States v. Johnson, supra; United States v. Mills, supra; United

States v. Chambers, supra; and we reversed in one, see United States v.

Winfield, supra.

If (as the majority suggests) I believe that "conspiracy is a Frankenstein's monster that has grown out of control," ante at 13, neither Giunta

or Bell have been used to curb its growth.

 62
chose the words "heightened vigilance" to make this clear. But far

from suggesting that it is appropriate to apply "a heightened standard

for reviewing conspiracy convictions," id. at 14, we did just the opposite. After stating the facts in the light most favorable to the Government, we went on to state and apply the appropriate standard of

review that governs sufficiency of the evidence challenges on appeal.

And, of course, that standard demands that we not only draw all reasonable inferences in favor of the Government, but that we also look

to the entire record, including both the evidentiary strengths and

weaknesses of the Government's case, to determine whether the convictions could be sustained. As we stated quite clearly and comprehensively:

[W]e do not of course suggest that the judiciary may under

any circumstances properly view conspiracy prosecutions

with general disfavor, nor skew the judicial function at the

trial or appellate level to reflect that disfavor. Conspiracy is

a crime no less than are "substantive" offenses; the Jackson

v. Virginia standard applies equally to assessing proof of

both. Our assessment of the sufficiency of the evidence to

convict of conspiracy here must therefore of course proceed

as it would in respect of any substantive offense. There is

no special, more stringent standard in conspiracy. What is

appropriate, however, is the recognition, carrying forward

Justice Jackson's in Krulewitch, that the very "elasticity" of

the conspiracy concept may and frequently does tend to produce more "slippery" facts in proof than do prosecutions for

less "elastic" substantive offenses, with a corresponding

greater danger that speculation rather than reason may be

required to make the necessary leaps of inferences to find

guilt. Heightened vigilance to guard against the increased

risks of speculation, though not a heightened standard, is

warranted in conspiracy prosecutions.

Our assessment of the evidence here reveals exactly the

degree of "slipperiness" of factual proof that Justice Jackson

feared as a general phenomenon and that Judge Goldberg

found present in Caro. Our conclusion -- a raw judgment

call at odds with that of the district court -- is that because

of its cumulative weakness in various respects, the evidence

 63
here could only lead to a finding of guilt by an unacceptable

process of raw speculation rather than by a reasoned process

of inferring guilt beyond a reasonable doubt.

Because our ultimate assessment is one of cumulative

weakness of the evidence in various respects, we analyze it

in terms of those specific weaknesses. We precede the analysis proper with the observation that our earlier account of

the facts has been set out in considerable detail and in light

of the appropriate evidence assessment standard, precisely

to serve as a framework for analysis. That is to say, the facts

as recited are essentially those developed by the evidence

considered in the light most favorable to the government.

Giunta, 925 F.2d at 766 (emphasis added; footnote omitted).4

As for Bell, there is nothing remarkable about requiring the Government to show the existence of "a specific agreement to commit a

specific crime" before a conspiracy conviction can be obtained. See

_________________________________________________________________

4 As in Giunta, the cases presented here ultimately come down to "a

raw judgment call" about the sufficiency of the Government's evidence

against Burgos and Gobern. As I explain infra, I believe that "call"

requires that Burgos's conviction be reversed and that Gobern's be

affirmed. Surprisingly, the majority evidently believes that once the facts

are presented and the law is properly stated and applied, the ultimate

decision of whether sufficient evidence has been presented to the jury is

not a judgment call. See ante at 14 & 18-19 n.4. Yet, if deciding whether

sufficient evidence has been presented to the jury is not a judgment call,

then I am not sure what is.

Moreover, in making this judgment call, I have not, as the majority

believes, "disingenuously attempt[ed] to ascribe innocuous purposes to

surreptitious conduct." Ante at 33. Rather than being disingenuous, my

analysis is based on the existing law in this circuit and the evidence presented at the separate trials of Burgos and Gobern. Burgos's counsel made

a similar point at oral argument, explaining that based on the evidence

presented a jury could infer that a conspiracy existed between Gobern

and Gonzales, and that Burgos had knowledge of the conspiracy, but that

a jury could not reasonably infer Burgos's participation in the Gobern/

Gonzales conspiracy. Compare id. (asserting that Burgos's "counsel conceded at oral argument that the guilty verdict was not irrational").

 64
954 F.2d at 237-38 (emphasis in original). Suppose, for instance, law

enforcement agents discover that drugs are being stored and sold at

a certain location, go to that location, and find that one individual is

selling drugs and another individual is using drugs. There is, of

course, no conspiracy shown from these facts. Both individuals are

guilty of some crime, the seller for possession with intent to distribute

and distribution, and the user for simple possession. Neither, however, is guilty of conspiracy because there is no evidence showing that

they specifically agreed to commit any crime. Nor, for that matter, is

there any evidence of knowing and wilful participation in a conspiracy.5

In addition, our decision in Bell does not "increas[e] the quantitative connection required to tie a defendant to a conspiracy." See ante

at 17. In Bell we held that the defendants' conspiracy convictions had

to be reversed because the Government failed to present sufficient

evidence showing that there existed a specific agreement to commit

a specific crime. 954 F.2d at 238 ("The evidence is far too general to

support a conviction for any concerted action incident to a specific

conspiracy."). Therefore, other than saying that "mere association" is

not enough, id. at 237, we had no occasion to discuss what "quantitative connection" the Government must show between an existing conspiracy and a defendant before the defendant's conspiracy conviction

can be obtained.

In sum, a defendant's connection with an existing conspiracy is not

established unless there is substantial evidence showing that the

defendant voluntarily took part in some action that affirmatively links

him with the conspiracy and showing that he knowingly and wilfully

joined the conspiracy. E.g. United States v. Chindawongse, 771 F.2d

_________________________________________________________________

5 Our decision in United States v. Morsley, 64 F.3d 907 (4th Cir. 1995),

cert. denied, 116 S. Ct. 749 (1996), is not to the contrary. In that case,

there existed an established conspiracy to buy and sell unregistered firearms for both cocaine and cash. Id. at 919. Because there was no question that a conspiratorial agreement existed among the individuals selling

the unlicensed firearms, we analyzed the case to determine whether the

defendants knowingly and wilfully participated in that conspiracy. Id.

Compare ante at 16 (asserting that Morsley holds that "there need not be

evidence of a specific agreement in order to sustain a conspiracy conviction").

 65
840, 844 (4th Cir. 1985), cert. denied, 474 U.S. 1085 (1986). To hold

otherwise allows the Government to convict and punish a person

based upon that person's mere association with conspirators. That has

never been the law.

I will now apply these basic and long-established conspiracy principles to the facts presented at the separate trials of Burgos and Gobern.

A.

At Burgos's trial the Government presented substantial evidence to

the jury showing that Burgos associated with Gobern and Gonzales.

I think it clear, however, that the Government failed to present substantial evidence that Burgos knowingly and wilfully participated in

a Gobern/Gonzales drug conspiracy to possess crack cocaine with

intent to distribute.

Viewed in the light most favorable to the Government, the evidence at Burgos's trial established the existence of a conspiracy

between Gobern and Gonzales. Most importantly, Agent Kowalski's

testimony about Burgos's alleged admissions shows that Gobern and

Gonzales traveled together from New York City with the intent to distribute crack cocaine in Greensboro, North Carolina.6

_________________________________________________________________

6 Agent Kowalski's testimony on this point does, however, raise a

question that was not explored at Burgos's trial. If, when questioned by

Agent Kowalski on the night of Gobern's arrest, Burgos did in fact

implicate Gobern and Gonzales in a conspiracy to possess and distribute

crack cocaine, why then was Gonzales released by the police? Indeed, to

this day Gonzales has never been indicted on the crimes for which Burgos and Gobern were charged. Of course, Burgos's alleged admissions

to Agent Kowalski were, among other things, not in furtherance of the

alleged conspiracy and, thus, would not likely be admissible at a trial of

Gonzales (which may also explain why Agent Kowalski did not testify

as to Burgos's alleged admissions at Gobern's trial). Nevertheless, at the

time Burgos made his alleged admissions to Agent Kowalski, the police

had no way of knowing that Burgos would later deny making the statements or that he would later be indicted and, therefore, be unlikely to testify at a trial of Gobern or Gonzales. I want to make clear that my central

 66
Agent Kowalski's testimony further shows (as does Burgos's) that

Burgos associated with Gobern and Gonzales during the trip from

New York City. Indeed, Burgos does not deny that he bought two

train tickets on Gonzales' behalf, that he sat near Gobern and Gonzales throughout the trip, or that he talked with Gobern and Gonzales

during the trip. What, of course, Burgos does deny is that he participated in a Gobern/Gonzales conspiracy, and Burgos has denied any

such participation from the moment he was questioned by Agent

Kowalski. Thus, the Government had to prove beyond a reasonable

doubt that Burgos wilfully joined and participated in the Gobern/

Gonzales conspiracy with the intent to further, promote, and accomplish its criminal purpose.

At trial, however, the Government offered no testimony, admission, or co-conspirator declaration showing that Burgos wilfully

joined and participated in the Gobern/Gonzales conspiracy. The Government offered no evidence that Burgos possessed tools of the drug

trade (e.g., firearms or unexplained cash). The Government offered no

evidence that drugs were found in Burgos's possession. The Government offered no evidence that Burgos used an alias. The Government

offered no evidence that Burgos was scheduled to travel back to New

York on the same train as Gobern and Gonzales. The Government

offered no evidence that Burgos made reservations to travel with

Gobern and Gonzales. And the Government offered no evidence that

Burgos knew Gobern prior to the time of the train trip.

There are thus only two facts offered by the Government to show

that Burgos participated in a Gobern/Gonzales conspiracy. First, Burgos's fingerprint was discovered on the plastic bag that contained the

crack cocaine, and second, Burgos, Gobern, and Gonzales were traveling "together" on January 25, 1993. Despite the majority's attempt

_________________________________________________________________

question here is not, as the majority believes, why Gonzales was never

prosecuted, see ante at 25 n.6, but rather it is why Gonzales was released

by the police right after Burgos made his alleged admissions. Also, I

raise this point not to suggest that the police handled these cases improperly in any way, but merely to suggest that Agent Kowalski's testimony

at Burgos's trial does raise some inconsistencies which have never been

explained.

 67
to weave these two fibers into a cloak of guilt, see ante at 21, these

facts (separately or together) do not provide substantial evidence that

Burgos knowingly and wilfully participated in a Gobern/Gonzales

conspiracy.

1.

The Government says the fingerprint is probative evidence that

Burgos participated in the conspiracy because the jury could rationally infer that the fingerprint was impressed on the baggie when it

contained crack cocaine. Although the Government's fingerprint

expert acknowledged he did not know whether Burgos touched the

bag when it contained crack,7 the Government argues that the inference nevertheless can be drawn.

The majority agrees with the Government and points out that Gobern did not have sufficient time to transfer the crack cocaine to the

plastic bag during his one or two minutes in the train station restroom.

Ante at 25. The majority also points to the testimony of Agent Kowalski and contends that "a reasonable jury could infer from the facts that

Burgos did assist in packaging the cocaine base before boarding the

train in New York." Id. at 25. And, in particular, the majority believes

that because Agent Kowalski testified that Burgos had knowledge of

the conspiracy and did not see wrapping materials on board the train,

a rational juror could infer that Burgos touched the plastic bag while

it contained crack and that he assisted in the packaging before the

men boarded the train in New York. Id. at 25-26. The majority then

rhetorically asks, "How else could Burgos's fingerprint be found on

an item inside a wrapped package that was wrapped since the inception of the trip from New York?" Id. at 26 (emphasis in original).

Obviously, I agree with the majority to the extent that it is implausible to think that Gobern put the cocaine base in the plastic bag during the one or two minutes he spent in the restroom. Moreover, even

_________________________________________________________________

7 Compare Stoppelli v. United States, 183 F.2d 391, 393, 394 n.4 (9th

Cir.) (defendant's fingerprint was found on envelope containing heroin;

expert testified that in his opinion defendant's fingerprint was impressed

at a time when the envelope contained a powdery substance), cert.

denied, 340 U.S. 864 (1950).

 68
if I were to disagree with the majority on this point, the jury could

certainly infer that one or two minutes is too little time. Where, however, I do disagree with the majority is on its contention that the evidence and reasonable inferences show that Burgos must have assisted

in the packaging of the crack cocaine prior to boarding the train in

New York. A rational juror would disagree on this too.

It is axiomatic that when a defendant challenges his conviction on

sufficiency of the evidence grounds, we must take the facts in the

light most favorable to the Government, and we must further draw all

reasonable inferences in favor of the Government. That standard of

review is not, however, a license to state an inference as a fact and

to pile one inference on top of another until the conclusion reached

is far removed from the actual facts presented. But that is what the

majority has done here.

In particular, I do not dispute that the jury could infer that Burgos

touched the bag when it contained cocaine if there was evidence that

the cocaine was in the wrapped package throughout the entire trip

from New York. There is, however, no such evidence. While Agent

Kowalski testified that Burgos said that Gobern possessed the package throughout the trip down from New York, Agent Kowalski never

testified that Burgos said that the plastic bag containing the cocaine

was inside the wrapped package throughout the entire trip. Gobern

may have carried a wrapped package all the way from New York. He

may also have carried the crack all the way from New York. Still

there is no evidence that Gobern carried the plastic bag inside the

wrapped package "since the inception of the trip from New York[.]"

Accordingly, there is no evidence to support the majority's assertion

that Burgos assisted in the packaging of the cocaine. Gobern was on

the train for twelve hours, so he did not have just one or two minutes

to put the cocaine in the plastic bag, he had half a day.

Indeed, the fact that Burgos testified that he did not see any materials with which Gobern could wrap or rewrap the package aboard the

train does not mean that Gobern did not wrap or open and close the

package during the half day he spent on the train. Any child that has

ever looked at presents under a Christmas tree before Christmas

morning knows that packages can be opened and closed without the

aid of scissors, wrapping paper, or tape. Here, there are several differ-

 69
ent reasons why Gobern may have handled and packaged or repackaged the crack cocaine during the train trip from New York.

The majority is also wrong when it says that:

To accept Burgos's rendition of the testimony, the jury

would have had to find that Gobern saved the plastic bag,

entered the lavatory, tore open the Christmas package and

the cereal box, unwrapped the newspaper and aluminum foil

from the cocaine base, placed the cocaine base in the plastic

bag without leaving his fingerprint, wrapped the plastic bag

in aluminum foil, swaddled the aluminum foil in the newspaper, and secreted the cocaine base behind the commode.

Ante at 27. This is simply not true. Once again, Agent Kowalski never

testified that Burgos said that he (Burgos) knew cocaine base was in

the Christmas package that Gobern possessed from the commencement of the trip in New York. Therefore, although a juror would be

free to believe Agent Kowalski's testimony and disbelieve Burgos's

testimony in its entirety (which I assume that Burgos's jurors did), a

rational juror would still have no basis to conclude that the plastic

baggie with Burgos's fingerprint on it was placed in the wrapped

package prior to the time that the men left New York.

Nonetheless, could a reasonable juror still infer (and believe it true

beyond a reasonable doubt) that Burgos must have assisted in the

packaging of the cocaine prior to boarding the train in New York? I

think not. Because there was no testimony from Agent Kowalski (or

anyone else) that the cocaine was in the wrapped package throughout

the entire trip from New York, there is no evidence that Gobern did

not put the cocaine into an empty plastic bag bearing Burgos's fingerprint during the twelve hour train ride from New York. Indeed, all a

rational juror could know and infer based on the evidence presented

here is that the plastic baggie was placed inside the wrapped package

at some unknown time before Gobern got off the train.

Furthermore, suppose that I am wrong and that a rational juror

could reasonably infer that Burgos did in fact touch or hold Gobern's

crack-filled bag at some point before the men boarded the train (or

 70
during the train trip itself).8 How does a juror jump from the fingerprint to a conclusion that Burgos wilfully joined and participated in

the Gobern/Gonzales conspiracy with the intent to further and accomplish its criminal purpose? Although a juror could speculate that one

who simply touched another's container of drugs had the intent to join

in and associate himself with an endeavor to possess and ultimately

distribute those drugs, I do not think this would qualify as a rational

inference. "Unquestionably the print raises a suspicion. But a suspicion, even a strong one, is not enough." Hiet v. United States, 365

F.2d 504, 505 (D.C. Cir. 1966). I therefore think it clear that Burgos's

conviction cannot be sustained based on the fingerprint evidence.9

2.

The question, of course, remains whether the Government's other

evidence somehow bridges the gap between the fingerprint and Burgos's alleged intent to participate in the Gobern/Gonzales conspiracy.

Viewed in the light most favorable to the Government, the other evidence showed the following: Burgos, Gonzales, and Gobern were all

from New York; Burgos was acquainted with Gonzales in New York

prior to the train ride; Burgos sat near Gobern and Gonzales on the

_________________________________________________________________

8 Again, the Government's fingerprint expert testified he had no idea

how long Burgos's fingerprint was on the bag. See United States v.

Townley, 942 F.2d 1324, 1326 (8th Cir. 1991) ("There is no evidence

when or where the fingerprints [on tape wrapping a bar of cocaine] were

made. The police fingerprint expert testified that fingerprints `can last for

a long time'; `[i]t's possible' `even as long as a year.'").

9 My analysis here is consistent with our circuit's fingerprint cases (i.e.,

sufficiency of the evidence cases where fingerprint evidence was alleged

to be determinative) upon which both parties rely in their briefs. I read

those cases to say that, if the fingerprint was impressed on a readily movable object, and if the Government failed to show that the print could

have been impressed only during the commission of the crime charged,

then the Government must point to additional substantive evidence

(beyond the fingerprint) to sustain the conviction. See United States v.

Anderson, 611 F.2d 504, 508-09 (4th Cir. 1979) (reconciling the following cases: United States v. Harris, 530 F.2d 576 (4th Cir. 1976); United

States v. Van Fossen, 460 F.2d 38 (4th Cir. 1972); United States v.

Bryant, 454 F.2d 248 (4th Cir. 1972); United States v. Corso, 439 F.2d

956 (4th Cir. 1971)).

 71
train ride; Burgos and Gonzales exchanged telephone numbers; Burgos was told they had drugs; the three men got off the train one after

the other; and the three men were seen getting into a cab together

when the police arrested Gobern.10

That being said, not a single witness testified that Burgos had ever

met Gobern before the train ride. Also, while Burgos said he was

acquainted with Gonzales in New York, no evidence was presented

on the scope of their relationship, save for the fact that Burgos and

Gonzales exchanged telephone numbers while on the train--a fact

that shows that Burgos had hardly any relationship with Gonzales,

much less a conspiratorial one.

Likewise, the Government presented no witnesses from New York

or the train ride. The Government presented no evidence to show that

Burgos had planned to travel to Greensboro with Gobern and Gonzales. There was no evidence that Burgos had previously engaged in

any drug activity with Gobern and Gonzales or anyone else. And, as

stated above, Burgos was not found to be in possession of any drugs,

any weapon, any large amount of cash, or any other items that might

indicate an involvement with drugs or the other two men.

Indeed, evidence that Burgos traveled on the same train with Gobern and Gonzales, while going far to show that Burgos associated

with Gobern and Gonzales, does little to show that Burgos knowingly

and wilfully participated in a Gobern/Gonzales drug conspiracy. See

Bell, 954 F.2d at 237 ("More than mere association with bad people

who are committing crimes is required for a conspiracy conviction.").

_________________________________________________________________

10 Officer Blanks's testimony about the cab was inconsistent with Officer Piner's later testimony (Officer Kaplan said nothing about a cab).

Blanks said that when he and Kaplan came out of the bathroom with the

cocaine, Burgos, Gonzales, and Gobern were getting into a cab together

(notwithstanding that Piner was asked to keep an eye on the three men).

According to Piner, however, when Kaplan and Blanks came out of the

bathroom with the crack, Gonzales and Gobern were standing on the

sidewalk near a pay phone, at which point Gobern was arrested. (Burgos

testified that he went to open the door of the cab but stepped back to the

curb when Piner told him he could not leave.) Of course, the jury could

have believed Officer Blanks and disbelieved Officer Piner and Burgos.

 72
See also Giunta, 925 F.2d at 764 ("[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.") (citations omitted).

Nevertheless, to buttress its conclusion that Burgos participated in

a Gobern/Gonzales conspiracy, the majority attempts to distill a number of discrete facts and inferences from the single fact that Burgos,

Gobern, and Gonzales traveled on the same train. For example, the

majority evidently believes that persons traveling from "source cities," such as New York City, are more likely to be drug conspirators;

and, according to the majority, traveling from such a city is affirmative evidence of guilt. Ante at 30-31. While I might agree that traveling from a "source city" is a fact that has bearing on whether law

enforcement officials have a "reasonable suspicion" that drugs are

being smuggled, I fail to see how our Fourth Amendment jurisprudence bears on the question of whether sufficient evidence was presented showing that Burgos (or anyone else traveling from New York

City) knowingly and wilfully participated in a drug conspiracy.

Similarly, that Burgos picked up Gobern's and Gonzales's train

tickets, that Burgos knew Gonzales, that Burgos, Gonzales, and Gobern were from the same neighborhood in New York, that Burgos and

Gobern exchanged telephone numbers, and that the three appeared to

be leaving the train station in a cab together are all "facts" that the

majority believes help prove Burgos's guilt. Ante at 31-32. Yet, these

are facts that when taken together (or separately) are innocent on their

face. They provide little, if any, evidence that Burgos participated in

a drug conspiracy.

In addition, while Burgos, Gobern, and Gonzales were on the same

train from New York City, there is no evidence showing that Burgos

scheduled the same return trip with Gobern and Gonzales, that Burgos

lied to Agent Kowalski when he said he was not traveling with Gobern and Gonzales, or that Burgos remained seated near Gobern and

Gonzales because they were his co-conspirators. See ante at 30-31 &

n.8, 31. Also, while Gobern and Gonzales possessed sequentially

numbered train tickets, both in the name of "Anthony Flores," Bur-

 73
gos's ticket was in his own name and evidently not in sequential order

with the tickets of Gobern and Gonzales. Indeed, even when taken in

the light most favorable to the Government, these facts undercut,

rather than support, the majority's conclusion that Burgos participated

in a drug conspiracy. See Giunta, 925 F.2d at 768 (considering evidence, presented by the Government, that had the effect of undercutting rather than supporting the Government's case when deciding that

insufficient evidence was presented on drug conspiracy charge).

Could then the association evidence and the fingerprint evidence,

taken together, lead a juror rationally to conclude beyond a reasonable

doubt that Burgos wilfully participated in, and intended to further and

accomplish the purpose of, the Gobern/Gonzales conspiracy? Again,

I think not. If the fact that a defendant merely associates with a drug

dealer is insufficient to prove a conspiracy, I doubt the evidence

would suddenly be propelled into the realm of sufficiency by the

additional fact that the defendant at one time touched the container

that stored the dealer's drugs (especially when the Government has

not shown that the defendant touched the container while it contained

the drugs).

The Ninth Circuit's decision in United States v. Vasquez-Chan, 978

F.2d 546 (9th Cir. 1992), is on point. In that case, DEA Agents infiltrated a drug ring and identified several persons who were suspected

of participating in drug trafficking. Eventually, the DEA seized over

six hundred kilograms of cocaine found in a house in which the

defendants were temporarily residing. One defendant, Vasquez, was

the housekeeper, and the other defendant, Gaxiola, was a houseguest.

Neither defendant had been mentioned by the co-conspirators as having participated in the drug ring. However, when the DEA agents

arrived at the house both defendants were present. Id. at 549.

Both Vasquez and Gaxiola, like Burgos, agreed to speak with the

law enforcement officials. Vasquez admitted that she had resided in

the house for three months. She said that she worked as a caretaker

for a man named Peralta and was paid between $300 and $800 every

fifteen days; the money arrived by messenger. According to Vasquez,

she did not lease or rent the residence, although agents found a utility

bill in her name and the name of Peralta. Vasquez also told the officers that the cocaine had been delivered by messengers about three

 74
days earlier, although she could not describe them to the police. In

addition, Vasquez possessed a false passport. Id.

As for Gaxiola, she told the agents that she had been Vasquez's

roommate in Mexico and that she and her infant child had been visiting Vasquez and staying at the house for a few weeks. The vast

majority of the cocaine was found in the bedroom where Gaxiola and

her child slept. Twelve of Gaxiola's fingerprints were found on the

containers in which the cocaine was stored. While no fingerprints

were found on the plastic bags inside of the containers, one of Gaxiola's fingerprints was found on the inside surface of the cover for a

container housing the cocaine. Id.

Both Vasquez and Gaxiola were indicted and convicted by a jury

of conspiracy to possess cocaine with intent to distribute, possession,

and aiding and abetting. On appeal they claimed that the evidence was

insufficient on all counts. The Ninth Circuit reversed the convictions.

On the conspiracy charge, the court held:

While the government submitted more than enough evidence that a narcotics conspiracy existed among several

defendants other that Gaxiola and Vasquez, the evidence

does not establish that the defendants here agreed to or

knowingly assisted that conspiracy. Gaxiola's and

Vasquez's actions are consistent with those of an innocent

housekeeper and houseguest who have no involvement in

the ongoing narcotics transaction . . . .

Id. at 553 (emphasis in original).

As for the fingerprint evidence against Gaxiola, the court said:

The canisters--some opened, some closed, some empty,

some filled with cocaine--were located in her bedroom; it

is reasonable to assume that she touched them at some time,

including on one occasion the inside lid of a canister, as she

passed in and out of the room or made space in the small

bedroom so that she and her infant child could have a comfortable place to sleep. The evidence presented at Gaxiola's

 75
trial did not establish any reason to believe that an innocent

explanation of that evidence was any less likely than the

incriminating explanation advanced by the government

. . . . Even when the fingerprint evidence is combined with

the other evidence against Gaxiola, it is legally insufficient

to establish in the mind of a reasonable juror, beyond a reasonable doubt, that she possessed the cocaine located in the

house in which she was staying.

Id. at 551-52 (emphasis in original).

Needless to say, the evidence presented against Burgos is no more

damning (and actually far less so) than the evidence presented against

Vasquez and Gaxiola.

3.

There remains the question whether in reviewing the sufficiency of

the evidence on appellate review, can we affirm by assuming that the

jury converted its apparent disbelief of Burgos's testimony into positive evidence of guilt. In other words, can we, as the majority has

done, see ante at 25, 28-31, fill in the factual gaps in the Government's proof by negative inference grounded on the assumption that

the jury disbelieved Burgos and believed Agent Kowalski's account

of what Burgos said to him about Gobern and Gonzales? Specifically,

if the majority is correct, Burgos's participation in the conspiracy can

be established by demeanor evidence arising from Burgos's denial

that he told Agent Kowalski that Gobern and Gonzales were involved

in drug trafficking.

Although this circuit has not squarely addressed the issue of what

inferences are permissible from disbelief, we have (before today)

indicated that the Government cannot prove its case by negative inferences based on demeanor evidence. See United States v. Fountain,

993 F.2d 1136, 1139 (4th Cir. 1993) ("while [the defendant's] evidence may be disbelieved, it contained nothing which, through disbelief, could be converted to positive proof of distribution of marijuana

by him"). I would take this opportunity to adopt the longstanding

view that demeanor evidence (i.e., evidence inferred from the

assumption that the jury disbelieved the defendant's testimony) does

 76
not allow us on appellate review to fill the evidentiary gaps in the

Government's case. See Dyer v. MacDougall, 201 F.2d 265 (2d Cir.

1952) (Hand, J.). See generally Olin Guy Wellborn, III, Demeanor,

76 Cornell L. Rev. 1075, 1101-02 (1991) ("Hundreds of cases say

. . . [m]ere disbelief of testimony is not proof of facts of an opposite

nature or tendency.").

When, as here, there is a conviction and the jury made credibility

determinations based on the defendant's testimony and conflicting

testimony from the Government, the only affirmative evidence of

guilt we may assume on appellate review is attributable to the testimony offered by the Government. There is, of course, nothing

remarkable about this standard. It is black letter law that we must

assume that the jury credited the Government's evidence, and we

must accept such evidence as true for purposes of deciding whether

sufficient evidence of guilt was presented at trial.

I think it clear, however, that we may not assume more than this.

If we did, then appellate review would be rendered meaningless

because there is no basis (except speculation) to decide what additional evidence the jury inferred in light of its credibility determinations. Indeed, to hold that the Government can be credited with

additional affirmative evidence of guilt based on negative credibility

determinations made against the defendant would relieve the Government of the burden of proving its case. It would raise the problem discussed by Judge Learned Hand in Dyer v. MacDougall, 201 F.2d 265

(2d Cir. 1952), and allow the Government to prove its case by having

us assume that which is at issue: whether "there is substantial evidence, taking the view most favorable to the Government, to support

[the jury's verdict]." Glasser v. United States, 315 U.S. 60, 80 (1942).

In Dyer, an action for libel and slander, the plaintiff proposed to

call the defendants to the stand, have them deny uttering the slander,

and then rely upon the jury to disbelieve the witnesses, thus proving

the plaintiff's case. Judge Hand rejected the argument that such "demeanor" evidence would be sufficient to prove the plaintiff's case.

Judge Hand explained that while a witness's demeanor "is part of the

evidence" and that the jury "may and indeed they should" take it into

consideration, to allow one party to prove its case based on negative

inferences would render appellate review meaningless:

 77
He, who has seen and heard the "demeanor" evidence, may

have been right or wrong in thinking that it gave rational

support to a verdict; yet, since that evidence has disappeared, it will be impossible for an appellate court to say

which he was. Thus, he would become the final arbiter in all

cases where the evidence of witnesses presented in court

might be determinative.

201 F.2d at 269. See United States v. Zeigler, 994 F.2d 845, 850 (D.C.

Cir. 1993) ("There is no principled way of deciding when the government's proof, less than enough to sustain the conviction, is nevertheless enough to allow adding negative inferences from the defendant's

testimony to fill the gaps."); United States v. Sliker, 751 F.2d 477, 495

n.11 (2d Cir. 1984) ("Although [demeanor] is a legitimate factor for

the jury to consider, this could not remedy a deficiency in the Government's proof if one existed."), cert. denied, 470 U.S. 1058 (1985).

Accordingly, Burgos's jury was free to believe Agent Kowalski's

testimony as to Burgos's alleged admissions, and we must accept that

the jury believed to be true everything that Agent Kowalski said.

Likewise, to the extent that Burgos denied making the statements to

Agent Kowalski, we must accept that the jury disbelieved Burgos.

Yet, where the testimony of Agent Kowalski is not in conflict with

the testimony of Burgos, such as on the critical question of whether

Burgos participated in a Gobern/Gonzales conspiracy, we are still not

free to fill in the gaps in the Government's proof by considering Burgos's denial that he was a part of that alleged conspiracy as affirmative evidence of guilt.11

_________________________________________________________________

11 Agent Kowalski was not on the train with Burgos, Gobern, and Gonzales; thus, Agent Kowalski could not and did not provide any evidence

independent of Burgos's alleged admissions as to what transpired. In

light of this, the majority's reliance on the Eleventh Circuit's decision in

United States v. Hastamorir, 881 F.2d 1551 (11th Cir. 1989), is misplaced. See ante at 23. In Hastamorir, customs officers observed six suspected drug traffickers conversing at a mall restaurant. Three of the

individuals then left the restaurant for the mall parking lot and proceeded

to exchange thirty kilograms of cocaine. These individuals were then

arrested. Unaware of the arrests, the three other individuals at the restaurant then left, also for the mall parking lot where they too were arrested.

 78
Finally, in making the sufficiency determination, I have not given

any credit to Burgos's innocent explanations. Nor have I required the

Government to disprove all innocent hypotheses. The law is clear that

the Government need not exclude every reasonable hypothesis consistent with innocence. Holland v. United States, 348 U.S. 121, 139-40

(1954) (rejecting the view that where the Government relies on cir-

_________________________________________________________________

Defendant Ledezma (whom the majority likens to Burgos) was in the

second group of three. At the time of his arrest and at trial, he flatly

denied knowing any of the three individuals who had been previously

arrested--a fact that was clearly a lie in light of the customs officer's

prior observations. 881 F.2d at 1554. Ledezma's fingerprints were also

found on packages wrapping two kilograms of cocaine. Id. at 1555. At

trial Ledezma was convicted of conspiracy to possess cocaine with intent

to distribute. On appeal the Eleventh Circuit affirmed on the ground that

"Ledezma's false testimony that he was not at[the restaurant] entitled the

jury to reasonably infer that he was aware of and participated in criminal

activity at the mall." Id. That is, the jury could infer affirmative evidence

of guilt based on testimony shown to be perjured by direct eyewitness

evidence to the contrary, not demeanor evidence and negative credibility

determinations made against the defendant.

In the present case, the majority makes great attempts to show that

Burgos (like defendant Ledezma in Hastamorir) fabricated parts of his

testimony at trial. See ante at 24-25. However, Burgos's alleged fabrications are based on the inference that the jury credited Agent Kowalski's

testimony as to Burgos's alleged admissions, not evidence independent

of Agent Kowalski's testimony that proves that Burgos lied at the time

of his questioning or perjured himself on the stand. I agree that there are

certainly inconsistencies between Burgos's alleged admissions made to

Agent Kowalski and his testimony at trial, but those inconsistencies are

based on inferences derived from demeanor evidence and negative credibility determinations made against Burgos. On appellate review, they are

insufficient to fill the gaps in the Government's case. Cf. Wright v. West,

505 U.S. 277, 296 (1992) (cited by the majority, ante at 28-30) (jury may

consider perjured testimony as affirmative evidence of guilt); United

States v. Bennett, 848 F.2d 1134, 1139 (11th Cir. 1988) (cited by the

majority, ante at 29-30) (defendants' admissions to the police and testimony on the stand were viewed as affirmative evidence of guilt when

such admissions and testimony were shown to be false by direct eyewitness evidence to the contrary--not credibility determinations based on

conflicting testimony).

 79
cumstantial evidence, it must "exclude every reasonable hypothesis

other than that of guilt"); see Jackson v. Virginia, 443 U.S. 307, 326

(1979) (habeas case confirming that the Government has no "affirmative duty to rule out every hypothesis except that of guilt beyond a

reasonable doubt"). "The question is not whether the evidence forecloses all possibility of doubt in the mind of the court, but merely

whether the evidence, construed most favorably for the prosecution,

is such that a jury might find the defendant guilty beyond a reasonable

doubt." Crawley v. United States, 268 F.2d 808, 811-12 (4th Cir.

1959).

What we have here is a case where the Government urges inference

upon inference, not all of which are rational or supported by the

record. The Supreme Court advised long ago that "charges of conspiracy are not to be made out by piling inference upon inference," Direct

Sales Co. v. United States, 319 U.S. 703, 711 (1943), and we too have

warned that, although a jury may infer a conspiratorial relationship,

"[s]uch inferential analysis is not boundless," Bell, 954 F.2d at 236.

Viewed in the light most favorable to the Government, the evidence

here was insufficient for a rational juror to conclude to a "near certitude," Jackson, 443 U.S. at 315, that Burgos wilfully participated in

the Gobern/Gonzales conspiracy. Consequently, the evidence was

insufficient as a matter of law to sustain Burgos's conspiracy conviction.

B.

From what I have said thus far, it would appear evident that Gobern's conspiracy conviction must be sustained. Indeed, at Burgos's

trial, the testimony of Agent Kowalski as to Burgos's alleged admissions provided sufficient evidence to establish the existence of a

Gobern/Gonzales conspiracy. At Gobern's trial, however, Agent

Kowalski did not testify as to Burgos's alleged admissions. Therefore,

unlike at Burgos's trial, the Government not only had to present evidence that Gobern knowingly and wilfully participated in a conspiracy to possess crack cocaine with intent to distribute (i.e., evidence

of a "slight connection" to an established conspiracy), but the Government also had to present substantial evidence to the jury showing the

existence of a conspiratorial agreement to possess crack cocaine with

 80
intent to distribute. See, e.g., Bell, 954 F.2d at 137-38; Giunta, 925

F.2d at 764; Laughman, 618 F.2d at 1074.

In its analysis the majority never directly acknowledges the fact

that Agent Kowalski did not testify as to Burgos's alleged admissions

at Gobern's trial. Nor, for that matter, does the majority state what

evidence presented at Gobern's trial shows that Gobern had a specific

agreement with either Gonzales, Burgos, or both to possess crack

cocaine with intent to distribute. Because the evidence presented

about Burgos at Gobern's trial was even less than that presented at

Burgos's own trial, there is, of course, insufficient evidence in the

Gobern record upon which to find a conspiratorial agreement between

Gobern and Burgos.

I believe, however, that even without Agent Kowalski's testimony,

there is still sufficient evidence upon which to find a conspiratorial

agreement between Gobern and Gonzales, and I would, therefore, sustain Gobern's conspiracy conviction on that ground. Gobern's jury

was presented with evidence in the form of the sequentially numbered

train tickets that showed that Gobern and Gonzales were traveling

together under an alias and planned to return to New York City

together within two days. The jury was also presented with evidence

that Gobern and Gonzales denied knowing each other when questioned by the police, an obvious attempt to cover up their relationship.

And, without doubt, the evidence presented to the jury showed that

Gobern possessed the crack cocaine. From this evidence I believe that

a rational juror could find that there existed a conspiratorial agreement between Gobern and Gonzales to possess and distribute the

drugs that Gobern carried.

Of course, none of these facts implicate Burgos in any way. Rather,

they undercut any showing of his guilt. That is, there was no evidence

presented showing that Burgos was traveling under an alias (the evidence was actually to the contrary), had a return trip scheduled with

Gobern and Gonzales, or lied to the police about knowing Gobern and

Gonzales. Nonetheless, based on the fingerprint evidence the majority

again erroneously concludes that "[t]he fact that Burgos's fingerprint

was on an interior article wrapped in a package held by Gobern from

the inception of the train trip could demonstrate to a rational finder

of fact that Burgos and Gobern conspired to distribute the cocaine

 81
base." Ante at 37 (emphasis in original). However, the majority does

not explain what evidence shows that Gobern possessed cocaine in an

"interior article" (i.e., the baggie) of the wrapped package from the

inception of the train trip. The reason for this is quite simple. There

is no such evidence.12

III.

The evidence fares no better on Count Two of the indictment

returned against Burgos, which charged both possession of cocaine

base with intent to distribute, in violation of 21 U.S.C. § 841, and aiding and abetting the possession with intent to distribute, in violation

of 18 U.S.C. § 2.

_________________________________________________________________

12 To cast Burgos as part of the Gobern/Gonzales conspiracy, the

majority also emphasizes that Gobern, Gonzales, and Burgos appeared to

separate when disembarking the train, regrouped at the taxi stand, and

were traveling from a "source city." Ante at 35-36. As I have explained,

however, these acts fall well short of establishing that Burgos knowingly

and wilfully participated in a Gobern/Gonzales conspiracy, much less do

they establish a specific agreement between Gobern, Gonzales, and Burgos to possess crack cocaine with intent to distribute.

In addition, the majority's conclusion that the act of watching another

person be questioned by the police is "countersurveillance" amounting to

evidence of guilt is especially wrongheaded. See ante 36. Perhaps if one

defendant acts as a "lookout" for a drug purchase, we might have a different situation. See United States v. Pazos, 993 F.2d 136, 140 (7th Cir.

1993) (cited by the majority, ante at 36) (sufficient evidence established

defendant as part of conspiracy based on act of countersurveillance

when, among other things, defendant, armed with a loaded weapon,

arrived with alleged co-conspirator at location of prearranged drug transaction, made initial contact with Government informant, and remained in

parking lot during the deal's negotiations, visually surveying the area

generally and closely scrutinizing automobile in which transaction was

negotiated). I believe, however, that standing in plain sight to observe the

questioning of a fellow passenger hardly amounts to surveillance, much

less countersurveillance. At most this is a case of rubbernecking. And,

of course, while Gobern observed the police questioning Gonzales, there

was no evidence presented showing that Gobern countersurveilled the

questioning of Burgos.

 82
As for the possession charge, while the Government need not

establish that the defendant actually possessed drugs, the Government

must show "constructive possession, which occurs when the defendant `exercises, or has power to exercise, dominion and control over

the item.'" United States v. Samad, 754 F.2d 1091, 1096 (4th Cir.

1984) (quoting Laughman, 618 F.2d at 1077). Also, our circuit has

said that "[a]n individual may possess drugs jointly with another, but

mere presence on the premises where drugs are found, or association

with one who possesses drugs, is insufficient to establish the possession needed for a conviction under 21 U.S.C. § 841(a)." Samad, 754

F.2d at 1096; accord United States v. Rusher, 966 F.2d 868, 878 (4th

Cir.), cert. denied, 506 U.S. 926 (1992). Thus, a rational juror could

not find Burgos guilty of possession beyond a reasonable doubt

merely because he associated with Gonzales and Gobern and knew

that they had drugs to distribute. And despite the majority's conclusion to the contrary, ante at 44, the fingerprint does not rescue the

Government's case.

The Government's argument is that the jury could infer that Burgos

touched the bag when it contained cocaine. But how does the jury get

to ownership, dominion, or control on January 25, 1993, from this

evidence of prior touching? The Government's argument suggests a

juror could rationally infer that if a defendant at one time touched an

object serving as a container for drugs, the defendant has the power

to exercise ownership, dominion, or control over those drugs. The

Government argues that the inference is rational here even though (1)

the container was not found on Burgos or at his premises, (2) there

was evidence the drugs belonged to someone else, (3) there was no

evidence of any prior drug activity by Burgos, and (4) Burgos was not

found in possession of any drugs or weapons or an unusually large

amount of cash. I believe, however, that the Government has failed

to prove its case. See United States v. Vasquez-Chan, 978 F.2d 546,

550-53 (9th Cir. 1992).

A conclusion that Burgos had ownership, dominion, or control over

the contents of the container "requires bridging an evidentiary gap

with rank speculation," Goldsmith v. Witkowski, 981 F.2d 697, 703

(4th Cir. 1992), cert. denied, 509 U.S. 913 (1993). Consequently, the

evidence was not sufficient to show that Burgos had constructive possession of the crack ultimately seized from the train station bathroom.

 83
Thus, it was insufficient to sustain Burgos's conviction for possession

with intent to distribute as charged in Count Two of the indictment.13

As for the aiding and abetting charge, the Government's brief on

appeal makes no argument on how or why the evidence was sufficient

to support that charge. The only mention of it in the Government's

brief is this unenlightening sentence: "Aiding and abetting was

charged in connection with the possession with intent to distribute."

Govt. Br. at 10. The majority does not do much better and summarily

concludes that because the evidence was sufficient to sustain Burgos's conspiracy conviction, it is sufficient to sustain the aiding and

abetting conviction. Ante at 44. I disagree.

To establish aiding and abetting, the Government had to prove

beyond a reasonable doubt that Burgos became associated with and

participated in Gobern's possession of "crack" cocaine and that Bur-

_________________________________________________________________

13 Cf. United States v. Lucas, 67 F.3d 956 (D.C. Cir. 1995) (reversing

conviction for possession of narcotics where defendant sublet apartment

in which drugs were found, a receipt with the defendant's name was

found in the apartment, and the defendant's fingerprints were found on

a shoe box containing drugs); United States v. Earl, 27 F.3d 423 (9th Cir.

1994) (per curiam) (DEA agents found defendant inside residence that

contained drugs, drug paraphernalia and weapons, and an informant testified that defendant stayed there and "conducted crime" there; the court

found this evidence to be insufficient to show constructive possession,

and the evidence was not made sufficient by the additional fact that

defendant's fingerprints were found on a plate (in the residence) that may

have contained traces of cocaine).

In United States v. Van Fossen, 460 F.2d 38, 41 (4th Cir. 1972), we

left undecided whether the defendant "possessed" certain engraving

plates and photographic negatives used in counterfeiting despite the fact

that his fingerprints were found on the illegal items. In other words, the

fact that the defendant at one time touched the items did not necessarily

mean he had ownership, dominion, or control over them. Of course, Burgos's fingerprint was not impressed on the illegal item here (the crack)

but rather on that item's container, a plastic bag. Cf. United States v.

Keeper, 977 F.2d 1238, 1241 (8th Cir. 1992) (in dicta court said defendant's fingerprint on a plastic bag containing a large amount of cocaine,

by itself, would not be enough to show possession of the cocaine beyond

a reasonable doubt).

 84
gos acted with the specific intent to facilitate that crime and the desire

to make it succeed. United States v. Poston, 902 F.2d 90, 93 (D.C.

Cir. 1990); see Flowers v. Tandy Corp., 773 F.2d 585, 590 (4th Cir.

1985) (noting that, in criminal context, a defendant may be found

guilty of aiding and abetting if he "shared in the principal's criminal

intent"); United States v. Winstead, 708 F.2d 925, 927 (4th Cir. 1983).

Here, viewed in the light most favorable to the Government, the

evidence was insufficient for a rational juror to conclude beyond a

reasonable doubt that Burgos assisted Gobern's criminal activity with

the intent to facilitate it and the desire to make it succeed. The fingerprint and the associational evidence is simply not that strong.14

Accordingly, the aiding and abetting charge does not salvage Burgos's conviction on Count Two.

* * *

Again, I respectfully dissent from the majority's affirmance of Burgos's conviction.

Judge Hall, Judge Murnaghan, Judge Ervin, and Judge Motz join

in this opinion.

_________________________________________________________________

14 I am not saying that because the evidence was insufficient on the

conspiracy count, it necessarily was insufficient to sustain the aiding and

abetting charge. The elements of the crime of conspiracy differ from

those required to show aiding and abetting, and evidence may be insufficient to sustain the former yet sufficient to sustain the latter. See United

States v. Arrington, 719 F.2d 701, 705-06 (4th Cir. 1983), cert. denied,

465 U.S. 1028 (1984). In this case, however, the evidence was insufficient to show either that Burgos knowingly and wilfully participated in

the conspiracy or that he aided and abetted Gobern's possession with

intent to distribute.

 85