20-3996

United States v. Lopez

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 

32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE 

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE 

A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 27th day of January, two thousand twenty-one.

PRESENT:

JOHN M. WALKER, JR.,

RICHARD J. SULLIVAN,

EUNICE C. LEE,

Circuit Judges,

_____________________________________

UNITED STATES,

Appellee,

v. No. 20-3996

FRANCISCO LOPEZ,

Defendant-Appellant.*

_____________________________________

* The Clerk of Court is respectfully directed to amend the official caption as set forth above. 
For Defendant-Appellant: ROBERT A. CULP, Law Office of Robert 

A. Culp, Garrison, NY.

For Respondent-Appellee: NATHANIEL J. GENTILE (Marc H. 

Silverman, on the brief), Assistant United 

States Attorneys, for Leonard C. Boyle, 

Acting United States Attorney for the 

District of Connecticut.

Appeal from the United States District Court for the District of Connecticut 

(Janet C. Hall, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Defendant-Appellant Francisco Lopez appeals his conviction following a 

jury trial for conspiracy to distribute 100 grams or more of heroin in violation of 

21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i) and 846, and use of a telephone to facilitate a 

drug trafficking felony in violation of 21 U.S.C. §§ 841(a)(1) and 843(b). We 

assume the parties’ familiarity with the underlying facts, procedural history, and 

issues on appeal.

Lopez challenges the sufficiency of the evidence presented at trial. We 

review challenges to the sufficiency of trial evidence de novo. United States v. 
Lyle, 919 F.3d 716, 737 (2d Cir. 2019). Even on de novo review, however, 

“defendants face a heavy burden” because we must sustain the jury’s verdict if, 

“credit[ing] every inference that could have been drawn in the government’s 

favor” and “viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.” United States v. Ho, 984 F.3d 191, 199 (2d 

Cir. 2020) (internal quotation marks omitted).

Lopez argues that the government’s case – which principally relied on 

intercepted phone calls and text messages and not physical evidence or direct 

testimony – was insufficient to prove that Lopez conspired to distribute heroin or 

that Lopez used a telephone to further that conspiracy. We disagree. 

“The gist of conspiracy is, of course, agreement.” United States v. Beech-Nut 

Nutrition Corp., 871 F.2d 1181, 1191 (2d Cir. 1989). To prove membership in a 

conspiracy, the government must show “that the person charged with conspiracy 

knew of the existence of the scheme alleged in the indictment and knowingly 

joined and participated in it.” United States v. Snow, 462 F.3d 55, 68 (2d Cir. 2006) 

(internal quotation marks omitted). Once the government has proven that a 

conspiracy exists, “the evidence sufficient to link another defendant to [the 
conspiracy] need not be overwhelming.” United States v. Nusraty, 867 F.2d 759, 

762 (2d Cir. 1989) (internal quotation marks omitted).

At trial, the government’s cooperating witness, Lliver Abreu-Baez, testified 

that from January 2018 through December 2018 he provided approximately 8–10 

kilograms of heroin to Larry Hall on credit. Hall stored the heroin in a garage 

next to his house, and would then sell the heroin to his own customers. One of 

those customers was Pedro Santos, who in turn sold heroin to Lopez. To establish 

the existence of the conspiracy and Lopez’s membership in it, the government 

introduced a series of intercepted phone calls and text messages between Hall and 

Santos and between Santos and Lopez in which the men discussed Lopez’s plans 

to buy heroin from Hall. Because many of the communications were conducted 

in code, the government called an expert witness to testify about the heroin trade 

and commonly used expressions employed by heroin traffickers. See United 

States v. Dukagjini, 326 F.3d 45, 52 (2d Cir. 2003) (“[W]e have consistently upheld 

the use of expert testimony to explain both the operations of drug dealers and the 

meaning of coded conversations about drugs.”). 

Viewing that evidence in the light most favorable to the government, as we 

must, we have no hesitation in finding that there was sufficient proof for the jury 
to conclude that Lopez entered into an agreement to buy distribution-level 

quantities of heroin from Hall and Santos. Although Lopez is correct that none 

of the calls in which he was a participant ever expressly referenced heroin, his use 

of the terms “buck fifty,” “dollar-fifty,” and “one-and-a-half” were consistent with 

the expert’s testimony about slang used by drug dealers to describe gram 

quantities of narcotics, and were followed by more explicit references to 150 and 

190, which Santos described as “forty cent more” than the “one-and-a-half” that 

Lopez had ordered. Appellant App’x at 365. Lopez’s request for “a dollar-fifty” 

from Santos was followed by a call from Santos to Hall, the supplier, in which 

Santos asked for “[o]ne hundred and fifty” and reminded Hall that the “house 

number is . . . 6-2 now.” Appellant App’x at 453. This evidence, combined with 

Abreu-Baez’s testimony that he supplied Hall with heroin and the expert’s 

testimony that a gram of heroin typically sold for approximately $60 per gram, 

provided ample basis for the jury to conclude that Lopez was negotiating heroin 

sales with Santos and Hall.

Lopez alternatively argues that even if the evidence was sufficient to show 

that he agreed to purchase heroin from Hall, his conduct falls under the “buyerseller exception” to narcotics-conspiracy liability. To be sure, we have long 
recognized an exception to narcotics-conspiracy liability for “the mere purchase 

and sale of drugs.” United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015). Instead, 

“[t]o sustain a conspiracy conviction, the government must present some evidence 

from which it can reasonably be inferred that the person charged with conspiracy 

knew of the existence of the scheme alleged in the indictment and knowingly 

joined and participated in it.” United States v. Rodriguez, 392 F.3d 539, 546 (2d Cir. 

2004) (internal quotation marks omitted). Here, the evidence introduced at trial 

amply demonstrated that Lopez knew of the scheme to distribute heroin and 

joined in it. The intercepted phone calls and texts revealed that Lopez engaged 

in multiple transactions for wholesale quantities of heroin with Santos and Hall, 

that he was given priority over other, lesser-known buyers, and that he was 

permitted to purchase heroin on credit. After Lopez and Santos were stopped by 

police officers, each contacted Hall to let him know about the stop and urge him 

to “cleanup shop” and “be safe.” Based on the evidence introduced at trial, we 

find that there was sufficient evidence for the jury to conclude that Lopez 

knowingly joined in the conspiracy and that his conduct did not fall within the 

buyer-seller exception. See United States v. Rojas, 617 F.3d 669, 675 (2d Cir. 2010) 

(considering factors such as whether there was mutual trust between the buyer 
and the seller, whether the buyer and seller had a long-standing relationship, and 

whether the buyer purchased redistribution quantities of illegal drugs when 

determining the applicability of the buyer-seller exception).

Finally, Lopez argues that the government failed to show that he joined in 

the particular conspiracy charged in the indictment – which included twenty-nine 

individuals – as opposed to a smaller conspiracy limited to Lopez, Santos, and 

Hall. But the law is clear that “[e]ven where there are multiple groups within an 

alleged conspiracy, a single conspiracy exists where the groups share a common 

goal and depend upon and assist each other, and we can reasonably infer that each 

actor was aware of his part in a larger organization where others performed 

similar roles.” United States v. Chavez, 549 F.3d 119, 126 (2d Cir. 2008) (internal 

quotation marks omitted) abrogated on other grounds by Dean v. United States, 137 S. 

Ct. 1170 (2017). The defendant need not know “all of the details of the 

conspiracy,” nor the “identities of all of the other conspirators,” so long as they 

agreed on the essential nature of the plan. United States v. Huezo, 546 F.3d 174, 

180 (2d Cir. 2008). From the evidence introduced at trial, it is clear that Lopez 

agreed on the essential nature of the plan (trafficking heroin) and that he knew he 

was part of a collective venture. 
We have considered Lopez’s remaining arguments and find them to be 

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court