United States Court of Appeals

For the First Circuit

No. 11-1877

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS BURGOS,

Defendant, Appellant.

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

 

Before

Torruella, Ripple, and Howard, Circuit Judges. *

 

Gail S. Strassfeld for appellant. 

Katherine Ferguson, Assistant United States Attorney, with

whom Carmen M. Ortiz, United States Attorney, was on brief, for

appellee.

____________

December 14, 2012

 Of the Seventh Circuit, sitting by designation. *
RIPPLE, Circuit Judge. A jury convicted Carlos Burgos of

one count of conspiring to distribute and to possess with intent to

distribute marijuana, in violation of 21 U.S.C. § 846. Mr. Burgos

challenges the sufficiency of the evidence to support the

conviction and also claims that the district court erred in giving

a “willful blindness” instruction. For the reasons set forth in

the following opinion, we reverse the judgment of the district

court and remand the case to the district court with instructions

to enter a judgment of acquittal.

I

BACKGROUND

A. Facts1

1. Relationship between Mr. Burgos and Ramos

Mr. Burgos worked as a uniformed patrol officer for the

city of Worcester, Massachusetts. Between 2005 and March 2009, he

was assigned to a specific beat known as “Route 13,” which

encompasses a high-crime area known as “Main South.” In addition 2

to uniformed police officers, members of the Worcester Police

Department’s Vice Squad and Gang Unit regularly patrol the area.

Because the jury found Mr. Burgos guilty of the charged 1

crime, we view the evidence, and all reasonable inferences

therefrom, in the light most favorable to the Government. See,

e.g., United States v. Casas, 356 F.3d 104, 126 (1st Cir. 2004).

 See R.326 at 109. 2

2
Mr. Burgos’s brother-in-law worked at an automobile

repair shop located in Main South, G & V General Auto Repair

(“G & V”). Both during and after this time, Rolando Ramos also

worked at G & V; Ramos was not a mechanic, but rather helped by 3

“taking money . . . [to] the bank,” “pick[ing] up parts that were

needed in the shop” and “driving the . . . lift.” Mr. Burgos’s 4

brother-in-law described Ramos as “the shop’s tow truck driver.”5

In addition to his legitimate work at G & V, Ramos also ran a

marijuana distribution network. Although Ramos never met his 6

suppliers at G & V, he did meet with customers and transact sales

at that location. Ramos testified that he spoke to at least one of

his co-workers at G & V about his illicit drug business, but that 7

 Ramos’s brother-in-law, Ramon Valerio, owned G & V. 3

 R.327 at 85. 4

 R.328-1 at 72. 5

Ramos, who testified on behalf of the Government pursuant 6

to a plea agreement, estimated that he distributed approximately

2,500 pounds of marijuana between 2005 and his arrest in March

2009. R.327 at 57-58. During the last five months of the

conspiracy, Ramos also began distributing cocaine. Id. at 58. He

obtained a total of approximately four kilograms of cocaine, but,

when asked how much cocaine he sold, Ramos testified that he

“c[ould]n’t say exactly, because [he] was using more than [he] was

selling.” Id.

 See id. at 81. 7

3
he did not discuss his drug business with, or conduct any sales in

the presence of, Mr. Burgos’s brother-in-law.8

While his brother-in-law worked at G & V, Mr. Burgos

would go to the garage “very frequent[ly]” to visit and to have his

car repaired. On one of these occasions, Ramos overheard 9

Mr. Burgos tell his brother-in-law that the area was “hot,” which 

Ramos took to mean that it was being watched by the police.10

Sometime before April 2006, Mr. Burgos’s brother-in-law

stopped working at G & V, and, consequently, Mr. Burgos used G & V

less frequently for repairs. The mechanics at G & V continued to 11

give Mr. Burgos a discount; however, the extent of the discount

varied among the mechanics, who worked on commission and set their

own prices for car repair services.

Ramos characterized his relationship with Mr. Burgos as

a “friendship.” Ramos met some members of Mr. Burgos’s family, 12

but never went into his house; the only time that Ramos went to

Mr. Burgos’s house was to tow a car. Mr. Burgos never went to

 See R.328-1 at 43. 8

 R.327 at 90. 9

 Id. at 94-95. 10

Ramos estimated that Mr. Burgos brought his car in “[a]bout 11

three times” after his brother-in-law left G & V. Id. at 106. 

Earlier in his testimony, Ramos stated that, after Mr. Burgos’s

brother-in-law left G & V, Mr. Burgos brought his car in “[n]ot

often, once a year, or once a month depending on what it was.” Id. 

 Id. at 101. 12

4
Ramos’s house. On one occasion, Ramos helped Mr. Burgos’s sister

and her infant son by towing her car and repairing a flat tire,

which he did without charging her. The only indication of a

personal relationship, rather than a professional relationship, is

a phone call from Mr. Burgos to Ramos on Christmas day in 2009.13

On other occasions, Mr. Burgos purchased from Ramos a GPS

navigation system for his father and a laptop computer. Ramos sold

both items to Mr. Burgos for less than retail price. Mr. Burgos 14

also purchased a discounted set of vehicle tire rims at G & V. 

According to the record, the rims were displayed in the garage with

a “for sale” sign on them; it is unclear whether Ramos personally 15

was selling the rims or merely rang up the sale as an employee of

G & V.

In late 2008, Ramos noticed that a police officer who was

known to work with the Worcester Police Department’s “Gang unit”

was watching G & V through binoculars. The next day or so, Ramos 16

told Mr. Burgos that someone was watching the garage, and

 That phone call was not recorded. 13

Ramos sold the laptop, which he later testified sold for 14

$900 to $1,200 in stores, to Mr. Burgos for $200. Id. at 97. 

Ramos sold a GPS, which he later testified retailed for “about

$129” to Mr. Burgos’s father, although Mr. Burgos conducted the

transaction, for $60. Id. at 119.

Id. at 99-100. The set of four rims, according to Ramos’s 15

later testimony, retailed for $1,000 to $1,200; Mr. Burgos paid

$400 for them. Id. at 99.

 Id. at 113-14. 16

5
Mr. Burgos “told [him] that it could be that the place was hot.”17

Ramos understood “hot” to mean that G & V was being watched; he

told Mr. Burgos, “I’ll be careful.”18

Ramos later testified that he told his drug customers

that he “had the protection of a police officer,” although he did

not “mention that person by name.” These statements convinced at 19

least one individual that it was safe to purchase marijuana from

Ramos. At trial, Ramos disclaimed any truth to these statements: 

“[W]henever I was high, I was trying to bluff and appear as if I

was the king.” Ramos characterized his statements as “bragging 20

or gloating” and explained that, contrary to what he told people,

he did not “have a cop under [his] wing.” After being arrested, 21

Ramos told one of his drug customers, who also had been arrested,

that “he d[id]n’t understand why the cop [Mr. Burgos] got arrested

with [them].” Ramos also testified that he “never” told 22

Mr. Burgos that he was a drug dealer, “never” discussed drugs with

 Id. at 115. 17

 Id. at 116. 18

 Id. at 124. 19

Id. Ramos testified that he used narcotics, including 20

cocaine and Percocet, on a daily basis.

 R.328-1 at 33. 21

Id. at 56; see also id. at 67 (drug customer agreeing that 22

Ramos had stated that he (Ramos) “didn’t know why [Mr. Burgos] got

arrested, because [Mr. Burgos] didn’t do anything”).

6
him and did not engage in any drug deals when Mr. Burgos was

present because he did not want Mr. Burgos to know about his drug

business. 

23

2. Investigation of Ramos

Beginning in early 2009, a multi-agency drug task force

began investigating Ramos’s drug distribution network. Officers

from several agencies, including the Worcester Police Department,

the Massachusetts State Police, the Drug Enforcement Administration

(“DEA”) and the United States Postal Inspection Service conducted

surveillance of Ramos at G & V, as well as at other locations. As

part of their surveillance efforts, the officers drove unmarked

vehicles. Of particular relevance to this appeal is that Worcester

Detective Kellen Smith drove a white Ford Explorer, Worcester

Detective Jeff Carlson drove a maroon Dodge Intrepid and

Massachusetts State Police Officer Nicholas Nason drove a green

Ford Escape. 

On the morning of January 14, 2009, the officers

conducting surveillance on G & V saw Mr. Burgos’s marked police

vehicle parked in a parking lot on the same street as the garage.24

They watched as Ramos’s vehicle drove up next to Mr. Burgos’s, and

 R.327 at 116; R.328-1 at 40, 19. 23

This was not unusual; one of the officers later agreed that 24

“officers from time to time park[ed] in the . . . parking lot.” 

R.326 at 153.

7
the two men proceeded to have a five- or ten-minute conversation. 

According to Ramos’s later testimony, Ramos had seen Mr. Burgos

sitting in his marked police vehicle; he pulled next to Mr. Burgos

and told him he “was being followed by cars,” one red and one

white, and he asked Mr. Burgos who was following him. At the time 25

he asked, Ramos was “75 to 90 percent [certain] that they were

police cars.” Ramos later testified that he “wanted to make sure 26

that [he] knew who it was that was following [him].” According 27

to Ramos, the meeting was not prearranged; when asked why Ramos

turned to Mr. Burgos to obtain that information, he testified: “I

don’t know. I saw him, and I went up to him and asked him.”28

Mr. Burgos told Ramos “that he was going to find out what they

were.”29

Later that day, Ramos called Mr. Burgos; that

conversation was captured by an existing wiretap. That transcript,

which was introduced at trial, reads as follows:30

BURGOS: [Aside . . . hold on, no . . .] Hello!

 R.327 at 128. 25

 Id. at 129. 26

 Id. 27

 Id. 28

 Id. 29

The conversation was in Spanish, but later was translated 30

into English.

8
RAMOS: Tell me, Carlos.

BURGOS: How are you? What’s up?

RAMOS: Tell me, did you find out about

that for me, or not?

BURGOS: Uh . . . yes, but no . . . I don’t

know if for there . . . there were

two. Uh . . . the white one and the

red one.

RAMOS: Yes, but I saw that one already,

there’s the white one and a green

van, too.

BURGOS: [Unintelligible].

RAMOS: A green one. Did you hear?

BURGOS: But I don’t know if it is for over

there, but, uh . . . they’re down

there, yes.

RAMOS: I know they’re down here.

BURGOS: Yes, so let’s take it easy for now.

RAMOS: Yes, I know, I know, I know . . .

that’s why I told you that. I know.

BURGOS: Yes, yes, yes . . .

RAMOS: Okay.

BURGOS: Okay?

RAMOS: Okay.

BURGOS: Okay. Bye.[31]

 Id. at 130-31. 31

9
Ramos later testified that he understood that Mr. Burgos was

telling him that police were observing either Ramos or G & V, and 32

telling him “[t]hat [he] had to take it easy if [he] was doing

something against the law.” About an hour after that conversation 33

with Mr. Burgos, Ramos called his marijuana supplier and informed

him that police were in the area. Shortly after that, Ramos called

a customer and gave him similar information. After these

conversations, which also were captured by the wiretap, the

officers changed their surveillance vehicles. At no point in their

investigation did the officers focus any surveillance efforts on

Mr. Burgos.

After additional investigation, the officers executed

search warrants on Ramos’s house, where they recovered marijuana,

cocaine and a firearm.

B. District Court Proceedings

A grand jury charged Mr. Burgos with one count of

conspiring to distribute and to possess with intent to distribute

marijuana. Ramos and Detectives Smith and Carlson were the chief

witnesses for the Government. In addition to the events set forth

Ramos testified that he understood Mr. Burgos to mean “that 32

we were being watched,” but counsel did not draw out any further

explanation as to whether Ramos meant “we” to mean G & V, his

marijuana distribution network or Ramos himself. Id. at 132.

 Id. at 133. 33

10
above, Detectives Smith and Carlson testified concerning their

interactions with Mr. Burgos while serving on the police force

together. 

Detective Smith testified that he began working in Route

13 when he was serving in the Community Impact Division. He

explained that he “concentrated a lot of effort and time there in

the Antiviolence Unit, and in the vice squad we do a lot of work

down there as well.” Before he joined the Vice Squad, Detective 34

Smith would see Mr. Burgos “quite frequently,” but “didn’t work

directly with [Mr. Burgos] on many occasions.” As an officer on 35

the Vice Squad, Detective Smith saw Mr. Burgos “[s]everal times a

week”; he stated that “[a] typical area that I would run into

Carlos was at the -- the pumps,” by which Detective Smith meant

“[t]he gas pumps at the Worcester Police headquarters.” Detective 36

Smith also provided general information about the Vice Squad. 

Detective Smith testified that the Vice Squad conducts “[n]arcotics

investigations, prostitution investigations, and illegal gambling

investigations.” He further stated that the Vice Squad spends 37

approximately ninety percent of its time on narcotics

investigations, nine percent on prostitution-related crimes and “a

 R.326 at 110. 34

 Id. 35

 Id. at 111, 113. 36

 Id. at 106. 37

11
very small fraction” on illegal gaming and that he was familiar

with those percentages before joining the Vice Squad.38

Detective Carlson, who has “worked [his] whole career in

the Main South area, both in the Community Impact Division and in

the vice squad,” testified that, “[w]hen [he] was assigned to the

Impact Division, [he] would encounter Carlos almost on a daily

basis throughout the day.” When Detective Carlson was assigned 39

to the Vice Squad, Mr. Burgos “congratulated” him and told

Detective Carlson to “do a good job up there.” After 40

Detective Carlson joined the Vice Squad, however, he and Mr. Burgos

“didn’t really work on operations together.” Detective Carlson 41

explained that they 

would encounter each other on the street on a

fairly regular basis. Again, route officers

frequently assist the vice squad with stops and

arrests; and if there was some type of emergency

call and I wasn’t tied up doing vice squad duties,

I would certainly go to that area and assist route

officers with their -- their 911 call.”[42]

At the close of the Government’s evidence, Mr. Burgos

moved for acquittal under Federal Rule of Criminal Procedure 29. 

The district court denied the motion. Mr. Burgos did not call any

 Id. at 107. 38

 Id. at 178. 39

 Id. at 179. 40

 Id. at 181. 41

 Id. 42

12
witnesses. At the request of the Government, and over Mr. Burgos’s

objection, the court gave the jury a willful blindness instruction;

it stated:

The second element that the government must

prove beyond a reasonable doubt is that the

defendant knew the essential purpose or nature of

the conspiracy charged in the indictment.

The government must prove beyond a reasonable

doubt that the defendant knew that the essential

purpose and general aim of the conspiracy was: (1)

to possess a controlled substance with intent to

distribute it or (2) to distribute a controlled

substance. Although you need not find that the

defendant knew that the conspiracy involved

marijuana specifically, you must find that he knew

it involved a controlled substance. It is not

enough for the government to prove merely that the

defendant knew that the conspiracy involved

something illegal.

It is, of course, impossible to prove directly

the inner workings of the human mind. Thus, in

deciding whether the defendant acted knowingly, you

may consider his statements and actions, the

surrounding facts and circumstances, and any

reasonable inferences that may be drawn from those

facts and circumstances.

You may infer that the defendant had knowledge

of a particular fact if you find beyond a

reasonable doubt that he deliberately avoided

learning a fact that otherwise would have been

obvious to him, under the circumstances outlined

below.

In order to infer knowledge of a fact under

such circumstances, you must find beyond a

reasonable doubt that the government has proved two

things:

First, that the defendant was aware of a high

probability of the existence of a fact; and

13
Second, that the defendant consciously and

deliberately avoided learning of that fact; that

is, that he willfully made himself blind to the

existence of the fact.

You may draw that inference, but you do not

have to; it is entirely up to you.

Conscious and deliberate avoidance of

knowledge may be established by proof that the

defendant deliberately refused to ask questions

about, or make inquiries about, or investigate,

suspicious activities once his suspicion had been

aroused.

Mere negligence or mistake in failing to

investigate or learn a fact is not enough. Thus,

it is not enough that a reasonable person in the

defendant’s position would have known a fact, or

would have made further inquiry; you must find that

the defendant consciously and deliberately remained

ignorant of that fact.

It is not enough for the government to prove

that the defendant knew, or was willfully blind to,

the fact that something illegal was occurring.

Rather, the government must prove beyond a

reasonable doubt that the defendant knew, or was

willfully blind to, the fact that the illegal

activity involved a controlled substance.

This instruction applies only to the

“knowledge” element of the conspiracy. The third

element of a conspiracy -- that the defendant

willfully joined the conspiracy cannot be . . .

established by willful blindness.[43]

The jury convicted Mr. Burgos on the single count of the

indictment, and the district court denied his renewed motion for

acquittal. Mr. Burgos timely appealed.

 R.329 at 63-66. 43

14
II

DISCUSSION

We review de novo the district court’s denial of a Rule

29 motion for judgment of acquittal, viewing all the evidence in

the light most favorable to the jury’s verdict. United States v.

Pérez-Meléndez, 599 F.3d 31, 40 (1st Cir. 2010). The ultimate

question for this court is whether the evidence, both direct and

circumstantial, and all plausible inferences drawn therefrom, would

allow a rational jury to conclude that the Government had proven

each element of the crime beyond a reasonable doubt. Id.

A. Standard for Sufficiency of the Evidence

1.

Although the standard of review incorporates

“prosecution-friendly overtones . . . , appellate oversight of

sufficiency challenges is not an empty ritual.” United States v.

Ortiz, 966 F.2d 707, 711-12 (1st Cir. 1992). This is because the

reasonable-doubt standard “is a prime instrument for reducing the

risk of convictions resting on factual error.” In re Winship, 397

U.S. 358, 363 (1970). As the Court explained in Winship,

The requirement of proof beyond a

reasonable doubt has this vital role in our

criminal procedure for cogent reasons. The

accused during a criminal prosecution has at

stake interest of immense importance, both

because of the possibility that he may lose

his liberty upon conviction and because of the

certainty that he would be stigmatized by the

15
conviction. Accordingly, a society that

values the good name and freedom of every

individual should not condemn a man for

commission of a crime when there is reasonable

doubt about his guilt. . . . To this end, the

reasonable-doubt standard is indispensable,

for it impresses on the trier of fact the

necessity of reaching a subjective state of

certitude of the facts in issue.

Id. at 363-64 (citation omitted) (internal quotation marks

omitted). The reasoanble-doubt standard not only gives “concrete

substance for the presumption of innocence,” id. at 363, but also

gives the citizenry confidence in the fairness of its criminal

justice system: 

[U]se of the reasonable-doubt standard is

indispensable to command the respect and

confidence of the community in applications of

the criminal law. It is critical that the

moral force of the criminal law not be diluted

by a standard of proof that leaves people in

doubt whether innocent men are being

condemned. It is also important in our free

society that every individual going about his

ordinary affairs have confidence that his

government cannot adjudge him guilty of a

criminal offense without convincing a proper

factfinder of his guilt with utmost certainty. 

Id. at 364. 

“Despite the importance of the reasonable doubt standard

in safeguarding the rights of criminal defendants, the term has

eluded clear definition.” United States v. Olmstead, 832 F.2d 642,

645 (1st Cir. 1987). Indeed, we have observed that “[m]ost efforts

at clarification result in further obfuscation of the concept.” 

Id. Nevertheless, “we have attempted to describe the level of

16
certainty necessary to support a criminal conviction.” Morgan v.

Dickhaut, 677 F.3d 39, 47 (1st Cir. 2012). We will “not give

credence to ‘evidentiary interpretations and illations that are

unreasonable, insupportable, or overly speculative.’” Leftwich v.

Maloney, 532 F.3d 20, 23 (1st Cir. 2008) (quoting United States v.

Spinney, 65 F.3d 231, 234 (1st Cir. 1995)). The existence of some

metaphysical doubt, however, does not require a verdict in favor of

the accused; “it is enough that all ‘reasonable’ doubts be

excluded.” Stewart v. Coalter, 48 F.3d 610, 616 (1st Cir. 1995). 

A verdict satisfying this standard “may be supported by

circumstantial evidence alone,” Morgan, 677 F.3d at 47, but we also

have noted the limitations of circumstantial evidence: “[W]e are

loath to stack inference upon inference in order to uphold the

jury’s verdict.” United States v. Valerio, 48 F.3d 58, 64 (1st

Cir. 1995). In the end, 

[i]f the evidence viewed in the light most

favorable to the verdict gives equal or nearly

equal circumstantial support to a theory of guilt

and a theory of innocence of the crime charged,

this court must reverse the conviction. This is so

because . . . where an equal or nearly equal theory

of guilt and a theory of innocence is supported by

the evidence viewed in the light most favorable to

the prosecution, a reasonable jury must necessarily

entertain a reasonable doubt.

United States v. Flores-Rivera, 56 F.3d 319, 323 (1st Cir. 1995)

(alterations in original) (internal quotation marks omitted).

2.

17
In this case, Mr. Burgos was convicted of conspiracy to

distribute and to possess with intent to distribute marijuana. To

affirm his conviction, we must determine whether a reasonable jury

could conclude that the Government proved beyond a reasonable doubt

each element of the crime: (1) “a conspiracy existed,” (2)

Mr. Burgos “had knowledge of the conspiracy” and (3) Mr. Burgos

“knowingly and voluntarily participated in the conspiracy.” United

States v. Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011). With

respect to the second element, the Government must establish that

the defendant had knowledge of the crime charged. Pérez-Meléndez,

599 F.3d at 43. Showing that the defendant had knowledge of

generalized illegality is insufficient, id.; the Government must

show that the defendant knew the conspiracy involved a controlled

substance, but need not show that the defendant knew the specific

controlled substance being distributed, id. at 41. 

The Government may satisfy its burden in two ways: with

evidence of actual knowledge or with evidence of willful blindness. 

Id. (“Willful blindness serves as an alternate theory on which the

government may prove knowledge.”). To establish willful blindness,

the Government must prove that Mr. Burgos “was aware of a high

probability” of the existence of a conspiracy to distribute

controlled substances and that Mr. Burgos “consciously and

deliberately avoided learning of that fact.” United States v.

Lizardo, 445 F.3d 73, 85 n.7 (1st Cir. 2006). The Government can

18
satisfy its burden with direct or circumstantial evidence, but, as

we already have stated, “charges of conspiracy cannot be made out

by piling inference upon inference.” United States v. DeLutis, 722

F.2d 902, 907 (1st Cir. 1983) (citing Direct Sales Co. v. United

States, 319 U.S. 703, 711 (1943)).

Turning to the third element of the conspiracy

charge--whether Mr. Burgos knowingly and voluntarily participated

in the conspiracy--“the evidence must establish that the defendant

both intended to join the conspiracy and intended to effectuate the

objects of the conspiracy.” Dellosantos, 649 F.3d at 116. A

defendant “must in some sense promote [the conspiracy] himself,

make it his own, have a stake in its outcome.” United States v.

Aponte-Suárez, 905 F.2d 483, 491 (1st Cir. 1990) (alteration in

original) (internal quotation marks omitted). Although a financial

stake in the success of the conspiracy is not “essential” to

establish this element, United States v. Isabel, 945 F.2d 1193,

1203 (1st Cir. 1991), we have suggested that it is not reasonable

to conclude that a defendant who is “indifferent” to the conspiracy

was a member of it, see Dellosantos, 649 F.3d at 122-23 & n.15. 

Mr. Burgos concedes the existence of a conspiracy; he

challenges, however, the Government’s proof with respect to the

second and third elements of the charged conspiracy. We turn

first, therefore, to the element of knowledge.

19
B. Evidence at Trial--Knowledge

1.

The Government maintains that the evidence presented at

trial would allow a reasonable jury to conclude beyond a reasonable

doubt that Mr. Burgos had actual knowledge of, or was willfully

blind to, Ramos’s drug operations. The Government points to three

pieces of evidence that, it believes, taken together, create an

inference of knowledge on Mr. Burgos’s part. The Government argues

that, 

[g]iven Burgos’s regular interaction with the

Vice Squad on his assigned patrol route, which was

within an area replete with drug crime, and his

comments to Carlson, which suggested a familiarity

with the work of the Vice Squad, a jury could

reasonably have inferred that Burgos knew that the

Vice Squad investigated primarily drug crime. And

given this inference, the jury could reasonably

have inferred that once Burgos discovered that the

Vice Squad was surveilling Ramos, Burgos knew or

was willfully blind to the existence of Ramos’s

drug distribution activity.[44]

When we evaluate the evidence presented at trial,

however, we are unable to conclude that the inferences drawn by the

Government, and apparently by the jury, are supported by the

evidence. First, Mr. Burgos’s “regular interaction with the Vice

Squad on his assigned patrol route” did not establish Mr. Burgos’s

knowledge of the Vice Squad’s work distribution. Detective Smith

testified that, once he was assigned to the Vice Squad, he

 Appellee’s Br. 17. 44

20
encountered Mr. Burgos “[s]everal times a week,” but that a typical

encounter was at “[t]he gas pumps at the Worcester Police

Headquarters.” Detective Carlson related that, when he was 45

assigned to the Community Impact Division, he “would encounter

[Mr. Burgos] almost on a daily basis throughout the day.” Once 46

Detective Carlson joined the Vice Squad, however, he and Mr. Burgos

“didn’t really work on operations together.” They did “encounter 47

each other on the street on a fairly regular basis”; Detective

Carlson explained that “route officers frequently assist[ed] the

vice squad with stops and arrests,” and, when Vice Squad members

were available, they would assist route officers with their 911

calls. Detective Carlson did not quantify how many, or what 48

percentage, of the arrests with which Mr. Burgos assisted were drug

arrests. Nor did he further explain what percentage of their

encounters on the street were incidents of Detective Carlson

assisting Mr. Burgos, as opposed to vice versa. From this

evidence, a jury reasonably could infer that Mr. Burgos knew

Detectives Smith and Carlson and that he also knew the types of

crimes that the Vice Squad investigated. None of this evidence

suggests, however, that Mr. Burgos knew what percentage of the Vice

 R.326 at 111, 113. 45

 Id. at 178. 46

 Id. at 181. 47

 Id. 48

21
Squad’s time and effort was devoted to drug crimes, as opposed to

prostitution or gambling.

The same is true with the evidence concerning the area

Mr. Burgos patrolled. The Government points to the fact that the

Main South area was “an area replete with drug crime” to establish

that Mr. Burgos must have known that the Vice Squad was

investigating drug crimes at G & V. Evidence at trial 49

established, however, that Main South was known to be a “high

crime” area and that not only drug crimes, but also prostitution

and other crimes were prevalent.50

The Government also believes that Mr. Burgos’s comments

to Detective Carlson when he was promoted to the Vice Squad support

the inference that Mr. Burgos knew that the Vice Squad dedicated

nearly all of its time to drug investigations. Mr. Burgos’s vague

laudatory statements congratulating two co-workers on their

promotions--“you and Kellen, you guys do a good job up there,” --

51

suggest some familiarity with the Vice Squad, but hardly suggests

that he was familiar with the distribution of the Vice Squad’s

workload.

Viewing this evidence in the light most favorable to the

Government, a reasonable jury could conclude, beyond a reasonable

 Appellee’s Br. 17. 49

 R.326 at 60, 153. 50

 Id. at 179. 51

22
doubt, that Mr. Burgos knew that Main South was an area of high

crime, and specifically high drug crime, that the Vice Squad

investigated crimes involving drugs, prostitution and gaming, and

that the Vice Squad was surveilling G & V. From this, a jury

certainly could infer that Mr. Burgos was aware that the Vice Squad

was investigating G & V for possible criminal activity that fell

within its purview--drug crimes, prostitution or gaming. None of

the evidence, however, establishes, beyond a reasonable doubt, that 

the Vice Squad was investigating a drug crime, as opposed to

prostitution or gaming. As we have stated previously, “[i]f the

evidence viewed in the light most favorable to the verdict gives

equal or nearly equal circumstantial support to a theory of guilt

and a theory of innocence of the crime charged,” this court must

reverse the conviction. Flores-Rivera, 56 F.3d at 323 (alteration

in original) (internal quotation marks omitted). Without evidence

that pointed to the likelihood that the Vice Squad was

investigating drug crimes, the jury’s verdict cannot be sustained. 

2.

The Government next asserts that jury reasonably could

infer that Mr. Burgos, as an experienced police officer who

patrolled a high crime area, “was familiar with indicia of drug

23
dealing.” The Government further contends that, “[g]iven that 52

surveillance officers observed drug-related activity occurring at

G & V, . . . the jury could reasonably have drawn the further

inference that Burgos knew about or willfully blinded himself to

the robust drug trafficking operation that Ramos was running

there.”53

The Government, however, neither identifies what these

“indicia of drug dealing” might be, nor points to any evidence of

such indicia in the record. Turning to the drug-related activity

at G & V that was observed by surveillance officers, the brief

mentions only one instance: “Ramos walking around in front of

G & V, apparently engaged in counter-surveillance.” Mr. Burgos, 54

the Government continues, was on patrol in the area on the day that

surveillance officers observed this behavior. Notably, however,

the Government does not point to any testimony that Mr. Burgos

passed by G & V in his patrol car while Ramos was engaging in this

activity, much less that Mr. Burgos saw Ramos or made any contact

with him. The Government points to no other drug-related activity

that was seen by surveillance officers that also was seen by

Mr. Burgos. Because the record does not establish that Mr. Burgos

observed any drug-related activity at G & V, his observations

 Appellee’s Br. 19. 52

 Id. 53

 Id. at 18 (citing R.326 at 110-13). 54

24
cannot be a basis for establishing his knowledge or willful

blindness to such activity.

3.

The Government asserts that, based upon “the nature and

frequency of Burgos’s and Ramos’s interactions, as well as Burgos’s

police work in an area rife with drug activity, Burgos at the very

least knew or willfully blinded himself to Ramos’s daily cocaine

and Percocet use.” The evidence establishes that, once 55

Mr. Burgos’s brother-in-law left G & V sometime before April 2006,

Mr. Burgos visited G & V with less frequency. Ramos estimated that

Mr. Burgos brought his car in “[n]ot often, once a year, or once a

month depending on what it was”; he stated later in his testimony 56

that he thought Mr. Burgos came in “[a]bout three times” after his

brother-in-law left G & V. The Government does not point to any 57

other evidence that suggests that Mr. Burgos’s visits were more

frequent. Moreover, there is no evidence in the record to suggest

that Mr. Burgos and Ramos interacted socially with one another. 

The record similarly is devoid of any testimony concerning the

physical characteristics of regular cocaine or Percocet users and

whether Ramos displayed any of those characteristics. 

 Appellee’s Br. 20 (citations omitted). 55

 R.327 at 106. 56

 Id. 57

25
Consequently, contrary to the Government’s assertion, this is not

the type of “close relationship” that “can, as part of a larger

package of proof, assist in supporting an inference of involvement

in illicit activity.” Ortiz, 966 F.2d at 713 (involving a

defendant who was brother-in-law to another conspirator); United

States v. DiMarzo, 80 F.3d 656, 661 (1st Cir. 1996) (holding that,

“[t]ogether with the incriminating circumstantial evidence,” the

fact that the defendant, “‘the lookout,’” was brother to the

“‘pointman’” “permitted a rational jury inference that [the

defendant] well knew he was involved in a drug deal”).58

In a footnote, the Government argues that other aspects of 58

Ramos’s testimony, namely his informing “everyone that [he] had the

protection of a police officer,” id. at 124, support the inference

that Mr. Burgos was the officer in Ramos’s pocket and that

Mr. Burgos knew of the drug conspiracy. It acknowledges that Ramos

also testified that, when he made the statements that he had an

officer “under [his] wing,” he merely was engaging in braggadocio. 

R.328-1 at 33. The Government argues, however, that the jury was

free to disregard this latter testimony. See Appellee’s Br. 21

n.11. Although we agree with the general proposition that “a jury

has the prerogative to credit some parts of a witness’s testimony

and disregard other potentially contradictory portions,” United

States v. Alicea, 205 F.3d 480, 483 (1st Cir. 2000), the Government

explicitly credited Ramos’s testimony--that he did not have

Mr. Burgos under his wing--in its closing argument to the jury:

And it’s also true that Ramos didn’t have Burgos

under his wing or under his thumb. The prosecution

doesn’t have to prove that in order to prove Burgos’s

guilty of the crime of conspiracy. The prosecution only

has to prove that Burgos willfully joined a marijuana

conspiracy. Burgos didn’t need to be under Ramos’s wing

or under his thumb in order to have joined the

conspiracy.

R.329 at 47-48 (emphasis added). Consequently, having made the

(continued...)

26
4.

The Government next argues that, based on Ramos’s

questions to Mr. Burgos about police surveillance, it is reasonable

to conclude that Mr. Burgos knew of, or was willfully blind to,

Ramos’s drug distribution efforts. The Government invites the

court’s attention to two pieces of evidence. First, in late 2008,

Ramos noticed that an individual who worked with the “Gang unit”

was watching the garage through binoculars. When Ramos told 59

Mr. Burgos about seeing the officer, Mr. Burgos “told [him] that it

could be that the place was hot.” Ramos understood “hot” to mean 60

that the garage was being watched; he told Mr. Burgos, “I’ll be

careful.” Second, on January 14, 2009, Ramos asked Mr. Burgos

61

about the white, red and green vehicles that he had noticed

following him. The relevant conversation was captured by a

wiretap, and the transcript reads as follows:

BURGOS: [Aside . . . hold on, no . . .] Hello!

RAMOS: Tell me, Carlos.

BURGOS: How are you? What’s up?

(...continued) 58

argument to the jury that Ramos’s testimony was true, we do not

believe it should now be heard to suggest that the jury was free to

discount that testimony.

 R.327 at 114. 59

 Id. at 115. 60

 Id. at 116. 61

27
RAMOS: Tell me, did you find out about that for

me, or not?

BURGOS: Uh . . . yes, but no . . . I don’t know

if for there . . . there were two. Uh

. . . the white one and the red one.

RAMOS: Yes, but I saw that one already, there’s

the white one and a green van, too.

BURGOS: [Unintelligible].

RAMOS: A green one. Did you hear?

BURGOS: But I don’t know if it is for over there,

but, uh . . . they’re down there, yes.

RAMOS: I know they’re down here.

BURGOS: Yes, so let’s take it easy for now.

RAMOS: Yes, I know, I know, I know . . . that’s

why I told you that. I know.

BURGOS: Yes, yes, yes . . .

RAMOS: Okay.

BURGOS: Okay?

RAMOS: Okay.

BURGOS: Okay. Bye.[62]

The Government asserts that this conversation supports the

conclusion that Mr. Burgos knew of, or was willfully blind to,

Ramos’s distribution of drugs. Again, these conversations may

indicate that Mr. Burgos was aware of, or willfully blind to, some

criminal behavior on behalf of Ramos; however, they do not

 Id. at 130-31. 62

28
establish any knowledge or red flags with respect to drug

activity.63

5.

To this point, we have addressed the probative value of

individual pieces of evidence introduced by the Government. It is,

however, “the cumulative probability of guilt created by all the

evidence, rather than the probability of guilt created by a single

piece of evidence, that is the touchstone in deciding whether a

reasonable jury could find the defendant guilty beyond a reasonable

doubt.” United States v. Williams, 698 F.3d 374, 379 (7th Cir.

2012). We find that in evaluating the evidence as a whole,

however, we must stack inference upon inference in such a way as to

make the conclusion that Mr. Burgos had knowledge of, or was

willfully blind to, Ramos’s drug distribution too speculative to

sustain Mr. Burgos’s conviction. These inferences include: (1)

that, by virtue of his experience as a police officer and his work

in the Main South area, Mr. Burgos knew the workload distribution

of the Vice Squad, (2) that, given his friendship with Ramos,

Tellingly, Ramos was asked on direct examination what he 63

understood Mr. Burgos to have meant by “Yes, so let’s take it easy

for now.” Id. at 132. He responded by saying that he understood

Mr. Burgos to have meant “[t]hat I had to take it easy if I was

doing something against the law.” Id. at 133 (emphasis added). In

other words, Ramos understood Mr. Burgos to be offering advice

against the possibility that Ramos was involved in “something”

illegal. 

29
Mr. Burgos must have known about Ramos’s drug use and, therefore,

further should have suspected his drug dealing, (3) that, by virtue

of his patrolling the Main South area, he must have seen indicia of

drug activity at G & V and (4) that, because Ramos asked if he was

being watched, and Mr. Burgos confirmed that surveillance officers

were in the area and stated “let’s take it easy for now,”

Mr. Burgos must have been privy to Ramos’s drug distribution

activities. As we concluded in DeLutis, “[t]he piling of these

unfounded and unsupported inferences on top of each other by the

government is clearly contrary” to our own case law and that of the

Supreme Court. 722 F.2d at 907.

Indeed, we perceive little to distinguish the type of

evidence at issue here from that in Pérez-Meléndez, which we

concluded was insufficient to sustain the conviction for aiding and

abetting possession with intent to distribute cocaine. In

Pérez-Meléndez, based on an anonymous tip, DEA agents approached a

truck driven by Pérez-Meléndez and, after securing Pérez-Meléndez’s

consent to search the vehicle, discovered forty kilograms of

cocaine hidden in pallets containing reams of paper. 599 F.3d at

34. In his statement to the agents, Pérez-Meléndez stated that he

was an independent truck driver, who had received a telephone call

from co-defendant Rivera-Ríos that morning to determine if

Pérez-Meléndez could work as a truck driver that day. Id. at 35. 

Pérez-Meléndez’s statement was not consistent with respect to (1)

30
who had rented the truck, (2) who (he or Rivera-Ríos) had received

the calls from the individual giving delivery instructions and (3)

the extent to which he and Rivera-Ríos had worked together in the

past. Id. at 35-36. Although acknowledging that much of the

transaction was suspicious, we nevertheless concluded that the

Government had not met its burden of establishing the elements of

aiding and abetting possession with intent to distribute narcotics:

Some of the inferences the district court

draws are certainly plausible, but their

significance is limited. A rational factfinder

could have drawn a plausible inference that

appellants knew they were involved in an illegal

activity because appellants’ statements and

omissions concerning their job and the manner in

which they were hired for and performed that work

earlier the same day are suspicious. However, we

find that a rational factfinder could not have

concluded beyond a reasonable doubt that appellants

committed the charged crime because reasonable

doubt should have remained that (1) appellants knew

that the precise nature of that activity involved

controlled substances generally or cocaine

specifically and (2) appellants were aware of a

high probability that illegal drugs were packaged

within the pallets and consciously and deliberately

avoided learning of that fact.

. . . . 

. . . Any conclusion by the jury beyond that,

specifically imputing to appellants knowledge of or

willful blindness to the contents of the pallets,

was the product of pure speculation. This is

particularly true when one considers that the

burden is proof beyond a reasonable doubt.

The evidence the government presented in this

case would have been just as consistent with that

of a case involving the smuggling of contraband

other than a controlled substance. This contraband

could plausibly have been other goods, such as

31
weapons, stolen jewels or computer chips,

counterfeit currency, diamonds and other precious

minerals from Africa, cigars from Cuba, fuel, or

child pornography. Here the government presented

no evidence at trial that could have led a

reasonable jury to find beyond a reasonable doubt

that (1) appellants knew whatever contraband may

have been present involved a controlled substance

or (2) appellants were aware of a high probability

that illegal drugs were packaged within the pallets

and consciously and deliberately avoided learning

of that fact.

Id. at 43-46 (citations omitted).

We believe the same result obtains here. The combination

of both the Gang Unit and the Vice Squad surveilling G & V, Ramos’s

ability to secure items at well-below retail cost for resale to

Mr. Burgos, and Ramos’s inquiries, on two occasions, concerning

surveillance, were warning signs that something illegal was afoot

at G & V. There simply is no evidence, however, that Mr. Burgos

knew, or was aware of a high probability, that the illegal actions

involved drugs.

On the evidence before us, we cannot say that a rational

jury could have concluded, beyond a reasonable doubt, that

Mr. Burgos had knowledge of, or was willfully blind to, the

marijuana distribution operation being run by Ramos out of G & V.

Consequently, the Government did not meet its burden of proof with

respect to the second element of the charged conspiracy, and

Mr. Burgos’s conviction on that charge must be vacated.64

Because Mr. Burgos prevailed on his sufficiency of the

64

(continued...)

32
Conclusion

For the reasons set forth above, the judgment of the

district court is reversed, and the case is remanded with

instructions to enter a judgment of acquittal.

REVERSED and REMANDED

(...continued) 64

evidence argument concerning the second element of conspiracy, we

do not reach the issue of the sufficiency of the evidence with

respect to the third element of conspiracy--Mr. Burgos’s willing

participation therein--nor do we address any instructional error.

33