United States Court of Appeals

For the First Circuit

No. 04-1882

UNITED STATES OF AMERICA,

Appellee,

v.

JASON PACHECO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya, Circuit Judge,

and Stahl, Senior Circuit Judge.

Kimberly Homan for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief, for

appellee.

January 19, 2006
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SELYA, Circuit Judge. This criminal appeal arises in an

unorthodox procedural posture. The district court, after granting

a midtrial "partial directed verdict" on a single-count indictment,

sent the case to the jury. Once a guilty verdict had been

returned, the court entered a judgment of conviction and vacated

the partial directed verdict. The defendant objects to this

sequence of events on both double jeopardy and due process grounds.

Although we reject the defendant's double jeopardy claim, we

nonetheless hold that his right to a fair trial was compromised.

Accordingly, we vacate the judgment below and remand for a new

trial on the original indictment.

I. BACKGROUND

The evidence, viewed favorably to the government's theory

of the case, would have allowed the jury to find that Rafael YejeCabrera headed a mammoth drug-trafficking ring. The organization

purveyed large quantities of cocaine and marijuana in and around

southeastern Massachusetts. At some point, a lengthy federal

investigation ensued. The probe reached a crescendo on December 8,

2001, when a tractor-trailer carrying 260 kilograms of cocaine

accidentally backed into a state police cruiser. See United States

v. Yeje-Cabrera, 430 F.3d 1, 5-6 (1st Cir. 2005) (outlining the

contours of the overall investigation and describing the

denouement).
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The jury also could have found that defendant-appellant

Jason Pacheco was a distributor for, and customer of, the

organization. The government contended that he purchased cocaine

from Yeje-Cabrera in increments up to one kilogram every few weeks

for nearly two years and that he took part in other exchanges of

money and drugs. During one incident highlighted by the

government, a member of the drug ring "re-rocked" a kilogram of

cocaine for the defendant and, acting at Yeje-Cabrera's direction,

charged him a sharply discounted fee for this illicit service.

The evidence further showed that on December 13, 2001, a

large cocaine transaction — involving all or some portion of a

twenty-five kilogram cache — took place in the defendant's garage.

Two cars arrived there around 5:30 p.m. The defendant indicated

that he wanted the occupants "to leave right away," and he himself

went outside several minutes later and began pacing between his

house and the street. Yeje-Cabrera arrived about an hour

afterwards and, around 7:00 p.m., everyone left. Officers stopped

one of the departing cars and a search revealed $50,000 in cash

hidden in a secret compartment. Although the officers discovered

no cocaine, a drug dog alerted to one area of the car. When law

enforcement agents later procured a warrant and searched the

defendant's premises, they found a large sum of cash but no drugs.
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II. TRAVEL OF THE CASE

On December 20, 2001, a federal grand jury indicted

twenty-one individuals. The indictment contained four counts.

Pacheco was named only in count 1, which charged him and the others

with "conspir[ing] . . . with each other and with persons known and

unknown to the Grand Jury, to possess with intent to distribute,

and to distribute, more than 5 kilograms of cocaine" in violation

of 21 U.S.C. §§ 841 and 846.

All of those accused, save six, pleaded guilty. One of

the intransigent six died during the early stages of the

proceedings. The defendant and the four remaining accused persons

opted for trial. Because the court granted a severance, see Fed.

R. Crim. P. 14, the defendant stood trial alone.

After the close of the government's case in chief, which

included the testimony of three cooperating witnesses who had

themselves been named in the indictment, the defense took the

position that the government had proved, at most, that the

defendant was a member of a small, peripheral conspiracy (not the

master Yeje-Cabrera conspiracy charged in the indictment).

Accordingly, the defendant moved for a directed verdict on the

ground that "there [was] a prejudicial variance between the conduct

alleged in the indictment and the proof offered at trial." The

district court sensibly deferred ruling on the motion until the

close of all the evidence. See Fed. R. Crim. P. 29(a).
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The defendant presented evidence and, after both sides

had rested, the court purported to grant a partial directed verdict

because, on the government's "best evidence," the prosecution had

proved only that the defendant was part of a small "spoke"

conspiracy, not part of the large "hub" conspiracy headed by YejeCabrera. As a result, no "reasonably instructed jury could find .

. . that he was in on a conspiracy to gain 260 kilograms" of

cocaine. At the same time, the court denied the defendant's

companion motion for a required finding of not guilty.

In its jury instructions, the district court did not

mention its narrowing construction of the charge against the

defendant but, rather, provided a generic conspiracy instruction

and a special verdict slip requiring a finding on drug quantity.

The defendant objected in vain to the mismatch between the

instructions and the court's earlier ruling (but did not suggest

the possibility of a double jeopardy violation). The jury found

the defendant guilty of conspiracy to possess with intent to

distribute more than five kilograms of cocaine.

The defendant seasonably moved for a new trial, see Fed.

R. Crim. P. 33(a), claiming, insofar as is relevant here, that the

district court's jury instructions did not "sufficiently

distinguish the separate and particular conspiracy for which the

defendant was charged from that of the overall 'Yeje-Cabrera'

conspiracy." On August 5, 2003, the district court, with the
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motion for a new trial still pending, sentenced the defendant to a

twelve-year incarcerative term. The court stated that it would

withhold the entry of judgment until it resolved the pending

motion. Something went awry, however, and the clerk entered

judgment on January 23, 2004. It was not until a month later that

the court denied the new trial motion.

The defendant immediately moved for reconsideration. The

district court granted that motion and vacated its earlier order

denying the new trial motion. At that time, the court tentatively

concluded that its so-called partial directed verdict had created

a variance between the indictment and the proof. The court also

stated its belief "that the [partial directed verdict] order was

erroneously entered" because the court had overlooked the

government's evidence of the incident that transpired in the

defendant's garage. The court announced that it was considering

whether it could "take . . . back" that erroneous order.

On June 18, 2004, the district court issued an omnibus

opinion in which it resolved sundry issues concerning the defendant

and certain of his alleged coconspirators (who had been tried

separately). As to the defendant, the court concluded that the

thought process underlying its partial directed verdict order

introduced a fatal variance into the trial, which impaired the

defendant's substantial rights. See United States v. Green, 346 F.

Supp. 2d 259, 335-37 (D. Mass. 2004). However, the court then
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ruled that the partial directed verdict was in error because the

jury had before it evidence from which it reasonably could have

found that the defendant was a member of the master Yeje-Cabrera

conspiracy. See id. at 337-38. The court went on to determine

that the jury had not been influenced by the erroneous ruling and

that, in all events, the defendant had "waived any procedural

argument that the Court [lacked the authority to] revisit the

partial directed verdict order." Id. at 338. Consequently, the

court vacated the so-called partial directed verdict, denied the

defendant's motion for a new trial, and allowed the jury's verdict

to stand. Id. This timely appeal followed.

III. ANALYSIS

The defendant mounts several challenges to his conviction

and sentence, most of which (including assignments of error

relating to the admission of evidence and aspects of the sentencing

process) we need not reach. The centerpiece of his appeal is a

claim that the sequence of events described above — the lower

court's granting of the so-called partial directed verdict, its

subsequent submission of the case to the jury, and its eventual

rescission of its original ruling after the entry of judgment —

violated the Double Jeopardy Clause. His fallback position is that

the jury verdict cannot stand because the district court

transgressed due process by denying him "a meaningful opportunity

to present a complete defense." California v. Trombetta, 467 U.S.
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479, 485 (1984). To this, the defendant adds that the court

constructively amended the indictment and/or created a material

variance between the indictment and the proof, thus further

prejudicing his rights. We first address the double jeopardy point

and then turn to the fair trial issues.

A. Double Jeopardy.

The Fifth Amendment declares that no person shall "be

subject for the same offence to be twice put in jeopardy of life or

limb." U.S. Const. amend. V. The Double Jeopardy Clause

encompasses three general protections: "it shields a defendant from

a second prosecution for the same offense after either conviction

or acquittal, and it also prohibits multiple punishments for the

same offense." United States v. Morris, 99 F.3d 476, 478 (1st Cir.

1996); see North Carolina v. Pearce, 395 U.S. 711, 717 (1969). In

this instance, the defendant invokes the second protective branch;

he claims that the district court's so-called partial directed

verdict constituted an acquittal and that, therefore, the court

unconstitutionally placed him in additional jeopardy both when it

sent the case to the jury and when it vacated its earlier ruling

after the entry of judgment.

When evaluating a double jeopardy claim, a reviewing

court first must ask "whether jeopardy attached in the original

[trial] court proceeding." Gonzalez v. Justices of the Mun. Ct.,

382 F.3d 1, 8 (1st Cir. 2004) (Gonzalez I), vacated, 125 S. Ct.
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1640 (2005) (mem.), reinstated, 420 F.3d 5 (1st Cir. 2005)

(Gonzalez II). That query must be answered affirmatively here.

In a jury case, jeopardy attaches when the jury is

empaneled and sworn. Serfass v. United States, 420 U.S. 377, 388

(1975). The district court entered its so-called partial directed

verdict at the close of all the evidence, long after jeopardy had

attached. But "the conclusion that jeopardy has attached begins,

rather than ends, the inquiry." Illinois v. Somerville, 410 U.S.

458, 467 (1973). Thus, we must take a further step and ask

"whether the [trial] court terminated jeopardy in a way that

prevents reprosecution." Gonzalez I, 382 F.3d at 8. We conclude

that the defendant's claim fails to satisfy this requirement

because we cannot say that the district court's so-called partial

directed verdict was, "in fact, a judgment of acquittal." Smith v.

Massachusetts, 125 S. Ct. 1129, 1134 (2005). We explain briefly.

It is beyond cavil that, for double jeopardy purposes,

the finality accorded to jury verdicts of acquittal extends equally

to judicially rendered judgments of acquittal. See United States

v. Martin Linen Supply Co., 430 U.S. 564, 573 (1977). Withal, the

question of what constitutes a "judgment of acquittal" is not

governed either by the form of the trial judge's ruling or by his

characterization of it. See United States v. Scott, 437 U.S. 82,

96 (1978); Martin Linen, 430 U.S. at 571. Rather, a reviewing

court "must determine whether the ruling of the judge, whatever its
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label, actually represents a resolution, correct or not, of some or

all of the factual elements of the offense charged." Martin Linen,

430 U.S. at 571; see Gonzalez II, 420 F.3d at 8-9. A resolution in

the defendant's favor of a necessary factual element of the offense

is a definitive determination that the defendant cannot be

convicted.

Here, confusion clouds any attempt to decipher the socalled partial directed verdict. First, the directed verdict

device has been alien to federal criminal procedure for over half

a century. Its function was usurped by the introduction of a

motion for judgment of acquittal. See Fed. R. Crim. P. 29 (adopted

Dec. 26, 1944). This does not much concern us; the adopted rule

represents a "change of nomenclature," not a modification of "the

nature of the motion." Id. advisory committee's note (1944).

Thus, one possible way to understand the district court's partial

directed verdict would be as a mislabeled judgment of acquittal.

However, the anatomy of the indictment belies that

understanding. The indictment charged the defendant in only a

single count, yet the district court deemed its order "partial."

It is surpassingly difficult to conceive, as a theoretical matter,

of a judgment of acquittal on a one-count indictment that leaves a

triable issue in its wake. If the order were to be read as a

straightforward judgment of acquittal, there could be nothing

"partial" about it.
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In an effort to reconcile these anomalies, the parties

offer two diametrically different characterizations of the partial

directed verdict. Neither explanation is convincing.

Relying on certain of the district court's statements at

trial and its later characterizations of its actions, the defendant

classifies the partial directed verdict as a ruling that "the

government had not presented sufficient evidence to support a jury

finding beyond a reasonable doubt that Pacheco was a member of the

'Cabrera conspiracy' charged [in the indictment]," and, therefore,

as a complete resolution of the single count at issue. We cannot

accept this taxonomy. The partial directed verdict did not reflect

a complete acquittal as to the charged conspiracy for at least

three reasons. First, if that had been its purport, there is no

earthly reason why it would have been denominated "partial."

Second, the court, in that event, would not concurrently have

denied the defendant's motion for a required finding of not guilty.

And, finally, it would then have been pointless to send the case to

the jury (as the district court did).

For its part, the government insists that the so-called

partial directed verdict was simply "a way of limiting the quantity

of cocaine attributable to Pacheco based on his . . . limited role

within the Yeje-Cabrera conspiracy." This view assumes that the

court entered the order as a result of conflating the issue of

guilt and the issue of drug quantity. See Derman v. United States,
 When making the partial directed verdict ruling, the court 1

twice advised counsel to "[f]orget Apprendi for the moment."

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298 F.3d 34, 42-43 (1st Cir. 2002) ("[I]n a drug conspiracy case,

the jury should determine . . . any facts about the conspiracy that

will increase the possible penalty . . . beyond the default

statutory maximum; and the judge should determine, at sentencing,

the particulars regarding the involvement of each participant in

the conspiracy." (footnote omitted)); see also Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000). But we think it highly unlikely

that a seasoned judge would confuse these matters, and the judge's

reasoning when he made the ruling indicates that he had placed the

Apprendi issues to one side. In addition, the court's post-ruling 1

statements, while not controlling, do not in any way indicate a

relationship between the partial directed verdict and drug quantity

per se. See Green, 346 F. Supp. 2d at 335-38.

To sum up, the partial directed verdict was less than a

complete acquittal (the defendant's position) but more than a

ruling on drug quantity (the government's position). The district

court's action falls somewhere in between those polar extremes.

Exactly where is hard to tell because the court's order has a

protean quality.

On one hand, the order may be viewed as an attempt to

grant a partial acquittal, notwithstanding the topography of the

indictment and the court's subsequent actions (e.g., its wide-
 We do not need to determine whether the difference between 2

the "hub" conspiracy and the "spoke" conspiracy resulted in unfair

prejudice. We include a reference to the variance analysis here,

however, to illustrate that the partial directed verdict plausibly

can be viewed as a ruling that contemplated limiting jury

instructions which, if properly given, might have cured any

possible prejudice. See, e.g., United States v. Tormos-Vega, 959

F.2d 1103, 1115-16 (1st Cir. 1992) (holding that, even if a

variance did occur, it did not result in prejudice to the defendant

because the court gave a curative jury instruction).

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ranging jury instructions). On the other hand — and perhaps more

plausibly — the order may be viewed as an evidentiary comment — a

limitation on the scope of the conspiracy that the court would

allow the jury to consider. On that reading, the court may have

been ruminating that the jury, if properly instructed, could not

reasonably find that the defendant was a member of the larger "hub"

conspiracy but could find that he was a member of the smaller

"spoke" conspiracy. Cf. United States v. Twitty, 72 F.3d 228, 231

(1st Cir. 1995) (noting, as to a larger charged conspiracy and a

smaller proven conspiracy, that "[s]o long as the statutory

violation remains the same, the jury can convict even if the facts

found are somewhat different than those charged — so long as the

difference does not cause unfair prejudice").2

Given these rampant uncertainties, we are reluctant to

say that the partial directed verdict — a shapeless, inherently

ambiguous ruling made without any degree of formality — must be

assumed to represent a resolution, correct or incorrect, of the

offense charged rather than a provisional attempt — later abandoned
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— to narrow the scope of the facts that the jury could find in

deciding whether to convict on the offense charged. Certainly, no

case cited by the defendant treats so fuzzy a ruling as an

acquittal, and what guidance we can glean counsels caution in

expanding our understanding of an acquittal for double jeopardy

purposes to include such a curious ukase. Cf. Smith, 125 S. Ct. at

1136 (positing that the "tentative" nature of a midtrial

sufficiency-of-the-evidence ruling would alter the double jeopardy

calculus). To take a more aggressive view would make a double

jeopardy defense available in any case in which a court succumbs to

the urge to comment during trial about the sufficiency vel non of

the evidence.

We add, moreover, that the core purposes of the Double

Jeopardy Clause do not seem to be offended by a conservative

approach to such inscrutable statements. Affording them a lessthan-acquittal status does not arm the prosecution with an

instrument of oppression, see Martin Linen, 430 U.S. at 569, but,

rather, serves to promote clarity and formality when a court

undertakes to make a ruling of intended significance. In our

judgment, these characteristics — clarity and some degree of

formality — are very desirable in situations like the one presented

here; an inscrutable comment on evidentiary sufficiency in a

single-count case that thereafter moves forward without any
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consistent follow-up should not be enough to constitute an

acquittal.

In all events, we need not answer the double jeopardy

question definitively. Here, the defendant forfeited his double

jeopardy claim by failing to raise it at the time the case was

submitted to the jury. Under the defendant's reasoning, predicated

on his understanding that the partial directed verdict was a full

acquittal, any double jeopardy violation would have matured by that

time and should have been readily apparent. Even if the defendant

viewed the partial directed verdict only as an acquittal on the

"hub" conspiracy charge, the court's submission of that charge to

the jury would have been foreclosed (and, therefore, should have

prompted an objection based on double jeopardy). In either case,

a double jeopardy claim should have been interposed while the trial

court had an opportunity either to clarify the situation or to take

corrective action. See, e.g., United States v. Taylor, 54 F.3d

967, 972 (1st Cir. 1995) ("[C]alling a looming error to the trial

court's attention affords an opportunity to correct the problem

before irreparable harm occurs."). Because the defendant failed in

that regard — he did not advance a double jeopardy theory until

well after the jury verdict had been returned — appellate review of

the current claim is limited to plain error. See United States v.

Rivera, 872 F.2d 507, 509 (1st Cir. 1989).
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To succeed under plain error review, the defendant must

show "(1) that an error occurred (2) which was clear or obvious and

which not only (3) affected the defendant's substantial rights, but

also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001). Given the ambiguity that shrouds the

district court's statements and the peculiar nature of its actions,

the occurrence of a double jeopardy violation was neither clear nor

obvious. Thus, any error surely was not plain.

B. Fair Trial Considerations.

At a bare minimum, see supra Part III(A), the lower

court's so-called partial directed verdict exemplified its decision

to narrow the scope of the charge lodged against the defendant.

After the court took that position, it was perfectly reasonable for

the defendant to expect the court to instruct the jury only on the

"spoke" conspiracy. The court did just the opposite; it gave a

generic conspiracy instruction and made specific references to the

"hub" conspiracy (e.g., "the government claims that . . . YejeCabrera . . . was the top supplier and . . . he had various people

working with him . . . [and the defendant] would distribute [YejeCabrera's cocaine]"). The court also told the jury that "[using]

the garage . . . to store cocaine . . . would be facilitating the

. . . conspiracy." By that allusion, the court could only have

meant the "hub" conspiracy.
 As stated earlier, counsel did not interpose a double 3

jeopardy claim at that point in the proceedings.

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Following the charge, defense counsel objected. As the

basis for the objection, counsel cited the incongruity between the

instructions as given and the court's earlier grant of a partial

directed verdict. The court declined to modify the instructions. 3

Of course, the jurors were not present when the court

partially directed a verdict, nor were they informed of that ruling

at any later time. This is potentially important because the

district court, when it reversed its field, used the fact that the

jury was never privy to the erroneous ruling as one reason why the

"rather generic jury charge regarding the law of conspiracy"

allowed the jurors to convict the defendant of membership in the

"hub" conspiracy. Green, 346 F. Supp. 2d at 338. We find that

reasoning problematic.

As the defendant suggests, it is possible to think of

this situation in terms of either a material variance or a

constructive amendment of the indictment. See, e.g., United States

v. Glenn, 828 F.2d 855, 858 (1st Cir. 1987) (describing a variance,

in the conspiracy context, as a "showing that the government proved

understandings or agreements different from those charged" and

explaining that a defendant can "upset a conviction" if prejudice

results); United States v. Dunn, 758 F.2d 30, 35 (1st Cir. 1985)

(explaining that a constructive amendment, which embodies a
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material alteration of the charging terms of the indictment,

whether literally or in effect, is regarded as prejudicial per se).

Either of these routes, if successfully pursued, would at most earn

the defendant a retrial, and there is a simpler, more direct route

that leads to precisely the same result. As we see it, the

district court abridged the defendant's right to a fair trial when,

after ruling one way, it proceeded to act in a wholly inconsistent

manner without any prior notice. 

Fair notice is one of the essentials in a trial, whether

at the outset of the proceedings or at subsequent stages of the

case. See, e.g., Russell v. United States, 369 U.S. 749, 760-64

(1962). The concern with fairness (and, hence, with notice) is

heightened in criminal cases. A serious and prejudicial

infringement of the right to a fair trail can violate due process.

Cf. Neron v. Tierney, 841 F.2d 1197, 1200 (1st Cir. 1988) ("The Due

Process Clause guarantees a criminal defendant that his trial will

comport with prevailing notions of fundamental fairness." (citation

and internal quotation marks omitted)). Where, as here, a court

makes a ruling that places a criminal defendant on notice of the

parameters of the charge to be put to the jury and subsequently

reneges on that commitment without forewarning the defendant, the

court's error is serious and may well be prejudicial. Cf. In re

Fidelity/Micron Sec. Litig., 167 F.3d 735, 737 n.1 (1st Cir. 1999)

(disapproving of "courts imposing rules of practice without some
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form of notice that would allow the parties and their counsel to

conform their conduct accordingly"). In this instance, prejudice

is sufficiently likely to justify a new trial.

We elaborate briefly. In announcing its partial directed

verdict, the district court led the defendant to believe, at a

minimum, that it was setting a course that would govern the

remainder of the trial — only the "spoke" conspiracy would be put

to the jury — and defense counsel was entitled to rely on that

statement. The court, however, did not deliver on its implicit

promise; it refused, despite a contemporaneous objection, to

conform its jury instructions to its earlier statement. That

action, undertaken without any notice whatever, offended

fundamental fairness. See Bae v. Peters, 950 F.2d 469, 478 (7th

Cir. 1991) (acknowledging that a due process violation can occur if

"a last-minute change in the charge . . . prejudice[s] a

defendant's opportunity to defend himself"); cf. Lee County Branch

of the NAACP v. City of Opelika, 748 F.2d 1473, 1480 n.12 (11th

Cir. 1984) (observing that "due process . . . mandate[s] that when

the rules of the game are changed, the players must be afforded a

full and fair opportunity to play by the new regulations" (citation

and internal quotation marks omitted)).

Having confirmed that an error of constitutional

proportion occurred, we are confined in the remainder of our

analysis by a special variant of the harmless error standard.
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Under that formulation, we must order a new trial unless the

government, as the beneficiary of the error, can show beyond a

reasonable doubt that the error did not contribute to the verdict.

Chapman v. California, 386 U.S. 18, 24 (1967); United States v.

Flores, 968 F.2d 1366, 1372 n.7 (1st Cir. 1992). This means that

the government must convince us, beyond any reasonable doubt, that

the guilty verdict in this case was unaffected by the district

court's tergiversation. The government has not carried that

burden.

The defendant was at least arguably prejudiced by the

court's actions in two ways. First, the transcript makes it

abundantly clear that defense counsel shaped his summation around

the narrower charge that the court had led him to believe would be

put to the jury. That argument focused exclusively on the absence

of credible evidence of the defendant's personal involvement with

cocaine. The lawyer neither challenged the defendant's putative

membership in the broader conspiracy nor addressed the concept of

multiple conspiracies. Second, defense counsel never requested a

multiple conspiracy instruction, even though the defendant, so long

as the "hub" conspiracy remained in play, may well have been

entitled to one. See, e.g., United States v. Boylan, 898 F.2d 230,

243 (1st Cir. 1990) ("If, on the evidence adduced at trial, a

reasonable jury could find more than one . . . illicit agreement,

or could find an agreement different from the one charged, a
 The soundness of the so-called partial directed verdict is 4

immaterial here. Whether or not the court's ruling was correct —

a matter on which we take no view (although we note that the

district court later said that its pronouncement was incorrect) —

the dispositive considerations are that the defendant relied on it

and that the court acted inconsistently with it.

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multiple conspiracy instruction is proper and should be given if

requested."). We think it quite likely that, had counsel known

that the court would reverse direction and permit the jury to mull

the larger "hub" conspiracy, he would have pressed for such an

instruction.

The short of it is that the defendant tailored his

summation and his requests for instructions to what the court had

indicated would be the focal point of the jury deliberations. The

court, however, pulled the rug out from under the defense when,

without notice or an opportunity for cure, it reverted to a

different, inconsistent focal point. Had defense counsel been

forewarned, he could have made a much more forceful summation and,

in all probability, received a more favorable charge (one that

included a multiple conspiracy instruction). Given the

disadvantages under which the court's error forced defense counsel

to labor, we are not persuaded that, absent the error, the verdict

would inevitably have been the same. The error, therefore, cannot

be deemed harmless.4
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IV. CONCLUSION

We need go no further. Although double jeopardy does not

bar the further prosecution of this defendant on the conspiracy

charged in count 1 of the indictment, an error occurred in the

course of his trial. The claim of error was preserved and, under

the applicable standard, the error was not harmless. Accordingly,

we vacate the judgment below and remand the case to the district

court for a new trial. The so-called partial directed verdict is

of no further force or effect and, therefore, the "scope of the

conspiracy" issue remains open.

Vacated and remanded.

— Concurring Opinion Follows —
 The indictment read as follows: 5

From a date unknown to the Grand Jury, but from at least

on or about July 7, 2000, and continuing thereafter until

on or about December 20, 2001, at Westport, elsewhere in

the District of Massachusetts, in the District of New

York, in the District of Arizona, in the District of

Tennessee, and elsewhere, 

[twenty named individuals and], 

21. JASON PACHECO, 

defendants herein, did knowingly and intentionally

combine, conspire, confederate, and agree with each other

and with other persons known and unknown to the Grand

Jury, to possess with intent to distribute, and to

distribute, more than 5 kilograms of cocaine, a Schedule

II controlled substance, in violation of Title 21, United

States Code, Section 841(a)(1).

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STAHL, Senior Circuit Judge, concurring in the judgment.

I agree with my colleagues in the majority that Jason Pacheco's

trial for cocaine conspiracy was not conducted in accordance with

the requirements of the Due Process Clause. I also agree that this

case must be remanded to the district court for a new trial. I

write separately because my view of the solution is somewhat

different from that of the majority.

I.

In December 2001, Pacheco was indicted together with

twenty co-defendants on one count of conspiring to possess cocaine

with intent to distribute. He was tried separately from the 5

others. At trial, the government presented evidence of a complex

operation involving one kingpin, Rafael Yeje-Cabrera, and numerous

aides, underlings, couriers, and dealers. Pacheco's alleged role

was that of a dealer.
 The defendant's motion was originally made in written form 6

and was entitled "Motion for a Directed Verdict." As the majority

notes, the procedural device formerly termed a motion for directed

verdict has been replaced with the motion for a judgment of

acquittal. See Fed. R. Crim. P. 29. The district court and the

parties used the "directed verdict" language as well as referring

directly to Rule 29.

 Much evidence about the Yeje-Cabrera conspiracy, which was 7

responsible for hundreds of kilograms of cocaine, had been

introduced at trial; the evidence linking Pacheco to any cocaine

was much more limited.

 The peculiar sequence of motions and orders that followed 8

the jury verdict is ably laid out in the majority opinion.

-24-

At the close of the evidence, Pacheco moved for a

directed verdict, arguing that the prosecution had not carried its

burden of proof. The district court denied the motion in part and 6

granted it in part, indicating that the government had shown, at

most, that Pacheco was a participant in a small "spoke" conspiracy,

rather than part of the overarching "hub" conspiracy headed by

Yeje-Cabrera. The court's ruling on Pacheco's motion ("the Rule 7

29 order") was entered on the docket. The judge then submitted the

case to the jury without telling them anything about his ruling.

The jury returned a verdict of guilty, specifying on the verdict

sheet that they attributed "more than five kilograms of cocaine" to

Pacheco.8

II.

On appeal, Pacheco argues that the district court's Rule

29 order acquitted him, at least partially, of the charges against

him. The judge's later submission of the case to the jury, the
 "Subjecting the defendant to post-acquittal factfinding 9

proceedings going to guilt or innocence violates the Double

Jeopardy Clause." Smith v. Massachusetts, 125 S. Ct. 1129, 1134

(2005) (quoting Smalis v. Pennsylvania, 476 U.S. 140, 145 (1986)).

 I note that the ruling was (a) made in response to the 10

defendant's written motion and after a hearing was held, (b)

discussed by the court in the context of Rule 29, and (c) entered

on the docket on March 24, 2003. The fact that the ruling was made

in response to a formal motion by the defendant is at odds with the

majority's characterization of the district court's order as a mere

"comment on evidentiary sufficiency."

-25-

argument continues, placed Pacheco in jeopardy for a crime of which

he had already been acquitted, in violation of the Double Jeopardy

Clause. We are thus called upon to determine whether and to what 9

degree the defendant's jeopardy ended when the district court

entered its order. See Gonzalez v. Justices of the Mun. Ct., 382 10

F.3d 1, 10 (1st Cir. 2004), vacated, 125 S. Ct. 1640 (2005) (mem.),

reinstated, 420 F.3d 5 (1st Cir. 2005). The majority concludes

that Pacheco's appeal fails because the district court's order did

not constitute an acquittal, and so the defendant's original

jeopardy was never terminated. I reach the same conclusion, but by

a different route from that taken by my colleagues.

A.

The question of how to characterize the district court's

order "is a difficult one and is probably not susceptible to an

abstract answer unrelated to context." United States v. Oreto, 37

F.3d 739, 748 (1st Cir. 1994). The majority opinion lists three

reasons for its conclusion: (1) the district court denominated the
 There is no doubt that the district court's actions in this 11

case were unusual and perplexing. An unusual turn of events in a

trial courtroom does not, of course, preclude a determination that

the events did not offend the Constitution. Nor is the

constitutional violation mitigated just because the judge's order

was legally erroneous. See Samaria v. United States, 437 U.S. 54,

64 (1978).

-26-

order as "partial," (2) the court denied the defendant's concurrent

motion for a required finding of not guilty, and (3) after giving

its order, the court then sent the case to the jury. All three of

these reasons boil down to the same idea: the district court acted

like the order was not a complete acquittal as to the crime

charged, so there was no acquittal. I question at least two

aspects of this appraisal.

First, the fact that the judge sent the case to the jury,

in particular, cannot logically be considered evidence that the

Rule 29 order was not an acquittal. This is because the

defendant's argument on appeal is that the act of sending the case

to the jury, itself, constituted a Double Jeopardy violation,

because that act followed an acquittal. To say that because the

judge submitted the defendant to post-order fact-finding by a jury,

therefore he did not acquit the defendant in the first place, is

circular reasoning.11

Second, the majority opinion implies, and I agree, that

it would have been lawful, under the terms of this indictment, for

the jury to convict the defendant solely of participation in the

smaller "spoke" conspiracy. See United States v. Miller, 471 U.S.
-27-

130, 131 (1985) (upholding conviction "based on trial proof that

supports only a significantly narrower and more limited, though

included, fraudulent scheme" than that alleged in the indictment).

See also United States v. North, 86 Fed. Apex. 427, 433 (1st Cir.

2004) (vacated on other grounds, 125 S. Ct. 1022 (2005)) ("A

perfect alignment between the indictment's charge and the offense

conduct of conviction is not required. . . . as long as the trial

proof corresponds to an offense which was clearly set out in the

indictment.") (citing Miller, 471 U.S. at 136); United States v.

Partially, 167 F.3d 687, 702 (1st Cir. 1999) (approving of jury

instruction that limited duration of conspiracy to scheme narrower

than, but included within, scheme alleged in indictment). 

I believe it is inconsistent to argue both that (1) the

defendant could have been convicted of either conspiracy and (2) it

was impossible for the district court to have granted a partial

acquittal. Moreover, "[the appropriate inquiry is functional, not

semantic. Thus, an inquiring court is duty bound to ascertain

'whether the ruling of the judge, whatever its label,'" counts as

an acquittal for Double Jeopardy purposes. Gonzalez, 382 F.3d at

10 (quoting United States v. Martin Linen Supply Co., 430 U.S. 564,

571 (1977)). It is therefore inappropriate to rely on the district

court's own descriptions of its action as dispositive of the import

of that action. 
 That rule states that "the court on the defendant's motion 12

must enter a judgment of acquittal of any offense for which the

evidence is insufficient to sustain a conviction." Fed. R. Crim.

P. 29. The district court evidently intended to act under Rule 29.

The judge stated, for example, "I'm telling you under Rule 29 I'm

directing down to the little [conspiracy]."

 Later, at the sentencing hearing, the judge reiterated, "[At 13

trial I became satisfied . . . that you were not part of some

-28-

B.

My analysis of whether the Rule 29 order was an acquittal

begins with the definition of "acquittal" set out by the Supreme

Court in Martin Linen and recently restated in Smith. The Court

has defined an acquittal, for Double Jeopardy purposes, to include

a court order that "actually represents a resolution, correct or

not, of some or all of the factual elements of the offense

charged." Smith, 125 S. Ct. at 1134 (quoting Martin Linen, 430

U.S. at 571). I do not think the district court's partial grant of

the defendant's motion for a directed verdict, despite the order's

nomenclature and its invocation of Rule 29, meets this definition 12

of acquittal.

It is evident from the discussion that took place at the

hearing on Pacheco’s motion for a directed verdict that the judge

drew a distinction between a large "hub" conspiracy headed by YejeCabrera and a smaller "spoke" conspiracy that Pacheco was allegedly

involved in. The judge stated his belief that the prosecution had

failed to present sufficient evidence to prove Pacheco was a member

of the overarching "hub" conspiracy. He also presumed that the 13
overarching 260 kilogram conspiracy. And that's why I gave the

partial directed verdict."

 That this was the judge's view is made clear from the 14

following statement made by the judge to the prosecutor:

THE COURT: Mr. Wilson [(defense counsel)] is not wrong

when he talks about conspiracies within conspiracies. On

[the government's] best evidence I think we have this.

Here is the, what I'll call the Cabrera conspiracy. On

your best evidence here's the Pacheco conspiracy. . . .

Now, the conspiracy for which Mr. Pacheco is liable, if

everything goes your way, is this [spoke] conspiracy.

That's what he's in on. . . . [Against his motion for

directed verdict that's the conspiracy you've proved.

You've proved no more. We're not having any more.

-29-

overarching conspiracy could be eliminated from the picture while

leaving the smaller conspiracy charge in place to be sent to the

jury.14

A criminal conspiracy is both defined and confined by the

unlawful agreement at its heart. See Brakeman v. United States,

317 U.S. 49, 53 (1942); see also United States v. Glenn, 828 F.2d

855, 857 (1st Cir. 1987) ("[Conspiracy law, like most criminal law,

focuses upon the activities of an individual defendant. It is

therefore dangerous to think of a conspiracy as a kind of "club"

that one joins . . . . Instead, the gist of the conspiracy offense

remains the agreement, and it is therefore essential to determine

what kind of agreement or understanding existed as to each

defendant.") (internal quotation marks and alterations omitted).

Pacheco was tried separately from the other defendants named in the

indictment. It was up to the jury to determine what sort of any
 The district court would also, of course, have been within 15

its power to exclude irrelevant evidence (e.g. evidence not going

to an unlawful agreement made by Pacheco himself) or to knock the

indictment down to a lesser included charge if it found the

government had failed to prove the charged offense. See Fed. R.

Crim. P. 31(c); Schmuck v. United States, 489 U.S. 705, 716-17

(1989). However, that is not what happened here. The district

court was not persuaded by defense counsel's argument that the

government had failed to prove the requisite five kilograms of

cocaine. Counsel and the court discussed, but did not resolve, the

question whether conspiracy to possess 500 grams of cocaine was a

lesser included offense of the charged five-kilogram conspiracy.

-30-

unlawful agreement, if any, Pacheco himself was guilty of making.

Although not every conspiracy Pacheco might have participated in

was covered by the language of the indictment, that language was

broad enough to cover more than one possible agreement. 

To my mind, the most apt characterization of the "hub"

conspiracy and the "spoke" conspiracy is to describe them as two

different prosecution theories of the case. The district court

could have, and probably intended to, take one of the two theories

off the table for insufficient proof. Cf. United States v. 15

O'Shea, 426 F.3d 475, 479 n.3 (1st Cir. 2005) (describing how

district court ruled the evidence was insufficient to sustain one

of the prosecution's theories of the case and accordingly

instructed the jury on only the remaining theory). It is perfectly

plausible to read Martin Linen's requirement of "a resolution,

correct or not, of some or all of the factual elements" to apply to

a discrete prosecutorial theory, as well as to an individual charge

in the indictment. In the present case, however, the court did not
-31-

adequately distinguish the two theories, and the defendant did not

point us to anyplace in the record where the distinction was laid

out, for us, on appeal, to be able to say that there was an

acquittal on one of the theories. Practically speaking, I cannot

see how we could send the case back for a new trial on the "spoke"

theory but not on the "hub" theory. We simply do not know enough

about the difference between the two alleged conspiracies.

III.

In my view, a partial acquittal on a single-count

indictment is a theoretically possible outcome. It simply did not

happen here. However, I agree with the majority that the

transpiration of events at Jason Pacheco's trial violated the

requirements of the Due Process Clause. I therefore concur in the

judgment of the court granting the defendant a new trial.