United States Court of Appeals

For the First Circuit

No. 02-2496

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES GOMES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

 Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Mark L. Stevens, by appointment of the Court, for appellant.

Donald L. Cabell, Assistant U.S. Attorney, with whom Michael

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

July 21, 2004
1 Troche was outfitted with recording equipment and the

conversations among the men that day were taped. The audio

recordings were played for the jurors, who also were given

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COFFIN, Senior Circuit Judge. Appellant James Gomes

challenges the sufficiency of the evidence underlying his

conviction for conspiracy to possess cocaine base with intent to

distribute, in violation of 18 U.S.C. § 846. He claims that the

evidence, which described a single purchase, showed only a buyerseller relationship and not the requisite agreement to deal drugs.

Because we believe the jury reasonably could find a plan between

appellant and his seller to further distribute the cocaine, we

affirm the conviction.

I. Factual Background

Gomes originally was targeted by law enforcement agents as

part of an extensive undercover investigation into illegal firearms

dealing in and around Brockton, Massachusetts. Two paid government

informants, Jose Troche and Neil Baptista, purchased two firearms

from Gomes in September 2000. The drug sale at issue here arose

when the three men met again on December 11, ostensibly for another

gun transaction. Because the conspiracy charge is based entirely

on interactions that occurred that day, we shall recount the

sequence of events in some detail. We present the facts as the

jury rationally could have found them, based on the testimony and

other evidence presented at trial, and in the light most favorable

to the government.1 United States v. Fenton, 367 F.3d 14, 17 (1st
transcripts of the recordings. Troche and Baptista also testified

at trial.

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Cir. 2004); United States v. Henderson, 320 F.3d 92, 97 (lst Cir.

2003).

The trio came together on December 11 when Troche and Baptista

drove in Troche's car to pick up Gomes at his home in Brockton at

about 3 p.m. Gomes directed Troche to a multi-unit dwelling at 68

Calmar Street, also in Brockton, and on the way he offered to

obtain some crack cocaine for Troche and Baptista. Gomes told the

others that they could easily make money selling cocaine and that

it would take him about an hour to get the drug. When they reached

68 Calmar Street, Gomes went inside alone. He returned about ten

minutes later and reported a price of $1,500.

The men then left 68 Calmar Street and, as they drove around,

discussed the possibility of dealing drugs together. At one point,

Gomes stated that he was planning to purchase half a kilogram for

$15,000. The informants dropped Gomes off at his house and then

met with their law enforcement handlers to discuss the drug

proposition. The pair was given $1,500 in cash to buy drugs, and

they picked up Gomes again and returned to 68 Calmar Street to buy

the cocaine.

Troche testified that all three men went inside, and Gomes

then introduced Troche to the apartment's tenant, a woman named

Jannelle. The transcript of the audio recording indicates a
2 This difference, as well as others noted infra, have no

impact on our analysis.

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slightly different sequence of events.2 It appears that Gomes

initially went upstairs to check on the status of the drugs and

then came back outside, either with Jannelle or followed by her

shortly thereafter. Troche apparently was introduced to Jannelle

at that time, before going up to her apartment. Other people also

were outside the building, at least some of whom went inside when

someone announced that the police were coming. In the apartment,

Troche at one point observed Gomes speaking with Jannelle, but he

could not hear the conversation. At the conclusion of their

exchange, Gomes approached Troche and told him the cocaine was not

ready yet.

The three men left the apartment, drove around for a few

minutes, and then returned to 68 Calmar Street. At this point,

Troche's testimony and the transcript again diverge somewhat. From

the transcript, supplemented by the testimony where helpful, it

appears that all three men re-entered Jannelle's building, but that

Gomes initially entered the apartment without the other two. He

came back out into the hallway to negotiate with Troche on a final

price for the drugs, agreeing upon $1,350, and Troche gave him the

cash. The transcript suggests that all three men entered the

apartment at this time, at which point Jannelle became upset that

there were so many people there. Baptista and a number of others
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left. Appellant remained in the apartment, and Troche also stayed

briefly, but he then walked down the stairs and waited in a

stairwell. Ten to fifteen minutes later, Troche knocked on the

apartment door, which was opened by Gomes, who told him that the

cocaine was ready. Troche followed Gomes into the apartment, where

he saw Jannelle hand Gomes a plastic bag containing an ounce of

crack cocaine. Gomes walked over to Troche and handed him the

drugs. The two men then left the apartment and building together.

Gomes was arrested a week later and ultimately charged with

two counts of being a felon in possession of firearms, in violation

of 18 U.S.C. § 922(g)(1), and one count of conspiracy to possess

five or more grams of cocaine base with intent to distribute, in

violation of 18 U.S.C. § 846. The jury found him guilty on one of

the firearms counts and the drug count. He was sentenced to tenyear prison terms on each of the two counts, to be served

concurrently. On appeal, he challenges only his drug conspiracy

conviction.

II. Discussion

Appellant asserts that the government failed to prove that he

conspired to distribute cocaine because the record contains no

evidence of an agreement between him and Jannelle to pursue jointly

an unlawful objective and instead shows only a simple drug

purchase. To establish a conspiracy, the government needed to show

that the defendant "entered into an agreement with another to
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commit a crime, here, an agreement . . . to distribute cocaine . .

. ." United States v. Innamorati, 996 F.2d 456, 469-70 (lst Cir.

1993); see also Fenton, 367 F.3d at 19 ("A conspiracy is an

agreement between two or more persons, including the defendant, to

commit a particular crime."). Appellant is correct that a single

drug sale, without more, does not establish a conspiracy. See

United States v. Rivera-Ruiz, 244 F.3d 263, 269 (lst Cir. 2001).

But we have observed that "[e]ven a single sale for resale,

embroidered with evidence suggesting a joint undertaking between

buyer and seller, could suffice," United States v. Moran, 984 F.2d

1299, 1303 (lst Cir. 1993). See also, e.g., Rivera-Ruiz, 244 F.3d

at 271; United States v. Portela, 167 F.3d 687, 696-98 (lst Cir.

1999).

The question we thus face is whether there are sufficient

meaningful threads in the details of the single sale before us to

permit the jury to find a joint undertaking. Viewing the evidence,

as we must, in the government's favor, and drawing from it all

reasonable inferences, we think there are.

In his opening conversation with Troche and Baptista about

drug dealing, during the first trip to Calmar Street, appellant

asserted that he could obtain drugs within the hour and that the

other two could make significant money selling cocaine. A jury

reasonably could infer from this dialogue that appellant had an ongoing relationship with a supplier, giving him confidence that he
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could acquire cocaine virtually as soon as he asked for it. And,

in fact, that inference was reinforced by the subsequent series of

events, beginning with the $1,500 offer after the first stop at

Calmar Street (when appellant went inside alone) and concluding

with the transfer of cocaine from appellant to Troche. The

evidence indicates that, as the drug preparations proceeded in

Jannelle's apartment, she remained comfortable with appellant's

presence despite her discomfort with others being there. A jury

could thus find that Jannelle's conduct as she worked on the

cocaine reflected a familiar course of dealing between the two in

relation to her drug activity. 

Even if a history of repeated sales of small quantities left

room for doubt about a conspiracy to further distribute the drugs,

the facts in this record offer more. Here, the circumstances

include Troche's visible presence as appellant's waiting customer.

When Jannelle objected to the large number of people in her

apartment, Troche – a newcomer to this group – was nevertheless

allowed to stay with appellant. Later, after waiting in the

stairwell for some time, Troche was brought into the kitchen and

became the final recipient – in Jannelle's presence – of the newly

prepared drugs she handed to appellant. Moreover, the price

negotiations were suggestive of consultation with Jannelle; both

the $1,500 original amount and the $1,350 ultimate price were
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offered after appellant returned from a solo entry into her

apartment. 

While these facts do not compel an inference that the sale to

Troche was a joint enterprise of appellant and Jannelle, they at

least render such a conclusion reasonable. Circumstantially, the

evidence suggested that appellant regularly procured drugs from

Jannelle and that, at least in this instance, she knew that he was

making the purchase on behalf of a customer who was waiting nearby.

The actual transfer occurred in her kitchen, and the jury

reasonably could conclude that she observed it take place. In

other words, the evidence points not simply to a sale to Gomes but

to a delivery of cocaine to Gomes for further distribution to

another. Given that "[t]he evaluation of the facts is entrusted

largely to the jury," Moran, 984 F.2d at 1303, and that "[w]e

defer, within reason, to inferences formulated by the jury in the

light of its collective understanding of human behavior in the

circumstances revealed by the evidence," United States v. PassosPaternina, 918 F.2d 979, 985 (lst Cir. 1990), we cannot say that

the jury's outcome here was unsupportable.

The judgment of conviction on the drug conspiracy count is

therefore affirmed.