United States v. Richard Caraballo-Rodriguez

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3768

_____________

UNITED STATES OF AMERICA,

Appellant

v.

RICHARD CARABALLO-RODRIGUEZ

On appeal from the United States District Court

For the Eastern District of Pennsylvania

(District Court No. 2-08-cr-00328-002)

District Judge: Honorable Cynthia M. Rufe

Argued on March 5, 2013 before Merits Panel

Court Ordered Sua Sponte Rehearing En Banc on

March 12, 2013

Argued En Banc on May 29, 2013

Before: McKEE, Chief Judge, SCIRICA, RENDELL,

AMBRO, FUENTES, SMITH, FISHER, CHAGARES,

JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE

and SHWARTZ, Circuit Judges.

(Filed: August 8, 2013)

Zane David Memeger, Esquire

United States Attorney

Robert Zauzmer, Esquire (Argued)

Assistant United States Attorney

Chief of Appeals

Joseph T. Labrum, III, Esquire

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellant

Christopher D. Warren, Esquire (Argued)

1500 Walnut Street, Suite 1900

Philadelphia, PA 19102

Counsel for Appellee

2

OPINION

RENDELL, Circuit Judge:

This case is the last in a long line of cases in which the

parties and the district courts have had to divine whether,

notwithstanding the jury’s guilty verdict, there was sufficient

evidence—and whether we would conclude there was

sufficient evidence—for the jury to have determined that the

defendant knew that the object of the conspiracy in which he

participated was a controlled substance, as opposed to some

other type of contraband. We say that this case is “the last”

because, after considerable thought, we have concluded that,

in many of these opinions, we failed to apply the deferential

standard the law requires on review of sufficiency of the

evidence challenges. In those cases, we employed what we

have called a “strict approach”—which has been criticized by

other judges and commentators1—and in doing so, failed to

apply the proper deferential standard that we routinely apply

in reviewing other criminal cases when a defendant

challenges the sufficiency of the evidence.

1

See, e.g., United States v. Sliwo, 620 F.3d 630, 641 n.3 (6th

Cir. 2010) (Katz, J., dissenting); Diana Eisner Lipschutz,

Comment, “Are You Telling Me Those Computer Chips Were

Really Heroin?”: A Look at the Third Circuit’s Scope of

Appellate Review for Accomplice Liability in Controlled

Substances Crimes, 82 Temp. L. Rev. 497, 519 (2009).

3

A jury concluded that Defendant Richard Caraballo-

Rodriguez knew that he was transporting a controlled

substance when he participated in a conspiracy to transport

approximately five million dollars’ worth of cocaine from

San Juan, Puerto Rico to Philadelphia, Pennsylvania.2

Relying on the reasoning of our previous opinions in

considering Caraballo-Rodriguez’s post-trial motion for

acquittal, the District Court disagreed with the jury’s verdict

because “the evidence only shows that Caraballo-Rodriguez

knew that he was being entrusted with a large suitcase which

could contain [] a ‘wide variety of contraband items . . .

including stolen jewelry, laundered money, stolen computer

chips, and counterfeiting plates.’” (Supp. App. 44 (quoting

United States v. Idowu, 157 F.3d 265, 268 (3d Cir. 1998)).)

The District Court therefore granted Caraballo-Rodriguez’s

motion and entered a judgment of acquittal.

After hearing oral argument in this case, we voted to

rehear the case en banc to address “our circuit’s seemingly

2

In this case, the government requested that the jury be

instructed on willful blindness, which the District Court

granted. Thus, the government could satisfy the “knowledge”

requirement by demonstrating actual knowledge or willful

blindness, which is “a subjective state of mind that is deemed

to satisfy a scienter requirement of knowledge.” United

States v. Wert-Ruiz, 228 F.3d 250, 255 (3d Cir. 2000).

Willful blindness, however, “is not to be equated with

negligence or lack of due care. . . . [Rather,] the defendant

himself [must have been] subjectively aware of the high

probability of the fact in question, and not merely that a

reasonable man would have been aware of the probability.”

Id; see also note 7, infra.

4

paradoxical standard of review” on sufficiency of the

evidence challenges in drug conspiracy cases. United States

v. Boria, 592 F.3d 476, 488 n.12 (3d Cir. 2010) (Fisher, J.,

concurring). We did so to decide whether our review in this

discrete area should follow form with the “strict approach”

established by our precedent, or whether we will reestablish a

familiar course with respect to sufficiency of the evidence

challenges in other situations. We have decided to do the

latter, returning to the deferential review standard we

normally apply.

For the reasons that follow, we will vacate the District

Court’s order and remand for further proceedings consistent

with this opinion.

I.

On May 1, 2008, Appellee Richard Caraballo-

Rodriguez and one of his co-defendants, Luis Deya-Diaz,

triggered the suspicion of the Drug Enforcement

Administration (“DEA”) when they purchased last-minute

one-way airplane tickets from San Juan, Puerto Rico to

Philadelphia International Airport in cash, checked no

luggage, and held no carry-on baggage.3 As a result, DEA

agents in Philadelphia organized a surveillance team at the

airport.

Despite not having checked any baggage, both Deya-

Diaz and Caraballo-Rodriguez proceeded to the baggage

claim after deplaning. Another co-defendant, Juan Cordero,

3

Deya-Diaz testified that he “had like an overnight bag with

[him].” (Supp. App. 322.)

5

met the two men at the baggage claim. Deya-Diaz retrieved

two suitcases bearing distinctive markings from the baggage

carousel and followed Cordero out of the terminal and into a

parking garage. Caraballo-Rodriguez stayed in the baggage

claim area by himself, collected two additional suitcases with

distinctive markings, and then walked with the suitcases to

the parking garage.

In the parking garage, two vehicles were parked near

each other—a Suburban and a minivan. Deya-Diaz and

Caraballo-Rodriguez were each responsible for delivering the

suitcases to the Suburban and were then directed by Cordero

to get in the minivan. DEA agents then observed the two

vehicles leave the parking garage, going opposite directions

on Interstate 95. A man named Wilfredo Aquino drove the

Suburban northbound, and Cordero drove the minivan

southbound with Deya-Diaz and Caraballo-Rodriguez as

passengers.

Aquino was pulled over in the Suburban shortly after

leaving the airport. The state trooper who pulled him over

obtained consent to search the vehicle and found the four

suitcases in the back. According to the trooper, the bags were

quite heavy.4 He then broke the locks on the suitcases and

saw bricks of cocaine packed in the suitcases. A search

warrant subsequently confirmed that two of the suitcases had

4

Specifically, the state trooper testified: “I can’t remember

exactly now whether I pushed them, or drug them, or tried to

move them, and it was like they didn’t move, I mean it was

heavy. I’m like well, that’s not clothes, that’s for sure, there’s

no way.” (Supp. App. 125.)

6

twelve kilograms each of cocaine, and the other two suitcases

had thirteen kilograms of cocaine each. In total, there were

nearly fifty kilograms of cocaine between the four bags.5 An

expert testified that the shipment had a retail value of

approximately $5 million.

Meanwhile, the minivan driven by Cordero was

stopped by state troopers on I-95 South after a state trooper

observed the minivan swerve between lanes and take evasive

actions. Cordero, Deya-Diaz, and Caraballo-Rodriguez were

all taken into custody. The agents recovered cell phones from

the men upon arrest—Cordero’s phone was missing the chip

that stores information and call history because Cordero had

thrown the chip out of the driver-side window before being

pulled over. Deya-Diaz was carrying $456 in cash,

Caraballo-Rodriguez had $33 in cash, and Cordero had

$1,173 in cash. At the police barracks, only Deya-Diaz gave

a statement—he provided a story about his reasons for

traveling to Philadelphia, claiming that he was going to

Cordero’s house in either New Jersey or New York, and that

he had no idea that Caraballo-Rodriguez was also meeting

Cordero at the airport.

A grand jury in the Eastern District of Pennsylvania

returned an indictment charging Caraballo-Rodriguez,

Cordero, and Deya-Diaz with conspiring to distribute cocaine,

in violation of 21 U.S.C. § 846, possession of cocaine with

the intent to distribute, and aiding and abetting possession

5

The parties stipulated that a laboratory test found that the

total quantity of all the cocaine was 49.1 kilograms, with a

cocaine purity of 76%.

7

with intent to distribute cocaine in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2. Deya-Diaz subsequently

entered a guilty plea and testified against Caraballo-

Rodriguez and Cordero, who both proceeded to trial and were

tried jointly.6

While on the stand, Deya-Diaz recanted the story he

gave at the police barracks and testified that he had

previously acted as a courier, shuttling cash between Puerto

Rico and New York. Before September 11, 2001, Deya-Diaz

would travel with large amounts of cash strapped to his body;

after September 11, he transported suitcases with cash from

North America to Puerto Rico. Although Deya-Diaz had

transported cash on several prior occasions, he testified that

he had not knowingly transported drugs before. According to

Deya-Diaz, in April 2008, an unidentified Dominican male

known to Deya-Diaz as “Domi” called him and offered him

$5,000 to fly to from Puerto Rico to Philadelphia and pick up

two suitcases at the Philadelphia airport. Domi told Deya-

Diaz that someone would recognize him at the airport and

take him to the parking garage, where Deya-Diaz would turn

over the suitcases. The trip was originally planned for April

25, 2008. Before the flight, Deya-Diaz met Domi in Puerto

Rico, and Domi repaid Deya-Diaz for the plane tickets,

showed him the suitcases he was to retrieve in Philadelphia,

asked Deya-Diaz to describe what he would wear at the

airport, and told Deya-Diaz that he would be paid $5,000

when he arrived in New York, after being driven from the

Philadelphia airport. Domi subsequently called Deya-Diaz

6

After a magistrate judge found that there was not probable

cause to support the arrest of Aquino, the prosecution did not

charge Aquino in the indictment.

8

and told him that the trip was rescheduled for May 1. Deya-

Diaz testified that no one told him that there were drugs in the

suitcases, and that he did not know that any other courier

would be on the flight.

Deya-Diaz further testified that Caraballo-Rodriguez

was not there when Deya-Diaz put his suitcases in the

Suburban, but that Caraballo-Rodriguez entered the van after

he was already seated. During the ride, Deya-Diaz asked

Cordero when he would be paid, but Deya-Diaz did not

remember Caraballo-Rodriguez saying anything. Deya-Diaz

testified that he, Cordero, and Caraballo-Rodriguez were

brought to the police barracks and while there, the three of

them discussed concocting a story to explain why they were

in Philadelphia.

When Deya-Diaz was questioned about his knowledge

of the contents of the suitcases, he initially said “I didn’t

know it was drugs. I knew that it was something bad that was

happening, because nobody is going to pay five thousand

dollars for picking up the suitcases.” (Supp. App. 308.) The

questioning continued:

Q: Now, going back to May 1st of 2008, did

anyone tell you what was going to be in the

suitcases on that occasion?

A: No.

Q: And what did you understand would be in the

suitcases?

9

A: My common sense tells me that paying five

thousand dollars just to come to Philadelphia to

pick up two suitcases at the airport, it wasn’t for

clothing.

Q: And did you –

A: I always guessed that it was something illegal.

Q: And did you come to realize it was drugs?

A: When the suitcases came down from the

conveyor and I picked up both suitcases, I

noticed that for their size they were very heavy.

(Id. at 312.) On cross-examination, Deya-Diaz said that when

he picked the suitcases up, he knew they contained

“something forbidden,” and “guessed” that it was drugs. (Id.

at 429.) He added, “[c]ommon sense, drugs. Who else would

take five thousand dollars to pick up a suitcase full of

clothes?” (Id. at 435.)

The government introduced phone records indicating

that Deya-Diaz had received calls from, and placed calls to,

the same phone number several times between April 25 and

May 1. Deya-Diaz testified that this number belonged to

Domi. Caraballo-Rodriguez’s phone records indicated that he

had had similar contact with the same phone number

throughout the same time period, although there was no

evidence as to the substance of those calls. Before the May 1

flight, both Deya-Diaz’s phone and Caraballo-Rodriguez’s

phone contacted that number as well.

10

The government also presented expert testimony of a

state narcotics agent, Alan Basewitz. Agent Basewitz

testified that this case involved several indicia of organized

drug trafficking:

If they have no checked bags, it’s a cash one

way ticket, it’s coming from San Juan, and there

is no carry on baggage from a passenger, those

characteristics in combination are something

that I would, if I could, go lights and siren to the

airport to observe, not to arrest, to see if

anybody is going to be claiming baggage.

(Id. at 615-16.) Agent Basewitz also described the typical

characteristics of couriers:

They are trusted individuals. The couriers, if

you’re transporting a significant amount, their

addresses or families and information are

known to the person who is either coordinating

or supplying. The inverse is not true, in most

instances. And they have to be trusted because

of the amounts that they ferry back and forth,

both if it’s cash, depending on which direction

you’re heading, or if it’s drugs.

They are, sometimes, trained what to say to

police, if they’re told to ignore them or come up

with a concoction of a story. It is a very risky

thing. Sometimes they are not told the exact

type of drug. Quite often during my proffers

and interviews and intelligence information

through conversations with informants and

11

cooperators and other law enforcement and

most through my personal interactions with

these individuals, they know it’s drugs. They

may not know the type, depending on the

group. They may not know the weight. But,

they know or should have known that it’s drugs.

(Id. at 622-23.)7

After a five-day trial, in which the government

presented the evidence discussed above, the jury was

instructed and given its charge. The District Court gave a

willful blindness instruction at the government’s request.8 On

7

Agent Basewitz distinguished the present situation from a

“blind mule” situation, such as when a person is asked to

carry a bag for a person known to him or when a baggage

handler switches baggage tags and a person’s tag is placed on

another suitcase containing drugs. (Supp. App. 624-26.)

8

The District Court’s willful blindness instruction stated, in

pertinent part:

In this case, there is a question whether . . .

Richard Caraballo-Rodriguez knew that the

luggage in question contained cocaine. When,

as in this case, knowledge of a particular fact or

circumstance is an essential part of the offense

charged, the government may prove that . . .

Caraballo-Rodriguez deliberately closed his

eyes to what would otherwise have been

obvious to him.

12

July 6, 2009, the jury returned a verdict convicting both

Caraballo-Rodriguez and Cordero of conspiracy to distribute

No one can avoid responsibility for a crime by

deliberately ignoring what is obvious. Thus,

you may find that . . . Caraballo-Rodriguez

knew that the luggage in question contained

cocaine based on evidence which proves that:

(1) . . . Caraballo-Rodriguez consciously and

deliberately tried to avoid learning about this

circumstance.

You may not find that . . . Caraballo-Rodriguez

knew that the luggage in question contained

cocaine if you find that the defendant actually

believed that this circumstance did not exist.

Also, you may not find that . . . Caraballo-

Rodriguez knew that the luggage in question

contained cocaine if you find only that . . .

Caraballo-Rodriguez should have known of the

circumstance or that a reasonable person would

have known of a high probability of the

circumstance. It is not enough that . . .

Caraballo-Rodriguez may have been stupid or

foolish, or may have acted out of inadvertence

or accident. You must find that . . . Caraballo-

Rodriguez [was] actually aware of a high

probability of the fact that the luggage in

question contained cocaine, deliberately

avoided learning about it, and did not actually

believe that it did not exist.

(Supp. App. 32 n.134.)

13

and possess with intent to distribute more than five kilograms

of cocaine, in violation of 21 U.S.C. § 846, and possession of

more than five kilograms of cocaine with intent to distribute,

in violation of 21 U.S.C. § 841(a)(1).

Thereafter, Caraballo-Rodriguez and Cordero filed a

joint post-trial motion for acquittal, which the District Court

granted as to Caraballo-Rodriguez on September 7, 2011.

Looking to our precedent, the District Court concluded that

the government’s evidence was not sufficient to support an

inference that Caraballo-Rodriguez knew that the object of

the conspiracy was drugs. The District Court observed that:

(1) Deya-Diaz’s testimony did not include “statements . . .

made to or about” Caraballo-Rodriguez, and therefore Deya-

Diaz’s testimony did not “alter the calculus of evidence”; (2)

the government did not present any evidence of the substance

of the phone calls placed and received by Caraballo-

Rodriguez; (3) there was no evidence of a prior relationship

between the men; and (4) there was no evidence that

Caraballo-Rodriguez had acted as a courier before. (Supp.

App. 32-39.) In considering Agent Basewitz’s testimony, the

District Court surmised that “[i]f the jury accepted Basewitz’s

testimony, it may have . . . infer[red] that because Caraballo-

Rodriguez was a courier, he knew the object of the conspiracy

was to smuggle drugs.” (Id. at 39.) Despite the fact that the

jury heard Agent Basewitz’s testimony and Caraballo-

Rodriguez did not object to it, the District Court nonetheless

concluded that “in the absence of any other evidence from

which the jury could permissibly draw an inference of

knowledge, the court will not permit an expert’s conclusory

statements about the defendant’s mental state to tip the

14

balance.” (Id. at 44.) Accordingly, the District Court entered

a judgment of acquittal as to Caraballo-Rodriguez.9

The government’s timely appeal followed.

II.

We exercise plenary review over an appeal from the

grant of a judgment of acquittal, and independently apply the

same standard the district court uses in deciding the motion.

See Boria, 592 F.3d at 480.

Today we consider that standard. The way courts—

our Court and district courts—review challenges leveled at

the sufficiency of the evidence in criminal trials is a fairly

basic topic upon which many courts have expounded. As the

Supreme Court stated in Jackson v. Virginia, 443 U.S. 307

(1979), “the critical inquiry on review of the sufficiency of

the evidence to support a criminal conviction . . . is whether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

Id. at 318-19 (emphasis in original). While we have set forth

the standard many times since Jackson, today we grapple

with how to faithfully adhere to it.

9

As to Cordero, the District Court held that “[a]lthough this

is admittedly a close case, we conclude that the Government’s

evidence against Cordero was sufficient to support the jury’s

verdict.” (Supp. App. 49.) We address Cordero’s appeal in a

separate opinion.

15

III.

Notwithstanding careful recitations of the appropriate

standard to apply when ruling on sufficiency of the evidence

claims, we have applied that standard in a more searching

manner when the issue involves knowledge of a controlled

substance. As noted below, this has produced inconsistent

results in drug conspiracy cases. In the present appeal, the

government urges that, sitting en banc, we should abandon

our case law that dissects the evidence presented at trial. It

insists that the jury’s verdict in this case is justified under an

ordinary sufficiency of the evidence standard of review.

Caraballo-Rodriguez, on the other hand, argues that this case

falls squarely within our line of precedent in which we have

held that the government failed to present “specific evidence”

of the defendant’s knowledge of the transaction’s subject

matter.

A.

To prove a conspiracy, the government must show: (1)

a shared unity of purpose; (2) an intent to achieve a common

illegal goal; and (3) an agreement to work toward that goal.

Boria, 592 F.3d at 481 (citing United States v. Mastrangelo,

172 F.3d 288, 291 (3d Cir. 1999)). The government must

establish each element beyond a reasonable doubt. United

States v. Coleman, 811 F.2d 804, 808 (3d Cir. 1987). It may

do so with direct or circumstantial evidence. United States v.

Brodie, 403 F.3d 123, 134 (3d Cir. 2005). Circumstantial

inferences drawn from the evidence must bear a “logical or

convincing connection to established fact.” United States v.

Cartwright, 359 F.3d 281, 291 (3d Cir. 2004).

When considering drug conspiracy cases over the past

several decades, we have viewed the second element—

16

“illegal goal”—as requiring proof that the defendant had

knowledge of the specific objective contemplated by the

particular conspiracy. Id. at 287. As mentioned above,

“knowledge” can be demonstrated by actual knowledge or

willful blindness. See Brodie, 403 F.3d at 148 (“The

knowledge element . . . may be satisfied upon a showing

beyond a reasonable doubt that a defendant had actual

knowledge or deliberately closed his eyes to what otherwise

would have been obvious to him concerning the fact in

question.” (internal quotation marks omitted)). Pursuant to

that requirement, we have examined the record in each case to

determine whether the government put forth “drug-related

evidence, considered with the surrounding circumstances,

from which a rational trier of fact could logically infer that

the defendant knew a controlled substance was involved in

the transaction at issue.” Boria, 592 F.3d at 481. While “we

have explicitly recognized that the government may

circumstantially establish the element of knowledge ‘grain-

by-grain until the scale finally tips,’” United States v.

Claxton, 685 F.3d 300, 310 (3d Cir. 2012) (quoting United

States v. Iafelice, 978 F.2d 92, 98 (3d Cir. 1992)), in many

cases we have nonetheless meticulously scrutinized the nature

and quality of the evidence, essentially reweighing it. As a

result, we have reached inconsistent conclusions regarding

the “knowledge” prong in our sufficiency of the evidence test

in drug conspiracy cases.

The trend that we revisit today began in United States

v. Wexler, 838 F.2d 88 (3d Cir. 1988). Looking back at

Wexler recently in Claxton, we characterized the path we had

taken: “we have arguably asked more of prosecutors than our

statements regarding the adequacy of circumstantial evidence

express, requiring some additional piece of evidence imputing

17

knowledge of drugs to the defendant even in the presence of

otherwise suspicious circumstances.” Claxton, 685 F.3d at

306 (internal quotation marks, alteration omitted). In Wexler

and several subsequent cases, we found that the government

had not offered specific evidence from which a jury could

infer that the defendant knew that a controlled substance—as

opposed to some other contraband—was the object of the

conspiracy. That failure, we held, was fatal and required

acquittal.

In Wexler, we concluded that the evidence, which

suggested that the defendant served as a lookout in a

conspiracy to transport hashish, was not sufficient for the jury

to find that the defendant knew that drugs were the object of

the conspiracy. 838 F.2d at 91-92. The defendant had

engaged in surveillance during the course of the drug

delivery, signaled to the driver of the truck containing the

hashish, talked to one of the drivers of the truck on two

separate occasions, and upon his arrest had a portable CB

radio he had purchased the day before under a false name. Id.

at 89-90. We nonetheless found that the record was “missing

‘the totality of evidence from which a reasonable juror could

logically infer’ that [the defendant] had knowledge of the

object of the conspiracy.” Id. at 92 (quoting Coleman, 811

F.2d at 808). Although we noted that there was “ample

circumstantial evidence . . . from which the jury could have

concluded that [the defendant] was involved in a conspiracy .

. . and that the conspiracy involved movement of the cargo of

the truck,” we concluded that there was no evidence that the

defendant knew that a controlled substance was the cargo in

the truck. Id. at 91. Notwithstanding the fact that the jury

had inferred that the defendant knew of the object of the

conspiracy, we noted that “[t]he evidence [was] just as

18

consistent, for example, with a conspiracy to transport stolen

goods, an entirely different crime.” Id. at 92.

Citing Wexler, we concluded similarly in United States

v. Salmon that the evidence was insufficient for the jury to

find that the defendant knew that drugs were involved in the

transaction at issue and reversed the conviction. 944 F.2d

1106 (3d Cir. 1991). There, the defendant had also performed

surveillance, spoken to co-conspirators, and possessed

surveillance equipment when he was arrested. Id. at 1114.

Additionally, the defendant opened a car’s trunk, and an

alleged co-conspirator approached the trunk and appeared to

retrieve a package of cocaine. Id. We rejected the

government’s argument that the defendant’s movements in

the parking lot combined with the consistency and wrapping

of the cocaine in a brown paper bag could allow a reasonable

jury to find beyond a reasonable doubt that the defendant

knew that cocaine or another controlled substance was the

object of the transaction. Id. We noted that the government

had not established that the package was ever in the trunk,

and that there was no evidence that the defendant knew what

the package contained. Id. at 1114-15.

We also reversed the jury’s verdict against the

defendant in United States v. Thomas, 114 F.3d 403 (3d Cir.

1997). There, the defendant’s co-conspirator, who was

cooperating with law enforcement, left a suitcase from which

drugs had previously been seized in a hotel room, and left a

key to the room at the front desk. Id. at 405. The defendant,

who was offered $500 by a stranger to enter the hotel room,

confirm the presence of the suitcase, and leave the door open,

was arrested after he exited the room. Id. at 404-05. There

was no evidence of a prior relationship between the defendant

19

and the co-conspirators, no evidence that the defendant had

actually spoken to the co-conspirators, no evidence of the

substance of suspicious phone calls placed and received by

the defendant, and no evidence that the defendant had even

picked up the suitcase. Id. at 405-06. Citing Wexler, we

concluded that although the defendant “knew that he was

somehow involved in an illicit activity,” under our case law

“there [was] no evidence from which a jury could permissibly

infer that [the defendant] knew that the object of the

conspiracy was to possess cocaine with the intent to

distribute.” Id. at 405, 406.

We next addressed the sufficiency of the evidence in a

drug conspiracy case in United States v. Idowu, 157 F.3d at

266. In that case, the defendant’s co-conspirator negotiated to

buy two kilograms of heroin from a DEA informant. Id. at

267. During the transaction, the defendant was introduced to

the DEA informant as the driver. Id. The defendant removed

a bag of cash from the trunk of the car, assured the informant

that the money was all there, and removed personal

documents from the bag before handing it to the informant.

Id. The defendant also removed a suitcase from the

informant’s car, placed it in his own car, opened the suitcase,

noticed that it was empty, and told his co-conspirator that

“[t]hey didn’t pack this thing.” Id. at 267-68. The informant

attempted to reassure the defendant and his co-conspirator

that something was concealed in the frame of the suitcase. Id.

at 268.

The jury convicted the defendant of conspiracy to

possess with intent to distribute heroin. Id. at 266. We

reversed, finding a “lack of specific evidence of [his]

knowledge of the transaction’s subject matter.” Id. at 270.

20

Although it was “crystal clear that [the defendant] was—and

knew that he was—involved in an illicit transaction of some

sort,” a divided panel concluded that there was not “sufficient

evidence that [he] knew that the subject matter of the

transaction was a controlled substance, rather than some other

form of contraband, such as stolen jewels or computer chips

or currency.” Id. at 266.

In dissent, Judge Stapleton urged that the evidence

supported the jury’s guilty verdict, noting that the jury could

have drawn permissible inferences from the facts: namely that

there was significant risk in the transaction, the defendant was

a “trusted confidant,” and the defendant had sole custody of

the cash at times. Id. at 271 (Stapleton, J., dissenting).

Furthermore, he observed that the defendant was assigned to

check the bag to make sure it contained what his co-

conspirator had negotiated for, from which the jury could

have easily inferred that the defendant knew his co-

conspirator was not paying for stolen jewels, computer chips,

or currency. Id. Under a “common sense approach to the

evidence,” Judge Stapleton concluded that “the jury properly

could conclude that [the defendant] was guilty as charged

beyond a reasonable doubt.” Id.

More recently, in United States v. Cartwright, 359

F.3d 281, we again concluded that the government had fallen

short of adducing evidence of the defendant’s knowledge that

the conspiracy involved drugs. In that case, the defendant

served as a lookout during a drug transaction. Id. at 286.

After the drug supplier retrieved drugs from his car—which

was in an area where there was no law enforcement

surveillance—he returned accompanied by the defendant. Id.

at 284. The government argued that the jury properly inferred

21

the defendant’s knowledge because: (1) the defendant first

appeared at the same time that the drug supplier was observed

carrying a bag of cocaine; (2) the defendant walked side-by-

side with the drug supplier, and the two were observed talking

with each other; (3) the defendant possessed a loaded semi-

automatic firearm, a cellular phone, $180 in cash, and a two-

way text messaging device upon his arrest; and (4) the

defendant did not possess keys to a vehicle of his own. Id. at

288. Noting that “where an inference as to a defendant’s

knowledge is based upon speculation, our case law forbids us

from upholding his conviction,” we concluded that the jury’s

inference that the defendant knew of the subject matter of the

transaction was impermissible because it was based solely on

speculation. Id. (citing Thomas, 114 F.3d at 406).

Accordingly, we reversed the judgment against the defendant.

We have subsequently viewed this line of cases as

requiring “some additional piece of evidence imputing

knowledge of drugs to the defendant.” Boria, 592 F.3d at

482. There has been confusion, however, as to what sort of

evidence must be offered to demonstrate “knowledge.” As

Judge Fisher noted in his concurring opinion in Boria, “[i]t

may be that the difficulty of producing evidence that the

defendant knew that the subject matter was a controlled

substance has turned our standard of review, not in name but

in application, into a requirement for direct evidence.” Id. at

488 n.12 (Fisher, J., concurring); see also Claxton, 685 F.3d

at 305-06 (“In drug conspiracy cases . . . we have arguably

asked more of prosecutors than our statements regarding the

adequacy of circumstantial evidence express . . . .”).

To add to the confusion, we have been inconsistent in

conducting our review of this knowledge element in drug

22

conspiracy cases. In another line of cases, addressing factual

situations not that different from the cases discussed above,

we purported to apply “our strict approach to sufficiency in

drug conspiracy cases,” but affirmed the jury’s verdict

because it drew what we viewed as a proper inference of

knowledge. Claxton, 685 F.3d at 307 (quoting Boria, 592

F.3d at 481 n.9).

For example, in United States v. Iafelice, 978 F.2d at

93, we held that the government’s evidence was sufficient to

show that the defendant knew that he was participating in a

criminal enterprise involving drugs, and we reversed the

district court’s grant of defendant’s motion for acquittal. In

Iafelice, the defendant drove a car to a drug transaction,

engaged in counter-surveillance before the drug deal, opened

the trunk, which contained the package of drugs, and took a

phone call during the course of the drug deal from his co-

conspirator who had negotiated the drug sale with an

undercover DEA agent. Id. at 94. In upholding the jury’s

verdict—and reversing the district court—we observed the

suspicious circumstances, and noted that “[t]he crucial

additional fact that the drugs were transported in a car owned

and operated by [the defendant] (coupled with the other

evidence . . . ) provide[d] the essential additional evidence

necessary to distinguish this case from the more limited facts

of Wexler and Salmon.” Id. at 97. As we noted, “[c]ommon

sense counsels that an owner and operator of a vehicle . . .

usually knows what is in that vehicle.” Id.

Then, in United States v. Reyeros, 537 F.3d 270 (3d

Cir. 2008), we concluded that a co-conspirator’s testimony

could provide additional evidence to allow a rational juror to

conclude beyond a reasonable doubt that a defendant knew

23

the purpose of a drug conspiracy. Id. at 279. In that case,

two brothers—Juan and Jorge Reyeros—negotiated with

several individuals to import cocaine into the United States.

Id. at 275-77. At trial, a co-conspirator testified that Juan told

the other members of the conspiracy that Jorge, a customs

inspector, would facilitate the importation, but the shipment

would have to be large enough to make it worth the risk to

Jorge’s career. Id. at 276. After the jury returned a guilty

verdict and the district court denied the brothers’ motions for

acquittal, we concluded that the co-conspirator’s testimony

would permit a rational juror to conclude that Jorge knew the

purpose of the conspiracy. Id. at 279. We also noted that

“[o]ther evidence supports that conclusion as well,” such as

the fact that “a jury could reasonably infer that Jorge would

ask his own brother, Juan, the nature of the contraband for

which he was putting his Customs career at risk,” as well as

the fact that Jorge was to receive a percentage of the imported

cocaine’s value, which suggested that he would want to know

the nature of the contraband. Id. at 279 n.12.

Following a drug conspiracy conviction in United

States v. Boria, 592 F.3d at 480, the district court granted the

defendant’s motion for acquittal. On appeal, however, we

concluded that there was sufficient evidence for a rational

jury to conclude that the defendant, who drove a tractor-

trailer that contained cocaine hidden among boxes of rotten

fruit, knew “something criminal was afoot.” Id. at 486.

Although that, by itself, was not sufficient to sustain a

conspiracy verdict, we held that a co-conspirator’s testimony

describing the defendant’s role in the conspiracy sufficed to

enable a rational jury to find that the defendant had

knowledge that he was participating in a conspiracy involving

drugs. Id. We reversed the district court’s ruling, explaining

24

that the suspicious circumstances and the “truly

distinguishing fact” that the co-conspirator testified that the

defendant was responsible for unloading drugs from the truck

and “tak[ing] the driver of the tractor-trailer to finish off what

needs to be done inside the truck . . . impute[d] to [the

defendant] knowledge that the tractor-trailer he was assigned

to direct to a garage contained drugs, which is the additional

fact necessary to support the jury’s guilty verdict.” Id. at 485.

As previously mentioned, Judge Fisher concurred separately

to note “the tension between this opinion and some of our

most recent case law.” Id. at 486 (Fisher, J., concurring).

Most recently, in United States v. Claxton, 685 F.3d at

301, we held that the evidence was sufficient to prove that the

defendant knew that the object of the conspiracy was drugs,

reversing the district court and upholding the jury’s guilty

verdict. The government presented evidence that the

defendant was a member of a group of individuals who

routinely brought cocaine from Colombia into Venezuela, and

then flew the cocaine to the Virgin Islands so that it could be

smuggled into the continental United States. Id. at 302.

Although there was no evidence that the defendant handled

drugs himself, a co-conspirator testified that the defendant

“retriev[ed] the girls out of the airport in St. Thomas, [took]

them to [another co-conspirator], check[ed] them into [a]

hotel[,] and [paid] them.” Id. (internal quotation marks

omitted). Consistent with this testimony, the “girls”—women

hired to transport the drug sales’ cash proceeds from North

Carolina to the Virgin Islands—testified as to their encounters

with the defendant. Id. at 302-04. Furthermore, another co-

conspirator repeatedly identified the defendant as a member

of the organization, and testified that he had met with the

defendant several times at a property where the organization’s

25

cocaine was stored and where members of the organization

talked about drug activities. Id. at 304.

A divided panel concluded that “the evidence, as a

whole, permits . . . a finding [of knowledge of the

conspiratorial object] because [the defendant] was expressly

identified as a member of the conspiracy, repeatedly took

actions to further its ends, and had a close and repeated

association with its members and facilities.” Id. at 309. We

held that although the co-conspirator testimony in this case

was different from that offered in Boria, the jury reasonably

inferred that the defendant knew the object of the conspiracy

given the totality of the evidence. Id. at 312. Although a jury

could have concluded that the defendant simply kept bad

company, we determined that we were bound by the jury’s

determination that the defendant knew what he was involved

in, as long as it was not irrational. Id.10

In his dissenting opinion, Judge Cowen attempted to

reconcile our precedent regarding the sufficiency of the

evidence in drug conspiracy cases. He observed that “an

examination of our precedent” suggested that “an inference of

knowledge can be drawn from the . . . identification as a

‘member of the organization,’ only when dominion and

control over the contraband is inherent to the role that the

defendant agreed to perform.” Id. at 314 (Cowen, J.,

dissenting). Judge Cowen also believed that the majority’s

reliance on the “totality of the circumstances” was

10

We see the majority opinion in Claxton as perhaps

presaging today’s ruling, as the majority there grappled with

the quantum of evidence and concluded that, given the

totality of the circumstances, the jury verdict should stand.

26

inconsistent with our precedent because the “totality of the

circumstances” analysis in our prior cases “relied on a

specific piece of additional evidence to support an inference

of knowledge of the conspiracy’s object.” Id. at 318. He

further opined that acquittal was required because the

evidence “equally support[ed] the inference drawn by the

majority—[the defendant’s] knowledge of drugs—and an

inference that [he] had knowledge that the conspiracy’s object

was weapons or some other contraband.” Id. at 315. Thus,

because the “additional” evidence required by our case law

was lacking, he concluded that the verdict should not stand.

Id. at 318.

B.

In looking back at these cases, our analysis has too

often been more akin to ad hoc second-guessing the juries’

verdicts than exercising a review function based on

sufficiency of the evidence.

We have set forth the appropriate standard in a

sufficiency of the evidence challenge many times. We

“review the record in the light most favorable to the

prosecution to determine whether any rational trier of fact

could have found proof of guilt[] beyond a reasonable doubt.”

Brodie, 403 F.3d at 133 (internal quotation marks and citation

omitted). Under this particularly deferential standard, we

“must be ever vigilant . . . not to usurp the role of the jury by

weighing credibility and assigning weight to the evidence, or

by substituting [our] judgment for that of the jury.” Id.

Furthermore, “we review the evidence as a whole, not in

isolation, and ask whether it is strong enough for a rational

trier of fact to find guilt beyond a reasonable doubt.” Boria,

27

592 F.3d at 480. We must sustain the jury’s verdict “if there

is substantial evidence, viewed in the light most favorable to

the government, to uphold the jury’s decision.” United States

v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003) (internal

quotation marks omitted).

However, in this particular area—drug conspiracy

cases—it appears that we have examined sufficiency by

looking at the evidence under a microscope. In all other

areas, our review for sufficiency is, as noted above, highly

deferential, and we will overturn a verdict only “if no

reasonable juror could accept the evidence as sufficient to

support the conclusion of the defendant’s guilt beyond a

reasonable doubt.” Coleman, 811 F.2d at 807 (quoting

United States v. Campbell, 702 F.2d 262, 264 (D.C. Cir.

1983)); see also United States v. Kemp, 500 F.3d 257, 293 (3d

Cir. 2007) (upholding the jury verdict in a public corruption

case and noting that “‘[t]here is no requirement . . . that the

inference drawn by the jury be the only inference possible or

that the government’s evidence foreclose every possible

innocent explanation’” (quoting Iafelice, 978 F.2d at 97 n.3));

Brodie, 403 F.3d at 126 (reversing the district court’s grant of

defendant’s motion for acquittal in a case in which the

defendant was convicted of violating the American-Cuban

embargo by conspiring to trade with Cuba).

That deference is warranted because we trust jurors to

judge the evidence, and we instruct them as to all aspects of

their decision making. Jurors are instructed extensively as to

what evidence they can consider, how to consider it, and how

to assess the credibility of witnesses, as well as the relevant

legal principles. We trust that they follow these instructions.

See, e.g., United States v. Sussman, 709 F.3d 155, 180 (3d

28

Cir. 2013) (“[T]he law presumes that jurors, conscious of the

gravity of their task, attend closely the particular language of

the trial court’s instructions in a criminal case and strive to

understand, make sense of, and follow the instructions given

them.” (internal quotation marks omitted)). Yet, in most of

the cases discussed above, we have not trusted the jurors.

Indeed, we have second-guessed them, acting not merely as

the thirteenth juror, but as the decisive vote on the jury. Too

often, we failed to ask whether any reasonable juror could

conclude that the defendant knew the transaction involved

drugs; instead, we reassessed the evidence independently.

Had we asked the appropriate question—“whether . . . any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt”—we now believe

the answer in most, if not all, of those cases would have been

“yes.” Jackson, 443 U.S. at 319 (emphasis in original).

The confusion generated by the inconsistent results in

our case law has worked to bedevil not only those adducing

the evidence—the prosecution—but also those who are called

upon to assess the evidence after the fact—namely, district

court judges. Thus, we take this opportunity to clarify the

appropriate standard to apply in reviewing a sufficiency of the

evidence challenge in drug conspiracy cases. The district

court—and we—are not to act as a thirteenth juror. Instead,

the jury’s verdict must be assessed from the perspective of a

reasonable juror, and the verdict must be upheld as long as it

does not “fall below the threshold of bare rationality.”

Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012) (“The jury

in this case was convinced, and the only question under

Jackson [v. Virginia] is whether that finding was so

insupportable as to fall below the threshold of bare

rationality.”).

29

Furthermore, we take this opportunity to clarify that,

although the prosecution must prove the defendant’s

knowledge of the conspiracy’s specific objective, that

knowledge need not be proven by direct evidence. To the

contrary, “[i]t is not unusual that the government will not

have direct evidence. Knowledge is often proven by

circumstances. A case can be built against the defendant

grain-by-grain until the scale finally tips.” Iafelice, 978 F.2d

at 98. Again, jurors are routinely instructed that their verdict

can be supported by direct or circumstantial evidence, and

reasonable inferences can be drawn from both types of

evidence.

With this in mind, we specifically disavow the

reasoning we previously embraced—that the jury’s verdict

could not stand when the evidence was as consistent with

contraband other than controlled substances, even though a

jury could rationally conclude that the defendant knew the

subject of the conspiracy was drugs. We specifically disavow

our concern in Wexler, for instance, that “[t]he evidence is

just as consistent, for example, with a conspiracy to transport

stolen goods, an entirely different crime.” 838 F.2d at 92.

While evidence proffered at trial may be consistent with

multiple possibilities, our role as a reviewing court is to

uphold the jury verdict—and not to usurp the role of the

jury—as long as it passes the “bare rationality” test.

Reversing the jury’s conclusion simply because another

inference is possible—or even equally plausible—is

inconsistent with the proper inquiry for review of sufficiency

of the evidence challenges, which is that “‘[t]he evidence

does not need to be inconsistent with every conclusion save

that of guilt if it does establish a case from which the jury can

find the defendant guilty beyond a reasonable doubt.’”

30

United States v. Cooper, 567 F.2d 252, 254 (3d Cir. 1977)

(quoting United States v. Allard, 240 F.2d 840, 841 (3d Cir.

1957)). It is up to the jury—not the district court judge or our

Court—to examine the evidence and draw inferences. Unless

the jury’s conclusion is irrational, it must be upheld. In our

role as reviewers, we must resist the urge to hypothetically

insert ourselves into the jury room for deliberations.

Of course, a finding as to a defendant’s knowledge is a

fact-specific inquiry, and we cannot prescribe a specific

formula as to what conduct or evidence is sufficient to infer

knowledge. Indeed, no one factor is dispositive, and the jury

is carefully instructed as to how it must view the evidence in

a given case. As we stated in United States v. Cooper, “‘[t]he

question is whether all the pieces of evidence against the

defendant, taken together, make a strong enough case to let a

jury find him guilty beyond a reasonable doubt.’” 567 F.2d at

254 (quoting Allard, 240 F.2d at 841). Nothing “additional”

in the way of evidence as to knowledge is required.

In reiterating this deferential standard, we are aligning

ourselves with the majority of our sister circuits, from whom

we had previously parted ways. In Boria, we specifically

noted in a footnote that most other courts of appeals do not

“adhere to our strict approach to sufficiency in drug

conspiracy cases.” 592 F.3d at 481 n.9.11 Our approach has

11

Indeed we contrasted the approaches of the Fifth, Sixth,

Seventh, and Tenth Circuits with that of the Second and

District of Columbia Circuits. See Boria, 592 F.3d at 481 n.9

(comparing the approaches of different courts with respect to

sufficiency of the evidence challenges in drug conspiracy

cases). But see Sliwo, 620 at 635 n.3 (citing Wexler in

31

been criticized, and as discussed above, this “strict approach”

has taken us away from the application of the appropriate

standard in sufficiency challenges. See, e.g., Sliwo, 620 F.3d

at 641 n.3 (Katz, J., dissenting) (“Application of Wexler in the

Third Circuit has led to . . . peculiar results. For example, it

has led Third Circuit panels to undertake detailed, thirteenth

juror-type analyses of the sufficiency of the evidence at trial,

in spite of the deferential standard of review that ordinarily

applies in such cases.”); see also Lipschutz, supra, at 510-13

(discussing cases from other circuits, which “demonstrate that

the Third Circuit is enigmatic in its willingness to overturn

jury verdicts in conspiracy and aiding and abetting controlled

substances cases based on sufficiency of evidence

challenges”).

C.

Applying our newly reestablished standard to the case

before us, we conclude that the jury’s verdict did not “fall

below the threshold of bare rationality.” Coleman, 132 S. Ct.

at 2065. It should therefore be reinstated.

Viewing the evidence in the light most favorable to the

government, as we must, the jury could have reasonably

concluded that Caraballo-Rodriguez knew that he was

involved in an illegal venture. Moreover, looking at the

evidence that the jury considered, it is clear that it was not

irrational for the jury to infer that Caraballo-Rodriguez

knew—or was willfully blind to the fact—that the illegal

venture involved transporting drugs.

reversing a jury’s verdict and the district court’s denial of the

defendant’s motion for acquittal).

32

The evidence introduced at trial established that

Caraballo-Rodriguez traveled from Puerto Rico to

Philadelphia with a small overnight bag and only $33, for the

sole purpose of taking two suitcases that he had not checked

and did not belong to him off the baggage conveyor and

putting those suitcases into a waiting vehicle. From this, the

jury could have easily concluded that he knew that was

involved in an illegal venture.

Furthermore, a rational jury could have inferred that

Caraballo-Rodriguez knew that the object of the venture was

transporting drugs. Deya-Diaz testified that he made

arrangements with Domi to be paid $5,000 to pick up

suitcases that he did not check. Given that Deya-Diaz and

Caraballo-Rodriguez had nearly identical phone records and

took the same trip, a rational jury could have inferred that

Caraballo-Rodriguez had the same arrangement. From that, a

rational jury could have inferred that Caraballo-Rodriguez

knew that he was being paid such a sum to transport a

controlled substance. Cf. United States v. Caminos, 770 F.2d

361, 366 (3d Cir. 1985) (holding that an inference of

deliberate ignorance was warranted when the defendant was

offered over $1,000 to deliver a $60 wood carving that

contained cocaine).

The evidence also suggested that Caraballo-Rodriguez

was trusted to be alone with several million dollars worth of

cocaine. When Deya-Diaz and Cordero walked to the

parking garage, they left Caraballo-Rodriguez at the baggage

carousel to pick up the two suitcases by himself. Based on

that, the jury could have inferred that Caraballo-Rodriguez

was not a “blind mule.” As Agent Basewitz’s expert

testimony suggested, although drug traffickers generally do

33

not explicitly tell couriers what they are carrying, they do not

typically trust valuable cargo to an unknowing dupe.12

Additionally, according to Deya-Diaz’s testimony, as

soon as he picked up the suitcases and felt their significant

weight, he surmised that they contained drugs. A rational

jury could have inferred the same knowledge on the part of

Caraballo-Rodriguez. Despite the fact that no DEA agent

saw Caraballo-Rodriguez specifically put the suitcases into

the Suburban, it would be rational for the jury to infer that

Caraballo-Rodriguez also experienced the weight of the

suitcases since he was responsible for taking the suitcases

from the baggage conveyor to the car. The District Court

noted that Deya-Diaz had a history of transporting cash, and

because he had previously felt the weight of suitcases full of

cash, he knew that the heavier suitcases in this case did not

contain cash, and therefore “common sense” told him they

contained drugs. Although there was no evidence that

Caraballo-Rodriguez had served as a courier before, it was

not unreasonable for the jury to find that Caraballo-Rodriguez

would have believed that the suitcases contained drugs once

he picked them up. Indeed, given the totality of the evidence

and surrounding suspicious circumstances, a rational jury

could have inferred that “common sense” would suggest to

anyone that two suitcases, each weighing at least 12

kilograms, contained drugs and not currency.

The jury certainly could have drawn other inferences.

But that is not the issue. Rather, looking at “the evidence as a

12

The jury heard Agent Basewitz’s testimony, to which

Caraballo-Rodriguez did not object. This testimony was

admitted and therefore must be considered as part of the

entire record. Boria, 592 F.3d at 480.

34

whole, not in isolation,” there is enough evidence to support

the jury’s inference of knowledge. Boria, 592 F.3d at 480.

The combination of Caraballo-Rodriguez’s travel plans,

Deya-Diaz’s testimony, the phone records, Agent Basewitz’s

expert testimony, and the jury’s own common sense

accumulated “grain-by-grain” until the jury could rationally

decide that “the scale finally tip[ped].” Iafelice, 978 F.2d at

98. This quantum of evidence provided a sufficient

foundation for the jury to rationally conclude beyond a

reasonable doubt that Caraballo-Rodriguez knew that the

object of the conspiracy was a controlled substance.

Although perhaps none of that evidence standing alone could

have supported the jury’s inference of knowledge, looking at

the record as a whole, the jury’s conclusion was not irrational.

As discussed above, it is not the business of a reviewing court

to play the role of an extra juror in assessing all the possible

inferences that could be drawn.

Moreover, the jury received a willful blindness

instruction, which permitted it to infer knowledge if the

evidence showed that “the defendant . . . was subjectively

aware of the high probability of the fact in question, and not

merely that a reasonable man would have been aware of the

probability.” Caminos, 770 F.2d at 365. Given the evidence

discussed above, the jury certainly could have reasonably

inferred that Caraballo-Rodriguez was aware of the “high

probability” that he was transporting a controlled substance.

IV.

Our opinions with respect to sufficiency of the

evidence challenges in drug conspiracy cases have not always

provided the government, defendants, or judges with clear

35

guidelines. Many cases have reached seemingly inconsistent

results, because we have appeared to act as the jury in

deciding which inference was the most plausible, rather than

asking the proper question, that is, whether the jury’s

inference was merely rational. We take this opportunity to

reiterate the appropriate standard for reviewing sufficiency of

the evidence claims, as discussed above.

Under that proper standard, the jury’s conclusion that

Caraballo-Rodriguez knew that he was involved in a drug

conspiracy was rational. Accordingly, we will vacate the

District Court’s judgment of acquittal and remand with

directions that the District Court reinstate the jury’s verdict of

conviction and proceed to sentencing.

36