USA v. Santos, No. 06-0833 (2d Cir. 2008)

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06-0833-cr USA v. Santos 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2007 4 (Argued: June 2, 2008 Decided: September 2, 2008) 5 Docket No. 06-0833-cr 6 ------------------------------------- 7 UNITED STATES OF AMERICA, 8 Appellee, 9 - v - 10 MANUEL SANTOS, 11 Defendant-Appellant. 12 ------------------------------------- 13 14 Before: McLAUGHLIN, SACK, and LIVINGSTON, Circuit Judges. Appeal by the defendant Manuel Santos from a judgment 15 of conviction in the United States District Court for the Eastern 16 District of New York (David G. Trager, Judge) for murder while 17 engaging in a drug offense punishable under 21 U.S.C. 18 § 841(b)(1)(A), in violation of 21 U.S.C. § 848(e)(1)(A). 19 appeal, the defendant raises questions of statutory 20 interpretation with respect to section 848(e)(1)(A) and argues 21 that the evidence presented was insufficient for conviction. 22 23 24 25 26 27 28 On Affirmed. CARRIE CAPWELL, Assistant United States Attorney (Benton J. Campbell, United States Attorney for the Eastern District of New York, Jo Ann M. Navickas, Assistant United States Attorney, of counsel), Brooklyn, NY, for Appellee. 1 2 3 4 PHILIP R. SCHATZ, Wrobel & Schatz LLP, New York, NY, for Appellant. SACK, Circuit Judge: Defendant Manuel Santos was convicted, following a jury 5 trial in the United States District Court for the Eastern 6 District of New York (David G. Trager, Judge), of the murders of 7 Wilber Garces and Edgardo Bryan while engaging in a drug offense 8 punishable under 21 U.S.C. § 841(b)(1)(A), in violation of 21 9 U.S.C. § 848(e)(1)(A), and for possession and discharge of a 10 firearm in furtherance of a crime of violence, in violation of 18 11 U.S.C. § 924(c)(1)(A)(iii). 12 concurrent terms of life imprisonment and a consecutive term of 13 imprisonment of ten years. 14 He was sentenced principally to two On appeal, Santos raises questions of statutory 15 interpretation, and a related challenge to the sufficiency of the 16 evidence pertaining to his drug-related murder conviction under 17 section 848(e)(1)(A). 18 section 848(e)(1)(A) requires the government to prove that the 19 defendant was, at the time of the murder, "actively engaged in 20 drug dealing," Appellant's Br. 39; (2) what type of nexus the 21 statute requires between a murder and a drug offense; and, in 22 light of our answers to those questions, (3) whether the evidence 23 adduced at Santos's trial was sufficient to support his 24 conviction. 25 26 We are asked to determine: (1) whether We conclude that (1) because some drug conspiracies in violation of 21 U.S.C. § 846 are "punishable under" section 2 1 841(b)(1)(A), criminal liability under section 848(e)(1)(A) 2 requires no active involvement in drug distribution; (2) the 3 nexus between a murder and a drug offense need not be more than 4 the "substantive connection" described in United States v. 5 Desinor, 525 F.3d 193, 202 (2d Cir. 2008); and (3) the evidence 6 adduced at trial that Santos killed Garces and Bryan while 7 engaging in a drug offense punishable under 21 U.S.C. 8 § 841(b)(1)(A) was sufficient for a jury to convict him under 21 9 U.S.C. § 848(e)(1)(A). We therefore affirm. BACKGROUND 10 11 In setting forth the factual background of this appeal, 12 we view the evidence in the light most favorable to the 13 government, and insofar as we draw inferences, we draw them in 14 the government's favor. 15 196, 198 (2d Cir. 2004). See United States v. Morgan, 385 F.3d 16 Santos's involvement in the murders of thirty-year-old 17 Wilber Garces and fourteen-year-old Edgardo Bryan arose from his 18 acquaintance with Carlos Medina. 19 witness whose testimony was central to the government's case at 20 trial. 21 boss who sold large quantities of cocaine and marijuana. 22 Polanco's "enforcer," Medina collected drug debts and committed 23 acts of violence on Polanco's behalf. 24 Medina was a cooperating Medina worked for German Dario Polanco, a Colombian drug As In September 2000, Polanco instructed Medina to hire 25 some men to kill "Ronnie" and "El Ranco," two men Polanco blamed 26 for stealing $316,000 in cocaine proceeds from him in 1998. 3 1 Medina, in turn, hired Alex Core to commit the murders, and Core 2 subsequently enlisted Santos in the effort. 3 Medina and Santos first met on the morning of the 4 murders, September 26, 2000. According to the testimony of 5 Medina -- the cooperating witness -- Santos "wanted to know 6 everything." 7 537 (E.D.N.Y. Nov. 9, 2004). 8 Id. at 321. 9 to as his "uncle," was a "traquetero" -- which he said was a Trial Tr. 322, United States v. Santos, No. 01-crSantos first asked about the "job." Medina explained that Polanco, whom Medina referred 10 "Caribbean" word for a well-connected, heavy-selling drug dealer 11 -- who wanted two men killed for robbing him of $316,000.1 12 at 321-22. 13 his "uncle" sold "the kilos" of cocaine, and how much he would be 14 paid for the killings. 15 and Core had agreed to "$7,500 per head." 16 a parking lot on 102nd Street in Queens so that Medina and Core 17 could point out Ronnie's house to Santos. 18 motherfuckers are dead with me today." 19 Id. Santos then asked Medina the price at which he and Id. at 322. Medina told Santos that he Id. The trio drove to Santos said, "These Id. at 339. That evening, Santos, Medina, and Core returned to the 20 parking lot across from Ronnie's house and waited. 21 exited the house, got into a car in the same parking lot where 22 the trio was waiting, and began to back the car out. 1 Two people Santos A DEA expert witness on wholesale cocaine prices testified that $316,000 would buy ten to eighteen kilograms of cocaine in early 1998, the year of the alleged robbery, and eleven to fifteen kilograms in September 2000, when the killings occurred. 4 1 maneuvered his vehicle to block its exit. 2 and opened fire. 3 4 Garces and Bryan were killed. The killings were a mistake. Neither Garces nor Bryan had been Polanco's intended target. 5 6 He and Core jumped out Santos was indicted for the murders. The indictment charged that Santos, 7 8 9 10 11 12 13 14 15 16 17 18 while engaging in an offense punishable under Section 841(b)(1)(A) of Title 21 of the United States Code, to wit: conspiring to distribute five kilograms or more of a substance containing cocaine, a Schedule II controlled substance, in violation of Section 846 of Title 21, United States Code, did knowingly and intentionally kill, counsel, command, induce, procure and cause the intentional killings of Wilber Garces [and Edgardo Bryan], and such killing[s] did result. 19 Indictment 1-2, United States v. Santos, No. 01-cr-537 (E.D.N.Y. 20 May 18, 2001) (charging violations of 21 U.S.C. § 848(e)(1)(A)).2 21 At Santos's trial, the district court instructed the 22 jury on three elements the government was required to prove 23 beyond a reasonable doubt to convict Santos: (1) that he engaged 24 in a conspiracy to distribute five or more kilograms of cocaine; 25 (2) while engaging in the conspiracy, he knowingly and 26 intentionally killed Garces (Count 1) or Bryan (Count 2) or both; 27 and (3) the killings actually resulted from his actions. 28 court also instructed the jury on the elements of conspiracy, 29 noting that "[t]here are various roles members can play in a drug 2 The Santos was also charged with a firearms offense related to the killings, see 18 U.S.C. § 924(c)(1)(A)(iii), but that count is a tangential issue on this appeal. 5 1 conspiracy," including "collecting money owed" and "enforcing 2 drug debts." 3 537 (E.D.N.Y. Nov. 19, 2004). 4 that, for a conviction, "the defendant's participation in the 5 killing must be related to the drug conspiracy" and that this 6 condition would be satisfied if there was a "meaningful 7 connection between the defendant's role in the killing and his 8 participation in the drug conspiracy." 9 Trial Tr. 904, United States v. Santos, No. 01-cr- Santos was convicted. And the court instructed the jury Id. at 908. He appeals. DISCUSSION 10 11 I. Statutory Interpretation 12 Santos was convicted of violating 21 U.S.C. 13 § 848(e)(1)(A), which requires a term of imprisonment of 20 years 14 to life, and permits the death penalty, for 15 16 17 18 19 20 21 22 23 24 any person engaging in or working in furtherance of a continuing criminal enterprise, or any person engaging in an offense punishable under section 841(b)(1)(A) of this title or section 960(b)(1) of this title who intentionally kills or counsels, commands, induces, procures, or causes the intentional killing of an individual and such killing results . . . . 25 21 U.S.C. § 848(e)(1)(A) (emphasis added). The subject of this 26 appeal is Santos's conviction under the statute's second prong, 27 the drug-related murder provision. 28 Santos's challenge to his conviction implicates two 29 questions of statutory interpretation, which, as questions of 30 law, we review de novo. See United States v. Gayle, 342 F.3d 89, 6 1 91 (2d Cir. 2003), cert. denied, 544 U.S. 1026 (2005). First, 2 what is the scope of the statutory requirement that the defendant 3 was "engaging in an offense punishable under" 21 U.S.C. 4 § 841(b)(1)(A)? 5 the charged drug offense and the charged killing is required for 6 conviction? 7 8 A. Second, what sort of nexus or connection between "Engaging in an Offense Punishable Under Section 841(b)(1)(A)" 9 Santos argues that, as a matter of law, the government 10 was required to prove that he was "actively engaged in the 11 distribution of drugs." 12 Appellant's Br. 42. We disagree. "Statutory interpretation always begins with the plain 13 language of the statute, assuming the statute is unambiguous." 14 Universal Church v. Geltzer, 463 F.3d 218, 223 (2d Cir. 2006), 15 cert. denied, 127 S. Ct. 961 (2007). 16 that the language of a statute is unambiguous, its inquiry is 17 complete. 18 280, 290 (2d Cir. 2002). 19 position is supported by the legislative history of section 20 848(e)(1)(A) and principles of statutory construction favoring a 21 narrow interpretation of criminal statutes, we need not resort to 22 these modes of interpretation if the plain language of the 23 statute is clear. 24 U.S. 249, 253-54 (1992); Davis v. Mich. Dep't of Treasury, 489 25 U.S. 803, 808 n.3 (1989); Cohen v. JP Morgan Chase & Co., 498 When a court determines See, e.g., Marvel Characters, Inc. v. Simon, 310 F.3d Thus, although Santos argues that his See, e.g., Conn. Nat'l Bank v. Germain, 503 7 1 F.3d 111, 116 (2d Cir. 2007); Gottlieb v. Carnival Corp., 436 2 F.3d 335, 337-38 (2d Cir. 2006). 3 Section 848(e)(1)(A), as relevant to this appeal, 4 applies to "any person engaging in an offense punishable under 5 [21 U.S.C. §] 841(b)(1)(A) . . . who intentionally kills or 6 counsels, commands, induces, procures, or causes the intentional 7 killing of an individual and such killing results." 8 § 848(e)(1)(A) (emphasis added). 9 to in section 848(e)(1)(A), does not itself proscribe specific 21 U.S.C. Section 841(b)(1)(A), referred 10 conduct; it establishes penalties, including imprisonment for ten 11 years to life, for drug offenses involving specific types and 12 quantities of controlled substances.3 13 The penalties set forth in section 841(b) apply not 14 only to those who "knowingly or intentionally . . . manufacture, 15 distribute, or dispense, or possess with intent to manufacture, 16 distribute, or dispense, a controlled substance," id. 17 § 841(a)(1), but also to those who "attempt[] or conspire[]" to 18 do so, id. § 846. 19 n.8 (2d Cir. 2002). 20 conspires to commit any offense defined in [21 U.S.C. §§ 801-904] 21 [is] subject to the same penalties as those prescribed for the 22 offense, the commission of which was the object of the attempt or 23 conspiracy." See United States v. Richards, 302 F.3d 58, 70 That is, "[a]ny person who attempts or 21 U.S.C. § 846. Therefore, conspiracy to commit a 3 As relevant to this appeal, 21 U.S.C. § 841(b)(1)(A)(ii)(II) provides a mandatory minimum term of imprisonment for drug offenses involving five kilograms or more of cocaine. 8 1 substantive offense punishable under section 841(b)(1)(A) is 2 itself "an offense punishable under section 841(b)(1)(A)," id. 3 § 848(e)(1)(A).4 4 Consequently, and contrary to Santos's argument, a 5 defendant need not be "actively engaged in the distribution of 6 drugs," Appellant's Br. 42, in order to be convicted under the 7 drug-related murder prong of section 848(e)(1)(A). 8 need only be engaging in an offense punishable under section 9 841(b)(1)(A), which includes conspiracy to commit such an 10 The defendant offense. 11 Santos also argues that the drug-related murder prong 12 of section 848(e)(1)(A) does not apply to persons who are doing 13 no more than "working in furtherance of" a drug offense, 14 Appellant's Br. 31; that such a drug offense must be committed 15 "independent of the killing itself," id. at 36; and that it must 16 be "ongoing" when the killing occurs, id. at 35. 4 We may assume Although we have never squarely addressed the question of whether offenses "punishable under" section 841(b)(1)(A) include conspiracies, we have affirmed several convictions under the drug-related murder prong of section 848(e)(1)(A) in which the defendants were charged with engaging in a drug conspiracy, not actively engaging in the distribution of drugs. See United States v. Desinor, 525 F.3d 193, 197 (2d Cir. 2008); United States v. Frias, 521 F.3d 229, 235 (2d Cir. 2008); United States v. Walker, 142 F.3d 103, 113 (2d Cir.), cert. denied, 525 U.S. 896 (1998). Santos has brought to our attention an unpublished decision of the Sixth Circuit stating that the district court "may have been mistaken" in charging the jury that the defendants could be convicted if they "engaged in (or worked in furtherance of) a drug conspiracy," as opposed to engaging in a substantive drug offense. United States v. Robinson, Nos. 94-1538, 94-1727, 1996 WL 506498, at *13, 1996 U.S. App. LEXIS 25346, at *40 (6th Cir. Sept. 5, 1996) (unpublished), cert. denied, 520 U.S. 1181 (1997). We find this brief, unpublished dictum unpersuasive. 9 1 that these interpretations of the statute are correct. They do 2 not help Santos, however, because the drug conspiracy statute, 21 3 U.S.C. § 846, does not require proof of an overt act in 4 furtherance of the conspiracy. 5 U.S. 10, 11 (1994). 6 furtherance of it, homicidal or otherwise -- serves as the 7 predicate drug offense under section 848(e)(1)(A). 8 the defendant enters into the unlawful agreement before the 9 killing, and the conspiracy is ongoing when the killing occurs, United States v. Shabani, 513 Thus, the conspiracy itself -- and no act in So long as 10 the drug-offense and killing elements of section 848(e)(1)(A) are 11 satisfied by independent acts that overlap in time. 12 Santos, noting that he was not involved in the charged 13 drug conspiracy before the day of the murders, complains that his 14 conviction rests on an interpretation of section 848(e)(1)(A) 15 that would allow the drug-offense and killing elements to be 16 "satisfied by one and the same act." 17 disagree. 18 separate elements: one drug offense and one killing. 19 act committed in furtherance of a drug conspiracy, however, is 20 not itself the drug conspiracy or any element thereof. 21 acts -- including killings -- may and often do serve as powerful 22 circumstantial evidence that the charged conspiracy existed and 23 that the actor joined it. 24 F.3d 289, 308 (2d Cir. 2007); United States v. Aleskerova, 300 25 F.3d 286, 292-93 (2d Cir. 2002); see also United States v. Hunte, 26 196 F.3d 687, 691 (7th Cir. 1999); United States v. Johnston, 146 Appellant's Br. 33. We The "while engaging in" language does imply two An unlawful But such See United States v. Quinones, 511 10 1 F.3d 785, 789 (10th Cir. 1998), cert. denied, 525 U.S. 1088 2 (1999). 3 furtherance of a drug conspiracy cannot itself satisfy the drug- 4 offense element of section 848(e)(1)(A), it can, in appropriate 5 circumstances, persuade the jury that the defendant was a member 6 of the drug conspiracy in furtherance of which the killing was 7 committed. 8 statute. 9 B. Thus, although a murder committed by the defendant in This would be consistent with the commands of the Nexus Between Drug Offense and Killing 10 Next, Santos argues that section 848(e)(1)(A) requires 11 a "direct and substantial nexus" between the killing and the drug 12 offense. 13 a "direct and substantial nexus" means, although he suggests that 14 the killing must be "directly related . . . , either proximately 15 or temporally," to the charged drug offense, id. at 43, and that 16 a defendant cannot be convicted if the connection is "too limited 17 and attenuated," id. at 44. 18 vague to give courts and juries sufficiently concrete guidance. 19 We therefore decline to adopt them. Appellant's Br. 42. Santos does little to explain what These proposed standards are too 20 In United States v. Desinor, 525 F.3d 193 (2d Cir. 21 2008), we concluded that section 848(e)(1)(A) does require a 22 meaningful connection between the killing and the drug offense. 23 See id. at 202. 24 25 26 27 28 We explained the requirement as follows: To convict a defendant of engaging in a narcotics conspiracy resulting in murder . . . under 21 U.S.C. § 848(e)(1)(A), the government need only prove beyond a reasonable doubt that one motive for the 11 1 2 3 4 5 6 7 8 9 10 11 12 13 killing . . . was related to the drug conspiracy. The existence of other motives does not affect the government's ability to satisfy the "engaging in" element, as long as there is a substantive connection between the defendant's role in the murder . . . and his participation in the drug conspiracy. The government has no burden to establish that a drug-related motive was the sole purpose, the primary purpose, or even that it was equally as important as any non-drug-related purpose, as long as it was one purpose. Id. (citation omitted).5 14 By focusing on the defendant's motive or purpose in the 15 killing, the Desinor standard requires a finding of fact familiar 16 to and accessible by juries. 17 Desinor fully satisfies whatever "nexus" requirement might be 18 implied by the language of section 848(e)(1)(A). We think the rule set forth in 19 II. Sufficiency of the Evidence 20 We turn now to Santos's claim that the evidence 21 presented at trial was insufficient to sustain his conviction. 22 "It is well settled that a defendant seeking to overturn a 23 conviction based upon insufficiency of the evidence bears a heavy 24 burden." 25 Cir.), cert. denied, 516 U.S. 1001 (1995) (citation and internal 26 quotation marks omitted). 27 speculation and surmise alone cannot stand," United States v. United States v. Martinez, 54 F.3d 1040, 1042 (2d While "a conviction based on 5 In Desinor, we approved jury instructions stating that the government must prove a murder in connection with, and not just contemporaneous to, a serious drug offense: "For example, a defendant engaging in a narcotics conspiracy who kills a spouse in a purely non-drug-related domestic dispute would not satisfy this element . . . ." Desinor, 525 F.3d at 201. 12 1 D'Amato, 39 F.3d 1249, 1256 (2d Cir. 1994), "the jury's verdict 2 may be based entirely on circumstantial evidence," Martinez, 54 3 F.3d at 1043, and may be "inferred" from the evidence, United 4 States v. Ceballos, 340 F.3d 115, 129 (2d Cir. 2003). 5 the inference is reasonable, "it is the task of the jury, not the 6 court, to choose among competing inferences." 7 at 1043 (citing United States v. Stanley, 928 F.2d 575, 577 (2d 8 Cir.), cert. denied, 502 U.S. 845 (1991)). 9 of the two results, a reasonable doubt or no reasonable doubt, is 10 fairly possible, the court must let the jury decide the matter." 11 United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) 12 (citation, internal quotation marks, and alteration omitted). 13 sum, a conviction must be affirmed if, "after viewing the 14 evidence in the light most favorable to the prosecution, any 15 rational trier of fact could have found the essential elements of 16 the crime beyond a reasonable doubt." 17 U.S. 307, 319 (1979) (emphasis in original). 18 So long as Martinez, 54 F.3d Thus, where "either In Jackson v. Virginia, 443 Santos's sufficiency-of-the-evidence assertion consists 19 of two arguments, either one of which -- if successful -- would 20 require us to reverse his conviction. 21 insufficient evidence (1) that he conspired to distribute five 22 kilograms or more of cocaine and (2) of a substantial connection 23 between the killings and the drug conspiracy.6 24 below, we reject both arguments and conclude that the evidence 6 He argues that there was As explained Santos does not contest the sufficiency of the evidence that he shot and killed Garces and Bryan. 13 1 was sufficient to sustain Santos's conviction for drug-related 2 murder under 21 U.S.C. § 848(e)(1)(A). 3 A. The Drug Conspiracy 4 1. Generally. When a defendant challenges the 5 sufficiency of the evidence in a conspiracy case, "deference to 6 the jury's findings is especially important . . . because a 7 conspiracy by its very nature is a secretive operation, and it is 8 a rare case where all aspects of a conspiracy can be laid bare in 9 court with the precision of a surgeon's scalpel." United States 10 v. Morgan, 385 F.3d 196, 204 (2d Cir. 2004) (ellipsis in 11 original) (citation and internal quotation marks omitted). 12 record must nonetheless permit a rational jury to find: (1) the 13 existence of the conspiracy charged, see United States v. Gaskin, 14 364 F.3d 438, 460 (2d Cir. 2004), cert. denied, 544 U.S. 990 15 (2005); (2) that the defendant had knowledge of the conspiracy, 16 see United States v. Atehortva, 17 F.3d 546, 550-51 (2d Cir. 17 1994); and (3) that the defendant intentionally joined the 18 conspiracy, see United States v. Casamento, 887 F.2d 1141, 1167 19 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990). 20 in a conspiracy punishable under 21 U.S.C. § 841(b)(1)(A), the 21 government must also prove (4) that it was either known or 22 reasonably foreseeable to the defendant that the conspiracy 23 involved the drug type and quantity charged. 24 Adams, 448 F.3d 492, 499 (2d Cir. 2006).7 7 The Furthermore, United States v. "In contrast to the general conspiracy statute, 18 U.S.C. § 371, which requires the performance of an overt act, no overt 14 1 2. The Existence of the Conspiracy. Here, setting 2 aside for the moment the extent of Santos's involvement, there 3 was ample evidence that the charged drug conspiracy existed. 4 gist of a conspiracy is an agreement between two or more 5 participants to achieve a particular illegal end. 6 States v. Svoboda, 347 F.3d 471, 476 (2d Cir. 2003), cert. 7 denied, 541 U.S. 1044 (2004); United States v. Stavroulakis, 952 8 F.2d 686, 690 (2d Cir.), cert. denied, 504 U.S. 926 (1992). 9 "Moreover, the conspiratorial agreement itself may be established 10 by proof of a tacit understanding among the participants, rather 11 than by proof of an explicit agreement, and the absence of an 12 actual sale or seizure of narcotics does not render insufficient 13 the proof of a conspiracy to distribute it." 14 Desimone, 119 F.3d 217, 223 (2d Cir. 1997) (citations omitted), 15 cert. denied, 525 U.S. 874 (1998). 16 worked for Polanco, importing and distributing hundreds of 17 kilograms of cocaine and collecting drug debts and committing 18 violence on Polanco's behalf. 19 to infer reasonably that Medina and Polanco conspired to 20 distribute five kilograms or more of cocaine. 21 3. The See United United States v. Medina testified that he This evidence permitted the jury Santos's Participation in the Conspiracy. Once the 22 existence of a conspiracy has been established, the government 23 must prove that the person charged "knew of the existence of the act need be alleged or proven as a necessary element of a conspiracy under 21 U.S.C. § 846." United States v. Delvecchio, 816 F.2d 859, 864 (2d Cir. 1987); accord United States v. Shabani, 513 U.S. 10, 11 (1994). 15 1 scheme alleged in the indictment and knowingly joined and 2 participated in it." 3 (2d Cir. 1999) (citation and internal quotation marks omitted), 4 cert. denied, 528 U.S. 1094 (2000). 5 United States v. Rahman, 189 F.3d 88, 123 We have overturned conspiracy convictions for 6 insufficiency of the evidence where the government presented 7 insufficient evidence from which the jury could reasonably infer 8 that the defendant had knowledge of the conspiracy charged. 9 United States v. Friedman, 300 F.3d 111, 126 (2d Cir. 2002), See 10 cert. denied, 538 U.S. 981 (2003); United States v. Samaria, 239 11 F.3d 228, 236-38 (2d Cir. 2001); 12 United States v. Nusraty, 867 F.2d 759, 765 (2d Cir. 1989). 13 Atehortva, for example, the defendant was hired to commit a 14 kidnaping for ransom, the purpose of which was to enforce a drug 15 debt. 16 was insufficient to support a conviction for a narcotics 17 conspiracy because the government failed to prove that the 18 defendant, although he knowingly joined and participated in the 19 kidnaping plot, "knew of the existence of the . . . debt, or that 20 he knew or should have known that the debt resulted from a 21 narcotics transaction." 22 Atehortva, 17 F.3d at 548. Atehortva, 17 F.3d at 551; In We concluded that the evidence Id. at 551 (footnote omitted). We have similarly overturned conspiracy convictions 23 where, although the defendant had knowledge of the conspiracy, 24 there was insufficient evidence from which the jury could 25 reasonably have inferred that the defendant intended to join it. 26 See United States v. Ceballos, 340 F.3d 115, 127-28 (2d Cir. 16 1 2003); United States v. Young, 745 F.2d 733, 764 (2d Cir. 1984), 2 cert. denied, 470 U.S. 1084 (1985); United States v. Gaviria, 740 3 F.2d 174, 184 (2d Cir. 1984). 4 agreement to join a conspiracy, we typically look for evidence 5 that the defendant, in addition to knowing the essential nature 6 of the plan, has "associated himself with the venture in some 7 fashion, participated in it as something that he wished to bring 8 about, or sought by his action to make it succeed." 9 States v. Vargas, 986 F.2d 35, 39 (2d Cir.) (citation, internal In the absence of an explicit United 10 quotation marks, and alterations omitted), cert. denied, 510 U.S. 11 827 (1993); see also Desimone, 119 F.3d at 223 ("An individual 12 defendant's membership in a conspiracy may not be established 13 simply by his presence at the scene of a crime, nor by the fact 14 he knows that a crime is being committed. 15 requires proof of purposeful behavior aimed at furthering the 16 goals of the conspiracy."). 17 Instead, membership Here, there is more than sufficient evidence on which 18 a rational jury could have based a finding that Santos knew of 19 the drug conspiracy. 20 explained to Santos that Medina's "uncle" -- Polanco -- was a 21 heavy-selling drug dealer who wanted two men killed for robbing 22 him of $316,000. 23 drug-dealing operation, inquiring as to the price per kilogram of 24 cocaine. 25 26 On the morning of the murders, Medina Santos, in response, expressed interest in the There is also ample evidence that Santos engaged in "purposeful behavior," Desimone, 119 F.3d at 223: 17 He agreed to 1 commit the murders and in fact then shot Garces and Bryan to 2 death. 3 We are left with two questions in this regard: (a) 4 whether a rational jury could find that Santos knew these acts of 5 violence were intended to further the ongoing conspiracy to 6 distribute cocaine; and (b) whether a rational jury could find 7 that he joined the conspiracy "as something that he wished to 8 bring about" and with the intent "to make it succeed," Vargas, 9 986 F.2d at 39 (citation, internal quotation marks, and 10 11 alteration omitted). We think both inferences were permissible. Because narcotics conspiracies are illicit ventures, 12 disputes are frequently settled by force or the threat of force. 13 See, e.g., Atehortva, 17 F.3d at 548 (kidnaping for ransom to 14 enforce drug debt); see also United States v. Sureff, 15 F.3d 15 225, 228-29 (2d Cir. 1994) (noting that "drug trafficking is 16 often attended by violence"); United States v. Crespo, 834 F.2d 17 267, 271 (2d Cir. 1987) ("We often have taken judicial notice 18 that, to substantial dealers in narcotics, firearms are . . . 19 tools of the trade . . . ."), cert. denied, 485 U.S. 1007 (1988). 20 Consequently, "[a]dvancing the aim of [a narcotics] conspiracy 21 can involve performing ancillary functions such as . . . 22 enforcing discipline [and] chastising rivals." 23 Soto-Beníquez, 356 F.3d 1, 18 (1st Cir.), cert. denied, 541 U.S. 24 1074 (2004); see also United States v. Jenkins, 419 F.3d 614, 620 25 (7th Cir.) ("Different people play different roles in a drug 26 conspiracy, be it supplier, lookout, courier, or enforcer."), 18 United States v. 1 cert. denied, 546 U.S. 1051 (2005). Violence furthers such a 2 conspiracy when used to collect debts directly, as in Atehortva, 3 or, as in this case, "by sending the message that those suspected 4 of stealing from the conspiracy would be treated harshly," Soto- 5 Beníquez, 356 F.3d at 32. 6 regarding other acts of violence he had carried out in 7 furtherance of this and other drug conspiracies. 8 these facts established at trial, a reasonable jury could 9 permissibly have concluded that Santos knew not only the nature And Medina testified extensively In light of 10 of the drug conspiracy, but knew also that carrying out the 11 murders would advance its goals. 12 In addition to proving that Santos knew his acts would 13 enable Medina to further the goals of the conspiracy, the 14 government was required to prove that Santos had the specific 15 intent to do so. 16 conspiratorial intent, of course, may be established through 17 circumstantial evidence. 18 (2d Cir. 1998). 19 had knowledge of the conspiracy and knowingly took actions 20 advancing the conspiracy's aims, we ordinarily will permit the 21 jury "to infer intent and agreement from knowledge," particularly 22 in the context of the defendant's "interested cooperation, 23 stimulation, and instigation," or when the defendant has a "stake 24 in the venture." 25 (2d Cir. 1985) (internal quotation marks omitted) (citing Direct 26 Sales Co. v. United States, 319 U.S. 703, 712-13 (1943)); see See Samaria, 239 F.3d at 234. Proof of United States v. Gore, 154 F.3d 34, 40 And where there is evidence that the defendant United States v. Zambrano, 776 F.2d 1091, 1095 19 1 also, e.g., United States v. Flaharty, 295 F.3d 182, 201 (2d Cir. 2 2002) (affirming narcotics conspiracy conviction of arms dealer 3 because "the evidence was ample to permit the jury to infer that 4 [the defendant] knew his purchasers were jointly engaged in 5 narcotics trafficking, that he made numerous and repeated sales 6 to the coconspirators, and that he intended his sales to further 7 their business"), cert. denied, 538 U.S. 915 (2003). 8 There was indeed sufficient evidence for a reasonable 9 jury to conclude that Santos had the specific intent to further 10 the goals of the conspiracy. In addition to knowing that Medina 11 and his "uncle" wished to advance the goals of their narcotics 12 conspiracy by killing the men who they said had stolen from them, 13 Santos exhibited a form of "interested cooperation, stimulation, 14 and instigation" that would permit the jury to infer the "intent 15 and agreement necessary to sustain a conspiracy charge," 16 Zambrano, 776 F.2d at 1095. 17 know more about the purpose behind the killings and details of 18 the drug conspiracy, his declaration that "[t]hese motherfuckers 19 are dead with me today," Trial Tr. 339, United States v. Santos, 20 No. 01-cr-537 (E.D.N.Y. Nov. 9, 2004), and his participation in 21 the killings themselves together amount to a set of circumstances 22 from which the jury could conclude that Santos joined the 23 conspiracy charged. 24 reasonable juror may have reached a contrary conclusion, such 25 matters are appropriately argued to the jury and are not grounds Santos's affirmative requests to And "[a]lthough, as [Santos] argues, a 20 1 for reversal on appeal." 2 (2d Cir. 2006), cert. denied, 127 S. Ct. 1022 (2007). 3 United States v. Snow, 462 F.3d 55, 69 That Santos did not participate in the narcotics 4 conspiracy in some way other than carrying out the murders does 5 not undermine the sufficiency of the evidence that he was a co- 6 conspirator. 7 transaction can, on an appropriate record, suffice to sustain a 8 charge of knowing participation in an existing conspiracy." 9 United States v. Miranda-Ortiz, 926 F.2d 172, 176 (2d Cir.), "The defendant's participation in a single 10 cert. denied, 502 U.S. 928 (1991). "The defendant need not know 11 the identities of all of the other conspirators, nor all of the 12 details of the conspiracy," Gore, 154 F.3d at 40, and "[a] 13 defendant need not have joined a conspiracy at its inception in 14 order to incur liability for the unlawful acts of the conspiracy 15 committed both before and after he or she became a member," 16 United States v. Rea, 958 F.2d 1206, 1214 (2d Cir. 1992). 17 may not have played a central role in the charged cocaine 18 conspiracy, but he is liable as a co-conspirator if the jury 19 found -- as it apparently did and reasonably could have here -- 20 that he "knew of [its] existence . . . and knowingly joined and 21 participated in it." 22 internal quotation marks omitted); see also Soto-Beníquez, 356 23 F.3d at 23.8 Santos Snow, 462 F.3d at 68 (citations and 8 Santos's sufficiency-of-the-evidence claim contains a barely argued contention that the district court should have given the jury a multiple-conspiracy charge because there was evidence of a conspiracy to commit murder in addition to the 21 1 Finally, the kind of drug involved and its weight were 2 known or reasonably foreseeable to Santos. See Adams, 448 F.3d 3 at 499. 4 well-connected, heavy-selling cocaine dealer and had been robbed 5 of $316,000 - an amount that would have represented the proceeds 6 from far more than five kilograms of cocaine. 7 active interest in the drug type and quantity, inquiring 8 specifically as to the sale price per kilogram of cocaine. 9 conclude that the evidence was sufficient for the jury to find 10 the drug-type and quantity elements proved beyond a reasonable 11 doubt. Medina told Santos that his "uncle" -- Polanco -- was a Santos took an We conspiracy to distribute cocaine. This claim is without merit. "In order to prevail on a contention that the trial court erred in refusing to give requested instructions, an appellant must establish that his own requested charge accurately represented the law in every respect, and that the charge actually given, viewed as a whole, prejudiced him." United States v. Thompson, 76 F.3d 442, 454 (2d Cir. 1996) (citation and internal quotation marks omitted). Here, the defense theory was that the jury must acquit if it found that Santos had joined a conspiracy to murder but not a drug conspiracy. The jury instructions properly emphasized, however, that the "government must prove beyond a reasonable doubt . . . that the conspiracy be to commit an unlawful act concerning narcotics," Trial Tr. 905, United States v. Santos, No. 01-cr-537 (E.D.N.Y. Nov. 18, 2004) (emphasis added), and that "the government must establish that the defendant intentionally killed Wilber Garces and/or Edgardo Bryan while engaging in a conspiracy to distribute . . . five kilograms or more of . . . cocaine," id. at 907-08 (emphasis added). Because there was no evidence of more than one drug conspiracy and the instructions clearly required the jury to find that the defendant had participated in such a conspiracy in order to convict, the jury charge was adequate. 22 1 2 B. Connection Between the Killings and the Drug Conspiracy 3 Having determined that there was sufficient evidence 4 for the jury to find that Santos joined the drug conspiracy as 5 charged, we conclude without difficulty that there was sufficient 6 evidence of a connection between the drug conspiracy and the 7 killings. 8 reasonable doubt that one motive for the killing[s] . . . was 9 related to the drug conspiracy." As noted, "the government need only prove beyond a Desinor, 525 F.3d at 202. 10 Again, the evidence reflects that Santos asked Medina why he was 11 being hired, and Medina told him that his "uncle" -- Polanco -- 12 was a large-scale cocaine dealer who wanted two men killed for 13 stealing $316,000. 14 conspiracy, then it unquestionably could have found that one 15 motive for the killings was related to that conspiracy. 16 If the jury found that Santos joined the drug Santos's argument to the contrary rests primarily on 17 what he contends is the absence of persuasive evidence that 18 Polanco was robbed by the men he wanted killed and that his 19 desire to have them killed was related to his drug dealing. 20 alleged robbery took place more than two years before the 21 killings, and neither Polanco nor Medina was present when the 22 robbery took place. 23 because Santos was told that Polanco had ordered the killings in 24 retaliation for a drug-related robbery. 25 what he was told, that was enough for the jury to find that The Santos's argument is misplaced, however, 23 Assuming Santos believed 1 Santos's motive for committing the murders was, at least in part, 2 related to the drug conspiracy. 3 Santos also argues that the killings were unrelated to 4 the drug conspiracy because he agreed to carry them out before he 5 learned about the drug conspiracy. 6 support this assertion. 7 intent to kill anyone was when, after Medina explained that his 8 drug-dealer "uncle" had been robbed of $316,000, Santos 9 exclaimed, "These motherfuckers are dead with me today." But the record fails to The first time Santos expressed his Trial 10 Tr. 339, United States v. Santos, No. 01-cr-537 (E.D.N.Y. Nov. 9, 11 2004). 12 Last, we reject Santos's argument that his motive was 13 not drug related because Medina told him that his "uncle" had 14 been robbed, thereby suggesting to Santos that the murders were 15 motivated by Medina's desire to exact revenge on behalf of his 16 family rather than in furtherance of the drug conspiracy. 17 argument is unavailing. 18 need only find that one motive for the killing was drug related. 19 See Desinor, 525 F.3d at 203 (concluding that "the jury easily 20 could have inferred that . . . whether or not there was also a 21 personal vendetta . . . there was an underlying motive to protect 22 the [defendants'] narcotics business from . . . interference"). 23 Here, too, the jury easily could have inferred that an underlying 24 motive for the murders was related to the drug conspiracy. This As we explained in Desinor, the jury 24 CONCLUSION 1 2 3 For the foregoing reasons, the judgment of the district court is affirmed. 25

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