United States of America v. RUBEN BORIA On Appeal from the United States District Court for the Eastern District…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2550
UNITED STATES OF AMERICA,
Appellant,
v.
RUBEN BORIA
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-07-cr-00151-002)
District Judge: Honorable Gene E.K. Pratter
Argued on December 15, 2009
Before: FISHER, HARDIMAN, and VAN ANTWERPEN,
Circuit Judges.
(Filed January 26, 2010)
Robert A. Zauzmer, Esq. [ARGUED]
Karen S. Marston, Esq.

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2
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellant
Anthony J. Petrone, Esq. [ARGUED]
Cogan, Petrone & Associates
2000 Market Street
Suite 2925
Philadelphia, PA 19103
Counsel for Appellee
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
The United States appeals the District Court’s
judgment of acquittal for Appellee-Defendant Ruben Boria
(“Boria”). For the following reasons, this Court will reverse
the judgment of acquittal and remand the matter to the District
Court for further proceedings.
I.
On February 5, 2007, Marcus Diaz (“Diaz”) arrived in
Philadelphia, Pennsylvania driving a tractor-trailer which

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1 By way of background, this case concerns a large scale
drug-trafficking organization operating in Mexico, Texas, and
Pennsylvania. The organization distributed large quantities of
cocaine and, in early 2007, members of the organization
arranged the transportation by tractor-trailer of loads of 100
kilograms or more of cocaine from Texas to various locations in
the United States. The specific charges in this case stem from
the transportation of a 100-kilogram load of cocaine from
Weslaco, Texas to Philadelphia, Pennsylvania. A DEA Special
Agent testified that, in his experience, the organization typically
arranged for someone to meet the driver of the tractor-trailer at
its destination to assist with unloading the drugs. (App. 45, 77-
78.)
3
contained one hundred kilograms of cocaine hidden among
boxes of mostly rotten fruit. That same day, Jose Alvarado
(“Alvarado”), a Drug Enforcement Agency (“DEA”)
informant, received a phone call from his long-time friend
Miguel Morel (“Morel”), who was searching for a garage
which could fit a tractor-trailer for unloading. Alvarado had
previously assisted Morel with Morel’s drug transportation
business. 1 He then met with Morel and four other Mexican
nationals, none of which were Boria. Alvarado was unable
to locate a garage for Morel, but suggested an overnight
parking location. Alvarado watched the truck that night and
was in constant communication with Morel. At some point
during the night, Alvarado managed to inform law
enforcement about the load of cocaine.
On the morning of February 6, 2007, Alvarado
returned to the parking lot to take Diaz to breakfast. When

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2 In addition, Alvarado testified that Morel typically
employed others and operated in the background away from the
drugs: “[Morel] was never really around the drugs, [the]
majority of the time[. He pays] everyone else to do everything
else” (App. 144); “[Morel] stays in the background and he will
not sit there and unload anything” (App. 146); [Morel is] around
when the original transaction goes down but when it comes to
unloading and moving and everything else he keeps his
distance” (App. 147). Moreover, the details Morel shared with
others “depend[ed] on their job, what they’re supposed to do.”
(App. 154-55.)
4
the two arrived at the diner, Alvarado received a phone call
from Morel informing Alvarado that he had sent someone to
take the tractor-trailer to a garage for unloading. Alvarado
testified that he was told by Morel that Boria “was supposed
to take the tractor-trailer from [Alvarado] and take it to a
garage to unload the drugs that were in the back of the
tractor-trailer.” (App. 139.) On cross-examination,
Alvarado maintained that Boria was responsible for “taking
the truck from [his] hands to take it to another garage to
unload it,” (id. 144), and for “tak[ing] the driver of the
tractor-trailer to finish off what needs to be done inside the
truck,” (id. 145).2
Morel informed Alvarado and Diaz that this man
would identify himself as “Ruben,” and Alvarado identified
Boria as Ruben. When Alvarado and Diaz pulled into the
parking lot, Boria approached the car and Diaz asked his

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3 Before Alvarado and Diaz returned to the parking lot, law
enforcement officers conducting surveillance of the tractor-
trailer observed Boria walk directly to the truck and peer into the
driver’s side. They then observed Boria use his cell phone as he
walked away.
4 Boria’s girlfriend and the mother of his child, Sonia
Morales (“Morales”), testified that he had come home that
morning at 3:00 a.m., but had left again by 6:00 a.m. when she
woke up.
5
identity.3 Boria identified himself as Ruben and confirmed
that Morel had sent him.4 Alvarado acknowledged he had
never before seen Boria. Diaz then climbed into the driver’s
side of the truck and Boria climbed into the passenger’s side.
The truck left its location with Alvarado following, at
Morel’s request, and eventually stopped in a K-Mart parking
lot on Aramingo Avenue. Alvarado exited his car and
approached the truck to ask Boria why they had stopped
there because it was a “hot area.” When Alvarado reached
the tractor, Boria was on his cell phone. After Boria hung
up, Alvarado asked where the truck was heading. Boria
responded that he was going to a garage in North
Philadelphia, but that he was waiting for someone to open it.
When the truck pulled out of the parking lot, it was
stopped by the police, who had been observing the truck
since receiving Alvarado’s tip. The police then conducted a
lawful search of the truck after a K-9 unit alerted to the
presence of contraband. Police officers recovered a cell

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5 When the Government obtained call records for Boria’s
cell phone, it discovered fourteen calls during the one-hour time
period preceding the stop. All the calls, nine outgoing and five
incoming, were to a phone number assigned to Manuel Barroso
(“Barroso”). Alvarado testified that Barroso “supplies people
with drugs,” (App. 140), and Morales testified she he had heard
Boria refer to Barroso as “cousin,” (id. 261). The Government,
however, failed to produce any evidence indicating that Boria
actually spoke with Barroso that morning, let alone the
substance of those fourteen calls.
6 The District Court did not resolve Boria’s Rule 33 motion
in light of its disposition of Boria’s Rule 29 motion.
6
phone and $16.00 from Boria’s person.5 Boria’s cell phone
continued to ring after the police stop and throughout the
search of the tractor-trailer. Police gained access to the
locked trailer portion with a key on the ring they found in the
ignition. After three hours of searching, the police located
one hundred kilograms of cocaine hidden in boxes, which
themselves were hidden in the middle of the trailer within
pallets of mostly rotten fruit.
On April 18, 2007, a grand jury indicted Boria on two
counts: (1) conspiracy to possess with intent to distribute five
kilograms or more of cocaine in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(A), and (2) aiding and abetting the
possession with intent to distribute five kilograms or more of
cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. §
841(a)(1) and (b)(1)(A).
At the close of the Government’s case-in-chief, Boria
moved for a judgment of acquittal under Federal Rule of
Criminal Procedure 29(a). The District Court reserved
judgment on the motion. On January 25, 2008, after a four-
day trial, the jury returned a verdict of guilty on each count
of the indictment. Boria then renewed his motion for a
judgment of acquittal and also filed a motion for a new trial
under Rule 33, arguing the verdict was against the weight of
the evidence and that the District Court erred in excluding a
DEA report as inadmissible hearsay. 6

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7
After hearing arguments, the District Court entered a
judgment of acquittal for Boria finding the evidence of his
knowledge of the objective of the conspiracy, i.e. the
transportation of cocaine, insufficient. After identifying the
appropriate standard of review as well as the cases relevant
to this issue, the District Court found:
“there was no evidence that Mr. Boria was engaged
in, or present during, any conversations about the
cocaine that was hidden in the back of the trailer; no
probative evidence of the substance of any
communications in which Mr. Boria engaged; no
evidence that Mr. Boria ever ‘possessed’ or saw the
cocaine, or that he ever saw the back of the trailer
unlocked; no evidence of any prior relationship
between Mr. Boria and any co-conspirators; and no
evidence that Mr. Boria previously had been involved
in any drug-trafficking activities.”
(App. 586.) Consequently, the District Court determined
that a reasonable jury could not find that Boria knew the
actual purpose of the conspiracy.
II.
The District Court had original jurisdiction under 18
U.S.C. § 3231. We have appellate jurisdiction under 28
U.S.C. § 1291. The Government filed a timely notice of
appeal.
On appeal from the grant of a judgment of acquittal,

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7 We are limited to a review of the evidence as it existed at
the close of the Government’s case-in-chief. Boria initially
moved for a judgment of acquittal at the close of the
Government’s case and the District Court reserved judgment.
Under Rule 29(b), the District Court was thus required to, and
properly did, “decide the motion on the basis of the evidence at
the time the ruling was reserved.” Fed. R. Crim. P. 29(b); see
Brodie, 403 F.3d at 133. Therefore, we review the evidence
offered during the Government’s case-in-chief, including
evidence developed through cross-examination, but not evidence
offered by Boria in his defense. Brodie, 403 F.3d at 133-34.
8
this Court exercises plenary review and independently
applies the same standard a district court utilizes in deciding
the motion. United States v. Brodie, 403 F.3d 123, 133 (3d
Cir. 2005) (citing United States v. Coleman, 811 F.2d 804,
807 (3d Cir. 1987)). 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.” Id. (internal quotation marks and citation
omitted). Accordingly, we will sustain the verdict if there is
substantial evidence to uphold the jury’s decision.7 United
States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006). Under
this particularly deferential standard of review, a reviewing
court “must be ever vigilant . . . not to usurp the role of the
jury by weighing credibility and assigning weight to the
evidence, or by substituting [the court’s] judgment for that of
the jury.” Brodie, 403 F.3d at 133.
Nevertheless, in a conspiracy case, we must closely
scrutinize the Government’s evidence because (1) slight

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9
evidence of Boria’s connection to the conspiracy is not
sufficient to support guilt and (2) guilt must remain
individual and personal. Id. at 134. Thus, 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. Id.
III.
The Government argues that it presented sufficient
evidence to enable the jury to find beyond a reasonable
doubt that Boria knew he was transporting a controlled
substance. The Government further asserts that the District
Court improperly usurped the jury’s function as the trier of
fact.
Boria contends that his case falls within a line of our
precedent finding that the Government failed to offer
evidence 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 thus asserts the
District Court appropriately entered a judgment of acquittal.
A.
To establish a charge of 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, which Boria knowingly joined. United
States v. Mastrangelo, 172 F.3d 288, 291 (3d Cir. 1999); see
also United States v. Schramm, 75 F.3d 156, 163 (3d Cir.

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8 The indictment also charged Boria with aiding and
abetting possession with intent to distribute a controlled
substance. Under this charge, the Government had to prove that
Boria (1) had knowledge of drugs, (2) had knowledge others
intended to distribute drugs, or (3) purposefully intended to aid
others in the specific crimes alleged. See United States v.
Cartwright, 359 F.3d 281, 287 (3d Cir. 2004). Thus, the mental
state requirement for aiding and abetting is identical to that
required for conspiracy, i.e. knowledge of the subject matter of
the particular conduct. Id. Because the District Court
concluded Boria lacked the requisite knowledge to support the
conspiracy conviction, the court also concluded the aiding and
abetting conviction similarly lacked sufficient support.
10
1996) (asserting illegality is an essential element); United
States v. Kates, 508 F.2d 308, 311 (3d Cir. 1975) (requiring
evidence that defendant “knowingly entered” conspiracy).
These elements incorporate a requirement that Boria had
knowledge of the specific illegal objective contemplated by
the particular conspiracy, i.e. transporting a controlled
substance.8 See United States v. Cartwright, 359 F.3d 281,
287 (3d Cir. 2004); Mastrangelo, 172 F.3d at 291. The
Government must establish each element beyond a
reasonable doubt. United States v. Coleman, 811 F.2d 804,
808 (3d Cir. 1987).
A conspiracy can be proven by direct or
circumstantial evidence. Brodie, 403 F.3d at 134. Its
existence can be inferred from evidence of related facts and
circumstances from which it appears, as a reasonable and
logical inference, that the activities of the participants could

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9 Not all courts of appeals adhere to our strict approach to
sufficiency in drug conspiracy cases. Compare, e.g., United
States v. Conrad, 507 F.3d 424, 434 (6th Cir. 2007) (suggesting
presence and access to hidden drugs not sufficient alone to
justify conspiracy conviction, though addition of co-conspirator
testimony would be sufficient), United States v. Viscarra, 494
F.3d 490, 493-94 (5th Cir. 2007) (permitting inference drugs
were involved based on prior transactions, understanding of
“code words,” and other suspicious conduct), United States v.
11
not have been carried on except as a result of a preconceived
scheme or common understanding. Id. (citation omitted).
Inferences drawn, however, must have a logical and
convincing connection to the facts established – “[o]ur
conspiracy case law forbids the upholding of a conviction on
the basis of . . . speculation.” United States v. Thomas, 114
F.3d 403, 406 (3d Cir. 1997); United States v. Casper, 956
F.2d 416, 422 (3d Cir. 1992).
B.
To sustain a conviction for conspiracy with intent to
distribute a controlled substance, we have consistently
required the Government to introduce 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. In a series of cases, this Court has been reluctant to
uphold drug conspiracy convictions unless the Government
introduces evidence from which the jury could infer
knowledge of drugs, as opposed to some other contraband.9

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Isaac-Sigala, 448 F.3d 1206, 1212 (10th Cir. 2006) (permitting
jury to draw inference defendant was involved in drug
conspiracy rather than other illicit behavior based on conduct
consistent with drug trafficking), and United States v. Burrell,
963 F.2d 976, 994 (7th Cir. 1992) (acknowledging affirmative
actions as bodyguard and lookout are sufficient to establish
knowledge of drug transaction); with, e.g., United States v.
Rodriguez, 392 F.3d 539, 545-48 (2d Cir. 2004) (concluding
lookout role, conducting counter-surveillance, proximity to
concealed drugs, carrying weapons to transaction, and
ownership of vehicle transporting drugs insufficient to establish
knowledge of drugs) and United States v. Teffera, 985 F.2d
1082, 1086-87 (D.C. Cir. 1993) (reversing possession
conviction, under aiding and abetting theory requiring specific
knowledge, for lack of evidence of knowledge of drugs even
though evidence supported conclusion defendant knew
something criminal was afoot).
12
See, e.g., United States v. Cooper, 567 F.2d 252, 254-55 (3d
Cir. 1977); United States v. Wexler, 838 F.2d 88, 92 (3d Cir.
1988); United States v. Salmon, 944 F.2d 1106, 1114-15 (3d
Cir. 1991); Thomas, 114 F.3d at 406; United States v. Idowu,
157 F.3d 265, 270 (3d Cir. 1998); Cartwright, 359 F.3d at
291. Despite the presence of otherwise suspicious
circumstances, we have nevertheless required some
additional piece of evidence imputing knowledge of drugs to
the defendant.
In Cooper, we found the evidence insufficient
because the defendant merely rode in a truck with marijuana
locked in the rear compartment and there was no evidence he

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13
had access to the rear compartment. 567 F.2d at 254. We
also noted the Government did not introduce any evidence of
the subject matter of or participants in several phone calls to
the defendant’s home. Id. We also expressly acknowledged
the lack of co-conspirator statements linking the defendant to
the conspiracy. Id. at 255 n.3 (indicating admission of co-
conspirator testimony irrelevant because there were no
statements implicating defendant). Accordingly, we
concluded there was no evidence the defendant knew there
were drugs in the truck and no evidence of communications
of a conspiratorial nature. Id. at 254.
In Wexler, the defendant served as a lookout for a
drug transaction, but we concluded the evidence was
insufficient to infer he knew drugs were involved. 838 F.2d
at 91. There was no evidence: that the defendant knew what
was in the truck (even though he admitted his alleged co-
conspirators had previously conspired to import narcotics),
of the subject matter of conversations between the defendant
and alleged co-conspirators, or that the defendant had a prior
relationship with the alleged co-conspirators. Id. Moreover,
we determined that the inference that other co-conspirators
must have trusted the defendant did not support a holding
that the defendant knew drugs were involved. Id. at 91-92.
In Salmon, we again found the evidence insufficient
to infer the defendant (Fitzpatrick) knew drugs were
involved. 944 F.2d at 1115. Relying on our decision in
Wexler, we found insufficient the evidence that Fitzpatrick
conducted surveillance, possessed surveillance equipment at
the time of his arrest, and had conversations with co-
conspirators. Id. at 1114. The Government then argued
additional facts distinguished Salmon, including that
Fitzpatrick opened a car’s trunk and an alleged co-
conspirator approached the trunk, returning with a package
of drugs. Id. We observed, however, there was no evidence

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14
the drugs were ever in the car and, even if they were, the
drugs were wrapped in a brown paper bag and there was no
evidence Fitzpatrick knew what the bag contained. Id. at
1114-15.
In Thomas, the defendant was arrested after entering a
hotel room, at another’s request, to confirm the presence of a
suitcase and to leave the door open. 114 F.3d at 405.
Another alleged co-conspirator, in cooperation with law
enforcement, had left the suitcase, which contained drugs, in
the hotel room. Id. at 404. The two alleged co-conspirators
testified they did not know the defendant and had not
conspired with him. Id. at 405. There was no evidence of a
prior relationship between the defendant and the co-
conspirators, and no evidence regarding the substance of the
phone calls, let alone that the defendant actually spoke with
either of the alleged co-conspirators. Id. at 405-06. Thus,
we concluded the evidence was not sufficient to find that the
defendant knew drugs were involved. Id. at 406.
In Idowu, a man named Ajao negotiated to buy two
kilograms of heroin from a DEA informant. 157 F.3d at 267.
Ajao arrived at the transaction in a Lincoln Town Car driven
by Idowu, whom Ajao introduced as the “driver.” Id. Ajao
then spoke to the informant in Idowu’s presence, but made
no reference to “heroin.” Id. Idowu opened the trunk of the
car, removed a leather bag from the trunk, and opened it to
show the informant approximately $20,000 in cash, assuring
him that all the money was there. Id. Before allowing the
informant to take the bag, Idowu removed some personal
documents. Id. Idowu then removed a black suitcase from
the informant’s car and placed it in the trunk of the Town
Car. Id. Idowu opened the suitcase and, after noticing that it
was empty, told Ajao that “[t]hey didn’t pack this thing.” Id.
at 267-68. Ajao told Idowu to feel along the inside of the
suitcase, and the informant assured Ajao and Idowu the

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15
heroin was concealed in the lining of the suitcase. Id. at 268.
Federal agents then arrested Ajao and Idowu and recovered
$3,000 cash from Idowu’s person. Id. Following a trial, a
jury convicted Idowu of conspiracy to possess with intent to
distribute heroin. Id. at 266.
A divided panel of this Court ultimately held that “the
jury could not draw a permissible inference that Idowu had
knowledge of the nature of the deal,” despite clear evidence
showing that he knew he was involved in an illegal
transaction. Id. at 270. We concluded “the government
failed to provide evidence that Idowu knew that drugs were
in fact the subject matter of the transaction.” Id. We then
overturned the conviction even though Idowu was a “trusted
member” of the conspiracy and possessed the keys to his
own car which contained the cash. Id. The dissent noted
that Idowu was tacitly assigned the task of checking the
informant’s suitcase, an assignment which would not have
been made unless he knew what he was looking for. Id. at
271 (Stapleton, J., dissenting). The dissent argued that this
fact, in addition to the surrounding circumstances, provided
sufficient evidentiary support to uphold the conviction. Id.
In Cartwright, a cooperating drug dealer set up a
transaction with Jackson in a shopping center parking lot.
359 F.3d at 283-84. After the initial meeting, Jackson
retreated to his car parked in another lot and returned with
the drugs, accompanied by Cartwright. Id. at 284. There
was no surveillance in the other parking lot. Id. Cartwright
then assumed a position to serve as a lookout for the
transaction. Id. Upon arrest, the police recovered a gun, a
cell phone, a two-way text messaging device, and cash from
Cartwright’s person. Id. at 285. Based on this evidence, a
divided panel concluded that although the evidence
supported the inference that Cartwright served as a lookout,
merely acting as a lookout is not sufficient to establish

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16
knowledge of drugs. Id. at 286. Further, there was no
evidence of a prior relationship between Jackson and
Cartwright, no evidence Cartwright was involved in prior
drug transactions, and no evidence of the subject matter of
communications between Jackson and Cartwright. Id. at
291. Therefore, we found the Government’s evidence
insufficient to sustain Cartwright’s drug conspiracy
conviction. Id.
The dissent argued the sequence of events in the case
supported an inference of the requisite knowledge,
particularly Cartwright’s proximity to the drugs; his
conversation with Jackson, who knowingly possessed drugs;
his first appearance at the same time Jackson re-appeared
with drugs; and his immediate assumption of a lookout
position. Id. at 291-92 (Nygaard, J., dissenting).
Notably, none of these cases included co-conspirator
statements implicating the defendant. See, e.g., Idowu, 157
F.3d at 267 (indicating co-conspirator never mentioned
Idowu by name); Cooper, 567 F.2d at 255 n.3 (noting
Government introduced no co-conspirator statements). And
although Wexler acknowledged co-conspirator statements,
none of the statements were made to or about Wexler. See
Wexler, 838 F.2d at 89. In other cases, there was no
evidence of the participants in or the subject matter of co-
conspirator conversations. E.g., Cartwright, 359 F.3d at
291; Thomas, 114 F.3d at 405-06; Salmon, 944 F.2d at 1114.
C.
The Government contends that Boria’s case is
distinguishable from this line of cases and, instead, is
analogous to two cases in which we have found the evidence
sufficient to support a permissible inference that the
defendants knew drugs were involved. See United States v.

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17
Reyeros, 537 F.3d 270 (3d Cir. 2008), cert. denied, 129 S.
Ct. 2780 (2009); United States v. Iafelice, 978 F.2d 92 (3d
Cir. 1992).
In Iafelice, an undercover DEA agent negotiated to
purchase heroin from John Sinde and his brother at a hotel.
978 F.2d at 94. Agents conducting surveillance of the
transaction site observed a white Cadillac, which Iafelice
stipulated he owned, pull into the parking lot. Id. Iafelice
then engaged in counter-surveillance movements while in the
vehicle. Id. Three individuals exited the car (Iafelice, Sinde,
and Thomas Finn), but only Sinde entered the transaction
site; Iafelice and Finn got back into the Cadillac with Iafelice
in the driver’s seat. Id. When Sinde returned, Iafelice
opened the car’s trunk from the inside and Sinde removed a
brown camera bag. Id. It was later discovered that the bag
contained heroin in a clear plastic bag. Id. Sinde then
returned to the hotel, met his brother inside, and waited for
the undercover agent to arrive to complete the sale. Id.
During the transaction, Sinde’s brother’s beeper went off and
the number was traced back to Finn’s phone in Iafelice’s car.
Id. The Sindes used the agent’s mobile phone to return the
call. Id. An agent watching the Cadillac saw Iafelice reach
down and answer the car phone. Id. Although Iafelice was
acquitted of conspiracy and convicted of possession, id. at
95, our analysis still turned on Iafelice’s knowledge under a
constructive possession theory, id. at 96.
In upholding the jury’s verdict, we noted the
surrounding circumstances, such as Iafelice’s suspicious
driving, his co-conspirators’ conduct, the fact that the trunk
of the car (which contained the drugs) was opened from the
inside of the car, and that during the transaction a page was
sent from a phone in Iafelice’s car to which Iafelice received
a return call. Id. at 97. But we determined that the “truly
distinguishing fact [was] Iafelice’s ownership and operation

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18
of the vehicle used to transport the drugs” because it
provided “the essential additional evidence necessary to
distinguish” Iafelice from preceding cases finding
insufficient evidence of knowledge. Id. From this additional
fact, we concluded “[c]ommon sense counsels that an owner
and operator of a vehicle . . . usually knows what is in that
vehicle.” Id.
In Reyeros, Juan and Jorge Reyeros negotiated with
multiple individuals to import cocaine into the United States.
537 F.3d at 275-77. One of those individuals, however, was
a DEA and U.S. Customs Service informant. Id. at 275. The
informant’s role was to identify an American company
through which the group could import the drugs. Id. Juan
told the other members of the conspiracy that his brother,
Jorge, was a customs inspector and would facilitate the
importation. Id. at 276. According to Juan, the shipment
would have to be large enough to make it worth the risk to
Jorge’s career. Id.
We concluded that a co-conspirator’s testimony of
Juan’s statements about Jorge’s role and statements was
sufficient to enable a rational juror to conclude beyond a
reasonable doubt that Jorge knew the purpose of the
conspiracy was to import cocaine. Id. at 279. We further
noted additional pieces of evidence “buttress[ed] the direct
statement of knowledge attributed to Jorge by his brother
Juan,” such as Jorge would be likely to ask Juan the nature of
the transaction because of their familial relationship, the risk
to Jorge’s career, and Jorge’s expected receipt of a
percentage of the value of any cocaine imported. Id. at 279
n.12.
Although factually distinct from Iafelice and Reyeros,
the case before us does have additional facts imputing
knowledge of drugs. We reach this conclusion after

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10 Although the Reyeros co-conspirator testimony relayed
a statement allegedly made by the defendant himself, see 537
F.3d at 275-76, we conclude it is appropriate to attribute Morel’s
statement regarding Boria’s role to the defendant in this case,
see United States v. Pecora, 798 F.2d 614, 628 (3d Cir. 1986)
(noting legal fiction that “each conspirator is an agent of the
other and . . . statements of one can therefore be attributable to
19
considering the suspicious circumstances of this case,
including that Boria met co-conspirators Diaz and Alvarado
early in the morning after only a few hours of sleep, Boria
did not hesitate in approaching the tractor-trailer containing
the cocaine and then approaching the vehicle Alvarado was
driving, Boria confirmed his identity and that Morel had sent
him, and Boria intended to and began to direct Diaz and the
tractor-trailer with the cocaine to a garage in North
Philadelphia.
The “truly distinguishing fact,” Iafelice, 978 F.2d at
97, however, is Alvarado’s testimony that Boria’s role was to
“take [the tractor-trailer] to a garage to unload the drugs that
were in the back of the tractor-trailer.” (App. 139.)
Alvarado re-iterated Boria’s role on cross-examination,
testifying that, according to Morel, Boria was responsible for
“taking the truck from [his] hands to take it to another garage
to unload it,” (id. 144), and for “tak[ing] the driver of the
tractor-trailer to finish off what needs to be done inside the
truck,” (id. 145). Although Boria never accessed the trailer,
this co-conspirator testimony imputes to Boria 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. The cases in which we
declined to find sufficient evidence did not include such
evidence, and we find its presence in this case decisive. See
also Reyeros, 537 F.3d at 279 (relying on co-conspirator
testimony implicating defendant to sustain conviction).10

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all”) (citation omitted). Boria has not challenged the admission
of Alvarado’s testimony.
20
A rational trier of fact could infer that Boria knew
drugs were involved based on Alvarado’s testimony and the
suspicious circumstances under which Boria became
associated with the tractor-trailer. Boria was responsible for
taking the truck for unloading, but first had to arrange a
garage. He knew exactly which truck to approach,
confirmed Morel had sent him, and began directing the truck
to a garage. A reasonable juror could conclude, based on
this arrangement, that Boria knew something criminal was
afoot. Alvarado’s testimony that Boria was responsible for
unloading the drugs, attributable to Boria as a co-conspirator,
then serves as the crucial additional fact imputing knowledge
of drugs, as opposed to some other form of contraband.
Accordingly, a rational trier of fact could have found Boria
guilty, beyond a reasonable doubt, of conspiracy to possess
with intent to distribute cocaine and aiding and abetting the
possession of cocaine.
IV.
We conclude that the evidence presented at trial could
lead a rational trier of fact to find Boria knew a controlled
substance was involved in the transaction, particularly his
co-conspirator’s statement regarding his role.
The District Court was required to review the record
in the light most favorable to the Government and should not
have overturned the verdict. Under this particularly
deferential standard of review, we reverse the District
Court’s encroachment on the jury’s role and remand this
matter for further proceedings consistent with this opinion.

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21
FISHER, Circuit Judge, concurring.
I agree with the majority that co-conspirator
Alvarado’s testimony imputes to Boria knowledge that the
tractor-trailer driven by Diaz contained drugs, and thus that a
rational jury could find beyond a reasonable doubt that Boria
knew he was transporting a controlled substance, as opposed
to some other form of contraband. I write separately for the
reasons stated herein.
In reviewing a challenge to the sufficiency of the
evidence, “we must view the evidence in the light most
favorable to the Government and sustain the verdict if any
rational juror could have found the elements of the crime
beyond a reasonable doubt.” United States v. Reyeros, 537
F.3d 270, 277 (3d Cir. 2008) (quotations, alteration, and
citation omitted). In doing so, we must remember that “we
do not view the government’s evidence in isolation, but
rather, in conjunction and as a whole.” United States v.
Brodie, 403 F.3d 123, 134 (3d Cir. 2005).
Taken as a whole, the facts stated by the majority
allow a rational jury to make several alternative inferences.
One rational inference is that Boria was hired by Morel to
direct Diaz and the tractor-trailer to a garage and unload, not
just boxes of rotten fruit, but what Boria knew to be drugs.
Because we must view the evidence in the light most
favorable to the Government, Reyeros, 537 F.3d at 277, the
fact that alternative inferences exist is irrelevant. See United
States v. Iafelice, 978 F.2d 92, 97 n.3 (3d Cir. 1992) (“There
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.”).
Therefore, even though the jury could have also rationally
inferred, among other things, that Boria was employed to
direct the tractor-trailer to a garage and unload its contents

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11As the majority explains in footnote 8, the standard is the
same for Boria’s aiding and abetting conviction.
22
without knowing the exact nature of the load, this did not
entitle the District Court to overturn the jury’s guilty verdict.
Agreeing with the majority’s final holding, I write this
concurrence to highlight the tension between this opinion
and some of our most recent case law. We have stated the
standard of review in conspiracy cases to be as follows: “In
order for us to sustain a defendant’s conviction for
conspiracy, the government must have put forth evidence
tending to prove that defendant entered into an agreement
and knew that the agreement had the specific unlawful
purpose charged in the indictment.” United States v.
Cartwright, 359 F.3d 281, 286-87 (3d Cir. 2004) (quoting
United States v. Idowu, 157 F.3d 265, 268 (3d Cir. 1998))
(additional quotations and citations omitted). “‘The
elements of a conspiracy may be proven entirely by
circumstantial evidence.’” Id. at 286 (quoting United States
v. Wexler, 838 F.2d 88, 90 (3d Cir. 1988)). In “[a]pplying
this rule, ‘[w]e have consistently held in cases of this genre
that, even in situations where the defendant knew that he was
engaged in illicit activity, and knew that “some form of
contraband” was involved in the scheme in which he was
participating, the government is obliged to prove beyond a
reasonable doubt that the defendant had knowledge of the
particular illegal objective contemplated by the conspiracy.’”
Id. at 287 (quoting Idowu, 157 F.3d at 266-67) (additional
citations omitted). Therefore, “the proper question before us
with respect to both the conspiracy and the aiding and
abetting charges is ‘whether there was sufficient evidence
that [Boria] 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. (quoting Idowu, 157 F.3d at 266). 11

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23
The tension lies in the different legal conclusions this
Court has drawn based on differing sets of facts. The
majority groups this case with Reyeros and Iafelice due to
the “suspicious circumstances of this case” and, more
importantly, co-conspirator Alvarado’s testimony that
Boria’s role was to “take the tractor-trailer . . . to a garage to
unload the drugs that were in the back of the tractor-trailer.”
(App. 139.) While I agree that the unique presence of co-
conspirator testimony, which is absent from this Court’s
prior decisions in this area, sufficiently imputes knowledge
to Boria, I view this case to be distinguishable from Reyeros
and Iafelice. In addition, I believe that the outcome of this
case conflicts with the spirit of our prior decision in Idowu.
Iafelice was a possession case. Accordingly, our
inquiry in Iafelice was “whether there was sufficient
evidence to conclude that [the defendant] had constructive
possession of the drugs, and whether he had an intent to
distribute those drugs.” 978 F.2d at 96. We stated that
“[c]onstructive possession exists if an individual ‘knowingly
has both the power and the intention at a given time to
exercise dominion or control over a thing, either directly or
through another person or persons.’” Id. (quoting United
States v. Blackston, 940 F.2d 877, 883 (3d Cir.1991)). In
distinguishing the case from Wexler and Salmon, we
concluded that the “truly distinguishing fact” was the
defendant’s ownership and operation of the vehicle
transporting the drugs: “[o]wnership and operation of the car
are highly relevant facts that could reasonably have been
considered by a jury in evaluating [the defendant’s]
knowledge of, and dominion and control over, the drugs.”
Id. at 96-97. Boria, in contrast, was convicted of conspiracy
to possess with intent to distribute, and aiding and abetting
the possession with intent to distribute, cocaine.
Accordingly, our focus here is not whether Boria had
“dominion or control” over the drugs, but rather whether

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24
Boria “entered into an agreement and knew that the
agreement had the specific unlawful purpose charged in the
indictment.” Cartwright, 359 F.3d at 287 (quoting Idowu,
157 F.3d at 268) (additional quotations and citations
omitted). Therefore, because the nature of the inquiry is
different, Boria’s control over the tractor-trailer here, while
relevant, is arguably not as dispositive as the defendant’s
ownership and operation of the vehicle in Iafelice.
Although a conspiracy case, Reyeros is also distinct.
Like the instant case, our holding in Reyeros relied primarily
on co-conspirator testimony. 537 F.3d at 279. However, as
the majority acknowledges in footnote 10, the Reyeros co-
conspirator testified to a statement allegedly made by the
defendant himself, whereas here Alvarado only testified to
his own understanding of Boria’s role in the conspiracy. Id.
Furthermore, the Reyeros court cited additional evidence
from which the jury could have reasonably inferred that the
defendant had knowledge of the subject matter of the
transaction: the defendant had a familial relationship with a
co-conspirator and there was evidence that the defendant
would be paid a percentage of the value of the cocaine
imported. Id. at 279 n.12. The Government presented no
analogous evidence against Boria.
Of course, the fact that Iafelice and Reyeros are
distinguishable by no means invalidates the majority’s
holding, with which I agree. The majority cites additional
circumstantial evidence not present in Iafelice or Reyeros,
namely, Boria’s suspicious behavior in the early morning
hours of February 6, 2007, that I believe enables the
Government to make its case.
Our prior decision in Idowu creates an even greater
incongruity. Although we held in Idowu that the evidence
was insufficient to show that the defendant knew that the

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12
The inconsistencies may stem from our circuit’s seemingly
paradoxical standard of review. Although we acknowledge that
“[t]he elements of a conspiracy may be proven entirely by
circumstantial evidence,” Cartwright, 359 F.3d at 286 (quoting
Wexler, 838 F.2d at 90), we require that there be “sufficient
evidence that [the defendant] knew that the subject matter of the
transaction was a controlled substance, rather than some other
form of contraband,” id. at 287 (quoting Idowu, 157 F.3d at
266). It 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.
25
subject matter of the transaction was a controlled substance,
157 F.3d at 270, it seems that the Government’s case against
the Idowu defendant was altogether stronger than the
Government’s case against Boria here: unlike Boria, the
Idowu defendant had a preexisting relationship with the
co-conspirator; drove the co-conspirator to the transaction;
was present in the vehicle when the co-conspirator invited
the informant to enter the car to discuss the transaction (the
informant declined); counted the money for the transaction;
carried the money for the transaction in his bag; and
searched the informant’s suitcase for the contraband,
remarking, “They didn’t pack this thing.” Id. at 267-68.
Boria, in contrast, had thus far only begun to direct a tractor-
trailer to a garage, where he would presumably unload the
trailer, when he was apprehended. Therefore, although the
different facts clearly allow for different conclusions, I view
Idowu and this opinion to be, in a broader sense,
incompatible.12
In summary, I agree with the majority that, viewing
the evidence in the light most favorable to the Government,
co-conspirator Alvarado’s testimony allows a rational jury to
find beyond a reasonable doubt that Boria knew he was

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26
transporting a controlled substance, as opposed to some other
form of contraband. I write separately solely to highlight the
tension between this opinion and our prior case law.

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