[NOT FOR PUBLICATION — NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-1002

UNITED STATES OF AMERICA, Appellee,

v.

LUIS A. HERNANDEZ VEGA, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lipez, Circuit Judge.

Raymond L. Sanchez Maceira, by appointment of the court, for appellant. Jacabed Rodriguez-Coss, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief, for appellee.

October 11, 2000 SELYA, Circuit Judge. On April 10, 1997, a federal

grand jury sitting in the District of Puerto Rico returned a

three-count indictment against a number of individuals. In

Count 2 of the indictment, the grand jury charged several

persons, including Luis A. Hernández Vega (Hernández), with

conspiring to distribute controlled substances in violation of

. Following a five-week trial, a petit jury

found Hernández guilty as charged. The district court

thereafter sentenced Hernández to serve 235 months in prison.

Hernández appeals.1 Having carefully reviewed the record, we

affirm.

On appeal, Hernández's basic argument entails a

challenge to the sufficiency of the evidence. In particular, he

asseverates that the government's proof failed to show that he

was privy to the conspiracy. This challenge invokes a familiar

standard of review: when evaluating the sufficiency of the

evidence presented against a defendant in a criminal case, an

appellate court must "canvass the evidence (direct and

circumstantial) in the light most agreeable to the prosecution

1 Hernández stood trial with eight codefendants (all of whom were found guilty), and we consolidated all nine appeals. Seven of them, including this one, were argued together on September 14, 2000. The other two were submitted on the briefs to the same panel. Because this appeal raises issues peculiar to Hernández, we have chosen to decide it in a separate opinion.

-3- and decide whether that evidence, including all plausible

inferences extractable therefrom, enables a rational factfinder

to conclude beyond a reasonable doubt that the defendant

committed the charged crime." United States v. Noah,

(1st Cir. 1997).

A defendant may culpably join a drug-trafficking

conspiracy without knowing the full extent of the enterprise or

the identities of all the coconspirators. See United States v.

Rivera-Santiago,

(1st Cir. 1989). The

controlling statute is

. To convict a defendant

of violating section 846, the government must "show beyond a

reasonable doubt that a conspiracy existed and that a particular

defendant agreed to participate in it, intending to commit the

underlying substantive offense." United States v. Sepulveda,

(1st Cir. 1993); accord United States v.

Marréro-Ortiz,

(1st Cir. 1998). In proving

the agreement, however, "[t]here are no particular formalities."

Sepulveda,

. Conspiratorial agreements may take

a wide variety of forms. Moreover, they "may be express or

tacit and may be proved by direct or circumstantial evidence."

It follows logically that the conspiracy's existence, and

a particular defendant's membership in it, may be inferred from

the participants' "words and actions and the interdependence of

-4- activities and persons involved." United States v. Boylan,

(1st Cir. 1990).

Against this backdrop, we turn to the appellant's

principal assignment of error. Hernández concedes, as he must,

that the government proved the existence of a large, long-

lasting conspiracy to peddle various controlled substances. The

question, then, is whether the government proved that he agreed

to join it. We conclude that this question must be answered

affirmatively.

At trial, the government adduced evidence that

Hernández sold contraband at "drug points" operated by the

conspiracy and that he was entrusted with the safekeeping of

firearms used by the gang in the murders of rival drug dealers.

Standing alone, this evidence likely would suffice to undergird

his conviction. See, e.g., Rivera-Santiago,

(holding that "[t]he fact that [the defendant] participated in

one retail link of the distribution chain, knowing that it

extended beyond his individual role, [is] sufficient" to

demonstrate his membership in a drug-trafficking conspiracy).

Here, however, the government also introduced more damning

evidence: testimony from a percipient witness who stated that

Hernández would "settle out" dealers, that is, he would come to

a drug point, count the receipts collected by the ring's retail

-5- vendors at that drug point, allow each vendor to keep his or her

agreed remuneration, and ensure that the remainder of the funds

was remitted to the ringleaders. This level of involvement

plainly sufficed to sustain the challenged conviction.

The appellant seeks to deflect the force of this proof

by assailing its source. This translates into an all-out

assault on the credibility of the government's witnesses. This

line of attack is forcefully mounted, but it does not avail the

appellant. In passing upon challenges to the sufficiency of the

evidence, we are bound to refrain from making independent

judgments as to the credibility of witnesses. See Noah,

; United States v. Echeverri,

(1st

Cir. 1993). We recently summed up this principle in United

States v. Alicea,

(1st Cir. 2000), in which we

wrote that "[e]xcept in the most unusual circumstances . . .

credibility determinations are for the jury, not for an

appellate court."

. This case comes within the

general rule, not the long-odds exception to it. And the

appellant's effort to highlight the trial testimony of other

(more favorable) witnesses suffers from the same infirmity.

The short of it is that the evidence introduced at

trial, taken in the light most congenial to the government's

-6- theory of the case, sufficed to ground a conviction. No more

was exigible.

The appellant puts a twist on his insufficiency

challenge, arguing that he was tried and convicted on the wrong

charge. As he sees it, the evidence shows at most that he

assisted only after the conspiracy was up and running (that is,

only after the agreement to distribute narcotics had been

forged) and that, therefore, "he cannot be charged with aiding

and abetting a conspiracy because, when the drug conspirators

agreed to [commit] one of the specified offenses . . ., all the

elements of

had been met." Appellant's Reply

Brief at 7. Hernández suggests, instead, that he should have

been charged as an accessory after the fact and not a

coconspirator. This argument is disingenuous.

To be sure, an agreement to commit the substantive

offense is an essential element of a conspiracy charge. See

United States v. Andujar,

(1st Cir. 1995);

Echeverri,

. But whether or not a defendant is

privy to the scheme at its commencement is not determinative of

his guilt. To the contrary, the law is settled that a defendant

cannot "escape criminal responsibility on the grounds that he

did not join the conspiracy until well after its inception."

-7- United States v. Pool,

(5th Cir. 1981). Judge

Aldrich captured the essence of this point in memorable prose:

[A] conspiracy is like a train. When a party knowingly steps aboard, he is part of the crew, and assumes conspirator's responsibility for the existing freight — or conduct — regardless of whether he is aware of just what it is composed.

United States v. Baines,

(1st Cir. 1987). Here,

the jury had before it evidence from which it reasonably could

infer beyond any reasonable doubt that the appellant knew of the

conspiratorial plan, shared the coconspirators' common purpose,

and acted to further that plan and purpose. On that basis, he

was properly charged with, and lawfully convicted of, a section

846 conspiracy.

The appellant has one more arrow in his quiver — but

it will not fly. He attempts in conclusory fashion to adopt

"the discussion and arguments set forth" by his codefendants.

Appellant's Brief at 3. We need not linger long over this

feeble effort.

In general, appellants prosecuting consolidated appeals

may adopt each other's arguments. See Fed. R. App. P. 28(i).

But arguments adopted by reference "must be readily

transferrable from the proponent's case to the adopter's case."

United States v. David,

(1st Cir. 1991).

Thus, to free-ride on another appellant's issue, a party has a

-8- burden to show that he is in the same legal and factual position

as the proponent vis-à-vis the issue, or, at least, to show how

the issue relates to his situation. See, e.g., United States v.

Castro-Lara,

(1st Cir. 1992); David,

; United States v. Zannino,

(1st Cir.

1990). In this instance, Hernández has not made the slightest

effort to show that the arguments he seeks to adopt are

applicable to him (or if so, how they pertain). Hence, we treat

his perfunctory attempt at adoption as insufficient to put those

issues in play. See Zannino,

.

We need go no further. We conclude, without serious

question, that the evidence presented, when viewed in the

requisite light, supports the jury's conclusion. Consequently,

the appellant's conviction must be

Affirmed.

-9-