Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
3-1-2004
USA v. Cartwright Precedential or Non-Precedential: Precedential
Docket No. 03-1466P
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Recommended Citation "USA v. Cartwright" (2004). 2004 Decisions. Paper 898. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/898
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. Patrick L. Meehan PRECEDENTIAL United States Attorney Laurie Magid Deputy U.S. Attorney UNITED STATES COURT Robert A. Zauzmer OF APPEALS Assistant U.S. Attorney FOR THE THIRD CIRCUIT Kenya S. Mann (Argued) Assistant U.S. Attorney 615 Chestnut Street NO. 03-1466 Suite 1250 Philadelphia, PA 19106 Attorneys for Appellee UNITED STATES OF AMERICA Maureen Kearney Rowley v. Chief Federal Defender David L. McColgin (Argued) ELLIOT CARTWRIGHT Assistant Federal Defender a/k/a DARYL ATKINS Curtis Center - Suite 540 West Independence Square West Elliot Cartwright Philadelphia, PA 19106 Appellant Attorneys for Appellant
On Appeal From the United States OPINION OF THE COURT District Court For the Eastern District of Pennsylvania (D.C. Crim. Action No. 02-cr-00581-2) District Judge: Hon. James T. Giles STAPLETON, Circuit Judge:
Argued January 26, 2004 Defendant E l l io t C a r t w r i g ht (“Cartwright”) appeals his conviction and BEFORE: NYGAARD, FUENTES sentence, following a jury trial, for and STAPLETON, Circuit Judges conspiracy to distribute cocaine in violation of 21 U.S.C. § 846 (2001), aiding (Opinion Filed: March 1, 2004) and abetting the distribution of cocaine in violation of 21 U.S.C. § 841 (2001) and 18 U.S.C. § 2 (2001), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (2001). The sole issue presented by this appeal is whether the evidence presented $90,000. The two also initially agreed that by the government at trial was sufficient to the sale would take place later that day at support Cartwright’s conviction. We the Houlihan’s or Friday’s on City Line conclude that the evidence adduced at trial Avenue in Philadelphia.2 After the initial did not support an inference that conversation, Ellis changed the location of Cartwright knew he was participating in a the transaction to the parking lot of the transaction that involved a controlled Bala Cynwyd Shopping Center in substance, as opposed to some other form Montgomery County, Pennsylvania, just of contraband. Because we have across the Philadelphia city line. consistently held that such proof is necessary to support a conviction in cases Before going to the shopping center such as this, we will reverse the judgment. parking lot, Muhammed El first met Ellis at a gas station in the East Falls section of I. Facts and Procedural History Philadelphia. Muhammed El was accompanied by James Avery, an On September 27, 2001, a drug dealer undercover narcotics agent with the named Prince Muhammed El agreed to Pennsylvania Attorney General’s Office, coop erate with agen ts from the who posed as Muhammed El’s bodyguard Pennsylvania Office of the Attorney and confidant. At the gas station, General, Bureau of Narcotics Investigation Muhammed El got out of his car and and Drug Control, in arranging for the entered Ellis’s silver Mitsubishi Montero, controlled purchase of three kilograms of a sport utility vehicle (the “SUV”). cocaine. Muhammed El made the Muhammed El then rode with Ellis to the arrangements through his friend, Rashine shopping center while Avery followed Ellis, who in turn contacted her supplier, them in Muhammed El’s car. The two Osiris Jackson. Muhammed El had vehicles arrived at the shopping center contacted Ellis through his two-way parking lot at approximately 4:45 p.m. handheld text messaging device.1 During Ellis parked her SUV about five to six car a recorded telephone conversation later lengths from the front door of a Foot that day, Muhammed El and Ellis negotiated the terms of the transaction. Muhammed El agreed to purchase three 2 During the telephone call, Muhammed kilograms of cocaine for a price of El professed a desire that the transaction take place out in the open, where there would be other people to watch and make 1 Muhammed El later testified that he sure the transaction went smoothly. Ellis used the two-way messaging device in also suggested during the telephone call drug transactions to avoid the possibility that the only people who would be present that his conversations would be overheard at the transaction would be herself, by others. Muhammed El, and Jackson.
2 Locker store. Agent Avery parked in a walking side-by-side with Defendant Elliot space directly across from Ellis’s SUV. At Cartwright. Agent Bellis observed that at that point, the parking lot was under one point, Jackson and Ellis were talking government surveillance. to each other, and he could tell that “they were having some kind of conversation.” When they arrived at the parking lot, App. at 143a. Jackson and Cartwright Ellis contacted her supplier, Osiris walked together through the breezeway for Jackson, using her two-way text messaging approximately thirty feet and then began to device. Muhammed El then got out of separate. Jackson walked out into the Ellis’s SUV and went to Agent Avery, parking area towards Ellis’s SUV and who remained in Muhammed El’s car. Cartwright continued to walk along a path Muhammed El told Agent Avery that he that ran adjacent to the store fronts. would give a signal by lifting his hat as Cartwright stopped walking near the Foot soon as he saw the cocaine. Muhammed Locker. His back was facing a wall that El then got back into Ellis’s SUV. At that separated the Foot Locker from the store to point, law enforcement agents observed its left. Cartwright then leaned up against Jackson, empty-handed, walking up to the the wall and placed one foot up against it. SUV and getting into the rear passenger- He was also looking straight ahead, in the side seat. While inside the SUV, direction of Ellis’s SUV. The SUV was Muhammed El, pointing to Agent Avery, located about 90 to 100 feet from the Foot told Jackson that he had the money and Locker. asked if Jackson had the cocaine. Jackson said that he did have the cocaine and Ellis Meanwhile, Jackson crossed the parking pronounced that the “deal is good.” App. lot and, after taking a loaded firearm from at 96a. Jackson then got out of the SUV his waistband, entered the SUV. Jackson and walked through the breezeway at the placed the blue and white shopping bag on corner of the mall that led to another its side in the SUV, showing Muhammed parking lot located on the rear side of the El three bricks of cocaine. Muhammed El mall. The rear parking lot was not under then gave the pre-arranged signal and law government surveillance. enforcement of f ic e rs imme dia te ly converged on the SUV. The agents Several minutes later, Jackson returned recovered from Jackson a loaded firearm through the breezeway, carrying a blue and with a round in the chamber, a Motorola white paper shopping bag marked with the Timeport two-way text messaging device, words “Mr. Denim.” Agent Kenneth the blue and white shopping bag Bellis, who was conducting surveillance containing the cocaine, and the keys to a for the controlled transaction, observed Subaru vehicle that was discovered in the that as Jackson walked through the rear parking lot and was registered in the breezeway leading back to the front name of Jackson’s father. parking lot and Ellis’s SUV, he was
3 As the agents converged upon Ellis’s Cartwright’s defense counsel moved for SUV, Agent Bellis observed Cartwright a judgment of acquittal under Fed. R. remove his foot from the wall and saw him Crim. P. 29 after the close of the going “fairly quickly” into the Foot Locker government’s case and again at the close store. App. at 146a. Agent Bellis radioed of all evidence. The District Court denied for another agent, Edward Rodriguez, to both motions, holding that sufficient meet him at the Foot Locker. Together, evidence existed to send the case to the the two agents entered the Foot Locker jury. Cartwright was found guilty on all approximately twenty to thirty seconds three counts. He was sentenced to a term after Cartwright. Upon entering the Foot of 140 months of imprisonment, five years Locker, they saw Cartwright with his back of supervised release, a fine of $1,500, and towards them, standing near clothes racks a special assessment of $300. Cartwright located in the middle of the store. They filed a timely notice of appeal. grabbed Cartwright, patted him down, and recovered from him a loaded semi- II. Jurisdiction automatic firearm with a round in the chamber, a cellular phone, $180 in cash, The District Court had jurisdiction over and a Motorola Timeport two-way text this case under 18 U.S.C. § 3231 (2001) messaging device similar to the one because Cartwright was charged with recovered from Jackson. Cartwright was offenses against the laws of the United not in possession of any car keys. States. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 At Cartwright’s trial, the foregoing (2001) because the District Court’s facts were developed through the judgment of conviction and commitment testimony of Muhammed El, Agent Avery, was a final decision. Agent Bellis, Agent Rodriguez, and two other law enforcement agents. In addition, III. Discussion Agent Bellis testified, as an expert in the field of drug trafficking, that drug dealers Cartwright argues on appeal that the commonly used lookouts to conduct evidence presented by the government was counter-surveillance in drug transactions insufficient to support his conviction on and that these lookouts could possess a any count. First, Cartwright contends that firearm. The only witness to testify for the the government failed to show that he was defense was Bernard Clark, the assistant a “lookout” for Osiris Jackson and that all manager of the Foot Locker, who told the of the evidence presented to the jury was jury that when Cartwright first came into c o n s i s te n t w i t h h i s i n n o c e n c e. the store, he asked a saleswoman a Alternatively, Cartwright claims that even question, then looked at some clothing, assuming that the government’s evidence and then asked the saleswoman another was sufficient to support an inference he question. acted as a lookout for Jackson, the
4 government failed to show that he knew Cartwright and Jackson also possessed that the transaction involved a controlled similar two-way text messaging devices. substance. In reviewing Cartwright’s Moreover, the jury heard expert testimony challenge to the sufficiency of the that lookouts are commonly used in drug evidence, we apply a “particularly transactions of this type. While there may deferential” standard of review. United have been an innocent explanation for States v. Cothran, 286 F.3d 173, 175 (3d Cartwright’s activity, 3 “[t]here is no Cir. 2002) (quoting United States v. Dent, requirement . . . that the inference drawn 149 F.3d 180, 187 (3d Cir. 1998)). The by the jury be the only inference possible verdict must be sustained if there is or that the government’s evidence substantial evidence to support it. Burks v. foreclose ev ery possible innocent United States, 437 U.S. 1, 17 (1978); explanation.” United States v. Iafelice, United States v. Beckett, 208 F.3d 140, 151 978 F.2d 92, 97 n.3 (3d Cir. 1992) (citing (3d Cir. 2000). “It is not our role to weigh United States v. Sandini, 888 F.2d 300, the evidence or to determine the credibility 311 (3d Cir. 1989)). Accordingly, the of the witnesses.” Cothran, 286 F.3d at evidence presented, viewed in the light 175. “We must view the evidence in the most favorable to the government, is light most favorable to the Government clearly sufficient to support a finding that and sustain the verdict if any rational juror Cartwright was acting as a lookout for could have found the elements of the crime Jackson. Our cases dictate, however, that beyond a reasonable doubt.” Id. merely acting as a lookout is insufficient to sustain a conviction for conspiracy to Under this standard of review, we have distribute, or aiding and abetting the little difficulty concluding that the distribution of, a controlled substance. evidence is sufficient to support a finding See, e.g., United States v. Salmon, 944 that Cartwright acted as a lookout for F.2d 1106, 1113 (3d Cir. 1991); United Jackson. Moreover, there is ample States v. Wexler, 838 F.2d 88, 90-92 (3d evidence in the record to suggest that Cir. 1988). Although this evidence may be Cartwright knew he was involved in an sufficient to prove that Cartwright knew he illicit transaction of some sort. The evidence showed that Cartwright and Jackson had a conversation during a thirty- 3 For example, Cartwright asserts that foot walk through the breezeway, after on these facts, he may have just been a which Cartwright was seen taking up a casual acquaintance of Jackson who position next to the Foot Locker and happened to run into him in the parking watching the SUV as Jackson walked to it lot, or he may have been a stranger who with the blue and white shopping bag. merely asked Jackson a question, or he Cartwright, like Jackson, was armed with may have just been an ordinary shopper a semi-automatic weapon that was loaded who paused to rest before going about his and had a round in the chamber. errands.
5 was participating in some sort of illegal that ‘some form of contraband’ was transaction, these facts nonetheless are involved in the scheme in which he was insufficient to prove beyond a reasonable participating, the government is obliged to doubt that Cartwright knew the transaction prove beyond a reasonable doubt that the involved drugs. defendant had knowledge of the particular illegal objective contemplated by the “The elements of a conspiracy may be conspiracy.” Idowu, 157 F.3d at 266-67 proven entirely by circumstantial evidence, (citing United States v. Thomas, 114 F.3d but each element of the offense must be 403, 405 (3d Cir. 1997); Wexler, 838 F.2d proved beyond a reasonable doubt.” at 90). Accordingly, “this court has Wexler, 838 F.2d at 90; see also United [consistently] overturned convictions for States v. Idowu, 157 F.3d 265, 266-67 (3d conspiracy in drug possession and Cir. 1998). “One of the requisite elements distribution because of the absence of any the government must show in a conspiracy evidence that the defendant had knowledge case is that the alleged conspirators shared that drugs were involved.” United States a ‘unity of purpose’, the intent to achieve v. Mastrangelo, 172 F.3d 288, 293 (3d Cir. a common goal, and an agreement to work 1999) (citing Idowu, 157 F.3d 265; together toward the goal.” Wexler, 838 Thomas, 114 F.3d 403; Salmon, 944 F.2d F.2d at 90-91 (citing United States v. 1106; Wexler, 838 F.2d 88; United States Kates, 508 F.2d 308, 310-11 (3d Cir. v. Cooper, 567 F.2d 252 (3d Cir. 1977)). 1975)); see also Idowu, 157 F.3d at 268. “In order for us to sustain a defendant’s We also have overturned aiding and conviction for conspiracy, the government abetting convictions for parallel reasons. must have put forth evidence ‘tending to See, e.g., Salmon, 944 F.2d at 1113; prove that defendant entered into an Wexler, 838 F.2d at 92. A conviction on agreement and knew that the agreement such a charge “requires that another had the specific unlawful purpose charged committed the substantive offense and that in the indictment.’” Idowu, 157 F.3d at the one charged with aiding and abetting 268 (quoting Wexler, 838 F.2d at 91).4 kne w of the substa ntive - of fen se Applying this rule, “[w]e have consistently commission and acted with the intent to held in cases of this genre that, even in facilitate it.” Salmon, 944 F.2d at 1113 situations where the defendant knew that (citing United States v. Dixon, 658 F.2d he was engaged in illicit activity, and knew 181, 189 n.17 (3d Cir. 1981)); see also United States v. Bey, 736 F.2d 891, 895 (3d Cir. 1984); United States v. Pearlstein, 4 576 F.2d 531, 546 (3d Cir. 1978). Moreover, we have held that “[t]he “[A]cting with intent to facilitate the inferences rising from ‘keeping bad substantive offense requires that one acted company’ are not enough to convict a with the ‘intent to help those involved with defendant for conspiracy. Wexler, 838 a certain crime.’” Salmon, 944 F.2d at F.2d at 91.
6 1113 (quoting Wexler, 838 F.2d at 92) convincing connection, i.e., where an (emphasis in original). We have therefore inference as to a defendant’s knowledge is held that a reasonable jury could not have based upon speculation, our case law had sufficient evidence to find that a forbids us from upholding his conviction. defendant aided and abetted the possession See Thomas, 114 F.3d at 406. and/or distribution of drugs where “the government did not prove that [the The facts of this case undoubtedly defendant] had knowledge of the [drugs], evidence the existence of a conspiracy, at had knowledge that [the co-defendant] least among Rashine Ellis and Osiris intended to distribute or possess [drugs], or Jackson, to distribute cocaine. There is purposefully intended to aid others in also no question that a distribution of committing the crime alleged.’” Id. at cocaine actually occurred. However, the 1114 (quoting Wexler, 838 F.2d at 92). government can point only to the following facts established at trial as a Based on this well-established basis for inferring Cartwright’s knowledge precedent, the proper question before us of a drug distribution: (1) Cartwright with respect to both the conspiracy and the made his first appearance in the breezeway aiding and abetting charges is “whether at the same time that Jackson was there was sufficient evidence that observed carrying the shopping bag [Cartwright] knew that the subject matter containing the cocaine; (2) Cartwright of the transaction was a controlled walked side-by-side with Jackson through substance, rather than some other form of the breezeway and the two were observed contraband, such as stolen jewels or talking to each other; (3) Cartwright computer chips or currency.” Idowu, 157 possessed a semi-automatic firearm, a F.3d at 266. Here, the government cellular phone, $180 in cash, and a presented no direct evidence proving that M otorola Timeport two-way text Cartwright knew he was involved in a drug messaging device; and (4) Cartwright did transaction. We have recognized, not possess any keys to a vehicle of his howeve r, that “[i]nferences fro m own. There is simply no logical and established facts are accepted methods of convincing connection between these facts proof when no direct evidence is available and the inference the government seeks to so long as there exists a logical and draw. Rather, that inference is based convincing connection between the facts solely on speculation about a possible prior established and the conclusion inferred.” relationship between Cartwright and Id. at 269 (quoting United States v. Jackson, about how Cartwright got to the Clemmons, 892 F.2d 1153, 1159 (3d Cir. mall, and about what Cartwright was doing 1989); see also Salmon, 944 F.2d at 1114 prior to being sighted with Jackson, (citing United States v. McNeill, 887 F.2d matters as to which there is no evidence. 448, 450 (3d Cir. 1989)). On the other hand, in the absence of a logical and Our conclusion that the foregoing facts
7 do not support the government’s inference involved was speculative. We noted that follows a fortiori from Thomas, 114 F.3d even if Petersen had spoken to Thomas 403 and Idowu, 157 F.3d 265. In Thomas, prior to the transaction, there was no a drug courier named Lynch agreed to evidence concerning the substance of the cooperate with law enforcement officers in phone calls or showing that Thomas had a conducting a planned drug transaction. prior relationship with Lynch or Peterson. 114 F.3d at 404. Lynch informed the W e therefore reversed Thomas’s officers that she had been directed by a conspiracy conviction. man named Petersen to take a suitcase carrying cocaine to a hotel room at the In Idowu, one Monadu Ajao had Atlanta Airport Days Inn, leave the negotiated to buy two kilograms of heroin suitcase in the hotel room, return the room from Abdul Khaliq, an informant working key to the front desk in an envelope with the United States Drug Enforcement marked “Melvin Smith” or “Cousin Agency (“DEA”). 157 F.3d at 267. The Melvin Smith,” and then leave the Days two agreed that the transaction would take Inn for another hotel. Id. Lynch place at a Quality Inn in Jersey City, New performed as directed and the officers set Jersey. Ajao arrived at the agreed-upon up surveillance of the Days Inn hotel time in a Lincoln Town Car driven by room. Defendant Thomas then obtained defendant Idowu. Ajao then spoke to the room key from the front desk, was Khaliq in the presence of Idowu, although observed entering the designated room, he referred to the subject of the deal as and was arrested upon exiting. Thomas “the stuff” rather than “heroin” or “drugs.” told the officers that he was to be paid Id. at 267, 268. During the transaction, $500 to check on a suitcase at the hotel, Idowu opened the trunk of the Town Car, but he denied having any knowledge that removed a brown leather bag from the the suitcase contained cocaine. When trunk, and then opened the bag to show Thomas was arrested, he was in possession Khaliq $20,000 in cash. Idowu also of a cellular phone, a pager, and a nine assured Khaliq that all the money was millimeter pistol. In addition, officers there. When Khaliq stated that he would retrieved from Thomas’s pager the same have to take the bag with him, Idowu told telephone number at which Lynch had him that he had personal documents within earlier called Petersen. Furthermore, it that he would have to remove. After Petersen’s phone records also showed taking the brown leather bag, Khaliq several calls to Thomas’s pager and opened the rear hatch of his own car, cellular phone, as well as to Thomas’s removed a black suitcase that had been home telephone. We concluded from this outfitted to contain the heroin in its lining, evidence that Thomas must have known and placed the suitcase in the still-open that he was somehow involved in an illicit trunk of the Town Car. Idowu then activity; however, we held that any opened the black suitcase and, upon seeing conclusion that Thomas knew drugs were nothing inside, told Ajao: “They didn’t
8 pack this thing.” Id. at 268. Ajao then direct evidence indicating Cartwright’s told Idowu to press the suitcase with his knowledge, the jury could only speculate hands and Khaliq assured both of them as to Cartwright’s knowledge.5 Moreover, that “something was concealed in the frame of the suitcase.” Id. Ajao and Idowu were then arrested by DEA agents. 5 Accordingly, we also reject the From these facts, we concluded that only argument that Cartwright can be inferred two inferences were proper: that Idowu to know that he was involved in a drug had a preexisting relationship with Ajao, transaction solely from the nature of items and that Idowu knew he was involved in found in his possession at his arrest. an illicit transaction. However, we held Despite our holding in Thomas, the that even if Idowu had been a “trusted” government cites to United States v. participant in the transaction, the Picklesimer, 585 F.2d 1199, 1204 (3d Cir. government’s failure “to provide evidence 1978) for the proposition that firearms are that Idowu knew that drugs were in fact the tools of narcotics trafficking. In that the subject matter of the transaction” case, however, we simply addressed precluded the jury from inferring that whether firearms were relevant to show a Idowu had knowledge of the nature of the narcotics conspiracy for purposes of deal. Id. at 270. Accordingly, we rejected admissibility. Picklesimer did not hold the government’s inference that Idowu that the presence of firearms was sufficient must have been aware of the subject matter to prove a narcotics conspiracy beyond a of the transaction simply because Ajao felt reasonable doubt. In fact, contrary to the comfortable speaking about the transaction government’s assertion, we noted that in front of him. We also noted, in passing, guns are often used to protect contraband that “it is not uncommon for managers of in general. Id. (“It often happens that clandestine illegal operations to keep their illegal enterprises, such as narcotic employees insulated from one another and conspiracies, are ongoing ventures, from the overall plan of operation so that requiring the use of guns for protection of they cannot supply evidence against others the contraband . . .”). The government involved.” Id. at 269 n.3. also cites United States v. Ortiz, 966 F.2d 707, 714 (1st Cir. 1992) to suggest that In this case, as in Thomas, Cartwright Cartwright’s two-way messaging device was found to possess a firearm, a pager, was an accouterment of the drug trade. In and a cellular phone, and was even that case, however, the Court of Appeals o b s e r v ed t a l k in g w i t h J a c k so n . for the First Circuit explicitly stated that Nevertheless, Thomas dictates that, in the “possession of a beeper is not ipso facto absence of any evidence indicating the proof of complicity in the drug trade.” Id. substance of the conversation with Rather, the court noted that a defendant’s Jackson, any evidence of a prior possession of such and item during a drug relationship with Jackson, or any other transaction “‘could justifiably raise the
9 even if we were willing to speculate that Sinde, and then engaged in the transaction Cartwright arrived at the mall in Jackson’s with an undercover DEA agent. The car, Idowu indicates that such evidence, evidence also indicated that Iafelice, who without more, would still be insufficient to remained in his car with Finn, used a infer that Cartwright knew he was beeper and a cellular phone to involved in a drug transaction. As in both communicate with the Sindes while they of those cases, there is simply no evidence were in the hotel during the transaction. in this record from which to infer a Reviewing these facts, we held that the conclusion that Cartwright had knowledge evidence was sufficient to show that of the nature of the transaction. Iafelice knew the camera bag contained heroin. Although we noted that the use of The government seems to recognize the beeper and cellular phone during the that Thomas and Idowu do not support its transaction supported the inference that inference as to Cartwright’s knowledge. Iafelice knew drugs were involved, we The government therefore argues that we held that the “truly distinguishing fact” should instead rely on United States v. was his “ownership and operation of the Iafelice, 978 F.2d 92 (3d Cir. 1992) based vehicle used to transport the drugs.” Id. at on the supposition that Cartwright must 97. We reasoned that “[c]ommon sense have, at some point, exercised dominion counsels that an owner and operator of a and control over the cocaine. In Iafelice, vehicle usually has dominion and control defendant Mark Iafelice was observed over the objects in his or her vehicle of driving his own car to the parking lot of a which he or she is aware, and usually hotel in which the DEA had arranged a knows what is in that vehicle.” Id. In controlled purchase of heroin. Iafelice context with the other facts presented, we was accompanied in the car by two concluded that a jury could have conspirators, John Sinde and Thomas Finn, reasonably inferred that Iafelice was in and a brown camera bag containing heroin constructive possession of the heroin and was located in the trunk. DEA agents therefore could have found beyond a testified that Iafelice was driving through reasonable doubt that he knew that he was the parking lot in a suspicious manner involved in a drug transaction.6 indicative of counter-surveillance. Once the car was parked, the trunk popped open from inside the car and John Sinde 6 “Constructive possession exists if an retrieved the camera bag. He then walked individual ‘knowingly has both the power into the hotel, met his brother, Richard and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or eyebrows of a reasonable jury’ when persons.’” Iafelice, 978 F.2d at 96 viewed in light of the totality of the (quoting United States v. Blackston, 940 evidence.” Id. (internal citation omitted). F.2d 877, 883 (3d Cir. 1991)).
10 The government seizes upon Iafelice’s Here, however, the government wishes us rationale and argues that it should apply in to draw the same conclusion based upon this case as well. In doing so, the the weakest of facts. The government government proposes that we assume an presented no evidence of what occurred in entire series of events based on the fact the rear parking lot because that area was that Cartwright and Jackson both came not under surveillance. It would be purely from the rear parking lot through the conjectural for a jury to consider how and breezeway of the Bala Cynwyd Shopping when Cartwright arrived at the rear Center at the same time, the fact that parking lot. Furthermore, the government Cartwright acted as a lookout during the presented no basis, other than “common transaction, and the fact that Cartwright sense,” for a jury to conclude that anyone, did not possess any car keys. Based solely much less Cartwright, had ever been on these facts, the government asks us to guarding the cocaine during Jackson’s draw the following chain of inferences: initial meeting. Nor is it reasonable to (1) that Cartwright arrived in the rear assume that anyone guarding Jackson’s parking lot with Jackson in Jackson’s Subaru must have been in actual or Subaru; (2) that Jackson was unwilling to constructive possession of the cocaine.7 leave the cocaine unattended during the Moreover, no evidence was presented as to initial meeting with Muhammed El; (3) any of Cartwright’s fingerprints on the that, as a result, Cartwright was designated bricks of cocaine, on the blue and white to sit in Jackson’s car during this period; shopping bag, or inside or outside (4) that, in addition be being so designated, Jackson’s Subaru. Nothing in the record Cartwright was given access to the suggested that Cartwright had ever been in cocaine; (5) that Cartwright exercised possession of the cocaine or had ever been dominion over the cocaine; and (6) that, having exercised such dominion, Cartwright must have recognized that the 7 For instance, in United States v. impending transaction involved a Terselich, 885 F.2d 1094, 1095 (3d Cir. controlled substance. All of this, of 1989), the defendant had been a passenger course, could have happened. But so in a car that was pulled over on Interstate could countless other scenarios that do not 95. Upon searching the car’s trunk, a state lead to the ultimate inference the police officer discovered cocaine in a government seeks to draw. secret compartment built into the trunk. We held that while the defendant had Our case law “forbids the upholding of shared driving and lodging responsibilities a conviction on the basis of such with the driver, and appeared nervous speculation.” Thomas, 114 F.3d at 406. In during the stop, that evidence was not Iafelice, our conclusion that the defendant enough to support the inference that the had been in constructive possession of the defendant knew the cocaine was in the heroin was based on observed activity. secret compartment. Id. at 1098.
11 inside Jackson’s Subaru. The substance of NYGAARD, J. dissenting. the communication between Jackson and Cartwright in the breezeway was also unknown. The government presented no I respectfully dissent. Given the totality evidence of any prior relationship between of the evidence, I believe the sequence of Jackson and Cartwright, and did not events proven by the government present any records from Cartwright’s sufficiently supports the inference that cellular phone or two-way text messaging Cartwright was aware he was involved in device that could establish such a a drug transaction. Cartwright was in relationship. Nor did the government ever direct proximity to the drugs and, while in show Cartwright to have previously been such direct proximity, had a conversation involved in any drug trafficking activities. of unknown substance with Jackson, who was in knowing possession of those drugs. We therefore conclude that the Additionally, Cartwright first appeared in government’s argument is speculative and the parking lot at the same time Jackson not based on any logical or convincing reappeared with the drugs. After his c o n n e c t io n t o e s ta b l i sh e d f a c t. conversation with Jackson, Cartwright Accordingly, we hold that, even when immediately took up a look-out position viewed in a light most favorable to the over the ensuing drug transaction. This government, the evidence was not legally sequence of events creates, in my opinion, sufficient to support Cartw right’s a “logical and convincing connection conviction either for conspiring to between the facts established and the distribute, or aiding and abetting the conclusion” that Cartwright was aware he distribution of, cocaine. Because a was involved in a drug deal. United States conviction under 18 U.S.C. § 924(c) v. Idowu, 157 F.3d 265, 269 (3d Cir requires a finding that Cartwright had 1998)(internal citation and quotations engaged in a drug trafficking crime, we omitted). hold that his conviction on that count was For these reasons I would affirm the based on insufficient evidence as well. District Court’s judgment. IV. Conclusion
For the reasons set forth above, we will reverse the judgment of the District Court and remand with instructions to enter a judgment of acquittal.