                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0425n.06
                             Filed: July 16, 2008

                                            No. 07-5200

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE WESTERN
v.                                                        )        DISTRICT OF TENNESSEE
                                                          )
MICHAEL EVERETT JONES,                                    )                  OPINION
                                                          )
       Defendant-Appellant.                               )


BEFORE: NORRIS, GIBBONS, and GRIFFIN, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Defendant Michael Everett Jones appeals from a jury

verdict finding him guilty of aiding and abetting the possession of cocaine with intent to distribute

in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. This appeal focuses on defendant’s

contention that the evidence introduced during trial was constitutionally insufficient to support the

verdict. In essence, we must determine whether the driver of an automobile is criminally responsible

for drugs found on the person of his passenger even though there is no direct evidence of the driver’s

independent knowledge of the drugs.

                                                  I.

       This case stems from a traffic stop. On January 9, 2006, Chief Deputy Ronnie Moore and

Deputy James Jones of the Lake County, Tennessee Sheriff’s Department stopped a gray 1989

Chevrolet driven by defendant based upon an observed seat-belt violation. Co-defendant Lamar
No. 07-5200
United States v. Jones

Wilson was a passenger in the car at the time of the stop. Defendant pulled his vehicle over as soon

as Moore turned on his emergency lights. Moore approached the driver’s side of the vehicle while

Deputy Jones approached the passenger’s side.

       Defendant supplied a driver’s license with a Memphis address but told Moore that he lived

in Tiptonville, a town near the Kentucky border where the stop occurred. The car had Kentucky

plates and was registered to a third party. After further questioning, defendant acknowledged that

he had served a federal sentence for gun possession. According to Moore and Deputy Jones, both

defendant and Wilson appeared anxious.

       Moore returned to the cruiser to initiate license plate and driver’s license checks. When

finished, he returned to the stopped car, this time approaching from the passenger’s side. Moore

noticed that defendant was talking on a cell phone and told him to end the conversation. After

hanging up, Moore overheard defendant tell Wilson, “They’re coming.” At trial, Moore testified that

he worried that defendant might be alluding to friends of defendant who had been summoned to

effect a violent escape.

       Moore then asked defendant if he could search the car. Defendant consented. At this point,

approximately six to eight minutes had passed since the stop. Moore conceded that neither

defendant nor Wilson had been placed under arrest, nor had he issued a traffic citation. As Wilson

stepped out of the car, Moore told him that he was subject to a pat-down. Deputy Jones did the same

to defendant. During the pat-down of Wilson, an object wrapped in fabric softener and duct tape fell

out of his pant-leg. It was later found to contain 500 grams of cocaine. Assuming that the package

contained narcotics, Moore attempted to handcuff Wilson while Deputy Jones was told to handcuff

                                               -2-
No. 07-5200
United States v. Jones

defendant. Wilson escaped from the grip of Moore and began running down the highway. At that

moment, a car driven by co-defendant Lashawnda Ceasar arrived; it was later established that

defendant had called her on the cell phone. Although Moore told her not to leave, she drove off with

Wilson hanging onto the hood of her car.1 Moore returned to the car to assist Deputy Jones and they

handcuffed defendant. Wilson and Ceasar were arrested not long thereafter.

          Defendant and Wilson filed a motion to suppress the results of the traffic stop. The district

court granted the motion as it applied to Wilson but denied it as to defendant. Defendant proceeded

to trial and the jury returned a guilty verdict with respect to the single charge of aiding and abetting

a drug trafficking crime. The district court denied defendant’s motion for judgment of acquittal as

well as a renewed motion for judgment of acquittal or a new trial.

                                                           II.

          On appeal, defendant primarily focuses upon the sufficiency of the evidence although he also

challenges the denial of his motion to suppress.

1. Sufficiency of the Evidence

          Defendant faces an onerous standard of review with respect to this issue:

          We . . . review [defendant’s] claims to determine “whether, after viewing the
          evidence in the light most favorable to the prosecution, any rational trier of fact could
          have found the essential elements of a crime beyond a reasonable doubt.” United
          States v. Wood, 364 F.3d 704, 716 (6th Cir. 2004) (emphasis in original) (quoting
          Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). A
          review for sufficiency of the evidence requires us to “draw all available inferences
          and resolve all issues of credibility in favor of the jury’s verdict.” United States v.
          Paige, 470 F.3d 603, 608 (6th Cir. 2006) (internal quotation marks omitted).


   1
       Although charged as an accessory after the fact, Ceasar was acquitted at trial.

                                                          -3-
No. 07-5200
United States v. Jones

          “Circumstantial evidence alone is sufficient to sustain a conviction and such evidence
          need not remove every reasonable hypothesis except that of guilt.” United States v.
          Spearman, 186 F.3d 743, 746 (6th Cir. 1999) (internal quotation marks omitted).

United States v. Wheaton, 517 F.3d 350, 365 (6th Cir. 2008).

          In order to establish defendant’s guilt of the crime charged, the government must prove the

following beyond a reasonable doubt:

          The elements of [21 U.S.C. § 841(a)(1)] are that “(1) the defendant knowingly; (2)
          possessed a controlled substance; (3) with intent to distribute.” United States v.
          Gibbs, 182 F.3d 408, 424 (6th Cir. 1999). “To prove aiding and abetting, the
          government must show that [the defendant] knew that the principals possessed [the
          controlled substance] with the intent to distribute it, and that [the defendant] assisted
          in their plan to deliver [it].” United States v. Ledezma, 26 F.3d 636, 641 (6th Cir.
          1994). [Defendant’s] mental state is thus an essential element of the offense . . . .

United States v. Bennett, 291 F.3d 888, 895 (6th Cir. 2002).

          Defendant’s position is straightforward: he did not personally possess cocaine or large

amounts of cash; he merely drove a car with a passenger who did. He points out that he cooperated

with law enforcement by stopping his car when asked to do so, consented to a search of the vehicle,

revealed his past conviction for gun possession,2 and agreed to a pat-down. No charges were ever

filed relating to his use of the car and there was nothing inherently suspicious in the fact that it

happened to be licensed in Kentucky and belonged to someone else.

          With respect to his alleged “nervousness,” Deputy Moore conceded that suspects are often

nervous. Given that defendant had been pulled over, a certain amount of apprehension was to be




  2
      The district court granted a motion in limine excluding information relating to this prior conviction from trial.

                                                           -4-
No. 07-5200
United States v. Jones

expected. Furthermore, defendant did not try to flee when Ceasar arrived (not to mention that the

jury acquitted her of criminal intent as well).

         Defendant refers us to a drug trafficking conspiracy case in which this court concluded that

mere presence in a house that contained drugs and firearms is insufficient to establish an agreement

to engage in a conspiracy. United States v. Pearce, 912 F.2d 159, 162 (6th Cir. 1990). Although the

case before us involves aiding and abetting, defendant argues by analogy that the mere fact that he

was driving the car is not enough to establish his knowledge of the presence of the drugs. See United

States v. White, 932 F.2d 588, 589 (6th Cir. 1991) (living three feet from a marijuana patch is not

enough, standing alone, to establish participation in distribution).

         While this case is undoubtedly close, our “rational juror” standard of review controls the

outcome. In our view, defendant’s decision to call Ceasar tips the balance. Although defense

counsel argued to this court that there could have been an innocent explanation for this call, a

rational juror could determine that no one would summon assistance from an acquaintance based

upon a traffic stop for failure to wear seat belts. Rather, it is logical to conclude that the call

indicated that defendant knew of the presence of the drugs. The jury could further conclude, from

the fact that the recipient of the call arrived and carried off Wilson, that defendant assisted in the

possession of the cocaine with intent to distribute.3

2. Motion to Suppress



   3
    In our view, the dissent mistakenly acts as trier of fact by crediting Ceasar’s version of events over that provided
by Moore. Credibility determinations are reserved for the jury. As long as the evidence is sufficient for a rational
juror to find guilt beyond a reasonable doubt, we may not substitute our own conclusion for that of the jury.

                                                           -5-
No. 07-5200
United States v. Jones

       This circuit has recently reiterated its long-standing approach to reviewing motions to

suppress:

               “When reviewing the denial of a motion to suppress, [this court] review[s]
       the district court’s findings of fact for clear error and its conclusions of law de novo.”
       United States v. Foster, 376 F.3d 577, 583 (6th Cir. 2004). “A factual finding will
       only be clearly erroneous when, although there may be evidence to support it, the
       reviewing court on the entire evidence is left with the definite and firm conviction
       that a mistake has been committed.” United States v. Navarro-Camacho, 186 F.3d
       701, 705 (6th Cir. 1999). Additionally, the evidence produced at a suppression
       hearing must be viewed “in the light most likely to support the district court's
       decision.” Ibid.

United States v. Nichols, 512 F.3d 789, 793 (6th Cir. 2008).

       After holding an evidentiary hearing, the district court entered an order granting Wilson’s

motion to suppress, but denying the motion submitted by defendant.

       The evidence produced at the hearing was essentially a subset of that given during the trial

and will not be repeated here. With respect to Wilson, the court concluded that “the United States

has not shown that Deputy Moore had a reasonable belief that Wilson was armed and dangerous

before conducting the pat-down search.”

       However, it noted that defendant lacked standing to contest the pat-down of Wilson and

therefore the evidence seized in that pat-down was admissible with respect to him. The court then

explained that the initial stop was valid due to the seat-belt infraction. Although the officers were

obliged to limit their investigation to the proper scope, the court concluded that nothing was amiss:

                Here, the manner and length of the detention were reasonable. Deputy Moore
       testified that only ten to fifteen minutes had elapsed from the time of the initial stop
       to the point where he asked permission to search the car. During those initial ten to
       fifteen minutes, Moore testified that he had been unable to effectuate the purpose of
       the stop – to issue a seat belt citation – because the defendants had been unable to

                                                 -6-
No. 07-5200
United States v. Jones

       produce the car’s registration and proof of insurance. In addition, Moore was still
       waiting on the results of the driver’s license check. Furthermore, the observed seat
       belt violation provided sufficient grounds for the deputies to request that Wilson and
       Jones exit the vehicle.

Finally, the court observed that the consent to search the car had been voluntary (and did not turn up

any evidence in any event).

       We note that defendant’s argument on this issue is perfunctory, reflecting his recognition that

the reasoning of the district court is correct. We affirm on that basis.

                                                 III.

       The judgment of the district court is affirmed.




                                                -7-
No. 07-5200
United States v. Jones

       GRIFFIN, Circuit Judge, dissenting.



       I respectfully dissent. While I join the portion of the majority opinion that affirms the denial

of defendant’s motion to suppress (Section II, 2), I would reverse defendant’s conviction on the

grounds of insufficiency of the evidence.

       A defendant challenging the sufficiency of the evidence has a “very heavy burden.” United

States v. Chavis, 296 F.3d 450, 455 (6th Cir. 2002). “When reviewing an insufficient-evidence

claim, this court must decide whether, after viewing the evidence in a light most favorable to the

government, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007). See also Jackson

v. Virginia, 443 U.S. 307, 319 (1979).

       When deciding whether any rational trier of fact could have found the essential elements of

the crime, we do not “weigh the evidence, consider the credibility of witnesses, or substitute [our]

judgment for that of the jury.” Chavis, 296 F.3d at 455 (quoting United States v. Ferguson, 23 F.3d

135, 140 (6th Cir. 1994)). We will reverse a judgment on insufficiency-of-the-evidence grounds

“‘only if [the] judgment is not supported by substantial and competent evidence upon the record as

a whole.’” United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005) (quoting United States v.

Stone, 748 F.2d 361, 363 (6th Cir. 1984)); United States v. Beddow, 957 F.2d 1330, 1334 (6th Cir.

1992). If, however, the evidence is such that a “rational fact finder must conclude that a reasonable

doubt is raised, this Court is obligated to reverse a denial of an acquittal motion.” United States v.



                                                -8-
No. 07-5200
United States v. Jones

Lloyd, 10 F.3d 1197, 1210 (6th Cir. 1993) (citing United States v. Collon, 426 F.2d 939, 942 (6th

Cir. 1970)).

       To establish a violation of § 841(a)(1), the government must prove the following elements:

“(1) knowing (2) possession of a controlled substance (3) with intent to distribute.” United States

v. Mackey, 265 F.3d 457, 460 (6th Cir. 2001) (quoting United States v. Christian, 786 F.2d 203, 210

(6th Cir. 1986)). To prevail on its theory of aiding and abetting, the government bore the burden of

proving beyond a reasonable doubt that defendant Jones knew that Wilson possessed the cocaine

with intent to distribute and assisted Wilson in a plan to deliver it. United States v. Gardner, 488

F.3d 700, 711 (6th Cir. 2007); United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).

       It is well settled that a defendant may not be held criminally responsible solely for being

physically present near contraband. Parker v. Renico, 506 F.3d 444, 450 n.4 (6th Cir. 2007)

(observing that a defendant’s presence near a firearm is insufficient to establish constructive

possession); United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (en banc) (“‘Presence alone’

near a gun . . . does not ‘show the requisite knowledge, power, or intention to exercise control over’

the gun to prove constructive possession.”) (quoting United States v. Birmley, 529 F.2d 103, 107-08

(6th Cir. 1976)). See also United States v. Conrad, 507 F.3d 424, 434 (6th Cir. 2007) (observing that

presence near contraband is, by itself, insufficient to support a conviction for aiding and abetting);

United States v. Pena, 983 F.2d 71, 73 (6th Cir. 1993) (holding that mere presence in a place where

drugs were discovered is not enough to sustain a conviction for aiding and abetting in possession

with intent to distribute illegal drugs); United States v. Craig, 522 F.2d 29 (6th Cir. 1975) (same).



                                                -9-
No. 07-5200
United States v. Jones

        In its attempt to show defendant Jones knew that Wilson possessed cocaine,1 the government

relies upon an unsupported, irrational theory that defendant’s phone call was an attempt to trigger

a pre-planned escape strategy conceived by him, Wilson, and Jones’s friend Lashawnda Ceaser, in

the event defendant and Wilson were arrested on their way to an alleged drug transaction. According

to the prosecution, defendant’s plan called for Ceaser to drive to the scene of the traffic stop, and for

defendant and Wilson to escape as passengers in Ceaser’s car. In reality, the alleged escape plan

played out as follows: as Ceaser approached the site of the traffic stop, she saw a man (Wilson)

running toward her car as she stopped to avoid hitting him. Wilson jumped on the hood of Ceaser’s

car, shouted “go, go, go!” while Ceaser responded “no, no, no,” before stepping on the gas and

departing the scene of the traffic stop, leaving defendant alone to face arrest.

        The escape plan theory overlooks significant facts that would cause any rational juror to

conclude that the prosecutor’s hypothesis is totally implausible. First, although the government

suggests that defendant was so worried about the possibility of being stopped by the police while

traveling on Highway 78 that he devised an escape plan before he began his trip, defendant Jones

was apparently unconcerned about his plan being discovered. According to Officer Moore,

defendant was speaking on his cell phone when Moore returned from checking his driver’s license

and did not hang up until he was asked, repeatedly, by Officer Moore. One would expect a drug



   1
    Ironically, Wilson’s motion to suppress evidence of the cocaine, premised on his claim of
a Fourth Amendment violation in his pat-down, was granted by the district court and affirmed
by this court on appeal. United States v. Wilson, 506 F.3d 488 (6th Cir. 2007). Defendant Jones
was convicted and sentenced to twenty years of imprisonment based on the same cocaine
possessed by Wilson, but suppressed in the government’s case against Wilson.

                                                 - 10 -
No. 07-5200
United States v. Jones

dealer to begin his escape plan somewhat more secretively, rather than triggering the alleged escape

attempt by announcing “they’re coming” in the presence of the police.

       Second, and more significantly, the government ignores the facts that Ceaser initially

exclaimed “no, no, no” when approached by Wilson and then traveled a mere 400 yards before

stopping in a driveway. Wilson then jumped off of the hood of the car, while Ceaser turned around

and traveled back towards the police. Defendant’s lack of concern in the privacy of his cell phone

call and Ceaser’s verbal response and near-immediate return toward the police are significant actions

that are inherently inconsistent with the government’s escape theory. Also at odds with the

government’s position is the jury’s not guilty verdict regarding Ceaser.

       Finally, it should be noted that when Deputy Moore asked defendant “[d]o you have any

drugs or anything in the car that I should know about?” Jones replied “no” and then voluntarily

consented to the search of the vehicle.

       In relying on the prosecution’s hypothesis, the majority makes two inferences that are not

supported by the evidence: first, defendant was calling Ceaser in order to evade a potential arrest;

and, second, Jones feared a potential arrest because he knew that Wilson was carrying cocaine. A

finding of aiding and abetting may be based on circumstantial evidence, but “a line must be drawn

between valid circumstantial evidence, and evidence which requires a leap of faith in order to

support a conviction.” United States v. White, 932 F.2d 588, 590 (6th Cir. 1991). See also United

States v. Reece, 86 F.3d 994, 997 (10th Cir. 1996) (“A verdict that is, in fact, based upon a guess or

a mere possibility cannot be upheld.”).



                                                - 11 -
No. 07-5200
United States v. Jones

       Rather than taking these two leaps of faith and accepting the government’s unsupported

“what if” theory, I would follow the approach taken by the Tenth Circuit in Reece, which addressed

the same issue under substantially similar circumstances. In Reece, the driver and his passenger,

Scott Clift, were pulled over for failing to signal a lane change. As one of the police officers

approached the passenger side of Reece’s vehicle, he noticed that the passenger was holding two

hand-rolled cigarettes and a bag that contained a green, leafy substance. Id. at 995. Clift was

removed and searched, revealing 11.28 grams of marijuana and 13.39 grams of crack cocaine in his

pockets. A search of Reece revealed no narcotics, but officers found $2,700 in the glove

compartment. Id. At trial, Clift testified that the narcotics and cash were his, that he had placed the

money in the compartment to hide it from the police, and that Reece had no knowledge of the

narcotics or cash. Id.

       After the police officers discovered the contraband, Reece and Clift were placed in the

backseat of the police cruiser, where their conversation – unbeknownst to them – was recorded. Id.

The tape of the recording was played at trial, which recorded Reece urging Clift to take responsibility

for the drugs and Reece’s question to Clift regarding whether all of the contraband had been

discovered. Id. Despite Clift’s testimony at trial, Reece was convicted of possession of narcotics

with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

       On appeal, the Court of Appeals for the Tenth Circuit held that the evidence offered at trial

was insufficient to support Reece’s conviction, holding “our review of the evidence fails to link Mr.

Reece to the narcotics in any way other than presence and proximity, let alone show his intent to

sell.” Id. at 996. The court explained:

                                                - 12 -
No. 07-5200
United States v. Jones

       The only evidence introduced that could conceivably link Mr. Reece with the
       narcotics by indicating his knowledge of the presence of the narcotics was the tape
       recorded conversation in the back of the vehicle. By the time the recording was
       made, however, it is clear that Mr. Reece was aware that narcotics were found on Mr.
       Clift, and had indeed seen the narcotics on the trunk of the vehicle following their
       removal from the person of Mr. Clift. Because constructive possession requires a
       nexus between the defendant and the contraband where there is more than one
       possibility as to who is in possession of that contraband, mere dominion over the
       vehicle and proximity to the contraband will not satisfy the possession element. The
       government’s case is barren of evidence linking or demonstrating a nexus between
       Mr. Reece and the narcotics found on Mr. Clift’s person and therefore cannot sustain
       the conviction and the 262 month sentence.

Id.

       Similarly, in the present case, no direct evidence was introduced to prove that defendant had

any knowledge of Wilson possessing cocaine at the time of the traffic stop. Indeed, there may have

been a stronger case for finding possession in Reece than here; in Reece, $2,700 was found in an area

of joint control, while all of the cocaine found during the stop at issue in this case was discovered

in Wilson’s pockets. Regardless, as in Reece, the government’s circumstantial evidence case is

devoid of any evidence demonstrating a connection between Jones and the cocaine found in

Wilson’s pocket. “The jury may draw reasonable inferences from direct or circumstantial evidence,

yet an inference must amount to more than speculation or conjecture.” Id. at 996. In my view, the

government’s theory based on Jones’s phone call to Ceaser is no more than pure speculation and

conjecture. For these reasons, I would hold that the government’s implausible theory is not

supported by substantial and competent evidence and, thus, the evidence was insufficient for any

rational juror to find the elements of the crime proven beyond a reasonable doubt.

       I respectfully dissent. I would reverse defendant’s conviction.


                                               - 13 -
