                                                                                                                           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Precedential or Non-Precedential: Precedential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


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                                        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.




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