                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-21-2008

USA v. Cunningham
Precedential or Non-Precedential: Precedential

Docket No. 06-3899




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                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 06-3899


      UNITED STATES OF AMERICA

                       v.

        MAURICE CUNNINGHAM,

                       Appellant


On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
           (D.C. No. 05-cr-00601-2)
  District Judge: Honorable John R. Padova


           Argued January 10, 2008
       Before: FISHER, HARDIMAN
      and STAPLETON, Circuit Judges.

          (Filed: February 21, 2008)
Robert Epstein (Argued)
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
      Attorney for Appellant

Maria M. Carrillo (Argued)
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
       Attorney for Appellee




                 OPINION OF THE COURT


FISHER, Circuit Judge.

       Maurice Cunningham was convicted of (1) distribution
of crack cocaine, (2) possession with intent to distribute more
than five grams of cocaine base and aiding and abetting, and
(3) possession of a firearm in furtherance of a drug trafficking
crime and aiding and abetting. He appeals his possession
convictions. For the reasons that follow, we will affirm the
District Court’s judgment as to the drug possession conviction
and reverse the judgment as to the firearm possession
conviction.


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                               I.

        On December 2, 2004, Officer Henry of the Philadelphia
Police Department Narcotic Field Unit participated in an
investigation in the 2600 block of North 30th Street. As the
investigation unfolded, the target location became Rakiem
Carter’s residence at 2614 North 30th Street. From an
unmarked police vehicle, Officer Henry observed Cunningham,
who was on the sidewalk in front of Carter’s house, participate
in three transactions that appeared to be drug sales. Individuals
approached Cunningham and gave him money, and he gave
them small items from a plastic baggie.

       During this time period, Carter exited the residence,
spoke with Cunningham, walked away northbound, and then
returned carrying a green book bag. Carter again spoke with
Cunningham, then walked up the steps and into the house
carrying the bag.

       Another transaction took place between Cunningham and
an individual in a silver BMW. After the BMW drove away, the
driver was arrested. Pink-topped vials containing crack cocaine
were recovered from the driver’s person and from the car.

       Officer Henry decided to attempt a controlled buy
through a confidential informant. While waiting for the
informant to arrive, Officer Henry observed another transaction
taking place in which Cunningham appeared to run out of drugs.
Cunningham showed the buyer that his plastic baggie was empty
and walked into a nearby empty lot. Cunningham exited the
empty lot with another baggie in his hand. He gave the

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individual additional items from the new baggie, and the
individual left.

        Shortly afterward, police observed Cunningham on
Carter’s porch with two other men. The three went into the
house. The confidential informant arrived, went up the steps,
and knocked on the door. Almost immediately, the informant
jumped off the porch and headed quickly up the street, pursued
by Cunningham, Carter, and one or two other men who had all
come out of the house. Carter yelled at the informant, “Don’t
you ever knock on my fucking door. You ain’t the fuck from
around here, you know that.” Cunningham, Carter, and the
others went back into the house. A few minutes later, a man
came out of the house and walked away while looking up and
down the street and talking on a mobile telephone. Immediately
after this individual ended his call, Cunningham and Carter
came out of Carter’s house. Carter was carrying the green book
bag and holding a key. After Cunningham and Carter walked
around the corner, the police lost sight of them. A few moments
later, the police saw Cunningham and Carter standing beside a
Nissan Maxima with its trunk open. Carter leaned into the
trunk, then leaned away and closed the trunk. Cunningham
stood on the pavement at the rear of the car.

       Cunningham and Carter were arrested as they walked
away from the car. The police obtained a search warrant for the
Maxima and found the green book bag in its trunk. Inside the
book bag were a handgun, powder cocaine, a bowl with cocaine
residue, scales, bulk marijuana, jars for bottling marijuana, and
153 pink-topped vials of crack cocaine (identical to the vials


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recovered from the silver BMW). The total net weight of the
crack cocaine was 5.761 grams.

        Cunningham and Carter were indicted and tried together
before a jury. The jury convicted Cunningham of (1)
distribution of crack cocaine (21 U.S.C. § 841), (2) possession
with intent to distribute more than five grams of crack cocaine
and aiding and abetting (21 U.S.C. § 841), and (3) possession of
a firearm in furtherance of a drug trafficking crime, and aiding
and abetting (18 U.S.C. § 924). The jury found Cunningham not
guilty of conspiracy to possess with intent to distribute more
than five grams of crack cocaine. Cunningham filed this timely
appeal of his possession convictions.

                                II.

      The District Court had subject matter jurisdiction under
18 U.S.C. § 3231. We have appellate jurisdiction under 28
U.S.C. § 1291.

        When reviewing a jury verdict for sufficiency of the
evidence, we “view[] the evidence in the light most favorable to
the government [and] . . . sustain the verdict if any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Greenidge, 495
F.3d 85, 100 (3d Cir. 2007) (internal quotation marks and
citation omitted).




                                 5
                                III.

       The evidence presented at trial did not show that
Cunningham held or carried the green book bag that contained
the drugs and the gun. Therefore, in order to convict, a jury
would have had to believe that he constructively possessed the
items or that he aided and abetted Carter’s possession of them.

       We have defined constructive possession as follows:

       Constructive possession exists if an individual
       knowingly has both the power and the intention at
       a given time to exercise dominion or control over
       a thing, either directly or through another person
       or persons. Constructive possession necessarily
       requires both dominion and control over an object
       and knowledge of that object’s existence.

United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992) (internal
quotation marks and citations omitted). Aiding and abetting
liability also includes a knowledge requirement, but is an
otherwise distinct concept:

       [T]o establish liability based upon an aiding and
       abetting theory, the government must prove
       (1) that the substantive crime has been committed,
       and (2) the defendant knew of the crime and
       attempted to facilitate it . . . . Thus, liability for
       aiding and abetting someone else in the
       commission of a crime requires the specific intent
       of facilitating the crime, and mere knowledge of

                                 6
       the underlying offense is not sufficient for
       conviction.

United States v. Garth, 188 F.3d 99, 113 (3d Cir. 1999) (internal
quotation marks and citations omitted).

       This case is somewhat unusual, because as we will
explain, we conclude that Cunningham’s gun possession
conviction requires a different legal analysis than his drug
possession conviction. Our analysis of the gun possession
conviction is controlled by Garth, which leads us to conclude
that the evidence was insufficient for the jury to find that
Cunningham possessed the gun. 188 F.3d at 113-14. However,
our analysis of the drug possession conviction is controlled by
Iafelice, which leads us to conclude that the evidence was
sufficient for the jury to find that Cunningham possessed the
drugs. 978 F.2d at 97.

        In Garth, we concluded that the evidence did not show
that the defendant possessed a gun under 18 U.S.C. § 924. 188
F.3d at 114. Garth was arrested at 30th Street Station in
Philadelphia. Id. at 103. A bag that his companions carried into
the train station was discovered to contain crack cocaine and a
handgun. Id. Garth admitted that he and his companions were
transporting the cocaine to sell in West Virginia. Id. However,
Garth had not learned that his friend had a gun until they were
entering the station. Id. at 110. Garth “never handled either the
gun or the bag containing the gun.” Id.

       Garth filed a habeas corpus petition. He did not
challenge his drug possession conviction, but he attacked his

                               7
§ 924 weapon possession conviction. We concluded that Garth
did not constructively possess the gun, stating: “[A]lthough
Garth accompanied Wilson while the latter exercised dominion
and control over the gun, that association alone does not
magically transform Garth’s proximity to Wilson into culpability
for all of Wilson’s actions, or establish any vicarious
responsibility for the gun.” Id. at 112. Garth did not know of
the gun until he and his companions had entered the train
station, and because the record did not show that Garth intended
“to use or carry a weapon in connection with the possession or
distribution of the drugs in the bag,” the evidence was
insufficient to show Garth’s constructive possession of the gun.
Id. at 113.

        In addition, Garth did not aid and abet his companions’
possession of the gun, because the record did not show that he
“attempted to facilitate the carrying of the gun, that he wished
to bring about or make that offense succeed, or that the gun was
in any way instrumental to his decision to participate in the drug
offense.” Id. at 114. We distinguished Garth’s actions from
those of the codefendants in United States v. Price, 76 F.3d 526
(3d Cir. 1996), where the defendant was guilty of aiding and
abetting possession of a gun during a bank robbery because “a
reasonable jury could infer that Price had prior knowledge that
[his codefendant] was planning to use and carry the gun . . . ,
and that both [men’s] roles in the crime were facilitated by the
fact that [the codefendant] brandished a gun while Price scooped
up the money.” Garth, 188 F.3d at 113. Unlike the Price case,
Garth’s actions were not so intertwined with those of his
companions that he aided and abetted their possession of the
gun.

                                8
        Like the Garth case, Cunningham did not constructively
possess the gun or aid and abet its possession. The evidence did
not demonstrate that Cunningham knew about the gun, and his
actions did not show that he “attempted to facilitate the carrying
of the gun . . . or that the gun was in any way instrumental to his
decision to participate in the drug offense.” Id. at 114. We have
stated that although guns and drugs are often linked, the
presence of one does not prove knowledge of the other. United
States v. Cartwright, 359 F.3d 281, 290 n.5 (3d Cir. 2004). The
evidence in this case – that Cunningham walked down the street
with Carter, who was carrying the gun in a backpack – was
insufficient to allow the jury to convict under 18 U.S.C. § 924.

        On the other hand, there was a clear link between
Cunningham and the crack cocaine in the backpack. The crack
was packaged in pink-topped vials that were identical to the
ones recovered from Cunningham’s customer in the silver
BMW.       This evidence allowed the jury to infer that
Cunningham’s drugs and the drugs in the backpack came from
a common source, and that Cunningham knew about the drugs
in the backpack.

       In Iafelice, we concluded that the evidence was sufficient
to support the defendant’s conviction for constructive
possession of drugs. 978 F.2d at 93. Iafelice drove his car to a
hotel where a drug sale had been arranged. Id. at 97. He
remained in his car while his companion took the drugs inside.
Id. As the transaction was taking place, there was telephone
contact between Iafelice and his companion who was inside the
hotel closing the sale. Id. We concluded that there was “a
logical and convincing connection between the facts established

                                9
and the conclusion inferred.” Id. Although the government did
not present direct evidence that Iafelice knew the bag contained
drugs, the sequence of events allowed the jury to infer that he
knew the drugs were there and to find that he constructively
possessed them. Id.

        In this case, the events that took place on North 30th
Street allowed the jury to reasonably conclude that Cunningham
knew of the drugs in the backpack, and that he either
constructively possessed them or aided and abetted their
possession. Cunningham sold identically-packaged drugs that
morning, spoke with Carter repeatedly, went inside Carter’s
house, and helped Carter chase away a confidential informant
who posed a potential threat to the drug dealing operation. After
chasing away the informant, Cunningham accompanied Carter
while he took the green backpack from his house to a car parked
around the corner, and a reasonable jury could conclude that the
two men were acting together to safeguard the contraband in the
backpack.

       Cunningham argues that because he replenished his drug
supply from the vacant lot, rather than from the green backpack,
there was insufficient evidence to allow the jury to find that he
knew of the crack cocaine in the backpack. However, we
conclude that as in Iafelice, there is a “logical and convincing
connection between the facts established and the conclusion
inferred,” id., which is that Cunningham knew of the crack and
constructively possessed it or aided and abetted Carter’s
possession of it.



                               10
                             IV.

       For these reasons, we will affirm the District Court’s
judgment as to the drug possession and reverse the judgment as
to the weapon possession. We will remand for resentencing
consistent with this opinion.




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