12-1221-cr
United States of America v. Clark

                       UNITED STATES COURT OF APPEALS

                           FOR THE SECOND CIRCUIT

                              August Term 2012

   Argued: June 25, 2013                      Decided: January 17, 2014

                           Docket No. 12-1221-cr
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UNITED STATES OF AMERICA,
     Appellee,

                  v.


JEREMIAH K. CLARK,
     Defendant-Appellant.
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Before: NEWMAN, WINTER, and DRONEY, Circuit Judges.

      Appeal from the March 7, 2012, judgment of the United States

District Court for the Western District of New York (William M.

Skretny, District Judge), convicting Appellant, after a jury

trial, of being a felon in possession of a firearm (Count I) and

possession of a controlled substance (Count II).

      Affirmed as to Count I; reversed as to Count II.              Judge

Droney dissents from the reversal as to Count II with a separate

opinion.

                                    Stephan J. Baczynski, United States
                                      Attorney’s Office, Buffalo, N.Y.
                                      (William J. Hochul, Jr., United
                                      States Attorney’s Office, Buffalo,
                                      N.Y., on the brief), for Appellee.
                              Nicholas J. Pinto, Nicholas J.
                                Pinto, Attorney at Law, New York,
                                N.Y., for Defendant-Appellant.




JON O. NEWMAN, Circuit Judge:

    This appeal of a criminal conviction presents extraordinary

facts that challenge a reviewing court to take seriously its

constitutional obligation to assure that evidence resulting in

a conviction was sufficient to permit a jury reasonably to find

guilt beyond a reasonable doubt.      Jeremiah K. Clark appeals from

the March 7, 2012, judgment of the District Court for the

Northern District of New York (William M. Skretny, District

Judge), convicting him, after a jury trial, of being a felon in

possession of a firearm (Count I) and possession of a controlled

substance (Count II).   We have affirmed the conviction on Count

I in a Summary Order filed today.       In this opinion, we reverse

the conviction on Count II.

                           Background

    On Nov. 16, 2002, officers from the City of Lockport Police

Department (Lockport, N.Y.) and the Niagara County Sheriff’s

Office (Lockport, N.Y.), responded to a 911 call reporting that

a group of men, possibly armed, had just left Gonzo’s Bar in

                                -2-
Lockport    in   a   white   Jeep    Cherokee   after   trying      to    “jump

somebody.”    When the officers arrived at the bar, they saw Clark

and three others sitting in the Cherokee.               The facts of the

ensuing confrontation, detailed in a Summary Order filed today,

are not relevant to the issue decided in this opinion, except to

note that the police found a firearm in the Cherokee and arrested

Clark.     In this opinion, we are concerned only with the facts

occurring after Clark’s arrest.

     Niagara County Deputy Sheriff Anthony Giamberdino placed

Clark, alone, in the rear compartment of his police cruiser.

Clark was handcuffed with his hands behind his back.                     Niagara

County Deputy Sheriff Gary May testified that the link between the two

bracelets of the handcuffs was no longer than one or one and one-half

inches.    City of Lockport Police Officer Steven Abbott testified

that before Clark was placed in the car, he patted down his

waist,    pockets,   pant    legs,   and   coat,   looking    for   weapons.

Nothing was found.      The ride from the scene of the arrest to the

Lockport police station lasted about one minute.             After arriving

at the police station, May helped Clark, still handcuffed, out

of the car. Clark was then escorted into the booking area of the

police station.




                                     -3-
    Once Clark was out of the police car, Giamberdino lifted the

cushion of the back seat out and up, making visible the space

between the back of the back-seat cushion and the bottom of the

back-seat back rest.     In that space he saw a quantity of a white

powdery    substance   that   later   analysis   determined   was   crack

cocaine.     Giamberdino also testified that he had checked this

space before starting his evening shift, nothing was there at

that time, and Clark was the first person to occupy the back seat

of the car that evening.

    Deputy Sheriff May testified that as Clark got out of the

car and walked past him, he did not see any white powdery

substance on his hands, pants, or jacket.          Nor did he see any

white powdery substance on the back seat until the seat was

lifted up.    No glassine envelope or other container was found in

the police car or on Clark’s person.1


    1
      Giamberdino testified that he saw a lighter on the back
seat.   Although the Government’s brief says that Giamberdino
“observed a white powdery substance on the back seat,” Brief for
United States at 3 (emphasis added), the cited pages, Tr. 446-47,
contain no such statement.    On cross-examination, Giamberdino
testified, “Deputy May saw a lighter on the seat, and I went to
grab it, and then I just did my check right there, and that’s
when I noticed the white powdery substance.” Moreover, there is
no testimony that any officer saw traces of cocaine on the
lighter or looked at the insides of Clark’s pockets to see if
there were traces of cocaine there, a logical thing to do if they
thought Clark had brought the cocaine into the car.
                                  -4-
                              Discussion

         We fully understand the standards for appellate review of

a jury’s finding of guilt.      We are to view the evidence “in the

light most favorable to the prosecution,” Jackson v. Virginia,

443 U.S. 307, 319 (1979), and determine “whether the record

evidence could reasonably support a finding of guilt beyond a

reasonable doubt,” id.    at 318 (footnote omitted).         A defendant

challenging the sufficiency of the evidence “bears a heavy

burden.” United States v. Hassan, 578 F.3d 108, 126 (2d Cir.

2008).     All   reasonable   inferences   are   to   be   drawn   in   the

prosecution’s favor, and we are to defer to the jury’s assessment

of the witness’s credibility. See United States v. Sabhnani, 599

F.3d 215, 241 (2d Cir.        2010).    The deference to the jury’s

verdict required by these standards does not mean, however, that

we must never deem evidence insufficient.        Nor does it mean that

if there is any evidence arguably in support of a verdict, we

must affirm.2    Of course, the issue is not whether we believe the

evidence does not prove guilt beyond a reasonable doubt. See

    2
      A conviction in the absence of any evidence to support a
jury’s guilty verdict violates the Due Process Clause, see
Thompson v. City of Louisville, 362 U.S. 199, 206 (1960), whereas
the existence of evidence of insufficient probative force to
permit a jury reasonably to find guilt beyond a reasonable doubt
violates the reasonable doubt standard constitutionalized by In
re Winship, 397 U.S. 358, 363-64 (1970).
                                  -5-
Jackson, 443 U.S. at 318-19.   But if we are to be faithful to the

constitutional requirement that no person may be convicted unless

the Government has proven guilt beyond a reasonable doubt, we

must take seriously our obligation to assess the record to

determine, as Jackson instructs, whether a jury could reasonably

find guilt beyond a reasonable doubt.

    In our view, this record does not permit an affirmance on

Count 2.   Several facts are not in dispute: (1) Clark was patted

down for weapons before being placed in a police car;      (2) no

object large enough to contain a substantial quantity of crack

cocaine was noticed;   (3) Clark was then placed in the back of

a police car with his hands handcuffed securely behind his back;

(4) the ride to the police station took about one minute; (5)

shortly after Clark got out of the vehicle, with his hands still

handcuffed behind his back, a police officer lifted the back seat

cushion sufficiently to disclose the space between the back edge

of the back-seat cushion and the lower edge of the back-seat back

rest;   (6) in that space the officer found a quantity of crack

cocaine measuring more than five inches in length and about one

inch wide, and of sufficient depth such that some quantities of

crumbled crack cocaine are visible above the layer of fully

powdered crack cocaine (a photograph of the crack cocaine appears

                               -6-
in the Appendix to this opinion); (7) no traces of crack cocaine

were observed on Clark’s clothing or on his hands; (8) no

glassine envelope or similar container customarily used for

holding a quantity of crack cocaine was found in the police car,

nor was Clark observed to have discarded such a container after

leaving the police car.3

    There are only three possible ways that this quantity of

crack cocaine could have been secreted in the space in which it

was discovered.   (1) Clark might have removed the quantity from

his person or clothing and wedged it into the space underneath

the seam where the back-seat cushion meets the back-seat back

rest; (2) someone other than Clark might have inadvertently left

    3
      One additional item of evidence is arguably relevant. Lt.
Michael Costello testified that at the police station Clark said,
“I’ll confess to everything if you let my cousins go.” However,
there is no testimony that Clark saw the cocaine after
Giamberdino lifted up the seat cushion or otherwise became aware
that it had been discovered. After he got out of the police car,
Clark was escorted to the booking area of the Lockport police
station. Both May and Costello testified that Clark was in the
booking area of the Lockport police station when Giamberdino
discovered the cocaine. Thus, there is no basis to believe that
Clark’s offer to confess (accepting that he did say it) applied
to any offense conduct other than the disturbance at the bar that
had given rise to the 911 call and his possession of a weapon.
Even if the jury inferred that Clark’s offer to confess to
“everything” covered the cocaine, that inference would not be
reasonable since it would have been undermined by the virtual
impossibility of Clark’s having secreted the cocaine behind the
seat cushion while handcuffed and without leaving a trace on his
clothing or person.
                               -7-
the crack cocaine in that space before Clark entered the police

car; (3) someone other than Clark might have deliberately placed

the crack cocaine in that space after Clark got out of the police

car.    Clark’s conviction for possessing crack cocaine is valid

only if a jury could reasonably find the first possibility beyond

a reasonable doubt.

       We cannot say it is an absolute impossibility for a person

with his hands securely handcuffed behind his back to extract a

substantial quantity of crack cocaine from his person or clothing

and wedge it into the space where the quantity was found without

leaving a trace of cocaine on his fingers or clothing, but we can

say that the possibility of such an occurrence is so exceedingly

remote that no jury could reasonably find beyond a reasonable

doubt that it happened.       The remote possibility is diminished

virtually to zero by the fact that no glassine envelope or other

packaging material was found in the police vehicle or on Clark’s

person.     It taxes credulity to think that Clark carried such a

quantity    of   crack   cocaine   loose   in   his   pocket   and,   while

handcuffed, extracted it from his pocket and secreted it where

it was found, all without leaving a trace on his person or

clothing.




                                   -8-
      Whether   or   not   the   extraordinary   improbability   of

circumstances necessary for conviction on Count II in fact

occurred, it is better to honor the constitutional standard of

proof beyond a reasonable doubt by appropriate appellate review

than to require Clark to serve three extra years, in addition to

the ten years for Count I, for an offense of which he is highly

likely to be innocent.

      It has been said that it is better to let ten guilty persons

go free than to convict one innocent person.4     In the past, some

have favored higher ratios.5     However one prefers to quantify an

unacceptable risk of convicting the innocent, it is difficult to

imagine a case where the possibility that an innocent person has

been convicted of an offense is greater than the one now before

us.




      4
       See Furman v. Georgia, 408 U.S. 238, 367 n.158 (1972)
(Marshall, J., concurring) (quoting William O. Douglas,
“Foreword” to Jerome Frank & Barbara Frank, Not Guilty 11-12
(1957); Goetz v. Crosson, 967 F.2d 29, 39 (2d Cir. 1992) (Newman,
J., concurring); Bunnell v. Sullivan, 947 F.2d 341, 352 (9th Cir.
1991) (in banc) (Kozinski, J., concurring); United States v.
Greer, 538 F.2d 437, 441 (D.C. Cir. 1976); see also 4 William
Blackstone, Commentaries *358.
      5
      See Sir John Fortescue, De Laudibus Legum Angliae 65 (S.B.
Chrimes ed., Cambridge Univ. Press 1942) (1471) (20 to 1); Thomas
Starkie, Evidence 756 (1724), quoted in IX Wigmore on Evidence
§ 2497, at 409-10 (Chadbourn rev. 1991) (99 to 1).
                                 -9-
                             Conclusion

    The   judgment   is   affirmed   with   respect   to   Count   I   and

reversed with respect to Count II.




                                -10-
                     Appendix




This photograph was taken   looking down into the space


                       -11-
between the bottom of the back of the back seat and the back of

the back-seat cushion.   The object across the middle of the

photograph is a ruler.




                             -12-
     12-1221
     United States v. Clark –Dissent
 1   DRONEY, Circuit Judge, dissenting:
 2         I respectfully dissent from the majority’s reversal of Clark’s conviction for
 3   possession of cocaine.     I believe that count of conviction was supported by
 4   sufficient evidence for the jury to conclude that Clark was guilty beyond a
 5   reasonable doubt.
 6   I. Factual Background
 7         The events leading up to Clark’s arrest provide important context for
 8   Clark’s sufficiency of evidence challenge. Shortly before 2:00 a.m. on November
 9   16, 2002, a 911 operator in the Niagara County Sheriff’s Department informed
10   police officers that she had just received a call from a woman in a local bar, and
11   that the caller “said that Chris and Jason . . . Richardson . . . [a]re out front in an
12   older white Jeep Cherokee with guns. And they might not be there now but they
13   have been circling the block because they are apparently going to attack
14   somebody when they come out.” Officer Scott Snaith of the City of Lockport
15   Police Department took the call from the 911 operator, and knew that the
16   Richardsons had been involved in previous violent crimes.              Officer Snaith
17   relayed the information to fellow officers Steven Abbott and Todd Chenez, who
18   then responded to the call.
19         After conferring briefly, Officers Abbott and Chenez saw the Jeep in a
20   parking lot across from the bar, blocked the Jeep with their two patrol cars and
21   exited their vehicles. With guns drawn, each officer walked along a side of the
22   Jeep. Officer Abbott saw Raymond Flores and Jason Richardson in the back seat
23   of the car, and Christopher Richardson in the front passenger seat. Clark was in
24   the driver’s seat. Officer Abbott recognized Flores and the Richardsons from
25   previous incidents.    After observing some “nervous” movement from Clark,
26   Abbott ordered the occupants of the car to “place their hands forward.” Officer
 1   Abbott then began to question Clark through the open driver’s window. Officer
 2   Abbott told Clark that the officers were responding to a report of possible
 3   firearms, and asked whether there were any handguns in the car. Clark denied
 4   that there were any weapons. Officer Abbott then asked Clark to consent to a
 5   search, which Clark declined. Other officers began to arrive, and Officer Abbott
 6   asked Clark to step out of the car. Officer Abbott saw the butt of a handgun
 7   underneath the front of the driver’s seat as Clark was getting out of the car.
 8         Officer Abbott did a pat-down of Clark for other weapons and Clark was
 9   then handcuffed and placed in the back seat of Sheriff’s Deputy Anthony
10   Giamberdino’s patrol car. Clark was left alone in the patrol car while Abbott and
11   the other officers seized the handgun and dealt with the passengers in the Jeep.
12   Clark was then transported to police headquarters in Giamberdino’s patrol car.
13   Just as Clark was removed from the patrol car, a lighter was found on the back
14   seat. Giamberdino removed it and then pulled up the back seat and discovered
15   loose cocaine underneath the area where Clark had been sitting. Clark was
16   charged with being a felon in possession of the handgun and ammunition, and
17   unlawful possession of the cocaine, and the jury found him guilty of both
18   offenses.
19   II. Discussion
20         The majority concludes that there was insufficient evidence to affirm the
21   jury’s verdict on the drug count. It takes the position that any reasonable jury
22   would inevitably be left with a reasonable doubt as to whether the cocaine found
23   underneath the seat of the patrol car was Clark’s. I disagree. A rational jury could
24   have concluded beyond a reasonable doubt that Clark deposited the cocaine

     2
 1   underneath the seat of the patrol car. The evidence offered at trial would have
 2   permitted the jury to conclude, for example, that Officer Abbott missed the
 3   cocaine in his initial weapons pat-down of Clark, and that Clark used his
 4   substantial time alone in the patrol car to place the cocaine underneath the back
 5   seat. As emphasized in the majority opinion, Officer Abbott patted down Clark
 6   for weapons before he was placed in the back seat of the patrol car. The fact that
 7   Officer Abbott did not find drugs in this search is significant, but it cannot bear
 8   the weight given it by the majority. Officer Abbott conducted the pat-down in a
 9   dangerous situation involving at least one weapon.                    Indeed, Officer Abbott
10   himself had already seen a handgun underneath Clark’s seat in the Jeep, and
11   there were still three suspects in the car when Abbott did the pat-down of Clark.
12   Moreover, the officers were on the scene because of a report that an attack
13   involving weapons was imminent. No mention of drugs or a drug transaction
14   was made in the 911 call. Given these facts, it would be entirely reasonable for a
15   jury to credit Officer Abbott’s trial testimony that he was only looking for
16   weapons during Clark’s pat-down, not drugs. As Officer Abbott testified: “Q.
17   You pat him down for purposes of looking for weapons? A. Correct. Q. Or any
18   contraband? A. Just weapons.” Tr. 152. Given the nature of the pat-down and
19   the circumstances surrounding it, it would be quite reasonable to conclude that
20   the cocaine was missed.1




     1   The record does not appear to indicate how much cocaine was ultimately discovered. However, the

     3
 1           Clark was placed in the back seat of Deputy Giamberdino’s patrol car and
 2   he remained there alone for five to ten minutes while the police were still dealing
 3   with the three passengers in Clark’s Jeep.                Although Deputy Giamberdino
 4   testified that he was keeping an eye on his patrol car during that time, his
 5   testimony indicates that he was only focused on ensuring that Clark remained in
 6   the car, and that no one attempted to release him from the car. Tr. 463 (“Q. At
 7   any time that you observed the vehicle, did you see Mr. Clark make any type of
 8   motions in the rear of your vehicle? . . . A. I can’t really say because of it being
 9   dark out and the window - - I was just making sure nobody was going by the
10   vehicle . . . he didn’t kick anything out like the window or anything, that’s all.”);
11   Tr. 473 (“Q. . . . Were you constantly looking at that vehicle, at Mr. Clark in that
12   vehicle during the time he was there and you were at the scene? A. No. I was
13   just mainly watching the vehicle so nobody approached it to let him out. It’s
14   happened in the past.”). Deputy Giamberdino did not testify that he was looking
15   to see, for example, whether Clark was trying to hide anything in the patrol car
16   during that time. As a result, Clark’s opportunity to hide the cocaine beneath the
17   seat was not limited to the period when the officers were in the police car with
18   Clark or transporting him, as the majority suggests. The jury could well have




     government charged Clark only with simple possession of the cocaine under 21 U.S.C. § 844(a), as
     opposed to the offenses that apply to possession with intent to distribute.   See, e.g., 21 U.S.C. §
     841(b)(1)(A)-(B).

     4
 1   concluded that Clark used his substantial time alone to remove a baggy from his
 2   back pocket and empty its contents underneath the seat.
 3         While this may have been difficult because Clark was handcuffed, it was
 4   not impossible, and the stakes for Clark were high. Clark would also have been
 5   aided by the design of the seat. As explained in testimony at trial, the horizontal
 6   part of the seat was designed to open upward from the back (away from the
 7   vertical part that forms the back of the seat). Although Clark’s hands were
 8   cuffed behind his back, he still could have retrieved the cocaine from a back
 9   pocket of his pants and emptied the cocaine into the gap between the horizontal
10   and vertical parts of the seat.
11         The fact that no baggy was found with the cocaine is also understandable.
12   The jury may have reasonably determined that Clark retained the baggy and
13   kept it hidden in his hands or clothes until he was out of the car and could
14   discard it, perhaps out of a concern that the baggy had his fingerprints or other
15   identifying information.
16         Admittedly, there is no testimony indicating that the officers saw cocaine
17   on Clark’s person after removing Clark from the car. However, Giamberdino
18   and another Deputy Sheriff who helped Clark out of the car at the police
19   station—Deputy May—testified that they simply did not check for such traces.
20   Tr. 399 (May did not search Clark’s pockets or clothing); Tr. 465-67 (Giamberdino
21   did not look at Clark’s clothing or hands as he was being led away from the car).
22   The officers also did not look for a baggy. Tr. 399 (May did not search the patrol
23   car for a baggy); Tr. 469 (Giamberdino did not search the patrol car for a baggy).
24   A reasonable jury could have determined that Clark managed to hide and

     5
 1   dispose of an empty baggy without the deputies’ knowledge after he was
 2   removed from the police car, as he was walked into and through the police
 3   station.
 4         In rejecting this series of events, the majority also necessarily rejects the
 5   trial testimony of Deputy Giamberdino. Giamberdino specifically testified that
 6   he thoroughly checked behind and underneath the back seat of his patrol car for
 7   contraband, as he always did before starting a shift.         Giamberdino further
 8   testified that no one other than Clark had access to that area of the patrol car that
 9   evening. It was certainly reasonable for the jury to conclude from this testimony
10   that Clark was the only possible source of the cocaine.
11         Indeed, it is essentially impossible to square Deputy Giamberdino’s
12   testimony with the majority’s position that there was insufficient evidence to
13   convict Clark on the drug count of the indictment. Either the majority suspects
14   that police officers planted the drugs in order to implicate Clark, or that Deputy
15   Giamberdino was somehow mistaken in his sworn testimony that he inspected
16   underneath the seat before Clark was placed in the car, as was his usual practice,
17   including pulling the back seat forward and checking under it. It would also
18   seem odd that, if police officers intended to “plant” drugs on Clark they would
19   have done it in this way. Why would officers place the drugs there and in that
20   way, instead of simply leaving a baggy with cocaine in it on top of the seat? And
21   why would officers go to that trouble, given that they already had a very strong
22   case against Clark on the more serious offense of possessing a firearm? The idea
23   that Deputy Giamberdino was mistaken about having inspected underneath the
24   seat before Clark entered raises further concerns. Giamberdino testified very

     6
 1   specifically and repeatedly that he had checked beneath the rear seat at the
 2   beginning of every shift, as well as that night. Tr. 439-43. And if the drugs were
 3   in the car before Clark got in, where would they have come from? Were they
 4   placed there by some prior prisoner?2 Was it possible that a previous prisoner—
 5   a prisoner who was undoubtedly patted down like Clark, handcuffed like Clark,
 6   and supervised like Clark emptied the cocaine underneath the seat? If so, why is
 7   it so unlikely that Clark did it? Given the absence of a more plausible innocent
 8   explanation, it was not unreasonable for the jury to find as it did.
 9             There is also Clark’s spontaneous statement, “I’ll confess to everything if
10   you let my cousins go.”             Tr. 487.     If Clark made this statement after being
11   confronted with the cocaine in the back seat of the patrol car, the jury may well
12   have concluded that Clark was offering to confess to possession of the cocaine, as
13   well as the weapons offense. Contrary to the majority’s assertion, there was a
14   basis for the jury’s conclusion that Clark knew that the cocaine had been
15   discovered at the time he volunteered to confess.                         Deputy Giamberdino
16   specifically testified that Clark was present when he discovered the cocaine, and
17   that Clark was present when Giamberdino called out, “I got powder back here.”
18   Tr. 466-67. As a result, the jury could easily have concluded that Clark was




     2   Deputy May, who was assigned to that patrol car with Giamberdino, also testified that no one other
     than Clark had been in the back seat of the patrol car that evening and that the drugs were not
     underneath the back seat before Clark was placed there.

     7
 1   aware that he would also be charged with cocaine possession at the time that he
 2   offered to “confess to everything.”
 3         Appellate courts must not abdicate their role in ensuring that convictions
 4   are supported by adequate evidence. Here, however, the evidence was sufficient
 5   to permit a reasonable jury to find Clark guilty beyond a reasonable doubt of
 6   possession of cocaine. “[I]t is the responsibility of the jury—not the court—to
 7   decide what conclusions should be drawn from evidence admitted at trial. A
 8   reviewing court may set aside the jury’s verdict on the ground of insufficient
 9   evidence only if no rational trier of fact could have agreed with the jury. . . .
10   Because rational people can sometimes disagree, the inevitable consequence of
11   this settled law is that judges will sometimes encounter convictions that they
12   believe to be mistaken, but that they must nonetheless uphold.” Cavazos v. Smith,
13   132 S.Ct. 2, 4 (2011) (per curiam).




     8
