UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5327

FREDERICK JERMAINE POINDEXTER,

a/k/a Curtis Davis,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CR-94-483-A)

Argued: March 7, 1997

Decided: September 18, 1997

Before HAMILTON, Circuit Judge, KISER,

Senior United States District Judge for the

Western District of Virginia, sitting by designation, and

GOODWIN, United States District Judge for the

Southern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion. Judge Goodwin wrote

a dissenting opinion.

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COUNSEL

ARGUED: Dennis F. Nee, Washington, D.C., for Appellant. Bernard

James Apperson, III, Assistant United States Attorney, UNITED
STATES ATTORNEY'S OFFICE, Alexandria, Virginia, for Appellee. ON BRIEF: Bernard S. Grimm, Washington, D.C., for Appellant. Helen F. Fahey, United States Attorney, UNITED STATES

ATTORNEY'S OFFICE, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Following a jury trial, Frederick Jermaine Poindexter was convicted of: (1) conspiracy to possess cocaine with the intent to distribute, see 21 U.S.C. §§ 841(a)(1) and 846; (2) aiding and abetting the

possession of cocaine with the intent to distribute, see 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2; and (3) interstate travel in aid of racketeering, see 18 U.S.C. § 1952. On appeal, Poindexter challenges: (1)

the district court's denial of his motion to suppress; (2) certain evidentiary rulings made by the district court; and (3) the sufficiency of

the evidence to support his convictions. For the reasons stated below,

we affirm.

I

On October 17, 1994, Poindexter and Thomas Lee Cheung traveled

on American Airlines Flight 36 from Los Angeles, California to Dulles International Airport, located near Washington, D.C. Poindexter

and Cheung checked in at the airport in Los Angeles just before Flight

36 departed, having made their reservation for Flight 36 at a travel

agency less than thirty minutes prior to Flight 36's scheduled departure. Neither Poindexter nor Cheung checked any luggage.

After Flight 36 arrived at Dulles Airport, Drug Enforcement

Administration (DEA) Task Force agents followed Poindexter and

Cheung from the gate to the terminal's upper level exit; the upper

 2
level of the terminal is for passenger drop-offs so there is no departing

ground transportation. The agents followed Poindexter and Cheung

because they fit the description of two suspected drug traffickers on

Flight 36 provided by DEA agents in Los Angeles. The information

conveyed by the DEA in Los Angeles included: (1) that two men had

purchased two one-way tickets, paying in cash, for Flight 36;1 (2) that

the two men purchased their tickets at a travel agency less than thirty

minutes prior to Flight 36's departure;2 (3) that the two men arrived

at the gate just before the plane departed and checked no luggage; and

(4) a detailed description of each man: (a) "a black male flying under

the name of Curtis Davis, five foot ten, 200 pounds, approximately

20 years old wearing a white sweatshirt"; and (b)"an Hispanic male

flying under the name of Tony Lewis, five foot ten, wearing a green

shirt."

Prior to Flight 36's arrival at Dulles airport, a DEA Task Force

agent at Dulles Airport, Agent Frank Oliff, confirmed, from American

Airlines personnel, that two individuals flying under the names Curtis

Davis and Tony Lewis were aboard Flight 36. Agent Oliff was further

advised that the seat assignments for the tickets issued were next to

each other.

As Poindexter and Cheung reached the terminal's exit, they were

approached from behind by DEA Task Force agents. Poindexter and

Cheung stopped before the terminal exit and spoke to each other. At

this point, Poindexter and Cheung were able to observe the DEA Task

Force agents through a reflection on the terminal exit's glass doors.

Cheung then walked through the exit door, and Poindexter walked

back in the direction they had come from.

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1 At trial, there was no evidence introduced demonstrating that

Poindexter paid for his ticket in cash. The government's evidence only

established that Cheung's ticket was paid in cash.

2 At trial, the government did not demonstrate that the tickets were purchased thirty minutes prior to Flight 36's scheduled departure. Rather,

the government's evidence demonstrated that Cheung and Poindexter

made their reservation for Flight 36 at the travel agency less than thirty

minutes prior to Flight 36's scheduled departure.

 3
Cheung was followed through the exit door by two DEA Task

Force agents, Agent Oliff and Agent Arthur Jacobson. Agents Oliff

and Jacobson identified themselves and asked Cheung to speak with

them. During the encounter, Cheung clutched a duffle bag that he was

carrying tightly against his chest. In the conversation that ensued,

Cheung acknowledged that he had just arrived from Los Angeles.

Cheung allowed the agents to view his airline ticket which reflected

that it was issued for Flight 36 in the name of"Tony Lewis." Cheung

stated that he was traveling alone and had no identification. Agent

Oliff then asked if he could search the duffel bag. After Cheung

refused, Agent Oliff told Cheung that he and the bag were being

detained in order to allow a drug-sniffing dog (which was at the airport) to sniff the bag. A few moments later, Cheung threw the bag at

Agent Oliff and bolted across the lanes of traffic and over the guardrail, dropping to the lower level of the airport. Cheung was eventually apprehended in the airport parking lot. Meanwhile, one of the

DEA Task Force agents recovered a kilogram of cocaine from the

duffel bag.

While Cheung was approached, Poindexter remained under the surveillance of other DEA agents. Poindexter was observed following

Cheung's movements. When Agents Oliff and Jacobson approached

Cheung, Agent William Buss overheard Poindexter mumble "shit."

Agent Buss identified himself to Poindexter and asked to speak to

him. During the conversation that ensued, Poindexter admitted that he

had just gotten off Flight 36 and indicated that he was traveling alone

and had no luggage. When asked his name, Poindexter replied

"Poindexter." However, the name on the ticket that he produced for

Agent Buss was in the name of "Curtis Davis." When asked how long

he was in Los Angeles, Poindexter indicated that he was there for two

days. During the encounter, Poindexter appeared nervous and fidgety.

Agent Buss then asked Poindexter if he could search him, and

Poindexter replied "go ahead." When Agent Buss discovered a pager

inside Poindexter's waistband, Poindexter became agitated and belligerent and asked why he was picked for the interview. Agent Buss

responded by asking Poindexter why he was traveling under an

assumed name, why he had no luggage, and why he lied about traveling alone, but Poindexter did not respond.

 4
At this point, Agent Jacobson approached Agent Buss and

Poindexter. Agent Jacobson informed Agent Buss that Agent Oliff

had requested a drug-sniffing dog for the duffel bag that Cheung carried. Poindexter then asked Agent Buss if he was under arrest. Agent

Buss told Poindexter that he was not but was nevertheless being

detained while he (Agent Buss) went for the drug-sniffing dog.

While Agent Jacobson was waiting with Poindexter, Agent Oliff

ran past in pursuit of Cheung, who had fled. Agent Oliff instructed

Agent Jacobson to handcuff Poindexter. After the cocaine was discovered in the duffel bag and Cheung was apprehended, Poindexter was

arrested. Recovered from him following his arrest was, among other

things, a pager, which repeatedly went off during Poindexter's booking.

On October 18, 1994, a federal grand jury sitting in the Eastern

District of Virginia returned a four-count indictment against Poindexter and Cheung. Count I of the indictment charged Poindexter and

Cheung with conspiracy to possess cocaine with the intent to distribute, see 21 U.S.C. §§ 841(a)(1) and 846. Count II charged Cheung

with possession of cocaine with the intent to distribute, see 21 U.S.C.

§ 841(a)(1). Count III charged Poindexter with aiding and abetting the

possession of cocaine with the intent to distribute, see id. and 18

U.S.C. § 2. Count IV charged Poindexter with interstate travel in aid

of racketeering, see 18 U.S.C. § 1952.

Prior to trial, Poindexter moved to suppress the pager recovered

from his person following his arrest. The district court denied the

motion. At trial, the government's evidence centered around the facts

and circumstances leading up to Poindexter's arrest. In addition, the

government introduced evidence that a few months before Poindexter's trip to Los Angeles, he purchased an automobile, paying $11,000

in cash, when he already owned an automobile and was unemployed.

The government also introduced evidence of a larger, ongoing business enterprise reflected in repeated and interconnected telephone

activity, occurring both before and after Poindexter's arrest. The government's evidence showed that a person using the name "Tewana

Freeman" checked into a Best Western Hotel in Connecticut the same

day that Poindexter and Cheung traveled from Los Angeles with the

cocaine (October 17), with a scheduled departure date of October 19.

 5
Shortly after Poindexter and Cheung were arrested, a call was placed

from the Best Western to Poindexter's pager, and to Cheung's home

phone.

On October 18, the day after Poindexter and Cheung were arrested,

a telephone call was placed from Cheung's residence to the Best

Western. That same day, a call was placed from the Best Western to

Cheung's pager. There was also a call on this date from the Best

Western to Poindexter's pager. The person registered as Tewana Freeman checked out of the Best Western on October 18.

On October 19, a call was made from Tewana Freeman's number3

to Cheung's home telephone. On October 21, there was another call

made from the Tewana Freeman number to Poindexter's home telephone. Other telephone activity connected Poindexter to an ongoing

business enterprise. A number which was displayed on Poindexter's

pager just after his arrest was a pager number in Los Angeles. This

Los Angeles pager number had previously been called by Poindexter

from his home nineteen times between September 8 and October 18.

Following his arrest, Poindexter called his house. Shortly thereafter,

a call was placed from Poindexter's house to the pager number in Los

Angeles.

Following their trial, Poindexter and Cheung were convicted on all

counts. Poindexter was sentenced to sixty-three months' imprisonment.4

Poindexter noted a timely appeal.

II

Poindexter contends that the district court erred when it refused to

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3 This was the home number in Maryland given by the person registering as Tewana Freeman at the Best Western. Back in September, a call

had been placed from the Tewana Freeman number to Poindexter's

pager. Even earlier, back in August, the person using the name Tewana

Freeman had previously checked into the same Best Western, and a call

was placed from the hotel to Cheung's pager. The Tewana Freeman

number was later transferred to Cheung's home telephone number.

4 The record does not reflect the nature of Cheung's sentence.

 6
suppress the pager recovered from his person following his arrest. We

disagree.

Poindexter was seized at the moment he was told he was being

detained so that the agents could obtain the drug-sniffing dog. See

generally Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968) (Under the Fourth

Amendment, a seizure occurs "when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty

of a citizen."). Accordingly, we must resolve whether Poindexter's

detention at that time was justified. To justify a seizure, officers must

have a reasonable, articulable suspicion that the suspect is presently

engaged in criminal activity. See United States v. Sokolow, 490 U.S.

1, 7 (1989). "Reasonable suspicion" is "more than an inchoate and

unparticularized suspicion or hunch." Id. (quoting Terry, 392 U.S. at

27) (internal quotes omitted). It is a concept that"is not `readily, or

even usefully, reduced to a neat set of legal rules.'" Id. (quoting

Illinois v. Gates, 462 U.S. 213, 232 (1983)). In determining whether

a reasonable suspicion existed, we must consider the"totality of the

circumstances." Id. at 8. In the final analysis, the analytical process

requires a practical determination; it "does not deal with hard certainties, but with probabilities." United States v. Cortez, 449 U.S. 411,

418 (1981). We must reach "a common sense conclusion" as to

whether the articulable facts to which the agents point reasonably

would raise a suspicion that Poindexter was "engaged in wrongdoing." Id.

At the time of Poindexter's seizure, the agents knew or had been

informed that Cheung and Poindexter: (1) traveled together from a

known source city; (2) arrived at the gate just moments before Flight

36's scheduled departure; (3) had adjoining seat assignments; (4) had

purchased one-way tickets in cash; (5) checked no luggage; and (6)

split up after seeing the DEA Task Force agents approach them from

behind. The agents also knew that Poindexter: (1) traveled under an

alias; (2) carried a pager; (3) became agitated when the pager was discovered; (4) was extremely nervous; (5) mumbled"shit" when Agents

Oliff and Jacobson approached Cheung; and (6) denied he was traveling with anyone. While "[p]erhaps none of[the] facts [of this case],

standing alone, would give rise to a reasonable suspicion" of drug

trafficking, we are satisfied that, "taken together as appraised by an

experienced law enforcement officer, they provided clear justifica-

 7
tion," United States v. Sharpe, 470 U.S. 675, 682 n.3 (1985), to seize

Poindexter. See Sokolow, 490 U.S. at 8-11 (concluding that agents

had reasonable suspicion justifying stop where defendant: (1) paid

$2,100 for two round-trip plane tickets; (2) traveled under an alias; (3)

traveled from a source city for narcotics; (4) stayed in the source city

for forty-eight hours; (5) appeared nervous during his trip; and (6)

checked no luggage).5

The remaining question is whether the agents were justified in

handcuffing Poindexter after Cheung fled. In our view, Cheung's

actions permitted Poindexter's continued detention, and in light of

Cheung's flight and the agents' scramble to chase him, it was certainly reasonable for the agents to handcuff Poindexter as Agent Oliff

instructed. See United States v. Crittendon, 883 F.2d 326, 329 (4th

Cir. 1989) (use of handcuffs on defendant during encounter permissible where officer could reasonably anticipate that he might be

required to go and aid his fellow officers who were chasing codefendant in an effort to apprehend codefendant); United States v.

Hardnett, 804 F.2d 353, 357 (6th Cir. 1986) (holding that use or display of force will not convert stop into arrest); cf. United States v.

Perate, 719 F.2d 706, 708-09 (4th Cir. 1983) (fact that officers

approached suspect's car with drawn weapons did not convert stop

into an arrest). After the discovery of the cocaine in the duffel bag,

there was probable cause to arrest both Cheung and Poindexter. See

Beck v. Ohio, 379 U.S. 89, 91 (1964) (Probable cause to arrest exists

if "at the moment the facts and circumstances within [the officers']

knowledge and of which they had reasonably trustworthy information

were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense."). The pager

was, therefore, properly admitted at trial because it was recovered

incident to Poindexter's arrest. See United States v. Robinson, 414

U.S. 218, 235 (1973) (police may conduct search of arrestee's person

after a valid custodial arrest). Accordingly, the district court properly

denied Poindexter's motion to suppress.

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5 We also note that the intended length of the detention--in order to

obtain the drug sniffing dog--was reasonable. See United States v.

McFarley, 991 F.2d 1188, 1191-93 (4th Cir. 1993) (permitting brief

detention of person and luggage when there was a reasonable suspicion

that the luggage contained contraband).

 8
III

Poindexter also challenges the district court's admission of evidence showing that, four months prior to the crimes charged,

Poindexter purchased an automobile for $11,000 in cash, at a time

when he was unemployed and already owned an automobile. This

evidence was admissible in this drug trafficking prosecution as evidence of unexplained wealth. See United States v. Grandison, 783

F.2d 1152, 1156 (4th Cir. 1986) (holding evidence of"recently

expended large sums of cash" relevant in narcotics prosecution as evidence of illegal dealings and ill-gotten gains); see also United States

v. Penny, 60 F.3d 1257, 1263 (7th Cir. 1995) (evidence of unexplained wealth admissible if it creates a reasonable inference that the

defendant was involved in a drug conspiracy or trafficking), cert.

denied, 116 S. Ct. 931 (1996); United States v. Figueroa, 976 F.2d

1446, 1454 (1st Cir. 1992) ("Evidence that the defendant possessed

or controlled substantial sums of money from unexplained sources is

relevant in a prosecution for drug trafficking.").6 Furthermore, this

evidence was admissible to prove Poindexter's ongoing business

enterprise, an element of the interstate travel in aid of racketeering

count. See United States v. Monu, 782 F.2d 1209, 1211 (4th Cir.

1986) (the prosecution must show that the offense conduct was part

of a "continuous enterprise," and not merely an isolated incident).7

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6 The district court also allowed into evidence, over Poindexter's objection, the Virginia registration of the car he owned at the time he purchased the second automobile. Obviously, this evidence was admissible

to show that Poindexter owned an automobile at the time he purchased

the second automobile for $11,000 in cash.

7 Poindexter also challenges the district court's admission of evidence

showing that he called home following his arrest, and, thereafter, a call

was placed from his house to the Los Angeles pager number. For obvious reasons, this evidence was admissible on the conspiracy count as

well as the interstate travel in aid of racketeering count--the phone call

activity as a whole supported: (1) the inference that a conspiracy existed

and that Poindexter was a part of it; and (2) the inference that an ongoing

business enterprise existed, a necessary element of the interstate travel in

aid of racketeering count.

 9
IV

Poindexter also argues that there is insufficient evidence in the

record to support each of his convictions. A defendant challenging the

sufficiency of the evidence to support a conviction bears "a heavy

burden." United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir.), cert.

denied, 116 S. Ct. 346 (1995). In reviewing the sufficiency of the evidence supporting a criminal conviction, our role is limited to considering whether "there is substantial evidence, taking the view most

favorable to the Government, to support it." Glasser v. United States,

315 U.S. 60, 80 (1942). We must bear in mind that"[t]he jury, not

the reviewing court, weighs the credibility of the evidence and

resolves any conflicts in the evidence presented." United States v.

Murphy, 35 F.3d 143, 148 (4th Cir. 1994). Further, "if the evidence

supports different, reasonable interpretations, the jury decides which

interpretation to believe." Id. Reversal for insufficient evidence is

reserved for the rare case "where the prosecution's failure is clear."

Burks v. United States, 437 U.S. 1, 17 (1978). In sum, we "may not

overturn a substantially supported verdict merely because [we] find

the verdict unpalatable or determine that another, reasonable verdict

would be preferable." United States v. Burgos , 94 F.3d 849, 862 (4th

Cir. 1996) (en banc), cert. denied, 117 S. Ct. 1087 (1997).

A

To prove a conspiracy to possess cocaine with intent to distribute,

the government must establish that: (1) an agreement to possess

cocaine with intent to distribute existed between two or more persons

other than government agents; (2) the defendant knew of the conspiracy; and (3) the defendant knowingly and voluntarily became a part

of this conspiracy. See Burgos, 94 F.3d at 857. In addition to proving

the existence of a conspiracy beyond a reasonable doubt, the government must also prove a defendant's connection to the conspiracy

beyond a reasonable doubt. See id. at 858. To satisfy that burden, the

government need not prove that the defendant knew the particulars of

the conspiracy or all of his conspirators. See id. Once it has been

shown that a conspiracy exists, the evidence need only establish a

"slight connection" between the defendant and the conspiracy to support conviction. See id. at 861. "The term `slight' does not describe

the quantum of evidence that the government must elicit in order to

 10
establish the conspiracy, but rather the connection that the defendant

maintains with the conspiracy." Id. Because "a conspiracy is clandestine and covert, . . . a conspiracy generally is proved by circumstantial

evidence and the context in which the circumstantial evidence is

adduced." Id. at 857. The circumstantial evidence can include "a variety of conduct, apart from selling narcotics." Id. at 859.

Poindexter contends that his conspiracy conviction must be

reversed because the government failed to prove he participated in

any conspiracy. We disagree. All of the evidence supporting Poindexter's detention at the airport supports an inference that Poindexter and

Cheung conspired to possess cocaine with the intent to distribute.

First, the duffel bag Cheung was carrying contained a kilogram of

cocaine. Second, Poindexter and Cheung: (1) traveled together from

a known source city; (2) made their reservations at a travel agency

one minute apart and less than thirty minutes prior to Flight 36's

scheduled departure; (3) had adjoining seat assignments; (4) purchased one-way tickets, with Cheung paying in cash; (5) checked no

luggage; and (6) split up after seeing the agents approach them from

behind. Third, Poindexter: (1) traveled under an alias (as did Cheung);

(2) carried a pager; (3) became agitated when the pager was discovered; (4) was extremely nervous; (5) mumbled "shit" when he saw the

DEA Task Force agents approach Cheung; and (6) denied he was

traveling with anyone. Fourth, the government introduced evidence of

interrelated phone call activity that suggested a larger, ongoing enterprise. There were calls from the Best Western to Cheung's home and

pager number and Poindexter's pager. Furthermore, there were

attempted contacts between Poindexter and the Los Angeles pager

number both before and immediately following Poindexter's arrest.

Finally, the government introduced evidence that a few months prior

to Poindexter's arrest, the unemployed Poindexter purchased an

$11,000 automobile when he already owned one. Burgos instructs us

to focus "on the complete picture, viewed in the context and in the

light most favorable to the Government, that all of the evidence portrayed." Id. at 863.8 In our view, the evidence outlined above consti-

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8 The dissent makes two fundamental flaws in its analysis. First, the

dissent misconstrues our decision in Burgos as establishing a minimum

of the quantum of evidence necessary to support a conspiracy conviction.

 11
tutes sufficient evidence to support Poindexter's conspiracy conviction.9

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See post at 15 ("Surely Burgos expanded this court's conspiracy jurisprudence to its logical limits, and just as surely, this case exceeds those limits."). A careful reading of Burgos belies such an assertion. In fact,

Burgos was not a close case and nowhere in the court's opinion does the

court indicate that it was establishing a floor of any sort. Cf. Burgos, 94

F.3d at 871 ("Based on the plethora of evidence, we conclude that a

rational jury could find beyond a reasonable doubt that Burgos participated in the conspiracy; indeed, we would be hard-pressed to accept that

a jury could conclude otherwise."); id. at 872 ("In addition to the surfeit

of evidence discussed thus far, both Gobern and Gonzales produced train

tickets bearing the name `Anthony Flores.'"). Second, Burgos tells us not

to "dissect[ ] the direct and circumstantial evidence by separately dismissing selective pieces," id. at 871, but that is exactly what the dissent

does. Rather than analyze all of the evidence "in context," id., the dissent

tells us why each piece of evidence standing alone is insufficient. Such

an analysis obviously ignores the cumulative impact of evidence that

when viewed in isolation may appear innocuous. The test is not whether

Poindexter is "plausibly not guilty," id. (citation and internal quotes

omitted), but rather whether a jury could properly convict Poindexter on

the facts adduced at trial. Id. And the evidence adduced at trial, when

viewed in context, yields one conclusion--there is substantial evidence

in the record to support Poindexter's conspiracy conviction. The dissent's myopic view of the evidence is illustrated by the two questions it

asks near the end of the opinion: "How many citizens travel together,

know each other, know the same people, receive calls from common parties and carry pagers? If one of those persons carries drugs, should these

associational facts be enough to convict the other of a criminal agreement?" Post at 28. If these questions accurately summarize all of the evidence against Poindexter adduced at trial then Poindexter's conviction

should be reversed. But, as discussed in the opinion, Poindexter did

much more than that and that is why his conviction must be affirmed.

9 Poindexter also contends that the evidence is insufficient to support

his conviction for aiding and abetting the possession of cocaine with the

intent to distribute, see 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We disagree. At trial, the government was required to prove beyond a reasonable doubt that Poindexter "knowingly associated himself with and

participated in the criminal venture." Burgos , 94 F.3d at 873 (citation and

internal quotes omitted). The criminal venture was the possession of

cocaine with the intent to distribute. That requires the government to

 12
B

To be convicted of interstate travel in aid of racketeering, see 18

U.S.C. § 1952, a "defendant must (1) travel in interstate or foreign

commerce or use an interstate or foreign facility, such as the mail; (2)

intend thereby to promote an unlawful activity; and subsequently promote or attempt to promote that unlawful activity." Monu, 782 F.2d

at 1211. The unlawful activity may not be an isolated crime; rather

the unlawful activity must be a part of a continuous enterprise. Id.

Poindexter argues that the government did not prove that he

engaged in an ongoing business enterprise. This argument has no

merit. The ongoing business enterprise element was met by the evidence concerning the quantity of cocaine recovered from the duffel

bag (a kilogram), Poindexter's prior $11,000 cash purchase of an

automobile when he was unemployed and already owned an automobile, the repeated interrelated phone call activity that occurred both

before and after Poindexter's arrest, and the pager (which had nationwide coverage) recovered from his person following his arrest.

A similar argument to that raised by Poindexter was rejected in

Monu. In that case, the defendant received a package from outside the

country containing 135 grams of heroin. See id. at 1210. A search of

the defendant's home revealed a triple-beam balance scale. See id.

The defendant was convicted of, among other things, a § 1952 violation. The defendant challenged this conviction, contending that the

government failed, among other things, to establish the ongoing business enterprise element. We rejected this contention:

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prove beyond a reasonable doubt: (1) the possession of cocaine; (2)

knowledge of this possession; and (3) an intent to distribute. Id. "The

same evidence establishing a defendant's participation in a conspiracy

may support a conclusion that a defendant participated in the principal's

unlawful intent to possess and distribute drugs, thereby proving guilt of

aiding and abetting as well." Id. In our view, all of the evidence outlined

in this section of the opinion concerning Poindexter's conspiracy conviction supports Poindexter's conviction for aiding and abetting the possession of cocaine with the intent to distribute.

 13
The requirement . . . that the unlawful activity be part of a

continuous enterprise is satisfied by the evidence concerning

the triple-beam balance scale. This tool indicates that

Monu's receipt of the heroin was part of an ongoing enterprise, rather than an isolated instance of criminal conduct.

Id. at 1211.

Poindexter's pager and how it was employed,10 coupled with

Poindexter's prior $11,000 cash purchase of an automobile, the

repeated interrelated phone call activity that occurred both before and

after Poindexter's arrest, and the quantity of cocaine recovered from

the duffel bag places this case squarely within the scope of Monu.

Accordingly, we reject Poindexter's challenge to the sufficiency of

the evidence supporting his interstate travel in aid of racketeering

conviction.

V

For the reasons stated herein, the judgment of the district court is

affirmed.

AFFIRMED

GOODWIN, District Judge, dissenting:

Frederick Jermaine Poindexter's conspiracy conviction is based on

conjecture and upheld by surmise. Speculation and suspicion alone

cannot legitimize a conviction that lacks proof beyond a reasonable

doubt. Given the dearth of evidence and the government's reliance on

untenable inference, the trial court should have withdrawn this case

from the jury and granted a judgment of acquittal. 1 On appeal, I

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10 Courts have expressly found that pagers are relevant in drug cases

because such devices are frequently used by persons involved in drug

trafficking. See, e.g., United States v. Jaramillo-Suarez, 950 F.2d 1378,

1385 (9th Cir. 1991); United States v. Rogers , 918 F.2d 207, 212-13

(D.C. Cir. 1990).

1 "Permissible inferences must . . . be within the range of reasonable

probability . . . . [I]t is the duty of the court to withdraw the case from

the jury when the necessary inference is so tenuous that it rests merely

upon speculation and conjecture." See Ford Motor Co. v. McDavid, 259

F.2d 261, 266 (4th Cir.), cert. denied, 358 U.S. 908 (1958).

 14
believe that this court should reverse Poindexter's conviction.2 I

respectfully dissent and explain.

I. A COMPARISON WITH UNITED STATES V. BURGOS

In United States v. Burgos, five dissenting judges reiterated Justice

Jackson's warning of nearly a half century ago:"[T]he history of the

law of conspiracy exemplifies the tendency of a principle to expand

itself to the limit of its logic." 94 F.3d 849, 877-78 (4th Cir.) (en

banc) (Michael, J., dissenting) (citations and internal quotations omitted), cert. denied, 117 S. Ct. 1087 (1997). Surely Burgos expanded

this court's conspiracy jurisprudence to its logical limits, and just as

surely, this case exceeds those limits.

In 1996, this court upheld Frank Burgos's conspiracy conviction.

To affirm the conviction, the court relied on physical evidence of the

defendant's fingerprint on a plastic bag filled with cocaine base (crack

cocaine).3 The court also relied on an agent's testimony that Burgos

admitted that he knew his coconspirators carried a package of crack

cocaine and that they intended distribution at a North Carolina university. See id. at 871. Further evidence showed that the defendant purchased his train ticket and his coconspirators' tickets, all of which had

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2 In considering an appeal from a trial court's denial of a Rule 29

motion, this court must ask whether a rational trier of fact, starting from

a presumption of innocence, could have found the essential elements of

the charged offenses beyond a reasonable doubt. See Jackson v. Virginia,

443 U.S. 307, 319 (1979); United States v. Wilson, 115 F.3d 1185, 1190

(4th Cir. 1997). We view all of the evidence in the light most favorable

to the government and grant it all reasonable inferences therefrom.

Jackson, 443 U.S. at 319; Wilson, 115 F.3d at 119.

3 Although the Burgos majority insisted otherwise, the critical piece of

evidence in Burgos was the defendant's fingerprint, which appeared on

the plastic bag filled with crack cocaine. Burgos, 94 F.3d at 864 (describing fingerprint as "most damning physical evidence"). The Burgos

majority deemed the fingerprint so significant to the government's case

that the majority discussed it no less than twenty-six times in its twentyeight page opinion. One fingerprint discussion covers a full one and onehalf pages. Id. at 864-65. The Burgos majority's repeated reference to the

fingerprint belies any assertion that it was not a decisive factor in upholding Burgos's conviction.

 15
identical return plans. The evidence also showed that Burgos knew

one of the coconspirators before the train trip, and that he talked and

shared food with both coconspirators during the trip. Government

agents testified that the conspirators exchanged telephone numbers

and attempted to leave the train station together. The government also

introduced proof that a newspaper discarded in the North Carolina

train station bathroom matched newspaper wrapped around the bag

filled with crack cocaine. During trial, the defendant's testimony was

conflicting and equivocal. See id.

In sum, the government's evidence in Burgos showed that Frank

Burgos handled a bag containing crack cocaine, that he knew about

his traveling companions' possession and plan to distribute the

cocaine, and that he was closely associated with at least one of his

coconspirators. Based on the aforementioned evidence, a majority of

this court found that the jury made a reasonable inference when it

determined that Burgos entered into an agreement to distribute

cocaine with his traveling companions.

The evidence in this case differs significantly from that in Burgos

because there is no proof connecting Poindexter with Cheung's

cocaine. In contrast to the fingerprint offered in Burgos, in this case

the government offered no physical evidence or testimony to show

that Poindexter ever touched, carried, handled, or directed the handling of Cheung's bag. Poindexter's fingerprints were not found on

Cheung's bag or on the bag's contents. Moreover, there is no evidence that Poindexter knew Cheung was carrying cocaine or that

Poindexter knew Cheung intended to distribute the cocaine.4 Instead,

the government's evidence showed only a brief and ambiguous connection between Poindexter and Cheung. Unlike Burgos, in which the

_________________________________________________________________

4 As "evidence" of Poindexter's knowledge, the government speculated

about an agent's testimony that Poindexter mumbled an obscenity in

response to seeing Cheung approached by government agents. See Brief

for the United States at 22 ("That he knew Cheung was carrying cocaine

and that they were about to be caught is confirmed by Poindexter's

crude, but poignant, statement when he saw federal agents approach his

coconspirator with the cocaine -- `shit.'"). As discussed below, the government's explanation as to why Poindexter cursed is unsupported by the

evidence.

 16
government presented testimony that the defendant knew his traveling

companions before the train trip, there is little evidence to show that

Poindexter knew Cheung before the flight5 or that the two men

intended to travel together. The evidence only established that a travel

agency entered Poindexter's and Cheung's airline reservations within

one minute of each other and that their tickets were sequentially

numbered.6 The government offered no proof of when the tickets

were purchased, who picked up the tickets, whether Poindexter purchased Cheung's ticket, or whether Poindexter purchased his own

ticket.7 And, unlike Burgos , in which the government presented evidence that the defendants sat together, exchanged food, and conversed, there is no evidence of association between Poindexter and

Cheung except that the airline assigned the two men adjacent seats.8

Whereas in Burgos, Frank Burgos attempted to depart the train station

with his traveling companions after exchanging phone numbers with

one of them, here there was only evidence that Poindexter and

Cheung walked together after exiting the plane, spoke briefly, and

parted company in the airport before being approached by agents and

before attempting to exit the airport. In short, the government offered

scant evidence to demonstrate a connection between Poindexter and

Cheung.

II. THE GOVERNMENT'S CASE

The government suggests that this case is about a"larger, ongoing

business enterprise," the purpose of which was to obtain cocaine in

Los Angeles, transport it across the country, and distribute it in Washington, D.C. The government presents "Darnell Harris," whom the

government would have us believe arranged a cocaine sale for

Poindexter. As "proof" that Harris arranged a sale, the government

_________________________________________________________________

5 There was no evidence of any phone calls, pages, or other contacts

between Poindexter and Cheung.

6 The evidence also shows that Poindexter's ticket was issued in the

name "Curtis Davis." However, unlike Cheung, Poindexter immediately

gave his own name when questioned by authorities. J.A. at 287.

7 Although Cheung's ticket was purchased with cash, no evidence was

offered as to how Poindexter's ticket was purchased.

8 There was no evidence that Poindexter and Cheung requested adjacent seats or that they actually sat together.

 17
offers repeated calls from someone at Poindexter's residence to Harris's Los Angeles pager during the month preceding Poindexter's and

Cheung's arrests. The government's conjecture continues with

Poindexter and Cheung traveling to Los Angeles to purchase and

transport cocaine. To explain the fact that Poindexter never handled

the cocaine, the government supposes that Poindexter was the "finance man" and that he asked Cheung to carry the cocaine for him.9

The government characterizes a postarrest call from Poindexter's residence to Harris's pager as a distress signal, designed to alert Harris

that Poindexter and Cheung had been unsuccessful in their efforts to

transport the cocaine. A "coconspirator" named Tewana Freeman

materializes. Because she contacts both Poindexter and Cheung, Freeman becomes the government's link between the parties. For some

inexplicable reason, however, Freeman is hundreds of miles away in

a Connecticut Best Western on the same day the cocaine arrives in a

Virginia airport. Yet the government insists, and the majority agrees,

that this "evidence" proves Poindexter and Cheung had an agreement

to distribute cocaine.

A. Darnell Harris

To strengthen its allegation of a cocaine conspiracy between

Poindexter and Cheung, the government conjured up cocaine kingpin

Darnell Harris. And just who is Darnell Harris? We don't know. He

_________________________________________________________________

9 In its closing argument, the government made the following statements, all of which were unsupported by the evidence: "This guy

[Poindexter] has been making drug profits, and he's keeping the business

going. He is buying tickets, the cost of doing business, to get to L.A. He

is taking his buddy to carry the drugs, buying his ticket, too; plopped

down the cash." J.A. at 370 (government closing argument). "Again, why

is conspiracy a separate offense? Because it allows the Poindexters of the

world to smile and say, `Sure, search me. I didn't have the drugs.'" Id.

at 369 (same). As explained below, there is no evidence in the record that

Poindexter made "drug profits." There is absolutely no evidence how

Poindexter or Cheung traveled to Los Angeles or whether they traveled

together. There is no evidence who paid for their tickets or the means by

which the tickets were paid. There is no evidence that Poindexter paid

for Cheung's ticket from Los Angeles to Virginia. There is no evidence

that Poindexter paid for his own ticket. There is little evidence that

Poindexter and Cheung knew each other before the flight.

 18
did not testify. No statements of his were admitted. In its closing

argument, the government candidly admitted, "And the inference --

for example, we don't know who was in Los Angeles. But the reasonable inference is, it is somebody who provided the cocaine." J.A. at

357 (emphasis added).10 Yet, the government offered no evidence in

support of this "reasonable inference." Despite this leap in logic, the

trial court allowed the government to argue to the jury that Harris was

connected to the alleged conspiracy.

At bottom, the government had no evidence of a cocaine connection between Poindexter and Harris. The only evidence on which to

base an association between Poindexter and Harris is that (1) in the

month preceding Poindexter's arrest, there were repeated calls from

Poindexter's residence to a Los Angeles pager registered to Darnell

Harris; (2) Poindexter's pager contained Harris's pager number; and

(3) after the arrests, a resident of Poindexter's household other than

Poindexter telephoned Harris's Los Angeles pager number. Even

though the evidence indicates that Poindexter did not live alone,11 the

government asserted that it was Poindexter who called Harris's pager

in the month preceding the arrests. The government also asserted that

a postarrest call from a public phone to Poindexter's residence and a

later call from his residence to Los Angeles was"all Poindexter activity." J.A. at 366. The government speculated about the content of

these calls: "He is making sure that the word gets back to L.A., `We

have been popped, guys, we have been popped.'" Id. at 366-67. Yet

the government had no evidence of the content of or motive behind

the calls. Perhaps Harris was a relative that one of Poindexter's family

_________________________________________________________________

10 See also J.A. at 213 ("Q: You don't know who [the cocaine] came

from? A: No. Q: You don't know where it came from, other than -- A:

Not specifically, no. . . . THE COURT: Where in Los Angeles it came

from? A: Where, from whom, that's right.") (testimony of Agent Oliff).

11 While Poindexter was in jail, someone at Poindexter's residence

received a phone call from the jail. Later, a call was placed from

Poindexter's residence to Harris's Los Angeles pager number. The fact

that someone in Poindexter's residence received a call and made a call

while Poindexter was incarcerated indicates that Poindexter did not live

alone. Therefore, it cannot be assumed that only Poindexter could have

made the nineteen telephone calls to Harris's pager during the month

preceding the arrests.

 19
members planned to visit. Perhaps Harris was a medical doctor

Poindexter trusted. Perhaps Harris was a friend Poindexter visited,

and when Poindexter was arrested, someone in Poindexter's home

called Harris to tell him. We just don't know. The government's

"proof" is nothing more than an unsubstantiated assertion that

Poindexter arranged to buy cocaine over the telephone. Surprisingly,

the majority adopts the government's theory: "Other telephone activity connected Poindexter to an ongoing business enterprise. A number

which was displayed on Poindexter's pager just after his arrest was

a pager number in Los Angeles. This Los Angeles pager number had

previously been called by Poindexter from his home nineteen times

between September 8 and October 18." Majority Op. at 6. This conclusion is based on pure conjecture.

B. Tewana Freeman

The same can be said of the government's evidence concerning

Tewana Freeman; Freeman is another phantom coconspirator about

whom we know nothing. She did not testify. No statements of hers

were admitted. The government offered no evidence to connect her

to Cheung's cocaine. What's worse, the government can't say who

Tewana Freeman is: "Tewana Freeman, whoever this is." See J.A. at

361 (government closing argument) (emphasis added). Despite the

government's admitted ignorance as to Freeman's identity, the trial

court allowed jury argument that Freeman was connected to the

alleged conspiracy and that she linked Poindexter to the conspiracy.

Both the government and the majority assume that Freeman participated in a "larger, ongoing enterprise" to distribute cocaine in Washington, D.C.12 based on the following evidence: (1) Freeman stayed

at a Connecticut Best Western in August13 and then again in October,

checking into the motel on October 17, the same day that Cheung

_________________________________________________________________

12 That the government and the majority presume Freeman's involvement in the conspiracy can be inferred from her role in the government's

case against Poindexter. If the government and the majority did not

believe Freeman was involved in the conspiracy, her travel plans and her

phone calls would be completely irrelevant to this case.

13 A telephone call from the motel was placed to Cheung's pager during

Freeman's August stay.

 20
transported the cocaine from Los Angeles to Virginia; (2) she called

both Poindexter and Cheung from the Connecticut Best Western after

their arrests;14 and (3) Freeman's phone number was transferred one

week after the arrests to the number Cheung gave as his home number. The government offered no evidence to show why Tewana Freeman stayed at the Connecticut Best Western on either occasion.

Neither did the government explain why, if Freeman was part of a

"larger, ongoing enterprise" to distribute cocaine in Washington,

D.C., she traveled to Connecticut on the day Cheung brought the

cocaine to Virginia. Nonetheless, the government and the majority

rely on Freeman's postarrest calls as proof of a shared criminal

enterprise.15 Despite the government's allegation that Poindexter and

Cheung formed a criminal agreement, an examination of the telephone records reveals that Freeman's postarrest call to each of them

is the only telephonic link between Poindexter and Cheung. There is

no evidence that Poindexter and Cheung ever telephoned each other

or paged each other. There is no evidence that they used Freeman as

an intermediary. The only reasonable inference to be drawn from

Freeman's calls to Poindexter and Cheung is that Poindexter and

Cheung both know Freeman. That Poindexter and Cheung know a

common third party, however, does not provide a basis for the inference that Poindexter knew about or participated in Cheung's criminal

activity.

Furthermore, the government's suspicion that Freeman's call to

each of the parties concerned the cocaine transaction is not supported

by any evidence. It is critical to remember that we are not to grant the

government all possible inferences from the facts, only those that are

reasonable and logically compelled. See Evans-Smith v. Taylor, 19

F.3d 899, 908 n.22 (4th Cir.) ("While all inferences must be made in

favor of the prosecution, leaps of logic should not be."), cert. denied,

513 U.S. 919 (1994). Because the government offered no evidence of

Freeman's motive for making the calls or of the content of the calls,

_________________________________________________________________

14 In September, someone in Freeman's home placed a call to Poindexter's pager. There was no evidence of another call until after the October

arrests.

15 The majority describes Freeman's calls as part of the "interrelated

phone call activity that suggest[s] a larger, ongoing enterprise." Majority

Op. at 11.

 21
the jury had only timing to consider, that is, that the calls were made

after Poindexter's and Cheung's arrests. Timing alone is insufficient

to support the inference that the content of the calls concerned a

cocaine distribution agreement between Poindexter and Cheung. Cf.

United States v. Galvan, 693 F.2d 417, 420 (5th Cir. 1982) (pre- and

postarrest timing of "flurry" of calls between alleged coconspirators'

residences was insufficient to support inference that content of calls

was alleged conspiracy).

C. Recent Cash Expenditures and Rule 404(b) 

To set the stage for the alleged intrigue, the government claimed

that Poindexter showed signs of profiteering in the drug trade. The

government offered as evidence Poindexter's $11,000 cash purchase

of a car at an auction four months before the charged conspiracy. The

government speculated that, because Poindexter bought the car for

cash during a period of unemployment, he must have purchased the

car with drug proceeds.16 The government then argued that because

Poindexter purchased the car in June with drug proceeds, he must

have conspired with Cheung four months later to distribute cocaine.17

_________________________________________________________________

16 The government argued: "And why do we know that Poindexter is

involved in cocaine? Because he is purchasing, for $11,000 in cash, this

unemployed guy -- you've got the records there-- where he is buying

a Lexus, and he plops down $11,000 in cash. . . . The unemployment is

at issue because he had no legitimate income to buy a Lexus, no legitimate income to buy a cash ticket to and from California, no legitimate

income to buy a pager for cash, with extra nationwide coverage, no legitimate income to carry on his business activity. He is employed, all right.

He is employed in the drug business." J.A. at 363, 402-03 (government

closing argument).

17 "And he plops down $11,000 in cash drug proceeds to buy a Lexus

automobile. He has nationwide coverage on the beeper. Again, all of that

evidence goes to each of those counts. Is this guy a drug dealer? If you

think he had a beeper to call girl friends, acquit him. If you think that

beeper was for drug dealing -- if you think that the $11,000 just plopped

down in the bank account as some miraculous something from heaven,

acquit him. But you can't overlook that $11,000, and you can't overlook

the natural and reasonable inferences of where it came from." J.A. at

370-71 (government closing argument).

 22
Evidence of the car purchase should never have been admitted over

the defendant's objection. Despite the trial court's broad discretion in

determining whether to admit Rule 404(b) evidence, admission of this

evidence amounted to an abuse of discretion. First, the purchase is too

remote in time to the charged conduct, and the government offered no

evidence connecting the car purchase with the alleged conspiracy.

Second, as demonstrated during closing argument, the government

offered the evidence for the improper purpose of a propensity argument.

Poindexter's June car purchase is too remote in time to the conspiracy, charged as beginning in October. The majority correctly cites

United States v. Grandison for the proposition that "recently

expended large sums of cash" may be relevant in drug prosecutions.

See Majority Op. at 9 (quoting United States v. Grandison, 783 F.2d

1152, 1156 (4th Cir.), cert. denied, 479 U.S. 845 (1986)). However,

this court has limited evidence of such expenditures to cases in which

unexplained wealth is contemporaneous with charged conduct. See,

e.g., United States v. McMillon, 14 F.3d 948, 954, 955 (4th Cir. 1994)

(allowing evidence of defendant's unexplained wealth"through the

period of the indicted conspiracy") (emphasis added); Grandison, 783

F.2d at 1154, 1156 (allowing evidence that defendant's briefcase was

full of cash contemporaneous with charged conspiracy). In fact, the

very cases cited by the majority limit evidence of large cash expenditures to those made during the period in which the unlawful conduct

occurred. See Majority Op. at 9 (citing United States v. Penny, 60

F.3d 1257, 1263 (7th Cir. 1995) ("[E]vidence of wealth . . . . must

relate to wealth acquired during the period in which the narcotics

trafficking occurred.") (emphasis added) (citation omitted), cert.

denied, 116 S. Ct. 931 (1996); United States v. Figueroa, 976 F.2d

1446, 1451 & n.3, 1454 & n.7 (1st Cir. 1992) (allowing evidence of

wealth contemporaneous with charged conduct), cert. denied, 507

U.S. 943 (1993)). Poindexter's purchase of the car four months earlier

can hardly be considered "recent" or "contemporaneous" with the

October conspiracy and, therefore, should not have been admitted as

evidence.

Further, the government offered no evidence connecting the car

purchase to the alleged conspiracy with Cheung. In United States v.

Rawle, this court found prior bad acts admissible under Rule 404(b)

 23
only when the evidence was "(1) relevant to an issue other than character, (2) necessary, and (3) reliable." 845 F.2d 1244, 1247 (4th Cir.

1988). This court elaborated that "[i]n order for the evidence to be relevant, it must be sufficiently related to the charged offense." Id. at

1247 n.3; see United States v. Hernandez, 975 F.2d 1035, 1039, 1042

(4th Cir. 1992) (excluding evidence that defendant possessed a previously used recipe for crack cocaine because evidence"did not establish anything about her conduct or mental state during the course of

the conspiracy alleged in the indictment") (emphasis added). "Necessary" has been defined as "an essential part of the crimes on trial or

. . . [that which] furnishes part of the context of the crime." Rawle,

845 F.2d at 1247 n.4 (citations omitted). Because Poindexter's car

purchase was not an "essential part of the crime," that is, the government could not show that it related to the alleged conspiracy or that

it "furnish[ed] part of the context of the crime," the trial court should

have excluded evidence of the purchase as irrelevant. See id. at 1247

nn.3-4. Also, there is nothing inherently suspicious about Poindexter's payment in cash; it is common knowledge that buyers at auction

often pay cash for their purchases. Although the government brazenly

stated to the jury that Poindexter could only have obtained the cash

from cocaine profits, it offered no evidence to connect the money to

cocaine sales.

Moreover, the government offered evidence of the car purchase for

an improper propensity argument. Rule 404(b) excludes evidence of

prior acts if offered to show a defendant's propensity to engage in

such conduct. FED. R. EVID. 404(b). Yet the government repeatedly

violated this prohibition in its closing argument:"And why do we

know that Poindexter is involved in cocaine? Because he is purchasing, for $11,000 in cash, this unemployed guy -- you've got the

records there -- where he is buying a Lexus, and he plops down

$11,000 in cash." J.A. at 363 (government closing argument); see also

id. at 364, 370-71, 402-03, 405 (same). Because the government

offered this evidence in violation of Rule 404(b), it should have been

excluded from the jury's consideration.

D. Mumbled Obscenity

The government also resorted to the ambiguous evidence of

Poindexter's mumbled epithet, "shit," allegedly uttered in reaction to

 24
DEA Task Force agents' questioning of Cheung. The government

offered this evidence as proof of Poindexter's knowledge that Cheung

carried cocaine. Poindexter's knowledge is a critical element in the

alleged agreement because, without his knowledge of the cocaine, the

agreement cannot be inferred from other circumstances. See Ingram

v. United States, 360 U.S. 672, 680 (1959) ("Without the knowledge,

the intent cannot exist.") (quoting Direct Sales Co. v. United States,

319 U.S. 703, 711 (1943)). Furthermore, "evidence of knowledge must

be clear, not equivocal." Id. (emphasis added) (quoting Direct Sales,

319 U.S. at 711).

There is no "clear" evidence that Poindexter knew Cheung carried

cocaine. The government offered an explanation but no proof as to

why Poindexter cursed. Further, the evidence weighs against the government's explanation: Poindexter's utterance occurred after he

rounded a corner. Thus, he could not see the scene to which his epithet allegedly related.18 Although the jury could consider the sequence

of events, it could only speculate as to the cause of Poindexter's outburst. This falls short of the clear and unequivocal proof of knowledge required.

E. Alleged Nervousness and Agitation

Another ambiguous factor relied on by the majority is testimony

regarding Poindexter's alleged nervousness and agitation during the

police confrontation. The majority proposes that Poindexter's anxiety

implicates him in the conspiracy. See Majority Op. at 11. Few innocent people maintain absolute calm when singled out for police questioning. See United States v. Bloom, 975 F.2d 1447, 1458 (10th Cir.

1992). For this reason, little weight should be given to such factors

as nervousness and agitation, absent the witness's familiarity with the

subject's usual demeanor. The agent who testified as to Poindexter's

demeanor did not know Poindexter and was unfamiliar with his usual

demeanor. During questioning, the agent only noticed that Poindexter

_________________________________________________________________

18 "Q: Now, at this moment[when Agent Buss approached Poindexter

and before Poindexter cursed], Agent, is Cheung out of his sight, or can

he still see Cheung? A: He could not see him. . . .[T]he wall or the glass

is obstructing his vision of both Mr. Cheung and Task Force Agents Oliff

and Jacobson." J.A. at 310 (testimony of Agent Buss).

 25
moved his weight from foot to foot, not unusual behavior after an

extended flight. When cross-examined, the agent stated that Poindexter did not sweat, stutter, or mispronounce words during questioning.

J.A. at 300 (testimony of Agent Buss). In the absence of these objective signs of nervousness and any familiarity with Poindexter, the

agent's assertion that Poindexter appeared nervous must be considered a purely subjective determination. As such, it should be accorded

little weight when assessing the totality of the circumstances.

F. Alleged Flight Because of Guilt

The majority also states that Poindexter and Cheung"split up after

seeing the agents approach them from behind." See Majority Op. at

11. The majority interprets evidence offered at trial to show guilt by

flight. However, the record does not support the majority's conclusion; there is only testimony that Poindexter and Cheung spoke

briefly and then parted while the agents were twenty feet behind

them. See J.A. at 138-39, 201, 203, 206-07 (testimony of Agent

Oliff); id. at 283 (testimony of Agent Buss). Agent Buss testified that

Poindexter observed DEA agents approach Cheung, but only after

Poindexter and Cheung parted. Id. at 283, 285, 304. Because there

was no testimony that Poindexter or Cheung saw the agents before

they spoke and parted company, the majority cannot infer that the

agents' approach caused Poindexter and Cheung to separate. Cf.

United States v. Beahm, 664 F.2d 414, 420 (4th Cir. 1981) ("If the

government wishes to offer evidence of flight to demonstrate guilt, it

must ensure that each link in the chain of inferences . . . is sturdily

supported.").

G. Pager

By far the most absurd piece of evidence on which the majority

relies, however, is Poindexter's possession of a pager with nationwide

service. The majority accepts without question the prosecution's argument that pagers are tools of the drug trade, particularly when the

owner has nationwide service without a "legitimate" need. The implications of this argument are disturbing. Apparently, it is now for the

government to decide which citizens have a "legitimate" need for pagers with nationwide service. If a defendant falls outside the class of

 26
citizens with "legitimate" needs, a rebuttable presumption of criminal

activity is established.

Thousands, perhaps millions, of Americans uninvolved in drug

trafficking or any unlawful activity routinely use pagers for business,

recreational, and family purposes. Absent proof that a specific pager

is used for unlawful purposes, the government cannot ask citizens to

justify their ownership. In this case, the government offered no evidence to show that Poindexter used his pager for unlawful purposes.

Again, calls from Tewana Freeman and Darnell Harris do not support

an inference of Poindexter's criminal activity because the government

had no proof that Freeman or Harris participated in the alleged conspiracy. Because there is no evidence that Poindexter used his pager

for unlawful purposes, and because mere possession is not enough to

establish an inference of criminal activity, evidence of Poindexter's

pager ownership is irrelevant.

III. THE MAJORITY'S "COMPLETE PICTURE" 

Poindexter's convictions rest on weak circumstantial evidence of

association with a criminal and the majority's presumption of

Poindexter's guilt. There is no evidence to connect Poindexter to

Cheung's cocaine. There is also no evidence to show a conspiracy

with Cheung. Rather than critically examining the evidence to determine whether it overcomes a presumption of Poindexter's innocence,19

the majority relies on a "complete picture" composed of nothing but

associational facts and speculative inferences consistent with unlawful conduct. See Majority Op. at 11. However, "[t]o start with the

assumption that the crime was committed and then to show that each

piece of circumstantial evidence can be explained in a consistent manner is fundamentally different from examining each piece of evidence

and finally concluding beyond a reasonable doubt that the defendant

_________________________________________________________________

19 See United States v. Villegas , 911 F.2d 623, 630 (11th Cir. 1990) (in

reviewing the sufficiency of the evidence "the presumption of innocence

remains constant, irrespective of the heinous nature of condemned activity, as does the requirement that the government prove its case beyond

a reasonable doubt, notwithstanding the presence of mere suspicion and

speculation"), cert. denied, 499 U.S. 997 (1991).

 27
was guilty." Evans-Smith v. Taylor, 19 F.3d 899, 910 (4th Cir.), cert.

denied, 513 U.S. 919 (1994).

How many citizens travel together, know each other, know the

same people, receive calls from common parties, and carry pagers? If

one of those persons carries drugs, should these associational facts be

enough to convict the other of a criminal agreement? Clearly, the

answer is no. The closest of associations can never be enough to sustain a conviction. United States v. Villegas, 911 F.2d 623, 630 (11th

Cir. 1990) ("Knowing participation in a conspiracy . . . cannot be

proved solely by a family relationship or other types of close association."), cert. denied, 499 U.S. 997 (1991). Guilt is "personal and not

a matter of mere association." Barenblatt v. United States, 360 U.S.

109, 150 (1959) (Black, J., dissenting from opinion affirming contempt of Congress conviction for refusal to answer questions relating

to present or past membership in Communist Party) (citation omitted).

In this case, the totality of the circumstances does not amount to

proof beyond a reasonable doubt of a criminal agreement, but only a

cumulation of suspicion and speculation. There is no evidence from

which a jury could find beyond a reasonable doubt that Poindexter

agreed with Cheung to possess with intent to distribute nearly a kilogram of cocaine. Accordingly, I would reverse Poindexter's conspiracy conviction. Because of the deficiencies in the evidence discussed

above, I would also reverse Poindexter's aiding and abetting and

Travel Act convictions.20

Again, I respectfully dissent.

_________________________________________________________________

20 I would also find that Poindexter was arrested at the moment he was

handcuffed and that there was insufficient probable cause at that time.

For the purposes of this discussion, however, I have treated the items

obtained pursuant to that arrest as properly seized.

 28