2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-1-2004

USA v. Cartwright

Precedential or Non-Precedential: Precedential

Docket No. 03-1466P

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Cartwright" (2004). 2004 Decisions. Paper 898.

http://digitalcommons.law.villanova.edu/thirdcircuit_2004/898
PRECEDENTIAL

UNITED STATES COURT 

OF APPEALS

FOR THE THIRD CIRCUIT

 

NO. 03-1466

 

 UNITED STATES OF AMERICA

v.

ELLIOT CARTWRIGHT

a/k/a DARYL ATKINS

Elliot Cartwright

 Appellant

 

On Appeal From the United States 

District Court For the 

Eastern District of Pennsylvania

(D.C. Crim. Action No. 02-cr-00581-2)

District Judge: Hon. James T. Giles

 

Argued January 26, 2004

BEFORE: NYGAARD, FUENTES

and STAPLETON, Circuit Judges

(Opinion Filed: March 1, 2004)

 

Patrick L. Meehan

United States Attorney

Laurie Magid

Deputy U.S. Attorney

Robert A. Zauzmer

Assistant U.S. Attorney

Kenya S. Mann (Argued)

Assistant U.S. Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

 Attorneys for Appellee

Maureen Kearney Rowley

Chief Federal Defender

David L. McColgin (Argued)

Assistant Federal Defender

Curtis Center - Suite 540 West

Independence Square West

Philadelphia, PA 19106

 Attorneys for Appellant

 

OPINION OF THE COURT

 

STAPLETON, Circuit Judge:

Defendant Ellio t Cartwright

(“Cartwright”) appeals his conviction and

sentence, following a jury trial, for

conspiracy to distribute cocaine in

violation of 21 U.S.C. § 846 (2001), aiding

and abetting the distribution of cocaine in

violation of 21 U.S.C. § 841 (2001) and 18

U.S.C. § 2 (2001), and possession of a

firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c)

(2001). The sole issue presented by this
2

appeal is whether the evidence presented

by the government at trial was sufficient to

support Cartwright’s conviction. We

conclude that the evidence adduced at trial

did not support an inference that

Cartwright knew he was participating in a

transaction that involved a controlled

substance, as opposed to some other form

of contraband. Because we have

consistently held that such proof is

necessary to support a conviction in cases

such as this, we will reverse the judgment.

I. Facts and Procedural History

On September 27, 2001, a drug dealer

named Prince Muhammed El agreed to

coop erate with agents from the

Pennsylvania Office of the Attorney

General, Bureau of Narcotics Investigation

and Drug Control, in arranging for the

controlled purchase of three kilograms of

cocaine. Muhammed El made the

arrangements through his friend, Rashine

Ellis, who in turn contacted her supplier,

Osiris Jackson. Muhammed El had

contacted Ellis through his two-way

handheld text messaging device.1 During

a recorded telephone conversation later

that day, Muhammed El and Ellis

negotiated the terms of the transaction.

Muhammed El agreed to purchase three

kilograms of cocaine for a price of

$90,000. The two also initially agreed that

the sale would take place later that day at

the Houlihan’s or Friday’s on City Line

Avenue in Philadelphia.2 After the initial

conversation, Ellis changed the location of

the transaction to the parking lot of the

Bala Cynwyd Shopping Center in

Montgomery County, Pennsylvania, just

across the Philadelphia city line. 

Before going to the shopping center

parking lot, Muhammed El first met Ellis

at a gas station in the East Falls section of

Philadelphia. Muhammed El was

accompanied by James Avery, an

undercover narcotics agent with the

Pennsylvania Attorney General’s Office,

who posed as Muhammed El’s bodyguard

and confidant. At the gas station,

Muhammed El got out of his car and

entered Ellis’s silver Mitsubishi Montero,

a sport utility vehicle (the “SUV”).

Muhammed El then rode with Ellis to the

shopping center while Avery followed

them in Muhammed El’s car. The two

vehicles arrived at the shopping center

parking lot at approximately 4:45 p.m.

Ellis parked her SUV about five to six car

lengths from the front door of a Foot

 

1Muhammed El later testified that he

used the two-way messaging device in

drug transactions to avoid the possibility

that his conversations would be overheard

by others. 

 

2During the telephone call, Muhammed

El professed a desire that the transaction

take place out in the open, where there

would be other people to watch and make

sure the transaction went smoothly. Ellis

also suggested during the telephone call

that the only people who would be present

at the transaction would be herself,

Muhammed El, and Jackson. 
3

Locker store. Agent Avery parked in a

space directly across from Ellis’s SUV. At

that point, the parking lot was under

government surveillance. 

When they arrived at the parking lot,

Ellis contacted her supplier, Osiris

Jackson, using her two-way textmessaging

device. Muhammed El then got out of

Ellis’s SUV and went to Agent Avery,

who remained in Muhammed El’s car.

Muhammed El told Agent Avery that he

would give a signal by lifting his hat as

soon as he saw the cocaine. Muhammed

El then got back into Ellis’s SUV. At that

point, law enforcement agents observed

Jackson, empty-handed, walking up to the

SUV and getting into the rear passengerside seat. While inside the SUV,

Muhammed El, pointing to Agent Avery,

told Jackson that he had the money and

asked if Jackson had the cocaine. Jackson

said that he did have the cocaine and Ellis

pronounced that the “deal is good.” App.

at 96a. Jackson then got out of the SUV

and walked through the breezeway at the

corner of the mall that led to another

parking lot located on the rear side of the

mall. The rear parking lot was not under

government surveillance. 

Several minutes later, Jackson returned

through the breezeway, carrying a blue and

white paper shopping bag marked with the

words “Mr. Denim.” Agent Kenneth

Bellis, who was conducting surveillance

for the controlled transaction, observed

that as Jackson walked through the

breezeway leading back to the front

parking lot and Ellis’s SUV, he was

walking side-by-side with Defendant Elliot

Cartwright. Agent Bellis observed that at

one point, Jackson and Ellis were talking

to each other, and he could tell that “they

were having some kind of conversation.”

App. at 143a. Jackson and Cartwright

walked together through the breezeway for

approximately thirty feet and then began to

separate. Jackson walked out into the

parking area towards Ellis’s SUV and

Cartwright continued to walk along a path

that ran adjacent to the store fronts.

Cartwright stopped walking near the Foot

Locker. His back was facing a wall that

separated the Foot Locker from the store to

its left. Cartwright then leaned up against

the wall and placed one foot up against it.

He was also looking straight ahead, in the

direction of Ellis’s SUV. The SUV was

located about 90 to 100 feet from the Foot

Locker.

Meanwhile,Jackson crossed the parking

lot and, after taking a loaded firearm from

his waistband, entered the SUV. Jackson

placed the blue and white shopping bag on

its side in the SUV, showing Muhammed

El three bricks of cocaine. Muhammed El

then gave the pre-arranged signal and law

enforcement officers immediately

converged on the SUV. The agents

recovered from Jackson a loaded firearm

with a round in the chamber, a Motorola

Timeport two-way text messaging device,

the blue and white shopping bag

containing the cocaine, and the keys to a

Subaru vehicle that was discovered in the

rear parking lot and was registered in the

name of Jackson’s father.
4

As the agents converged upon Ellis’s

SUV, Agent Bellis observed Cartwright

remove his foot from the wall and saw him

going “fairly quickly” into the Foot Locker

store. App. at 146a. Agent Bellis radioed

for another agent, Edward Rodriguez, to

meet him at the Foot Locker. Together,

the two agents entered the Foot Locker

approximately twenty to thirty seconds

after Cartwright. Upon entering the Foot

Locker, they saw Cartwright with his back

towards them, standing near clothes racks

located in the middle of the store. They

grabbed Cartwright, patted him down, and

recovered from him a loaded semiautomatic firearm with a round in the

chamber, a cellular phone, $180 in cash,

and a Motorola Timeport two-way text

messaging device similar to the one

recovered from Jackson. Cartwright was

not in possession of any car keys.

At Cartwright’s trial, the foregoing

facts were developed through the

testimony of Muhammed El, Agent Avery,

Agent Bellis, Agent Rodriguez, and two

other law enforcement agents. In addition,

Agent Bellis testified, as an expert in the

field of drug trafficking, that drug dealers

commonly used lookouts to conduct

counter-surveillance in drug transactions

and that these lookouts could possess a

firearm. The only witness to testify for the

defense was Bernard Clark, the assistant

manager of the Foot Locker, who told the

jury that when Cartwright first came into

the store, he asked a saleswoman a

question, then looked at some clothing,

and then asked the saleswoman another

question. 

Cartwright’s defense counselmoved for

a judgment of acquittal under Fed. R.

Crim. P. 29 after the close of the

government’s case and again at the close

of all evidence. The District Court denied

both motions, holding that sufficient

evidence existed to send the case to the

jury. Cartwright was found guilty on all

three counts. He was sentenced to a term

of 140 months of imprisonment, five years

of supervised release, a fine of $1,500, and

a special assessment of $300. Cartwright

filed a timely notice of appeal.

II. Jurisdiction

The District Court had jurisdiction over

this case under 18 U.S.C. § 3231 (2001)

because Cartwright was charged with

offenses against the laws of the United

States. We have jurisdiction over this

appeal pursuant to 28 U.S.C. § 1291

(2001) because the District Court’s

judgment of conviction and commitment

was a final decision.

III. Discussion

Cartwright argues on appeal that the

evidence presented by the government was

insufficient to support his conviction on

any count. First, Cartwright contends that

the government failed to show that he was

a “lookout” for Osiris Jackson and that all

of the evidence presented to the jury was

consistent with his innocence.

Alternatively, Cartwright claims that even

assuming that the government’s evidence

was sufficient to support an inference he

acted as a lookout for Jackson, the
5

government failed to show that he knew

that the transaction involved a controlled

substance. In reviewing Cartwright’s

challenge to the sufficiency of the

evidence, we apply a “particularly

deferential” standard of review. United

States v. Cothran, 286 F.3d 173, 175 (3d

Cir. 2002) (quoting United States v. Dent,

149 F.3d 180, 187 (3d Cir. 1998)). The

verdict must be sustained if there is

substantial evidence to support it. Burks v.

United States, 437 U.S. 1, 17 (1978);

United States v. Beckett, 208 F.3d 140, 151

(3d Cir. 2000). “It is not our role to weigh

the evidence or to determine the credibility

of the witnesses.” Cothran, 286 F.3d at

175. “We must view the evidence in the

light most favorable to the Government

and sustain the verdict if any rational juror

could have found the elements of the crime

beyond a reasonable doubt.” Id.

Under this standard of review, we have

little difficulty concluding that the

evidence is sufficient to support a finding

that Cartwright acted as a lookout for

Jackson. Moreover, there is ample

evidence in the record to suggest that

Cartwright knew he was involved in an

illicit transaction of some sort. The

evidence showed that Cartwright and

Jackson had a conversation during a thirtyfoot walk through the breezeway, after

which Cartwright was seen taking up a

position next to the Foot Locker and

watching the SUV as Jackson walked to it

with the blue and white shopping bag.

Cartwright, like Jackson, was armed with

a semi-automatic weapon that was loaded

and had a round in the chamber.

Cartwright and Jackson also possessed

similar two-way text messaging devices.

Moreover, the jury heard expert testimony

that lookouts are commonly used in drug

transactions of this type. While there may

have been an innocent explanation for

Cartwright’s activity,3 “[t]here is no

requirement . . . that the inference drawn

by the jury be the only inference possible

or that the government’s evidence

foreclose every possible innocent

explanation.” United States v. Iafelice,

978 F.2d 92, 97 n.3 (3d Cir. 1992) (citing

United States v. Sandini, 888 F.2d 300,

311 (3d Cir. 1989)). Accordingly, the

evidence presented, viewed in the light

most favorable to the government, is

clearly sufficient to support a finding that

Cartwright was acting as a lookout for

Jackson. Our cases dictate, however, that

merely acting as a lookout is insufficient to

sustain a conviction for conspiracy to

distribute, or aiding and abetting the

distribution of, a controlled substance.

See, e.g., United States v. Salmon, 944

F.2d 1106, 1113 (3d Cir. 1991); United

States v. Wexler, 838 F.2d 88, 90-92 (3d

Cir. 1988). Although this evidence may be

sufficient to prove that Cartwright knew he

 

3

For example, Cartwright asserts that

on these facts, he may have just been a

casual acquaintance of Jackson who

happened to run into him in the parking

lot, or he may have been a stranger who

merely asked Jackson a question, or he

may have just been an ordinary shopper

who paused to rest before going about his

errands.
6

was participating in some sort of illegal

transaction, these facts nonetheless are

insufficient to prove beyond a reasonable

doubt that Cartwright knew the transaction

involved drugs. 

“The elements of a conspiracy may be

proven entirely by circumstantial evidence,

but each element of the offense must be

proved beyond a reasonable doubt.”

Wexler, 838 F.2d at 90; see also United

States v. Idowu, 157 F.3d 265, 266-67 (3d

Cir. 1998). “One of the requisite elements

the government must show in a conspiracy

case is that the alleged conspirators shared

a ‘unity of purpose’, the intent to achieve

a common goal, and an agreement to work

together toward the goal.” Wexler, 838

F.2d at 90-91 (citing United States v.

Kates, 508 F.2d 308, 310-11 (3d Cir.

1975)); see also Idowu, 157 F.3d at 268.

“In order for us to sustain a defendant’s

conviction for conspiracy, the government

must have put forth evidence ‘tending to

prove that defendant entered into an

agreement and knew that the agreement

had the specific unlawful purpose charged

in the indictment.’” Idowu, 157 F.3d at

268 (quoting Wexler, 838 F.2d at 91).4

Applying this rule, “[w]e have consistently

held in cases of this genre that, even in

situations where the defendant knew that

he was engaged in illicit activity, and knew

that ‘some form of contraband’ was

involved in the scheme in which he was

participating, the government is obliged to

prove beyond a reasonable doubt that the

defendant had knowledge of the particular

illegal objective contemplated by the

conspiracy.” Idowu, 157 F.3d at 266-67

(citing United States v. Thomas, 114 F.3d

403, 405 (3d Cir. 1997); Wexler, 838 F.2d

at 90). Accordingly, “this court has

[consistently] overturned convictions for

conspiracy in drug possession and

distribution because of the absence of any

evidence that the defendant had knowledge

that drugs were involved.” United States

v. Mastrangelo, 172 F.3d 288, 293 (3d Cir.

1999) (citing Idowu, 157 F.3d 265;

Thomas, 114 F.3d 403; Salmon, 944 F.2d

1106; Wexler, 838 F.2d 88; United States

v. Cooper, 567 F.2d 252 (3d Cir. 1977)). 

We also have overturned aiding and

abetting convictions for parallel reasons.

See, e.g., Salmon, 944 F.2d at 1113;

Wexler, 838 F.2d at 92. A conviction on

such a charge “requires that another

committed the substantive offense and that

the one charged with aiding and abetting

knew of the substantive-offense

commission and acted with the intent to

facilitate it.” Salmon, 944 F.2d at 1113

(citing United States v. Dixon, 658 F.2d

181, 189 n.17 (3d Cir. 1981)); see also

United States v. Bey, 736 F.2d 891, 895

(3d Cir. 1984); United States v. Pearlstein,

576 F.2d 531, 546 (3d Cir. 1978).

“[A]cting with intent to facilitate the

substantive offense requires that one acted

with the ‘intent to help those involved with

a certain crime.’” Salmon, 944 F.2d at

 

4Moreover, we have held that “[t]he

inferences rising from ‘keeping bad

company’ are not enough to convict a

defendant for conspiracy. Wexler, 838

F.2d at 91. 
7

1113 (quoting Wexler, 838 F.2d at 92)

(emphasis in original). We have therefore

held that a reasonable jury could not have

had sufficient evidence to find that a

defendant aided and abetted the possession

and/or distribution of drugs where “the

government did not prove that [the

defendant] had knowledge of the [drugs],

had knowledge that [the co-defendant]

intended to distribute or possess [drugs], or

purposefully intended to aid others in

committing the crime alleged.’” Id. at

1114 (quoting Wexler, 838 F.2d at 92). 

Based on this well-established

precedent, the proper question before us

with respect to both the conspiracy and the

aiding and abetting charges is “whether

there was sufficient evidence that

[Cartwright] knew that the subject matter

of the transaction was a controlled

substance, rather than some other form of

contraband, such as stolen jewels or

computer chips or currency.” Idowu, 157

F.3d at 266. Here, the government

presented no direct evidence proving that

Cartwright knew he was involved in a drug

transaction. We have recognized,

however, that “[i]nferences from

established facts are accepted methods of

proof when no direct evidence is available

so long as there exists a logical and

convincing connection between the facts

established and the conclusion inferred.”

Id. at 269 (quoting United States v.

Clemmons, 892 F.2d 1153, 1159 (3d Cir.

1989); see also Salmon, 944 F.2d at 1114

(citing United States v. McNeill, 887 F.2d

448, 450 (3d Cir. 1989)). On the other

hand, in the absence of a logical and

convincing connection, i.e., where an

inference as to a defendant’s knowledge is

based upon speculation, our case law

forbids us from upholding his conviction.

See Thomas, 114 F.3d at 406. 

The facts of this case undoubtedly

evidence the existence of a conspiracy, at

least among Rashine Ellis and Osiris

Jackson, to distribute cocaine. There is

also no question that a distribution of

cocaine actually occurred. However, the

government can point only to the

following facts established at trial as a

basis for inferring Cartwright’s knowledge

of a drug distribution: (1) Cartwright

made his first appearance in the breezeway

at the same time that Jackson was

observed carrying the shopping bag

containing the cocaine; (2) Cartwright

walked side-by-side with Jackson through

the breezeway and the two were observed

talking to each other; (3) Cartwright

possessed a semi-automatic firearm, a

cellular phone, $180 in cash, and a

Motorola Timeport two-way text

messaging device; and (4) Cartwright did

not possess any keys to a vehicle of his

own. There is simply no logical and

convincing connection between these facts

and the inference the government seeks to

draw. Rather, that inference is based

solely on speculation about a possible prior

relationship between Cartwright and

Jackson, about how Cartwright got to the

mall, and about what Cartwright was doing

prior to being sighted with Jackson,

matters as to which there is no evidence.

Our conclusion that the foregoing facts
8

do not support the government’s inference

follows a fortiori from Thomas, 114 F.3d

403 and Idowu, 157 F.3d 265. In Thomas,

a drug courier named Lynch agreed to

cooperate with law enforcement officers in

conducting a planned drug transaction.

114 F.3d at 404. Lynch informed the

officers that she had been directed by a

man named Petersen to take a suitcase

carrying cocaine to a hotel room at the

Atlanta Airport Days Inn, leave the

suitcase in the hotel room, return the room

key to the front desk in an envelope

marked “Melvin Smith” or “Cousin

Melvin Smith,” and then leave the Days

Inn for another hotel. Id. Lynch

performed as directed and the officers set

up surveillance of the Days Inn hotel

room. Defendant Thomas then obtained

the room key from the front desk, was

observed entering the designated room,

and was arrested upon exiting. Thomas

told the officers that he was to be paid

$500 to check on a suitcase at the hotel,

but he denied having any knowledge that

the suitcase contained cocaine. When

Thomas was arrested, he was in possession

of a cellular phone, a pager, and a nine

millimeter pistol. In addition, officers

retrieved from Thomas’s pager the same

telephone number at which Lynch had

earlier called Petersen. Furthermore,

Petersen’s phone records also showed

several calls to Thomas’s pager and

cellular phone, as well as to Thomas’s

home telephone. We concluded from this

evidence that Thomas must have known

that he was somehow involved in an illicit

activity; however, we held that any

conclusion that Thomas knew drugs were

involved was speculative. We noted that

even if Petersen had spoken to Thomas

prior to the transaction, there was no

evidence concerning the substance of the

phone calls or showing that Thomas had a

prior relationship with Lynch or Peterson.

We therefore reversed Thomas’s

conspiracy conviction.

In Idowu, one Monadu Ajao had

negotiated to buy two kilograms of heroin

from Abdul Khaliq, an informant working

with the United States Drug Enforcement

Agency (“DEA”). 157 F.3d at 267. The

two agreed that the transaction would take

place at a Quality Inn in Jersey City, New

Jersey. Ajao arrived at the agreed-upon

time in a Lincoln Town Car driven by

defendant Idowu. Ajao then spoke to

Khaliq in the presence of Idowu, although

he referred to the subject of the deal as

“the stuff” rather than “heroin” or “drugs.”

Id. at 267, 268. During the transaction,

Idowu opened the trunk of the Town Car,

removed a brown leather bag from the

trunk, and then opened the bag to show

Khaliq $20,000 in cash. Idowu also

assured Khaliq that all the money was

there. When Khaliq stated that he would

have to take the bag with him, Idowu told

him that he had personal documents within

it that he would have to remove. After

taking the brown leather bag, Khaliq

opened the rear hatch of his own car,

removed a black suitcase that had been

outfitted to contain the heroin in its lining,

and placed the suitcase in the still-open

trunk of the Town Car. Idowu then

opened the black suitcase and, upon seeing

nothing inside, told Ajao: “They didn’t
9

pack this thing.” Id. at 268. Ajao then

told Idowu to press the suitcase with his

hands and Khaliq assured both of them

that “something was concealed in the

frame of the suitcase.” Id. Ajao and

Idowu were then arrested by DEA agents.

From these facts, we concluded that only

two inferences were proper: that Idowu

had a preexisting relationship with Ajao,

and that Idowu knew he was involved in

an illicit transaction. However, we held

that even if Idowu had been a “trusted”

participant in the transaction, the

government’s failure “to provide evidence

that Idowu knew that drugs were in fact

the subject matter of the transaction”

precluded the jury from inferring that

Idowu had knowledge of the nature of the

deal. Id. at 270. Accordingly, we rejected

the government’s inference that Idowu

must have been aware of the subject matter

of the transaction simply because Ajao felt

comfortable speaking about the transaction

in front of him. We also noted, in passing,

that “it is not uncommon for managers of

clandestine illegal operations to keep their

employees insulated from one another and

from the overall plan of operation so that

they cannot supply evidence against others

involved.” Id. at 269 n.3. 

In this case, as in Thomas, Cartwright

was found to possess a firearm, a pager,

and a cellular phone, and was even

observed talking with Jackson.

Nevertheless, Thomas dictates that, in the

absence of any evidence indicating the

substance of the conversation with

Jackson, any evidence of a prior

relationship with Jackson, or any other

direct evidence indicating Cartwright’s

knowledge, the jury could only speculate

as to Cartwright’s knowledge.5 Moreover,

 

5Accordingly, we also reject the

argument that Cartwright can be inferred

to know that he was involved in a drug

transaction solely from the nature of items

found in his possession at his arrest.

Despite our holding in Thomas, the

government cites to United States v.

Picklesimer, 585 F.2d 1199, 1204 (3d Cir.

1978) for the proposition that firearms are

the tools of narcotics trafficking. In that

case, however, we simply addressed

whether firearms were relevant to show a

narcotics conspiracy for purposes of

admissibility. Picklesimer did not hold

that the presence of firearms was sufficient

to prove a narcotics conspiracy beyond a

reasonable doubt. In fact, contrary to the

government’s assertion, we noted that

guns are often used to protect contraband

in general. Id. (“It often happens that

illegal enterprises, such as narcotic

conspiracies, are ongoing ventures,

requiring the use of guns for protection of

the contraband . . .”). The government

also cites United States v. Ortiz, 966 F.2d

707, 714 (1st Cir. 1992) to suggest that

Cartwright’s two-way messaging device

was an accouterment of the drug trade. In

that case, however, the Court of Appeals

for the First Circuit explicitly stated that

“possession of a beeper is not ipso facto

proof of complicity in the drug trade.” Id.

Rather, the court noted that a defendant’s

possession of such and item during a drug

transaction “‘could justifiably raise the
10

even if we were willing to speculate that

Cartwright arrived at the mall in Jackson’s

car, Idowu indicates that such evidence,

without more, would still be insufficient to

infer that Cartwright knew he was

involved in a drug transaction. As in both

of those cases, there is simply no evidence

in this record from which to infer a

conclusion that Cartwright had knowledge

of the nature of the transaction. 

The government seems to recognize

that Thomas and Idowu do not support its

inference as to Cartwright’s knowledge.

The government therefore argues that we

should instead rely on United States v.

Iafelice, 978 F.2d 92 (3d Cir. 1992) based

on the supposition that Cartwright must

have, at some point, exercised dominion

and control over the cocaine. In Iafelice,

defendant Mark Iafelice was observed

driving his own car to the parking lot of a

hotel in which the DEA had arranged a

controlled purchase of heroin. Iafelice

was accompanied in the car by two

conspirators, John Sinde and Thomas Finn,

and a brown camera bag containing heroin

was located in the trunk. DEA agents

testified that Iafelice was driving through

the parking lot in a suspicious manner

indicative of counter-surveillance. Once

the car was parked, the trunk popped open

from inside the car and John Sinde

retrieved the camera bag. He then walked

into the hotel, met his brother, Richard

Sinde, and then engaged in the transaction

with an undercover DEA agent. The

evidence also indicated that Iafelice, who

remained in his car with Finn, used a

beeper and a cellular phone to

communicate with the Sindes while they

were in the hotel during the transaction.

Reviewing these facts, we held that the

evidence was sufficient to show that

Iafelice knew the camera bag contained

heroin. Although we noted that the use of

the beeper and cellular phone during the

transaction supported the inference that

Iafelice knew drugs were involved, we

held that the “truly distinguishing fact”

was his “ownership and operation of the

vehicle used to transport the drugs.” Id. at

97. We reasoned that “[c]ommon sense

counsels that an owner and operator of a

vehicle usually has dominion and control

over the objects in his or her vehicle of

which he or she is aware, and usually

knows what is in that vehicle.” Id. In

context with the other facts presented, we

concluded that a jury could have

reasonably inferred that Iafelice was in

constructive possession of the heroin and

therefore could have found beyond a

reasonable doubt that he knew that he was

involved in a drug transaction.6

eyebrows of a reasonable jury’ when

viewed in light of the totality of the

evidence.” Id. (internal citation omitted).

 

6

“Constructive possession exists if an

individual ‘knowingly has both the power

and the intention at a given time to

exercise dominion or control over a thing,

either directly or through another person or

persons.’” Iafelice, 978 F.2d at 96

(quoting United States v. Blackston, 940

F.2d 877, 883 (3d Cir. 1991)).
11

The government seizes upon Iafelice’s

rationale and argues that it should apply in

this case as well. In doing so, the

government proposes that we assume an

entire series of events based on the fact

that Cartwright and Jackson both came

from the rear parking lot through the

breezeway of the Bala Cynwyd Shopping

Center at the same time, the fact that

Cartwright acted as a lookout during the

transaction, and the fact that Cartwright

did not possess any car keys. Based solely

on these facts, the government asks us to

draw the following chain of inferences:

(1) that Cartwright arrived in the rear

parking lot with Jackson in Jackson’s

Subaru; (2) that Jackson was unwilling to

leave the cocaine unattended during the

initial meeting with Muhammed El; (3)

that, as a result, Cartwright was designated

to sit in Jackson’s car during this period;

(4) that, in addition be being so designated,

Cartwright was given access to the

cocaine; (5) that Cartwright exercised

dominion over the cocaine; and (6) that,

having exercised such dominion,

Cartwright must have recognized that the

impending transaction involved a

controlled substance. All of this, of

course, could have happened. But so

could countless other scenarios that do not

lead to the ultimate inference the

government seeks to draw.

Our case law “forbids the upholding of

a conviction on the basis of such

speculation.” Thomas, 114 F.3d at 406. In

Iafelice, our conclusion that the defendant

had been in constructive possession of the

heroin was based on observed activity.

Here, however, the government wishes us

to draw the same conclusion based upon

the weakest of facts. The government

presented no evidence of what occurred in

the rear parking lot because that area was

not under surveillance. It would be purely

conjectural for a jury to consider how and

when Cartwright arrived at the rear

parking lot. Furthermore, the government

presented no basis, other than “common

sense,” for a jury to conclude that anyone,

much less Cartwright, had ever been

guarding the cocaine during Jackson’s

initial meeting. Nor is it reasonable to

assume that anyone guarding Jackson’s

Subaru must have been in actual or

constructive possession of the cocaine.7

Moreover, no evidence was presented as to

any of Cartwright’s fingerprints on the

bricks of cocaine, on the blue and white

shopping bag, or inside or outside

Jackson’s Subaru. Nothing in the record

suggested that Cartwright had ever been in

possession of the cocaine or had ever been

 

7

For instance, in United States v.

Terselich, 885 F.2d 1094, 1095 (3d Cir.

1989), the defendant had been a passenger

in a car that was pulled over on Interstate

95. Upon searching the car’s trunk, a state

police officer discovered cocaine in a

secret compartment built into the trunk.

We held that while the defendant had

shared driving and lodging responsibilities

with the driver, and appeared nervous

during the stop, that evidence was not

enough to support the inference that the

defendant knew the cocaine was in the

secret compartment. Id. at 1098.
12

inside Jackson’s Subaru. The substance of

the communication between Jackson and

Cartwright in the breezeway was also

unknown. The government presented no

evidence of any prior relationship between

Jackson and Cartwright, and did not

present any records from Cartwright’s

cellular phone or two-way text messaging

device that could establish such a

relationship. Nor did the government ever

show Cartwright to have previously been

involved in any drug trafficking activities.

We therefore conclude that the

government’s argument is speculative and

not based on any logical or convincing

connectio n to established fact.

Accordingly, we hold that, even when

viewed in a light most favorable to the

government, the evidence was not legally

sufficient to support Cartwright’s

conviction either for conspiring to

distribute, or aiding and abetting the

distribution of, cocaine. Because a

conviction under 18 U.S.C. § 924(c)

requires a finding that Cartwright had

engaged in a drug trafficking crime, we

hold that his conviction on that count was

based on insufficient evidence as well.

IV. Conclusion

For the reasons set forth above, we will

reverse the judgment of the District Court

and remand with instructions to enter a

judgment of acquittal.

NYGAARD, J. dissenting.

I respectfully dissent. Given the totality

of the evidence, I believe the sequence of

events proven by the government

sufficiently supports the inference that

Cartwright was aware he was involved in

a drug transaction. Cartwright was in

direct proximity to the drugs and, while in

such direct proximity, had a conversation

of unknown substance with Jackson, who

was in knowing possession of those drugs.

Additionally, Cartwright first appeared in

the parking lot at the same time Jackson

reappeared with the drugs. After his

conversation with Jackson, Cartwright

immediately took up a look-out position

over the ensuing drug transaction. This

sequence of events creates, in my opinion,

a “logical and convincing connection

between the facts established and the

conclusion” that Cartwright was aware he

was involved in a drug deal. United States

v. Idowu, 157 F.3d 265, 269 (3d Cir

1998)(internal citation and quotations

omitted).

For these reasons I would affirm the

District Court’s judgment.