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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

NO. 03-1466

UNITED S TATES OF AMERI CA

v.

ELLI OT CARTWRI GHT a/k/ a DARYL ATKI NS

Elli ot Cartwri ght Appellant

On A ppeal From the Un ited States Distri ct Court For

the Eastern Dis tri ct of Pennsylvania (D.C. Crim. Action No. 02-cr -00581-2) Distri ct Judge: Hon. James T. Gil es

Argued January

26, 2004
BEFORE: NYGAARD, FUENTES and ST AP LE TO N, Circuit Judges
(Opinion Fi led: March 1, 2004) Patri ck L. Meehan United Stat es Attor

ney Lau rie M agid Deputy U.S. Attorney Robert A. Zauzmer Assist ant U.S. Attorney Kenya S. Mann (Argued) Assist ant U.S. Attorney 615 Chestnut St

reet Suite 1250 Philadelphia, PA 19106 Attorney s for Appell ee Maureen Kearney Rowley Chief FederalDefender David L. McColgin (Argued) Assist ant Federa l Defender Curtis Center - Suite 540 West Independence Squ are West Philadelphia, PA 19106 Attorney s for Appell ant

OPINI ON OF THE COURT

ST AP LE TO N, Circuit

Judge :

Defendant Elli o t Cartwrigh t (“Cartwri ght”) appe als his convict ion and sent enc e, following a jury tri al, for conspir acyto distr i bute c ocain e in violation of

21 U.S.C. § 846 (2001) , ai ding and abett ing the distrib ution o f coc aine in violation of 21 U.S .C. § 841 (2001) and 18 U.S .C. § 2 (2001), and possess ion of a firearm in furt

herance of adrug tr afficki ng
cr im e in viol ation of

18 U.S.C. § 924(c ) (2001). The sole issu e pres ented by this2

appeal is whether

the evi dence prese nted by the governmentat trial w as sufficien t to support Ca rt wr i gh t ’ s c on vi ct i on

. We conclude that t

he evidence a dduced at t rial di d not support

an infer ence tha t Cartwright

knew he was partic ipating in a trans acti on that involved a cont roll ed substanc e, as oppos ed to som e other form
o f contraband. Because we have
cons is tent lyheld th at such proo f is necessary to supp ort a con viction in cases such as this, we will revers e the jud gm ent.

I. Facts and P rocedura l History

On Sep tem ber 27, 2 0 01, a drug dea ler named Prince Muham med El ag reed to coop erate with agen ts fr om t h e P e nnsylva nia Office of the Attorney Ge neral, Bur eau of Narcoti cs Investiga tio n and Drug Con trol, in arr an ging for t he control ledpu rcha se of thr ee kil ograms of cocaine. Muhamm ed El made the arrang eme nts through hi s fri end, Rashi ne Ellis, who in turn contacted her supp lier, Osiris Jackson. Muham m ed El had contact ed Ell is through his t wo-way hand held text mess aging device. 1 During
a recorded te lephone conver sati on late r that day, M uham med El a nd Ellis negotiatedthe te rms of the t ransaction. Muhamm ed El ag re ed to purcha se thr ee kilogr am s of

cocaine for

a price of $90,000. The two also initia llyagreed that

the sale would take pl ace lat er that day at the Houlihan’s or Friday’ s on City Line Avenue in Phil adelphi a. 2 After the initial conversation, Elli s changed the loc ationof the trans acti on to the p ark ing lot of the Bala Cynwyd Shoppi ng Cen ter in Montgo m ery County, Pennsyl vania, just
acro ss th e Ph ilade lph ia city lin e.

Befo re goin g to the shop pin g c enter parking lo t, M u ham med El first m et Ellis at a gas station i n the East Falls secti on of Philadelphia. Muhammed Elwa s
acco mp anie d by Jam es A ver y, a n
un de rcovernarcoti cs agent wit h the Pen nsylvan ia Attorney

General ’ s Office, who posed as Muhammed El’s bodyguard
a nd co nfidant . At the gas station, Muhamm ed El go t out of h is car and entere d Ellis’s sil ver MitsubishiMontero,
a spor t utility

vehicle (the “S UV ”). Muhamm ed El then rode with Ell is t o the shopping center

while Avery

followed th em in M uham med El’s ca r. The tw o vehicl es arri ved at the shopping cent er parking lo t at appr oxi mat el y4: 45 p .m. Ellis parked her

SU V a bou t five to six car lengths from the fr ont door of a Foot

1 M uham med El late r test ifie d that he

u sed the tw o-w ay mess aging devic e i n drug trans act ions to avoid the po ssibility that his co nver sations wo uld be overhea rd by oth ers. 2 During the t elephone call, Muhamm ed El pr ofessed a des ire t

hat the trans acti on take place out in the op en, wh ere there
wo uld b e othe r peo ple to watch and make
sure t h e trans action we nt sm ooth ly. Ellis also sugg ested d uring the telep hon e call that the on ly people wh o w ould be present at the tr ans ac tion would be he rsel f, M uha mm ed E l, and Jac kso n.3

Locker sto re. A gent Avery parked in a space di re ct ly

ac ro ss fr om El li s’ s S UV. At that po int, the parking lot was under gov ern me nt su rve illan ce.

When they

arri ved a t the pa rking lot, Ellis contact ed he r supp lier, Osiris Jackson, us in g he r t

wo- wa y text mes sagin g device. Muhamm ed El then got out of Ellis’s SU V an d w en t to A ge nt A ve ry, who remained i n Muhamm ed El’s car

. Muhamm ed E l tol d Agent Avery t hat he
wo uld give a si gnal by lifting his hat as
soon a s h e saw the cocai ne. Muhammed El then g ot bac k into Ellis ’s S UV

. At that poin t, law enforcement agents o bserved Jackson, empty- handed, walki ng up to the SUV and ge tting into the rear passen gerside seat

. Whi le in si de th e SU V, Muhamm ed El , po in tin g t o A ge nt A ve ry, told Jackson that he hadthe money and asked if Jacks on had the cocai ne. Jacks on said that he did have the cocaine and E llis pron oun ced th at the “ deal is good.” App. at 96a. Jacks on then got out of th e SU V and walked throug h t he breezeway at the
cornerof the mallthat l ed to a no ther parking lot l ocated on t he r ear sid e of the mall. Th e rear parking l ot was not under gov ern me nt su rve illan ce.

Several minutes l ater, Jackson re turned throughthe breezeway , carr yi ng a blue and wh ite pape r shop ping bag m arked with the words “M r. D enim .” Ag ent K enne th Bellis, wh o was conducting s urveil lance for the controll ed trans acti on, obser ved that as Jac kson wa lk e d through t he breeze wa y leadi ng back to the front parking lot an d E llis’s S UV , he was walking side- by- side w ith Defendant Elli ot Cartwright . AgentBelli s observed t hat at
one point , J ackson and Ell is were t alking to each other , and he coul d tellthat “ they
were having so me k ind of c onv ersa tion .” App. at 143a. Jackson and Cart wright walked togethe r thr ough the bree zeway for appr oxim ately thirty feet an d then bega n to separat e. Jackson wa lked out into the parking area t owards Elli s’s SUV and Cartwright

contin ued to wa lk alon g a pa th that ran adja cent t o t he store fronts. Cartwright

stoppedwalking near

the Foot Lock er. His back was faci ng a w all t hat separat ed the Foo t Locke r from the s tore to its left. Cartwright then leaned up against the wall and placed one foot up again st it. He was also l ooking straight ahead, in the directio n of Elli s’s SUV. The SUV w as locat ed about 90 to 100 feet fr om the Foot Lock er.
Meanwhile, Jack son cross ed the park in g lotand, aft er taking a

loaded fi rearm from his waistband, entere d the SUV. Jackson placedthe blue a nd w hite shopping bag on it s side i n the SUV, showing Muha mme d El thre e br icks of c oca ine. Muhamm ed El then gave the pr e-arr anged signaland law
e nforcemen t officer s immediat el y convergedon th e S UV . The agen ts
re coveredfrom Jackson a l oaded fir ear m with a rou nd in the ch amb er, a M otoro la Timep ort two-way t ext messaging devi ce, the blue and white shoppi ng bag contai ning t he cocaine, and the key s to a Subaru vehicl e that

was discover ed in the
rearpark ing lot a nd w as reg iste red i n the
name of Jackso n’s father.4

As the agents co nverged upon E llis’s SUV, Age nt Bellis observ ed Cartwright
remove his foot from the wall andsaw him going “fairly quickly” into t he Foot Locker store

. App. at146a. AgentBelli s radi oed for another ag ent, Edw ard Ro dri g uez, to meet him at the F oot Loc ker. Tog ether, the two agents ent ered the Foot Locker appr oxim ately twenty

to thi rty

seconds after Cartw right. U pon enterin g th e Foot Lock er, they

saw Cartwright

with his back towards them, st anding near clothe s racks locat ed i n the middle of t he stor e. They grabbed Cartw right, patted him down, and
recovere d from him a load ed sem iaut o matic firearm with a round in the cham ber, a cellular phone, $18 0 in cash, and a Motorola Timeport two-way t ext
m es saging device similar to the one
recovere d from Ja ckson. C art wrig ht was not in possession of any car key s.

At Cartw right’ s tri al, the fore going f acts were developed throu gh th e test imonyof M uham med El, Agent A ve ry, Agent Belli s, Agen t R odrig ue z, an d two other law enforcement

agents. In addition, Agent Bellis testified, as an expe rt i n the fiel d of drug traffi cking, that drug de alers
co mm only used lookout s to condu c t counter- survei llanc e in drug t ransactions and that these l ookouts could possess a fi re arm. The only witness to test ify for the defens e w as Bernard Clark, t he assi stant manager of the Foot

Locker, who tol d the j ury that w hen C artw right firs t cam e into the store, he asked a salesw oman a questi on, then looke d at some cl o thing, and then asked t

he sales woma n another que stion

. Cartw right’s defense counsel move d for
a ju dgme ntof a cqu it

ta l unde r Fe d. R. Cri m. P. 29 afte r the cl ose of the govern ment’s case and agai n at the close of all evidence. The Distri ct Court denie d both motions, holding t hat suffi cient evidence exist ed to send t he case t o the ju ry. Cartw right w as fo und guilty on all three counts. He was sentencedto a term of 140 m onths of im prisonm ent, five years of supervi sed rel ease, a

fine of $1, 500, and
a special ass ess ment of $300. Cart wright filed a timely no tice of

appe al.

II. Juris dicti on

The Distri ct Court ha d juri sdict ion over t his case under 18 U.S. C. § 3231 (2001) because Cartw right w as ch arged with offenses again st the la ws of the Unit ed States. We have juris dicti on over thi s app eal pursuant

to 28 U.S.C. § 1291 (2001) because the Dist ri ct Court’s judgmentof convict ion and commitment was a final decisi on.

III. Discussi on

Ca r twright

argues on appea l that the evidence present ed bythe government was insuffi cient

to support

hi s c onvicti on on anycou nt. First , Cartwright cont ends that the governmentfail ed to show that he was
a “look out” for O siris Jackson andthat all of the evi dence prese nted to t he jury was consist ent with his innocence

. A lte rn ati ve ly, Cartwr ig htcl ai ms that even assuming th atth e go ver nme nt ’s evi dence
was sufficient to sup port an infere nce he actedas a lookout for Jackso n, the5

governmentfail ed to show that he knew th at the tr ansacti on involved a control led subs t ance. In review ing Cartw right’s challe nge to the s uffici ency of t he evidence, we ap ply a “pa rticularly defe rential” standar d of rev iew

. United States v. Cothran , 286 F.3d 17 3, 1 75 (3d Cir. 2002) (quot ing United Stat es v. Dent , 149 F.3d 180 , 187 ( 3d C ir . 19 98)). The verdict mu st be su stained if there is substantial evid enc e to s upp ort it. Burks v. United States , 437 U .S. 1, 17 (1978 ); United States v. Bec kett , 208 F.3d 140, 151 (3d Cir. 2000) . “It

is not our ro le to weigh the evidence or

to dete rmine the cre dibility of the witne sses. ” Cothran , 286 F.3d at 175. “W e mu st view the ev idenc e in th e light mo st favo rable to the Government and sustain the verdi ct if any rati onal juror could have found the el ements of t he c ri me beyond a r easonable doubt.” Id.

Under this standard of revie w, we have little diffi culty

concludi ng th at the evidence is sufficient to support a finding that Cartwright

ac ted a s a lookout

for Jackso n. M oreo ver, the re is am ple evidence in the r ecord to s uggest t hat Cartwright

knew he was involved i n an il licit tran sac tion of s om e so rt. T h e evidence showed that Cart wright and Jackson had a conversat ion duri ng a th irtyfo ot walk through t

he breezeway , aft er which Cartwright

was seen taki ng up a posit ion next to t

he Foot Locker and watching the S UV as Jac kson wa lked to it with the blue and white sho ppi ng bag. Cartw right, like Jac kson , was arme d w ith
a sem i-autom atic weapon that was l oaded
a nd h ad a roun d in the cha mber. C artwri ght and Jackson also possess e d simil ar two-way t ext m essaging devices. Mo reover, the jury heard expert t esti mony tha t loo kouts ar e commonly use d in drug trans acti ons of

this ty pe. While ther e may have been a n innocent explanat ion for Cartw right’s ac tiv ity, 3 “[t]he re is no requir ement

. . . t

ha t t he in fe re nc e d rawn by the jur

y be t he only infe rence poss ible
or thatthe government ’s evi dence foreclose ev er y p ossibl e inno cen t exp lana tion .” U

nited St ates v. Iafelice , 978 F.2d 92, 97 n.3 (3d Cir . 1992) ( citing United States v. Sandi ni , 888 F.2d 300, 311 (3d Cir. 1989)). Accordingly , the evidence present ed , vi ewed in the l ight most favo rable t o the g over nm ent, is clearly suffici ent to s upport a finding that Cartwright was acting a s a lookout for Jackson. Our cases dictate, how ever, that
mere lyacti ng as a look out is insufficien t to sustain a con viction for co nspira cy to distribut e, or aidi ng an d ab etting the distribut ion of, a cont rol led substanc e. See, e.g. , United Stat

es v. Sal

mon , 944 F.2d 1106, 1113 (3d Cir . 199 1); United States v. We xler , 838 F.2d 88, 90-92 (3d Cir. 1988). Alt

hough this evidence may be suffici ent to prove th at Cartwright knew he

3 For e xam ple, C artw right as serts th a t
o n these facts, he may ha ve jus t been a
casu al acquaint ance of Jackson who happened to run into him in the parking lot, or he may have been a strange r who
mere lyasked Jac k son a quest ion, or he may have just be en an o rdinary shopper who paus ed to rest

before goi ng abou t his errands.6

was parti cipat ing in s ome sort of i llega l trans acti on, these facts no netheless are i nsuffici ent to pro ve be yond a r easo nable doubt that

Cartwright

knew the transacti on inv olv ed d rug s.

“The elem ents of a conspir acy may be prove n entirely by ci rc ums tanti al evi dence, but each element

of the o ffe nse must be proved b eyon d a r eas ona ble d oub t.” Wexler , 838 F.2d at 90; see als o United States v. Idowu , 157 F.3d 265, 266- 67 (3d Cir. 1998). “One of the requ isite elem ents the government mu st show in a conspi racy
case is that the alle ged conspir ators shared
a ‘u nity of purpose’ , the intent

to achi ev e
a common goal, and an agreem ent to wo rk togethe r toward the goa l.” Wexler , 838 F.2d at 90-91 ( citing United Stat es v. Kates , 508 F .2d 308, 31 0-11 (3d Cir. 1975)); see also Idowu , 157 F.3d at 268. “In order for us to sustain a de fendan t’s convict ion fo r c on sp ira cy, the government must have put fo rth evid ence ‘tendin g to prove that de fenda nt entere d into an agreementand k new that t he agreement had the specific unlawful purpose charged in the indi ctment. ’” Idowu , 157 F.3d at 268 (quoti ng Wexler , 8 3 8 F.2d at 9 1). 4 Applyi ng this rule, “ [w ]e hav e con sistently held in cases of th is gen re that, ev en in sit uations where the defendant k new that he was engaged in i lli cit a ctivi ty , and knew that ‘some form of contraband’ was inv olvedin the s cheme in which he wa s parti cipat ing, the go vern men t is oblige d to prove beyond a r easonable dou bt that the defendanthad knowledge of the parti cular ill egal object ive cont emplated by the
con spira cy.” Id

owu , 157 F.3d at

266-67 (citing United Stat

es v. Thomas , 114 F.3d 403, 405 (3d Cir. 19 97); Wexler , 838 F.2d at 90) . Accordingly, “this court has [consist e nt ly] overtur

ned convict ions for conspir acyin drug poss es sio n and distribut ion because of t he absence of

any evidence that t

he defen dant had knowledg e that drugs were i nvolved. ” Uni ted Stat es
v. M astran gelo , 172 F.3d 288, 293 ( 3d Cir. 1999) (citing Id

owu , 157 F.3d 265; Thomas , 114 F.3d 403 ; Salmon , 944 F.2d 1106; Wexler , 838 F.2d 88; United Stat es
v. Cooper , 5 67 F.2d 252 (3d Cir . 197 7)).

We a lso have overturned ai ding a nd abett ing convictions for parall el reasons. See, e.g. , Salmon , 944 F.2d at 1113; Wexler , 838 F.2d at 92. A convicti on on such a charge “req uires that another committed

the substantive offense and that the one charged wit

h aiding and abett ing knew of the substant ive-offe ns e commissionand a ct ed w ith the in tent to facilitate it. ” Salmon , 9 44 F .2d at 1113 (citing Un ite d States v. Dixon , 658 F.2d 181, 189 n.17 ( 3d C ir. 1981 )); see also United States v. Bey , 73 6 F.2d 891, 895 (3d Cir. 1984 ); United Stat es v. Pea rlstein , 576 F.2d 53 1, 546 (3d Cir. 1978 ). “[A]cti ng with in tent to facil itat e the substantive offense requires that one act ed with the ‘inte nt to he lp thos e invo lved w ith
a certain cr ime.’ ” Salmon , 944 F.2d at 4 M oreover, we have held that “[t]he infere nces rising from ‘keeping ba d
co m pa ny’ are noteno ugh to con vict a defendantfor con spira cy. Wexler , 838 F.2 d at 9 1.7

1113 (q u oting Wexler , 838 F.2d at 92) (emp hasis in original). We have there fore held that a rea sonable j urycould not have had suffici ent ev idenc e to fin d that a defendan t ai ded and abett ed the poss ession and/or di st ributio n of

drugs wh e re “the governmentdid n ot pro ve tha t [t he def enda nt] had knowledge of the [dr ugs ] , had knowledge that

[the co- defen da nt] intende d to dis tribute o r pos sess [dr ugs], or purp osef ully intend ed to a id othe rs in committi ng the crim e a llege d.’” Id. at 1114 (quoti ng Wexler , 838 F.2 d at 9 2).

Base d on th is we ll- establ ished prece dent, the proper

questi on before us with respe ct to bo th the conspir acy and the aiding and abett ing charge s is “whether th ere was suffici ent evi dence that [Ca rtwrig ht] knew that the subject matter of the tr ans acti on was a control led substanc e, ra th erth an s ome other for m of contraband, su c h as stol en jewels or computerchips or

currency .” Idowu , 157 F.3d at 266 . Here , th e go vernment present ed no direct

evidence pr oving that Cartwright

knew he was involved in a drug transa ction. We ha ve recogni zed, howeve r, that “ [i]nfer ences fro m establ ished fact s are acc epted methods of proof when no d irect ev idenc e is ava ilable
so long as t

here exi sts a l ogical and convinci ng conne c tion be twee n the facts establ ishedand the conclusion i nf erre d.” Id. at 269 (quoting United Stat es v. Clemmons , 892 F .2d 1153 , 1159 (3d Cir. 1989); see also Salmon , 944 F. 2d at 1114 (citing United Stat

es v. McNe ill , 887 F.2d 448, 45 0 (3d Cir. 1989)). On the other hand , i n the absenc e of a logi cal and c onvincing con nec tion , i.e

. , where a n infere nce as to a defen dant’s kno wled ge is based upon speculation , o ur case l aw forbids us from upholdi ng his convi ction. See Thomas , 114 F.3 d at 4 06.

The facts of this case u ndo ubted ly evidence the e xiste nce of a conspi racy , at lea st amo ng R ashin e Ellis a nd O sir i s Jackson, to distribu te coc aine. T here is al so no questi on that a dist ribut ion of cocaine ac t ually

occurred. However, the governmentca n point only t o the following facts e stabli shed at tri al as a basis for inferring Cartw rig ht’s kn owledge of a drug dis tribu tion: (1) Cart wright made his first

appearance in the breezeway
a t the same t ime that Jackson was observedcarrying the s hoppi n g bag contai ning the cocai ne ; (2) Cartwright walked side- by- side with Jackson through the breezewayand the two were observed ta lk ing to each ot

her; ( 3) Cartwri ght possesse d a semi-aut om atic firear m, a cell ular phone, $180 i n cash, and a Mo torola Timeport t wo- way tex t messaging devic e; and (4) C artw right did not possess any ke y s to a v ehicle of h is
ow n. There is s imply no logica l and convinci ng connecti on be twe en the se fac ts and the inferenc e the g over nm ent see ks to draw

. Rather, that inference i s bas e d solely on speculation about a poss ible prior relation ship between Cartwri ght and Jackson, abou t how Cartw right go t to the mall, and ab out what Cartwright was doi ng prior to bein g sig hte d with Jacks on, matter s as to whic h there i s no evidence

.
Our conclusi on that t

he foregoi ng facts8

do not supp ort the government ’s inf erence fo ll ows a fortiori

fr om Thomas , 114 F.3d 403 and Idowu , 157 F.3 d 26 5. In Thomas , a drug couri er named Lynch a gr eed to cooperat e wit h law enfo rcem ent officers in cond uct ing a planned dr ug trans acti on. 114 F.3 d at 4 04. Lync h informed the officers th at s he ha d b ee n d ire cte d b y a
man named Peterse n to take a sui tc ase
carr yi ng coca ine to a hotel ro om at th e Atlan ta Air por t Da ys Inn , l eave the suitcase in the hote l room, r eturn t he room keyto the f

ront des k in an en velop e marked “M elvin S mith” or “C ousin M elvin Smith,” a n d t he n l ea ve th e D ays Inn for ano ther hot el. Id

. Ly nch performedas dir ected and t he of fice rs set up survei llanc e of the Day s Inn hote l
ro om. Defendant Thomas then obt ained the roo m k ey fro m th e fro nt d esk , wa s observedent er in g the d es ig nat ed r oom, and was arrest ed upon exit ing. Thomas tol d the offi cers t

hat he was to be pa i d $500 to che ck on a suit c ase at th e hote l, but he de nied havi ng any knowledge that the suit case cont ained co ca ine. When Thomas was arrest ed, he was in posses sion of a cell ular phone, a pager, and a ni n e mil li me te r pistol. In addition, officers
re tri eved from Thom as’s pager the sa m e tele phone number at which Ly nch had earli er calle d P eters en. Fur thermore, P etersen’s phone records also show e d severalcall s to Thomas’s pa ger and cell ular phone, as wellas to Thom as’s home tele phone. We concludedfrom this evidence th at

Tho mas mus t h av e know n that he was somehow involvedin an illicit acti vi ty; however, we held t hat any conclusi on that Thomas knew drugs were in volv ed was speculative. We noted that
even if Pete rsen had spoke n to Thomas prior to the trans acti on, the re was no evidence concerning the su b stance of the phone calls or showing that Thomas had a prior relation ship with Lynch or Pet erson. We therefore reversed Thomas’ s conspir acy c onvicti on.

I n Id owu , one Monadu Ajao had negotiatedto buy

two kilogr ams of

hero in from Abdul Khaliq, an informant working with the United States D rug Enforcement Agency (“DEA ”) . 157 F.3d at 267. The two agreed that the trans acti on would take place at a Quality I nn in Jer seyCity , New Je rse y. Ajao arri ved at the agreed- upon t ime in a Lincoln Town Car driven b y defendantIdo wu

. Aj ao the n spo ke to Kh aliq in the presence of I dowu, although he referre d to th e su bject of the dealas “the stuff” r ather t

han “heroi n” or “dr ugs .” Id. at 267 , 268. D uring th e trans acti on, Id owu opened the trunk of the Tow n Car, removed a brown leather bag fr o m the trunk, and then opened t he b ag t o show Kh aliq $20,000 in cash. Idowu also assured Kh ali q th at al l the money was there. When Khaliq stat ed th at he w ould have to t ake the bag with him, Id ow u told him that he had personaldocu men ts with in it that he wo uld h ave to remo ve. A fte r taking the brow n leath er bag , Kh aliq opened the rear hatch o f his ow n car,
re m oved a black sui tcase t hat had been outfit tedto conta in the heroin i n its lini ng, and placed t

he suit case in t

he sti ll- open trunkof the Tow n Car. Idowu then opened the black sui tcase and, upon seeing nothing inside, told Ajao: “T hey didn’t9

pack this thing. ” Id. at 26 8. Aj ao then to ld Idow u to p ress the suitcas e w it h hi s hands and Khaliq ass ured both of t hem that “something was conc ealed i n the fr ame of the sui tcase. ” Id. Ajao and Id owu were then arrested by DEA agen ts. From these facts, w e con clude d that o nly two infere nces were proper : that Id owu had a pree xisting relation ship w ith Ajao, and that I dowu knew he w as inv olved in
an illicit transac tion. H ow ever, w e held that even if I dowu had be en a “tr usted” par tici pant in the transac tion, th e govern ment’s failure “to provide evi dence that Idowu kn ew that dr

ugs were in fact the subject

matter of the tran sa ction” preclude d the jur

y fr om inferring that Id owu had knowledge of the nat ure of the deal. Id. at 27 0. A cc or di ng ly, we reject ed the govern ment’s infe rence that Id ow u must have b een aw are of the subject matter of the transacti on simply because Ajao felt
co mfo rtable spea kin g about the trans acti on in frontof him. We also not ed, in passing, that “it i s no t uncommon for managers of clandestine ill egal oper ations to keep their employe es insul ated fr om one anotherand from the ove rall plan of oper ation s o that they canno t supply evidence a gainst others involved. ” Id. at 26 9 n.3

.
In this case, a s in Thomas , Cartwright
was found to posse ss a fi rearm, a page r , and a cellular pho ne, and was even observe d talki ng with Jacks on

. Ne ver thele ss, Thom as dictates that, in the absence of any evi de n ce indi cati ng the substanc e of the con v ersation with Jackson, any evi dence of a prior relation ship wi th J ackson, or any ot her direct

evidence indicating C artwright’s knowledge, the jury co uld o nly specu late
as to Cartwri ght’s knowle dge. 5 Mo reover,

5 Accordingly , we also r eject the argumentthat Cartwright can be inf

erred to know that he was involved in a drug trans acti on solel y fr om the nat ur e of it ems found in his posse ss ion at h is arrest. De spite our h oldin g in Thomas , the governmentc i tes t o United Stat es v. Pickles imer , 585 F .2d 1199 , 1204 (3d Cir. 1978) for the pr oposit ion that fi re arms are the tools o f narc oti cs traffi cking. In that case, howeve r, we simply addresse d whetherfi re arms we re re le va ntto sh ow a narcoti cs conspir acy for pu rposes of ad m iss ib ilit y. Pickles imer did n ot ho ld that the pr es enc e of

fi re arms was suffici ent to prove a narc otics conspir acy be yond a
rea so nable doubt. I n fact, contrar y t o the govern ment’s assertion, we not ed that guns are oft en us ed to prot ect cont raband in gen eral. Id. (“It

often happens that ille gal enterp rises, suc h as n arcotic
co ns piracies, are ongoing ve ntures , requiring the use of guns for prot ecti on of the contraband . . . ”). The gove rnment also ci tes Un ited Sta tes v. O rtiz , 966 F.2d 707, 714 (1st Ci r. 1992) to su ggest t hat Cartw right’s two-way messa ging d e vice
was an accouter

ment of the dr

ug trade. In that cas e, ho we ver, the Co urt of A ppea ls for the F irst Circu it explic it ly stat ed that “possess ion of a b eepe r is not ipso facto proof of c om plici ty in the dru g tra de.” Id. Rather, th e court noted that a defen dant’s possessi on of such and it em during a drug transa ctio n “‘could j usti fiabl y r aise t he10

even if we were will ing to s pec u late that Cartwright

arri ved at the mall in Jack son’s car, Idowu indicates t

hat such evi denc e , withoutmore, would st illbe insufficien t to infer th at Cartwrig htkne w he wa s involved in a drug tr an sa ct io n. As in bo th of those cases, there is simp lyno evidence in thi s record from which to infer a conclusi on that Cartwright had knowledge of th e na ture of th e tran sac tion

.
The government see ms to recogni ze t hat Thomas and Idowu do n ot sup port i t s infere nce as to Cart

wright’ s knowledge. The governmen t th er ef

or e a rg ue s t

ha t we shou ld inst ead rel y on United Stat es v. Iafelice , 978 F.2d 92 (3d Cir. 1992) based
on the sup position that Cartwright must have, at som e poin t, e xercis ed dominion and controlover the c ocaine. In Ia feli ce , defendantMark Iafeli ce was observed drivi ng his own carto the parking l ot of a hotel inwh ich th e DEA had arranged a contro lledpurchase of heroin. I afeli ce
was acco mp anied in the ca r b ytwo
cons pir ators, John Sinde and Thom as Finn , and a brow n cam era bag conta ining h eroin
was located in the tru n k. D EA agen ts test ifie d that I afeli ce was dr iving t hrough the parking l ot in a s uspici ous mann e r indicative of cou nt er-sur veill ance. Once the carwas parked, t

he trunk popped

open from insi de the car

and John Sinde retrievedthe camera ba g. He then walked into the hote l , met his broth er, Richard Sinde, and then engaged in the t ransact ion with an undercover

DEA agent

. The evid e nce also i ndicat ed that Iafel ice, who remainedin hi s car wit h Finn, us ed a beeper and a c ellular p hone t o
com mu nicate with the Sindes while t hey
were in the hot el duri ng the tra nsacti on. Rev iewin g these fa cts, we held that the evi dence wa s sufficient to s how th a t Iafel ice knew the camera bag con ta ined heroin. Although we noted that the use of the beeper and cel lular phone during t

he trans acti on suppor ted the inf erence t hat Iafel ice kne w drugs wer e i nvo lv ed , w e held that t

he “truly di sti ng uis hing fact”
was his “o wn ership and operati on of the vehic le used to trans port t he drugs. ” Id. at 97. We reasoned that

“[c]om mon s ense
coun sels that an owner and operator of a vehic le usuall y has dominion and cont rol
over the objects i n his or he r vehicl e of which he or she is a wa re, and usua lly kno ws what is i n that ve hicle .” Id. In conte xt w ith the o ther fa cts pr es en te d, we concluded t hat a j urycould have
re aso nably inferre d that Ia felice w as in constr uctive possessi on of the her oin and the refore could have found beyond a
reaso nable doubt that

he knew that he was involved in a drug tr ansacti on. 6

ey eb ro ws o f a reasonabl e jury ’ when viewed in li ght of the total ity of t he evid enc e.” Id. (int er nal citation omitted). 6 “Co nstruc tive po ssessio n exis ts if an indivi dual ‘kno win gly has b oth the power and the intentio n at a g iven tim e to exercise dominion or

controlover a thing, eithe r directly

or through anot

her pers on or persons.’” Iafelice , 978 F. 2d at 96 (quoti ng U

nited St ates v. Blackston , 940 F.2d 87 7, 883 (3d Cir. 1991 )).11

The government sei zes upon Iafelice ’s rationa le and argues that it shou ld app ly in this case as w ell. In doing so, the governmentproposes t hat we assume an entire ser ies o f events ba sed on the fa ct that Cartwright

an d J ack sonbot

h came from the rear parki ng lot t hrough the breezewayof th e Bala Cynwy d Shopping Centerat the same time, the fact that Cartwright

acted as a lookout during the tr ansacti on, and the fact that Cartwrigh t did not pos sess any c ar k eys. Bas ed so lely
on these f

acts, the gov ernm ent ask s us to dr a w the following chain of inferences: (1) that Cartwright

arri ved in the rear par kin g lot with Jackso n in Jackso n’s Subaru; (2) tha t Jacks on w as un willing to leave t he cocaine unat tended during the initial meeting w it h Muhamm ed El; ( 3) that, as a res ult, Cartwright was designat ed to sit in Jack son’s car du ring this pe riod; (4) that, i n addition be being so designat ed, Cart wr ightwas given acces s to the cocaine; (5) that Cartwright exercised dominion over the coca ine; an d (6) th at, having exerci sed such d ominion , Cartwright

must have rec ognize d that t he impending tra nsacti on involved a control ledsub stan ce. All of this , of course, could have happened . But so could countle ss other

scenari os that

do not l ead to the ultimat e infer ence the gov ernme ntse ek s t o dr aw.

Our case law “forbids the upholding of
a convi ctionon the basi s of such spe cula tion .” Thomas , 114 F.3d at 406. In Iafelice , our conclus ion that the defendant had been in const

ructi ve possess ion of

the hero in was based on o bse rved ac tiv ity. Here, however, the government wishes us to draw the same conclusion base d u pon the weakes t of facts. The government present ed no evide nce o f w hat oc curred in the rear parking l ot because that area was not under surv eillan ce. It wo uld b e pur ely conject ural for a jur

y t o consider

how and when Cartw right arriv ed at t he r ear parking lot. Further

more, the government present ed no basis, other t han “ com mon
sen se,” for a jury

to concl ude that

anyone, much less C artw rig ht, ha d ever been guarding the cocaine during Jac kson’s initial meeting. N or i s it r easo nable to
as sum e that anyone gu arding Jack son’s Subaru must have b e en in act ual or
cons tructi v e possessi on of the cocaine. 7 Mo reover, no evidence was pr esented as to anyof Cartwright ’s fi ngerpri nts on the bricks of co caine , on the blue a nd w hite shopping bag , or insi de or outs ide Jackson ’s Sub aru. Noth ing in the record suggeste d that C artw right ha d eve r been in possessi on of the cocaine or had ever been

7 For i nstance, in United Stat es v. Terselich , 885 F .2d 1094 , 1095 (3d Cir. 1989), the defendant

had been a passenger in a car that was pull ed over on Int er st ate 95. Up on se archin g the c ar’s trun k, a state police officer

discove r ed cocaine in a
se cret compartment bui lt i nto the t runk. We held that while t

he defendant had shareddrivi ng and lodging r esponsibi lities with the dri ver, and a ppea red nervous during the st op, th at evi dence was not enoug h to support

the inf erence t hat the def endan t knew the cocaine was in the
sec ret co mp artm ent. Id. at 1098.12

insi de Jackson’s Subaru. The substanc e of the communicati on between Jackson and Cartwright

in the breezeway was also unknown. The governm e nt pres ented no evidence of anyprior re lationsh ip between Jackson and Cartwright , and di d not present any r ecords fr om Cartwright ’ s cell ular phone or two-way

text mess aging device that c o ul d establ ish such a relationshi p. Nor did the gove rnment ever show Car twri ght to have previous ly been involved in any drug trafficking acti vities.

We theref

ore concl ude that

t he govern ment’s argu men t is speculative and not based on any

logica l or co nvi ncing
co nnecti o n to est ablis hed fact

. A cc or di ng ly, we hold t h at, even when viewed in a ligh t mo st favor able t o the gov ernm ent, the ev idenc e w as no t legally suffici ent to suppor t Cartw right’ s
con victi on either for co nspirin g to distribut e, or aid ing and abetting t he dis tributionof, cocaine. Because a
co nvicti on under 1 8 U.S .C. § 924 (c ) requir es a findi ng that Cartwright had engaged in a dru g traffickin g cr im e, we hold that his convi ction on t

hat count was base d on insufficien t evide nce a s we ll.

IV. Conclusi on

For the reaso ns set forth ab ove, w e w ill
reverse the judgm ent of the D istrict Court and remand with instructions to e nter a judg men t of ac quittal. NYG AAR D, J. di ssenting.

I respect fully

dissent . Given the tota lity of the e vid ence, I belie ve the seque nce of
even ts prove n by t he g overnmen t suffici ent ly supports the inf erence t hat Cartwright

wa s aw are he wa s invo lved in
a drug tr ansacti on

. Cartw right w as in direct proximit y t o the drugs and, w hile in such dir e ct proxi mity , had a conver sati on of unknown substance with Jackson, who
was in knowing posses sion of those drugs. A dd itio na lly, Cartw right f i rst app eared in the parking l ot at t

he same ti me J a ckson reappear ed with the dr ugs. Aft er his conversation with Jacks on, Cartwright i mme diately took up a look- out posi tion
over the ensui ng drug tr an sac tion. T his sequence of ev ents cr eat es , i n my opinion,
a “logic al and convi ncing connect ion between the fact s esta blis hed and the conclusi on” that Cartwright was aware he
was invo lved in a dru g dea l. United Stat es
v. Id owu , 1 57 F. 3d 2 65, 269 (3 d Ci r 1998)(i nternalcitation and quot ations omitted).
For these reaso ns I would affi rm the Dis trict C our t’s ju dgm ent.