The HONORABLE JOHN C. GODBOLD, United States Senior Circuit * Judge for the Eleventh Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

_____________ No. 98-1382

_____________ UNITED STATES OF AMERICA, * * Plaintiff-Appellee * * Appeal from the United States v. * District Court for the Southern * District of Iowa LORENZO QUINTANAR * * Defendant-Appellant *

____________ Submitted: June 9, 1998 Filed: July 28, 1998

____________ Before LOKEN, Circuit Judge, GODBOLD, and HEANEY, Senior Circuit * Judges.

____________ GODBOLD, Senior Circuit Judge Lorenzo Quintanar was convicted of possession of methamphetamine wit h intent to distribute, 21 U.S.C. § 841(a)(1). The sole issu e on appeal is the sufficiency of the evidence to show that he was in constructive possession of the2

methamp hetamine. Quintanar’s motion for judgment of acquittal was denied. W e hold that the evidence of constructive possession was insufficient and reverse hi s conviction. Quintanar and co-defendant Leonel Macias, a.k.a. Juan Guzm an, were charged in Count I with conspiracy to possess methamphetamine, 21 U.S.C. § 846(a), and in Count II with possession with intent to distribute, 21 U.S.C. § 841(a)(1). For reasons unrelated to this appeal

trials of the two defendants were severed. Macias was tried separately and acquitted on both counts. He was the only named person alleged to be a co-conspirat or. Therefore, at Quintanar’s trial the court instructed the jury that to fi nd Quintanar guilty of the conspiracy charge it must find that he conspired with

someone other than Macias. The jury acquitted Quintanar of the conspiracy charge and returned a verdict of guilty on the possession charge of Count II. The following evidence

was presented at Quintanar’s trial which the jury was entitled to accept, though many of the details that con cerned Quintanar were disputed by him. The methamphetamine involved was brought by UPS from an address i n California and delivered to the home of Diane Hoffman, in a package addressed t o Pablo Arredondo, Hoffman’s former boyf riend. Arredondo had recently parted from Hoffman and, reputedly, had gone to Mexico. Hoffman had agreed that he could send mail to her address.3

About a week before the arrival of the package on March 21 Ho ffman attended

a party at the home of the defendant. Defendant asked her address and wrote it on the back of a business card. Later she saw another man put the card in his wallet
. Defenda nt asked again for her address, saying that he had lost the one previousl y given. She asked why he wanted the address, and he referred to being i n correspo ndence with Pablo in Mexico. At the party Quintanar also introduce d Hoff man to his friend, Leonel Macias. Macias did not speak English and could not communicate with Hoffman. She saw Macias again at a disco. She descri bed Macias

as “like a follower, following [Quintanar] around” (Tr. 61); “[Macias] followe d [Qui ntanar] around like a puppy” (Tr. 65). Macias lived in Quintanar’s house. Id.
. She never heard Quintanar and Macias talk about methamphetamine. At some time – exactly when is not clear – Hoffman enlisted Quintanar’s help in trying to locate Pablo in Mexico. A few days after the party defendant came t o Hoffman’s house several times and discussed with her the possibility of her working for him o nce he established a proposed bail bond business. Also he asked her t o order for him a quantity of MSM, a medication for horses, and he asked to have i t sent C.O.D. t o her home. She called a pharmaceutical company to find out wha t MSM was. She did not comply with Quintanar’s request. The day before the package was delivered Hoffman picked up Ma cias from the4

home of a friend and brought him to meet Quintanar, who had come to her hous e ostensibly to use her computer and look at some of her law books. When she an d Macias reac hed her home she found that Quintanar had borrowed her truck an d departed. On March 21 Quintanar and Macias came to Hoffman’s home together
. Hoffman saw Macias going through her garbage can. At about the same time she saw Quintanar, behind her house, cleaning out his car. He and Macias removed item s from the car and placed them in a box in her carport. Later she discarded the box. Later the same day Quintanar asked Hoffman to go with him to guide him to an automobile repair sh op for a repair to his car. She complied. While they were at the shop Hoffman received a pager t elephone call from Michelle Connett, a friend of Hof fman’s, who had come to her house after Hoffman and Quintanar had departed. Connett told Hoffman that a package had arrived at the house ad dressed to the former boyfriend, Pablo Arredondo. Diane had not expected a package. She instructe d Con nett to bring the package to her at the repair shop. At Hoffman’s home Macias had take n possession of the package and kept it under his supervision and control
. He loade d the box into the back seat of Hoffman’s car, where he sat and, wit h Connett driving, the two went to the re pair shop site. Hoffman was suspicious about the package, and before the others arrived she told Quintanar that there was5

something wrong with the package, a nd she questioned him about it, although at that point n arcotics were “the furthest thing from [her] mind.” Defendant told her i t contained papers for Pablo coming from California. She responded that Pablo ha d not lived in California for seven years, and she told Quintanar that when the bo x arrived at the repair shop she was going to open it, so he just might as well tell her the truth. Quintanar then told her that there were drugs in the box, “[he] asked me just to give – just to turn the box over to him, not to destroy him.” He then asked he r what she wanted, whether she wanted “a cut [of the d rug] or if [she] wanted money.” When the car arrived Connett was driving and Macias was in the rear seat with the box, which was covered by a jacket. Hoffman opened the door, grasped Macias by the shirt and p ulled him from the car, jumped in the car and “told Michelle to get out of there.” Neith er Quintanar nor Macias made any verbal or physical attempt to stop Hoffman from driving away with the package still in the car. Hoffman and M ichelle drove to the police station with Michelle at the wheel. Hoffman aske d to be directed to the narcotics unit, turned the box over to a n interviewing officer and reported to him that it had come to her house, that Connett had brought it to her, that she was not sure what was in the box but that Quintana r had told her it contained drugs. The officer opened it and found that it contained a plastic sealed bag, which contained methamphetamine.6

Neither Qu intanar’s name nor his address was on the box. He never touched it or handled it. He was never in the Hoffman home or in the car with the package. It was broug ht from Hoffman’s house to the repair shop at the direction of Hoffman and in her car. When the package arrived at the garage site, under the control o f Macias, Quintanar did not receive or touch it and it had remained in the car. MSM is a nutritional supplement for horses, com monly used as a cutting agent to be mixed with methamphetamine in order to increase th e amount of the product for sale. Evidence showed that earlier Quintanar and Macias had gone together to a horse tack shop and purchased MSM. Officers searched Quintanar’s home pursuant to a warrant and found unopened containers of MSM, plus a spoon, a strainer, and a mixing bowl. The status of Macias is central to the case. In the first trial, of Macias only , Macias was acquitted on both counts. In the second trial, of Quinta nar only, the court without objection instructed the jury three times that it co uld not find Quintanar guilty of con spiracy unless it found beyond reasonable doubt that he had reached a n agreement or understanding with some person or persons other than Macias t o commit the offense of knowingly and intentionally distributing methamphetamine. The government does not contend that Quintanar was in actual possession of the methamphetamine. He was not charged with the substantive offense of attempt7

to possess the amphetamine nor was he charged with aiding and abetting. Th e government’s case strai ghtforwardly rests upon constructive possession. Therefore, for th e jury to find Quintanar guilty, the government was required to prove tha t Quintanar intended to exer cise dominion over the methamphetamine, that he had the power to exercise dominion, and that he knew he had the power to exercis e dominion. See U.S. v. Thomas , 53 F.3d 1318, 1322-23 (8 Cir. 1995); U.S. v. Johnson , 18 F.3d th 641, 647 (8 Cir. 1994); U.S. v. Wesley , 990 F.2d 360, 364 (8 Cir. 1993). Th e

th th government’s evidence fell s hort of proving beyond reasonable doubt that Quintanar had the power to exercise control or dominion over the drugs at any given time. The evidence does not tend to show that Quintanar himself had the power to exercise dominion. In a physical sense the material was never where he coul d exercise dominion or control. There is no evidence that he owned th e metha mphetamine. It was not brought to the site at his direction or in his vehicle
. Connett was not acting on his behalf but at the direction of H offman. Macias had, for

a short ti me, physical possession and control. But before Quintanar could asser t dominion or control of the package it was ph ysically removed from the possession of Macias and taken to the police station. The most a jury coul d find beyond reasonable doubt was that Quintanar had intent and an unrealiz ed hope to gain possession. With Macias excluded from consideration, this case is a paradigm of lack of power to8

exercise control and dominion. The government suggests some other facts about Quintanar’s own actions as the b asis for an inference of power. It posits that a reasonable jury could fin d constructi ve possession beyond reasonable doubt because he had bought MSM and had asked Hoffman to order MSM for him. These purchases are evidence supporting

a conclus ion of defendant’s intent, but they have no substantial relationship t o exertio n of power and dominion over the package. The same problem exists wit h resp ect to the government’s suggestion that constructive possession could be based upon evidence of Quintanar’s association wit h known drug dealers and users. It also proposes that Quintanar “probably” scheduled the delivery to Hoffman’s house. The evidence tel ls us no more than that the package came from an address in California, the identity of the shipper is unrevealed. The most a jury could find beyon d reasonable doubt was that Quintanar intended to exercise dominion and control once the material reached H offman’s address and was surrendered by UPS, but before he

cou ld carry out his plan the package was intercepted by the owner of the consignee premises and turned over to the police. At trial and before

this court the government focuses upon evidence of power to co ntrol exercisable by others who had physical possession and with who m Quintanar was sufficiently associated that he can be said to have been in constructive9

possession. “[T]he essence of constructive po ssession is not direct, physical control, but the ability to reduce an object to actual possession; otherwise, constructiv e possession woul d have no meaning at all . . . . It is enough if one person i s suf ficiently associated with another having physical possession that he is able t o produce a controlled substance for a customer.” U.S. v. Holm , 836 F.2d 1119, 1123 (8 Cir. 1988). To meet the requirement of “sufficient association with a perso n th having control,” th e government relied upon a theory that Quintanar was engaged in a conspira cy with a person having physical possession. It was precluded, however, from rel ying upon Macias as the co-conspirator having actual possession becaus e Macia s had been acquitted on both the conspiracy and possession charges, an d accordingly the court instructed the jury that it might find a conspiracy, but only with some person other than Macias. The government’s effort failed. Counsel argued to the jury tha t some person who delivered the package to UPS in California an d directed it to Hoffma

n’s home address had actual possession and control and was in such relation to Quintanar as to make his possession attributable to Quintanar. But

no such pe rson was known, or identified, and the circumstances of his possibl e possession and delivery and his relationship to Quintanar are a mystery. It is arguably possible that, apart from his status (as a possible co-conspirator), Macias was in some other relationship with Quintanar that made his actual possession attributable to10

Quintanar as constructive possession. No s uch theory was advanced at trial, no jury instruction given and no such argument was made to the jury, nor was that theor y presented on appeal. Quintanar’s conviction and sentence must be, and are, REVERSED.

A TRUE COPY.

ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.