PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ANTHONY DEXTER WASHINGTON, 

II, a/k/a Tony Washington, 

 Defendant - Appellant. 

No. 14-7017 

_________________________________ 

Appeal from the United States District Court 

for the Eastern District of Oklahoma 

(D.C. No. 6:13-CR-00010-RAW-1)

_________________________________ 

Neil Darin Van Dalsem, Taylor, Ryan, Minton, Van Dalsem & Williams, P.C., Tulsa, 

Oklahoma, for Defendant-Appellant. 

Linda A. Epperley, Assistant United States Attorney, (Mark F. Green, United States 

Attorney, and Kyle Even Waters, Assistant United States Attorney, with her on the brief) 

Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee. 

_________________________________ 

Before LUCERO, BACHARACH, and MCHUGH, Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

_________________________________ 

This appeal grew out of a car trip from Oklahoma City to McAlester, 

Oklahoma. The driver was the defendant, Mr. Anthony Washington; the 

FILED 

United States Court of Appeals

Tenth Circuit 

April 22, 2015

Elisabeth A. Shumaker 

Clerk of Court

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passenger was his friend, Mr. Maurice Edwards. The car was a rental 

borrowed from Mr. Edwards’s mother. 

Inside the car were roughly 7.5 kilograms of marijuana and 28 to 29 

grams of methamphetamine. Upon discovering the drugs, authorities 

charged Mr. Washington and Mr. Edwards with (1) possession of 

controlled substances with intent to distribute and (2) aiding and abetting 

that offense. The jury found both men guilty, and the court entered a 

judgment of conviction for possession of controlled substances with intent 

to distribute. 

The two men appealed, and we have affirmed Mr. Edwards’s 

conviction. United States v. Edwards, __ F.3d __, No. 14-7028, 2015 WL 

1296624 (10th Cir. Mar. 24, 2015). We now must decide Mr. Washington’s 

appeal. In this appeal, Mr. Washington argues in part that the evidence was 

insufficient to link him to the drugs. We agree and reverse and remand 

with instructions to dismiss the indictment.1

 

1

 Mr. Washington also raises issues involving evidentiary rulings, 

prosecutorial misconduct, and jury instructions. We need not address these 

issues in light of our conclusion that the evidence is insufficient for guilt. 

Because the evidence of guilt was insufficient, retrial would be barred by 

the Double Jeopardy Clause. United States v. Jones, 44 F.3d 860, 870 (10th 

Cir. 1995). Thus, on remand, the district court would have no need to 

address the issues involving evidentiary rulings, prosecutorial misconduct, 

or jury instructions. 

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I. Our Standard of Review 

 Our review is de novo. United States v. Prince, 647 F.3d 1257, 1268 

(10th Cir. 2011). In conducting this review, we draw all reasonable 

inferences in favor of the government. Id. We then must decide if these 

inferences could lead a rational jury to find guilt beyond a reasonable 

doubt. Id.

II. The Drugs

 The trunk of the car contained a black duffel bag, which held 

fourteen bricks of marijuana and a receipt issued to Mr. Edwards. Drugs 

were also stored in three closed containers found in the car: a red “ColdEeze” box, a black zipper bag, and a “Green Tea Extract” bottle. 

III. Culpability of Mr. Washington

 From the large quantity of marijuana and methamphetamine in the 

car, the jury could have inferred that one of the two men was going to 

McAlester to sell drugs. We have elsewhere held that the jury could have 

easily tied Mr. Edwards to the drugs. United States v. Edwards, __ F.3d __, 

No. 14-7028, 2015 WL 1296624, at *5 (10th Cir. Mar. 24, 2015). After all, 

he had fourteen bricks of marijuana in his duffel bag. But, Mr. Edwards’s 

culpability might not translate to Mr. Washington’s. In this appeal, we 

must decide whether the government sufficiently tied Mr. Washington to 

the drugs. 

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A. The Government’s Burden of Proof 

 We view the strength of that tie based on the charge: possession with 

intent to distribute and aiding and abetting that offense. For this charge, 

the government had to prove that Mr. Washington knew there were drugs in 

the car. If he knew about the drugs and had access to them, he could have 

been guilty of possession with intent to distribute. See United States v. 

Norman, 388 F.3d 1337, 1341 (10th Cir. 2004). Or, if Mr. Washington 

drove Mr. Edwards to McAlester, knowing Mr. Edwards was going to sell 

the drugs, Mr. Washington might have been guilty of aiding and abetting 

the possession with intent to distribute. See United States v. Jones, 44 F.3d 

860, 869-70 (10th Cir. 1995). Under either theory, however, the 

government had to prove that Mr. Washington had known about the drugs. 

 To establish Mr. Washington’s knowledge, the government had to 

present evidence of a nexus between Mr. Washington and the drugs in the 

car. See United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 

1998) (“To prove constructive possession when there is joint occupancy of 

a vehicle, the government must present direct or circumstantial evidence to 

show some connection or nexus individually linking the defendant to the 

contraband.”). His presence in the car was not enough. See United States v. 

Castorena-Jaime, 285 F.3d 916, 933 (10th Cir. 2002). 

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B. The Government’s Evidence 

 The government admits that “[Mr.] Washington had no drugs on his 

person at the time of arrest, his personal property did not contain drugs and 

no fingerprint evidence was located nor any confession obtained.” 

Appellee’s Resp. Br. at 49. Nonetheless, the government argues that the 

evidence supports the finding of guilt because 

 drugs and scales were in the rental car, 

 the car smelled of marijuana and aluminum foil was present 

near Mr. Washington’s notebook (trial arguments), and 

 Mr. Washington packed the car with Mr. Edwards, knew that 

Mr. Edwards lied to his mother, and knew that Mr. Edwards 

was bringing numerous heavy bags for a short trip (appellate 

arguments). 

We reject each argument. 

 1. The Drugs and Scales in the Car 

 The car was not Mr. Washington’s; it was a rental that Mr. Edwards 

borrowed from his mother. Though Mr. Edwards had fourteen bricks of 

marijuana in his duffel bag, there were no drugs (or anything else 

incriminating) in Mr. Washington’s duffel bag. 

 There were drugs in a “Green Tea Extract” bottle, a red “Cold-Eeze” 

box, and a black zipper bag. But, there was no evidence that 

Mr. Washington could have seen inside these containers. See p. 11, below. 

 There were also two scales in the car, and the government presented 

evidence that drug dealers often use scales to weigh their drugs. Record on 

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Appeal, vol. 2 (Trial Transcript), pt. 1, at 178, 193. But, these scales were 

not easily visible. One was in a black box, and the other was designed to 

look like an ordinary iPhone. There was no evidence that either scale was 

Mr. Washington’s or that he even knew there was a scale in the car. 

2. The Prosecutor’s Arguments at Trial 

 In closing argument, the prosecutor referred to two pieces of 

evidence: the smell of marijuana in the car and the presence of aluminum 

foil near Mr. Washington’s notebook. Both pieces of evidence suggest 

consumption, not distribution. 

 If the car smelled like marijuana, perhaps Mr. Washington might 

have smoked marijuana during the trip. And, if he did smoke marijuana in 

the car, he might have suspected or even known that there was more 

marijuana stashed in the car. 

 The problem is there was no evidence that Mr. Washington could 

have known there was enough marijuana for someone to sell. Though the 

government presented evidence of a marijuana odor, no one testified 

whether the odor had involved burnt marijuana or raw marijuana. See Oral 

Arg. at 34:19-34:30 (government counsel’s admission that she had been 

unable to find evidence stating whether the smell involved burnt 

marijuana). Apparently, there was enough marijuana for someone to smoke 

during the car trip. But, there was no evidence indicating that the smell 

would have alerted a passenger to the presence of a distributable quantity 

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of drugs. See id. at 34:30-34:49 (government counsel’s admission that the 

smell of burnt marijuana “may not” speak to whether Mr. Washington 

could have known there were bricks of marijuana in the car); see also 

United States v. Sanchez-Mata, 925 F.2d 1166, 1168 (9th Cir. 1991).2

 The prosecutor also referred to the presence of aluminum foil in 

Mr. Washington’s duffel bag. But, the evidence regarding aluminum foil 

involved only drug consumption, not distribution.3

 Mr. Washington was not 

convicted of merely consuming or possessing drugs; he was convicted of 

 

2

 There the defendant was riding in a car. Sanchez-Mata, 925 F.2d at 

1167. An agent smelled marijuana from outside the car and found duffel 

bags containing 141 pounds of marijuana. Id. The defendant was convicted 

of conspiracy to possess marijuana with intent to distribute. Id. The Ninth 

Circuit Court of Appeals reversed based on insufficiency of the evidence. 

Id. at 1168. At trial, the prosecution presented evidence that the defendant 

had known “what marijuana smelled like and must have recognized the 

strong odor present.” Id. But, knowledge of the smell did not suffice, for 

“knowledge that drugs [had been] present [was] not enough to prove 

involvement in a drug conspiracy.” Id. 

3

 Officer DeLana was asked if he knew of any possibility that the 

aluminum foil would be used for “drug activity.” Record on Appeal, vol. 2 

(Trial Transcript), pt. 2 at 278. Officer DeLana answered: “It could be used 

to smoke methamphetamine.” Id. He repeated this explanation: 

Q. Okay. Is it safe to say aluminum foil is consistent with 

 narcotics use? 

 

 A. Yes. 

 Q. And you said it was to used [sic] to smoke methamphetamine? 

 A. Yes. 

Id. at 279. 

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possessing drugs with the intent to distribute them or aiding and abetting 

that offense. And, there was no evidence for a jury to infer an intent to 

distribute from the presence of aluminum foil. 

 Finally, the prosecutor argued that when Ms. Bethany Kendall and 

Mr. Washington had seen the police near the car, everybody had become 

nervous, Mr. Washington had hidden his phone in her room, and no one 

had asked the police why they were hovering near the car. Record on 

Appeal, vol. 2 (Trial Transcript), pt. 2, at 373-74. This argument is based 

on a mistake about Ms. Kendall’s testimony. 

 The actual testimony was that Ms. Kendall and Mr. Washington had 

seen “a bunch of cop cars.” Id. at 287. Ms. Kendall did not testify that the 

police were near the rental car4

 or that Mr. Washington had hidden his 

phone in her apartment.5

 Ms. Kendall added that there was a set of car keys in her daughter’s 

shoes. Id. at 290. From this fact, Ms. Kendall “guess[ed]” that one of the 

two men had hidden his keys in the shoe. Id. We have no evidence about 

which man hid the keys or why this act would suggest Mr. Washington’s 

knowledge about the quantity of drugs in the car. 

 

4

 Record on Appeal, vol. 2 (Trial Transcript), pt. 2, at 292-93. 

5

 She did testify that two cellphones had been left out in the open in 

her apartment. Record on Appeal, vol. 2 (Trial Transcript), pt. 2, at 289. 

But, the police took Mr. Washington from the apartment. Id. at 288-90. 

There is nothing to suggest that he intentionally left his cellphone behind. 

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3. The Government’s Appellate Arguments 

 The government adds that the jury could have inferred 

Mr. Washington’s knowledge from 

 his presence when Mr. Edwards lied to his mother about why 

 they needed to borrow the car, 

 the oddity of bringing so many heavy bags for an overnight trip 

to McAlester, and 

 indications that the two men were together when the car was 

 packed. 

Appellee’s Resp. Br. at 50 (arguing that Mr. Washington “stood by while 

Edwards lied to his mother about going to Arkansas”); Oral Arg. at 38:00-

38:26 (arguing that the heavy luggage was too extensive for an overnight 

trip by two friends); Appellee’s Resp. Br. at 48 (arguing that the two men 

must have been together when “the bags and drugs and packaging 

materials” were loaded into the car). The first two arguments are based on 

mistaken interpretations of the trial testimony, and the third is insufficient 

to infer knowledge. 

 The first argument is based on the testimony of Mr. Edwards’s 

mother. She testified briefly about why she had loaned the car to 

Mr. Edwards: 

 Q. . . . Who actually asked you to borrow the vehicle? 

 A. Maurice [Edwards] asked me to borrow the vehicle for 

 Tony [Washington] to be able to go see his newborn 

 baby. 

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 Q. Okay. And do you remember where that newborn baby 

 was located? 

 A. To my knowledge, Arkansas. 

Record on Appeal, vol. 2 (Trial Transcript), pt. 2, at 299. But, she added 

that this discussion had taken place over the phone. Id. at 300. There was 

no evidence that Mr. Washington was on the telephone call or otherwise 

present with Mr. Edwards when he asked to borrow the car. Indeed, when 

the mother was asked if she had any discussion with Mr. Washington about 

using the car, she said that the only conversation took place the next day 

when she “told him to be safe and all that good stuff.” Id. at 302-03. 

 The government’s second argument is also based on mistakes about 

the testimony. At oral argument, the government argued for the first time 

that Mr. Washington could have been suspicious because of the quantity of 

heavy luggage that Mr. Edwards was taking for a short trip to McAlester.6

But there was no testimony about how long the two men were planning to 

stay in McAlester. 

 

6

 The government stated at oral argument: 

I think what you can look at is the fact that we have two guys 

that are supposed to be going on a short trip for the weekend. 

You know, a night, two nights. Their jeans are not even packed 

in the bags. And . . . and it just seems like, I was sitting here 

this morning, it just seems like a lot of bags for guys to go just 

on an overnight trip. It certainly seems like a lot of heavy bags 

. . . . 

Oral Arg. at 37:59-38:26. 

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 Finally, the government argues that the two men must have been 

together when they put their belongings in the car. Appellee’s Resp. Br. at 

48. But, even if Mr. Washington was present, what would he have seen? A 

black zipper bag, a red “Cold-Eeze” box, a “Green Tea Extract” bottle, and 

a black duffel bag? There is no evidence suggesting that Mr. Washington 

knew what was inside these four items. 

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 According to the government, Mr. Washington would have seen a 

false-bottomed container, labelled “Puncture Seal,”7

 in the back seat. Id.

But there were no drugs in this container. Record on Appeal, vol. 2 (Trial 

Transcript), pt. 1 at 196, 241. 

IV. Conclusion 

 The jury could attribute guilt to Mr. Washington based solely on his 

presence in the car and speculation about his knowledge of Mr. Edwards’s 

plans.8

 But the presence of Mr. Washington and speculation about his 

knowledge, even in combination, would not constitute sufficient evidence 

for the jury to find guilt beyond a reasonable doubt. See p. 4, above. Thus, 

we reverse the conviction and remand with instructions to dismiss the 

indictment. 

 

7

 The container’s bottom consisted of a metal ring that had been 

unscrewed. Record on Appeal, vol. 2 (Trial Transcript), pt. 1, at 195-96. 

8

 The government also presented evidence that an unidentified woman 

had called “911,” stating she saw Mr. Edwards and Mr. Washington leaving 

for McAlester with marijuana and methamphetamine. But, the government 

admits that this evidence was not admissible to prove the truth of what the 

caller had said. Appellee’s Resp. Br. at 29. 

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