United States v. Frank Martin , 920 F.2d 345 ( 1990 )

NATHANIEL R. JONES, Circuit Judge,

dissenting.

I would reverse both Martin’s conspiracy conviction and his conviction for possession with intent to distribute. Therefore, I respectfully dissent.

I.

After viewing the evidence in the light most favorable to the prosecution, and fully aware that a defendant challenging the sufficiency of the evidence carries a heavy burden, however, I am strongly of the view that a rational trier of fact could not have found the essential elements of a conspiracy to possess and distribute cocaine beyond a reasonable doubt. “[T]he essential element of conspiracy is that ‘the members of the conspiracy in some way or manner, or through some contrivance, came to a mutual understanding to try to accomplish a common and unlawful plan.’ ” United States v. Pearce, 912 F.2d 159, 161 (6th Cir.1990) (citation omitted). “With respect to the proof of conspiracies involving drugs, to obtain a conviction under [21 U.S.C.] section 846, the government must prove the existence of an agreement [by two or more persons] to violate the drug laws and that each conspirator knew of, intended to join and participated in the conspiracy.” Id. (citing United States v. Stanley, 765 F.2d 1224, 1237 (5th Cir.1985)). The government has failed to present sufficient evidence from which a rational jury could have found that Martin and Carroll had entered an agreement to violate the drug laws. The record does not contain evidence sufficient to show that Martin and Carroll had entered any type of agreement, tacit or otherwise, to possess and distribute cocaine. Nor is their evidence in the record showing that Martin “knew of, intended to join and participated in [a] conspiracy.”

I fully realize that “circumstantial evidence alone is sufficient to sustain a conviction.” United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.1989) (citation omitted). Further, I am aware that inferential proof and circumstantial evidence are “the norm in drug conspiracy prosecutions.” United States v. Green, 548 F.2d 1261, 1266 (6th Cir.1977) (citation omitted). Unlike cases such as Ellzey, however, the record in the present case does not contain sufficient evidence from which a rational jury could have found the existence of a tacit or mutual understanding between Martin and Carroll to engage in a common plan to possess and distribute cocaine. See Ellzey, 874 F.2d at 328 (evidence included numerous contacts between co-conspirators over three-year period); United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir.1986) aff’d, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (evidence that a defendant transported cocaine and helped arrange sales sufficient to support conspiracy charge). The present case is more analogous to the situation presented in United States v. Pearce, 912 F.2d 159 (6th Cir.1990).

In Pearce, defendant Thorpe was found inside a crack house during a police raid near an open floor drain containing two doses of crack. Thorpe was armed and other weapons were found in the house. The police also found defendant Pearce sitting on a couch in the living room. Next to Pearce on the couch was a bag containing the registered bills which an informant had earlier used to purchase crack and a bag containing crack cocaine. This court reversed the conspiracy conviction because there was no evidence, other than the fact that Thorpe and Pearce were in the house at the same time, to support a finding of an agreement between the two. Pearce, 912 F.2d at 160-62. I am frank to say that the evidence in the present case is somewhat stronger than the evidence present in Pearce. Like the circumstantial evidence in Pearce, however, the circumstantial evidence against Martin in this case is also insufficient.

Martin was traveling with Carroll. Martin and Carroll were traveling under false names. Martin fled the scene when confronted with officers’ knowledge of Carroll’s guilt. These facts are insufficient for a rational jury to infer an agreement to possess and distribute cocaine. Even if Martin’s testimony regarding his association with Carroll is discredited as the majority suggests, Martin’s presence with Carroll at the time of Carroll’s arrest is not sufficient to support a conspiracy conviction. See, e.g., Pearce, 912 F.2d at 162 (defendants’ presence at house during raid without more held insufficient); United States v. Nusraty, 867 F.2d 759, 764 (2nd Cir.1989) (mere presence at scene of an aborted drug transfer is insufficient to prove a conspiratorial agreement). Also, it is true that the use of an alias when purchasing plane tickets may be probative of an intent to avoid detection in airport drug trafficking. United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1 (1989). Carroll, not Martin, however, called the airport to reserve the tickets.

Although it appears that Martin was aware of Carroll’s use of false names in obtaining their tickets, there is no evidence indicating that Martin knew that Carroll was using false names in an attempt to evade drug detection. See id. (there are certain instances where traveling under an alias would not reflect ongoing criminal activity); cf. United States v. Williams, 503 F.2d 50, 54 (6th Cir.1974) (“‘Mere knowledge, approval of or acquiescence in the object or the purpose of the conspiracy, without an intention and agreement to cooperate in the crime’ is not sufficient to make one a conspirator.”) (citation omitted). Finally, Martin’s association with Carroll coupled with Martin’s flight at the airport could not constitute the evidence necessary to support a conspiracy to possess and distribute cocaine. See United States v. Pintado, 715 F.2d 1501, 1504 (11th Cir.1983) (“neither mere presence nor presence at the scene in conjunction with fleeing or hiding from officers of the law alone will support a conspiracy conviction”) (citation omitted).

To be sure, Martin’s association with Carroll presented suspicious circumstances. Further, Martin’s conduct after he and Carroll deplaned may have been suspicious also. “Suspicious circumstances, however, are not enough to sustain a conviction for conspiracy.” Nusraty, 867 F.2d at 763. “In most instances, this court requires firm evidence of at least tacit coordination among conspirators in affirming conspiracy convictions.” Pearce, 912 F.2d at 162 (citations omitted). See also United States v. Hyson, 721 F.2d 856, 862 (1st Cir.1983) (no conspiracy although defendant knew drug dealers, occupied apartment of one drug dealer and knew drugs were in apartment he occupied); Williams, 503 F.2d at 54 (no agreement where evidence against defendant was that he was in motel room emptying plastic bags into toilet). Firm evidence of at least a tacit coordination between Martin and Carroll is absent from the present case. The government’s case against Martin was based upon the summation of inference upon inference upon inference. I cannot say that all of these inferences are legitimate. United States v. Adamo, 742 F.2d 927, 932 (6th Cir.1984), cert. denied sub nom. Freeman v. United States, 469 U.S. 1193, 105 S.Ct. 971, 83 L.Ed.2d 975 (1985) (draw all legitimate inferences in favor of prosecution). Martin was not convicted of conspiracy because he had a mutual understanding with Carroll to possess and distribute cocaine nor because he knew of, intended to join, and participated in a conspiracy. Martin was convicted of conspiracy because he was associated with Carroll.

II.

Likewise, I do not believe that a rational trier of fact could have found that Martin possessed cocaine with intent to distribute beyond a reasonable doubt. In order to be found in violation of 21 U.S.C. § 841(a)(1), one must possess cocaine with intent to distribute. Nusraty, 867 F.2d at 766 (emphasis added). The majority acknowledges that Martin did not have actual possession of the cocaine. I also do not think that Martin had constructive possession of the cocaine. See United States v. Blasco, 702 F.2d 1315, 1330 (11th Cir.), cert. denied sub nom. Galvan v. United States, 464 U.S. 914, 104 S.Ct. 275, 78 L.Ed.2d 256 (1983) (“ ‘The hallmark of constructive possession is some measure of dominion and control over the contraband.’ ”) (citation omitted); Williams, 503 F.2d at 52 (“ ‘Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.’ ”) (citation omitted); United States v. Maspero, 496 F.2d 1354, 1359 (5th Cir.1974) (mere presence in area of contraband or awareness of its location is insufficient to establish possession). Notwithstanding the lack of possession, the majority holds that the evidence supports a finding that Martin aided and abetted a criminal venture, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The evidence does not support such a finding, nor does it demonstrate that Martin associated himself with Carroll’s venture “in a manner whereby he participate^] in it as something that he wishe[d] to bring about and [sought] by his acts to make succeed.” United States v. Quinn, 901 F.2d 522, 530 n. 6 (6th Cir.1990) (citation omitted).

The majority also holds that the jury could have properly convicted Martin of possession of cocaine with intent to distribute under the doctrine of Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946). Because I do not think that a rational trier of fact could have found Martin guilty of conspiracy to possess and distribute cocaine, I do not think that the Pinkerton doctrine was appropriate in this ease.

III.

Our nation’s policy of ridding this country of the evils of illegal drugs is necessary and commendable. Illegal drugs have had and continue to have a devastating effect upon the lives of countless persons in this country, including, unfortunately, our youths. This policy, although admirable, does not alter the well-established principle that in a criminal prosecution, the government must prove every element of the charged crime beyond a reasonable doubt. United States v. Carr, 550 F.2d 1058, 1059 (6th Cir.1977) (per curiam).

So to say that this is not an easy case would be a gross understatement. However, after careful consideration, I am simply not persuaded that the government carried its burden in this case. Affirming Martin’s convictions relieves the government of its burden in a way not permitted by the law. Furthermore, I have a growing fear that casting a conspiracy net will become a catch-all method charging anyone caught in the vicinity of illegal drugs. Such a catch-all could then be used to convict purely innocent persons, albeit unintentionally. The government’s burden of proof is not lessened when cocaine is involved. Therefore, I respectfully dissent.