United States v. Terrance Jones

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1497
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
T ERRANCE JONES,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:10-cr-00096-4—Joan B. Gottschall, Judge.
A RGUED D ECEMBER 3, 2012—D ECIDED A PRIL 9, 2013
Before W OOD and H AMILTON, Circuit Judges, and
D ARROW, District Judge.Œ
H AMILTON, Circuit Judge. We have often said that after
a guilty verdict, a defendant seeking a judgment of ac-
quittal faces a “nearly insurmountable hurdle,” e.g.,
United States v. Moore, 115 F.3d 1348, 1363 (7th Cir. 1997),
Œ
The Honorable Sara Darrow of the Central District of Illinois,
sitting by designation.
2 No. 12-1497
but the height of the hurdle depends directly on the
strength of the government’s evidence. The Constitution
requires the government to prove guilt beyond a reason-
able doubt. Jackson v. Virginia, 443 U.S. 307, 313-14 (1979).
If a reasonable jury could not find guilt beyond a rea-
sonable doubt, the court may not enter judgment on
a guilty verdict.
A jury found Terrance Jones guilty of possessing
cocaine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1) and of using a telephone to facilitate posses-
sion of cocaine with intent to distribute in violation of
21 U.S.C. § 843(b). Jones moved for a judgment of
acquittal under Federal Rule of Criminal Procedure 29.
The district court granted Jones’ motion, concluding
that “the inferences the jury had to draw in order to
reach a guilty verdict fall into the realm of impermissible
speculation.” United States v. Jones, 2012 WL 366893, at *12
(N.D. Ill. Feb. 1, 2012). The government has appealed
and asks us to reinstate the jury verdict. We affirm the
district court’s judgment. We agree with the district
court that the government’s circumstantial case against
Jones simply required too much speculation to support
a guilty verdict beyond a reasonable doubt.
I. Jurisdiction and Standard of Review
We have jurisdiction to consider this appeal under
18 U.S.C. § 3731 and 28 U.S.C. § 1291. We review de novo
the grant of a Rule 29 motion. United States v. Presbitero,
569 F.3d 691, 704 (7th Cir. 2009). The district court
properly grants such a motion when the “evidence is
No. 12-1497 3
insufficient to sustain a conviction.” Fed. R. Crim.
P. 29(a), (c). When reviewing the sufficiency of the evi-
dence, we ask “whether, after viewing the evidence in
the light most favorable to the government, any rational
trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson, 443 U.S.
at 319; Presbitero, 569 F.3d at 704. The inquiry does not
ask what we would have decided if we were on the
jury. We need not be convinced by the evidence our-
selves. Our inquiry is whether a reasonable jury con-
sidering the evidence in the light most favorable to
the government could have found each element of the
offense beyond a reasonable doubt. United States v.
Moore, 572 F.3d 334, 337 (7th Cir. 2009).
The government’s case against Jones was entirely
circumstantial. No witnesses testified that they saw
Jones in possession of any cocaine, and the intercepted
telephone calls that the government relies upon were
not tied directly to actual or constructive possession
of any cocaine. Entirely circumstantial cases are not
unusual, of course, and they certainly can provide con-
stitutionally sufficient proof beyond a reasonable doubt.
“A verdict may be rational even if it relies solely on
circumstantial evidence.” Moore, 572 F.3d at 337. In
such cases we, like the district court here, must
carefully consider each inference necessary to prove all
elements of the offense. We do not suggest that there is
a bright line between reasonable and unreasonable in-
ferences from circumstantial evidence, but there is a
line. The government may not prove its case, as we
have said, with “conjecture camouflaged as evidence.”
Piaskowski v. Bett, 256 F.3d 687, 693 (7th Cir. 2001).
4 No. 12-1497
A Rule 29 motion calls on the court to distinguish
between reasonable inferences and speculation. Each
step in the inferential chain must be supported by
evidence that allows the jury to “draw reasonable in-
ferences from basic facts to ultimate facts.” Coleman v.
Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2064 (2012).
“Although a jury may infer facts from other facts that
are established by inference, each link in the chain of
inferences must be sufficiently strong to avoid a lapse
into speculation.” Piaskowski, 256 F.3d at 693. We “will
overturn a jury verdict for insufficiency of the evidence
only if the record is devoid of evidence from which a
reasonable jury could find guilt beyond a reasonable
doubt.” United States v. Stevenson, 680 F.3d 854, 855-56
(7th Cir. 2012).
II. The Government’s Theory of the Case and the Trial Evidence
The government’s case against Jones arose from an
investigation of Dominique Finley’s drug organization
in Chicago. In 2008, the Federal Bureau of Investigation
and the Chicago Police Department began investigating
Finley’s drug organization using physical surveillance,
controlled buys using confidential informants, and even-
tually Title III wiretaps. The affidavit seeking authority
for the Title III wiretaps did not identify Jones as
a target or person of interest in Finley’s organization.
Tr. 246-49.
The investigation showed that Finley led an extensive
drug conspiracy. The government eventually indicted
No. 12-1497 5
Finley and several of his cohorts on multiple charges
arising from the conspiracy. Jones, however, was not
charged or indicted as a part of the overarching con-
spiracy. He was charged only with two specific
offenses based on the events of one day: June 17, 2009.
He was charged with possession of cocaine with
intent to distribute and with use of a telephone
to facilitate that possession. The government’s case
against Jones focused exclusively on the events of
June 17, 2009.
The government’s theory was that Finley had obtained
a kilogram of powder cocaine early in the day on June 17,
2009. He then met with an undercover government in-
formant who asked to buy 63 grams of crack cocaine.
Based on this order, the government argued, Finley
needed someone to “cook” some of the cocaine into
crack cocaine so that he could complete the sale to the
confidential informant.
The government’s theory was that Finley telephoned
both his regular “cooker,” Clarence Johnson, and Jones to
see if either or both would cook the cocaine for him.
The government argued that its interpretation of two
recorded telephone conversations between Jones and
Finley, detailed below, showed that Jones agreed to
cook the cocaine. From there, the government argued
that Jones’ comings and goings throughout the day,
as well as his exit from a particular residence at
1447 South Christiana with Finley, proved beyond a
reasonable doubt that Jones cooked the cocaine for
Finley inside the South Christiana residence.
6 No. 12-1497
No witness testified that Jones cooked any cocaine or
was ever in possession of any cocaine. The surveillance
team saw Jones exit the residence with Finley and then
get into Finley’s car with him. The surveillance team
had not seen Jones enter the South Christiana residence.
After their exit, police attempted to stop Finley’s car.
Finley tried to escape, and the police started a chase.
Police officers saw Finley throw a bag from the car. The
bag was recovered and turned out to contain crack
cocaine. The police in pursuit eventually forced Finley
to stop the car. Finley ran away on foot; Jones remained
with the car. Finley was caught, but the police later al-
lowed both men to leave the scene. The government
does not contend that Jones had actual or constructive
possession of the crack cocaine that Finley threw from
his car.
Since this case turns on whether the inferences leading
to a guilty verdict based on circumstantial evidence
were reasonable or speculative, we must review the gov-
ernment’s evidence in detail. The government argued
that the telephone conversations and surveillance of
both Jones and Finley showed that Jones (1) purchased
the necessary chemicals and gathered the necessary
supplies and utensils to cook the cocaine, and (2) then
actually cooked the cocaine for Finley at the South
Christiana residence. At trial, the government presented
tapes and transcripts of the conversations intercepted
by the wiretap on Finley’s telephone, testimony from
two of Finley’s co-conspirators, and testimony from
law enforcement officers who conducted surveillance
of Finley.
No. 12-1497 7
Finley and Jones first spoke at 2:00 p.m. on June 17, 2009.
The conversation went as follows:
Jones: What up, cuz?
Finley: Where you at?
Jones: I’m on Concord.
Finley: Doin’ somethin’?
Jones: What you say?
Finley: Doin’ somethin’?
Jones: Yeah, yeah, at all times, at all time.
Finley: Get this punk out a here, man. I need you,
man.
Jones: Okay. I’m always available for my family,
man, even though you treat me like shit. I’m
on Concord, where you at?
Finley: I’m gonna come that way, man on the real. I
need uh, I need you uh, to do that what you
done for Sonny for me.
Jones: Come bend on me, Joe, you on yo’ way?
Finley: Yeah.
Doc. No. 298, Call No. 5881. The government argued that
this telephone conversation formed the basis for the
charge of using a telephone to facilitate possession
with intent to distribute, arguing that the jury could
reasonably infer from Finley’s reference to “Sonny” that
Jones had cooked crack for Sonny in the past. The gov-
ernment did not present any evidence as to who Sonny
8 No. 12-1497
was or what Jones might have done for him in the past.
The government argued to the jury that this conversa-
tion “got things rolling.” Tr. 558, 592.1
At 2:20 p.m., police officers saw Finley inside his
parked car talking to Jones, who was outside the car. At
2:35 p.m., Finley called Johnson, his regular cooker. At
trial, Johnson testified that he had cooked crack for
Finley in the past and that Finley called him on June 17
to ask him to cook for him. This conversation was inter-
cepted by the wiretap and presented to the jury. See
Doc. No. 298, Call No. 5409. Johnson and Finley then
met at Finley’s grandmother’s house where, Johnson
testified, Finley again asked Johnson to cook for him.
Johnson said he made up an excuse not to do it because
he did not want to cook for Finley on that particular day.
At 2:45 p.m., Finley spoke with Eric Ollison on the
telephone and asked for a “computer,” which a police
officer testified is a code word among drug dealers for
a scale to weigh drugs. See Doc. No. 298, Call No. 5892.
Ollison and Finley arranged to meet each other at
a park. This conversation was presented to the jury as
well. See Doc. No. 298, Call No. 5894.
Returning the focus to defendant Jones, the wiretap
intercepted a series of calls between Finley and Jones
from 3:24 to 3:26 p.m.:
1
The government originally charged Jones with another
count of use of telephone to facilitate possession with intent
to distribute based on a later conversation but dropped
that charge before trial. Doc. No. 188.
No. 12-1497 9
Jones: Yo, what up cuz.
Finley: Say when you say I can get that from uh,
Walgreens or somethin’?
Jones: Yeah, you ready?
Finley: I just asked you a question, man.
Jones: Yo, I’m takin’ you where you gotta go, man,
‘cuz I’m handlin’ this. So what’s up?
Finley: C’mon, man, yes or no, man. Goddamn, big
homey, I ain’t never known a mother fucker
that can’t ask a simple question though, man.
Jones: Uh, Walgreens don’t got it Joe.
Finley: That what I’m trying to see though, CVS or
somethin’.
Jones: [Unintelligible] at the crib?
* * * *
Finley: I just ask you do you know where CVS at,
man?
Jones: I don’t know where CVS, and they don’t got
‘em either, Joe. [Unintelligible] and tell me
fuck me and I will tell you where they at,
Joe. Cause I don’t like this type a shit.
Finley: Man Joe all bullshit aside man. C’mon, man.
Just said I’m tryin’ to get back witcha and
I’m tryin’ find some, man. You treat me
like that. This is where it’s at, man. You
doin’ somethin’ man and I ain’t got time to
10 No. 12-1497
[unintelligible] dick around at all these
places, man.
Jones: Okay I’m fittin’ to do it for you. Go, go get it
from Walmart.
Finley: You say the Walmart?
Jones: Yeah.
Finley: Thank you, man. Damn.
Jones: You don’t know which one though.
* * * *
Jones: [Unintelligible] man. You need me.
Finley: Man, get up off my line man, I just asked you
a simple question, take that long to answer,
man.
Jones: I was tellin’ you I’m tryin’ to knock it out for
you though, Joe.
See Doc. No. 298, Call Nos. 5903-05. The government
argued to the jury that these conversations show that
Jones and Finley were involved in a joint venture to
obtain chemicals and equipment to cook powder cocaine
into crack.
Finley was next observed by police at 3:52 p.m. Officers
saw Jones approach Finley and get into his car. The
two drove off together but the police did not follow
them. At trial, an officer testified that a CVS, Wal-Mart,
and Walgreens were all in the area, but he did not offer
any testimony that he saw Finley or Jones enter or leave
any of those stores.
No. 12-1497 11
At 4:06 p.m., police saw Finley (but not Jones) outside
a residence in the 5900 block of West Huron Street with a
different unidentified man who was holding a bag. At
5:00 p.m., police saw Finley and Jones driving in Finley’s
car westbound on Douglas Boulevard. The police next
saw Finley’s empty car parked at the corner of 15th
and Christiana.
Around 5:15 p.m., police saw Finley exit the residence on
South Christiana. Between 5:13 and 5:32 p.m., Finley and
Jones had another series of calls. The first was at 5:13 p.m.:
Jones: What up, cuz?
Finley: Hey to 16th and Ridgeway right quick and
pick my girl up. She gonna walk to the cor-
ner.
Jones: Alright. She out there right now?
Finley: Yeah, she fittin’ to walk up there right now.
Jones: Alright.
Finley: 16 and Ridgeway.
Doc. No. 298, Call No. 5916. The next call occurred at
5:21 p.m.:
Jones: Yo.
Finley: You down there?
Jones: [Unintelligible] I’m right around the corner
from you.
Finley: I didn’t hear you.
12 No. 12-1497
Jones: I said I’m right around the corner from you
[unintelligible], so she can find them, find
the blender for me.
Finley: She ain’t found it yet?
Jones: No, we lookin’ for it now. My cousin, who
crib this is, she gonna walk around the cor-
ner. I’m right on the next block from you.
Your girl ain’t got [unintelligible] she
can’t bring [unintelligible]?
Finley: I don’t know if she got no blender, man.
Doc. No. 298, Call No. 5922. The next call was at 5:24 p.m.:
Finley: Hey, Homey.
Jones: What she say?
Finley: She ain’t got no blender, man.
Jones: Alright, we get one from my other cousin
right here. Tyretta, ho, ho, man. I’m like here
on the next block tryin’ to get a blender.
I got this, just chill.
Finley: C’mon man.
Jones: Come on Joe, oh my momma don’t start
whinin’, Joe.
Finley: ’Cuz you supposed to have all this, man.
How you gonna come to me. Man, you
ain’t got nothin’ here, man.
Jones: I got, I told you I had the blender. I just
didn’t have the pieces. I didn’t know that
No. 12-1497 13
‘cuz I ain’t did nothin’. You see I got the
blender. I thought I had the pieces.
Finley: Why don’t you just go grab her first, man,
‘cuz she’s sittin’ right there on the corner,
man.
Jones: That’s all on your mother fuckin’ mind.
Money don’t matter to you.
Finley: C’mon, man, if I knew all this, man, I would
a just, man, stayed where I was, though,
man, ‘cuz you ain’t got nothin’ here, man.
Doc. No. 298, Call No. 5927. Their next calls occurred
between 5:28 and 5:29 p.m.:
Finley: Damn.
Jones: I’m on my way to your girl now, man. What
she on the corner supposed to be two
blocks away.
Finley: Yeah, man.
Jones: MOB, man. MOB.
* * * *
Jones: Where your girl at, man?
Finley: What?
Jones: I’m on 16th and Ridgeway, man. I don’t see
your girl.
Doc. No. 298, Call Nos. 5929-30. At 5:32 p.m. Finley and
Jones spoke again:
14 No. 12-1497
Finley: Big Homey, what you just say?
Jones: I’ll holler at chu.
Finley: Did you get that?
Jones: That’s mandatory. I got that first.
Doc. No. 298, Call No. 5935.
At 5:30 or 5:45 p.m., officers saw Finley return to
1447 South Christiana with an unidentified woman.
Neither was seen carrying anything into the house.
Within the hour, a Buick dropped off a second
unidentified woman who approached the residence,
might have entered, and then quickly returned to the
Buick and drove away. At trial, the officer responsible
for surveilling the South Christiana residence was
unable to pinpoint the exact time he saw Finley enter
the South Christiana residence, testifying that it was
“Approximately 5:30, 5:45 somewhere in that neighbor-
hood.” Tr. 337.
Officers did not see Jones enter 1447 South Christiana
and did not know how long he was actually inside the
residence. At 6:30 or 6:45 p.m., officers saw Finley, the
first woman, and Jones exit the residence, get into
Finley’s car, and drive southbound on Christiana toward
16th Street. Finley and Jones dropped the woman off
and continued driving. At trial, the officer doing surveil-
lance was unable to testify to the exact time he saw
Jones and Finley exit the residence at South Christiana.
He testified that it was, “probably around the area of
like 6:30, 6:45. I don’t have the times committed to mem-
No. 12-1497 15
ory.” Tr. 338.2
At 7:00 p.m., officers attempted a traffic stop on Finley’s
car. Finley tried to evade the police, who pursued
him. During the chase, Finley threw a clear plastic bag
out of his car window. It landed in an alley where police
officers later found it. Finley finally stopped the car
and ran away, but an officer eventually caught him.
Jones got out of the car but did not attempt to flee.
Both Finley and Jones were allowed to leave the
scene without arrest.
The bag Finley threw out the window contained
86.8 grams of crack cocaine packaged in portions
ranging from 3 to 25 grams. The cocaine was adulterated
with sodium bicarbonate and a chemical used by veter-
inarians. There were three latent fingerprints on the
bag, but none belonged to Jones. The bag of cocaine
was the only physical evidence presented by the gov-
ernment against Jones.
2
These were not the only instances in which the surveillance
team was unable to provide precise times of Jones’ and Finley’s
movements, although these details were important for the
government’s case. The district court noted this troubling
weakness in at least two other instances, commenting that
the officer’s “testimony on direct examination as to precise
times was often vague, and only through the testimony
elicited by Jones’ counsel on cross-examination is the court
able to pinpoint with any certainty when certain events
took place.” United States v. Jones, 2012 WL 366893, at *5 n.5
(N.D. Ill. Feb. 1, 2012).
16 No. 12-1497
At 7:32 p.m., Finley contacted Ollison and told him
to meet him at the park. Ollison testified that he could
tell by Finley’s voice that something was wrong. He
also testified that at the park, Finley told him that the
police had chased him and he had thrown his drugs out
the window. Tr. 484. In a later conversation, Finley
asked Ollison to go back and look for the drugs he
had thrown in the alley. Ollison told Finley that he
would go back and look but he did not know what part
of the alley to search. Finley also told Ollison that the
police were still around watching.
The following calls were intercepted by wiretap
when Jones was with Ollison looking for the crack and
talked to Finley on the telephone. At 8:19 p.m.:
Jones: We fittin’ to double back, Joe.
Finley: Double back where?
Jones: Over there. You know what I’m sayin’? We
thought you, you know what I’m sayin’? You
know? [Unintelligible]
Finley: I just called him and told him, man.
Doc. No. 298, Call No. 5988.
At 8:24 p.m., Ollison called Finley, and at some point
during the conversation, Jones took the telephone and
began talking to Finley. The government relies most
heavily on Jones’ “weeped us” comment in the transcript
of that call:
Finley: Yeah.
Ollison: Where you at?
No. 12-1497 17
Finley: Over here by the P.
Ollison: By the P?
Finley: Yeah.
Jones: I, I think Homey and them weeped us, Joe.
Remember we walked pass Homey and them
by that alley, ‘cuz I just, we went back there
and tore it up, Joe. And, we didn’t give a
fuck, Joe. You know what I’m sayin’?
Homey done weeped us, Joe. ‘Cuz they,
where they hangin’ at they could see a
straight shot, when we walked past them
by the alley, I’m like, man let’s go this way.
I think they weeped us, Joe. They had to,
man, ‘cuz they right there too deep. You
know what I’m sayin’?
Finley: Right, right. I think they peeped us too
though on the real, ‘cuz they was on that
other block too.
Jones: Right, right, yeah. They, they let their people
know we just tore that mother fuckin’ thing
up, man. You know what I’m sayin’? That
little bushes all that shit. You know big ass
white bag ain’t, ain’t hard to miss, man.
Finley: Come over, here. I’m gonna tell y’all what
all over here.
Jones: Alright.
Doc. No. 298, Call No. 5991. The government argues
that the jury could reasonably infer from Jones’ use of
18 No. 12-1497
the word “us” in the phrase “weeped us” that he partici-
pated in cooking Finley’s crack and that use of the
plural “us” implied joint ownership and possession of
the crack.
The last call that day occurred at 11:31 p.m. between
Ollison and Finley. Finley asked Ollison if Jones might
have stolen his drugs. Ollison assured him that Jones did
not. See Doc. No. 298, Call No. 6027.
III. Legal Analysis
A. The Charged Offenses
To prove possession of a controlled substance with
intent to distribute in violation of 21 U.S.C. § 841(a)(1), the
government had to present evidence sufficient to show
beyond a reasonable doubt that Jones knowingly and
intentionally possessed a controlled substance with
intent to distribute it to another person. United States v.
Campbell, 534 F.3d 599, 605 (7th Cir. 2008). The govern-
ment’s theory is that Jones possessed the cocaine inside
the South Christiana residence, where the government
believes he cooked powder cocaine into the crack that
Finley took with him in the car. (The government did
not try to prove that Jones had joint possession of the
cocaine when he was in the car with Finley.)
To prove the use of a communication facility in
causing and facilitating possession of a controlled sub-
stance with intent to distribute in violation of 21 U.S.C.
§ 843(b), the government had to prove beyond a rea-
sonable doubt that (1) either Jones or Finley committed
No. 12-1497 19
the underlying possession offense, and (2) Jones
knowingly and intentionally used a telephone to
facilitate that possession. United States v. McGee, 408
F.3d 966, 985 (7th Cir. 2005) (explaining that “the gov-
ernment must prove the commission of the underlying
offense to obtain a conviction on a charge of telephone
facilitation”) (citation omitted); United States v. Mueller,
112 F.3d 277, 281-82 (7th Cir. 1997) (“[A] defendant
cannot be convicted of using a telephone to facilitate a
drug offense unless the defendant also aids or abets, or
attempts to commit, the drug offense itself.”). The gov-
ernment relies on the first intercepted call between
Finley and Jones on June 17, when Finley said he
needed Jones to “do that what you done for Sonny for me.”
The government was not required to prove its case
with direct evidence, of course, such as a witness who
saw Jones cooking crack cocaine or handing a package
to Finley. The question is whether the circumstantial
evidence allows a reasonable conclusion, beyond a rea-
sonable doubt, that Jones possessed cocaine with
intent to distribute it and/or used a telephone to
commit the unlawful possession or to help Finley do so.
B. The Inferential Chain
We start with the common ground. Based on Finley’s
recorded conversations with the confidential informant
during the controlled buy, as well as police surveillance
of Finley, it was reasonable to infer that Finley had a
kilogram of powder cocaine on June 17, 2009. Based on
the same evidence, it was also reasonable to infer that
20 No. 12-1497
Finley wanted to cook that cocaine into crack at some
point that day. Based on this evidence and the bag
of crack recovered by law enforcement, it was also rea-
sonable to infer that Finley did in fact successfully con-
vert some or all of his cocaine into crack at some
point on June 17, 2009. But all of these reasonable infer-
ences support a case against Finley, not Jones.
No witness saw Jones in possession of the crack at
any time. No witness heard Jones admit that he had
possessed the crack or that he had helped Finley cook
the cocaine. The government was unable, through its
extensive surveillance, to establish how long Jones
was inside the South Christiana residence or whether
there was crack inside that residence. Given this lack
of direct evidence, the government asked the jury
to make several inferences based on conversation
and movement.
The line between reasonable and speculative infer-
ences of this nature is by no means a sharp one. Each
inference must be examined closely to ensure that
mere presence or association with criminal activity is
not being used to infer guilt. Though the government
criticized the district court for carefully considering
each individual inference, that is exactly what is re-
quired in these unusual cases. The district court appro-
priately considered each inference in isolation, and
then went on to evaluate the cumulative effect of the
inferential chain.
Inferences cannot be motivated by or made possible
by speculation focused on a defendant’s presence
No. 12-1497 21
or association with criminals or their criminal activity.
Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001), is instruc-
tive on the line between reasonable inferences and specu-
lation. In Piaskowski, we affirmed a writ of habeas corpus
overturning a state court jury verdict based on circum-
stantial evidence. Piaskowski was convicted of mur-
dering his co-worker, Thomas Monfils, at a paper mill.
256 F.3d 687 (7th Cir. 2003). The evidence against
Piaskowski included a mill worker’s testimony de-
scribing a diagram drawn by a fellow mill worker
showing six people, including Piaskowski, standing
around the water cooler where Monfils was attacked.
Piaskowski was also reported as having said on the
morning of the murder that “shit was going down.” A
different mill worker also testified that a friend told
him that the friend had beaten Monfils at the water
cooler “like everybody else.” Id. at 689-91.
Based on these three pieces of evidence, the state
asked the jury to believe the following inferential chain:
(1) The diagram proved that Piaskowski was present at
the water cooler when Monfils was attacked. (2) The
description of a different mill worker having beaten
Monfils “like everyone else,” meant that “everyone”
represented in the diagram at the water cooler had
beaten Monfils. (3) Therefore, Piaskowski participated
in beating Monfils and thus aided and abetted his mur-
der. The state had argued that Piaskowski’s state-
ment that morning that “shit was going down” was a
direct reference to the attack on Monfils. Id. at 689-93.
We considered each inference and found them to be
impermissibly speculative, holding that a “strong suspi-
22 No. 12-1497
cion that someone is involved in a criminal activity is
no substitute of guilt beyond a reasonable doubt.” Id. at
692. We found that the evidence could not support a
reasonable finding of guilt because it could not satisfy
the “state of near certitude” required by Jackson v.
Virginia, 443 U.S. 307 (1979). Id. Even if we assumed
that Piaskowski was at the water cooler, we held that
“his mere presence is not sufficient, by itself, to
sustain [his] conviction. The jury’s conclusion that
Piaskowski participated in the beating and/or con-
spired with the other defendants to kill Monfils is specu-
lation.” Id.
We recognized that Piaskowski might well have
been involved in Monfils’ murder. We did not deny the
high level of suspicious activity and circumstantial evi-
dence piling up against Piaskowski. We addressed
this uncomfortable situation head on: “In this case, the
chain of inferences the State attempts to forge fails
in multiple places. Piaskowski may have been involved
in the attack on Monfils and his murder, but under our
system of law, that must be proven beyond a reasonable
doubt. The scant evidence here falls short of meeting
that burden.” Id. at 693. We have a similar responsibility
today, even if we have similar suspicions regarding
Jones’ involvement with Finley’s drug trafficking. Re-
garding Jones’ involvement, the district judge identified
several unreasonable inferences that persuaded her to
grant the Rule 29 motion. We turn to those now.
No. 12-1497 23
a. The 2:00 p.m. Call Between Jones and Finley
The district court found it unreasonable to conclude
that the 2:00 p.m. call between Jones and Finley showed
an agreement between the two that Jones would cook
powder cocaine into crack for Finley. In particular, the
district court took issue with the inference the jury
needed to make regarding Finley’s reference to “Sonny.”
To conclude, based on that conversation, that Jones
agreed to cook crack for Finley, the jury would have to
know what Jones had done for Sonny in the past. The
government presented no evidence regarding who
Sonny was or what, if anything, Jones had done for
Sonny in the past. We cannot fill these gaps by guess-
work. In addition, Ollison testified that Finley never
told him that Jones helped Finley cook crack on June 17,
2009 or that Jones was helping Finley distribute crack.
In a hearing, the district court pressed the government
to explain why the 2:00 p.m. call showed that Jones
agreed to cook for Finley. The government relied on
the evidence that Finley had powder cocaine, Ollison’s
statements about Finley wanting a scale, and Johnson’s
testimony that Finley had needed to cook that afternoon
and that Johnson had refused. Doc. No. 291 at 7. All of
these facts support the rational inference that Finley
needed someone to cook his cocaine, but none of these
facts relate directly or circumstantially to Jones. Based
on this evidentiary void, the district court found that
the inference that Jones agreed to and then did cook
Finley’s cocaine into crack was speculative. We agree.
24 No. 12-1497
b. Jones’ Presence at and Exit from 1447 South Christiana
The district court also rejected as speculative the gov-
ernment’s argument to the jury that Jones was inside
the residence at 1447 South Christiana for ninety minutes
cooking Finley’s cocaine into crack cocaine. The gov-
ernment calculated the ninety-minute period from the
telephone calls between Finley and Jones, which ended
at 5:32 p.m. (Call No. 5935) and coincided with Finley’s
entry into the house, and the stop of Finley and Jones
in Finley’s car at approximately 7:00 p.m.
Yet the telephone calls clearly establish that for
some portion of that ninety-minute period Jones was not
inside the residence but was instead running around
town, probably doing some sort of unidentified
errands for Finley. The police did not see Jones enter the
residence. They saw him leave sometime between
6:30 and 6:45 p.m. Despite all of this, the government
repeatedly argued that Jones and Finley were inside
the residence for ninety minutes cooking crack. Tr. 187-
88, 561-64.3
Jones was present inside the house for some unidenti-
fied period of time, but just how long is entirely unclear,
and his presence alone adds little to the case. “Mere
3
On appeal the government argues that one hour is enough
to cook the crack. There was no testimony or evidence
presented at trial regarding how long it takes to cook powder
into crack cocaine and prepare it for distribution, which
would include drying and packaging. The government’s
argument on appeal, untested by cross-examination, cannot
substitute for evidence on the point.
No. 12-1497 25
proximity to the drug, mere presence on the property
where it is located, or mere association, without more,
with the person who does control the drug or the
property on which it is found, is insufficient to sup-
port a finding of possession.” United States v. DiNovo,
523 F.2d 197, 200-01 (7th Cir. 1975) (internal citation
omitted). The district court carefully examined whether
the government had in fact presented more beyond
Jones’ mere presence in 1447 South Christiana and
his association with Finley. The government did not
present any evidence showing that there was any
cocaine present in the residence. The district court con-
cluded that the jury could have concluded that Jones
cooked Finley’s cocaine only by crossing “the line
between what inferences the evidence supports and
what is more in the realm of mere suspicion.” Doc.
No. 291 at 30. We agree.
Jones was never seen with cooking utensils or diluents
at any point during the day. He was not seen on the
grounds of a CVS, Wal-Mart, or Walgreens where one
might purchase such ingredients. He was not seen
entering 1447 South Christiana, nor was it clear how
long he was inside. No one was seen entering
1447 South Christiana carrying ingredients or utensils
to cook the crack. None of the intercepted telephone
conversations showed an agreement between Jones
and Finley to have Jones cook the cocaine.
The government relied heavily on Jones’ statements
regarding the search for a blender and FBI testimony at
trial that a blender can be used to cook crack. This
26 No. 12-1497
cannot carry the case. Johnson testified at trial that
he and others typically did not use a blender to cook
cocaine, and no one ever saw Jones or Finley in posses-
sion of a blender. For the jury to infer, therefore, based
on the evidence presented that Jones cooked Finley’s
cocaine, they would have to speculate that Jones did so
based on his association with Finley and his presence
at 1447 South Christiana. That speculation would reach
too far and would not satisfy the high bar of proof
beyond a reasonable doubt.
The jury could not reasonably infer beyond a rea-
sonable doubt, based on presence or association, that
the defendant possessed cocaine on June 17, 2009. We
have made this point before when affirming a Rule 29
acquittal. In United States v. DiNovo, the defendant
was convicted of possessing heroin with intent to distrib-
ute based on the fact that large amounts of heroin
and money were found inside the trailer home where
she lived with her husband. The drugs were discovered
after the DEA executed a search warrant. We found
the evidence insufficient to establish the wife’s construc-
tive possession because the government offered no evi-
dence to show that the drawers where the heroin
and money were found were in parts of the trailer where
she kept her belongings. “At best the evidence showed
that she was married to Myron DiNovo and lived in
the trailer with him.” 523 F.2d at 201. This reasoning
is persuasive in this even weaker case; the government
could not establish that any drugs were actually pres-
ent in 1447 South Christiana in the first place.
No. 12-1497 27
c. Jones’ Return to Look for Crack in the Evening
The government’s wiretap evidence can support a
reasonable finding that Jones went back in the evening
to look for the bag of crack that Finley had thrown
from the car. That falls well short of supporting the gov-
ernment’s theory that Jones possessed and cooked
cocaine in the South Christiana residence. Ollison
testified that when Jones rode with him to the alley, he
never said that he had cooked cocaine for Finley. Tr. 505.
Johnson testified that he had never seen Jones cooking
cocaine. Tr. 271-72. There was no evidence, as the gov-
ernment acknowledged, that Jones had ever cooked
crack for Finley or that he had done so in the past.
The government relies heavily on the statements Jones
made on the telephone to Finley when he was looking
for the missing bag: “I, I think Homey and them weeped
us, Joe. Remember we walked pass Homey and them by
that alley, ‘cuz I just, we went back there and tore it up,
Joe. And, we didn’t give a fuck, Joe. You know what
I’m sayin’? Homey done weeped us, Joe.” Doc. No. 298,
Call No. 5991. The government argues that the mysti-
fying ambiguity in “weeped” was irrelevant and that
the probative clue in the statement was “us.” The gov-
ernment argues that Jones’ choice of the word “us” im-
plied that he and Finley were engaged in a joint
venture to distribute crack.
That is a possible interpretation, but the district court
had several problems with this argument, as do we.
First, as the district court suggested, it is quite possible
that “weeped” was transcribed incorrectly and that Jones
28 No. 12-1497
in fact said “peeped,” as Finley said in reply to him. See
Doc. No. 298, Call No. 5991. The statement would
then seem to indicate only that Jones recognized the
police or that someone else, perhaps rivals of Finley’s
drug operation, had seen Jones and Finley earlier that
day. To infer from this that Jones cooked crack for
Finley would again endorse the impermissible infer-
ences of guilt by association or mere presence.
In Piaskowski, we recognized that interpreting testi-
mony that one mill worker had beaten the murder
victim Monfils “like everyone else” to mean that
everyone at the water cooler, including Piaskowski, had
beaten Monfils, was a possible interpretation. We were
troubled there and are troubled here, however, by the
extent to which a possible interpretation or over-inter-
pretation of an ambiguous statement is being used with
little support to show guilt beyond a reasonable doubt.
Piaskowski, 256 F.3d at 692-93.
To sum up, we agree with the district court’s conclu-
sion that the evidence was not sufficient to allow a rea-
sonable jury to find the defendant guilty beyond a rea-
sonable doubt on the charges and theory presented at trial.
C. Aiding-and-Abetting Theory
On appeal, the government has argued for the first
time that it would have been reasonable for the jury to
find Jones guilty on the theory that he aided and abetted
Finley’s efforts to possess crack cocaine with the intent
to distribute it. This new argument is based on the tele-
No. 12-1497 29
phone calls in which Jones and Finley discussed pur-
chasing something at a drugstore and Jones’ effort to
locate a blender. Gov’t Br. at 38-39. The district court
gave the jury an aiding-and-abetting instruction, but
the government never argued this theory to the jury
during the trial or to the district court in the briefs
and arguments on the Rule 29 motion. See Tr. 616.
The government argues that its failure to raise this
argument before the district court is at worst forfeiture
and that we should apply plain error review to the new
argument. Jones argues that the government waived
this argument because it made a strategic decision not
to argue the aiding-and-abetting theory to the jury or
the court because it would have undermined the gov-
ernment’s main theory, that Jones actually cooked the
crack for Finley.
Waiver involves the intentional abandonment of a
known right and precludes appellate review of the
issue. United States v. Turner, 651 F.3d 743, 747 (7th Cir.
2011). Forfeiture occurs when a party “negligently by-
passes a valid argument.” United States v. Anderson, 604
F.3d 997, 1001 (7th Cir. 2010). While Jones’ waiver argu-
ment has considerable force, we need not choose be-
tween waiver and forfeiture because the government
has not shown plain error.
Establishing plain error requires showing that the
error “affects a substantial right, and, moreover, impacts
‘the fairness, integrity, or public reputation of judicial
proceedings.’ ” United States v. Allen, 529 F.3d 390, 395 (7th
Cir. 2008), quoting United States v. Olano, 507 U.S. 725, 732
30 No. 12-1497
(1993). The government has failed to identify exactly
what substantial right is affected here. We suspect this
is not a simple oversight. Claims of plain error are
usually raised by a defendant, who can point to many
rights that an egregious error can affect. The govern-
ment, however, finds itself in a very different position.
It is not obvious that the government should ever be
able to invoke plain error. In United States v. Jackson,
207 F.3d 910 (7th Cir. 2000), vacated on other grounds,
531 U.S. 953 (2000) though, we applied plain error to a
sentencing guideline error that had drawn no objec-
tion from the government, perhaps because the district
court had given no advance notice that it was con-
sidering the issue before it decided it. Judge Wood dis-
sented in relevant part, explaining her “grave reserva-
tions about the proposition that the government has
the right to invoke the plain error doctrine to avoid the
consequences of its own oversights.” Jackson, 207 F.3d
at 922 (Wood, J., concurring in part and dissenting in part).
There may be a few compelling cases in which an
appellate court should exercise its oversight to consider
arguments forfeited by the government, as we did in
Jackson, to ensure the “fairness, integrity, or public rep-
utation of judicial proceedings.” See, e.g., United States
v. Olano, 507 U.S. 725, 732-34 (1993). In such rare cases,
“the question of how the familiar rules about obvious-
ness of the error and prejudice apply to the prosecutor
is an exceedingly difficult one.” Jackson, 207 F.3d at 922
(Wood, J., concurring in part and dissenting in part). We
note here only that, but for those extreme cases that
No. 12-1497 31
clearly implicate miscarriages of justice insulting the
public interest, it seems the government will usually
be hard-pressed to identify exactly a substantial right
that would justify plain error review.4
Assuming, consistent with the panel decision in
Jackson, that at least some plain errors can be corrected for
the benefit of the government, we are confident that
there was no plain error here. The district court’s deci-
sion to grant the Rule 29 motion without considering
an aiding-and-abetting theory not argued before it did
not compromise the integrity, fairness, or public reputa-
tion of judicial proceedings. It would be extraordinary
to reinstate a jury’s guilty verdict on a theory that was
never argued to the jury and almost certainly never
considered by it. When an advocate, here the gov-
ernment, does not pursue an argument before a trial
court, the plain error standard requires us to decide,
in essence, whether the error was so obvious and
serious that the trial judge should have overridden the
normal function of the adversarial system to take action
on her own. This was not such a situation.
Finally, even if the new aiding-and-abetting theory
had been preserved, we are skeptical of its merits.
Aiding and abetting possession with intent to distrib-
4
As Judge Wood wrote: “It is interesting to speculate
about whether the government can ever establish prejudice
for Rule 52(b) purposes, but [we] have no need at this junc-
ture to rule out that possibility absolutely.” 207 F.3d at 923
(Wood, J., concurring in part and dissenting in part).
32 No. 12-1497
ute requires showing knowledge of the distribution, a
desire that the transaction be successful, and an affirma-
tive act of assistance. United States v. Allen, 390 F.3d 944,
948 n.1 (7th Cir. 2004). The prohibition on speculative
inferences based solely on guilt by association or mere
presence is especially relevant in aiding-and-abetting
cases, and the government would therefore confront
similar hurdles with this theory. See United States v.
Williams, 341 U.S. 58, 64 n.4 (1951) (“To be present at a
crime is not evidence of guilt as an aider or abettor.”);
United States v. Heath, 188 F.3d 916, 922 (7th Cir. 1999) (“[I]t
is not unlawful for someone to be in the company of
another.”); see also Ybarra v. Illinois, 444 U.S. 85, 90 (1979)
(“[A] person’s mere propinquity to others independently
suspected of criminal activity does not, without more,
give rise to probable cause to search that person.”);
United States v. Starks, 309 F.3d 1017, 1022 (7th Cir. 2002)
(“When employing the constructive-possession doctrine,
however, courts must be mindful not to sweep within
the doctrine’s purview the innocent bystander who
is merely present while others engage in illegal drug
activity. To avoid a tendency towards guilt by associa-
tion, courts must attempt to distinguish the true pos-
sessor from the ordinary bystander.”); United States v.
Gill, 58 F.3d 334, 336 (7th Cir. 1995) (“Under the rule
of constructive possession, courts attempt to distin-
guish between knowing possession and guilt by associa-
tion.”). This argument raised for the first time on
appeal does not support reversal.
No. 12-1497 33
IV. Conclusion
In reviewing a district court’s grant of a Rule 29
motion, we must refrain from making our own credi-
bility determinations. We take the government’s evi-
dence and evaluate whether it could create a reasonable
inference or inferential chain that establishes each
element of the charged offense beyond a reasonable
doubt. If a necessary inference relies on speculation, it
is not reasonable and not permitted. The jury’s verdict
here relied on several such speculative inferences. The
evidence could not support a verdict of guilt beyond a
reasonable doubt. We recognize that Jones’ activities
were suspicious, and he did not offer evidence of actual
innocence. But that was not his burden. Simply put, our
criminal justice system does not tolerate the conviction
and imprisonment of people based on suspicion, specula-
tion, and association with criminals. The government
must present direct or circumstantial evidence of each
element of each charged offense. The government failed
to do that here and cannot fill the gaps with inferences
of guilt by association or evidence of an individual’s
mere presence somewhere criminal activity may have
occurred.
The judgment of the district court is A FFIRMED.
4-9-13