UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5210
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AARON RILEY, a/k/a Fresh,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:04-cr-00011)
Submitted: March 21, 2008 Decided: April 25, 2008
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Sharon L. Potter, United States Attorney,
Stephen D. Warner, Assistant United States Attorney, Elkins, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aaron Riley was convicted by a jury of three counts of
distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2000), and two counts of illegal use of a communication facility
to distribute drugs, in violation of 21 U.S.C. § 843(b) (2000). On
appeal, he challenges the sufficiency of the evidence to sustain
his conviction on Count Five, charging illegal use of a
communication facility to distribute drugs, in violation of 21
U.S.C. § 843(b) (2000). Because the evidence, viewed in the light
most favorable to the Government, does not support a finding beyond
a reasonable doubt that Riley used a telephone to facilitate the
sale of cocaine on April 7, 2003, we reverse his conviction on
Count Five and remand to the district court for resentencing.
In April 2003, Wayne Simms was working as a confidential
informant for the West Virginia State Police. On the morning of
April 3, Simms drove to a house in an area called Misty Terrace and
met Riley. Riley sold Simms approximately 1.25 grams of cocaine,
and they discussed the possibility of an additional sale later that
day. That afternoon, Simms made a phone call to Riley to set up a
second buy. The telephone call was controlled and recorded by the
police. Simms returned to Misty Terrace, met Riley at the same
location, and bought approximately .95 grams of cocaine. On April
7, Simms again returned to Misty Terrace and bought approximately
1.86 grams of cocaine from Riley. Because Simms wore a wire, the
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evidence presented at trial included an audio recording of each of
the three controlled buys, as well as an audio recording of the
controlled phone call placed on April 3.
A defendant challenging the sufficiency of the evidence
to support his conviction bears “a heavy burden.” United States v.
Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995). In reviewing the
sufficiency of the evidence, we determine whether, viewing the
evidence in the light most favorable to the Government, any
rational trier of fact could find the essential elements of the
crime beyond a reasonable doubt. See Glasser v. United States, 315
U.S. 60, 80 (1942); United States v. Tresvant, 677 F.2d 1018, 1021
(4th Cir. 1982). We review both direct and circumstantial
evidence, and permit the “[G]overnment the benefit of all
reasonable inferences from the facts proven to those sought to be
established.” Tresvant, 677 F.2d at 1021. This court will uphold
the jury’s verdict if there is substantial evidence to support it,
and will reverse only in those rare cases “where the prosecution’s
failure is clear.” United States v. Beidler, 110 F.3d 1064, 1067
(4th Cir. 1997) (citation omitted).
Because Riley failed to raise his sufficiency claim at
trial via a Fed. R. Crim. P. 29 motion for judgment of acquittal,
his appeal of this issue may be reviewed only for plain error. See
United States v. Wallace, 515 F.3d 327 (4th Cir. 2008). Riley
therefore must demonstrate: (1) there was error; (2) the error was
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plain, meaning obvious or clear under current law; and (3) the
error affected his substantial rights. United States v. Olano, 507
U.S. 725, 732-34 (1993). Even if these criteria are met, the error
will not be noticed unless it seriously affects the fairness,
integrity, or public reputation of the proceedings. Id. at 736.
Count Five charged Riley with a violation of 21 U.S.C.
§ 843(b) in connection with the April 7 sale of cocaine to Simms.
To obtain a conviction under § 843(b), the Government must prove
the following elements beyond a reasonable doubt: (1) that Riley
used a telephone; (2) to commit, cause or facilitate the commission
of a drug offense; and (3) that Riley did so knowingly and
intentionally. See United States v. Johnstone, 856 F.2d 539,
542-43 (3d Cir. 1988).
Riley correctly notes the Government failed to introduce
any direct evidence of a phone call placed in connection with the
April 7 cocaine sale. The Government recognizes its omission, but
argues that a phone call can be inferred from five facts in
evidence. First, that during the April 7 buy, Simms expressed a
disappointed expectation in what Riley had available for sale. The
Government argues this leads to a reasonable inference that a prior
conversation occurred creating Simms’ expectation. Second, the
Government relies on Simms’ testimony regarding the April 7 buy
that he “went to the house . . . to make the buy . . . .” Here,
the Government strains to suggest that because Simms expressed no
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uncertainty, his testimony indicates a prior conversation between
Simms and Riley must have occurred.
Third, the Government notes that Riley and Simms
exchanged phone numbers during the April 3 buy, as Simms testified,
so they could “contact one another on future buys.” Fourth, the
Government highlights that Riley and Simms were strangers to each
other until they met on April 31 and that Simms lived out of town.
Finally, the Government notes that, at the conclusion of their
exchange on April 7, Simms said to Riley, “I’ll give you a call.”2
These facts, the Government argues, indicate that the prior
conversation must have occurred on the telephone.
Viewed in the light most favorable to the Government, we
conclude no rational trier of fact could find beyond a reasonable
doubt that Riley used a telephone to facilitate the sale of cocaine
on April 7. Even if one could reasonably infer that some
conversation took place prior to the controlled buy on April 7, it
is no more likely that such conversation took place on the
telephone than in person. The first buy on April 3 was made
without prior arrangement by telephone. The second buy was made
1
The Government makes no citation to the record for this
proposition.
2
Here again, the Government makes no citation to the record.
This evidence is apparently part of the audio tape entered as
Exhibit 4 at trial. That audio tape was not included in the joint
appendix and is not before this court. No witness at trial
repeated or confirmed this “I’ll give you a call” statement from
the audio tape.
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with prior arrangement by telephone. The inferences created by the
Government’s evidence do not make the use of a telephone more
likely than not, and certainly do not establish that critical fact
beyond a reasonable doubt.
Even if a reasonable jury could infer that a phone call
had occurred, there is no evidence to support a finding about the
content of any such phone call. The evidence presented in this
case stands in stark contrast to those cases in which we have found
sufficient evidence supporting a conviction under § 843(b). See
e.g., United States v. Pratt, 351 F.3d 131, 138 (4th Cir. 2003)
(where “there is no dispute that a telephone was used,” finding
sufficient evidence that the phone call was used to set the final
time for the transaction); United States v. Lozano, 839 F.2d 1020,
1023 (4th Cir. 1988) (where defendant “does not deny that he made
a phone call,” sufficient evidence that phone call used to announce
his arrival in Virginia to handle problem related to cocaine).
Accordingly, we conclude that this is one of those rare
cases “where the prosecution’s failure is clear.” Beidler, 110
F.3d at 1067. Because the evidence is insufficient to establish
the use of a telephone to facilitate the controlled buy on April 7,
we reverse Riley’s conviction on Count Five and remand to the
district court for resentencing. We dispense with oral argument
because the facts and legal contentions are adequately presented in
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the materials before the court and argument would not aid the
decisional process.
REVERSED AND REMANDED
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