United States v. Cartwright

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

3-1-2004

USA v. Cartwright
Precedential or Non-Precedential: Precedential

Docket No. 03-1466P

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Recommended Citation
"USA v. Cartwright" (2004). 2004 Decisions. Paper 898.
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 Patrick L. Meehan
PRECEDENTIAL United States Attorney
Laurie Magid
Deputy U.S. Attorney
UNITED STATES COURT Robert A. Zauzmer
OF APPEALS Assistant U.S. Attorney
FOR THE THIRD CIRCUIT Kenya S. Mann (Argued)
Assistant U.S. Attorney
615 Chestnut Street
NO. 03-1466 Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
UNITED STATES OF AMERICA
Maureen Kearney Rowley
v. Chief Federal Defender
David L. McColgin (Argued)
ELLIOT CARTWRIGHT Assistant Federal Defender
a/k/a DARYL ATKINS Curtis Center - Suite 540 West
Independence Square West
Elliot Cartwright Philadelphia, PA 19106
Appellant Attorneys for Appellant

On Appeal From the United States OPINION OF THE COURT
District Court For the
Eastern District of Pennsylvania
(D.C. Crim. Action No. 02-cr-00581-2)
District Judge: Hon. James T. Giles
STAPLETON, Circuit Judge:

Argued January 26, 2004 Defendant E l l io t C a r t w r i g ht
(“Cartwright”) appeals his conviction and
BEFORE: NYGAARD, FUENTES sentence, following a jury trial, for
and STAPLETON, Circuit Judges conspiracy to distribute cocaine in
violation of 21 U.S.C. § 846 (2001), aiding
(Opinion Filed: March 1, 2004) and abetting the distribution of cocaine in
violation of 21 U.S.C. § 841 (2001) and 18
U.S.C. § 2 (2001), and possession of a
firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)
(2001). The sole issue presented by this
appeal is whether the evidence presented $90,000. The two also initially agreed that
by the government at trial was sufficient to the sale would take place later that day at
support Cartwright’s conviction. We the Houlihan’s or Friday’s on City Line
conclude that the evidence adduced at trial Avenue in Philadelphia.2 After the initial
did not support an inference that conversation, Ellis changed the location of
Cartwright knew he was participating in a the transaction to the parking lot of the
transaction that involved a controlled Bala Cynwyd Shopping Center in
substance, as opposed to some other form Montgomery County, Pennsylvania, just
of contraband. Because we have across the Philadelphia city line.
consistently held that such proof is
necessary to support a conviction in cases Before going to the shopping center
such as this, we will reverse the judgment. parking lot, Muhammed El first met Ellis
at a gas station in the East Falls section of
I. Facts and Procedural History Philadelphia. Muhammed El was
accompanied by James Avery, an
On September 27, 2001, a drug dealer undercover narcotics agent with the
named Prince Muhammed El agreed to Pennsylvania Attorney General’s Office,
coop erate with agen ts from the who posed as Muhammed El’s bodyguard
Pennsylvania Office of the Attorney and confidant. At the gas station,
General, Bureau of Narcotics Investigation Muhammed El got out of his car and
and Drug Control, in arranging for the entered Ellis’s silver Mitsubishi Montero,
controlled purchase of three kilograms of a sport utility vehicle (the “SUV”).
cocaine. Muhammed El made the Muhammed El then rode with Ellis to the
arrangements through his friend, Rashine shopping center while Avery followed
Ellis, who in turn contacted her supplier, them in Muhammed El’s car. The two
Osiris Jackson. Muhammed El had vehicles arrived at the shopping center
contacted Ellis through his two-way parking lot at approximately 4:45 p.m.
handheld text messaging device.1 During Ellis parked her SUV about five to six car
a recorded telephone conversation later lengths from the front door of a Foot
that day, Muhammed El and Ellis
negotiated the terms of the transaction.
Muhammed El agreed to purchase three 2
During the telephone call, Muhammed
kilograms of cocaine for a price of
El professed a desire that the transaction
take place out in the open, where there
would be other people to watch and make
1
Muhammed El later testified that he sure the transaction went smoothly. Ellis
used the two-way messaging device in also suggested during the telephone call
drug transactions to avoid the possibility that the only people who would be present
that his conversations would be overheard at the transaction would be herself,
by others. Muhammed El, and Jackson.

2
Locker store. Agent Avery parked in a walking side-by-side with Defendant Elliot
space directly across from Ellis’s SUV. At Cartwright. Agent Bellis observed that at
that point, the parking lot was under one point, Jackson and Ellis were talking
government surveillance. to each other, and he could tell that “they
were having some kind of conversation.”
When they arrived at the parking lot, App. at 143a. Jackson and Cartwright
Ellis contacted her supplier, Osiris walked together through the breezeway for
Jackson, using her two-way text messaging approximately thirty feet and then began to
device. Muhammed El then got out of separate. Jackson walked out into the
Ellis’s SUV and went to Agent Avery, parking area towards Ellis’s SUV and
who remained in Muhammed El’s car. Cartwright continued to walk along a path
Muhammed El told Agent Avery that he that ran adjacent to the store fronts.
would give a signal by lifting his hat as Cartwright stopped walking near the Foot
soon as he saw the cocaine. Muhammed Locker. His back was facing a wall that
El then got back into Ellis’s SUV. At that separated the Foot Locker from the store to
point, law enforcement agents observed its left. Cartwright then leaned up against
Jackson, empty-handed, walking up to the the wall and placed one foot up against it.
SUV and getting into the rear passenger- He was also looking straight ahead, in the
side seat. While inside the SUV, direction of Ellis’s SUV. The SUV was
Muhammed El, pointing to Agent Avery, located about 90 to 100 feet from the Foot
told Jackson that he had the money and Locker.
asked if Jackson had the cocaine. Jackson
said that he did have the cocaine and Ellis Meanwhile, Jackson crossed the parking
pronounced that the “deal is good.” App. lot and, after taking a loaded firearm from
at 96a. Jackson then got out of the SUV his waistband, entered the SUV. Jackson
and walked through the breezeway at the placed the blue and white shopping bag on
corner of the mall that led to another its side in the SUV, showing Muhammed
parking lot located on the rear side of the El three bricks of cocaine. Muhammed El
mall. The rear parking lot was not under then gave the pre-arranged signal and law
government surveillance. enforcement of f ic e rs imme dia te ly
converged on the SUV. The agents
Several minutes later, Jackson returned recovered from Jackson a loaded firearm
through the breezeway, carrying a blue and with a round in the chamber, a Motorola
white paper shopping bag marked with the Timeport two-way text messaging device,
words “Mr. Denim.” Agent Kenneth the blue and white shopping bag
Bellis, who was conducting surveillance containing the cocaine, and the keys to a
for the controlled transaction, observed Subaru vehicle that was discovered in the
that as Jackson walked through the rear parking lot and was registered in the
breezeway leading back to the front name of Jackson’s father.
parking lot and Ellis’s SUV, he was

3
 As the agents converged upon Ellis’s Cartwright’s defense counsel moved for
SUV, Agent Bellis observed Cartwright a judgment of acquittal under Fed. R.
remove his foot from the wall and saw him Crim. P. 29 after the close of the
going “fairly quickly” into the Foot Locker government’s case and again at the close
store. App. at 146a. Agent Bellis radioed of all evidence. The District Court denied
for another agent, Edward Rodriguez, to both motions, holding that sufficient
meet him at the Foot Locker. Together, evidence existed to send the case to the
the two agents entered the Foot Locker jury. Cartwright was found guilty on all
approximately twenty to thirty seconds three counts. He was sentenced to a term
after Cartwright. Upon entering the Foot of 140 months of imprisonment, five years
Locker, they saw Cartwright with his back of supervised release, a fine of $1,500, and
towards them, standing near clothes racks a special assessment of $300. Cartwright
located in the middle of the store. They filed a timely notice of appeal.
grabbed Cartwright, patted him down, and
recovered from him a loaded semi- II. Jurisdiction
automatic firearm with a round in the
chamber, a cellular phone, $180 in cash, The District Court had jurisdiction over
and a Motorola Timeport two-way text this case under 18 U.S.C. § 3231 (2001)
messaging device similar to the one because Cartwright was charged with
recovered from Jackson. Cartwright was offenses against the laws of the United
not in possession of any car keys. States. We have jurisdiction over this
appeal pursuant to 28 U.S.C. § 1291
At Cartwright’s trial, the foregoing (2001) because the District Court’s
facts were developed through the judgment of conviction and commitment
testimony of Muhammed El, Agent Avery, was a final decision.
Agent Bellis, Agent Rodriguez, and two
other law enforcement agents. In addition, III. Discussion
Agent Bellis testified, as an expert in the
field of drug trafficking, that drug dealers Cartwright argues on appeal that the
commonly used lookouts to conduct evidence presented by the government was
counter-surveillance in drug transactions insufficient to support his conviction on
and that these lookouts could possess a any count. First, Cartwright contends that
firearm. The only witness to testify for the the government failed to show that he was
defense was Bernard Clark, the assistant a “lookout” for Osiris Jackson and that all
manager of the Foot Locker, who told the of the evidence presented to the jury was
jury that when Cartwright first came into c o n s i s te n t w i t h h i s i n n o c e n c e.
the store, he asked a saleswoman a Alternatively, Cartwright claims that even
question, then looked at some clothing, assuming that the government’s evidence
and then asked the saleswoman another was sufficient to support an inference he
question. acted as a lookout for Jackson, the

4
government failed to show that he knew Cartwright and Jackson also possessed
that the transaction involved a controlled similar two-way text messaging devices.
substance. In reviewing Cartwright’s Moreover, the jury heard expert testimony
challenge to the sufficiency of the that lookouts are commonly used in drug
evidence, we apply a “particularly transactions of this type. While there may
deferential” standard of review. United have been an innocent explanation for
States v. Cothran, 286 F.3d 173, 175 (3d Cartwright’s activity, 3 “[t]here is no
Cir. 2002) (quoting United States v. Dent, requirement . . . that the inference drawn
149 F.3d 180, 187 (3d Cir. 1998)). The by the jury be the only inference possible
verdict must be sustained if there is or that the government’s evidence
substantial evidence to support it. Burks v. foreclose ev ery possible innocent
United States, 437 U.S. 1, 17 (1978); explanation.” United States v. Iafelice,
United States v. Beckett, 208 F.3d 140, 151 978 F.2d 92, 97 n.3 (3d Cir. 1992) (citing
(3d Cir. 2000). “It is not our role to weigh United States v. Sandini, 888 F.2d 300,
the evidence or to determine the credibility 311 (3d Cir. 1989)). Accordingly, the
of the witnesses.” Cothran, 286 F.3d at evidence presented, viewed in the light
175. “We must view the evidence in the most favorable to the government, is
light most favorable to the Government clearly sufficient to support a finding that
and sustain the verdict if any rational juror Cartwright was acting as a lookout for
could have found the elements of the crime Jackson. Our cases dictate, however, that
beyond a reasonable doubt.” Id. merely acting as a lookout is insufficient to
sustain a conviction for conspiracy to
Under this standard of review, we have distribute, or aiding and abetting the
little difficulty concluding that the distribution of, a controlled substance.
evidence is sufficient to support a finding See, e.g., United States v. Salmon, 944
that Cartwright acted as a lookout for F.2d 1106, 1113 (3d Cir. 1991); United
Jackson. Moreover, there is ample States v. Wexler, 838 F.2d 88, 90-92 (3d
evidence in the record to suggest that Cir. 1988). Although this evidence may be
Cartwright knew he was involved in an sufficient to prove that Cartwright knew he
illicit transaction of some sort. The
evidence showed that Cartwright and
Jackson had a conversation during a thirty- 3
For example, Cartwright asserts that
foot walk through the breezeway, after
on these facts, he may have just been a
which Cartwright was seen taking up a
casual acquaintance of Jackson who
position next to the Foot Locker and
happened to run into him in the parking
watching the SUV as Jackson walked to it
lot, or he may have been a stranger who
with the blue and white shopping bag.
merely asked Jackson a question, or he
Cartwright, like Jackson, was armed with
may have just been an ordinary shopper
a semi-automatic weapon that was loaded
who paused to rest before going about his
and had a round in the chamber.
errands.

5
was participating in some sort of illegal that ‘some form of contraband’ was
transaction, these facts nonetheless are involved in the scheme in which he was
insufficient to prove beyond a reasonable participating, the government is obliged to
doubt that Cartwright knew the transaction prove beyond a reasonable doubt that the
involved drugs. defendant had knowledge of the particular
illegal objective contemplated by the
“The elements of a conspiracy may be conspiracy.” Idowu, 157 F.3d at 266-67
proven entirely by circumstantial evidence, (citing United States v. Thomas, 114 F.3d
but each element of the offense must be 403, 405 (3d Cir. 1997); Wexler, 838 F.2d
proved beyond a reasonable doubt.” at 90). Accordingly, “this court has
Wexler, 838 F.2d at 90; see also United [consistently] overturned convictions for
States v. Idowu, 157 F.3d 265, 266-67 (3d conspiracy in drug possession and
Cir. 1998). “One of the requisite elements distribution because of the absence of any
the government must show in a conspiracy evidence that the defendant had knowledge
case is that the alleged conspirators shared that drugs were involved.” United States
a ‘unity of purpose’, the intent to achieve v. Mastrangelo, 172 F.3d 288, 293 (3d Cir.
a common goal, and an agreement to work 1999) (citing Idowu, 157 F.3d 265;
together toward the goal.” Wexler, 838 Thomas, 114 F.3d 403; Salmon, 944 F.2d
F.2d at 90-91 (citing United States v. 1106; Wexler, 838 F.2d 88; United States
Kates, 508 F.2d 308, 310-11 (3d Cir. v. Cooper, 567 F.2d 252 (3d Cir. 1977)).
1975)); see also Idowu, 157 F.3d at 268.
“In order for us to sustain a defendant’s We also have overturned aiding and
conviction for conspiracy, the government abetting convictions for parallel reasons.
must have put forth evidence ‘tending to See, e.g., Salmon, 944 F.2d at 1113;
prove that defendant entered into an Wexler, 838 F.2d at 92. A conviction on
agreement and knew that the agreement such a charge “requires that another
had the specific unlawful purpose charged committed the substantive offense and that
in the indictment.’” Idowu, 157 F.3d at the one charged with aiding and abetting
268 (quoting Wexler, 838 F.2d at 91).4 kne w of the substa ntive - of fen se
Applying this rule, “[w]e have consistently commission and acted with the intent to
held in cases of this genre that, even in facilitate it.” Salmon, 944 F.2d at 1113
situations where the defendant knew that (citing United States v. Dixon, 658 F.2d
he was engaged in illicit activity, and knew 181, 189 n.17 (3d Cir. 1981)); see also
United States v. Bey, 736 F.2d 891, 895
(3d Cir. 1984); United States v. Pearlstein,
4 576 F.2d 531, 546 (3d Cir. 1978).
Moreover, we have held that “[t]he
“[A]cting with intent to facilitate the
inferences rising from ‘keeping bad
substantive offense requires that one acted
company’ are not enough to convict a
with the ‘intent to help those involved with
defendant for conspiracy. Wexler, 838
a certain crime.’” Salmon, 944 F.2d at
F.2d at 91.

6
1113 (quoting Wexler, 838 F.2d at 92) convincing connection, i.e., where an
(emphasis in original). We have therefore inference as to a defendant’s knowledge is
held that a reasonable jury could not have based upon speculation, our case law
had sufficient evidence to find that a forbids us from upholding his conviction.
defendant aided and abetted the possession See Thomas, 114 F.3d at 406.
and/or distribution of drugs where “the
government did not prove that [the The facts of this case undoubtedly
defendant] had knowledge of the [drugs], evidence the existence of a conspiracy, at
had knowledge that [the co-defendant] least among Rashine Ellis and Osiris
intended to distribute or possess [drugs], or Jackson, to distribute cocaine. There is
purposefully intended to aid others in also no question that a distribution of
committing the crime alleged.’” Id. at cocaine actually occurred. However, the
1114 (quoting Wexler, 838 F.2d at 92). government can point only to the
following facts established at trial as a
Based on this well-established basis for inferring Cartwright’s knowledge
precedent, the proper question before us of a drug distribution: (1) Cartwright
with respect to both the conspiracy and the made his first appearance in the breezeway
aiding and abetting charges is “whether at the same time that Jackson was
there was sufficient evidence that observed carrying the shopping bag
[Cartwright] knew that the subject matter containing the cocaine; (2) Cartwright
of the transaction was a controlled walked side-by-side with Jackson through
substance, rather than some other form of the breezeway and the two were observed
contraband, such as stolen jewels or talking to each other; (3) Cartwright
computer chips or currency.” Idowu, 157 possessed a semi-automatic firearm, a
F.3d at 266. Here, the government cellular phone, $180 in cash, and a
presented no direct evidence proving that M otorola Timeport two-way text
Cartwright knew he was involved in a drug messaging device; and (4) Cartwright did
transaction. We have recognized, not possess any keys to a vehicle of his
howeve r, that “[i]nferences fro m own. There is simply no logical and
established facts are accepted methods of convincing connection between these facts
proof when no direct evidence is available and the inference the government seeks to
so long as there exists a logical and draw. Rather, that inference is based
convincing connection between the facts solely on speculation about a possible prior
established and the conclusion inferred.” relationship between Cartwright and
Id. at 269 (quoting United States v. Jackson, about how Cartwright got to the
Clemmons, 892 F.2d 1153, 1159 (3d Cir. mall, and about what Cartwright was doing
1989); see also Salmon, 944 F.2d at 1114 prior to being sighted with Jackson,
(citing United States v. McNeill, 887 F.2d matters as to which there is no evidence.
448, 450 (3d Cir. 1989)). On the other
hand, in the absence of a logical and Our conclusion that the foregoing facts

7
do not support the government’s inference involved was speculative. We noted that
follows a fortiori from Thomas, 114 F.3d even if Petersen had spoken to Thomas
403 and Idowu, 157 F.3d 265. In Thomas, prior to the transaction, there was no
a drug courier named Lynch agreed to evidence concerning the substance of the
cooperate with law enforcement officers in phone calls or showing that Thomas had a
conducting a planned drug transaction. prior relationship with Lynch or Peterson.
114 F.3d at 404. Lynch informed the W e therefore reversed Thomas’s
officers that she had been directed by a conspiracy conviction.
man named Petersen to take a suitcase
carrying cocaine to a hotel room at the In Idowu, one Monadu Ajao had
Atlanta Airport Days Inn, leave the negotiated to buy two kilograms of heroin
suitcase in the hotel room, return the room from Abdul Khaliq, an informant working
key to the front desk in an envelope with the United States Drug Enforcement
marked “Melvin Smith” or “Cousin Agency (“DEA”). 157 F.3d at 267. The
Melvin Smith,” and then leave the Days two agreed that the transaction would take
Inn for another hotel. Id. Lynch place at a Quality Inn in Jersey City, New
performed as directed and the officers set Jersey. Ajao arrived at the agreed-upon
up surveillance of the Days Inn hotel time in a Lincoln Town Car driven by
room. Defendant Thomas then obtained defendant Idowu. Ajao then spoke to
the room key from the front desk, was Khaliq in the presence of Idowu, although
observed entering the designated room, he referred to the subject of the deal as
and was arrested upon exiting. Thomas “the stuff” rather than “heroin” or “drugs.”
told the officers that he was to be paid Id. at 267, 268. During the transaction,
$500 to check on a suitcase at the hotel, Idowu opened the trunk of the Town Car,
but he denied having any knowledge that removed a brown leather bag from the
the suitcase contained cocaine. When trunk, and then opened the bag to show
Thomas was arrested, he was in possession Khaliq $20,000 in cash. Idowu also
of a cellular phone, a pager, and a nine assured Khaliq that all the money was
millimeter pistol. In addition, officers there. When Khaliq stated that he would
retrieved from Thomas’s pager the same have to take the bag with him, Idowu told
telephone number at which Lynch had him that he had personal documents within
earlier called Petersen. Furthermore, it that he would have to remove. After
Petersen’s phone records also showed taking the brown leather bag, Khaliq
several calls to Thomas’s pager and opened the rear hatch of his own car,
cellular phone, as well as to Thomas’s removed a black suitcase that had been
home telephone. We concluded from this outfitted to contain the heroin in its lining,
evidence that Thomas must have known and placed the suitcase in the still-open
that he was somehow involved in an illicit trunk of the Town Car. Idowu then
activity; however, we held that any opened the black suitcase and, upon seeing
conclusion that Thomas knew drugs were nothing inside, told Ajao: “They didn’t

8
pack this thing.” Id. at 268. Ajao then direct evidence indicating Cartwright’s
told Idowu to press the suitcase with his knowledge, the jury could only speculate
hands and Khaliq assured both of them as to Cartwright’s knowledge.5 Moreover,
that “something was concealed in the
frame of the suitcase.” Id. Ajao and
Idowu were then arrested by DEA agents. 5
Accordingly, we also reject the
From these facts, we concluded that only
argument that Cartwright can be inferred
two inferences were proper: that Idowu
to know that he was involved in a drug
had a preexisting relationship with Ajao,
transaction solely from the nature of items
and that Idowu knew he was involved in
found in his possession at his arrest.
an illicit transaction. However, we held
Despite our holding in Thomas, the
that even if Idowu had been a “trusted”
government cites to United States v.
participant in the transaction, the
Picklesimer, 585 F.2d 1199, 1204 (3d Cir.
government’s failure “to provide evidence
1978) for the proposition that firearms are
that Idowu knew that drugs were in fact
the tools of narcotics trafficking. In that
the subject matter of the transaction”
case, however, we simply addressed
precluded the jury from inferring that
whether firearms were relevant to show a
Idowu had knowledge of the nature of the
narcotics conspiracy for purposes of
deal. Id. at 270. Accordingly, we rejected
admissibility. Picklesimer did not hold
the government’s inference that Idowu
that the presence of firearms was sufficient
must have been aware of the subject matter
to prove a narcotics conspiracy beyond a
of the transaction simply because Ajao felt
reasonable doubt. In fact, contrary to the
comfortable speaking about the transaction
government’s assertion, we noted that
in front of him. We also noted, in passing,
guns are often used to protect contraband
that “it is not uncommon for managers of
in general. Id. (“It often happens that
clandestine illegal operations to keep their
illegal enterprises, such as narcotic
employees insulated from one another and
conspiracies, are ongoing ventures,
from the overall plan of operation so that
requiring the use of guns for protection of
they cannot supply evidence against others
the contraband . . .”). The government
involved.” Id. at 269 n.3.
also cites United States v. Ortiz, 966 F.2d
707, 714 (1st Cir. 1992) to suggest that
In this case, as in Thomas, Cartwright
Cartwright’s two-way messaging device
was found to possess a firearm, a pager,
was an accouterment of the drug trade. In
and a cellular phone, and was even
that case, however, the Court of Appeals
o b s e r v ed t a l k in g w i t h J a c k so n .
for the First Circuit explicitly stated that
Nevertheless, Thomas dictates that, in the
“possession of a beeper is not ipso facto
absence of any evidence indicating the
proof of complicity in the drug trade.” Id.
substance of the conversation with
Rather, the court noted that a defendant’s
Jackson, any evidence of a prior
possession of such and item during a drug
relationship with Jackson, or any other
transaction “‘could justifiably raise the

9
even if we were willing to speculate that Sinde, and then engaged in the transaction
Cartwright arrived at the mall in Jackson’s with an undercover DEA agent. The
car, Idowu indicates that such evidence, evidence also indicated that Iafelice, who
without more, would still be insufficient to remained in his car with Finn, used a
infer that Cartwright knew he was beeper and a cellular phone to
involved in a drug transaction. As in both communicate with the Sindes while they
of those cases, there is simply no evidence were in the hotel during the transaction.
in this record from which to infer a Reviewing these facts, we held that the
conclusion that Cartwright had knowledge evidence was sufficient to show that
of the nature of the transaction. Iafelice knew the camera bag contained
heroin. Although we noted that the use of
The government seems to recognize the beeper and cellular phone during the
that Thomas and Idowu do not support its transaction supported the inference that
inference as to Cartwright’s knowledge. Iafelice knew drugs were involved, we
The government therefore argues that we held that the “truly distinguishing fact”
should instead rely on United States v. was his “ownership and operation of the
Iafelice, 978 F.2d 92 (3d Cir. 1992) based vehicle used to transport the drugs.” Id. at
on the supposition that Cartwright must 97. We reasoned that “[c]ommon sense
have, at some point, exercised dominion counsels that an owner and operator of a
and control over the cocaine. In Iafelice, vehicle usually has dominion and control
defendant Mark Iafelice was observed over the objects in his or her vehicle of
driving his own car to the parking lot of a which he or she is aware, and usually
hotel in which the DEA had arranged a knows what is in that vehicle.” Id. In
controlled purchase of heroin. Iafelice context with the other facts presented, we
was accompanied in the car by two concluded that a jury could have
conspirators, John Sinde and Thomas Finn, reasonably inferred that Iafelice was in
and a brown camera bag containing heroin constructive possession of the heroin and
was located in the trunk. DEA agents therefore could have found beyond a
testified that Iafelice was driving through reasonable doubt that he knew that he was
the parking lot in a suspicious manner involved in a drug transaction.6
indicative of counter-surveillance. Once
the car was parked, the trunk popped open
from inside the car and John Sinde 6
“Constructive possession exists if an
retrieved the camera bag. He then walked
individual ‘knowingly has both the power
into the hotel, met his brother, Richard
and the intention at a given time to
exercise dominion or control over a thing,
either directly or through another person or
eyebrows of a reasonable jury’ when persons.’” Iafelice, 978 F.2d at 96
viewed in light of the totality of the (quoting United States v. Blackston, 940
evidence.” Id. (internal citation omitted). F.2d 877, 883 (3d Cir. 1991)).

10
 The government seizes upon Iafelice’s Here, however, the government wishes us
rationale and argues that it should apply in to draw the same conclusion based upon
this case as well. In doing so, the the weakest of facts. The government
government proposes that we assume an presented no evidence of what occurred in
entire series of events based on the fact the rear parking lot because that area was
that Cartwright and Jackson both came not under surveillance. It would be purely
from the rear parking lot through the conjectural for a jury to consider how and
breezeway of the Bala Cynwyd Shopping when Cartwright arrived at the rear
Center at the same time, the fact that parking lot. Furthermore, the government
Cartwright acted as a lookout during the presented no basis, other than “common
transaction, and the fact that Cartwright sense,” for a jury to conclude that anyone,
did not possess any car keys. Based solely much less Cartwright, had ever been
on these facts, the government asks us to guarding the cocaine during Jackson’s
draw the following chain of inferences: initial meeting. Nor is it reasonable to
(1) that Cartwright arrived in the rear assume that anyone guarding Jackson’s
parking lot with Jackson in Jackson’s Subaru must have been in actual or
Subaru; (2) that Jackson was unwilling to constructive possession of the cocaine.7
leave the cocaine unattended during the Moreover, no evidence was presented as to
initial meeting with Muhammed El; (3) any of Cartwright’s fingerprints on the
that, as a result, Cartwright was designated bricks of cocaine, on the blue and white
to sit in Jackson’s car during this period; shopping bag, or inside or outside
(4) that, in addition be being so designated, Jackson’s Subaru. Nothing in the record
Cartwright was given access to the suggested that Cartwright had ever been in
cocaine; (5) that Cartwright exercised possession of the cocaine or had ever been
dominion over the cocaine; and (6) that,
having exercised such dominion,
Cartwright must have recognized that the 7
For instance, in United States v.
impending transaction involved a
Terselich, 885 F.2d 1094, 1095 (3d Cir.
controlled substance. All of this, of
1989), the defendant had been a passenger
course, could have happened. But so
in a car that was pulled over on Interstate
could countless other scenarios that do not
95. Upon searching the car’s trunk, a state
lead to the ultimate inference the
police officer discovered cocaine in a
government seeks to draw.
secret compartment built into the trunk.
We held that while the defendant had
Our case law “forbids the upholding of
shared driving and lodging responsibilities
a conviction on the basis of such
with the driver, and appeared nervous
speculation.” Thomas, 114 F.3d at 406. In
during the stop, that evidence was not
Iafelice, our conclusion that the defendant
enough to support the inference that the
had been in constructive possession of the
defendant knew the cocaine was in the
heroin was based on observed activity.
secret compartment. Id. at 1098.

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inside Jackson’s Subaru. The substance of NYGAARD, J. dissenting.
the communication between Jackson and
Cartwright in the breezeway was also
unknown. The government presented no I respectfully dissent. Given the totality
evidence of any prior relationship between of the evidence, I believe the sequence of
Jackson and Cartwright, and did not events proven by the government
present any records from Cartwright’s sufficiently supports the inference that
cellular phone or two-way text messaging Cartwright was aware he was involved in
device that could establish such a a drug transaction. Cartwright was in
relationship. Nor did the government ever direct proximity to the drugs and, while in
show Cartwright to have previously been such direct proximity, had a conversation
involved in any drug trafficking activities. of unknown substance with Jackson, who
was in knowing possession of those drugs.
We therefore conclude that the Additionally, Cartwright first appeared in
government’s argument is speculative and the parking lot at the same time Jackson
not based on any logical or convincing reappeared with the drugs. After his
c o n n e c t io n t o e s ta b l i sh e d f a c t. conversation with Jackson, Cartwright
Accordingly, we hold that, even when immediately took up a look-out position
viewed in a light most favorable to the over the ensuing drug transaction. This
government, the evidence was not legally sequence of events creates, in my opinion,
sufficient to support Cartw right’s a “logical and convincing connection
conviction either for conspiring to between the facts established and the
distribute, or aiding and abetting the conclusion” that Cartwright was aware he
distribution of, cocaine. Because a was involved in a drug deal. United States
conviction under 18 U.S.C. § 924(c) v. Idowu, 157 F.3d 265, 269 (3d Cir
requires a finding that Cartwright had 1998)(internal citation and quotations
engaged in a drug trafficking crime, we omitted).
hold that his conviction on that count was
For these reasons I would affirm the
based on insufficient evidence as well.
District Court’s judgment.
IV. Conclusion

For the reasons set forth above, we will
reverse the judgment of the District Court
and remand with instructions to enter a
judgment of acquittal.

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