UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5327
FREDERICK JERMAINE POINDEXTER,
a/k/a Curtis Davis,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-94-483-A)
Argued: March 7, 1997
Decided: September 18, 1997
Before HAMILTON, Circuit Judge, KISER,
Senior United States District Judge for the
Western District of Virginia, sitting by designation, and
GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion. Judge Goodwin wrote
a dissenting opinion.
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COUNSEL
ARGUED: Dennis F. Nee, Washington, D.C., for Appellant. Bernard
James Apperson, III, Assistant United States Attorney, UNITED
STATES ATTORNEY'S OFFICE, Alexandria, Virginia, for Appel-
lee. ON BRIEF: Bernard S. Grimm, Washington, D.C., for Appel-
lant. Helen F. Fahey, United States Attorney, UNITED STATES
ATTORNEY'S OFFICE, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Following a jury trial, Frederick Jermaine Poindexter was con-
victed of: (1) conspiracy to possess cocaine with the intent to distrib-
ute, see 21 U.S.C. §§ 841(a)(1) and 846; (2) aiding and abetting the
possession of cocaine with the intent to distribute, see 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2; and (3) interstate travel in aid of racke-
teering, see 18 U.S.C. § 1952. On appeal, Poindexter challenges: (1)
the district court's denial of his motion to suppress; (2) certain evi-
dentiary rulings made by the district court; and (3) the sufficiency of
the evidence to support his convictions. For the reasons stated below,
we affirm.
I
On October 17, 1994, Poindexter and Thomas Lee Cheung traveled
on American Airlines Flight 36 from Los Angeles, California to Dul-
les International Airport, located near Washington, D.C. Poindexter
and Cheung checked in at the airport in Los Angeles just before Flight
36 departed, having made their reservation for Flight 36 at a travel
agency less than thirty minutes prior to Flight 36's scheduled depar-
ture. Neither Poindexter nor Cheung checked any luggage.
After Flight 36 arrived at Dulles Airport, Drug Enforcement
Administration (DEA) Task Force agents followed Poindexter and
Cheung from the gate to the terminal's upper level exit; the upper
2
level of the terminal is for passenger drop-offs so there is no departing
ground transportation. The agents followed Poindexter and Cheung
because they fit the description of two suspected drug traffickers on
Flight 36 provided by DEA agents in Los Angeles. The information
conveyed by the DEA in Los Angeles included: (1) that two men had
purchased two one-way tickets, paying in cash, for Flight 36;1 (2) that
the two men purchased their tickets at a travel agency less than thirty
minutes prior to Flight 36's departure;2 (3) that the two men arrived
at the gate just before the plane departed and checked no luggage; and
(4) a detailed description of each man: (a) "a black male flying under
the name of Curtis Davis, five foot ten, 200 pounds, approximately
20 years old wearing a white sweatshirt"; and (b)"an Hispanic male
flying under the name of Tony Lewis, five foot ten, wearing a green
shirt."
Prior to Flight 36's arrival at Dulles airport, a DEA Task Force
agent at Dulles Airport, Agent Frank Oliff, confirmed, from American
Airlines personnel, that two individuals flying under the names Curtis
Davis and Tony Lewis were aboard Flight 36. Agent Oliff was further
advised that the seat assignments for the tickets issued were next to
each other.
As Poindexter and Cheung reached the terminal's exit, they were
approached from behind by DEA Task Force agents. Poindexter and
Cheung stopped before the terminal exit and spoke to each other. At
this point, Poindexter and Cheung were able to observe the DEA Task
Force agents through a reflection on the terminal exit's glass doors.
Cheung then walked through the exit door, and Poindexter walked
back in the direction they had come from.
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1 At trial, there was no evidence introduced demonstrating that
Poindexter paid for his ticket in cash. The government's evidence only
established that Cheung's ticket was paid in cash.
2 At trial, the government did not demonstrate that the tickets were pur-
chased thirty minutes prior to Flight 36's scheduled departure. Rather,
the government's evidence demonstrated that Cheung and Poindexter
made their reservation for Flight 36 at the travel agency less than thirty
minutes prior to Flight 36's scheduled departure.
3
Cheung was followed through the exit door by two DEA Task
Force agents, Agent Oliff and Agent Arthur Jacobson. Agents Oliff
and Jacobson identified themselves and asked Cheung to speak with
them. During the encounter, Cheung clutched a duffle bag that he was
carrying tightly against his chest. In the conversation that ensued,
Cheung acknowledged that he had just arrived from Los Angeles.
Cheung allowed the agents to view his airline ticket which reflected
that it was issued for Flight 36 in the name of"Tony Lewis." Cheung
stated that he was traveling alone and had no identification. Agent
Oliff then asked if he could search the duffel bag. After Cheung
refused, Agent Oliff told Cheung that he and the bag were being
detained in order to allow a drug-sniffing dog (which was at the air-
port) to sniff the bag. A few moments later, Cheung threw the bag at
Agent Oliff and bolted across the lanes of traffic and over the guar-
drail, dropping to the lower level of the airport. Cheung was eventu-
ally apprehended in the airport parking lot. Meanwhile, one of the
DEA Task Force agents recovered a kilogram of cocaine from the
duffel bag.
While Cheung was approached, Poindexter remained under the sur-
veillance of other DEA agents. Poindexter was observed following
Cheung's movements. When Agents Oliff and Jacobson approached
Cheung, Agent William Buss overheard Poindexter mumble "shit."
Agent Buss identified himself to Poindexter and asked to speak to
him. During the conversation that ensued, Poindexter admitted that he
had just gotten off Flight 36 and indicated that he was traveling alone
and had no luggage. When asked his name, Poindexter replied
"Poindexter." However, the name on the ticket that he produced for
Agent Buss was in the name of "Curtis Davis." When asked how long
he was in Los Angeles, Poindexter indicated that he was there for two
days. During the encounter, Poindexter appeared nervous and fidgety.
Agent Buss then asked Poindexter if he could search him, and
Poindexter replied "go ahead." When Agent Buss discovered a pager
inside Poindexter's waistband, Poindexter became agitated and bellig-
erent and asked why he was picked for the interview. Agent Buss
responded by asking Poindexter why he was traveling under an
assumed name, why he had no luggage, and why he lied about travel-
ing alone, but Poindexter did not respond.
4
At this point, Agent Jacobson approached Agent Buss and
Poindexter. Agent Jacobson informed Agent Buss that Agent Oliff
had requested a drug-sniffing dog for the duffel bag that Cheung car-
ried. Poindexter then asked Agent Buss if he was under arrest. Agent
Buss told Poindexter that he was not but was nevertheless being
detained while he (Agent Buss) went for the drug-sniffing dog.
While Agent Jacobson was waiting with Poindexter, Agent Oliff
ran past in pursuit of Cheung, who had fled. Agent Oliff instructed
Agent Jacobson to handcuff Poindexter. After the cocaine was discov-
ered in the duffel bag and Cheung was apprehended, Poindexter was
arrested. Recovered from him following his arrest was, among other
things, a pager, which repeatedly went off during Poindexter's book-
ing.
On October 18, 1994, a federal grand jury sitting in the Eastern
District of Virginia returned a four-count indictment against Poindex-
ter and Cheung. Count I of the indictment charged Poindexter and
Cheung with conspiracy to possess cocaine with the intent to distrib-
ute, see 21 U.S.C. §§ 841(a)(1) and 846. Count II charged Cheung
with possession of cocaine with the intent to distribute, see 21 U.S.C.
§ 841(a)(1). Count III charged Poindexter with aiding and abetting the
possession of cocaine with the intent to distribute, see id. and 18
U.S.C. § 2. Count IV charged Poindexter with interstate travel in aid
of racketeering, see 18 U.S.C. § 1952.
Prior to trial, Poindexter moved to suppress the pager recovered
from his person following his arrest. The district court denied the
motion. At trial, the government's evidence centered around the facts
and circumstances leading up to Poindexter's arrest. In addition, the
government introduced evidence that a few months before Poindex-
ter's trip to Los Angeles, he purchased an automobile, paying $11,000
in cash, when he already owned an automobile and was unemployed.
The government also introduced evidence of a larger, ongoing busi-
ness enterprise reflected in repeated and interconnected telephone
activity, occurring both before and after Poindexter's arrest. The gov-
ernment's evidence showed that a person using the name "Tewana
Freeman" checked into a Best Western Hotel in Connecticut the same
day that Poindexter and Cheung traveled from Los Angeles with the
cocaine (October 17), with a scheduled departure date of October 19.
5
Shortly after Poindexter and Cheung were arrested, a call was placed
from the Best Western to Poindexter's pager, and to Cheung's home
phone.
On October 18, the day after Poindexter and Cheung were arrested,
a telephone call was placed from Cheung's residence to the Best
Western. That same day, a call was placed from the Best Western to
Cheung's pager. There was also a call on this date from the Best
Western to Poindexter's pager. The person registered as Tewana Free-
man checked out of the Best Western on October 18.
On October 19, a call was made from Tewana Freeman's number3
to Cheung's home telephone. On October 21, there was another call
made from the Tewana Freeman number to Poindexter's home tele-
phone. Other telephone activity connected Poindexter to an ongoing
business enterprise. A number which was displayed on Poindexter's
pager just after his arrest was a pager number in Los Angeles. This
Los Angeles pager number had previously been called by Poindexter
from his home nineteen times between September 8 and October 18.
Following his arrest, Poindexter called his house. Shortly thereafter,
a call was placed from Poindexter's house to the pager number in Los
Angeles.
Following their trial, Poindexter and Cheung were convicted on all
counts. Poindexter was sentenced to sixty-three months' imprisonment.4
Poindexter noted a timely appeal.
II
Poindexter contends that the district court erred when it refused to
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3 This was the home number in Maryland given by the person register-
ing as Tewana Freeman at the Best Western. Back in September, a call
had been placed from the Tewana Freeman number to Poindexter's
pager. Even earlier, back in August, the person using the name Tewana
Freeman had previously checked into the same Best Western, and a call
was placed from the hotel to Cheung's pager. The Tewana Freeman
number was later transferred to Cheung's home telephone number.
4 The record does not reflect the nature of Cheung's sentence.
6
suppress the pager recovered from his person following his arrest. We
disagree.
Poindexter was seized at the moment he was told he was being
detained so that the agents could obtain the drug-sniffing dog. See
generally Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968) (Under the Fourth
Amendment, a seizure occurs "when [an] officer, by means of physi-
cal force or show of authority, has in some way restrained the liberty
of a citizen."). Accordingly, we must resolve whether Poindexter's
detention at that time was justified. To justify a seizure, officers must
have a reasonable, articulable suspicion that the suspect is presently
engaged in criminal activity. See United States v. Sokolow, 490 U.S.
1, 7 (1989). "Reasonable suspicion" is "more than an inchoate and
unparticularized suspicion or hunch." Id. (quoting Terry, 392 U.S. at
27) (internal quotes omitted). It is a concept that"is not `readily, or
even usefully, reduced to a neat set of legal rules.'" Id. (quoting
Illinois v. Gates, 462 U.S. 213, 232 (1983)). In determining whether
a reasonable suspicion existed, we must consider the"totality of the
circumstances." Id. at 8. In the final analysis, the analytical process
requires a practical determination; it "does not deal with hard certain-
ties, but with probabilities." United States v. Cortez, 449 U.S. 411,
418 (1981). We must reach "a common sense conclusion" as to
whether the articulable facts to which the agents point reasonably
would raise a suspicion that Poindexter was "engaged in wrongdo-
ing." Id.
At the time of Poindexter's seizure, the agents knew or had been
informed that Cheung and Poindexter: (1) traveled together from a
known source city; (2) arrived at the gate just moments before Flight
36's scheduled departure; (3) had adjoining seat assignments; (4) had
purchased one-way tickets in cash; (5) checked no luggage; and (6)
split up after seeing the DEA Task Force agents approach them from
behind. The agents also knew that Poindexter: (1) traveled under an
alias; (2) carried a pager; (3) became agitated when the pager was dis-
covered; (4) was extremely nervous; (5) mumbled"shit" when Agents
Oliff and Jacobson approached Cheung; and (6) denied he was travel-
ing with anyone. While "[p]erhaps none of[the] facts [of this case],
standing alone, would give rise to a reasonable suspicion" of drug
trafficking, we are satisfied that, "taken together as appraised by an
experienced law enforcement officer, they provided clear justifica-
7
tion," United States v. Sharpe, 470 U.S. 675, 682 n.3 (1985), to seize
Poindexter. See Sokolow, 490 U.S. at 8-11 (concluding that agents
had reasonable suspicion justifying stop where defendant: (1) paid
$2,100 for two round-trip plane tickets; (2) traveled under an alias; (3)
traveled from a source city for narcotics; (4) stayed in the source city
for forty-eight hours; (5) appeared nervous during his trip; and (6)
checked no luggage).5
The remaining question is whether the agents were justified in
handcuffing Poindexter after Cheung fled. In our view, Cheung's
actions permitted Poindexter's continued detention, and in light of
Cheung's flight and the agents' scramble to chase him, it was cer-
tainly reasonable for the agents to handcuff Poindexter as Agent Oliff
instructed. See United States v. Crittendon, 883 F.2d 326, 329 (4th
Cir. 1989) (use of handcuffs on defendant during encounter permissi-
ble where officer could reasonably anticipate that he might be
required to go and aid his fellow officers who were chasing codefen-
dant in an effort to apprehend codefendant); United States v.
Hardnett, 804 F.2d 353, 357 (6th Cir. 1986) (holding that use or dis-
play of force will not convert stop into arrest); cf. United States v.
Perate, 719 F.2d 706, 708-09 (4th Cir. 1983) (fact that officers
approached suspect's car with drawn weapons did not convert stop
into an arrest). After the discovery of the cocaine in the duffel bag,
there was probable cause to arrest both Cheung and Poindexter. See
Beck v. Ohio, 379 U.S. 89, 91 (1964) (Probable cause to arrest exists
if "at the moment the facts and circumstances within [the officers']
knowledge and of which they had reasonably trustworthy information
were sufficient to warrant a prudent man in believing that the peti-
tioner had committed or was committing an offense."). The pager
was, therefore, properly admitted at trial because it was recovered
incident to Poindexter's arrest. See United States v. Robinson, 414
U.S. 218, 235 (1973) (police may conduct search of arrestee's person
after a valid custodial arrest). Accordingly, the district court properly
denied Poindexter's motion to suppress.
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5 We also note that the intended length of the detention--in order to
obtain the drug sniffing dog--was reasonable. See United States v.
McFarley, 991 F.2d 1188, 1191-93 (4th Cir. 1993) (permitting brief
detention of person and luggage when there was a reasonable suspicion
that the luggage contained contraband).
8
III
Poindexter also challenges the district court's admission of evi-
dence showing that, four months prior to the crimes charged,
Poindexter purchased an automobile for $11,000 in cash, at a time
when he was unemployed and already owned an automobile. This
evidence was admissible in this drug trafficking prosecution as evi-
dence of unexplained wealth. See United States v. Grandison, 783
F.2d 1152, 1156 (4th Cir. 1986) (holding evidence of"recently
expended large sums of cash" relevant in narcotics prosecution as evi-
dence of illegal dealings and ill-gotten gains); see also United States
v. Penny, 60 F.3d 1257, 1263 (7th Cir. 1995) (evidence of unex-
plained wealth admissible if it creates a reasonable inference that the
defendant was involved in a drug conspiracy or trafficking), cert.
denied, 116 S. Ct. 931 (1996); United States v. Figueroa, 976 F.2d
1446, 1454 (1st Cir. 1992) ("Evidence that the defendant possessed
or controlled substantial sums of money from unexplained sources is
relevant in a prosecution for drug trafficking.").6 Furthermore, this
evidence was admissible to prove Poindexter's ongoing business
enterprise, an element of the interstate travel in aid of racketeering
count. See United States v. Monu, 782 F.2d 1209, 1211 (4th Cir.
1986) (the prosecution must show that the offense conduct was part
of a "continuous enterprise," and not merely an isolated incident).7
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6 The district court also allowed into evidence, over Poindexter's objec-
tion, the Virginia registration of the car he owned at the time he pur-
chased the second automobile. Obviously, this evidence was admissible
to show that Poindexter owned an automobile at the time he purchased
the second automobile for $11,000 in cash.
7 Poindexter also challenges the district court's admission of evidence
showing that he called home following his arrest, and, thereafter, a call
was placed from his house to the Los Angeles pager number. For obvi-
ous reasons, this evidence was admissible on the conspiracy count as
well as the interstate travel in aid of racketeering count--the phone call
activity as a whole supported: (1) the inference that a conspiracy existed
and that Poindexter was a part of it; and (2) the inference that an ongoing
business enterprise existed, a necessary element of the interstate travel in
aid of racketeering count.
9
IV
Poindexter also argues that there is insufficient evidence in the
record to support each of his convictions. A defendant challenging the
sufficiency of the evidence to support a conviction bears "a heavy
burden." United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir.), cert.
denied, 116 S. Ct. 346 (1995). In reviewing the sufficiency of the evi-
dence supporting a criminal conviction, our role is limited to consid-
ering whether "there is substantial evidence, taking the view most
favorable to the Government, to support it." Glasser v. United States,
315 U.S. 60, 80 (1942). We must bear in mind that"[t]he jury, not
the reviewing court, weighs the credibility of the evidence and
resolves any conflicts in the evidence presented." United States v.
Murphy, 35 F.3d 143, 148 (4th Cir. 1994). Further, "if the evidence
supports different, reasonable interpretations, the jury decides which
interpretation to believe." Id. Reversal for insufficient evidence is
reserved for the rare case "where the prosecution's failure is clear."
Burks v. United States, 437 U.S. 1, 17 (1978). In sum, we "may not
overturn a substantially supported verdict merely because [we] find
the verdict unpalatable or determine that another, reasonable verdict
would be preferable." United States v. Burgos , 94 F.3d 849, 862 (4th
Cir. 1996) (en banc), cert. denied, 117 S. Ct. 1087 (1997).
A
To prove a conspiracy to possess cocaine with intent to distribute,
the government must establish that: (1) an agreement to possess
cocaine with intent to distribute existed between two or more persons
other than government agents; (2) the defendant knew of the conspir-
acy; and (3) the defendant knowingly and voluntarily became a part
of this conspiracy. See Burgos, 94 F.3d at 857. In addition to proving
the existence of a conspiracy beyond a reasonable doubt, the govern-
ment must also prove a defendant's connection to the conspiracy
beyond a reasonable doubt. See id. at 858. To satisfy that burden, the
government need not prove that the defendant knew the particulars of
the conspiracy or all of his conspirators. See id. Once it has been
shown that a conspiracy exists, the evidence need only establish a
"slight connection" between the defendant and the conspiracy to sup-
port conviction. See id. at 861. "The term `slight' does not describe
the quantum of evidence that the government must elicit in order to
10
establish the conspiracy, but rather the connection that the defendant
maintains with the conspiracy." Id. Because "a conspiracy is clandes-
tine and covert, . . . a conspiracy generally is proved by circumstantial
evidence and the context in which the circumstantial evidence is
adduced." Id. at 857. The circumstantial evidence can include "a vari-
ety of conduct, apart from selling narcotics." Id. at 859.
Poindexter contends that his conspiracy conviction must be
reversed because the government failed to prove he participated in
any conspiracy. We disagree. All of the evidence supporting Poindex-
ter's detention at the airport supports an inference that Poindexter and
Cheung conspired to possess cocaine with the intent to distribute.
First, the duffel bag Cheung was carrying contained a kilogram of
cocaine. Second, Poindexter and Cheung: (1) traveled together from
a known source city; (2) made their reservations at a travel agency
one minute apart and less than thirty minutes prior to Flight 36's
scheduled departure; (3) had adjoining seat assignments; (4) pur-
chased one-way tickets, with Cheung paying in cash; (5) checked no
luggage; and (6) split up after seeing the agents approach them from
behind. Third, Poindexter: (1) traveled under an alias (as did Cheung);
(2) carried a pager; (3) became agitated when the pager was discov-
ered; (4) was extremely nervous; (5) mumbled "shit" when he saw the
DEA Task Force agents approach Cheung; and (6) denied he was
traveling with anyone. Fourth, the government introduced evidence of
interrelated phone call activity that suggested a larger, ongoing enter-
prise. There were calls from the Best Western to Cheung's home and
pager number and Poindexter's pager. Furthermore, there were
attempted contacts between Poindexter and the Los Angeles pager
number both before and immediately following Poindexter's arrest.
Finally, the government introduced evidence that a few months prior
to Poindexter's arrest, the unemployed Poindexter purchased an
$11,000 automobile when he already owned one. Burgos instructs us
to focus "on the complete picture, viewed in the context and in the
light most favorable to the Government, that all of the evidence por-
trayed." Id. at 863.8 In our view, the evidence outlined above consti-
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8 The dissent makes two fundamental flaws in its analysis. First, the
dissent misconstrues our decision in Burgos as establishing a minimum
of the quantum of evidence necessary to support a conspiracy conviction.
11
tutes sufficient evidence to support Poindexter's conspiracy conviction.9
_________________________________________________________________
See post at 15 ("Surely Burgos expanded this court's conspiracy jurispru-
dence to its logical limits, and just as surely, this case exceeds those lim-
its."). A careful reading of Burgos belies such an assertion. In fact,
Burgos was not a close case and nowhere in the court's opinion does the
court indicate that it was establishing a floor of any sort. Cf. Burgos, 94
F.3d at 871 ("Based on the plethora of evidence, we conclude that a
rational jury could find beyond a reasonable doubt that Burgos partici-
pated in the conspiracy; indeed, we would be hard-pressed to accept that
a jury could conclude otherwise."); id. at 872 ("In addition to the surfeit
of evidence discussed thus far, both Gobern and Gonzales produced train
tickets bearing the name `Anthony Flores.'"). Second, Burgos tells us not
to "dissect[ ] the direct and circumstantial evidence by separately dis-
missing selective pieces," id. at 871, but that is exactly what the dissent
does. Rather than analyze all of the evidence "in context," id., the dissent
tells us why each piece of evidence standing alone is insufficient. Such
an analysis obviously ignores the cumulative impact of evidence that
when viewed in isolation may appear innocuous. The test is not whether
Poindexter is "plausibly not guilty," id. (citation and internal quotes
omitted), but rather whether a jury could properly convict Poindexter on
the facts adduced at trial. Id. And the evidence adduced at trial, when
viewed in context, yields one conclusion--there is substantial evidence
in the record to support Poindexter's conspiracy conviction. The dis-
sent's myopic view of the evidence is illustrated by the two questions it
asks near the end of the opinion: "How many citizens travel together,
know each other, know the same people, receive calls from common par-
ties and carry pagers? If one of those persons carries drugs, should these
associational facts be enough to convict the other of a criminal agree-
ment?" Post at 28. If these questions accurately summarize all of the evi-
dence against Poindexter adduced at trial then Poindexter's conviction
should be reversed. But, as discussed in the opinion, Poindexter did
much more than that and that is why his conviction must be affirmed.
9 Poindexter also contends that the evidence is insufficient to support
his conviction for aiding and abetting the possession of cocaine with the
intent to distribute, see 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We dis-
agree. At trial, the government was required to prove beyond a reason-
able doubt that Poindexter "knowingly associated himself with and
participated in the criminal venture." Burgos , 94 F.3d at 873 (citation and
internal quotes omitted). The criminal venture was the possession of
cocaine with the intent to distribute. That requires the government to
12
B
To be convicted of interstate travel in aid of racketeering, see 18
U.S.C. § 1952, a "defendant must (1) travel in interstate or foreign
commerce or use an interstate or foreign facility, such as the mail; (2)
intend thereby to promote an unlawful activity; and subsequently pro-
mote or attempt to promote that unlawful activity." Monu, 782 F.2d
at 1211. The unlawful activity may not be an isolated crime; rather
the unlawful activity must be a part of a continuous enterprise. Id.
Poindexter argues that the government did not prove that he
engaged in an ongoing business enterprise. This argument has no
merit. The ongoing business enterprise element was met by the evi-
dence concerning the quantity of cocaine recovered from the duffel
bag (a kilogram), Poindexter's prior $11,000 cash purchase of an
automobile when he was unemployed and already owned an automo-
bile, the repeated interrelated phone call activity that occurred both
before and after Poindexter's arrest, and the pager (which had nation-
wide coverage) recovered from his person following his arrest.
A similar argument to that raised by Poindexter was rejected in
Monu. In that case, the defendant received a package from outside the
country containing 135 grams of heroin. See id. at 1210. A search of
the defendant's home revealed a triple-beam balance scale. See id.
The defendant was convicted of, among other things, a § 1952 viola-
tion. The defendant challenged this conviction, contending that the
government failed, among other things, to establish the ongoing busi-
ness enterprise element. We rejected this contention:
_________________________________________________________________
prove beyond a reasonable doubt: (1) the possession of cocaine; (2)
knowledge of this possession; and (3) an intent to distribute. Id. "The
same evidence establishing a defendant's participation in a conspiracy
may support a conclusion that a defendant participated in the principal's
unlawful intent to possess and distribute drugs, thereby proving guilt of
aiding and abetting as well." Id. In our view, all of the evidence outlined
in this section of the opinion concerning Poindexter's conspiracy convic-
tion supports Poindexter's conviction for aiding and abetting the posses-
sion of cocaine with the intent to distribute.
13
The requirement . . . that the unlawful activity be part of a
continuous enterprise is satisfied by the evidence concerning
the triple-beam balance scale. This tool indicates that
Monu's receipt of the heroin was part of an ongoing enter-
prise, rather than an isolated instance of criminal conduct.
Id. at 1211.
Poindexter's pager and how it was employed,10 coupled with
Poindexter's prior $11,000 cash purchase of an automobile, the
repeated interrelated phone call activity that occurred both before and
after Poindexter's arrest, and the quantity of cocaine recovered from
the duffel bag places this case squarely within the scope of Monu.
Accordingly, we reject Poindexter's challenge to the sufficiency of
the evidence supporting his interstate travel in aid of racketeering
conviction.
V
For the reasons stated herein, the judgment of the district court is
affirmed.
AFFIRMED
GOODWIN, District Judge, dissenting:
Frederick Jermaine Poindexter's conspiracy conviction is based on
conjecture and upheld by surmise. Speculation and suspicion alone
cannot legitimize a conviction that lacks proof beyond a reasonable
doubt. Given the dearth of evidence and the government's reliance on
untenable inference, the trial court should have withdrawn this case
from the jury and granted a judgment of acquittal. 1 On appeal, I
_________________________________________________________________
10 Courts have expressly found that pagers are relevant in drug cases
because such devices are frequently used by persons involved in drug
trafficking. See, e.g., United States v. Jaramillo-Suarez, 950 F.2d 1378,
1385 (9th Cir. 1991); United States v. Rogers , 918 F.2d 207, 212-13
(D.C. Cir. 1990).
1 "Permissible inferences must . . . be within the range of reasonable
probability . . . . [I]t is the duty of the court to withdraw the case from
the jury when the necessary inference is so tenuous that it rests merely
upon speculation and conjecture." See Ford Motor Co. v. McDavid, 259
F.2d 261, 266 (4th Cir.), cert. denied, 358 U.S. 908 (1958).
14
believe that this court should reverse Poindexter's conviction.2 I
respectfully dissent and explain.
I. A COMPARISON WITH UNITED STATES V. BURGOS
In United States v. Burgos, five dissenting judges reiterated Justice
Jackson's warning of nearly a half century ago:"[T]he history of the
law of conspiracy exemplifies the tendency of a principle to expand
itself to the limit of its logic." 94 F.3d 849, 877-78 (4th Cir.) (en
banc) (Michael, J., dissenting) (citations and internal quotations omit-
ted), cert. denied, 117 S. Ct. 1087 (1997). Surely Burgos expanded
this court's conspiracy jurisprudence to its logical limits, and just as
surely, this case exceeds those limits.
In 1996, this court upheld Frank Burgos's conspiracy conviction.
To affirm the conviction, the court relied on physical evidence of the
defendant's fingerprint on a plastic bag filled with cocaine base (crack
cocaine).3 The court also relied on an agent's testimony that Burgos
admitted that he knew his coconspirators carried a package of crack
cocaine and that they intended distribution at a North Carolina univer-
sity. See id. at 871. Further evidence showed that the defendant pur-
chased his train ticket and his coconspirators' tickets, all of which had
_________________________________________________________________
2 In considering an appeal from a trial court's denial of a Rule 29
motion, this court must ask whether a rational trier of fact, starting from
a presumption of innocence, could have found the essential elements of
the charged offenses beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); United States v. Wilson, 115 F.3d 1185, 1190
(4th Cir. 1997). We view all of the evidence in the light most favorable
to the government and grant it all reasonable inferences therefrom.
Jackson, 443 U.S. at 319; Wilson, 115 F.3d at 119.
3 Although the Burgos majority insisted otherwise, the critical piece of
evidence in Burgos was the defendant's fingerprint, which appeared on
the plastic bag filled with crack cocaine. Burgos, 94 F.3d at 864 (describ-
ing fingerprint as "most damning physical evidence"). The Burgos
majority deemed the fingerprint so significant to the government's case
that the majority discussed it no less than twenty-six times in its twenty-
eight page opinion. One fingerprint discussion covers a full one and one-
half pages. Id. at 864-65. The Burgos majority's repeated reference to the
fingerprint belies any assertion that it was not a decisive factor in uphold-
ing Burgos's conviction.
15
identical return plans. The evidence also showed that Burgos knew
one of the coconspirators before the train trip, and that he talked and
shared food with both coconspirators during the trip. Government
agents testified that the conspirators exchanged telephone numbers
and attempted to leave the train station together. The government also
introduced proof that a newspaper discarded in the North Carolina
train station bathroom matched newspaper wrapped around the bag
filled with crack cocaine. During trial, the defendant's testimony was
conflicting and equivocal. See id.
In sum, the government's evidence in Burgos showed that Frank
Burgos handled a bag containing crack cocaine, that he knew about
his traveling companions' possession and plan to distribute the
cocaine, and that he was closely associated with at least one of his
coconspirators. Based on the aforementioned evidence, a majority of
this court found that the jury made a reasonable inference when it
determined that Burgos entered into an agreement to distribute
cocaine with his traveling companions.
The evidence in this case differs significantly from that in Burgos
because there is no proof connecting Poindexter with Cheung's
cocaine. In contrast to the fingerprint offered in Burgos, in this case
the government offered no physical evidence or testimony to show
that Poindexter ever touched, carried, handled, or directed the han-
dling of Cheung's bag. Poindexter's fingerprints were not found on
Cheung's bag or on the bag's contents. Moreover, there is no evi-
dence that Poindexter knew Cheung was carrying cocaine or that
Poindexter knew Cheung intended to distribute the cocaine.4 Instead,
the government's evidence showed only a brief and ambiguous con-
nection between Poindexter and Cheung. Unlike Burgos, in which the
_________________________________________________________________
4 As "evidence" of Poindexter's knowledge, the government speculated
about an agent's testimony that Poindexter mumbled an obscenity in
response to seeing Cheung approached by government agents. See Brief
for the United States at 22 ("That he knew Cheung was carrying cocaine
and that they were about to be caught is confirmed by Poindexter's
crude, but poignant, statement when he saw federal agents approach his
coconspirator with the cocaine -- `shit.'"). As discussed below, the gov-
ernment's explanation as to why Poindexter cursed is unsupported by the
evidence.
16
government presented testimony that the defendant knew his traveling
companions before the train trip, there is little evidence to show that
Poindexter knew Cheung before the flight5 or that the two men
intended to travel together. The evidence only established that a travel
agency entered Poindexter's and Cheung's airline reservations within
one minute of each other and that their tickets were sequentially
numbered.6 The government offered no proof of when the tickets
were purchased, who picked up the tickets, whether Poindexter pur-
chased Cheung's ticket, or whether Poindexter purchased his own
ticket.7 And, unlike Burgos , in which the government presented evi-
dence that the defendants sat together, exchanged food, and con-
versed, there is no evidence of association between Poindexter and
Cheung except that the airline assigned the two men adjacent seats.8
Whereas in Burgos, Frank Burgos attempted to depart the train station
with his traveling companions after exchanging phone numbers with
one of them, here there was only evidence that Poindexter and
Cheung walked together after exiting the plane, spoke briefly, and
parted company in the airport before being approached by agents and
before attempting to exit the airport. In short, the government offered
scant evidence to demonstrate a connection between Poindexter and
Cheung.
II. THE GOVERNMENT'S CASE
The government suggests that this case is about a"larger, ongoing
business enterprise," the purpose of which was to obtain cocaine in
Los Angeles, transport it across the country, and distribute it in Wash-
ington, D.C. The government presents "Darnell Harris," whom the
government would have us believe arranged a cocaine sale for
Poindexter. As "proof" that Harris arranged a sale, the government
_________________________________________________________________
5 There was no evidence of any phone calls, pages, or other contacts
between Poindexter and Cheung.
6 The evidence also shows that Poindexter's ticket was issued in the
name "Curtis Davis." However, unlike Cheung, Poindexter immediately
gave his own name when questioned by authorities. J.A. at 287.
7 Although Cheung's ticket was purchased with cash, no evidence was
offered as to how Poindexter's ticket was purchased.
8 There was no evidence that Poindexter and Cheung requested adja-
cent seats or that they actually sat together.
17
offers repeated calls from someone at Poindexter's residence to Har-
ris's Los Angeles pager during the month preceding Poindexter's and
Cheung's arrests. The government's conjecture continues with
Poindexter and Cheung traveling to Los Angeles to purchase and
transport cocaine. To explain the fact that Poindexter never handled
the cocaine, the government supposes that Poindexter was the "fi-
nance man" and that he asked Cheung to carry the cocaine for him.9
The government characterizes a postarrest call from Poindexter's resi-
dence to Harris's pager as a distress signal, designed to alert Harris
that Poindexter and Cheung had been unsuccessful in their efforts to
transport the cocaine. A "coconspirator" named Tewana Freeman
materializes. Because she contacts both Poindexter and Cheung, Free-
man becomes the government's link between the parties. For some
inexplicable reason, however, Freeman is hundreds of miles away in
a Connecticut Best Western on the same day the cocaine arrives in a
Virginia airport. Yet the government insists, and the majority agrees,
that this "evidence" proves Poindexter and Cheung had an agreement
to distribute cocaine.
A. Darnell Harris
To strengthen its allegation of a cocaine conspiracy between
Poindexter and Cheung, the government conjured up cocaine kingpin
Darnell Harris. And just who is Darnell Harris? We don't know. He
_________________________________________________________________
9 In its closing argument, the government made the following state-
ments, all of which were unsupported by the evidence: "This guy
[Poindexter] has been making drug profits, and he's keeping the business
going. He is buying tickets, the cost of doing business, to get to L.A. He
is taking his buddy to carry the drugs, buying his ticket, too; plopped
down the cash." J.A. at 370 (government closing argument). "Again, why
is conspiracy a separate offense? Because it allows the Poindexters of the
world to smile and say, `Sure, search me. I didn't have the drugs.'" Id.
at 369 (same). As explained below, there is no evidence in the record that
Poindexter made "drug profits." There is absolutely no evidence how
Poindexter or Cheung traveled to Los Angeles or whether they traveled
together. There is no evidence who paid for their tickets or the means by
which the tickets were paid. There is no evidence that Poindexter paid
for Cheung's ticket from Los Angeles to Virginia. There is no evidence
that Poindexter paid for his own ticket. There is little evidence that
Poindexter and Cheung knew each other before the flight.
18
did not testify. No statements of his were admitted. In its closing
argument, the government candidly admitted, "And the inference --
for example, we don't know who was in Los Angeles. But the reason-
able inference is, it is somebody who provided the cocaine." J.A. at
357 (emphasis added).10 Yet, the government offered no evidence in
support of this "reasonable inference." Despite this leap in logic, the
trial court allowed the government to argue to the jury that Harris was
connected to the alleged conspiracy.
At bottom, the government had no evidence of a cocaine connec-
tion between Poindexter and Harris. The only evidence on which to
base an association between Poindexter and Harris is that (1) in the
month preceding Poindexter's arrest, there were repeated calls from
Poindexter's residence to a Los Angeles pager registered to Darnell
Harris; (2) Poindexter's pager contained Harris's pager number; and
(3) after the arrests, a resident of Poindexter's household other than
Poindexter telephoned Harris's Los Angeles pager number. Even
though the evidence indicates that Poindexter did not live alone,11 the
government asserted that it was Poindexter who called Harris's pager
in the month preceding the arrests. The government also asserted that
a postarrest call from a public phone to Poindexter's residence and a
later call from his residence to Los Angeles was"all Poindexter activ-
ity." J.A. at 366. The government speculated about the content of
these calls: "He is making sure that the word gets back to L.A., `We
have been popped, guys, we have been popped.'" Id. at 366-67. Yet
the government had no evidence of the content of or motive behind
the calls. Perhaps Harris was a relative that one of Poindexter's family
_________________________________________________________________
10 See also J.A. at 213 ("Q: You don't know who [the cocaine] came
from? A: No. Q: You don't know where it came from, other than -- A:
Not specifically, no. . . . THE COURT: Where in Los Angeles it came
from? A: Where, from whom, that's right.") (testimony of Agent Oliff).
11 While Poindexter was in jail, someone at Poindexter's residence
received a phone call from the jail. Later, a call was placed from
Poindexter's residence to Harris's Los Angeles pager number. The fact
that someone in Poindexter's residence received a call and made a call
while Poindexter was incarcerated indicates that Poindexter did not live
alone. Therefore, it cannot be assumed that only Poindexter could have
made the nineteen telephone calls to Harris's pager during the month
preceding the arrests.
19
members planned to visit. Perhaps Harris was a medical doctor
Poindexter trusted. Perhaps Harris was a friend Poindexter visited,
and when Poindexter was arrested, someone in Poindexter's home
called Harris to tell him. We just don't know. The government's
"proof" is nothing more than an unsubstantiated assertion that
Poindexter arranged to buy cocaine over the telephone. Surprisingly,
the majority adopts the government's theory: "Other telephone activ-
ity connected Poindexter to an ongoing business enterprise. A number
which was displayed on Poindexter's pager just after his arrest was
a pager number in Los Angeles. This Los Angeles pager number had
previously been called by Poindexter from his home nineteen times
between September 8 and October 18." Majority Op. at 6. This con-
clusion is based on pure conjecture.
B. Tewana Freeman
The same can be said of the government's evidence concerning
Tewana Freeman; Freeman is another phantom coconspirator about
whom we know nothing. She did not testify. No statements of hers
were admitted. The government offered no evidence to connect her
to Cheung's cocaine. What's worse, the government can't say who
Tewana Freeman is: "Tewana Freeman, whoever this is." See J.A. at
361 (government closing argument) (emphasis added). Despite the
government's admitted ignorance as to Freeman's identity, the trial
court allowed jury argument that Freeman was connected to the
alleged conspiracy and that she linked Poindexter to the conspiracy.
Both the government and the majority assume that Freeman partici-
pated in a "larger, ongoing enterprise" to distribute cocaine in Wash-
ington, D.C.12 based on the following evidence: (1) Freeman stayed
at a Connecticut Best Western in August13 and then again in October,
checking into the motel on October 17, the same day that Cheung
_________________________________________________________________
12 That the government and the majority presume Freeman's involve-
ment in the conspiracy can be inferred from her role in the government's
case against Poindexter. If the government and the majority did not
believe Freeman was involved in the conspiracy, her travel plans and her
phone calls would be completely irrelevant to this case.
13 A telephone call from the motel was placed to Cheung's pager during
Freeman's August stay.
20
transported the cocaine from Los Angeles to Virginia; (2) she called
both Poindexter and Cheung from the Connecticut Best Western after
their arrests;14 and (3) Freeman's phone number was transferred one
week after the arrests to the number Cheung gave as his home num-
ber. The government offered no evidence to show why Tewana Free-
man stayed at the Connecticut Best Western on either occasion.
Neither did the government explain why, if Freeman was part of a
"larger, ongoing enterprise" to distribute cocaine in Washington,
D.C., she traveled to Connecticut on the day Cheung brought the
cocaine to Virginia. Nonetheless, the government and the majority
rely on Freeman's postarrest calls as proof of a shared criminal
enterprise.15 Despite the government's allegation that Poindexter and
Cheung formed a criminal agreement, an examination of the tele-
phone records reveals that Freeman's postarrest call to each of them
is the only telephonic link between Poindexter and Cheung. There is
no evidence that Poindexter and Cheung ever telephoned each other
or paged each other. There is no evidence that they used Freeman as
an intermediary. The only reasonable inference to be drawn from
Freeman's calls to Poindexter and Cheung is that Poindexter and
Cheung both know Freeman. That Poindexter and Cheung know a
common third party, however, does not provide a basis for the infer-
ence that Poindexter knew about or participated in Cheung's criminal
activity.
Furthermore, the government's suspicion that Freeman's call to
each of the parties concerned the cocaine transaction is not supported
by any evidence. It is critical to remember that we are not to grant the
government all possible inferences from the facts, only those that are
reasonable and logically compelled. See Evans-Smith v. Taylor, 19
F.3d 899, 908 n.22 (4th Cir.) ("While all inferences must be made in
favor of the prosecution, leaps of logic should not be."), cert. denied,
513 U.S. 919 (1994). Because the government offered no evidence of
Freeman's motive for making the calls or of the content of the calls,
_________________________________________________________________
14 In September, someone in Freeman's home placed a call to Poindex-
ter's pager. There was no evidence of another call until after the October
arrests.
15 The majority describes Freeman's calls as part of the "interrelated
phone call activity that suggest[s] a larger, ongoing enterprise." Majority
Op. at 11.
21
the jury had only timing to consider, that is, that the calls were made
after Poindexter's and Cheung's arrests. Timing alone is insufficient
to support the inference that the content of the calls concerned a
cocaine distribution agreement between Poindexter and Cheung. Cf.
United States v. Galvan, 693 F.2d 417, 420 (5th Cir. 1982) (pre- and
postarrest timing of "flurry" of calls between alleged coconspirators'
residences was insufficient to support inference that content of calls
was alleged conspiracy).
C. Recent Cash Expenditures and Rule 404(b)
To set the stage for the alleged intrigue, the government claimed
that Poindexter showed signs of profiteering in the drug trade. The
government offered as evidence Poindexter's $11,000 cash purchase
of a car at an auction four months before the charged conspiracy. The
government speculated that, because Poindexter bought the car for
cash during a period of unemployment, he must have purchased the
car with drug proceeds.16 The government then argued that because
Poindexter purchased the car in June with drug proceeds, he must
have conspired with Cheung four months later to distribute cocaine.17
_________________________________________________________________
16 The government argued: "And why do we know that Poindexter is
involved in cocaine? Because he is purchasing, for $11,000 in cash, this
unemployed guy -- you've got the records there-- where he is buying
a Lexus, and he plops down $11,000 in cash. . . . The unemployment is
at issue because he had no legitimate income to buy a Lexus, no legiti-
mate income to buy a cash ticket to and from California, no legitimate
income to buy a pager for cash, with extra nationwide coverage, no legit-
imate income to carry on his business activity. He is employed, all right.
He is employed in the drug business." J.A. at 363, 402-03 (government
closing argument).
17 "And he plops down $11,000 in cash drug proceeds to buy a Lexus
automobile. He has nationwide coverage on the beeper. Again, all of that
evidence goes to each of those counts. Is this guy a drug dealer? If you
think he had a beeper to call girl friends, acquit him. If you think that
beeper was for drug dealing -- if you think that the $11,000 just plopped
down in the bank account as some miraculous something from heaven,
acquit him. But you can't overlook that $11,000, and you can't overlook
the natural and reasonable inferences of where it came from." J.A. at
370-71 (government closing argument).
22
Evidence of the car purchase should never have been admitted over
the defendant's objection. Despite the trial court's broad discretion in
determining whether to admit Rule 404(b) evidence, admission of this
evidence amounted to an abuse of discretion. First, the purchase is too
remote in time to the charged conduct, and the government offered no
evidence connecting the car purchase with the alleged conspiracy.
Second, as demonstrated during closing argument, the government
offered the evidence for the improper purpose of a propensity argu-
ment.
Poindexter's June car purchase is too remote in time to the conspir-
acy, charged as beginning in October. The majority correctly cites
United States v. Grandison for the proposition that "recently
expended large sums of cash" may be relevant in drug prosecutions.
See Majority Op. at 9 (quoting United States v. Grandison, 783 F.2d
1152, 1156 (4th Cir.), cert. denied, 479 U.S. 845 (1986)). However,
this court has limited evidence of such expenditures to cases in which
unexplained wealth is contemporaneous with charged conduct. See,
e.g., United States v. McMillon, 14 F.3d 948, 954, 955 (4th Cir. 1994)
(allowing evidence of defendant's unexplained wealth"through the
period of the indicted conspiracy") (emphasis added); Grandison, 783
F.2d at 1154, 1156 (allowing evidence that defendant's briefcase was
full of cash contemporaneous with charged conspiracy). In fact, the
very cases cited by the majority limit evidence of large cash expendi-
tures to those made during the period in which the unlawful conduct
occurred. See Majority Op. at 9 (citing United States v. Penny, 60
F.3d 1257, 1263 (7th Cir. 1995) ("[E]vidence of wealth . . . . must
relate to wealth acquired during the period in which the narcotics
trafficking occurred.") (emphasis added) (citation omitted), cert.
denied, 116 S. Ct. 931 (1996); United States v. Figueroa, 976 F.2d
1446, 1451 & n.3, 1454 & n.7 (1st Cir. 1992) (allowing evidence of
wealth contemporaneous with charged conduct), cert. denied, 507
U.S. 943 (1993)). Poindexter's purchase of the car four months earlier
can hardly be considered "recent" or "contemporaneous" with the
October conspiracy and, therefore, should not have been admitted as
evidence.
Further, the government offered no evidence connecting the car
purchase to the alleged conspiracy with Cheung. In United States v.
Rawle, this court found prior bad acts admissible under Rule 404(b)
23
only when the evidence was "(1) relevant to an issue other than char-
acter, (2) necessary, and (3) reliable." 845 F.2d 1244, 1247 (4th Cir.
1988). This court elaborated that "[i]n order for the evidence to be rel-
evant, it must be sufficiently related to the charged offense." Id. at
1247 n.3; see United States v. Hernandez, 975 F.2d 1035, 1039, 1042
(4th Cir. 1992) (excluding evidence that defendant possessed a previ-
ously used recipe for crack cocaine because evidence"did not estab-
lish anything about her conduct or mental state during the course of
the conspiracy alleged in the indictment") (emphasis added). "Neces-
sary" has been defined as "an essential part of the crimes on trial or
. . . [that which] furnishes part of the context of the crime." Rawle,
845 F.2d at 1247 n.4 (citations omitted). Because Poindexter's car
purchase was not an "essential part of the crime," that is, the govern-
ment could not show that it related to the alleged conspiracy or that
it "furnish[ed] part of the context of the crime," the trial court should
have excluded evidence of the purchase as irrelevant. See id. at 1247
nn.3-4. Also, there is nothing inherently suspicious about Poindex-
ter's payment in cash; it is common knowledge that buyers at auction
often pay cash for their purchases. Although the government brazenly
stated to the jury that Poindexter could only have obtained the cash
from cocaine profits, it offered no evidence to connect the money to
cocaine sales.
Moreover, the government offered evidence of the car purchase for
an improper propensity argument. Rule 404(b) excludes evidence of
prior acts if offered to show a defendant's propensity to engage in
such conduct. FED. R. EVID. 404(b). Yet the government repeatedly
violated this prohibition in its closing argument:"And why do we
know that Poindexter is involved in cocaine? Because he is purchas-
ing, for $11,000 in cash, this unemployed guy -- you've got the
records there -- where he is buying a Lexus, and he plops down
$11,000 in cash." J.A. at 363 (government closing argument); see also
id. at 364, 370-71, 402-03, 405 (same). Because the government
offered this evidence in violation of Rule 404(b), it should have been
excluded from the jury's consideration.
D. Mumbled Obscenity
The government also resorted to the ambiguous evidence of
Poindexter's mumbled epithet, "shit," allegedly uttered in reaction to
24
DEA Task Force agents' questioning of Cheung. The government
offered this evidence as proof of Poindexter's knowledge that Cheung
carried cocaine. Poindexter's knowledge is a critical element in the
alleged agreement because, without his knowledge of the cocaine, the
agreement cannot be inferred from other circumstances. See Ingram
v. United States, 360 U.S. 672, 680 (1959) ("Without the knowledge,
the intent cannot exist.") (quoting Direct Sales Co. v. United States,
319 U.S. 703, 711 (1943)). Furthermore, "evidence of knowledge must
be clear, not equivocal." Id. (emphasis added) (quoting Direct Sales,
319 U.S. at 711).
There is no "clear" evidence that Poindexter knew Cheung carried
cocaine. The government offered an explanation but no proof as to
why Poindexter cursed. Further, the evidence weighs against the gov-
ernment's explanation: Poindexter's utterance occurred after he
rounded a corner. Thus, he could not see the scene to which his epi-
thet allegedly related.18 Although the jury could consider the sequence
of events, it could only speculate as to the cause of Poindexter's out-
burst. This falls short of the clear and unequivocal proof of knowl-
edge required.
E. Alleged Nervousness and Agitation
Another ambiguous factor relied on by the majority is testimony
regarding Poindexter's alleged nervousness and agitation during the
police confrontation. The majority proposes that Poindexter's anxiety
implicates him in the conspiracy. See Majority Op. at 11. Few inno-
cent people maintain absolute calm when singled out for police ques-
tioning. See United States v. Bloom, 975 F.2d 1447, 1458 (10th Cir.
1992). For this reason, little weight should be given to such factors
as nervousness and agitation, absent the witness's familiarity with the
subject's usual demeanor. The agent who testified as to Poindexter's
demeanor did not know Poindexter and was unfamiliar with his usual
demeanor. During questioning, the agent only noticed that Poindexter
_________________________________________________________________
18 "Q: Now, at this moment[when Agent Buss approached Poindexter
and before Poindexter cursed], Agent, is Cheung out of his sight, or can
he still see Cheung? A: He could not see him. . . .[T]he wall or the glass
is obstructing his vision of both Mr. Cheung and Task Force Agents Oliff
and Jacobson." J.A. at 310 (testimony of Agent Buss).
25
moved his weight from foot to foot, not unusual behavior after an
extended flight. When cross-examined, the agent stated that Poindex-
ter did not sweat, stutter, or mispronounce words during questioning.
J.A. at 300 (testimony of Agent Buss). In the absence of these objec-
tive signs of nervousness and any familiarity with Poindexter, the
agent's assertion that Poindexter appeared nervous must be consid-
ered a purely subjective determination. As such, it should be accorded
little weight when assessing the totality of the circumstances.
F. Alleged Flight Because of Guilt
The majority also states that Poindexter and Cheung"split up after
seeing the agents approach them from behind." See Majority Op. at
11. The majority interprets evidence offered at trial to show guilt by
flight. However, the record does not support the majority's conclu-
sion; there is only testimony that Poindexter and Cheung spoke
briefly and then parted while the agents were twenty feet behind
them. See J.A. at 138-39, 201, 203, 206-07 (testimony of Agent
Oliff); id. at 283 (testimony of Agent Buss). Agent Buss testified that
Poindexter observed DEA agents approach Cheung, but only after
Poindexter and Cheung parted. Id. at 283, 285, 304. Because there
was no testimony that Poindexter or Cheung saw the agents before
they spoke and parted company, the majority cannot infer that the
agents' approach caused Poindexter and Cheung to separate. Cf.
United States v. Beahm, 664 F.2d 414, 420 (4th Cir. 1981) ("If the
government wishes to offer evidence of flight to demonstrate guilt, it
must ensure that each link in the chain of inferences . . . is sturdily
supported.").
G. Pager
By far the most absurd piece of evidence on which the majority
relies, however, is Poindexter's possession of a pager with nationwide
service. The majority accepts without question the prosecution's argu-
ment that pagers are tools of the drug trade, particularly when the
owner has nationwide service without a "legitimate" need. The impli-
cations of this argument are disturbing. Apparently, it is now for the
government to decide which citizens have a "legitimate" need for pag-
ers with nationwide service. If a defendant falls outside the class of
26
citizens with "legitimate" needs, a rebuttable presumption of criminal
activity is established.
Thousands, perhaps millions, of Americans uninvolved in drug
trafficking or any unlawful activity routinely use pagers for business,
recreational, and family purposes. Absent proof that a specific pager
is used for unlawful purposes, the government cannot ask citizens to
justify their ownership. In this case, the government offered no evi-
dence to show that Poindexter used his pager for unlawful purposes.
Again, calls from Tewana Freeman and Darnell Harris do not support
an inference of Poindexter's criminal activity because the government
had no proof that Freeman or Harris participated in the alleged con-
spiracy. Because there is no evidence that Poindexter used his pager
for unlawful purposes, and because mere possession is not enough to
establish an inference of criminal activity, evidence of Poindexter's
pager ownership is irrelevant.
III. THE MAJORITY'S "COMPLETE PICTURE"
Poindexter's convictions rest on weak circumstantial evidence of
association with a criminal and the majority's presumption of
Poindexter's guilt. There is no evidence to connect Poindexter to
Cheung's cocaine. There is also no evidence to show a conspiracy
with Cheung. Rather than critically examining the evidence to deter-
mine whether it overcomes a presumption of Poindexter's innocence,19
the majority relies on a "complete picture" composed of nothing but
associational facts and speculative inferences consistent with unlaw-
ful conduct. See Majority Op. at 11. However, "[t]o start with the
assumption that the crime was committed and then to show that each
piece of circumstantial evidence can be explained in a consistent man-
ner is fundamentally different from examining each piece of evidence
and finally concluding beyond a reasonable doubt that the defendant
_________________________________________________________________
19 See United States v. Villegas , 911 F.2d 623, 630 (11th Cir. 1990) (in
reviewing the sufficiency of the evidence "the presumption of innocence
remains constant, irrespective of the heinous nature of condemned activ-
ity, as does the requirement that the government prove its case beyond
a reasonable doubt, notwithstanding the presence of mere suspicion and
speculation"), cert. denied, 499 U.S. 997 (1991).
27
was guilty." Evans-Smith v. Taylor, 19 F.3d 899, 910 (4th Cir.), cert.
denied, 513 U.S. 919 (1994).
How many citizens travel together, know each other, know the
same people, receive calls from common parties, and carry pagers? If
one of those persons carries drugs, should these associational facts be
enough to convict the other of a criminal agreement? Clearly, the
answer is no. The closest of associations can never be enough to sus-
tain a conviction. United States v. Villegas, 911 F.2d 623, 630 (11th
Cir. 1990) ("Knowing participation in a conspiracy . . . cannot be
proved solely by a family relationship or other types of close associa-
tion."), cert. denied, 499 U.S. 997 (1991). Guilt is "personal and not
a matter of mere association." Barenblatt v. United States, 360 U.S.
109, 150 (1959) (Black, J., dissenting from opinion affirming con-
tempt of Congress conviction for refusal to answer questions relating
to present or past membership in Communist Party) (citation omitted).
In this case, the totality of the circumstances does not amount to
proof beyond a reasonable doubt of a criminal agreement, but only a
cumulation of suspicion and speculation. There is no evidence from
which a jury could find beyond a reasonable doubt that Poindexter
agreed with Cheung to possess with intent to distribute nearly a kilo-
gram of cocaine. Accordingly, I would reverse Poindexter's conspir-
acy conviction. Because of the deficiencies in the evidence discussed
above, I would also reverse Poindexter's aiding and abetting and
Travel Act convictions.20
Again, I respectfully dissent.
_________________________________________________________________
20 I would also find that Poindexter was arrested at the moment he was
handcuffed and that there was insufficient probable cause at that time.
For the purposes of this discussion, however, I have treated the items
obtained pursuant to that arrest as properly seized.
28