Tuesday, April 28, 2015

Tenth Circuit reverses drug-trafficking conviction for insufficient evidence

Last week, in United States v.Washington, No. 14-7017 (April 22, 2015), the Tenth Circuit reversed an Eastern District of Oklahoma conviction for possession of a controlled substance with intent to distribute based on insufficient evidence. The court described the procedural facts for the case as follows:

This appeal grew out of a car trip from Oklahoma City to McAlester, Oklahoma. The driver was the defendant, Mr. Anthony Washington; the passenger was his friend, Mr. Maurice Edwards. The car was a rental borrowed from Mr. Edwards’s mother.

Inside the car were roughly 7.5 kilograms of marijuana and 28 to 29 grams of methamphetamine. Upon discovering the drugs, authorities charged Mr. Washington and Mr. Edwards with (1) possession of controlled substances with intent to distribute and (2) aiding and abetting that offense. The jury found both men guilty, and the court entered a judgment of conviction for possession of controlled substances with intent to distribute.

The Tenth Circuit previously affirmed Mr. Edwards' conviction. But in this appeal, the court held that the evidence was insufficient to link Mr. Washington to the drugs. In doing so, the court reversed Mr. Washington’s conviction and remanded the case to the district court with instructions to dismiss the indictment.  Mr. Washington was represented in the case by Tulsa attorney (and accomplished beekeeper), Neil VanDalsem.

The court explained the pertinent facts as follows:

II. The Drugs

The trunk of the car contained a black duffel bag, which held fourteen bricks of marijuana and a receipt issued to Mr. Edwards. Drugs were also stored in three closed containers found in the car: a red “Cold- Eeze” box, a black zipper bag, and a “Green Tea Extract” bottle.

III. Culpability of Mr. Washington

From the large quantity of marijuana and methamphetamine in the car, the jury could have inferred that one of the two men was going toMcAlester to sell drugs. We have elsewhere held that the jury could have easily tied Mr. Edwards to the drugs. United States v. Edwards, __ F.3d __, No. 14-7028, 2015 WL 1296624, at *5 (10th Cir. Mar. 24, 2015). After all, he had fourteen bricks of marijuana in his duffel bag. But, Mr. Edwards’s culpability might not translate to Mr. Washington’s. In this appeal, we must decide whether the government sufficiently tied Mr. Washington to the drugs.

The court explained that “[i]f [Washington] knew about the drugs and had access to them, he could have been guilty of possession with intent to distribute.” The court also explained that “if Mr. Washington drove Mr. Edwards to McAlester, knowing Mr. Edwards was going to sell the drugs, Mr. Washington might have been guilty of aiding and abetting the possession with intent to distribute.” But under either theory, however, the government had to prove that Mr. Washington had known about the drugs. 
To establish Mr. Washington’s knowledge, the government had to present evidence of a nexus between Mr. Washington and the drugs in the car. There had to be some connection or nexus individually linking Washington to the drugs.  His presence in the car was not enough.

The court examined the facts supporting the government’s theory, namely the smell of marijuana in the car and the presence of scales. But the court noted that the smell of marijuana could have simply been from consumption, not intent to deliver (even if Washington smoked marijuana, there is still no evidence that he knew how much was in the car). The court also noted that there was no evidence that Mr. Washington even knew that there were scales in the car. The court looked at other claims made by the government attributing evidence of knowledge to Mr. Washington, but dismissed these arguments as mere speculation. The court also noted that a 911 call could have provided some evidence of Mr. Washington’s guilt, but the statement was not offered for the truth of the matter asserted.

The court ultimately held that “[t]he jury could attribute guilt to Mr. Washington based solely on his presence in the car and speculation about his knowledge of Mr. Edwards’s plans. But the presence of Mr. Washington and speculation about his knowledge, even in combination, would not constitute sufficient evidence for the jury to find guilt beyond a reasonable doubt.” Accordingly, the court reversed Mr. Washington’s conviction based on insufficiency of the evidence (which means that retrial is barred by the Double Jeopardy Clause).  Overall, this is a rare win based on insufficiency of the evidence and a very nice result by the attorney in this case. 
--Carl Folsom

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