Drugs - Possession -- Possession with Intent to Distribute

McFadden v. United States, 135 S. Ct. 2298 (2015)

In a normal prosecution for possession, possessing with intent to distribute, or distributing a controlled substance, the government can satisfy the element of “knowledge” in one of two ways: (1) the defendant knew that he was possessing/distributing a controlled substance (though not necessarily which one – he or she did know however, that the object possessed was a controlled substance); or (2) the defendant knew that he or she was in possession of a particular substance (e.g., heroin, marijuana, cocaine, methamphetamine) which is, in fact, a controlled substance, even if the defendant did not know that the particular substance that he knew he was possessing was in fact a controlled substance. In other words, the defendant must either know that the substance possessed was some kind of controlled substance (though not necessarily which one) or that the substance was a particular substance, even if he did not know that that substance was a controlled substance. In a case involving an Analogue Drug, the same rule applies: the defendant must either be shown to know that the substance possessed was a particular substance that he knew to be an analogue, or he must be shown to have known that he possessed a particular substance which is, in fact, a qualifying analogue.

United States v. Washington, 783 F.3d 1198 (10th Cir. 2015)

The defendant was the driver of the car that had been borrowed by the passenger. In the passenger’s duffel bag was a substantial quantity of marijuana. There was also the smell of marijuana in the car. There were scales in the car, but they were not visible to the defendant. While the smell of marijuana might support the defendant’s conviction for consumption (possession) of marijuana, the evidence presented in this case was insufficient to support the defendant’s conviction for possession with intent to distribute the marijuana.

United States v. Rodriguez-Martinez, 778 F.3d 367 (1st Cir. 2015)

The defendant was a passenger in a car. When the car was pulled over, the defendant got out, walked to the corner and made a phone call. Drugs were found in the possession of the driver. The defendant was visibly nervous. A gun was found in the possession of the defendant. The First Circuit held that this evidence was insufficient to convict the defendant of aiding and abetting the possession with intent to distribute the drugs. His nervousness did not prove that he knew the driver was in possession of drugs and may just as well have reflected his concern about his own possession of the firearm.

United States v. Clark, 740 F.3d 808 (2d Cir. 2014)

The defendant was arrested, handcuffed and placed in the back of a patrol car and was driven to the police station, which took about one minute. When he was removed from the car, an officer looked under the back seat (where the bottom and back of the seat meet) and found a quantity of crack cocaine. It was not in a baggie. There was not a trace of crack cocaine on the defendant’s clothes or on his hands. Though an officer testified that the car was checked before the defendant was placed in the car and he was the only “passenger,” the Second Circuit held that the likelihood that the defendant, while handcuffed removed a quantity of crack cocaine measuring five inches in length and one inch wide, without leaving any trace of the drug on his hands or in his pockets or on his clothes, was so remote that a verdict of possessing the drug could not be sustained. “However, one prefers to quantify an unacceptable risk of convicting the innocent, it is difficult to imagine a case where the possibility that an innocent person has been convicted of an offense is greater than the one now before us.”

United States v. Pillado, 656 F.3d 754 (7th Cir. 2011)

The defendant was enlisted by undercover agents to help unload a kilogram of marijuana from a truck. The defendant was at first reluctant, but later agreed to help. He was prosecuted for possession with intent to distribute the marijuana. He requested an instruction on simple possession. The Seventh Circuit held that the trial court erred in failing to instruct the jury on simple possession. Though he obviously did not possess the marijuana for personal use, that is not the only type of simple possession that exists. The government failed to prove that the defendant’s only possession could have been for the purpose of distributing it. The defendant may have simply abandoned the marijuana, in which case he would not have possessed it with the intent to distribute it.

United States v. Silwo, 620 F.3d 630 (6th Cir. 2010)

The defendant was instrumental in procuring a van that was later used to transport marijuana and was also observed engaging in activity that appeared to be counter-surveillance. This evidence, alone, did not suffice to support a conviction for conspiracy to possess with intent to distribute marijuana. The defendant was not present when the van was loaded. The defendant was clearly in a scheme, but the evidence did not show that he knew the scheme involved the distribution of marijuana. For the same reason, the defendant could not be convicted of aiding and abetting the possession with intent to distribute the marijuana.

United States v. Wilson, 619 F.3d 787 (8th Cir. 2010)

Though the defendant was involved in a cocaine and marijuana conspiracy with others, his conviction for possession with intent to distribute cocaine that was found in one of his co-conspirators’ cars on a particular date was not could not be sustained, because there was no evidence that he knew his co-conspirator had cocaine in the car on that day and there was no evidence that the defendant exercised dominion or control over the drugs in that car.

United States v. Aponte, 619 F.3d 799 (8th Cir. 2010)

The two defendants were stopped driving an SUV in Nebraska. They had borrowed the car from another person. The police searched the vehicle and noticed that a cooler found in the cargo area had an odd weight. They eventually found cocaine in a hidden compartment in the cooler. The Eighth Circuit held that there was insufficient evidence to support the defendants’ conviction. It was not obvious that the cooler had a hidden compartment and, because the vehicle had been borrowed from a friend, there was no basis to assume that the defendants possessed, or knew about the cocaine.

United States v. Perez-Melendez, 599 F.3d 31 (1st Cir. 2010)

The defendant was driving a truck with palletes of paper, some of which contained cocaine. While the evidence supported the conclusion that the defendant was aware that he was aiding and abetting the commission of criminal activity, the evidence did not establish beyond a reasonable doubt that he knew the criminal activity he was aiding was a cocaine transaction. The defendants gave inconsistent answers to agents when questioned about their activities, but this did not establish that they were aware of the specific crime that they were aiding.

United States v. Dooley, 580 F.3d 682 (8th Cir. 2009)

The police found a gun in the vehicle that the defendant was driving. The defendant denied knowing the gun was in the car. The court, at the request of the government, instructed the jury that “A person who, although not in actual possession, has both the power and the intention at a given time to exercise dominion or control over a firearm, or over a vehiclein which the firearm is located, is then in constructive possession of the firearm.” This was reversible error. Being in possession of the vehicle (actually, or constructively) does not automatically equate to possession of all the contents of the vehicle. (This case involves a firearm, but is included in this section, because its logic applies equally to a drug possession case).

United States v. Tran, 568 F.3d 1156 (9th Cir. 2009)

The defendant was in a car that exited a warehouse that had been used as a drug distribution site. The defendant was a passenger and the marijuana was in the trunk. There was insufficient evidence establishing that the defendant possessed the marijuana with intent to distribute it, or that he conspired to do so. The Rule 404(b) evidence may have established that he had knowledge of the marijuana (the limited purpose for which the evidence was admitted), but it did not establish that he constructively or actually possessed the marijuana – or aided and abetted the possession of the marijuana – or that he conspired to do so. See also United States v. Sanchez-Mata, 925 F.2d 1166 (9th Cir. 1991) and UnitedStates v. Estrada-Macias, 218 F.3d 1064 (9th Cir. 2000).

United States v. Garcia, 497 F.3d 964 (9th Cir. 2007)

With regard to certain counts, the evidence was not sufficient to prove that the defendant could be held responsible for conduct of other conspirators under a Pinkerton theory, because he was not shown to have been a member of the conspiracy at that time.

United States v. Esquivel-Ortega, 484 F.3d 1221 (9th Cir. 2007)

The defendant was a passenger in a van that was found to be smuggling a large quantity of drugs. The evidence was insufficient to convict him of possessing the drugs with intent to distribute, or with conspiracy to possess with intent to distribute. Mere presence in the van is not sufficient to convict the defendant of possession or conspiracy.

United States v. Penaloza-Duarte, 473 F.3d 575 (5th Cir. 2006)

The defendant was a passenger in a car loaded with methamphetamine. When a trooper in Louisiana stopped the car and discovered the drugs, the defendant claimed to be a confidential informant for a California detective, which was, in fact, verified by the California police. Though there was sufficient evidence of the defendant’s knowing possession of the drugs (he acknowledged knowing the drugs were in the car), the evidence was not sufficient to prove that he associated himself with, and engaged in, some affirmative conduct designed to aid the criminal venture, which is an indispensable component of an aiding and abetting conviction. There was no evidence that he loaded, or assisted in loading the car, or that he did any of the driving, or that he even knew the location to which the load was heading. A conviction must be reversed if the evidence construed in favor of the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged. A subsequent Fifth Circuit decision abrogated the standard of review in this case. United States v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014).

United States v. Rojas Alvarez, 451 F.3d 320 (5th Cir. 2006)

The evidence was insufficient to prove one defendant’s knowing possession of drugs that were found secreted in his trailer. The fact that he had custody and control of a residence are not dispositive of his knowledge of any narcotics located in that residence.

United States v. Scofield, 433 F.3d 580 (9th Cir. 2006)

The defendant’s conviction for possession with intent to distribute was reversed on sufficiency grounds. His presence in the house where the principal distributor operated was not a sufficient basis for finding that he was in constructive possession of the drugs in the house. Mere physical proximity to the drugs was not sufficient to sustain a possession conviction.

United States v. Mendoza-Larios, 416 F.3d 872 (8th Cir. 2005)

Two defendants, driving a car owned by another person, were found guilty of possession cocaine that was hidden in a welded compartment under the air bag compartment. The Eighth Circuit holds that the evidence was insufficient to convict either defendant. There was no proof that either defendant had knowledge of the drugs that were concealed in the car. See also United States v. Aponte, 619 F.3d 799 (8th Cir. 2010), annotated above.

United States v. Hussein, 351 F.3d 9 (1st Cir. 2003)

Claiming that it is an issue of first impression, the First Circuit holds that it is no defense to a § 841 charge that the defendant did not know the type, or quantity of drugs that he possessed. In this case, the defendant acknowledged that he possessed a controlled substance knowingly, but claimed he did not know what type of drug, or the quantity. The First Circuit held that even post-Apprendi, this is not a defense.

United States v. King, 345 F.3d 149 (2d Cir. 2003)

Drug dealers convicted under §841(a) need not know the type and quantity of drugs in their possession in order to be subject to sentencing enhancements contained in § 841(b). The court notes that this holding is consistent in virtually every Circuit.

United States v. Bennafield, 287 F.3d 320 (4th Cir. 2002)

The police found cocaine inside the defendant’s car and some more on the ground outside the car where he had been stopped. This only supports one prosecution for simple possession. The simultaneous possession of separate bags of drugs only amounts to one offense of possession under 21 U.S.C. § 844(a).

United States v. Cruz, 363 F.3d 187 (2d Cir. 2004)

The defendant was “hired” by a drug dealer to assault some men, but later the task was changed to “watch my back [while I finish] a deal.” This evidence was not sufficient to support a conviction of the “back-watcher” for possession with intent to distribute. While the defendant may have known that some type of crime was in progress, there was insufficient proof that he knew that it was a drug deal. See also United States v. Rodriguez, 392 F.3d 539 (2d Cir. 2004).

United States v. Cartwright, 359 F.3d 281 (3rd Cir. 2004)

The evidence was insufficient to prove that the defendant was a knowing “lookout” for a drug transaction (as opposed to some other offense) and therefore his convictions for being a member of a drug conspiracy and for aiding and abetting the drug offense were reversed on sufficiency grounds. The government failed to prove that the defendant knew specifically that the illegal activity in which he was participating involved drugs rather than some other form of contraband. The court notes several other Third Circuit cases that have overturned drug conspiracy and aiding and abetting convictions because of the absence of evidence that the defendant agreed to participate in the specific crime alleged in the indictment. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v. Caraballo-Rodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Jenkins, 345 F.3d 928 (6th Cir. 2003)

The defendant received an express mail package that the police believed contained drugs. The package was delivered to the defendant’s house and shortly thereafter she was approached by the police and questioned. She denied knowing what was in the package, claiming that she was paid $50 to receive it for someone else. The police “told” her it contained drugs and she responded, “Yeah” but again denied knowing what was in the package. The government offered evidence that she admitted to being a crack cocaine user, though she denied that it came from the person to whom the package was ultimately destined. The trial court committed error in admitting the statement that she used crack cocaine. The use of cocaine is not sufficiently probative of her intent to participate in the possession with intent to distribute cocaine. The court also concluded that the evidence was insufficient to support the conviction.

United States v. Brito, 136 F.3d 397 (5th Cir. 1998)

Two substantive counts of possession of marijuana were not supported by the evidence. The defendant participated in planning the shipment of marijuana, including finding drivers for the shipment. The defendant, however, did not participate in the actual shipment. The jury was not instructed that the defendant could be found guilty on the theory of aiding and abetting, so that theory was not available to support the conviction.

United States v. Valadez-Gallegos, 162 F.3d 1256 (10th Cir. 1998)

The defendant was a passenger in a truck with an attached camper that was stopped for driving too slowly. The defendant knowing the driver’s name; and the driver denied knowing the defendant’s name. The defendant claimed to have spent a few days at the driver’s aunt’s house. A subsequent search of the camper revealed a substantial quantity of ephedrine hidden in a fake roof. Though the defendant gave numerous inconsistent (and seemingly suspicious) statements during several interviews, the Tenth Circuit concluded that there was insufficient evidence linking him to the hidden contraband in the vehicle. Presence and proximity are inadequate to support a conviction.

United States v. Hunt, 129 F.3d 739 (5th Cir. 1997)

In a search of the defendant's apartment, the police discovered 7.998 grams of crack, some of which was cut in small quantities. A police officer testified that the smaller quantities were sufficient to distribute to "crack heads." The remaining evidence (including expert testimony and the presence of a gun in the apartment), was not sufficient to prove the "intent to distribute" element of the charged offense. A remand to enter a judgment on the lesser offense of misdemeanor simple possession was the appropriate remedy.

United States v. Delagarza-Villarreal, 141 F.3d 133 (5th Cir. 1997)

The defendant and his co-conspirator arranged to buy marijuana from (unbeknownst to them) an undercover agent. When the defendant and his co-conspirator arrived, the agent handed the co-conspirator a 4 ½ pound brick to inspect as a sample. The co-conspirator was satisfied with the sample (which he returned to the agent) and they agreed to engage in a large transaction later. This evidence did not a support a conviction for aiding and abetting the possession with intent to distribute the marijuana. The mere inspection of the sample did not constitute possession. Because the co-conspirator never possessed the marijuana, the defendant could not be convicted of aiding and abetting his possession of the marijuana.

United States v. Stephens, 118 F.3d 479 (6th Cir. 1997)

The defendant possessed two separate quantities of cocaine on the same date, but at different locations. Even though the drugs were acquired at different times, this amounted to only one offense of possession with intent to distribute. Thus, the defendant could not receive a gun enhancement pursuant to his possession of one cache of drugs (and a gun), and a § 942(c) sentence in connection with his possession of the other cache of drugs.

United States v. Leonard, 138 F.3d 906 (11th Cir. 1998)

The defendant was a passenger in the backseat of a vehicle that was stopped on the Interstate and found to contain drugs and guns. The evidence did not support the conviction of this defendant's conviction. No evidence linked this defendant to the drugs hidden in the tailgate, and there was no evidence that he aided and abetted the other occupants' possession of the contraband, even if he had knowledge of the drugs hidden in the car.

United States v. Stewart, 145 F.3d 273 (5th Cir. 1998)

The defendant was the driver of a car that was stopped on the interstate. His passenger was found to be in possession of cocaine (the car was owned by the passenger’s girlfriend). There was no evidence linking the defendant to the cocaine found in the passenger’s pants. When the defendant and the passenger were arrested and put in the back of the patrol car, they were – unbeknownst to them – taped. The passenger repeatedly chastised the defendant for speeding; but this did not establish that the defendant knew that the passenger was carrying drugs. The defendant’s conviction was reversed. The Fifth Circuit later abrogated the standard of review used in this case. United States v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014).

United States v. Ortega Reyna, 148 F.3d 540 (5th Cir. 1998)

The defendant and his family came to the border driving a pickup truck that he claimed was borrowed. Drugs were found in the tire. Though a person’s control of a vehicle supports an inference that the person knows about drugs in the vehicle, something more is required when drugs are secreted in hidden compartments. This is particularly true where, as here, the person who is driving the car borrowed the car and had only been in control of the car a short time. Moreover, the defendant did not appear nervous; he readily answered the border patrol agents’ questions; he provided neither implausible, nor inconsistent answers about the vehicle or his travels; and he did not possess a large amount of cash. The standard of review in this case was later abrogated in United States v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. 2014).

United States v. Quintanar, 150 F.3d 902 (8th Cir. 1998)

The defendant apparently arranged with a source to have drugs delivered to an unsuspecting third person. When the drugs arrived at that person’s house, she arranged to have the suspicious package delivered to her at another location, where she was then with the defendant. When the package was brought to her, she promptly got in the car with the drugs and drove to the police station. The defendant’s name was not on the package and neither his name, nor address was on the package. He never touched the package. This evidence did not establish the defendant’s constructive possession of the drugs.

United States v. Clotida, 892 F.2d 1098 (1st Cir. 1989)

There was no evidence to support the defendant’s conviction of possession with intent to distribute cocaine. The defendant was the traveling partner of another individual in whose suitcase a substantial quantity of cocaine was found. There was no evidence, however, that the defendant knew that her colleague was carrying the cocaine or participated or aided and abetted in this endeavor.

United States v. Martinez, 54 F.3d 1040 (2d Cir. 1995)

The defendant possessed 3-1/2 grams of cocaine, a cutting agent, a hand-held scale, and a gun. In the original panel opinion, the court held that the evidence was insufficient to prove that the defendant possessed the drugs with the intent to distribute. 44 F.3d 148. Reconsidering this opinion, however, the court decided to defer to the jury’s verdict, which was sufficiently supported by the evidence to establish the requisite intent. The court cited other cases in which substantially greater quantities of cocaine did not establish an intent to distribute. Turner v. United States, 396 U.S. 398 (1970)(14.68 grams of cocaine); UnitedStates v. Boissoneault, 926 F.2d 230 (2d Cir. 1991)(5 grams); United States v. Gaviria, 740 F.2d 174 (2d Cir. 1984)(7 grams); United States v. Garrett, 903 F.2d 1105 (7th Cir. 1990)(1 ounce of cocaine).

United States v. Boissoneault, 926 F.2d 230 (2d Cir. 1991)

The trial court should not have allowed an agent to conclude that all of the physical evidence in the case suggested that the defendant was involved in the street level distribution of cocaine. Such a conclusion was not beyond the ken of the jury. Furthermore, even assuming the admissibility of this testimony, the evidence was insufficient to support a conviction of possession with intent to distribute. The defendant was arrested after a traffic stop. He had none of the typical paraphernalia of a distributor. He had a ledger (which the agent described as a drug accounts receivable ledger), $1,460 in cash, and 5 grams of cocaine. Only a possession offense could be upheld.

United States v. Labat, 905 F.2d 18 (2d Cir. 1990)

There was no evidence supporting the defendant’s conviction of possessing cocaine. Although the evidence was sufficient to support his conspiracy conviction, the trial judge did not instruct the jury on the law of Pinkerton, thus the Court of Appeals could not affirm the conviction on that theory.

United States v. Jenkins, 90 F.3d 814 (3rd Cir. 1996)

The police followed suspects into an apartment where they found the defendant and another individual sitting in front of a coffee table on which there was 55 grams of cocaine, scales, guns and ziplock-bags. There was no evidence linking the defendant to the drugs on the table. He was a visitor in the apartment and did not have actual possession of the drugs, nor was there evidence that he exercised dominion or control over the drugs. Mere proximity to drugs, without more, does not support a possession conviction.

United States v. Brown, 3 F.3d 673 (3d Cir. 1993)

One of the defendants in this case was convicted based on the facts that she acknowledged that the house where drugs were found was hers (though the deed to the house was in another occupant’s name); she had a key to the house; and drugs were found in various locations, including the refrigerator (though not in her room). Two other men also resided at the house. The evidence supported a conclusion that the defendant was aware of the drugs in the house and also that she was probably aware that drugs were distributed from the house. Nevertheless, the evidence was insufficient to prove that the defendant possessed the drugs in the house.

United States v. Salmon, 944 F.2d 1106 (3rd Cir. 1991)

The defendant clearly was acting as a lookout for a narcotics transaction. While the evidence showed that he knowingly acted as a lookout, there was no evidence that he knew the transaction involved the distribution of cocaine. A conviction for aiding and abetting the cocaine transaction, or for conspiring to possess with intent to distribute cocaine, could not be sustained on this evidence alone. (NOTE: The Third Circuit later issued an opinion questioning whether this case utilized the proper standard of review, United States v.Caraballo-Rodriguez, 726 F.3d 418 (3rd Cir. 2013).

United States v. Fountain, 993 F.2d 1136 (4th Cir. 1993)

The defendant was arrested in possession of two guns and approximately 2.3 grams of marijuana. The marijuana was in three baggies, all contained within another baggie. He also had some rolling papers and some change. This evidence did not support a conviction of possession with intent to distribute. Consequently, the gun possession conviction was also reversed, as the underlying drug offense must be a trafficking offense.

United States v. Baker, 985 F.2d 1248 (4th Cir. 1993)

The defendant was charged with attempted possession with intent to distribute cocaine. He made numerous attempts to obtain money from a bank, and his supplier was arrested in possession of a kilogram of cocaine. The evidence was insufficient to convict the defendant of attempting to possess that cocaine. He might have been attempting to obtain money to pay a back bill for cocaine or he might have been attempting to obtain money to flee the area (he was being sought by the sheriff and his wife). Even more importantly, it was far from clear that he intended to purchase the cocaine in order to distribute it, as opposed to consume it. With regard to the conspiracy count, moreover, the trial court erred in failing to instruct the jury on the lesser offense of conspiracy to possess cocaine, in addition to conspiracy to possess with intent to distribute.

Goldsmith v. Witkowski, 981 F.2d 697 (4th Cir. 1992)

The evidence was insufficient to sustain defendant’s state court conviction for possessing drugs found in an apartment where the defendant was visiting. Though drugs were found in plain view throughout the house, no evidence established that the defendant exercised actual or constructive possession of the drugs.

United States v. Jones, 945 F.2d 747 (4th Cir. 1991)

The evidence did not support defendant’s conviction for possession with intent to distribute cocaine. Though he possessed paraphernalia consistent with the distribution of drugs, this evidence did not suffice.

United States v. Skipper, 74 F.3d 608 (5th Cir. 1996)

The defendant was arrested after committing a motor vehicle offense (and attempting to evade the officer) and was found in possession of 2.89 grams of crack. Also in the car was a razor. The Fifth Circuit held that, as a matter of law, this evidence did not support a conviction of possession with intent to distribute. On remand, the lower court should enter a judgment of conviction on the lesser offense of simple possession.

United States v. Polk, 56 F.3d 613 (5th Cir. 1995)

Though a conspirator may be found guilty of substantive offenses committed by co-conspirators which were within the scope of the conspiracy under the Pinkerton theory, if the jury is not instructed about the Pinkerton theory, then a conviction on this theory may not be upheld. In this case, the conviction of one conspirator on one of the substantive counts was reversed because the only evidence of his participation was that his car was used in a drug transaction; however, he was not seen in the car nor was he identified as having participated in the transaction in any way.

United States v. Rosas-Fuentes, 970 F.2d 1379 (5th Cir. 1992)

No evidence supported the inference that the defendant controlled the vehicle in which marijuana was found or that he controlled the marijuana. There was no proof that the defendant even knew of the marijuana hidden in the gas tank. His possession conviction, therefore, was reversed. In addition, the government could not rely on a Pinkerton theory because there was no evidence that he knowingly entered into a conspiracy.

United States v. Sacerio, 952 F.2d 860 (5th Cir. 1992)

Defendant agreed to drive a car for a friend from Miami to New Orleans. He was stopped in Mississippi and, after consenting to a search of the car, two kilos of cocaine were discovered hidden in the car. In the meantime, defendant had requested a friend to come out and help him. When the room was searched where the defendant and his friend were located, 1/2 gram of cocaine was found. The evidence did not support the defendant’s (or his friend’s) conviction for conspiracy to possess the cocaine in the car or possession of cocaine in the car. Although some of the circumstances are suspicious, mere suspicion cannot support a verdict of guilty. It is not enough that the defendant merely associated with those participating in a conspiracy, nor is it enough that the evidence “places the defendant in a climate of activity that reeks of something foul.”

United States v. Pigrum, 922 F.2d 249 (5th Cir. 1991)

The evidence linking defendant to the possession with intent to distribute the cocaine was as follows: (1) she was present in the house where the cocaine was discovered; (2) undergarments were found in the bedroom dresser; (3) drug residue and paraphernalia were in plain view in the house; (4) when the police arrived at the scene, defendant didn’t open the door until she announced to the other occupant in the house that the police were present; and (5) an undercover purchase of cocaine had been made at the house shortly before the search. This was not sufficient evidence to support the conviction.

United States v. Garcia, 917 F.2d 1370 (5th Cir. 1990)

The evidence was insufficient to support a conviction of the defendant for possessing contraband found in a vehicle. The evidence failed to establish that the defendant ever actually or constructively possessed the marijuana. In addition, the evidence did not support an inference that he had dominion or control over either the vehicle in which the marijuana was found or the parking lot in which the vehicle was parked.

United States v. Onick, 889 F.2d 1425 (5th Cir. 1989)

There was insufficient evidence to justify the conviction of one defendant for possession to distribute heroin or cocaine. The room in which this defendant was found contained no drugs and no one testified that this defendant possessed any drugs at any time. At most, the evidence revealed that the defendant associated with another defendant who was in possession of the drugs. This evidence was not sufficient.

Young v. Guste, 849 F.2d 970 (5th Cir. 1988)

Drugs were found on a dresser that also had the defendant’s jewelry on it. This evidence alone does not show that the defendant had constructive possession of the drugs. The jewelry on the dresser only indicated that the defendant had access to the general area, not the ability to exercise dominion or control over the contents of the dresser.

United States v. Moreno-Hinojosa, 804 F.2d 845 (5th Cir. 1986)

The defendant did not constructively possess the 50 kilograms of marijuana found in the trailer of a truck in which he was a passenger. The defendant did not have the key to the tractor or trailer, none of his fingerprints were found on any of the marijuana packages, and the government agents could find no marijuana residue on any of his clothes or boots.

United States v. Ledezma, 26 F.3d 636 (6th Cir. 1994)

The defendant entered into a drug conspiracy after the drugs were distributed by the principals. Though he could be found guilty of being in the conspiracy, the evidence did not support his conviction for aiding and abetting the offense.

United States v. Peters, 15 F.3d 540 (6th Cir. 1994)

The police executed a search warrant at an apartment. The male was found in the bedroom, where a small quantity of cocaine and a firearm were found. A female was found downstairs, dressed in a nightgown. This evidence was insufficient to convict the female of possessing either the gun or the drugs. The evidence also failed to establish that the two were engaged in a conspiracy.

United States v. Pena, 983 F.2d 71 (6th Cir. 1993)

The evidence did not support defendant’s conviction for possession of cocaine. She was a passenger in a car containing 17 kilograms of cocaine. Though she stated that she thought something illegal was in the car, she had no specific knowledge of what it was. There was no evidence that she took any steps to assist in the transportation or delivery of the contraband. The mere fact of being a passenger in the car is not sufficient to support a conviction.

United States v. Walker, 972 F.2d 679 (6th Cir. 1992)

Defendant was charged with possession of prescription drugs. All he actually possessed, however, was the prescription. Possession of the prescription does not amount to constructive possession of the drugs.

United States v. White, 932 F.2d 588 (6th Cir. 1991)

A marijuana patch was located three feet from the trailer in which the defendant lived with others. When questioned, the defendant acknowledged knowing about the patch. This knowledge, however, is not the same as possession or the intent to possess. The property did not belong to the defendant; therefore, the evidence was insufficient to support his conviction.

United States v. Mahar, 801 F.2d 1477 (6th Cir. 1986)

A conviction for unlawful distribution of a controlled substance to a patient of a medical clinic on a particular date could not be sustained solely on the evidence that, on that date, the patient received the medicine, but was not a patient of the clinic.

United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995)

The defendant was the target of a reverse sting in which the government provided the cocaine and he provided the money. At the time of the proposed transaction, the defendant brought the money and the government agent brought the cocaine. The defendant picked up the cocaine to examine it for two or three seconds and was then arrested. The court holds that this did not amount to possession, and the defendant could not be convicted for possession with intent to distribute the cocaine. There was no evidence that the defendant was about to leave in possession of the drugs, which would have explained an expeditious arrest. Even though the defendant actually had the cocaine in his hands for a moment, he did not actually possess the cocaine since he did not exercise dominion or control of the cocaine and there was no evidence that he actually considered the sale complete.

United States v. Windom, 19 F.3d 1190 (7th Cir. 1994)

In order to be convicted of possession of cocaine with intent to distribute on a constructive possession theory, the government must do more than establish “legal authority” to possess or distribute the drugs. Rather, the government must establish that defendant has the “recognized authority in his criminal milieu” to possess and determine the disposition of the contraband. In this case, the defendant was found in a house in which a backpack was found to contain heroin and cocaine. This evidence did not establish defendant’s constructive possession of the cocaine and heroin.

United States v. Manzella, 791 F.2d 1263 (7th Cir. 1986)

The defendant was a broker in a major cocaine deal, but never possessed, either constructively or actually, the cocaine involved. He could not be convicted of the substantive offense of possessing the drug with the intent to distribute. He could, however, be convicted of conspiring to distribute the drug. Furthermore, under the Pinkerton doctrine, as a conspirator, he could be held liable for the crimes of another if committed in furtherance of the conspiracy. Because the government did not rely upon the Pinkerton doctrine, the possession with intent to distribute charge was reversed.

United States v. Lopez, 42 F.3d 463 (8th Cir. 1994)

The defendant’s possession of four grams of methamphetamine which was 41% pure was not sufficient to convict the defendant of possession with intent to distribute. Neither the quantity nor the purity was sufficient to establish that the defendant did not possess the drugs for personal consumption.

United States v. Dunlap, 28 F.3d 823 (8th Cir. 1994)

The defendant was in the apartment when it was searched. He was in possession of a gun. In the house was cocaine and paraphernalia associated with the distribution of cocaine. This evidence does not support a conviction for either aiding and abetting the possession with intent to distribute the cocaine or for constructively possessing the cocaine with intent to distribute. The evidence equally supported the theory that the defendant was present to purchase cocaine for his own use.

United States v. Townley, 942 F.2d 1324 (8th Cir. 1991)

Defendant’s conviction for possessing cocaine with intent to distribute was reversed on sufficiency grounds. Though defendant’s fingerprints were on the tape in which the drugs were wrapped and he was photographed with other people involved in the narcotics transaction, the evidence did not show that the defendant possessed the drugs at the time and at the location alleged in the indictment.

United States v. Pace, 922 F.2d 451 (8th Cir. 1990)

Though the defendant was arrested driving a car with 200 pounds of cocaine in the trunk and in the back seat, the evidence was not sufficient to support his conviction. He testified at trial that the passenger had hired him to drive the car to Chicago and that he had no idea what was in the trunk or in the closed containers in the back seat. Although the defendant was present and was helping to commit the crime, the evidence did not establish that he knew the cocaine was present or that he was transporting the drugs.

United States v. Kearns, 61 F.3d 1422 (9th Cir. 1995)

The defendant and her co-conspirator conspired to purchase marijuana from an undercover agent. At the location of the proposed sale, the co-conspirator was arrested shortly after examining the marijuana and then showing the “seller” the buy money. Because the conspirator never had actual or constructive possession of the marijuana, a conviction for possession with intent to distribute could not be sustained.

United States v. Earl, 27 F.3d 423 (9th Cir. 1994)

The evidence failed to establish that the defendant, who was found in a house with several other individuals, exercised constructive possession of any of the drugs found in the house. The fact that he was present when drug sales were discussed and saw cocaine openly in the house is not sufficient to establish his dominion over the drugs.

United States v. Ramos-Rascon, 8 F.3d 704 (9th Cir. 1993)

Evidence that the defendants were present during discussions about a drug transaction and that they were later present when drugs were delivered to an undercover agent was insufficient to support a conviction for either conspiring to possess drugs or for aiding and abetting the possession of the drugs. After reviewing the various theories which the government advanced to support the conviction, the court wrote, “That a defendant is probably guilty is not enough. Our system works well. We can be proud of the safeguards that protect the innocent, even though they sometimes allow a guilty person to go free. No system can ensure accurate results in all cases. We learned long ago that it is better to err on the side of caution than to convict an innocent person. That historic wisdom remains true today, notwithstanding the current willingness to abandon constitutional protections in order to further the seemingly endless and potentially futile war on drugs.”

United States v. Vasquez-Chan, 978 F.2d 546 (9th Cir. 1992)

Six hundred kilograms of cocaine were seized from a house in which the defendants were temporarily residing. The massive undercover operation and surveillance had never previously identified the defendants as participants in the conspiracy. None of the other conspirators ever mentioned these defendants in conversations with undercover agents. The defendants were residing in a “stash” house. One of the defendants’ fingerprints were on the various cartons of cocaine located in the bedroom of one of the defendants, but no prints were found inside the containers. The defendants admitted knowing the drugs were in the house, but denied “possessing” the drugs. The defendant’s mere proximity to the drug, her presence on the property where it was located, and her association with the person who controls it are insufficient to support a conviction for possession. The proof failed to establish that either defendant exercised dominion or control over the cocaine. This evidence did not support defendants’ conviction of possession, aiding and abetting the possession, or conspiring to possess the cocaine. The Ninth Circuit later questioned the standard of review that was used in this case. United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010).

United States v. Rubio-Villareal, 967 F.2d 294 (9th Cir. 1992)

A trial court should not give an instruction to the jury to the effect that an inference can be drawn that the driver of a vehicle knows of the existence of any contraband in the vehicle. In effect, this instruction could lead the jury to ignore other relevant facts and make a decision based solely on the facts giving rise to the inference.

United States v. Ocampo, 937 F.2d 485 (9th Cir. 1991)

The evidence did not support defendant’s conviction for possession with intent to distribute and for conspiracy to possess with intent to distribute. A pickup, parked in the garage of defendant’s house, was found to contain 82 kilos of cocaine. The defendant did not have a key to the truck. Although a fingerprint of the defendant was found on one window of the truck and the defendant was seen in the company of another conspirator who was involved in the distribution of cocaine, the evidence did not support this defendant’s conviction on either a substantive or conspiracy count.

United States v. Leos-Quijada, 107 F.3d 786 (10th Cir. 1997)

The defendant’s vehicle was seen at a location that appeared suspicious. The vehicle left hurriedly. The police believed that the vehicle was at that location to meet drug couriers, so the police brought a similar vehicle to the same location and, sure enough, drug couriers approached the vehicle. This evidence was not sufficient to convict the defendant of possession with intent to distribute.

United States v. Reece, 86 F.3d 994 (10th Cir. 1996)

The police stopped a car being driven by the defendant. In the passenger’s lap were two marijuana cigarettes and a bag containing marijuana. In his pockets was cocaine. The evidence was not sufficient to convict the defendant of possession of any of the drugs, even though it was his car and he was the driver.

United States v. Jones, 49 F.3d 628 (10th Cir. 1995)

Four occupants of a rented car were stopped on the interstate. A search of the trunk revealed cocaine and a gun in the lining of the trunk. One of the occupants, in whose name the car was rented, became a government witness. She testified that, prior to leaving L.A. en route to Denver, the two male defendants, who were in the back, loaded the trunk of the vehicle. The witness did not see either of the defendants place the cocaine or the gun in the vehicle. Only speculation could support the inference that the defendants were responsible for the drugs and gun in the car, and their convictions could not be upheld on this evidence alone.

United States v. Jones, 44 F.3d 860 (10th Cir. 1995)

There was insufficient evidence to support the conviction of a passenger of a car that was transporting over 200 kilos of cocaine for either conspiracy to possess the drugs or for aiding and abetting the possession of the drugs. Throughout the interrogation of the driver on the side of the interstate, the passenger said virtually nothing; she did not have keys to the car or the trunk; she did not have any belongings in the trunk where the cocaine was; and the passenger’s fingerprints were not found on the cocaine. Even if a jury could believe that the passenger had knowledge of the drugs in the trunk, mere knowledge that the car in which she was a passenger contained cocaine does not make her a conspirator or an aider and abettor.

United States v. Puryear, 940 F.2d 602 (10th Cir. 1991)

Charged with drug trafficking, the defendant was convicted of the lesser included offense of possession of cocaine base. The jury did not determine the quantity of drugs possessed. Because possession can be either a felony or a misdemeanor under §844, the quantity is an essential element of the offense. In the absence of a jury finding, the defendant can only be sentenced for the misdemeanor offense.

United States v. Derose, 74 F.3d 1177 (11th Cir. 1996)

The government initiated a reverse sting, offering to sell marijuana to the defendants. The defendants were given a key to the trunk of a car which contained the marijuana and were told that, if they liked the product, they should drive it to a certain location. The defendant looked into the back of the car, examined the marijuana, and, as he started to walk away, was arrested. This was insufficient to convict the defendant for possession with intent to distribute. The record did not show that the defendants either physically placed marijuana in, or removed marijuana from, the back of the vehicle. The defendant did not drive the car and, in fact, it was not shown that the key given to the defendant was the ignition key. The defendant never had constructive possession of the marijuana. After he examined the marijuana, he started to walk away. There was no evidence that he approved of the product or actually consummated the transaction.

United States v. Lopez-Ramirez, 68 F.3d 438 (11th Cir. 1995)

A truck containing cocaine and an unidentified passenger drove to a house in which the defendant lived and backed up to the garage. It was not established that the defendant was the passenger. The driver was seen unloading the cocaine in the garage; the defendant was seen standing in the garage at this time. This evidence was insufficient to convict the defendant of conspiracy to possess the drugs or for possessing the drugs with intent to distribute. Mere association with a conspirator and presence in a vehicle that engages in counter-surveillance maneuvers is not sufficient to establish participation in a conspiracy to distribute cocaine or possession with intent to distribute cocaine. There was no evidence in this case that the defendant was aware of the contents of the container which was unloaded into the garage of the house where she was arrested.

United States v. Stanley, 24 F.3d 1314 (11th Cir. 1994)

The defendant was a passenger in a car being driven by a drug distributor and which had another occupant who was involved in the distribution of drugs. Drugs that were to be distributed were in the car. This evidence, alone, did not suffice to convict the defendant of either a conspiracy or substantive offense involving the drugs.

United States v. Clavis, 956 F.2d 1079 (11th Cir. 1992)

The government sought to sustain the defendant’s possession conviction on a Pinkerton theory. However, no evidence in the record established defendant’s membership in the conspiracy at the time that the witness testified that drugs were found in the house. Defendant’s conviction for possession could not be sustained. The evidence with respect to another defendant was also insufficient. This defendant was in jail at the time the drugs were found in a house he had previously resided in. He could not be found guilty of constructive possession and could not be found guilty on a Pinkerton theory, either.

United States v. Vidal-Hungaria, 794 F.2d 1503 (11th Cir. 1986)

The evidence was not sufficient in this case to convict the crewmembers of a vessel of conspiracy to possess marijuana with intent to distribute. The vessel was a large cargo ship that also carried substantial legitimate cargo. The marijuana was stored in hidden sealed compartments. There was no evidence that the crew participated in the loading of marijuana and no residue was found on articles of clothing or bedsheets taken from the crew quarters. No crewmembers made any inculpatory statements and no attempt was made by the vessel to elude the Coast Guard when the ship was first approached.

United States v. Fiallo-Jacome, 784 F.2d 1064 (11th Cir. 1986)

The defendant was convicted on two counts (among others) of possession of a controlled substance. Both counts involved cocaine and one count involved a lengthy period of time which included the date alleged in the second count. This constitutes double punishment for the same offense since there was no evidence that there were separate possessions.

United States v. Lucas, 67 F.3d 956 (D.C.Cir. 1995)

An apartment was searched and drugs and a gun were found in various places. The defendant had been the tenant in the apartment several years earlier, but had sub-let the apartment to his relatives. His fingerprint was found on a shoebox which contained drugs, but the government witnesses conceded that fingerprints remained on objects an indefinite period of time. There was no dispute that the defendant had not lived in the apartment for several years. The D.C. Court of Appeals concluded, “There can be no doubt that the evidence was insufficient to prove [defendant’s] knowledge of drugs in the house.” The Court also decried the fact that the defendant spent nearly four years in prison awaiting this decision.

United States v. Stephens, 23 F.3d 553 (D.C.Cir. 1994)

The police observed one defendant sell another defendant approximately 6 grams of crack cocaine. The purchaser was arrested and was also found in possession of just over $500. Both the seller and the purchaser were convicted of possession with intent to distribute cocaine within 1,000 feet of a school in violation of 21 U.S.C. §860(a). The evidence was insufficient with respect to the purchaser. The money was apparently the money that the purchaser intended to pay for the 6 grams of cocaine he had just purchased. Moreover, the cocaine he possessed was not broken down; it was one rock and was not packaged for further distribution. Finally, in order to infer an intent to distribute based solely on the quantity possessed, the quantity possessed must significantly exceed that necessary for personal use.

United States v. Teffera, 985 F.2d 1082 (D.C.Cir. 1993)

Though the defendant arrived in D.C. with a person who was carrying crack cocaine in his pocket, this evidence did not support defendant’s conviction of possessing cocaine. It is not a crime to travel with someone who is carrying drugs, even if the person is aware that his companion is in possession of contraband. “Mere negative acquiescence in the criminal conduct of others, even with guilty knowledge, is not sufficient to establish aiding and abetting.”