United States of America v. ELLIOT CARTWRIGHT a/k/a DARYL ATKINS Elliot Cartwright

PRECEDENTIAL
UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-1466
UNITED STATES OF AMERICA
v.
ELLIOT CARTWRIGHT
a/k/a DARYL ATKINS
Elliot Cartwright
Appellant
On Appeal From the United States
District Court For the
Eastern District of Pennsylvania
(D.C. Crim. Action No. 02-cr-00581-2)
District Judge: Hon. James T. Giles
Argued January 26, 2004
BEFORE: NYGAARD, FUENTES
and STAPLETON, Circuit Judges
(Opinion Filed: March 1, 2004)
Patrick L. Meehan
United States Attorney
Laurie Magid
Deputy U.S. Attorney
Robert A. Zauzmer
Assistant U.S. Attorney
Kenya S. Mann (Argued)
Assistant U.S. Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Attorneys for Appellee
Maureen Kearney Rowley
Chief Federal Defender
David L. McColgin (Argued)
Assistant Federal Defender
Curtis Center - Suite 540 West
Independence Square West
Philadelphia, PA 19106
Attorneys for Appellant
OPINION OF THE COURT
STAPLETON, Circuit Judge:
D e f e n d a n t E l l io t C a r t w r i g ht
(“Cartwright”) appeals his conviction and
sentence, following a jury trial, for
conspiracy to distribute cocaine in
violation of 21 U.S.C. § 846 (2001), aiding
and abetting the distribution of cocaine in
violation of 21 U.S.C. § 841 (2001) and 18
U.S.C. § 2 (2001), and possession of a
firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)
(2001). The sole issue presented by this

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

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

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

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

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

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

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

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

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

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

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

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