U.S. v. Cartwright

• Decision Date: 01 March 2004
• Docket Number: No. 03-1466.,03-1466.
• Parties: UNITED STATES of America v. Elliot CARTWRIGHT a/k/a Daryl Atkins Elliot Cartwright Appellant.
• Court: U.S. Court of Appeals — Third Circuit

359 F.3d 281

UNITED STATES of America v. Elliot CARTWRIGHT a/k/a Daryl Atkins Elliot Cartwright Appellant.

No. 03-1466.

United States Court of Appeals, Third Circuit.

Argued January 26, 2004.

Opinion filed March 1, 2004.

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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, Philadelphia, for Appellee.

Maureen Kearney Rowley, Chief Federal Defender, David L. McColgin (Argued), Assistant Federal Defender, Philadelphia, for Appellant.

Before NYGAARD, FUENTES and STAPLETON, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge.

Defendant Elliot Cartwright ("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 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 cooperate with agents 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 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.

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 semiautomatic 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 consistent with his innocence. 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 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, 98 S.Ct. 2141, 57 L.Ed.2d 1 (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...