U.S. v. Jones

• Decision Date: 27 February 1995
• Docket Number: Nos. 93-4240,94-4030,s. 93-4240
• Citation: 49 F.3d 628
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Phillip Ellisor JONES, also known as Phillip Jones, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Talfred BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 628

49 F.3d 628

UNITED STATES of America, Plaintiff-Appellee, v. Phillip Ellisor JONES, also known as Phillip Jones,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Talfred BROWN, Defendant-Appellant.

Nos. 93-4240, 94-4030.

United States Court of Appeals, Tenth Circuit.

Feb. 27, 1995.

Rehearing Denied June 2, 1995.

Randy S. Ludlow, Salt Lake City, UT, for defendant-appellant Phillip Ellisor Jones.

Bruce C. Lubeck, Asst. U.S. Atty. (Scott M. Matheson, Jr., U.S. Atty., with him on the briefs), Salt Lake City, UT, for plaintiff-appellee U.S. of America in case No. 93-4240.

Edward K. Brass, Salt Lake City, UT, on the briefs, for defendant-appellant Talfred Brown.

Scott M. Matheson, Jr., U.S. Atty., and Bruce C. Lubeck, Asst. U.S. Atty., Salt Lake City, UT, on the briefs, for plaintiff-appellee U.S. of America in case No. 94-4030.

Before SEYMOUR, Chief Circuit Judge; MOORE, Circuit Judge; and SAFFELS, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

These appeals arise from the same trial in which both appellants were jointly accused. We combine them here for ease of disposition. After reviewing the record, we conclude the government failed in its burden of proof and thus vacate the judgments of conviction.

Talfred Brown and Phillip Ellisor Jones were convicted of possession of a controlled substance with intent to distribute, 21 U.S.C. Sec. 841(a)(1), and of carrying and using a firearm during a drug trafficking crime, 18 U.S.C. Sec. 924(c). Both raise several issues on appeal, but we deal only with the sufficiency of the evidence.

On October 6, 1991, Utah Highway Patrol Trooper John Kelley stopped a vehicle for speeding. The vehicle was driven by Lori Grove, with Tracy Duhart in the passenger seat, and Phillip Ellisor Jones and Talfred Brown in the back seat. While Trooper Kelley talked to the driver, he "observed the odor of burnt marijuana." After running a vehicle check, he returned to the car and saw "rolling papers" on the rear armrest next to Mr. Jones. Trooper Kelley ordered all four occupants to exit the car and discovered a marijuana "roach" in Mr. Jones' possession. Trooper Kelley proceeded to search both the interior of the vehicle and the trunk. ¹

While searching, he noticed a plastic screw loose in the trunk and observed the plastic trunk lining was pulled away from the trunk latch. Looking between the body of the car and the trunk lining, Trooper Kelley found a loaded pistol. After calling for backup, he resumed his search and discovered approximately 113 grams of crack cocaine eighteen inches from the place where he found the pistol.

Having negotiated the dismissal of charges against her in exchange for her "truthful" testimony, Ms. Duhart became the government's principal witness at trial. Even viewing her tale in a light most favorable to the government, as we must, it is blatant Ms. Duhart strained the limits of credulity.

According to her version of the facts, Ms. Duhart was at Ms. Grove's apartment in Denver on October 4, 1991. During that time, Ms. Grove had many telephone conversations, including several with a friend in Los Angeles called "Coco." Ms. Grove told Ms. Duhart "Coco" had just broken up with his girlfriend and wanted to come to Denver but was afraid to fly alone. Ms. Grove suggested that she and Ms. Duhart fly to Los Angeles and accompany "Coco" back to Denver. Although Ms. Duhart testified she understood the two women were going to return immediately to Denver, she inexplicably borrowed clothing and toilet articles from Ms. Grove and packed a bag to take with her.

The duo arrived at the airport, and Ms. Grove attempted to purchase tickets with a check. When the ticket agent refused to accept that means of payment, Ms. Grove paid $402 cash for two one-way tickets. The two women arrived in Los Angeles after midnight on October 5th. Mr. Brown, who was identified by Ms. Grove as "Coco," met them at the airport. He introduced both Ms. Grove and Ms. Duhart to his companion, Mr. Jones.

Although Ms. Duhart apparently expected to make an immediate return to Denver, she testified the four nonetheless agreed to go to a motel in Los Angeles where Mr. Brown obtained two rooms for the night. The next morning, they discussed renting a car to drive to Denver. To facilitate their local transportation, Mr. Brown left and returned with a brown car in which all drove to a rental car agency. After what Ms. Duhart testified was "probably three hours, maybe even four," because of difficulty in establishing the necessary qualifications, Ms. Duhart rented the car in her name, paid for by Ms. Grove's mother's credit card. ²

Having transferred the women's bags to the trunk of the rental car, the four drove the two vehicles to another neighborhood unfamiliar to Ms. Duhart to return the brown car. Mr. Brown gave the car keys to a man standing outside a house, went in, and returned shortly. Mr. Brown asked Ms. Grove to "pop the trunk," and he and Mr. Jones stood at the rear of the car "for a little while." Ms. Duhart could not see what they were doing nor hear what, if anything, they were saying. Ms. Duhart's only observation was that Mr. Brown walked out of the house "with his shirt untucked ... but before he went in his shirt was tucked in."

The group then returned to the motel where the women showered and changed clothes. ³ The four next drove the rental car to Mr. Brown's girlfriend's house to obtain his belongings. Mr. Brown went inside and returned with some clothes, which he and Mr. Jones put into the trunk with other items they had already stored there while the car was parked at the motel.

Again, Ms. Duhart did not see what the men were doing at the car trunk. She nonetheless stated she saw Mr. Brown with his clothes as he walked by the car, and "when he came back to the front of the car he did not have the clothes." She assumed, therefore, "he put those in the trunk of the car." At the same time, she heard no conversation between the two men.

Mr. Brown then returned to the front of the car, and while talking to Ms. Grove, "he was under the dashboard and he was feeling around under there." He then "got out and went to the front of the car where the hood was and was feeling around under there." Mr. Brown said nothing while conducting his explorations. The two men then got into the car, and the group began its journey to Denver.

At this juncture, it is noteworthy that the government's principal witness, the only witness who could have connected either defendant to the gun and the crack cocaine, saw neither a gun nor a package of any kind remotely resembling the package of crack cocaine. Thus, there is no direct evidence in the record tying either defendant to the items which formed the basis of the charges against them. Moreover, the government was unable to identify any fingerprints on the gun or the package of crack cocaine, and no one attempted to obtain prints from the interior of the trunk where those items were found. Consequently, the government's entire case stands or falls upon Ms. Duhart's testimony, which we have set forth in its entirety.

Nonetheless, the government argues there is sufficient evidence to support both convictions. The prosecution claims a reasonable jury could have found defendants guilty beyond a reasonable doubt upon the direct and circumstantial evidence contained in the record and the reasonable inferences drawn from such evidence. United States v. Leopard, 936 F.2d 1138, 1140 (10th Cir.1991); United States v. Coslet, 987 F.2d 1493, 1495 (10th Cir.1993).

First, the government relies extensively on inferences drawn from Ms. Duhart's testimony, depending heavily upon the facts Mr. Brown looked under the dashboard and hood of the car, and spent a few minutes by the trunk. The government argues these facts indicate Mr. Brown was looking for a place to hide the drugs and the gun. The government also contends the jury could have drawn an inference the women did not travel from Denver with the gun because of the jury's assumed knowledge that airport metal detectors would not have allowed them to carry the gun on an airplane. The government also contends there are guilty inferences in the bizarre circumstances of Ms. Grove and Ms. Duhart's flying to Los Angeles to pick up Mr. Brown and Mr. Jones and their driving back to Denver. Moreover, the government suggests, Mr. Jones' failure to offer a "valid reason" for traveling to Denver also supports this inference. ⁴ The government also points to Ms. Duhart's testimony that while the group was waiting at the side of the road following the stop by Trooper Kelley, Mr. Brown said he "should have smoked him." ⁵ This evidence, the government argues, was sufficient for a jury to conclude the defendants "knew about the drugs, had some right to control over them, helped or aided in their transportation, and that the drugs were for delivery to someone else."

Second, the government argues that sufficient evidence also exists to support conviction on the firearms charge. Under 18 U.S.C. Sec. 924(c), the government may prove defendants either used or carried the firearm. The use requirement is satisfied if defendants had "ready access" to the firearm and it was an "integral part" of their drug trafficking. United States v. Ross, 920 F.2d 1530, 1536 (10th Cir.1990). This court has held that the requirement was met when a gun was kept at home where drugs were distributed. United States v. Williams, 923 F.2d 1397, 1402-03 (10th Cir.1990), cert. denied, 500 U.S. 925, 111 S.Ct. 2033, 114 L.Ed.2d 118 (1991). Similarly, in a case where a defendant was arrested in his car with drugs and other indications of drug selling nearby and a gun was found underneath the driver's seat where he sat, we held the government established use. United States v. McDonald, 933 F.2d 1519, 1525-26 (10th Cir.), cert. denied, 502 U.S. 897, 112 S.Ct. 270, 116 L.Ed.2d 222 (1991). Williams and McDonald indicate the type...