United States v. Robert Shull ( 2009 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 09a0676n.06
    No. 08-4168                                    FILED
    Oct 08, 2009
    UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                          )
    )
    Plaintiff-Appellee,                         )       ON APPEAL FROM THE UNITED
    )       STATES DISTRICT COURT FOR
    v.                                                 )       THE SOUTHERN DISTRICT OF
    )       OHIO
    ROBERT H. SHULL,                                   )
    )
    Defendant-Appellant.                        )               OPINION
    )
    ______________________________                     )
    Before: MOORE and ROGERS, Circuit Judges; THAPAR,* District Judge.
    THAPAR, District Judge. Robert Shull appeals convictions of conspiracy to possess with
    intent to distribute crack cocaine, in violation of 21 U.S.C. § 846, and possession with the intent to
    distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Shull claims that the jury had
    insufficient evidence to convict him. As to the conspiracy count only, he is correct. Therefore, we
    AFFIRM in part and REVERSE in part.
    I.
    On January 20, 2007, Shull rode in a Saturn vehicle driven by Antwan Lewis. Lewis drove
    the vehicle into a strip mall parking lot. Officers Greg Sanderson and Jeremy Sampson of the
    Columbus Division of Police sat in a police cruiser parked in the same lot. As Lewis drove into the
    *
    The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
    Kentucky, sitting by designation.
    lot, Officer Sanderson recognized Shull and informed Officer Sampson that it was Shull. Officer
    Sampson stated that Shull had a warrant outstanding for his arrest. Lewis parked the vehicle in the
    lot, and left the vehicle to walk towards a nearby business. Shull remained in the vehicle for a brief
    period. When Shull exited the Saturn, the officers stopped him outside the vehicle, and Officer
    Sampson informed him that they had a warrant for his arrest. Looking through the passenger side
    of the car, Officer Sanderson saw a baggie of marijuana on the console area between the two seats.
    Officer Sanderson informed Officer Sampson, “[h]ey, we got marijuana,” to which Shull responded,
    “[y]eah, that’s my weed.”
    Officer Sanderson opened the passenger door and removed the marijuana baggie on the
    center console and saw another baggie sticking up from between the seats—almost directly below
    where the marijuana baggie was located. This baggie contained crack cocaine. Officer Sanderson
    went around to the driver’s side and found two more baggies of crack cocaine in between the
    passenger seat and center console. Officer Sampson followed Lewis and detained him; he searched
    Lewis and found $2,900. The officers’ search of Shull revealed two additional baggies of marijuana.
    Shull also had $41.
    Officer Sanderson preserved the contraband and sent the crack to the Columbus Police Crime
    Lab for analysis. The lab concluded that the three bags contained cocaine base weighing 52.9 grams.
    After the close of the prosecution’s case at trial, Shull moved for judgment and acquittal on
    both counts pursuant to Rule 29 of the Federal Rules of Criminal Procedure. This motion was
    overruled. A jury convicted Shull on both counts, and this timely appeal followed.
    II.
    Shull challenges the sufficiency of the evidence for each conviction. We review sufficiency
    of the evidence claims de novo to ascertain “whether after viewing the evidence in the light most
    favorable to the prosecution, any rational trier of fact could have found the essential elements of the
    crime beyond a reasonable doubt.” United States v. Garrido, 
    467 F.3d 971
    , 984 (6th Cir. 2006)
    (citing Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979) (emphasis in original)).
    A.
    The jury convicted Shull of conspiracy to possess with intent to distribute crack cocaine, in
    violation of 21 U.S.C. § 846. To prove a conspiracy, the government must prove the following
    elements beyond a reasonable doubt: “(1) an agreement to violate drug laws, (2) knowledge and
    intent to join the conspiracy, and (3) participation in the conspiracy.” United States v. Welch, 
    97 F.3d 142
    , 148-49 (6th Cir. 1996) (citation omitted). While the evidence that Shull agreed to join a
    conspiracy to violate the drug laws “need only be slight,” United States v. Hodges, 
    935 F.2d 766
    , 773
    (6th Cir. 1991) (citation omitted), it still must exist. Here, however, such evidence does not exist.
    Proof that Shull agreed to join a conspiracy to violate the drug laws cannot be found simply
    based on the facts that he rode in Lewis’s car, that he remained in the vehicle after Lewis exited, and
    that officers found three baggies of crack cocaine in the vehicle. See, e.g., United States v. Pearce,
    
    912 F.2d 159
    , 162 (6th Cir. 1990) (“‘[M]ere association with conspirators is not enough to establish
    participation in a conspiracy.’” (quoting United States v. Stanley, 
    765 F.2d 1224
    , 1243 (5th Cir.
    1985))). Moreover, the fact that Lewis had a large amount of money is not evidence of a
    conspiratorial agreement between him and Shull. Cf. United States v. Sanchez-Mata, 
    925 F.2d 1166
    (9th Cir. 1991) (holding there was insufficient evidence to prove conspiracy, where the defendant
    was a passenger, and had $24 at the time of arrest, and there was no evidence of a relationship
    between the alleged conspirators).
    Finally, the government argues that evidence of a conspiratorial agreement exists by virtue
    of the fact that Shull’s delayed exit from the car demonstrates that a drug transaction occurred
    between Lewis and Shull. We disagree. First, even if it were true that the evidence demonstrates
    that a drug transaction occurred between Lewis and Shull, it is questionable that a single sale of
    drugs amounts to a conspiracy. Otherwise, a mere purchaser of a small quantity of drugs would be
    a co-conspirator in a much broader supply conspiracy. Moreover, the evidence does not demonstrate
    that a drug transaction occurred between Lewis and Shull. It is true that drugs were found in the
    vehicle, but this alone does not prove that there was a drug transaction between the two of them.
    Considering that no drug paraphernalia such as scales or extra baggies were found to corroborate a
    transaction, it cannot be said that there is any proof of a drug transaction between Lewis and Shull.
    In short, the Government presented no evidence that Shull entered into a conspiratorial
    agreement to violate the drug laws. Therefore, his conviction on the conspiracy count must be
    reversed since—even when the evidence is viewed in the light most favorable to the
    Government—no rational trier of fact could have found the essential elements of this offense beyond
    a reasonable doubt. See 
    Garrido, 467 F.3d at 984
    (citing 
    Jackson, 443 U.S. at 319
    ).
    B.
    The jury also convicted Shull of possession with intent to distribute crack cocaine in violation
    of 21 U.S.C. § 841(a)(1). This offense requires proof that the defendant “(1) knowingly; (2)
    possessed a controlled substance; (3) with intent to distribute.” United States v. Peters, 
    15 F.3d 540
    ,
    544 (6th Cir. 1994) (citation omitted). The only element that Shull contests on appeal is the element
    of possession. Despite his arguments to the contrary, there is sufficient evidence of this element.
    Possession may be either actual or constructive, and it “it need not be exclusive and may be
    joint.” United States v. Craven, 
    478 F.2d 1329
    , 1333 (6th Cir. 1973) (citations omitted); United
    States v. Holt, 
    427 F.2d 1114
    , 1116 (8th Cir. 1970)).
    Actual possession exists when an individual knowingly has direct physical control
    over a thing at a given time, and constructive possession exists when a person does
    not have physical possession but instead knowingly has the power and the intention
    at a given time to exercise dominion and control over an object, either directly or
    through others.
    United States v. Hunter, 
    558 F.3d 495
    , 504 (6th Cir. 2009) (citations omitted); United States v.
    Welch, 
    97 F.3d 142
    , 150 (6th Cir. 1996)). Here, there is no evidence that Shull had physical
    possession of the crack cocaine. Thus, it cannot be said that he had actual possession of it.
    Evidence, however, does exist to support a jury finding that he had constructive possession. First,
    Officer Sanderson testified that “the crack was halfway under the passenger side seat, in between the
    front passenger seat and the emergency brake, in between the frame and the center console,” and that
    “the baggie of crack would have been visible to both the passenger and the driver.” This evidence
    alone would not be a sufficient basis for finding constructive possession. See United States v.
    Campbell, 
    549 F.3d 364
    , 374 (6th Cir. 2008) (holding that mere proximity to contraband is
    insufficient proof of constructive possession). However, this is not the only evidence indicating
    constructive possession. Most importantly, Shull also admitted to owning the marijuana that sat on
    top of the crack cocaine. And Lewis left Shull alone in the vehicle with the crack. The jury could
    reasonably infer that Shull constructively possessed the crack; otherwise one would not expect Lewis
    to have left Shull alone with such a large and valuable quantity of drugs.
    To be sure, there is no smoking gun here. However, considering that the evidence must be
    viewed in the light most favorable to the Government, and that the proof of possession need not
    “remove every reasonable hypothesis except that of guilt,” 
    Craven, 478 F.2d at 1333
    (citations
    omitted), a rational jury could conclude beyond a reasonable doubt that Shull had the power and
    intent to exercise dominion and control over the crack. Therefore, his conviction on the possession
    count must be affirmed.
    Shull argues that this case is indistinguishable from United States v. Bailey, where we held
    that “the defendant’s mere presence in a car where a gun is found and proximity to a gun are
    insufficient proof of constructive possession.” 
    553 F.3d 940
    , 947-48 (6th Cir. 2009) (citation
    omitted). Shull is wrong. In Bailey, the defendant was merely present in a vehicle that contained
    a loaded firearm. In other words, there was no action, word, or conduct linking the defendant to the
    contraband so as to indicate that he had some stake in it or power over it. See 
    id. at 945
    (citation
    omitted). The key factor distinguishing this case from Bailey is that Shull admitted that he owned
    the baggie of marijuana placed directly on top of the crack cocaine in the car. This critical
    admission, coupled with his proximity to the crack, and the fact that the driver of the vehicle left
    Shull alone with a large and valuable quantity of drugs supports the finding of constructive
    possession. As a result, the Government presented sufficient evidence of constructive possession
    here. See, e.g., United States v. Richardson, 
    161 F.3d 728
    , 732 (D.C. Cir. 1998) (holding that mere
    proximity to contraband is not enough to constitute constructive possession, but “proximity coupled
    with ‘evidence of some other factor . . .’” is enough (quoting United States v. Morris, 
    977 F.2d 617
    ,
    620 (D.C. Cir. 1992))).
    III.
    For the foregoing reasons, we AFFIRM the possession conviction, but REVERSE the
    conspiracy conviction. Because the district court grouped the two counts together for sentencing,
    it must resentence Shull. See United States v. Davis, 
    547 F.3d 520
    , 529 (6th Cir. 2008). We
    therefore vacate Shull’s sentence and remand for further proceedings consistent with this opinion.