Appeal from the United States District Court for the District of Nevada. DC No. CR-91-00108-ECR. Edward C. Reed, Jr., District Judge, Presiding.
Before: Canby, Reinhardt and Leavy, Circuit Judges
Luis Lua was charged with conspiracy to possess with intent to distribute and to distribute five or more kilograms of cocaine (Count I), and with possession of one kilogram of cocaine with intent to distribute (Count II). The jury acquitted him of the conspiracy charge but convicted him of the possession charge. The district court subsequently entered a judgment of acquittal on the possession charge, Count II. See Fed. R. Civ. P. 29(c). The government appeals that judgment. We affirm.
The government argues that there is sufficient evidence to convict Lua of possession under two different theories: co-conspirator liability under United States v. Pinkerton, 328 U.S. 640, 645-47 (1946), and dominion and control arising from constructive possession of the cocaine.*fn1
Although we are far from certain that we would find merit in the government's Pinkerton argument, we do not reach that theory here because the government waived it in the district court. In the Rule 29(c) hearing, the government did not argue that the evidence was sufficient under a Pinkerton theory; instead, it relied solely on evidence of constructive possession. See, e.g., RT May 7, 1992 at 1655 ("I believe that the court is correct in stating that the jury must have come to the decision that he was not a member of a conspiracy to distribute more than five kilograms of cocaine, but nevertheless had knowledge of one kilogram of cocaine and they based their verdict upon the facts in this case and they based their verdict on the fact that he handled one kilogram of cocaine when he passed it over to the driver of the Camaro"). The government had an opportunity to argue that the evidence was sufficient to convict Lua of possession on a Pinkerton theory, but it failed to present the issue. In light of this failure, we find that the government waived this argument.*fn2
II. Dominion and Control Arising from Constructive Possession
The government's other proffered basis for Lua's conviction is that he was in constructive possession of the cocaine and therefore exercised dominion and control over it. See United States v. Chambers, 918 F.2d 1455, 1457 (9th Cir. 1990) ("To prove the element of possession, the government need not demonstrate 'exclusive actual possession; it may be satisfied by proof of constructive or joint possession'") (quoting United States v. Soto, 779 F.2d 558, 560 (9th Cir. 1986), cert. denied, 484 U.S. 833 (1987)).
"In order to prove constructive possession of property, the government must demonstrate that the defendant both knows of the presence of the contraband and has power to exercise dominion and control over it. . . . Mere proximity to contraband, presence on property where it is found, and association with a person or persons having control of it are all insufficient to establish constructive possession."
United States v. Behanna, 814 F.2d 1318, 1319-20 (9th Cir. 1987) (quoting United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985)). See also Chambers, 918 F.2d at 1457 ("Constructive possession may be demonstrated by 'circumstantial evidence that the defendant had the power to dispose of the drug'") (quoting United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986)).
A. Evidence of Dominion and Control
Viewed in the light most favorable to the government, the evidence established the following with respect to Lua: first, that Ernest Benavidez was waiting for "Victor" and others to arrive, presumably with the cocaine; second, that Lua drove the Lincoln; third, that Lua engaged in counter-surveillance as he drove the Lincoln; and fourth, that Richard Carrillo leaned into the Lincoln for a couple of minutes. The evidence established nothing else with respect to Lua's involvement.
This evidence is insufficient to allow a reasonable jury to conclude that Lua exercised control over the cocaine. The facts that he drove the car and that it engaged in counter-surveillance do not establish constructive possession, as they reveal nothing about his control over the cocaine. With respect to the incident involving the stopped cars, there was no evidence that any cocaine actually changed hands, no references to any such exchange taking place, and no evidence that cocaine had ever been in Victor Corona's car. The only basis for a supposition that cocaine was exchanged was a witness's statement that, in his experience, drug sellers usually "transport the narcotics in one car and make the deal in another car." Moreover, even if it could be assumed that someone in the Lincoln did give cocaine to Carrillo when the cars were stopped, there is no evidence that Lua ever controlled it. At bottom, the only evidence here is that Carrillo leaned on the Lincoln, that Lua was driving, and that cocaine could have been passed to Carrillo although none was seen. This is insufficient to allow a reasonable jury to conclude that Lua "'had the power to dispose of the drug.'" Chambers, 918 F.2d at 1457 (quoting Disla, 805 F.2d at 1350).
With respect to the fact that Benavidez stated that he was waiting for "them," persons who presumably had the cocaine, there is no evidence that Lua was one of them. No one stated Lua's name or otherwise suggested that he had a role. If it is assumed that Corona did bring the cocaine, there is still no evidence whatsoever that Lua ever had the power to control it. The only evidence that is relevant to Lua is Carrillo's and Benavidez's use of the plural, and the fact that, on November 26, 1991, Lua was with Corona. This evidence gave no real basis for a jury to conclude that Lua had the power to dispose of the cocaine. Thus, all of the government's evidence against Lua establishes, at most, his "'proximity to contraband, presence on property where it is found, and ...