Appeal from the United States District Court for the District of Arizona. D.C. No. CR-91-00277-RGS. Roger G. Strand, District Judge, Presiding.
Before: Cynthia Holcomb Hall, Charles Wiggins, and Edward Leavy, Circuit Judges. Opinion by Judge Wiggins.
Catherine Kearns ("Kearns") was convicted of conspiring to distribute marijuana, in violation of 21 U.S.C. §§ 841 and 846, and of possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced Kearns to a 33-month prison term and a 60-month term of supervised release on each count, to run concurrently. As to count I, the court also imposed a $35,000 fine. The government's related civil forfeiture complaint against four properties owned by Kearns had been dismissed prior to trial. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part and reverse in part.
While defendant-appellant Catherine Kearns' husband, Jim Kearns ("Jim Kearns"), was incarcerated in a federal prison in Arizona, he approached another inmate, Sergio Teran, regarding a drug transaction. According to Teran's testimony, Jim Kearns stated that he and a partner were interested in buying large amounts of marijuana for distribution in Boston. Jim Kearns asked if Teran could supply the marijuana. He told Teran that he had been involved in drug trafficking before his incarceration, and that, through his wife, he invested his money in houses and properties.
Teran's wife, Rosemary Teran, had previously agreed to provide information to the Glendale Police Department ("GPD") to assist them in drug investigations. She and her husband Sergio agreed to act as informants regarding the Kearnses' drug operation. The Terans testified that they met several times at the prison with Jim and Catherine Kearns and Catherine's son, Ron Lynch. At those meetings, the parties made arrangements for the marijuana sales. During one of those meetings, Jim Kearns identified another prison visitor as Hobart Willis, the "financier" of the operation. Rosemary Teran testified that she also spoke several times with Catherine Kearns outside the prison regarding drug purchases.
During their prison meetings, the Kearnses, Lynch, and the Terans agreed that the first marijuana purchase would be for 100 pounds and would be conducted by Lynch. On September 6, 1990, Lynch met GPD Officer Pino, who posed as Sergio Teran's cousin, in a Mega Foods store parking lot. Pino and Lynch examined the marijuana in Pino's car and the money Lynch had brought, and then Lynch was arrested.
Catherine and Jim Kearns and Lynch were indicted for conspiracy to distribute over 220 pounds of marijuana (count I), and possession with intent to distribute approximately 50 pounds of marijuana (count II). Lynch pled guilty before trial. Catherine and Jim Kearns were tried separately, and Jim Kearns was convicted.
Before Catherine Kearns' trial had begun, the government filed a civil forfeiture complaint against four properties owned by Kearns. After the criminal trial had begun, Kearns filed a claim to the properties and an answer to the civil forfeiture complaint.
Kearns' trial on the criminal charges began on March 18, 1992, but the district court dismissed the indictment on the last day of trial. After the dismissal, the government and Kearns entered into a compromise settlement agreement to resolve the civil forfeiture proceeding. Pursuant to the agreement, the government's complaint was dismissed with prejudice, all properties were returned to Kearns, the rental income ($1,035) collected from one of the properties was applied to the U.S. Marshal's costs for maintaining the property, and Kearns agreed to a hold harmless agreement regarding the government's seizure and retention of the properties.
Following the government's appeal in the criminal case, this court ordered reinstatement of the indictment. United States v. Kearns, 5 F.3d 1251 (1993). Kearns was convicted on both counts in April 1994, and she was sentenced in June 1994. She timely appeals her conviction and sentence.
I. SUFFICIENCY OF THE EVIDENCE ON COUNT II
The evidence is sufficient to support Kearns' conviction for possession with intent to distribute marijuana if, reviewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); United States v. Lennick, 18 F.3d 814, 818 (9th Cir.), cert. denied, 130 L. Ed. 2d 100, 115 S. Ct. 162 (1994).
Kearns never had actual possession of the 50 pounds of marijuana that are the subject of count II. We may nevertheless affirm her conviction on count II if her coconspirator, Ron Lynch,*fn1 had possession of the marijuana, thereby rendering Kearns in constructive possession. The question, therefore, is whether the evidence was sufficient to support a finding that Lynch possessed the marijuana.*fn2 We conclude that it was not.
The Terans testified that after meeting several times in prison with Jim and Catherine Kearns and Ron Lynch, they decided that Lynch would make the first purchase of marijuana from Sergio Teran's "brother" (who was actually Detective Hawkins). Hawkins arranged for Lynch to meet with Teran's "cousin" (actually undercover officer Jose Pino), who was to deliver the drugs. Lynch and Pino met on September 6, 1990 in the parking lot of a Mega Foods store to conduct a 50-pound transaction. Lynch and Pino opened the trunk of Pino's car to inspect the 50-pound bag of marijuana. Lynch opened the bag, put his hands into it, took out a small amount, and smelled it. Pino closed the trunk, leaving the marijuana in his car. Lynch and Pino then went to Lynch's car and Lynch opened the trunk to show Pino envelopes containing the purchase money. Pino inspected the money, and then signalled surveilling officers to arrest Lynch.
The foregoing events do not involve many of the typical indicia of possession present in other cases. For example, the marijuana remained in Pino's car, there was no showing that Lynch obtained control over Pino's car (e.g., by possessing a key to it), and Lynch was arrested before the transaction actually took place. See O'Connor, 737 F.2d at 818 (sufficient evidence of constructive possession existed where defendants controlled the tests performed on the drugs and then "supervised the secreting of the cocaine in their vehicle"); cf. United States v. Medrano, 5 F.3d 1214, 1217-18 (9th Cir. 1993) (insufficient evidence of constructive possession where there was no evidence that undercover officers, who had placed ephedrine in the trunk of the defendant's car pursuant to the defendant's instructions, had returned the car keys to the defendant). The strongest evidence that Lynch acquired "possession" of the drugs is the fact that he briefly touched and smelled the marijuana in Pino's trunk.
Prior Ninth Circuit cases that have upheld convictions for possession where a defendant had sampled the drugs involved other evidence of possession as well. In United States v. Baron, for example, the evidence indicated not only that the defendant had handled and sampled the drugs, but also that the defendant had dumped the drugs and even cleaned out the container when she realized that she was under surveillance. 860 F.2d 911, 919 (9th Cir. 1988), cert. denied, 490 U.S. 1040 (1989). Similarly, in O'Connor, two defendants controlled the tests that were performed over a two-hour period on each of 31 bags of cocaine, and two other defendants actually performed ...