United States v. Pauling
Opinion
In this case, a jury convicted defendant-appellee John Pauling of conspiring to distribute or possess with the intent to distribute 100 grams or more of heroin. The parties agree that the government was required to prove that the heroin in question was the subject of a conspiracy between Pauling and one of his suppliers, referred to as "Low" (the "Pauling-Low conspiracy"), and that the government proved beyond a reasonable doubt that 89 grams of heroin were attributable to the Pauling-Low conspiracy. The parties disagree, however, as to whether the government proved that the Pauling-Low conspiracy involved the additional 11 grams of heroin necessary to reach the 100-gram threshold.
The district court granted Pauling's motion pursuant to Federal Rule of Criminal Procedure 29 to set aside his conviction on the conspiracy count on the ground that the evidence introduced at trial failed to establish that an additional 11 grams of heroin were attributable to the Pauling-Low conspiracy. Instead of entering judgment convicting Pauling of violating
We conclude that the evidence at trial was insufficient to permit a reasonable jury to find beyond a reasonable doubt that the Pauling-Low conspiracy involved an additional 11 grams of heroin. Accordingly, we affirm and remand for sentencing.
BACKGROUND
Between May 25 and July 14, 2016, the Drug Enforcement Administration ("DEA") intercepted phone calls between Pauling and various associates, including an individual named "Low." On July 14, Pauling was arrested by authorities. Upon his arrest, agents seized from Pauling's apartment approximately 600 glassine bags, a digital scale, materials that could be used as a cutting agent, and other paraphernalia associated with the distribution of controlled substances.
Pauling concedes that the government established at trial that he and Low conspired to distribute 89 grams of heroin. This was shown through wiretap evidence of four transactions. On June 26, 2016, Pauling purchased 30 grams of heroin from Low for resale to a customer named "Flow." On June 27, Pauling combined 10 grams of heroin he received from Low with 20 grams of a cutting agent, for a total of 30 grams of heroin. On July 3, Pauling requested 14 grams of heroin from Low for a customer named "Steve." Finally, on July 11, Low supplied Pauling with 11 grams of heroin, again for Steve, which Pauling cut for a total of 15 grams. The four transactions thus involved a total of 89 grams of heroin. 3
The conversation between Pauling and Steve about the July 3 transaction is at issue in this appeal. At 1:16 p.m. that day, Pauling spoke to Steve about the quantity of heroin Steve wanted to order:
PAULING: [T]ell me, the count, that's, you know, tomorrow.
STEVE: I'll meet you on, hold on one second. I'm on 17, as a matter of fact, same thing as last time, same thing [as] last time.
PAULING: Where was it? I forgot, shit because there was so many people.
STEVE: Hold on, right, right. I'm a go to, uh, 14th floor.
App'x at 122. The parties agree that the floor number was code for drug quantity, in grams. Approximately three hours later, at 4:04 p.m., Pauling called Low:
PAULING: Yo um, how we gonna do this cause my man wants four-fourteen right and he be down tomorrow and I got some other people who want --
LOW: 14?
PAULING: Huh?
LOW: You said 14?
PAULING: Yeah, and I got these other people that want a gram-, two grams shit like that.
The wiretaps also provided information about the relationship between Pauling and Low. Pauling owed Low money. Pauling was aware that Low had a stash house for his narcotics, and he was aware that Low's associate "Play" worked at the stash house. Pauling and Low discussed prices. On more than one occasion, they discussed in detail the process of cutting narcotics and the benefits of certain cutting agents. 4 Pauling also indicated on several occasions that he would help sell Low's product. 5 The government argues that this evidence proved circumstantially that Pauling and Low conspired to distribute at least another 11 grams of heroin beyond the 89 grams discussed above.
B. Procedural History
On July 14, 2016, the DEA arrested Pauling for his alleged involvement with guns and drugs in the New York City area. The government indicted Pauling on August 18, 2016, on five counts. The government filed a superseding indictment on January 19, 2017, charging Pauling with eight counts: (a) conspiring to distribute and to possess with intent to distribute 100 grams or more of mixtures containing heroin, in violation of
Trial began on February 13, 2017. At the close of the government's case-in-chief on February 15, Pauling moved for a judgment of acquittal as to Count One under Federal Rule of Criminal Procedure 29, citing insufficient evidence to sustain a conviction. The court reserved decision. On February 16, Pauling conceded in his closing argument that he was guilty of all counts except for Counts One and Six. The jury returned its verdict later that day, finding Pauling guilty of all but Count Six.
On March 24, 2017, Pauling renewed his motion under Rule 29 to vacate and set *655 aside the portion of the jury's verdict on Count One finding that at least 100 grams of heroin were attributable to the Pauling-Low conspiracy. Pauling moved in the alternative for a new trial pursuant to Rule 33 as to that count. He argued that the July 3 call could not support a jury finding of 28 grams by including the alleged prior 14-gram transaction and that the 100-gram threshold was not otherwise proven beyond a reasonable doubt. The government opposed both motions, arguing that the jury could have reasonably inferred from the July 3 call that the "same thing as last time" referred to an earlier transaction in which Pauling sold Steve 14 grams of heroin sourced from Low. It argued that this prior 14-gram transaction should be included, thus bringing the total quantity attributable to the Pauling-Low conspiracy to 103 grams. It argued alternatively that the jury could reasonably infer from the "close working relationship" between Pauling and Low that their conspiracy extended "well beyond" 100 grams. App'x at 216-17.
On June 12, 2017, the district court granted Pauling's motion to vacate and set aside his conviction on Count One and entered a verdict of guilty to a lesser included offense. The district court also conditionally granted Pauling's motion for a new trial, pending the outcome of this appeal. Pauling's sentencing, scheduled for September 13, 2017, was stayed pending this appeal.
DISCUSSION
Pauling does not challenge the jury's finding that he participated in a conspiracy with Low to distribute heroin. Nor does he dispute that the evidence established that he directly participated with Low in the distribution of 89 grams of heroin. We are therefore presented with a single, discrete question: Whether the government presented evidence sufficient for the jury to find beyond a reasonable doubt that an additional 11 grams or more of heroin was attributable to the Pauling-Low conspiracy. The government argues that it did so, relying first on the July 3 telephone call and second on the evidence of an ongoing relationship between Pauling and Low.
I. Applicable Law
The quantity of drugs involved in a violation of § 841(b)(1)(B) is an element of the charged offense,
see
United States v. Gonzalez
,
Due process requires that essential elements of a crime be proven beyond a reasonable doubt to ensure that "no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof."
Jackson v. Virginia
,
*656
Jackson
,
A defendant challenging a jury's guilty verdict "bears a heavy burden."
United States v. Martoma
,
"An inference is not a suspicion or a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on the basis of another fact that is known to exist."
Siewe v. Gonzales
,
The line between permissible inference and impermissible speculation "is drawn by the laws of logic" and not "judicial idiosyncrasies."
Tose v. First Pa. Bank, N.A.
,
At times it may be difficult to distinguish between inference and speculation, as some speculation may indeed be reasonable. Reasonable speculation occurs when the finder of fact concludes that a disputed fact exists that is within the realm of possibility, but the conclusion reached is nevertheless unreasonable because it is not logically based on another fact known to exist.
See
Langston v. Smith
,
"[W]here a fact to be proved is also an element of the offense -- here, [drug quantity] -- it is not enough that the inferences in the government's favor are permissible. We must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that the element, like all elements, is established beyond a reasonable doubt."
United States v. Martinez
,
The drug quantity attributable to a defendant knowingly participating in a drug distribution conspiracy includes (1) transactions in which he participated directly, (2) transactions in which he did not personally participate, but where he knew of the transactions or they were reasonably foreseeable to him, and (3) quantities he agreed to distribute or possess with intent to distribute "regardless of whether he ultimately committed the substantive act."
United States v. Jackson
,
To prove the quantity by one of these means beyond a reasonable doubt, the government must introduce specific evidence of drug quantities, or evidence from which quantity can, through inference, be logically approximated or extrapolated.
See
United States v. Archer
,
Two of our decisions, though summary orders, provide a framework for understanding the role of representative proof in proving drug quantity. In
United States v. Adames
, the defendant was convicted at
*658
trial of conspiracy to distribute five or more kilograms of cocaine, and he challenged the sufficiency of the evidence of quantity.
In
United States v. Martinez
, the defendant challenged a drug-quantity enhancement at sentencing.
Adames
and
Martinez
illustrate how the total drug quantity attributable to a defendant can (and cannot) be inferred or extrapolated from known quantities. In
Adames
, it was reasonable to infer from evidence of four seized packages, each containing a range of from 406 grams to two kilograms of cocaine, that a total of at least an additional 1.06 kilograms of cocaine was contained in five unseized packages, one of which was known to have a similar weight to a seized package containing two kilograms of cocaine. The seized packages were sufficiently representative of the unseized packages to support the inference
*659
that the unseized packages contained enough cocaine to reach the quantity threshold. By contrast, in
Martinez
, it was not reasonable to infer from evidence of two vehicle traps containing 16 and 19 kilograms of cocaine and testimony that the defendant carried a package of approximately 20 kilograms of cocaine that each of nine traps in three different cars contained the average of the three known quantities. The seized packages were not sufficiently representative of the unseized packages to support the inference that the seized and unseized packages contained a similar quantity of cocaine. A similar lack of representativeness arose in
Shonubi II
, in which we rejected the inference that each of seven prior trips contained the same quantity of drugs as was seized in the eighth trip.
II. Application
The government argues that it presented evidence sufficient for the jury to find beyond a reasonable doubt that an additional 11 grams or more of heroin was attributable to the Pauling-Low conspiracy. It relies first on the July 3 telephone call and second on the evidence of an ongoing relationship between Pauling and Low. We discuss each in turn.
1. The July 3 Phone Call
The government argues that the evidence permitted the jury to infer that an additional 14 grams of heroin was attributable to the Pauling-Low conspiracy by virtue of the July 3 phone call, in which the buyer mentioned that he wanted the "same thing as last time" while placing an order for 14 grams of heroin. App'x at 122. While we agree that the words "same thing as last time" could have been a reference to a prior 14-gram sale of heroin by Pauling to Steve, we hold that no reasonable jury could have found beyond a reasonable doubt that those 14 grams were sourced by Low.
See
Piaskowski v. Bett
,
On the present record, the jury could not rationally conclude beyond a reasonable doubt that a specific yet temporally unknown transaction, the existence of which is evidenced solely by five words -- which were not uttered by either Pauling or Low -- involved heroin provided by Low. The jury did not hear evidence as to who provided the heroin in this prior transaction, when the transaction occurred, or what the circumstances were. To conclude so much on the basis of so little amounts to impermissible speculation. Indeed, trial testimony and wiretap evidence established that Pauling had other suppliers, any one of whom could have supplied the heroin for that prior transaction. See Trial Tr. at 175, 183; App'x at 83-84, 88, 98, 100, 103, 127. And while the government introduced evidence that Pauling distributed over 200 grams of heroin, App'x at 202, it did not show that as much as half of that heroin was supplied by Low. Accordingly, without something more, the jury could not reasonably have concluded beyond a reasonable doubt that the words "same thing as last time" referred to an additional 14 grams of heroin supplied by Low.
2. The Ongoing Relationship
The government argues that even if the July 3 phone call did not prove that Pauling purchased an additional 14 grams of heroin from Low, it would have been rational for the jury to conclude, based on the evidence of their ongoing relationship, that Pauling and Low conspired
*660
to distribute at least an additional 11 grams of heroin. Proof of drug quantity may be established through proof of an agreement to distribute or possess with intent to distribute, regardless of whether the substantive act was actually completed.
See
Jackson
,
In support of this argument, the government points to the following. First, Pauling and Low mixed and cut heroin together. Second, Pauling sold 89 grams of heroin sourced from Low. Third, Pauling and Low discussed a customer from Queens, which Pauling described as "good" and "already established." App'x at 116. Fourth, Pauling knew that Low's operation was large enough to require one worker and a stash house. Finally, Pauling and Low had specific discussions in which they appeared to contemplate future distribution of drugs. For instance, on July 12, just before Pauling was arrested, Low told Pauling that he had "a nice amount of that shit left," to which Pauling replied, "I got you, I, I'm a be hittin' you ... when, um, dude calls me." Id. at 146. According to the government, it would be rational for a jury to infer, for example, that a " 'nice' amount was at least enough to fill one of Pauling's large orders," that is, between 14 and 30 grams. Government's Br. at 35.
Over the course of the 17-day period from June 26 to July 12, 2016, Low supplied Pauling with 89 grams of heroin over four transactions -- an average of 22.25 grams per transaction, with a low of 14 grams and a high of 30 grams. While it is certainly within the realm of possibility that the reference to "a nice amount" meant 14 grams or 30 grams of heroin, it also could have referred to a lesser quantity -- something more than the one- or two-gram sales that sometimes occurred but less than the 11 grams needed to reach the 100-gram threshold.
See
Quattrone
,
And even assuming it was reasonable for the jury to infer that Pauling and Low conspired to distribute an additional 11 or more grams of heroin, "[w]e must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that the [quantity] element ... is established beyond a reasonable doubt."
Martinez
,
Our conclusion is supported by decisions of other courts. Many of our sister circuits have reversed convictions where proof of drug quantity was speculative on facts analogous to these.
See
United States v. Navarrette-Aguilar
,
To the extent the government separately argues that the substantial interactions between Pauling and Low proved that additional quantities distributed by Low were reasonably foreseeable to Pauling, we agree that such an inference would be reasonable. But even so, based on the evidence here, no jury could reasonably conclude that any specific quantity of heroin was attributable to Low, beyond the undisputed 89 grams. The fact that Low's operation involved a stash house and a worker, and that Pauling was aware of these facts, is simply not specific evidence of drug quantity. In the absence of any evidence indicating the quantities generally (or specifically) associated with Low's operation, quantity is not inferable. There is, therefore, no additional quantity attributable to Low that Pauling could fairly be said to have reasonably foreseen.
* * *
*662
Although this is a close case that tests the boundary that exists between the drawing of a permissible inference and impermissible speculation, only surmise and guesswork could lead a jury to determine that Pauling and Low conspired to distribute an additional 11 grams of heroin. "We are obliged to view the evidence with all reasonable inferences drawn in the Government's favor, but we may not permit that rule to displace the even more important rule that all elements of an offense must be proven beyond a reasonable doubt."
Martinez
,
Because the government failed to do so, the district court correctly determined, viewing all of the evidence in the light most favorable to the government and crediting every inference in its favor, that the evidence at trial was insufficient to support a jury finding that 100 or more grams of heroin were attributable to the Pauling-Low conspiracy.
CONCLUSION
For the reasons set forth above, the judgment of the district court is AFFIRMED . The case is REMANDED for sentencing.
See
United States v. Facen
,
Our statement of facts views the evidence in the light most favorable to the government, crediting any inference that the jury might have drawn in its favor.
See
United States v. Rosemond
,
Pauling concedes that the quantity of the heroin in question is the weight with the cutting agent included.
See
App'x at 114 (PAULING: "I'm mixing this shit right now. ... I'm squeezing it in my hand .... I ain't gonna put it in no press. ... I told you I put the strainer, right? And then [unintelligible] I had to take a hammer and break it with a hammer, cut it small and then I mashed it up ....");
App'x at 130 (PAULING: "I'll help you get rid of that shit ... this week. [T]omorrow that shit will be gone.");
The district court correctly charged the jury on this law. Trial Tr. at 573-74.
The proof necessary to satisfy an element of a charged crime beyond a reasonable doubt is obviously more stringent than the proof required to establish that a sentencing enhancement is warranted by the preponderance of the evidence.
See generally
United States v. Booker
,
In one transaction, Pauling tells a buyer, "I only got 10 grams here." App'x at 199. It might be said that "only ... 10 grams" contrasts with, rather than reflects, a "nice amount," thus enabling the inference that a "nice amount" is something more than 10 grams of heroin. But considered in context, no such inference is possible. Pauling told the purchaser that he "only" had 10 grams because he did not have enough heroin to fill the buyer's 20-gram order. See Trial Tr. at 123:21-23 ("[H]e didn't have enough. He didn't have what I ordered. I ordered 20, and he didn't have enough grams of heroin to give me. He only had ten ... grams.").
Reference
- Full Case Name
- UNITED STATES of America, Appellant, v. John PAULING, A/K/A JJ, Defendant-Appellee.
- Cited By
- 22 cases
- Status
- Published