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December 3, 1984


The opinion of the court was delivered by: MOTLEY



 On October 26, 1984, defendant Darren Jones was found guilty by a jury before this court of aiding and abetting the sale of heroin in violation of 21 U.S.C. section 812, 841(a)(1), and 841 (b)(1)(A) and 18 U.S.C. section 2. Before the case was submitted to the jury, the court denied defendant's motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29 with leave to renew the motion after the jury returned its verdict. That renewed motion is now before the court. For the reasons set forth below, defendant's motion is granted.

 This case arises out of "Operation Pressure Point," a major law enforcement effort to curb drug traffic on Manhattan's Lower East Side through undercover "buy-bust" operations. According to evidence adduced at trial, the jury was entitled to find the following facts. At 6:50 p.m. on April 11, 1984, Police Officer Ronald Fitzpatrick, posing as a drug user, approached Ephraim Santiago on Madison Street near the corner of Rutgers Street and requested a "bundle", or ten bags, of heroin. Santiago said that he would have to speak to his partner first, and immediately approached defendant Jones. Santiago and Jones had a brief conversation out of the officer's earshot. Then the pair returned to the officer and walked with him around the corner onto the less-busy Rutgers Street. There Santiago told the officer that "I only have seven bags left," and told him to get his money ready. Santiago then approached Jones, who was apparently standing at least a few feet away, and immediately left him to go back around the corner. While Santiago was gone, Jones remained on the street near the undercover, looking at him periodically. Santiago then returned with James Strong and asked Strong if the undercover was "okay". Strong looked the officer up and down and then replied, "Yes, he's cool." Santiago then handed the officer seven glassine envelopes containing heroin and received $70 in pre-recorded buy money.

 Defendant asserts that the evidence presented was insufficient as a matter of law to support his conviction. He bears a heavy burden in making this claim, since a jury verdict must stand if, "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." Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original). See United States v. Gaviria, 740 F.2d 174, 183 (2d Cir. 1984). In evaluating the evidence, the government is entitled to the benefit of all inferences on which the jury could reasonably have relied. United States v. Rodriguez, 702 F.2d 38, 41 (2d Cir. 1983).

 The Second Circuit's cases offer uneven guidance in applying this facially clear standard, since the question of sufficiency of the evidence depends on a subjective weighing of unique factual records. Defendant cites several cases in which facts arguably more incriminating than those offered against defendant here were deemed insufficient on appeal to support the conviction. See, e.g., United States v. Gaviria, 740 F.2d 174 (2d Cir. 1984); United States v. DiStefano, 555 F.2d 1094 (2d Cir. 1977). Defendant argues that the cases require his guilty verdict to be overturned both because there was insufficient evidence to show that he knew drugs were being sold and because there was insufficient evidence to show that he had the intent to aid and abet the sale.

 The government responds by citing other cases in which verdicts were permitted to rest on factual records difficult to distinguish from those deemed insufficient. See, e.g., United States v. Diez, 736 F.2d 840 (2d Cir. 1984); United States v. Rodriguez, 702 F.2d 38 (2d Cir. 1983). What may fairly be gleaned from the case law, however, is that mere presence at the scene of a crime, association with criminals, or even knowledge that a crime is being committed is insufficient to support a conviction for aiding and abetting, absent some purposeful behavior from which the requisite intent can be inferred. See, e.g., United States v. Soto, 716 F.2d 898, 991-92 (2d Cir. 1983), cert. denied, 103 S. Ct. 2456 (1984); United States v. Johnson, 513 F.2d 819, 823-24 (2d Cir. 1975). Moreover, there must be sufficient evidence in the record for the jury to conclude beyond a reasonable doubt that the defendant knew the nature of the crime being committed. See, e.g., DiStefano, 555 F.2d at 1103-04; United States v Gallishaw, 428 F.2d 760, 763-64 (2d Cir. 1970).

 The court is cognizant of the government's argument that the evidence in this type of case must be looked at in the realistic context of a street sale of narcotics. Unlike major drug conspiracies where government agents have the oportunity to assemble a case against co-conspirators based on repeated surveillance, the average street sale of heroin is initiated and consummated in a matter of minutes. The government, therefore, will seldom be able to assemble a detailed factual record, and will frequently have to rely on reasonable inference from circumstantial evidence to establish guilt.

 Nevertheless, the court is concerned that in this type of "sweep" operation, innocent bystanders or acquaintances who lack sufficient criminal intent may be swept up along with the drug dealers who are properly the government's targets. Evidence introduced at trial must be sufficient to permit a jury to reach a separate verdict of guilty beyond a reasonable doubt as to each individual under indictment.

 This concern is heightened by the government's reliance on the testimony of Officer Fitzpatrick that street pushers require and routinely use look-outs and "safeties" and that in his opinion Jones performed these necessary roles. The government argues that the jury should be permitted to find, based on this expert testimony, that it was highly unlikely that Santiago would undertake the sale of heroin without this important help from Jones. Although such expert opinion based on observation has been held admissible, United States v. Carson, 702 F.2d 351, 369 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S. Ct. 2456, 77 L. Ed. 2d 1335 (1983), it cannot substitute for evidence of knowledge and intent sufficient to support a conviction.

 In this connection, the Court notes the concurring opinion of Judge Newman in United States v. Young, 745 F.2d 733 (2d Cir. 1984) urging a limited role for such testimony regarding drug sales in evaluation the sufficiency of a case against a particular defendant. Judge Newman suggested that expert opinion by police officers carries "an aura of special reliability and trustworthiness," and that a jury may unreasonably assume that an investigative officer has additional information proving a defendant's guilt. Id., slip op. at 6288 (Newman, J., concurring). While Carson holds that such expert testimony may be admissible, Judge Newman nevertheless urged that it not be given undue weight in measuring the sufficiency of a case.

 If the observed actions of a defendant do not establish a prima facie case, I do not believe that an expert's opinion that his actions are criminal may carry the prosecution's proof above the requisite line. It is one thing to permit a jury to weigh that opinion in considering an otherwise adequate case; it is quite another matter to let that opinion salvage an otherwise insufficient case.

 Id., slip op. at 6289. This court shares Judge Newman's concern, and rears that in this case the jury may have given undue weight to the expert opinion of Officer Fitzpatrick that Jones was acting as a look-out when he stood on the street and looked occasionally at the officer.

 Upon examining the distressingly thin evidence which constitutes the rest of the case against defendant, the court finds it even more likely that the jury substituted the opinion of the undercover for its own process of reasonable inference from the objective actions of defendant. There is no evidence of a prior arrangement between Jones and Santiago. No pre-recorded money was found on Jones, nor any drugs or drug paraphernalia. There is no evidence that Jones possessed heroin or gave any to Santiago or the officer. There is no evidence that Jones heard anything said among Santiago, Strong, and the officer, since the officer's testimony, while inconclusive, apparently places Jones ...

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