United States v. Clark, No. 12-1221-cr (2d Cir. Jan. 17, 2014) (Newman, Winter, and Droney), available here
This published decision holds that the trial evidence was insufficient to support the defendant’s conviction for possession of cocaine. Judge Droney dissents.
In response to a 911 call reporting that some men had just left a bar in Lockport, New York, in a white Jeep Cherokee after trying to “jump somebody,” the police found Clark and three others sitting in the Cherokee. They discovered a firearm in the vehicle and arrested Clark. The police placed Clark, alone, in the rear compartment of a police cruiser; he was handcuffed securely behind his back. Though Clark was patted down, no drugs or drug paraphernalia were found. But after Clark was brought to the police station, the police found crack cocaine in the police car between the back of the back-seat cushion and the bottom of the back-seat back rest. The government claimed at trial that the cocaine was Clark’s.
To support this theory, a police officer testified that he had checked the rear-seat space before starting his evening shift, but had found nothing there, and that Clark was the first person to occupy the back seat of the car that evening. On the other hand, the police did not find any white powdery substance on Clark’s hands, pants, or jacket; nor did they see any white powdery substance on the back seat until it was lifted up. No glassine envelope or other container was found in the police car or on Clark’s person.
Under these circumstances, the majority held, the evidence was insufficient to permit a juror to conclude beyond a reasonable doubt that the cocaine belonged to Clark. The Court emphasized eight undisputed facts: (1) Clark was patted down for weapons before being place in the police car; (2) no object large enough to contain a substantial quantity of crack cocaine was noticed; (3) Clark was placed in the back of the police car with his hands cuffed securely behind his back; (4) the ride to the police station took about one minute; (5) shortly after Clark got out of the car, with his hands still handcuffed behind his back, a police officer lifted the back seat sufficiently to disclose the space between the back edge of the back-seat cushion and the lower edge of the back-seat back rest; (6) in that space the police found a quantity of crack cocaine measuring more than five inches in length and about one inch wide; (7) no traces of crack cocaine were observed on Clark’s clothing or on his hands; and, (8) no glassine envelope or similar container was found in the police car; nor was Clark observed to have discarded such a container.
The majority held that, while it may have been theoretically possible for Clark to have removed the cocaine from his person and ditched it underneath the seat of the car, without leaving any trace amount on his person, despite being handcuffed, the evidence that he did so was so speculative that no jury could reasonably have found guilt beyond a reasonable doubt. The majority said that “it is difficult to imagine a case where the possibility that an innocent person has been convicted of an offense is greater than the one now before us.”
Judge Droney’s dissent concluded that a rational jury could have found beyond a reasonable doubt that Clark deposited the cocaine underneath the seat of the patrol car, that the police simply missed the cocaine during their initial pat-down, and that Clark used his “substantial time alone in the patrol car to place the cocaine underneath the back seat.”
Commentary: This case is a good example of the Court taking seriously its obligation to assess the sufficiency of the evidence, rather than simply rubber-stamping a jury’s verdict. Judge Newman’s majority opinion emphasizes that appellate deference to jury verdicts “does not mean … that we must never deem evidence insufficient. Nor does it mean that if there is any evidence arguably in support of a verdict, we must affirm.”