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Third Circuit reverses for insufficiency in gun possession case - no evidence of constructive possession or aiding and abetting

United States v. Cunningham, No. 06-3899 (3d Cir. February 21, 2008) - After a jury trial, Cunningham was convicted of three counts - 1) distribution of crack cocaine, 2) possession with intent to distribute more than 5 grams of crack cocaine and aiding abetting, and 3) a possession of a firearm in furtherance of a drug trafficking crime and aiding and abetting. On appeal, Cunningham challenged the sufficiency of the evidence with respect to the two possession convictions.

The gun and drugs that formed the basis for Cunningham’s conviction were found in a back-pack, which Cunningham never held or carried. Rather, the person who held or carried the back pack was Cunningham’s co-defendant. Therefore, the Third Circuit Court of Appeals focused its analysis on whether or not the evidence was sufficient to show that Cunningham constructively possessed the items or aided and abetted his co-defendant’s possession of them.

In an opinion drafted by Judge Fisher, the Court of Appeals affirmed as to the drug possession and reversed as to firearm possession. In making this decision, the Court applied two separate analyses based on two of the Court’s prior holdings (one for the gun and one for the drugs).

With respect to the gun possession, the Court determined that the analysis provided in United States v. Garth, 118 F.3d 99, 113 (3d Cir. 1999) controlled. With that said, the Court concluded that the evidence was insufficient to convict for constructive possession because there was no evidence that Cunningham "knew" about the gun. The evidence was also insufficient for aiding and abetting because Cunningham’s actions "did not show that he attempted to facilitate the carrying of the gun ... or that the gun was in any way instrumental to his decision to participate in the drug offense."

With respect to the drug possession, the Court determined that the analysis provided in United States v. Iafelice, 978 F.2d , 96 (3d Cir. 1992) controlled. Unlike gun possession, the Court found that Cunningham’s sales of identical drugs that morning to those found in the backpack in the afternoon, his speaking with his co-defendant repeatedly, going into his house, and their apparent efforts to safeguard the contraband were sufficient. Quoting Iafelice the Court stated, "there is a logical and convincing connection between the facts established and the conclusion inferred.

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