If You Press A Stone With Your Finger

United States v. Ortega Reyna, 148 F.3d 540 (5th Circuit 1998):

After examining each piece of evidence from that perspective, we conclude that, like Newton's Third Law, for every inference of guilt that may be drawn from the evidence, there is an equal and opposite benign inference to be drawn.

A beautiful turn of phrase (but see my other concerns), Newton’s 3rd Law of Motion, colloquially stated as “For every action there is an equal and opposite reaction”.

Jesus Ortega Reyna appealed his 130 month sentence for possession with intent to distribute heroin and amphetamines, in violation of 21 U.S.C. § 841(a)(1). His sole point of appeal: insufficiency of the evidence.

From the evidence at trial, Ortega was – at best – a mule, the lowest level courier hired by a drug lord or kingpin to take the risk of transporting dope from place A to place B. The only issue at trial was whether or not the Government could prove their best case beyond a reasonable doubt: did Ortega know the drugs were hidden in the tires of a borrowed vehicle.

If you were a heartless bastard, you could compile a list of reasons that various U.S. attorneys have used to argue to juries and appellate courts that justify conclusions of the guilty mind: driving too fast, driving too slow; avoiding eye contact, making eye contact; nervousness, lack of nervousness… You could laugh and laugh at the contradictions between (and sometimes among) cases, but you’d be callous and unChristian because these fictions are responsible for locking innocent people up in a box for enormous amounts of time.

This time - well, if eleven years ago is “this time” - the Fifth Circuit saw it differently (what can I say? I’m researching old case law; the new stuff is no good for me). Who knows why, perhaps when reciting the buzz words for a reversed for insufficiency appeal “we agree that no reasonable jury could have concluded beyond a reasonable doubt that Ortega's possession of the drugs was knowing”, they gave us a hint, “After a two-day trial--and three days of deliberation--a jury found Ortega guilty of both counts.”

Shouldn’t there be a rule that in a one issue case (did he know the dope was there?) that if the jury deliberates for a longer time than the presentation of evidence, it’s prima facie not BRD on appeal? Pretty unusual for an appellate decision to mention the time of deliberations. It’s not supposed to be a consideration, but it seems like they felt a little bad about it. This wasn’t a white collar fraud case with tens of thousands of documents to sort through; either the government proved the defendant knew the controlled substances were in his possession or they didn’t.

The decision, which goes out of its way to highlight the innocent explanations for all the evidence, is well worth the read. And, here’s the tip for mule cases:

As a general rule, a jury may infer knowledge of the presence of drugs from the exercise of control of a vehicle containing such contraband. When the drugs are secreted in hidden compartments, however, "this Court has normally required additional 'circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge.' “(quoting United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir.1990))

This requirement stems from our recognition that, in hidden compartment cases, there "is at least a fair assumption that a third party might have concealed the controlled substances in the vehicle with the intent to use the unwitting defendant as the carrier in a smuggling enterprise." This assumption is heightened when, as here, the vehicle is a "loaner" or has otherwise been in the possession of the suspect for only a short time.

[Title of post from the text of Principia, “If you press a stone with your finger, the finger is also pressed by the stone”.]

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Jamie - November 10, 2009 7:13 AM

Alternate titles for this post:

Sir Isaac Newton Reverses A Federal Drug Conviction

The Third Law Of Sufficiency

To Every Action There Is Always Opposed An Equal Reaction

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