United States of America, Plaintiff-appellant, v. John James Robinson, Defendant-appellee, 87 F.3d 1324 (9th Cir. 1996)

Before: REINHARDT and HALL, Circuit Judges, and MERHIGE, District Judge.^* 

MEMORANDUM^** 

Defendant, James Robinson, was convicted of conspiracy to possess cocaine with the intent to distribute, in violation of 21 U.S.C. § 846, possession of cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a) & (b) (1) (A) (iii), and use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1). The district court granted defendant's motion for acquittal and alternatively ordered a new trial. We affirm the judgment of acquittal.¹ 

Viewing the evidence in the light most favorable to the government, we conclude that no reasonable person could have found the defendant gulity of conspiracy to distribute cocaine, see United States v. Mesa-Farias, 53 F.3d 258, 260 (9th Cir. 1995) (agreement); United States v. Gil, 58 F.3d 1414, 1423 (9th Cir.), cert. denied, 116 S. Ct. 430 (1995) (knowing and intentional participation); United States v. Aichele, 941 F.2d 761, 763 (9th Cir. 1991) (slight connection to conspiracy), or of possession of cocaine with the intent to distribute, beyond a reasonable doubt, see United States v. Walker, 993 F.2d 196, 200 (9th Cir.) ("Mere proximity to the drug, presence on property where it is found, and association with a person or persons having control of it are all insufficient to establish constructive possession."), cert. denied, 114 S. Ct. 276 (1993). The government's case, at best, consists of evidence that defendant 1) returned to the house when he saw officers approaching, 2) yelled to the others in the house, 3) lay down in the entryway to the bedroom containing the drugs, firearms and drug paraphernalia when the police exploded a diversionary device in the front room, and 4) had his fingerprints on a notebook that was on a shelf of an entertainment center, between three pages allegedly describing how to run a drug business and the Yellow Pages.²  This evidence is clearly insufficient to sustain a conviction on the drug offenses. The district court therefore properly granted defendant a judgment of acquittal on the conspiracy and possession charges.

Given that the evidence was insufficient to support a conviction for either of the drug charges, the district court properly found the evidence insufficient to support a conviction for using a firearm during and in relation to a drug trafficking offense--this aside from the fact there was insufficient evidence to connect defendant with any or all of the firearms located in the house. Accordingly, the district court properly granted defendant a judgment of acquittal on the firearms charge as well.

AFFIRMED.