Unpublished Disposition, 844 F.2d 793 (9th Cir. 1988)

MEMORANDUM^* 

Santos Alberto Willis appeals from his conviction for possession with intent to distribute cocaine base, 21 U.S.C. § 841(a) (1) (1982), and conspiracy to possess cocaine base with intent to distribute, id. Secs. 841(a) (1), 846. He argues that there was insufficient evidence adduced at trial to support the jury verdict. "In reviewing the sufficiency of the evidence to support a finding of guilt, 'the relevant question is whether, after 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.' " United States v. Free, No. 86-5050, slip op. 2887, 2895 (9th Cir. Mar. 9, 1988) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Willis was only a passenger in the car from which the cocaine was recovered: He neither owned nor drove it the day of the arrest and none of his possessions were found in the car. Of the 150.5 grams of cocaine base that is the subject of both counts of the indictment, 146.5 grams were well hidden in the trunk. The remaining 4.0 grams of cocaine base were concealed inside a plastic "boot" over the gearshift lever. There was no evidence that Willis had been near the trunk or had a key to it; nor did the government show that his fingerprints were on the bags of cocaine or the handgun, or that he had any cocaine on him. The government thus introduced no evidence of actual possession. See United States v. Weaver, 594 F.2d 1272, 1274-75 (9th Cir. 1979) (reversing convictions for conspiracy and aiding and abetting possession). Moreover, " ' [m]ere proximity to contraband, 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.' " United States v. Behanna, 814 F.2d 1318, 1320 (9th Cir. 1987) (quoting United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985)); see United States v. Soto, 779 F.2d 558, 560-61 (9th Cir. 1986) (reversing conviction of passenger for possession of three pistols even though two were found behind his seat within his reach and his fingerprints were on a shotgun), cert. denied, 108 S. Ct. 110 (1987). Willis simply was "not shown to have the requisite dominion and control over the package to constitute possession." Weaver, 594 F.2d at 1275 (reversing for insufficient evidence even though defendant had a package of cocaine under his seat and a vial of cocaine and substantial sum of money on his person).

The government relies on Willis' lack of identification, his facial expression when the car was sent to secondary and his apparent nervousness. A passenger's lack of identification, however, evinces neither dominion or control over the contraband, nor knowledge of it. See Doherty v. United States, 318 F.2d 719, 719-20 (9th Cir. 1963) (reversing conviction of passenger for importation of marijuana hidden under car hood despite his possession of false identification papers). Furthermore, Willis' nervous reactions do not establish any elements of conspiracy or possession. See United States v. Bonds, 435 F.2d 164, 164 (9th Cir. 1970) (reversing drug smuggling conviction of passenger who appeared " 'tense and not at ease' " during border stop because such evidence was "insufficient to sustain the jury finding that [he] had knowledge of his codefendant's illegal activity and participated therein"). Willis' purported expletive upon being stopped adds little to the government's case; it simply does not connect Willis to the cocaine. "While inferences from facts which have been established by circumstantial evidence may be sufficient to sustain a verdict of guilt, mere suspicion or speculation cannot be the basis for the creation of logical inferences." United States v. Thomas, 453 F.2d 141, 143 (9th Cir. 1971) (per curiam) (citation omitted), cert. denied sub nom. Lucas v. United States, 405 U.S. 1069 (1972); see Bonds, 435 F.2d at 164.

REVERSED.