United States v. Kenneth Keith Wiseman

*863 Opinion by Judge HILL; Dissent by Judge ALARCON.

Defendant Kenneth Keith Wiseman and four others, Vizcarra, Lopez, Murphy and Branson, were indicted in a two-count indictment for narcotics offenses. Count one charged possession of marijuana with intent to distribute it. 21 U.S.C. § 841 (1988). Count two charged conspiracy to possess marijuana with intent to distribute it. 21 U.S.C. § 846 (1988). The four defendants, other than Lopez, were tried together. Lopez was a fugitive. Vizcarra and Murphy were convicted of both charges. Wiseman and Branson were acquitted on the possession charge but convicted on the conspiracy charge.

Wiseman appeals the conspiracy conviction on the sole ground of insufficient evidence. We reverse his conviction, finding that there was not sufficient evidence to allow a rational jury to find him guilty of the charge beyond a reasonable doubt.

I. THE TESTIMONY OFFERED AGAINST WISEMAN

The trial consisted almost entirely of the government’s case. The only defense evidence was the brief testimony of one defendant, Murphy, and two character witnesses. Murphy’s testimony included testimony exculpating Wiseman. It is worth summarizing the government case…

Dissenting:

I respectfully dissent. I would affirm the judgment of conviction.

The single issue before this court is whether the evidence produced by the Government at trial was sufficient to connect Kenneth Keith Wiseman to the conspiracy alleged in the indictment. After receiving appropriate instructions on the Government’s burden of persuasion and reasonable doubt, twelve jurors unanimously agreed that Wiseman was guilty of conspiring to possess marijuana with the intent to distribute it. The same jury found Wiseman not guilty of possession of marijuana with intent to distribute it. The experienced trial judge who heard each of the witnesses denied Wiseman’s successive motions for a judgment of acquittal. In each motion, Wiseman argued that the evidence was insufficient.

Relying primarily on the testimony of Alice Murphy, a codefendant, the majority has concluded that the jury acted irrationally in finding beyond a reasonable doubt that the evidence was sufficient to connect Wiseman to the conspiracy. Murphy testified that she and Wiseman were not involved in a conspiracy to distribute marijuana, and that she did not know that the automobile contained marijuana. The jury,…

25 F.3d 862 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Keith WISEMAN, Defendant-Appellant. No. 93-10097. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 10, 1994. Decided June 3, 1994. 1 Joel C. Parris, Asst. Federal Public Defender, Tucson, AZ, for defendant-appellant. 2 Virginia C. Kelly, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee. 3 Appeal from the United States District Court for the District of Arizona. 4 Before ALARCON and FERNANDEZ, Circuit Judges, and HILL, District Judge. 1 Opinion by Judge HILL; Dissent by Judge ALARCON. IRVING HILL, District Judge: 5 Defendant Kenneth Keith Wiseman and four others, Vizcarra, Lopez, Murphy and Branson, were indicted in a two-count indictment for narcotics offenses. Count one charged possession of marijuana with intent to distribute it. 21 U.S.C. Sec. 841 (1988). Count two charged conspiracy to possess marijuana with intent to distribute it. 21 U.S.C. Sec. 846 (1988). The four defendants, other than Lopez, were tried together. Lopez was a fugitive. Vizcarra and Murphy were convicted of both charges. Wiseman and Branson were acquitted on the possession charge but convicted on the conspiracy…