Citing Lack of Evidence, Circuit Tosses Drug Conviction

, New York Law Journal

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A felon will serve three fewer years in prison after a federal appeals court doubted the crack cocaine discovered in the back of a police car following his arrest could have belonged to him.

The U.S. Court of Appeals for the Second Circuit took the unusual step of finding insufficient evidence to support a jury's verdict that Jeremiah Clark, handcuffed and placed in the back of a police car, could have possessed the crack discovered by officers when they removed him from the car.

Clark's appeal, Judge Jon Newman (See Profile) wrote in United States v. Clark, 12-1221-cr, "presents extraordinary facts that challenge a reviewing court to take seriously its constitutional obligation to assure that evidence resulting in a conviction was sufficient to permit a jury reasonably to find guilt beyond a reasonable doubt."

Clark was convicted in 2012 before Western District Judge William Skretny (See Profile) of one count each of being a felon in possession of a firearm and possession of a controlled substance.

Clark had been arrested outside of Gonzo's Bar in Lockport when police officers, responding to a 911 call, found a gun in the car where Clark and three others were sitting. After another officer patted down his waist, pockets, pant legs and coat looking for weapons, Niagara County Deputy Sheriff Anthony Giamberdino placed Clark, hands cuffed behind his back, in the rear of the police cruiser.

Following a one-minute ride to the police station, Clark was removed, and Giamberdino lifted the cushion of the back seat. He discovered a quantity of crack cocaine measuring about five inches long and one inch wide, with no bag or container.

Giamberdino later testified that he had checked the back seat before the evening shift and found it clean, and that Clark was the first person in the space since the shift began.

Clark was convicted and sentenced to 10 years on the gun count and another three on the controlled substance count. He appealed to the Second Circuit, where Newman and Judges Ralph Winter (See Profile) and Christopher Droney (See Profile) heard oral arguments on June 25, 2013.

By separate summary order, the panel affirmed the gun possession conviction. But on the drug count, Newman noted that no traces of crack cocaine were seen on Clark's hands or clothing and "no glassine envelope or similar container customarily used for holding a quantity of crack cocaine was found in the police car."

Newman said there were "only three possible ways that this quantity" of crack could have been discovered: Clark might have removed it from "his person or clothing and wedged it into the space underneath the seam where the back-seat cushion meets the back-seat back rest," someone else might have inadvertently left it there before Clark entered the cruiser or "someone other than Clark might have deliberately placed the crack cocaine in that space after Clark got out of the police car."

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