A slow week in the Ninth lets us head East.
In United States v. Pauling, --- F.3d ---, No. 17-2539-cr (2d Cir. 2019), the Second Circuit affirmed the district court's grant of a Rule 29 motion on a drug conspiracy count.
The defendant was charged with conspiracy to distribute 100 grams of heroin. The parties agreed the government proved 89 grams, but not the other 11 grams.
The Second Circuit agreed with the district court that evidence was insufficient on those additional 11 grams.
There is a helpful discussion of the difference between permissible inference and speculation:
ʺAn inference is not a suspicion or a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on the basis of another fact that is known to exist.ʺ Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir. 2007) (alterations omitted) (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999)). Impermissible speculation, on the other hand, is ʺa complete absence of probative facts to support the conclusion reached.ʺ Lavendar v. Kurn, 327 U.S. 645, 653 (1946). While we must defer to a juryʹs reasonable inferences, we give no deference to impermissible speculation. United States v. DʹAmato, 39 F.3d 1249, 1256 (2d Cir. 1994).
The line between permissible inference and impermissible speculation ʺis drawn by the laws of logicʺ and not ʺjudicial idiosyncrasies.ʺ Tose v. First Pa. Bank, N.A., 648 F.2d 879, 895 (3d Cir. 1981), abrogated on other grounds by Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982). As the Supreme Court has instructed, ʺthe essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked.ʺ Galloway v. United States, 319 U.S. 372, 395 (1943). Thus, in a criminal case, ʺthe government must do more than introduce evidence ʹat least as consistent with innocence as with guilt.ʹʺ DʹAmato, 39 F.3d at 1256 (quoting United States v. Mulheren, 938 F.2d 364, 372 (2d Cir. 1991)).
At times it may be difficult to distinguish between inference and speculation, as some speculation may indeed be reasonable. Reasonable speculation occurs when the finder of fact concludes that a disputed fact exists that is within the realm of possibility, but the conclusion reached is nevertheless unreasonable because it is not logically based on another fact known to exist. See Langston v. Smith, 630 F.3d 310, 314, 319 (2d Cir. 2011) (noting distinction between ʺreasonable speculationʺ and ʺsufficient evidenceʺ); Leonard B. Sand et al., Modern Federal Jury Instructions § 6.01 (2011) (ʺThe process of drawing inferences from facts in evidence is not a matter of guesswork or speculation. An inference is a deduction or conclusion which . . . the jury [is] permitted to draw . . from facts which have been established by either direct or circumstantial evidence.ʺ); see also OʹLaughlin v. OʹBrien, 568 F.3d 287, 301‐02 (1st Cir. 2009); Newman v. Metrish, 543 F.3d 793, 796‐97 (6th Cir. 2008). Indeed, we ʺmay not credit inferences within the realm of possibility when those inferences are unreasonable.ʺ United States v. Quattrone, 441 F.3d 153, 169 (2d Cir. 2006).
ʺ[W]here a fact to be proved is also an element of the offense ‐‐ here, [drug quantity] ‐‐ it is not enough that the inferences in the governmentʹs favor are permissible. We must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that the element, like all elements, is established beyond a reasonable doubt.ʺ United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995); see also Sand et al., supra, § 6.01 (ʺ[W]hether based upon direct or circumstantial evidence, or upon logical, reasonable inferences drawn from such evidence, [the jury] must be satisfied of the guilt of the defendant beyond a reasonable doubt before [it] may convict.ʺ). ʺ[I]t would not satisfy the Constitution to have a jury determine that the defendant is probably guilty.ʺ United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008).
