Acquittal in proceeds of crime case

A 20-year-old B.C. woman has been acquitted of possession of the proceeds of cocaine trafficking in Yorkton Provincial Court.

Madelaine Esquivel was arrested in January, one of 20 individuals caught up in a five-month multi-agency RCMP sting.

At her trial in late August (see "Trial concludes without decision," Yorkton This Week, August 28, 2013) prosecutor Dave Rusnack attempted to connect the dots between drug transactions allegedly conducted by Davi Estrada, Esquivel's spouse, and money found by police in a kitchen drawer directly underneath the defendant's purse at the couple's 7th Avenue residence.

A witness for the Crown admitted he had given $300 to a man whose name he didn't know in exchange for cocaine. Police witnesses alleged based on their surveillance the man in question was Estrada. Officers testified after the transaction, Estrada returned to the residence for five to 10 minutes. When he was arrested shortly thereafter, he had only $200.

The Crown submitted that Estrada had left the other $100 in the drawer at the residence and that it constituted part of the $825 eventually seized by police, $810 from the drawer and $15 from the countertop.

Since Esquivel was the only other adult present in the residence at the time and police testimony indicated she was a co-habitant of the apartment, in a relationship with Estrada and that neither of them had a source of legitimate income, Rusnack claimed the presence of the money and its location constituted possession under any or all of the three types of possession as established by the Criminal Code-personal, constructive or joint.

Rusnack cited the Saskatchewan Court of Queen's Bench decision R. v. Swituka in which the judge concluded the defendant was in constructive and/or joint possession of cocaine even though he was not in personal possession of the drugs at the time of his arrest nor was he even in the residence where the coke was found in a safe.

Rusnack said that, as in Swituka, the only reasonable inference in this case was that Esquivel had knowledge, consent and control over the contents of the drawer where the cash was found.

Defence attorney Richard Yaholnitsky had a different take, arguing that the facts in this case in no way established a connection between the transactions police witnessed and the cash in the drawer, nor that Esquivel had any knowledge of Estrada's alleged illicit activities.

"The evidence doesn't meet any kind of logical inference at all," Yaholnitsky said.

In his oral decision delivered on September 20, Judge Ross Green agreed with the defence.

"To convict Miss Esquivel, I must be satisfied beyond a reasonable doubt she was in possession of the money and she knew all or some of the money was the proceeds of crime," the judge said.

He first dismissed personal possession saying there was no evidence Esquivel's purse was connected to what was in the drawer.

With respect to constructive possession-which requires a defendant have knowledge and some measure of control beyond passive involvement-Green said he also was left with reasonable doubt. He explained that besides having given police the address on 7th Avenue as one of her residences (the other in Surrey, B.C.) there was no other evidence she was in control of the contents of the house and, although she may have seen the $15 on the counter, there was no proof she knew what was in the drawer.

On the matter of joint possession, which requires consenting to the illegal activities that resulted in the acquisition of the cash, Green said that after the transaction with the Crown's witness, Estrada was only in the apartment for at most five to 10 minutes and no evidence had been presented as to what he did while he was there.

While the judge was satisfied Estrada had $300 after the alleged transaction and only $200 at the time of his arrest after he returned to and left the apartment, Green said it was clear there had been no continuous surveillance from the alleged point of sale to the time at which Estrada entered the residence.

While the inference could be made Estrada put the money in the drawer, Green continued, it was also possible he put it somewhere else and even if the Crown had established Estrada had put it in the drawer, and Esquivel had seen it, he, the judge, would still be left with reasonable doubt that she knew it had come from a drug transaction a few minutes earlier.

"In total, given the circumstantial nature of the evidence, I would have to have been satisfied beyond a reasonable doubt that guilt is the only reasonable inference to be drawn from the proven facts," Green said. "Taken together, I am satisfied other reasonable inferences can be arrived at from the evidence presented."