United States v. Facen
812 F.3d 280
| 2d Cir. | 2016Background
- Officers executed a search warrant at 303 Lakeview Park, Rochester, NY; Facen was the only person present, found naked on the bed on top of currency; $1,235 total currency was found in/behind the bed.
- Items in plain view in Facen’s bedroom: a dime bag containing 0.126 g cocaine base, a box of ammunition, drug paraphernalia (grinder, baggies), plates with white residue (one with Facen’s fingerprint), a scale, and personal documents (birth certificate, vehicle titles) in a safe.
- A pair of white shorts on the bedroom floor (photographed showing number “38”) contained a bag with 34.49 g cocaine base in the pocket; officers photographed but did not seize the shorts. Additional cocaine was found in the kitchen.
- Tenants/occupants: Yvette Wilson rented the residence; testimony conflicted about how often Facen stayed there. Defense argued the drugs belonged to Wilson’s former boyfriend Kevin Ross.
- Jury convicted Facen on multiple counts (possession with intent, maintaining a drug house, § 924(c), felon-in-possession), but the district court granted Rule 29 acquittals post-verdict except for convictions based on items in plain view (0.126 g cocaine and ammunition). Both sides appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that Facen possessed cocaine (0.126 g) and ammunition in plain view | Govt: Facen’s personal documents at the house, naked presence on the bed, fingerprints, currency, and paraphernalia support constructive possession | Facen: He was a temporary visitor; ownership/control not established | Held: Evidence sufficient for constructive possession of items in plain view; conviction affirmed |
| Sufficiency of evidence that Facen possessed 34.49 g cocaine in white shorts | Govt: proximity to Facen, his ties to house, shorts size label and photo permit inference of ownership | Facen: Shorts belonged to Ross; no direct evidence linking Facen to shorts | Held: Close case but reasonable jury could find Facen possessed the shorts’ cocaine; district court’s acquittal vacated |
| Sufficiency of evidence for conviction under 21 U.S.C. § 856(a)(1) (use/maintain drug premises) | Govt: Proof of use alone suffices; evidence shows Facen used the premises for drug activity | Facen: District court required proof of "maintenance" and found insufficient supervisory control | Held: Statute’s disjunctive language means proof of use alone suffices; evidence supports that Facen used the premises for drug purposes; acquittal vacated |
| Whether district court erred by entering judgments of acquittal (Rule 29) after jury verdict | Govt: Some acquittals (white shorts, § 856) were mistaken because evidence could support conviction | Facen: District court properly weighed insufficiency for non-plain-view items and maintenance | Held: Court vacated district court’s acquittal as to 34.49 g and § 856; affirmed convictions based on plain-view items; remanded for resentencing |
Key Cases Cited
- United States v. Mergen, 764 F.3d 199 (2d Cir.) (standard of viewing evidence in light most favorable to government)
- Jackson v. Virginia, 443 U.S. 307 (Sup. Ct.) (standard for sufficiency review under due process)
- United States v. Reyes, 302 F.3d 48 (2d Cir.) (de novo review of judgment of acquittal)
- United States v. Guadagna, 183 F.3d 122 (2d Cir.) (limits on district court substituting its judgment for jury on sufficiency)
- United States v. Payton, 159 F.3d 49 (2d Cir.) (constructive possession elements)
- Musacchio v. United States, 136 S. Ct. 709 (Sup. Ct.) (sufficiency measured against actual elements of the offense)