*2 Court in 307, Jackson Virginia, 443 U.S. GOLDBERG, Before AINSWORTH and 99 (1979). S.Ct. 560 L.Ed.2d Under RUBIN, Judges. Circuit Jackson, a if, conviction must be reversed viewing light the evidence in the most GOLDBERG, Judge: Circuit favorable prosecution, to the a court finds 13,1981 The prior opinion April in this that no rational trier fact could have case is the following opinion withdrawn and found, doubt, beyond a reasonable suffi is substituted therefor. cient evidence of the crime for which the petitioned Unel Harris the District Court defendant was convicted.1 Since the de for the Eastern District of Louisiana for a fendant in this case was convicted of the Upon writ of corpus. habeas the recom- state drugs, crime of La.Rev. magistrate, mendation of a (West 1977), Stat.Ann. 40:966 the sub § court denied the We writ. reverse. stantive law of the state of Louisiana con The facts in the case not in trols the dispute. are definition of each of the elements call, While a responding policemen Thus, two of the proven. crime which be must automobile, discovered idling an challenge with its Harris’s sufficiency to the on, lights blocking Upon the street. inspec- evidence establishing “possession” must be tion, occupants, the officers found two analyzed light Mar- “pos of the definition of tin Thibodeaux in the driver’s seat ap- session” under 40:966.2 La.R.S. issue, Holloway McElroy, In the state law when a state is at crime 1980), the Fifth ruled that the Jack- which must elements must define each of the applied retroactively. however, son standard could be proven. parties, have cited be defining “possession.” In the federal law parties misap-
2. Both
seem
this suit
to have
case,
“possession”
particular
is
the law
this
plied
holding
of Jackson —that
conviction
virtually
federal and state law
identical under
upon
charged
insufficient
of the crime
therefore,
validity
and,
Harris’s convic-
is a federal constitutional
violation —to a re-
of law.
choice
not affected
tion is
It
is clear
of a state conviction.
view
law,
drugs,
knowledge
it
is clear that
order for a
Under Louisiana
possess
drug,
presence
he
person
constructively
insufficient
drugs,
or
drug,
have dominion
or “control” over the
must either own the
“dominion”
Marks,
and,
therefore,
control over it. State
is insufficient
to establish
Marks,
Mims,
(La.1977);
“possession.”
Baker,
(La.1976) (knowing
willing
of fact could have found
a reasona
government argues
the
possession,
establish
had
ble doubt that Harris
dominion or con
final
of the third and
that consideration
in the
trol over the heroin found
console of
had in
its
Harris
element of
—that
Thibodeaux’s car.
to
prior
the
hours
jected
within
five
heroin
conjunction with Harris’s
his arrest —in
the evi-
agree
viewing
that
parties
Both
is suffi
presence
drugs
of
knowledge of the
favorable to the
light
in the
most
dence
clear that
prove possession.
cient
It is
to
(1)
record shows that:
the
government,
on Har
presence of “fresh” track marks
the
vehicle;
present in Thibodeaux’s
was
Harris
a her
that Harris was
ris’s arm establishes
in
of
were discovered
(2) packets
heroin
How
time of his arrest.
oin user at the
between the two
view” in a console
“plain
ever,
of
any
absence of
traces
given the
men;
(3)
was under the influ-
Harris
needed
any paraphernalia
of
heroin use —or
up”
had
drugs
time and
“shot
of
at the
ence
car,
these
Thibodeaux’s
such use—in
Both sides simi-
past
the
few hours.
within
prove
way
to
operate
track marks in no
was no evidence
larly agree that
there
control
over
that Harris had
or dominion
Thibodeaux and
any relationship between
wrapped
pack
found
in
specific
the
heroin
(other
sitting
found
in a
being
than
Harris
the ab
Similarly,
ets in
car.
Thibodeaux’s
how
together),
any indication as to
car
prior
whatsoever of
any
sence of
in
idling
the street.
long the car had been
Thibo
dealings
relationship
or of a
traces
heroin
any
car did not
contain
Harris, or even that the two men
deaux and
any
necessary
paraphernalia
use nor
than a
together
were
for more
in the
controversy between
use. The
such
minutes,
negate
to
an inference
few
serves
these
parties in
case is whether
this
control
that Harris had
over
to
facts are
establish that
three
sufficient
stipulat
Finally, Thibodeaux’s own
heroin.
“control” over the
had “dominion” or
Harris
nor
ed
that Harris neither owned
heroin.
any
the heroin further defeats
controlled
that
possession. The mere fact
inference of
It is well-settled in Louisiana that
knowledge
presence of
an
has
addict
presence
mere
in the area where the narcot
possession.
prove
heroin is not sufficient to
ic is discovered or mere association with the
person who does control
the drug or the
government at oral
by
As admitted
located,
property
where it is
insufficient
found
argument,
previous
no
case has ever
support
finding
possession.
a
State
law—
“possession”
federal or state
—under
Alford,
323 So.2d
as those
upon
based
facts as insubstantial
Cann,
(La.1975). Moreover,
elements of the crime were With original reviewing trier of fact and nine
judges finding all that the evidence demon- guilt petitioner’s
strated the a rea- doubt, say, I
sonable cannot now as I would Jackson, required
be “no rational guilt
trier of fact could have found
beyond a reasonable doubt.” Under the
circumstances, I dissent. KWON, Petitioner,
DONG SIK
IMMIGRATION AND NATURALIZA- SERVICE, Respondent.
TION
No. 79-2850. Appeals, States Court of
Fifth Circuit.
4,May