United States v. Jason R. Herron

benefit,”2 yet one has “no no finding of impose an judge may that a

suggested for reasons other than the sentence

adult helped incapacity be

defendant’s

Youth treatment. Because sen- Act unmistakably

tencing judge’s comments impermissible rea- reliance such

show

sons, reverse and remand for determination whether

District Court from might have benefited Youth

Brackett original time

Act treatment

sentencing.3 STATES of America

UNITED HERRON, Appellant. R.

Jason

No. 76-1496. Appeals,

United States Court of

District Columbia Circuit.

Argued Feb. 1977. Aug.

Decided 1977.

Rehearing Sept. Denied 1977. States, Dorszynski expiration imposed, 2. v. United 418 U.S. of the maximum sentence computed L.Ed.2d 855 uninterruptedly from date 5017(d). majori- conviction.” 18 U.S.C. See If Brackett were found suitable for YCA ty op. U.S.App.D.C., at-of at 504-505 treatment, he should released federal Compare Dorszynski, 567 F.2d. 418 U.S. at supervision stemming from this conviction be- n.6, 94 S.Ct. 3042. requires youth cause the YCA that a sentenced discharged thereunder no later than “the

MacKINNON, Judge: Circuit Herron, Appellant, R. Jason was found guilty of of heroin with intent to in 841(a) distribute violation of U.S.C. § (1970); possession marijuana of in violation (1973); Code 33-402 posses- of D.C. § phencyclidine in sion of violation of D.C. appeal His Code 33-702 raises We the judgment four issues. affirm of on all conviction counts.

Agents Drug of Enforcement Admin- (DEA), conducting istration a surveillance Street, S.E., A of (Tr. 81, 85-86), of the District Columbia one appellant and Theodore Wat- observed building son in engaged and around Each of men various activities. other, driving registered a seen car going and Herron was observed into and 82-83, 86-91; (Tr. building Supp. out 4, 6).1 During period this Ethel Vanessa purchased also narcotics in that apartment, agents and the DEA obtained a a search of premis- warrant conduct es. 12, 1974,

At about 7:30 P.M. on March agents were approaching apart- the DEA Quintiere D. John- Gary and Thomas G. warrant, ment 203 to execute the search (both ston, appointed D. C. Washington, two women knocked door. As court) appellant. began to from the open door inside Blumenfeld, Atty., Asst. Jeffrey U. S. Upon started towards agents quickly it. C., Earl J. Washington, with whom Sil- D. approach agents, noticing the of one of Terry, Asst. bert, Atty., and John A. U. S. “Jason,” yelled the women and the door C., Washington, D. were on Atty., U. S. (Tr. then from the slammed shut inside brief, appellee. 7-8, 31-32). escaped. The women ran and agents announced their intention to The BAZELON, Judge, and Chief Before warrant, MacKINNON, the search there was Circuit execute McGOWAN Judges. response apartment. from inside no agents broke down the door When by Circuit the court filed Opinion entered, they Herron alone in the found Judge MacKINNON. standing doorway kitchen, holding shepherd BAZELON, dog German on Judge filed Chief Opinion 16-17, 51, (Tr. 9-10, 83-84). leash concurring in the result. transcript of paginated the trial separately “Supp. are to the Tr.” references Smith. Vanessa Special Agent and Ethel West found, a table top also The DEA agents previously testified rows, thirteen tinfoil in neat that on the day they raid observed 13-15, (Tr. in cash heroin and $150 clothing men’s no complete A more search clothing (Tr. women’s or children’s revealed a total 53.5 95). On cross-examination Caroline Rice varying heroin from 5 to grams purity of of admitted she that did not return to the 3-5, 34, 40-41, 60-62, 117-18) with (Tr. 12% apartment until three days after the search $38,000. value approximately a street and testified further that in the interim she $16,000 more they the bedroom found than and her husband had lived her at mother’s dresser, beneath a and in the kitch- in cash house, they where stayed quite (Tr. often marijuana top of containing en a vial on 142-43). refrigerator. They also discovered various commonly in paraphernalia cutting used Appellant testified in his own behalf that down diluting of heroin to street level the evening on of March he went to lactose, including bottles of a strength, apartment 203 to visit Larry his friend Rice strainers, tray, measuring spoons, and (Tr. 157). he When Rice pre- arrived was tinfoil, pieces some which bore traces paring to pick to leave up his wife and he 17-20, (Tr. 14, 22, 63-65). of heroin stay, asked Herron to that saying he would agents one of the that he When stated (Tr. 159). soon return Appellant also testi- closet, to intended search a locked bedroom fied that he had known Theodore Watson Herron “I a appellant responded key, have high since and school had once been in that you breaking up my don’t want stuff" and apartment with Watson but he had never (Tr. added). emphasis door unlocked seen introduced at trial agents As searched another in the closet (Tr. 163-67). He specifically denied living said, living-dining area, appellant “don’t apartment in 203 and also denied my 3-4, having (Supp. 9). wrinkle clothes” Tr. agent When an Herron he seen or sold narcotics asked what to Ethel Vanessa doing apartment replied at the he that “he apartment at (Tr. 180, Smith that 191). (Tr. 85). It stipulated lived there” that In rebuttal the Government offered the heroin, marijuana recovered were Smith, of Ethel Vanessa who tes- that phencyclidine, papers recov- pursuant agreement tified an with the apartment bore ered in the names of drop against Government to the charges her both Herron Theodore Watson. These in return testimony (Supp. for her Tr. 15- papers receipt clothing included a in the 16). She testified she was introduced to Watson, receipt name of Herron and a rent Herron Caroline Rice who took her and name, a telephone in Watson’s and two bills in man named Trapp buy Watson’s name. some heroin from apartment Herron in Trapp gave Mrs. defense, Regina For the Howard testified spoon Rice $125 of heroin and Mrs. that she went apartment 203 on March Rice and Smith Miss then went to the friend, Rice, to visit a Caroline apartment gave who where Miss appel- lived with her husband Smith Larry (Tr. 134). also She testified lant $125 Herron the and received from him Caroline Rice had stayed, stays and still package in return a At heroin. the time times, her apartment Ridge mother’s Herron was dressed in a robe and Washington (Tr. 136). Road in Southeast slippers and was there except alone for a Caroline Rice testified that she and her shepherd dog German (Supp. 17-18). Tr. apartment husband rented the from gave Herron her the pile heroin from a Watson Theodore and lived in it with their packages aluminum foil which were in view November, child April, from on the table the dining (Supp. in room Tr. (Tr. words, 138). In other Caroline Rice her family testified she and were liv- Miss approximately Smith returned ing apartment at the three times material charges-against to the Herron. purchase times after the first and on each bag anyone of heroin home as else’s. purchased He was alone in the occasion she 18-19). Miss (Supp. apartment Tr. appellant search, time of only Theodore testified that further dressed in a robe and slippers. women in the living Herron were Watson who knocked door called out Her- and Mrs. apartment, and when she ron’s first name in warning agents as the Mrs. gone Rice had first He had dog. rushed the door. control of the living at was not Rice clothing He claimed the in two closets as Road, Southeast,” she and Ridge where “off his, and furnished the he keys which cor- man Brown and a named Gerald Trapp rectly open said would one of the closets. appel- way Mrs. Rice on their picked up apart- stated that he Herron lived (Supp. 19-20). lant’s appellant ment. The had seen enter claim the Rices lived Appellant’s and leave the several times Miss was further refuted apartment they the surveil- period the short had it under testimony about a conversation she Smith’s Herron driving lance and saw Watson’s cars riding while to of Watson’s heard office driving The and Watson Herron’s cars. Herron, in a car with Rice and lawyer, agents women at acts of the the time testified that the three talked Watson. She they that apartment broke into the indicate being paid “taking the Rice for about to be expected Herron behind the closed 20-21, 25), Watson Tr. charge” (Supp. door, probative regularity and this is say that Watson told Rice what to and appellant place with which and occupied got lawyer’s he down to the office when relationship special his 20-21). (Supp. April Tr. Later in Miss lessee, and to its Watson. Such evidence present at Smith was another conversation for the that jury was sufficient conclude and Watson Rice in which Watson between temporary occupant not a of Herron was pay into Rice he him to move told that special and relation- along (Supp. 203 with his wife permanent was of a character ship to it 25-28). present during Herron was Tr. not possessive interest in sufficient to indicate conversation it was admit- this second and Holland, Cf. United v. its contents. States only for bearing ted into evidence its on 225, 227, 701, F.2d 703 U.S.App.D.C. 445 credibility (Supp. of Caroline Rice Tr. 26- were in (1971). Thirteen of heroin 27). On cross examination Miss Smith stat- plain on the kitchen table. The mari- view purchased ed she had narcotics from that juana top in the of open was out apart- several times at the same Watson in drugs and the were refrigerator, other ment, and once from Tr. (Supp. Herron narcotics which he had access. The areas to 35-37). One of the DEA also testi- paraphernalia apart- in the cutting found during they fied that search had found large quantity ment and the found .38 on the floor a caliber revolver loaded distribute, of an supportive was intent (Tr. live rounds of with five ammunition packaged that in a was the heroin was 213-16). manner as if sale. Unit- convenient See James, 88, U.S.App.D.C. ed v. II cert, denied, 494 F.2d (Tr. trial Appellant contended 42 L.Ed.2d 294 U.S. S.Ct. contention, 124-28), repeats and here (1974). was The in cash that $150 $200 case that the evidence Government’s packaged next to the in on the table heroin Herron’s sufficiently prove did not chief slips tinfoil was also some evidence folded that, constructive distribution, $16,000 in cash therefore, of ac judgment his motion for apartment, was discovered elsewhere in the granted. have been quittal should highly lucrative in view of well-known distribution, narcotics character of was also stage evidence relevant probative if of that element. Herron was trial indicated Herron’s, as much his time. solely at least sole might When a reasonable mind fair that decision was reached in part because of ly guilt might have a reasonable doubt of the character and relative weakness of the none, fairly have the decision is for the Government’s case. The evidence in this States, jurors Curley make. United 81 case, however, is more extensive and a 389, 392-93, U.S.App.D.C. 160 F.2d 229- great deal stronger than Pinkney. There cert, denied, is no doubt whatsoever that Herron was the 91 L.Ed. 1850 We conclude only person in the apartment, that some that on these facts the district proper court drugs were in the open and packaged as if ly appellant’s judgment denied motion for a sale, and that the heroin that was hid- acquittal. den the very $38,- substantial value of 000. Defense counsel objection .made no in, When all the testimony was more con- the “reasonable illustration, doubt” vincing evidence of Herron’s intent to dis- stated after the conclusion of the court’s tribute the had been furnished by jury charge, that he was “satisfied as a Miss Smith’s that she had actual- whole” with the instructions and ly purchased heroin that he from him on several did not have “[a]ny requests for (Supp. 17-19). occasions Tr. The first further pur- (Tr. instructions” 243). We chase thus was for and the conclude $125 three subse- charge that the did not quent constitute purchases were for (id.). each reversible error because the given She knew Herron and instruction as (Supp. identified him beyond harmless 15), Herron, and also testified reasonable doubt. Cf. Rices, United Byrd, States v. the lived in the 494 apartment. (8th This F.2d 1275 1974); Cir. agent’s corroborated the United testimony Moore, which States v. 140 U.S.App.D.C. 309, quoted 1, 435 Herron’s 113, 114 statement to that 310 n. effect. F.2d cert, n. denied, We thus also 906, find 402 existed suffi- U.S. 91 S.Ct. 1, 1376, cient evidence 28 (1970); to affirm the judgment of L.Ed.2d 647 United States cert, Baratta, conviction. v. (2d 397 F.2d Cir.), 215 denied, 393 U.S. 89 S.Ct. 21 Ill (1968). L.Ed.2d 276 Appellant next contends that the court,

district in its instructions jury, to the IV gave improper an illustration of the term Herron also contends that the trial (Tr. 237-38). “reasonable doubt” court plain committed error in failing to We held in United States v. Pinkney, give 179 an “informer’s” instruction with re U.S.App.D.C. (1976), spect to the testimony of Miss Ap Smith. an doubt, instruction on reasonable pellant’s inter Br. at 27-32.2 dispose We of this alia, which explanation involved an substan- contention principally by noting that such tially given identical to that by here an instruction was not requested as re judge, same plain constituted error. But quired by Instead, Fed.R.Crim.P. 30.3 coun- Appellant proper Appellant’s contends that a instruction Br. at 29-30. would have been: provides: 3. Fed.R.Crim.P. 30 testimony provides The of an informer who At the close of the evidence or at such against pay, evidence a defendant or for during earlier time the trial as the court rea- immunity punishment, personal or for directs, sonably any party may file vindication, written advantage or must be examined requests jury the court instruct weighed jury greater with care requests. law as set forth in the testimony ordinary than the At the of an witness. copies requests same jury time of such The must determine shall be whether the inform- parties. testimony furnished by interest, to adverse er’s has been affected court shall by prejudice against proposed inform counsel of upon or its action defendant. C. Devitt, requests prior Jury arguments Blackmar & E. Federal to their Practice to the Instructions, (2d jury, 1970). 12.02 jury § ed. the court See shall instruct Mathes, Jury arguments also completed. after Instructions and party Forms for are No Cases, 3.02, may assign Federal Criminal 27 portion F.R.D. charge as error (Emphasis added.) objects omission therefrom unless he in- sider and with the should consider satisfaction expressed sel [infer alia] (Tr. by the court whether the given witness has an interest structions that in those admits Appellant’s (Tr. 239). brief 243). outcome of case” Her exact the failure have found where courts cases interest openly displayed had been plain to be instruction an informer’s give jury by her own testimony (Supp. 16).4 error Had trial counsel considered that an addi- the testimo- was that tional instruction was dispositive necessary fact there is no accomplice tainted witness —the indication it would not have

ny given. been all or vir- permitted the informer —constituted Defendants should not be to lull [or] case the Government’s tually all of courts into a false sense of security as to v. McMillen the defendant. against position of counsel on a particular in- [Cf.] States, 29[, (1st Cir. 386 F.2d thereby United struction and profit by 36] their own cert, denied, 390 1967)[, comply failure to with one of the most basic (1968)]; Tillery 1424, 20 L.Ed.2d 288 procedure. rules of trial 644[, (5th States, F.2d v. United 646] States, 1969); v. United Williamson Cir. V 1964); (5th United 123[, Cir. F.2d 132] Next, appellant contends that be Griffin, 823[, F.2d v. 828-29] States cause Miss Smith’s was not intro Owens, 1967); United (6th Cir. rebuttal, duced until the court should have (10th 268[, Cir. F.2d 269] given an instruction limiting its use agree, We Br. at 31-32.

Appellant’s jury impeachment. The contention has strength of the inherent because First, two deficiencies. a limiting instruc case, plain error we find Government’s Second, requested.5 tion was not the testi committed. was not mony given by Miss Smith was primarily the instruc- give failed to the court When evidence, substantive properly admissible in volition, Miss Smith’s testi- its own tion of such, rebuttal though as even it did have prima alone. A facie not stand mony did probative quality impeachment. some without Miss been made Smith’s case had The in question evidence was not offered features principal In its testimony. solely for impeachment its effect as is corroborated Miss testimony agents’ required to be so not limited. relationship as to the be- testimony Smith’s testimony When is offered or Watson, e., admis i. that Her- tween Herron solely impeachment sible purposes, a ready and had lived in ron limiting may required instruction be They also had everything in it. access have, cause the evidence does The and can purchased. she had the heroin received given, any not be substantive effect. But credibility on had included charge court’s testimony probative when is of the jurors “may con- commis- the admonition my charge jury dropped A That retires to consider its if I before the thereto testify. verdict, distinctly stating the matter to which you objection. presently charged objects grounds of his Are with crimes? and the Q he Yes, given Opportunity to make the ob- A I am. shall be and, hearing jury they? jection of the What kind of out of the crimes are Q any party, presence charges. request out of A Heroin jury. Supp. Tr. 16. added.) (Emphasis 5. We are not unmindful of our decisions stand, Smith, Henson, 32, first took the U.S.App.D.C. when she 4. Miss United States v. 159 (1973) (en banc); testified: 1292 United 486 F.2d States Fench, 325, U.S.App.D.C. v. 152 470 F.2d 1234 you any agreement between there Was Q cert, denied, 909, 964, (1972), 410 U.S. 93 S.Ct. in re- the United States Government (1973); you testify 271 United States v. Thom- request 35 L.Ed.2d sponse to their as, 148, (1972); U.S.App.D.C. 148 trial? Bobbitt, U.S.App.D.C. Yes, v. 146 United States A there was. McClain, (1971); you 450 F.2d United States v. what the basis of 685 Would tell us Q U.S.App.D.C. F.2d 241 agreement was? accused, is dence of the part earlier sale as a the offense sion of pur- chief, that substantive Government’s case in we stated: admitted properly instruction need for an is no pose, sufficient, however, problem is for us The re- such inferences. against cautioning prosecution to note that would be contradicted testimony of Miss Smith buttal preserve wise to such evidence for rebut- the defense Herron and of testimony of tal, sharp- after the defense case has been that Herron did not the effect witnesses judge may ened and the therefore more time it was 203 at the live in accurately degree consider the of relevan- know that nar- he did not and that raided cy potential and the for abuse. Unit- See (Tr. 166-67). in the were cotics Crawford, F.2d ed States v. evidence that was di- was substantive This (8th 1971) Cir. and United v. Ad- States the commission of rectly probative ams, (2d 1967). 385 F.2d Cir. proper constituted rebut- charged and crime U.S.App.D.C. 476 F.2d testimony. tal quotation justification is here cited as This however, contends, further Appellant prosecutor’s for the decision to withhold to have for such evidence that in order offering testimony of Ethel Vanessa it as substantive evidence effect probative (Govt. until rebuttal Br. at in the Government’s admitted had to be There is no question but Jones does e., chief, that when it was offered case in i. lend interpretation itself to that and be- thereby limited to its in rebuttal it was cause it opportunity does we take this disagree. We When impeaching effect. dictum, it with own replace our .advice to testimony which it con- the defense offered prosecutors, prosecutors so that hereafter that Herron did not commit proved tends may not be misled. charged, with which he was it the offenses peculiar The circumstances in Jones were re- the door to the introduction of opened because the earlier narcotics transaction testimony of a substantive character. buttal really separate offense for which the by Miss testimony given Smith. Such appellant originally been indicted. The con appellant But is not the one however, charge, dropped had been because aspect this of the trial. The fused as to Attorney’s notify failure to equally confused its con Government defendant of a reindictment offense tention that the of Miss Smith which alleged day a date one earlier than kept been out of its case in should have charged original indictment. In asserting proposition chief. Jones there have been some assurance upon a statement of this Government relies that the defense would introduce evidence Jones, court in United 155 U.S. admissibility that would ensure the (1973). The in App.D.C. question, evidence in but if that were not charged in that case a sale of dictment the question the case we wisdom of the trial, particular At in narcotics on a date. that the introduction of the evi- observation chief, in the introduced its case Government sale dence of the earlier should be deferred charged evidence of the sale in the indict rebuttal, certainly we ques- until and most testimony of a ment and also introduced general tion its wisdom here and as rule. by days earlier which was made sale eleven similar circum the same defendant under the best rule for the opinion In our charged not stances but which was is that he prosecutor in a criminal case earlier testimony as to the indictment. The case in chief should in the Government’s of its relevance was admitted because sale introduce all the evidence of defend scheme and identity and common prove properly that is admissible in guilt ant’s subsequently took defendant plan. The the trial. In most criminal stage that involved in either being and denied stand there is no assurance a defendant trials any with any relationship denied sale and put or evidence. will take stand discussing opinion In our traffic. narcotics may only oppor- well the evi Its case in chief admissibility of the issue attorney exchange paid to intro- to her will have tunity prosecution Mr. Watson. said she by in the weeds She had lay To evidence. duce clinching testimony persuaded by state been Watson to false- critical with some Herron, ly attorney that it because not to be disastrous proves times many Watson, her testimony, or the who sold on the four in no puts the defense occasions for which Watson had been permit introduce does testimony it does testimony at the charged. hearing, of the reserved She testified introduction however, purchased that she know there We all rebuttal. proper as dramatically proves unquestiona- case is from Watson. This where a situations bly person that Ms. evi- Smith who important holding back some won price right, that more would lie if the were dence, observation thus it is our forcibly more by adopting suggests spe- such all the that a or lost are hazarded cases relevance, cautionary admissi- cial questions required instruction was If tactics. etc., arise, present, as were here such in this case. bility, can bench conference at a the Government (footnote Reply omitted). Br. at 15-16 We rebuttal, if it is until to wait always offer have carefully allegation examined this to rest rebuttal. But there will be assured the cited references. The situation to vital evidence in the introducing without which it refers resulted from a continuous opportunity arising of a second expectation attempt by Theodore importune Watson to most unwise. generally opinion in our Miss testimony Smith to recant her at his many cases where the just are too There trial. charged Watson had been with a that second chance.6 gets never Government counts, including number of four counts of distribution of heroin in violation of 21 VI 841(a) (1970).7 U.S.C. The distribution explore There still remains one matter buys counts were based on four made brief, reply In his first and discuss. Miss Smith on behalf of the DEA agents; time, appellant makes a new attack Miss she had in each instance the agents told testimony: Smith’s purchase that she made the from Wat- to- Finally, appellant’s concern as purchases son. These four were distinct inherently suspect character of Ms. purchases from the to which she testified at by a testimony is borne out sub- Smith’s (Supp. 17-19).8 Herron’s trial Accord- recently come to sequent event which has ing testimony hearing Miss Smith’s at a than four appellant’s attention. Less pending on Watson’s motion for release ap- testifying appellant’s months after means, peal, sought by Watson had various trial, a witness for appeared trial, Ms. Smith after Herron’s change induce her to a hearing Theodore Watson in held to her and name Herron as the sell- whether Mr. Watson should be er of the drugs purchased determine she had for the pending appeal. agents, on bail Ms. but she had been reluctant to released com- ply. Watson showed her a written during hearing admitted tran- script trial, of her testimony Mr. Watson’s at the Herron previously she had lied to however, imply, charged 6. We do not mean The Fifth Count Watson with unlawful 53,708 anything improper about the Govern- with intent to distribute mil- there is ligrams remaining on March 1975. The five adopting tactic. ment that against counts were all Watson and heroin, charged simple possession of marihua- against 7. The distribution counts Theodore R. phencyclidine possession na and and of two Sep- filed Watson in Criminal No. felony firearms after a conviction. 23, 1975, charged that he and Ethel V. tember unlawfully distributed heroin as follows: Smith cross-examination, 8. On Miss Smith showed milligrams 4, on March 995.6 First Count: purchases over the some confusion number milligrams on March 12,370 Second Count: Herron, from but bought insisted that she had milligrams on 6,547 March Count: Third (Supp. 36-37). milligrams him on March 3,205 Fourth Count: testify just except asked her to the same to from Herron because Watson had (Watson (id. 45). H. Tr. say his name to Herron told her to so at change 26),9 pay to her if she did so. and offered that appear It thus does not record 28), (id. it at might she do

She said any perjury Miss has committed any “go she did not want to added fact, 25). case or Watson’s. (id. brought at Watson later either Herron’s courts” pur- up very strong and he in- lawyer against his into the discussions she has stood legal her on some of the ported change testimony. to advise her It was ducements to testi- aspects Smitlj of the situation. Miss wrong very accept and unwise for her to attorney’s went fied that before she from Watson and to lie to Wat- $500 office, going gave Watson her $500 counsel, “[f]or recognized son’s but it must be him, lawyer’s office with and if down very strong pressures in the face of she has signed (id. 39). I a statement” at He also at all times in court adhered to the same give her another told her that he would story. also indicated to Watson and his She plea” (id. at they withdraw $500 “[i]f perju- counsel that she would not commit 40). then went to office Wat- She ry.10 has not any proof Herron introduced got son’s counsel “to tell him in his perjury that Miss Smith committed of Mr. Watson” from Jason Herron instead thereafter, nothing trial we see (id. 42). lawyer at told her that she Her- subsequent her conduct that affects if Theo- “could use statement [written] If the ron’s conviction. Government my testimony dore Watson’s name wasn’t evidence that she had committed acquired trial, we proba- in Jason Herron’s perjury obligated it would have been (id. 31). bly could use the statement” at such facts to the court tried present Watson told her that his counsel had Herron. way might “worked out a [that she] court,” go

have to and counsel told her Affirmed. thing. go

the same did not want to She court because she did not want to commit BAZELON, Judge Chief concurring in (id. 46), she told counsel she perjury the result: 47). perjury (id. at Be- would not commit This troubling question case raises the hearing prosecutor fore the she told the how much evidence is sufficient to establish (id. having paid about been Watson prima facie case of constructive 56), hearing she and at testified when illicit are found.in a common got “the truth is I from Mr. [the heroin] area of a residence shared two or more perjury it she Watson” and that would be if people. Although I find this Court’s obtaining the testified to heroin from Her- Davis, decision in United States v. ron on the four occasions referred to in the U.S. App.D.C. (1977), against (id. counts forces us four distribution Watson conviction,1 I to affirm Herron’s further testified that she had believe the She question told Watson’s counsel that she had obtained warrants further discussion. hashish, (2) possession “Watson H. Tr.” references are to the tran- sion of with intent to script May hearing LSD, on Watson’s (3) possession distribute with intent pending appeal. motion for release marijuana. to distribute I dissented from af- firming the two distribution counts because the accurately marijuana pass we LSD and the 10. While cannot were concealed and no conduct of Watson’s trial counsel on this one- evidence indicated which of the three room- (counsel testified), responsible drugs. sided record has not mates was for these I con- questions affirming does raise about the extent curred in count be- of his involvement. unwilling this record we are appellant On cause the plainly was found next to the to make further comment. hashish, smoking appa- visible various lay along ratus around the room with other use, frequent appellant along evidence of admit- appellant was convicted 1. In Davis using drugs (1) simple posses- ted there. with his two roommates presence apartment case in ant s in a shared government’s where end of At the plainly arguing acquittal, holding visible containers illicit chief, moved Herron drugs are in an found area accessible to all failed to establish prosecution residents considering his claim facie case. prima a denying his erred trial court The elements of the possession crime of motion, to consider we are allowed are supposedly settled. The District of Co- government presented evidence lumbia statute governing simple possession majori- trial. As the point in the up to that reads: details, showed that evidence ty opinion any person It shall be unlawful for in, lived or at Watson both Herron and possess . have under his con- [or] Heroin apartment. frequented, least any trol . . . drug narcotic . . . dining open on a lying was found sale, as if for packaged It was table. room 402(a). 33 D.C. Code The statute has § 1 inch approximately in small foil require knowing posses been construed to inch, in neat rows near arranged Vi Weaver, sion. United States v. 148 U.S. other items on in cash and $150-$200 App.D.C. Similarly, heroin, not quantities of Additional table. possession the federal statute for with in conviction, were support essential tent to distribute reads: kitchen bag in a behind the concealed found shall be unlawful person [I]t containing vial An “amber-colored stove. knowingly intentionally or ... de- vegetable material”2 —later leafy green possess . with intent to . marijuana phen- dusted with to be termined distribute ... a controlled sub- re- atop the kitchen found cyclidine stance —was were taken of fingerprints No frigerator. 841. The indictment U.S.C. on both containers.3 drugs or their any of these charged counts with “knowingly Herron slate, intentionally” were a clean Assuming possessing drugs that the law apartment. “Knowing posses- to one found in his open would be approaches several (1) First, requires knowledge sion” that one pos- evidence alone. working with this (2) knowledge sesses certain items and as to occupants of the regular all could hold one actually what those items are. Cf. United of the liable for Freed, at the moment present or absent whether (1971) (Brennan, J., L.Ed.2d Second, could hold liable one the search. concurring). at the only those found Third, one could hold the search. possession, time of In case of constructive addi- additional evidence. proof necessary liable without tional of scienter is to show none apart one fol- the fact approaches these three itself from the Which of underlying knowledge “knowing” posses- on the elements of the depend lowed paraphrase jury sion. To the standard in- (determined by its common law or crime Columbia, structions the District of definition) permissible factual statutory human behav- probable possession requires about that a assumptions Constructive is, the law should know how to at the narcot- get what inferences defendant (that ior (either directly through agent). an solely from a defend- ics jury to draw permit (2) frequency drug appeared with which the defendant to one This is how the 2. occupies apartment; Tr. 63. or visits the involved in the search. DEA (3) people the number of with access to the found; place 42. 3. Tr. are where the (4) plain whether the are found view patterns present different Other factual (this their or are concealed factor includes support questions different inferences. container); packaging or Among variables are: the relevant (5) particular establishing a other evidence anyone (1) and/or finger- the defendant person’s drugs, whether nexus with the such at the time is found in the buys, drug paraphernalia, else search; prints, etc. controlled necessary packets jar and contained illicit knowledge, drugs the how such Without probable and control is it that he intended to exercise dominion to exercise “power” them, However, over presence merely “mere control rather than be- lacking. is drug, lieving property or mere them to be his roommate’s narcotic vicinity of a the ” Perhaps is not and none of his own business? physical location knowledge of its judges would time in removing law to establish waste no a matter of as sufficient though drugs premises, the or themselves from the Even possession. constructive culpable but can a mind be inferred from to exercise do- “power” has the someone object, person the of a of a different back- over an he is failure control and minion ground outlook the unless he and to do same? possession in constructive do so. “intention” to has the also troubling more would be the attribu- Still Davis, U.S.App.D.C. at v. United States knowledge and intent tion to those resi- J., (Bazelon, at 694 C. dissent- 562 F.2d dents of an who were absent omitted). (footnote ing) probable when a search occurred. How is it they lying even saw the items on the Thus, supposedly constructive refrigerator, or table assumed observa- (1) the defendant have proof requires being premise tion the on which all the located where the items are knowledge of assumptions other and inferences rest? them, (2) knowledge of get at how to Similarly, knowledge the inference of is, (that actually are items what the extremely intent would be tenuous for all else), something drugs and not they are occupants, present, absent or if the and control (3) to exercise dominion intent concealed, drugs place were even if in a in this case Does the evidence them. over case, question accessible to all. In each mental ele- presence of all these show person is whether a reasonable could find ments? knowledge beyond and intent a reasonable beyond intent knowledge and Inferring doubt from this evidence alone. solely from a defendant’s doubt reasonable proof Some relaxation of the scienter re- apartment where in a shared presence might quirement be reasonable. For exam- “plain view” would re- found in drugs are the law ple, might permit presumption following factual that one make quire person generally that a knows the actual are con- assumptions: Because objects possession. nature of in his In the very probably the defendant is spicuous, case, present this would mean that the jury presence. disap- Given the of their aware would be allowed to assume that Herron attach to danger proval knew the contents of the foil on the very probably the defendant drugs, jar table and refrigerator even he tolerates because least a co-venturer though there was no evidence that he was (if his roommate and because presence their familiar with foil packaging of heroin or his) him alone in the drugs are trusts appearance marijuana provided visible items. openly with these — these items were posses- found to be in his ques- assumptions highly are That these sion. probable be manifest. How tionable should actually here knew What disturbs me far more is the the defendant relaxa- is it that packets lying proving possession tion of scienter in inside the small foil itself what was items, possession. or knew that cases constructive the table with other “Knowledge get drugs” of how to can green vegetable material” “leafy view, oregano they plain they was not or inferred if are in refrigerator jar on But that knew that the foil were here.6 still leaves the re- And even if he tea? U.S.App.D.C. young groups 562 F.2d at 696 n. 10 and other social 5. The (Bazelon, J., dissenting). sufficiently drug C. invalidate use to tolerant proximity inference that continued largely I dissented in Davis because the drug implies frequent users association with concealed, undercutting thus found there were Davis, 183 participation. See United probability that the defendant was aware of Dotterweich, United to exercise domin- of “intention 320 quirement 281, 284, re- 136, 138, If we overlook this control.” S.Ct. ion and L.Ed. 48 is, juries to permit if we quirement —that proof of this ele- sufficient without

convict However, as the Supreme pointed Court to a standard of will have moved ment —we States, out in Morissette v. United 342 U.S. everyone living in a liability, so that strict (1952), S.Ct. 96 L.Ed. 288 strict residence, of his actual knowl- regardless liability in the criminal law has generally intent, possession deemed in will be edge been restricted to “regulatory” offenses place in a accessible to all. drugs found (1) accused, where if he does not will “[t]he effect, every per- would mean that In violation, usually position is in a to obli- an who shares son prevent it with no more care society than separate himself from gated to discover and might reasonably expect no more exer- illegally possesses drugs. roommate who a might tion than it reasonably exact justification for such a stan- suppose the one who assumed his responsibilities” liability would rest on a deter- of strict dard (2) “penalties commonly are relatively gen- good to be achieved mination small, grave and conviction does no damage penaliz- unfairness of erally outweighs the Id. reputation.” to an offender’s lacking culpable intent: ing persons some Supreme at 246. The Court has not larger good the interest of the stan- In [a “undertaken to delineate a precise line or puts the burden of liability] of strict dard comprehensive set forth criteria for distin- person a otherwise acting upon at hazard guishing between require crimes that a standing responsible rela- innocent but not,” mental element and crimes that do public danger. to a tion the Court has misgivings indicated its stripping

about “the defendant of such ben- there doubtless be under a efit as he derived at Hardship common law from penalizes which thus the transac- purpose” statute innocence of evil in order to “ease though wrongdoing prosecution’s consciousness of Id. path tion to conviction.” totally wanting.7 argued S.Ct. at 249. As I get liability, possession presence to their Here, or knew how them. with intent to distribute drugs open, giving require independent were in the more proof could be defined to contrary room for a inference. drugs that the defendant knew of the and in- Knowledge tended to sell them. and intent instances, “hardship” In at least two simply presence could not be inferred from the unconstitutionally might acute. If the become drugs in his shared and their sufficiently did not stand in close defendant being packaged as if for sale. danger” public anything to “relation to a do relief-provid- It should be obvious that these it, might process about it be a violation of due ing logically solutions are flawed. From the any theory. hold him liable under A casual packaging reasonably one often can example, surely for visitor to an possesses infer that whoever them intends to failing responsible for could not be held them; permit sell and if we the conclusion that presence drugs. of concealed discover the them, possesses pos- X it should follow that X “hardship” might unconstitution- also become sesses them with the intent to distribute. The ally charge severe where the logical gap step, occurs at the first with the distribute, a much with intent to more serious possession. inference of To correct for the simple possession. If an intent to crime than possibility stage, of error sanctioned at that we merely could be inferred from the distribute tighten up require- the chain of discovered, inferences and quantity packaging or proof step, ments of at the second showing with the greater of nexus with no between by particu- inference of an intent to distribute a required and the defendant than that so, doing logical lar simple possession defendant. we trade under a standard of strict consistency subjected greater respect liability, fairness an individual could be with charged penalties simply for his failure to be those with with intent harsh vigilant about his roommate’s activities. more distribute. questions These constitutional potential “hardship,” were not the law To alleviate this presented panel scienter) proof (and perhaps and are not decided in different could set majority opinion. requirements offenses. For exam- for the two simple possession ple, if were a crime of strict of intent will often be available to dence U.S.App.D.C. at Davis, 183 particular guilt.8 roommate’s substantiate at 695-696: F.2d pinpoint is unable to If the Government Unfortunately, questions these have al- responsible cotenant which implicitly— least ready been answered —at it cannot sustain drugs, presence By by panel of this court in Davis. find- them, even any of charge against ing the exceedingly scant evidence certainly is almost at least one though case, prima sufficient to establish a facie is conviction alternative But the guilty. require- the scienter the court eviscerated guilty innocent with —some- possession, reducing ments constructive abhorrent to always been which has thing liability it to a crime of strict least ten better that “It is legal traditions: our case, that case. This factual situation of person suf- one innocent escape than that facts, in its not though slightly different is offenses or where narcotics Even fer.” Here, distinguishable. were in public out- arousing great crimes other in Davis. open, not concealed involved, inno- condemning the rage are two of the three room- Whereas in Davis letting price an intolerable cent mates were found at home when search escape. guilty none of occurred, here Herron was found in omitted). (footnote raising at least the infer- I do possession, constructive ence that whoever controlled the In cases of Davis, intent requiring proof of In light think that trusted him there alone. govern- impossible compelled affirming burden to concur in places an am case, example, present In the conviction. ment. easily have checked

DEA could appellant’s and other items for

foil he it had been shown that

fingerprints. If would have been a drugs,

handled that he inferring basis for sounder

much did) exercise control over (and

intended evi- kinds of circumstantial Other

them. (Bazelon, J., Davis, dissenting). U.S.App.D.C. at C. United States 8. See

Case Details

Case Name: United States v. Jason R. Herron

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 19, 1977

Citation: 567 F.2d 510

Docket Number: 76-1496

Court Abbreviation: D.C. Cir.