United States v. Joseph B. Davis

may court so that determine on district indictment, any, counts of the if remaining

there is sufficient appel- convictions of either or both counts, new

lants. As to those trials would counts, required; as to all other

charges must be dismissed. ordered.

So of America

UNITED STATES DAVIS, Appellant.

Joseph B.

No. 75-1374. Appeals,

United Court of States

District of Columbia Circuit.

Argued Dec. 6, 1977. April

Decided prior specifically [emphasis added], tive criminal value of the conviction record prejudical [emphasis 93-1597, H.R.Rep. Cong., effect to the defendant No. 93d 2d Sess. original]. danger prejudice (1974), to a Cong. Admin.News, 9-10 U.S.Code & (such pp. other than the defendant as witness injury reputation in his com- appears witness’ prior It thus that under Rule all munity) rejected by felony prosecution considered convictions of witnesses are weighed Conference as an element to be (subject only admissible to the time-limit re determining admissibility. judg- It was the 609(b)). strictions set forth in Rule See United danger ment of the Conference Gartrell, States v. Smith & prejudice to a witness is out- nondefendant (1976); 359 and n.21 weighed by the need for a trier of fact Belt, United States v. have as much relevant evidence on the issue (1975); United States v. Dixon & credibility possible. Such evidence Greenleaf, (9th 1082-1083 Cir. presents should be excluded where it 1976); (1975) 3 Weinstein Evidence 609[03] danger improperly influencing the out- 609-66, text, accompanying n.11 and by persuading come of the trial the trier of 609-77. fact to convict the defendant on the basis pursuant Youth Federal Corrections Act, 5010(a). 18 U.S.C. appeal This ques- § tions convictions Davis. Convictions on all three counts rest upon factual determination that Da- possessed vis the drugs involved. Two of also jury’s counts included conclu- possessiоn sion that such was with intent to distribute controlled substances. Ap- pellant argues that the link shown between him and the narcotics discovered in the apartment was insufficient establish his possession them, of and that there is insufficient circumstantial evidence that his was with intent to dis- Jaffe, D.C., Washington, Michael Evan tribute. He contends that the trial court Walter, Washington, B. with whom Elisse failing grant erred in his motion for (both by Court) was on appointed D.C. of judgment acquittal at the close of the brief, for appellant. case, government’s and the alternative Kern, the evidence does Atty., John L. Asst. U. Wash- S. con- D.C., Silbert, Appellant viction. whom U. also attacks the ington, with Earl J. admis- sion of certain Terry, Hanny, James M. documents. We find Atty., S. John A. court Gerson, properly trial denied Attys., M. Asst. Davis’ and Stuart U. S. mo- judgment tion D.C., for of Washington, acquittal at the time the brief close brief, government’s case, filed, that the appellee. were on the evidence supports the and convictions the trial BAZELON, Judge, Before Chief MR. error, was without substantial and there- CLARK,* Retired Associate Jus JUSTICE fore the judgment affirm as to all three Court, Supreme tice of United States counts. MacKINNON, Judges. Circuit and I. THE MOTION FOR JUDGMENT Opinion for the Court PER CURIAM. ACQUITTAL OF BAZELON, Opinion Judge filed Chief In passing upon a motion for part. dissenting part concurring and judgment acquittal of the trial court must PER CURIAM. light view the evidence in the most favor validly Pursuant issued war- giving to a search able to the play Government full rant, search resulting of an right jury to determine credibili by appellant his occupied jointly ty, weigh two justifiable evidence and draw large quantity eodefendants revealed a of of Fench, inferences fact. United States v. 325, 333, types drug U.S.App.D.C. different of related 152 1234, 1242, denied, 909, evi- basis of this paraphernalia. 964, On cert. 410 93 U.S. S.Ct. dence, three guilty (1973); found them of 35 L.Ed.2d 271 Curley v. United 389, States, counts of 81 U.S.App.D.C. LSD distribute, denied, of 21 with intent to violation cert. 331 67 U.S. S.Ct. 91 841(a) (1970), U.S.C. L.Ed. 1850 It is when there § hashish, in viola- upon in the form no evidence reasonable mind (1973), and not might fairly beyond tion of 33-402 guilt § D.C.Code conclude a reason guilty Appellant judge may of two other counts. able properly doubt years probation of five case jury. to a term take the from the United sentenced States * Sittingby 294(a). designation pursuant § 28 U.S.C.

684 Lumpkin, control of the same Fench, States v. supra;

v. United any person there, as who lived F.2d would be U.S.App.D.C. physical- no his rent and was applying paid standard share of the (1971). In circum ly question, (2) made between the time legal distinction v. evidence. Holland was known to him direct stantial and 121,139-40, States, because were in substantial United view, (1954); United States were located in the some closet 99 L.Ed. must, however, wearing, Fench, The court clothes he was and all readily when in areas it was accessible to him only the consider normally Powell v. United that he would rested. fre- the Government n.9, 418 States, quent subject and were thus to his control. (1969); These supported Austin v. United conclusions are fol- 473 n.9 F.2d lowing evidence introduced in the Govern- 129, 138 (1967). review the evidence ment’s in chief. Our in chief in the Government’s case adduced search, At the time of the about 1:00 a prima conclusion that facie leads us to the m., appellant p. and his codefendаnt Phoe against all made Davis on been apartment. Appel nix were in the found three counts. wearing only lant and Phoenix were their 62, 64). (Tr. undershorts Phoenix admitted A. the police apart that he “lived in” the possession of prove To ment and made other statements must show that the Government narcotics it inferred that three people could be position the was in a or had the defendant (Tr. 106-107). lived there Davis identified right dominion and control over to exercise himself to police apartment in the at Watkins, v. 171 drugs. United States (Tr. 181), the time of the search and was 158, 162, 519 F.2d 298 identified court as the Davis who was in Holland, v. (1975); 144 U.S. United States (Tr. at the time of the search 225, 227, (1971); App.D.C. 68). It was stipulated fact that Davis Bethea, 143 U.S.App.D.C. v. United States police] “indicated that his address [to ' addition, (1972). 68, 71, In Street,” was Third the address of the 33—402 under D.C.Code § (Tr. 468-469). pieces Three Watkins, knowing, United States v. must matter occupants mail for all three Weaver, 148 U.S. supra; States United Davis, Isaac, apartment, Phoenix and ad Here, F.2d 825 App.D.C. Street, dressed to them “1910 Third at showing appellant prima facie Apartment 3,” were also found on the to exercise domin knowingly position in a “mantle, shelf, living in the room” question ion and control over (Tr. where Davis was found Govt. Ex. in the proof that lived upon rests 11A).1 physically present that he was there, literally marijuana in the middle of all the Three baggies of were drug parapher .living and found on a contraband shelf in the room seized where found, nalia, he could observe was Davis was living what 27 in a closet of the Thus, bags in his room and anоther 18 elsewhere in all about him (Tr. 252, (1) 253).2 The total have concluded mari- hearsay grounds objectionable, ‍​‌​‌‌​​​‌‌‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​‌‌​​‌‌​‌​‌‌‍stipulation the admis- admission is contests on ren- Davis police ders both pieces harmless error. Cf. Dissent n.13. of mail and the sion of these recording his statement to one of the form accurately points 2. The out dissent Street, arresting that 1910 Third officers Grace, describing initial of Officer apartment, was address of the his address. several of the items locations of seized in effect, stipulation Tr. 468- view of the bedroom, was stricken the trial court as not reach either issue. If either we need at-, hearsay. Infra, parties Tr. 224. But 1,134,538.6 milligrams, or lived there juana weighed and the other facts herein be- (Tr. pounds 2.5 LSD stated, about fore could conclude that the dosages for 239 sufficient were tablets ample quantities that were refrigerator kitchen, in the found seized, and which charged were 31 pieces paper an additional each were counts of which guilty, Davis was found e., LSD, i. containing four doses 124 were known equally accessible at the 251, 252). (Tr. dosages Total dosages LSD Phoenix, time to both Davis and and that (Tr. of hashish —363. Smaller position both were in a to exercise dominion (Tr. 251), 252), phendimetrazine cocaine and and control over drugs.4 these (Tr. 252) were also found. phenmetrazine types commonly used for Three scales of B. weighing quantities found. Appellant’s intent to distribute the the coffee One scale was on table immedi- marijuana and LSD could be inferred from ately place next where Davis was large quantity the drugs, the fact arrested, and another on a shelf in the marijuana packaged as if for 64, 65, 66, 87,184, 269, 270, same room. sale, the paraphernalia and materials for 274). Marijuana dust and seeds covered the processing packaging contraband, carpet coffee table and saturated the under the marijuana debris which indicated (Tr. 65). Also found were a substantial substantial quantities bags number of boxes and suitable for had been handled in the (Tr. 64-65). A packaging drugs particularly in the See area scales. rough marijuana gin, grinding into a James, United States v. smoking tobacco, texture like was found 88, 112, denied, cert. 66,109,269, marijuana (Tr. seeds F.2d containing 337). pieces smoking appa- of Twenty-five S.Ct. L.Ed.2d 294 Williams v. United containing marijuana (1974); residue were ratus 55 U.S. (Tr. App.D.C. found 4 F.2d 432 There was expert testimony that 270 tablets of LSD apartment was found in the in the Davis were more than three persons would possess living very front room-bedroom in the mid- personal (Tr. 333), for their use and that (Tr. dle of all the and person 1,134,358.6 one possess would not 78, 86-87, 102-103, 181, 186, 64, 65, 66, 77, milligrams marijuana of for his own con 196-198, 248, 252-256, 267-268, 274), much (Tr. 347). Moreover, sumption a reasonable easily plain of it in view and accessible to juror solely could conclude on the basis of Phoenix, Davis, very and not him. That the total value of all the in appel quickly police presence to the disclosed they lant’s were possessed marijuana large amount of in the of to distribute. It was testified refrigerator3 in the closet and LSD the 239 tablets were worth joint apiece, $3 does not defeat Davis’ of (Tr. 331). or drugs. just happened po- pieces $717 It additional 31 such paper Mr. Phoenix where the narcotics of were worth about apiece, lice “asked or $12 (Tr. 330-31). (Tr. 64). physical 1,134,538.6 From their loca- were” Of the total $372 apartment, milligrams marijuana (Tr. 347), 900,260 the fact that both of tion which, submitted, subsequently stipulated questioned that all of the items it is satisfies the infra, description. introduced as evidence were fact seized See Thus, -, 685-686, apartment, although Tr. 249-255. testimony in there is no admissible the case necessary rely any It was not of, regarding precise g., statement locations e. the 18 of Davis that he was aware of bags marijuana of and a number of the smok- of instruments, because tangible were in view ing evidence itself (hashish, marijuana) places where he still in the case. ready (closet, refrigerator). had access This quibbles marijua- apparent 3. The dissent in n.18 that the from the Government’s case in “large by testimony did not constitute a chief na in the closet and was reinforced adduced quantity.” $200.00 It of had a value over from the defense witnesses. II. bags (Tr. THE JURY VERDICT in 48 milligrams packaged commonly sold for from 253) type $5 The Government’s case was greatly 329). Assuming an per bag (Tr. to $10 strengthened by the introduced $7.50, the bag pack- average per value by the through defendants and their cross- marijuana was worth aged $360.00. alone examination after the close of the Govern- e., i. testimony, packag- From all this ment’s case A in chief. review of the entire materials, the wide vari- processing ing and even record thus reveals more compelling confiscated in the drugs that were ety of supporting appellant’s conviction. LSD, hashish, co- apartment marijuana, — The testimony complete trial per- caine, phenmetrazine— phendimetrazine, mitted the even conclude more con- smoking appa- pieces the 25 clusively was acting in ratus, mind could conclude a reasonable codefendants, concert with his and that that, lessors of the apart- even if the three joint-control they had exclusive over the users, they possess ment were did not over The three defendants were old $1,449.00 variety drugs (Tr. of wide Cleveland, (Tr. 605, “friends” from Ohio 253, 329, 330-331) personal their use. 710, 711), together and were close age Likewise, Court, considering the evi- (Tr. 605). (Tr. Isaac and Davis were cousins light dence in the most favorable to the 579, 590, 711). acted jointly three could find that a Government’s case-in-chief renting the apartment, split the rent of fairly conclude might reasonable mind per (Tr. month “three ways” $115 $125 physical joint interest presence, Davis’ 602, 604, 710). Davis the other defend- large lease of the ants key each had a to the as did variety drugs (much quantity of a wide girlfriend, Miss Pat Seabury 601- other packaged) of it and the evidence de- 602), but she been away from the jointly possessed tailed above that Davis than for more three along pri- months these and that or to the search of the others intended to distribute and the ($360.00) ($1,089.00).5 (Tr. 717). arrest of appellant LSD keys 5. The dissent the nature of —the apart- misconceives jury may large quantity evidence from find intent variety which a ment—the requirement dispense. drugs Thеre is no packaged distribute or that the some of as if for —with government any particular prove processing packaging parapher- sale—the and possessor personally accused intended to dis- large packag- nalia and ing the evidence scale dispense. “pos- The tribute or offense is physical presence of Davis in the —and distribute, with intent to or hashish, session] drugs marijuana, midst of all the co- — 841(a) (emphasis dispense”. 21 caine, LSD, § U.S.C. add- may phencyclidine phenmetra- and ed). requisite Possession with intent drug operation zine—indicated an unlawful by person- be shown than an intent facts other magnitude finding sufficient fact, ally large where distribute. scale dispense any intent to distribute or —without uncovered, drug operations are the intent of showing any particular defendant would dispense those in plainly apparent distribute or personally dispense. himself or distribute large quantities, from plain inference from the facts is that those who packaging, or other attendant circumstances possessed drug did so with intent either to engage generally but it who others dispense personally distribute or or to cause it instance, actual sale. For distribution and if dispensed by to be distributed or others. 18 $20,000apiece people three marijuana invest 500 lbs. of U.S.C. 2. Who the actual § distributors or and have the the in a dispensers might impor- turn out to be is not they jointly key any warehouse rent and each has a tant —what is from the evidence is that thereto —on those alone—without facts possessed drugs thosе who was one of Davis —and proof going as to who to sell it—the was clearly intended that the those— ultimately can to distribute be found to exist drugs dispensed Also, would be or distributed. jury. every Under view of the dissent jury could, from all of this evidence the and wholesaler of narcotics could defend on the did, obviously Davis, physi- find that from his ground dispensed personally that he never distributed or apartment cal in the and his relation part- but functions to his left those contents, to it and its intended to exercise do- case, degree, ners. This in a lesser is similar. drugs. appeal minion and control over On joint leasing apartment From the venture finding must be credited the court. paying purpose each for a and rent limited also conclude that other than the purpose could of a mailing ad- apart control over personal had (Tr. 623). Davis dress” That he would continue to knowledge of and control over ment and pay his one-third of the rent for several that, testified drugs.6 Davis merely months for a “mailing address” was seized, apartment drugs time testimony that the jury could disbelieve and (Tr. 575) and mail “his residence” apparent it is that the jury did not credit (Tr. 575, 576). He ing legal address his testimony in this respect. The jury was parts to all having access admitted required not to. (Tr. 593) apartment, only the com small The testimony of all three defendants strewn with which were mon areas sought to minimize their presence at the but also the closets and paraphernalia, apartment and to assert that all of them refrigerator large quantities where were largely ignorаnt ownership7 (Tr. 619), and the drugs were found 592); contraband (Tr. “many throughout times” he “would the apart- bedroom (Tr. 587). apartment in the only (Tr. one” 648-50, 683, 688, 695, ment 705, 721). living clothes in the kept some of his Davis Phoenix, Even caught who was with Davis (Tr. 616-17) closet where room-bedroom apartment search, in the at the time of the (Tr. 87), marijuana were found bags of claimed he was not aware of other (Tr. in the bedroom closet other clothes than (Tr. those he police disclosed to the apartment gener in the Davis 593). While 648). The parties claim of the was that in the slept permanent bed bed ally they “suspected” (Tr. 649) that an incom- (Tr. 585) slept pull- while Isaac on a room pletely identified with person third a first 585-86, 702-04). (Tr. Davis down mattress Stewart, name of and an unknown “Arabic” only was there “occa testified that Issac type (Tr. 724), operated last name who “like 584). (Tr. This sionally” (Tr. 683), apparently shadow in the dark” that Davis’ lead the to conclude rela 648-651, drugs (Tr. 664-667, owned the tionship and its contents 682). The defendants testified that Stew- than that of Isaac. stronger clothing art worked Davis at a store claimed, however, Davis while he (Tr. 665) where the used on a “full time had lived (Tr. 650) “quite were seized a bit” August January 1972 to or late basis” testified that paid no rent. Phoenix (Tr. 603, 604), December 1973 at the been in the his arrest on March time of (Tr. seizure days prior two to the search and “occasionally” (Tr. 584) there and that 668) refrig- he had seen the LSD in the girlfriend’s times he was at his place other (Tr. days erator 4 before the seizure 584, 576). Davis, According to “not escape knowledge Isaac tried to one defendаnt used that any particular refrigerator by inside the drugs testifying (Tr. 584). all the apartment time” This ice” “nobody that used in alcoholic drinks testimony inquiry evoked the from other 723-724). (Tr. Phoenix did allow that the that, might defense counsel “Then it be fair drugs belonged “could have to Davis or say you using apartment that were 666) Isaac” and was clear that pur- Third for some other at 1910 Street “No, sir, jury reach the pose” (Tr. reply Davis’ was: same conclusion. displays proposition; jury the dissent its but the were free to find In several instances analysis by referring contrary of the offense on the evidence here. erroneous Evidence of Infra, “belong,” drugs such divestiture or lack of intent was not to whom at-n.9, App.D.C. at 695 n.9. when the court ruled at the close of the “possession,” jury own- The offense is based on not Government’s case in chief and the ership. compelled To assert that one can divest himself of to draw such inferences by drugs treating subsequent testimony. Also see n.ll infra. having belonging no to a roommate exercising dominion and control over intent of 7. See note 6 drugs may abstract have some force as an chief, evidence, dence in the jury Government’s case if on all Based believed, incriminatory Davis were to be he continued to defendants’ could disbelieve the rent pay that each defendant one-third of and conclude denials centered, knowledge illegal operation his of where this was attempting to hide use their common for several months after his drugs. may Juries admitted use of the “the through testimony purpose and draw was for sense to look (Tr. 623). surrounding mailing young circum of a address” But from all the inferences specific people ordinarily pay apart- with do not rent on may that conflict stances purpose. jury v. United ments for such a limited The Cf. Giacona statements. denied, (5th Cir.), joint cert. 358 could conclude that Davis had some monetary purpose 3 L.Ed.2d 104 with his codefendants U.S. found, jury agrees, the dissent that that he The wished to conceal and that support sufficient evidence to monetary purpose participate there was was to in sell- possession of ing conviction for which were appellant’s through- located testimony proves posses that apartment.8 hashish. The out the could also specified in purpose paying sion of the contraband the other conclude that Davis’ rent substantially counts is not different to live two there. proves

from the evidence the dissent admits The dissent would set aside the we possession of hashish and conclude convictions on counts one (posses and two jury’s finding that appellant pos distribute) with sion on the supported sessed LSD grounds that there was insufficient evi by evidence. appellant’s possession dence of large of the could likewise have con marijuana upon of LSD and based, from all the evidence that the cluded LSD which these counts are and that marijuana were possessed therefore there has showing been no supra to distribute them. n. and n. specific See had the intent to transfer drugs. infra. It was a reasonablе inference that The dissent would fashion a stan co-possessors who Davis was one dard that would limit in cases of participate joint intended to in the distribution of occupancy, specific absent evidence because, linking particular in addition to the evi- partic- defendant to the (183 U.S.App.D.C. testimony The dissent in Part D II and find that he had both a “mone- 700-701, infra) tary purpose” purpose pay- F.2d at contends that and a residential respect interpretation ing purposes sup- rent on the Such relationship port Davis’ both constructive and intent to jury finding he advanced supported distribute and such conclusions are (183 U.S.App. to distribute the intended other substantial evidence as well. at-, supra) F.2d at is incon- supra, D.C. As stated in the text interpretation sup- advanced to sistent with at-, jury’s 562 F.2d at verdict on port finding in constructive its charging sup- the counts intent to distribute is (183 possession of the ported by "all the evidence” and the assertion n.6, -, supra). In further- 562 F.2d at 684 “joint monetary purpose” that Davis had a argument fractures the ance of this the dissent probative of his intent to sell which he was grounds upon the comments relied and twists trying testimony any to conceal is not in respect mini- to Davis’ made with way jury finding inconsistent with the that he mizing into a claim his use trying was also to conceal his more extensive inconsistency. Not so. erroneous probative use of the which was also possession: on the issue of constructive response question by oth- to a Davis testified there, er words Davis “lived” as he said he for his co-defendants that he usеd the counsel did, and also that he purpose intended to distribute the at 1910 Third Street for no possessed. testimony purpose mailing contraband he For other of a address” “other than jury only stayed requisite could find the there on “extraordi- and otherwise (Tr. 623). respect nary accompanying With distribute see the text situation[s] obvious, e., erroneously point footnote. The we out the i. dissent as- jury ordinarily pay accept “young people rent sumes that must do Davis’ testi- mony. apartments purpose.” It on for such a limited need not. See Giacona v. United Hence, contend, States, jury reject such we given jury.9 tion seized, to the immedi- Criminal practically laws are ular to be strictly the accused at the construed in favor within reach of ate area unreason, accused, may point be a but not to the While this he was arrested. time may guilt beyond Proof of a the area reasonable doubt limit for is valid warrant, expresses required.10 an all that is Given the joint-par- a without searched ticipation the limits of between concept of and his unduly restrictive code- residence, leasing within one’s fendants in articles the sub- possession of instrue- expressed apparent in the stantial size and nature of the law is The correct may following jury important suggests have an that the rate instruction on an 9. The dissent definition of constructive issue in the case. misunderstood possession, There is no factual at n. 5. dissent part upon 10. dissent relies Whitebread following support instruc- this claim. The Stevens, & Constructive Possеssion in Narcot- possession given on issue of tion Not, ics Cases: To Have and Have 58 Va.L.Rev. (Tr. 684-85) during the trial the trial court both article, 751 ever, The authors of the how- (Tr. 798-99). It was not and at its conclusion premise. are in error in a fundamental appeal: objected to at trial or They state that circumstantial where posses- recognizes two kinds of The law upon, is relied “the state must overcome all pos- possession constructive actual sion: reasonable inferences of innocence.” Id. at knowingly person direct who has session. A proof 765. But this view of the burden of time, given thing, physical control over a at a rejected by Supreme cases such Court possession in actual of it. is then States, in Holland v. United who, pos- 139- although person not in actual A 127, 137-138, (1954): session, knowingly power 99 L.Ed. 150 has both the intention, time, given to exercise at a petitioners assail the refusal of the trial thing, di- dominion or control over a either judge to instruct that where the Govern person persons, rectly through or or another ment’s evidence is circumstantial it must be possession of it. is then in constructive every hypothe such as to exclude reasonable possession recognizes The law also guilt. sis other than that of There is some person may joint. If alone has be sole or one type for this of instruction in the thing, of a actual or constructive possession decisions, States, lower court Garst v. United persons If two or more is sole. Cir., 339, 343; 180 F. Anderson v. United or constructive of a share actual 487; Cir., 30 F.2d Stutz v. Unit 485 — joint. thing, possession is States, Cir., 1029, 1030; ed 47 F.2d Hanson vicinity Mere in the of a narcotic States, Cir., 914, 916, v. United knowledge physical drug mere of its loca- or jury prop the better rule is that where the is tion, either actual or does not constitute con- erly instructed on the standards for reasona possession. structive doubt, ble such an additional instruction on may requirement pos- find that the You confusing circumstantial evidence is and in you beyond find a session is satisfied if correct, Austin-Bagley United States v. doubt that the defendant had ac- reasonable Cir., denied, Corp., 2 cert. either alone tual or constructive 1002]; jointly 279 U.S. 863 S.Ct. [49 73 L.Ed. or with others. Becker, Cir., importance Recognizing to their delibera- United States v. its tions, given 1010; jury requested Wigmore, (3d ed.), and were a Evidence 25- §§ part typewritten copy of this of the court’s 810-814) change sug- (Tr. with a instructions respect Circumstantial evidence in this is particularize gested Davis’ counsel intrinsically no different from testimonial evi- vicinity [mjere presence a narcotic Admittedly, dence. circumstantial evidence physical drug, knowledge of its loca- or mere may point wholly in some a cases incor- not constitute either tion does equally rect result. Yet this is true of testi- possession. possession or actual instances, jury monial evidence. In both 811-812) (emphasis indicates added mat- weigh asked to the chances that the evidence ter). no basis to conclude or even There is thus correctly points guilt against possibili- jury thoroughly suggest fa- were not that the ty inaccuracy ambiguous inference. par- instructiоn in this miliar with the court’s both, experience must use its ticular, comport did not or that the instruction people weighing probabili- and events in with the case law. beyond If the ties. is convinced rea- justification record for the on this There is no doubt, require sonable we can no more. jury were assertion dissent (Emphasis added). The article’s misstatement they requested a written when “confused” proof of the burden of makes it unreliable for possess. copy on constructive of the instruction purposes, our and the dissent error request equally n. Dissent at 5. Such relying upon it. completely with a desire to be accu- consistent 690 drug paraphernalia, the processing their extensive

drug activities appellant’s packaging packaging. material and the To throughout rely contraband to solely quantity on is take a narrow presence surrounded physical jury was substances, view of the evidence from which the we conclude intent finding in might the law to distribute inferred. pres- within be The perfectly question.11 possessed pieces ence in the of 25 of smok- appellant ing is mute apparatus13 evidence from re- factors lead us to the same Many of jury which a could conclude that more indi- conclusion that ject the dissent’s smoking viduals than the defendants were to share his codefendants’ not shown and that drugs. The to distribute occupied apart- those who rented and joint conclude from the reasonably could possessed pieces ment and the 25 of smok- the lease of the defendants in participation ing apparatus part did so as of a tеstimony to and the apartment, operation. distribution presence when arrest- physical actual their times, they all har- at other ed and The upon decisions which the dissent intent.12 the same bored principally factually distinguisha- relies are each, ble from the case. there quanti- also contends that The dissent proof to the proximity narcotics but enough marijuana, while more than ty proprietary no substantial evidence of a in- use, might be within own person’s one for premises terest in the where the people. three Dissent ordinary use of found, e., i. the defendant lived in previously noted that n. 18. It was controlled the In Moore what would nor- v. exceeded quantity LSD United 50 persons three for S.Ct. mally possessed However, (1976) (per curiam), L.Ed.2d 25 there is more own use. their found, unconscious, apparently intent to distribute this case near evidence of According bags paraphernalia. to Davis of heroin and narcotics quantity alone. than 708, 721), 581) (Tr. they only only evidence of Moore’s (Tr. and Isaac control of the however, Phoenix marijuana “occasionally” was an out-of-court used not “consume all the he would statement of an informant was inad- testified 669) so the as to missible as evidence. The Court found the marijuana,” not conclusive. helpful trial court’s reliance on this the amount statement to be variety drugs, wide There is also the error and remanded for a determination drugs, high dollar value of whether exceptionally Similarly, was harmless.14 discussing split money dissent misses the mark 11. The receivеd for the sale. Also see (dissent drugs “belong” supra. n. It n. whom under that constitutes the offense statute, ownership. And while an indi- place 12. See n. 5 We no reliance on the may possessory right in have a certain paying apartment obviously vidual fact that on an anyone except superior state large part illegal traffic, drug contraband devoted in Walker, agents, People Cal.App.2d storing drugs, appel- or its even if limited (1939), property helping place 90 P.2d there is no lant was furnish a for the com- See, g., right property. United in contraband e. mission of crimes and hence could have been Sischo, (D.Wash. States v. 262 F. convicted as an aider and abettor under 18 Bryant, 1919); U.S.C. 2.§ State v. 250 So.2d State, (Fla.App.1971); Reese v. 140 Tex.Cr.R. (Crim.App.1940). (Tr. 253). 143 S.W.2d reasonably have concluded that else, “Stewart,” example while someone tipped police 14. An informant had drugs, superior right possession of the had a Moore others were in of heroin question also at the time in apartment,” the defendants at “Moore’s 429 U.S. at “possessed” to distribute as police them a search war- at 30. The obtained S.Ct. rant, charged indictment. In fact that seems entered the and found Moore drug lying living transaction in the face down a coffee be the most usual near table gets sitting and he owns the room. A woman was on a couch in the District. A dealer Bags top pushers and then same room. of heroin found to sell the some Watkins, supra, United States v. cupied place”. at appellant’s control of the evidence of 703, quoted in dissent at n. 20. 445 F.2d at utility receipts for two apartment, rent and But Holland was a case where no proprie- In Unit- months, hearsay. was excluded tary premises shown, interest in the was Bethea, supra, ed v. States the controlled where the arrest of the defendant resulted concealed under substance was found being from his apartment found in an that The appellant of an automobile. back seat was not shown point to be his own. To out riding passenger’s in the front seat and that Holland’s apartment in the car. proprietary no interest he had that case was not shown to have been with Holland, supra, there In United States sufficient “regularity” justify a finding than that was other proof was no that he constructively possessed the articles girlfriend’s apart in a overnight visitor an apartment where he was found does opinion The states that it was “the ment. not mean equivalent that of regular woman,” U.S.App. e., i. occupancy, the ability to exercise do- not the at 445 F.2d at defend D.C. minion and control over the contents of the Holland. The dissent seems oblivious to ant cannot be subsumed from other The dis this material factual difference. facts. That is the case here where a proven contends, when it on the sent is also in error interest, proprietary actual physical pres- in the Holland opin language basis of some ence of the defendant in an alert mental case, ion, presumably every in this condition, coupled with an admission Da- case, and control is nar proof of dominion vis he “livеd” in the rowly showing restricted to evidence it, with which oc- a “regularity key clearly was sufficient evi- defendant] [the along spoke were seized beneath ‍​‌​‌‌​​​‌‌‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​‌‌​​‌‌​‌​‌‌‍the coffee table he to an individual who identified him- paraphernalia. Joseph with various narcotics How- self as Davis. That this individual ever, police ownership found no indicia of stated that his residence was apartment. Apartment No. 3 . Thus, where he was arrested where- finding guilty In Moore competent inas Moore there was no (21 841(a)(1)) to distribute U.S.C. § residence, of Moore’s the fact finder in “expressly hearsay trial court relied on competent case could find on the basis of testi- 429 U.S. at declaration of the informant”. mony apartment. (emphasis opinion). lived in the at 30 Moreover, Supreme Davis was awake and in Court found this to constitute error deprived opportunity of his because it faculties when he was Moore of the arrested. He see to cross-examine the informant as to the factu- what was all about him in view believing apparently ability al basis for that Moore was a “tenant and he had the of a normal there,” regular resident and otherwise to sober individual to control what was about him testimony. attack the in his own “lying Moore was face Speaking probative down,” apparently effect of Moore’s sleeping or under the influ- heroin, proximity to the the Court stated: something. ence of proximity Whether or not the evidence of addition, against Davis, the case unlike alone, light when viewed in the most favor- against Moore, solely does not rest on a prosecution, able to the could suffice to large quantity single drug. Instead, aof there prove beyond reasonable that Moore doubt very quantity was a substantial of two heroin, was in the fact is variety drugs. and a wide of other contraband guilty that the trial court did not find Moore quantity A substantial of one of the on that evidence alone. sale, packaged as if for and the (emphasis 97 S.Ct. at 30 U.S. throughout scattered included added). From these facts the dissent asserts processing marijuana pack- articles used in us, general message that “Moore’s more [for is] aging it for sale. inferring posses- that we should be cautious “general message” The real from Moore is sion from the fact that one is found near substantially in a weaker case than the . .” Dissent n. 16. one, present Supreme Court did not find has limited relevance to this case be- Moore proximity alone to be an insufficient basis for a cause of the material difference in critical facts. finding possession. stronger The much facts here, evidence, stipulated It was and hence fully justify an inference of testify policemen that one of the would possession. after the execution of the search warrant at the apartment in a that the scales bags possessed to conclude and the were dence for and control position culinary purposes. to exercise dominion contraband over the fully justi therefore ready access at the time in to which he had rеaching fied in the only realistic conclusion question.15 that such justified, e., i. that the almost of the dissent is unbe- naivete plastic scales and the bags were further “appar- it lievable where characterizes evidence of intent weigh, package and ordinary objects kitchen such ently innocent marijuana. sell Any juror reasonable (dissent bags and food scales” plastic as would conclude that if one intended mari added). 17) (emphasis difficulty n. juana for his own use he would not go to viewing has in so a reasonable mind such pains such extreme package it articles here is three kitchen scales quantities uniform in which it is often sold hardly be found in 1% of the homes of Thus, on the streets.16 such packaging may even if one the United States. And home be taken to indicate an intent to sell. had three kitchen scales it is submitted that The facts of the above cited cases differ would rare to find two of them in the be in almost all respects material from the living room at the same time. And it would facts of this case holdings and their are any person be even more rare to find who applicable thus not here. that when two “kitch- truly would believe The dissent also relies upon United States living were found in a room with en” scales Bonham, (3d 477 F.2d 1137 1973) (en Cir. marijuana marijuana litter all seeds banc). In that case two half brothers were large around on the floor and additional convicted at trial possessing of heroin found marijuana quantities packaged and hash- hidden in a recess behind the door frame of ish, were not intended to bе and the scales room they shared. The marijuana Third Circuit weigh had not been used to reversed on ground appellant prior packaging. This conclusion be- had not absolute, been shown to and the intent to use the constructive comes possession of the heroin. plastic bags illegal pur- “kitchen” for the Bonham is distin- guishable since the conviction pose packaging contraband is irre- there rested only upon possession futably proven by of the heroin and there proof was no plastic bags “innocent” were actu- that the question dissent’s ally package baggies used to other contraband $10 substances or $5 narcotics marijuana quantities in uniform which were in view sufficiently to only weighing produce. scales could In the indicate knew about the con- strong of such evidence to the contrary face traband and hence could be found to be in highly suggest it is unreasonable to even possession of the drug.17 hidden In connec- inapplicable 15. Also see n. 5 this case and makes it here. The Third Circuit also stated in dicta that 16. Tr. 329-330. prosecution proved even if the that these marijuana phenaphen, articles were 17. The court noted: suspected, appellant’s the officer said he upon person presence No other heroin was found awareness of their would be no knowledge of either defendant or elsewhere in the room. evidence of that heroin was con- suspicious One of the officers testified that cealed elsewhere. heroin, 1139, quоted articles other than which he called 477 F.2d at in dissent at n. 16. “suspected marijuana” “suspected phe- This dictum not inconsistent with naphen plain tablets” were observed in view Davis’ conviction for proof distribute, on a No though table. was introduced that even much of suspect- closets, these articles ed, what the officer was found in the since a they subject prosecu- quantity drug, together are not a of this substantial of the same equipment it, processing tion. and materials for suspected plain 477 F.2d at 1138. The fact that the was found in view in Davis’ Appellant’s which were in view were not a of the hid- subject prosecution drug in Bonham is one addi- den of that could thus be in- distinguishes ferred, necessary rely tional element that case from but it is not here to offense, As attempts by if for the federal facts are the dissent to with the tion knowledge which present introduce factual considerations into the be conclud- contraband can judgment record, are outside the “knowingly” pos- one ed, finding that we see no need to discuss them-—nor do we impossible to would be sessed any see point need to out the obvious tor- present facts were not support. Such charged tured view of the offenses in this here. they are Bonham case to which are addressed. See Part that, accurately points out The dissent III of dissent. The fact that other evidence circuit, proof of a law in our case under might not incriminate Davis does not an- regular occupancy in or interest proprietary swer fact that the evidence here does is not sufficient alone premises support jury’s coming the verdict. to dissent at n.7. possession, prove constructive pointed this conclusion it should also be out jury in the made clear to This was that the principal defect in the dissent is its given them on this instruction typewritten complete recognize almost basic failure to concluded, issue, jury n.9 As probative effect of circumstantial evi- considerably more than here reveal facts dence and the reasonable inferences that joint par- interest. just proprietary a jury may draw therefrom19 and its and his between ticipation recognize similar failure to the limited au- leasing occupancy codefendants presence in appellant’s apartment, thority appellate of the courts to overturn fac- time the were apartment at the by juries tual determinations based on sub- seized, large-scale nature of the the obvious stantial evidence. variety of activities of a wide processing We thus properly find that the court de- drug of used drugs, various judgment acquit- nied Davis’ motion for apartment, consuming equipment government’s tal after the close of the unreasonableness of the and the obvious chief, and that the evidence obtained continuing pay gave he explanation when the defendants took the stand in- with the other evi- rent on in support jury’s creased evidence to, referred could reason- previously dence jury verdict. ably have convinced the marijuana and LSD

jointly possessed judgments We affirm the of con charged he was and that with which it.18 viction on all three counts.20 intended to distribute conclude, did, jury they logic appellant’s clothes in the closet reasonable for the as this paraphernalia found and his access to where the was intended to serve pur- illegal purpose. would be sufficient for that such closets an The dissent refuses to rec- pose. ognize finding this dictum in Bon- To the extent it is one of the most ham, elementary appellate procedure rationale if we choose or the alternative rules of that on such, appellant’s appeal is inconsistent with to call it the facts are to be construed most possession strongly of LSD with intent to jury’s conviction for distribute, in favor of the verdict. That to follow it. The evi- disposes we decline argu- rule of the dissent’s “innocent” joint possession and the defendants’ dence of disposes ment. It also of the dissent’s claim and the intent to distribute both appellant’s presence might have been in- sufficiently LSD found in the jury question nocent. That too was a and there support strong of this case to on the facts jury was sufficient evidence for the to return appellant’s conviction on both of these counts. guilty the verdict of that it did. seeks to offer innocent In n.17 the dissent approach It is this erroneous to the eviden- drug “paraphernalia.” excuses for the tiary record that is the basis for the assertion in- could have been used for an by jury’s but, the dissent that the affirmance illegal purpоse what the dis- nocent or an “shaky verdict is based on a conclusion.” overlooks, is that it was for sent at-, infra. what use was intend- on all the evidence decide all the around and all ed. And with prove littering scraps “innocent 20. The Government set out to the loca- the floor and the [?] (dis- very plastic bags” ordinary each of the in a tion of kitchen . doing large quan- precise n.17) being package so manner but was hindered used to sent at by Example: perfectly the trial court. it was tities of contraband ment; BAZELON, Judge, dissenting in there is no Chief evidence that appel- lant concurring part: one. part, University students were Three Howard I and convicted tried Possession with intent to distribute re- to distribute nar- quires proof (1) of three elements: in an shared.1 cotics found possessed contraband, (2) defendant that he appeal, challenges one of them On this knowingly did so and intentionally, (3) support sufficiency of that he the specific harbored Unfortunately, majority’s conviction. transfer it to another. The ele- begin ends where it should analysis —with course, may, ment be satisfied “con- indicating the evidence recital of possession.” structive Although lacking di- (but necessarily all) least one control, physical rect if someone “knowing- occupants three was sell- ly has both the power and the intention ing drugs. . control,” to exercise dominion and brush, the Painting majority with a broad possession.3 he is in constructive conclusively that there demonstrates possession requires Constructive that a guilt guilt by in the air. But association get defendant know how to at the cannot a conviction. There must be narcotics (either directly through permits agent). a an reasoned infer- knowledge, Without such particular necessary ence that a individual was en- “power” to gaged charged activity.2 The record exercise dominion and control is However, evidentiary lacking. no such nexus with this presence reveals “mere regarding charges vicinity of posses- drug, of a narcotic or mere knowl- Granted, edge physical sion to distribute. of its location” is not suffi- plenty there is of evidence from which a cient as a matter of law to establish con- jury might infer that someone intended to possession.4 structive though Even some- drugs apart- found in the distribute one the “power” has to exercise dominion you case, THE I think all need to show COURT: 1. At the close of the Government’s judge is that these were in the . trial dismissed four counts of the indict- go through to charging possession But all this minute ment with intent to distrib- you your phencyclidine hashish, detail does not assist case at all. simple posses- ute (Tr. 84) marijuana, receipt proper- sion of of stolen item, ty. MR. HANNY: This will be the last convicted and his two Your Honor. possession co-defendants of with intent to dis- hope. (Tr. 344) THE I L.S.D., COURT: possession tribute with intent to distrib- Fortunately for the Government it was able to marijuana, simple possession ute of hash- enough specificity introduce as to the location jury acquitted possession ish. The them of of drugs jury’s of some of the to phenmetrazine and cocaine. verdict but its case could have been immeasur- ably strengthened, questions appeal and the Coombs, U.S.App.D.C. 2. United States v. 150 substantially reduced, permitted had it been (1972); 464 F.2d 842 United States v. introduce evidence of what the court termed Lumpkin, 448 F.2d 1085 accessibility “minute detail.” The intent and of (1971); States, Crawford v. United 126 U.S. traditionally parties proved in these cases is App.D.C. (1967); Curley 375 F.2d 332 by a collection of minute details and the United offering Government should not be hindered in denied, cert. proof. guilt may apparent such While be L.Ed. judge trial he does not return the verdict jurors forget and he should not perceptive are not as 4.32, Jury Instruction Criminal Instructions judges as and that the Government’s Columbia, ed., (2d 1972). for the District of beyond proving a burden of its case reasonable Palmer, U.S.App. See also United States v. very gives doubt ais substantial burden which (1972) (per curiam). D.C. 467 F.2d 371 right, it a interfere, with which the court should not competent to introduce all the direct added). (Emphasis Id. probative and circumstantial evidence that is of guilt exclusionary or innocence. There is no rule for minute evidence. jointly, several of them or all object, he is not of them. over an and control solely he also has Based on the fact that unless are on possession constructive premises, jury may a so. If one is aware conclude be- “intention” do (and keeps yond narcotics reasonable doubt that are in his roommate where possession any particu- to exercise do- the constructive may power have therefore guilty of lar defendant. control), he is not minion he treats long so as possession The vast majority of courts therefore to the roommate belonging as “where the hold that defendant is in nonex- exercising dominion no intention and has possession premises clusive on which illic- and control.5 found, it are it cannot be inferred particular presence have that he knew of the principles settled of such These them, are found on and had control of unless there application where narcotics are only incriminating one occupied jointly. Where other statements or circum- premises area, tending stances inhabits an it is reasonable to buttress such an infer- person anything the first instance that ence.”7 If the Government infer in unable to infer- belongs pinpoint responsible to him.6 That which co-tenant found there for among joint drugs, inhabitants. ence is unavailable cannot sustain them, apartment occupied charge against any in an Drugs found even though in the constructive least one is persons may certainly almost several occupants, one of the But the alternative is guilty. conviction of always Stevens, supra cases almost 6. See Whitebread & note 5. Constructive regard- require juries Wigmore, inferences to draw subtle Va.L.Rev. at 763-64. See also 9 Evi- dence, power course, ing (3d and the intention to exercise “the ed. § Of con- indirectly circum- and control” dominion structive as defined above is not concepts entirely congruent Since the involved “ownership.” stantial evidence. A con- metaphysical, easily vertеr, misunder- example, pos- are almost can be in constructive stood, judges especially vigilant session, should be roommate who knows adequate sup- that there is evidence to insure port where are hidden and intends to ‍​‌​‌‌​​​‌‌‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​‌‌​​‌‌​‌​‌‌‍steal generally, jury See Whitebread verdict. them. Stevens, Possession in Narcot- & Constructive Cases, 751, 759-762, 58 765-66 ics Va.L.Rev. Annotation, of Conviction Possession of Illicit (1972). Drugs Found in Premises of which Defendant jury danger Possession, that the has misunderstood The was in Nonexclusive 56 A.L.R. 3d great required especially 948, to convict is (1974). what 957 Accord United States v. Bon here, by where the was so confused ham, 1137, (3rd 1973) (en 477 F.2d 1139 Cir. that it re- definition of banc); States, 121, Evans v. United portion quested copy this a written (9th Cir.), denied, 866, 128 cert. 79 Tr. 810. instructions. 98, (1958). S.Ct. 3 L.Ed.2d 99 majority’s opinion of this The criticism Nothing my opinion in in United States v. grounds part upon “relies in White- that it Holland, 225, 144 445 F.2d 701 Stevens,” n.10, supra, Majority op. bread & (1971), abrogate widely was intended to this misplaced. by It is no means clear that recognized principle. Holland was a case in- Whitebread & Stevens misstate the burden of volving over-night by op- an visit members of majority suggests. proof, The full text as the posite sexes. We held before a “Fourth, jury’s willing- of their comment is possession, make an inference of constructive instructions, ness, despite to infer curative it it must at a minimum have before “informa- knowledge slight circumstantial evidence regularity person tion about the with which the persuasion to the defend- shifts the burden of question occupied place and about his regardless of the theoretical formulation ant special relationship with the owner or rеnter.” all reasonable the state must overcome clearly At 445 F.2d at 703. But Holland innocence,” 58 Va.L.Rev. at 765 inferences of adopt proof regu- did not the converse: that majority [emphasis portion quoted in indicates occupancy lar is sufficient to establish con- it, opinion]. is a reference to a As I read (The possession. majority agrees. structive page preceding cited in the note on the op.,-,-of Majority U.S.App.D.C., 183 apparently does and decided a state which F.2d) 693 of 562 Nor could it have done “negate adhere to the all other reasonable still light of the definition of constructive so possession n.31, id, formulation. See at 764 inferences” above. discussed Valot, People quoting from the dissent in v. 33 Mich.App. 189 N.W.2d 873 696 drugs). guilty something may plain with the Or the be sight

the innocent — to our always been abhorrent proximity has such close to a defendant that ten “It is better es- legal traditions: is reasonable to infer that person that one innocent suf- cape than Davis, under v. his control. United States where narcotics offenses or fer.”8 Even (3rd 1972) 461 (heroin F.2d 1036 Cir. public arousing great outrage other crimes being for packaged sale at kitchen table involved, condemning the innocent is an are while stood a feet away defendant few letting none price for intolerable dishes).10 washing guilty escape.

Moreover, the burden Government’s II not an drugs to an individual is unrea link foregoing facts do meet the legal variety sonably heavy one. A of evidentia requirements. The evidence disclоsed small ry details will sustain an inference that a smoking appa- particular power defendant had both may ratus in view—which be consist- and the intention to exercise dominion and ent with recent use. It be may assumed narcotics, as the cases cited control over that these amounts drug small would may It the Government illustrate. have supported conviction for mere pos- found shown that narcotics were in a However, session. the Government’s case place special over which defendant anything was devoid indicating knowl- control, containing as a such closet his edge and an intention to exercise dominion States, v. 489 clothing. Walker United F.2d control individual over the sepa- that a (8th particu 715 Cir. Or large rate quantities of drugs found else- special had in lar defendant control where in the on which the two preparing for counts of to distrib- James, sale United or use. States ute are based. 88, 111-112, 1030-31, cert. denied sub nom. Jackson v. A. States, United U.S. S.Ct. At approximately one o’clock the after- (1974) (paraphernalia in a L.Ed.2d noon of March dresser); Officers the Met- Petley locked box in defendant’s ropolitan (9th Department Police armed

v. United with a search 1970) warrant broke down the (pipe containing Cir. resi door to bag).9 due found in defendant’s duffel three Street 3rd N.E. may They actions or statements discovered the and a defendant’s indi co-de- fendant, guilt. Phoenix, cate a United standing consciousness States Purnell Childs, (4th 1972) (false v. F.2d 390 Cir. living 463 room in clad their undershorts. A to given pick up containing co-defendаnt, Isaac, name trunk third John the appel- Blackstone, tainly “plain supports 8. on the Commentaries Laws of view” an inference of iv, England, 27. knowledge, probative it but is also of an inten- tion to exercise dominion and control? The presence 9. of in Mere common premise be that must one who is aware of the by occupied persons ambig- areas several is as presence of narcotics would not remain in the presence uous of as the themselves —ei- vicinity unless he was a coventurer. That in- might belong only ther to some inhabitants. may past ference drug have been valid in the when hidden, especially This is so when the are Today, percent abuse was 53 uncommon. may completely so that other inhabitants young people of between 18 and 25 admit hav- presence, “para- their unaware of or when the ing marijuana, Drug used National Institute on although visible, phernalia”, consists of ordi- Abuse, Psycho-Ac- Experience The Public bags nary objects plastic such as or kitchen Study Among tive A Substances: Nationwide appearance are scales which innocent in (Oct. 1975). Adults and is time Youth It to ask prepare used for “could” be to sale. passive drug usage whether toleration of has “plain rely on view” to Those cases prevalent strip become so as to this inference intended to show that several individuals exer- probative of all value. joint assump- rest on cise dominion control ripe are tions which for reexamination. Cer-

697 cousin, apart- was not in the the present lant’s L.S.D. would have been to any- obvious using one the refrigerator.12 time it was raided but ment at the arrested later. living Scattered around the in plain room view were small quantities marijuana. of the The officers asked where narcotics ashtray an on the coffee table was a were, (not appellant) Phoenix the led butt, marijuana cigarette and a “roach closet, living room where twen- them clip,” metal device for holding burning baggies containing marijuana ty-seven marijuana cigarette smoking while it. A hidden, refrigerator were and to the where quantity marijuana small lying on containing a of 270 tablets of bags two total table; rug the coffee the under hidden. There was no testimo- L.S.D. were found contain seeds and resi- Government’s ease that ny the piece On due. the mantel living anything indicating did he was said or bags room were several marijuana, small of these presence or drugs, aware of hashish,13 two small tinfoils of several let- possessions other any clothing of his including ters one addressed to appellant,14 Nor living room closet.11 found and a scale which postal “could” be used to testimony weigh was there narcotics as well as mail. A kitchen Appellant past. took the in his own stand defense Tr. on cross-examination that a few admitted open. 595. The was left hashish out in the possessions living clos close, of his were in room Although it I believe that However, deciding whether et. Tr. 616-17. enough permit appel- to infer that judgment acquittal motion lant knew about the hashish and intended tо have close of the Government’s should by exercise dominion and control over it use. granted, ad been we do not consider evidence Holland, requirements supra note States, See Powell v. United duced later. U.S.App.D.C. by given appellant’s having were satisfied n.9, arresting as his address to the offi- States, (1969); U.S. n.9 Austin v. United appellant challenges cers. While the admission App.D.C. address, showing of the Police 163 Form I considered, is insuffi- Even if say judge cannot the district observed —who possessions in cient. All three inhabitants had the demeanor of the witness —abused his dis- closet, although Tr. most were Phoenix’s. admitting cretion the form based Thus, appel- was not 616-17. closet under regard- “refreshed recollection” of Officer Hill special control so to warrant an infer- lant’s ing appellant, his conversation with the Tr. anything found there was ence that under 423-437, though even Hill remained unable to and control. Walker v. dominion Cf. United identify him. States, descrip- supra, 489 F.2d 714. Absent belonging tion of items found appellant’s 14. The letter was admitted over there, even it cannot be inferred he used hearsay timely objection prove he resid- storage, frequently, area rather than for so agree ed at I that the letter was narcotics, in- knew of the much less that he implied inadmissible as an statement tended to exercise control over them. sender, court, a declarant not Appellant never admitted was aware appellant received his mail at the address list- refrigerator. hidden in the closet and Davis, (6 ed. See United v. States 506 F.2d 587 cоntrary, appellant testified On he did 1974); Jackson, Cir. United States girl- live in the friend, at all but with his (9th Cir. supra Holland v. note cf. United problem “well-recog- is the ‍​‌​‌‌​​​‌‌‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​‌‌​​‌‌​‌​‌‌‍Nor cured using drop as a mail presumptions relating regu- nized larity . . occasionally sleeping there. brief, Appellee’s of the mail.” n.6. contrary, pre- legitimate 12. On the a number of presumption only applies if it is first shown the scription belonging to also tablets Isaac were correctly letter was addressed. 29 Am.Jur.2d seized. § Evidence 196 at 249-50. See also Kiker v. Commissioner, (4th 1955); there to Cir. 13. I believe was sufficient evidence Aetna, (6th permit appellant in the to infer that was Flowers v. 163 F.2d 411 Cir. possession However, beyond constructive of the hashish in viola- I am satisfied a reasonable (1973), and § tion of 33 D.C.Code 402 join therefore doubt the admission of the letter was majority affirming that count of harmless error. The letter was cumulative Appellant found in indictment. was his under- appellant’s with the Police 163 Form and own proximity wear in close to hashish. Smok- testimony “legal was his ing pipes paraphernalia other for use mailing Tr. address.” present. Appellant having admitted smoked ous throughout apartment. Moreover, “Tri- by to the brandname (referred scale the kitchen ta- seized from ner”) appellant also testified that he had smoked mar- ijuana ble. on several occa- 580-81, sions. Tr. disclosed single bedroom A search marijuana of quantities small several other But the prose- Government chose also to view, plain grinder containing lying out cute possession all three roommates seeds, smoking of a number marijuana the additional to distribute bags eighteen additional of mari- pipes and large quantities marijuana of bagged hid- closet. How- bedroom juana hidden den in the closet and the hidden L.S.D. testimony the items ever, regarding the refrigerator.15 There cannot be much later bedroom was stricken as found in the question that Phoenix knew about these not hearsay, properly Tr. and could led officers to them. But —he jury in by considered reach- have been there indicating is no evidence stipulat- While it was later ing its verdict. appellant knew they even were there. And these items were found somewhere ed that did, assuming he what evidence is there n.2, Majority op., there appellant indicating intended to exer- indicating they competent evidence was no cise dominion and control them? over place were in a visible to my knowledge, To no federal court presence. has aware of their that he was ever before held that can someone' be con- B. victed of of hidden in an he shares with oth- been content If the Government had people linking er absent evidence him to the with charge appellant simple of drugs. In a the majority there little doubt marijuana, would be “decline[s] follow,” Majority op. n.17, the en banc quanti- the evidence sufficient. Small unanimously Third Circuit enough suggest per- directly ties held — but not the contrary.16 sonal use distribution —were obvi- suspended occupants particular court 15. See note The trial room’s or a one of them placed years cache, on five sentence even knew less must exercised subject Act, probation to the Youth Corrections control over hidden contraband. 5010(a), on all three counts concur- § 18 U.S.C. presence 477 F.2d at 1139. Nor would the rently. agree I Since conviction of plain small view warrant simple possession of hashish should be af- possession regarding an inference of firmed, supra 13, appellant’s see note sentence which were hidden: might be affected the two We have not overlooked the to distribute counts. In such cir- searching suspicious one of the officers that practice our cumstances when troublesome plain articles other than heroin were found in problems judgment are is to vacate view on a table in the bedroom. But even if on the Hooper, counts. See United States v. additional prosecution proved these arti- 432 F.2d 604 phenaphen, cles were as the though Even no reduction sentence suspected, appellant’s officer said aware- follows, stigma arising additional from con- ness of their no would be possession with intent to distribute victions of knowledge that heroin was concealed else- certainly substantial. where. (This passage Id. Bonham, stands as an (3rd alternative ra- States v. 477 F.2d 1137 16. United dictum, holding Bonham, tionale (en banc). for the and is not 1973) two Cir. brothers asserts, majority supra n.17.) shared a bedroom. Both men were in the room See also Moore v. United officers Heroin U.S. when the entered. was discov- doorway. (1976) (per curiam). in a 50 L.Ed.2d 25 еred hidden recess above An “suspected marijua- posses- officer also testified that had been defendant convicted of “suspected phenaphen na” and tablets” were in sion with intent to distribute heroin. The evi- view a table. The Third police Circuit re- dence that when showed entered the informant, versed: identified an nothing except joint proximity found Moore and woman in close Here there pancy occu- upon bags of the room an inference heroin narcotics possession lying could A fact on under a be based. finder coffee table. The Su- only speculate preme both whether Court vacated the conviction because

699 for the notion that mere presence at C. large-scale site of a narcotics operation is possession, Assuming possession to convict for sufficient with in- fail for lack would still Government’s this tent to finding majority’s ap- a that distribute.17 support for drugs. to transfer specific proach possible confuses toleration with ac- on “the obvious nature majority relies participation. tive activities” large-scale processing sure, scales, bags To be and other Majority op.,-of 183 also tend to indicate an in- if Even F.2d. 562 693 of U.S.App.D.C., tent to (as use). distribute opposed But question of true, utterly begs whose intent to distribute? The fact part op- was whether packaged someone had eration, guilty poor of a simply or was sale18 evidently There is no choice of roommates. intended to distribute denied, ring), 980, 298, judge hear- сert. 414 U.S. had relied on inadmissible 94 S.Ct. the trial say (1973); Davis, find that Moore was a tenant of evidence to apartment 38 L.Ed.2d 224 United States v. 1026, of the seizure. The (3rd at the time 1036 Cir. On the to the Fifth Circuit also remanded contrary, Court of narcotics on which harmless, i.e., error was whether the determine with intent to distribute counts proximity the evidence of “whether or refrig are based were hidden the closet and alone, light most favorable when viewed (The majority repeatedly glosses erator. over prove prosecution, be- could suffice to to the yond fact, treating they all the as if that Moore was in a reasonable doubt See, equally e.g., majority op., view. 22, the heroin”. At 97 S.Ct. at - -,---:-, U.S.App.D.C., of 183 that the answer to this The Court stated 688, 689-690, F.2d.) The 692 of 562 so- clear,” stressing question “was far from “paraphernalia” apparently called consisted of pos- only competent Moore’s “the evidence of ordinary objects plas innocent kitchen such as proximity was his of the narcotics session bags physical tic and food scales. While their person apartment in another them in an presence “obvious,” illegal was their use for an present and of which he was not was also purpose was not. I do not contend regular or even a resi- to be the tenant shown packaging marijuana, were not in fact used for Id. dent”. only presumed that Davis cannot be neces case, present could have sarily to have known of their illicit use or to apart- was a tenant of the found that Davis have so used them himself. supra. Yet Moore’s more ment. See note 13 general making The District once had a statute it a message we should be cautious —that present crime to be in an establishment where inferring possession from the fact that one is knowledge narcotics are sold with there- relevant. found near —remains gives good of unless account of his “[one] upheld courts have the infer 17. On occasion presence”. 1515(a) (1973). 22 That D.C.Code participation at an from mere ence of Holly statute was declared unconstitutional Gainey, illegal operation. 380 United States v. States, U.S.App.D.C. v. United 464 (1965) 85 S.Ct. 13 L.Ed.2d U.S. (1972). However, unlikely F.2d 796 it is (moonshine still); v. United Beard Congress would have felt the need for such a denied, cert. if, place majority statute in the first as the (1936) 56 S.Ct. 80 L.Ed. 1382 U.S. believes, apparently someone at a However, parlor). (gambling those cases rest already “large operation” activity scale narcotics illegal that the active on the fact operation guilty presence. of the more serious offense of defendant’s Since usually illegal carried out with intent to distribute. activities are such clandestinely, Gainey, United States v. see majority rely appears 18. The also fact 67-8, 754, anyone allowed to U.S. at baggies hidden in the probably trusted confederate them is witness living-room large quantity. closet were a Ma- Moreover, court, Gainey or customer. - -, jority op., U.S.App.D.C., of 183 statutory presumption upholding while However, of 562 F.2d. witness attack, ques pointedly against process due government whо testified for the ing will- pres from mere the inference tioned whether say person that it was more than one support a convic be sufficient to ence would use, than would have for his own not more 68, 85 S.Ct. 754. tion. 380 U.S. at slip might. was no three Tr. 347. This here that the defend- There was no evidence before, Immediately expert tongue. testi- openly present while narcotics were ant was quantity phencyclidine was more fied the being packaged States v. for sale. Cf. United might person have for his own use. than one Moore, up by prosecution Tr. 346. When the followed J., (en banc) (MacKinnon, concur- apartment that this was used the solely not as a maildrop; it does indicate he to do so. slept kept a also there and some part conspiracy of his posses- sions living there while he was with his

D. girlfriend.19 There is no basis doubting for that Davis would continue for several conclusion, shaky the prop up To ma its pay months to a $41 to month for $38 this Davis’ intent to sell jority argues that the convenience, unless one to assume the by the fact that “he drugs is also shown very proposition payments that his rent are pay one-third rent of continued to prove (i.e., claimed to they that had no illegal operation apartment, the where Moreover, innocent purpose). even if one centered, several months after his was for accepted majority’s the characterization of the was for only admitted use agreed the a young person facts and that mailing address’ purpose ‘the of a unlikely pay to for mailing this sum ad- 623).” Majority op.,-of U.S.App. dress and must have some “other purpose” D.C., Opining 688 of 562 F.2d. that rent, for paying majority’s the view of what not people ordinarily pay rent “[yjoung do purpose other be is might purely specu- such a purpose”, limited apartments lative. the majority argues jury have Davis wished to concluded Second, majority contradicts itself. joint monetary purpose” conceal he “some denying In the that Davis used the apart- rent, i.e., “to paying participate had for enough justify ment to his share of the selling Id. drugs”. rent, majority forget seems to its own earlier reasons, contrary. statement to the theory To es- For obvious was not tablish possession, judge majority at trial or to the argued jury to the states the judgment jury could have found acquittal, on the motion for that Davis apartment;20 ‍​‌​‌‌​​​‌‌‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‌​​​‌‌‌‌​‌‌​​‌‌​‌​‌‌‍lived to was not relied on Government on establish in- distribute, tent appeal, among majority and was not several the- states the suggested the bench could have during ories oral found he did not live argument. First, majority there misstates and therefore must have continued to did not testify pay the facts. Davis that he rent for purpose.” “some other light 29, asking might people quantity if three have that 50 L.Ed.2d which indicate that an occa- use, expert for their own admitted presumed sional visitor is not to be in construc- result, might. Tr. 346. As the trial court tive of contraband found in an relating dismissed the counts (even plain view), if it is in phencyclidine intent with to sell. Tr. 498-500. majority states, “whereas Moore [there judge marijuana trial did dismiss the residencе,] no admissible indicia the fact relating counts finder in this case could find on the basis of though testimony distribute even was iden- competent lived in the regarding tical to that he found insufficient apartment.” Majority op., (emphasis n.14 incorrectly phencyclidine because remem- original). majority op.,---of See also testimony. expert bered the His recollection U.S.App.D.C., 684 of 562 F.2d. expert marijuana was that the had said the course, precise question Of is not wheth- people more than three would have for their er Davis “reg- “lived” in the but the mistake, compound To own use. Tr. 508. ularity occupied place”. with which [he] prosecutor’s closing misrepresented twice Holland, supra United States v. note quantity marijuana that the 445 F.2d at 703. To es- people more would than three have for their possession, govern- tablish constructive 747; own use. Tr. show, alia, ment spent must inter that Davis examination, 19. Tr. his direct 624. After enough impute time in the to him agreed “place Davis his of abode” was his knowledge hidden in the clos- girlfriend’s residence and that it was an “extra- refrigerator. et and the LSD in the See text at ordinary stayed when he situation” at the Third notes 3^1 If one reads the evidence to Street Id. slept show that Davis fre- quently enough presumed to be aware of impact 20. To avoid of cases such as United LSD, Holland, supra hidden U.S.App. then there can States v. note nothing suspicious paying D.C. and Moore about rent. v. United supra note verdict, reviewed Part required we are II. But jury’s possi- evidence of the benefit of all reа- give the ble Government innocence is not prerequisite But the evidence. sonable inference from activation those principles. To the con- to assume is not reasonable trary, purpose their is to assure no one simultaneously accepted both could have is simply convicted because he unable to except rejected Davis’ refute an guilt inference of drawn from his situations,” “extraordinary Tr. proximity or his association with rather than girlfriend lived with his dealers. It is majority because the so care- Third Street disregards lessly legal safeguards these I dissent.

Ill legal principles enunciated above do preserve logi-

not merely exist law’s consistency precision. Reflecting

cal to our jurisprudence,

that caution so basic imputation bar the purpose

their is to associations, thereby

guilt based on one’s injus-

preventing the chance mistake and tice when fails to indicate the evidence Stanley MAZALESKI, Appellant, C. suspects which of should be held several drugs found in responsible for their shared TREUSDELL, Individually Dale H. and in residence. capacity Director, Commissioned however, case, the evidence not Operations Division, Personnel Public three merely silent which of the about Department Health, Health Service hid- participated selling roommates Welfare, Education and al. et pres- Out den and LSD. No. prosecutor 75-1817. jury, ence of the stated target main case.” Phoenix was “the United States Appeals, Court of supplied also in- Tr. 679. The Government District of Circuit. Columbia presentence report formation for use in drug indicating Argued Phoenix was the “main Oct. 1976. campus.” University dealer on the Howard April Decided informer, testi- An undercover who did not Rehearing Denied June fy, purchased drugs at actually “Felix,” pre- someone he from a sumably identified as Phoenix. could have apart-

Finally, ledger recovered by Phoenix

ment recorded narcotics sales co-defendant,

and the third but not 304-12; prose-

appellant. Tr. 365-71. The frankly ledger

cutor conceded incrimi- two defendants

nated the other For various technical

Davis. Tr. 37-38. reasons, none of this informa-

evidentiary brought to the attention of the

tion was

jurors, all three defendants who convicted

alike.

These Davis indications selling part

had no found concealed in his LSD principles prudence

underscore the

Case Details

Case Name: United States v. Joseph B. Davis

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

Date Published: Apr 6, 1977

Citation: 562 F.2d 681

Docket Number: 75-1374

Court Abbreviation: D.C. Cir.