United States v. Weaver, 71-1172.
| Decision Date | 28 February 1972 |
| Docket Number | No. 71-1172.,71-1172. |
| Citation | 458 F.2d 825,148 US App. DC 3 |
| Parties | UNITED STATES of America v. Joseph WEAVER, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Malcolm Lassman, Washington, D.C. (appointed by this court) was on the brief for appellant.
Messrs. Thomas A. Flannery, U.S. Atty., at the time the brief was filed, and John A. Terry, Herbert B. Hoffman and Barry W. Levine, Asst. U.S. Attys., were on the brief for appellee.
Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.
This is an appeal from a judgment on a conviction for unlawful possession of a narcotic drug (cocaine) in violation of 33 D.C.Code § 402. Although the statute does not contain the term, the offense prohibited by the law is a knowing possession of the drug. Appellant claims plain error in the judge's failure adequately to instruct the jury on this element of the crime. The judge both read from the indictment, which charged that defendant did "knowingly" possess a narcotic drug, and instructed that one of the elements of the crime was that "the defendant knowingly" had cocaine in his possession.
The evidence, viewed most favorably to the Government, was sufficient for a reasonable man to conclude there was no reasonable doubt of knowing possession. Defendant was a passenger in a car which was stopped by the police, and was parked alongside the parking lot at the carry-out shop at Farragut Street and Georgia Avenue. While the driver and police officer were in conversation, defendant walked past the scout car, where Officer Penn had remained seated. Officer Penn testified: defendant continued down the street past the vacant parking lot to the corner, where he stopped momentarily, turned and looked back at the scout car; he then went east on Farragut alongside the parking lot to an alley where he stopped again, looked in the direction of the scout car, and proceeded south in the alley behind the carry-out. He was out of sight momentarily, and when he reappeared he was seen standing for some 10-15 seconds at the rear of the carry-out shop standing at the corner of the building. The officer could see the left side of his body; defendant's left hand was alongside the zipper of his trousers, and his right hand apparently up against the wall. Officer Perin lost sight of him for a moment. Then defendant reappeared at the same point, in a peeking position, looking out from the corner, then "leaned to his right and downward," the officer could see him "placing something," and defendant then seemed to straighten up. Defendant then went south in the alley, and in the parking lot towards the cars. Officer Perin investigated, found a wet area where defendant was standing, and saw alongside...
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...States v. Watkins, 519 F.2d 294, 298 (D.C.Cir.1975); United States v. Davis, 461 F.2d 1026, 1035 (3d Cir. 1972); United States v. Weaver, 458 F.2d 825, 826 (D.C.Cir.1972); United States v. Gary, 447 F.2d 907, 910-11 (9th Cir. 1971); Brothers v. United States, 328 F.2d 151, 155 (9th Cir.), c......
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U.S. v. Davis
...(1972). In addition, the possession under D.C.Code § 33-402 must be knowing, United States v. Watkins, supra; United States v. Weaver, 148 U.S.App.D.C. 3, 458 F.2d 825 (1972). Here, the prima facie showing that appellant was knowingly in a position to exercise dominion and control over the ......
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Gorham v. United States, 5992.
...States, D.C.App., 313 A.2d 876, 879 (1974); McKoy v. United States, D.C.App., 263 A.2d 649, 651 (1970); see United States v. Weaver, 148 U.S.App.D.C. 3, 458 F.2d 825 (1972). In fact, this court recently suggested that trial courts use the following jury instruction for simple possession of ......
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