United States v. Jackson, 75-2026.
| Decision Date | 18 March 1976 |
| Docket Number | No. 75-2026.,75-2026. |
| Citation | 526 F.2d 1236 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jimmy JACKSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William J. McLeod, Jr., St. Petersburg, Fla. (court-appointed), for defendant-appellant.
John L. Briggs, U.S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Eleanore J. Hill, Asst. U.S. Attys., Tampa, Fla., for plaintiff-appellee.
Before BELL and DYER, Circuit Judges, and MEHRTENS, District Judge.
After a jury trial, appellant Jimmy Jackson was convicted on a one count indictment of aiding and abetting possession with intent to distribute 148 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On appeal, Jackson asserts the District Court erred in failing to grant his motion for directed judgment of acquittal. We agree with Jackson that the United States failed to prove a prima facie case of guilt as to the offense charged, and reverse his conviction.
Evidence presented at trial established that Jackson introduced co-defendant Bischoff to co-defendant Thurman. In turn, Thurman and Bischoff arranged to sell the cocaine in question to Drug Enforcement Administration agents, who arrested them both after weighing and testing the drug. Jackson did not exercise dominion or control over the cocaine, but he was associated with the criminal venture, participated in it as in something he wished to bring about, and sought by his action to make it succeed. See United States v. Anthony, 474 F.2d 770 (5th Cir. 1973). He was improperly indicted under the possession clause of 21 U.S.C. § 841(a)(1), because although the evidence was sufficient to sustain an aiding and abetting charge of distribution under § 841(a)(1), it fails to establish Jackson's aiding and abetting possession of the cocaine with intent to distribute.
Jackson's conviction cannot be sustained under a theory of constructive possession, because there is no evidence that he exercised any measure of dominion or control over the contraband. United States v. Maspero, 496 F.2d 1354 (5th Cir. 1974).
The government contends that a conviction of aiding and abetting possession with intent to distribute can be supported by evidence sufficient for a conviction of aiding and abetting distribution and/or sale. This argument has a superficial appeal, since possession is an element in the substantive charge of either distribution or sale. Thus conviction of sale or distribution would necessarily imply that a defendant could also have been convicted on a possession count....
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...84 S.Ct. 1934, 12 L.Ed.2d 1050 (1963) (the dominion or control may be jointly shared). We distinguish the ruling in United States v. Jackson, 526 F.2d 1236 (5th Cir. 1976), cited by Raper, on its facts. In Jackson, the 5th Circuit reversed a conviction for unlawful possession with intent to......
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