562 F.2d 681 (D.C. Cir. 1977), 75-1374, United States v. Davis

Docket Nº:75-1374.
Citation:562 F.2d 681
Party Name:UNITED STATES of America v. Joseph B. DAVIS, Appellant.
Case Date:April 06, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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562 F.2d 681 (D.C. Cir. 1977)



Joseph B. DAVIS, Appellant.

No. 75-1374.

United States Court of Appeals, District of Columbia Circuit

April 6, 1977

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Argued Dec. 15, 1975.

Michael Evan Jaffe, Washington, D.C., with whom Elisse B. Walter, Washington, D.C. (both appointed by this Court) was on the brief, for appellant.

John L. Kern, Asst. U. S. Atty., Washington, D.C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, James M. Hanny, and Stuart M. Gerson, Asst. U. S. Attys., Washington, D.C., at the time the brief was filed, were on the brief, for appellee.

Before BAZELON, Chief Judge, MR. JUSTICE CLARK, [*] Retired Associate Justice of the United States Supreme Court, and MacKINNON, Circuit Judges.

Opinion for the Court PER CURIAM.

Opinion filed by Chief Judge BAZELON, dissenting in part and concurring in part.


Pursuant to a validly issued search warrant, the resulting search of an apartment occupied jointly by appellant and his two codefendants revealed a large quantity of different types of drugs and drug related paraphernalia. On the basis of this evidence, a jury found them guilty of three counts of possession of LSD and marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a) (1970), and possession of marijuana in the form of hashish, in violation of D.C.Code § 33-402 (1973), and not guilty of two other counts. Appellant was sentenced to a term of five years probation pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010(a). This appeal questions only the convictions of Davis.

Convictions on all three counts rest upon a factual determination that appellant Davis possessed the drugs involved. Two of the counts also included the jury's conclusion that such possession was with intent to distribute the controlled substances. Appellant argues that the link shown between him and the narcotics discovered in the apartment was insufficient to establish his constructive possession of them, and that there is insufficient circumstantial evidence that his possession was with intent to distribute. He contends that the trial court erred in failing to grant his motion for judgment of acquittal at the close of the government's case, and in the alternative that the evidence does not support the conviction. Appellant also attacks the admission of certain documents. We find that the trial court properly denied Davis' motion for judgment of acquittal at the close of the government's case, that the evidence supports the convictions and that the trial was without substantial error, and therefore affirm the judgment as to all three counts.


In passing upon a motion for judgment of acquittal the trial court must view the evidence in the light most favorable to the Government giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact. United States v. Fench, 152 U.S.App.D.C. 325, 333, 470 F.2d 1234, 1242, cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). It is only when there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt that the judge may properly take the case from the jury. United States

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v. Fench, supra; United States v. Lumpkin, 145 U.S.App.D.C. 162, 168, 448 F.2d 1085, 1091 (1971). In applying this standard no legal distinction is made between circumstantial and direct evidence. Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Fench,supra. The court must, however, consider only the evidence as it was when the Government rested. Powell v. United States, 135 U.S.App.D.C. 254, 257 n.9, 418 F.2d 470, 473 n.9 (1969); Austin v. United States, 127 U.S.App.D.C. 180, 189, 382 F.2d 129, 138 (1967). Our review of the evidence adduced in the Government's case in chief leads us to the conclusion that a prima facie case had been made against Davis on all three counts.


To prove constructive possession of narcotics the Government must show that the defendant was in a position or had the right to exercise dominion and control over the drugs. United States v. Watkins, 171 U.S.App.D.C. 158, 162, 519 F.2d 294, 298 (1975); United States v. Holland, 144 U.S.App.D.C. 225, 227, 445 F.2d 701, 703 (1971); United States v. Bethea, 143 U.S.App.D.C. 68, 71, 442 F.2d 790, 793 (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 drugs in question rests upon proof that appellant lived in the apartment, that he was physically present there, literally in the middle of all the seized contraband drugs and drug paraphernalia, and that he could observe what was all about him in his apartment. Thus, the jury could have concluded that (1) appellant was in control of the apartment, the same as any person would be who lived there, paid his share of the rent and was physically present at the time in question, and (2) the presence of the drugs was known to him because substantial quantities were in his plain view, some were located in the closet with the clothes he was wearing, and all were readily accessible to him in areas of the apartment that he would normally frequent and were thus subject to his control. These conclusions are supported by the following evidence introduced in the Government's case in chief.

At the time of the search, about 1:00 p. m., appellant and his codefendant Phoenix were found in the apartment. Appellant and Phoenix were wearing only their undershorts (Tr. 62, 64). Phoenix admitted to the police that he "lived in" the apartment and made other statements from which it could be inferred that three people lived there (Tr. 106-107). Davis identified himself to the police in the apartment at the time of the search (Tr. 181), and was identified in court as the Davis who was in the apartment at the time of the search (Tr. 68). It was a stipulated fact that Davis "indicated (to the police) that his address was 1910 Third Street," the address of the apartment (Tr. 468-469). Three pieces of mail matter for all three occupants of the apartment, Davis, Phoenix and Isaac, addressed to them at "1910 Third Street, Apartment 3," were also found on the "mantle, on the shelf, in the living room" where Davis was found (Tr. 88, Govt. Ex. 11A). 1

Three baggies of marijuana were found on a shelf in the living room where Davis was found, 27 in a closet of the living room and another 18 bags elsewhere in the apartment (Tr. 252, 253). 2 The total marijuana

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weighed 1,134,538.6 milligrams, or about 2.5 pounds (Tr. 249, 347, 354). LSD tablets sufficient for 239 dosages were found in the refrigerator in the kitchen, as were an additional 31 pieces of paper each containing four doses of LSD, i. e., 124 dosages (Tr. 251, 252). Total LSD dosages 363. Smaller quantities of hashish (Tr. 252), phendimetrazine (Tr. 251), cocaine and phenmetrazine (Tr. 252) were also found. Three scales of types commonly used for weighing quantities of drugs were found. One scale was on the coffee table immediately next to the place where Davis was arrested, and another was on a shelf in the same room. (Tr. 64, 65, 66, 87, 184, 269, 270, 274). Marijuana dust and seeds covered the coffee table and saturated the carpet under it (Tr. 65). Also found were a substantial number of boxes and bags suitable for packaging drugs (Tr. 64-65). A marijuana gin, for grinding rough marijuana into a texture like smoking tobacco, was found containing marijuana seeds (Tr. 66, 109, 269, 337). Twenty-five pieces of smoking apparatus containing marijuana residue were found (Tr. 253).

Davis was found in the apartment in the front living room-bedroom in the very middle of all the drugs and paraphernalia (Tr. 64, 65, 66, 77, 78, 86-87, 102-103, 181, 186, 196-198, 248, 252-256, 267-268, 274), much of it in plain view and easily accessible to him. That Phoenix, and not Davis, very quickly disclosed to the police the presence of the large amount of marijuana in the closet and the LSD in the refrigerator 3 does not defeat Davis' joint possession of such drugs. It just happened that the police "asked Mr. Phoenix where the narcotics were" (Tr. 64). From their physical location in the apartment, the fact that both lived there and the other facts herein before stated, the jury could conclude that the ample quantities of the drugs that were seized, and which were charged in the counts of which Davis was found guilty, were known and equally accessible at the time to both Davis and Phoenix, and that both were in a position to exercise dominion and control over these drugs. 4


Appellant's intent to distribute the marijuana and LSD could be inferred from the large quantity of the drugs, the fact that the marijuana was packaged as if for sale, the paraphernalia and materials for processing and packaging the contraband, and the marijuana debris which indicated that substantial quantities of marijuana had been handled in the apartment and particularly in the area of the scales. See United States v. James, 161 U.S.App.D.C. 88, 112, 494 F.2d 1007, 1031, cert. denied, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974); Williams v. United States, 55 U.S.App.D.C. 239, 4 F.2d 432 (1925). There was expert testimony that 270 tablets of LSD were more than three persons would possess for their personal use (Tr...

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