U.S. v. Onick, 89-1063

• Decision Date: 29 November 1989
• Docket Number: No. 89-1063,89-1063
• Citation: 889 F.2d 1425
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angela Faye ONICK and Alvin Tolliver, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1425

889 F.2d 1425

UNITED STATES of America, Plaintiff-Appellee, v. Angela Faye ONICK and Alvin Tolliver, Defendants-Appellants.

No. 89-1063.

United States Court of Appeals, Fifth Circuit.

Nov. 29, 1989.

Rehearing and Rehearing En Banc Denied Jan. 23, 1990.

As Amended Feb. 6, 1990.

Richard L. Bourland, Fort Worth, Tex. (Court-appointed), for Onick.

Alvin Tolliver, Seagoville, Tex., pro se.

Frederick M. Schattman, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before GOLDBERG, POLITZ and JONES, Circuit Judges.

GOLDBERG, Circuit Judge:

I. STATEMENT OF FACTS.

During an early morning in March, 1988, police searched a house in Fort Worth, Texas. They found illegal drugs (heroin and cocaine) and drug paraphernalia (blenders, sifters, mannitol, and 4,063 empty gelatin caps) concealed throughout the house. The police also found numerous guns and $80,000 in cash hidden in clothing and a safe. Although the police expected to find Alvin Tolliver in the house and did find him there, they were surprised to find Angela Onick as well. The police promptly arrested both Onick and Tolliver.

A jury convicted Onick and Tolliver of possessing heroin and cocaine with the intent to distribute; knowingly maintaining a place to manufacture drugs; using firearms in a drug trafficking crime; and conspiring to distribute more than 100 grams of heroin and more than 500 grams of cocaine. Both were sentenced to prison terms. The judge sentenced Tolliver to an additional term for committing these crimes while released on bail.

Both Onick and Tolliver now appeal. They argue that the evidence is insufficient to support their convictions. Tolliver also challenges his additional sentence for committing these crimes while released on bail and argues that he lacked effective assistance of counsel at trial.

We reverse Onick's convictions. We affirm Tolliver's convictions for possessing heroin and cocaine with the intent to distribute; maintaining a place to manufacture drugs; and using firearms in a drug trafficking crime; but reverse his conspiracy conviction. We also vacate Tolliver's sentence for committing these crimes while released on bail.

II. SUFFICIENCY OF THE EVIDENCE CLAIMS.

Onick and Tolliver argue that the government's evidence is insufficient to support their convictions. The applicable standard of review requires us to view the evidence in the light most favorable to the prevailing party, Glasser v. U.S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), to determine whether the government proved all elements of the crimes beyond a reasonable doubt. See U.S. v. Barrera, 547 F.2d 1250, 1255 (5th Cir.1977). If a reasonable jury would doubt whether the evidence proves an essential element, we must reverse. Id.

A. Possession with the Intent to Distribute.

To convict Onick and Tolliver for possession with the intent to distribute, the jury had to find that each defendant (1) possessed illegal drugs (2) knowingly, and (3) intended to distribute those drugs. 21 U.S.C. Section 841(a)(1); see U.S. v. Galvan-Garcia, 872 F.2d 638, 640 (5th Cir.1989). Possession may be actual or constructive and may be proved by direct or circumstantial evidence. U.S. v. Gardea Carrasco, 830 F.2d 41, 45 (5th Cir.1987). Constructive possession is defined as ownership, dominion, or control over illegal drugs or dominion over the premises where drugs are found. See U.S. v. Thompson, 700 F.2d 944, 952 (5th Cir.1983); U.S. v. Salinas-Salinas, 555 F.2d 470, 473 (5th Cir.1977).

1. Onick.

A reasonable jury could not conclude that the evidence establishes an essential element, possession, necessary to convict Onick of possession with the intent to distribute. Only four pieces of evidence connect Onick to this case. First, the police discovered Onick on the premises dressed in her nightclothes when they searched the house. Second, a bedroom closet contained women's clothing. Third, a bedroom contained a photograph of Tolliver, Onick, and an unidentified man. Fourth, a locksmith testified that several months before the arrests in this case, Onick showed him where to install a safe on the premises, paid for the safe, asked him to make the receipt out to "Al" (Tolliver's nickname), and accepted the card with the safe combination on it.

This evidence does not show that Onick actually possessed the drugs. She did not carry drugs. The room in which she sat contained no drugs nor drug paraphernalia. No one testified that Onick possessed any drugs when the police searched the house or at any other time.

Nor does the evidence demonstrate that Onick constructively possessed the drugs. At most, the evidence permits us to infer that Onick associated with Tolliver, visited Tolliver for the night, knew that the house contained a safe, and knew the safe combination. A reasonable jury could not conclude that Onick exercised dominion and control over the premises or the drugs themselves even if it drew these inferences from the evidence.

We will not lightly impute dominion or control (and hence constructive possession) to one found in another person's house. See U.S. v. Watkins, 519 F.2d 294, 296 n. 6 (D.C.Cir.1975). The evidence indicates that Onick was in another person's house. No evidence establishes that she lived in the house. In fact, the officers who searched the property told the jury that they did not expect to find Onick there. Because she was in another person's house, we will not lightly impute dominion or control to Onick. Given the paucity of the evidence against Onick, we will not impute dominion or control over the drugs or the premises to Onick.

For the jury to impute dominion or control to Onick, it must have speculated Onick into a conviction. This it cannot do. Nor may it pile inference upon inference to convict Onick, even though it may infer conclusions from the evidence before it. See Causey v. U.S., 352 F.2d 203, 207 (5th Cir.1965); U.S. v. Franklin, 586 F.2d 560, 572 (5th Cir.1978); U.S. v. Jackson, 426 F.2d 305, 309 (5th Cir.1970). The jury must limit itself to reasonable constructions of the evidence. U.S. v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

Our finding that the evidence does not establish constructive possession accords with previous constructive possession cases. Of course, we examine the merits of each constructive possession case independently; previous cases serve as illustration only. Bujol v. Cain, 713 F.2d 112, 115 (5th Cir.1983). For example, we held that a defendant's presence in a house on his father's property which the defendant may have occupied and where his father stored illegal drugs did not support a narcotics conviction. U.S. v. Sneed, 705 F.2d 745 (5th Cir.1983). In this case, the evidence does not even indicate that Onick occupied the house. Likewise, we held that mere presence in a room with a person who possessed illegal drugs and knowledge about a drug sale did not establish constructive possession. U.S. v. Martin, 483 F.2d 974 (5th Cir.1973). In this case Onick did not know about a drug sale, nor did she sit in the same room with Tolliver or anyone else who possessed illegal drugs.

Because the evidence so poorly links Onick to the premises and the drugs, a reasonable jury simply could not find that Onick exercised dominion or control over either. Therefore, a reasonable jury could not find that Onick constructively possessed the illegal drugs.

Because the evidence cannot support a jury finding that Onick possessed the illegal drugs, we need not consider the other two essential elements, knowledge and intent, necessary to convict Onick of possessing drugs with the intent to distribute. Nevertheless, we note that nothing in the record supports a finding that Onick knowingly possessed or intended to distribute the drugs.

a. Lesser Included Charge.

The district judge in this case properly instructed the jury that if it did not find Onick guilty of knowing possession with the intent to distribute, it could find her guilty of the lesser included charge of simple possession. See U.S. v. Sheikh, 654 F.2d 1057, 1067 n. 8 (5th Cir.1981); Fed.R.Crim.P. 31(c). To support a simple possession conviction the evidence must show knowing possession. U.S. v. Holloway, 744 F.2d 527, 531-532 (6th Cir.1984); 21 U.S.C. Section 844 (1988). However, nothing in the record supports a finding that Onick knew about the drugs or constructively possessed the illegal drugs. Because the evidence does not establish knowing possession, we need not consider whether to remand this case for a new trial on the simple possession charge.

2. Tolliver.

a. Possession.

A reasonable jury could not find that Tolliver actually possessed the drugs, but could infer that Tolliver constructively possessed the drugs. The police found numerous receipts made out to Tolliver at the house address. They also found papers belonging to Tolliver, clothes labeled with his nickname, and prescription bottles in his name. In addition, Tolliver selected clothing from one of the closets to wear to the police station. Based on this evidence, the jury could conclude that Tolliver lived in the house and exercised dominion and control over the premises and the drugs. See U.S. v. Robinson, 857 F.2d 1006, 1008 (5th Cir.1988); U.S. v. Castillo, 866 F.2d 1071, 1088 (9th Cir.1988). Evidence establishing dominion and control establishes that Tolliver constructively possessed the illegal drugs.

b. Knowledge.

Based on the evidence, a reasonable jury could infer that Tolliver knew about the drugs and drug paraphernalia hidden throughout his house. The jury could infer that Tolliver came across the drugs and drug paraphernalia scattered in various kitchen cabinets and drawers when he used the kitchen. Likewise, the jury could infer that Tolliver came across other...