U.S. v. Barnes

• Decision Date: 05 April 1989
• Docket Number: No. 88-1161,88-1161
• Citation: 890 F.2d 545
• Parties: UNITED STATES of America, Appellee, v. Alfreda BARNES, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 545

890 F.2d 545

UNITED STATES of America, Appellee, v. Alfreda BARNES, Defendant, Appellant.

No. 88-1161.

United States Court of Appeals, First Circuit.

Heard April 5, 1989.

Decided Nov. 30, 1989.

Ellen K. Wade, by Appointment of the Court, with whom Avery & Friedman, Boston, Mass., was on brief, for defendant, appellant.

Edwin J. Gale, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for the U.S.

Before CAMPBELL, Chief Judge, and BOWNES, Circuit Judge, and CAFFREY, ^* Senior District Judge.

CAFFREY, Senior District Judge.

The defendant Alfreda Barnes appeals her conviction in the District of Rhode Island ¹ for possession with intent to distribute cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) (Count I) and for possession, as a convicted felon, of a firearm in violation of 18 U.S.C. Sec. 922(g) (Count II). On appeal, Barnes challenges her conviction for Count I on three grounds. First, Barnes claims that there was insufficient evidence to support the jury's finding that she constructively possessed the cocaine base found in her apartment. Second, Barnes argues that there was insufficient evidence to prove that the mixture of cocaine base weighed more than 50 grams as required by Sec. 841(b)(1)(A)(iii). Third, Barnes contends that the term "cocaine base" as used in 21 U.S.C. Sec. 841(b)(1)(A)(iii) is unconstitutionally vague in violation of the fifth amendment. Finally, as to both Count I and Count II, Barnes challenges her convictions claiming that the district court erred in defining reasonable doubt in its jury instructions. After a thorough review of the trial record and the appellant's arguments, we affirm the appellant's convictions on both counts.

I.

The relevant facts for this appeal are those presented to the jury during the appellant's three-day trial. The trial testimony centered on the seizure of 72.5 grams of "crack" cocaine and a semi-automatic rifle from an apartment at 212 Lenox Avenue in Providence, Rhode Island. According to the record, the jury heard the testimony of 12 witnesses and reviewed at least 14 exhibits. The trial evidence is summarized as follows.

At approximately 11:45 p.m. on June 29, 1987, seven officers of the Providence Police Department executed a search warrant for the second floor apartment at 212 Lenox Avenue. ² Upon arriving at the address, Detective Sergeant Joseph Fusco found the appellant Alfreda Barnes in the driveway beside 212 Lenox Avenue. Fusco informed Barnes of the warrant and asked if he could enter the apartment, but Barnes refused to allow entry.

At this time, Fusco saw a young woman in the second floor window of the building. Fusco told the young woman he had a search warrant and asked to be let in, but he received no response. The police officers then forcibly entered both the front door to the building and the door to the second floor apartment.

The police found the second floor apartment empty. Upon entering, the police came to a living room which was partitioned into a double parlor area. Beyond the living room was the kitchen, and off the kitchen was a pantry area. There were two bedrooms to the left of the kitchen in back, and one bedroom off the living room in front. The police never searched the bedroom in front.

Detective Sergeant Thomas Oates and Fusco searched the larger rear bedroom. The room had a large mahogany water bed with storage drawers underneath. Beside the bed was a matching bureau, and, at the base of the bed, was a television with several shelves underneath. The room also had a hamper and a closet with female clothing in it.

The police seized several items from the larger rear bedroom. On the floor next to the bed, Fusco found a semi-automatic Sturm Ruger mini-14 rifle modified with a flash-suppressor and a loaded 20-round magazine. In the bureau, Fusco found another gun magazine filled with live ammunition and a box containing $588 in cash. In the hamper, Oates discovered a blue Baby Fresh tissue container with $5,948 in cash inside. With the money, there was also a slip of paper with the figure "$6,000" and other scribblings written on it. Oates also found certain paperwork on the shelves below the television. Among these papers were two food stamp cards: one had the name "A. Barnes" and the other had the name "G. Barnes."

Under the television, Oates noticed a Mrs. Filbert's margarine container wrapped with a rubber band. Inside, Oates found three rock-like objects: one the size of a baseball, the other two the size of golf balls. Oates seized these objects believing them to be "crack" cocaine.

After starting to search the larger rear bedroom. Fusco took the rifle into the kitchen where various items were being inventoried. At that time, Barnes was in custody and seated by the kitchen table. As Fusco entered the kitchen with the rifle, Barnes said: "That's mine, you can't take it, I bought it at D & B Guns."

Detective Gail Zienowicz and Fusco searched the kitchen and pantry areas. Zienowicz found several hundred unused small plastic vials inside a clothes dryer in the kitchen. Zienowicz seized the vials believing them to be "crack vials" used for distributing "crack" cocaine. Fusco also found and seized two triple beam scales in the pantry area.

During the search, the police assembled three individuals in the kitchen: Barnes who was in the driveway, the young woman who Fusco recognized as the person in the window, and a small infant. Barnes was arrested and taken into custody by the police. The police did not identify the young woman or the infant.

At trial, Lulu Barnes, the appellant Alfreda Barnes's mother who lived on the first floor and owned the building, testified as the sole defense witness. Lulu said that Alfreda had lived in the second floor apartment for nine years. Alfreda had paid rent of $370 a month for several years and was on welfare with "section 8" housing support. Lulu also said the phone service was subscribed in Alfreda's name.

Lulu Barnes testified that Alfreda lived in the second-floor apartment with her infant child, not named in the record, and her two older children Gina, 20, and Marvin, 18. Marvin was a student at the University of Rhode Island and did not stay at the apartment regularly. The infant and Gina were staying at the apartment at the time.

Lulu Barnes also testified that Gina, not Alfreda, slept in the larger rear bedroom where the rifle and cocaine base were found. Lulu said that Alfreda slept with the infant in the smaller front bedroom off the living room. This testimony, however, was not unequivocal. On cross-examination, Lulu admitted that she had first said Gina lived in the smaller front bedroom, and then quickly corrected herself. ³

Finally, concerning the substance seized, a Drug Enforcement Administration forensic chemist, Andrea Michaels, testified at trial that she analyzed the three chunks found in the apartment. First, she weighed the three chunks and determined their weight to be 72.5 grams. Next, she screened each chunk with a common chemical color test and found each to contain some amount of cocaine. Then, she ground the chunks into a uniform powder and performed infra-red spectrography and gas chromatography tests on a one gram sample. Michaels said her test results showed the powder to contain 97 percent pure cocaine base. In terms of her chemistry training, Michaels explained that cocaine base differs from cocaine hydrochloride in its molecular structure. Michaels said that cocaine base is commonly called "crack" cocaine which is generally smoked.

II.

The first issue presented by this appeal is whether there was sufficient evidence to support the jury finding that the appellant Barnes constructively possessed the cocaine base found in the larger rear bedroom. Barnes argues that the only direct testimony offered at trial showed that her daughter Gina lived in the larger rear bedroom, and thus Barnes could not have constructively possessed the drugs found in the rear bedroom. Further, Barnes contends that the drugs and drug paraphernalia seized in other areas of the apartment were not in plain view, and thus she had no knowledge or control over these items. In light of the full record and the applicable law, these arguments are not persuasive.

In reviewing this issue, the court must decide whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). See also United States v. Serrano, 870 F.2d 1, 5 (1st Cir.1989); United States v. Torres Lopez, 851 F.2d 520, 527 (1st Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1144, 103 L.Ed.2d 204 (1989). In considering this question, the court shall draw all reasonable inferences from direct and circumstantial evidence in favor of the government. United States v. Lochan, 674 F.2d 960, 965-66 (1st Cir.1982). Furthermore, given this circuit's adherence to the "waiver rule" concerning mid-trial motions for acquittal, the court shall consider all the evidence presented at trial both from the government and the defendant. United States v. Notarantonio, 758 F.2d 777, 788 (1st Cir.1985). ⁴ Nevertheless, the court is mindful that the burden remains on the government to prove every element of the offense beyond a reasonable doubt. Lochan, 674 F.2d at 965-66.

Pursuant to 21 U.S.C. Sec. 841(a), the government was required to prove that Barnes knowingly possessed the cocaine base found in the apartment at 212 Lenox Avenue. The government need not prove actual possession; constructive possession is sufficient. See United States v. Calle-Cardenas, 837 F.2d 30, 32 (1st Cir.), cert. denied, 485 U.S. 1024, 108 S.Ct. 1582, 99 L.Ed.2d 897 (1988); United States v. Matra, 841 F.2d 837, 840 (8th Cir.1988); United States v. Carrasco, 830...