U.S. v. Bell

• Decision Date: 02 March 1992
• Docket Number: 90-5728,Nos. 90-5727,s. 90-5727
• Citation: 954 F.2d 232
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge BELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo Rivas CRUZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 232

954 F.2d 232

UNITED STATES of America, Plaintiff-Appellee, v. Jorge BELL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lorenzo Rivas CRUZ, Defendant-Appellant.

Nos. 90-5727, 90-5728.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 4, 1991.

Decided Jan. 21, 1992.

As Amended March 2, 1992.

Urs Roland Gsteiger, Petree, Stockton & Robinson, Winston-Salem, N.C., argued, for defendant-appellant Bell.

David Ferris Tamer, Law Offices of David F. Tamer, Winston-Salem, N.C., argued, for defendant-appellant Cruz.

Paul Alexander Weinman, Asst. U.S. Atty., Greensboro, N.C., argued (Robert H. Edmunds, Jr., U.S. Atty., on brief), for plaintiff-appellee.

Before MURNAGHAN, Circuit Judge, HERLONG, District Judge for the District of South Carolina, sitting by designation, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

MURNAGHAN, Circuit Judge:

On June 25, 1990, the United States Grand Jury for the Middle District of North Carolina returned a four count indictment against Gregorio Peguero, Jorge Bell, Lorenzo Cruz, Jose Fernandez, and Eustaquio Sosa. The five defendants were charged with conspiracy to possess with intent to distribute marijuana, "crack" cocaine, and cocaine, and with specific incident possession offenses.

All five defendants were charged with conspiracy to possess with intent to distribute the sum of four separate quantities of drugs, found at four different locations at different times. Defendants Bell and Cruz were charged, in addition to the conspiracy, with possession of 13.55 grams of "crack" cocaine. The indictment also included a weapons possession count that was later dropped by the government at the start of the trial.

Cruz and Bell were arraigned in the United States District Court for the Middle District of North Carolina in Winston-Salem on July 3, 1990. A jury found them guilty on all counts charged. Both defendants moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29. Both motions were denied.

At a sentencing hearing on November 2, 1990, the district judge calculated a 151-188 month sentencing guideline range for Bell, sentencing him to 165 months plus five years of supervised release. He calculated a 121-151 month range for Cruz, and sentenced him to 134 months plus five years of supervised release.

We affirm the possession conviction, but reverse the conspiracy conviction and hence remand for resentencing pursuant to our findings.

I.

Evidence of various activities of defendants was presented at trial. On March 17, 1990, Bell was cited in Maryland for a moving violation while driving a 1979 Oldsmobile, a car registered in the name of Leocadio Reyes.

On April 18, Cruz was observed by a law enforcement officer driving a gold 1988 Ford Taurus near 1212 East 12th St. in Winston-Salem, an area of extensive drug trafficking, according to law enforcement officials.

On April 19, Bell was again cited, this time in North Carolina, for speeding while driving the Oldsmobile registered in Reyes' name. Bell also was observed at least one other time driving the 1979 Oldsmobile by law enforcement officials.

On April 20, a residence at 535-D Martin Luther King Drive in Winston-Salem was searched by officers of the Bureau of Alcohol, Tobacco and Firearms and the Winston-Salem Police. The only person in the apartment at the time of the search was Peguero, Bell and Cruz's alleged co-conspirator. No evidence was presented at trial as to who was the legal resident of the apartment, but keys to its door were found on Peguero during the search. Also uncovered in the search were: 30.71 grams of "crack" cocaine found in a brown paper bag on the second floor landing at the top of a staircase; the two traffic citation receipts for the violations by Bell operating the 1979 Oldsmobile plus two more traffic tickets issued to Bell, found in a shirt hanging in a closet in one of the bedrooms; a series of photographs picturing Bell: one with him standing near the entrance to the 535-D apartment, one with him and Peguero standing by a green Volvo, one with Bell standing by the 1979 Oldsmobile and one with Bell in front of the gold 1988 Taurus Cruz had been seen driving on April 18. There were no fingerprints of either Cruz or Bell found in the apartment.

On April 26 at approximately noon, Cruz was observed leaving a residence at 1926 Pleasant Street in Winston-Salem by a lieutenant on the Winston-Salem police force. Cruz was driving a maroon Chevrolet. The police officer proceeded to follow Cruz for about twenty minutes. Finally, Cruz pulled over, exited his car and demanded of the plain clothes officer to know why he was being followed. The officer informed Cruz that he was a police officer, and Cruz, leaving the car parked by the side of the road, left the scene on foot.

Later that same day, at 11:30 P.M., Bell was stopped for operating the 1979 Oldsmobile without headlights. Cruz and another alleged coconspirator, Jose Fernandez, were passengers in the car, with Cruz in the backseat. The two passengers slowly began to walk off in opposite directions after the car had come to a stop. The two patrol officers detained all three men, and soon joined by five other local and federal officers, began to search the car. Bell stayed near the car and carried on a conversation with one of the policemen. Cruz and Fernandez were led to a curb some distance from the car, where they sat down and remained calm and quiet for a time.

One of the officers noticed in his search that the backseat of the Oldsmobile was not tightly fixed to the floor of the car, and he removed the seat and began to search underneath it. At this point, observing the car being dismantled, Cruz and Fernandez became excited, exclaiming: "They're tearing it apart. They're tearing the car apart!"

The officers found a secret compartment under the backseat, but could not find the opening mechanism for it for some time. After about twenty minutes, two switches were found under the dashboard near the ashtray which opened the compartment. Inside the police found 13.55 grams of "crack" and a loaded 9mm pistol. A police scanner, useful in monitoring police radio communications, was also found in the front seat. No fingerprints were obtained from the drugs or the gun. No drugs, weapons, or excessive amount of cash were found on either Cruz or Bell. Cash totaling $950.00 was recovered from Fernandez.

On April 28, officers went to the residence at 1929 Pleasant Street. Two occupants of the house, including the fifth alleged coconspirator, Eustaquio Sosa, gave permission to search the premises. In the house the officers discovered nearly $19,500 in a bedroom, and a notebook with cryptic entries including names and numbers. In the garage two cars were found: a green Volvo (pictured with Bell and Peguero in one of the photos found at 535-D Martin Luther King Drive) and a gold Taurus (also pictured with Bell in one of the photos, and the same car Cruz had been seen driving on April 18).

A search of the cars uncovered a secret compartment in the gold Taurus quite similar to the one in the 1979 Oldsmobile. Traces of cocaine were found in the compartment, and $28,810 was also found in the car. In the trunk of the green Volvo $25,900 was found. A small bag of green vegetable matter, later determined to be marijuana, also was found in the garage.

II.

Defendants Bell and Cruz were arraigned on two separate counts; the first for possession with intent to distribute the 13.55 grams of "crack" found in the car they were riding in on April 27, and the second for conspiring to distribute "crack", cocaine, and marijuana more generally between February 2 and April 28, 1990. The district court properly denied defendants' motions for acquittal as to the possession count. Accordingly, we affirm that decision.

"Constructive possession exists when the defendant exercises, or has the power to exercise, dominion and control over the item." United States v. Zandi, 769 F.2d 229, 234 (4th Cir.1985). Of course, knowledge of the presence of the controlled substance is essential to an assertion of constructive possession. United States v. Schocket, 753 F.2d 336, 340 (4th Cir.1985). "[P]ossession need not be exclusive, but may be shared by others, and is susceptible of proof by circumstantial as well as direct evidence." United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir.1980).

Intent to distribute a controlled substance may be inferred by a jury from the quantity of drugs found in the defendant's possession. United States v. Roberts, 881 F.2d 95, 99 (4th Cir.1989). The thirteen plus grams of crack found in the Oldsmobile is a "large quantity", supporting the factfinder's inference that an intent to distribute existed. Id.

In analyzing the case at hand, and reviewing the denial of a motion for acquittal, "... we must review the evidence and all reasonable inferences arising from it in the light most favorable to the government," Laughman, 618 F.2d at 1076 (citing Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942)), as we determine whether a factfinder could have inferred, beyond a reasonable doubt, that the crime was committed. United States v. Anderson, 611 F.2d 504, 508 (4th Cir.1979).

When there is no actual possession of the contraband, as here, because the drugs are hidden in an elaborate compartment, constructive possession must be shown. In United States v. Grubbs, 773 F.2d 599 (4th Cir.1985), we had the opportunity to address a situation in which drugs were cleverly concealed, and the appellants argued that they had no knowledge of their presence.

In Grubbs, Coast Guard officials boarded a boat suspected of carrying drugs. They searched the boat for more than thirty minutes, and found nothing. Undaunted, the officials maintained radar surveillance of the boat, and intercepted it again later. A second search indicated a...