U.S. v. Chambers

• Citation: 918 F.2d 1455
• Decision Date: 20 November 1990
• Docket Number: No. 88-1474,88-1474
• Parties: 31 Fed. R. Evid. Serv. 881 UNITED STATES of America, Plaintiff-Appellee, v. Millard P. CHAMBERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1455

918 F.2d 1455

31 Fed. R. Evid. Serv. 881

UNITED STATES of America, Plaintiff-Appellee, v. Millard P. CHAMBERS, Defendant-Appellant.

No. 88-1474.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 12, 1990.

Decided Nov. 20, 1990.

Scott W. Pink, Marron, Reid & Sheehy, San Francisco, Cal., for defendant-appellant.

Rory K. Little, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, FARRIS and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

A jury found Millard P. Chambers guilty of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). On appeal, Chambers argues the evidence was insufficient to support the verdict, the trial court erred in instructing the jury, he received ineffective assistance of counsel, and the trial court erred in admitting certain photographs into evidence. We have

jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

FACTS

On April 30, 1988, officers of the San Francisco Police Department stationed themselves on Lillian Street in the "high crime narcotics" neighborhood of Hunter's Point. Sometime after 1:00 p.m., the officers saw a blue van speed around a corner toward their unmarked cars. A passenger was in the van with the driver. The van moved so fast that it swerved into oncoming traffic, barely avoiding a collision.

In response, Officer Peter Busalacchi activated the siren and red light in his car, and pursued the van. The van stopped around the corner. Officer Busalacchi approached the van and saw the passenger "doing something in between" the front bucket seats. The van then sped away.

Although other police cars were now in pursuit, the van continued to speed through the residential neighborhood, ignoring all traffic regulations. A second police car forced the van onto the sidewalk. Sergeant John Fowlie ran over to the driver's side of the van, drew his gun, and ordered the driver to turn off the engine. Sergeant Fowlie testified that he recognized the driver to be Chambers, whom he had met previously.

Despite Fowlie's order, the van's driver accelerated toward him. Fowlie jumped out of the way as the van sped away. Pursuit of the van continued. The van turned onto Quesada Street, a dead end street. Officer Busalacchi saw a red bag come out of the passenger side door of the van as it drove down Quesada Street. The driver eventually stopped the van at the bottom of some steps.

Approximately one-half block behind the van, Busalacchi saw the passenger leave the van and run up the steps. As Busalacchi approached the van, the driver also left the van and ran up the steps. The driver of the van slipped and dropped a paper bag. Cash spilled out onto the steps. As the driver stopped to pick up the cash, he looked directly at Officer Busalacchi. Busalacchi testified that he recognized the driver as Chambers, whom he had met on prior occasions.

Both the driver and the passenger then eluded the officers. Officer Busalacchi eventually went back to the steps and recovered the cash along with a pager. Officer Thomas Cleary responded to a call from a resident on Quesada Street who had seen the red bag fall out of the van. Officer Cleary recovered the bag. It contained two kilograms of cocaine.

The officers also searched the van. They found two cards addressed to "Millard," another pager, and a portable cellular telephone. The officers later discovered that the van was rented in the name of Lisa James, one of the pagers was leased in the name of Crystal Porter, and both James and Porter were listed as account holders for the cellular telephone. The police also found Chambers' fingerprint on the outside of the driver's door of the van.

Chambers was convicted on a one-count indictment for possession of two kilograms of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). This appeal followed.

DISCUSSION

A. Sufficiency of Evidence of Possession

Chambers argues that the evidence is insufficient to establish his possession of the cocaine. ¹ We disagree.

To prove the element of possession, the government need not demonstrate "exclusive actual possession; it may be satisfied by proof of constructive or joint possession." United States v. Soto, 779 F.2d 558, 560 (9th Cir.1986), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 70 (1987). Constructive possession may be demonstrated by "circumstantial evidence that the defendant had the power to dispose of the drug." United States v. Disla 805 F.2d 1340, 1350 (9th Cir.1986). Conduct by the driver of a vehicle that appears intended to aid a passenger in disposing of the drug is probative of joint possession of the drug. See United States v. Jackson, 423 F.2d 506, 508-09 (9th Cir.) (cooperating by slowing down, pulling over to side of road, and then accelerating in an attempt to flee), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970); Jackson v. United States, 408 F.2d 306, 308 (9th Cir.1969) (cooperating by accelerating while passenger bends over and throws package of drugs from car).

The nature of an attempt to flee from law enforcement officials is probative of possession as well as knowledge. United States v. Morando-Alvarez, 520 F.2d 882, 884 (9th Cir.1975). In Morando-Alvarez, the defendants jumped from a moving car which contained 70 pounds of marijuana, and were pursued for over one hour. Id. at 885. The defendants' frightened appearance and "unequivocal flight" supported findings that they knew contraband was in the car, that they were engaged in a joint venture involving possession of the contraband, and that they jointly possessed it. Id. at 884.

Here, Chambers' flight was unequivocal and dramatic. The evidence showed that he engaged in a lengthy, high-speed car chase. In the process, he ignored traffic regulations, fled from officers three separate times, and almost ran over an officer. During the first time the van was stopped, Officer Busalacchi observed the passenger in the van "doing something in between" the front bucket seats. Chambers then sped away. It was during the last segment of the chase that the cocaine was ejected from the van.

From this evidence the jury reasonably could infer that Chambers knew the cocaine was in the van and jointly possessed it. Morando-Alvarez, 520 F.2d at 884; Jackson, 423 F.2d at 508-09.

B. Jury Instructions

Chambers argues that the district court erred in (1) instructing the jury on the element of possession, (2) failing to give a "mere presence, proximity and association" instruction, and (3) failing to define "knowingly." No objection to the jury instructions was made at the time of trial. Thus, we review Chambers' challenges to the jury instructions for plain error. "A plain error is a highly prejudicial error affecting substantial rights." United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). Plain error requires a reversal "only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986).

1. Possession Instruction

Chambers contends that the district court erred by instructing the jury that it could "find possession where one person alone has possession, or where that person shares control with other persons." Chambers maintains there was insufficient evidence to support a finding of joint possession, and thus it was reversible error to give this instruction.

As previously discussed, there was sufficient evidence under Jackson and Morando-Alvarez from which a jury could reasonably find that Chambers jointly possessed the cocaine with his passenger.

Chambers argues, however, that the district court's possession instruction was erroneous under our recent decision in United States v. Terry, 911 F.2d 272 (9th Cir.1990). In Terry, we held that the trial court erred in giving the jury a possession instruction substantially identical to the instruction given in this case. The trial court in Terry initially instructed the jury:

A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person, is then in constructive possession of it.

Id. at 279. After receiving a request for clarification from the jury during deliberations the court gave the jury a new possession instruction:

Possession means having physical control of a thing. That control may be direct, as by actually holding the thing or indirect by having the power to control the thing while someone else may actually be holding it. The jury may find possession where one person alone has possession or where that person shares control with other persons.

Id. at 279.

In the present case, the trial court instructed the jury:

Possession means having physical control of the thing. That control may be direct, as by actually holding a thing, or indirect, by having the power to control the thing while someone else may actually be holding it.

You may find possession where one person alone has possession, or where that person shares control with other persons.

Reporter's Transcript, Vol. III at 351.

Both the possession instruction in Terry and the possession instruction in this case were taken from the Manual of Model Jury Instructions for the Ninth Circuit Sec. 9.03B (1985).

Although the possession instruction in Terry and the possession instruction in this case are almost identical, the circumstances surrounding the giving of the instructions in each case are quite different. In Terry, during deliberations the jury asked the court for clarification of "intention at any given time." Terry at 279. In response to this request, the trial court reviewed its initial...