U.S. v. Durant, 80-1919

• Decision Date: 09 April 1981
• Docket Number: No. 80-1919,80-1919
• Citation: 648 F.2d 747
• Parties: UNITED STATES of America v. Emmanuel DURANT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 747

648 F.2d 747

208 U.S.App.D.C. 374

UNITED STATES of America v. Emmanuel DURANT, Appellant.

No. 80-1919.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 27, 1981.

Decided April 9, 1981.

John J. Hurley, Washington, D. C. (appointed by this Court), for appellant.

Karen J. Krug, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell and James F. Rutherford, Asst. U. S. Attys., Washington, D. C., on brief, for appellee.

Before McGOWAN, Chief Judge, ROBINSON, Circuit Judge, and PARKER ^*, United States District Judge for the District of Columbia.

Opinion for the Court filed by District Judge PARKER.

BARRINGTON D. PARKER, District Judge:

Appellant Emmanuel Durant was convicted at a jury trial of one count of unlawful possession of a dangerous drug, phenmetrazine, D.C.Code § 33-702, and two counts of carrying a pistol without a license, D.C.Code §§ 22-3204. ¹ He was sentenced to concurrent terms of six months on each of the three guilty counts. The drugs and firearms were seized during the execution of a search warrant covering the premises of the Success Cafe, a restaurant/bar. A codefendant, Leon Thomas, was similarly charged and found guilty.

In this appeal, Durant advances the argument that the evidence was legally insufficient to prove he had possession of the drugs or the firearms and that the trial court erred in denying his several motions for a judgment of acquittal. We conclude that there was sufficient evidence to support the drug possession charge and that the trial court did not err in denying the appellant's motion. However, for the reasons to be discussed, we vacate the convictions on the unlicensed firearms possession counts.

I.

There is virtually no dispute about the events that led to Durant's prosecution. In the early evening of February 29, 1980, several officers of the Washington, D.C. Metropolitan Police Department entered the Success Cafe, armed with a search warrant. After announcing their identity and purpose, they searched the premises, recovering a significant number of phenmetrazine tablets from several locations, two weapons and a large amount of cash.

The street value of the total amount of narcotics seized was at least $11,000. The largest number of tablets were found in an attache case located behind a safe in a secured and locked storage room. In the case were manila envelopes containing nearly one thousand phenmetrazine tablets. More drugs were uncovered elsewhere during the course of the search. Similar envelopes containing tablets were found lying open on a shelf in the locked storage room. Cash of $1,350 was found alongside the open envelopes. Behind a plywood wall in the men's room, yet easily accessible to one familiar with the premises, was another envelope containing phenmetrazine tablets. A number of tablets were found in an envelope lodged over a door frame leading to the basement. (TR. 129-131, 135-136.)

Empty envelopes identical to those containing the narcotic contraband were recovered by the police at various places about the premises: discarded in a trash can by the bar, near the cash register, and scattered on the floor of the ladies' and men's rest rooms. A larger number of unused manila envelopes, in their original packing, were located in the locked storage room. (T.R. 138-140, 155.)

Two handguns were seized from the area behind the bar: a loaded .45 caliber weapon under the bar, in plain view to one standing behind that structure, and a loaded revolver in a drawer in the work area behind the bar. (Tr. 125-129.) No fingerprints were obtained from either the manila envelopes or the handguns.

Some twelve persons were on the premises when the police executed the warrant. Nine were identified as customers and three as employees. Of the twelve present, six were arrested: three patrons, a waitress, Leon Thomas and the appellant. However, only Thomas and Durant were indicted and prosecuted.

The codefendant Thomas was first observed behind the bar. He identified himself as the night manager. Two keys and $610 cash were recovered from him. One key unlocked a padlock to the front door, the other secured the storage door padlock. Unlike the front door key, secured on a key ring, the storage door key was loose in Thomas' pocket. (Tr. 152-153, 160-161.)

Durant was seen reclining on a small raised dance floor when the police entered. A trash can containing discarded manila envelopes was alongside of the dance floor. Like Thomas, he also had a key to the front door padlock on his person. When asked about the key following his arrest, he responded that he worked on and off at the Success Cafe, opened and closed the place at times and occasionally cleaned up. (Tr. 154, 161-162.) Durant also claimed ownership of $240 cash found in a cowboy hat near the area of his arrest. However, he later denied ownership of the money. (Tr. 214.)

In addition to the testimony and evidence relating to execution of the search warrant, the jury heard testimony from a number of officers covering their prior observations within and about the Success Cafe, as well as concerning Durant's activities in connection with it. Three testified that the bar is located in an area of heavy drug traffic. (Tr. 158-159, 253, 256.) An officer, Darron Adams, testified that he had made a number of undercover narcotics purchases inside the Success Cafe. (Tr. 256.) Several officers testified that Durant was frequently seen about the premises. Officer Allan Penberg, who led the search warrant detail, had seen appellant there in excess of a dozen times in the year prior to his arrest. On these occasions, he testified that Durant was usually behind and around the bar, in the area leading to the locked storage room and near the entrance thereto. (Tr. 164-165.) Officer Adams had seen the appellant on the premises on numerous occasions, had seen him attending and servicing the bar and in non-public areas of the cafe. (Tr. 261-262.) Officer Sanchez-Serral also testified that he had frequently seen Durant in the Success Cafe. Many times appellant was behind the bar, and although not bartending, he was tending to bar affairs, and otherwise exercising some authority. Less than three weeks before the search and arrest, Sanchez-Serral witnessed appellant leaving the Success Cafe after closing hours. When it appeared that he saw the officer's car, however, Durant immediately stepped back, unlocked the door and reentered. (Tr. 207-210.)

Codefendant Thomas was the only defense witness. He had only recently arrived in Washington, D.C. from Michigan. He immediately sought employment and was hired soon after at the Success Cafe. He worked only five days, however, before it was forced to close temporarily for certain plumbing repairs. The bar reopened the night of the search. According to Thomas, he was then serving in a manager-trainee capacity. (Tr. 296-323.)

II.

A motion for a judgment of acquittal " 'must be granted when the evidence, viewed in light most favorable to the Government, is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime.' " United States v. Staten, 581 F.2d 878, 882 (D.C.Cir.1978) ², Accord, United States v. Herron, 567 F.2d 510, 514 (D.C.Cir.1977). The circuit panel in Staten further amplified and explained:

That guilt must be established beyond a reasonable doubt is " 'a basic principle in our jurisprudence,' " and unless that result is possible on the evidence, " 'the judge must not let the jury act; he must not let it act on what would necessarily be only surmise and conjecture, without evidence.' " But, as quite recently we re-emphasized, " '(i)t 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.' " And "(i)n applying this standard no legal distinction is made between circumstantial and direct evidence." (emphasis added) (footnote citations omitted).

Possession of the narcotic drugs or the handguns are essential elements of the offenses for which Durant was convicted. Since he did not have actual possession of either at the time of the search or when they were recovered, we must determine whether there was sufficient evidence for a jury to find that he had constructive possession of the items. The answer to the question is not simple or easy but it may be resolved with use of appropriate guidelines together with an analysis and review of the relevant facts.

A. The Phenmetrazine

As we have stated,...