U.S. v. Foster, 83-1792

• Citation: 783 F.2d 1087
• Decision Date: 14 February 1986
• Docket Number: No. 83-1792,83-1792
• Parties: UNITED STATES of America v. Bernard FOSTER, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1087

783 F.2d 1087

251 U.S.App.D.C. 272

UNITED STATES of America v. Bernard FOSTER, Appellant.

No. 83-1792.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 27, 1984.

Decided Feb. 14, 1986.

J. Peter Byrne (Appointed by this Court), for appellant.

Kenneth W. Cowgill, Asst. U.S. Atty., of the Bar of the Supreme Court of the District of Columbia, pro hac vice, by special leave of the Court, with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell and Paul L. Knight, Asst. U.S. Attys. were on the brief, for appellee.

Before BORK and SCALIA, Circuit Judges, and THOMAS F. HOGAN, ¹ United States District Judge for the District of Columbia.

Opinion for the court filed by District Judge HOGAN.

THOMAS F. HOGAN, District Judge:

In a two count indictment filed on April 7, 1983, appellant was charged with possession of an unregistered firearm, in violation of 26 U.S.C. Secs. 5861 & 5871, and possession of a firearm not identified by a serial number, in violation of 26 U.S.C. Secs. 5842, 5861 & 5871. The theory of the government's case at trial was that, although the appellant was not in actual possession of the weapon, he was in constructive possession. At the conclusion of the government's case the appellant moved for judgment of acquittal. The trial court denied appellant's motion, and, after the presentation of the appellant's case, the jury convicted appellant on both counts.

Appellant argues that the government failed to introduce sufficient evidence from which the jury could have reasonably concluded that he was in possession of the gun, and that the district court should therefore have granted his motion for judgment of acquittal. We agree, and accordingly reverse appellant's conviction. ²

To withstand a motion for judgment of acquittal on the charge of constructive possession of an illegal firearm, the government must offer sufficient evidence that the defendant had knowledge of the existence of the firearm, and that the defendant was in a position or had the right to exercise dominion and control over it. E.g., United States v. Lewis, 701 F.2d 972, 973 (D.C.Cir.1983); United States v. Whitfield, 629 F.2d 136, 143 (D.C.Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 875, 66 L.Ed.2d 812 (1981). In reviewing a motion for judgment of acquittal that was made, as it was here, at the close of the government's case-in-chief, it is the law of this Circuit that only the government's evidence may be considered. See Cephus v. United States, 324 F.2d 893, 895-97 (D.C.Cir.1963) (dictum). See also Lewis, 701 F.2d at 973; United States v. Pardo, 636 F.2d 535, 547 (D.C.Cir.1980); United States v. Watkins, 519 F.2d 294, 297 (D.C.Cir.1975); United States v. Bethea, 442 F.2d 790, 792 n. 4 (D.C.Cir.1971). ³ However, in doing so, the prosecution's evidence is to be viewed in the light most favorable to the government, drawing no distinction between direct and circumstantial evidence, e.g., Watkins, 519 F.2d at 297-98, and "giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact." United States v. Davis, 562 F.2d 681, 683 (D.C.Cir.1977). Nevertheless, where the evidence viewed in the light most favorable to the prosecution is such that "a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime," a motion for judgment of acquittal must be granted. Bethea, 442 F.2d at 792 (emphasis in original).

The government's case-in-chief consisted of the testimony of two officers of the Metropolitan Police Department (MPD) and an agent of the Treasury Department's Bureau of Alcohol, Tobacco and Firearms. Officer Wilson testified that he, along with several other MPD officers, entered the Argyle Variety Store on March 10, 1983 to execute a search warrant. Upon entering the store, Officer Wilson observed the appellant standing near a cash register behind a counter which faces the front door of the store. Other employees, as well as several customers, were also observed in the store at the time. The appellant was ordered away from the counter, and the ensuing search revealed a shotgun behind the counter on a shelf underneath the cash register. The officer testified further that the shotgun was approximately at the appellant's fingertips when they entered the store, and that the butt of the gun was visible when he knelt behind the counter, but that the rest of the gun was concealed by a towel. The appellant was then arrested, and a subsequent search of his person revealed a pistol in a holster on his ankle.

The agent of the Bureau of Alcohol, Tobacco and Firearms, Special Agent Stanford, testified that the shotgun was not registered and lacked a serial number. Stanford also testified that a test of tape which had been on the front of the shotgun revealed a fingerprint which did not match those of the appellant.

Finally, another MPD officer, Anna Mullens, who had also been present at the time of appellant's arrest, testified that she passed the Argyle Variety Store daily during her duties as a patrol officer. The officer testified further that she saw the appellant in the store at least once a week, and that he was generally working behind the counter where the shotgun was found when she saw him. At the close of the government's case, the shotgun and the pistol, as well as several other exhibits, were admitted into evidence without objection.

Viewing all of the evidence from the point of view most favorable to the government, we find nevertheless that the government did not provide sufficient evidence from which the jury could have reasonably concluded that appellant knew the gun was in the store and that he had the ability or right to exercise dominion and control over it. The only evidence offered by the government to link the appellant to the shotgun was testimony that the appellant was near the location of the shotgun just prior to its being discovered, that he was in that location for an unspecified amount of time once a week, and that he had another gun on his person. Numerous decisions of this Circuit have made clear that mere proximity or accessibility to contraband will not support a conclusion that an individual had knowing dominion and control over it. As the court stated in Pardo, 636 F.2d at 549:

In short, there must be something more than mere presence at the scene of a criminal transaction. There must be some action, some word, or some conduct that links the individual to the [illegal items] and indicates that he had some stake in them, some power over them.

" 'Proximity, presence, or association is sufficient when accompanied ... [by] testimony connecting the defendant with the incriminating surrounding circumstances.' " United States v. Staten, 581 F.2d 878, 885 n. 60 (D.C.Cir.1978) (quoting United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir.1976)). Especially where, as here, contraband is discovered in a place occupied by more than one person, "the sufficiency of the evidence for jury consideration depends upon its capability plausibly to suggest the likelihood that in some discernible fashion the accused had a substantial voice vis-a-vis the [contraband]." Staten, 581 F.2d at 884 (emphasis added) (footnote omitted).

In Whitfield, 629 F.2d at 143, the court reversed the conviction of one co-defendant, Monroe, for possession of a loaded firearm where the only evidence with respect to him was that the weapon was found in a car under the front passenger seat on which he had been sitting. Id. The court noted in Whitfield that the government did not introduce evidence that Monroe made any motion to venture under the front seat that would indicate he was placing the gun there, or even that he inadvertently observed it. Id. Likewise, in the present case, the government's evidence indicated merely that the partially concealed shotgun was visible to someone kneeling behind the counter, without any testimony that the appellant was himself seen in that position or otherwise reaching under the counter. For this same reason, this case is distinguishable from Lewis, 701 F.2d 972. In Lewis the court affirmed a conviction for illegal possession of a firearm against the sole occupant of an automobile registered to a member of his household. In upholding the trial court's denial of the defendant's motion for judgment of acquittal, the Lewis court emphasized that the gun was visible from a position outside of the car next to the driver's door. Id. at 974. Again, no such basis for inferring knowledge of the shotgun's presence exists in the present case.

In denying appellant's motion for judgment of acquittal, the district court indicated mistakenly that the government had introduced evidence that the appellant was the manager of the store. In actuality, however, no such evidence was introduced during the government's case-in-chief. ⁴ Although the appellant himself, as well as several defense witnesses, characterized the appellant as a manager of the store, that evidence may not properly be taken into consideration in reviewing the denial of appellant's motion for judgment of...