U.S. v. Jenkins

• Decision Date: 26 July 1996
• Docket Number: No. 95-1606,95-1606
• Citation: 90 F.3d 814
• Parties: UNITED STATES of America v. Sean JENKINS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 814

90 F.3d 814

UNITED STATES of America v. Sean JENKINS, Appellant.

No. 95-1606.

United States Court of Appeals, Third Circuit.

Argued March 11, 1996.

Decided July 26, 1996.

Michael R. Stiles, United States Attorney, Walter S. Batty, Jr., Assistant U.S. Attorney, William B. Carr, Jr. (argued), Assistant U.S. Attorney, Office of the U.S. Attorney, Philadelphia, PA, for Appellee.

Robert Epstein (argued), Assistant Federal Defender, Elaine DeMasse, Senior Appellate Counsel, Maureen Kearney Rowley, Chief Federal Defender, Defender Association of Philadelphia Federal Court Division, Philadelphia, PA, for Appellant.

Before: STAPLETON, SCIRICA and COWEN, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Sean Jenkins appeals his conviction on drug possession and related firearms charges. He challenges the sufficiency of the evidence to establish his constructive possession of drugs found near him. Because the evidence showed only that he was in an acquaintance's apartment physically near but not in actual possession of drugs and drug distribution paraphernalia, it does not support the jury's finding that he had dominion and control over the drugs. We will, therefore, reverse Jenkins' conviction on all counts.

I.

Around 1:30 a.m. on February 10, 1994, Philadelphia police officers Michael Kopecki and James Santomieri responded to a call that shots were being fired near an apartment building. Entering the courtyard of the building, the officers saw Kevin Jones and Larry Harrison, who was holding a handgun. Kopecki yelled, "Police!" Harrison ran into the building, and the officers chased him through a fire escape door, down a hallway, and into apartment C-107. The front door opened into the living room, and the officers found Sam Stallings and Jenkins seated on a couch, both wearing only boxer shorts and a t-shirt. On the coffee table before them were three bags of white powder containing a total of 55.3 grams of cocaine and 42 grams of non-cocaine white powder, two triple-beam scales, two loaded .38 caliber revolvers, small ziplock-style bags, clear plastic vials, and numerous red caps. On the floor was a loaded sawed-off shotgun.

None of the cocaine powder had been put in the bags, vials, or caps, and there was no evidence that either man had been working with the cocaine. No grinders, razor blades, or other "cutting" implements, were on the table, and no pots or other instruments that could be used to cook cocaine were found with any cocaine residue. No cocaine residue was found on Stallings or Jenkins, including their hands, and no residue was found on the scales. Nothing concerning Jenkins' clothing suggested any connection to the drugs. Finally, he made no attempt to hide or destroy the contraband, and fully cooperated with the officers.

Stallings and Jenkins were charged and tried together. Count I of the indictment charged them with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting under 18 U.S.C. § 2. Count II charged them with use of a firearm in connection with a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and aiding and abetting. At trial, the officers testified to what they saw and found, as described above. An expert witness, DEA agent Ellis Hershowitz, testified that the scales, bags and vials were commonly used by drug traffickers in repackaging drugs for resale. On cross-examination, Hershowitz acknowledged that instruments necessary to cut and apportion the cocaine and insert it into the various packages were not found in the apartment. The manager of the apartment building, Barbara Edward, identified Stallings as a tenant in C-107, Harrison as someone who lived there, and Jenkins as someone who was "in and out" with Stallings and Harrison. Neither defendant testified.

The jury found Jenkins guilty on both counts. He made a post-trial motion for judgment of acquittal or new trial. Although recognizing that proximity to contraband or association with someone in possession is by itself insufficient to find constructive possession, the court denied the motion. ¹ It found three factors from which a jury could infer dominion and control: (i) Jenkins was not merely in the same apartment as the drugs, but was sitting on a couch immediately adjacent the table on which the drugs were found; (ii) while there was no evidence that Jenkins was a resident of the apartment, he was in his boxer shorts and a t-shirt at 1:30 a.m., which suggests that he was going to stay overnight or had been there for some time; and (iii) there were two triple-beam scales, from which it could be inferred that Stallings and Jenkins were each going to use a scale. The court sentenced the defendant to nearly 12 years imprisonment.

II.

In reviewing a jury verdict for sufficiency of the evidence, we view the evidence in the light most favorable to the government, and we will affirm the conviction if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See United States v. Brown, 3 F.3d 673, 680 (3d Cir.), cert. denied, 510 U.S. 1017, 114 S.Ct. 615, 126 L.Ed.2d 579 (1993). The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291. The notice of appeal was timely filed.

III.

A.

The government had no evidence of actual possession of the cocaine powder; consequently, the issue before us is whether there was evidence sufficient to establish constructive possession. Under our precedent, the evidence must show that Jenkins had dominion and control over the drugs:

[T]he government must submit sufficient evidence to support an inference that the individual "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 or persons. Constructive possession necessarily requires both 'dominion and control' over an object and knowledge of that object's existence." United States v. Iafelice, 978 F.2d 92, 96 (3d Cir.1992) (citations omitted)....

Brown, 3 F.3d at 680. The kind of evidence that can establish dominion and control includes, for example, evidence that the defendant attempted to hide or to destroy the contraband, see United States v. Davis, 461 F.2d 1026, 1034-36 (3d Cir.1972), or that the defendant lied to police about his identity or the source of large amounts of cash on his person, see United States v. Brett, 872 F.2d 1365, 1368-69 (8th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). Dominion and control are not established, however, by "mere proximity to the drug, or mere presence on the property where it is located or mere association with the person who does control the drug or the property." Brown, 3 F.3d at 680; see also United States v. Dunlap, 28 F.3d 823, 826 (8th Cir.1994); United States v. Zeigler, 994 F.2d 845, 848 (D.C.Cir.1993); United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir.1992).

Jenkins argues that the evidence relied upon by the court was insufficient to prove dominion and control over the cocaine. Nothing but proximity links him to the drugs and drug distribution paraphernalia. No cocaine residue was found on him, nor were his fingerprints found on the drugs. His prior acquaintance with Stallings answers why he was in the apartment, and it is immaterial how long he had been or was going to be there. The presence of the two scales, he contends, is insufficient to link him to the drugs. No evidence suggests that they had been in use or were about to be used by him; if anything, it was more likely that the two scales belonged to and would be used by the two residents of the apartment.

We agree with the defendant that the evidence is insufficient to establish his possession of the cocaine. The evidence does show that he is an acquaintance of Stallings and Harrison and that he was found physically near drugs and drug distribution paraphernalia, including two scales, but those are insufficient facts from which to infer dominion and control over the drugs.

We find this case controlled by our decision in United States v. Brown. The police, acting on a tip, searched Brown's home for drugs. During the search, Ama Baltimore arrived at the house, inserted a key into the lock, and was arrested as she entered. While being arrested, she protested, "But you can't arrest me because I am in my own house." In the upstairs sewing room, the police found a pair of shorts and a switchblade, both of which Baltimore admitted were hers. Substantial quantities of heroin, cocaine powder, and crack cocaine were found in the refrigerator in the kitchen, the kitchen closet, and one of the upstairs bedrooms. Equipment and supplies to prepare, cook, cut and distribute the drugs were also found in the bedroom. The government contended that several facts were sufficient to establish Baltimore's possession of the drugs: her possession of a key to the house, her attempted entry, the presence of the shorts and switchblade in the house, her statement, and the fact that the house was a known "cut house," a place where large quantities of drugs are cut and distributed.

We overturned her conviction for insufficient evidence of possession. The evidence showed that she had access to or resided in the house and knew of the presence of the drugs, but did not show she had dominion and control them. The key, her attempted entry, and her statement merely showed that she had some control over the house, not the drugs. See 3 F.3d at 682-83. We further noted that her fingerprints were not found on the drugs or drug paraphernalia, and there was no evidence that she ever exerted any indirect control over them. See id. Evidence in addition to knowledge of and access to the drugs was necessary to prove possession. The fact that Brown's home was a "cut house" did not suffice as additional evidence. Because Brown's house was also a...