U.S. v. Morris

• Decision Date: 09 October 1992
• Docket Number: No. 91-3151,91-3151
• Citation: 977 F.2d 617
• Parties: UNITED STATES of America v. Robert MORRIS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 617

977 F.2d 617

298 U.S.App.D.C. 142

UNITED STATES of America v. Robert MORRIS, Appellant.

No. 91-3151.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 18, 1992.

Decided Oct. 9, 1992.

Robert L. Tucker, Asst. Federal Public Defender, with whom A.J. Kramer, Federal Public Defender, were on the brief, for appellant.

Edward G. Burley, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, and J. Jiyoung Bang, Asst. U.S. Attys., were on the brief, for appellee.

Before WALD, SILBERMAN and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Separate statement filed by Circuit Judge SILBERMAN.

WALD, Circuit Judge:

Appellant Robert Morris was convicted of possession of cocaine with intent to sell, in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B)(iii), and for using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). He appeals both convictions on the ground that the evidence was insufficient to support either charge. We reject both challenges and affirm the judgment below.

I. BACKGROUND

On December 11, 1990, officers of the Metropolitan Police Department executed a search warrant on a one-bedroom apartment at 2525 14th Street, N.E., in the District of Columbia. Upon entering the apartment, the officers found appellant seated on a small couch in the living room; they detained him while they searched the apartment. The search produced two ziplock bags containing a total of 15.7 grams of crack cocaine divided among 100 smaller ziplock bags, $500 in cash, empty ziplock bags, razor blades, and three loaded and operable pistols. Two of the guns were under the cushions of the couch on which appellant sat; the third was in a nightstand in the bedroom. The cocaine and the cash were in an air duct vent in the ceiling of the bedroom. In the drawer of a dresser in the bedroom, the officers found two birthday cards; appellant's name was on the envelope of one, and the other was for a "son," signed "Mr. and Mrs. B.G. Morris" and dated November 30, 1990. No address was on either. In a hallway closet, the officers found a laundry ticket dated December 3, 1990, and bearing the name "E. Morris." There were no identifiable fingerprints on any of these items. The officers arrested appellant, who was indicted on two counts: possession with intent to distribute in excess of five grams of cocaine base and using or carrying a firearm in relation to the possession offense.

At trial, two officers testified that at the time of the search, Morris said that he had been living in the apartment for three or four weeks. The government also offered expert testimony that the quantity and the packaging of the drugs, together with the drug paraphernalia and the weapons, indicated that the apartment was a drug distribution center, where cocaine was repackaged for street sale.

At the close of the government's case, appellant moved for acquittal on the ground that the evidence showed only that he was a casual visitor to the apartment and not a participant in the drug operation. The court denied the motion. Morris then testified, denying that he had ever lived in the apartment or ever said that he lived there. He testified instead that he was visiting four friends who lived there and had been there only a few minutes when the police arrived. He said that he was not himself engaged in any drug trafficking or aware of the presence of the drugs in the apartment. He had left the cards there during a prior visit on his birthday.

At the close of all the evidence, appellant renewed his motion for acquittal, which the court again denied. The jury convicted appellant of both charges, and he was sentenced to 130 months.

II. DISCUSSION

A. Standard of Review

In this appeal, appellant challenges the sufficiency of the evidence to support each conviction. In such challenges, this court must defer to the jury's determination and affirm the conviction if " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Long, 905 F.2d 1572, 1577 (D.C.Cir.) (quoting Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2783, 61 L.Ed.2d 560 (1979)), cert. denied, 498 U.S. 948, 111 S.Ct. 365, 112 L.Ed.2d 328 (1990). In our review, we must "view the evidence in the light most favorable to the government, allowing the government the benefit of all reasonable inferences that may be drawn from the evidence, and permitting the jury to determine the weight and credibility of the evidence." United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986).

B. Possession of the Drugs

Appellant's first challenge is to the sufficiency of the evidence to sustain his conviction for possession of cocaine with intent to distribute. Possession, of course, can be either actual or constructive. Constructive possession requires evidence supporting the conclusion that the defendant had the ability to exercise knowing "dominion and control" over the items in question. United States v. Hernandez, 780 F.2d 113, 116 (D.C.Cir.1986). Mere proximity to the item at the time of seizure is not enough; but proximity coupled with "evidence of some other factor--including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise" is enough to sustain a guilty verdict. United States v. Gibbs, 904 F.2d 52, 56 (D.C.Cir.1990).

A jury is entitled to infer that a person exercises constructive possession over items found in his home. United States v. Jenkins, 928 F.2d 1175, 1179 (D.C.Cir.1991). Thus, if there was sufficient evidence from which a juror could infer that Morris lived in the apartment where he was arrested, the jury could infer that he constructively possessed the drugs. The jury had the following evidence that Morris lived in the apartment: First, two officers testified that Morris said he lived there. Although Morris himself testified to the contrary, the jurors were permitted to credit the testimony of the officers. Jenkins, 928 F.2d at 1178. Moreover, Morris himself may have given their testimony extra credibility by his own contradictory information about where he did live at the time of the arrest. Second, Morris admitted that the two birthday cards found in the bedroom were his. That the cards were found inside the dresser drawer in another part of the house, rather than, say, left on a coffee table beside the defendant, strengthened the inference that Morris occupied the apartment on more than a drop-in basis. In United States v. Williams, 952 F.2d 418 (D.C.Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 148, 121 L.Ed.2d 99, (1992), for example, this court found it relevant that defendant's possessions were found "not in the living room where [he] was arrested, but in [the] bedroom." Id. at 420. Third, the officers found a dry cleaning ticket marked "E. Morris" in the hall closet. Morris's middle name is Eugene. Together these items of evidence support a reasonable inference that Morris lived in the apartment and, therefore, exercised constructive possession over its contents.

The inference that a person who occupies an apartment has dominion and control over its contents applies even when that person shares the premises with others, Jenkins, 928 F.2d at 1179, but it is particularly strong when the jury can reasonably conclude that he is the sole occupant of the premises. Appellant testified that not he but "four friends" lived in the apartment. Neither appellant nor the government claimed that he was the fifth occupant. Other than appellant's testimony, however, which the jury was permitted to disbelieve, there was no evidence that anyone other than appellant lived in the apartment, and certainly no one else was present when the arrest was made and the drugs seized. Thus, there was ample evidence from which the jury could infer that Morris lived alone in the apartment and exercised constructive possession over its contents.

There was also evidence aplenty from which a jury could infer intent to distribute. This intent can be inferred from a combination of suspicious factors. Gibbs, 904 F.2d at 57. The presence of the paraphernalia--razors and drug packaging materials--was evidence of such an intent, United States v. Dunn, 846 F.2d 761, 764 (D.C.Cir.1988) (citing United States v. Castellanos, 731 F.2d 979, 985 (D.C.Cir.1984)), as was the presence of the guns, United States v. Bruce, 939 F.2d 1053, 1056 n. 2 (D.C.Cir.1991) (citing Dunn, 846 F.2d at 764). Additionally, a government expert testified that the quantity and packaging of the drugs found in the apartment indicated that they were intended for street sale.

Because there was sufficient evidence both of appellant's possession of the drugs and of his intent to distribute them, we affirm his conviction for the possession offense.

C. Guns Used or Carried in Relation to the Trafficking Offense ¹

Appellant's second challenge is to the sufficiency of the evidence to support his conviction for using or carrying a gun in relation to a drug trafficking offense. Morris was convicted under a statute that makes it a crime to "use[ ] or carr[y]" a firearm "during and in relation to any ... drug trafficking crime...." 18 U.S.C. § 924(c).

Case law from this and other circuits provides guidance in determining when someone "uses or carries" a gun in relation to a drug trafficking offense. The first principle is clear: Mere possession of a gun even by a drug trafficker does not violate the statute. As we observed in United States v. Bruce, 939 F.2d at 1053, when Congress wishes to criminalize the possession of a firearm, it knows how to do so. In Bruce, this court recognized the analytical difficulty in distinguishing those cases in which someone merely possesses a gun with the intent to use it in a future drug trafficking crime, such as an...