U.S. v. Poole

• Decision Date: 04 August 1989
• Docket Number: No. 88-7567,88-7567
• Citation: 878 F.2d 1389
• Parties: The UNITED STATES of America, Plaintiff-Appellee, v. Patricia POOLE, a/k/a Patricia Hunter, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1389

878 F.2d 1389

The UNITED STATES of America, Plaintiff-Appellee, v. Patricia POOLE, a/k/a Patricia Hunter, Defendant-Appellant.

No. 88-7567.

United States Court of Appeals Eleventh Circuit.

Aug. 4, 1989.

Thomas J. Spina, Kimberly R. West, Birmingham, Ala., for defendant-appellant.

Frank W. Donaldson, U.S. Atty., Anthony A. Joseph, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

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

Before KRAVITCH, JOHNSON and ANDERSON, Circuit Judges.

PER CURIAM:

Defendant challenges on sufficiency of the evidence grounds her convictions for possession of cocaine with intent to distribute in violation of 21 U.S.C.A. Sec. 841(a)(1), and for use of a firearm during and in relation to narcotics trafficking in violation of 18 U.S.C.A. Sec. 924(c)(1). We affirm both convictions.

I. FACTS

At 11:28 p.m. on the evening of May 23, 1988, state and federal law enforcement officials executed a search warrant on defendant's house in Fairfield, Alabama. Defendant had been home approximately five minutes after returning that evening from a weekend in Los Angeles. The officers found defendant on a couch in the living room; under the couch they found an aluminum foil packet containing cocaine. The police then conducted a thorough search of defendant's house. Drugs and drug paraphernalia were discovered throughout the house. In what was later identified as defendant's bedroom, officers found under the waterbed a plastic bag containing $1,432.00 cash and traces of cocaine; in a brass bucket on the dresser, police found a pouch containing cocaine. In the front bedroom, police discovered a small plastic bag containing marijuana. In the hallway closet, police found a jacket containing five small zip-lock packets of cocaine; inside a second jacket, police found a packet containing additional cocaine. In the dining room, police found inositol, a compound used for cutting cocaine, and implements used to mix the cocaine with the inositol. In the kitchen, police found a triple-beam scale and four more bags containing cocaine. The cocaine found totalled 148.775 grams, or approximately 5.3 ounces. In addition, in a utility room containing a washer and dryer adjacent to the kitchen, police found a .30 caliber carbine and ammunition clip partially concealed in the ceiling and a .22 caliber semi-automatic rifle and a .410 caliber "survival rifle" on the floor under some clothing.

Defendant was convicted after a jury trial of possession of cocaine with intent to distribute in violation of 21 U.S.C.A. Sec. 841(a)(1). Defendant was also convicted of using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C.A. Sec. 924(c)(1). Defendant was sentenced to five years' incarceration to be followed by a special parole term of three years on the drug conviction, and to a consecutive term of five years without probation or parole on the firearms conviction. The district court also imposed a special assessment of $50 on the drug conviction. Defendant appeals both convictions.

II. DISCUSSION

Defendant argues that the evidence is insufficient to support her convictions. Sufficiency of the evidence is a question of law subject to de novo review. United States v. Greer, 850 F.2d 1447, 1450 (11th Cir.1988). This Court must view the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and determine whether the jury could have found defendant guilty beyond a reasonable doubt. See United States v. O'Keefe, 825 F.2d 314, 319 (11th Cir.1987). The evidence need not be inconsistent with every reasonable hypothesis except guilt, and the jury is free to choose between or among the reasonable conclusions to be drawn from the evidence presented at trial. See United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

A. Section 841(a)(1)

In order to convict defendant Poole under 21 U.S.C.A. Sec. 841(a)(1), the government had to prove three elements: (1) knowledge; (2) possession; and (3) intent to distribute. See United States v. Alvarez, 837 F.2d 1024, 1027 (11th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 2003, 100 L.Ed.2d 234 (1988). All three elements can be proven by either direct or circumstantial evidence. United States v. Pruitt, 763 F.2d 1256, 1264 (11th Cir.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 856, 88 L.Ed.2d 896 (1986). Evidence of surrounding circumstances can prove knowledge. Alvarez, 837 F.2d at 1027. Constructive possession is sufficient for the possession element, and can be established by showing ownership or dominion and control over the drugs or over the premises on which the drugs are concealed. United States v. Montes-Cardenas, 746 F.2d 771, 778 (11th Cir.1984). Intent to distribute can be proven circumstantially from, among other things, the quantity of cocaine and the existence of implements such as scales commonly used in connection with the distribution of cocaine. See generally United States v. Marszalkowski, 669 F.2d 655, 662 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 167 (1982).

Defendant challenges primarily the sufficiency of the evidence of possession. She argues that she had just arrived home from the airport, and that she had had no time to come into possession of any cocaine. The government argues that the evidence is sufficient for the jury to have found defendant constructively possessed the cocaine. This Circuit defines constructive possession as follows: "Constructive possession consists of the knowing exercise of or the knowing power or right to exercise dominion and control over the substance." United States v. Knight, 705 F.2d 432, 433 (11th Cir.1983). Constructive possession need not be exclusive, Montes-Cardenas, 746 F.2d at 778, and can be proven circumstantially by ownership, dominion, or control over the premises on which the substance is located. United States v. Glasgow, 658 F.2d 1036, 1043 (5th Cir. Unit B 1981). The following evidence was introduced at trial: defendant was the sole owner of the house; cocaine was found under the couch on which she was lying when the police entered the house; cocaine was found in an urn in her bedroom; a plastic bag containing money and trace amounts of cocaine were found under her bed; equipment and material for diluting the quality of the cocaine were found in the dining room; and a sophisticated scale containing trace amounts of cocaine was found in plain view in the kitchen. Although she did not have exclusive control over the premises, ¹ she did own and exercise dominion and control over the house. We hold these facts are sufficient for the jury to have found she constructively possessed the cocaine. See, e.g., United States v. Morales, 868 F.2d 1562, 1573 (11th Cir.1989) (person who leased apartment had constructive possession over drugs found in apartment because he had dominion and control over the premises).

The evidence is also sufficient for the jury to have found knowledge and intent to distribute, the other two elements of a section 841(a)(1) offense. Constructive possession includes a knowledge element. Knight, 705 F.2d at 433. The quantity of the cocaine, the sophisticated scale, and the equipment used to dilute the purity of the cocaine and to separate large quantities into smaller quantities for retail purposes are sufficient for the jury to have found intent to distribute. Consequently, we affirm defendant's conviction under section 841.

B. Section 924

Section 924(c)(1) provides in pertinent part:

Whoever, during and in relation to any ... drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years ...

(emphasis added). It is clear that defendant committed the predicate offense of engaging in a drug trafficking crime. See 18 U.S.C.A. Sec. 924(c)(2) (defining drug trafficking crime); see also United States v Cruz, 805 F.2d 1464, 1475 n. 12 (11th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987). The question we must address is whether the evidence is sufficient for the jury to have found defendant used a firearm "during and in relation to" the drug trafficking offense.

The government had the burden of proving both that the defendant used the firearms and that the use was in relation to the drug trafficking offense. To show use, the government did not need to prove that the firearms were fired, brandished, or even displayed during the drug trafficking offense. United States v. Meggett, 875 F.2d 24 (2d Cir.1989). We agree with the defendant, however, that the mere presence of a firearm would not constitute use within the meaning of section 924(c)(1). See United States v. Phelps, 877 F.2d 28 (9th Cir.1989); United States v. Ramos, 861 F.2d 228, 231 (9th Cir.1988) (person does not violate section 924(c)(1) by inadvertently carrying a firearm in an unrelated situation). Rather, possession of a firearm constitutes use in relation to the drug trafficking offense if the possession is an integral part of, and facilitates the commission of, the drug trafficking offense. Meggett, supra; see also United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir.1988); United States v. Brockington, 849 F.2d 872, 876 (4th Cir.1988); United States v. Matra, 841 F.2d 837, 842-43 (8th Cir.1988).

Other circuits have held that evidence of weapons found with a significant quantity of illegal drugs and drug distribution paraphernalia is sufficient to submit to the jury the question of whether the guns were used during and in relation to a drug trafficking crime. In United States v. LaGuardia, 774 F.2d 317 (8th Cir.1985),...