U.S. v. Posner, 87-6149

• Decision Date: 16 March 1989
• Docket Number: No. 87-6149,87-6149
• Citation: 868 F.2d 720
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Irwin POSNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 720

868 F.2d 720

UNITED STATES of America, Plaintiff-Appellee, v. Irwin POSNER, Defendant-Appellant.

No. 87-6149.

United States Court of Appeals Fifth Circuit.

March 16, 1989.

Kent Schaffer, Michael Ramsey, Houston, Tex., for I. Posner.

Scott Behnke, Frances H. Stacy, Paula C. Offenhauser, Asst. U.S. Attys., Henry Oncken U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GARZA, JOLLY and JONES, Circuit Judges.

GARZA, Circuit Judge.

Appellant was convicted in district court for the Southern District of Texas, under the Controlled Substances Act, 21 U.S.C. Sec. 841(a)(1), for knowingly or intentionally possessing in excess of 100 kilograms of marihuana, with intent to distribute. Appellant was also convicted of attempting or conspiring to possess more than 100 kilograms of marihuana, with intent to distribute, under 21 U.S.C. Sec. 846. He argues that the evidence presented at trial was insufficient to support the jury's verdict that he possessed marihuana, either as an aider and abettor or as a co-conspirator. In addition, he argues that the district court denied him his right to allocution, thereby entitling him to a resentencing hearing, and that the trial judge improperly imposed a term of mandatory supervision as part of his sentence. We conclude that the evidence was sufficient to support the jury's verdict on the possession count of appellant's conviction. We are convinced, however, that he was denied his right to allocution and that he must be remanded to the district court for a new sentencing hearing. It is also clear that the trial judge properly assessed an eight-year special parole term but that the Judgment and Commitment Order reflects a sentence of eight years of mandatory supervision. We therefore affirm in part, reverse in part and remand for a resentencing hearing and for correction of the clerical error appearing on the Judgment and Commitment Order.

Background

On February 5, 1987, agents from the Drug Enforcement Agency ("DEA") completed a "reverse sting operation" against appellant Irwin Posner and appellant's brother, Robert Posner. As the result of negotiations that spanned approximately ten months, the Posners had agreed to purchase 250 pounds of marihuana from agent Michael Spasaro for $75,000 in cash. The culmination of the operation occurred in the parking lot of the Hilton Hotel in Houston, Texas. On the day of appellant's arrest, DEA agent Nicholos Console, an assistant to agent Spasaro in the undercover operation, accepted possession of a van that the Posners had rented and loaded it with 250 pounds of marihuana from the DEA vault. He then drove the van to the Hilton Hotel parking lot where he met Gary Zbanik, a co-conspirator of the Posners. Zbanik inquired of agent Console whether it was "all there," whereupon agent Console opened the back door of the van and split open one of the cardboard boxes containing the marihuana. Zbanik stated that it looked fine and agent Console handed him the keys. Zbanik then entered the van and settled into the driver's seat. According to agent Console's trial testimony, as Zbanik attempted to start the vehicle agent Console gave the signal and the seven or eight officers who had been "staking out" the parking lot arrested Zbanik at approximately 4:15 p.m. Robert Posner was arrested inside his hotel room. Appellant Irwin Posner, who had been observed leaving the hotel at about 3:30 p.m., was arrested one mile from his residence at approximately 4:30 p.m..

Appellant was indicted for attempting or conspiring to possess, with intent to distribute, in excess of 100 kilograms of marihuana in violation of 21 U.S.C. Sec. 846 (1970). ¹ He was also indicted for knowingly or intentionally possessing in excess of 100 kilograms of marihuana, with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (1970). ² Robert Posner pleaded guilty to the marihuana counts against him. Irwin Posner's separate trial commenced on September 14, 1987 and he was convicted on September 21, 1987.

The trial court sentenced appellant to twelve years imprisonment on each of the two counts upon which he was convicted, the sentences to run concurrently. In addition, he was assessed an eight-year special parole term. The Judgment and Commitment Order, however, reflects that he was sentenced to eight years of mandatory supervision.

Discussion

Possession.

Appellant asserts that we must reverse his conviction because the evidence was insufficient to establish his guilt for the substantive offense of possession of marihuana with intent to distribute it. He argues that his co-conspirator, Zbanik, was arrested before possession of the van or the contraband ever passed from the DEA agents to Zbanik. Appellant urges that it was not possible for him to have aided and abetted each element of the substantive offense because Zbanik never reduced the contraband to possession.

In support of this position, appellant cites the Ninth Circuit case United States v. Batimana, 623 F.2d 1366 (9th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 617, 66 L.Ed.2d 500 (1980). In Batimana, a very tightly controlled police reverse sting operation resulted in the conviction of three defendants for possession with intent to distribute a certain quantity of heroin. The defendants had agreed to purchase 500 grams of heroin from an individual who turned out to be a DEA confidential informant. They met the informant at the Los Angeles airport and drove with him to the Mariott Hotel where they all proceeded to one of the hotel rooms. The heroin was later delivered to the room and the police arrested the defendants shortly thereafter. The Ninth Circuit reversed the convictions of two of the defendants, finding that there was insufficient evidence that either of them had "asserted dominion and control over the heroin," even though one of the defendants had attempted to place his hands inside the bag of heroin and the other one had placed the chain lock on the door and then walked across the room to look at the heroin. Under the rule in the Batimana case, the exercise of dominion and control of narcotics requires an ability " 'to assure production, without difficulty to a customer.' " Batimana, 623 F.2d at 1369 (quoting United States v. Barnett, 468 F.2d 1153, 1155 (9th Cir.1972)). Appellant urges this court to adopt a similar rule.

At the outset we observe that the standard of review in a criminal case where the sufficiency of the evidence is challenged is whether the jury could have reasonably found that the evidence establishes guilt beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). In addition, we must view the evidence and all reasonable inferences in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Thompson, 603 F.2d 1200, 1204 (5th Cir.1979).

Possession of a controlled substance with the intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1), may be either actual or constructive. United States v. Martinez, 588 F.2d 495, 498 (5th Cir.1979). Constructive possession is defined as "ownership, dominion or control over the contraband itself, or dominion or control over the premises or the vehicle in which the contraband was concealed." Id. (quoting United States v. Salinas-Salinas, 555 F.2d 470, 473 (5th Cir.1977)).

The Third Circuit has found constructive possession of contraband to exist under circumstances remarkably similar to those presented here. In United States v. Martorano, 709 F.2d 863 (3rd Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983), defendant Martorano and several co-conspirators agreed to purchase approximately 200 gallons of phenyl-2-propanone ("P-2-P") from an undercover agent named Ronald Raiton. Martorano and Raiton devised a plan whereby Raiton would rent a van, place the P-2-P in the back, and park it near Philadelphia's Rittenhouse Square. The two were then to meet in the Square where Raiton would turn over to Martorano the keys and registration to the van in exchange for a paper bag containing payment for the P-2-P.

Raiton rented the van according to the agreement; however, he delivered the van to FBI agents who loaded it with 52 gallons of P-2-P that had been acquired from a federal storage facility. The agents then placed a specially purchased padlock on the van's rear doors and drove it to a location near Rittenhouse Square where they parked and maintained uninterrupted surveillance of it.

The agents gave the keys to the van and to the padlock to Raiton and told him where the van was parked. Raiton then went to Rittenhouse Square and met Martorano as scheduled. Martorano handed Raiton the cash and Raiton gave the keys to the van and padlock to Martorano along with a slip of paper indicating the van's location. Martorano later gave these keys to a co-conspirator named DeTullio who went to the van, unlocked and entered it, inserted the key into the ignition, and sat in the driver's seat for approximately one to one-and-a-half minutes before he was apprehended by FBI agents and the Philadelphia police.

The court of appeals interpreted the phrase "dominion or control" to mean "the ability to reduce an object to actual possession." Id. at 869. It concluded that Martorano acquired contructive possession of the contraband when he took actual possession of the keys to the van and to the padlock. He remained in constructive possession, according to the court, after he gave the keys to his agent, who subsequently took actual possession of the van. Id. That the conspirators were arrested before they had the opportunity to dispose of the P-2-P did not negate their possession of it with the intent to distribute it.

We recently cited with approval the rules set out in the M...