U.S. v. Reece

Decision Date14 June 1996
Docket NumberNos. 95-3214,95-3391,s. 95-3214
Citation86 F.3d 994
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael Wayne REECE, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Submitted on the Briefs: 1

Stephen W. Kessler, Topeka, Kansas, for Defendant-Appellant.

Jackie N. Williams, United States Attorney, Randy M. Hendershot, Assistant United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Michael Wayne Reece appeals from his conviction of possession with intent to distribute cocaine base. 21 U.S.C. § 841(a)(1). The jury acquitted him of possession with intent to distribute marijuana. He was sentenced to 262 months imprisonment and a period of four years supervised release. Mr. Reece's initial notice of appeal was filed pro se. He is now represented by counsel. Our jurisdiction arises under 18 U.S.C. § 1291 and we reverse.

On December 10, 1994 the vehicle driven by Mr. Reece and in which Scott Clift was a passenger was pulled over by Officers Voigt and Patterson for failing to signal a lane change. Officer Patterson approached the passenger side of the vehicle, and noticed that Mr. Clift had in his possession two hand-rolled cigarettes and a bag that contained a green leafy substance. Mr. Clift was removed from the vehicle and handcuffed, and a search of his pants and coat pockets revealed what was later determined to be 11.28 grams of marijuana and three pieces of crack cocaine which totalled 13.39 grams. The marijuana was divided in two separate bags, each of which additionally contained, respectively, $225 and $180. A search of Mr. Reece revealed no evidence of narcotics or other contraband. A subsequent search of the vehicle revealed nearly $2700 located in the glove compartment. At trial, Mr. Clift testified that the narcotics and cash were his, that he had placed the cash in the glove compartment in an effort to conceal it as the vehicle was approached by the officers, and that Mr. Reece had no knowledge that he was in possession of the narcotics or the cash. II R. 134-35.

Following the discovery of the contraband, Mr. Reece and Mr. Clift were placed in the back seat of the police cruiser where, unknown to them, a recorder was activated. The tape recording, which was offered and admitted into evidence at trial, recorded Mr. Reece's expression of concern that Mr. Clift take responsibility for the contraband and his question to Mr. Clift as to whether all the contraband had been discovered. Mr. Reece also indicated concern over the confiscation of his personal belongings. In addition to the tape recording, evidence of Mr. Reece's prior state conviction pursuant to a separate arrest by Officers Voigt and Patterson was admitted. Mr. Reece was carrying a quantity of cocaine and cash when the prior arrest occurred.

On appeal, Mr. Reece maintains that there was insufficient evidence to support his conviction. Specifically, he contends that the government failed to present evidence as to his actual or constructive possession of the contraband. He additionally maintains that the district court erred in admitting evidence of his prior state conviction, and that the district court erred in giving an Allen instruction to the jury. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); United States v. Reed, 61 F.3d 803 (10th Cir.1995).

At the outset, we examine the question of whether Mr. Reece's conviction is supported by sufficient evidence. We review the evidence in the light most favorable to the government to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Jones, 44 F.3d 860, 864 (10th Cir.1995). To support a conviction of possession of narcotics with intent to distribute in violation of 21 U.S.C. § 841(a)(1), the evidence must prove beyond a reasonable doubt the following elements: "(1) the defendant knowingly possessed the illegal drug; and (2) the defendant possessed the drug with the specific intent to distribute it." United States v. Gonzales, 65 F.3d 814, 818 (10th Cir.1995). Possession may be either actual or constructive; "constructive possession may be found if a person knowingly has ownership, dominion or control over the narcotics and the premises where the narcotics are found." United States v. Jones, 49 F.3d 628, 632 (10th Cir.1995) (citation omitted). "Dominion, control, and knowledge, in most cases, may be inferred if a defendant has exclusive possession of the premises." United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994). Where possession is not clear, such as when the contraband may be attributed to more than one individual, constructive possession requires some nexus, link, or other connection between the defendant and the contraband. Id. The jury may draw reasonable inferences from direct or circumstantial evidence, yet an inference must amount to more than speculation or conjecture. Jones, 44 F.3d at 865.

It is clear that Mr. Reece was the driver of a car containing illegal narcotics. The record additionally reveals that Mr. Reece was...

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  • USA v. Jackson, Nos. 98-6487
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 2 Junio 2000
    ...drug with the specific intent to distribute it." United States v. Wood, 57 F.3d 913, 918 (10th Cir. 1995). See also United States v. Reece, 86 F.3d 994, 996 (10th Cir. 1996). Mr. Jackson was also charged under an aiding and abetting theory in Count 9. "Whoever ... aids, abets, counsels, com......
  • Smith v. State
    • United States
    • Court of Special Appeals of Maryland
    • 27 Agosto 2002
    ...was located, defendant's position in driver's seat was not sufficient to support conviction for possession). In United States v. Reece, 86 F.3d 994 (10th Cir.1996), the Tenth Circuit reversed Reece's conviction for possession with intent to distribute cocaine found on the person of a passen......
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    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 9 Julio 2002
    ...the fact that he jointly occupied an area where the contraband was recovered. See Taylor, 113 F.3d at 1146; see also United States v. Reece, 86 F.3d 994, 996 (10th Cir.1996) (finding evidence insufficient to support possession conviction where government only demonstrated that defendant dro......
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    • U.S. Court of Appeals — First Circuit
    • 7 Agosto 2007
    ...a litany of supposedly analogous cases in which findings of constructive possession were overturned. See, e.g., United States v. Reece, 86 F.3d 994, 996 (10th Cir.1996) (holding that "[w]here possession is not clear," possession requires "some nexus, link, or other connection between the de......
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