U.S. v. Reese

• Decision Date: 05 October 1977
• Docket Number: No. 76-1523,76-1523
• Citation: 183 U.S. App. D.C. 1,561 F.2d 894
• Parties: , 2 Fed. R. Evid. Serv. 82 UNITED STATES of America v. Thomas E. REESE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 894

561 F.2d 894

183 U.S.App.D.C. 1, 2 Fed. R. Evid. Serv. 82

UNITED STATES of America v. Thomas E. REESE, Appellant.

No. 76-1523.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 3, 1976.

Decided June 6, 1977.

As Amended July 7, 1977.

Rehearing Denied Oct. 5, 1977.

Appeal from the United States District Court for the District of Columbia (D. C. Criminal 75-734)

Daniel B. Edelman, Washington, D. C. (appointed by this court) for appellant.

Neil A. Kaplan, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, William D. Pease and David R. Addis, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before BAZELON, Chief Judge, and LEVENTHAL and MacKINNON, Circuit Judges.

Opinion for the court filed by MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

Appellant was indicted for possession of 24,000 milligrams of heroin with intent to distribute, 21 U.S.C. § 841(a) (1970), and possession of heroin, D.C.Code § 33-402 (1973). The charge of simple possession was dismissed at the Government's motion and appellant was convicted of the remaining charge following a jury trial. He was sentenced to imprisonment for two to six years with a special parole term of three years. In this appeal, the conviction is attacked on several grounds. We affirm.

Appellant was observed by police officers at 11:45 P.M. on September 24, 1975, driving on Georgia Avenue, N.W., on the wrong side of the median. Appellant's vehicle nearly collided with the police car. When they turned around and pursued him, lights and siren on, appellant took evasive action. When his car was stopped, appellant initially started to walk away from the police cruiser. When asked for a driver's license and registration, he retrieved the registration and a carbon copy of a rental agreement for the automobile. ¹ One officer testified that Reese obtained the documents from the glove compartment, while the other whose view was obstructed testified that they came from the sun visor. Appellant was unable to produce a driver's license and was placed under arrest for operating a motor vehicle without a permit.

The rental agreement indicated that the automobile was a rental car, apparently leased by a woman. ² An officer entered the car to take it to the station, and when he slammed the car door the glove compartment "fell open" revealing $600 in currency and a paper bag containing small pieces of white paper, which he suspected to be numbers slips. At the station, the glove compartment contents were examined more closely. The paper bag was found to contain a number of glassine envelopes, twenty of which contained a white powdery substance, later analyzed as 24,232 milligrams of 5.2 percent heroin ³ having a street value of $3,000.

Appellant told one of the arresting officers that he was on his way to Virginia from New Jersey and had become lost, taking a wrong turn into the District of Columbia on Georgia Avenue. Later that day, he told Detective Isaac that he had no friends or relatives in the District. He also stated that he had "knowledge of illicit narcotics trafficking in the States of New York and New Jersey," but not in the District of Columbia. ⁴ In looking through appellant's personal effects, however, the detective found a list of names, addresses and telephone numbers of several people who lived in the District of Columbia.

Appellant testified and controverted the Government's evidence in several respects. He stated that one Roger Ugaro, his sister's fiance, who lived in East Orange, New Jersey, had "just let (him) . . . use (the car)." ⁵ Ugaro had told him that the registration was over the sun visor. Appellant admitted that he had discussed his knowledge of narcotics traffic with Officer Isaac, but stated that he was merely discussing public knowledge. He stated, however, that Ugaro was involved with narcotics and he thought that Ugaro used heroin. ⁶ Appellant denied any knowledge of the heroin in the glove compartment and denied attempting to evade police. He stated that he had retrieved the registration from over the sun visor. Appellant also denied stating that he did not know anyone in the District, and stated that he did in fact know people here. He said that when he left New Jersey he had his driver's license, a credit card, and $13 in cash, and that these items might be in his sweatshirt in the back of the car. He was impeached by a 1966 armed robbery conviction.

On rebuttal, the officer who had searched the car testified that he had searched thoroughly and found no money (other than the $600 in the glove compartment), credit cards or driver's license, and that the sweatshirt had no pocket. In oral argument the prosecutor pointed out that driving from New Jersey over toll roads one would need money and this indicated that Reese would have had to open the glove compartment where the only money (and narcotics) were. Hence he would know of the presence of the narcotics.

I.

At the close of the Government's case in chief, appellant moved for a judgment of acquittal on the ground that the Government's evidence did not establish possession with intent to distribute. ⁷ Appellant contends that the district court's denial of this motion was error.

Appellant challenges only the district court's conclusion that there was sufficient evidence of constructive possession to go to the jury. ⁸ The contrary conclusion is required, he argues, by the trilogy of United States v. Watkins, 171 U.S.App.D.C. 158, 519 F.2d 294 (1975); United States v. Holland, 144 U.S.App.D.C. 225, 445 F.2d 701 (1971), and United States v. Bethea, 143 U.S.App.D.C. 68, 442 F.2d 790 (1971). Particularly apposite, appellant argues, is Bethea, where the appellant was a front-seat passenger in a car in which heroin capsules were found under the back seat, where another passenger was seated. We found the evidence of possession in Bethea insufficient to survive a motion for judgment of acquittal. Similarly, in Watkins and Holland, denials of motions for judgment of acquittal were reversed where there was no evidence that the appellants had any control over apartments in which narcotics were found.

These decisions do not control the disposition of this case. It is only when there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt that a motion for judgment of acquittal may be granted. In passing upon the motion, the court must view the evidence in the light most favorable to the Government, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact. United States v. Fench, 152 U.S.App.D.C. 325, 333, 470 F.2d 1234, 1242, cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973); United States v. Lumpkin, 145 U.S.App.D.C. 162, 168, 448 F.2d 1085, 1091 (1971). The evidence here showed that, unlike the appellants in Bethea, Holland, and Watkins, the appellant was alone in the car and had sole control over it. The heroin was within his arm's reach. Appellant attempted to evade police after a minor traffic violation and then tried to walk away from police after his car was stopped. There was testimony that he had retrieved the car's registration from the glove compartment where the drugs and a substantial sum of money were found. He admitted knowledge of narcotics traffic, at least in New Jersey and New York. A book of names and addresses of Washington people was found in the car, suggesting that appellant may have had a business purpose for his trip to Washington, and the heroin was packaged in 20 glassines as if for sale. The fact that appellant was not the owner or lessor of the car is not alone sufficient to overcome the weight of evidence indicating that appellant possessed the heroin. See, e. g., United States v. Lacouture, 495 F.2d 1237 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974); United States v. Gonzalez, 456 F.2d 1067 (9th Cir. 1972) (per curiam). As the Fifth Circuit stated,

We are unprepared to hold that, as a matter of law, one may insulate himself from the drug laws by employing a borrowed vehicle and concealing the contraband thoroughly. . . . (The appellant) was in sole control, and the jury doubtless thought it unlikely that such a large amount of this drug would have been carelessly left concealed in the car by a third person.

495 F.2d at 1239. We conclude that the trial court properly allowed the present case to go to the jury.

II.

Appellant next argues that the trial court improperly excluded Roger Ugaro from testifying, in violation of appellant's Sixth Amendment right to compulsory process. Appellant contends that the district court did not adequately examine the basis for Ugaro's asserted self-incrimination privilege, and confused the privilege of a criminal defendant with that of a witness. A defendant, appellant argues, may assert a blanket privilege and refuse to testify altogether. In contrast, appellant contends, a witness must take the stand and assert the testimonial privilege in response to particular questions. Appellant acknowledges that the district court may bar a witness from testifying in the jury's presence if the court properly concludes that the witness will assert privilege as to essentially all questions which may be put to him, see e. g., United States v. Lacouture, supra; United States v. Johnson, 488 F.2d 1206 (1st Cir. 1973). We have held in certain cases that the jury may not draw inferences from a refusal to testify, and that a defendant has no right to put a witness on the stand simply to require him to assert his Fifth Amendment privilege before the jury. See, e. g., Bowles v. United States, 142 U.S.App.D.C. 26, 32, 439 F.2d 536, 542 (1970) (en banc ), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971); Fletcher v. United States, 118 U.S.App.D.C. 137, 332 F.2d 724 (1964). In this...