U.S. v. Staten

• Decision Date: 09 May 1978
• Docket Number: No. 76-1747,76-1747
• Citation: 189 U.S.App.D.C. 100,581 F.2d 878
• Parties: UNITED STATES of America v. Bobby STATEN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 878

581 F.2d 878

189 U.S.App.D.C. 100

UNITED STATES of America v. Bobby STATEN, Appellant.

No. 76-1747.

United States Court of Appeals District of Columbia Circuit.

Argued April 22, 1977.

Decided May 9, 1978.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal Action No. 76-245).

Matthew W. Black, Jr., Washington, D. C. (appointed by this Court), for appellant.

Richard H. Saltsman, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Edward C. McGuire, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before ROBINSON, MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

At a jury trial in the District Court, appellant was convicted of possession of marijuana ¹ and of possession of heroin and methylphenadate with intent to distribute. ² He now presses two claims for our consideration. One is that the evidence was legally insufficient to prove that he possessed the drugs, and resultantly that the court should have granted his motion for a judgment of acquittal. ³ The other is that the court's instruction authorizing the jury to predicate guilt on a finding of aiding and abetting the possession was improper and prejudicial. ⁴ We perceive no error in either respect and accordingly affirm.

I

The events generating the prosecutions are well nigh undisputed. ⁵ Armed with a search warrant, issued upon an affidavit alleging drug-peddling by one Bobby Arnold, ⁶ several police officers arrived at an apartment to execute the search. One officer, in plain clothes, knocked on the door and asked the woman answering, later identified as Versinia Thompkins, whether "BOBBY" WAS THERE. ⁷ MS. THOMPKINS rePlied in the negative AND ASked whether the officer wanted anything. At this point another officer, previously concealed in the hallway, stepped to the door, announced that they were police with a warrant, and demanded entry. Ms. Thompkins slammed the door immediately, turned the locks, and refused further response. ⁸ By use of a sledgehammer the door was broken, and entry was gained about five minutes later. ⁹

The apartment was a one-room affair, with a living area on one side and a kitchen area on the other. ¹⁰ Once inside, the officers saw Ms. Thompkins standing near the kitchen sink, the garbage disposal running. ¹¹ Appellant was standing approximately five feet away near the kitchen table. ¹² One of the officers turned off the disposal and another arrested the two occupants. ¹³

The officers then proceeded to search. Two $20 bills, shredded plastic, and a plastic bag containing 3,400 milligrams of 2.5% Heroin were taken from the disposal. ¹⁴ Small plastic bags, of the type used in the retailing of narcotics, ¹⁵ protruded from an envelope on the kitchen table. ¹⁶ Another envelope thereon contained adding machine tapes, personal papers and receipts in Bobby Arnold's name. ¹⁷ Notebooks and a pad of paper all with figures in dollar amounts ¹⁸ $35 in cash and an envelope enclosing methylphenadate were also lying on the table. ¹⁹ Atop a cabinet in the kitchen was an envelope of marijuana, ²⁰ along with a strainer, spoons and playing cards. ²¹ A breadbox located on top of the refrigerator yielded $600 in cash. ²²

When the officers examined male and female clothing hanging in a closet, they uncovered two tinfoil packets of 2.9% Heroin in a leather coat ²³ and a bag of 3.1% Heroin in another coat. ²⁴ In a third coat were a plastic vial of methylphenadate and a tinfoil packet of 2.6% Heroin. ²⁵ A plastic bottle containing 310 tablets of methylphenadate resided on a closet shelf, ²⁶ as did appellant's "North Carolina special identification card." ²⁷ Also found inside the closet were several albums of photographs some of Ms. Tompkins together with Bobby Arnold and other persons which had been taken inside the apartment. ²⁸

Searching appellant, the officers removed $65 in wet currency and a wet bag containing 3,400 milligrams of a 2.1% Heroin mixture from his lower right jacket pocket. ²⁹ In an upper pocket were $100 in dry currency ³⁰ and a key to one of the two locks on the door to the apartment. ³¹ Testimony established the value of all of the seized drugs at more than $2,000, and the quantity in excess of that normally kept for personal use. ³²

II

Possession of a forbidden substance is an essential element of each of the offenses of which appellant was convicted. ³³ Appellant's first contention is that the Government's evidence was insufficient to connote his possession of any of the drugs found in the apartment other than those removed from his person. In support of that claim, appellant argues that the proven facts do not associate him with the apartment or its tenants ³⁴ prior to the day of arrest. ³⁵ Both at the close of the Government's case in chief and again after presentation of his own evidence, appellant moved for a judgment of acquittal. Each time the trial judge, deeming the evidence deserving of submission to the jury, denied the motion, and the appellant challenges these rulings on this appeal.

The governing procedural principle is well settled. A motion for a judgment of acquittal, we have said, "Must be granted when the evidence, viewed in the light most favorable to the Government, is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime." ³⁶ That guilt must be established beyond a reasonable doubt is " 'a basic principle in our jurisprudence,' " ³⁷ and unless that result is possible on the evidence, " 'the judge must not let the jury act; he must not let it act on what would necessarily be only surmise and conjecture, without evidence.' " ³⁸ But, as quite recently we re-emphasized, " '(i)t is only when there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt that the judge may properly take the case from the jury.' " ³⁹ And "(i)n applying this standard no legal distinction is made between circumstantial and direct evidence." ⁴⁰

To be sure, appellant had in his pockets only one of the three drugs that he was charged with possessing, ⁴¹ and only part of the sizeable cache in the apartment. But whether there was error in the denial of his motions depends upon whether the Government's evidence tended plausibly to indicate his criminal involvement with more. ⁴² That, we think, it did.

The possession vital to the convictions under review may, in familiar language, be either actual or constructive. ⁴³ It thus is unnecessary to show that the accused had the drug on his person or within his immediate reach; ⁴⁴ it is enough that he "was knowingly in a position or had the right to exercise dominion and control over" it, ⁴⁵ either directly or through others. ⁴⁶ Possession in that sense suffices though it is jointly shared, ⁴⁷ and it may be established by circumstantial as well as direct evidence. ⁴⁸

We are aware of criticisms on grounds of imprecision of the constructive-possession doctrine, thus formulated, as a measure of the legal sufficiency of evidence to demonstrate drug-possession. ⁴⁹ We think, however, that this adjudicative standard becomes acceptable when it is realized that the critical inquiry for judges is whether the factfinder can reasonably conclude from the proof that the accused likely had some appreciable ability to guide the destiny of the drug. ⁵⁰ Even were we free to do otherwise, ⁵¹ we would adhere to that concept in preference to artificial rules restricting evidence-sufficiency rules that would inevitably invade the traditional province of the jury to assess the significance of circumstantial evidence, and to determine whether it eliminates all reasonable doubt as to whether the accused had that power.

The judge's function may extend, of course, to any of an almost infinite variety of fact patterns, some decidedly more difficult to appraise than others. Perhaps the easiest is encountered when the drug is found on premises occupied by the accused and no one else, ⁵² a situation normally conducive to an inference that he had knowledge of and control over it, even when concealed on the premises. ⁵³ The judge's task intensifies, however, when the accused's relationship to the premises is shared with others, ⁵⁴ and consequently the problems of knowledge and control intensify. ⁵⁵ This court has never held that nonexclusivity in the occupancy of the premises is fatal to the Government's cause, ⁵⁶ nor do we so rule today. Rather, in full recognition of the increased difficulties that the Government then faces, we reiterate that the sufficiency of the evidence for jury consideration depends upon its capability plausibly to suggest the likelihood that in some discernible fashion the accused had a substantial voice vis-a-vis the drug. ⁵⁷

Several usable guidelines emerge from the decided cases. Mere presence of the accused on the premises, or simply his proximity to the drug, does not itself enable such a deduction. ⁵⁸ Nor is mere association with another, standing alone, enough even when the other is known to possess the drug. ⁵⁹ But, as has frequently been held, presence, proximity or association may establish a prima facie case of drug-possession when colored by evidence linking the accused to an ongoing criminal operation of which that possession is a part. ⁶⁰ We agree, and we think this principle intercepts the case at bar.

An integral part of the Government's presentation was proof that appellant was in the apartment in company with a regular occupant ⁶¹ alongside contraband drugs and drug-distributing paraphernalia openly strewn about. ⁶² Beyond that, in total evidentiary context the jury quite reasonably could infer that neither his presence in the premises, his proximity to the drugs nor his association with Ms. Thompkins was merely passive or innocent....