U.S. v. Zavala Maldonado

• Decision Date: 05 November 1993
• Docket Number: No. 92-2361,92-2361
• Citation: 23 F.3d 4
• Parties: UNITED STATES of America, Appellee, v. Rafael Angel ZAVALA MALDONADO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 4

23 F.3d 4

UNITED STATES of America, Appellee, v. Rafael Angel ZAVALA MALDONADO, Defendant, Appellant.

No. 92-2361.

United States Court of Appeals First Circuit.

Heard Nov. 5, 1993.

Decided April 22, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied June 28, 1994.

Luis Rafael Rivera, Hato Rey, PR, for appellant.

Jeanette Mercado Rios, Asst. U.S. Atty., Criminal Div., with whom Guillermo Gil, U.S. Atty., and Jose A. Quiles-Espinosa, Sr. Litigation Counsel, Hato Rey, PR, were on brief, for the U.S.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

On July 2, 1992, a jury convicted Rafael Angel Zavala Maldonado ("Zavala") of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). ¹ On appeal, Zavala argues that the evidence was insufficient to support the conviction and that defense counsel's closing argument was improperly hampered by objections from the prosecutor. For the reasons set forth, we affirm.

I.

The first ground of appeal requires an understanding of the evidence and, given the conviction, we recite the evidence in the light most favorable to the government. United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir.1991). In January 1992, Ruben de los Santos ("Santos"), a seaman serving on board the M/V Euro Colombia, was in the port of Cartagena, Colombia. There, a drug dealer gave Santos sixteen packages of cocaine, amounting to a total of eight kilograms, and asked Santos to deliver them as instructed when the ship docked at the port of Ponce, Puerto Rico.

Santos had earlier been approached by American law enforcement agents attached to the Customs Service, and he accepted the cocaine in Cartagena with the approval of the agents, who intended to track the drugs to their destination. Santos kept the drugs hidden during the voyage and, on arriving in Ponce, conferred immediately with the agents. Shortly thereafter, Santos under surveillance by federal agents and cooperating local police, went to the Hotel Melia in Ponce and asked at the front desk for Mr. Palestino. These last two steps complied with the instructions given to Santos in Catagena, by the dealer who had given him the cocaine, to deliver it to Palestino, at the Hotel Melia in Ponce.

When the clerk called from the desk to the room registered to Palestino, the defendant Zavala appeared and gestured to Santos to follow him to room 302. There Santos, who was carrying the cocaine in a bag, told Zavala that he had the drugs to be delivered to Palestino. Zavala said that he was a friend of Palestino and that Palestino would come to the hotel. Using a cellular telephone, Zavala then placed a call, purportedly to Palestino. Then at Santos' urging Zavala called a second time to ask Palestino to come quickly. Zavala asked Santos if they could put the cocaine in another hotel room, saying that he (Zavala) had other friends in the hotel, but Santos refused.

As time passed and Palestino still did not arrive, Santos became increasingly anxious and he proposed to Zavala that they go out of the room for a soda. Zavala agreed, Santos placed the bag with the cocaine in a closet or dressing room in room 302, and the two men left room 302 and entered the corridor. As they went down the stairs, the supervising customs agent detained them. When Santos explained that Palestino had still not arrived, Zavala was taken back to room 302 in custody accompanied by Santos and one or more agents. There were several more calls to the room purportedly from Palestino, two or three on the cellular telephone and one on the hotel telephone; in each case Santos told the caller that Zavala was out or otherwise occupied.

Shortly after the final call, the operation came to an end. Law enforcement agents, it appears, had seen a car, with the driver using a cellular telephone, circling around the hotel. The driver then parked and went into the hotel. He proceeded with another individual to one of the hotel rooms and entered. When agents then knocked on the door of this room, the individuals inside exited through a window. After a chase they were caught, and a search of their car yielded a loaded nine millimeter pistol and $6,305 in cash.

This final episode was described in testimony at the trial. So far as we know, neither the driver nor the other man with him was charged. Possibly the police thought that the evidence was not quite strong enough to prove their participation in the drug deal. Zavala, however, was charged as previously described, and convicted on one count: possession with intent to distribute.

II.

Zavala's primary claim is that an acquittal should have been ordered on grounds of insufficient evidence to prove possession. We begin by noting that on this record Zavala was surely guilty of a closely-related offense, namely, conspiracy to possess drugs with intent to distribute them. 21 U.S.C. Secs. 841, 846. An agreement with the absent Palestino is readily inferred from Zavala's statements and the telephone calls, and the object of the agreement--transferring a dealer-sized quantity of cocaine to Palestino--is no less apparent. A slightly more inventive offense would be a charge of aiding and abetting Palestino's attempt to possess with intent to distribute, under 18 U.S.C. Secs. 2, 841. See, e.g., United States v. Kottmyer, 961 F.2d 569 (6th Cir.1992).

But Zavala was not charged with conspiracy, or with aiding and abetting an attempt, nor did a jury convict him of such crimes. The formalities of indictment and jury trial are prescribed by the Constitution. U.S. Const., Amends. V, VI. Further, given that these offenses were not charged, it is hardly sufficient to say that this record contained evidence to support such a conviction for such an offense. We do not know what evidence the record might contain if the defendant had been given notice that he was charged with a quite different offense (say, conspiracy) instead of, or in addition to, the offense charged (here, possession).

Thus the conviction for possession can stand only if a reasonable jury could find that Zavala did possess the cocaine within the meaning of 21 U.S.C. Sec. 841. If the statute used the term "possess" as a lay juror might understand it prior to instructions from the judge, it might be a stretch to say that Zavala "possessed" the cocaine in the bag. There is no evidence that he even touched the bag or saw the cocaine or that he was ever alone in the room with it or that he had a practical opportunity to remove it from the hotel. These facts explain why Zavala's main argument on appeal is that his relationship to the cocaine cannot be deemed "possession."

The difficulty with the argument is that the concept of possession in the drug statute comes freighted with a history of interpretation. Congress was here concerned not with "possession" in a narrowly focused situation (e.g., actual possession of a weapon on an aircraft) but with possession of drugs incident to their distribution. There is every reason to think that Congress wished to cast its net widely so that, assuming mens rea, a defendant proximately associated with the drugs would be reached by the statute. The prevailing interpretation of "possession," in the framework of the drug statutes, reflects that broad reach.

Under settled law, "possession" includes not merely the state of immediate, hands-on physical possession but also "constructive" possession, including possession through another, and joint as well as exclusive possession. Further these concepts can be combined so that, for example, "joint constructive possession" is quite as bad as having the drugs exclusively in one's own pocket. E.g., United States v. Batista-Polanco, 927 F.2d 14, 18-19 (1st Cir.1991). These concepts of constructive and joint possession are almost uniformly reflected in both decisions ² and in standard instructions. ³

"Constructive" possession is commonly defined as the power and intention to exercise control, or dominion and control, over an object not in one's "actual" possession. E.g., United States v. Acevedo, supra, 842 F.2d at 507. The "constructive possession" label may confuse jurors at first--drug trial juries routinely ask to be reinstructed on the definition of possession--but the underlying idea is important and not so difficult to grasp. Courts are saying that one can possess an object while it is hidden at home in a bureau drawer, or while held by an agent, or even while it is secured in a safe deposit box at the bank and can be retrieved only when a bank official opens the vault. The problem is not so much with the idea as with deciding how far it should be carried.

Here, we think is at least arguable that Zavala was not shown to possess the drugs while he and Santos were in the room together. Santos apparently had exclusive control of the bag during this period. It contained drugs for which he had not been paid; Zavala was not the named person to whom it was to be delivered; and Santos refused Zavala's suggestion that the bag be entrusted to Zavala's friends in another room. If the agents had broken into the room and arrested Zavala at this point, a directed verdict of acquittal might have been required.

But once both parties departed from the room leaving the drugs inside, the situation altered. It is not that Zavala got closer to the drugs--indeed, he moved further away from them--but rather that two other circumstances changed: first, Santos surrendered his actual possession of them; and second, with the acquiescence of both parties, the drugs were secured in Zavala's room. In the context of this case, we think that a jury could then find both requisites of constructive possession: that Zavala had sufficient power to control the drugs and an intention to exercise that power.

Turning first to the power to exercise control, we begin with the fact that the drugs were left in Zavala's room with his...