U.S. v. Zeigler
| Decision Date | 04 June 1993 |
| Docket Number | No. 91-3301,91-3301 |
| Citation | 994 F.2d 845,301 U.S.App.D.C. 298 |
| Parties | UNITED STATES of America v. Charmaine Y. ZEIGLER, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (90cr00482-02).
Jonathan S. Zucker, Washington, DC (appointed by this court) argued the cause and filed the brief, for appellant.
Barbara K. Bracher, Asst. U.S. Atty., Washington, DC, argued the cause, for appellee. With her on the brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, John R. Fisher and Thomas C. Black, Asst. U.S. Attys., Washington, DC.
Before: EDWARDS, D.H. GINSBURG, and RANDOLPH, Circuit Judges.
Opinion for the court filed by Circuit Judge RANDOLPH.
This appeal from a criminal conviction raises an old problem. The government's evidence falls short of proving guilt beyond a reasonable doubt. Nevertheless, the trial court denies the defendant's motion for judgment of acquittal. The defense puts on its case and the defendant takes the stand. The jury then returns a verdict of guilty. Perhaps the defendant's demeanor, itself evidence, caused the jury to infer that the truth was the opposite of what the defendant said. However, as Judge Learned Hand wrote in Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir.1952), the demeanor evidence has "disappeared." Should an appellate court nevertheless affirm on the supposition that the defendant's demeanor filled the gap in the government's proof; or should the court reverse because the record does not reveal sufficient evidence to support the conviction? We mentioned the issue in United States v. Jenkins, 928 F.2d 1175, 1178-79 (D.C.Cir.1991), but did not decide it.
Charmaine Y. Zeigler was tried before a jury for possessing with intent to distribute crack cocaine, 21 U.S.C. § 841(a) & (b)(1)(B)(iii); and for using and carrying firearms during and in relation to that offense, 18 U.S.C. § 924(c)(1). Her co-defendant, Devon A. Waite, faced these charges and the additional charge of knowingly receiving, possessing, and transporting firearms in interstate commerce after having been previously convicted of a felony. 18 U.S.C. § 922(g)(1).
The government's evidence showed that police officers executing a search warrant forcibly entered an apartment at 11 Galveston Place, Southwest. The apartment, formerly two units side by side, occupied the top floor of a small two story building. Facing the front of the building, Waite's bedroom had been the living room of apartment # 3, on the building's left side. A rear door in this room led to a hallway. Directly across the hallway was a kitchen, in the far left rear of the apartment. Down the hallway and adjacent to the kitchen was a bedroom. Apartment # 4, on the right side, had the same configuration, with a living room in the front; a laundry room (apparently a former kitchen) across the hallway in the right rear of the apartment; and an adjacent bedroom. The two apartments had been converted to one. The hallway in each, which separated the front rooms and the kitchen (or laundry room) and each apartment's bedroom in the rear, now ran the entire width of the apartment.
After the officers entered, they found three people inside, each of whom they placed in custody. The officers spotted Waite crossing the hallway between his bedroom and the kitchen, on the left side of the apartment. They found Zeigler in Waite's bedroom. A third individual, Angela Hicks, was in the bedroom of former apartment # 4, on the right side.
The search of Waite's bedroom turned up a small bag of marijuana on the headboard of the bed; a Ruger .22 caliber semiautomatic pistol on the floor behind a chair; $254 in cash and a money order on the dresser; also on the dresser, an ammunition pouch containing two speed loaders each with six rounds of .38 caliber ammunition. In the trash can in the kitchen across from Waite's bedroom was a loaded Sports Arms .38 caliber revolver.
Down the hallway, in the living room, the officers found $533 in cash under a seat cushion, a bag of marijuana, and 7 rounds of 9 millimeter ammunition in a teapot.
The door to the laundry room, in the right rear corner of the apartment opposite the living room, was locked with a hasp and a padlock. The officers ripped the lock from the door and entered. Inside was a washing machine and a maroon briefcase, locked with combination locks. The briefcase contained 5.5 grams of crack cocaine, a razor blade, a Walther PPK .38 caliber semiautomatic handgun, $740 in U.S. currency, and two money orders.
Apart from the clothes she was wearing and the bag of marijuana, the officers found no personal effects of Zeigler's in the apartment--no documents, personal papers, bills, extra clothing, or the like.
While the search was underway, the officers moved Zeigler, Waite, and Hicks to a couch in the living room, and asked each of them their name and where they lived. Zeigler identified herself and said she lived at "11 Galveston Place, Southwest."
After presenting this evidence, the government called Barbara Anderson, the owner of the apartment building. She testified that she rented the top floor of the building to Waite and collected the rent from him, either in cash or money orders. Anderson thought Zeigler "lived" there with Waite. She based this conclusion on her seven or eight visits to the building between the summer of 1990 and October 2, 1990, when the search took place. During these visits she saw Zeigler, although not each time. She also called Waite; Zeigler answered the telephone. On one occasion, Zeigler--in response to Anderson's question about a crib standing just outside Waite's bedroom--said she was pregnant. (The police did not find a crib in the apartment.) Anderson also believed that Waite had rented part of his apartment to another woman and that a George Pope also lived there for a time.
At the close of the government's case, 1 Zeigler (and Waite) moved, pursuant to Rule 29, Fed.R.Crim.P., for a judgment of acquittal. The district court summarily denied the motions.
Waite then put on his defense. He produced three witnesses to support his theory that the top floor apartment consisted of two distinct apartments, and that while the cocaine had been found in the right portion of the apartment, Waite exclusively occupied the left. Waite did not testify.
Zeigler took the stand in her defense. She admitted that the marijuana in Waite's bedroom was hers. She said that Waite was her boyfriend; that she had "been staying [at his apartment] off and on for two or three months"; that she stayed only in the portion formerly used as apartment # 3 and never ventured to the other side; and that Angela Hicks occupied the other side. According to Zeigler, she did her laundry at a laundromat with her mother, did not know there was a washing machine in the apartment, had never seen the door to the laundry room, and did not know who had the combination to the padlock on the laundry room door. She denied seeing any cocaine or guns in the apartment. When asked about the maroon briefcase, Zeigler said that she had never seen Waite with it but "Angie had a briefcase like it." She disclaimed any knowledge of the combinations to the locks on the briefcase.
Zeigler's parents also testified. According to her mother, Zeigler stayed at Waite's apartment only a few nights a week. On her three visits to Waite's apartment, her daughter and Waite were occupying only the left side of the apartment. Zeigler's father testified that his daughter lived with him during August and September of 1990, although she did not spend every night at home.
The jury acquitted Zeigler (and Waite) of possession with intent to distribute and of possession of a firearm in relation to that offense. The jury convicted Zeigler (and Waite) of the lesser included offense of possession of a controlled substance. 21 U.S.C. § 844(a). Waite was also convicted of one count of unlawful possession of a firearm.
At the close of evidence, Zeigler had renewed her motion for a judgment of acquittal, as had Waite. After the verdict the district court denied the motions in a memorandum opinion. As to Zeigler, the court stressed her relationship with Waite and her frequent presence in the apartment. The court also found "as the jury obviously did, that much of Zeigler's testimony was not credible insofar as it was intended to protect Waite." She testified "that she never saw guns ... in the apartment, although there was other testimony that weapons [and] weapons accessories ... were in plain view in the bedroom in which Zeigler was present at the time of her arrest." 2
The general issue is whether sufficient evidence supports Zeigler's conviction for possession of the cocaine. Viewing the government's evidence in the light most favorable to it, we do not detect enough proof to connect Zeigler to the cocaine found in the laundry room. Nothing indicated that she actually possessed the cocaine. Her guilt depended on the government's proving beyond a reasonable doubt that she constructively possessed it, that she "knew of, and was in position to exercise dominion and control over" the cocaine. United States v. Byfield, 928 F.2d 1163, 1166 (D.C.Cir.1991); United States v. Johnson, 952 F.2d 1407, 1411 (D.C.Cir.1992). Zeigler's frequent presence in the apartment, the scene in the bedroom when the police arrived, and the landlady's testimony established her close ties with Waite and with the premises. Even so, where in the government's case is there proof that Zeigler knew of the cocaine? Her knowledge might have been inferred if Waite were selling drugs from the apartment. But the government presented no such evidence; and, in any event, the jury acquitted both defendants of the distribution charge.
Even if there were evidence of Zeigler's knowledge of the cocaine, the...
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