United States v. Stephenson, 72-2400.

• Citation: 474 F.2d 1353
• Decision Date: 19 March 1973
• Docket Number: No. 72-2400.,72-2400.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Obadiah STEPHENSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

474 F.2d 1353 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Obadiah STEPHENSON, Defendant-Appellant.

No. 72-2400.

United States Court of Appeals, Fifth Circuit.

March 19, 1973.

Jack C. Ciolino, New Orleans, La. (Court-Appointed), for defendant-appellant.

Gerald J. Gallinghouse, U. S. Atty., Harry Hull, Jr., Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

DYER, Circuit Judge:

Stephenson was named as the sole defendant in a three-count indictment for possession of heroin. The first count charged him with possession of approximately 25 grams of heroin contained in 233 glassine envelopes in violation of 21 U.S.C.A. § 174. Counts two and three charged him with the possession of the same quantity of heroin in violation of 26 U.S.C.A. §§ 4704(a) and 4724(c) respectively. Stephenson was tried by a jury and convicted on all counts. He received three consecutive sentences of five-years imprisonment. We reverse.

Stephenson's principal contention on appeal is that it was error for the district court to deny his motion for a judgment of acquittal at the close of the Government's case. We agree with Stephenson that, as a matter of law, there was insufficient evidence of his guilt to submit the case to the jury.

On January 27, 1971, Special Agent Fenger of the Bureau of Narcotics and Dangerous Drugs (BNDD) obtained a warrant to search Stephenson's person and his 1970 Buick Riviera for narcotics. Another warrant was obtained to New Orleans. About 9 p. m. on the search Big Mary's Number 3 Bar in night of the 27th, Fenger and several other BNDD agents observed Stephenson arrive and park his Buick Riviera across the street from Big Mary's. After approaching the vehicle, the agents informed Stephenson that they had a warrant to search him and his car. Stephenson stepped out of his automobile, and Fenger conducted the search. No narcotics were found.

Fenger than asked Stephenson to accompany him into Big Mary's. They proceeded into the bar, and Fenger advised the barmaid that he had a warrant to search the bar and all adjoining rooms. Stephenson sat at the bar with Fenger while the other agents conducted the search. During this search, the 233 glassine envelopes of heroin were found in a locked storage room in the rear of the bar. The room had been used as sleeping quarters for one Felix Ballazar. Ballazar's clothes and suitcases were in the room, and the envelopes of heroin were found under the mattress of his bed on which he was sitting when the agents entered. Also discovered during the search in a separate locked storeroom were three cartons of cellophane envelopes similar to the ones containing the heroin.

The only evidence of any link between Stephenson and the heroin was latent fingerprints of his found on seventeen of the envelopes. Moreover, unlike Stoppelli v. United States, 9 Cir. 1950, 183 F.2d 391, which is so heavily relied upon by the Government, no evidence was ever offered in the case sub judice that Stephenson's fingerprints were placed on these envelopes when they contained heroin. On the contrary, the F.B.I. fingerprint expert testified that the prints could have been placed on the glassine envelopes as long as a year before the seizure when the envelopes were empty. Because glassine is porous, any sweat or grease on the fingertips is absorbed into the material so that the resulting print is almost permanent; it cannot be removed by wiping. Additionally, if a person handling glassine does not have any moisture on his fingertips he will not leave a fingerprint. Finally, since fingerprints on glassine depend on the presence of sweat or moisture on the fingertips, it is possible for a person to handle many glassine envelopes and leave fingerprints on only a few, because the sweat on the friction ridges of the fingers would be absorbed by the first glassine envelopes touched.

We recognize that proof of actual possession is not necessary to sustain a conviction for violation of the statutes involved; constructive possession is sufficient. Such possession need not be exclusive, but may be shared with others. Moreover, it may be proven by circumstantial as well as by direct evidence. Garza v. United States, 5 Cir. 1967, 385 F.2d 899, 901; Smith v. United States, 5 Cir. 1967, 385 F.2d 34, 38-39. However, whatever the nature of the evidence, it must be such that a jury may reasonably infer that the person charged with constructive possession had dominion and control over the drug. United States v. Mendoza, 5 Cir. 1970, 433 F.2d 891, 896. By the same token, mere presence in the area where the narcotic is discovered or mere association...