Opinion for the Court filed by SPOTTS-WOOD 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
and of possession of heroin and methylphenadate with intent to distribute.
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.
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.
We perceive no error in either respect and accordingly affirm.
I
The events generating the prosecutions are well nigh undisputed.
Armed with a search warrant, issued upon an affidavit alleging drug-peddling by one Bobby Arnold,
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.
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.
By use of a sledgehammer the door was broken, and entry was gained about five minutes later.
The apartment was a one-room affair, with a living area on one side and a kitchen area on the other.
Once inside, the officers saw Ms. Thompkins standing near the kitchen sink, the garbage disposal running.
Appellant was standing approximately five feet away near the kitchen table.
One of the officers turned off the disposal and another arrested the two occupants.
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.
Small plastic bags, of the type used in the retailing of narcotics,
protruded from an envelope on the kitchen table.
Another envelope thereon contained adding machine tapes, personal papers and receipts in Bobby Arnold’s name.
Notebooks and a pad of paper — all with figures in dollar amounts
— $35 in cash and an envelope enclosing methylphenadate were also lying on the table.
Atop a cabinet in the kitchen was an envelope of marijuana,
along with a strainer, spoons and playing cards.
A breadbox located on top of the refrigerator yielded $600 in cash.
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
and a bag of 3.1% heroin in another coat.
In a third coat were a plastic vial of methylphenadate and a tinfoil packet of 2.6% heroin.
A plastic bottle containing 310 tablets of methylphe-nadate resided on a closet shelf
as did appellant’s “North Carolina special identification card.”
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.
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.
In an upper pocket were $100 in dry currency
and a key to one of the two locks on the door to the apartment.
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.
II
Possession of a forbidden substance is an essential element of each of the offenses of which appellant was convicted.
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
prior to the day of arrest.
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.”
That guilt must be established beyond a reasonable doubt is “ ‘a basic principle in our jurisprudence,’ ”
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.’ ”
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Opinion for the Court filed by SPOTTS-WOOD 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
and of possession of heroin and methylphenadate with intent to distribute.
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.
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.
We perceive no error in either respect and accordingly affirm.
I
The events generating the prosecutions are well nigh undisputed.
Armed with a search warrant, issued upon an affidavit alleging drug-peddling by one Bobby Arnold,
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.
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.
By use of a sledgehammer the door was broken, and entry was gained about five minutes later.
The apartment was a one-room affair, with a living area on one side and a kitchen area on the other.
Once inside, the officers saw Ms. Thompkins standing near the kitchen sink, the garbage disposal running.
Appellant was standing approximately five feet away near the kitchen table.
One of the officers turned off the disposal and another arrested the two occupants.
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.
Small plastic bags, of the type used in the retailing of narcotics,
protruded from an envelope on the kitchen table.
Another envelope thereon contained adding machine tapes, personal papers and receipts in Bobby Arnold’s name.
Notebooks and a pad of paper — all with figures in dollar amounts
— $35 in cash and an envelope enclosing methylphenadate were also lying on the table.
Atop a cabinet in the kitchen was an envelope of marijuana,
along with a strainer, spoons and playing cards.
A breadbox located on top of the refrigerator yielded $600 in cash.
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
and a bag of 3.1% heroin in another coat.
In a third coat were a plastic vial of methylphenadate and a tinfoil packet of 2.6% heroin.
A plastic bottle containing 310 tablets of methylphe-nadate resided on a closet shelf
as did appellant’s “North Carolina special identification card.”
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.
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.
In an upper pocket were $100 in dry currency
and a key to one of the two locks on the door to the apartment.
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.
II
Possession of a forbidden substance is an essential element of each of the offenses of which appellant was convicted.
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
prior to the day of arrest.
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.”
That guilt must be established beyond a reasonable doubt is “ ‘a basic principle in our jurisprudence,’ ”
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.’ ”
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.’ ”
And “[i]n. applying this standard no legal distinction is made between circumstantial and direct evidence.”
To be sure, appellant had in his pockets only one of the three drugs that he was charged with possessing,
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.
That, we think, it did.
The possession vital to the convictions under review may, in familiar language, be either actual or constructive.
It thus is unnecessary to show that the accused had the drug on his person or within his immediate reach;
it is enough that he “was knowingly in a position or had the right to exercise dominion and control over” it,
either directly or through others.
Possession in that sense suffices though it is jointly shared,
and it may be established by circumstantial as well as direct evidence.
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.
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.
Even were we free to do otherwise,
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,
a situation normally conducive to an inference that he had knowledge of and control over it, even when concealed on the premises.
The judge’s task intensifies, however, when the accused’s relationship to the premises is shared with others,
and consequently the problems of knowledge and control intensify.
This court has never held that nonex-clusivity in the occupancy of the premises is fatal to the Government’s cause,
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.
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.
Nor is mere association with another, standing alone, enough even when the other is known to possess the drug.
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.
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
alongside contraband drugs and drug-distributing paraphernalia openly strewn about.
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. Thomp-kins was merely passive or innocent. His possession of a key to one of the two entrance locks,
coupled with the situs of his identification card on the shelf of the closet,
might plausibly have been taken as an indication that he was not just a casual visitor.
More critically, his presence in that one-room apartment reeking with telltale indicia of an ongoing drug-distributing enterprise
could rationally have been viewed as a privilege reserved exclusively for participants.
In so small an area, appellant certainly could not have been oblivious to the brawny effort the police made to get in to search,
and the jury could logically have inferred that he — like Ms. Thompkins- — tried to cleanse the room of
the drugs during the five minutes required for the forced entry.
Indeed, during this interval appellant admittedly concealed on his person heroin and money which just moments before had been destined for the garbage disposal.
In assessing the likelihood that appellant was connected with the illegal operation sufficiently to enable some control over its illicit wares, the jury was entitled to ponder the interrelationship of all of these evidentiary items.
Nor did the Government’s presentation suffer from any lack of foundation for a deduction that the drugs had been held for distribution. Our decisions in the recent past have made clear that intent to distribute may be inferred from possession of drug-packaging paraphernalia or of a quantity of drugs larger than needed for personal use.
Here the Government’s proof extended to both.
An intent to distribute personally, we have added, is unnecessary as long as distribution by someone is the end purpose of the possession,
and that was hardly doubtful here. In sum, the evidence was susceptible to the interpretation that appellant was criminally involved in the criminal enterprise, and whether in fact he was or not was a question for the jury.
Ill
Criminal accountability does not depend inexorably upon personal performance of the acts comprising an offense. He who assists the perpetrator of crime in its commission is as much answerable as if he had engaged in all of its essential aspects himself.
The trial judge instructed the jury to that effect in the case at bar, and that has led to a rash of objections in this court.
Certainly nothing about drug-possession offenses is so distinctive as to remove them from the ambit of aiding-and-abetting doctrine.
Nor was this case an inappropriate occasion for inquiry whether appellant was an aider and abettor since the Government’s evidence hardly confined appellant’s role to that of a principal. But, as heretofore we have observed, “[a]
sine qua non
of aiding and abetting ... is guilty participation by the accused.”,
As the Supreme Court has admonished, “[i]n order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, and that he seek by his action to make it succeed.’ ”
So, “[t]he elements of the offense of aiding and abetting are: (1) guilty
knowledge on the part of the accused; (2) that an offense was committed by someone; and (3) that the defendant assisted or participated in the commission of the offense.”
With this illumination, we proceed to the two facets of appellant’s argument that deserve, albeit marginally, some amount of discussion.
The first is that the evidence was insufficient to show that the offenses in suit were committed by someone. To be sure, there must be a guilty principal before there can be an aider and abettor
but here the proofs connoted plainly enough that somebody was culpable. As already we have held, a jury combining the circumstances displayed — the situs of the drugs in the apartment, their substantial quantity and value, and the presence there of large sums of money and adequate paraphernalia for packaging
—might reasonably find that whoever was responsible for those conditions had illicit distribution in mind.
The evidence did not, of course, conclusively single out either Bobby Arnold, Versinia Thompkins or appellant as captain of the enterprise, but that is beside the point. It was not essential that the principal in the operation be identified so long as someone had that status.
Appellant also attacks the aiding- and-abetting instruction on the ground that the evidence, irrespective of any capability it might have had to establish illegal activity by others, could not support a finding that he aided and abetted. We believe, however, that appellant once again overlooks the potency of the Government’s presentation. We have already expressed our view that the jury might properly conclude that at no moment was appellant’s presence in the apartment innocent.
We have opined, too, that the jury could have inferred from the totality of the circumstances that appellant assisted Ms. Thompkins in the interrupted endeavor to remove the contraband completely from sight.
Nor can we overlook the importance of the conceded fact that during the process appellant concealed some of the drugs and money in his pockets in the apparent belief that he would not be searched.
At the very least, the jury would have been warranted in concluding that appellant tried to protect the drug-distributing operation either by salvaging some of its assets or by facilitating their disposal to thwart detection by the police.
If indeed the evidence did not tend to reflect greater participation on his part, no more than these was required.
The judgment of conviction appealed from is accordingly
Affirmed.