United States v. Clifton W. Holland

445 F.2d 701, 144 U.S. App. D.C. 225, 1971 U.S. App. LEXIS 10316

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 10, 1971
• Docket: 24083
• Status: Published

Opinions

BAZELON, Chief Judge:

Appellant was convicted of violating 26 U.S.C. § 4704(a) (purchase, sale, or receipt of narcotic drugs not in the original stamped package and without the appropriate tax-paid stamps) and 21 U. S.C. § 174 (facilitation of concealment and sale of narcotic drugs, knowing the same to have been imported illegally). He was sentenced to two to eight years on the first charge and to five years on the second, the terms to be served concurrently.

The Government presented only two witnesses before it rested. The first was Detective Winston Norman, one of the police officers who made the arrest; the other was the expert witness who identified the narcotic drug as heroin. Detective Norman testified that he and two other police officers went to the apartment of the woman who was indicted jointly with appellant in this case, in order to execute a search warrant. The time was 6:00 in the morning. When they entered, they found the woman and appellant in the bedroom, both undressed. Appellant was hiding behind the bed. On the top of a dresser the narcotics were discovered. When he was asked to get dressed, appellant removed a shirt and a suit from a closet in the bedroom, and underwear and socks from a drawer in the dresser. Several pairs of men’s underwear and socks remained in the drawer, and other items of men’s apparel remained in the closet.

The Government claims that its evidence proves constructive possession, and that it must therefore be permitted to go to the jury, since the statutes allow the jury to infer commission of the offenses from unexplained possession. To us, however, the Government’s evidence seems entirely inadequate to defeat appellant’s motion for judgment of acquittal. We must remember that constructive possession means being in a position to exercise dominion or control over a thing.¹ Such a position should not be lightly imputed to one found in another’s apartment or home. If an inference of constructive possession must be made, the jury must have before it information about the regularity with which the person in question occupied the place and about his special relationship with the owner or renter.

The necessary background information is strikingly absent in this case. The Government claims that the presence of men’s clothes in the apartment contributes to the conclusion that appellant’s presence was “neither fortuitous nor brief, but residential,” but it did not offer proof that the clothes in question belonged to or even fit appellant. For all the Government has shown, appellant may be guilty of no more than an illicit relationship. The woman, charged with the same offenses as appellant, pleaded guilty to a lesser included offense, and the evidence is entirely consistent with the hypothesis that she procured heroin for her own use. Appellant may have known about the heroin, she may even have used it in his presence, but more is required before appellant can be said to possess the heroin himself.

It is perfectly true that this appellant may be guilty. The trouble with absence of evidence is that it is consistent with any hypothesis. It is no answer to say, as the Government does, that this is a “close case,” and therefore “one for the triers of fact.” The defense was entitled to rest at the close of the Government’s case, and for the jury to have convicted appellant on the evidence presented at that point would have been utter speculation.² The Government’s case — taken and believed in whole or in part — did not show guilt beyond a reasonable doubt.

Reversed.

1 . E. g., Miller v. United States, 121 U.S. App.D.C. 13, 15, 347 F.2d 797, 799 (1965) ; see Bar Ass’n of the District of Columbia, Criminal Jury Instructions for the District of Columbia, No. 93 (1966).

2 . United States v. Bethea, 143 U.S.App. D.C. 68, 442 F.2d 790 (March 22, 1971), ís a case very similar to this one. Appellant was a passenger in a car in which narcotics were discovered. He was convicted of the same offenses as appellant in this ease. This court reversed, finding that the Government had failed to introduce sufficient evidence to prove constructive possession.