United States v. Sean Jenkins

90 F.3d 814, 1996 U.S. App. LEXIS 18381, 1996 WL 417633

• Court: Court of Appeals for the Third Circuit
• Decided: July 26, 1996
• Docket: 95-1606
• Status: Published

Opinions

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Sean Jenkins appeals his conviction on drug possession and related firearms charges. He challenges the sufficiency of the evidence to establish his constructive possession of drugs found near him. Because the evidence showed only that he was in an acquaintance’s apartment physically near but not in actual possession of drugs and drug distribution paraphernalia, it does not support the jury’s finding that he had dominion and control over the drugs. We will, therefore, reverse Jenkins’ conviction on all counts.

I.

Around 1:30 a.m. on February 10, 1994, Philadelphia police officers Michael Kopecki and James Santomieri responded to a call that shots were being fired near an apartment building. Entering the courtyard of the building, the officers saw Kevin Jones and Larry Harrison, who was holding a handgun. Kopecki yelled, “Police!” Harrison ran into the building, and the officers chased him through a fire escape door, down a hallway, and into apartment C-107. The front door opened into the living room, and the officers found Sam Stallings and Jenkins seated on a couch, both wearing only boxer shorts and a t-shirt. On the coffee table before them were three bags of white powder containing a total of 55.3 grams of cocaine and 42 grams of non-cocaine white powder, two triple-beam scales, two loaded .38 caliber revolvers, small ziplock-style bags, clear plastic vials, and numerous red caps. On the floor was a loaded sawed-off shotgun.

None of the cocaine powder had been put in the bags, vials, or caps, and there was no evidence that either man had been working with the cocaine. No grinders, razor blades, or other “cutting” implements, were on the table, and no pots or other instruments that could be used to cook cocaine were found with any cocaine residue. No cocaine residue was found on Stallings or Jenkins, including their hands, and no residue was found on the scales. Nothing concerning Jenkins’ clothing suggested any connection to the drugs. Finally, he made no attempt to hide or destroy the contraband, and fully cooperated with the officers.

Stallings and Jenkins were charged and tried together. Count I of the indictment charged them with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting under 18 U.S.C. § 2. Count II charged them with use of a firearm in connection with a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and aiding and abetting. At trial, the officers testified to what they saw and found, as described above. An expert witness, DEA agent Ellis Hershowitz, testified that the scales, bags and vials were commonly used by drug traffickers in repackaging drugs for resale. On cross-examination, Hershowitz acknowledged that instruments necessary to cut and apportion the cocaine and insert it into the various packages were not found in the apartment. The manager of the apartment building, Barbara Edward, identified Stallings as a tenant in C-107, Harrison as someone who lived there, and Jenkins as someone who was “in and out” with Stallings and Harrison. Neither defendant testified.

The jury found Jenkins guilty on both counts. He made a post-trial motion for judgment of acquittal or new trial. Although recognizing that proximity to contraband or association with someone in possession is by itself insufficient to find constructive possession, the court denied the motion.¹ It found three factors from which a jury could infer dominion and control: (i) Jenkins was not merely in the same apartment as the drugs, but was sitting on a couch immediately adjacent the table on which the drugs were found; (ii) while there was no evidence that Jenkins was a resident of the apartment, he was in his boxer shorts and a t-shirt at 1:30 a.m., which suggests that he was going to stay overnight or had been there for some time; and (in) there were two triple-beam scales, from which it could be inferred that Stallings and Jenkins were each going to use a scale. The court sentenced the defendant to nearly 12 years imprisonment.

II.

In reviewing a jury verdict for sufficiency of the evidence, we view the evidence in the light most favorable to the government, and we will affirm the conviction if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See United States v. Brown, 3 F.3d 673, 680 (3d Cir.), cert. denied, 510 U.S. 1017, 114 S.Ct. 615, 126 L.Ed.2d 579 (1993). The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291. The notice of appeal was timely filed.

III.

A.

The government had no evidence of actual possession of the cocaine powder; consequently, the issue before us is whether there was evidence sufficient to establish constructive possession. Under our precedent, the evidence must show that Jenkins had dominion and control over the drugs:

[T]he government must submit sufficient evidence to support an inference that the individual “knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons. Constructive possession necessarily requires both ‘dominion and control’ over an object and knowledge of that object’s existence.” United, States v. Iafelice, 978 F.2d 92, 96 (3d Cir.1992) (citations omitted)....

Brown, 3 F.3d at 680. The kind of evidence that can establish dominion and control includes, for example, evidence that the defendant attempted to hide or to destroy the contraband, see United States v. Davis, 461 F.2d 1026, 1034-36 (3d Cir.1972), or that the defendant lied to police about his identity or the source of large amounts of cash on his person, see United States v. Brett, 872 F.2d 1365, 1368-69 (8th Cir.), cert. denied, 493 U.S. 932, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). Dominion and control are not established, however, by “mere proximity to the drug, or mere presence on the property where it is located or mere association with the person who does control the drug or the property.” Brown, 3 F.3d at 680; see also United States v. Dunlap, 28 F.3d 823, 826 (8th Cir.1994); United States v. Zeigler, 994 F.2d 845, 848 (D.C.Cir.1993); United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir.1992).

Jenkins argues that the evidence relied upon by the court was insufficient to prove dominion and control over the cocaine. Nothing but proximity links him to the drugs and drug distribution paraphernalia. No cocaine residue was found on him, nor were his fingerprints found on the drugs. His prior acquaintance with Stallings answers why he was in the apartment, and it is immaterial how long he had been or was going to be there. The presence of the two scales, he contends, is insufficient to link him to the drugs. No evidence suggests that they had been in use or were about to be used by him; if anything, it was more likely that the two scales belonged to and would be used by the two residents of the apartment.

We agree with the defendant that the evidence is insufficient to establish his possession of the cocaine. The evidence does show that he is an acquaintance of Stallings and Harrison and that he was found physically near drugs and drug distribution paraphernalia, including two scales, but those are insufficient facts from which to infer dominion and control over the drugs.

We find this case controlled by our decision in United States v. Brown. The police, acting on a tip, searched Brown’s home for drugs. During the search, Ama Baltimore arrived at the house, inserted a key into the lock, and was arrested as she entered. While being arrested, she protested, “But you can’t arrest me because I am in my own house.” In the upstairs sewing room, the police found a pair of shorts and a switchblade, both of which Baltimore admitted were hers. Substantial quantities of heroin, cocaine powder, and crack cocaine were found in the refrigerator in the kitchen, the kitchen closet, and one of the upstairs bedrooms. Equipment and supplies to prepare, cook, cut and distribute the drugs were also found in the bedroom. The government contended that several facts were sufficient to establish Baltimore’s possession of the drugs: her possession of a key to the house, her attempted entry, the presence of the shorts and switchblade in the house, her statement, and the fact that the house was a known “cut house,” a place where large quantities of drugs are cut and distributed.

We overturned her conviction for insufficient evidence of possession. The evidence showed that she had access to or resided in the house and knew of the presence of the drugs, but did not show she had dominion and control them. The key, her attempted entry, and her statement merely showed that she had some control over the house, not the drugs. See 3 F.3d at 682-83. We further noted that her fingerprints were not found on the drugs or drug paraphernalia, and there was no evidence that she ever exerted any indirect control over them. See id. Evidence in addition to knowledge of and access to the drugs was necessary to prove possession. The fact that Brown’s home was a “cut house” did not suffice as additional evidence. Because Brown’s house was also a residence, the jury could not infer from the fact that Brown’s home was a “cut house,” that beyond a reasonable doubt, Baltimore was a participant in the drug distribution operation. See id. at 683-84.

The government stresses that in Brown we noted that Baltimore and her shorts were not found in the same room as any of the drugs. See 3 F.3d at 683. The government contends that this factor was highly relevant to our decision, but we disagree. It is a serious misreading of that decision to conclude that the degree of proximity of Baltimore or her clothing to the drugs was a controlling factor. Although our decision does not discuss this point in detail, Baltimore acknowledged at the time of her arrest that she lived in the cut house, and in the course of residing there, it is virtually certain that she regularly would have entered the kitchen and bedroom, the rooms in which the drugs were found. Since we concluded that her residence in the cut house was insufficient to prove dominion and control over the drugs, it would not have mattered if there had been evidence that she had visited the kitchen or bedroom, so long as the evidence did not also show that her visit pertained to the drugs.

Our decision in Brown is consistent with the jurisprudence of other circuits. In United States v. Vasquez-Chan, the Court of Appeals for the Ninth Circuit found evidence of drug possession insufficient even though there was proof that the defendant had access to and was in close proximity with large quantities of drugs. Drug Enforcement Agency officers arranged the purchase of a large amount of cocaine. They observed the drugs being transported from a particular house and went to secure the residence. Inside, they found two women, a housekeeper and an apparent house guest, Julia Gaxiola-Castillo (Gaxiola). Gaxiola waived her rights and told the officers that she was a friend of the housekeeper and had been staying there a few weeks with her infant child. In the bedroom where she had been staying, the officers found 600 kilograms of cocaine in 55 gallon drums. On six of the drums, including the inside of the lid of one drum, they found her fingerprints. She was convicted of conspiracy to possess narcotics with intent to distribute.

The Ninth Circuit overturned the conviction for lack of evidence of possession. She claimed that she had come to visit her friend, and she and her child had to sleep somewhere, and the bedroom with the cocaine may have been the only place to stay. Although the defendant had been caught in “extremely incriminating circumstances” due to her proximity to the drugs, her behavior “was perfectly consistent with that of an innocent person having no stake or interest in the transactions.” 978 F.2d at 551 (citations omitted). Proximity and knowledge of the existence and location of the drags were insufficient to prove dominion and control. See id. The fingerprints by themselves proved nothing but the fact that she had used the bedroom. It was perfectly reasonable to believe that she would have come into contact with the numerous canisters as she moved in and out of the room, or prepared a place to sleep. See id.

Similarly, in United States v. Dunlap, the Court of Appeals for the Eighth Circuit found proximity to drugs under very suspicious circumstances insufficient to support a finding of possession. Acting on a tip that drugs were being sold from Eric Dunlap’s apartment, police officers secured a search warrant. As they approached his door, Dunlap opened the door from the inside. Standing behind Dunlap was Cornelius Coleman, who had a handgun in his pocket. In the kitchen, the officers found large amounts of cocaine power and cocaine base, and some of the powder was in the process of being cooked. Coleman’s hat was also in the kitchen, and more drugs and drug distribution paraphernalia were found in the apartment. Coleman was convicted of possession with intent to distribute cocaine.

The Eighth Circuit overturned his conviction because the evidence was not sufficient for a jury to find beyond a reasonable doubt that Coleman had constructive possession. See 28 F.3d at 826. His mere presence in the apartment, including the evidence that he may have been in the kitchen, did not prove that he possessed the cocaine. He may have been visiting Dunlap to purchase cocaine for his own use, an offense not charged, and it was speculative for the jury to conclude beyond a reasonable doubt that he possessed the drugs, or intended to aid and abet Dunlap in his drug operation. See id. at 827.

The evidence supporting constructive possession in Sean Jenkins’ case is no stronger than the evidence found insufficient in Brown, Vasquez-Chan, and Dunlap. In each of those cases, the evidence did not establish the decisive nexus of dominion and control between the defendant and the contraband. The district court believed that Jenkins’ being on the couch next to the drugs was decisively different than if he was somewhere else in the apartment, but proximity alone is not enough, no matter how near that proximity is. Without other proof of dominion and control, we can only conclude that it was sheer happenstance that Jenkins was seated on the couch next to the cocaine when the police entered the apartment. Whether or not he possessed the drugs, he could have been found sitting on the couch, standing next to it, in the bathroom, or in some other room in the apartment. A reasonable jury may not infer dominion and control beyond a reasonable doubt from the defendant’s physical distance from the drugs alone.

Jenkins’ presence near the drugs in his acquaintance’s apartment is analogous to Baltimore’s control over the cut house and access to the drugs, Gaxiola’s proximity and contact with the drugs, and Coleman’s proximity to drugs and drug activity. Some additional evidence of dominion and control is required before a finding of constructive possession can be made beyond a reasonable doubt. We do not believe that Jenkins’ being in boxer shorts and a t-shirt or the fact that two scales were on the table can raise the necessary inference. That he had been in the apartment long enough to get partially undressed and that he was planning to stay for some time tell us nothing about what he had been doing or what he planned to do. We do not know who brought the drugs and equipment into the apartment, or who set up the items on the coffee table. No fingerprint evidence connected him with the items on the coffee table, the drug distribution paraphernalia were not in use, and no cocaine residue was found on him. Perhaps most important, as agent Hershowitz testified, the cutting and repackaging of the cocaine could not have been imminent for lack of tools to cut, apportion and package the powder. Under these circumstances, a reasonable jury could not conclude from Jenkins’ state of undress that, beyond a reasonable doubt, he had dominion and control over the drugs and intended to participate in the distribution of the cocaine at some point that night.

The existence of two scales rather than one adds very little to the evidence against Jenkins. It does suggest that someone in addition to Stallings would have participated in the drug cutting and repackaging that night, if such activity were to occur. As we have concluded, however, there is no evidence that the drug activities were imminent; consequently, it would be impermissible to infer beyond a reasonable doubt that it was Jenkins who would have helped Stallings rather than Harrison or Jones, both of whom resided in the apartment.

The government relies on our decisions in United States v. Davis, 461 F.2d 1026 (3d Cir.1972) and United States v. Iafelice, 978 F.2d 92 (3d Cir.1992). In both cases, however, there were significant and substantial factors linking the defendants to the drugs. In Davis, the defendant was convicted for possessing heroin that had been seized in her apartment. Unlike the instant case, in Davis the evidence clearly showed that someone had been recently packaging the drugs, and when the police forced their way in, the persons present, including the defendant, had tried to destroy the drugs. 461 F.2d at 1035-36. Here, Jenkins was in an acquaintance’s apartment and no evidence suggests that he had recently physically interacted with the drugs or drug paraphernalia. Neither did he attempt to hide or destroy the drugs. In Iafelice, the defendant drove several individuals in his car to a pre-arranged drug sale to undercover agents, and was convicted for possession of heroin. We upheld the conviction and found relevant that he drove the car in a suspicious manner, transported the drugs and those who sold the drugs to the point of sale, assisted in opening the trunk where the drugs were located, and was called in the car by one of the principal drug dealers during the sale. See Iafelice, 978 F.2d at 95-98. Here, the cocaine was not found in Jenkins’ residence, and no evidence suggests his active participation in any drug distribution.

A sufficiency of the evidence challenge requires us to take a careful look at the evidence in the light most favorable to the government. Because the evidence supporting Jenkins’ possession of the cocaine, viewed in that light, does not amount to more than close proximity to the drugs and acquaintance with the residents of the apartment in which the drugs were found, we must reverse his conviction for possession with intent to distribute.

B.

Jenkins was also convicted for using a firearm in connection with a drug trafficking crime. Section 924(c)(1) of Title 18 provides, in relevant part, that any person who “during and in relation to any ... drug trafficking crime ... uses or carries a firearm” is subject to a mandatory 10-year sentence “in addition to” the punishment for the predicate offense. Jenkins argues that the district court erroneously denied his motion for a judgment of acquittal on this count because there was insufficient evidence to support the conviction of the predicate drug offense.

Commission of a drug trafficking offense is an element of the crime described in § 924(c)(1), and must be proved beyond a reasonable doubt. See, e.g., United States v. Anderson, 59 F.3d 1323, 1326 (D.C.Cir.), cert. denied, — U.S. -, 116 S.Ct. 542, 133 L.Ed.2d 445 (1995); United States v. Nelson, 27 F.3d 199, 201 (6th Cir.1994). Because the government has not met its burden of proof on the predicate offense, Jenkins’ conviction for using a firearm in connection with a drug offense must be also be reversed.

C.

Both counts of the indictment list aiding and abetting as theories of liability, and we must consider the possibility that the jury premised its verdict on these alternatives. To convict of aiding and abetting, the government must show that the defendant “in some [way] associated] himself with the venture, that he participated] in it as in something that he wished] to bring about, that he [sought] by his action to make it succeed.” United States v. Bey, 736 F.2d 891, 895 (3d Cir.1984) (quoting Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949)) (alterations in original). '

Here, the government had to prove that another person committed the principal offense and that Jenkins aided and abetted in the commission of that offense. At trial, the government offered no evidence other than the evidence to support constructive possession by Jenkins. His close proximity to the drugs and firearms, state of dress, and acquaintance with Stallings, who committed the principal offense, are not sufficient to prove aiding and abetting. The government simply has a “snapshot” of Jenkins sitting on a couch in an acquaintance’s apartment next to a table laden with drugs and firearms. The evidence does not show that Jenkins associated himself with or participated in the drug distribution, or that he took any action to help it succeed. The “snapshot” does not show that he took any actions other than to enter the apartment, get partially undressed, and sit on the couch. Consequently, the jury could not have properly convicted Jenkins of aiding and abetting.

TV.

Because we have concluded that there was insufficient evidence for the juiy to convict Sean Jenkins of possession of cocaine with intent to distribute, use of a firearm in connection with a drug offense, and aiding and abetting, we will reverse his convictions.

1 . Nicholas DiNunzio testified at trial that he called the police concerning the gunshots, that Jenkins had fired the gun, and that he had let the police into the building when they were "in pursuit” of the suspect. His testimony, therefore, conflicted with and could, if credited, cast doubt upon the officers' version of the events. His testimony, however, conflicted with his prior statements to the government in which he alternately identified Jenkins and Jones as the man with the gun. In its ruling on the motion for a judgment of acquittal, the district court held that DiNunzio's “recollection and presentation were muddled, his various versions of the events were mutually inconsistent, and his testimony differed from the officers' in several details,” and would not have outweighed the evidence against Jenkins. United States v. Jenkins, Order at 10, No. 94-385-02 (E.D. Pa. June 6, 1995). We agree that DiNunzio's testimony was conflicted and muddled, and we give no weight to his testimony in making our decision in Jenkins’ case.