UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-2361
UNITED STATES OF AMERICA,
Appellee,
v.
RAFAEL ANGEL ZAVALA MALDONADO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Luis Rafael Rivera for appellant.
Jeanette Mercado Rios, Assistant United States Attorney, Criminal
Division, with whom Guillermo Gil, United States Attorney, and Jose A.
Quiles-Espinosa, Senior Litigation Counsel, were on brief for the
United States.
April 22, 1994
BOUDIN, Circuit Judge. On July 2, 1992, a jury
convicted Rafael Angel Zavala Maldonado ("Zavala") of
possession of cocaine with intent to distribute, in violation
of 21 U.S.C. 841(a)(1).1 On appeal, Zavala argues that
the evidence was insufficient to support the conviction and
that defense counsel's closing argument was improperly
hampered by objections from the prosecutor. For the reasons
set forth, we affirm.
I.
The first ground of appeal requires an understanding of
the evidence and, given the conviction, we recite the
evidence in the light most favorable to the government.
United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir. 1991).
In January 1992, Ruben de los Santos ("Santos"), a seaman
serving on board the M/V Euro Colombia, was in the port of
Cartagena, Colombia. There, a drug dealer gave Santos
sixteen packages of cocaine, amounting to a total of eight
kilograms, and asked Santos to deliver them as instructed
when the ship docked at the port of Ponce, Puerto Rico.
Santos had earlier been approached by American law
enforcement agents attached to the Customs Service, and he
accepted the cocaine in Cartagena with the approval of the
1The jury acquitted Zavala of two other charges-- importing cocaine into the United States, 21 U.S.C. 952, and using a telephone to commit or facilitate the possession offense, 21 U.S.C. 843(b)--and these counts require no further discussion.
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agents, who intended to track the drugs to their destination.
Santos kept the drugs hidden during the voyage and, on
arriving in Ponce, conferred immediately with the agents.
Shortly thereafter, Santos under surveillance by federal
agents and cooperating local police, went to the Hotel Melia
in Ponce and asked at the front desk for Mr. Palestino.
These last two steps complied with the instructions given to
Santos in Catagena, by the dealer who had given him the
cocaine, to deliver it to Palestino, at the Hotel Melia in
Ponce.
When the clerk called from the desk to the room
registered to Palestino, the defendant Zavala appeared and
gestured to Santos to follow him to room 302. There Santos,
who was carrying the cocaine in a bag, told Zavala that he
had the drugs to be delivered to Palestino. Zavala said that
he was a friend of Palestino and that Palestino would come to
the hotel. Using a cellular telephone, Zavala then placed a
call, purportedly to Palestino. Then at Santos' urging
Zavala called a second time to ask Palestino to come quickly.
Zavala asked Santos if they could put the cocaine in another
hotel room, saying that he (Zavala) had other friends in the
hotel, but Santos refused.
As time passed and Palestino still did not arrive,
Santos became increasingly anxious and he proposed to Zavala
that they go out of the room for a soda. Zavala agreed,
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Santos placed the bag with the cocaine in a closet or
dressing room in room 302, and the two men left room 302 and
entered the corridor. As they went down the stairs, the
supervising customs agent detained them. When Santos
explained that Palestino had still not arrived, Zavala was
taken back to room 302 in custody, accompanied by Santos and
one or more agents. There were several more calls to the
room purportedly from Palestino, two or three on the cellular
telephone and one on the hotel telephone; in each case Santos
told the caller that Zavala was out or otherwise occupied.
Shortly after the final call, the operation came to an
end. Law enforcement agents, it appears, had seen a car,
with the driver using a cellular telephone, circling around
the hotel. The driver then parked and went into the hotel.
He proceeded with another individual to one of the hotel
rooms and entered. When agents then knocked on the door of
this room, the individuals inside exited through a window.
After a chase they were caught, and a search of their car
yielded a loaded nine millimeter pistol and $6,305 in cash.
This final episode was described in testimony at the
trial. So far as we know, neither the driver nor the other
man with him was charged. Possibly the police thought that
the evidence was not quite strong enough to prove their
participation in the drug deal. Zavala, however, was charged
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as previously described, and convicted on one count:
possession with intent to distribute.
II.
Zavala's primary claim is that an acquittal should have
been ordered on grounds of insufficient evidence to prove
possession. We begin by noting that on this record Zavala
was surely guilty of a closely-related offense, namely,
conspiracy to possess drugs with intent to distribute them.
21 U.S.C. 841, 846. An agreement with the absent
Palestino is readily inferred from Zavala's statements and
the telephone calls, and the object of the agreement--
transferring a dealer-sized quantity of cocaine to Palestino-
-is no less apparent. A slightly more inventive offense
would be a charge of aiding and abetting Palestino's attempt
to possess with intent to distribute, under 18 U.S.C. 2,
841. See, e.g., United States v. Kottmyer, 961 F.2d 569 (6th
Cir. 1992).
But Zavala was not charged with conspiracy, or with
aiding and abetting an attempt, nor did a jury convict him of
such crimes. The formalities of indictment and jury trial
are prescribed by the Constitution. U.S. Const., Amends. V,
VI. Further, given that these offenses were not charged, it
is hardly sufficient to say that this record contained
evidence to support such a conviction for such an offense.
We do not know what evidence the record might contain if the
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defendant had been given notice that he was charged with a
quite different offense (say, conspiracy) instead of, or in
addition to, the offense charged (here, possession).
Thus the conviction for possession can stand only if a
reasonable jury could find that Zavala did possess the
cocaine within the meaning of 21 U.S.C. 841. If the
statute used the term "possess" as a lay juror might
understand it prior to instructions from the judge, it might
be a stretch to say that Zavala "possessed" the cocaine in
the bag. There is no evidence that he even touched the bag
or saw the cocaine or that he was ever alone in the room with
it or that he had a practical opportunity to remove it from
the hotel. These facts explain why Zavala's main argument on
appeal is that his relationship to the cocaine cannot be
deemed "possession."
The difficulty with the argument is that the concept of
possession in the drug statute comes freighted with a history
of interpretation. Congress was here concerned not with
"possession" in a narrowly focused situation (e.g., actual
possession of a weapon on an aircraft) but with possession of
drugs incident to their distribution. There is every reason
to think that Congress wished to cast its net widely so that,
assuming mens rea, a defendant proximately associated with
the drugs would be reached by the statute. The prevailing
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interpretation of "possession," in the framework of the drug
statutes, reflects that broad reach.
Under settled law, "possession" includes not merely the
state of immediate, hands-on physical possession but also
"constructive" possession, including possession through
another, and joint as well as exclusive possession. Further
these concepts can be combined so that, for example, "joint
constructive possession" is quite as bad as having the drugs
exclusively in one's own pocket. E.g., United States v.
Batista-Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991). These
concepts of constructive and joint possession are almost
uniformly reflected in both decisions2 and in standard
instructions.3
"Constructive" possession is commonly defined as the
power and intention to exercise control, or dominion and
control, over an object not in one's "actual" possession.
E.g., United States v. Acevedo, supra, 842 F.2d at 507. The
"constructive possession" label may confuse jurors at first--
drug trial juries routinely ask to be reinstructed on the
definition of possession--but the underlying idea is
2See, e.g., United States v. Akinola, 985 F.2d 1105,
1109 (1st Cir. 1993); United States v. Vargas, 945 F.2d 426,
428 (1st Cir. 1991); United States v. Acevedo, 842 F.2d 502,
507 (1st Cir. 1985).
3E. Devitt, C. Blackmar, K. O'Malley, 2 Federal Jury
Practice and Instructions, Criminal 54.08, at 906 (1990)
(collecting cases); L. Sand, J. Siffert, W. Loughlin, S. Reiss, 2 Modern Federal Jury Instructions 56-9 (1992) (same).
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important and not so difficult to grasp. Courts are saying
that one can possess an object while it is hidden at home in
a bureau drawer, or while held by an agent, or even while it
is secured in a safe deposit box at the bank and can be
retrieved only when a bank official opens the vault. The
problem is not so much with the idea as with deciding how far
it should be carried.
Here, we think is at least arguable that Zavala was not
shown to possess the drugs while he and Santos were in the
room together. Santos apparently had exclusive control of
the bag during this period. It contained drugs for which he
had not been paid; Zavala was not the named person to whom it
was to be delivered; and Santos refused Zavala's suggestion
that the bag be entrusted to Zavala's friends in another
room. If the agents had broken into the room and arrested
Zavala at this point, a directed verdict of acquittal might
have been required.
But once both parties departed from the room leaving the
drugs inside, the situation altered. It is not that Zavala
got closer to the drugs--indeed, he moved further away from
them--but rather that two other circumstances changed:
first, Santos surrendered his actual possession of them; and
second, with the acquiescence of both parties, the drugs were
secured in Zavala's room. In the context of this case, we
think that a jury could then find both requisites of
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constructive possession: that Zavala had sufficient power to
control the drugs and an intention to exercise that power.
Turning first to the power to exercise control, we begin
with the fact that the drugs were left in Zavala's room with
his knowledge and consent while Zavala was awaiting the
arrival of an accomplice to pay for them. It is fair to
describe the location as Zavala's hotel room because he was
effectively in occupation and the jury could reasonably infer
that he could return there at will. The evidence showed that
the room, although registered in Palestino's name, had been
lent to two occupants. It was Zavala who emerged when Santos
arrived at the hotel and the room was called; and it was
Zavala who took Santos to the room to await "his friend"
Palestino.
The location of drugs or firearms in a defendant's home
or car is a common basis for attributing possession to the
defendant.4 This is so even if the residence or room is
shared by others. E.g., United States v. Garcia, 983 F.2d
1160, 1164 (1st Cir. 1993). The cases do not say that
possession is automatic but rather that the location of the
object in a domain specially accessible to the defendant can
4See, e.g., United States v. Wight, 986 F.2d 1393, 1398
(1st Cir. 1992); United States v. Echeverri, 982 F.2d 675,
678 (1st Cir. 1993); United States v. Chapdelaine, 989 F.2d
28, 34 (1st Cir. 1993), cert. denied, 114 S. Ct. 696 (1994).
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(at least where knowledge is admitted or inferred) be enough
to permit the jury to find possession.
Admittedly, Zavala's power to control in this case was
diluted because Santos had not yet been paid and might well
have resisted any attempt by Zavala to return to the room and
carry away the drugs. But by the same token a jury could
infer that drugs now stored in Zavala's hotel room, awaiting
transfer to Zavala's accomplice, were at least as much within
Zavala's power to control as within Santos' power. If each
had an effective veto over the other, it would still be joint
possession. Two drug dealers with cocaine in the back seat
of their car might both possess it even though neither would
let the other out of sight. Cf. United States v. Wight,
supra, 968 F.2d at 1398 (weapon in car given to one defendant
"possessed" by the other where in reach of both).
The issue of intention is quite as important as the
issue of power. Someone might have effective power over
drugs simply because they were located within reach while
their true owner was temporarily absent; but if such a person
had power over the drugs (say, as a temporary visitor to the
room in which they were located) but had no intention to
exercise that power, there might still be no crime. Here,
Zavala's connection with the drugs stored in his hotel room
was not at all innocent: the drugs were stored there for the
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purpose (so far as Zavala knew and intended) of facilitating
their transfer to his accomplice, Palestino.
In many cases, intention and knowledge are inferred
solely from the location of the drugs in an area to which the
defendant has a priority of access. Here, Zavala's state of
mind is established by independent evidence: his statements
that Palestino would be there soon, his suggestion that the
drugs be stored temporarily in another room, apparently with
his confederates; and by the cellular telephone calls by
Zavala and to him seemingly from Palestino. No reasonable
jury could have had any doubt that Zavala was there to assist
in the transmission of the drugs lodged in his room.
Assuming Zavala's guilty mind, it might still be argued
that his precise intention was to aid in the storage and
transfer of the drugs but not to "control" the drugs. We
think this is too fine a distinction. Defendant's intention
to have the drugs stored in his room, incident to their
intended transfer to a confederate, seems to us an intention
intimately related to his power to control the drugs. If a
jury finds this to be constructive possession, we do not
think that it has stretched the concept too far or betrayed
the intention of Congress.
Finally, it is beside the point that Zavala's
"possession" in the hallway was extremely brief and that
Zavala probably could not have escaped with the drugs because
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of the police surveillance. That the police are present and
ready to frustrate distribution does not make possession of
drugs any less a crime, and a minute of possession is as much
an offense as a year of possession. See Santiago v. United
States, 889 F.2d 371, 376 (1st Cir. 1989). If Palestino
himself had arrived and Santos had handed him the bag, he
would be guilty of possession even if the police had burst
into the room sixty seconds later. The completion of the
crime does not require that the defendant have a sporting
chance.
III.
We turn to Zavala's other main claim of error on this
appeal. Zavala contends that the prosecutor so often
interrupted the defense summation with objections as to
constitute misconduct and to prevent the jury from hearing
the defense's closing argument. We have reviewed the
complete transcript of defense counsel's summation and
conclude that misconduct did not occur nor was the defense
summation seriously impaired.
It is quite true that the prosecutor's objections were
numerous. Zavala's brief claims that 20 objections were made
in an argument that covered 37 transcript pages. The
government's brief may also miss the mark by arguing that the
claim now made was waived because not argued to the district
court: defense counsel did state, after a number of
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objections from the prosecutor, "I have an objection to the
continuous interruptions." This is the same argument now
renewed on appeal.
But if the objection was preserved, it was also largely
answered by the trial judge's rejoinder to defense counsel:
"Well, then you behave better. Stick to the facts before the
Court and before the jury and you won't have any
interruptions." The fact is that most of the objections
ruled on by the judge were sustained on the ground that the
defense counsel was arguing facts outside the record,
misstating evidence, or misstating the law. Unless the trial
judge was mistaken in his rulings, defense counsel himself
provoked many of the interruptions.
We have looked at both the rulings and the objections.
The former were generally well within the district court's
discretion, and most of the latter were at least arguable.
For example, speaking of Santos, Zavala's counsel said to the
jury: "Remember that [the confidential informant] is the
person that traditionally he's a distrusted individual
because he can work always as a double agent." Many
prosecutors would have let this pass; but here the prosecutor
objected ("Objection, your Honor. Going outside the record
"traditionally not to be trusted."), and the judge sustained
her objection on the ground that it was not a reasonable
inference from the evidence.
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What inferences can arguably be drawn from specific
evidence is often a matter of degree and of judgment. Trial
judges themselves differ in their approaches, and "how far
you can go" with a particular judge is the kind of lore that
counsel collect and pass on to each other. Here the
prosecutor operated on a hair trigger, and the trial judge
was reasonably strict in governing the closing argument. But
the fact is that there was no evidence as to the general
character of confidential informants, nor any evidence to
suggest that Santos was dishonest or a double agent.
Without recounting each objection, we think that the
prosecutor was right or arguably right often enough to
foreclose any suggestion that her aim was to impede the
defense; put differently, the defense summation provided some
basis for legitimate complaint. The trial judge's rulings,
some of which favored the defendant, appear eminently
reasonable. Finally, based on a reading of the entire
defense summation, it seems to us that--despite some
interruptions--the essence of counsel's argument for
acquittal was thoroughly conveyed to the jury.
Affirmed.
Dissent follows.
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COFFIN, Senior Circuit Judge (dissenting). I believe
the court errs by expanding the definition of "constructive
possession" beyond what is supported by the relevant caselaw,
stretching the statutory reach of "possession" under 21
U.S.C. 841(a)(1) dangerously and unnecessarily far.
My colleagues concede that it is at least arguable that
Zavala was not shown to possess the drugs while he and Santos
were in the room together; and that had the agents broken
into the room and arrested Zavala at this point, a directed
verdict of acquittal might have been required. They contend,
however, that once Zavala, on Santos' suggestion, locked the
drugs in his hotel room while the two men went to get a
drink, Zavala "possessed" the drugs, by virtue of the facts
that he had yielded actual possession of the drugs, and that
he had priority of access to the room in which they were
stored.
The court reaches this conclusion by relying on an
interpretation of "constructive possession" which I cannot
help thinking is both incorrect and overbroad. "Constructive
possession," as the majority properly states, is established
by showing that a person knowingly had the power and
intention at a given time to exercise dominion and control
over an object, either directly or through others. See
United States v. Acevedo, 842 F.2d 502, 507 (1st Cir. 1988)
(emphasis added). The court, in turn, defines "power" in
physical terms: in its view, the requisite "power" exists if
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the contraband is in a location specially accessible to a
defendant, such as in one's home, hotel room, or car, or
located within his or her reach.
I am persuaded that this reliance on physical power of
access understates the law's requirements. Although, as the
court points out, a lay person's understanding of
"possession" is not helpful, I cannot so easily sidestep our
and other courts' use of the word "dominion," which connotes
ownership or a right to property. Black's Law Dictionary 486
(6th ed. 1990).
More importantly, in this and other circuits, the
caselaw supports a reading of "power" as the right or
authority to exercise control, or dominion and control, over
something not in one's actual possession. See United States
v. Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992); United
States v. Latham, 874 F.2d 852, 861 (1st Cir. 1989); United
States v. Lamare, 711 F.2d 3, 5-6 (1st Cir. 1983); see also
United States v. Manzella, 791 F.2d 1263, 1266-67 (7th Cir.
1986) (Posner, J.) (defendant "must have the right (not the
legal right, but the recognized authority in his criminal
milieu) to possess [the drugs] . . . . Mere association with
those who possess the drugs is not good enough."); United
States v. Tolliver, 780 F.2d 1177, 1183 (5th Cir. 1986),
vacated and remanded on other grounds, 479 U.S. 1074 (1987);
United States v. Reese, 561 F.2d 894, 898 n.8 (D.C. Cir.
1977).
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For example, in Ocampo-Guarin, we found sufficient
evidence of "power" to establish constructive possession of a
suitcase and the cocaine inside it, where the defendant
carried baggage claim tickets "which represented her legal
right to reclaim the luggage." 986 F.2d at 1410. Similarly,
in United States v. Lamare, we upheld a finding of
constructive possession of a firearm that had been left as
collateral for a towing charge owed by the defendant, because
the defendant "could have taken actual possession of the
pistol at any time by paying the towing charge . . . and
intended to do so." 711 F.2d at 5-6.
The fact that contraband is located in a place specially
accessible to a defendant may be sufficient to establish a
defendant's power to exercise dominion or control over it,
and thus support a finding of constructive possession, if
there is a showing that the defendant has the right or
authority to exercise control over the object at issue, or if
the record is silent as to his right or authority over the
contraband. But here the very facts militating against a
finding of constructive possession while Santos and Zavala
were in the room together -- the fact that the drugs had not
been paid for, the fact that Zavala was not the intended
recipient, and Santos' refusal to follow Zavala's suggestion
to transfer them to another room -- effectively refute any
presumption that Zavala had any claim on the drugs.
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None of the cases cited by the majority support the
conclusion that, where knowledge is admitted or inferred, the
location of contraband in a place specially accessible to a
defendant, without more, is sufficient to establish
constructive possession. For example, in United States v.
Echeverri, 982 F.2d 675, 678 (1st Cir. 1993), it was the
"totality of the circumstances" -- the fact that drugs and
drug paraphernalia were found in plain view, only four feet
from the defendant himself, together with the fact that the
contraband was found in his apartment -- that persuaded the
court that the evidence was sufficient to support a finding
of constructive possession. And in United States v.
Chapdelaine, 989 F.2d 28, 33-4 (1st Cir. 1993), the court
found defendant in constructive possession of bullets found
in his bedroom closet based, in part, on the fact that they
matched those in a firearm found in defendant's actual
possession.
In United States v. Wight, 968 F.2d 1393, 1397 (1st
Cir. 1992), the single case cited by the majority that
approaches the situation before us, a jury convicted Wight,
the passenger in a van in which a pistol was found between
the driver's and the passenger's seat, of possessing the
pistol during the drug trafficking crime, but acquitted the
driver of the firearm possession charge. We upheld the
finding of Wight's constructive possession of the firearm,
noting that based on evidence of Wight's leading role in the
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drug transaction, "[i]t was reasonable for the jury to infer
that he, and not [the driver], was in charge of the operation
and, as such, exercised control over [the driver], the van,
its contents, and the firearm." Id. at 1398.
I find more apposite the Seventh Circuit's decision in
United States v. DiNovo, 523 F.2d 197 (7th Cir. 1975). In
DiNovo, the court reversed a wife's conviction for possession
of heroin, notwithstanding her cohabitation with her husband
in a trailer where 2 pounds of heroin and other drug
paraphernalia were found. Id. at 201-02. The court found
that even if the wife knew of her husband's drug possession,
this did not mean that she possessed the drugs, absent a
showing of her right to exercise control over them. Id.
To the extent that the court jettisons all idea of legal
right or practical claim to the contraband and assesses
"power" in terms of physical capacity to seize, it vastly
widens the concept of constructive possession. Contraband
stored in the locked box of a another person could be found
within the power of a defendant skilled in the use of lock
picking or explosives. Or, in a case like Wight, the finding
as to constructive possession would turn on whether the
driver was bigger and tougher than the passenger.
The same weakness affects the court's reasoning as to
the presence of intent to exercise dominion over the drugs.
The particular intent is not, as the court would have it, to
facilitate transfer of the drugs to their intended recipient,
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his presumed associate Palestino. The required intent is
that defendant intends to exercise his claim of dominion over
the drugs, i.e., to take control for himself. So the court,
inmy view, stretches thecontours of both"power" and "intent."
Finally, we should remember why we are of divided views
about the propriety of extending the scope of constructive
possession beyond that of any apposite authority. It is
because, as the court correctly notes, Zavala could have been
charged with conspiracy to possess drugs with intent to
distribute them, or with aiding and abetting Palestino's
attempt to possess with intent to distribute. But Zavala was
not so charged; and the mere fact that guilt is in the air
should not allow us to extend the reach of the criminal
possession statute in these circumstances. There needs to be
some meaningful distinction between the crime of conspiracy
to possess, and possession itself. The rule of the present
case, allowing the government to prove constructive
possession simply by having a confidential informant deposit
contraband in a hotel room shared with a target, and then
leave the room with this person, with the arresting officers
waiting until the door shuts, would erode any such
distinction.
I am uncomfortable in taking this significant step --
particularly where the purpose served is to bail out a
maladroit prosecution. I therefore respectfully dissent.
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