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05/05/65 Theodore H. Miller, v. United States of America


May 5, 1965




Before WILBUR K. MILLER, Senior Circuit Judge, and DANAHER and WRIGHT, Circuit Judges.


May 5, 1965.

Petition for Rehearing En Banc Denied June 14, 1965.


DANAHER, Circuit Judge.

Appellant was convicted and was sentenced to serve concurrent sentences on two counts of an indictment which had charged him with violation of 26 U.S.C. § 4704(a) (1958) *fn1 and 21 U.S.C. § 174 (1958) *fn2 Received in evidence against the appellant were some 54 gelatin capsules said by the Government chemist to have contained heroin, a derivative of opium.In addition, the officers had found an envelope containing a quantity of heroin. This appeal presents questions as to the instructions to the jury respecting the appellant's possession of the narcotics, and as to possible prejudice in the selection of the jury. I

Officers with a search warrant had presented themselves at 604 R Street, N.W. in the District of Columbia. After responding to their knock on the door, the appellant admitted the officers. They asked if he had narcotics in the premises, and the appellant answered affirmatively. He took them to the second floor and pointed toward a dresser drawer, which Officer Paul opened.There he found a large quantity of new gelatin capsules, some used capsules with traces of a white powder in them and a strainer. The officers asked if there were "other narcotics" in the premises, and appellant responded he would take the officers downstairs where he had narcotics in his coat pocket. The officers followed him downstairs. There on the foot of a bed *fn3 was a gray jacket which matched the appellant's trousers. The appellant said that the narcotics were "in there."

In a pocket of that jacket Officer Paul found a "clear plastic vial" containing 54 gelatin capsules with white powder in them, and a brown envelope which contained a quantity of loose white powder. Officer Paul thereupon arrested the appellant *fn4 The powder, so found, proved to be heroin, the chemist later testified.

The appellant told the police that he had been in business only a short period of time, that he was buying the house, was in the process of remodeling it and that after he had finished "fixing it up and everything else, he was going to quit the narcotics business." He stated that he had been obtaining narcotics from a person he named, that he would purchase a half ounce two or three times a week, paying $100 for the half ounce and would then cap up the heroin and make 200 capsules out of each half ounce and sell them. He said he did not use drugs.

At trial the appellant testified that his salary was $70 a week plus tips; he had a son in college; he had made a $400 down payment on the house which, at closing was to cost $13,950; the remodeling expense was to be $2,500; he had three telephones in the house entailing a monthly charge of about $30; he was supporting Portia Owens and his infant son and was making a daily payment of $3 or $4 to her "cousin" who was to keep his eye on the place while the workmen were remodeling; he had never seen filled capsules before they were taken from his coat pocket; all he knew about narcotics was what he had read in the papers *fn5 No other witness was called by the defense.

The trial judge correctly instructed the jury that unless the Government had proved beyond a reasonable doubt that this appellant had either actual or constructive possession *fn6 of the drugs in evidence, the jury was bound to bring in a verdict of not guilty.

The defense counsel announced himself as satisfied with the charge as given in all respects but one. He said that since there was evidence that another person was in the room where the officers had found the narcotics, and that such person "also had the opportunity to have been in possession of those drugs," the jury should not speculate "between the Defendant and such other person, but should be convinced beyond a reasonable doubt that the Defendant was in possession."

"The Court: I so charged the jury. I have charged the jury that they must find beyond a reasonable doubt that the Defendant had possession." (Emphasis added.)

No doubt from an abundance of caution, the judge expanded his earlier instruction on possession but reemphasized that if "the Government has not proved beyond a reasonable doubt that the Defendant had either actual or constructive possession of the drugs in question, then your verdict must be not guilty." After colloquy with counsel the judge further explained to the jury:

"Well, obviously, in both instances the burden is on the Government to prove beyond a reasonable doubt that the Defendant did have possession. He says he didn't have possession. Obviously, if he didn't have possession, he would not be called upon to explain it.

"He says he didn't have possession. So if possession was in someone else, then he wouldn't be required to explain a possession which he didn't have, according to his theory."

We are satisfied that the trial judge correctly and adequately took into account the argument of appellant's counsel that since Portia Owens was in the room, she, rather than the appellant, might have possessed the narcotics. As the trial judge said, if the jury believed that the Government had not proved Miller to be in possession of the narcotics, he should be found not guilty. It is obvious from the verdict, thoroughly supported by the record, that the jury did not believe the appellant. It is beyond question that the "possession" under discussion may be either actual or constructive in that the accused is in position to exercise dominion and control over the contraband *fn7 II

Preliminary to the selection of the Miller jury8, the prosecutor briefly outlined the case, noting that the offense was alleged to have occurred on April 8, 1963 at 7:20 A.M. "at the Defendant's home at 604 R Street, Northwest, here in the District of Columbia." After introducing each of the witnesses for the Government, the prosecutor said:

"I would like to ask you ladies and gentlemen of the prospective jury, first of all, whether any of you have heard anything about this case or read anything about this case before coming here today as prospective jurors." (Emphasis supplied.)

He asked various other questions designed to elicit a possible ground for disqualification of any juror and in particular whether there might be "any reason why you could not sit in the case and render a fair and impartial verdict based on the facts and the law as His Honor will instruct you? Does any reason suggest itself whatever?" Defense counsel then interrogated the jury, a panel was drawn, and defense counsel excused one juror. No other disqualification was made manifest. Neither attorney had mentioned the Welch case9, and both expressed themselves as satisfied with the jury as drawn.

The trial went forward and before excusing the jury overnight, the trial judge admonished the jurors not to discuss the evidence and not to permit anyone to talk about it in their presence. He added that they were not to

"talk about it even among yourselves until the time comes for the Court to submit the case to you for your determination. At that time you will be expected to decide the case based solely on the evidence which you hear in this courtroom during the course of the trial . . ..

"You should not read anything about the case . . . nor should you listen to anything about it . . ..

"You must not permit anyone to share in your responsibility, which is your responsibility alone, to determine this case solely on the evidence which you hear in this courtroom." (Emphasis added.)

The next morning defense counsel informed the judge that when the Welch venire was being examined on voir dire some five days earlier, some members of the Miller jury panel "were part of the over-all panel in the Walter Welch case. Of course, the actual jury members who sat in the Welch case were excluded [from the Miller venire]." Counsel stated that he did not know "whether any of these jurors after the Welch case may have discussed with the others what happened." In colloquy with the judge it was developed that up to that minute the name of Welch had not even been mentioned in the Miller trial. Describing it as "a nebulous situation," defense counsel asked for a mistrial. No prejudice was shown, and counsel observed simply that "we don't know what jurors talk about when these cases are over."

There was no suggestion that any members of the Miller panel of jurors actually had talked with or gained any impression concerning this case from jurors who had sat in the Welch trial. The appellant had made no demonstration and no proffer of evidence of partiality on the part of any juror10 There was no motion that the judge inquire of the jurors whether any of those drawn in the Miller trial had perceived from any source a connection with the Welch case or, if so, had formulated any opinion as to Miller's guilt11

The judge in colloquy with defense counsel stated

"that before this trial commenced, you asked me to make sure that no person who served as a juror -

"[Counsel]: Yes -

"The Court: - in the Welch case was on the panel in this case; and I did that. That was accomplished."

The trial judge then denied the motion for a mistrial but gave the defense leave to renew the motion at the close of the defense case. The trial was resumed.

When the appellant took the stand, he testified that someone else was occupying a room on the second floor but he did not mention Welch. The chest of drawers in which the empty capsules and other paraphernalia had been found belonged to the appellant, he testified, and that was in an unoccupied room. He had never previously seen those capsules, he said. He not only did not know how the heroin got into his coat pocket downstairs, he did not know how the empty capsules got into his chest of drawers upstairs, he said. He made no suggestion that Welch was the "someone else" who occupied a bedroom on the second floor or that he owned any of the seized evidence. Although he had been given an opportunity to renew his motion for a mistrial at the close of the defense case, the appellant made no such motion. It fairly may be deduced that defense counsel was satisfied that the instant trial had in no way been linked with the Welch case to the prejudice of the appellant.

We conclude that no bias or lack of impartiality was demonstrated with respect to any juror, nor was there established a basis for requiring the trial judge to do other than deny the motion for a mistrial. We are satisfied that the jury could readily conclude that actual possession by the appellant of the narcotics in question had been established beyond a reasonable doubt, thus bringing into play the presumption permitted by the applicable statutes, supra notes 1 and 2. After consideration of the entire record, we perceive no error.



J. SKELLY WRIGHT, Circuit Judge (dissenting).

In this case the jury was called upon to choose between two widely varying accounts of police entry into the premises where appellant lived and seizure of narcotics found in appellant's suit coat. According to the Government's version, appellant met the police officers at the door, admitted that there were narcotics in the house, and led them to his room where paraphernalia commonly used in administering narcotics were found. The police testified that appellant then led them to another room occupied by one Portia Owens, a narcotics addict.In this room the officers found appellant's suit coat containing a package of heroin powder in one of the pockets. The coat was lying on the bed which at the time was occupied by Miss Owens.

There is no question that the Government's evidence, if credited, was sufficient to sustain a jury finding that appellant had possession of the heroin, but appellant gave a quite different version of the events in issue. He testified that the suit coat was found by the police without his directing them to it and that he had no knowledge of the narcotics which were found in the coat pocket. Obviously if his testimony were to be credited a conviction could not have resulted. Because I feel that this was not made sufficiently clear to the jury by the court's instructions, I would remand this case for a new trial.

The problem involves the meaning of "possession" in 21 U.S.C. § 174 and 26 U.S.C. § 4704. Both sections prohibit certain transactions involving narcotics and both provide that a finding of possession of the contraband drugs raises a presumption that the possessor committed the prohibited acts1 This presumption of guilt, since it contravenes the usual presumption of innocence, must be strictly confined to the limits prescribed in the statutes2 Hence, aside from the question whether the evidence would sustain a finding of possession, if in fact the jury were to find no possession no statutory presumption could be invoked and conviction would have to rest on direct evidence of the prohibited acts. It is evident, therefore, that the term "possession" must be correctly defined in the court's instructions so that the jury will be properly informed as to when the statutory presumption can be used.

Here the jury was instructed as follows:

". . . [You] are instructed as a matter of law that possession as used in the statute means not merely actual physical possession, where the drug is in the immediate possession or control of the Defendant, but also includes constructive possession as well. Constructive possession occurs when a person does not have within his hands or grasp the article in question but does have dominion and control over the article."

At no point in the charge was the jury told that appellant must have known of the presence of the heroin in order to have possession3 Possession was equated with "dominion and control." Thus, the jury might well have thought that the dominion and control which appellant had over his coat was sufficient to give him dominion and control, and hence "possession," over the narcotics found inside the coat. Possession, thus conceived, could have been found even if the jury believed appellant's contention that he did not know the heroin was in his coat.

I think it is well settled that, whatever possession may mean in other contexts, under the narcotics laws it means dominion and control with knowledge4 Where the evidence is not sufficient to show knowledge on the part of the defendant, the charge should be dismissed5 Here, although the evidence was sufficient to establish appellant's knowledge, it was never made clear to the jury that his knowledge was required before the statutory presumption could be applied.

I do not read the majority opinion as disputing that knowledge is an essential element of the "possession" referred to in the narcotics laws6 The decision appears to rest either on a belief that the trial judge's instructions made this fact clear to the jury or on the ground that defense counsel's objection did not sufficiently raise the point and, therefore, Rule 30, FED.R.CRIM.P., prevents appellant's pressing the point on appeal. I need not consider whether the charge given could constitute plain error under Rule 52(b), FED.R.CRIM.P.7, since in my opinion defense counsel's objection was sufficient to preserve the point.

At the end of the charge, defense counsel requested an instruction telling the jury that they should consider the fact that another person, namely Portia Owens, could have placed the heroin in appellant's coat pocket. The point was that the heroin could have gotten into appellant's coat without his knowing it. In response to counsel's request, the trial judge instructed the jury as follows:

". . . He [appellant] says he didn't have possession. Obviously, if he didn't have possession, he would not be called upon to explain it.

"He says he didn't have possession. So if possession was in someone else, then he wouldn't be required to explain a possession which he didn't have, according to his theory." This instruction, given in terms of "possession" which had previously been defined as mere dominion and control, would not rectify a possible jury misconception that the statutory presumption might apply even absent a finding of knowledge on the part of appellant.

I respectfully dissent.

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