Before WILBUR K. MILLER, Senior Circuit Judge, and DANAHER and WRIGHT, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1965.CDC.61
Petition for Rehearing En Banc Denied June 14, 1965.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DANAHER
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 ...