James, 246 U.S. App. D.C. 252, 764 F.2d 885, 890 (D.C. Cir. 1985) (drugs and paraphernalia in plain view); United States v. Staten, 189 U.S. App. D.C. 100, 581 F.2d 878, 885 (D.C. Cir. 1978) (drugs and distribution paraphernalia "openly strewn about"); United States v. Davis, 183 U.S. App. D.C. 162, 562 F.2d 681, 692-3 (D.C. Cir. 1977) (scales, plastic bags, hashish and marijuana in plain view in defendant's bedroom). The D.C. Circuit has held in this type of case that the presence of contraband in plain view supports an inference of knowledge of that contraband by the resident, whereas absence of such evidence would compel a different result.
In the second pattern of cases, the Government introduced evidence that defendants acted in a manner consistent with knowledge or guilt. See, e.g., United States v. James, 246 U.S. App. D.C. 252, 764 F.2d 885 (D.C. Cir. 1985) (defendant attempted to disarm arresting officer, and to destroy evidence of narcotics by running water into a jar containing marijuana); United States v. Staten, 189 U.S. App. D.C. 100, 581 F.2d 878, 885-6 (D.C. Cir. 1978) (defendant slammed door on police executing search, and police found garbage disposal containing money and heroin running when they entered minutes later). In this latter situation, defendants' conduct has been held to support an inference of knowing dominion and control.
However, in both types of cases, while this Circuit has affirmed convictions for possession, it has reiterated the insufficiency of "mere presence of the accused on the premises." United States v. Staten, 581 F.2d at 884, and has noted with approval the Bonham court's ruling that where there is no other evidence to support an inference of knowing possession, a judgment of acquittal is proper. See United States v. James, 764 F.2d at 890; United States v. Lawson, 682 F.2d at 1017; United States v. Staten, 581 F.2d at 884 and n.55 (where "there is nothing except the joint occupancy of the [premises] upon which an inference of possession could be based," a judgment of acquittal is proper).
Such is the state of the evidence here. In order to convict defendants, the jury would have had to infer knowing dominion and control from the mere discovery of contraband in an apartment shared with at least four others. There was no evidence of any contraband or drug paraphernalia in plain view. Indeed, the items seized were only discovered after a thorough search, in one case beneath several layers of clothing and magazines, and in another after opening a bottle and sniffing its contents. Such an inference is impermissible as a matter of law.
The testimony of the defense witness that a juvenile resident of the searched premises showed the witness the PCP makes this inference still more improper, since it strongly suggests that someone other than defendants had knowing dominion and control of the seized narcotics. See United States v. Bonham, 477 F.2d at 1139-40 (inadmissible evidence that one of two joint occupants told an informant that the seized narcotics were his "demonstrates the potential for unfairness if courts should permit an inference of possession from the fact of joint occupancy of a bedroom in which contraband is hidden, absent anything more that tends to inculpate the accused.").
The Government, in its opposition, focuses on the intent not to possess but to distribute the seized narcotics, and relies on the testimony of its expert to support the jury's verdict. However, this element is not the one in issue, and therefore the Government's argument is misplaced. Expert testimony on the way drugs are packaged for street sale, how a drug operation works, or the existence of 'stash houses' does not provide the evidence needed to support a determination that defendants knowingly possessed the contraband, or to take the jury's actions beyond the "speculation" which the Bonham court held impermissible.
Finally, the Government contends that the cases relied upon by defendants are no longer authoritative, since the subsection under which Bonham was prosecuted has been repealed. See Government's Opposition at 4-5, citing P.L. 91-513, Title III, § 1101(b)(3)(A), Oct. 27, 1970, 84 Stat. 1242-1296, 21 U.S.C. § 801 et seq. Again, the Government confuses the element of intent to possess with the element of intent to distribute. The repeal of 21 U.S.C. § 174, which had permitted a conclusive presumption of trafficking from a finding of possession, is irrelevant to the question presented by defendants' motion, which is whether the finding of possession is itself proper given the evidence. Moreover, the amended act, enacted in 1970, has been followed by numerous D.C. Circuit cases which affirm Bonham in the way discussed above at slip op. pp. 5-6.
In addition, in the context of possession not of narcotics but of firearms, the D.C. Circuit has recently spoken to the very issue presented by this motion. In United States v. Foster, 251 U.S. App. D.C. 272, 783 F.2d 1087 (D.C. Cir. 1986), the court reversed a conviction for possession of an unregistered firearm based upon a determination that the evidence was insufficient to support a finding that the defendant knew where the gun was and had the ability or right to exercise dominion or control over it. The court so held although the facts in Foster raised a far stronger inference of knowledge than is present in the instant case. In Foster, defendant was an employee in a variety store, who was observed behind a counter during his workday. Beneath the counter was a shotgun which police testified was "approximately at [defendant's] fingertips when they entered the store," with "the butt of the gun . . . visible when [defendant] knelt behind the counter." 783 F.2d at 1089. Nevertheless, the court held that the Government's evidence was insufficient to support a guilty verdict. A fortiori, the facts of the instant case, in which no narcotics were visible to trained police officers without a search, and in which no evidence was offered to support an inference of knowledge of existence of the illegal narcotics, let alone of the intent on defendants' part to exercise dominion and control over them, a judgment of acquittal is proper.
An Appropriate Order accompanies this Memorandum.
This matter came before the court on defendants' Motion for Judgment of Acquittal, or in the Alternative, a New Trial. Upon consideration of the motion, the opposition thereto, the entire record herein, and oral argument, and for the reasons stated in the accompanying Memorandum, it is by the court this 30th day of January, 1987
ORDERED that defendants' Motion for Judgment of Acquittal is granted; and it is further
ORDERED that a judgment of acquittal be, and hereby is, entered in favor of defendants Vivian and Cora Green.
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