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UNITED STATES v. GRAYSON

May 27, 1988

United States of America
v.
Paula Grayson, Defendant


Thomas A. Flannery, United States District Judge.


The opinion of the court was delivered by: FLANNERY

THOMAS A. FLANNERY, UNITED STATES DISTRICT JUDGE

 Defendant Paula Grayson has filed a Motion for a New Trial or Judgment of Acquittal, following her conviction by jury on one count (Count III) of unlawfully possessing phencyclidine (PCP) with intent to distribute. 21 U.S.C. §§ 841(a) & (b)(1)(B)(IV). Grayson was acquitted on all other counts in the indictment, but the jury convicted her codefendant, Darrell Wilson, on four of the five counts in their indictment under federal narcotics laws.

 As the basis for her motion, Grayson asserts that there was insufficient evidence for the jury to convict on a theory of constructive possession, and that the Court erred by denying a defense request to introduce a search warrant and accompanying affidavit into evidence. Finding merit in the first contention, the court pretermits the second and grants the motion for a judgment of acquittal. After reviewing the evidence presented at trial and the facts stipulated at a post-trial hearing on this motion, the court concludes there was insufficient evidence for the jury to conclude, beyond a reasonable doubt, that Grayson possessed the particular items of contraband referred to in Count III.

 I.

 Wilson and Grayson were detained during the search, and when the search uncovered large quantities of PCP and other drugs, Wilson and Grayson were arrested. Each count in the ensuing indictment relates to narcotics found in discrete areas of the house. *fn1" Counts I & II refer to containers of PCP found in a locked trunk in the kitchen; Counts IV and V refer to drugs that were concealed in the bedroom. Count III, the only count on which the jury convicted Grayson, refers to two containers of PCP found in a bathroom across the hall from the bedroom where Grayson was found.

 The first of these containers, an unwrapped almond extract bottle containing an ounce of PCP, was found just next to the toilet; the second, a sixteen ounce Burke's Root Beer bottle wrapped in plastic and placed inside a paper shopping bag, contained approximately two ounces of PCP and was found beside the bathtub. According to one officer's trial testimony, the bottles bore the distinctive odor that experienced narcotics officers associate with PCP.

 In addition to the contraband and other evidence, the following items were noted or recovered at the house and presented at trial: a set of keys, later identified as belonging to Grayson, which included a key to the front door of the house; some mail addressed to Grayson, but directed to an address other than that where the drugs were found; and photographs of Grayson and Wilson taken at the house. All other indicia of occupancy -- leases, mail etc. -- connected Wilson, but not Grayson, to the premises. The government introduced no further evidence to link Grayson with the PCP or anything else police found at the house.

 II.

 When defendants claim that evidence on one or more elements of an offense was insufficient to support a jury verdict, the court must evaluate the evidence in the light most favorable to the government, United States v. James, 246 U.S. App. D.C. 252, 764 F.2d 885, 889 (D.C. Cir. 1985), adopting any permissible inferences that the jury might have drawn in support of the prosecution. "When a reasonable mind might fairly have a reasonable doubt of guilt or might fairly have none, the decision is for the jurors to make." United States v. Herron, 185 U.S. App. D.C. 403, 567 F.2d 510, 514 (D.C. Cir. 1977).

 Grayson contends that this standard precludes her conviction for possession of the PCP in the bathroom. A jury certainly could not have concluded that Grayson had actual possession of the narcotics referred to in Count III, but the jury may convict if there is either constructive or actual possession, and the government may meet its burden of proving this element either by direct or by circumstantial evidence. United States v. Lawson, 221 U.S. App. D.C. 63, 682 F.2d 1012, 1017-18 (D.C. Cir. 1982); United States v. Raper, 219 U.S. App. D.C. 243, 676 F.2d 841, 847 (D.C. Cir. 1982).

 The government in this case proceeded on a theory of constructive possession based entirely on circumstantial evidence, evidence that Grayson contends cannot support a jury conclusion that she "was in a position or had the right to exercise dominion or control" over the contraband, or that "such 'dominion and control' [was] knowing." See United States v. Hernandez, 251 U.S. App. D.C. 5, 780 F.2d 113, 116 (D.C. Cir. 1986). She supports this argument by reference to "principle of law firmly rooted in this circuit [] that " mere presence at the scene of a drug transaction or mere proximity to drugs seized is not sufficient to establish guilt." United States v. Pardo, 204 U.S. App. D.C. 263, 636 F.2d 535, 549 (D.C. Cir. 1980) (emphasis in original). This principle was reaffirmed this term in United States v. Dunn, 846 F.2d 761 (D.C. Cir. 1988).

 This court recently has surveyed constructive possession cases, identifying the types of circumstantial evidence that, in conjunction with presence or proximity, are adequate to support the requisite jury conclusion "that in some discernible fashion the accused had a substantial voice vis-a-vis the drug." United States v. Staten, 189 U.S. App. D.C. 100, 581 F.2d 878, 884 (D.C. Cir. 1978). In United States v. Green, 652 F. Supp. 1312 (D.D.C. 1987), the court noted that verdicts based on constructive possession generally have been upheld when "the government introduced evidence of illegal narcotics or drug paraphernalia in plain view of both police and the occupants of the premises searched," or when there was "evidence that defendants acted ...


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