boyfriend, that he was "over a lot," and that he "stayed overnight" a couple of times a week. On cross-examination by the prosecution the investigator further testified that Ms. Trevathan said she knew nothing about the gun. In closing argument, the prosecution characterized Ms. Trevathan's testimony, contradicted and confused as it was by what she told Rivera and the defense investigator, as "incredible."
The police took no fingerprints although the crime search officer conceded that the barrel and other parts of the gun might have borne them. None of the clothing in the room was recovered or offered into evidence to establish, much less corroborate, the inference the prosecution sought to establish: that defendant lived in the room. It has failed to prove beyond a reasonable doubt by credible evidence that he lived there. The prosecution did not prove that any of defendant's possessions were in the room except the pouch on the dresser, the eyeglasses on the fan, the clothes on the floor and furniture, and the manilla envelope at the bottom of a closed drawer. It is more likely than not likely that the pouch, the clothes, and the eyeglasses were literally on defendant's body when he arrived and were hastily removed as he stripped to go to bed. The envelope alone cannot reasonably establish that defendant had dominion and control over the room and its contents. Nor can the envelope establish that the gun belonged to defendant, despite the fact that it was found in the same drawer with the gun. In all the circumstances there is not sufficient connection between the gun, which was in the front of the drawer, and the envelope, which was under clothing that was not produced, to carry the prosecution's burden of proving defendant's constructive possession of the gun beyond a reasonable doubt.
Decisions in this Circuit in criminal cases in which the prosecution relies on circumstantial evidence to prove constructive possession of guns and drugs teach that circumspection and caution are in order in appraising the government's reliance on circumstantial evidence to prove constructive possession beyond a reasonable doubt. As the Court of Appeals has twice stated, with emphasis: "constructive possession 'should not be lightly imputed to one found in another's apartment or home.' United States v. Holland, 144 App. D.C. 225, 445 F.2d 701, 703 (D.C. Cir. 1971)." United States v. Long, 284 App. D.C. 405, 905 F.2d 1572, 1576 n.7 (D.C. Cir. 1990). Elsewhere, the Court of Appeals has stated:
First, mere proximity to contraband is not enough to carry a case of constructive possession to the jury. United States v. Pardo, 204 App. D.C. 263, 2636 F.2d 535, 549 (D.C. Cir. 1980); United States v. Whitfield,. . . [203 App. D.C. 102, 629 F.2d 136 (D.C. Cir. 1980)] at 143; United States v. Holland, supra, 445 F.2d at 702-03; United States v. Bethea, 143 App. D.C. 68, 442 F.2d 790, 793 (D.C. Cir. 1971). Second, mere knowledge of the presence of contraband does not constitute constructive possession. See United States v. Pardo, supra, 636 F.2d at 549. Nor is mere friendship probative of constructive possession. See United States v. Whitfield, supra, 629 F.2d at 143 (mere friendship between driver and passenger in a car, combined with proximity to narcotics, did not create an inference of constructive possession of the narcotics). See also United States v. Holland, supra, 445 F.2d at 703 (fact that defendant was found in close proximity to the contraband in question and in an apartment belonging to someone with whom the defendant was having a love affair did not create an inference of constructive possession.)
United States v. Hernandez, 251 App. D.C. 5, 780 F.2d 113, 116-17 (D.C. Cir. 1986) (emphasis added).
Here the prosecution's failure of proof is palpable, even though this case took approximately a full day and a half to try without the interruptions inherent in jury trials. The prosecution produced no evidence of actual possession. No witness ever saw the defendant with this or any other gun,
no witness had ever seen him touch either the second drawer or the dresser. The only relevant direct evidence, apart from the testimony of Ms. Trevathan, correctly described by the government as incredible, and second hand accounts of her out of court statements, was defendant's presence in the bedroom when he was arrested, the envelope in the drawer and the pouch found on top of the dresser. It is reasonable to infer from the circumstances that the defendant was, in effect, "wearing" the pouch when he entered the room, and that he removed it, as he did his glasses and his clothes, before he went to bed. It is more likely than not likely that the gun and envelope were put in the drawer at some other time; by whom can only be inferred by extrapolation tantamount to speculation. The location of the envelope underneath clothing at the bottom of the drawer and the gun uncovered at the front of the drawer suggests that they were placed in the drawer at different times, and, quite possibly, that the envelope was placed there before the gun. In the circumstances, defendant's mere presence in the bedroom at the time of his arrest does not effectively corroborate any evidence that the gun in the closed second drawer was under his dominion and control.
The strongest evidence offered by the government to establish some nexus between the defendant and the gun was the envelope. Again, it is just as reasonable to infer that defendant had left the envelope some place other than in the drawer and that Cheryl, rather than defendant, placed it in the drawer under the piece of clothing. In the circumstances, there is a failure of the proof required for a criminal conviction that on January 7, 1992, defendant, and not Cheryl, "received and possessed" the gun.
In argument, the prosecutor suggested from the fact that there were razor blades in the pouch, that defendant was a drug dealer. In appraising this evidence, it is appropriate to bear in mind the observations of the Court of Appeals when reviewing another.22 caliber case. United States v. Bruce, 291 App. D.C. 225, 939 F.2d 1053, 1055 (D.C. Cir. 1991). There, a four shot.22 caliber Derringer pistol, said the Court, " . . . is hardly the sort of weapon a drug dealer would employ for protection against an effort to penetrate a crack house." In many circumstances, the size and weight of a weapon might be immaterial. Here, however, the government had the burden of proving beyond a reasonable doubt that this defendant had constructive possession of a.22 caliber revolver lying in a drawer in a room occupied by a woman, whom he visited from time to time. If the weapon had been a.38 caliber magnum or some other heavy weapon, one could possibly draw an inference that it belonged to defendant and not his girlfriend. The smaller pistol here, by contrast, is of the weight, configuration, and caliber which would be as easily handled by a small person and is not a likely weapon chosen by a man, whom the prosecution presented as presumably a drug dealer. The prosecution has failed to carry its burden of proving with credible evidence beyond a reasonable doubt that the defendant had actual or constructive possession of the gun in question.
The Clerk will enter a judgment of acquittal.
It is so ORDERED.
Date: March 31, 1992
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE