NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-4772

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UNITED STATES OF AMERICA

v.

ARTURO JAIMESPIMENTZ,

Appellant 

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Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 2-09-cr-00488-003)

District Judge: Honorable Michael M. Baylson

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Submitted Under Third Circuit LAR 34.1(a)

July 9, 2012

Before: RENDELL, SMITH and BARRY, Circuit Judges

(Opinion Filed: July 19, 2012) 

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OPINION OF THE COURT 

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RENDELL, Circuit Judge

Arturo Jaimespimentz

.

1

 1 The indictment lists the defendant’s name as Arturo Jaimespimentz. At trial, however,

defense counsel represented that his correct name is Arturo Jaimes Pimentel. 

appeals from the District Court’s denial of his motion for a 

judgment of acquittal on counts of possession with the intent to distribute cocaine and 
2

crack cocaine.

2

I.

He argues that the Government failed to present evidence sufficient to 

prove beyond a reasonable doubt that he exerted dominion and control over the drugs 

seized upon his arrest. We disagree because a reasonable jury could have concluded that 

the Government proved Jaimespimentz’s physical control over the drugs beyond a 

reasonable doubt. Accordingly, we will affirm.

We write principally for the benefit of the parties and therefore recount only those 

facts essential to our review.

On May 28, 2009, Philadelphia police officers obtained and executed a search 

warrant for a home at which a confidential informant purchased 28 packets of heroin. 

Upon entering the residence, they found Jaimespimentz, Luis Perez, and Nelson Acosta

around a kitchen table, engaged in a narcotics packaging operation. Jerry DeJesus—

girlfriend of Wilson Castro, the home’s primary resident, who was asleep upstairs during

the raid3

 2 The Government initially filed an appeal challenging the District Court’s retroactive 

application of the Fair Sentencing Act which lowered Jaimespimentz’s minimum 

sentence. It subsequently withdrew that appeal, such that only this cross-appeal remains. 

—was also in the kitchen, uninvolved in the drug operation. She later testified 

that Perez cut the drugs with a razor, Acosta bagged them, and Jaimespimentz counted 

the finished bags. According to her testimony, Jaimespimentz moved his hands in a 

manner indicative of counting and physically touched the drugs. 

3 Earlier that morning, Castro greeted Acosta who arrived from New York to be 

introduced to drug customers. Acosta was accompanied by Jaimespimentz, who Castro 

had never met. Upon arriving, Acosta took out a bag of cocaine that he and Castro 

cooked into crack on the stove. All the while, Jaimespimentz sat on the living room 

couch, having no conversation with Castro. Castro, feeling sick, then retired upstairs. 
3

Jaimespimentz attempted to flee through the back door. The officers apprehended 

and arrested him, along with the four others. On the kitchen table, officers found 789 

packets of crack, nine packets of cocaine, uncut crack, and numerous empty packets.4

On July 21, 2009, Jaimespimentz was indicted on four separate counts: conspiracy 

to possess with the intent to distribute heroin, cocaine, and crack cocaine, in violation of 

21 U.S.C. § 846 (Count One); possession of 50 grams or more of cocaine base (“crack”), 

in violation of § 841(a)(1) (Count Two); possession of heroin with the intent to distribute, 

in violation of § 841(a)(1) (Count Three); and possession of cocaine with the intent to 

distribute, in violation of § 841(a)(1) (Count Four).5

Jaimespimentz subsequently moved for a judgment of acquittal, arguing 

insufficiency of the evidence. The District Court granted his motion as to Count One 

(conspiracy), but denied it as to Counts Two and Four. This appeal challenges that

denial.

 On June 8, 2010, the jury convicted 

him on Counts One, Two, and Four.

6

II.

We apply “a particularly deferential standard of review when deciding whether a 

jury verdict rests on legally sufficient evidence. ‘It is not for us to weigh the evidence or 

to determine the credibility of the witnesses.’” United States v. Dent, 149 F.3d 180, 187 

 4 Heroin and paraphernalia for packaging heroin were found under the kitchen sink and in 

a second floor bedroom. 

5 Counts Two, Three, and Four each included a charge for aiding and abetting as well.

6 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction 

pursuant to 28 U.S.C. § 1291.
4

(3d Cir. 1998) (citations omitted) (quoting United States v. Voight, 89 F.3d 1050, 1080 

(3d Cir. 1996)). Rather, we must view the evidence in the light most favorable to the 

Government, and will sustain the verdict if “any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” Voight, 89 F.3d at 1080 

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Thus, “a claim of insufficiency 

of the evidence places a very high burden on an appellant.” United States v. Gonzales, 

918 F.2d 1129, 1132 (3d Cir. 1990).

The essential elements of possession of a controlled substance with intent to 

distribute are (1) knowing or intentional possession and (2) intent to distribute. See 21 

U.S.C. § 841(a)(1). Possession may be actual or constructive. Constructive possession 

exists if an individual “knowingly has both the power and the intention at a given time to 

exercise dominion and control over a thing, either directly or through another person or 

persons.” United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992). “Such dominion and 

control need not be exclusive but may be shared with others.” United States v. Davis, 

461 F.2d 1026, 1035 (3d Cir. 1972). However, “mere proximity to the drug, or mere 

presence on the property where it is located, or mere association with the person who 

does control the drug or the property, is insufficient to support a finding of possession.” 

Id. at 1036. Alternatively, “to convict of aiding and abetting, the government must prove 

that the defendant in some way associated himself with the venture, that he participated 

in it as something that he wished to bring about, [and] that he sought by his action to 

make it succeed.” United States v. Jenkins, 90 F.3d 814, 821 (3d Cir. 1996) (internal 

quotation marks and alterations omitted).
5

Jaimespimentz urges that the evidence was insufficient to prove beyond a 

reasonable doubt that he exercised dominion and control over drugs seized during the 

execution of the search warrant. First, he contends that DeJesus’s testimony—upon 

which the Government’s case relied heavily—consisted of mere speculation because she

did not hear him counting the drugs, see the co-defendants hand him drugs, or observe 

him placing packets in groups. He also attacks DeJesus’s credibility given her 

relationship with Castro. It is not, however, for us to weigh evidence and consider 

witness credibility, as Jaimespimentz urges. According to DeJesus’s testimony,

Jaimespimentz “mov[ed] his hands . . . as if he was counting.” When asked if 

Jaimespimentz physically touched the drugs, she responded, “as far as I know, yes.” The 

jury was aware of DeJesus’s limited exposure to the packaging operation and her 

relationship with Castro, but was nevertheless entitled to credit her testimony. From this 

testimony, the jury could reasonably have determined that Jaimespimentz exerted 

dominion and control over the drugs. 

Jaimespimentz further submits that his mere presence in the house was insufficient 

to constitute possession, analogizing his conduct to that found insufficient in Jenkins, 90 

F.3d at 814, and United States v. Dunlap, 28 F.3d 823 (8th Cir. 1994). Again, however, 

Jaimespimentz underestimates the content of DeJesus’s testimony, which established 

that, unlike the defendants in those two cases, he physically touched the drugs. Although 

the defendant in Jenkins was seated in front of a coffee table with drugs, scales, and other 

paraphernalia when police arrived, there was no proof that he had physical control over 

them. 90 F.3d at 820-21. Likewise, in Dunlap, although the home in which the 
6

defendant was found contained drugs, scales, refining equipment, packaging 

paraphernalia, and guns, the defendant’s mere presence there did not prove constructive 

possession over the contraband. 28 F.3d at 827. By contrast, Jaimespimentz physically 

held the drugs while assisting in the packaging activities. Thus, the cases to which he 

cites do not warrant relief.

Indeed, as the Government points out, a juror could reasonably infer that 

Jaimespimentz assisted in the packaging operation. He arrived with Acosta, who carried 

the drugs, and helped count them once packaged for sale. Thus, even if the Government 

did not prove Jaimespimentz’s own exertion of dominion and control over the drugs, its 

evidence sufficed to prove that he aided and abetted the operation. Proof of aiding and 

abetting independently supports the convictions Jaimespimentz attacks on appeal.

III.

For the foregoing reasons, we will affirm the order of the District Court.