United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2006 Decided December 1, 2006

No. 05-3022

UNITED STATES OF AMERICA,

APPELLEE

v.

MELVIN LAWRENCE,

APPELLANT

Consolidated with

05-3023

Appeals from the United States District Court

for the District of Columbia

(No. 03-00175-01)

(No. 03cr00092-01)

David B. Smith, appointed by the court, argued the cause

and filed the briefs for appellant.

John P. Mannarino, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Kenneth L.

Wainstein, U.S. Attorney at the time the brief was filed, and Roy

W. McLeese, III, David B. Goodhand, Elana Tyrangiel,
2

Assistant U.S. Attorneys. Thomas J. Tourish, Jr., Assistant U.S.

Attorney, entered an appearance.

Before: RANDOLPH and TATEL, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Senior Circuit Judge

WILLIAMS.

RANDOLPH, Circuit Judge: In one trial (No. 03cr00092-01),

a jury found Melvin Lawrence guilty of distributing five grams

or more of cocaine base. In another trial (No. 03-00175-01), a

jury convicted him of possessing with intent to distribute more

than five grams of cocaine base, possessing firearms in

furtherance of drug trafficking, and possessing firearms as a

convicted felon. We consolidated Lawrence’s appeals. There

are two main issues. The first is whether the government

presented enough evidence to prove that the drugs were crack

cocaine or another smokable form of cocaine base, as our

opinion in United States v. Brisbane, 367 F.3d 910 (D.C. Cir.

2004), requires for convictions under 21 U.S.C.

§ 841(b)(1)(B)(iii). The second is whether the district court

erred in not granting Lawrence’s motion for a judgment of

acquittal on the possession charges in the second trial. 

I.

On April 30, 2002, undercover officers of the Metropolitan

Police Department purchased 21.1 grams of cocaine base from

Lawrence in the vicinity of Oak and Center Streets, in northwest

Washington, D.C. In the next month, they purchased drugs from

Lawrence and his associates twice more. On March 4, 2003, a

grand jury issued an indictment against Lawrence on three
3

counts of distributing cocaine base in violation of 21 U.S.C.

§ 841(a)(1) and § 841(b)(1)(B)(iii). 

On March 13, 2003, as part of the follow-up investigation,

officers executed search warrants on two residences. The first,

1458 Ogden Street, N.W., belonged to Lawrence’s parents; the

search there turned up no drugs or weapons. At the other

address, 3030 30th Street, S.E., apartment #304, Curtistine

Johnson resided with her four sons, one of whom Lawrence

fathered. 

The police found drugs and guns in Johnson’s apartment.

The pocket of a woman’s raincoat hanging in a closet near the

front door contained sixty-one small plastic bags of cocaine

base. In the master bedroom closet, there was a loaded .357-

caliber handgun, an assault rifle, a bag of ammunition for the

assault rifle, and empty plastic bags matching the ones in which

the drugs in the front closet were packaged. On the floor of the

master bedroom, the police discovered a basket they

characterized as a “cocaine cooking kit.” The basket held the

necessary equipment and ingredients to convert powder cocaine

into crack cocaine. Various items of men’s clothing were in the

apartment, including a distinctive “zoot suit” jacket in the

master bedroom closet and a man’s coat, with car keys in the

pocket, hanging in the closet near the front door. There were

photographs of Lawrence, including one showing him wearing

the “zoot suit” jacket. The police also recovered a health

insurance identification card bearing Lawrence’s name, as well

as more than ninety pieces of mail with Lawrence’s name on

them. At the time of the search, neither Lawrence nor Johnson

was present. 

On April 24, 2003, a grand jury indicted Lawrence and

Johnson on two charges: possessing with intent to distribute five

grams or more of cocaine base, see 21 U.S.C. § 841(a)(1),
4

(b)(1)(B)(iii), and possessing a firearm in furtherance of a drug

trafficking offense, see 18 U.S.C. § 924(c)(1). The indictment

also charged Lawrence alone with possessing a firearm as a

convicted felon, see id. § 922(g)(1). 

Lawrence’s first trial was on the charges contained in the

March 4th indictment. The jury convicted him of distributing

five grams or more of cocaine base in the April 30, 2003,

undercover sale, but could not reach a verdict on the charges

arising from the later undercover sales. The district court

deferred sentencing pending the outcome of Lawrence’s trial on

the charges contained in the April 24th indictment. 

In his second trial, on charges contained in the April 24th

indictment, Lawrence was tried with Johnson. At the close of

the prosecution’s case, both defendants filed motions for

judgments of acquittal pursuant to FED. R. CRIM. P. 29(a). The

court denied the motions. Lawrence’s attorney then notified the

court that Lawrence would not testify and that the only evidence

he sought to introduce was a series of stipulations he and the

government had negotiated. The government had requested a

few minor changes to the wording of the stipulations, so they

were not ready for submission at that time. 

Johnson proceeded with her defense, consisting of two

character witnesses and her testimony. After Johnson rested, the

court admitted Lawrence’s stipulations, which included the facts

that his driver’s license listed his parents’ address and that no

drugs or guns were found in the search of that residence. At the

close of his case, Lawrence renewed his motion for a judgment

of acquittal. The court denied the motion, and the jury found

both defendants guilty on all counts charged. 
5

II.

Brisbane held that to convict a defendant of violating 21

U.S.C. § 841(b)(1)(B)(iii) – the more stringent of two cocaine

provisions, this one devoted to cocaine base – the government

must prove not only that the substance at issue was cocaine base

but also that it was in a smokable form (like crack). See

Brisbane, 367 F.3d at 911. If the government fails to prove this,

the defendant must receive the lighter sentence for the lesser

included crime of violating § 841(b)(1)(B)(ii), which deals with

“cocaine and its salts.” See United States v. Eli, 379 F.3d 1016,

1020 (D.C. Cir. 2004). In Lawrence’s co-defendant’s separate

appeal, we determined that, although the record contained “no

evidence about the substance’s smokability and no expert

offered a specific conclusion that the drugs in question were

crack,” there was enough evidence to satisfy Brisbane. United

States v. Curtistine Johnson, 437 F.3d 69, 75 (D.C. Cir. 2006).

We reviewed Johnson’s claim under a plain-error standard. To

Lawrence that makes all the difference because he properly

preserved the issue for appeal, which we will assume arguendo

he did in both trials. Even so, the government presented enough

evidence for a rational jury to find beyond a reasonable doubt

that the drugs found in the woman’s raincoat were a smokable

form of cocaine base. 

In Lawrence’s first trial, the government produced evidence

that the substance in question contained cocaine base, that at the

time of purchase the drugs comprised “a large white rock

substance,” and that the sale of the drugs followed conventional

practices for the sale of crack cocaine. In addition, the

undercover officers who purchased the drugs from Lawrence

testified that he provided these drugs in response to their

requests to buy crack. When “the evidence consists of many

features consistent with crack cocaine,” Curtistine Johnson, 437

F.3d at 75, it is within a fact-finder’s province to decide, even
6

without expert testimony, that the drugs were crack cocaine. See

id. Viewing the evidence most favorably to the government, see

United States v. Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005), we

therefore conclude that a rational trier of fact could reasonably

have determined that the prosecution proved the smokability

element of § 841(b)(1)(B)(iii) beyond a reasonable doubt. See,

e.g., United States v. Gomez, 431 F.3d 818, 819 (D.C. Cir.

2005). In light of the evidence the government produced at

Lawrence’s second trial, all of which is recited in the opinion on

Johnson’s appeal, Curtistine Johnson, 437 F.3d at 75, and need

not be repeated here, we reach the same conclusion. 

III.

With respect to his convictions for possessing the drugs and

guns found at Johnson’s apartment, Lawrence argues that the

evidence was insufficient. If a rational trier of fact reasonably

could have concluded that the prosecution proved the elements

of the crime beyond a reasonable doubt, the evidence is

sufficient to uphold the conviction. See, e.g., Gomez, 431 F.3d

at 819. Possession may be actual or constructive. “Constructive

possession requires evidence supporting the conclusion that the

defendant had the ability to exercise knowing dominion and

control over the items in question.” Dykes, 406 F.3d at 721

(internal quotation marks omitted). Constructive possession of

items found in a home may be imputed to the home’s owner or

tenant because “a jury is entitled to infer that a person exercises

constructive possession over items found in his home.” Id.

(internal quotation marks omitted). If the defendant has a key

to a residence he does not own or rent, the jury still may infer

“that he was not just a casual visitor.” United States v. Staten,

581 F.2d 878, 885 (D.C. Cir. 1978); see also United States v.

Dingle, 114 F.3d 307, 311 (D.C. Cir. 1997). 
7

1

 Years before Cephus the Supreme Court stated that “[b]y

introducing evidence, the defendant waives his objections to the denial

of his motion to acquit. His proof may lay the foundation for

otherwise admissible evidence in the Government’s initial

presentation, or provide corroboration for essential elements of the

Government’s case.” United States v. Calderon, 348 U.S. 160, 164

n.1 (1954) (internal citations omitted). Cephus treated the Court’s

statement as dicta. 324 F.2d at 895 n.14.

If we considered the testimony of Lawrence’s co-defendant,

we would conclude that sufficient evidence supported his

convictions. Johnson testified that Lawrence had a key to her

apartment, and that he usually stayed there multiple nights each

week, often arriving after she had gone to bed. She said that he

kept clothing and other possessions there, and that he regularly

received mail at her address. 

Circuit precedent, however, precludes us from relying on

Johnson’s testimony and requires that we consider only the

evidence presented in the government’s case-in-chief. United

States v. Foster, 783 F.2d 1082 (D.C. Cir. 1986) (en banc), held

that when a defendant, after moving unsuccessfully for a

judgment of acquittal at the close of the prosecution’s case, puts

on evidence in his defense, the defendant waives the opportunity

to challenge the denial of his motion. If the defendant moves for

a judgment of acquittal at the close of all the evidence,

sufficiency claims must be evaluated in light of all the evidence,

including any inculpatory evidence presented in the defense

case. See id. at 1085; see also United States v. Wahl, 290 F.3d

370, 373 (D.C. Cir. 2002). 

The Foster decision rejected dicta in Cephus v. United

States, 324 F.2d 893 (D.C. Cir. 1963), with respect to

prosecutions involving one defendant,1

 but preserved “the

precise holding of the Cephus opinion itself – which . . . simply
8

refused to extend the [waiver] rule to the situation where, after

the defendant moving for acquittal declined to proceed with his

own case, inculpatory evidence was introduced by one of his codefendants.” Foster, 783 F.2d at 1086. 

Cephus rested on the theory that a defendant does not waive

a challenge to the denial of his motion for judgment of acquittal

when he is “forced” or coerced into presenting a case in

response to a co-defendant’s testimony incriminating him. In

that situation, the Cephus court thought, “the Government will

in effect have been able to use the coercive power of the codefendant’s testimony as part of its case-in-chief, even though

the Government was prohibited from calling the co-defendant to

testify for the prosecution.” 324 F.2d at 898. If we followed

Cephus alone, we would hold that under Foster Lawrence

waived his right to challenge the denial of his acquittal motion.

The testimony of his co-defendant did not coerce Lawrence into

mounting a defense. We know this because the stipulations he

introduced were agreed upon before Johnson testified; they were

admitted after her testimony only because they had to be

retyped; and they were not confined to rebutting the evidence

she gave about his relationship to her apartment. 

But there is a later decision on point, a decision the Cephus

coercion theory cannot explain. In United States v. Don

Johnson, 952 F.2d 1407, 1411 (D.C. Cir. 1992), the court stated

that it was adhering to “the rationale of Cephus,” but then went

considerably further than the rationale could take it. The Don

Johnson court held “that a co-defendant’s subsequent

inculpatory testimony may not be considered in ruling upon a

motion for a judgment of acquittal made after the close of the

government’s case in chief, even if the defendant might be

found, under Foster, to have waived his motion.” Id. By its

terms, Cephus applied only if a defendant was coerced into

responding to his co-defendant’s evidence and presented
9

evidence aimed at rebutting that evidence. 324 F.2d at 897. In

contrast, Don Johnson entirely rules out consideration of codefendant testimony in evaluating the sufficiency of the

evidence against the defendant. 

The Don Johnson court did not explain why it was taking

this step, but we can be fairly sure that it was not because the codefendant’s evidence coerced Don Johnson into presenting a

defense. At the close of the government’s case, after the court

denied Don Johnson’s acquittal motion and before his codefendant presented any evidence, Don Johnson told the court

he would be taking the stand. 952 F.2d at 1409. Perhaps the

Don Johnson court formulated its rule in recognition of the

serious problems entailed in administering the Cephus rule.

How does an appellate court determine whether a co-defendant’s

testimony motivated the defendant to put on a defense? The

government’s evidence often has its own “coercive” effect. See,

e.g., United States ex rel. Leak v. Follette, 418 F.2d 1266, 1268

(2d Cir. 1969) (Friendly, J.). And under Cephus what does the

court do when the defendant’s evidence tends to rebut not only

his co-defendant’s incriminating testimony, but also the

government’s case-in-chief, as it did in Don Johnson? See Don

Johnson, 952 F.2d at 1409. 

Cephus gives rise to other problems as well. Suppose, as

commonly occurs, the government puts on a rebuttal case in

response to the defense. May the reviewing court consider the

government’s rebuttal evidence in evaluating the sufficiency of

the evidence? Neither Cephus nor Don Johnson provides an

answer. Or suppose the defendant takes the stand after his codefendant testifies. In cross-examination, the defendant breaks

down and all but confesses to the crime. After his conviction,

he appeals, claiming that the prosecution’s evidence was

insufficient to meet its burden of proof. Under Cephus and Don

Johnson, the appellate court may not consider the defendant’s
10

2

 Before its geographic split, the Fifth Circuit adopted Cephus,

see United States v. Belt, 574 F.2d 1234 (5th Cir. 1978), but both the

Fifth and Eleventh Circuits have now cabined its consequences by

holding that, if a defendant relies on a co-defendant’s testimony in

closing argument, this constitutes a waiver, allowing the court to

consider all evidence, including that presented by the co-defendant.

See United States v. Martinez, 96 F.3d 473, 476-77 (11th Cir. 1996)

(per curiam); United States v. Cardenas Alavarado, 806 F.2d 566, 570

n.2 (5th Cir. 1986). We wonder why, if a co-defendant’s testimony

compelled the defendant to take the stand and attempt to rebut or put

the best face on that testimony, the same compulsion would not carry

forward to the closing argument of the defendant’s counsel. In any

event, the holding of Don Johnson – “a co-defendant’s subsequent

inculpatory testimony may not be considered in ruling upon a motion

for a judgment of acquittal made after the close of the government’s

case in chief, even if the defendant might be found . . . to have waived

his motion,” 952 F.2d at 1411 (emphasis added) – does not leave room

for the sort of analysis these two courts of appeals employed. It is

therefore of no moment that in closing, Lawrence’s counsel used

Johnson’s testimony more than a dozen times to argue for his

acquittal.

The Tenth Circuit held that when a defendant presents

evidence and thereby waives his original motion for a judgment of

acquittal, that waiver applies not only to evidence he introduced but

to all evidence introduced by co-defendants as well. See United States

v. Delgado-Uribe, 363 F.3d 1077, 1083 (10th Cir. 2004). Here again

the decision is at odds with Cephus and with Don Johnson. The

dearth of analogous cases in the other courts of appeals suggests that

few courts follow the rule of Cephus or Don Johnson. 

confession in evaluating the sufficiency of the evidence of his

guilt.2

Without Don Johnson, we would not hold that Cephus

barred us from considering the testimony of Lawrence’s codefendant. With Don Johnson, we must exclude that testimony
11

3

 The district court knew that Lawrence’s brother sent both

pieces of mail.

and take into account only the evidence presented in the

government’s case-in-chief. We can see no principled ground

for distinguishing Don Johnson from this case. “One threejudge panel,” we have held, “does not have the authority to

overrule another three-judge panel of the court.” LaShawn A. v.

Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). 

Absent Johnson’s testimony, the government case against

Lawrence was thin, consisting only of the items found in

Johnson’s apartment: the men’s clothing, the photographs of

Lawrence, mail with his name on the envelope, and a District of

Columbia health insurance identification card bearing his name.

As to the ninety or more pieces of mail, the exhibits were only

envelopes. Not all contained postmarks, and nearly all of those

that did were dated 1997 and 1998. Lawrence’s name was on

each, but his address was redacted (he was in prison, a fact the

jury did not learn). On some of the envelopes, the sender’s

name and return address were redacted; on others, the sender’s

name – Johnson – appeared but her return address was blocked

out. There were two exceptions. The court admitted two

envelopes postmarked within three months of the search: one

stamped December 2002 and one stamped a few days before the

search. The jury could not have known who sent the two

envelopes; the name of the sender and the return address were

redacted.3

 The jury also could not have known the address to

which the envelopes were sent; Lawrence’s name appeared, but

the delivery address on the envelopes was also redacted. On

cross-examination, an officer who conducted the search

admitted that he could not recall whether the two envelopes had

been opened when they were discovered. 
12

Of the men’s clothing recovered, the government connected

only one piece to Lawrence – the distinctive “zoot suit” jacket

found in the master bedroom closet. A photograph from the

apartment showed Lawrence wearing the jacket, but the

photograph was many years old. This leaves the identification

card. The card does not have a photograph on it, and gives no

clue about when it was issued, when it became effective, or

when, if ever, it expired. The card did list Lawrence’s name, his

Social Security number, and his date of birth. The card’s

location on a table in the master bedroom – as opposed to in a

drawer, for example – might suggest that someone placed it

there for easy access, but that is somewhat of a stretch. 

On the other side of the ledger, Lawrence’s name did not

appear on the lease, and no witness placed Lawrence within,

going to, or leaving the apartment. The government must have

had information connecting Lawrence to the apartment before

the search – this is what supported the search warrant, see

Curtistine Johnson, 437 F.3d at 71 – but it did not present any

such evidence at trial. The fact that Lawrence was not present

at the apartment when police executed the search warrant

magnifies the importance of these evidentiary holes. The

majority of our constructive possession cases involve

individuals who disclaim any connection to a residence in which

they were present when police seized contraband on the

premises. See, e.g., Gomez, 431 F.3d 818; Dingle, 114 F.3d

307; Edelin, 996 F.2d 1238; United States v. Zeigler, 994 F.2d

845 (D.C. Cir. 1993); United States v. Morris, 977 F.2d 617

(D.C. Cir. 1992); Staten, 581 F.2d 878. 

Lawrence leans heavily on United States v. Jenkins, 928

F.2d 1175 (D.C. Cir. 1991), in which we affirmed Sylvia

Jenkins’s convictions for conspiring to possess and possessing

cocaine base with intent to distribute, and for knowingly and

intentionally maintaining a place used for the manufacture,
13

storage, or distribution of illegal drugs. Id. at 1177. When

undercover police officers purchased cocaine from Jenkins’s codefendant, he had them wait while he retrieved the drugs from

a nearby house at 4368 Varnum Place. Id. Police executed a

search warrant at the Varnum Place house shortly thereafter,

discovering large quantities of cocaine, guns, ammunition, and

crack-cocaine processing equipment. Id. Although the house

was Jenkins’s, she testified that the contraband did not belong to

her and that she had no knowledge of its presence in her home

– testimony the jury could have chosen not to credit. Id. at

1179. Viewing the evidence most favorably to the government,

we held that the circumstantial evidence against Jenkins was

“sufficient to sustain the verdict, although just barely.” Id.

Among that evidence, “the most prominent [was] that the house

was hers and that she lived there.” Id. 

Lawrence points out that the evidence in the Jenkins case

“was vastly stronger than here, yet the [c]ourt said it was ‘just

barely’ sufficient.” Br. of Appellant 50 n.30. We agree with

this assessment. Unlike Jenkins, Lawrence never acknowledged

living in Johnson’s apartment, and there was no evidence to

suggest that the apartment was “his.” One may infer that

Lawrence had been in the apartment in the past. But no

reasonable juror could determine (based on the government’s

case-in-chief) whether Lawrence had been there recently, let

alone that he had dominion and control over the guns and drugs

found in the apartment. The evidence the government introduced

did not create a sufficient inferential chain to allow a reasonable

trier of fact to find guilt beyond a reasonable doubt.

For this reason, we must reverse Lawrence’s convictions in

the second trial. Absent sufficient evidence tying him to

Johnson’s apartment, the prosecution did not prove that he

constructively possessed the drugs or the guns. And without

such proof, all of his convictions in that trial – for possessing
14

with intent to distribute more than five grams of cocaine base,

possessing firearms in furtherance of drug trafficking, and

possessing a firearm as a convicted felon – must fall. 

For the foregoing reasons, Lawrence’s convictions in

03-00175-01 are reversed and his conviction in 03cr00092-01 is

affirmed. The cases are remanded for resentencing. 

So ordered.
 WILLIAMS, Senior Circuit Judge, concurring: I concur 

and write separately only to express my doubt that Cephus v. 

United States, 324 F.2d 893 (D.C. Cir. 1963), even as 

confined by our later en banc, United States v. Foster, 783 

F.2d 1082 (D.C. Cir. 1986), would not require the result we 

reach today. 

 Cephus appears to express unequivocally a premise that 

the government should not be able to benefit from the codefendant’s testimony in any way, whether indirectly by 

invocation of defendant’s own rebuttal to that testimony, or 

directly by invocation of that testimony itself (regardless of 

“waiver”). Consider, for example, the Cephus court’s remark 

that “It is also clear that the defendant’s own evidence, 

introduced in response to the co-defendant’s testimony, does 

not waive the motion [for judgment of acquittal on the basis of 

the government’s case-in-chief] if it adds nothing to the 

Government’s case.” 324 F.2d at 897. In other words, in that 

scenario, Cephus allows the defendant the benefit of appellate 

review of the motion for judgment of acquittal without regard 

to any blame-casting by the co-defendant. 

 Foster, of course, described Cephus as issuing a dictum, 

namely, that “objection to denial of a motion for judgment of 

acquittal made at the close of the government’s case-in-chief 

is not waived by the defendant’s proceeding with the 

presentation of his evidence, so that the validity of an ensuing 

conviction must be judged on the basis of the government’s 

initial evidence alone.” 783 F.2d at 1083. The en banc court 

rejected that proposition, id. at 1085, but declined to overrule 

“the precise holding of the Cephus opinion itself—which after 

delivering its influential dictum criticizing the waiver rule in 

the present context, simply refused to extend the [waiver] rule 

to the situation where, after the defendant moving for acquittal 

declined to proceed with his own case, inculpatory evidence 

was introduced by one of his co-defendants,” id. at 1086. As 
2

Foster didn’t involve co-defendant testimony at all, the court 

had no occasion to address the consideration of a 

codefendant’s testimony, whether accompanied by evidence 

from the defendant or not. 

 Discussion of whether our result here is driven only by 

United States v. Don Johnson, 952 F.2d 1407 (D.C. Cir. 

1992), compare Maj. Op. at 8, or also by Cephus, may seem a 

pointless quibble. In the event, however, that the court should 

decide to modify its position by an en banc, it may prove 

important to address the exact scope of our existing 

precedents.