United States Court of Appeals

For the First Circuit

No. 11-1492

UNITED STATES,

Appellee,

v.

Deshawn Howard,

Defendant, Appellant.

 APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

 Howard, Lipez, and Thompson, 

Circuit Judges. 

Michael J. Sheehan on brief for appellant.

Mark T. Quinlivan, Assistant United States Attorney, and

Carmen M. Ortiz, United States Attorney, on brief for appellee.

July 17, 2012
THOMPSON, Circuit Judge. During the execution of an

arrest warrant, police found a gun and drugs floating in a toilet

tank and they pinned the blame on Deshawn Howard. Alleging

improperly admitted evidence, erroneous jury instructions, and

insufficient evidence, Howard now appeals from his gun and drug

possession convictions. Concluding that there is no reversible

error, we affirm.

BACKGROUND

We outline the underlying incident and the travel of the

case, saving additional details for our analysis of the purported

errors. Since Howard has lodged a charge against the sufficiency

of the evidence, all facts are recited in the light most favorable

to the verdict. See United States v. Alverio-Meléndez, 640 F.3d

412, 416 n.1 (1st Cir. 2011).

On June 10, 2009, police in Springfield, Massachusetts

received a tip that Deshawn Howard, a suspected gang member with an

outstanding arrest warrant for armed assault with intent to murder,

was at a house located at 193 Nottingham Street. A group of

approximately eight officers, some accompanied by police dogs and

armed with shotguns, were quickly assembled and dispatched to that

address. Officers arrived at 193 Nottingham Street, which

constituted one side of a side-by-side duplex, and surrounded it.

Several officers approached the front door, catching

sight of two individuals silhouetted in the living room window. 

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One of the individuals disappeared and officers started pounding on

the door, announcing themselves as police, and demanding entry.

Almost immediately Cheryl Knowles opened the door yelling something

to the effect of: "Don't shoot. I'm coming out." Knowles, it was

later learned, had rented and resided at 193 Nottingham Street for

approximately ten years. She lived there with her twenty-fiveyear-old son Lyle Treadwell, who was a friend of Howard's. 

Knowles was ushered outside and officers headed into the

house to locate Howard. Howard had moved to the rear of the house

and he was spotted peering out a small bathroom window by officers

stationed in the back yard. Officers raced through the house but

did not encounter Howard. Some officers near the bathroom noted a

stairway and followed it into the basement. Howard was not down

there but a door leading to the basement of the adjoining duplex

had been kicked in. Officers found Howard in that adjoining

basement crouched behind a washing machine. A scuffle ensued and

Howard was taken into custody.

Howard was brought outside where he was treated for a

head laceration sustained during the fracas. Once the arrest had

been successfully executed, things calmed down and weapons were

stowed. Knowles was presented with a consent to search form, which

she signed. After securing Knowles' written permission, officers

entered the house and performed an organized search. Officer

Edward VanZandt searched the bathroom where Howard had been

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previously spotted.1 On the bathroom vanity VanZandt found a cell

phone (later determined to be a pre-paid phone with pictures of

Howard on it) and a burning cigarette (later determined to contain

Howard's DNA). VanZandt lifted the lid on the toilet tank and

discovered a loaded semiautomatic handgun and a large bag of

individually wrapped crack cocaine rocks floating on top of the

water. In the kitchen, other officers discovered more contraband

on the kitchen table - another bag of individually packaged crack

cocaine rocks, numerous unused plastic bags, and two digital

scales. Howard was transported to police headquarters where $200

in cash was found on his person.

A federal grand jury returned a three-count indictment

against Howard, charging him with possession with intent to

distribute cocaine base (Count 1), 21 U.S.C. § 841(a)(1), being a

felon in possession of a firearm (Count 2), 18 U.S.C. § 922(g)(1),

and possession of a firearm in furtherance of a drug trafficking

crime (Count 3), 18 U.S.C. § 924(c)(1)(A). The indictment also

included an aiding and abetting charge for Counts 1 and 3.

Prior to trial Howard moved to suppress the gun, drugs, 

and other evidence seized by police, arguing lack of probable

cause, lack of a search warrant, and lack of consent. 

Additionally, he argued that the waiver completed by Knowles was

1

 Howard argues that this search actually occurred prior to

Knowles giving consent. We will get to this later.

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obtained by coercion. Following a three-day evidentiary hearing,

the district court denied the motion in an oral decision. Among

other things, the judge found that Knowles willingly and knowingly

consented to the search and the search did not begin until consent

was given. 

On December 6, 2010, the case proceeded to trial. After

five days of testimony and a couple of hours of deliberation, the

jury found Howard guilty on all counts. He was sentenced to

thirteen years and three months in prison. Howard now appeals,

taking a threefold approach. First, he claims officers searched

the home prior to obtaining Knowles' consent and therefore the

district court erred in denying his motion to suppress. Next,

Howard argues there was insufficient evidence to support the

district court's jury instructions on joint possession and aiding

and abetting. Finally, he asserts there was insufficient evidence

to support a finding that he possessed the gun and drugs. 

ANALYSIS

A. Motion to Suppress

Review of a denial of a motion to suppress is bifurcated. 

We review findings of fact for clear error and legal conclusions de

novo. See United States v. Tiem Trinh, 665 F.3d 1, 9 (1st Cir.

2011). "A clear error exists only if, after considering all the

evidence, we are left with a definite and firm conviction that a

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mistake has been made." United States v. Brake, 666 F.3d 800, 804

(1st Cir. 2011) (internal quotation marks omitted). 

Howard challenges the court's decision to admit the gun,

drugs, and drug supplies into evidence claiming that the contraband

was the product of an unlawful search. Howard's argument is a

strictly factual one. He takes aim at the court's finding that the

search occurred after Knowles gave consent.2

 In support, he

singles out VanZandt's search of the bathroom. By way of a brief

background, we present VanZandt's chronology, as established by his

trial testimony: VanZandt entered the home behind the initial wave

of officers; he traveled through the living room, into the kitchen,

and then into the bathroom; he then went to the basement where

Howard was already in cuffs; he then conducted a search of the

bathroom.

Howard argues that VanZandt's testimony establishes that

these events took place in immediate succession. And, by Howard's

estimate, twenty minutes elapsed between Knowles being removed from

the home and her consenting to the search. Thus Howard theorizes

that the search must have occurred before Knowles gave consent. In

further support of his challenge, Howard points to a photograph

that another officer took of his half burnt cigarette, arguing that

2 This is a departure from Howard's approach at the

suppression hearing, which consisted of first, countering the

government's contention that Howard (as a guest in Knowles' home)

did not have standing to challenge the search and second, arguing

that Knowles' consent was not voluntary. 

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the cigarette would have burnt further down and there would be more

ashes if it had been left smoking for twenty minutes. 

Whether Howard's theorem on the chronology of VanZandt's

actions is or is not accurate, we need not say. VanZandt did not

testify at the suppression hearing; he only testified at trial. 

Similarly, the photograph of the cigarette was only introduced at

trial. Although Howard acknowledges this point, he nonetheless

urges us to consider the testimony and photograph in our review of

the district court's denial of his motion to suppress and, in

particular, the court's factual finding on the search's timing. 

While it is true that we may consider evidence adduced at trial

when reviewing the denial of a motion to suppress, we may do so

only if the defendant renewed his suppression motion at trial. See

United States v. Scott, 566 F.3d 242, 245 (1st Cir. 2009); United

States v. de Jesus-Rios, 990 F.2d 672, 675 n.2 (1st Cir. 1993). 

Howard did not renew his motion at trial and so our review does not

include VanZandt's testimony or the photograph. Our examination of

the propriety of the suppression ruling is limited to the evidence

presented at the suppression hearing. See Scott, 566 F.3d at 245. 

At the suppression hearing, documentary evidence, in the

form of the grand jury transcript, Knowles' statement to police,

her consent waiver, and photographs of the house, was introduced. 

Additionally, Knowles and six Springfield police officers

testified. The officers were those involved in arresting Howard,

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obtaining Knowles' consent, searching the house, booking Howard,

taking Knowles' statement, or some combination of these things. 

This evidence, taken as a whole, supports the court's finding that

consent preceded the search.

Two officers testified that the search took place after

Knowles gave consent. Though he could not recall the particulars

of how he was told, one officer explained: "I was notified the

[consent waiver] was signed and we were moving into the house. We

moved into the house." Knowles, for her part, testified that while

she was in the yard signing the consent waiver, some officers (who

at this point had Howard out of the house and in custody) were

already in the house. The two stories are not inconsistent. As

the district court explained, officers were engaged in a protective

sweep of the house at that time, looking for any individuals that

might be hidden. There is no indication that they were lifting up

toilet tank lids or otherwise searching the home for contraband. 

The district court's conclusion that officers did not

start searching until Knowles gave consent was not clearly

erroneous. The motion to suppress was properly denied. 

B. Jury Instructions

Howard's contention to this court is the same as it was

at trial. He argues that the evidence was insufficient to support

a joint possession and aiding and abetting instruction. "We review

de novo a preserved objection to the trial court's decision to give

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a requested jury instruction." United States v. Whitney, 524 F.3d

134, 138 (1st Cir. 2008). 

Prior to the start of trial the government supplied the

court with proposed jury instructions. These included a suggested

joint possession instruction and an aiding and abetting instruction

with regard to the drug possession count.3 We fast-forward to

trial. There Howard offered only one piece of evidence in his own

defense. The evidence (given to the jury in the form of a

stipulation) was that Lyle Treadwell, Knowles' son who was living

with her at the time of Howard's arrest, had three convictions

extending from 2002 to 2008 for gun and/or cocaine possession. 

When the time came to debate the merits of its proposed

jury instructions, the government pointed to this evidence in

support of its joint possession and aiding and abetting

instructions. It argued that Howard's pointing the finger at

Treadwell, and the evidence adduced at trial, supported an argument

that Howard possessed the drugs in cahoots with Treadwell or

perhaps Knowles. Howard objected to the proposed instructions. He

claimed that he was the government's sole target and that the

government did not present any evidence that the drugs belonged to

anyone else. He further claimed that to the extent the inference

had been raised that the drugs belonged to Treadwell or Knowles,

3

 The government also sought an aiding and abetting charge in

connection with the possession of a firearm in furtherance of a

drug crime count. The court ultimately denied this request. 

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there was no evidence that Howard was working in concert with them. 

The trial judge disagreed, citing Howard's lone piece of evidence -

the stipulation of Treadwell's convictions. The court indicated

that this evidence put the issue "squarely in the jury's lap" since

Howard had suggested during his defense case that the drugs

belonged to another. The court gave the requested instructions. 

As a general matter, "[j]oint possession occurs when both

the defendant and another person share power and intent to exercise

dominion and control over contraband." United States v.

Georgacarakos, 988 F.2d 1289, 1296 (1st Cir. 1993) abrogated on

other grounds by United States v. Scott, 270 F.3d 30, 35 (1st Cir.

2001). Constructive possession, which is the theory the government

relied on, can be joint. See United States v. Hicks, 575 F.3d 130,

139 (1st Cir. 2009). As for aiding and abetting liability, the

government must prove that the principal committed the charged

substantive offense and that the accomplice was associated with and

took part in the criminal endeavor, intending to achieve its

success. See United States v. Gonzalez, 570 F.3d 16, 28-29 (1st

Cir. 2009).

Here, the evidence offered during the government's case

demonstrated that on the date of Howard's arrest, Knowles was

living at 193 Nottingham Street with Treadwell. Howard was friends

with Treadwell and friendly enough with Knowles to spend time

eating with, and socializing with, her alone. Howard was at

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Knowles' house because he was waiting for Treadwell to return home. 

Individually packaged crack cocaine rocks along with drug

distribution paraphernalia (i.e., digital scales and plastic bags)

sat out in the open on Knowles' kitchen table. Crack cocaine,

packaged in the same manner as that on the table, was in the

bathroom that Howard had recently been in. The evidence offered by

Howard established that Treadwell had multiple convictions for gun

and drug possession.4

When crafting jury instructions a judge must consider all

of the evidence introduced at trial, in other words, the

government's as well as the defense's. Here the evidence, in its

totality, established that there was an individual, with a

significant criminal past involving guns and drugs, living at the

home where Howard, the gun, and the drugs were found. Howard used

this evidence to cast suspicion on Treadwell and Knowles, and in

doing so, raised an inference that he possessed the drugs jointly

with Treadwell or Knowles or that he hid the drugs in order to help

them out. The evidence extant and Howard's own theory of the case

4 If there was any doubt as to why Howard offered this

evidence, defense counsel hammered the point home during closing

argument. Of Knowles, counsel stated: "[O]bviously, is she going

to say that's my gun and my drugs? Is she going to say that's my

son's gun? That's my son's drugs? Or is she going to say I got no

idea?" Counsel added: "Who's to say [Knowles] wasn't there bagging

the drugs? We will never know. Who's to say [Treadwell] hadn't

been there earlier that day bagging the drugs?" The theme

continued: "You know Lyle Treadwell's history and you saw his

mother. To give him a pass when that's found in their house." 

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made the joint possession and aiding and abetting instructions

appropriate. See, e.g., United States v. Carrasco, 257 F.3d 1045,

1050 (9th Cir. 2001) (finding a joint possession jury instruction

appropriate when the defendant testified, and his counsel argued,

that the gun he was charged with possessing belonged to his vehicle

passenger); United States v. Oberle, 136 F.3d 1414, 1422 (10th Cir.

1998) (finding that even though the government proceeded on the

theory that the defendant was the principal bank robber, an aiding

and abetting jury instruction was proper when there was some

evidence that the defendant was involved in preparations for the

robbery). The court did not err in giving the instructions. 

C. Sufficiency of the Evidence

According to Howard, there was not enough evidence to

convict him of possessing the gun and drugs. Because he preserved

this sufficiency claim by moving for judgment of acquittal at the

close of the government's case and again at the end of trial, our

review is de novo. See United States v. Jones, 674 F.3d 88, 91

(1st Cir. 2012). When evaluating sufficiency, we examine the

direct and circumstantial evidence in the light most favorable to

the prosecution. See United States v. Cruz-Rodriguez, 541 F.3d 19,

26 (1st Cir. 2008). We then ask whether the evidence, and all

plausible inferences taken therefrom, "would allow a rational

factfinder to conclude beyond a reasonable doubt that the defendant

committed the charged crime." Id.

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Howard was not found with the gun or drugs on his person

and therefore the government proceeded on a theory of constructive

possession. Constructive possession "exists when a person

knowingly has the power and intention at a given time to exercise

dominion and control over an object either directly or through

others." Hicks, 575 F.3d at 139. Constructive possession can be

established through circumstantial evidence. See id.

Howard's assertion that the evidence was insufficient to

establish that he possessed the gun or drugs is premised on the

following.5 First, he points out that he was a "mere guest" in

Knowles' home and no one saw the gun or drugs in his hands. He

adds that forensic evidence tying him to the gun or drugs was

nowhere to be found. Howard continues by claiming that the police

have no idea how long the items were in the toilet tank. Finally,

Howard draws our attention to the absence of any inculpatory

statements made by others or admissions made by him. Although

Howard's contentions are all true, there was nonetheless enough

circumstantial evidence to permit a rational juror to conclude that

Howard possessed - that is, had the power and intention to exercise

dominion and control over - the gun and drugs.

5

 Howard does not argue that the evidence was insufficient on

any other fronts (e.g., insufficient to establish that he was a

felon, or that the gun traveled in interstate commerce, or that the

amount of crack cocaine met the requisite amount, or that the crack

cocaine was intended for distribution, or that the gun was intended

to further this distribution). Therefore we direct our inquiry

toward the possession issue alone. 

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Howard and Knowles were the only individuals found at 193

Nottingham Street and officers, who had created a perimeter around

the house, never saw anyone else leave. Knowles testified that the

gun, drugs, and scales did not belong to her and she had not seen

her son bring them into the house. The gun and drugs were found

floating in the water of the toilet tank in the downstairs

bathroom. Howard was seen peering out of this bathroom just before

officers entered the house. A phone containing pictures of Howard

was found in the bathroom, as was a burning cigarette containing

his DNA. One officer testified that he had participated in the

execution of over one-thousand search warrants and that he has

never come across guns or drugs being stored in water. In the

nearby kitchen, additional drugs, scales, and plastic bags were

found on a table sitting right in the middle of the kitchen. 

Howard had $200 cash on his person.

Viewing this evidence in the light most favorable to the

prosecution, we find that a rational juror could have concluded

beyond a reasonable doubt that Howard possessed the gun and drugs.

The cigarette conclusively tied Howard to the bathroom where the

gun and drugs were found. The officers' testimony established that

Howard was in the bathroom just before officers entered the home.

The drugs in the toilet tank were bagged in a manner suggesting

they were headed for distribution. The drugs on the kitchen table,

which were out in the open, were packaged the same way. In the

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moments prior to the officers' entry, Howard was undoubtedly in or

around the kitchen since the living room (where he was first

spotted) was connected to the kitchen, and the bathroom (where he

was next spotted) was adjacent to it. In fact, these are the only

three rooms on the first floor.

Even if, as Howard suggested, it is a conceivable

inference that Treadwell or Knowles elected to store a gun and

drugs in the toilet tank, there is a plausible alternative read.

That is, because of the distinct possibility that the gun and drugs

would be damaged by water, Treadwell or Knowles would not have done

so, and instead Howard, operating under the time constraints

brought on by swarming officers, hastily stashed the gun and drugs

in the tank to hide them. It was within the jury's prerogative to

choose which inference seemed most worthy of belief. See United

States v. Dwinells, 508 F.3d 63, 74 (1st Cir. 2007). Because the

jury's verdict was "supported by a plausible rendition of the

record," we uphold it. United States v. Castro-Davis, 612 F.3d 53,

60 (1st Cir. 2010).

CONCLUSION

After taking a good look at Howard's arguments, we are

satisfied that none have merit. The judgment below is affirmed.

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