1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-26-1996

United States v. Jenkins

Precedential or Non-Precedential:

Docket 95-1606

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Recommended Citation

"United States v. Jenkins" (1996). 1996 Decisions. Paper 117.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/117
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 N0. 95-1606 

 

 UNITED STATES OF AMERICA 

 v. 

 SEAN JENKINS 

 Appellant 

 

 On Appeal From the United States District Court 

 For the Eastern District of Pennsylvania 

 (D.C. Crim. Action No. 94-cr-00385-2)

 

 Argued: March 11, 1996 

 BEFORE: STAPLETON, SCIRICA and COWEN, Circuit Judges 

 (Opinion Filed July 26, l996) 

 

 

 Michael R. Stiles 

 United States Attorney 

 Walter S. Batty, Jr. 

 Assistant U.S. Attorney 

 William B. Carr, Jr. 

(Argued) 

 Assistant U.S. Attorney 

 Office of the U.S. 

Attorney 

 615 Chestnut Street 

 Philadelphia, PA 19106 

 Attorneys for 

Appellee 

 Robert Epstein (Argued) 

 Assistant Federal 

Defender 

 Elaine DeMasse 

 Senior Appellate Counsel 

 Maureen Kearney Rowley 

 Chief Federal Defender 

 Defender Association of 

Philadelphia 

 Federal Court Division 
 437 Chestnust Street, 

Suite 800 

 Lafayette Building 

 Philadelphia, PA 19106 

 Attorneys for 

Appellant 

 

 OPINION OF THE COURT 

 

STAPLETON, Circuit Judge: 

 Sean Jenkins appeals his conviction on drug possession 

and related firearms charges. He challenges the sufficiency of 

the evidence to establish his constructive possession of drugs 

found near him. Because the evidence showed only that he was in 

an acquaintance's apartment physically near but not in actual 

possession of drugs and drug distribution paraphernalia, it does 

not support the jury's finding that he had dominion and control 

over the drugs. We will, therefore, reverse Jenkins' conviction 

on all counts. 

 I. 

 Around 1:30 a.m. on February 10, 1994, Philadelphia 

police officers Michael Kopecki and James Santomieri responded to 

a call that shots were being fired near an apartment building. 

Entering the courtyard of the building, the officers saw Kevin 

Jones and Larry Harrison, who was holding a handgun. Kopecki 

yelled, "Police!" Harrison ran into the building, and the 

officers chased him through a fire escape door, down a hallway, 

and into apartment C-107. The front door opened into the living 

room, and the officers found Sam Stallings and Jenkins seated on 

a couch, both wearing only boxer shorts and a t-shirt. On the 

coffee table before them were three bags of white powder 

containing a total of 55.3 grams of cocaine and 42 grams of noncocaine white powder, two triple-beam scales, two loaded .38 

caliber revolvers, small ziplock-style bags, clear plastic vials, 

and numerous red caps. On the floor was a loaded sawed-off 

shotgun. 

 None of the cocaine powder had been put in the bags, 

vials, or caps, and there was no evidence that either man had 

been working with the cocaine. No grinders, razor blades, or 

other "cutting" implements, were on the table, and no pots or 

other instruments that could be used to cook cocaine were found 

with any cocaine residue. No cocaine residue was found on 

Stallings or Jenkins, including their hands, and no residue was 

found on the scales. Nothing concerning Jenkins' clothing 

suggested any connection to the drugs. Finally, he made no 

attempt to hide or destroy the contraband, and fully cooperated 
with the officers. 

 Stallings and Jenkins were charged and tried together. 

Count I of the indictment charged them with possession of cocaine 

with intent to distribute, in violation of 21 U.S.C.  841(a)(1), 

and aiding and abetting under 18 U.S.C.  2. Count II charged 

them with use of a firearm in connection with a drug trafficking 

crime, in violation of 18 U.S.C.  924(c), and aiding and 

abetting. At trial, the officers testified to what they saw and 

found, as described above. An expert witness, DEA agent Ellis 

Hershowitz, testified that the scales, bags and vials were 

commonly used by drug traffickers in repackaging drugs for 

resale. On cross-examination, Hershowitz acknowledged that 

instruments necessary to cut and apportion the cocaine and insert 

it into the various packages were not found in the apartment. 

The manager of the apartment building, Barbara Edward, identified 

Stallings as a tenant in C-107, Harrison as someone who lived 

there, and Jenkins as someone who was "in and out" with Stallings 

and Harrison. Neither defendant testified. 

 The jury found Jenkins guilty on both counts. He made 

a post-trial motion for judgment of acquittal or new trial. 

Although recognizing that proximity to contraband or association 

with someone in possession is by itself insufficient to find 

constructive possession, the court denied the motion. It found 

three factors from which a jury could infer dominion and control: 

(i) Jenkins was not merely in the same apartment as the drugs, 

but was sitting on a couch immediately adjacent the table on 

which the drugs were found; (ii) while there was no evidence that 

Jenkins was a resident of the apartment, he was in his boxer 

shorts and a t-shirt at 1:30 a.m., which suggests that he was 

going to stay overnight or had been there for some time; and 

(iii) there were two triple-beam scales, from which it could be 

inferred that Stallings and Jenkins were each going to use a 

scale. The court sentenced the defendant to nearly 12 years 

imprisonment. 

 II. 

 In reviewing a jury verdict for sufficiency of the 

evidence, we view the evidence in the light most favorable to the 

government, and we will affirm the conviction if a rational trier 

of fact could have found the defendant guilty beyond a reasonable 

doubt. See United States v. Brown, 3 F.3d 673, 680 (3d Cir.), 

cert. denied, 114 S. Ct. 615 (1993). The district court had 

jurisdiction pursuant to 18 U.S.C.  3231, and we have 

jurisdiction pursuant to 28 U.S.C.  1291. The notice of appeal 

was timely filed. 

 III. 

 A. 

 The government had no evidence of actual possession of 

the cocaine powder; consequently, the issue before us is whether 

there was evidence sufficient to establish constructive 

possession. Under our precedent, the evidence must show that 

Jenkins had dominion and control over the drugs: 

 [T]he government must submit sufficient 
 evidence to support an inference that the 

 individual "knowingly has both the power and 

 the intention at a given time to exercise 

 dominion or control over a thing, either 

 directly or through another person or 

 persons. Constructive possession necessarily 

 requires both 'dominion and control' over an 

 object and knowledge of that object's 

 existence." United States v. Iafelice, 978 

 F.2d 92, 96 (3d Cir. 1992) (citations 

 omitted) . . . . 

Brown, 3 F.3d at 680. The kind of evidence that can establish 

dominion and control includes, for example, evidence that the 

defendant attempted to hide or to destroy the contraband, seeUnited States 

v. Davis, 461 F.2d 1026, 1034-36 (3d Cir. 1972), or

that the defendant lied to police about his identity or the 

source of large amounts of cash on his person, see United States 

v. Brett, 872 F.2d 1365, 1368-69 (8th Cir.), cert. denied, 493 

U.S. 932 (1989). Dominion and control are not established, 

however, by "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." Brown, 3 F.3d at 

680; see also United States v. Dunlap, 28 F.3d 823, 826 (8th Cir. 

1994); United States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 

1993); United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir. 

1992). 

 Jenkins argues that the evidence relied upon by the 

court was insufficient to prove dominion and control over the 

cocaine. Nothing but proximity links him to the drugs and drug 

distribution paraphernalia. No cocaine residue was found on him, 

nor were his fingerprints found on the drugs. His prior 

acquaintance with Stallings answers why he was in the apartment, 

and it is immaterial how long he had been or was going to be 

there. The presence of the two scales, he contends, is 

insufficient to link him to the drugs. No evidence suggests that 

they had been in use or were about to be used by him; if 

anything, it was more likely that the two scales belonged to and 

would be used by the two residents of the apartment. 

 We agree with the defendant that the evidence is 

insufficient to establish his possession of the cocaine. The 

evidence does show that he is an acquaintance of Stallings and 

Harrison and that he was found physically near drugs and drug 

distribution paraphernalia, including two scales, but those are 

insufficient facts from which to infer dominion and control over 

the drugs. 

 We find this case controlled by our decision in United 

States v. Brown. The police, acting on a tip, searched Brown's 

home for drugs. During the search, Ama Baltimore arrived at the 

house, inserted a key into the lock, and was arrested as she 

entered. While being arrested, she protested, "But you can't 

arrest me because I am in my own house." In the upstairs sewing 

room, the police found a pair of shorts and a switchblade, both 

of which Baltimore admitted were hers. Substantial quantities of 
heroin, cocaine powder, and crack cocaine were found in the 

refrigerator in the kitchen, the kitchen closet, and one of the 

upstairs bedrooms. Equipment and supplies to prepare, cook, cut 

and distribute the drugs were also found in the bedroom. The 

government contended that several facts were sufficient to 

establish Baltimore's possession of the drugs: her possession of 

a key to the house, her attempted entry, the presence of the 

shorts and switchblade in the house, her statement, and the fact 

that the house was a known "cut house," a place where large 

quantities of drugs are cut and distributed. 

 We overturned her conviction for insufficient evidence 

of possession. The evidence showed that she had access to or 

resided in the house and knew of the presence of the drugs, but 

did not show she had dominion and control them. The key, her 

attempted entry, and her statement merely showed that she had 

some control over the house, not the drugs. See 3 F.3d at 682- 

83. We further noted that her fingerprints were not found on the 

drugs or drug paraphernalia, and there was no evidence that she 

ever exerted any indirect control over them. See id. Evidence 

in addition to knowledge of and access to the drugs was necessary 

to prove possession. The fact that Brown's home was a "cut 

house" did not suffice as additional evidence. Because Brown's 

house was also a residence, the jury could not infer from the 

fact that Brown's home was a "cut house," that beyond a 

reasonable doubt, Baltimore was a participant in the drug 

distribution operation. See id. at 683-84. 

 The government stresses that in Brown we noted that 

Baltimore and her shorts were not found in the same room as any 

of the drugs. See 3 F.3d at 683. The government contends that 

this factor was highly relevant to our decision, but we disagree. 

It is a serious misreading of that decision to conclude that the 

degree of proximity of Baltimore or her clothing to the drugs was 

a controlling factor. Although our decision does not discuss 

this point in detail, Baltimore acknowledged at the time of her 

arrest that she lived in the cut house, and in the course of 

residing there, it is virtually certain that she regularly would 

have entered the kitchen and bedroom, the rooms in which the 

drugs were found. Since we concluded that her residence in the 

cut house was insufficient to prove dominion and control over the 

drugs, it would not have mattered if there had been evidence that 

she had visited the kitchen or bedroom, so long as the evidence 

did not also show that her visit pertained to the drugs. 

 Our decision in Brown is consistent with the 

jurisprudence of other circuits. In United States v. VasquezChan, the Court of Appeals for the Ninth Circuit found evidence 

of drug possession insufficient even though there was proof that 

the defendant had access to and was in close proximity with large 

quantities of drugs. Drug Enforcement Agency officers arranged 

the purchase of a large amount of cocaine. They observed the 

drugs being transported from a particular house and went to 

secure the residence. Inside, they found two women, a 

housekeeper and an apparent house guest, Julia Gaxiola-Castillo 

(Gaxiola). Gaxiola waived her rights and told the officers that 

she was a friend of the housekeeper and had been staying there a 
few weeks with her infant child. In the bedroom where she had 

been staying, the officers found 600 kilograms of cocaine in 55 

gallon drums. On six of the drums, including the inside of the 

lid of one drum, they found her fingerprints. She was convicted 

of conspiracy to possess narcotics with intent to distribute. 

 The Ninth Circuit overturned the conviction for lack of 

evidence of possession. She claimed that she had come to visit 

her friend, and she and her child had to sleep somewhere, and the 

bedroom with the cocaine may have been the only place to stay. 

Although the defendant had been caught in "extremely 

incriminating circumstances" due to her proximity to the drugs, 

her behavior "was perfectly consistent with that of an innocent 

person having no stake or interest in the transactions." 978 

F.2d at 551 (citations omitted). Proximity and knowledge of the 

existence and location of the drugs were insufficient to prove 

dominion and control. See id. The fingerprints by themselves 

proved nothing but the fact that she had used the bedroom. It 

was perfectly reasonable to believe that she would have come into 

contact with the numerous canisters as she moved in and out of 

the room, or prepared a place to sleep. See id. 

 Similarly, in United States v. Dunlap, the Court of 

Appeals for the Eighth Circuit found proximity to drugs under 

very suspicious circumstances insufficient to support a finding 

of possession. Acting on a tip that drugs were being sold from 

Eric Dunlap's apartment, police officers secured a search 

warrant. As they approached his door, Dunlap opened the door 

from the inside. Standing behind Dunlap was Cornelius Coleman, 

who had a handgun in his pocket. In the kitchen, the officers 

found large amounts of cocaine power and cocaine base, and some 

of the powder was in the process of being cooked. Coleman's hat 

was also in the kitchen, and more drugs and drug distribution 

paraphernalia were found in the apartment. Coleman was convicted 

of possession with intent to distribute cocaine. 

 The Eighth Circuit overturned his conviction because 

the evidence was not sufficient for a jury to find beyond a 

reasonable doubt that Coleman had constructive possession. See28 F.3d at 

826. His mere presence in the apartment, including

the evidence that he may have been in the kitchen, did not prove 

that he possessed the cocaine. He may have been visiting Dunlap 

to purchase cocaine for his own use, an offense not charged, and 

it was speculative for the jury to conclude beyond a reasonable 

doubt that he possessed the drugs, or intended to aid and abet 

Dunlap in his drug operation. See id. at 827. 

 The evidence supporting constructive possession in Sean 

Jenkins' case is no stronger than the evidence found insufficient 

in Brown, Vasquez-Chan, and Dunlap. In each of those cases, the 

evidence did not establish the decisive nexus of dominion and 

control between the defendant and the contraband. The district 

court believed that Jenkins' being on the couch next to the drugs 

was decisively different than if he was somewhere else in the 

apartment, but proximity alone is not enough, no matter how near 

that proximity is. Without other proof of dominion and control, 

we can only conclude that it was sheer happenstance that Jenkins 

was seated on the couch next to the cocaine when the police 
entered the apartment. Whether or not he possessed the drugs, he 

could have been found sitting on the couch, standing next to it, 

in the bathroom, or in some other room in the apartment. A 

reasonable jury may not infer dominion and control beyond a 

reasonable doubt from the defendant's physical distance from the 

drugs alone. 

 Jenkins' presence near the drugs in his acquaintance's 

apartment is analogous to Baltimore's control over the cut house 

and access to the drugs, Gaxiola's proximity and contact with the 

drugs, and Coleman's proximity to drugs and drug activity. Some 

additional evidence of dominion and control is required before a 

finding of constructive possession can be made beyond a 

reasonable doubt. We do not believe that Jenkins' being in boxer 

shorts and a t-shirt or the fact that two scales were on the 

table can raise the necessary inference. That he had been in the 

apartment long enough to get partially undressed and that he was 

planning to stay for some time tell us nothing about what he had 

been doing or what he planned to do. We do not know who brought 

the drugs and equipment into the apartment, or who set up the 

items on the coffee table. No fingerprint evidence connected him 

with the items on the coffee table, the drug distribution 

paraphernalia were not in use, and no cocaine residue was found 

on him. Perhaps most important, as agent Hershowitz testified, 

the cutting and repackaging of the cocaine could not have been 

imminent for lack of tools to cut, apportion and package the 

powder. Under these circumstances, a reasonable jury could not 

conclude from Jenkins' state of undress that, beyond a reasonable 

doubt, he had dominion and control over the drugs and intended to 

participate in the distribution of the cocaine at some point that 

night. 

 The existence of two scales rather than one adds very 

little to the evidence against Jenkins. It does suggest that 

someone in addition to Stallings would have participated in the 

drug cutting and repackaging that night, if such activity were to 

occur. As we have concluded, however, there is no evidence that 

the drug activities were imminent; consequently, it would be 

impermissible to infer beyond a reasonable doubt that it was 

Jenkins who would have helped Stallings rather than Harrison or 

Jones, both of whom resided in the apartment. 

 The government relies on our decisions in United States 

v. Davis, 461 F.2d 1026 (3d Cir. 1972) and United States v. 

Iafelice, 978 F.2d 92 (3d Cir. 1992). In both cases, however, 

there were significant and substantial factors linking the 

defendants to the drugs. In Davis, the defendant was convicted 

for possessing heroin that had been seized in her apartment. 

Unlike the instant case, in Davis the evidence clearly showed 

that someone had been recently packaging the drugs, and when the 

police forced their way in, the persons present, including the 

defendant, had tried to destroy the drugs. 461 F.2d at 1036-38. 

Here, Jenkins was in an acquaintance's apartment and no evidence 

suggests that he had recently physically interacted with the 

drugs or drug paraphernalia. Neither did he attempt to hide or 

destroy the drugs. In Iafelice, the defendant drove several 

individuals in his car to a pre-arranged drug sale to undercover 
agents, and was convicted for possession of heroin. We upheld 

the conviction and found relevant that he drove the car in a 

suspicious manner, transported the drugs and those who sold the 

drugs to the point of sale, assisted in opening the trunk where 

the drugs were located, and was called in the car by one of the 

principal drug dealers during the sale. See Iafelice, 978 F.2d 

at 95-98. Here, the cocaine was not found in Jenkins' residence, 

and no evidence suggests his active participation in any drug 

distribution. 

 A sufficiency of the evidence challenge requires us to 

take a careful look at the evidence in the light most favorable 

to the government. Because the evidence supporting Jenkins' 

possession of the cocaine, viewed in that light, does not amount 

to more than close proximity to the drugs and acquaintance with 

the residents of the apartment in which the drugs were found, we 

must reverse his conviction for possession with intent to 

distribute. 

 B. 

 Jenkins was also convicted for using a firearm in 

connection with a drug trafficking crime. Section 924(c)(1) of 

Title 18 provides, in relevant part, that any person who "during 

and in relation to any . . . drug trafficking crime . . . uses or 

carries a firearm" is subject to a mandatory 10-year sentence "in 

addition to" the punishment for the predicate offense. Jenkins 

argues that the district court erroneously denied his motion for 

a judgment of acquittal on this count because there was 

insufficient evidence to support the conviction of the predicate 

drug offense. 

 Commission of a drug trafficking offense is an element 

of the crime described in  924(c)(1), and must be proved beyond 

a reasonable doubt. See, e.g., United States v. Anderson, 59 

F.3d 1323, 1326 (D.C. Cir.), cert. denied, 116 S. Ct. 542 (1995); 

United States v. Nelson, 27 F.3d 199, 201 (6th Cir. 1994). 

Because the government has not met its burden of proof on the 

predicate offense, Jenkins' conviction for using a firearm in 

connection with a drug offense must be also be reversed. 

 C. 

 Both counts of the indictment list aiding and abetting 

as theories of liability, and we must consider the possibility 

that the jury premised its verdict on these alternatives. To 

convict of aiding and abetting, the government must show that the 

defendant "in some [way] associate[d] himself with the venture, 

that he participate[d] in it as in something that he wishe[d] to 

bring about, that he [sought] by his action to make it succeed." 

United States v. Bey, 736 F.2d 891, 895 (3d Cir. 1984) (quoting 

Nye & Nissen v. United States, 336 U.S. 613, 619 (1949)) 

(alterations in original). 

 Here, the government had to prove that another person 

committed the principal offense and that Jenkins aided and 

abetted in the commission of that offense. At trial, the 

government offered no evidence other than the evidence to support 

constructive possession by Jenkins. His close proximity to the 
drugs and firearms, state of dress, and acquaintance with 

Stallings, who committed the principal offense, are not 

sufficient to prove aiding and abetting. The government simply 

has a "snapshot" of Jenkins sitting on a couch in an 

acquaintance's apartment next to a table laden with drugs and 

firearms. The evidence does not show that Jenkins associated 

himself with or participated in the drug distribution, or that he 

took any action to help it succeed. The "snapshot" does not show 

that he took any actions other than to enter the apartment, get 

partially undressed, and sit on the couch. Consequently, the 

jury could not have properly convicted Jenkins of aiding and 

abetting. 

 IV. 

 Because we have concluded that there was insufficient 

evidence for the jury to convict Sean Jenkins of possession of 

cocaine with intent to distribute, use of a firearm in connection 

with a drug offense, and aiding and abetting, we will reverse his 

convictions. 

United States of America v. Sean Jenkins, Appellant

No. 95-1606 

COWEN, Circuit Judge, dissenting. 

 Today the majority holds that, when the evidence is 

viewed in the light most favorable to the prosecution, no 

rational jury could possibly conclude that a man in his underwear 

sitting on a sofa that is surrounded by cocaine, assorted drug 

paraphernalia and firearms can be guilty of a possessory offense 

under the constructive possession doctrine. I believe that this 

record contains sufficient evidence for a rational jury to 

conclude that appellant Sean Jenkins constructively possessed 

cocaine with the intent to distribute it, in violation of 21 

U.S.C.  841(a)(1), based upon what the police saw when they 

entered Sam Stallings' apartment in pursuit of an armed felon. 

Because the majority reaches a contrary result, I respectfully 

dissent. 

 I. 

 The facts of this case are not in dispute. In its June 

6, 1995 order denying Jenkins' post-trial motion for a judgment 

of acquittal, the district court described the circumstances 

under which the police entered the apartment in question and what 

they saw when they arrived: 

 Michael Kopecki, a Philadelphia police 

 officer, testified that on February 10, 1994, 

 at 1:30 a.m., he and his partner responded to 

 a call that gunshots were being fired outside 

 the West Walnut Lane Apartments. Kopecki 

 testified that he parked his patrol car and 

 moved toward the courtyard between two of the 

 buildings, where he saw Larry Harrison with a 

 gun and Kevin Jones with him. Kopecki yelled 

 "police." Harrison and Jones ran toward the 
 building. Kopecki followed Harrison into the 

 building through a fire escape door and down 

 a short hallway into apartment C-107. When 

 he entered the apartment, defendants Jenkins 

 and Stallings were seated on the couch in the 

 living room; they were wearing boxer shorts 

 and T-shirts. On the coffee table in front 

 of them were two triple-beam scales, two .38- 

 caliber revolvers, three bags of white 

 powder, small colored ziplock-style bags, 

 clear plastic vials, and numerous red caps. 

 Defendants stipulated that the powder totaled 

 55.3 grams of cocaine and 42 grams of non-

 cocaine powder. A Winchester 12-gauge 

 shotgun with a sawed-off barrel was on the

 floor to the side of the couch. All of the 

 guns were loaded. 

United States v. Jenkins, No. 94-385-02, slip op. at 1-2 (E.D. 

Pa. June 6, 1995). 

 II. 

 "Constructive possession is a legal fiction created by 

courts to find possession where it does not exist in fact." 

Michael S. Deal, Note, United States v. Walker: Constructive 

Possession of Controlled Substances: Pushing the Limits of 

Exclusive Control, 2 J. Pharmacy & L. 401, 401 (1994). "The 

judicially created doctrine of constructive possession enables 

law enforcement officials to prosecute individuals in situations 

where the inference of possession is strong, yet actual 

possession at the time of arrest cannot be shown." Mark I. 

Rabinowitz, Note, Criminal Law Constructive Possession: Must the 

Commonwealth Still Prove Intent?--Commonwealth v. Mudrick, 60 

Temple L.Q. 445, 449-50 (1987). Our case law holds that a 

finding of guilt based upon constructive possession "requires 

both `dominion and control' over an object and knowledge of that 

object's existence." United States v. Brown, 3 F.3d 673, 680 (3d 

Cir.) (quoting United States v. Iafelice, 978 F.2d 92, 96 (3d 

Cir. 1992)), cert. denied, 114 S. Ct. 615 (1993). We have 

further held that the terms "dominion and control" are to be 

interpreted "as the ability to reduce an object to actual 

possession . . . ." United States v. Martorano, 709 F.2d 863, 

869 (3d Cir.), cert. denied, 464 U.S. 993, 104 S. Ct. 486 (1983). 

See Black's Law Dictionary 314 (6th ed. 1990) (Constructive 

possession "[e]xists when one does not have physical custody or 

possession, but is in a position to exercise dominion and control 

over a thing."); see also George H. Singer, Note, Constructive 

Possession of Controlled Substances: A North Dakota Look At a 

Nationwide Problem, 68 N.D. L. Rev. 981, 1002 (1992) (hereinafter 

Constructive Possession) (In those courts that have defined 

constructive possession "to include a right, a capacity, or an 

ability to reduce the substance to one's control[,] . . . an 

accused need not be presently exercising his or her right to 

control the contraband at the time of arrest; it is enough that 

he or she could have done so."). 
 Our cases have held that "dominion and control" of 

narcotics "need not be exclusive but may be shared with others." 

United States v. Davis, 461 F.2d 1026, 1035 (3d Cir. 1972). A 

finding of dominion and control, however, may not be premised 

only upon "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 . . . ." Brown, 3 F.3d 

at 680 (quoting Davis, 461 F.2d at 1036). 

 "Our standard of review in sufficiency of the evidence 

claims is deferential. . . . `[T]he relevant question is whether, 

after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.'" 

United States v. Schoolcraft, 879 F.2d 64, 69-70 (3d Cir.) 

(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 

2789 (1979)), cert. denied, 493 U.S. 995, 110 S. Ct. 546 (1989). 

This deferential test "places a very heavy burden on the 

appellant." United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 

1995). 

 III. 

 A. 

 There is sufficient evidence in this record to affirm 

Jenkins' conviction on criminal possession charges under 21 

U.S.C.  841(a)(1). The reasoning and analysis of the district 

court on the constructive possession issue were sound and should 

not have been disturbed on appeal. The district court rejected 

the same insufficiency argument, citing the following 

considerations: 

 First, Jenkins was not merely in the same 

 apartment where the cocaine and guns were 

 found. Nor was he merely in the same room

 where the items happened to be hidden or 

 stored. Rather, he was sitting immediately 

 behind a coffee table piled with drugs, 

 paraphernalia, and loaded weapons. . . . 

 Second, while there was no evidence that 

 Jenkins was a resident of the apartment, the 

 jury could have reasonably inferred that he 

 was not merely stopping by Stallings' 

 apartment on February 10 and happened to find 

 Stallings involved in drug activity. 

 Jenkins, on a winter night at 1:30 a.m., was 

 wearing boxer shorts and a T-shirt, which 

 could imply that he was staying over in the 

 apartment or had been there long enough to

 get comfortable. Moreover, the building 

 manager testified that Jenkins was in and out 

 of the apartment with Stallings and Harrison 

 on different occasions. It would have been 

 reasonable for a jury to conclude that 

 defendant was a frequent visitor in the 

 apartment and a participant in the activities 

 inside. Third, there were two triple-beam

 balances on the coffee table and two people 
 seated behind the table. From these facts

 the jury could have inferred that Jenkins and 

 Stallings each was using a scale . . . . 

Jenkins, No. 94-385-02, slip op. at 6-7. The district court 

further held that there was 

 sufficient evidence from which the jury could 

 conclude that the drugs were possessed with 

 the intent to distribute them. In addition 

 to the cocaine on the table, there were two 

 scales, a powdered cutting agent, plastic 

 baggies, vials, and caps. An expert 

 testified that these materials are used in

 preparing, weighing, and packaging drugs for 

 street sale. . . . Even if the police did not 

 happen to catch the defendants in the act of 

 placing cocaine in baggies or vials . . . the 

 tools of the distribution trade were in 

 evidence and readily available. Thus I find 

 that there was sufficient evidence to support 

 the jury's finding that Jenkins possessed the 

 cocaine with the intent to distribute it. 

Id. at 7-8. While I agree with the district court's disposition 

of the constructive possession issue, I will now elaborate upon a 

number of additional points that provide further support for the 

conclusion that there is sufficient evidence in the record to 

affirm Jenkins' conviction. 

 1. 

 The question whether a defendant constructively 

possessed narcotics requires a careful examination of the facts. 

See Constructive Possession, supra, at 1008 ("The analysis under 

the constructive possession doctrine is necessarily fact-driven. 

As no one evidentiary factor standing alone is conclusively 

demonstrative, it must be inferred from the totality of 

circumstances of a particular case."). In this case, the 

situation in which the police found Jenkins, by all appearances, 

provided devastating indicia of his guilt. When the police 

entered the apartment, they found Jenkins in the center of a drug 

distribution enterprise. Jenkins had comfortably ensconced 

himself within an arm's reach of firearms, narcotics, drug 

paraphernalia and other tools of the narcotics trade. From this 

vantage point, Jenkins had easy access to all the contraband that 

surrounded him and appeared to have the complete trust of the 

tenants of the apartment in which this unlawful enterprise was 

carried on. Under these uncontested facts, and viewing this 

evidence in the light most favorable to the prosecution, a 

rational jury could have concluded that Jenkins had "the ability 

to reduce [the cocaine] to actual possession . . . ." Martorano, 

709 F.2d at 869. 

 2. 

 The majority's analysis seems to treat all forms of 

proximity as having the same probative value and offers no 
opinion as to whether Jenkins' position within grabbing range of 

all the contraband in the apartment is to be given any weight at 

all in our analysis. Although I recognize that proximity, 

standing alone and without any other incriminating circumstances, 

is insufficient as a matter of law to convict a defendant on 

criminal possession charges, Brown, 3 F.3d at 680, this does not 

mean that the degree of proximity is irrelevant. On the 

contrary, considered along with other attendant circumstances, 

proximity can support a judgment of conviction for criminal 

possession. 

 Close proximity to narcotics is an evidential, 

inculpatory factor that can support a finding of guilt on 

criminal possession charges to a greater or lesser degree. See, 

e.g., Brown, 3 F.3d at 683 (distinguishing our decision in United 

States v. Davis, supra, where a constructive possession 

conviction was upheld on the ground that the defendant in Davis"was 

present with her co-defendant in the room and next to the 

table where the drugs and drug paraphernalia were found"); 

United States v. Evers, 448 F.2d 863, 866 (3d Cir. 1971), cert. 

denied, 405 U.S. 928, 92 S. Ct. 979 (1972). In the instant case, 

the defendant voluntarily situated himself in a position where 

narcotics, firearms, drug packaging materials and various other 

tools of the drug-dealing trade were "within his immediate 

reach." United States v. Bonham, 477 F.2d 1137, 1138 (3d Cir. 

1973). This is a significant and highly probative evidentiary 

fact. See Parker v. United States, 601 A.2d 45, 51 n.18 (D.C. 

App. 1991) (rejecting a legal sufficiency challenge, the court 

observed that the case was "a diminished version of many 

constructive possession cases, in that the contraband was within 

the actual immediate reach of both defendants"); United States 

v. DiNovo, 523 F.2d 197, 201 (7th Cir.) (distinguishing our 

decision in United States v. Davis, supra, on the ground that 

defendant "was not discovered in the immediate area of 

unconcealed narcotics"), cert. denied, 423 U.S. 1016, 96 S. Ct. 

449 (1975). This factor is particularly telling in a case such 

as this where Jenkins comfortably settled himself in the center 

of a drug distribution network. 

 In concluding that Jenkins was "merely present" in the 

apartment, the majority stresses what it found to be the fortuity 

of Jenkins' presence in such a compromising position. The 

majority goes on to conclude that "[w]hether or not [Jenkins] 

possessed the drugs, he could have been found sitting on the 

couch, standing next to it, in the bathroom, or in some other 

room in the apartment." Majority Typescript at 12. This 

statement is puzzling. The possibility that Jenkins couldconceivably have 

been found in any one of these places had the 

police entered the apartment at a different time is irrelevant. 

Indeed, if the police had shown up either earlier or later, 

Jenkins might not even have been in the apartment at all! It is 

axiomatic that a criminal is not entitled to go free merely 

because the constable showed up at an inconvenient time. This 

type of "bad luck" does not warrant granting Jenkins the windfall 

of a blanket acquittal. 

 3. 
 The majority further concludes that Jenkins' 

"acquaintance" with Stallings and Harrison cannot give rise to an 

inference of constructive possession. The majority is correct to 

the extent that mere association, standing alone, will not 

support a conviction premised upon the constructive possession 

doctrine. Brown, 3 F.3d at 680. This does not mean, however, 

that all types of associations with criminals are innocent and 

cannot support a finding of constructive possession. In the 

present case, Jenkins was, at a minimum, on excellent terms with 

narcotics traffickers who were openly plying their trade. This 

uncontested fact raises for our consideration a principle 

recognized by our sister circuits, which acknowledge that in this 

type of environment, "[t]he jury . . . could have reasonably 

determined that only trusted members of the operation would be 

permitted entry into the apartment, because allowing outsiders to 

have access to an apartment with large quantities of narcotics in 

plain view could compromise the security of the operation." 

United States v. Soto, 959 F.2d 1181, 1185 (2d Cir. 1992). 

 Similarly, the Court of Appeals for the D.C. Circuit 

has observed that "presence, proximity or association may 

establish a prima facie case of drug-possession when colored by 

evidence linking the accused to an ongoing criminal operation of 

which that possession is a part." United States v. Staten, 581 

F.2d 878, 885 (D.C. Cir. 1978). The Staten court also made the 

common-sense pronouncement, equally applicable here, that the 

defendant's presence in an "apartment reeking with the tell-tale 

indicia of an ongoing drug-distributing enterprise could 

rationally have been viewed as a privilege reserved exclusively 

for participants." Id. In such a situation, "[i]t would seem 

that the voluntary presence of the accused in an area obviously 

devoted to preparation of drugs for distribution is a 

circumstance potently indicative of his involvement in the 

operation." Id. n.67 (emphasis added). See United States v. 

Harrison, 931 F.2d 65, 72 (D.C. Cir.) (noting that presence is 

"especially significant" in this context), cert. denied, 502 U.S. 

953, 112 S. Ct. 408 (1991); see also State v. Brown, 404 A.2d 

1111, 1114 (N.J. 1979) (rejecting argument that defendant was 

"merely present" as "[t]here were other evidential circumstances 

lending distinctive color to the character of defendant's 

presence at the scene."). 

 These inculpatory factors, considered together, provide 

a sufficient evidentiary foundation for a rational jury to 

conclude that Jenkins violated 21 U.S.C.  841(a)(1). I will now 

turn to my disagreement with the majority regarding the degree of 

deference our standard of review requires us to accord the jury's 

factual conclusions as to Jenkins' guilt. 

 B. 

 An analysis of the majority's opinion reveals that the 

court most certainly does not view the record evidence "in the 

light most favorable to the prosecution." Jackson, 443 U.S. at 

319, 99 S. Ct. 2789. Quite to the contrary, the majority has 

elected not only to reject the inferences that the jury made as 

to what Jenkins was doing in the apartment, but has gone so far 

as to view the record evidence in the light most favorable to the 
defendant. This misapplication of the burden of proof undermines 

the majority's entire analysis of the insufficiency issue. 

 For example, the majority concludes that Jenkins' 

"prior acquaintance with Stallings answers why he was in the 

apartment . . . ." Majority Typescript at 6-7. Continuing along 

these lines, the majority opines that "we can only conclude that 

it was sheer happenstance that Jenkins was seated on the couch 

next to the cocaine when the police entered the apartment." Id.at 11-12. 

A rational jury, however, would be free to, and did, 

reject the majority's suggested inferences. Indeed, the 

majority's second-guessing runs entirely counter to the burden 

that Jenkins must satisfy to prevail on his motion for acquittal. 

It would appear that the majority has embarked upon an 

unauthorized exercise of post hoc appellate fact-finding to 

explain, to its own satisfaction at least, the "real" reasons for 

Jenkins' presence in the apartment. In so doing, it has 

literally reversed the established rule as to which party has the 

burden of proof. We are not in the business of overriding a 

jury's conclusions, based upon a highly selective interpretation 

of the facts viewed in a light most favorable to the defendant. 

 Similarly, the majority concludes that the presence of 

two scales in front of Jenkins does not link him to the drugs 

because they were not being used at the time of police entry and 

"it was more likely that the two scales belonged to and would be 

used by the two residents of the apartment." Id. at 7. As 

Jenkins did not actually live in the apartment, the majority 

appears to believe that the fact he was found seated directly in 

front of the type of scale commonly used to weigh narcotics (that 

was in the immediate vicinity of narcotics) need not concern us 

here. The majority also appears to believe that since the police 

came upon two triple-beam scales, a rational jury could infer 

only that the drug activity that occurred in the apartment was 

carried on by two people who lived in the apartment. Since 

Jenkins was a mere guest, so the argument goes, a rational jury 

could not conclude that he was one of the two participants 

involved in drug distribution, even though Jenkins was one of the 

two people in the room when the police entered the apartment. 

 The presence of two scales obviously does not lead to 

an a fortiori conclusion that only two people could have been 

involved in the narcotics distribution enterprise that was 

conducted out of Stallings' apartment. It is not as though the 

police saw two tea cups and two bowls of porridge sitting on a 

table with two place settings. A rational jury could conclude 

that the drug-dealing operation conducted out of Stallings' 

apartment was not a "two-man show." As courts have recognized, 

a narcotics distribution scheme "necessarily involves multiple 

individuals." Parker, 601 A.2d at 52. Moreover, the two scales 

were not the only drug-related items in the apartment. The 

apartment also contained three firearms and many items of drugdealing paraphernalia, all within Jenkins' sight and reach. 

Furthermore, the majority's narrow interpretation of the 

permissible inferences that a rational jury could draw from the 

presence of two triple-beam scales in the apartment on the table 

in front of Jenkins fails to evaluate the record evidence in the 
light most favorable to the prosecution. 

 C. 

 The majority contends that our decision in United 

States v. Brown, 3 F.3d at 673, is controlling and requires that 

we overturn Jenkins' criminal possession conviction. I disagree. 

Brown is clearly distinguishable from this case. Ama Baltimore, 

the defendant in Brown whose conviction was overturned on legal 

insufficiency grounds, was arrested as she was about to enter the 

front door of a house in which the police were executing a search 

warrant. Baltimore lived in the house. The police seized large 

amounts of narcotics in the house, but none in any areas of the 

house in which personal items belonging to Baltimore were found. 

 In the district court Baltimore was, like Jenkins, 

convicted of possession of a controlled substance with intent to 

distribute. We reversed. This result was premised upon the fact 

that Baltimore was nowhere near narcotics when she was arrested, 

the room in which Baltimore's possessions were found was drugfree and the attendant circumstances that surrounded her arrest 

did not adequately support a conclusion that she was an active 

participant in the criminal activities that occurred within the 

house. 

 Although the majority attempts to minimize the emphasis 

that the Brown court placed upon the potential significance of 

the proximity factor, see Majority Typescript at 8, its efforts 

are unpersuasive. In support of its decision to overturn the 

criminal possession charges against Baltimore, the Brown court 

relied, inter alia, upon the decision of the Court of Appeals for 

the D.C. Circuit in United States v. Zeigler, 994 F.2d 845 (D.C. 

Cir. 1993). The Brown court cited as an exculpatory factor in 

that case the fact that the defendant "was not found in the room 

where the crack cocaine was found . . . ." Brown, 3 F. 3d at 

682. Moreover, the Brown court distinguished our decision in 

United States v. Davis, 461 F.2d at 1026, in which a finding of 

constructive possession was upheld, on the ground that "[t]he 

defendant in Davis was present with her co-defendant in the room 

and next to the table where the drugs and drug paraphernalia were 

found." Brown, 3 F.3d at 683. 

 In its analysis of whether there was sufficient 

evidence in the record to support Baltimore's conviction, the 

Brown court looked to where Baltimore was in relation to the 

contraband that the authorities had seized when she was arrested, 

and to the areas of the house where she arguably had a legitimate 

expectation of privacy. See id. ("neither [Baltimore] nor any of 

her possessions were found in any of the rooms where the drugs 

were seized"). Baltimore was nowhere near the drugs when she was 

arrested, nor were any of her personal possessions located in the 

house's drug-processing areas. The Brown case, therefore, lacked 

the present case's immediate proximity to the contraband, 

considered along with the other incriminating attendant 

circumstances that gave rise to a permissible inference that 

Jenkins committed the crime charged. 

 It is possible, of course, for a person to live in a 

house in which narcotics trafficking is taking place without 

being involved in the operation itself. Brown recognized this, 
as did the Court of Appeals for the Ninth Circuit's decision in 

United States v. Vasquez-Chan, 978 F.2d 546 (9th Cir. 1992) 

(Reinhardt, J.), another case upon which the majority relies 

heavily. Although such living arrangements are foolish, they are 

not necessarily criminal. Brown recognized that people living in 

a house or apartment with multiple tenants may have their own 

separate spheres of activity and personal agendas. 

 The rationale that underlies Brown, however, does not 

help Jenkins. The record in this case can reasonably be 

interpreted to support the conclusion that Jenkins' personal 

connection with the area of the apartment that was the hub of a 

small-scale narcotics distribution enterprise was that of a 

trusted insider on familiar territory. Therefore, a rational 

jury could have concluded that Jenkins was a member in good 

standing of criminal narcotics distribution operation when the 

police entered Stallings' apartment on February 15, 1994. 

 IV. 

 Our decision in United States v. Iafelice, 978 F.2d at 

92, which discusses how a rational jury could analyze the 

circumstantial evidence presented in constructive possession 

cases, is also instructive here: 

 It is not unusual that the government

 will not have direct evidence. Knowledge is 

 often proven by circumstances. A case can be 

 built against the defendant grain-by-grain

 until the scale finally tips; and 

 considering all the facts and drawing upon

 rational inferences therefrom, a reasonablejury could find beyond 

a reasonable doubt 

 that the defendant committed the crime for

 which he is charged. 

Id. at 98 (emphasis added). Since the evidence presented here 

effectively tipped the evidentiary scale, we are precluded from 

nullifying the jury's fact finding. 

 Although "other inferences are possible from the 

evidence, . . . that circumstance does not justify us in 

rejecting the jury's verdict." United States v. Sandini, 888 

F.2d 300, 311 (3d Cir. 1989), cert. denied, 494 U.S. 1089, 110 S. 

Ct. 1831 (1990). Accord Iafelice, 978 F.2d at 97 n.3 ("There is 

no requirement . . . that the inference drawn by the jury be the 

only inference possible or that the government's evidence 

foreclose every possible innocent explanation."). The majority 

has interpreted the constructive possession doctrine far more 

restrictively than our case law warrants and has also failed to 

heed the Supreme Court's mandate to view the record evidence in 

the light most favorable to the prosecution. I would uphold 

Jenkins' conviction on criminal possession charges.