### 1996 D e c i sion s O p inion s of the U nit e d

S t at e s C our t of Appe al s for the Thir d C ir c uit

7-26-1996 

# Unit ed S t at es v

. J e nk ins

P r e c e de n t i al or N on-P r e c e de n t i al :

D ocke t 95-1606

F o l lo w thi s a nd a dd it ion al w ork s at : h tt p://d i g it alc ommon s .l a w

. v i l l a no va

. e du/thir dc ir c uit_1996

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va

U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 1996 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va

U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no va

. e du

. 

### Re c omme nde d C it at ion

" U nit e d S t at e s v

. J e nkin s " (1996). 1996 D e cisio n s

. P ape r 117.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no va

. e du/thir dc ir c uit_1996/117UNITED 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 Pennsylvani a (D.C. Crim. Action No. 94-cr-00385-2)

Argued: March 11, 1996

BEFORE: STAPLETON, SCIRICA and COWEN, Circui t Judges

(Opinion Filed July 26, l996)

M ichael R. Stiles

U nited States Attorney

W alter S. Batty, Jr.

A ssistant U.S. Attorney

W illiam B. Carr, Jr. (Argued)

A ssistant U.S. Attorney

O ffice of the U.S.
Attorney
6 15 Chestnut Street

P hiladelphia, PA 19106 Attorneys for Appellee

R obert Epstein (Argued)

A ssistant Federal

Defender

E laine DeMasse

S enior Appellate Counsel

M aureen Kearney Rowley

C hief Federal Defender

D efender Association of Philadelphia

F ederal Court Division4 37 Chestnust Street,

Suite 800

L afayette Building

P hiladelphia, PA 19106 Attorneys for Appellant

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Sean Jenkins appeals his conviction on dru g possession and related firearms charges. He challenges the su fficiency of the evidence to establish his constructive possessi on of drugs found near him. Because the evidence showed only t hat he was in an acquaintance's apartment physically near but not in actual possession of drugs and drug distribution paraphern alia, it does not support the jury's finding that he had dominion and control over the drugs. We will, therefore, reverse Jenkin s' conviction

on all counts.

I. Around 1:30 a.m. on February 10, 1994, Phi ladelphia police officers Michael Kopecki and James Santomier i responded to a call that shots were being fired near an apartmen t building. Entering the courtyard of the building, the officer s 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, dow n a hallway, and into apartment C-107. The front door opened in to the living room, and the officers found Sam Stallings and Jenk ins seated on a couch, both wearing only boxer shorts and a t-shi rt. On the coffee table before them were three bags of white p owder containing a total of 55.3 grams of cocaine and 42 grams of noncocaine white powder, two triple-beam scales, two l oaded .38 caliber revolvers, small ziplock-style bags, clear plastic vials, and numerous red caps. On the floor was a loaded s awed-off shotgun. None of the cocaine powder had been put in the bags, vials, or caps, and there was no evidence that eith er 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 cocain e were found with any cocaine residue. No cocaine residue was f ound on Stallings or Jenkins, including their hands, and no residue was found on the scales. Nothing concerning Jenkins' c lothing suggested any connection to the drugs. Finally, he made no attempt to hide or destroy the contraband, and full y cooperatedwith the officers.

Stallings and Jenkins were charged and tri ed together. Count I of the indictment charged them with possess ion 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 dru g 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 via ls were commonly used by drug traffickers in repackaging dr ugs for resale. On cross-examination, Hershowitz acknowled ged that instruments necessary to cut and apportion the coca ine and insert it into the various packages were not found in the apartment. The manager of the apartment building, Barbara Edwa rd, 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 coun ts. He made a post-trial motion for judgment of acquittal or ne w trial. Although recognizing that proximity to contraband o r association with someone in possession is by itself insufficien t to find constructive possession, the court denied the motio n. It found three factors from which a jury could infer dominio n 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 t hat 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 sufficienc y of the evidence, we view the evidence in the light most fa vorable to the government, and we will affirm the conviction if a rational trier of fact could have found the defendant guilty beyon d 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 p ossession of the cocaine powder; consequently, the issue before us is whether
there was evidence sufficient to establish construc tive possession. Under our precedent, the evidence must show that Jenkins had dominion and control over the drugs: [T]he government must submit sufficientevidence to support an inference that the

individual "knowingly has both the power a nd the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons. Constructive possession necessar ily requires both 'dominion and control' over an object and knowledge of that object's existence." United States v. Iafelice, 97 8 F.2d 92, 96 (3d Cir. 1992) (citations omitted) . . . .

Brown, 3 F.3d at 680. The kind of evidence that ca n establish dominion and control includes, for example, evidenc e that the defendant attempted to hide or to destroy the contr aband, seeUnited States v. Davis, 461 F.2d 1026, 1034-36 (3d Cir. 1972), or that the defendant lied to police about his identit y 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 esta blished, however, by "mere proximity to the drug, or mere pr esence on the property where it is located or mere association wi th 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 up on by the court was insufficient to prove dominion and contro l over the cocaine. Nothing but proximity links him to the dr ugs 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 t he apartment, and it is immaterial how long he had been or was go ing 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 hi m; if anything, it was more likely that the two scales be longed to and would be used by the two residents of the apartment

. We agree with the defendant that the evide nce is insufficient to establish his possession of the coc aine. The evidence does show that he is an acquaintance of St allings and Harrison and that he was found physically near drug s and drug distribution paraphernalia, including two scales, b ut those are
insufficient facts from which to infer dominion and control over the drugs. We find this case controlled by our decisi on in United States v. Brown. The police, acting on a tip, sear ched Brown's home for drugs. During the search, Ama Baltimore a rrived at the house, inserted a key into the lock, and was arrest ed as she entered. While being arrested, she protested, "But you can't arrest me because I am in my own house." In the up stairs sewing room, the police found a pair of shorts and a switc hblade, both
of which Baltimore admitted were hers. Substantial quantities ofheroin, cocaine powder, and crack cocaine were foun d in the

refrigerator in the kitchen, the kitchen closet, an d one of the upstairs bedrooms. Equipment and supplies to prepa re, cook, cut and distribute the drugs were also found in the bed room. The government contended that several facts were suffic ient to establish Baltimore's possession of the drugs: her possession of a key to the house, her attempted entry, the presen ce of the shorts and switchblade in the house, her statement, and the fact that the house was a known "cut house," a place whe re large quantities of drugs are cut and distributed.
We overturned her conviction for insuffici ent evidence of possession. The evidence showed that she had ac cess to or resided in the house and knew of the presence of th e drugs, but
did not show she had dominion and control them. Th e key, her attempted entry, and her statement merely showed th at she had some control over the house, not the drugs. See 3 F.3d at 682- 83. We further noted that her fingerprints were no t found on the drugs or drug paraphernalia, and there was no evide nce that she ever exerted any indirect control over them. See i d. Evidence in addition to knowledge of and access to the drugs was necessary to prove possession. The fact that Brown's home wa s a "cut
house" did not suffice as additional evidence. Bec ause Brown's house was also a residence, the jury could not infe r from the fact that Brown's home was a "cut house," that beyo nd a reasonable doubt, Baltimore was a participant in th e drug distribution operation. See id. at 683-84. The government stresses that in Brown we n oted 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 c ontends that this factor was highly relevant to our decision, bu t we disagree. It is a serious misreading of that decision to conc lude that the degree of proximity of Baltimore or her clothing to the drugs was a controlling factor. Although our decision does n ot 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 re gularly would have entered the kitchen and bedroom, the rooms in which the drugs were found. Since we concluded that her resi dence in the cut house was insufficient to prove dominion and co ntrol 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 d rugs. Our decision in Brown is consistent with t he jurisprudence of other circuits. In United States v. VasquezChan, the Court of Appeals for the Ninth Circuit fo und evidence of drug possession insufficient even though there w as proof that the defendant had access to and was in close proxim ity with large quantities of drugs. Drug Enforcement Agency offic ers arranged the purchase of a large amount of cocaine. They ob served 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 Gaxi ola-Castillo (Gaxiola). Gaxiola waived her rights and told the officers that she was a friend of the housekeeper and had been st aying there afew weeks with her infant child. In the bedroom wh ere she had

been staying, the officers found 600 kilograms of c ocaine in 55 gallon drums. On six of the drums, including the i nside of the lid of one drum, they found her fingerprints. She was convicted of conspiracy to possess narcotics with intent to d istribute.
The Ninth Circuit overturned the convictio n for lack of evidence of possession. She claimed that she had c ome to visit her friend, and she and her child had to sleep some where, and the bedroom with the cocaine may have been the only pla ce to stay. Although the defendant had been caught in "extremel y incriminating circumstances" due to her proximity t o the drugs, her behavior "was perfectly consistent with that of an innocent person having no stake or interest in the transacti ons." 978 F.2d at 551 (citations omitted). Proximity and kno wledge of the existence and location of the drugs were insufficie nt to prove dominion and control. See id. The fingerprints by themselves proved nothing but the fact that she had used the b edroom. 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 d rugs under very suspicious circumstances insufficient to suppo rt a finding of possession. Acting on a tip that drugs were bei ng sold from Eric Dunlap's apartment, police officers secured a search warrant. As they approached his door, Dunlap opene d the door from the inside. Standing behind Dunlap was Cornel ius Coleman, who had a handgun in his pocket. In the kitchen, t he officers found large amounts of cocaine power and cocaine ba se, 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 di stribution paraphernalia were found in the apartment. Coleman was convicted of possession with intent to distribute cocaine. The Eighth Circuit overturned his convicti on because the evidence was not sufficient for a jury to find beyond a reasonable doubt that Coleman had constructive poss ession. 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 vi siting 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 a id and abet Dunlap in his drug operation. See id. at 827. The evidence supporting constructive posse ssion in Sean Jenkins' case is no stronger than the evidence foun d insufficient in Brown, Vasquez-Chan, and Dunlap. In each of tho se cases, the
evidence did not establish the decisive nexus of do minion and

control between the defendant and the contraband. The district court believed that Jenkins' being on the couch nex t to the drugs was decisively different than if he was somewhere e lse in the apartment, but proximity alone is not enough, no ma tter 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 th e policeentered the apartment. Whether or not he possessed the drugs, he

could have been found sitting on the couch, standin g next to it, in the bathroom, or in some other room in the apart ment. A reasonable jury may not infer dominion and control beyond a reasonable doubt from the defendant's physical dist ance from the drugs alone. Jenkins' presence near the drugs in his ac quaintance's apartment is analogous to Baltimore's control over the cut house and access to the drugs, Gaxiola's proximity and co ntact with the drugs, and Coleman's proximity to drugs and drug ac tivity. Some additional evidence of dominion and control is requ ired before a finding of constructive possession can be made beyo nd a
reasonable doubt. We do not believe that Jenkins' being in boxer
shorts and a t-shirt or the fact that two scales we re on the table can raise the necessary inference. That he h ad been in the apartment long enough to get partially undressed an d that he was planning to stay for some time tell us nothing abou t what he had been doing or what he planned to do. We do not kno w 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 distri bution paraphernalia were not in use, and no cocaine resid ue was found on him. Perhaps most important, as agent Hershowit z testified, the cutting and repackaging of the cocaine could no t have been imminent for lack of tools to cut, apportion and pa ckage the powder. Under these circumstances, a reasonable ju ry could not conclude from Jenkins' state of undress that, beyon d a reasonable doubt, he had dominion and control over the drugs a nd intended to participate in the distribution of the cocaine at s ome point that night.
The existence of two scales rather than on e adds very little to the evidence against Jenkins. It does su ggest that someone in addition to Stallings would have partici pated in the drug cutting and repackaging that night, if such ac tivity 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 th at 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 S tates v. Iafelice, 978 F.2d 92 (3d Cir. 1992). In both case s, however, there were significant and substantial factors link ing the defendants to the drugs. In Davis, the defendant w as convicted for possessing heroin that had been seized in her a partment. Unlike the instant case, in Davis the evidence clea rly showed that someone had been recently packaging the drugs, and when the police forced their way in, the persons present, in cluding the defendant, had tried to destroy the drugs. 461 F.2 d at 1036-38. Here, Jenkins was in an acquaintance's apartment an d no evidence suggests that he had recently physically interacted with the drugs or drug paraphernalia. Neither did he attemp t to hide or destroy the drugs. In Iafelice, the defendant drov e several individuals in his car to a pre-arranged drug sale to undercoveragents, 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 b y one of the principal drug dealers during the sale. See Iafeli ce, 978 F.2d at 95-98. Here, the cocaine was not found in Jenki ns' residence, and no evidence suggests his active participation i n any drug
distribution. A sufficiency of the evidence challenge re quires us to take a careful look at the evidence in the light mo st favorable to the government. Because the evidence supporting Jenkins' possession of the cocaine, viewed in that light, do es not amount to more than close proximity to the drugs and acqua intance with the residents of the apartment in which the drugs w ere found, we must reverse his conviction for possession with int ent to
distribute.

B. Jenkins was also convicted for using a fir earm in connection with a drug trafficking crime. Section 924(c)(1) of Title 18 provides, in relevant part, that any perso n who "during and in relation to any . . . drug trafficking crime . . . uses or carries a firearm" is subject to a mandatory 10-yea r sentence "in addition to" the punishment for the predicate offen se. Jenkins argues that the district court erroneously denied h is 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 i s an element
of the crime described in  924(c)(1), and must be proved beyond a reasonable doubt. See, e.g., United States v. An derson, 59 F.3d 1323, 1326 (D.C. Cir.), cert. denied, 116 S. C t. 542 (1995); United States v. Nelson, 27 F.3d 199, 201 (6th Cir. 1994). Because the government has not met its burden of pr oof on the predicate offense, Jenkins' conviction for using a firearm in connection with a drug offense must be also be reve rsed.

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 alterna tives. 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 h e 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. 19 84) (quoting Nye & Nissen v. United States, 336 U.S. 613, 619 (1 949)) (alterations in original). Here, the government had to prove that ano ther person committed the principal offense and that Jenkins ai ded and
abetted in the commission of that offense. At tria l, the government offered no evidence other than the evide nce to support constructive possession by Jenkins. His close prox imity to thedrugs and firearms, state of dress, and acquaintanc e with

Stallings, who committed the principal offense, are not sufficient to prove aiding and abetting. The gover nment simply has a "snapshot" of Jenkins sitting on a couch in a n 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 distributi on, 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 ap artment, get partially undressed, and sit on the couch. Consequ ently, the jury could not have properly convicted Jenkins of a iding and abetting.

IV.
Because we have concluded that there was i nsufficient evidence for the jury to convict Sean Jenkins of po ssession of cocaine with intent to distribute, use of a firearm in connection with a drug offense, and aiding and abetting, we wi ll 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 ev idence is viewed in the light most favorable to the prosecuti on, no rational jury could possibly conclude that a man in his underwear sitting on a sofa that is surrounded by cocaine, as sorted drug paraphernalia and firearms can be guilty of a posse ssory offense under the constructive possession doctrine. I beli eve 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 violat ion of 21

U.S.C.  841(a)(1), based upon what the police saw when the y entered Sam Stallings' apartment in pursuit of an a rmed felon. Because the majority reaches a contrary result, I r espectfully
dissent.

I. The facts of this case are not in dispute. In its June 6, 1995 order denying Jenkins' post-trial motion fo r a judgment of acquittal, the district court described the circ umstances under which the police entered the apartment in que stion and what they saw when they arrived: Michael Kopecki, a Philadelphia police officer, testified that on February 10, 19 94, at 1:30 a.m., he and his partner responded to a call that gunshots were being fired outs ide the West Walnut Lane Apartments. Kopecki testified that he parked his patrol car an d moved toward the courtyard between two of the buildings, where he saw Larry Harrison wit h a gun and Kevin Jones with him. Kopecki yel led "police." Harrison and Jones ran toward t hebuilding. Kopecki followed Harrison into the

building through a fire escape door and do wn a short hallway into apartment C-107. Whe n he entered the apartment, defendants Jenki ns and Stallings were seated on the couch in the living room; they were wearing boxer shor ts
and T-shirts. On the coffee table in fron t 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 tota led 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 th e guns were loaded.

United States v. Jenkins, No. 94-385-02, slip op. a t 1-2 (E.D. Pa. June 6, 1995).

II. "Constructive possession is a legal fictio n created by courts to find possession where it does not exist i n fact." Michael S. Deal, Note, United States v. Walker: Co nstructive Possession of Controlled Substances: Pushing the L imits of Exclusive Control, 2 J. Pharmacy & L. 401, 401 (199 4). "The judicially created doctrine of constructive possess ion enables law enforcement officials to prosecute individuals in situations where the inference of possession is strong, yet ac tual possession at the time of arrest cannot be shown." Mark I. Rabinowitz, Note, Criminal Law Constructive Possess ion: Must the
Commonwealth Still Prove Intent?--Commonwealth v. M udrick, 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 know ledge of that object's existence." United States v. Brown, 3 F.3 d 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, 70 9 F.2d 863, 869 (3d Cir.), cert. denied, 464 U.S. 993, 104 S. C t. 486 (1983). See Black's Law Dictionary 314 (6th ed. 1990) (Cons tructive possession "[e]xists when one does not have physica l custody or possession, but is in a position to exercise domini on and control over a thing."); see also George H. Singer, Note, Constructive
Possession of Controlled Substances: A North Dakot a 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 capa city, 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 i s enough that he or she could have done so.").Our cases have held that "dominion and con trol" 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 b e premised only upon "mere proximity to the drug, or mere pres ence on the property where it is located or mere association wi th 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 questi on is whether, after viewing the evidence in the light most favora ble 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 (3 d 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 o n the appellant." United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995).

III.

A.
There is sufficient evidence in this recor d to affirm Jenkins' conviction on criminal possession charges under 21

U.S.C.  841(a)(1). The reasoning and analysis of the dist rict court on the constructive possession issue were sou nd and should not have been disturbed on appeal. The district co urt rejected the same insufficiency argument, citing the followi ng 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 immediatel y 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, t he jury could have reasonably inferred that h e was not merely stopping by Stallings' apartment on February 10 and happened to f ind Stallings involved in drug activity. Jenkins, on a winter night at 1:30 a.m., w as wearing boxer shorts and a T-shirt, which could imply that he was staying over in th e 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 Harris on on different occasions. It would have bee n reasonable for a jury to conclude that defendant was a frequent visitor in the apartment and a participant in the activit ies inside. Third, there were two triple-beam balances on the coffee table and two peopl eseated 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 distr ict court

further held that there was

sufficient evidence from which the jury co uld conclude that the drugs were possessed wit h
the intent to distribute them. In additio n to the cocaine on the table, there were tw o scales, a powdered cutting agent, plastic baggies, vials, and caps. An expert
testified that these materials are used in preparing, weighing, and packaging drugs f or 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 fi nd that there was sufficient evidence to supp ort 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 el aborate upon a number of additional points that provide further su pport for the
conclusion that there is sufficient evidence in the record to
affirm Jenkins' conviction.

1. The question whether a defendant construct ively possessed narcotics requires a careful examination of the facts. See Constructive Possession, supra, at 1008 ("The a nalysis under the constructive possession doctrine is necessarily fact-driven. As no one evidentiary factor standing alone is conc lusively demonstrative, it must be inferred from the totalit y of circumstances of a particular case."). In this cas e, the situation in which the police found Jenkins, by all appearances, provided devastating indicia of his guilt. When th e police entered the apartment, they found Jenkins in the ce nter of a drug distribution enterprise. Jenkins had comfortably e nsconced himself within an arm's reach of firearms, narcotic s, drug paraphernalia and other tools of the narcotics trad e. From this vantage point, Jenkins had easy access to all the c ontraband that surrounded him and appeared to have the complete tr ust of the tenants of the apartment in which this unlawful ent erprise was carried on. Under these uncontested facts, and vie wing this evidence in the light most favorable to the prosecu tion, 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 of fers noopinion as to whether Jenkins' position within grab bing range of

all the contraband in the apartment is to be given any weight at all in our analysis. Although I recognize that pro ximity, standing alone and without any other incriminating circumstances,
is insufficient as a matter of law to convict a def endant on criminal possession charges, Brown, 3 F.3d at 680, this does not mean that the degree of proximity is irrelevant. O n the contrary, considered along with other attendant cir cumstances, proximity can support a judgment of conviction for criminal possession. Close proximity to narcotics is an evident ial, inculpatory factor that can support a finding of gu ilt on criminal possession charges to a greater or lesser degree. See, e.g., Brown, 3 F.3d at 683 (distinguishing our deci sion in United States v. Davis, supra, where a constructive posses sion conviction was upheld on the ground that the defend ant in Davis"was present with her co-defendant in the room and next to the table where the drugs and drug paraphernalia were f ound"); 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 pos ition where narcotics, firearms, drug packaging materials and v arious other tools of the drug-dealing trade were "within his immediate reach." United States v. Bonham, 477 F.2d 1137, 11 38 (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 contraba nd was within the actual immediate reach of both defendants"); U nited States v. DiNovo, 523 F.2d 197, 201 (7th Cir.) (distinguis hing our decision in United States v. Davis, supra, on the g round that
defendant "was not discovered in the immediate area of unconcealed narcotics"), cert. denied, 423 U.S. 101 6, 96 S. Ct. 449 (1975). This factor is particularly telling in a case such as this where Jenkins comfortably settled himself i n the center of a drug distribution network. In concluding that Jenkins was "merely pre sent" in the apartment, the majority stresses what it found to b e the fortuity of Jenkins' presence in such a compromising positio n. The majority goes on to conclude that "[w]hether or not [Jenkins] possessed the drugs, he could have been found sitti ng 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 Jenkin s 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 o r later, Jenkins might not even have been in the apartment a t all! It is axiomatic that a criminal is not entitled to go fre e merely because the constable showed up at an inconvenient time. This type of "bad luck" does not warrant granting Jenkin s the windfall of a blanket acquittal.
3.The majority further concludes that Jenkin s'

"acquaintance" with Stallings and Harrison cannot g ive rise to an inference of constructive possession. The majority is correct to the extent that mere association, standing alone, w ill not support a conviction premised upon the constructive possession doctrine. Brown, 3 F.3d at 680. This does not mea n, however, that all types of associations with criminals are i nnocent and cannot support a finding of constructive possession . In the present case, Jenkins was, at a minimum, on excelle nt terms with narcotics traffickers who were openly plying their trade. This uncontested fact raises for our consideration a pri nciple recognized by our sister circuits, which acknowledg e that in this type of environment, "[t]he jury . . . could have r easonably determined that only trusted members of the operati on would be permitted entry into the apartment, because allowin g outsiders to have access to an apartment with large quantities o f narcotics in plain view could compromise the security of the ope ration." 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 associati on may establish a prima facie case of drug-possession whe n 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 a lso 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 ar ea 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. de nied, 502 U.S. 953, 112 S. Ct. 408 (1991); see also State v. Brow n, 404 A.2d 1111, 1114 (N.J. 1979) (rejecting argument that def endant was "merely present" as "[t]here were other evidential circumstances lending distinctive color to the character of defen dant's presence at the scene."). These inculpatory factors, considered toge ther, 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 acc ord the jury's factual conclusions as to Jenkins' guilt.

B. An analysis of the majority's opinion reve als that the court most certainly does not view the record evide nce "in the light most favorable to the prosecution." Jackson, 443 U.S. at 319, 99 S. Ct. 2789. Quite to the contrary, the ma jority 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 fa vorable to thedefendant. This misapplication of the burden of pr oof undermines

the majority's entire analysis of the insufficiency issue. For example, the majority concludes that J enkins' "prior acquaintance with Stallings answers why he w as in the apartment . . . ." Majority Typescript at 6-7. Co ntinuing along these lines, the majority opines that "we can only conclude that it was sheer happenstance that Jenkins was seated o n the couch next to the cocaine when the police entered the apa rtment." 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-fi nding to explain, to its own satisfaction at least, the "rea l" reasons for Jenkins' presence in the apartment. In so doing, i t has literally reversed the established rule as to which party has the burden of proof. We are not in the business of ove rriding a jury's conclusions, based upon a highly selective i nterpretation of the facts viewed in a light most favorable to th e 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 pol ice entry and "it was more likely that the two scales belonged to and would be used by the two residents of the apartment." Id. a t 7. As Jenkins did not actually live in the apartment, the majority appears to believe that the fact he was found seate d directly in front of the type of scale commonly used to weigh n arcotics (that was in the immediate vicinity of narcotics) need no t concern us here. The majority also appears to believe that si nce the police came upon two triple-beam scales, a rational jury c ould infer only that the drug activity that occurred in the ap artment was carried on by two people who lived in the apartment . Since Jenkins was a mere guest, so the argument goes, a r ational jury could not conclude that he was one of the two parti cipants 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 t hat was conducted out of Stallings' apartment. It is not a s though the police saw two tea cups and two bowls of porridge s itting on a table with two place settings. A rational jury cou ld conclude that the drug-dealing operation conducted out of St allings' apartment was not a "two-man show." As courts hav e recognized, a narcotics distribution scheme "necessarily involv es multiple individuals." Parker, 601 A.2d at 52. Moreover, the two scales were not the only drug-related items in the apartme nt. The apartment also contained three firearms and many it ems of drugdealing paraphernalia, all within Jenkins' sight an d reach. Furthermore, the majority's narrow interpretation o f the permissible inferences that a rational jury could d raw from the presence of two triple-beam scales in the apartment on the table
in front of Jenkins fails to evaluate the record ev idence in thelight 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 overtur ned on legal insufficiency grounds, was arrested as she was abou t to enter the front door of a house in which the police were exec uting 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 Baltimor e were found. In the district court Baltimore was, like Jenkins, convicted of possession of a controlled substance w ith 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 foun d was drugfree and the attendant circumstances that surrounde d her arrest did not adequately support a conclusion that she wa s an active participant in the criminal activities that occurre d within the

house. Although the majority attempts to minimize the emphasis that the Brown court placed upon the potential sign ificance of the proximity factor, see Majority Typescript at 8, its efforts are unpersuasive. In support of its decision to ov erturn 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 exculpator y factor in

that case the fact that the defendant "was not foun d in the room where the crack cocaine was found . . . ." Brown, 3 F. 3d at 682. Moreover, the Brown court distinguished our d ecision in United States v. Davis, 461 F.2d at 1026, in which a finding of constructive possession was upheld, on the ground t hat "[t]he defendant in Davis was present with her co-defendan t in the room and next to the table where the drugs and drug para phernalia were found." Brown, 3 F.3d at 683. In its analysis of whether there was suffi cient evidence in the record to support Baltimore's convi ction, the
Brown court looked to where Baltimore was in relati on to the
contraband that the authorities had seized when she was arrested, and to the areas of the house where she arguably ha d a legitimate expectation of privacy. See id. ("neither [Baltimo re] nor any of her possessions were found in any of the rooms wher e the drugs were seized"). Baltimore was nowhere near the drug s when she was arrested, nor were any of her personal possessions located in the house's drug-processing areas. The Brown case, the refore, lacked the present case's immediate proximity to the contr aband, considered along with the other incriminating atten dant circumstances that gave rise to a permissible infer ence 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 plac e without being involved in the operation itself. Brown reco gnized this,as did the Court of Appeals for the Ninth Circuit's decision in

United States v. Vasquez-Chan, 978 F.2d 546 (9th Ci r. 1992) (Reinhardt, J.), another case upon which the majori ty relies heavily. Although such living arrangements are foo lish, they are not necessarily criminal. Brown recognized that pe ople 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, howeve r, does not help Jenkins. The record in this case can reasonab ly 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 t hat 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 operati on 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 analy ze the circumstantial evidence presented in constructive p ossession 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 reasonabl ejury 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 pre sented here effectively tipped the evidentiary scale, we are pr ecluded from nullifying the jury's fact finding. Although "other inferences are possible fr om the evidence, . . . that circumstance does not justify us in rejecting the jury's verdict." United States v. Sa ndini, 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 th e jury be the only inference possible or that the government's ev idence foreclose every possible innocent explanation."). The majority has interpreted the constructive possession doctrin e far more restrictively than our case law warrants and has al so failed to heed the Supreme Court's mandate to view the record evidence in the light most favorable to the prosecution. I wou ld uphold Jenkins' conviction on criminal possession charges.