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Jeanette Mercado Rios, Asst. Quiles-Espinosa, Sr. On July 2, , a jury convicted Rafael Angel Zavala Maldonado 'Zavala' of possession of cocaine with intent to distribute, in violation of 21 U. For the reasons set forth, we affirm. The first ground of appeal requires an understanding of the evidence and, given the conviction, we recite the evidence in the light most favorable to the government. United States v. Maraj, F. There, a drug dealer gave Santos sixteen packages of cocaine, amounting to a total of eight kilograms, and asked Santos to deliver them as instructed when the ship docked at the port of Ponce, Puerto Rico. Santos had earlier been approached by American law enforcement agents attached to the Customs Service, and he accepted the cocaine in Cartagena with the approval of the agents, who intended to track the drugs to their destination. Santos kept the drugs hidden during the voyage and, on arriving in Ponce, conferred immediately with the agents. Shortly thereafter, Santos under surveillance by federal agents and cooperating local police, went to the Hotel Melia in Ponce and asked at the front desk for Mr. These last two steps complied with the instructions given to Santos in Catagena, by the dealer who had given him the cocaine, to deliver it to Palestino, at the Hotel Melia in Ponce. When the clerk called from the desk to the room registered to Palestino, the defendant Zavala appeared and gestured to Santos to follow him to room There Santos, who was carrying the cocaine in a bag, told Zavala that he had the drugs to be delivered to Palestino. Zavala said that he was a friend of Palestino and that Palestino would come to the hotel. Using a cellular telephone, Zavala then placed a call, purportedly to Palestino. Then at Santos' urging Zavala called a second time to ask Palestino to come quickly. Zavala asked Santos if they could put the cocaine in another hotel room, saying that he Zavala had other friends in the hotel, but Santos refused. As time passed and Palestino still did not arrive, Santos became increasingly anxious and he proposed to Zavala that they go out of the room for a soda. Zavala agreed, Santos placed the bag with the cocaine in a closet or dressing room in room , and the two men left room and entered the corridor. As they went down the stairs, the supervising customs agent detained them. When Santos explained that Palestino had still not arrived, Zavala was taken back to room in custody, accompanied by Santos and one or more agents. There were several more calls to the room purportedly from Palestino, two or three on the cellular telephone and one on the hotel telephone; in each case Santos told the caller that Zavala was out or otherwise occupied. Shortly after the final call, the operation came to an end. Law enforcement agents, it appears, had seen a car, with the driver using a cellular telephone, circling around the hotel. The driver then parked and went into the hotel. He proceeded with another individual to one of the hotel rooms and entered. When agents then knocked on the door of this room, the individuals inside exited through a window. This final episode was described in testimony at the trial. So far as we know, neither the driver nor the other man with him was charged. Possibly the police thought that the evidence was not quite strong enough to prove their participation in the drug deal. Zavala, however, was charged as previously described, and convicted on one count: possession with intent to distribute. Zavala's primary claim is that an acquittal should have been ordered on grounds of insufficient evidence to prove possession. We begin by noting that on this record Zavala was surely guilty of a closely-related offense, namely, conspiracy to possess drugs with intent to distribute them. An agreement with the absent Palestino is readily inferred from Zavala's statements and the telephone calls, and the object of the agreement--transferring a dealer-sized quantity of cocaine to Palestino--is no less apparent. A slightly more inventive offense would be a charge of aiding and abetting Palestino's attempt to possess with intent to distribute, under 18 U. See, e. Kottmyer, F. But Zavala was not charged with conspiracy, or with aiding and abetting an attempt, nor did a jury convict him of such crimes. The formalities of indictment and jury trial are prescribed by the Constitution. V, VI. Further, given that these offenses were not charged, it is hardly sufficient to say that this record contained evidence to support such a conviction for such an offense. We do not know what evidence the record might contain if the defendant had been given notice that he was charged with a quite different offense say, conspiracy instead of, or in addition to, the offense charged here, possession. Thus the conviction for possession can stand only if a reasonable jury could find that Zavala did possess the cocaine within the meaning of 21 U. If the statute used the term 'possess' as a lay juror might understand it prior to instructions from the judge, it might be a stretch to say that Zavala 'possessed' the cocaine in the bag. There is no evidence that he even touched the bag or saw the cocaine or that he was ever alone in the room with it or that he had a practical opportunity to remove it from the hotel. These facts explain why Zavala's main argument on appeal is that his relationship to the cocaine cannot be deemed 'possession. The difficulty with the argument is that the concept of possession in the drug statute comes freighted with a history of interpretation. Congress was here concerned not with 'possession' in a narrowly focused situation e. There is every reason to think that Congress wished to cast its net widely so that, assuming mens rea, a defendant proximately associated with the drugs would be reached by the statute. The prevailing interpretation of 'possession,' in the framework of the drug statutes, reflects that broad reach. Under settled law, 'possession' includes not merely the state of immediate, hands-on physical possession but also 'constructive' possession, including possession through another, and joint as well as exclusive possession. Further these concepts can be combined so that, for example, 'joint constructive possession' is quite as bad as having the drugs exclusively in one's own pocket. Batista-Polanco, F. These concepts of constructive and joint possession are almost uniformly reflected in both decisions 2 and in standard instructions. Acevedo, supra, F. The 'constructive possession' label may confuse jurors at first--drug trial juries routinely ask to be reinstructed on the definition of possession--but the underlying idea is important and not so difficult to grasp. Courts are saying that one can possess an object while it is hidden at home in a bureau drawer, or while held by an agent, or even while it is secured in a safe deposit box at the bank and can be retrieved only when a bank official opens the vault. The problem is not so much with the idea as with deciding how far it should be carried. Here, we think is at least arguable that Zavala was not shown to possess the drugs while he and Santos were in the room together. Santos apparently had exclusive control of the bag during this period. It contained drugs for which he had not been paid; Zavala was not the named person to whom it was to be delivered; and Santos refused Zavala's suggestion that the bag be entrusted to Zavala's friends in another room. If the agents had broken into the room and arrested Zavala at this point, a directed verdict of acquittal might have been required. But once both parties departed from the room leaving the drugs inside, the situation altered. It is not that Zavala got closer to the drugs--indeed, he moved further away from them--but rather that two other circumstances changed: first, Santos surrendered his actual possession of them; and second, with the acquiescence of both parties, the drugs were secured in Zavala's room. In the context of this case, we think that a jury could then find both requisites of constructive possession: that Zavala had sufficient power to control the drugs and an intention to exercise that power. Turning first to the power to exercise control, we begin with the fact that the drugs were left in Zavala's room with his knowledge and consent while Zavala was awaiting the arrival of an accomplice to pay for them. It is fair to describe the location as Zavala's hotel room because he was effectively in occupation and the jury could reasonably infer that he could return there at will. The evidence showed that the room, although registered in Palestino's name, had been lent to two occupants. It was Zavala who emerged when Santos arrived at the hotel and the room was called; and it was Zavala who took Santos to the room to await 'his friend' Palestino. The location of drugs or firearms in a defendant's home or car is a common basis for attributing possession to the defendant. Garcia, F. The cases do not say that possession is automatic but rather that the location of the object in a domain specially accessible to the defendant can at least where knowledge is admitted or inferred be enough to permit the jury to find possession. Admittedly, Zavala's power to control in this case was diluted because Santos had not yet been paid and might well have resisted any attempt by Zavala to return to the room and carry away the drugs. But by the same token a jury could infer that drugs now stored in Zavala's hotel room, awaiting transfer to Zavala's accomplice, were at least as much within Zavala's power to control as within Santos' power. If each had an effective veto over the other, it would still be joint possession. Two drug dealers with cocaine in the back seat of their car might both possess it even though neither would let the other out of sight. Wight, supra, F. The issue of intention is quite as important as the issue of power. Someone might have effective power over drugs simply because they were located within reach while their true owner was temporarily absent; but if such a person had power over the drugs say, as a temporary visitor to the room in which they were located but had no intention to exercise that power, there might still be no crime. Here, Zavala's connection with the drugs stored in his hotel room was not at all innocent: the drugs were stored there for the purpose so far as Zavala knew and intended of facilitating their transfer to his accomplice, Palestino. In many cases, intention and knowledge are inferred solely from the location of the drugs in an area to which the defendant has a priority of access. Here, Zavala's state of mind is established by independent evidence: his statements that Palestino would be there soon, his suggestion that the drugs be stored temporarily in another room, apparently with his confederates; and by the cellular telephone calls by Zavala and to him seemingly from Palestino. No reasonable jury could have had any doubt that Zavala was there to assist in the transmission of the drugs lodged in his room. Assuming Zavala's guilty mind, it might still be argued that his precise intention was to aid in the storage and transfer of the drugs but not to 'control' the drugs. We think this is too fine a distinction. Defendant's intention to have the drugs stored in his room, incident to their intended transfer to a confederate, seems to us an intention intimately related to his power to control the drugs. If a jury finds this to be constructive possession, we do not think that it has stretched the concept too far or betrayed the intention of Congress. Finally, it is beside the point that Zavala's 'possession' in the hallway was extremely brief and that Zavala probably could not have escaped with the drugs because of the police surveillance. That the police are present and ready to frustrate distribution does not make possession of drugs any less a crime, and a minute of possession is as much an offense as a year of possession. See Santiago v. United States, F. If Palestino himself had arrived and Santos had handed him the bag, he would be guilty of possession even if the police had burst into the room sixty seconds later. The completion of the crime does not require that the defendant have a sporting chance. We turn to Zavala's other main claim of error on this appeal. Zavala contends that the prosecutor so often interrupted the defense summation with objections as to constitute misconduct and to prevent the jury from hearing the defense's closing argument. We have reviewed the complete transcript of defense counsel's summation and conclude that misconduct did not occur nor was the defense summation seriously impaired. It is quite true that the prosecutor's objections were numerous. Zavala's brief claims that 20 objections were made in an argument that covered 37 transcript pages. The government's brief may also miss the mark by arguing that the claim now made was waived because not argued to the district court: defense counsel did state, after a number of objections from the prosecutor, 'I have an objection to the continuous interruptions. But if the objection was preserved, it was also largely answered by the trial judge's rejoinder to defense counsel: 'Well, then you behave better. Stick to the facts before the Court and before the jury and you won't have any interruptions. Unless the trial judge was mistaken in his rulings, defense counsel himself provoked many of the interruptions. We have looked at both the rulings and the objections. The former were generally well within the district court's discretion, and most of the latter were at least arguable. For example, speaking of Santos, Zavala's counsel said to the jury: 'Remember that \[the confidential informant\] is the person that traditionally he's a distrusted individual because he can work always as a double agent. Going outside the record 'traditionally not to be trusted. What inferences can arguably be drawn from specific evidence is often a matter of degree and of judgment. Trial judges themselves differ in their approaches, and 'how far you can go' with a particular judge is the kind of lore that counsel collect and pass on to each other. Here the prosecutor operated on a hair trigger, and the trial judge was reasonably strict in governing the closing argument. But the fact is that there was no evidence as to the general character of confidential informants, nor any evidence to suggest that Santos was dishonest or a double agent. Without recounting each objection, we think that the prosecutor was right or arguably right often enough to foreclose any suggestion that her aim was to impede the defense; put differently, the defense summation provided some basis for legitimate complaint. The trial judge's rulings, some of which favored the defendant, appear eminently reasonable. Finally, based on a reading of the entire defense summation, it seems to us that--despite some interruptions--the essence of counsel's argument for acquittal was thoroughly conveyed to the jury. I believe the court errs by expanding the definition of 'constructive possession' beyond what is supported by the relevant caselaw, stretching the statutory reach of 'possession' under 21 U. My colleagues concede that it is at least arguable that Zavala was not shown to possess the drugs while he and Santos were in the room together; and that had the agents broken into the room and arrested Zavala at this point, a directed verdict of acquittal might have been required. They contend, however, that once Zavala, on Santos' suggestion, locked the drugs in his hotel room while the two men went to get a drink, Zavala 'possessed' the drugs, by virtue of the facts that he had yielded actual possession of the drugs, and that he had priority of access to the room in which they were stored. The court reaches this conclusion by relying on an interpretation of 'constructive possession' which I cannot help thinking is both incorrect and overbroad. See United States v. Acevedo, F. The court, in turn, defines 'power' in physical terms: in its view, the requisite 'power' exists if the contraband is in a location specially accessible to a defendant, such as in one's home, hotel room, or car, or located within his or her reach. I am persuaded that this reliance on physical power of access understates the law's requirements. Although, as the court points out, a lay person's understanding of 'possession' is not helpful, I cannot so easily sidestep our and other courts' use of the word 'dominion,' which connotes ownership or a right to property. Black's Law Dictionary 6th ed. More importantly, in this and other circuits, the caselaw supports a reading of 'power' as the right or authority to exercise control, or dominion and control, over something not in one's actual possession. Ocampo-Guarin, F. Latham, F. Lamare, F. Manzella, F. Mere association with those who possess the drugs is not good enough. Tolliver, F. Reese, F. For example, in Ocampo-Guarin, we found sufficient evidence of 'power' to establish constructive possession of a suitcase and the cocaine inside it, where the defendant carried baggage claim tickets 'which represented her legal right to reclaim the luggage. Similarly, in United States v. Lamare, we upheld a finding of constructive possession of a firearm that had been left as collateral for a towing charge owed by the defendant, because the defendant 'could have taken actual possession of the pistol at any time by paying the towing charge The fact that contraband is located in a place specially accessible to a defendant may be sufficient to establish a defendant's power to exercise dominion or control over it, and thus support a finding of constructive possession, if there is a showing that the defendant has the right or authority to exercise control over the object at issue, or if the record is silent as to his right or authority over the contraband. But here the very facts militating against a finding of constructive possession while Santos and Zavala were in the room together--the fact that the drugs had not been paid for, the fact that Zavala was not the intended recipient, and Santos' refusal to follow Zavala's suggestion to transfer them to another room--effectively refute any presumption that Zavala had any claim on the drugs. None of the cases cited by the majority support the conclusion that, where knowledge is admitted or inferred, the location of contraband in a place specially accessible to a defendant, without more, is sufficient to establish constructive possession. For example, in United States v. Echeverri, F. And in United States v. Chapdelaine, F. In United States v. Wight, F. We upheld the finding of Wight's constructive possession of the firearm, noting that based on evidence of Wight's leading role in the drug transaction, '\[i\]t was reasonable for the jury to infer that he, and not \[the driver\], was in charge of the operation and, as such, exercised control over \[the driver\], the van, its contents, and the firearm. I find more apposite the Seventh Circuit's decision in United States v. DiNovo, F. In DiNovo, the court reversed a wife's conviction for possession of heroin, notwithstanding her cohabitation with her husband in a trailer where 2 pounds of heroin and other drug paraphernalia were found. The court found that even if the wife knew of her husband's drug possession, this did not mean that she possessed the drugs, absent a showing of her right to exercise control over them. To the extent that the court jettisons all idea of legal right or practical claim to the contraband and assesses 'power' in terms of physical capacity to seize, it vastly widens the concept of constructive possession. Contraband stored in the locked box of a another person could be found within the power of a defendant skilled in the use of lock picking or explosives. Or, in a case like Wight, the finding as to constructive possession would turn on whether the driver was bigger and tougher than the passenger. The same weakness affects the court's reasoning as to the presence of intent to exercise dominion over the drugs. The particular intent is not, as the court would have it, to facilitate transfer of the drugs to their intended recipient, his presumed associate Palestino. The required intent is that defendant intends to exercise his claim of dominion over the drugs, i. So the court, in my view, stretches the contours of both 'power' and 'intent. Finally, we should remember why we are of divided views about the propriety of extending the scope of constructive possession beyond that of any apposite authority. It is because, as the court correctly notes, Zavala could have been charged with conspiracy to possess drugs with intent to distribute them, or with aiding and abetting Palestino's attempt to possess with intent to distribute. But Zavala was not so charged; and the mere fact that guilt is in the air should not allow us to extend the reach of the criminal possession statute in these circumstances. There needs to be some meaningful distinction between the crime of conspiracy to possess, and possession itself. The rule of the present case, allowing the government to prove constructive possession simply by having a confidential informant deposit contraband in a hotel room shared with a target, and then leave the room with this person, with the arresting officers waiting until the door shuts, would erode any such distinction. I am uncomfortable in taking this significant step--particularly where the purpose served is to bail out a maladroit prosecution. I therefore respectfully dissent. The petition for rehearing is denied. Judge Coffin would grant rehearing. A majority of the judges entitled to vote on the suggestion for rehearing en banc not having voted in favor of rehearing en banc, the suggestion for rehearing en banc is denied. Judges Selya and Cyr favor rehearing en banc in this case. The jury acquitted Zavala of two other charges--importing cocaine into the United States, 21 U. Akinola, F. Vargas, F. Devitt, C. Blackmar, K. Sand, J. Siffert, W. Loughlin, S. Reiss, 2 Modern Federal Jury Instructions same. If knowledge of the existence of an illegal substance can be reasonably inferred, a person can be held to constructively possess a substance that is in his room. As part of a sting operation conducted by federal agents, a seaman named Santos took drugs that the agents were tracking into a Puerto Rico hotel. He asked for Palestino, whom the agents suspected of dealing in the drugs. When the hotel clerk called Palestino's room, Maldonado came to the lobby and took Santos to the room. After Maldonado told Santos that he would have Palestino come to the hotel, Santos put the bag in the closet of the hotel room. When Maldonaldo and Santos left the hotel room together, they were arrested in the corridor by a federal agent. Maldonado was convicted for possession of cocaine with intent to distribute. He argued that possession could not be shown. Constructive possession may be found when a defendant has dominion and control over an object, even if it is not in his actual possession. Maldonado was not in control of the cocaine while he was in the hotel room with Santos, but this changed when they left the room because Santos had surrendered possession of the drugs, and Maldonado has stored them in his room. This would allow a jury to reasonably conclude that Maldonado could exercise the power to control the drugs and had the intent to control them, since he was planning to transfer them to Palestino. Possession can be found if an illegal substance is in a defendant's home or car, even if the defendant is not there and even if the home or car is shared by others. However, it is not automatically found but merely inferred or not based on the circumstances. Disclaimer: Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. Justia makes no guarantees or warranties that the annotations are accurate or reflect the current state of law, and no annotation is intended to be, nor should it be construed as, legal advice. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship. Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes. Maldonado United States v. Maldonado, 23 F. Opinion Annotation. Decided April 22, Primary Holding If knowledge of the existence of an illegal substance can be reasonably inferred, a person can be held to constructively possess a substance that is in his room. Facts As part of a sting operation conducted by federal agents, a seaman named Santos took drugs that the agents were tracking into a Puerto Rico hotel. Opinions Majority Boudin Author Constructive possession may be found when a defendant has dominion and control over an object, even if it is not in his actual possession. Case Commentary Possession can be found if an illegal substance is in a defendant's home or car, even if the defendant is not there and even if the home or car is shared by others. Enter Your Email. Justia Legal Resources. Find a Lawyer. Law Schools. US Federal Law. US State Law. Other Databases. Marketing Solutions.

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