UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Rehearing Denied September 19, 1977.
Appeal from the United States District Court for the District of Columbia (D.C. Criminal 75-651).
Bazelon, Chief Judge, and McGowan and MacKinnon, Circuit Judges. Opinion for the court filed by Circuit Judge MacKinnon. Opinion filed by Chief Judge Bazelon, concurring in the result.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON
MacKINNON, Circuit Judge:
Appellant, Jason R. Herron, was found guilty of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (1970); possession of marijuana in violation of D.C. Code § 33-402 (1973); and possession of phencyclidine in violation of D.C. Code § 33-702 (1973). His appeal raises four issues. We affirm the judgment of conviction on all counts. I
Agents of the Drug Enforcement Administration , conducting a surveillance of apartment 203, 3410 A Street, S.E., in the District of Columbia (Tr. 81, 85-86), observed appellant and one Theodore Watson in and around the building engaged in various activities. Each of the men was seen driving a car registered to the other, and Herron was observed going into and out of the building (Tr. 82-83, 86-91; Supp. Tr. 4, 6). *fn1 During this period Ethel Vanessa Smith also purchased narcotics in that apartment, and the DEA agents obtained a warrant to conduct a search of the premises.
At about 7:30 P.M. on March 12, 1974, as the DEA agents were approaching apartment 203 to execute the search warrant, two women knocked on the door. As the door began to open from the inside the agents started quickly towards it. Upon noticing the approach of the agents, one of the women yelled "Jason," and the door was then slammed shut from the inside (Tr. 7-8, 31-32). The women ran and escaped. The agents announced their intention to execute the search warrant, but there was no response from inside the apartment. When the agents broke down the door and entered, they found Herron alone in the apartment standing in the doorway to the kitchen, holding a German shepherd dog on a leash (Tr. 9-10, 16-17, 51, 83-84).
The agents also found, on top of a table in neat rows, thirteen tinfoil packets of heroin and $150 to $200 in cash (Tr. 13-15, 36, 52-53, 57). A more complete search of the apartment revealed a total of 53.5 grams of heroin of purity varying from 5 to 12% (Tr. 3-5, 34, 40-41, 60-62, 117-18) with a street value of approximately $38,000. In the bedroom they found more than $16,000 in cash beneath a dresser, and in the kitchen a vial containing marijuana on top of the refrigerator. They also discovered various paraphernalia commonly used in the cutting or diluting of heroin down to street level strength, including bottles of lactose, a tray, strainers, measuring spoons, and pieces of tinfoil, some of which bore traces of heroin (Tr. 14, 17-20, 22, 63-65).
When one of the agents stated that he intended to search a locked bedroom closet, appellant Herron responded "I have a key, I don't want you breaking up my stuff," and unlocked the door (Tr. 85, emphasis added). As agents searched another closet in the living-dining area, appellant said, "don't wrinkle my clothes" (Supp. Tr. 3-4, 9). When an agent asked Herron what he was doing at the apartment he replied that "he lived there" (Tr. 85). It was stipulated that the drugs recovered were heroin, marijuana and phencyclidine, and that papers recovered in the apartment bore the names of both Herron and Theodore Watson. These papers included a receipt for clothing in the name of Herron and Watson, a rent receipt in Watson's name, and two telephone bills in Watson's name.
For the defense, Regina Howard testified that she went to apartment 203 on March 12, 1975, to visit a friend, Caroline Rice, who lived there with her husband Larry (Tr. 130-31, 134). She also testified that Caroline Rice had stayed, and still stays at times, at her mother's apartment on Ridge Road in Southeast Washington (Tr. 136). Caroline Rice testified that she and her husband had rented the apartment from Theodore Watson and lived in it with their child from November, 1974, to April, 1975 (Tr. 138). In other words, Caroline Rice testified that she and her family were living in the apartment at the times material to the charges against Herron.
The DEA agents had previously testified that on the day of the raid they observed only men's clothing in the apartment, no women's or children's clothing (Tr. 43, 67, 95). On cross-examination Caroline Rice admitted that she did not return to the apartment until three days after the search and testified further that in the interim she and her husband had lived at her mother's house, where they stayed quite often (Tr. 142-43).
Appellant testified in his own behalf that on the evening of March 12, he went to apartment 203 to visit his friend Larry Rice (Tr. 157). When he arrived Rice was preparing to leave to pick up his wife and he asked Herron to stay, saying that he would soon return (Tr. 159). Appellant also testified that he had known Theodore Watson since high school and had once been in that apartment with Watson but he had never seen any of the drugs introduced at trial (Tr. 163-67). He specifically denied living in apartment 203 and also denied having seen or sold narcotics to Ethel Vanessa Smith at that apartment (Tr. 180, 191).
In rebuttal the Government offered the testimony of Ethel Vanessa Smith, who testified pursuant to an agreement with the Government to drop the charges against her in return for her testimony (Supp. Tr. 15-16). She testified she was introduced to Herron by Caroline Rice who took her and a man named Trapp to buy some heroin from Herron in apartment 203. Trapp gave Mrs. Rice $125 for a spoon of heroin and Mrs. Rice and Miss Smith then went to the apartment where Miss Smith gave appellant Herron the $125 and received from him in return a package of heroin. At the time Herron was dressed only in a robe and slippers and was there alone except for a German shepherd dog (Supp. Tr. 17-18). Herron gave her the heroin from a pile of aluminum foil packages which were in view on the table in the dining room (Supp. Tr. 18).
Miss Smith returned approximately three times after the first purchase and on each occasion she purchased a $25 bag of heroin from appellant (Supp. Tr. 18-19). Miss Smith further testified that only Theodore Watson and Herron were living in the apartment, and that when she and Mrs. Rice had first gone to the apartment, Mrs. Rice was not living at the apartment but "off Ridge Road, Southeast," where she and Trapp and a man named Gerald Brown picked up Mrs. Rice on their way to appellant's apartment (Supp. Tr. 19-20).
Appellant's claim that the Rices lived in the apartment was further refuted by Miss Smith's testimony about a conversation she heard while riding to the office of Watson's lawyer, in a car with Herron, Rice and Watson. She testified that the three talked about Rice being paid for "taking the charge" for Watson (Supp. Tr. 20-21, 25), and that Watson told Rice what to say when he got down to the lawyer's office (Supp. Tr. 20-21). Later in April Miss Smith was present at another conversation between Watson and Rice in which Watson told Rice he would pay him to move into apartment 203 along with his wife (Supp. Tr. 25-28). Herron was not present during this second conversation and it was admitted into evidence only for its bearing on the credibility of Caroline Rice (Supp. Tr. 26-27). On cross examination Miss Smith stated that she had purchased narcotics from Watson several times at the same apartment, and once from Herron (Supp. Tr. 35-37). One of the DEA agents also testified that during the search they had found on the floor a.38 caliber revolver loaded with five live rounds of ammunition (Tr. 213-16). II
Appellant contended at trial (Tr. 124-28), and here repeats the contention, that the evidence in the Government's case in chief did not sufficiently prove Herron's constructive possession of drugs and that, therefore, his motion for judgment of acquittal should have been granted.
The relevant evidence at that stage of the trial indicated that the apartment, if not soley Herron's, was at least as much his home as anyone else's. He was alone in the apartment at the time of the search, dressed in a robe and slippers. The women who knocked on the door called out Herron's first name in warning as the agents rushed the door. He had control of the dog. He claimed the clothing in two closets as his, and furnished the keys which he correctly said would open one of the closets. Herron stated that he lived in the apartment. The agents had seen appellant enter and leave the apartment several times in the short period they had it under surveillance and saw Herron driving Watson's cars and Watson driving Herron's cars. The acts of the women at the time the agents broke into the apartment indicate that they expected Herron to be behind the closed door, and this is probative of the regularity with which appellant occupied the place and his special relationship to the apartment and to its lessee, Watson. Such evidence was sufficient for the jury to conclude that Herron was not a temporary occupant of the apartment and that his special relationship to it was of a permanent character sufficient to indicate a possessive interest in its contents. Cf. United States v. Holland, 144 U.S.App.D.C. 225, 227, 445 F.2d 701, 703 (1971). Thirteen packets of heroin were in plain view on the kitchen table. The marijuana was out in the open on top of the refrigerator, and the other drugs were in areas to which he had access. The narcotics cutting paraphernalia found in the apartment and the large quantity of drugs found was supportive of an intent to distribute, as was the heroin that was packaged in a convenient manner as if for sale. See United States v. James, 161 U.S.App.D.C. 88, 112, 494 ...