                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-2361

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                RAFAEL ANGEL ZAVALA MALDONADO,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jaime Pieras, Jr., U.S. District Judge]
                                                    

                                         

                            Before

                  Torruella, Circuit Judge,
                                          

                Coffin, Senior Circuit Judge,
                                            

                  and Boudin, Circuit Judge.
                                           

                                         

Luis Rafael Rivera for appellant.
                  
Jeanette Mercado Rios, Assistant United  States Attorney, Criminal
                     
Division, with whom Guillermo Gil, United States Attorney, and Jose A.
                                                                  
Quiles-Espinosa,  Senior Litigation  Counsel,  were on  brief for  the
           
United States.

                                         

                        April 22, 1994
                                         

     BOUDIN,  Circuit  Judge.    On  July  2,  1992,  a  jury
                            

convicted   Rafael  Angel  Zavala   Maldonado  ("Zavala")  of

possession of cocaine with intent to distribute, in violation

of 21 U.S.C.    841(a)(1).1   On appeal,  Zavala argues  that

the evidence  was insufficient to support  the conviction and

that  defense  counsel's   closing  argument  was  improperly

hampered by objections  from the prosecutor.  For the reasons

set forth, we affirm.

                              I.

     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, 947 F.2d 520, 522-23 (1st Cir. 1991).
                      

In January  1992, Ruben  de los  Santos ("Santos"),  a seaman

serving on board  the M/V Euro  Colombia, was in the  port of

Cartagena,  Colombia.    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

                    

     1The  jury  acquitted  Zavala  of  two  other  charges--
importing cocaine into  the United States,  21 U.S.C.    952,
and using a telephone to commit or facilitate  the possession
offense,  21 U.S.C.     843(b)--and these  counts require  no
further discussion.

                             -2-

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. Palestino.

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 302.  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,

                             -3-

Santos  placed  the  bag with  the  cocaine  in  a closet  or

dressing room  in room 302, and the two men left room 302 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 302 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.

After  a chase they  were caught, and  a search of  their car

yielded a loaded nine millimeter pistol and $6,305 in cash.

     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

                             -4-

as  previously  described,   and  convicted  on  one   count:

possession with intent to distribute.

                             II.

     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.

21  U.S.C.     841,  846.    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.S.C.     2,

841.  See, e.g., United States v. Kottmyer, 961 F.2d 569 (6th
                                          

Cir. 1992).

     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.   U.S. Const., Amends. 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

                             -5-

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.S.C.    841.    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.g.,  actual
                                                    

possession of a weapon on an aircraft) but with possession of

drugs incident to their distribution.   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

                             -6-

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.   E.g.,  United States  v.
                                                         

Batista-Polanco, 927 F.2d 14,  18-19 (1st Cir. 1991).   These
               

concepts  of  constructive and  joint  possession are  almost

uniformly  reflected  in  both  decisions2  and  in  standard

instructions.3 

     "Constructive" possession  is  commonly defined  as  the

power  and intention  to  exercise control,  or dominion  and

control,  over an  object not  in one's  "actual" possession.

E.g., United States v. Acevedo, supra, 842  F.2d at 507.  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

                    

     2See,  e.g., United  States v.  Akinola, 985  F.2d 1105,
                                            
1109  (1st Cir. 1993); United States v. Vargas, 945 F.2d 426,
                                              
428  (1st Cir. 1991); United States v. Acevedo, 842 F.2d 502,
                                              
507 (1st Cir. 1985).

     3E.  Devitt, C.  Blackmar, K.  O'Malley, 2  Federal Jury
                                                             
Practice and  Instructions, Criminal    54.08, at  906 (1990)
                                    
(collecting  cases); L.  Sand,  J. Siffert,  W. Loughlin,  S.
Reiss, 2 Modern Federal Jury Instructions 56-9 (1992) (same).
                                         

                             -7-

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

                             -8-

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.4  This  is so  even if  the residence  or room  is

shared  by others.  E.g.,  United States v.  Garcia, 983 F.2d
                                                   

1160,  1164  (1st Cir.  1993).   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

                    

     4See, e.g., United States v. Wight,  986 F.2d 1393, 1398
                                       
(1st Cir.  1992); United States  v. Echeverri, 982  F.2d 675,
                                             
678 (1st Cir.  1993); United States v. Chapdelaine,  989 F.2d
                                                  
28, 34 (1st Cir. 1993), cert. denied, 114 S. Ct. 696 (1994).
                                    

                             -9-

(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.   Cf. United  States v.  Wight,
                                                            

supra, 968 F.2d at 1398 (weapon in car given to one defendant
     

"possessed" by the other where in reach of both).  

     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

                             -10-

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

                             -11-

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,  889 F.2d  371, 376  (1st Cir.  1989).   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. 

                             III.

     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

                             -12-

objections from the prosecutor,  "I have an objection  to the

continuous  interruptions."   This is  the same  argument now

renewed on appeal.

     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."   The  fact is  that most  of the  objections

ruled on by the judge  were sustained on the ground that  the

defense  counsel  was  arguing  facts  outside  the   record,

misstating evidence, or misstating the law.  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."    Many

prosecutors would have let this pass; but here the prosecutor

objected ("Objection,  your Honor.  Going  outside the record

"traditionally not to be  trusted."), and the judge sustained

her  objection on  the ground  that it  was not  a reasonable

inference from the evidence.

                             -13-

     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.

     Affirmed.
             

                         Dissent follows.

                             -14-

     COFFIN, Senior Circuit Judge (dissenting).  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.S.C.   841(a)(1) dangerously and unnecessarily far.

     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.  "Constructive

possession," as the majority  properly states, is established

by  showing  that  a  person  knowingly  had  the  power  and
                                                        

intention at a  given time to  exercise dominion and  control
         

over  an object,  either  directly or  through  others.   See
                                                             

United States v. Acevedo,  842 F.2d 502, 507 (1st  Cir. 1988)
                        

(emphasis added).   The  court, in  turn, defines "power"  in

physical terms: in its view, the requisite  "power" exists if

                             -15-

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 486
                                                         

(6th ed. 1990).

     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.  See United States
                                                             

v. Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992); United
                                                             

States v. Latham, 874  F.2d 852, 861 (1st Cir.  1989); United
                                                             

States v. Lamare, 711  F.2d 3, 5-6 (1st Cir. 1983);  see also
                                                             

United States v. Manzella,  791 F.2d 1263, 1266-67 (7th  Cir.
                         

1986) (Posner, J.) (defendant  "must have the right  (not the

legal  right, but  the recognized  authority in  his criminal

milieu) to possess [the drugs] . . . .  Mere association with

those  who possess  the drugs is  not good  enough."); United
                                                             

States  v. Tolliver,  780 F.2d  1177, 1183  (5th Cir.  1986),
                   

vacated and remanded on other grounds, 479 U.S.  1074 (1987);
                                     

United  States v.  Reese, 561  F.2d 894,  898 n.8  (D.C. Cir.
                        

1977).  

                             -16-

     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."  986 F.2d at 1410.  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 .  . . and

intended to do so."  711 F.2d at 5-6. 

     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.  

                             -17-

     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,  982 F.2d  675, 678  (1st Cir.  1993), it  was the
         

"totality of the  circumstances" -- the  fact that drugs  and

drug paraphernalia were found in  plain view, only four  feet

from the defendant himself,  together with the fact that  the

contraband was found in  his apartment -- that  persuaded the

court that the  evidence was sufficient to support  a finding

of  constructive  possession.     And  in  United  States  v.
                                                         

Chapdelaine,  989 F.2d  28, 33-4 (1st  Cir. 1993),  the court
           

found defendant  in constructive possession of  bullets found

in his  bedroom closet based, in part,  on the fact that they

matched  those  in  a  firearm found  in  defendant's  actual

possession.

       In United  States v. Wight,  968 F.2d 1393,  1397 (1st
                                 

Cir.  1992),  the  single case  cited  by  the majority  that

approaches the  situation before us, a  jury convicted Wight,

the  passenger in a van  in which a  pistol was found between

the  driver's and  the  passenger's seat,  of possessing  the

pistol during  the drug trafficking crime,  but acquitted the

driver  of the  firearm  possession charge.    We upheld  the

finding  of Wight's  constructive possession of  the firearm,

noting  that based on evidence of Wight's leading role in the

                             -18-

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."  Id. at 1398.  
                                    

     I find  more apposite the Seventh  Circuit's decision in

United States v.  DiNovo, 523 F.2d 197  (7th Cir. 1975).   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.  Id.  at 201-02.   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.  Id. 
                                                        

     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,

                             -19-

his  presumed associate  Palestino.   The required  intent is

that defendant intends to exercise his claim of dominion over

the drugs, i.e., to take control  for himself.  So the court,

inmy view, stretches thecontours 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.

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