184 F.3d 114 (2nd Cir. 1995)
UNITED STATES OF AMERICA, Appellee,v.JOSE MUNIZ, Defendant-Appellant.
No. 1163Docket 94-1470
UNITED STATES COURT OF APPEALSSECOND CIRCUIT,
Argued: March 23, 1995.Decided: June 29, 1995.Amended: Dec. 6, 1995.On Reconsideration: Feb. 11, 1997.

COLLEEN, P. CASSIDY, New York, N.Y. (The Legal Aid   Society, Federal Defender Division Appeals Bureau, On the Brief),   Attorney for Defendant-Appellant.
JOHN M. McENANY, Assistant United States Attorney, New York, N.Y.,   (Mary Jo White, United States Attorney for the Southern District   of New York, New York, N.Y., On the Brief; Alexandra Rebay,   Assistant United States Attorney, New York, N.Y., Of Counsel),   Attorneys for Appellee.
Before: Lumbard, Kearse, and Leval, Circuit Judges.
LUMBARD, Circuit Judge, dissents in a separate opinion.
LEVAL, Circuit Judge.


1
Jose Muniz was convicted on his plea of guilty to Count I of the   indictment, a gun possession charge, and upon a jury's verdict   after trial on Count II, a narcotics charge. He was sentenced to   192 months imprisonment and five years supervised release on each   of the two counts concurrently, plus a special assessment of $ 50   for each count. His appeal was argued on March 23, 1995. Muniz   contended that the evidence was insufficient as a matter of law to   support his conviction on the narcotics charge; he also appealed   his sentence on the firearms charge.


2
Upon argument of the appeal, both sides represented to the court   that Muniz had failed to move for judgment of acquittal of the   narcotics charge based on the insufficiency of the evidence under   Rule 29, Fed. R. Crim. P. The majority voted to affirm the   conviction. We held that the plain error standard applied by   reason of Muniz's failure to move under Rule 29 and that the   evidence, even if insufficient to meet the reasonable doubt   standard, was not so insufficient as to constitute plain error.   United States v. Muniz, 60 F.3d 65 (1995).


3
In dissent, Judge Kearse contended that, where the error is the   failure  to meet the reasonable doubt standard, any   shortfall, great or small, requires reversal of the conviction,   regardless whether objection was noted at trial.


4
The Court voted to rehear in banc to decide whether, where the   issue of the sufficiency of the evidence is raised for the first   time on appeal, and the evidence is insufficient to support a   guilty verdict under the "beyond a reasonable doubt" standard but   is close to sufficient, a conviction may be affirmed on the ground   that the insufficiency was not "plain" within the meaning of Rule   52(b), Fed. R. Crim. P.


5
Two days before oral argument, the government moved to vacate the   in banc rehearing and remand to the panel, based on the discovery   of a previously untranscribed portion of the trial minutes. The   newly found transcript revealed that defense counsel had in fact   moved during trial for a judgment of acquittal under Rule 29.   Declaring that the issue on which rehearing had been granted was   now moot, the in banc court dissolved and returned the appeal to   the panel for further consideration.


6
Because Muniz moved for a judgment of acquittal, we are all in   agreement that the standard of review on appeal is whether, viewed   in the  light most favorable to the government, the evidence   was sufficient to permit a "rational trier of fact [to find] the   essential elements of the crime beyond a reasonable doubt." United   States v. Amato, 15 F.3d 230, 235 (2d Cir. 1994) (quoting Jackson   v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d   560 (1979)). Because we find the evidence insufficient to meet   that standard, we reverse the conviction on the narcotics charge   and direct the entry of a verdict of acquittal. We need not decide   whether the standard would be the same or different for an   unpreserved error. Our prior affirmance of Muniz's sentence on the   firearms charge is not affected by this ruling. Because Muniz   received identical and concurrent sentences on the two counts of   conviction, except for the incremental assessment of $ 50 per   count, our ruling will not affect Muniz's sentence except by   eliminating the $ 50 special assessment for the narcotics count.

LUMBARD, Circuit Judge, dissenting:

7
When viewed in the light most favorable to the government I   believe there existed sufficient evidence for the jury to have   returned its verdict of guilty. I therefore respectfully dissent.


8
Possession with intent to distribute is established through "proof   of the defendant's actual or constructive possession of the   [controlled substances]." United States v. Gordils, 982 F.2d 64,   71 (2d Cir. 1992). "To prove that a defendant constructively   possessed narcotics, the government must establish that the   defendant knowingly had the power and intention at a given time to   exercise dominion and control over [the drugs]." United States v.   Martinez, 44 F.3d 148, 154 (2d Cir. 1995)(internal quotations   omitted). Thus, the government must present "indicia of dominion   or control," id., which can include any relevant evidence   connecting the individual to the particular site or contraband.   See id. (indicating valid "indicia" might include keys to an   apartment or car, addressed documents such as bills or check   stubs, or eyewitnesses who link a defendant to a particular   residence); see also United States v. Rios, 856 F.2d 493, 496 (2d   Cir. 1988)(proximity of defendant to controlled substances at time   of arrest deemed persuasive indicia).


9
In the instant case, the evidence presented by the government is   slender but sufficient. Because the evidence presented to the    jury was described in detail in the original opinion, see   United States v. Muniz, 60 F.3d 65, 67-68 (2d Cir. 1995), I shall   briefly highlight only the most salient facts.


10
First of all, the jury acted reasonably in finding that Muniz   resided at apartment 6C. Although Muniz' mother was the sole   person listed as a tenant of the apartment, Muniz was found alone   in the apartment on the day of the search, lying in bed in one of   the apartment's two bedrooms. He was wearing a cast on his leg,   and required crutches to move about. A key to the front door of   the apartment was found on the bedside table. In addition, Muniz   had been seen by the police at the apartment building several   times before the search of the apartment, each time wearing a cast   and carrying crutches. A reasonable inference for the jury to draw   in light of this evidence is that Muniz had come to his mother's   apartment to recuperate from an injury and planned to stay until   he regained physical capacity, thereby establishing a temporary   residence. It is also reasonable for the jury to infer that the   heroin was intended for someone residing in the apartment, either   Muniz or his mother. Although the piece of mail in the mailbox    addressed to Wilfredo Kirkaldy might suggest that this   Kirkaldy occupied the apartment or otherwise had access to the   mailbox, a reasonable inference is that Kirkaldy was a prior   tenant or that the mail was misdelivered.


11
Second, empty glassine envelopes were found inside the bedroom in   which Muniz was staying. These envelopes were similar to the   envelopes found in the mailbox except for the fact that they were   stamped with the word "Sledgehammer," not "Flatliner" or   "Monster." It therefore was reasonable for the jury to connect   Muniz, the occupant of the room and presumably the owner of the   empty envelopes, to the heroin found in the mailbox.


12
As it is well established that evidence must be found sufficient   if, "viewing the evidence in a light most favorable to the   government and drawing all reasonable inferences in its favor, any   rational trier of fact could have found the essential elements of   the crime beyond a reasonable doubt," Gordils, 982 F.2d at 70   (quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979)(emphasis in original)), I must dissent from   the majority's reversal of the defendant's conviction.

