                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-26-1996

United States v. Jenkins
Precedential or Non-Precedential:

Docket 95-1606




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                    UNITED 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 Pennsylvania
                (D.C. Crim. Action No. 94-cr-00385-2)


                       Argued:   March 11, 1996

      BEFORE:   STAPLETON, SCIRICA and COWEN, Circuit Judges

                    (Opinion Filed   July 26, l996)




                                                        Michael R. Stiles
                                                        United States Attorney
                                                        Walter S. Batty, Jr.
                                                        Assistant U.S. Attorney
                                                        William B. Carr, Jr.
(Argued)
                                                        Assistant U.S. Attorney
                                                        Office of the U.S.
Attorney
                                                        615 Chestnut Street
                                                        Philadelphia, PA 19106
                                                                 Attorneys for
Appellee

                                                        Robert Epstein (Argued)
                                                        Assistant Federal
Defender
                                                        Elaine DeMasse
                                                        Senior Appellate Counsel
                                                        Maureen Kearney Rowley
                                                        Chief Federal Defender
                                                        Defender Association of
Philadelphia
                                                        Federal Court Division
                                                  437 Chestnust Street,
Suite 800
                                                  Lafayette Building
                                                  Philadelphia, PA 19106
                                                           Attorneys for
Appellant



                       OPINION OF THE COURT




STAPLETON, Circuit Judge:


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

                                I.
         Around 1:30 a.m. on February 10, 1994, Philadelphia
police officers Michael Kopecki and James Santomieri responded to
a call that shots were being fired near an apartment building.
Entering the courtyard of the building, the officers 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, down a hallway,
and into apartment C-107. The front door opened into the living
room, and the officers found Sam Stallings and Jenkins seated on
a couch, both wearing only boxer shorts and a t-shirt. On the
coffee table before them were three bags of white powder
containing a total of 55.3 grams of cocaine and 42 grams of non-
cocaine white powder, two triple-beam scales, two loaded .38
caliber revolvers, small ziplock-style bags, clear plastic vials,
and numerous red caps. On the floor was a loaded sawed-off
shotgun.
         None of the cocaine powder had been put in the bags,
vials, or caps, and there was no evidence that either 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 cocaine were found
with any cocaine residue. No cocaine residue was found on
Stallings or Jenkins, including their hands, and no residue was
found on the scales. Nothing concerning Jenkins' clothing
suggested any connection to the drugs. Finally, he made no
attempt to hide or destroy the contraband, and fully cooperated
with the officers.
         Stallings and Jenkins were charged and tried together.
Count I of the indictment charged them with possession 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 drug 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 vials were
commonly used by drug traffickers in repackaging drugs for
resale. On cross-examination, Hershowitz acknowledged that
instruments necessary to cut and apportion the cocaine and insert
it into the various packages were not found in the apartment.
The manager of the apartment building, Barbara Edward, 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 counts. He made
a post-trial motion for judgment of acquittal or new trial.
Although recognizing that proximity to contraband or association
with someone in possession is by itself insufficient to find
constructive possession, the court denied the motion. It found
three factors from which a jury could infer dominion 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 that 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 sufficiency of the
evidence, we view the evidence in the light most favorable to the
government, and we will affirm the conviction if a rational trier
of fact could have found the defendant guilty beyond 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 possession of
the cocaine powder; consequently, the issue before us is whether
there was evidence sufficient to establish constructive
possession. Under our precedent, the evidence must show that
Jenkins had dominion and control over the drugs:
         [T]he government must submit sufficient
         evidence to support an inference that the
         individual "knowingly has both the power and
         the intention at a given time to exercise
         dominion or control over a thing, either
         directly or through another person or
         persons. Constructive possession necessarily
         requires both 'dominion and control' over an
         object and knowledge of that object's
         existence." United States v. Iafelice, 978
         F.2d 92, 96 (3d Cir. 1992) (citations
         omitted) . . . .

Brown, 3 F.3d at 680. The kind of evidence that can establish
dominion and control includes, for example, evidence that the
defendant attempted to hide or to destroy the contraband, seeUnited States
v. Davis, 461 F.2d 1026, 1034-36 (3d Cir. 1972), or
that the defendant lied to police about his identity 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 established,
however, by "mere proximity to the drug, or mere presence on the
property where it is located or mere association with 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 upon by the
court was insufficient to prove dominion and control over the
cocaine. Nothing but proximity links him to the drugs 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 the apartment,
and it is immaterial how long he had been or was going 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 him; if
anything, it was more likely that the two scales belonged to and
would be used by the two residents of the apartment.
         We agree with the defendant that the evidence is
insufficient to establish his possession of the cocaine. The
evidence does show that he is an acquaintance of Stallings and
Harrison and that he was found physically near drugs and drug
distribution paraphernalia, including two scales, but those are
insufficient facts from which to infer dominion and control over
the drugs.
         We find this case controlled by our decision in United
States v. Brown. The police, acting on a tip, searched Brown's
home for drugs. During the search, Ama Baltimore arrived at the
house, inserted a key into the lock, and was arrested as she
entered. While being arrested, she protested, "But you can't
arrest me because I am in my own house." In the upstairs sewing
room, the police found a pair of shorts and a switchblade, both
of which Baltimore admitted were hers. Substantial quantities of
heroin, cocaine powder, and crack cocaine were found in the
refrigerator in the kitchen, the kitchen closet, and one of the
upstairs bedrooms. Equipment and supplies to prepare, cook, cut
and distribute the drugs were also found in the bedroom. The
government contended that several facts were sufficient to
establish Baltimore's possession of the drugs: her possession of
a key to the house, her attempted entry, the presence of the
shorts and switchblade in the house, her statement, and the fact
that the house was a known "cut house," a place where large
quantities of drugs are cut and distributed.
         We overturned her conviction for insufficient evidence
of possession. The evidence showed that she had access to or
resided in the house and knew of the presence of the drugs, but
did not show she had dominion and control them. The key, her
attempted entry, and her statement merely showed that she had
some control over the house, not the drugs. See 3 F.3d at 682-
83. We further noted that her fingerprints were not found on the
drugs or drug paraphernalia, and there was no evidence that she
ever exerted any indirect control over them. See id. Evidence
in addition to knowledge of and access to the drugs was necessary
to prove possession. The fact that Brown's home was a "cut
house" did not suffice as additional evidence. Because Brown's
house was also a residence, the jury could not infer from the
fact that Brown's home was a "cut house," that beyond a
reasonable doubt, Baltimore was a participant in the drug
distribution operation. See id. at 683-84.
         The government stresses that in Brown we noted 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 contends that
this factor was highly relevant to our decision, but we disagree.
It is a serious misreading of that decision to conclude that the
degree of proximity of Baltimore or her clothing to the drugs was
a controlling factor. Although our decision does not 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 regularly would
have entered the kitchen and bedroom, the rooms in which the
drugs were found. Since we concluded that her residence in the
cut house was insufficient to prove dominion and control 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 drugs.
         Our decision in Brown is consistent with the
jurisprudence of other circuits. In United States v. Vasquez-
Chan, the Court of Appeals for the Ninth Circuit found evidence
of drug possession insufficient even though there was proof that
the defendant had access to and was in close proximity with large
quantities of drugs. Drug Enforcement Agency officers arranged
the purchase of a large amount of cocaine. They observed 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 Gaxiola-Castillo
(Gaxiola). Gaxiola waived her rights and told the officers that
she was a friend of the housekeeper and had been staying there a
few weeks with her infant child. In the bedroom where she had
been staying, the officers found 600 kilograms of cocaine in 55
gallon drums. On six of the drums, including the inside of the
lid of one drum, they found her fingerprints. She was convicted
of conspiracy to possess narcotics with intent to distribute.
         The Ninth Circuit overturned the conviction for lack of
evidence of possession. She claimed that she had come to visit
her friend, and she and her child had to sleep somewhere, and the
bedroom with the cocaine may have been the only place to stay.
Although the defendant had been caught in "extremely
incriminating circumstances" due to her proximity to the drugs,
her behavior "was perfectly consistent with that of an innocent
person having no stake or interest in the transactions." 978
F.2d at 551 (citations omitted). Proximity and knowledge of the
existence and location of the drugs were insufficient to prove
dominion and control. See id. The fingerprints by themselves
proved nothing but the fact that she had used the bedroom. 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 drugs under
very suspicious circumstances insufficient to support a finding
of possession. Acting on a tip that drugs were being sold from
Eric Dunlap's apartment, police officers secured a search
warrant. As they approached his door, Dunlap opened the door
from the inside. Standing behind Dunlap was Cornelius Coleman,
who had a handgun in his pocket. In the kitchen, the officers
found large amounts of cocaine power and cocaine base, 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 distribution
paraphernalia were found in the apartment. Coleman was convicted
of possession with intent to distribute cocaine.
         The Eighth Circuit overturned his conviction because
the evidence was not sufficient for a jury to find beyond a
reasonable doubt that Coleman had constructive possession. 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 visiting 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 aid and abet
Dunlap in his drug operation. See id. at 827.
         The evidence supporting constructive possession in Sean
Jenkins' case is no stronger than the evidence found insufficient
in Brown, Vasquez-Chan, and Dunlap. In each of those cases, the
evidence did not establish the decisive nexus of dominion and
control between the defendant and the contraband. The district
court believed that Jenkins' being on the couch next to the drugs
was decisively different than if he was somewhere else in the
apartment, but proximity alone is not enough, no matter 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 the police
entered the apartment. Whether or not he possessed the drugs, he
could have been found sitting on the couch, standing next to it,
in the bathroom, or in some other room in the apartment. A
reasonable jury may not infer dominion and control beyond a
reasonable doubt from the defendant's physical distance from the
drugs alone.
         Jenkins' presence near the drugs in his acquaintance's
apartment is analogous to Baltimore's control over the cut house
and access to the drugs, Gaxiola's proximity and contact with the
drugs, and Coleman's proximity to drugs and drug activity. Some
additional evidence of dominion and control is required before a
finding of constructive possession can be made beyond a
reasonable doubt. We do not believe that Jenkins' being in boxer
shorts and a t-shirt or the fact that two scales were on the
table can raise the necessary inference. That he had been in the
apartment long enough to get partially undressed and that he was
planning to stay for some time tell us nothing about what he had
been doing or what he planned to do. We do not know 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 distribution
paraphernalia were not in use, and no cocaine residue was found
on him. Perhaps most important, as agent Hershowitz testified,
the cutting and repackaging of the cocaine could not have been
imminent for lack of tools to cut, apportion and package the
powder. Under these circumstances, a reasonable jury could not
conclude from Jenkins' state of undress that, beyond a reasonable
doubt, he had dominion and control over the drugs and intended to
participate in the distribution of the cocaine at some point that
night.
         The existence of two scales rather than one adds very
little to the evidence against Jenkins. It does suggest that
someone in addition to Stallings would have participated in the
drug cutting and repackaging that night, if such activity 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 that 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 States v.
Iafelice, 978 F.2d 92 (3d Cir. 1992). In both cases, however,
there were significant and substantial factors linking the
defendants to the drugs. In Davis, the defendant was convicted
for possessing heroin that had been seized in her apartment.
Unlike the instant case, in Davis the evidence clearly showed
that someone had been recently packaging the drugs, and when the
police forced their way in, the persons present, including the
defendant, had tried to destroy the drugs. 461 F.2d at 1036-38.
Here, Jenkins was in an acquaintance's apartment and no evidence
suggests that he had recently physically interacted with the
drugs or drug paraphernalia. Neither did he attempt to hide or
destroy the drugs. In Iafelice, the defendant drove several
individuals in his car to a pre-arranged drug sale to undercover
agents, 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 by one of the
principal drug dealers during the sale. See Iafelice, 978 F.2d
at 95-98. Here, the cocaine was not found in Jenkins' residence,
and no evidence suggests his active participation in any drug
distribution.
         A sufficiency of the evidence challenge requires us to
take a careful look at the evidence in the light most favorable
to the government. Because the evidence supporting Jenkins'
possession of the cocaine, viewed in that light, does not amount
to more than close proximity to the drugs and acquaintance with
the residents of the apartment in which the drugs were found, we
must reverse his conviction for possession with intent to
distribute.

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

                                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 alternatives. 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 he 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. 1984) (quoting
Nye & Nissen v. United States, 336 U.S. 613, 619 (1949))
(alterations in original).
         Here, the government had to prove that another person
committed the principal offense and that Jenkins aided and
abetted in the commission of that offense. At trial, the
government offered no evidence other than the evidence to support
constructive possession by Jenkins. His close proximity to the
drugs and firearms, state of dress, and acquaintance with
Stallings, who committed the principal offense, are not
sufficient to prove aiding and abetting. The government simply
has a "snapshot" of Jenkins sitting on a couch in an
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 distribution, 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 apartment, get
partially undressed, and sit on the couch. Consequently, the
jury could not have properly convicted Jenkins of aiding and
abetting.

                               IV.
         Because we have concluded that there was insufficient
evidence for the jury to convict Sean Jenkins of possession of
cocaine with intent to distribute, use of a firearm in connection
with a drug offense, and aiding and abetting, we will 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 evidence is
viewed in the light most favorable to the prosecution, no
rational jury could possibly conclude that a man in his underwear
sitting on a sofa that is surrounded by cocaine, assorted drug
paraphernalia and firearms can be guilty of a possessory offense
under the constructive possession doctrine. I believe 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 violation of 21
U.S.C.   841(a)(1), based upon what the police saw when they
entered Sam Stallings' apartment in pursuit of an armed felon.
Because the majority reaches a contrary result, I respectfully
dissent.
                                I.
         The facts of this case are not in dispute. In its June
6, 1995 order denying Jenkins' post-trial motion for a judgment
of acquittal, the district court described the circumstances
under which the police entered the apartment in question and what
they saw when they arrived:
         Michael Kopecki, a Philadelphia police
         officer, testified that on February 10, 1994,
         at 1:30 a.m., he and his partner responded to
         a call that gunshots were being fired outside
         the West Walnut Lane Apartments. Kopecki
         testified that he parked his patrol car and
         moved toward the courtyard between two of the
         buildings, where he saw Larry Harrison with a
         gun and Kevin Jones with him. Kopecki yelled
         "police." Harrison and Jones ran toward the
         building. Kopecki followed Harrison into the
         building through a fire escape door and down
         a short hallway into apartment C-107. When
         he entered the apartment, defendants Jenkins
         and Stallings were seated on the couch in the
         living room; they were wearing boxer shorts
         and T-shirts. On the coffee table in front
         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 totaled
         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 the
         guns were loaded.

United States v. Jenkins, No. 94-385-02, slip op. at 1-2 (E.D.
Pa. June 6, 1995).
                               II.
         "Constructive possession is a legal fiction created by
courts to find possession where it does not exist in fact."
Michael S. Deal, Note, United States v. Walker: Constructive
Possession of Controlled Substances: Pushing the Limits of
Exclusive Control, 2 J. Pharmacy & L. 401, 401 (1994). "The
judicially created doctrine of constructive possession enables
law enforcement officials to prosecute individuals in situations
where the inference of possession is strong, yet actual
possession at the time of arrest cannot be shown." Mark I.
Rabinowitz, Note, Criminal Law Constructive Possession: Must the
Commonwealth Still Prove Intent?--Commonwealth v. Mudrick, 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 knowledge of that
object's existence." United States v. Brown, 3 F.3d 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, 709 F.2d 863,
869 (3d Cir.), cert. denied, 464 U.S. 993, 104 S. Ct. 486 (1983).
See Black's Law Dictionary 314 (6th ed. 1990) (Constructive
possession "[e]xists when one does not have physical custody or
possession, but is in a position to exercise dominion and control
over a thing."); see also George H. Singer, Note, Constructive
Possession of Controlled Substances: A North Dakota 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 capacity, 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 is enough that
he or she could have done so.").
         Our cases have held that "dominion and control" 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 be premised
only upon "mere proximity to the drug, or mere presence on the
property where it is located or mere association with 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 question is whether,
after viewing the evidence in the light most favorable 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 (3d 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 on the
appellant." United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir.
1995).
                               III.
                                A.
         There is sufficient evidence in this record to affirm
Jenkins' conviction on criminal possession charges under 21
U.S.C.   841(a)(1). The reasoning and analysis of the district
court on the constructive possession issue were sound and should
not have been disturbed on appeal. The district court rejected
the same insufficiency argument, citing the following
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 immediately
         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, the
         jury could have reasonably inferred that he
         was not merely stopping by Stallings'
         apartment on February 10 and happened to find
         Stallings involved in drug activity.
         Jenkins, on a winter night at 1:30 a.m., was
         wearing boxer shorts and a T-shirt, which
         could imply that he was staying over in the
         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 Harrison
         on different occasions. It would have been
         reasonable for a jury to conclude that
         defendant was a frequent visitor in the
         apartment and a participant in the activities
         inside. Third, there were two triple-beam
         balances on the coffee table and two people
         seated 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 district court
further held that there was

         sufficient evidence from which the jury could
         conclude that the drugs were possessed with
         the intent to distribute them. In addition
         to the cocaine on the table, there were two
         scales, a powdered cutting agent, plastic
         baggies, vials, and caps. An expert
         testified that these materials are used in
         preparing, weighing, and packaging drugs for
         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 find
         that there was sufficient evidence to support
         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 elaborate upon a
number of additional points that provide further support for the
conclusion that there is sufficient evidence in the record to
affirm Jenkins' conviction.
                                1.
         The question whether a defendant constructively
possessed narcotics requires a careful examination of the facts.
See Constructive Possession, supra, at 1008 ("The analysis under
the constructive possession doctrine is necessarily fact-driven.
As no one evidentiary factor standing alone is conclusively
demonstrative, it must be inferred from the totality of
circumstances of a particular case."). In this case, the
situation in which the police found Jenkins, by all appearances,
provided devastating indicia of his guilt. When the police
entered the apartment, they found Jenkins in the center of a drug
distribution enterprise. Jenkins had comfortably ensconced
himself within an arm's reach of firearms, narcotics, drug
paraphernalia and other tools of the narcotics trade. From this
vantage point, Jenkins had easy access to all the contraband that
surrounded him and appeared to have the complete trust of the
tenants of the apartment in which this unlawful enterprise was
carried on. Under these uncontested facts, and viewing this
evidence in the light most favorable to the prosecution, 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 offers no
opinion as to whether Jenkins' position within grabbing range of
all the contraband in the apartment is to be given any weight at
all in our analysis. Although I recognize that proximity,
standing alone and without any other incriminating circumstances,
is insufficient as a matter of law to convict a defendant on
criminal possession charges, Brown, 3 F.3d at 680, this does not
mean that the degree of proximity is irrelevant. On the
contrary, considered along with other attendant circumstances,
proximity can support a judgment of conviction for criminal
possession.
         Close proximity to narcotics is an evidential,
inculpatory factor that can support a finding of guilt on
criminal possession charges to a greater or lesser degree. See,
e.g., Brown, 3 F.3d at 683 (distinguishing our decision in United
States v. Davis, supra, where a constructive possession
conviction was upheld on the ground that the defendant in Davis"was
present with her co-defendant in the room and next to the
table where the drugs and drug paraphernalia were found");
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 position where
narcotics, firearms, drug packaging materials and various other
tools of the drug-dealing trade were "within his immediate
reach." United States v. Bonham, 477 F.2d 1137, 1138 (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 contraband was within
the actual immediate reach of both defendants"); United States
v. DiNovo, 523 F.2d 197, 201 (7th Cir.) (distinguishing our
decision in United States v. Davis, supra, on the ground that
defendant "was not discovered in the immediate area of
unconcealed narcotics"), cert. denied, 423 U.S. 1016, 96 S. Ct.
449 (1975). This factor is particularly telling in a case such
as this where Jenkins comfortably settled himself in the center
of a drug distribution network.
         In concluding that Jenkins was "merely present" in the
apartment, the majority stresses what it found to be the fortuity
of Jenkins' presence in such a compromising position. The
majority goes on to conclude that "[w]hether or not [Jenkins]
possessed the drugs, he could have been found sitting 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 Jenkins 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 or later,
Jenkins might not even have been in the apartment at all! It is
axiomatic that a criminal is not entitled to go free merely
because the constable showed up at an inconvenient time. This
type of "bad luck" does not warrant granting Jenkins the windfall
of a blanket acquittal.
                                3.
         The majority further concludes that Jenkins'
"acquaintance" with Stallings and Harrison cannot give rise to an
inference of constructive possession. The majority is correct to
the extent that mere association, standing alone, will not
support a conviction premised upon the constructive possession
doctrine. Brown, 3 F.3d at 680. This does not mean, however,
that all types of associations with criminals are innocent and
cannot support a finding of constructive possession. In the
present case, Jenkins was, at a minimum, on excellent terms with
narcotics traffickers who were openly plying their trade. This
uncontested fact raises for our consideration a principle
recognized by our sister circuits, which acknowledge that in this
type of environment, "[t]he jury . . . could have reasonably
determined that only trusted members of the operation would be
permitted entry into the apartment, because allowing outsiders to
have access to an apartment with large quantities of narcotics in
plain view could compromise the security of the operation."
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 association may
establish a prima facie case of drug-possession when 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 also 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 area 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. denied, 502 U.S.
953, 112 S. Ct. 408 (1991); see also State v. Brown, 404 A.2d
1111, 1114 (N.J. 1979) (rejecting argument that defendant was
"merely present" as "[t]here were other evidential circumstances
lending distinctive color to the character of defendant's
presence at the scene.").
         These inculpatory factors, considered together, 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 accord the jury's
factual conclusions as to Jenkins' guilt.
                               B.
         An analysis of the majority's opinion reveals that the
court most certainly does not view the record evidence "in the
light most favorable to the prosecution." Jackson, 443 U.S. at
319, 99 S. Ct. 2789. Quite to the contrary, the majority 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 favorable to the
defendant. This misapplication of the burden of proof undermines
the majority's entire analysis of the insufficiency issue.
         For example, the majority concludes that Jenkins'
"prior acquaintance with Stallings answers why he was in the
apartment . . . ." Majority Typescript at 6-7. Continuing along
these lines, the majority opines that "we can only conclude that
it was sheer happenstance that Jenkins was seated on the couch
next to the cocaine when the police entered the apartment." 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-finding to
explain, to its own satisfaction at least, the "real" reasons for
Jenkins' presence in the apartment. In so doing, it has
literally reversed the established rule as to which party has the
burden of proof. We are not in the business of overriding a
jury's conclusions, based upon a highly selective interpretation
of the facts viewed in a light most favorable to the 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 police entry and
"it was more likely that the two scales belonged to and would be
used by the two residents of the apartment." Id. at 7. As
Jenkins did not actually live in the apartment, the majority
appears to believe that the fact he was found seated directly in
front of the type of scale commonly used to weigh narcotics (that
was in the immediate vicinity of narcotics) need not concern us
here. The majority also appears to believe that since the police
came upon two triple-beam scales, a rational jury could infer
only that the drug activity that occurred in the apartment was
carried on by two people who lived in the apartment. Since
Jenkins was a mere guest, so the argument goes, a rational jury
could not conclude that he was one of the two participants
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 that was
conducted out of Stallings' apartment. It is not as though the
police saw two tea cups and two bowls of porridge sitting on a
table with two place settings. A rational jury could conclude
that the drug-dealing operation conducted out of Stallings'
apartment was not a "two-man show."   As courts have recognized,
a narcotics distribution scheme "necessarily involves multiple
individuals."   Parker, 601 A.2d at 52. Moreover, the two scales
were not the only drug-related items in the apartment. The
apartment also contained three firearms and many items of drug-
dealing paraphernalia, all within Jenkins' sight and reach.
Furthermore, the majority's narrow interpretation of the
permissible inferences that a rational jury could draw from the
presence of two triple-beam scales in the apartment on the table
in front of Jenkins fails to evaluate the record evidence in the
light 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 overturned on legal
insufficiency grounds, was arrested as she was about to enter the
front door of a house in which the police were executing 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 Baltimore were found.
         In the district court Baltimore was, like Jenkins,
convicted of possession of a controlled substance with 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 found was drug-
free and the attendant circumstances that surrounded her arrest
did not adequately support a conclusion that she was an active
participant in the criminal activities that occurred within the
house.
         Although the majority attempts to minimize the emphasis
that the Brown court placed upon the potential significance of
the proximity factor, see Majority Typescript at 8, its efforts
are unpersuasive. In support of its decision to overturn 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 exculpatory factor in
that case the fact that the defendant "was not found in the room
where the crack cocaine was found . . . ." Brown, 3 F. 3d at
682. Moreover, the Brown court distinguished our decision in
United States v. Davis, 461 F.2d at 1026, in which a finding of
constructive possession was upheld, on the ground that "[t]he
defendant in Davis was present with her co-defendant in the room
and next to the table where the drugs and drug paraphernalia were
found." Brown, 3 F.3d at 683.
         In its analysis of whether there was sufficient
evidence in the record to support Baltimore's conviction, the
Brown court looked to where Baltimore was in relation to the
contraband that the authorities had seized when she was arrested,
and to the areas of the house where she arguably had a legitimate
expectation of privacy. See id. ("neither [Baltimore] nor any of
her possessions were found in any of the rooms where the drugs
were seized"). Baltimore was nowhere near the drugs when she was
arrested, nor were any of her personal possessions located in the
house's drug-processing areas. The Brown case, therefore, lacked
the present case's immediate proximity to the contraband,
considered along with the other incriminating attendant
circumstances that gave rise to a permissible inference 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 place without
being involved in the operation itself. Brown recognized this,
as did the Court of Appeals for the Ninth Circuit's decision in
United States v. Vasquez-Chan, 978 F.2d 546 (9th Cir. 1992)
(Reinhardt, J.), another case upon which the majority relies
heavily. Although such living arrangements are foolish, they are
not necessarily criminal. Brown recognized that people 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, however, does not
help Jenkins. The record in this case can reasonably 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 that 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 operation 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 analyze the
circumstantial evidence presented in constructive possession
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 reasonablejury 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 presented here
effectively tipped the evidentiary scale, we are precluded from
nullifying the jury's fact finding.
         Although "other inferences are possible from the
evidence, . . . that circumstance does not justify us in
rejecting the jury's verdict." United States v. Sandini, 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 the jury be the
only inference possible or that the government's evidence
foreclose every possible innocent explanation."). The majority
has interpreted the constructive possession doctrine far more
restrictively than our case law warrants and has also failed to
heed the Supreme Court's mandate to view the record evidence in
the light most favorable to the prosecution. I would uphold
Jenkins' conviction on criminal possession charges.
