                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-28-2004

USA v. Brightwell
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2001




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Recommended Citation
"USA v. Brightwell" (2004). 2004 Decisions. Paper 459.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/459


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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                        No. 03-2001
                                        ___________

                           UNITED STATES OF AMERICA,

                                             vs.

                              RICHARD BRIGHTWELL,

                                             Appellant.
                                        ___________

                    On Appeal from the United States District Court
                       For the Eastern District of Pennsylvania

                                (D.C. No. 01-cr-00033)
                   District Judge: The Honorable R. Barclay Surrick
                                     ___________

                               ARGUED JUNE 21, 2004

           BEFORE: NYGAARD, M cKEE, and CHERTOFF, Circuit Judges.

                               (Filed     July 28, 2004   )
                                        ___________

Marcia G. Shein, Esq. (Argued)
Shein & Biggs
1945 Mason Mill Road, Suite 200
Decatur, GA 30030

             Counsel for Appellant


Thomas M. Zaleski, Esq. (Argued)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

                Counsel for Appellee

                                        ___________

                                 OPINION OF THE COURT
                                      ___________


NYGAARD, Circuit Judge.

         Richard Brightwell appeals, alleging that the evidence does not support his

conviction for: (1) possession with intent to distribute drugs, 21 U.S.C. § 841(a)(1) and

(b)(1)(B), and (2) possession of a firearm in relation to a drug trafficking crime, 18

U.S.C. § 924(c). We conclude that there was sufficient evidence for a reasonable jury to

convict. Thus, we will affirm.

                                               I.

         Because the facts of the case are known to the parties, we recite only those

pertinent to our analysis and detail the facts in the light most favorable to the government,

as it was the verdict winner. United States v. Applewhaite, 195 F.3d 679, 684 (3d Cir.

1999).

         Brightwell owned a small convenience store in Chester, Pennsylvania. On the day

in question, local police and agents from the Drug Enforcement Agency executed a search

warrant at the store, including the adjoining office area and the basement. The search




                                               2
    yielded significant amounts of cocaine, drug paraphernalia, and four firearms1 .

    Brightwell was present at the store at the time of the search, but testified that he was

    rarely there and delegated operational authority to an employee.

             Brightwell now argues that despite his ownership of the store and his presence at

    the time of the search, he should not have been convicted because the government did not

    sufficiently establish that he had constructive possession of the guns and drugs.

                                                   II.

             It is clear that Brightwell did not have actual possession of the guns and drugs.

    Therefore, to convict, the government had to prove constructive possession by showing

    that Brightwell had dominion and control over the guns and drugs, and the intent to

    exercise that dominion and control. See United States v. Brown, 3 F.3d 673, 680 (3d Cir.

    1993).

             We need not labor long with respect to Brightwell’s constructive possession of the

    gun found in the bathroom. When the police arrived at Brightwell’s store they

    encountered him leaving the bathroom. A search of that bathroom revealed a gun on the

    counter next to Brightwell’s cell phone. Brightwell’s presence in the bathroom

    immediately before the gun was found, coupled with the gun’s proximity to his cell

    phone, is sufficient to support his conviction for constructively possessing that gun.



1   1.       Brightwell was charged with possessing three of these four guns—one found in
2   the bathroom from which Brightwell was exiting when the search began, one found in the
3   store office, and one found near the store’s cash register.

                                                   3
       With respect to whether Brightwell had constructive possession of the remaining

guns and the drugs, the answer is ultimately controlled by our decision in Jackson v. Byrd,

105 F.3d 145 (3d Cir. 1997).2 In Jackson, we held that the lessee of an apartment had

constructive possession of the drugs therein, despite the fact that they were recovered

from a room in which the lessee’s relative, but not the lessee, lived. Id. at 149. We

reasoned that because Jackson was the lessee, she had access to all areas of the apartment,

and thus exercised dominion and control over the drugs. Id. at 150.

       Brightwell argues that because the storeroom in which some of the drugs were

found was locked, we cannot apply Jackson to say that his status as owner provided

access to the drugs therein.3 Viewing the evidence in a light most favorable to the

government as the verdict winner, we must presume that the jury rejected Brightwell’s

trial testimony that he was rarely present at the store and did not have access to the locked

storeroom. We cannot disturb the jury’s determination that Brightwell’s testimony was

not credible, as that is outside our scope of review. Therefore, based on Jackson and


2.       We note that had the investigators tested the guns and drugs for fingerprints, the
issue of possession may well have been straightforward. It is entirely unclear why the
government did not perform a fingerprint test. This investigative choice, while not
violating any legal obligation, is troubling because it could have had a strong bearing on
the legal issue we are now facing.

3.       Drugs and guns were also found in unlocked portions of the building— namely
the office and near the store’s cash register. As to those drugs and guns, Jackson’s
ownership analysis is binding. Thus, we presume that Brightwell had constructive
possession of the drugs and guns found in unlocked portions of the store because his
ownership conferred access to all those portions of the building. See Jackson, 105 F.3d at
150.

                                              4
putting aside Brightwell’s allegation that he did not have access to the locked storeroom,

there was sufficient evidence to conclude that he constructively possessed the guns and

drugs.

                                             III.

         For the foregoing reasons, we will affirm Brightwell’s conviction.




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