                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 10-4439
                                   _____________

                          UNITED STATES OF AMERICA

                                         v.

                                RASHAAN BATES,
                                     Appellant
                                    ______

                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                            (D.C. No. 2:09-cr-00033-001)
                      District Judge: Honorable Anita B. Brody
                                       ______

                              Argued December 6, 2011

       Before: HARDIMAN, BARRY, and VAN ANTWERPEN, Circuit Judges

                              (Filed February 24, 2012)

Leigh M. Skipper, Esq.
Robert Epstein, Esq. [ARGUED]
David L. McColgin, Esq.
Federal Community Defender Office For the Eastern District of Pennsylvania
Suite 540 West - Curtis Center
601 Walnut Street,
Philadelphia, Pennsylvania 19106
              Counsel for Appellant

Zane David Memeger, Esq.
Robert A. Zauzmer, Esq.
Emily McKillip, Esq. [ARGUED]
United States Attorney‘s Office
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
              Counsel for Appellee
                                          ______

                                OPINION OF THE COURT
                                        ______

VAN ANTWERPEN, Circuit Judge.

         A federal grand jury returned a four-count indictment against Defendant-Appellant

Rashaan Bates (―Bates‖). A jury found Bates guilty on three of the four counts. Bates

appeals his conviction only as to count I, possession with intent to distribute 100 grams or

more of heroin in violation of 21 U.S.C. §§ 841(a)(1). The District Court denied Bates‘s

motion for judgment of acquittal because it found the facts were distinguishable from this

Court‘s prior decisions regarding constructive possession, namely United States v.

Brown, 3 F.3d 673 (3d Cir. 1993) and United States v. Jenkins, 90 F.3d 814 (3d Cir.

1996).

         Wholly apart from the fact that the District Court improperly distinguished Brown

and Jenkins, there is virtually nothing in this record that even suggests that Bates

constructively possessed the heroin, and the District Court erred in concluding otherwise.

In broad summary, Bates was seen on but one occasion exiting the house where he had,

until recently, lived and to which he still had a key. He then crossed the street and shortly

thereafter sold a few packets of crack cocaine, leaving that location a few minutes later

and returning to it the following day, when he was arrested. Nothing connects Bates or

the packets of crack cocaine he was selling to the heroin or heroin paraphernalia or



                                              2
anything else found in the house. We will, therefore, reverse his conviction on Count I,

vacate the sentence, and remand for resentencing.

                                          I. Facts

       Officers Richard Woertz and Brian Myers of the Philadelphia Police Department

(―PPD‖) met with a registered confidential informant (―CI‖) at a staging area on October

7, 2008. The officers instructed the CI to attempt to purchase drugs on the 1400 block of

Lardner Street. The CI met Woertz just north of Lardner Street and he was given pre-

recorded buy money. A third PPD officer, Harold Toomer, conducted surveillance of the

area that evening by sitting in a vehicle further down the block. Toomer saw Bates exit a

residence at 1474 Lardner Street, cross the street, and sit on the steps of 1471 Lardner

Street. Shortly thereafter Toomer witnessed the CI walking down Lardner Street. The CI

stopped to talk to Bates on the steps of 1471 Lardner Street. Toomer saw an exchange

between the CI and Bates, where the CI gave Bates cash, and Bates gave the CI an object

from his coat pocket. Toomer testified that Bates left the area a short time after the CI

left. The CI then returned to the staging area where he gave Woertz a red plastic packet

that contained crack cocaine.

       The next day, October 8, 2008, fourteen PPD officers, including Myers and

Toomer, went to execute a search warrant on 1474 Lardner Street. Toomer again saw

Bates sitting on the steps of 1471 Lardner Street, this time with another individual, and

recognized Bates as the person that sold drugs to the CI the previous day. Toomer and

another officer, Marshall Kelly, approached the two men and searched them. Toomer‘s

frisk of Bates revealed an Intratec 9mm firearm, which Toomer secured. Kelly

                                             3
proceeded to search Bates and discovered twelve blue packets of crack cocaine in a clear

plastic bag. Bates had no money on his person. In addition to the twelve packets of

cocaine, the officers found a key on Bates. The officers tested the key on 1474 Lardner

Street and it operated the lock.

       The house located at 1474 Lardner Street was vacant at the time of the officers‘

search, but Myers found over 100 grams of heroin, as well as heroin paraphernalia, in a

bedroom on the second floor. Some of the heroin was in bulk form, while the rest was in

360 white glassine packets stamped ―Chicago.‖ The heroin paraphernalia included

grinders, a scale, a spoon, a strainer, and a credit card with the name ―Yajaira Batista.‖

The credit card was covered in heroin residue. The officers discovered a tally book

inside the residence, and the words and names in the tally book were largely in Spanish.

Myers also found unused blue, white, and clear glassine packets, which were different

than the blue packets found on Bates. Bates‘s fingerprints were not found in the room

containing the drugs, no evidence placed him in the bedroom containing the drugs, he had

no heroin on his person, and no heroin residue was found on his clothes or person.

       Subsequent investigation revealed that Bates‘s driver‘s license identified 1474

Lardner Street as his place of residence. Bates‘s mother testified that she and Bates had

lived in the house at 1474 Lardner Street between August 2007 and September 2008.

The property manager for 1474 Lardner Street testified that, to the best of his knowledge,

the building was vacant on the day Bates was arrested, October 8, 2008, and had no legal

tenants, although tenants were scheduled to move in on November 1, 2008. In the middle

of September, after Bates and his mother moved out, the property manager checked 1474

                                              4
Lardner Street and found it ―empty.‖ At that time the building contained no furniture,

trash, or personal possessions.

       Bates was charged by a grand jury with four counts: (I) possession with intent to

distribute 100 grams or more of heroin in violation of 21 U.S.C. § 841(a)(1); (II)

possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1);

(III) distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1); and (IV)

possession of a firearm in furtherance of a drug trafficking crime in violation of 18

U.S.C. § 924(c)(1).

       At trial, the Government called PPD Detective Andrew Callaghan as an expert

witness. Callaghan gave his opinion regarding the evidence recovered from 1474

Lardner Street. Callaghan testified that the street value of the heroin seized was over

$200,000 and that, in his experience, such a large amount of heroin is kept in a secure

location to prevent it from being either detected by law enforcement, or stolen by other

individuals. Similarly, such a large volume of heroin led Callaghan to believe an

organization involving more than one person was trafficking the drug. Callaghan also

testified that members of drug organizations usually do not conduct sales out of locations

where they store their drugs because it could draw the attention of law enforcement, as

well as ―street thugs‖ looking to steal the stored drugs.

       The jury convicted Bates on counts I, II and IV, but acquitted him on count III.

Count III was the charge of distribution of crack, arising from the sale to the CI on

October 7, 2008. After the trial, Bates filed a motion for judgment of acquittal under Fed.

R. Crim. P. 29, which was denied by the District Court. Bates filed a timely notice of

                                              5
appeal, seeking review only of the District Court‘s denial of the motion for judgment of

acquittal regarding count I.

                                       II. Jurisdiction

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate

jurisdiction under 28 U.S.C. § 1291.

                                     III. Standard of Review

       In reviewing a motion for judgment of acquittal made pursuant to Fed. R. Crim. P.

29, a district court must ―‗review the record in the light most favorable to the prosecution

to determine whether any rational trier of fact could have found proof of guilt beyond a

reasonable doubt based on the available evidence.‘‖ United States v. Smith, 294 F.3d

473, 476 (3d Cir. 2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir.

2001)). Thus, a verdict will be sustained ―if there is substantial evidence to uphold the

jury‘s decision.‖ United States v. Boria, 592 F.3d 476, 480 (3d Cir. 2010). This is a

―particularly deferential standard of review‖ and reviewing courts ―must be ever vigilant .

. . not to usurp the role of the jury by weighing credibility and assigning weight to the

evidence, or by substituting [the court‘s] judgment for that of the jury.‖ Id. (alteration

and omission in original) (quoting United States v. Brodie, 403 F.3d 123, 133 (3d Cir.

2005)). On appeal this court exercises plenary review and applies the same standard a

district court would use in deciding the motion. Id.

                                       IV. Discussion

       The two prior decisions of this Court on point are United States v. Brown, 3 F.3d

673 (3d Cir. 1993) and United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996). The District

                                              6
Court relied on these decisions in formulating its opinion, and the parties rely upon them

in this appeal.

       A. United States v. Brown

       In Brown, this Court reversed the district court‘s order denying the defendant‘s

motion for judgment of acquittal. Defendant Ama Baltimore, along with two others, was

charged and convicted on four counts relating to possessing drugs with the intent to

distribute. Brown, 3 F.3d at 675–76. The police were acting on a tip that drugs were

located at Brown‘s residence, and they were searching the home for drugs when

Baltimore arrived at the home. Id. at 675. Baltimore was in the process of opening the

front door with her key to the residence when she was arrested. Id. The police brought

Baltimore inside and questioned her regarding a pair of shorts found in an upstairs sewing

room. Id. Baltimore admitted the shorts were hers, and when the police removed a

switchblade knife from the pocket of the shorts, she also admitted the knife was hers. Id.

Then Baltimore stated ―but you can‘t arrest me because I am in my own house.‖ Id.

Heroin, crack, and cocaine were discovered throughout the house, in areas that included

the kitchen and the bedrooms, but not the sewing room where Baltimore‘s shorts were

discovered. Id.

       To demonstrate Baltimore‘s constructive possession of the drugs, the Government

focused on her possession of a key to the house, her attempted entry using the key, the

presence of her shorts and switchblade within the house, her statement that she was in

her ―own house,‖ and the fact that the house was a ―cut house‖ where large quantities of

drugs were cut and distributed. Id. at 680–81. Baltimore responded that there was no

                                            7
evidence of her fingerprints on any of the drugs, that her possessions (the shorts and

switchblade) were in a room in which no drugs were found, that she was arrested before

entering the house, and that Brown was the sole owner of the property. Id. at 681 We

concluded ―while the evidence may be sufficient to show that Baltimore was residing at

the Brown home and that she knew that drugs were in the house, the evidence is not

sufficient to support a finding that she exercised dominion and control over the drugs.‖

Id. at 681.

       Importantly, this Court rejected the Government‘s contention that the Eighth

Circuit‘s decision in United States v. Brett, 872 F.2d 1365 (8th Cir. 1989), controlled the

case. In Brett, the Eighth Circuit affirmed the defendant‘s conviction for possessing

cocaine with intent to distribute. The police obtained a search warrant for the house after

an undercover officer purchased crack from individuals at the house. Brett, 872 F.2d at

1367. As officers approached, the appellant ran from the house and was apprehended. He

was arrested along with two individuals who remained inside. Id. at 1367–68. The man

who ran from the house had nearly four thousand dollars and a key that opened the lock

on the house on his person. Id. The police uncovered drugs in what the court called a

―fortified drug house‖—a house containing no refrigerator, stove, food, or clothing, but

with windows and doors reinforced with wood, metal brackets, and extra locks. Id. at

1368. The Eighth Circuit affirmed the conviction of the defendant who possessed the key

to the house concluding that ―possession of the key to the front door of the house is

sufficient evidence to prove the ‗knowing possession‘ element [of the drug charge].‖ Id.

at 1369.

                                            8
       In Brown, this Court did not apply Brett because ―[p]ossession of the key to the

crack house would indicate a much greater likelihood that the defendant was involved

with the drugs found therein than Baltimore‘s possession of a key to Brown‘s home,

which was used not only for drug-related activity but also a residence.‖ Brown, 3 F.3d at

683–84. This Court further distinguished Brett, because the circumstances underlying the

arrest in Brett were far more inculpatory than the circumstances in Brown. See id. at 684

(―[T]he appellant in Brett was found fleeing from the crack house when the police

arrived; he falsely identified himself at the time of arrest; and he was found at the time of

his arrest with $3,746 in cash in his possession, but would not explain how he had

obtained the money. In short, his possession of the key to the house was only one among

a number of factors all of which supported the conclusion that he knew about and had

dominion and control over the drugs found in the crack house.‖ (citations omitted)).

Unlike Brett, therefore, we found that ―even if [Baltimore] knew that the drugs were in

the house, the evidence [did] not support a finding that she had dominion and control

over th[e] drugs.‖ Id. at 682. Therefore we found insufficient evidence to support the

jury‘s finding that Baltimore possessed the drugs, and, accordingly, overturned her

conviction on the count.

       B. United States v. Jenkins

       In Jenkins, this Court also reversed the district court‘s order denying the

defendant‘s motion for judgment of acquittal.         There, Philadelphia police officers

responded to a call that gunshots were fired near an apartment building. Jenkins, 90 F.3d

at 816. The police pursued the suspect through the building into an apartment, and when

                                             9
they entered the apartment found two men, one of whom was Jenkins, seated on a couch.

Id. The two men, who were wearing only boxer shorts and t-shirts, were seated behind a

coffee table with ―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.‖

Id.

       No evidence was provided that either man had worked with the cocaine, as no

residue was found on them or the scales, and neither man tried to destroy any of the

contraband in the room. Id. at 816–17. Jenkins was not a resident of the apartment, but

was described by the manager of the apartment building as someone who was ―in and

out‖ of the apartment. Id. Jenkins was charged and convicted for possessing cocaine

with intent to distribute. Id. at 817. His motion for judgment of acquittal was denied. Id.

       Jenkins appealed, and the issue before this Court was whether sufficient evidence

existed to establish constructive possession. Id. This Court, relying on Brown, held

sufficient evidence did not exist. Although the Government argued that Brown was

distinguishable on the grounds that the defendant‘s shorts were not found in the same

room as the drugs whereas Jenkins was found directly next to the drugs, we rejected this

argument. As we stated, ―[i]t is a serious misreading of [Brown] to conclude that the

degree of proximity of [the defendant] or her clothing to the drugs was a controlling

factor.‖ Id. at 819. Expanding on a point not discussed in Brown, this Court stated that

because the defendant, Ama Baltimore, lived in the house it was ―virtually certain that

she regularly would have entered the kitchen and bedroom, the rooms in which the drugs

                                            10
were found.‖ Id. Yet, because residence in the house is itself insufficient to prove

dominion and control over the drugs, the visits to the rooms did not matter as long as they

did not pertain to the drugs. Id.

       Accordingly, we held in Jenkins that ―[a] reasonable jury may not infer dominion

and control beyond a reasonable doubt from the defendant‘s physical distance from the

drugs alone.‖ Id. at 820. Mere proximity is thus not enough to establish dominion and

control. See id. at 820 (―Some additional evidence of dominion and control is required

before a finding of constructive possession can be made beyond a reasonable doubt.‖).

Jenkins‘s attire, which indicated he had been in the apartment for a long time or was

planning to stay, and the presence of the two scales was not enough to show dominion

and control given that Jenkins‘s fingerprints were not found on the contraband items, the

contraband was not being used, and no cocaine residue was present on Jenkins. Id. This

Court accordingly found insufficient evidence to establish constructive possession, and

overturned the jury‘s conviction of Jenkins.

       C. District Court’s Opinion

       After Bates was convicted by the jury, he filed a motion for judgment of acquittal

under Fed. R. Crim. P. 29.1 Bates‘s focus is on count I, possession with intent to

distribute 100 grams or more of heroin.2 It was undisputed that Bates lacked actual



1
  Bates also filed a motion for a new trial under Fed. R. Crim. P. 33, which was denied.
Bates does not appeal the District Court‘s decision on this ground.
2
  The required elements for possession of a controlled substance with intent to distribute
are: (1) knowing or intentional (2) possession (3) with intent to distribute (4) a controlled
substance. United States v. Lacy, 446 F.3d 448, 454 (3d Cir. 2006).
                                               11
possession of the heroin, so the issue was whether Bates constructively possessed the

heroin. This Court has stated that:

      ―Constructive possession exists if an 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. Cunningham, 517 F.3d 175, 178 (3d Cir. 2008) (quoting United States v.

Iafelice, 978 F.2d 92, 96 (3d Cir. 1992)).

       The District Court concluded that the Government‘s evidence in this case is ―far

stronger than the evidence in Brown and Jenkins.‖ United States v. Bates, No. 09-cr-33-

1, 2010 WL 3421118, at *6 (E.D. Pa. Aug. 26, 2010). In reaching this conclusion the

District Court relied upon the following facts: (1) Bates previously resided at 1474

Lardner Street; (2) Bates possessed a key to the building; (3) Bates exited 1474 Lardner

Street and immediately proceeded to engage in a drug transaction; (4) Bates was arrested

across the street from 1474 Lardner Street, and the officers found twelve packets of crack

cocaine and a firearm on him at the time of his arrest; (5) at the time of the arrest, 1474

Lardner Street was a ―crack house‖ where no one resided; and (6) expert testimony that,

because the street value of the drugs exceeded $200,000, only trusted members of the

drug distribution group would have access to the building.

       The District Court elaborated on the significance of three of these facts. First, the

District Court stated that a jury could have reasonably considered that on the date of

arrest, 1474 Lardner Street was a ―crack house, that is, a dwelling used exclusively for

the use and distribution of drugs.‖     Id. at *7 (citing Brown, 3 F.3d at 683).       This


                                             12
conclusion was premised on the fact that no one resided in 1474 Lardner Street at the

time.

        Second, because of the expert testimony that the large amount of heroin seized

would be kept in a secure location to which only members of the drug organization would

have access, the fact that Bates possessed a key to the residence held extra significance.

The key indicated that Bates ―could enter the building unimpeded and had unfettered

access to its contents.‖ Id. Thus, the District Court concluded the Government was

―entitled to the inference that because Bates had a key to this ‗crack house‘ where large

quantities of heroin were kept, the drug organization trusted him with unsupervised

access to the heroin.‖ Id.

        Third, and finally, the District Court stated the jury could have reasonably

considered the evidence that Bates engaged in drug trafficking on the block where 1474

Lardner Street is located.3 This was based upon his immediate exit from the house before

selling crack cocaine to the CI, and his arrest directly across from 1474 Lardner Street

where he was found to have twelve bags of crack cocaine and a loaded 9mm firearm.

        D. The District Court’s Order Erred in Finding Sufficient Evidence to
           Establish Constructive Possession



3
  The District Court correctly stated that although the appellant was acquitted on count
III, it is proper to consider all evidence presented by the government regardless of how
the jury finds on some counts. See United States v. Powell, 469 U.S. 57, 67 (1984)
(―This [sufficiency-of-the-evidence] review should be independent of the jury's
determination that evidence on another count was insufficient.‖); Virgin Islands v.
Martinez, 620 F.3d 321, 332–33 (3d Cir. 2010) (―In sum, the jury's acquittal on the other
counts ‗is irrelevant to our singular focus on and determination of whether the evidence
adduced at trial supports‘ the conviction on Count Three.‖).
                                           13
       We believe the District Court improperly distinguished Brown and Jenkins from

the facts of this case. A proper reading of our precedent makes clear that the facts are

insufficient to support the jury‘s conviction.

       First, the District Court labeled 1474 Lardner Street a ―crack house.‖         This

distinction, if appropriate, would strengthen the District Court‘s reasoning. Under dicta

in Brown, and the Eighth Circuit decision in Brett, if 1474 Lardner Street is viewed as a

―crack house‖ then access to the house helps the Government demonstrate dominion and

control over the contraband inside. The Government argues that in reviewing this case in

the light most favorable to it, we should conclude that a finding of dominion and control

is proper because of Bates‘s possession of the key to 1474 Lardner Street, which it

considers a ―crack house‖ or a ―stash house.‖

       But this case presents a factual situation very different from Brett; Bates

previously lived in the home and retained his key to the residence. Bates‘s possession of

the key and his one entrance to the house are thus less inculpatory than the key and

access in Brett. Moreover, the ―crack house‖ in Brett was fortified with reinforced doors

and windows and was not used as a residence. The house at 1474 Lardner Street was not

fortified, was used as a residence three weeks earlier, and new tenants were scheduled to

move in only three weeks later. In Brett, the only reason to have a key that gave access to

the fortified ―crack house‖ was the drugs contained therein. The fortified ―crack house‖

designation created a proper inference, when considered along with the other facts of




                                             14
Brett,4 that the key and access demonstrated dominion and control over the drugs therein.

In this case, 1474 Lardner Street lacks the fortified features present in Brett, and the

arrest of Bates lacks the incriminating facts surrounding the arrest in Brett, so it is not

proper for a jury to conclude that Bates‘s possession of the key and entrance into 1474

Lardner Street on one occasion provide the evidence of dominion and control.

       Second, the District Court erred when it stated that because Bates possessed the

key, he ―could enter the building unimpeded and had unfettered access to its contents,‖

and therefore had dominion and control of the narcotics. Bates, 2010 WL 3421118, at

*7. This statement ignores the holding in Brown that the possession of a key cannot

provide substantial evidence to show dominion and control. Brown clearly establishes

that having ―unfettered access‖ to the house and its contents, absent other evidence, is not

enough to support a finding that the defendant had dominion and control over the drugs

contained therein. Indeed, the defendant in Brown lived in the home, kept possessions

there, would have been near the drugs frequently because they were in the kitchen and

bedrooms, and was trying to access the home while drugs were inside. Yet even that

evidence was insufficient. Here, the evidence only establishes that Bates was in the 1474

Lardner Street residence once since he moved out. Furthermore, there is no evidence

Bates kept possessions in the house, no evidence he was in the house when the heroin

4
  ―[T]he appellant in Brett was found fleeing from the crack house when the police
arrived; he falsely identified himself at the time of arrest; and he was found at the time of
his arrest with $3,746 in cash in his possession, but would not explain how he had
obtained the money. In short, his possession of the key to the house was only one among
a number of factors all of which supported the conclusion that he knew about and had
dominion and control over the drugs found in the crack house.‖ Brown, 3 F.3d at 684
(internal citations omitted).
                                             15
was in the house, and no evidence he was in close proximity to the drugs. This evidence

then must also be insufficient. Further, Jenkins makes clear that even if one is sitting

directly next to drugs and drug paraphernalia and is aware of their presence, more

evidence demonstrating dominion and control must be shown. Jenkins, 90 F.3d at 820

(―Some additional evidence of dominion and control is required before a finding of

constructive possession can be made beyond a reasonable doubt.‖).

      Brown makes clear that living in a residence, having access to the residence, and

having a key to the residence, are together insufficient to establish dominion and control.

Something more is needed. The Government proposes this Court should hold that the

key and access in this case are sufficient to show that Bates had access to the drugs, as

well as permission from unidentified persons to exert dominion and control over them.

We do not accept this proposed conclusion, however, because there is no evidence

showing that the key and access to the home were given, or approved of, by some

unidentified party, and were intended to give Bates dominion and control over the heroin.

Holding otherwise would circumvent Brown. In Brown, the residence, access, and key

were insufficient to establish dominion and control, so here the access and key, without

other evidence connecting Bates to the heroin, cannot be sufficient to establish dominion

and control.

      While the Government is entitled to have the evidence viewed in a light most

favorable to it, that does not mean we must view the key as proof that Bates exercised

dominion and control over the heroin, particularly when the Government has offered no

evidence to prove such a conclusion. According to Callaghan‘s expert testimony, Bates‘s

                                            16
access to the house, via the key, shows he was part of what must have been a larger

organization. But that is the sole evidence the government has to establish dominion and

control of the drugs in the upstairs bedroom, and it is insufficient under Brown and

Jenkins. Bates‘s fingerprints were not found in the room containing the drugs, there is no

evidence that he was in the room containing the drugs, no evidence he knew of the

heroin, and the packaging Bates possessed for the crack was different than the packaging

discovered with the heroin. Further, a Hispanic name was on the credit card found in the

room with the drugs, and the writing in the tally book was largely in Spanish. Neither of

these facts implicates Bates. Lastly, nothing has been shown that whoever placed the

heroin in 1474 Lardner Street explicitly gave Bates permission to enter the home in

which he used to reside using the key he retained from his residence there.

       Comparing the facts in this case to Jenkins highlights the dearth of evidence

regarding access to the heroin that the key allegedly provided. Unlike Jenkins, Bates was

never found in the room containing the drugs. Like Jenkins, there was no heroin residue

on Bates‘s clothes or person.      In Jenkins, this Court concluded the evidence was

insufficient to demonstrate dominion and control over the narcotics; by extension a

similar conclusion is warranted under the facts in this case.

       Finally, the District Court gave too much weight to the fact that Bates was

engaged in drug trafficking on the same block as 1474 Lardner Street. Bates‘s activities

do not connect him to the heroin because he was dealing crack. The possession of crack

also does not show any connection to the packaging paraphernalia found in 1474 Lardner

Street since the packaging of the crack did not match the packaging discovered in the

                                             17
house. This is not to say it has no significance; it demonstrates that Bates possessed

illegal drugs with the intent to distribute them, a crime for which Bates was convicted.

But the Government is not entitled to the inference that because Bates was dealing crack

in the area, he must have also been involved in trafficking heroin. The Government can

place Bates in 1474 Lardner Street on the day before his arrest, but it has shown nothing

further. It has not demonstrated that his time inside the house was related to his sale of

crack, since no crack, and none of Bates‘s possessions were found within the house.

Additionally, it cannot show that his sale of crack outside the house was related to the

storage of heroin inside the house, since nothing discovered with the heroin and

paraphernalia can be traced to Bates.5

      The Government‘s insistence that it is entitled to have the record reviewed in a

light most favorable to it is undoubtedly true. The Government, however, seeks not only

reasonable inferences, but speculative conclusions that are inappropriate.       The line

between reasonable inferences and speculation is narrow and tough to define. If more

evidence was provided connecting Bates to the heroin then the Government‘s argument

5
 The District Court did not address the Government‘s theory of conviction that it raises
in this appeal—that the jury concluded the appellant was armed because he was guarding
1474 Lardner Street. No evidence has been provided that connects the handgun on Bates
to the heroin in 1474 Lardner Street. The only facts the Government can point to
regarding this argument is that Bates was near the house the day before his arrest, was
there a ―short time‖ according to Toomer‘s testimony, and then again on the day of his
arrest when the officers arrived to execute a search warrant on 1474 Lardner Street. We
must make all reasonable inferences in the Government‘s favor, but to find that these
facts alone provide substantial evidence from which a jury could conclude Bates was an
armed guard is to cross the line from inference to pure speculation. Accordingly the
Government is not entitled to the inference that the gun represented Bates‘s assignment to
protect the contents of 1474 Lardner Street or that his presence was ―surveillance‖
intended to protect the drugs.
                                           18
that he exercised dominion and control could cross the line and no longer be speculative.

But Brown and Jenkins dictate that the facts of this case do not demonstrate substantial

evidence of dominion and control to uphold the jury‘s decision.

       The District Court erred in distinguishing this case from Brown and Jenkins in the

ways discussed above.      The evidence, viewed in the light most favorable to the

Government, cannot support a finding that Bates had dominion and control over the

heroin. Accordingly, this Court will reverse Bates‘s conviction on count I.

                                     V. Conclusion

       For the foregoing reasons, we will affirm Bates‘s conviction on counts II and IV

and reverse his conviction on count I. We will vacate his sentence and remand to the

District Court for sentencing proceedings consistent with this opinion.




                                            19
United States v. Bates
No. 10-4439
HARDIMAN, Circuit Judge, dissenting.

         The jury unanimously determined beyond a reasonable doubt that Rashaan Bates

constructively possessed heroin stashed at the residence he had recently vacated. The

seasoned trial judge, after giving careful consideration to the applicable precedents, found

the evidence sufficient to support the conviction. We should affirm that decision.

                                               I

         In a constructive possession case, the Government must establish that the

defendant ―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.‖

United States v. Iafelice, 978 F.2d 92, 96 (3d Cir. 1992). Although we have found that

―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[] is insufficient to

support a finding of possession[,] . . . dominion and control need not be exclusive but

may be shared with others.‖ United States v. Davis, 461 F.2d 1026, 1035–36 (3d Cir.

1972).

                                              II

         As it was required to do, the District Court reviewed the evidence in the light most

favorable to the verdict. That evidence includes the following pertinent facts.

         Bates’s mother leased 1474 Lardner Street in Philadelphia (the Premises) for one

year, from August 9, 2008, until September 10, 2008. Bates lived with her there for

about the last six months of her tenancy and listed the Premises as his residence on his

                                               1
Pennsylvania driver’s license. About six days after her tenancy expired, Bates’s mother

returned her keys to the property manager, Tom Zhang.

       Bates remained active on the 1400 block of Lardner Street after September 10,

2008. On October 7, 2008, Philadelphia Police Officers witnessed Bates selling crack

cocaine to a confidential informant on the front steps of 1471 Lardner Street. Shortly

before that controlled purchase, Officer Harold Toomer saw Bates exit the Premises and

cross the street. After the drug deal, Bates crossed the street again and entered 1446

Lardner Street.

       Based on the foregoing, search warrants were procured for the two properties

Bates had entered or exited (1446 and 1474 Lardner). When officers arrived to execute

the warrants on October 8, 2008, they found Bates again sitting on the front steps of 1471

Lardner. A search of Bates’s person yielded twelve packets of crack cocaine and a

loaded Intratec nine-millimeter Luger semi-automatic handgun with an obliterated serial

number. And despite the fact that Bates’s mother testified that her son never had a key to

the Premises, officers found a key to that residence on Bates’s person.

       Inside the Premises, officers found 707 grams of heroin, including ―bulk heroin

[and] packaged heroin, . . . heroin paraphernalia used to package heroin,‖ a credit card

covered in heroin residue, a ledger book written mostly in Spanish, a rubber stamp

bearing the word ―Chicago,‖ and a box containing blue and green glassine packets.

There were no beds in the Premises and almost no furniture. Officer Brian Myers

described the Premises as follows:



                                             2
       When you first walk into 1474 Lardner Street, you walk into a living room.
       I remember there was a couch and a TV. That was the only thing down
       there. There was nothing in the kitchen, nothing in the dining room. As
       you walk in the front door to your right, there was [sic] stairs to go upstairs,
       you go upstairs. In the front room there’s a table and I think one or two
       chairs. No bedroom set that I remember and no furniture in any other—I
       think there was [sic] two other bedrooms but no furniture in them.

Like Officer Myers, property manager Zhang testified that as of October 8, 2008, the

Premises, which he had secured with a lock box a few weeks earlier, was unoccupied.

       The jury also heard testimony from a Government expert, Detective Andrew

Callaghan. Callaghan opined that the crack cocaine found on Bates was likely meant for

sale rather than for personal use because Bates was not carrying any user paraphernalia.

Noting that Bates carried a handgun, Callaghan explained that ―it’s extremely, extremely

rare that a user [who is] just purchasing any type of illegal drug would possess a loaded

firearm.‖

       Callaghan further testified that the heroin found at the Premises could be sold for

well over $200,000 and explained that such a large quantity would be stored in a secure

location and sold elsewhere to evade detection by police or potential thieves:

       I’ve never seized a large amount of heroin in an open location where other
       people had access to it. Drug organizations usually secure and secrete the
       evidence. You know, if there’s a location that drugs are stored at, if it’s this
       amount, they usually don’t conduct sales out of it because . . . they don’t
       want law enforcement to detect that location . . . and [because of] street
       thugs, is what we call them, you know, guys that commit a robbery on a
       drug house because those types of robberies are seldom, if ever, reported.
       . . . So that’s the main reason why they keep a separate and secure location.

Callaghan also testified that because ―[i]t would take multiple persons in order to sell this

heroin to be able to pay that shipment off,‖ the operation likely involved ―[m]ore than


                                              3
one individual.‖ He went on to explain that while the majority of heroin in Philadelphia

is distributed by Hispanics and ―usually the leaders of an organization in a heroin trade

are Latino[,] . . . often the customers and the workers aren’t.‖

       To sum up, the evidence showed that Bates was an armed drug dealer who

impermissibly retained a key to a locked Premises where over $200,000 of heroin was

seized and that the seizure occurred on a day when Bates was eyeballing the Premises,

the day after Bates was seen leaving it.

                                             III

       In light of the undisputed facts, two questions arise: to whom did the heroin

belong, and who was in charge of it while it was stashed at the Premises? I agree with

Bates that the evidence supports the conclusion that the heroin belonged to one or more

Hispanics. This theory is well supported not only by the documents written in Spanish

and the Hispanic name on the credit card used to cut the heroin, but also by the testimony

of the Government’s expert, Detective Callaghan. But who was in charge of the heroin

while it was stashed at the Premises?

       The record indicates that two people had access to the locked Premises: Zhang, the

property manager, and Bates. Although it is theoretically possible that Zhang allowed the

drug cartel to use the Premises to stash and process the heroin, the jury rationally

concluded that Bates—the armed drug dealer who operated across the street from the

Premises and was seen exiting the Premises the day before the seizure—was watching

over the Premises where the heroin was stashed.



                                              4
       My colleagues conclude that this case is indistinguishable from our two most

germane precedents: United States v. Brown, 3 F.3d 673 (3d Cir. 1993), and United

States v. Jenkins, 90 F.3d 814 (3d Cir. 1996). As the District Court explained, however,

the evidence presented against Bates was markedly stronger than the evidence in either

Brown or Jenkins. ―In addition to evidence that Bates previously resided at 1474 Lardner

Street and possessed a key to the building,‖ the Government also showed: (1) on the day

prior to his arrest, ―Bates exited 1474 Lardner Street and immediately proceeded to

engage in a drug transaction;‖ (2) ―Bates was arrested across the street from 1474

Lardner Street‖ with crack cocaine and a firearm on his person; (3) ―1474 Lardner Street

was a crack house1 where no one resided;‖ and (4) ―only trusted members of the drug

distribution group would have access to the building.‖ United States v. Bates, No. 09-33-

1, 2010 WL 3421118, at *7 (E.D. Pa. Aug. 26, 2010). The District Court held that

―[t]hese additional pieces of evidence, viewed in the light most favorable to the

Government and in conjunction with the entirety of the evidence in this case, [were]

sufficient for the jury to find Bates guilty beyond a reasonable doubt of possession with

intent to distribute 100 grams or more of heroin.‖ Id.

       I agree with the District Court for several reasons. First, the jury could reasonably

have concluded that on the day of Bates’s arrest, the Premises was not a home, as in

Brown, but rather a ―dwelling used exclusively for the use and distribution of drugs.‖

Brown, 3 F.3d at 683. Second, the jury was entitled to credit Callaghan’s expert opinion

       1
        The use of the phrase ―crack house‖ is not accurate because the seizure at the
Premises yielded no crack cocaine. This misnomer is immaterial, however, because the
point here is that the Premises was unoccupied.
                                             5
that only trusted members of the drug organization would have access to such a large

quantity of heroin. Third, the jury could infer from Bates’s possession of the key—

which, curiously, his mother denied he ever possessed—that, unlike Jenkins, Bates

―could enter the building unimpeded and had unfettered access to its contents.‖ Bates,

2010 WL 3421118, at *7. Finally, the jury could consider the fact that ―Bates engaged in

drug trafficking on the 1400 block of Lardner‖ and was found across the street from the

Premises with crack and a loaded firearm ―that was a tool of the drug trade.‖ Id. at *8.

                                             IV

       Among the several factors cited by the District Court, the most significant

distinguishing characteristic is that the heroin was found in a vacant home that was being

used to stash, cut, and package the drug. In Brown, we reversed the conviction of Ama

Baltimore, who had been arrested as she entered her own home during a police search. 3

F.3d at 673. Essential to our decision was the fact that the property had a legitimate use,

i.e., as a residence. Id. at 683–84 (―Possession of the key to [a] crack house would

indicate a much greater likelihood that the defendant was involved with the drugs found

therein than [his] possession of a key to [a] home, which was used not only for drug-

related activity but also as a residence.‖). My colleagues note that the Premises was ―not

fortified, was used as a residence three weeks earlier,‖ and was scheduled to receive new

tenants ―only three weeks later,‖ to suggest that it is not analogous to the ―fortified drug

house‖ raided in United States v. Brett, 872 F.2d 1365 (8th Cir. 1989). But the fact that

the Premises was not ―fortified‖ does not detract from the plain fact that it was a secure

location used only for illicit purposes during the relevant time period.

                                              6
       My colleagues correctly note that we have said that the Brett defendant’s

―possession of the key to the house was only one among a number of factors all of which

supported the conclusion that he knew about and had dominion and control over the

drugs found in the crack house.‖ Brown, 3 F.3d at 684. They are also correct that the

evidence of guilt was more pronounced in Brett than in this case. This does not mean,

however, that a reasonable jury could not have convicted Bates. His possession of the

key to the Premises was just one of many factors that supported the jury’s decision. The

fact and location of Bates’s drug dealing, his loaded semi-automatic weapon, and the

expert testimony regarding the heroin were all before the jury.

       Nor am I persuaded by the Majority’s application of Jenkins to this case. The

defendant in Jenkins was arrested in the home of an acquaintance while sitting in front of

a coffee table strewn with drugs and packaging materials. 90 F.3d at 816. There was no

evidence that he possessed a key to the apartment or had ever visited it while its owner

was absent. Id. at 820. Unlike Bates, Jenkins was deemed a social guest who was not

permitted to access the drugs on his own. Id. at 820–21.

       After we decided Brown and Jenkins, we held in Jackson v. Byrd that a state trial

court’s findings of fact sufficiently supported Christine Jackson’s conviction for

constructive possession of drugs found in her brother’s bedroom, which was located in

the apartment she was leasing. 105 F.3d 145, 150 (3d Cir. 1997). We distinguished

Jenkins, noting that while ―there were adults other than the appellant inside‖ the home

where the police arrested Jenkins, ―Jackson’s situation was different because . . . except



                                             7
for her young son, she was alone in the apartment when the police executed the warrant

[and] had ready access to the drugs as they were in the unlocked rear bedroom.‖ Id.

       Jenkins is distinguishable from this case for the same reason. The few cases, like

Brown and Jenkins, in which federal appellate courts have found insufficient evidence to

support a jury’s finding of constructive possession, share a common theme noticeably

absent here. In those cases, the defendant was either accompanied by or living with

another individual who exercised dominion and control over the drugs confiscated at the

scene. See, e.g., United States v. Scofield, 433 F.3d 580, 585–86 (8th Cir. 2006)

(defendant was present in a drug dealer’s home while the dealer sold methamphetamine

to an informant); United States v. Valadez-Gallegos, 162 F.3d 1256, 1262–63 (10th Cir.

1998) (defendant was a passenger in a vehicle in which ephedrine was found); United

States v. Valenzuela, 596 F.2d 824, 830–31 (9th Cir. 1979) (defendant lived with her

husband on the premises where heroin was found and attempted to push the door shut

when officers tried to execute warrant); Arellanes v. United States, 302 F.2d 603, 606–07

(9th Cir. 1962) (defendant lived with her husband in an apartment where drugs were

found and accompanied him in the car in which drugs were transported).

       Like Christine Jackson—whose conviction we affirmed—Bates was the only adult

seen either entering or exiting the Premises in the two days leading to his arrest. Bates

carried a key, enjoyed unfettered access to the drugs, and had ―some appreciable ability

to guide the destiny of the drug.‖ United States v. Staten, 581 F.2d 878, 883 (D.C. Cir.

1978). And even more telling than in Jackson’s case, Bates was dealing drugs and toting

a loaded semi-automatic weapon.

                                             8
                                              V

       This is not a case like Brown, where the defendant had a legitimate reason to carry

a key to a home where drugs were found. Nor is it a case like Jenkins, where the

defendant’s access to the drugs was dependent upon another person. Like Ama

Baltimore, Bates carried a key giving him unfettered access to the home and, like

Jenkins, he was in close proximity to the drugs as he exited the Premises. Although we

have held that these factors do not alone suffice to demonstrate constructive possession,

we have never found that they are inadequate when considered together and with other

evidence, including a defendant’s history of drug trafficking, his armed monitoring of the

location, and an expert’s testimony that access to that location would be limited to trusted

confederates of the drug ring.

       The evidence against Bates can be construed as pointing to either innocence or

guilt, but characterizing it in the light most favorable to the Government reveals that the

jury’s decision to embrace the latter conclusion was reasonable. Because a rational jury

could and did conclude that Bates had constructive possession over the heroin at the

Premises on the day of his arrest, I respectfully dissent.




                                              9
