
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2361                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                            RAFAEL ANGEL ZAVALA MALDONADO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Luis Rafael Rivera for appellant.            __________________            Jeanette Mercado Rios, Assistant United  States Attorney, Criminal            _____________________        Division, with whom Guillermo Gil, United States Attorney, and Jose A.                            _____________                              _______        Quiles-Espinosa,  Senior Litigation  Counsel,  were on  brief for  the        _______________        United States.                                 ____________________                                    April 22, 1994                                 ____________________                 BOUDIN,  Circuit  Judge.    On  July  2,  1992,  a  jury                          ______________            convicted   Rafael  Angel  Zavala   Maldonado  ("Zavala")  of            possession of cocaine with intent to distribute, in violation            of 21 U.S.C.    841(a)(1).1   On appeal,  Zavala argues  that            the evidence  was insufficient to support  the conviction and            that  defense  counsel's   closing  argument  was  improperly            hampered by objections  from the prosecutor.  For the reasons            set forth, we affirm.                                          I.                 The first ground of  appeal requires an understanding of            the  evidence  and,  given  the  conviction,  we  recite  the            evidence  in  the light  most  favorable  to the  government.            United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir. 1991).            _____________    _____            In January  1992, Ruben  de los  Santos ("Santos"),  a seaman            serving on board  the M/V Euro  Colombia, was in the  port of            Cartagena,  Colombia.    There,  a drug  dealer  gave  Santos            sixteen  packages of cocaine,  amounting to a  total of eight            kilograms,  and asked  Santos to  deliver them  as instructed            when the ship docked at the port of Ponce, Puerto Rico.                   Santos  had  earlier  been approached  by  American  law            enforcement agents  attached to  the Customs Service,  and he            accepted the cocaine  in Cartagena with  the approval of  the                                            ____________________                 1The  jury  acquitted  Zavala  of  two  other  charges--            importing cocaine into  the United States,  21 U.S.C.    952,            and using a telephone to commit or facilitate  the possession            offense,  21 U.S.C.     843(b)--and these  counts require  no            further discussion.                                         -2-                                         -2-            agents, who intended to track the drugs to their destination.            Santos  kept  the drugs  hidden  during  the  voyage and,  on            arriving  in Ponce,  conferred  immediately with  the agents.            Shortly  thereafter, Santos  under  surveillance  by  federal            agents and cooperating local police,  went to the Hotel Melia            in  Ponce  and asked  at the  front  desk for  Mr. Palestino.            These last two  steps complied with the instructions given to            Santos  in  Catagena, by  the dealer  who  had given  him the            cocaine,  to deliver it to  Palestino, at the  Hotel Melia in            Ponce.                 When  the  clerk  called  from  the  desk  to  the  room            registered to  Palestino, the  defendant Zavala appeared  and            gestured to  Santos to follow him to room 302.  There Santos,            who was  carrying the cocaine in  a bag, told Zavala  that he            had the drugs to be delivered to Palestino.  Zavala said that            he was a friend of Palestino and that Palestino would come to            the  hotel.  Using a cellular telephone, Zavala then placed a            call,  purportedly  to Palestino.    Then  at Santos'  urging            Zavala called a second time to ask Palestino to come quickly.            Zavala  asked Santos if they could put the cocaine in another            hotel  room, saying that he (Zavala) had other friends in the            hotel, but Santos refused.                 As  time  passed and  Palestino  still  did not  arrive,            Santos became increasingly anxious  and he proposed to Zavala            that  they go  out of the  room for  a soda.   Zavala agreed,                                         -3-                                         -3-            Santos  placed  the  bag with  the  cocaine  in  a closet  or            dressing room  in room 302, and the two men left room 302 and            entered  the corridor.   As  they went  down the  stairs, the            supervising   customs  agent  detained  them.    When  Santos            explained that  Palestino had  still not arrived,  Zavala was            taken  back to room 302 in custody, accompanied by Santos and            one  or more agents.   There were  several more calls  to the            room purportedly from Palestino, two or three on the cellular            telephone and one on the hotel telephone; in each case Santos            told the caller that Zavala was out or otherwise occupied.                 Shortly after the  final call, the operation came  to an            end.  Law  enforcement agents,  it appears, had  seen a  car,            with the  driver using a cellular  telephone, circling around            the hotel.   The driver then parked and went  into the hotel.            He  proceeded with  another  individual to  one of  the hotel            rooms and entered.  When agents  then knocked on the door  of            this room,  the individuals  inside exited through  a window.            After  a chase they  were caught, and  a search of  their car            yielded a loaded nine millimeter pistol and $6,305 in cash.                 This  final episode  was described  in testimony  at the            trial.  So  far as we know, neither the  driver nor the other            man with him was  charged.  Possibly the police  thought that            the  evidence was  not  quite strong  enough  to prove  their            participation in the drug deal.  Zavala, however, was charged                                         -4-                                         -4-            as  previously  described,   and  convicted  on  one   count:            possession with intent to distribute.                                         II.                 Zavala's primary claim is  that an acquittal should have            been  ordered on  grounds of  insufficient evidence  to prove            possession.   We begin by  noting that on  this record Zavala            was  surely  guilty  of a  closely-related  offense,  namely,            conspiracy to  possess drugs with intent  to distribute them.            21  U.S.C.     841,  846.    An  agreement  with  the  absent            Palestino is  readily inferred from  Zavala's statements  and            the  telephone  calls,  and  the object  of  the  agreement--            transferring a dealer-sized quantity of cocaine to Palestino-            -is no  less apparent.    A slightly  more inventive  offense            would be a charge of  aiding and abetting Palestino's attempt                                                                  _______            to possess with intent to distribute, under  18 U.S.C.     2,            841.  See, e.g., United States v. Kottmyer, 961 F.2d 569 (6th                  ___  ____  _____________    ________            Cir. 1992).                 But  Zavala was  not  charged with  conspiracy, or  with            aiding and abetting an attempt, nor did a jury convict him of            such  crimes.  The  formalities of indictment  and jury trial            are prescribed by the Constitution.   U.S. Const., Amends. V,            VI.   Further, given that these offenses were not charged, it            is  hardly  sufficient  to  say that  this  record  contained                                                  ____            evidence to  support such a  conviction for such  an offense.            We do not know what evidence  the record might contain if the                                         -5-                                         -5-            defendant  had been given notice  that he was  charged with a            quite different  offense (say, conspiracy) instead  of, or in            addition to, the offense charged (here, possession).                   Thus the  conviction for possession can stand  only if a            reasonable  jury  could  find  that Zavala  did  possess  the            cocaine  within  the meaning  of  21 U.S.C.    841.    If the            statute  used  the  term  "possess"  as  a  lay  juror  might            understand it prior to instructions from the  judge, it might            be  a stretch to say  that Zavala "possessed"  the cocaine in            the  bag.  There is no evidence  that he even touched the bag            or saw the cocaine or that he was ever alone in the room with            it  or that he had a  practical opportunity to remove it from            the hotel.  These facts explain why Zavala's main argument on            appeal  is that  his relationship  to the  cocaine cannot  be            deemed "possession."                 The difficulty with  the argument is that the concept of            possession in the drug statute comes freighted with a history            of  interpretation.   Congress  was here  concerned not  with            "possession" in  a narrowly  focused situation (e.g.,  actual                                                            ____            possession of a weapon on an aircraft) but with possession of            drugs incident to their distribution.   There is every reason            to think that Congress wished to cast its net widely so that,            assuming  mens rea, a  defendant proximately  associated with                      ________            the  drugs would be reached  by the statute.   The prevailing                                         -6-                                         -6-            interpretation of "possession," in  the framework of the drug            statutes, reflects that broad reach.                   Under settled law, "possession" includes not merely  the            state of  immediate, hands-on  physical  possession but  also            "constructive"   possession,  including   possession  through            another, and joint as well as exclusive possession.   Further            these  concepts can be combined  so that, for example, "joint            constructive possession" is quite as bad as  having the drugs            exclusively in  one's own  pocket.   E.g.,  United States  v.                                                 ____   _____________            Batista-Polanco, 927 F.2d 14,  18-19 (1st Cir. 1991).   These            _______________            concepts  of  constructive and  joint  possession are  almost            uniformly  reflected  in  both  decisions2  and  in  standard            instructions.3                  "Constructive" possession  is  commonly defined  as  the            power  and intention  to  exercise control,  or dominion  and            control,  over an  object not  in one's  "actual" possession.            E.g., United States v. Acevedo, supra, 842  F.2d at 507.  The            ____  _____________    _______  _____            "constructive possession" label may confuse jurors at first--            drug trial juries  routinely ask  to be  reinstructed on  the            definition   of  possession--but   the  underlying   idea  is                                            ____________________                 2See,  e.g., United  States v.  Akinola, 985  F.2d 1105,                  ___   ____  ______________     _______            1109  (1st Cir. 1993); United States v. Vargas, 945 F.2d 426,                                   _____________    ______            428  (1st Cir. 1991); United States v. Acevedo, 842 F.2d 502,                                  _____________    _______            507 (1st Cir. 1985).                 3E.  Devitt, C.  Blackmar, K.  O'Malley, 2  Federal Jury                                                             ____________            Practice and  Instructions, Criminal    54.08, at  906 (1990)            ____________________________________            (collecting  cases); L.  Sand,  J. Siffert,  W. Loughlin,  S.            Reiss, 2 Modern Federal Jury Instructions 56-9 (1992) (same).                     ________________________________                                         -7-                                         -7-            important and not so  difficult to grasp.  Courts  are saying            that one  can possess an object while it is hidden at home in            a bureau drawer, or while held  by an agent, or even while it            is  secured in  a safe  deposit box  at the  bank and  can be            retrieved only when  a bank  official opens the  vault.   The            problem is not so much with the idea as with deciding how far            it should be carried.                 Here,  we think is at least arguable that Zavala was not                                                                      ___            shown  to possess the  drugs while he and  Santos were in the            room together.   Santos  apparently had exclusive  control of            the bag during this period.   It contained drugs for which he            had not been paid; Zavala was not the named person to whom it            was to  be delivered; and Santos  refused Zavala's suggestion            that  the bag  be entrusted  to Zavala's  friends in  another            room.  If  the agents had  broken into the room  and arrested            Zavala  at this point, a  directed verdict of acquittal might            have been required.                 But once both parties departed from the room leaving the            drugs inside, the situation  altered.  It is not  that Zavala            got closer to  the drugs--indeed, he moved further  away from            them--but  rather  that   two  other  circumstances  changed:            first, Santos surrendered his  actual possession of them; and            second, with the acquiescence of both parties, the drugs were            secured in  Zavala's room.  In  the context of  this case, we            think  that  a  jury  could  then  find  both  requisites  of                                         -8-                                         -8-            constructive possession:  that Zavala had sufficient power to            control the drugs and an intention to exercise that power.                 Turning first to the power to exercise control, we begin                                      _____            with the fact that the drugs were left in Zavala's  room with            his  knowledge  and consent  while  Zavala  was awaiting  the            arrival of  an accomplice  to pay  for them.   It is  fair to            describe  the location as Zavala's  hotel room because he was            effectively in occupation and the jury could reasonably infer            that he could return there at will.  The evidence showed that            the room,  although registered in Palestino's  name, had been            lent to two occupants.  It was Zavala who emerged when Santos            arrived at  the hotel and  the room  was called;  and it  was            Zavala  who took  Santos to  the room  to await  "his friend"            Palestino.                   The location of drugs or firearms in a  defendant's home            or  car is a common  basis for attributing  possession to the            defendant.4  This  is so  even if  the residence  or room  is            shared  by others.  E.g.,  United States v.  Garcia, 983 F.2d                                ____   _____________     ______            1160,  1164  (1st Cir.  1993).   The  cases do  not  say that            possession is automatic  but rather that the location  of the            object in a domain specially  accessible to the defendant can                                            ____________________                 4See, e.g., United States v. Wight,  986 F.2d 1393, 1398                  ___  ____  _____________    _____            (1st Cir.  1992); United States  v. Echeverri, 982  F.2d 675,                              _____________     _________            678 (1st Cir.  1993); United States v. Chapdelaine,  989 F.2d                                  _____________    ___________            28, 34 (1st Cir. 1993), cert. denied, 114 S. Ct. 696 (1994).                                    ____________                                         -9-                                         -9-            (at least where knowledge is admitted  or inferred) be enough            to permit the jury to find possession.                 Admittedly, Zavala's  power to control in  this case was            diluted because Santos had  not yet been paid and  might well            have resisted any attempt by Zavala to return to the room and            carry away  the drugs.   But by the  same token a  jury could            infer that drugs  now stored in Zavala's hotel room, awaiting            transfer to Zavala's accomplice, were at least as much within            Zavala's power to control  as within Santos' power.   If each            had an effective veto over the other, it would still be joint            possession.  Two drug  dealers with cocaine in the  back seat            of  their car might both possess it even though neither would            let the  other out  of sight.   Cf. United  States v.  Wight,                                            ___ ______________     _____            supra, 968 F.2d at 1398 (weapon in car given to one defendant            _____            "possessed" by the other where in reach of both).                   The  issue of  intention is  quite as  important  as the                                _________            issue of  power.   Someone  might have  effective power  over            drugs  simply because  they were  located within  reach while            their true owner was temporarily absent; but if such a person            had power over the drugs (say, as a  temporary visitor to the            room  in which  they were  located) but  had no  intention to            exercise  that power, there might  still be no  crime.  Here,            Zavala's connection with  the drugs stored in  his hotel room            was not at all innocent:  the drugs were stored there for the                                         -10-                                         -10-            purpose (so far as Zavala knew  and intended) of facilitating            their transfer to his accomplice, Palestino.                 In  many cases,  intention  and knowledge  are  inferred            solely from the location of the drugs in an area to which the            defendant  has a priority of access.  Here, Zavala's state of            mind is established by  independent evidence:  his statements            that  Palestino would be there  soon, his suggestion that the            drugs be stored temporarily  in another room, apparently with            his  confederates; and  by  the cellular  telephone calls  by            Zavala and to  him seemingly from  Palestino.  No  reasonable            jury could have had any doubt that Zavala was there to assist            in the transmission of the drugs lodged in his room.                 Assuming Zavala's guilty mind,  it might still be argued            that  his precise  intention was  to aid  in the  storage and            transfer of the  drugs but not  to "control" the  drugs.   We            think this is  too fine a distinction.  Defendant's intention            to  have  the drugs  stored in  his  room, incident  to their            intended transfer  to a confederate, seems to us an intention            intimately  related to his power to control  the drugs.  If a            jury  finds this  to be  constructive  possession, we  do not            think that it has  stretched the concept too far  or betrayed            the intention of Congress.                      Finally,  it  is  beside  the  point that  Zavala's            "possession"  in the  hallway  was extremely  brief and  that            Zavala probably could not have escaped with the drugs because                                         -11-                                         -11-            of  the police surveillance.  That the police are present and            ready to  frustrate distribution does not  make possession of            drugs any less a crime, and a minute of possession is as much            an offense  as a year of possession.   See Santiago v. United                                                   ___ ________    ______            States,  889 F.2d  371, 376  (1st Cir.  1989).   If Palestino            ______            himself had arrived  and Santos  had handed him  the bag,  he            would  be guilty of possession  even if the  police had burst            into the room  sixty seconds  later.  The  completion of  the            crime  does not  require that  the defendant have  a sporting            chance.                                          III.                 We  turn to Zavala's other  main claim of  error on this            appeal.    Zavala  contends  that  the  prosecutor  so  often            interrupted  the  defense  summation with  objections  as  to            constitute misconduct  and to  prevent the jury  from hearing            the  defense's  closing  argument.    We  have  reviewed  the            complete  transcript  of  defense  counsel's   summation  and            conclude that  misconduct did not  occur nor was  the defense            summation seriously impaired.                 It is  quite true that the  prosecutor's objections were            numerous.  Zavala's brief claims that 20 objections were made            in  an  argument  that  covered  37  transcript  pages.   The            government's brief may also miss the mark by arguing that the            claim  now made was waived because not argued to the district            court:    defense  counsel  did  state,  after  a  number  of                                         -12-                                         -12-            objections from the prosecutor,  "I have an objection  to the            continuous  interruptions."   This is  the same  argument now            renewed on appeal.                 But if the objection was preserved, it was also  largely            answered by  the trial judge's rejoinder  to defense counsel:            "Well, then you behave better.  Stick to the facts before the            Court  and   before  the   jury  and   you  won't  have   any            interruptions."   The  fact is  that most  of the  objections            ruled on by the judge  were sustained on the ground that  the            defense  counsel  was  arguing  facts  outside  the   record,            misstating evidence, or misstating the law.  Unless the trial            judge was  mistaken in  his rulings, defense  counsel himself            provoked many of the interruptions.                 We have looked  at both the rulings  and the objections.            The former  were generally  well within the  district court's            discretion, and most  of the latter  were at least  arguable.            For example, speaking of Santos, Zavala's counsel said to the            jury:   "Remember  that [the  confidential informant]  is the            person   that  traditionally  he's  a  distrusted  individual            because  he can  work  always  as  a  double  agent."    Many            prosecutors would have let this pass; but here the prosecutor            objected ("Objection,  your Honor.  Going  outside the record            "traditionally not to be  trusted."), and the judge sustained            her  objection on  the ground  that it  was not  a reasonable            inference from the evidence.                                         -13-                                         -13-                 What  inferences  can arguably  be  drawn  from specific            evidence is  often a matter of degree and of judgment.  Trial            judges themselves  differ in  their approaches, and  "how far            you can go" with a particular judge is the kind  of lore that            counsel  collect and  pass  on  to  each  other.    Here  the            prosecutor operated  on a hair  trigger, and the  trial judge            was reasonably strict in governing the closing argument.  But            the fact  is that  there was  no evidence  as to the  general            character of  confidential  informants, nor  any evidence  to            suggest that Santos was dishonest or a double agent.                 Without recounting  each objection,  we  think that  the            prosecutor  was  right  or  arguably right  often  enough  to            foreclose  any  suggestion that  her  aim was  to  impede the            defense; put differently, the defense summation provided some            basis for  legitimate complaint.  The  trial judge's rulings,            some  of  which  favored  the  defendant,   appear  eminently            reasonable.    Finally,  based  on a  reading  of  the entire            defense  summation,  it   seems  to  us   that--despite  some            interruptions--the   essence   of   counsel's  argument   for            acquittal was thoroughly conveyed to the jury.                 Affirmed.                 ________                                     Dissent follows.                                         -14-                                         -14-                 COFFIN, Senior Circuit Judge (dissenting).  I    believe                         ____________________            the court  errs by expanding the  definition of "constructive            possession" beyond what is supported by the relevant caselaw,            stretching the  statutory  reach  of  "possession"  under  21            U.S.C.   841(a)(1) dangerously and unnecessarily far.                 My colleagues concede that it is at least  arguable that            Zavala was not shown to possess the drugs while he and Santos                       ___            were in the  room together;  and that had  the agents  broken            into the room and  arrested Zavala at this point,  a directed            verdict of acquittal might have been required.  They contend,            however, that once Zavala,  on Santos' suggestion, locked the            drugs  in his  hotel room  while the  two men  went to  get a            drink, Zavala  "possessed" the drugs, by virtue  of the facts            that  he had yielded actual possession of the drugs, and that            he  had priority  of access to  the room  in which  they were            stored.                   The  court  reaches this  conclusion  by  relying on  an            interpretation  of "constructive  possession" which  I cannot            help thinking is both incorrect and overbroad.  "Constructive            possession," as the majority  properly states, is established            by  showing  that  a  person  knowingly  had  the  power  and                                                               _____            intention at a  given time to  exercise dominion and  control            _________            over  an object,  either  directly or  through  others.   See                                                                      ___            United States v. Acevedo,  842 F.2d 502, 507 (1st  Cir. 1988)            _____________    _______            (emphasis added).   The  court, in  turn, defines "power"  in            physical terms: in its view, the requisite  "power" exists if                                         -15-                                         -15-            the contraband is  in a  location specially  accessible to  a            defendant,  such as  in one's  home, hotel  room, or  car, or            located within his or her reach.                 I am  persuaded that this reliance on  physical power of            access understates the law's  requirements.  Although, as the            court   points  out,   a   lay   person's  understanding   of            "possession" is not  helpful, I cannot so easily sidestep our            and other courts' use of the word  "dominion," which connotes            ownership or a right to property.  Black's Law Dictionary 486                                               ______________________            (6th ed. 1990).                 More  importantly,  in  this  and  other  circuits,  the            caselaw  supports  a  reading  of "power"  as  the  right  or                                                                _____            authority to exercise control,  or dominion and control, over            _________            something not in one's actual  possession.  See United States                                                        ___ _____________            v. Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992); United               _____________                                       ______            States v. Latham, 874  F.2d 852, 861 (1st Cir.  1989); United            ______    ______                                       ______            States v. Lamare, 711  F.2d 3, 5-6 (1st Cir. 1983);  see also            ______    ______                                     ___ ____            United States v. Manzella,  791 F.2d 1263, 1266-67 (7th  Cir.            _____________    ________            1986) (Posner, J.) (defendant  "must have the right  (not the            legal  right, but  the recognized  authority in  his criminal            milieu) to possess [the drugs] . . . .  Mere association with            those  who possess  the drugs is  not good  enough."); United                                                                   ______            States  v. Tolliver,  780 F.2d  1177, 1183  (5th Cir.  1986),            ______     ________            vacated and remanded on other grounds, 479 U.S.  1074 (1987);            _______ ___ ________ __ _____ _______            United  States v.  Reese, 561  F.2d 894,  898 n.8  (D.C. Cir.            ______________     _____            1977).                                           -16-                                         -16-                 For  example,  in  Ocampo-Guarin,  we  found  sufficient                                    _____________            evidence of "power" to establish constructive possession of a            suitcase  and  the cocaine  inside  it,  where the  defendant            carried  baggage claim  tickets "which represented  her legal            right to reclaim the luggage."  986 F.2d at 1410.  Similarly,            in   United  States  v.  Lamare,  we   upheld  a  finding  of                 ______________      ______            constructive possession of  a firearm that  had been left  as            collateral for a towing charge owed by the defendant, because            the  defendant "could  have  taken actual  possession of  the            pistol  at any  time by paying  the towing  charge .  . . and            intended to do so."  711 F.2d at 5-6.                  The fact that contraband is located in a place specially            accessible to a  defendant may be  sufficient to establish  a            defendant's power  to exercise  dominion or control  over it,            and  thus support  a finding  of constructive  possession, if            there  is a  showing  that the  defendant  has the  right  or            authority to exercise control over the object at issue, or if            the record is silent  as to his  right or authority over  the            contraband.  But  here the  very facts  militating against  a            finding of  constructive possession  while Santos  and Zavala            were in the room together --  the fact that the drugs had not            been  paid for,  the fact  that Zavala  was not  the intended            recipient, and Santos' refusal to follow  Zavala's suggestion            to transfer  them to another  room -- effectively  refute any            presumption that Zavala had any claim on the drugs.                                           -17-                                         -17-                 None  of  the cases  cited by  the majority  support the            conclusion that, where knowledge is admitted or inferred, the            location of contraband  in a place specially  accessible to a            defendant,   without   more,  is   sufficient   to  establish            constructive possession.   For  example, in United  States v.                                                        ______________            Echeverri,  982 F.2d  675, 678  (1st Cir.  1993), it  was the            _________            "totality of the  circumstances" -- the  fact that drugs  and            drug paraphernalia were found in  plain view, only four  feet            from the defendant himself,  together with the fact that  the            contraband was found in  his apartment -- that  persuaded the            court that the  evidence was sufficient to support  a finding            of  constructive  possession.     And  in  United  States  v.                                                       ______________            Chapdelaine,  989 F.2d  28, 33-4 (1st  Cir. 1993),  the court            ___________            found defendant  in constructive possession of  bullets found            in his  bedroom closet based, in part,  on the fact that they            matched  those  in  a  firearm found  in  defendant's  actual            possession.                   In United  States v. Wight,  968 F.2d 1393,  1397 (1st                      ______________    _____            Cir.  1992),  the  single case  cited  by  the majority  that            approaches the  situation before us, a  jury convicted Wight,            the  passenger in a van  in which a  pistol was found between            the  driver's and  the  passenger's seat,  of possessing  the            pistol during  the drug trafficking crime,  but acquitted the            driver  of the  firearm  possession charge.    We upheld  the            finding  of Wight's  constructive possession of  the firearm,            noting  that based on evidence of Wight's leading role in the                                         -18-                                         -18-            drug transaction, "[i]t was reasonable for  the jury to infer            that he, and not [the driver], was in charge of the operation            and, as such,  exercised control over [the  driver], the van,            its contents, and the firearm."  Id. at 1398.                                               ___                 I find  more apposite the Seventh  Circuit's decision in            United States v.  DiNovo, 523 F.2d 197  (7th Cir. 1975).   In            _____________     ______            DiNovo, the court reversed a wife's conviction for possession            ______            of heroin, notwithstanding her cohabitation  with her husband            in  a trailer  where  2  pounds  of  heroin  and  other  drug            paraphernalia  were found.  Id.  at 201-02.   The court found                                        ___            that  even if the wife knew of her husband's drug possession,            this  did not  mean that  she possessed  the drugs,  absent a            showing of her right to exercise control over them.  Id.                                                                  ___                 To the extent that the court jettisons all idea of legal            right  or  practical claim  to  the  contraband and  assesses            "power" in  terms of  physical capacity  to seize, it  vastly            widens the  concept of constructive  possession.   Contraband            stored in the  locked box of a another  person could be found            within the power of  a defendant skilled in  the use of  lock            picking or explosives.  Or, in a case like Wight, the finding                                                       _____            as  to  constructive possession  would  turn  on whether  the            driver was bigger and tougher than the passenger.                 The same  weakness affects  the court's reasoning  as to            the  presence of intent to exercise  dominion over the drugs.            The particular intent is not, as  the court would have it, to            facilitate transfer of the drugs to their intended recipient,                                         -19-                                         -19-            his  presumed associate  Palestino.   The required  intent is            that defendant intends to exercise his claim of dominion over            the drugs, i.e., to take control  for himself.  So the court,            inmy view, stretches thecontours of both"power" and "intent."                 Finally, we should remember why  we are of divided views            about the  propriety of  extending the scope  of constructive            possession  beyond that  of any  apposite authority.    It is            because, as the court correctly notes, Zavala could have been            charged  with  conspiracy to  possess  drugs  with intent  to            distribute  them, or  with  aiding and  abetting  Palestino's            attempt to possess with intent to distribute.  But Zavala was            not so  charged; and the mere  fact that guilt is  in the air            should  not  allow us  to extend  the  reach of  the criminal            possession statute in these circumstances.  There needs to be            some meaningful distinction  between the crime of  conspiracy            to possess, and possession  itself.  The rule of  the present            case,  allowing   the   government  to   prove   constructive            possession  simply by having a confidential informant deposit            contraband in a  hotel room  shared with a  target, and  then            leave  the room with this person, with the arresting officers            waiting  until   the  door   shuts,  would  erode   any  such            distinction.                 I am  uncomfortable in  taking this significant  step --            particularly where  the  purpose  served  is to  bail  out  a            maladroit prosecution.  I therefore respectfully dissent.                                         -20-                                         -20-
