                                                                            [PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT

                                                                            FILED
                                          No.97-4896          U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                                                     02/11/99
                                                                 THOMAS K. KAHN
                             D. C. Docket No. 96-8091-CR-DTKH         CLERK


       UNITED STATES OF AMERICA,

                                                                             Plaintiff-Appellee,

                                             versus

       JONATHAN S. EDWARDS,

                                                                          Defendant-Appellant.



                          Appeal from the United States District Court
                              for the Southern District of Florida


                                      (February 11, 1999)




Before TJOFLAT and DUBINA, Circuit Judges, and SMITH*, Senior Circuit Judge.

______________________________________________
*Honorable Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit, sitting by
designation.
TJOFLAT, Circuit Judge:

       The defendant, Jonathan Edwards, was convicted of one count of possession with intent

to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Because the Government

failed to prove its case, we reverse.



                                                 I.

       Patrick Flannery, a West Palm Beach police officer, was working undercover as a

narcotics supplier as part of a “reverse sting” operation. An informant put him in touch with

Edwards, and the two arranged to meet at a local restaurant. At the meeting, Flannery and

Edwards discussed the possibility of a narcotics sale; the next day, the two negotiated a deal in

which Edwards agreed to pay $8000 for one-half kilogram of crack cocaine.

       Flannery and Edwards met in a parking lot – under the watchful eye of a group of DEA

agents – to complete the deal. Flannery walked over to Edwards’ car and asked to see the money

for the purchase; Edwards responded by flashing a bundle of cash. Edwards then followed

Flannery back to his car, where Flannery opened the trunk and pointed to a manila envelope

containing one-half kilogram of crack cocaine. Edwards reached into the trunk, picked up the

envelope, and pulled out the inner plastic bag containing the cocaine. After inspecting the

contraband, Edwards slid the plastic bag back into the envelope, returned the envelope to




                                                 2
Flannery’s trunk, and said, “Let’s go for a ride.”1 Flannery closed the trunk, and, as he and

Edwards were getting into Flannery’s car, Flannery contacted the DEA agents (via cellular

telephone) who proceeded to arrest Edwards.

       Edwards was tried before a jury in the United States District Court for the Southern

District of Florida. At the conclusion of the Government’s case, Edwards moved pursuant to

Fed. R. Crim. P. 29 for a judgment of acquittal. The district court reserved ruling on the motion

until the close of the evidence, at which time the motion was denied. The case then went to the

jury, which convicted Edwards as charged.



                                                II.

       In order to convict a defendant for possession with intent to distribute a controlled

substance, the Government must establish that the defendant possessed the controlled substance.

Possession can be either actual or constructive. A defendant has actual possession of a substance

when he has direct physical control over the contraband. See United States v. Munoz, 150 F.3d

401, 416 (5th Cir. 1998).2 The only point at which Edwards had any physical control over the

cocaine was when he picked up the manila envelope and briefly inspected its contents. We have

previously held that mere inspection of contraband, standing alone, is not sufficient to establish


       1
         According to Edwards’ post-arrest statement, he planned to deliver the cocaine to his
partner at a nearby gas station.
       2
           Munoz, like many other cases on the topic of possession, defines actual possession as
including knowledge – the defendant must “knowingly” have direct physical control over the
contraband. Such a definition conflates the possession element of the offense with the mens rea
element of the offense. It is quite possible to have possession of an object without knowing what
it is, or even knowing that you possess it. For criminal culpability to attach, however, the
possession must be knowing.

                                                 3
possession. See United States v. Derose, 74 F.3d 1177, 1186 (11th Cir. 1996); see also United

States v. Kitchen, 57 F.3d 516, 524 (7th Cir. 1995). Edwards therefore never had actual

possession of the cocaine.

        In the absence of actual possession, the Government must prove constructive possession.

A defendant has constructive possession of a substance when he has some form of control other

than direct physical control. See United States v. Pruitt, 763 F.2d 1256 (11th Cir. 1985). For

instance, a defendant has constructive possession of a substance if it is being held by an agent of

the defendant, or if it is in a safe deposit box to which the defendant has the key, or if it is in a

cookie jar at the defendant’s house. The Government contends that Edwards had constructive

possession of the cocaine while it was in Flannery’s trunk. We disagree. The cocaine was in a

locked automobile trunk to which only Flannery had the key. Edwards had no access to the

cocaine except through Flannery. Thus, the only way Edwards could have had constructive

possession would be if Flannery were Edwards’ agent. There is nothing in the facts of this case

to suggest that Flannery – a narcotics officer – was under the control of Edwards. We therefore

find no constructive possession.

        Because Edwards was not in possession of the cocaine, he could not be found guilty of

possession with intent to distribute.3 Therefore, Edwards’ conviction and sentence are

VACATED and the case is REMANDED with the instruction that the district court enter an


        3
         Edwards was also charged with aiding and abetting possession with intent to distribute
crack cocaine, in violation of 18 U.S.C. § 2. His conviction cannot be sustained on that ground,
however, because no one committed the underlying offense – Edwards had the intent to
distribute, but never had possession; Flannery had possession, but never had the intent to
distribute. See United States v. Martin, 747 F.2d 1404, 1407 (11th Cir. 1984) (reversing the
defendant’s aiding and abetting conviction in the absence of evidence that the principal offense
was committed).

                                                   4
order dismissing the indictment.




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