                         United States Court of Appeals,

                                  Eleventh Circuit.

                                      No. 94-8730.

              UNITED STATES of America, Plaintiff-Appellee,

                                              v.

         Donald DEROSE, Roberta Ould, Defendants-Appellants.

                                      Feb. 14, 1996.

Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-236), Jack T. Camp, Judge.

Before HATCHETT and CARNES, Circuit Judges, and OWENS*, Senior
District Judge.

     HATCHETT, Circuit Judge:

     A    jury      in   the    Northern       District    of     Georgia     convicted

appellants,      Roberta       Ould    and    Donald   Derose,     of   one      count   of

possession     with      intent    to    distribute      marijuana.         On    appeal,

appellants argue that the Speedy Trial Act and the Sixth Amendment

barred their prosecution;              they also challenge the sufficiency of

the evidence that supports their convictions.                     We reverse.

                                             FACTS

     Ould and Derose's indictment and conviction stem from a

reverse sting operation DEA Agent Frank Smith conducted while

acting   in    an    undercover         capacity.        Agent    Smith     utilized      a

confidential        informant         who,    at     Smith's     direction,       advised

individuals in the community that she knew of someone who wanted to

sell marijuana.           Ould subsequently contacted the confidential

informant and informed her that she had located a buyer who wanted


     *
      Honorable Wilbur D. Owens, Jr., Senior U.S. District Judge
for the Middle District of Georgia, sitting by designation.
to purchase marijuana.         Ould and the confidential informant made

arrangements for the buyer, Derose, to meet Agent Smith at the

Atlanta, Georgia, home of Ould's mother.

       Ould, Agent Smith and the confidential informant met at Ould's

mother's home on July 23, 1991.          Agent Smith informed Ould that,

due to safety considerations, he did not have the marijuana with

him, but had stored it at a nearby location.              Derose then entered

the kitchen where the parties were located, and Ould introduced

Agent Smith to Derose.    Derose and Agent Smith left the kitchen and

continued their conversation in the garage where Derose asked Agent

Smith whether he had the marijuana with him.               Agent Smith again

replied that he had stored the marijuana at a nearby location.

When   Agent   Smith   asked    Derose   if   he   had    the   money   for   the

marijuana, Derose showed Agent Smith a paper bag containing a large

quantity of money.      Ould then entered the garage and the parties

began a discussion about the transfer of the marijuana.

       Agent Smith informed Ould and Derose that the marijuana was

located in a vehicle in a nearby parking lot and that once they

arrived at the parking lot, he would give them the key to the

vehicle so they could use the vehicle to transport the marijuana to

Ould's mother's house.          Agent Smith also stated that once the

transfer of marijuana was completed, he would return to Ould's

mother's house to retrieve the vehicle.                  Agent Smith and the

confidential informant left Ould's mother's house in the agent's

vehicle, and Ould and Derose followed them in another vehicle to a

MARTA station parking lot.        In the parking lot, Agent Smith again

asked Derose if he could see the money for the marijuana, and
Derose showed him a paper bag that Agent Smith believed contained

approximately $70,000 to $80,000.      After showing Agent Smith the

money, Derose exited the vehicle, and stated that the paper bag

contained $70,000 and that he had given Ould $5,000.

     Agent Smith then handed Derose the key to the rear compartment

of a Ford Bronco containing the marijuana and informed Derose that

he could inspect the marijuana to see if he liked it.     Agent Smith

also told Derose that if he did not like the marijuana, he would

give Derose a couple of bucks so that he could head back up the

road.     Derose walked over to the Bronco, opened the rear window,

and inspected the packages of marijuana.       After Derose completed

the inspection of the marijuana, he took the key out of the lock

and walked away.       Agent Smith then gave the arrest signal to

previously positioned law enforcement officers who arrested Derose

in the parking lot and Ould in the vehicle.      A search of Ould and

Derose's vehicle produced a paper bag containing $70,000 and an

additional $5,000 in the glove compartment.          Law enforcement

officials videotaped the transaction in the parking lot.

                          PROCEDURAL HISTORY

        On July 23, 1991, the day of the arrest, the government filed

a criminal complaint charging Derose and Ould in connection with

their unsuccessful attempt to procure marijuana. On July 25, 1991,

a magistrate judge conducted a probable cause hearing, found

probable cause, but released Derose and Ould on bond subject to

pretrial supervision.     One year and four days after the arrest, on

July 27, 1992, the government filed a motion to dismiss the

complaint.     The magistrate judge entered an order dismissing the
complaint on July 30, 1992.            On May 19, 1993, the government

obtained an indictment charging Ould and Derose with one count of

conspiracy to possess with intent to distribute marijuana, in

violation of 21 U.S.C. § 846, and one count of possession with

intent to distribute marijuana, in violation of 21 U.S.C. § 841.

       In June 1993, Derose and Ould filed a motion to dismiss the

indictment asserting that although the magistrate judge did not

specify whether the dismissal of the original complaint was with

prejudice, the dismissal should have been entered with prejudice

based on a violation of the Speedy Trial Act, 18 U.S.C.A. § 3161 et

seq.   (West    1985),    and   the   Due   Process    Clause   of    the    Fifth

Amendment.      Derose and Ould also asserted that the indictment

should be dismissed for violating the Sixth Amendment's guarantee

of a speedy trial.          Following a hearing, the magistrate judge

recommended that the complaint be dismissed with prejudice.                      The

magistrate judge noted that the one-year delay between the probable

cause hearing and the dismissal of the complaint was attributable

to the "gross negligence" of the assistant United States attorney

assigned to the case.           The magistrate judge did not recommend,

however, that the entire indictment be dismissed;                    rather, the

magistrate judge recommended that only the charge contained in the

dismissed complaint—the conspiracy charge—should be dismissed and

that   the     defendants   should     stand   trial    on    the    substantive

possession count.        The magistrate judge also rejected Derose and

Ould's   argument    that    the   substantive   count       contained      in   the

indictment should also be dismissed because it merely "gilded" the

conspiracy count on the grounds that the substantive and conspiracy
charges were distinct offenses.          Lastly, the magistrate judge,

relying on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d

101 (1972), rejected the appellants' Sixth Amendment claim on the

merits.    The magistrate judge found that the length of delay,

reason for the delay, and the defendant's assertion of the right

each weighed slightly in Derose and Ould's favor, but concluded

that they had not demonstrated prejudice as a result of the

government's delay in prosecuting them.           The magistrate judge

reasoned that no prejudice existed because the reliability of the

evidence consisting of Agent Smith's eyewitness testimony and audio

and   videotapes   had   not   been   eroded.   Derose   and    Ould   filed

objections to the magistrate judge's report and recommendation that

the substantive count should not be dismissed.

      The district court overruled Ould and Derose's objections and

adopted the magistrate judge's report and recommendation.               The

district court agreed with the magistrate judge's conclusion that

the original indictment contained only a conspiracy charge, and

that the gilding exception did not apply because the substantive

and conspiracy charges contained separate elements.            The district

court also found that the Sixth Amendment right to a speedy trial

was not implicated in this case because Derose and Ould were not

accused of the substantive offense until the indictment was handed

down, and because the length of time between the indictment and the

trial—eight months—did not trigger a Sixth Amendment inquiry.

Alternatively, the district court rejected the Sixth Amendment

claim on the merits.

      On January 13, 1994, Ould and Derose's trial commenced in the
United States District Court for the Northern District of Georgia.

The jury returned a guilty verdict as to the sole remaining count

of the indictment, possession with intent to distribute marijuana,

on January 19, 1994. The district court sentenced Ould to eighteen

months in prison and a three-year term of supervised release.

Derose   received   a   twenty-four     month   prison    sentence   and    a

three-year term of supervised release.          The district court also

ordered him to pay a fine of $4,000.

                                  ISSUES

     The issues are:    (1) whether the indictment should have been

dismissed as a violation of the Speedy Trial Act because the

complaint contained the substantive charge;        (2) whether the lower

court erred in rejecting appellants' Sixth Amendment claim;                and

(3) whether the evidence was sufficient to support appellants'

convictions.

                                CONTENTIONS

     First, Ould and Derose contend that the initial complaint also

contained the substantive possession charge because the complaint

cited the substantive statute, 21 U.S.C. § 841(a)(1), and, as

required, tracked its statutory language on the complaint form.

Alternatively,   they   argue    that   this    court    should   adopt    the

reasoning of United States v. Nixon, 634 F.2d 306 (5th Cir.1981),

and recognize a "gilding" exception to the general rule that the

Speedy Trial Act requires only the dismissal of a charge contained

in a dismissed complaint. Second, Ould and Derose contend that the

substantive count "gilded" the conspiracy count.

     Next, Ould and Derose contend that the Sixth Amendment's
speedy trial limitations apply to preindictment delay once a

defendant has been accused.           They assert that the date of their

arrest constitutes the starting point for the Sixth Amendment

inquiry   and    that   the   Sixth   Amendment   applies   to   all   charges

resulting from their alleged criminal conduct.

     Ould and Derose take issue with the weight the district court

attributed to two of the Barker factors: the defendant's assertion

of the right and reasons for the delay.           They also assert that the

district court erroneously held them to a higher burden of proof as

to the fourth Barker factor—prejudice to the defendant—when it

required a showing of significant actual prejudice. Lastly, Derose

and Ould argue that Derose's mere possession of the key to the

Bronco does not indicate that he had dominion or control over the

marijuana.      They claim that Derose never indicated to Agent Smith

that the two had reached an agreement, and that his inspection of

the marijuana constituted an insufficient basis for the finding

that he had actual or constructive possession of the marijuana.

     The government contends that the initial complaint contained

only the conspiracy charge. It argues that the legislative history

of the Speedy Trial Act suggests that the dismissal sanction should

not be applied to subsequent charges merely because they arise from

the same criminal transaction as those offenses charged in the

original complaint.      The government acknowledges that some courts

have recognized a "gilding" exception to the Speedy Trial Act, but

asserts that this court has never expressly adopted or applied this

exception.      Alternatively, the government asserts that the gilding

exception is inapplicable to this case because the conspiracy and
substantive charges are separate and distinct offenses requiring

proof of different elements.

       The government also contends that the Sixth Amendment does not

apply to this case because the appellants were not "accused" of the

substantive charge until the grand jury handed down the indictment

on May 19, 1993, ten months after the dismissal of the complaint.

Additionally,     the   trial   on   the   substantive   possession   charge

commenced less than eight months after the date of the indictment

and was, therefore, four months shy of the one-year delay period

that has traditionally triggered the Sixth Amendment inquiry.

Alternatively, the government argues that Ould and Derose's Sixth

Amendment claim fails on the merits. Lastly, the government argues

that because Derose possessed the key to the Bronco and reached

into     the   Bronco   and   inspected    the   marijuana,   he   exercised

sufficient dominion and control to constructively possess the

drugs.

                                  DISCUSSION

A. The Speedy Trial Act

         The Speedy Trial Act requires the government to file an

indictment within thirty days from the date of the arrest or

service of the summons.         18 U.S.C.A. § 3161(b) (West 1985).       The

government's failure to comply with this provision may lead to the

dismissal of the charge against the defendant:

       If, in the case of any individual against whom a complaint is
       filed charging such individual with an offense, no indictment
       or information is filed within the time limit required by
       section 3161(b) ... of this chapter, such charge against that
       individual contained in such complaint shall be dismissed or
       otherwise dropped.

18 U.S.C.A. § 3162(a)(1) (West 1985) (emphasis added). A dismissal
with prejudice, however, is not mandated upon a showing that the

government failed to comply with the provisions of section 3161(b).

Rather, section 3162(a) requires the district court to balance the

statutory factors enumerated in that section in order to determine

whether the government's preindictment delay merits a dismissal

with prejudice.         United States v. Godoy, 821 F.2d 1498, 1505 (11th

Cir.1987);       18 U.S.C.A. § 3162(a) (West 1985).                 After considering

the statutory factors, the choice of sanction is committed to the

sound discretion of the district court.                 Godoy, 821 F.2d at 1505.

        The parties do not challenge the district court's ruling that

the original complaint contained a conspiracy charge that should be

dismissed       with     prejudice       as    a   result    of     the    government's

preindictment delay.            Derose and Ould, however, contend that the

complaint       also    contained    a    substantive       charge—possession        with

intent     to    distribute—that          should    have     been    dismissed       with

prejudice.       Whether Derose and Ould should have been subjected to

trial    on     the     indictment's      second     count    charging       them    with

possession       with    intent    to    distribute     marijuana         depends   on    a

determination of whether the original complaint contained the

substantive charge. See 18 U.S.C.A. § 3162(a)(1) (West 1985). The

district      court     found    that    the   complaint     did    not    contain    the

substantive charge.             We review factual determinations for clear

error.    United States v. Dyal, 868 F.2d 424, 426 (11th Cir.1989).

        The July 23, 1991 criminal complaint against Derose and Ould

alleged that they did "conspire to violate 21 U.S.C. section

841(a)(1), in that the defendants did knowingly and intentionally

possess with intent to distribute a controlled substance...."                            We
agree with the district court's factual finding that the "best

reading" of the complaint is that it contains only a conspiracy

charge.    Admittedly, the complaint tracked the statutory language

of 21 U.S.C. § 841(a)(1) when it alleged that they "did knowingly

and intentionally possess with intent to distribute a controlled

substance."     We reject, however, Derose and Ould's assertion that

the mere presence of the statutory language of the substantive

offense demonstrates that the complaint contained the substantive

charge. A conspiracy allegation must state the substantive offense

that the defendants conspired to violate.              See United States v.

Stanley, 24 F.3d 1314, 1319 (11th Cir.1994) (to prove conspiracy,

the government must demonstrate that two or more persons agreed to

commit    the   substantive    offense);       see   also   United   States   v.

Pollock, 926 F.2d 1044, 1049 (11th Cir.1991). The district court's

conclusion that the complaint contained only the conspiracy charge

did not constitute clear error.

B. Gilding Exception to the Speedy Trial Act

         Ould   and   Derose   invite   this   court   to   adopt    a   gilding

exception to the general rule that the Speedy Trial Act requires

dismissal of only the charge contained in the complaint. They rely

on United States v. Nixon, 634 F.2d 306, 309 (5th Cir.1981).1                 The

Nixon court stated that " "[i]f the crimes for which a defendant is

ultimately prosecuted really only gild the charge underlying his

initial arrest and the different accusatorial dates between them

     1
      Decisions of the United States Court of Appeals for the
Fifth Circuit handed down prior to the close of business on
September 30, 1981, are binding precedent on the Eleventh
Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir.1981) (en banc ).
are not reasonably explicable, the initial arrest may well mark the

speedy trial provision's applicability as to prosecution for all

the interrelated offenses.' "       Nixon, 634 F.2d at 309 (quoting

United States v. DeTienne, 468 F.2d 151 (7th Cir.1972),            cert.

denied, 410 U.S. 911, 93 S.Ct. 974, 977, 35 L.Ed.2d 274 (1973)).

Ould and Derose concede that the court in Nixon refused to apply

the gilding exception to the facts of that case;         however, they

assert that this case is more suitable for its application.           We

disagree.

     Initially, we note that we do not decide whether a gilding

exception is even applicable to the Speedy Trial Act.               But,

assuming that such an exception exists, it would be inapplicable to

the facts of this case.        Nixon involved an initial arrest and

subsequent voluntary dismissal on a charge of counterfeiting, and

a subsequent indictment on a perjury charge arising from the

defendant's testimony to a grand jury investigating the original

counterfeiting   allegation.    The court in     Nixon   rejected    the

defendant's assertion that the Speedy Trial Act barred his later

prosecution on the perjury charge on the grounds that the perjury

charge gilded the counterfeiting charge:       "Even though proof of

perjury must rely in part on the same facts as would support a

counterfeiting charge, perjury is a distinct and separate offense."

Nixon, 634 F.2d at 309.

     Ould and Derose attempt to distinguish this case from Nixon by

arguing that the conspiracy and substantive counts in the complaint

against them arose from the same events and that both charges are

contained   in   the   complaint.   They   contend,   therefore,    that
application of the gilding exception is appropriate here because

the two counts are not separate and distinct.                 This argument

suggests that Congress intended the Speedy Trial Act's dismissal

sanction to apply when a later complaint is filed that arose out of

the same transaction or occurrences that provided the basis for an

earlier complaint which was dismissed.              Moreover, the argument

suggests that conspiracy charges necessarily guild the substantive

offense due to the inability to divorce conspiracy allegations from

substantive offenses. The appellants' argument lacks merit for two

reasons.     First, Congress considered and declined to follow the

suggestion that the Speedy Trial Act's dismissal sanctions should

be applied to a subsequent charge if it arose from the same

criminal transaction or event as those detailed in the initial

complaint or were known or reasonably should have been known at the

time of filing the initial complaint. United States v. Napolitano,

761   F.2d   135,    137-38     (2d   Cir.1985)     (citing   A.    Partridge,

Legislative History of Title I of the Speedy Trial Act of 1974, pp.

194-95,    Federal   Judicial    Center,   1980).      Second,     it   is   well

established that conspiracies and substantive offenses are separate

and distinct offenses requiring proof of different elements. E.g.,

Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 325, 5

L.Ed.2d 312 (1961). Thus, it is questionable whether a substantive

offense can ever gild a conspiracy charge, since they are separate

and distinct offenses.

      Although we are not deciding whether a gilding exception is

even applicable to the Speedy Trial Act, we note that this court's

decision in United States v. Brooks, 670 F.2d 148 (11th Cir.1982),
raises some doubt about the vitality of the gilding exception in

this circuit.       In       Brooks, an inmate in a federal prison, while

being    escorted    to       administrative   detention   for    threatening   a

correction officer, assaulted another correction officer.                   The

inmate    received       a    thirty-five   day   sentence   in    disciplinary

segregation for his initial infraction of threatening a correction

officer.     During the inmate's thirty-five days in disciplinary

segregation, another investigation began involving the assault on

the second correction officer, which resulted in a federal grand

jury indictment four months after that incident.             The inmate moved

to dismiss the indictment contending that the four-month interval

between the commission of the offense and the indictment violated

the Speedy Trial Act.             The inmate argued that his placement in

disciplinary segregation during an FBI investigation of his assault

on the second correction officer constituted an "arrest" and that

the four month delay between the time of his segregation and the

issuance of the indictment violated the Speedy Trial Act.

       This court agreed with the district court's rejection of the

inmate's Speedy Trial Act motion on the ground that neither the

administrative nor disciplinary segregation placed the inmate in

the status of an accused so as to trigger the inmate's Sixth

Amendment speedy trial rights or his right under the Speedy Trial

Act.     Brooks, 670 F.2d at 151.           This court also agreed with the

district court's finding that officials placed the inmate in

disciplinary segregation because of his initial infraction of

threatening the correction officer and not for his assault upon the

correction officer.            In affirming the district court's rulings,
this court stated that "an arrest triggers the running of section

3161(b) of the Speedy Trial Act only if the arrest is for the same

offense for which the accused is subsequently indicted."                 Brooks,

670 F.2d at 151 (emphasis added).         Thus, this passage raises some

doubt as to the viability of the gilding exception in this circuit.

While we do not decide the fate of the gilding exception in this

ruling, we agree with the district court's conclusion that the

substantive offense contained in the indictment did not gild the

conspiracy charge found in the complaint.

C. Sixth Amendment Speedy Trial Guarantee

       Ould   and    Derose   contend    that   the     delay   in     this   case

constituted a violation of their constitutional right to a speedy

trial under the Sixth Amendment. They argue that the Supreme Court

has interpreted the Sixth Amendment to limit preindictment delay

once a defendant has been accused.              See Dillingham v. United

States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975).                     They

also argue that because their indictment for the substantive

offense of possession arose from the same activities that formed

the basis of their earlier arrest for conspiracy, their Sixth

Amendment   speedy   trial    rights    attached   on    the    date    of    their

original arrest.     We disagree.

     In Dillingham, the defendants were arrested or "accused" on

charges of automobile theft in violation of 18 U.S.C. §§ 371, 2312,

and 2313. The defendants were indicted twenty-two months after the

arrest on those same charges.           The Supreme Court found a Sixth

Amendment violation.     Dillingham, 423 U.S. at 65, 96 S.Ct. at 304.

In this case, however, Ould and Derose were originally charged with
conspiracy under 21 U.S.C. § 846 in July 1991.                       These charges were

dismissed in July 1992, but the government subsequently obtained an

indictment       in    May     of    1993   on   conspiracy        and   the   substantive

possession charge.             Since the district court ultimately dismissed

the conspiracy charge, Ould and Derose may only claim a Speedy

Trial Act violation for the possession charge. Notwithstanding the

fact that proof of the possession charge relied on the same facts

that supported the conspiracy charge, possession is a distinct and

separate offense. Callanan v. United States, 364 U.S. 587, 593, 81

S.Ct. 321, 325, 5 L.Ed.2d 312 (1961).                      Therefore, Derose and Ould

were not "accused" of the possession charge until the May 1993

indictment.       The Sixth Amendment's Speedy Trial Clause does not

attach before a defendant is accused or arrested. United States v.

Marion, 404 U.S. 307, 317, 92 S.Ct. 455, 462, 30 L.Ed.2d 468

(1971).

          The record also shows that the delay between the time of

Derose and Ould's accusation and arrest and their trial for the

possession charge was approximately eight months. This eight-month

delay is insufficient to merit a Sixth Amendment speedy trial

violation inquiry. See Doggett v. United States, 505 U.S. 647, 652

n.   1,    112    S.Ct.      2686,     2691      n.   1,    120    L.Ed.2d     520   (1992)

(recognizing that preaccusation delay approaching one year is the

point at which courts deem the delay presumptively prejudicial and

unreasonable          enough    to    trigger     the      Sixth   Amendment    inquiry).

Therefore, Ould and Derose have not demonstrated that their Sixth

Amendment rights to a speedy trial have been implicated.

D. Sufficiency of the Evidence
         Finally, Ould and Derose challenge the sufficiency of the

evidence used to convict them.           They argue that the evidence was

insufficient to show that Derose had "possession" of the marijuana.

They argue that at best the evidence shows that he had access to

the marijuana rather than actual or constructive possession.                 We

review    the   sufficiency   of   the   evidence   de   novo,    viewing   all

reasonable      inferences    in   the   light   most    favorable    to    the

government.      United States v. Ramsdale, 61 F.3d 825, 828 (11th

Cir.1995).

      We must decide whether the evidence in the record shows that

Derose had actual or constructive possession.             In order to find

that a defendant has actual possession, we must find that the

defendant either had physical possession or that he had actual

personal dominion over the thing allegedly possessed.                   United

States v. Wynn, 544 F.2d 786, 788 (5th Cir.1977).                The record is

devoid of any evidence demonstrating that Derose either physically

placed marijuana in or removed marijuana from the back of the

vehicle.    Moreover, the record does not show that Derose actually

drove the vehicle containing marijuana or possessed a key to the

ignition of that vehicle. Therefore, the evidence in the record is

insufficient to find that Derose had actual possession of the

marijuana.

         Derose's conviction may be upheld, however, if the record

reveals that he had constructive possession of the marijuana.

Constructive possession exists when a person "has knowledge of the

thing possessed coupled with the ability to maintain control over

it or reduce it to his physical possession even though he does not
have actual personal dominion." Wynn, 544 F.2d at 788. Similarly,

a court may find constructive possession by finding ownership,

dominion, or control over the contraband itself or dominion or

control over the premises or the vehicle in which the contraband

was concealed.    United States v. Martinez, 588 F.2d 495, 498 (5th

Cir.1979).   The government, relying on    Martinez, contends that

Derose was in constructive possession of the marijuana at the

moment he received the key to the vehicle containing the marijuana.

     In Martinez, the defendant was pulled over by a Border Patrol

agent. Minutes before the defendant was pulled over, the agent had

stopped another vehicle driven by one Harmon.        Harmon's vehicle

reeked of marijuana, and the agent suspected that the marijuana was

contained in the trunk of the vehicle.    Harmon stated that he did

not have a key to the trunk of the vehicle, and he also indicated

that he knew the defendant who the agent suspected was following

Harmon.   The agent asked the defendant if he had a key to Harmon's

vehicle, and the defendant indicated that he did.      The agent took

the keys from the defendant and opened both the trunk of Harmon's

vehicle and the two chests contained in the trunk.    The agent found

marijuana.   The court found that the defendant was in constructive

possession of the marijuana found in Harmon's vehicle by virtue of

his possession of the keys to the trunk and chests.     Martinez, 588

F.2d at 498-99.

     In this case, however, Agent Smith provided Derose with a key

to the back hatch of the truck containing marijuana.       The record

shows that this key would not have started the vehicle, but only

operated the back window.      Moreover, the record revealed that
Derose, using the key, lowered the window, inspected the marijuana,

and raised the window after which time he began to walk away.

Derose did not own the vehicle;    it was government property used as

part of the sting operation.

     A more telling aspect of this transaction which militates

against finding that Derose had constructive possession is the

absence of any evidence indicating the consummation of a deal to

purchase the marijuana.    The lack of an agreement between Derose

and Agent Smith to actually sell or transfer the marijuana to

Derose removes the indicia of "constructive possession" which may

have arisen from Derose's mere possession of the key.        Since the

record shows that Derose neither agreed to purchase the marijuana

before he received the key to the vehicle to inspect the marijuana

nor signaled his acceptance after briefly inspecting the marijuana,

we cannot find that he had dominion or control over the vehicle or

marijuana or that he had the ability to reduce the marijuana to his

actual   possession.2     Since   the   evidence   against   Derose   is

insufficient to sustain his conviction for possession of marijuana,

Ould's conviction for aiding and abetting him cannot stand.

                             CONCLUSION

     For the foregoing reasons, we reverse the convictions of

Donald Derose and Roberta Ould.


     2
      We do not hold that receipt of a key coupled with an
inspection of a vehicle containing drugs or other illegal
substances can never form a basis for deeming a person to be in
constructive possession. See United States v. Martorano, 709
F.2d 863, 871 (3d Cir.1983) (finding a defendant to be in
constructive possession when he possessed a key to a vehicle
containing a controlled substance and had previously entered into
an agreement to purchase and transfer drugs).
REVERSED.
