concluding there was sufficient evidence 53 for a conviction under 18 U.S.C. § 924 (c)(1)(A) where loaded handguns were found in the 54 bedroom where drugs were packaged and stored for sale and in close proximity to drug 55 paraphernalia, trace amounts of illegal narcotics, and drug proceeds
How later courts described this case
- concluding there was sufficient evidence 53 for a conviction under 18 U.S.C. § 924 (c)(1)(A) where loaded handguns were found in the 54 bedroom where drugs were packaged and stored for sale and in close proximity to drug 55 paraphernalia, trace amounts of illegal narcotics, and drug proceeds
- finding that defendant’s possession of a “loaded handgun[] . . . in the bedroom of [his] apartment where drugs were . . . stored for sale” was sufficient to support his section 924(c) conviction
- explaining that the “in furtherance” element is satisfied if the government establishes “the existence of a specific ‘nexus’ between the charged firearm and the charged drug selling operation”
- noting that a firearm’s connection with drug trafficking is evidenced by “the type of drug activity that is being conducted, accessibility of the firearm, the type of the weapon, whether the weapon is stolen, the status of the possession (legitimate or illegal), whether the gun is loaded, proximity to drugs or drug profits, and the time and circumstances under which the gun is found” (internal quotation marks omitted)
Written by the judges who cited it.
The opinion
POOLER, Circuit Judge,
concurring in part and dissenting in part.
While I agree with almost all of the majority opinion, I would find that the government presented insufficient evidence to support the conviction of Rahad Ross for possession of the cocaine found in the basement of 183 Sixth Street. Because I believe this case is not distinguishable from United States v. Rodriguez, 392 F.3d 539 (2d Cir.2004), I would follow our decision in that case and find insufficient evidence to support a theory of constructive possession. For this reason, I respectfully dissent from Part II-B of the majority opinion.
As the majority agrees, because there was no evidence that Ross actually physically possessed the cocaine, the government had to establish that he constructively possessed it. See United States v. Teague, 93 F.3d 81, 84 (2d Cir.1996). This requires the government to show that Ross “ ‘knowingly [had] the power to and the intention at [the] time to exercise dominion and control’ over the cocaine.” Id. (quoting United States v. Hastings, 918 F.2d 369, 373 (2d Cir.1990)). “[M]ere presence at the location of contraband does not establish possession.” Rodriguez, 392 F.3d at 548 .
Although the majority is correct that “presence under a particular set of circumstances” may be enough if those circumstances provide the jury with a reasonable basis to conclude the defendant exercised dominion and control over the cocaine, the circumstances here fall far short of those we have previously approved as sufficient to demonstrate constructive possession. Cf. United States v. Soto, 959 F.2d 1181, 1185 (2d Cir.1992). In fact, they are much more analogous to circumstances in which we have found the evidence of constructive possession insufficient. See Rodriguez, 392 F.3d at 548-49 .
In Rodriguez , we reversed a conviction for possession where the drugs were hidden in the backseat of the defendant’s car and he may have been in the backseat of the car shortly beforehand. Id. There are several factual similarities between Rodriguez and this case: the drugs were (1) hidden, (2) in a location over which the defendant may have had some control, (there his car, here an apartment he had rented), and (3) where the defendant had been shortly before the drugs were found (or at least his presence could be reasonable inferred). Based on Rodriguez , I would find we are compelled to conclude that presence at the location of hidden drugs, even when there is evidence that location is partially under the defendant’s control, is insufficient to support constructive possession.
Although the majority attempts to distinguish Rodriguez because there was no evidence that Rodriguez was involved in any drug trafficking, whereas here, there was ample evidence of Ross’ involvement in a drug conspiracy, Ross’ involvement in *74 the conspiracy does not lessen the government’s obligation to show possession of the specific drugs at issue. While Ross may be vicariously liable for these drugs as part of the conspiracy, a conviction for possession requires a more direct connection between the defendant and the drugs-he must have exercised dominion and control over them. Where, as here, the drugs are hidden, common sense dictates that this must involve at least some evidence that Ross knew the drugs were there. There was no such evidence here. 17
By contrast, in Soto , we upheld a conviction for possession of cocaine based on defendant’s presence in the apartment where the drugs were found because there were three cocaine packaging stations in operation in the apartment and three people, including the defendant, were found there. Unlike in Rodriguez , the drugs were not hidden but were out in plain view at the time of the search. 959 F.2d at 1185 ; see also United States v. Gordils, 982 F.2d 64, 71-72 (2d Cir.1992) (upholding conviction for possession where defendant was the only person present in the apartment and drugs were in plain view). 18 Because the drugs here were hidden rather than in plain view, expanding constructive possession to encompass the facts of this case requires an extension of our caselaw, and one that I believe is unwarranted.
For the foregoing reasons, I respectfully dissent from Section II-B of the majority opinion.
. Knowledge of the presence of hidden drugs cannot reasonably be inferred from Ross' flight from the apartment because that flight could have been for any number of reasons, including his knowledge that drug paraphernalia would be found there or simple fear of the police.
. The majority also relies on United States v. Benitez, 920 F.2d 1080, 1089 (2d Cir.1990), but the discussion of sufficiency in that case focuses almost entirely on the conspiracy and distribution, not constructive possession. Id. at 1088-89 .