United States v. William A. Raper, United States of America v. Eli B. Childs, Jr.

HARRY T. EDWARDS, Circuit Judge,

concurring in part and dissenting in part:

On the record at hand, I agree that there is no basis upon which to upset the conviction of appellant Childs. I therefore concur in the result reached by the majority affirming Childs’ conviction of unlawful possession of heroin with intent to distribute.

As to appellant Raper, I agree with the conclusion in the majority opinion that “the jury could properly have found that the testimony . . . justified a finding that Raper was in constructive possession of Childs’ heroin with intent to distribute.” At 848 (emphasis added). As we noted in United States v. Pardo, 636 F.2d 535 (D.C.Cir.1980), in order to find constructive possession, “[tjhere must be some action, some word, or some conduct that links the individual to the narcotics and indicates that he had some stake in them, some power over them. There must be something to’ prove that the individual was not merely an incidental bystander.” Id. at 549 . In this case, there was more than enough evidence for the jury to conclude that Raper was “an integral participant in the [drug] transaction, [and] that ‘in some discernible fashion’ he had ‘substantial voice vis-a-vis the drug.’ ” Id. at 548 (quoting United States v. Staten, 581 F.2d 878, 884 (D.C.Cir.1978)). I think that it would be unrealistic — indeed, naive — to suggest that a jury could not find constructive possession in a situation like the one posed here. The jury obviously concluded that Raper was a joint participant in an illicit drug sale; given this, the jury properly could find joint dominion or control over the drugs. 1

I am troubled, however, by the additional holding of the majority, that “the evidence is sufficient to support a jury finding that Raper aided and abetted Childs’ unlawful possession with intent to distribute.” At 848 (emphasis added). In particular, I reject the suggestion in the majority opinion that “[possession ... is not an absolute element that must be shown to justify a *854 conviction for aiding and abetting possession with intent to distribute.” Id. at 850. This suggestion is unnecessary to the decision in this case, and I believe it is wrong as a matter of law.

As noted in United States v. Longoria, 569 F.2d 422, 425 (5th Cir. 1978),

in a prosecution for aiding and abetting possession of cocaine with intent to distribute, there must be evidence connecting the defendant with both aspects of the crime, possession and intent to distribute.

Even more to the point is the ruling in Mack v. United States, 326 F.2d 481 (8th Cir.), cert. denied, 377 U.S. 947 , 84 S.Ct. 1355 , 12 L.Ed.2d 309 (1964):

The government .. . may not short-circuit its proof of possession as to appellant on the theory that he aided and abetted the principal offender in whom possession of the drug existed.... [A]ctual or constructive possession of the aider and abetter must be proven:

“Otherwise, an aider and abetter would be required to explain away not his possession but the possession of another.”

326 F.2d at 484 (quoting Lucero v. United States, 311 F.2d 457, 459 (10th Cir. 1962), cert. denied, 372 U.S. 936 , 83 S.Ct. 883 , 9 L.Ed.2d 767 (1963)). 2

The majority seeks solace in the opinion of Judge Gibson in United States v. Wiebold, 507 F.2d 932 (8th Cir. 1974). Despite the claim by the majority to the contrary, the decision in Wiebold is not at odds with aforecited holdings in Longoria or Mack . In Wiebold , the defendant argued that the Government had to establish a “prior agreement” between the actual distributor of the drug and himself in order to establish “aiding and abetting” in violation of 18 U.S.C. § 2 . 507 F.2d at 933-34 . Although the court properly rejected this contention, it nevertheless confirmed that there must be clear evidence connecting the defendant with both aspects of the crime, possession and intent to distribute:

We think the evidence is sufficient to establish defendant’s association and participation in the venture. The evidence showed that Wiebold acted as a supplier of LSD to Nickels. Nickels, occasionally accompanied by his companion-in-crime, Hoffarth, would travel to Denver, Colorado, where he would receive a quantity of LSD tablets from Wiebold. Nickels and Hoffarth would then sell the tablets in the Omaha, Nebraska, area, paying Wiebold for the tablets out of the proceeds of these sales ....

Whether the jury considered that Wiebold was associated with Nickels in a joint venture or that he merely delivered the LSD on consignment, the evidence was sufficient to establish Wiebold’s knowing association and participation in Nickels’ possession of LSD with intent to distribute.

507 F.2d at 934 .

Just as in this case, the facts in Wiebold indicate that the defendant was a joint participant in an illicit drug sale, plainly connected with both the unlawful “possession” and the unlawful “distribution.” Absent such evidence, it is impossible to comprehend the meaning of a charge of “aiding and abetting” unlawful possession (as distinguished from aiding and abetting unlawful distribution).

The point here made was highlighted in United States v. Jackson, 526 F.2d 1236 (5th Cir. 1976). After a jury trial, defendant Jackson was convicted on a one count indictment of aiding and abetting possession with intent to distribute cocaine in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2 (the same two statutory provisions at issue here). On appeal, the Fifth Circuit reversed the conviction:

*855 Evidence presented at trial established that Jackson introduced co-defendant Bischoff to co-defendant Thurman. In turn, Thurman and Bischoff arranged to sell the cocaine in question to Drug Enforcement Administration agents, who arrested them both after weighing and testing the drug. Jackson did not exercise dominion or control over the cocaine, but he was associated with the criminal venture, participated in it as in something he wished to bring about, and sought by his action to make it succeed .... He was improperly indicted under the possession clause of 21 U.S.C. § 841 (a)(1), because although the evidence was sufficient to sustain an aiding and abetting charge of distribution under § 841(a)(1), it fails to establish Jackson’s aiding and abetting possession of the cocaine with intent to distribute.

Jackson’s conviction cannot be sustained under a theory of constructive possession, because there is no evidence that he exercised any measure of dominion or control over the contraband ....

18 U.S.C. § 2 codified the common law relating to accessories, making one who aids and abets a substantive offense liable as a principal. To aid and abet means to assist the perpetrator of the crime while sharing in the requisite criminal intent .... Thus Jackson could have been convicted of aiding and abetting the distribution of the cocaine because of his overall participation in the criminal venture .... There was not, however, any evidence that he helped Thurman obtain the cocaine, or that he exercised any control over it. There was no participation by Jackson in the possession aspect of the transaction on which his conviction of aiding and abetting possession with intent to distribute can be sustained.

526 F.2d at 1237-38 (citations omitted). The decision in Jackson plainly rejects the broad sweep attributed by the majority to 18 U.S.C. § 2 with respect to charges of “aiding and abetting possession with intent to distribute.”

To my mind, the holdings in Jackson, Longoria and Mack are eminently sound and should be followed if a similar case is presented to this court. In this case, however, because I agree that a jury could find Raper guilty of constructive possession with intent to distribute, I concur in the court’s affirmance of his conviction. 3

. The jury reasonably could have found that “control” over the disposition of the drugs arose when Raper accepted money from the third party, thereby incurring an obligation on the part of Childs to deliver the drugs to the buyer.

. Although the majority opinion appears to suggest otherwise, our decision in United States v. Staten, 581 F.2d 878 (D.C.Cir.1978), plainly does not support a conclusion that neither actual nor constructive possession is necessary to support a conviction of aiding and abetting possession with intent to distribute. Indeed, in Staten the defendant was found guilty of both actual and constructive possession, so the court could not have decided the point here in issue.

. Appellant Raper has argued that the trial judge’s instructions to the jury may have caused the jury to mistakenly believe that the Government need not prove actual or constructive possession by Raper. Although the instructions may not have been a model of clarity, I can find no substantial basis to support a claim of prejudicial error.