United States v. Jonathan S. Edwards, 166 F.3d 1362, 11th Cir. (1999)
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Scribd Government DocsUnited States v. Jonathan S. Edwards, 166 F.3d 1362, 11th Cir. (1999)
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Scribd Government Docs166 F.
3d 1362
12 Fla. L. Weekly Fed. C 492
UNITED STATES of America, Plaintiff-Appellee,
v.
Jonathan S. EDWARDS, Defendant-Appellant.
No. 97-4896.
United States Court of Appeals,
Eleventh Circuit.
Feb. 11, 1999.
Rehearing Denied March 25, 1999.
Robert E. Adler, Asst. Fed. Pub. Defender, West Palm Beach, FL, for
Defendant-Appellant.
Janice LeClainche, Asst. U.S. Atty., West Palm Beach, FL, Nina Stillman
Mandel, Kathleen M. Salyer, Stephanie K. Pell, Asst. U.S. Attys., Miami,
FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before TJOFLAT and DUBINA, Circuit Judges, and SMITH * , Senior
Circuit Judge.
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.
2
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.
3
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 onehalf 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 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.
5
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 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.
7
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 order dismissing the indictment.
Honorable Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit,
sitting by designation
According to Edwards' post-arrest statement, he planned to deliver the cocaine
to his partner at a nearby gas station
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
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)
