United States v. Alphonso Buster Gilbert, JR., 39 F.3d 1179, 4th Cir. (1994)
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Scribd Government DocsUnited States v. Alphonso Buster Gilbert, JR., 39 F.3d 1179, 4th Cir. (1994)
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Scribd Government Docs39 F.
3d 1179
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of
unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Alphonso Buster GILBERT, Jr., Defendant-Appellant.
No. 93-5903.
United States Court of Appeals, Fourth Circuit.
Submitted September 20, 1994.
Decided October 27, 1994.
Appeal from the United States District Court for the Western District of
Virginia, at Roanoke. Samuel G. Wilson, District Judge. (CR-93-76)
Allen T. Wilson, Roanoke, VA, for appellant.
Robert P. Crouch, Jr., U.S. Atty., Kenneth M. Sorenson, Asst. U.S. Atty.,
Roanoke, VA, for appellee.
W.D.Va.
AFFIRMED.
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
OPINION
PER CURIAM
1
Alphonso Buster Gilbert, Jr., appeals his conviction for possession of crack
cocaine with intent to distribute, 21 U.S.C. Sec. 841(a) (1988). The only issue
raised by Gilbert is whether the evidence presented by the government was
sufficient to establish that he possessed the drugs at issue.
2
In August 1992, Roanoke, Virginia, police officers executed a search warrant at
712 Westwood Boulevard, apartment 112. The officers testified that they were
looking for crack cocaine and Gilbert; however, the apartment was unoccupied
when the police arrived. Their search recovered the following items: a plastic
baggie containing one large piece of crack cocaine (weighing 26.39 grams);
eight other plastic baggies containing smaller pieces of crack cocaine
(weighing a total of 16.05 grams and which were found inside a man's shirt
hanging in the closet); a photograph of Gilbert; a plastic box containing razor
blades; a mirror coated with crack cocaine residue; another photograph of
Gilbert (shown with two other men), taken inside the apartment; a checkbook in
Gilbert's name; an envelope addressed to Gilbert; nine pieces of various
paperwork each bearing Gilbert's name; and a video rental receipt, also in
Gilbert's name. The apartment was rented in the name of Katina Shepard,
Gilbert's girlfriend and mother of their small child--a picture of the three of
them was on the chest of drawers in the bedroom of the apartment. Both the
apartment manager and the mother of Gilbert's girlfriend testified that Gilbert
resided at the apartment, although his name was not on the lease. Gilbert was
indicted for possession of crack cocaine with intent to distribute and possession
of a firearm in relation to a drug trafficking crime (18 U.S.C. Sec. 924(c)
(1988)). A jury trial resulted in an acquittal on the firearms charge and a
mistrial on the drug charge. Gilbert was retried on the drug charge and was
convicted by a jury. He was sentenced to ninety-seven months imprisonment.
Gilbert appeals.
This Court reviews the evidence at trial in the light most favorable to the
prosecution, Glasser v. United States, 315 U.S. 60, 80 (1942), including all
reasonable inferences that can be drawn from that evidence, United States v.
Russell, 971 F.2d 1098, 1109 (4th Cir.1992), cert. denied, 61 U.S.L.W. 3479
(U.S.1993). It is well established that possession of a controlled substance can
be actual or constructive. See United States v. Wright, 991 F.2d 1182, 1187
(4th Cir.1993). Constructive possession may be established by either
circumstantial or direct evidence. United States v. Laughman, 618 F.2d 1067,
1077 (4th Cir.), cert. denied, 447 U.S. 925 (1980). In this case, there was
substantial circumstantial evidence that Gilbert resided at the apartment and
constructively possessed the drugs found therein. In addition, the quantity and
packaging of the drugs supported an inference that Gilbert intended to distribute
them. See United States v. Gooding, 695 F.2d 78, 84 (4th Cir.1982).
Gilbert relies on one case, United States v. Onick, 889 F.2d 1425 (5th
Cir.1989), to support his contention that the evidence was insufficient to
establish that he had dominion and control over the premises where the drugs
were found. In Onick, the Fifth Circuit reversed a conviction for possession
with intent to distribute cocaine because "a reasonable jury could not conclude
that Onick exercised dominion and control over the premises or the drugs
themselves." Id. at 1429. However, the facts in Onick were significantly
different than the case at bar: there was no evidence establishing that Onick
lived in the house where the drugs at issue were found and the officers who
searched the property testified that they did not expect to find Onick there.
Here, by contrast, there was ample evidence that Gilbert resided at apartment
112 and the officers testified that they were looking specifically for Gilbert at
the time they executed the warrant.
5
Accordingly, we affirm Gilbert's conviction. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the decisional process.
AFFIRMED
