in the kitchen, and the brown manila envelopes recovered from his person. Inez Davis' convictions were with respect to the quantity of loose white powder found on the kitchen table, the glassine envelopes recovered from the kitchen table and the glassine envelopes recovered from beneath the windowsill in the kitchen. The Motion for Judgment of Acquittal granted as to Kelley Davis concerned the glassine envelopes recovered from beneath the windowsill in the kitchen.
It is well established that the requisite possession under the statutes involved in this case may be either actual or constructive. United States v. Amaro, 422 F.2d 1078 (C.A. 9, 1970); Williams v. United States, 418 F.2d 159 (C.A. 9, 1969); Smith v. United States, 385 F.2d 34 (C.A. 5, 1967). Moreover, neither need be exclusive, but may be shared with others. Smith v. United States, supra ; Brothers v. United States, 328 F.2d 151 (C.A. 9, 1964). Further, constructive possession may be found even if another person has actual possession if the constructive possessor knowingly had the power to exercise dominion or control over the narcotic drugs. Amaya v. United States, 373 F.2d 197 (C.A. 10, 1967). On the other hand, constructive possession may not be found from "mere proximity to the drug, mere presence on the property where it is located, or mere association, without more, with the person who does control the drug or the property on which it is found". Brothers v. United States, supra. It is also well established that proof of the requisite possession may be by circumstantial as well as by direct evidence. United States v. Bridges, 419 F.2d 963 (C.A. 8, 1969); Smith v. United States, supra ; Brothers v. United States, supra.
From the fact of these relationships between Inez Davis and the property on which the drugs were found, the location and state in which the drugs were found on the property, and the person in whose clear control the drugs were found, there was sufficient evidence upon which the jury could have based its finding of guilty as to Inez Davis. The motion of the defendant Inez Davis for Judgment of Acquittal is therefore denied.
Turning to the motion of both defendants for a new trial, that the verdict was contrary to the evidence, the weight of the evidence, and the law are untenable as to both Kelley Davis and Inez Davis in light of the outlined construction which must be given the facts and the inferences therefrom. The other grounds offered by the defendants' motion are equally untenable. That the U.S. Attorney's opening statement, which is not evidence, varied from the indictment in that he misstated the year of the offense is not an amendment to the indictment, and as a ground upon which a motion for a new trial may be granted borders on the frivolous. Further, that the proof offered by the U.S. Attorney at the trial was at variance with the indictment in that the gram weight of heroin contained in the white powder was less, as a consequence of the addition of dilutants to the powder, than alleged in the indictment is neither an amendment nor fatal to the indictment. Specificity is required of an indictment so that a defendant will be (1) adequately apprised of the offense charged and (2) fairly protected from another prosecution for the same offense. Berger v. United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). Both requirements have been clearly satisfied in this case.
Lastly, the defendants' contentions that the evidence upon which the verdict was based was illegally obtained in violation of the Fourth Amendment to the Constitution of the United States was ruled upon by Judge Louis Rosenberg of this Court at the suppression hearing held before the trial of this case and is therefore the "law of the case" and cannot be disturbed. United States v. Wheeler, 256 F.2d 745 (C.A. 3, 1958). The motion of both the defendants for a new trial is therefore denied.