We do not need to determine whether intent to distribute may be inferred from the possession of a single packet of heroin, because we find that Gillis was in constructive or joint possession of the heroin found on Moses and that he had the intent to distribute this heroin, as well as the single packet found on his person.
More than mere proximity to the heroin or mere association with the person controlling the heroin has been demonstrated here. See United States v. Bonham, 477 F.2d 1137 (3d Cir., filed April 2, 1973); United States v. Bethea, 143 U.S. App. D.C. 68, 442 F.2d 790 (1971); Bettis v. United States, 408 F.2d 563 (9th Cir. 1969); Murray v. United States, 403 F.2d 694 (9th Cir. 1968). The evidence convinces us that Moses and Gillis were engaged in a joint venture involving the intended illegal distribution of heroin, in which case Gillis can be considered to "knowingly have the power to exercise dominion and control" over the heroin found on the person of Moses. See United States v. Davis, 461 F.2d 1026 (3d Cir. 1972); Riley v. United States, 411 F.2d 1146 (9th Cir. 1969); United States v. Jackson, 423 F.2d 506 (9th Cir. 1970).
Moses and Gillis were picked up driving around in an automobile at 5:25 in the morning. They were armed with loaded weapons. They had been seen together earlier that evening at a bar, which indicates they had spent some time together and this was not a spurious contact. Both stated they did not use heroin and Gillis explained they were armed to protect themselves from a group of young blacks who were directing violence at drug pushers. Heroin was found on both defendants which was packaged identically and which contained a very unusual cutting agent, methapyrelene, which indicates that the heroin came from the same source.
This evidence convinces us that Gillis not only knew about the heroin found on Moses but that he was associated with him in its intended distribution. We find therefore that Gillis was in joint or constructive possession of the heroin found on the person of Moses and that he intended to distribute said heroin.
These facts further convince us that Moses and Gillis jointly possessed the single packet of heroin found on the person of Gillis and that they intended to distribute said heroin.
Constitutionality of 21 U.S.C. § 841(a)(1)
Defendants' contention that 21 U.S.C. § 841(a)(1), which provides: ". . . it shall be unlawful for any person knowingly or intentionally . . to possess with intent to manufacture, distribute, or dispense a controlled substance" is void for vagueness is without merit. This statute very clearly identifies the conduct which it intends to proscribe. See Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926). There is no requirement that the legislature indicate what evidence is required to establish violation of a statute to satisfy the due process requirements of specificity.
CONCLUSIONS OF LAW
1. Jurisdiction and venue of this action are properly laid in this court.
2. Arthur Moses was in actual possession of 51 packets containing 22.11 grams of heroin and in constructive possession of one packet containing.39 grams of heroin.
3. Moses intended to distribute said heroin.
4. Claudell Gillis was in actual possession of one packet containing.39 grams of heroin and in constructive possession of 51 packets containing 22.11 grams of heroin.
5. Gillis intended to distribute said heroin.
6. The government has established beyond a reasonable doubt each and every element of the offense charged in the indictment.
Arthur Moses and Claudell Gillis are adjudged guilty of the offense charged in the indictment.