ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Aldisert, Gibbons and Higginbotham, Circuit Judges. Gibbons, Circuit Judge, dissenting.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Appellant challenges his conviction for possession of a controlled substance, phenyl-2-propanone (P-2-P), with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). Appellant contends that the evidence at trial was insufficient to prove that he had possession of the P-2-P because the government never surrendered dominion and control over it and appellant therefore never had the ability to actually or constructively possess it. We reject appellant's contentions and will affirm the district court.
Raymond Martorano and two co-conspirators, John Berkery and Frank Vadino, were indicted for conspiring to distribute and to possess with intent to distribute P-2-P in violation of 21 U.S.C. § 846; they were also indicted for possession of P-2-P with intent to distribute it in violation of 21 U.S.C. § 841(a)(1).*fn1 Martorano was tried before a jury that found him guilty of the conspiracy and possession charges. The district court denied Martorano's post-trial motions for acquittal and for a new trial, United States v. Martorano, 541 F. Supp. 1226, 1230 (E.D.Pa. 1982), and sentenced him to consecutive five-year terms of imprisonment followed by a three-year term of special parole. Martorano does not contest his conspiracy conviction. He challenges only his conviction under 21 U.S.C. § 841(a)(1) for possession of a controlled substance with intent to distribute it.
The facts of this case are uncontested. In June 1981 Martorano initiated*fn2 the purchase of 52 gallons of P-2-P from Ronald Raiton, a large distributor of P-2-P in the Philadelphia area. From October 1980 to June 1981, Raiton sold some 200 gallons of P-2-P to Martorano's co-conspirator, John Berkery, for which Martorano guaranteed payment. Unbeknown to Martorano and Berkery, Raiton became an undercover informant early in 1981. Martorano met with Raiton on two occasions, June 19 and July 1, 1981, to discuss the details of Martorano's prospective purchase of the P-2-P. The two men agreed to a plan devised by Marorano under which Raiton would rent a van, place the P-2-P in the van and park the van near Philadelphia's Rittenhouse Square. Raiton was then to meet Martorano in the Square at 1 p.m. on August 1, 1981 to turn over the keys and registration to the van in exchange for a paper bag containing payment for the P-2-P which would be given to Raiton by an agent of Martorano.
Pursuant to Martorano's plan, Raiton rented a van on July 28, 1981. However, he delivered the van to F.B.I. agents who loaded it with 52 gallons of P-2-P acquired from a federal storage facility in Florida. The F.B.I. agents placed a specially purchased padlock on the rear doors of the van. They drove the van to a location near Rittenhouse Square where they parked and maintained uninterrupted surveillance of the van.
The agents gave the keys to the van and the lock to Raiton and told him where the van was parked. Raiton then went to Rittenhouse Square and met Martorano as scheduled. After writing the location of the van on a piece of paper at Martorano's request, Raiton accompanied Martorano to a park bench in Rittenhouse Square where Vadino was sitting holding a shoebox containing $100,000. Martorano took the box from Vadino and handed it to Raiton; Martorano then gave Vadino the paper with the location of the van written on it and told Vadino to "check out" the van.
Vadino went with Marco DeTullio to inspect the van. In the meantime Raiton and Martorano completed the transaction in Rittenhouse Square. Martorano handed Raiton an additional $4,000 in cash, and Raiton gave the keys to the van and the padlock to Martorano. Martorano later gave these keys to DeTullio who returned to the van.
DeTullio unlocked and entered the van. He sat in the van for 1 to 1 1/2 minutes before he was apprehended by F.B.I. agents and Philadelphia police who were in the area of the van to maintain surveillance of it and to prevent its removal. They removed DeTullio from the van and placed him under arrest, and they seized the van and the P-2-P. Martorano and Vadino sped away from the scene, but they were later apprehended.
It is well settled that when a defendant is charged with possession of a controlled substance with intent to distribute it in violation of 21 U.S.C. § 841(a)(1), possession can be either actual or constructive. United States v. Raper, 219 U.S. App. D.C. 243, 676 F.2d 841, 847 (D.C. Cir. 1982); United States v. Grayson, 597 F.2d 1225, 1229 (9th Cir.), cert. denied, 444 U.S. 873, 875, 100 S. Ct. 153, 62 L. Ed. 2d 99 (1979); United States v. Crippen, 459 F.2d 1387, 1388 (3d Cir. 1972). Constructive possession may be shown through either direct or circumstantial evidence. United States v. Raper, 676 F.2d at 847; United States v. Grayson, 597 F.2d at 1229; United States v. Davis, 461 F.2d 1026, 1035 (3d Cir. 1972). Constructive possession may be found if the evidence shows that the defendant "was knowingly in a position, or had the right to exercise 'dominion and control ' of the drug either personally or through others." United States v. Raper, 676 F.2d at 847.
Martorano challenges his conviction on the grounds that these facts are insufficient to prove that he had possession of the P-2-P. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether a jury could reasonably infer from the evidence that the defendant is guilty of the offense with which he is charged. United States v. Davis, 461 F.2d at 1035. The evidence must be construed in the light most favorable to the government. Id. at 1036.
The government concedes that Martorano did not have actual possession of the P-2-P. Thus, the crucial issue before us is whether the evidence was sufficient for the jury to find that Martorano had constructive possession of the P-2-P. Martorano insists that he did not have constructive possession because the P-2-P remained at all times within the dominion and control of the F.B.I. Martorano's claim is predicated on the theory that constructive possession entails dominion and control giving the alleged constructive possessor the power to dispose of the drug. United States v. Batimana, 623 F.2d 1366, 1369 (9th Cir.), cert. denied, 449 U.S. 1038, 66 L. Ed. 2d 500, 101 S. Ct. 617 (1980); United States v. Barnett, 468 F.2d 1153, 1155 (9th Cir. 1972); Arellanes v. United States, 302 F.2d 603, 606 (9th Cir. 1962). Although Martorano and his co-conspirators expected DeTullio to drive away in the van that contained the P-2-P, Martorano claims that at no time did DeTullio possess the power to do so because of the presence of the law enforcement officers who were determined not to allow the van to be driven away. Thus, the basis of Martorano's claim is that the conspirators did not exercise actual dominion and control over the P-2-P because they did not acquire the power to dispose of it. Therefore, Martorano contends that he did not have constructive possession of the P-2-P.
The government, on the other hand, argues the theory of constructive possession adopted by the court below. Relying on United States v. Moreno, 649 F.2d 309, 312 (5th Cir. 1981) and United States v. Crippen, 459 F.2d at 1388, the district court held that "constructive possession may be established by a showing of ownership, dominion, or control over the contraband . . . or over the vehicle in which the contraband was concealed." United States v. Martorano, 541 F. Supp. at 1228. The court interpreted "dominion, or control" to mean "the ability to reduce [a controlled] substance to actual possession. . . ." Appendix at 146a.
The government insists that the ability to distribute or dispose of the P-2-P free of police interference is not necessary to show constructive possession because constructive possession of the P-2-P occurred at the moment that Martorano had the ability to reduce it to actual possession. It argues that Martorano's ability to reduce the P-2-P to actual possession can be shown in two ways. It therefore offers two theories on which Martorano's constructive possession can be based. First, the government contends that Martorano acquired constructive possession when Raiton gave him the keys to the van and the padlock. Second, it contends that Martorano had constructive possession of the P-2-P by virtue of DeTullio's actual possession of the van and the P-2-P that it contained. The government notes that Martorano gave the keys to his agent, DeTullio; that DeTullio actually entered the van in possession of these keys; that DeTullio inserted the key in the ignition. DeTullio need only have started the engine and driven away to remove the van and the P-2-P ...