Published on:

The 11th Circuit disapproved a modified jury instruction on constructive possession but found that overall the jury was not misled

In U.S. v. Cochran the issue before the jury was whether drugs and drug related materials inside of a house belonged to a defendant or someone else who could have had access to the house. Though this happened in the Middle District of Florida, it is a common issue seen in federal drug cases in Miami as well. To prove the case the government offered a modification to the constructive possession jury instruction given in a drug possession case. The 11th Circuit disapproved of the modification; however it did not amount to reversible error. The facts leading to the Defendants arrest are this.
1. Agents executed a search warrant at house where they suspected he was staying.
2. Inside they found a small quantity of cocaine and a digital scale drugs along with forks and a measuring cup bearing drug residue in various parts of the house.
3. The police also found some ammunition in the dresser drawer and for this he was charged with possession of ammunition after having been convicted of a felony.

The government tried to prove drugs belonged to Cochran. An officer testified that prior to the search she used binoculars to conduct surveillance the residence from a block and half away and saw a black male identified as Cochran exit and re-enter the residence several times. Another Officer who raided the home said there was a piece of mail addressed to the defendant. The government offered Rule 404(b) evidence that the defendant had been arrested 5 years earlier for possessing packet of cocaine and marijuana. In presenting his defense, the defendant called the defendant’s daughter to prove that the defendant had moved out of the house a few weeks before the arrest and lived at another house. She said the house where the drugs were found was heavily trafficked in the evenings and had witnesses her uncle, not the defendant using drugs.

The government requested a standard jury instruction for possession but added an additional sentence “Constructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing.”
The defense objected because the addition of this instruction to the standard instruction stripped the standard of the “power and intention to take control” language. The defense also argued that dominion and control over the premises may be circumstantial evidence but does not establish constructive possession.
The jury’s questions showed their confusion:
“If you have free access to a home then do you have constructive possession of the contents?”
The next day they asked:
“Regarding Count 1, does the definition of constructive possession apply to the phrase knowingly possess?”

The 11th Circuit found the additional language raised problems because it eliminated the “power and the intention to take control over it” language and left an inference that constructive possession lacked an intentionality requirement. The instruction referred to control over the premises, rather than control over the contraband itself, as sufficient to convict. Despite these flaws in the instruction, the 11th Circuit did not find it misled the jury or that the defendant was prejudiced. Viewing the jury instruction “in the context of the overall charge” the flaw is mitigated by the totality of the circumstances. The jury instruction stated in a different section that possession of the contraband had to be “knowing”, so the failure to reiterate that requirement does not constitute reversible error. Plus the jury’s decision to convict of the drug charge but acquit of the ammunition charge demonstrated an understanding of the charged instructions.

Evidence was sufficient to convict
The court rejected Cochran’s argument that the evidence presented at trial was not sufficient to support his conviction. The evidence that the court found tied him to the contraband: 1) he was found standing in the driveway of the house with a key to the home in his pocket, 2) He was seen by the surveillance officer entering and leaving, 3) Drugs were found in common areas of the house and in plain view, 4) a letter was found address to Cochran, 5) Cochran’s daughter acknowledged that he frequented the home, and 6) he had a prior conviction for drug which “bears on his intent.”

No error in admission of the prior conviction
The Court rejected the defendant’s claim that the district court erred in admitting the prior drug offense. The court found that because he pled not guilty it made intent a material issue. The 11th Circuit reaffirmed the long held principle that prior drug convictions for drug trafficking are considered highly probative of intent to commit drug trafficking offenses.