United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2006 Decided December 1, 2006
No. 05-3022
UNITED STATES OF AMERICA,
APPELLEE
v.
MELVIN LAWRENCE,
APPELLANT
Consolidated with
05-3023
Appeals from the United States District Court
for the District of Columbia
(No. 03-00175-01)
(No. 03cr00092-01)
David B. Smith, appointed by the court, argued the cause
and filed the briefs for appellant.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese, III, David B. Goodhand, Elana Tyrangiel,
2
Assistant U.S. Attorneys. Thomas J. Tourish, Jr., Assistant U.S.
Attorney, entered an appearance.
Before: RANDOLPH and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge RANDOLPH.
Concurring opinion filed by Senior Circuit Judge
WILLIAMS.
RANDOLPH, Circuit Judge: In one trial (No. 03cr00092-01),
a jury found Melvin Lawrence guilty of distributing five grams
or more of cocaine base. In another trial (No. 03-00175-01), a
jury convicted him of possessing with intent to distribute more
than five grams of cocaine base, possessing firearms in
furtherance of drug trafficking, and possessing firearms as a
convicted felon. We consolidated Lawrence’s appeals. There
are two main issues. The first is whether the government
presented enough evidence to prove that the drugs were crack
cocaine or another smokable form of cocaine base, as our
opinion in United States v. Brisbane, 367 F.3d 910 (D.C. Cir.
2004), requires for convictions under 21 U.S.C.
§ 841(b)(1)(B)(iii). The second is whether the district court
erred in not granting Lawrence’s motion for a judgment of
acquittal on the possession charges in the second trial.
I.
On April 30, 2002, undercover officers of the Metropolitan
Police Department purchased 21.1 grams of cocaine base from
Lawrence in the vicinity of Oak and Center Streets, in northwest
Washington, D.C. In the next month, they purchased drugs from
Lawrence and his associates twice more. On March 4, 2003, a
grand jury issued an indictment against Lawrence on three
3
counts of distributing cocaine base in violation of 21 U.S.C.
§ 841(a)(1) and § 841(b)(1)(B)(iii).
On March 13, 2003, as part of the follow-up investigation,
officers executed search warrants on two residences. The first,
1458 Ogden Street, N.W., belonged to Lawrence’s parents; the
search there turned up no drugs or weapons. At the other
address, 3030 30th Street, S.E., apartment #304, Curtistine
Johnson resided with her four sons, one of whom Lawrence
fathered.
The police found drugs and guns in Johnson’s apartment.
The pocket of a woman’s raincoat hanging in a closet near the
front door contained sixty-one small plastic bags of cocaine
base. In the master bedroom closet, there was a loaded .357-
caliber handgun, an assault rifle, a bag of ammunition for the
assault rifle, and empty plastic bags matching the ones in which
the drugs in the front closet were packaged. On the floor of the
master bedroom, the police discovered a basket they
characterized as a “cocaine cooking kit.” The basket held the
necessary equipment and ingredients to convert powder cocaine
into crack cocaine. Various items of men’s clothing were in the
apartment, including a distinctive “zoot suit” jacket in the
master bedroom closet and a man’s coat, with car keys in the
pocket, hanging in the closet near the front door. There were
photographs of Lawrence, including one showing him wearing
the “zoot suit” jacket. The police also recovered a health
insurance identification card bearing Lawrence’s name, as well
as more than ninety pieces of mail with Lawrence’s name on
them. At the time of the search, neither Lawrence nor Johnson
was present.
On April 24, 2003, a grand jury indicted Lawrence and
Johnson on two charges: possessing with intent to distribute five
grams or more of cocaine base, see 21 U.S.C. § 841(a)(1),
4
(b)(1)(B)(iii), and possessing a firearm in furtherance of a drug
trafficking offense, see 18 U.S.C. § 924(c)(1). The indictment
also charged Lawrence alone with possessing a firearm as a
convicted felon, see id. § 922(g)(1).
Lawrence’s first trial was on the charges contained in the
March 4th indictment. The jury convicted him of distributing
five grams or more of cocaine base in the April 30, 2003,
undercover sale, but could not reach a verdict on the charges
arising from the later undercover sales. The district court
deferred sentencing pending the outcome of Lawrence’s trial on
the charges contained in the April 24th indictment.
In his second trial, on charges contained in the April 24th
indictment, Lawrence was tried with Johnson. At the close of
the prosecution’s case, both defendants filed motions for
judgments of acquittal pursuant to FED. R. CRIM. P. 29(a). The
court denied the motions. Lawrence’s attorney then notified the
court that Lawrence would not testify and that the only evidence
he sought to introduce was a series of stipulations he and the
government had negotiated. The government had requested a
few minor changes to the wording of the stipulations, so they
were not ready for submission at that time.
Johnson proceeded with her defense, consisting of two
character witnesses and her testimony. After Johnson rested, the
court admitted Lawrence’s stipulations, which included the facts
that his driver’s license listed his parents’ address and that no
drugs or guns were found in the search of that residence. At the
close of his case, Lawrence renewed his motion for a judgment
of acquittal. The court denied the motion, and the jury found
both defendants guilty on all counts charged.
5
II.
Brisbane held that to convict a defendant of violating 21
U.S.C. § 841(b)(1)(B)(iii) – the more stringent of two cocaine
provisions, this one devoted to cocaine base – the government
must prove not only that the substance at issue was cocaine base
but also that it was in a smokable form (like crack). See
Brisbane, 367 F.3d at 911. If the government fails to prove this,
the defendant must receive the lighter sentence for the lesser
included crime of violating § 841(b)(1)(B)(ii), which deals with
“cocaine and its salts.” See United States v. Eli, 379 F.3d 1016,
1020 (D.C. Cir. 2004). In Lawrence’s co-defendant’s separate
appeal, we determined that, although the record contained “no
evidence about the substance’s smokability and no expert
offered a specific conclusion that the drugs in question were
crack,” there was enough evidence to satisfy Brisbane. United
States v. Curtistine Johnson, 437 F.3d 69, 75 (D.C. Cir. 2006).
We reviewed Johnson’s claim under a plain-error standard. To
Lawrence that makes all the difference because he properly
preserved the issue for appeal, which we will assume arguendo
he did in both trials. Even so, the government presented enough
evidence for a rational jury to find beyond a reasonable doubt
that the drugs found in the woman’s raincoat were a smokable
form of cocaine base.
In Lawrence’s first trial, the government produced evidence
that the substance in question contained cocaine base, that at the
time of purchase the drugs comprised “a large white rock
substance,” and that the sale of the drugs followed conventional
practices for the sale of crack cocaine. In addition, the
undercover officers who purchased the drugs from Lawrence
testified that he provided these drugs in response to their
requests to buy crack. When “the evidence consists of many
features consistent with crack cocaine,” Curtistine Johnson, 437
F.3d at 75, it is within a fact-finder’s province to decide, even
6
without expert testimony, that the drugs were crack cocaine. See
id. Viewing the evidence most favorably to the government, see
United States v. Dykes, 406 F.3d 717, 721 (D.C. Cir. 2005), we
therefore conclude that a rational trier of fact could reasonably
have determined that the prosecution proved the smokability
element of § 841(b)(1)(B)(iii) beyond a reasonable doubt. See,
e.g., United States v. Gomez, 431 F.3d 818, 819 (D.C. Cir.
2005). In light of the evidence the government produced at
Lawrence’s second trial, all of which is recited in the opinion on
Johnson’s appeal, Curtistine Johnson, 437 F.3d at 75, and need
not be repeated here, we reach the same conclusion.
III.
With respect to his convictions for possessing the drugs and
guns found at Johnson’s apartment, Lawrence argues that the
evidence was insufficient. If a rational trier of fact reasonably
could have concluded that the prosecution proved the elements
of the crime beyond a reasonable doubt, the evidence is
sufficient to uphold the conviction. See, e.g., Gomez, 431 F.3d
at 819. Possession may be actual or constructive. “Constructive
possession requires evidence supporting the conclusion that the
defendant had the ability to exercise knowing dominion and
control over the items in question.” Dykes, 406 F.3d at 721
(internal quotation marks omitted). Constructive possession of
items found in a home may be imputed to the home’s owner or
tenant because “a jury is entitled to infer that a person exercises
constructive possession over items found in his home.” Id.
(internal quotation marks omitted). If the defendant has a key
to a residence he does not own or rent, the jury still may infer
“that he was not just a casual visitor.” United States v. Staten,
581 F.2d 878, 885 (D.C. Cir. 1978); see also United States v.
Dingle, 114 F.3d 307, 311 (D.C. Cir. 1997).
7
If we considered the testimony of Lawrence’s co-defendant,
we would conclude that sufficient evidence supported his
convictions. Johnson testified that Lawrence had a key to her
apartment, and that he usually stayed there multiple nights each
week, often arriving after she had gone to bed. She said that he
kept clothing and other possessions there, and that he regularly
received mail at her address.
Circuit precedent, however, precludes us from relying on
Johnson’s testimony and requires that we consider only the
evidence presented in the government’s case-in-chief. United
States v. Foster, 783 F.2d 1082 (D.C. Cir. 1986) (en banc), held
that when a defendant, after moving unsuccessfully for a
judgment of acquittal at the close of the prosecution’s case, puts
on evidence in his defense, the defendant waives the opportunity
to challenge the denial of his motion. If the defendant moves for
a judgment of acquittal at the close of all the evidence,
sufficiency claims must be evaluated in light of all the evidence,
including any inculpatory evidence presented in the defense
case. See id. at 1085; see also United States v. Wahl, 290 F.3d
370, 373 (D.C. Cir. 2002).
The Foster decision rejected dicta in Cephus v. United
States, 324 F.2d 893 (D.C. Cir. 1963), with respect to
prosecutions involving one defendant,1 but preserved “the
precise holding of the Cephus opinion itself – which . . . simply
1
Years before Cephus the Supreme Court stated that “[b]y
introducing evidence, the defendant waives his objections to the denial
of his motion to acquit. His proof may lay the foundation for
otherwise admissible evidence in the Government’s initial
presentation, or provide corroboration for essential elements of the
Government’s case.” United States v. Calderon, 348 U.S. 160, 164
n.1 (1954) (internal citations omitted). Cephus treated the Court’s
statement as dicta. 324 F.2d at 895 n.14.
8
refused to extend the [waiver] rule to the situation where, after
the defendant moving for acquittal declined to proceed with his
own case, inculpatory evidence was introduced by one of his co-
defendants.” Foster, 783 F.2d at 1086.
Cephus rested on the theory that a defendant does not waive
a challenge to the denial of his motion for judgment of acquittal
when he is “forced” or coerced into presenting a case in
response to a co-defendant’s testimony incriminating him. In
that situation, the Cephus court thought, “the Government will
in effect have been able to use the coercive power of the co-
defendant’s testimony as part of its case-in-chief, even though
the Government was prohibited from calling the co-defendant to
testify for the prosecution.” 324 F.2d at 898. If we followed
Cephus alone, we would hold that under Foster Lawrence
waived his right to challenge the denial of his acquittal motion.
The testimony of his co-defendant did not coerce Lawrence into
mounting a defense. We know this because the stipulations he
introduced were agreed upon before Johnson testified; they were
admitted after her testimony only because they had to be
retyped; and they were not confined to rebutting the evidence
she gave about his relationship to her apartment.
But there is a later decision on point, a decision the Cephus
coercion theory cannot explain. In United States v. Don
Johnson, 952 F.2d 1407, 1411 (D.C. Cir. 1992), the court stated
that it was adhering to “the rationale of Cephus,” but then went
considerably further than the rationale could take it. The Don
Johnson court held “that a co-defendant’s subsequent
inculpatory testimony may not be considered in ruling upon a
motion for a judgment of acquittal made after the close of the
government’s case in chief, even if the defendant might be
found, under Foster, to have waived his motion.” Id. By its
terms, Cephus applied only if a defendant was coerced into
responding to his co-defendant’s evidence and presented
9
evidence aimed at rebutting that evidence. 324 F.2d at 897. In
contrast, Don Johnson entirely rules out consideration of co-
defendant testimony in evaluating the sufficiency of the
evidence against the defendant.
The Don Johnson court did not explain why it was taking
this step, but we can be fairly sure that it was not because the co-
defendant’s evidence coerced Don Johnson into presenting a
defense. At the close of the government’s case, after the court
denied Don Johnson’s acquittal motion and before his co-
defendant presented any evidence, Don Johnson told the court
he would be taking the stand. 952 F.2d at 1409. Perhaps the
Don Johnson court formulated its rule in recognition of the
serious problems entailed in administering the Cephus rule.
How does an appellate court determine whether a co-defendant’s
testimony motivated the defendant to put on a defense? The
government’s evidence often has its own “coercive” effect. See,
e.g., United States ex rel. Leak v. Follette, 418 F.2d 1266, 1268
(2d Cir. 1969) (Friendly, J.). And under Cephus what does the
court do when the defendant’s evidence tends to rebut not only
his co-defendant’s incriminating testimony, but also the
government’s case-in-chief, as it did in Don Johnson? See Don
Johnson, 952 F.2d at 1409.
Cephus gives rise to other problems as well. Suppose, as
commonly occurs, the government puts on a rebuttal case in
response to the defense. May the reviewing court consider the
government’s rebuttal evidence in evaluating the sufficiency of
the evidence? Neither Cephus nor Don Johnson provides an
answer. Or suppose the defendant takes the stand after his co-
defendant testifies. In cross-examination, the defendant breaks
down and all but confesses to the crime. After his conviction,
he appeals, claiming that the prosecution’s evidence was
insufficient to meet its burden of proof. Under Cephus and Don
Johnson, the appellate court may not consider the defendant’s
10
confession in evaluating the sufficiency of the evidence of his
guilt.2
Without Don Johnson, we would not hold that Cephus
barred us from considering the testimony of Lawrence’s co-
defendant. With Don Johnson, we must exclude that testimony
2
Before its geographic split, the Fifth Circuit adopted Cephus,
see United States v. Belt, 574 F.2d 1234 (5th Cir. 1978), but both the
Fifth and Eleventh Circuits have now cabined its consequences by
holding that, if a defendant relies on a co-defendant’s testimony in
closing argument, this constitutes a waiver, allowing the court to
consider all evidence, including that presented by the co-defendant.
See United States v. Martinez, 96 F.3d 473, 476-77 (11th Cir. 1996)
(per curiam); United States v. Cardenas Alavarado, 806 F.2d 566, 570
n.2 (5th Cir. 1986). We wonder why, if a co-defendant’s testimony
compelled the defendant to take the stand and attempt to rebut or put
the best face on that testimony, the same compulsion would not carry
forward to the closing argument of the defendant’s counsel. In any
event, the holding of Don Johnson – “a co-defendant’s subsequent
inculpatory testimony may not be considered in ruling upon a motion
for a judgment of acquittal made after the close of the government’s
case in chief, even if the defendant might be found . . . to have waived
his motion,” 952 F.2d at 1411 (emphasis added) – does not leave room
for the sort of analysis these two courts of appeals employed. It is
therefore of no moment that in closing, Lawrence’s counsel used
Johnson’s testimony more than a dozen times to argue for his
acquittal.
The Tenth Circuit held that when a defendant presents
evidence and thereby waives his original motion for a judgment of
acquittal, that waiver applies not only to evidence he introduced but
to all evidence introduced by co-defendants as well. See United States
v. Delgado-Uribe, 363 F.3d 1077, 1083 (10th Cir. 2004). Here again
the decision is at odds with Cephus and with Don Johnson. The
dearth of analogous cases in the other courts of appeals suggests that
few courts follow the rule of Cephus or Don Johnson.
11
and take into account only the evidence presented in the
government’s case-in-chief. We can see no principled ground
for distinguishing Don Johnson from this case. “One three-
judge panel,” we have held, “does not have the authority to
overrule another three-judge panel of the court.” LaShawn A. v.
Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc).
Absent Johnson’s testimony, the government case against
Lawrence was thin, consisting only of the items found in
Johnson’s apartment: the men’s clothing, the photographs of
Lawrence, mail with his name on the envelope, and a District of
Columbia health insurance identification card bearing his name.
As to the ninety or more pieces of mail, the exhibits were only
envelopes. Not all contained postmarks, and nearly all of those
that did were dated 1997 and 1998. Lawrence’s name was on
each, but his address was redacted (he was in prison, a fact the
jury did not learn). On some of the envelopes, the sender’s
name and return address were redacted; on others, the sender’s
name – Johnson – appeared but her return address was blocked
out. There were two exceptions. The court admitted two
envelopes postmarked within three months of the search: one
stamped December 2002 and one stamped a few days before the
search. The jury could not have known who sent the two
envelopes; the name of the sender and the return address were
redacted.3 The jury also could not have known the address to
which the envelopes were sent; Lawrence’s name appeared, but
the delivery address on the envelopes was also redacted. On
cross-examination, an officer who conducted the search
admitted that he could not recall whether the two envelopes had
been opened when they were discovered.
3
The district court knew that Lawrence’s brother sent both
pieces of mail.
12
Of the men’s clothing recovered, the government connected
only one piece to Lawrence – the distinctive “zoot suit” jacket
found in the master bedroom closet. A photograph from the
apartment showed Lawrence wearing the jacket, but the
photograph was many years old. This leaves the identification
card. The card does not have a photograph on it, and gives no
clue about when it was issued, when it became effective, or
when, if ever, it expired. The card did list Lawrence’s name, his
Social Security number, and his date of birth. The card’s
location on a table in the master bedroom – as opposed to in a
drawer, for example – might suggest that someone placed it
there for easy access, but that is somewhat of a stretch.
On the other side of the ledger, Lawrence’s name did not
appear on the lease, and no witness placed Lawrence within,
going to, or leaving the apartment. The government must have
had information connecting Lawrence to the apartment before
the search – this is what supported the search warrant, see
Curtistine Johnson, 437 F.3d at 71 – but it did not present any
such evidence at trial. The fact that Lawrence was not present
at the apartment when police executed the search warrant
magnifies the importance of these evidentiary holes. The
majority of our constructive possession cases involve
individuals who disclaim any connection to a residence in which
they were present when police seized contraband on the
premises. See, e.g., Gomez, 431 F.3d 818; Dingle, 114 F.3d
307; Edelin, 996 F.2d 1238; United States v. Zeigler, 994 F.2d
845 (D.C. Cir. 1993); United States v. Morris, 977 F.2d 617
(D.C. Cir. 1992); Staten, 581 F.2d 878.
Lawrence leans heavily on United States v. Jenkins, 928
F.2d 1175 (D.C. Cir. 1991), in which we affirmed Sylvia
Jenkins’s convictions for conspiring to possess and possessing
cocaine base with intent to distribute, and for knowingly and
intentionally maintaining a place used for the manufacture,
13
storage, or distribution of illegal drugs. Id. at 1177. When
undercover police officers purchased cocaine from Jenkins’s co-
defendant, he had them wait while he retrieved the drugs from
a nearby house at 4368 Varnum Place. Id. Police executed a
search warrant at the Varnum Place house shortly thereafter,
discovering large quantities of cocaine, guns, ammunition, and
crack-cocaine processing equipment. Id. Although the house
was Jenkins’s, she testified that the contraband did not belong to
her and that she had no knowledge of its presence in her home
– testimony the jury could have chosen not to credit. Id. at
1179. Viewing the evidence most favorably to the government,
we held that the circumstantial evidence against Jenkins was
“sufficient to sustain the verdict, although just barely.” Id.
Among that evidence, “the most prominent [was] that the house
was hers and that she lived there.” Id.
Lawrence points out that the evidence in the Jenkins case
“was vastly stronger than here, yet the [c]ourt said it was ‘just
barely’ sufficient.” Br. of Appellant 50 n.30. We agree with
this assessment. Unlike Jenkins, Lawrence never acknowledged
living in Johnson’s apartment, and there was no evidence to
suggest that the apartment was “his.” One may infer that
Lawrence had been in the apartment in the past. But no
reasonable juror could determine (based on the government’s
case-in-chief) whether Lawrence had been there recently, let
alone that he had dominion and control over the guns and drugs
found in the apartment. The evidence the government introduced
did not create a sufficient inferential chain to allow a reasonable
trier of fact to find guilt beyond a reasonable doubt.
For this reason, we must reverse Lawrence’s convictions in
the second trial. Absent sufficient evidence tying him to
Johnson’s apartment, the prosecution did not prove that he
constructively possessed the drugs or the guns. And without
such proof, all of his convictions in that trial – for possessing
14
with intent to distribute more than five grams of cocaine base,
possessing firearms in furtherance of drug trafficking, and
possessing a firearm as a convicted felon – must fall.
For the foregoing reasons, Lawrence’s convictions in
03-00175-01 are reversed and his conviction in 03cr00092-01 is
affirmed. The cases are remanded for resentencing.
So ordered.
WILLIAMS, Senior Circuit Judge, concurring: I concur
and write separately only to express my doubt that Cephus v.
United States, 324 F.2d 893 (D.C. Cir. 1963), even as
confined by our later en banc, United States v. Foster, 783
F.2d 1082 (D.C. Cir. 1986), would not require the result we
reach today.
Cephus appears to express unequivocally a premise that
the government should not be able to benefit from the co-
defendant’s testimony in any way, whether indirectly by
invocation of defendant’s own rebuttal to that testimony, or
directly by invocation of that testimony itself (regardless of
“waiver”). Consider, for example, the Cephus court’s remark
that “It is also clear that the defendant’s own evidence,
introduced in response to the co-defendant’s testimony, does
not waive the motion [for judgment of acquittal on the basis of
the government’s case-in-chief] if it adds nothing to the
Government’s case.” 324 F.2d at 897. In other words, in that
scenario, Cephus allows the defendant the benefit of appellate
review of the motion for judgment of acquittal without regard
to any blame-casting by the co-defendant.
Foster, of course, described Cephus as issuing a dictum,
namely, that “objection to denial of a motion for judgment of
acquittal made at the close of the government’s case-in-chief
is not waived by the defendant’s proceeding with the
presentation of his evidence, so that the validity of an ensuing
conviction must be judged on the basis of the government’s
initial evidence alone.” 783 F.2d at 1083. The en banc court
rejected that proposition, id. at 1085, but declined to overrule
“the precise holding of the Cephus opinion itself—which after
delivering its influential dictum criticizing the waiver rule in
the present context, simply refused to extend the [waiver] rule
to the situation where, after the defendant moving for acquittal
declined to proceed with his own case, inculpatory evidence
was introduced by one of his co-defendants,” id. at 1086. As
2
Foster didn’t involve co-defendant testimony at all, the court
had no occasion to address the consideration of a
codefendant’s testimony, whether accompanied by evidence
from the defendant or not.
Discussion of whether our result here is driven only by
United States v. Don Johnson, 952 F.2d 1407 (D.C. Cir.
1992), compare Maj. Op. at 8, or also by Cephus, may seem a
pointless quibble. In the event, however, that the court should
decide to modify its position by an en banc, it may prove
important to address the exact scope of our existing
precedents.