dissenting in part, concurring in part:
Three Howard University students were tried and convicted by a jury of possession and possession with intent to distribute narcotics found in an apartment they shared.1 On this appeal, one of them challenges the sufficiency of the evidence to support his conviction. Unfortunately, the majority’s analysis ends where it should begin — with a recital of the evidence indicating that at least one (but not necessarily all) of the three occupants of the apartment was selling drugs.
Painting with a broad brush, the majority demonstrates conclusively that there is guilt in the air. But guilt by association cannot support a conviction. There must be evidence which permits a reasoned inference that a particular individual was engaged in the charged activity.2 The record reveals no such evidentiary nexus with this appellant regarding the charges of possession with intent to distribute. Granted, there is plenty of evidence from which a jury might infer that someone intended to distribute the drugs found in the apart-
ment; there is no evidence that this appellant was the one.
I
Possession with intent to distribute requires proof of three elements: (1) that defendant possessed contraband, (2) that he did so knowingly and intentionally, and (3) that he harbored the specific intent to transfer it to another. The possession element may, of course, be satisfied by “constructive possession.” Although lacking direct physical control, if someone “knowingly has both the power and the intention . to exercise dominion and control,” he is in constructive possession.3
Constructive possession requires that a defendant know how to get at the narcotics (either directly or through an agent). Without such knowledge, the necessary “power” to exercise dominion and control is lacking. However, “mere presence in the vicinity of a narcotic drug, or mere knowledge of its physical location” is not sufficient as a matter of law to establish constructive possession.4 Even though someone has the “power” to exercise dominion *695and control over an object, he is not in constructive possession unless he also has the “intention” to do so. If one is aware of where his roommate keeps narcotics (and therefore may have power to exercise dominion and control), he is not guilty of constructive possession so long as he treats the drugs as belonging to the roommate and has no intention of exercising dominion and control.5
These settled principles have particular application where narcotics are found on premises occupied jointly. Where only one person inhabits an area, it is reasonable to infer in the first instance that anything found there belongs to him.6 That inference is unavailable among joint inhabitants. Drugs found in an apartment occupied by several persons may be in the constructive possession of only one of the occupants, several of them jointly, or all of them. Based solely on the fact that drugs are on the premises, a jury may not conclude beyond a reasonable doubt that they are in the constructive possession of any particular defendant.
The vast majority of courts therefore hold that “where the defendant is in nonexclusive possession of premises on which illicit drugs are found, it cannot be inferred that he knew of the presence of such drugs and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.”7 If the Government is unable to pinpoint which co-tenant is responsible for the presence of the drugs, it cannot sustain the charge against any of them, even though at least one is almost certainly guilty. But the alternative is conviction of *696the innocent with the guilty — something which has always been abhorrent to our legal traditions: “It is better that ten escape than that one innocent person suffer.”8 Even where narcotics offenses or other crimes arousing great public outrage are involved, condemning the innocent is an intolerable price for letting none of the guilty escape.
Moreover, the Government’s burden to link drugs to an individual is not an unreasonably heavy one. A variety of evidentiary details will sustain an inference that a particular defendant had both the power and the intention to exercise dominion and control over narcotics, as the cases cited by the Government illustrate. It may be shown that the narcotics were found in a place over which the defendant had special control, such as a closet containing his clothing. Walker v. United States, 489 F.2d 714, 715 (8th Cir. 1974). Or that a particular defendant had in his special control paraphernalia for preparing the drugs for sale or use. United States v. James, 161 U.S.App.D.C. 88, 111-112, 494 F.2d 1007, 1030-31, cert. denied sub nom. Jackson v. United States, 419 U.S. 1020, 95 S.Ct. 495, 42 L.Ed.2d 294 (1974) (paraphernalia in a locked box in defendant’s dresser); Petley v. United States, 427 F.2d 1101, 1106 (9th Cir. 1970) (pipe containing marijuana residue found in defendant’s duffel bag).9 The defendant’s actions or statements may indicate a consciousness of guilt. United States v. Childs, 463 F.2d 390 (4th Cir. 1972) (false name given to pick up trunk containing drugs). Or the drugs may be in plain sight in such close proximity to a defendant that it is reasonable to infer that they were under his control. United States v. Davis, 461 F.2d 1026, 1036 (3rd Cir. 1972) (heroin being packaged for sale at kitchen table while defendant stood a few feet away washing dishes).10
II
The facts do not meet the foregoing legal requirements. The evidence disclosed small quantities of marijuana and smoking apparatus in plain view — which may be consistent with recent use. It may be assumed that these small amounts of the drug would have supported a conviction for mere possession. However, the Government’s case was devoid of anything indicating knowledge and an intention to exercise dominion and control by this individual over the separate large quantities of drugs found elsewhere in the apartment on which the two counts of possession with intent to distribute are based.
A.
At approximately one o’clock in the afternoon of March 6, 1974, Officers of the Metropolitan Police Department armed with a search warrant broke down the door to apartment three at 1910 3rd Street N.E. They discovered the appellant and a co-defendant, Purnell Phoenix, standing in the living room clad in their undershorts. A third co-defendant, John Isaac, the appel*697lant’s cousin, was not present in the apartment at the time it was raided but was arrested later.
The officers asked where the narcotics were, and Phoenix (not the appellant) led them to the living room closet, where twenty-seven baggies containing marijuana were hidden, and to the refrigerator where two bags containing a total of 270 tablets of L.S.D. were hidden. There was no testimony in the Government’s ease that appellant said or did anything indicating he was aware of the presence of these drugs, or that any of his clothing or other possessions were found in the living room closet.11 Nor was there testimony that the presence of the L.S.D. would have been obvious to anyone using the refrigerator.12
Scattered around the living room in plain view were small quantities of marijuana. In an ashtray on the coffee table was a marijuana cigarette butt, and a “roach clip,” a metal device for holding a burning marijuana cigarette while smoking it. A small quantity of marijuana was lying on the coffee table; the rug under it was found to contain marijuana seeds and residue. On the mantel piece in the living room were several small bags of marijuana, two small tinfoils of hashish,13 several letters including one addressed to appellant,14 and a postal scale which “could” be used to weigh narcotics as well as mail. A kitchen *698scale (referred to by the brandname “Triner”) was also seized from the kitchen table.
A search of the single bedroom disclosed several other small quantities of marijuana lying out in plain view, a grinder containing marijuana seeds, a number of smoking pipes and eighteen additional bags of marijuana hidden in the bedroom closet. However, the testimony regarding the items found in the bedroom was later stricken as hearsay, Tr. 220, 224, and could not properly have been considered by the jury in reaching its verdict. While it was later stipulated that these items were found somewhere in the apartment, Majority op., n.2, there was no competent evidence indicating they were in a place visible to the appellant or that he was aware of their presence.
B.
If the Government had been content to charge appellant with simple possession of marijuana, there would be little doubt that the evidence was sufficient. Small quantities of marijuana — enough to suggest personal use but not distribution — were obvious throughout the apartment. Moreover, appellant testified that he had smoked marijuana in the apartment on several occasions. Tr. 580-81, 595.
But the Government chose also to prosecute all three roommates for possession with intent to distribute the additional large quantities of bagged marijuana hidden in the closet and the L.S.D. hidden in the refrigerator.15 There cannot be much question that Phoenix knew about these drugs — he led the officers to them. But there is no evidence indicating that this appellant even knew they were there. And assuming he did, what evidence is there indicating this appellant intended to exercise dominion and control over them?
To my knowledge, no federal court has ever before held that someone' can be convicted of constructive possession of drugs hidden in an apartment he shares with other people absent evidence linking him to the drugs. In a case the majority “decline[s] to follow,” Majority op. at n.17, the en banc Third Circuit unanimously held directly to the contrary.16
*699C.
Assuming constructive possession, the Government’s case would still fail for lack of support for a finding that this appellant had the specific intent to transfer drugs. The majority relies on “the obvious nature of the large-scale processing activities” in the apartment. Majority op.,-of 183 U.S.App.D.C., 693 of 562 F.2d. Even if true, that utterly begs the question of whether this appellant was part of the operation, or was simply guilty of a poor choice of roommates. There is no support for the notion that mere presence at the site of a large-scale narcotics operation is sufficient to convict for possession with intent to distribute.17 The majority’s approach confuses possible toleration with active participation.
To be sure, the scales, the bags and other paraphernalia also tend to indicate an intent to distribute (as opposed to use). But whose intent to distribute? The fact that someone had packaged the marijuana for sale18 and evidently intended to distribute *700it does not indicate that this appellant was part of a conspiracy to do so.
D.
To prop up its shaky conclusion, the majority argues that Davis’ intent to sell the drugs is also shown by the fact that “he continued to pay one-third of the rent of the apartment, where this illegal operation was centered, for several months after his only admitted use of the apartment was for ‘the purpose of a mailing address’ (Tr. 623).” Majority op.,-of 183 U.S.App.D.C., 688 of 562 F.2d. Opining that “[yjoung people do not ordinarily pay rent on apartments for such a limited purpose”, the majority argues that the jury could have concluded that Davis wished to conceal “some joint monetary purpose” he had for paying rent, i.e., “to participate in selling the drugs”. Id.
For obvious reasons, this theory was not argued to the jury at trial or to the judge on the motion for judgment of acquittal, was not relied on by the Government on appeal, and was not among the several theories suggested from the bench during oral argument. First, the majority misstates the facts. Davis did not testify that he used the apartment solely as a maildrop; he also slept there and kept some of his possessions there while he was living with his girlfriend.19 There is no basis for doubting that Davis would continue for several months to pay $38 to $41 a month for this convenience, unless one were to assume the very proposition that his rent payments are claimed to prove (i.e., that they had no innocent purpose). Moreover, even if one accepted the majority’s characterization of the facts and agreed that a young person is unlikely to pay this sum for a mailing address and must have some “other purpose” for paying rent, the majority’s view of what that other purpose might be is purely speculative.
Second, the majority contradicts itself. In the denying that Davis used the apartment enough to justify his share of the rent, the majority seems to forget its own earlier statement to the contrary. To establish constructive possession, the majority states the jury could have found that Davis lived in the apartment;20 to establish intent to distribute, the majority states the jury could have found that he did not live there and therefore must have continued to pay rent for “some other purpose.” In light *701of the jury’s verdict, we are required to give the Government the benefit of all reasonable inference from the evidence. But it is not reasonable to assume that the jury could have simultaneously both accepted and rejected Davis’ testimony that except for “extraordinary situations,” Tr. 624, he lived with his girlfriend rather than in the Third Street apartment.
Ill
The legal principles enunciated above do not exist merely to preserve the law’s logical consistency or precision. Reflecting that caution so basic to our jurisprudence, their purpose is to bar the imputation of guilt based on one’s associations, thereby preventing the chance of mistake and injustice when the evidence fails to indicate which of several suspects should be held responsible for drugs found in their shared residence.
In this case, however, the evidence is not merely silent about which of the three roommates participated in selling the hidden marijuana and LSD. Out of the presence of the jury, the prosecutor stated that Phoenix was “the main target in the case.” Tr. 679. The Government also supplied information for use in the presentence report indicating Phoenix was the “main drug dealer on the Howard University campus.” An undercover informer, who did not testify, had actually purchased drugs at the apartment from a “Felix,” someone he presumably could have identified as Phoenix. Finally, a ledger recovered from the apartment recorded narcotics sales by Phoenix and the third co-defendant, but not this appellant. Tr. 304-12; 365-71. The prosecutor frankly conceded the ledger incriminated the other two defendants but not Davis. Tr. 37-38. For various technical evidentiary reasons, none of this information was brought to the attention of the jurors, who convicted all three defendants alike.
These indications that appellant Davis had no part in the selling of the marijuana and LSD found concealed in his apartment underscore the prudence of the principles reviewed in Part II. But evidence of possible innocence is not a prerequisite to the activation of those principles. To the contrary, their purpose is to assure that no one is convicted simply because he is unable to refute an inference of guilt drawn from his proximity to drugs or his association with dealers. It is because the majority so carelessly disregards these legal safeguards that I dissent.
. At the close of the Government’s case, the trial judge dismissed four counts of the indictment charging possession with intent to distribute phencyclidine and hashish, simple possession of marijuana, and receipt of stolen property. The jury convicted appellant and his two co-defendants of possession with intent to distribute L.S.D., possession with intent to distribute marijuana, and simple possession of hashish. The jury acquitted them of possession of phenmetrazine and cocaine.
. United States v. Coombs, 150 U.S.App.D.C. 333, 464 F.2d 842 (1972); United States v. Lumpkin, 145 U.S.App.D.C. 162, 448 F.2d 1085 (1971); Crawford v. United States, 126 U.S.App.D.C. 156, 375 F.2d 332 (1967); Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947).
. Instruction 4.32, Criminal Jury Instructions for the District of Columbia, (2d ed., 1972). See also United States v. Palmer, 151 U.S.App.D.C. 317, 467 F.2d 371 (1972) (per curiam).
. Id. (Emphasis added).
. Constructive possession cases almost always require juries to draw subtle inferences regarding “the power and the intention to exercise dominion and control” indirectly from circumstantial evidence. Since the concepts involved are almost metaphysical, and easily misunderstood, judges should be especially vigilant to insure that there is adequate evidence to support a jury verdict. See generally, Whitebread & Stevens, Constructive Possession in Narcotics Cases, 58 Va.L.Rev. 751, 759-762, 765-66 (1972).
The danger that the jury has misunderstood what is required to convict is especially great here, where the jury was so confused by the definition of constructive possession that it requested a written copy of this portion of the instructions. Tr. 810.
The majority’s criticism of this opinion on the grounds that it “relies in part upon White-bread & Stevens,” supra, Majority op. at n.10, is misplaced. It is by no means clear that Whitebread & Stevens misstate the burden of proof, as the majority suggests. The full text of their comment is “Fourth, the jury’s willingness, despite curative instructions, to infer knowledge from slight circumstantial evidence shifts the burden of persuasion to the defendant regardless of the theoretical formulation that the state must overcome all reasonable inferences of innocence,” 58 Va.L.Rev. at 765 [emphasis indicates portion quoted in majority opinion]. As I read it, this is a reference to a case cited in the note on the preceding page and decided in a state which apparently does still adhere to the “negate all other reasonable inferences” formulation. See id, at 764 n.31, quoting from the dissent in People v. Valot, 33 Mich.App. 49, 189 N.W.2d 873 (1971).
. See Whitebread & Stevens, supra note 5, 58 Va.L.Rev. at 763-64. See also 9 Wigmore, Evidence, § 2515 (3d ed. 1940). Of course, constructive possession as defined above is not entirely congruent with “ownership.” A converter, for example, can be in constructive possession, as could a roommate who knows where drugs are hidden and intends to steal them.
. Annotation, Conviction of Possession of Illicit Drugs Found in Premises of which Defendant was in Nonexclusive Possession, 56 A.L.R. 3d 948, 957 (1974). Accord United States v. Bonham, 477 F.2d 1137, 1139 (3rd Cir. 1973) (en banc); Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958).
Nothing in my opinion in United States v. Holland, 144 U.S.App.D.C. 225, 445 F.2d 701 (1971), was intended to abrogate this widely recognized principle. Holland was a case involving an over-night visit by members of opposite sexes. We held that before a jury could make an inference of constructive possession, it must at a minimum have before it “information about the regularity with which the person in question occupied the place and about his special relationship with the owner or renter.” At 227, 445 F.2d at 703. But Holland clearly did not adopt the converse: that proof of regular occupancy is sufficient to establish constructive possession. (The majority agrees. Majority op.,-,-of 183 U.S.App.D.C., 692, 693 of 562 F.2d) Nor could it have done so in light of the definition of constructive possession discussed above.
. Blackstone, Commentaries on the Laws of England, iv, 27.
. Mere presence of paraphernalia in common areas occupied by several persons is as ambiguous as the presence of drugs themselves — either might belong to only some inhabitants. This is especially so when the drugs are hidden, so that other inhabitants may be completely unaware of their presence, or when the “paraphernalia”, although visible, consists of ordinary objects such as plastic bags or kitchen scales which are innocent in appearance but “could” be used to prepare drugs for sale.
. Those cases which rely on “plain view” to show that several individuals intended to exercise joint dominion and control rest on assumptions which are ripe for reexamination. Certainly “plain view” supports an inference of knowledge, but it is also probative of an intention to exercise dominion and control? The premise must be that one who is aware of the presence of narcotics would not remain in the vicinity unless he was a coventurer. That inference may have been valid in the past when drug abuse was uncommon. Today, 53 percent of young people between 18 and 25 admit having used marijuana, National Institute on Drug Abuse, The Public Experience with Psycho-Active Substances: A Nationwide Study Among Adults and Youth (Oct. 1975). It is time to ask whether passive toleration of drug usage has become so prevalent as to strip this inference of all probative value.
. Appellant took the stand in his own defense and admitted on cross-examination that a few of his possessions were in the living room closet. Tr. 616-17. However, in deciding whether the motion for judgment of acquittal at the close of the Government’s case should have been granted, we do not consider evidence adduced later. See Powell v. United States, 135 U.S.App.D.C. 254, 257 n.9, 418 F.2d 470, 473 n.9 (1969); Austin v. United States, 127 U.S.App.D.C. 180, 189, 382 F.2d 129, 138 (1967).
Even if considered, this testimony is insufficient. All three inhabitants had possessions in the closet, although most were Phoenix’s. Tr. 616-17. Thus, the closet was not under appellant’s special control so as to warrant an inference that anything found there was under his dominion and control. Cf. Walker v. United States, supra, 489 F.2d 714. Absent description of the items belonging to appellant found there, it cannot even be inferred he used the area frequently, rather than for storage, and so knew of the narcotics, much less that he intended to exercise control over them.
Appellant never admitted he was aware of the drugs hidden in the closet and refrigerator. On the contrary, appellant testified he did not live in the apartment at all but with his girlfriend, cf. Holland v. United States, supra note 7, using the apartment only as a mail drop and occasionally sleeping there.
. On the contrary, a number of legitimate prescription tablets belonging to Isaac were also seized.
. I believe there was sufficient evidence to permit the jury to infer that appellant was in constructive possession of the hashish in violation of 33 D.C.Code § 402 (1973), and therefore join the majority in affirming that count of the indictment. Appellant was found in his underwear in close proximity to the hashish. Smoking pipes and other paraphernalia for use were present. Appellant admitted having smoked marijuana in the apartment in the past. Tr. 581, 595. The hashish was left out in the open. Although it is close, I believe that that is enough to permit the jury to infer that appellant knew about the hashish and intended to exercise dominion and control over it by use.
The requirements of Holland, supra note 7, were satisfied by appellant’s having given the apartment as his address to the arresting officers. While appellant challenges the admission of the Police 163 Form showing this address, I cannot say the district judge — who observed the demeanor of the witness — abused his discretion in admitting the form based on the “refreshed recollection” of Officer Hill regarding his conversation with the appellant, Tr. 423-437, even though Hill remained unable to identify him.
. The letter was admitted over appellant’s timely hearsay objection to prove that he resided at the apartment. I agree that the letter was inadmissible as an implied statement by the sender, a declarant not present in court, that appellant received his mail at the address listed. See United States v. Davis, 506 F.2d 587 (6 Cir. 1974); United States v. Jackson, 469 F.2d 267 (9th Cir. 1972).
Nor is the problem cured by the “well-recognized presumptions relating to . . regularity of the mail.” Appellee’s brief, 8 n.6. The presumption only applies if it is first shown the letter was correctly addressed. 29 Am.Jur.2d Evidence § 196 at 249-50. See also Kiker v. Commissioner, 218 F.2d 389 (4th Cir. 1955); Flowers v. Aetna, 163 F.2d 411 (6th Cir. 1947).
However, I am satisfied beyond a reasonable doubt that the admission of the letter was harmless error. The letter was cumulative with the Police 163 Form and appellant’s own testimony that the apartment was his “legal and mailing address.” Tr. 576.
. See note 1 supra. The trial court suspended sentence and placed appellant on five years probation subject to the Youth Corrections Act, 18 U.S.C. § 5010(a), on all three counts concurrently. Since I agree that the conviction of simple possession of hashish should be affirmed, see supra note 13, appellant’s sentence might not be affected by the two possession with intent to distribute counts. In such circumstances our practice when troublesome problems are present is to vacate the judgment on the additional counts. See United States v. Hooper, 139 U.S.App.D.C. 171, 432 F.2d 604 (1970). Even though no reduction in sentence follows, the additional stigma arising from convictions of possession with intent to distribute is certainly substantial.
. United States v. Bonham, 477 F.2d 1137 (3rd Cir. 1973) (en banc). In Bonham, two brothers shared a bedroom. Both men were in the room when the officers entered. Heroin was discovered hidden in a recess above the doorway. An officer also testified that “suspected marijuana” and “suspected phenaphen tablets” were in plain view on a table. The Third Circuit reversed:
Here there was nothing except the joint occupancy of the room upon which an inference of possession could be based. A fact finder could only speculate whether both of the room’s occupants or a particular one of them even knew of the cache, must less exercised control over the hidden contraband.
477 F.2d at 1139. Nor would the presence of small quantities of drugs in plain view warrant an inference of possession regarding the drugs which were hidden:
We have not overlooked the testimony of one of the searching officers that suspicious articles other than heroin were found in plain view on a table in the bedroom. But even if the prosecution had proved that these articles were marijuana and phenaphen, as the officer said he suspected, appellant’s awareness of their presence would be no evidence of knowledge that heroin was concealed elsewhere.
Id. (This passage stands as an alternative rationale for the holding and is not dictum, as the majority asserts, supra n.17.)
See also Moore v. United States, 429 U.S. 20, 97 S.Ct. 29, 50 L.Ed.2d 25 (1976) (per curiam). The defendant had been convicted of possession with intent to distribute heroin. The evidence showed that when the police entered the apartment identified by an informant, they found Moore and a woman in close proximity to bags of heroin and narcotics paraphernalia lying on and under a coffee table. The Supreme Court vacated the conviction because *699the trial judge had relied on inadmissible hearsay evidence to find that Moore was a tenant of the apartment at the time of the seizure. The Court also remanded to the Fifth Circuit to determine whether the error was harmless, i.e., “whether or not the evidence of proximity alone, when viewed in the light most favorable to the prosecution, could suffice to prove beyond a reasonable doubt that Moore was in possession of the heroin”. At 22, 97 S.Ct. at 30. The Court stated that the answer to this question “was far from clear,” stressing that “the only competent evidence of Moore’s possession of the narcotics was his proximity to them in an apartment in which another person was also present and of which he was not shown to be the tenant or even a regular resident”. Id.
In the present case, the jury could have found that Davis was a tenant of the apartment. See note 13 supra. Yet Moore’s more general message — that we should be cautious in inferring possession from the fact that one is found near drugs — remains relevant.
. On occasion courts have upheld the inference of participation from mere presence at an illegal operation. United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965) (moonshine still); Beard v. United States, 65 U.S.App.D.C. 231, 82 F.2d 837, cert. denied, 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1382 (1936) (gambling parlor). However, those cases rest on the fact that the illegal activity was in active operation in the defendant’s presence. Since such illegal activities are usually carried out clandestinely, see United States v. Gainey, 380 U.S. at 67-8, 85 S.Ct. 754, anyone allowed to witness them is probably a trusted confederate or customer. Moreover, the Gainey court, while upholding the statutory presumption against due process attack, pointedly questioned whether the inference from mere presence would be sufficient to support a conviction. 380 U.S. at 68, 85 S.Ct. 754.
There was no evidence here that the defendant was present while narcotics were openly being packaged for sale. Cf. United States v. Moore, 158 U.S.App.D.C. 375, 442, 486 F.2d 1139, 1206 (en banc) (MacKinnon, J., concurring), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Davis, 461 U.S. 1026, 1036 (3rd Cir. 1972). On the contrary, the quantities of narcotics on which the possession with intent to distribute counts are based were hidden in the closet and refrigerator. (The majority repeatedly glosses over this fact, treating all the drugs as if they were equally in plain view. See, e.g., majority op., -,---:-, - of 183 U.S.App.D.C., 688, 689-690, 692 of 562 F.2d.) The so-called “paraphernalia” consisted of apparently innocent ordinary kitchen objects such as plastic bags and food scales. While their physical presence was “obvious,” their use for an illegal purpose was not. I do not contend that they were not in fact used for packaging marijuana, but only that Davis cannot be presumed necessarily to have known of their illicit use or to have so used them himself.
The District once had a statute making it a crime to be present in an establishment where narcotics drugs are sold with knowledge thereof unless “[one] gives a good account of his presence”. 22 D.C.Code 1515(a) (1973). That statute was declared unconstitutional in Holly v. United States, 150 U.S.App.D.C. 287, 464 F.2d 796 (1972). However, it is unlikely that Congress would have felt the need for such a statute in the first place if, as the majority apparently believes, someone present at a “large scale narcotics operation” was already guilty of the more serious offense of possession with intent to distribute.
. The majority also appears to rely on the fact that the baggies of marijuana hidden in the living-room closet were a large quantity. Majority op., -, - of 183 U.S.App.D.C., 684, 685 of 562 F.2d. However, the witness who testified for the government was only willing to say that it was more than one person would have for his own use, not more than three might. Tr. 347. This was no slip of the tongue. Immediately before, the expert testified the quantity of phencyclidine was more than one person might have for his own use. Tr. 346. When the prosecution followed up by *700asking if three people might have that quantity for their own use, the expert admitted they might. Tr. 346. As a result, the trial court dismissed the counts relating to possession of phencyclidine with intent to sell. Tr. 498-500.
The trial judge did not dismiss the marijuana counts relating to possession with intent to distribute even though the testimony was identical to that he had found insufficient regarding phencyclidine because he incorrectly remembered the expert testimony. His recollection was that the expert had said the marijuana was more than three people would have for their own use. Tr. 508. To compound the mistake, the prosecutor’s closing twice misrepresented to the jury that the quantity of marijuana was more than three people would have for their own use. Tr. 747; 753.
. Tr. 616, 624. After his direct examination, Davis agreed that his “place of abode” was his girlfriend’s residence and that it was an “extraordinary situation” when he stayed at the Third Street apartment. Id.
. To avoid the impact of cases such as United States v. Holland, supra note 7, 144 U.S.App.D.C. 225, 445 F.2d 701, and Moore v. United States, supra note 16, 429 U.S. 20, 97 S.Ct. 29, 50 L.Ed.2d 25, which indicate that an occasional visitor is not presumed to be in constructive possession of contraband found in an apartment (even if it is in plain view), the majority states, “whereas in Moore [there was no admissible indicia of residence,] the fact finder in this case could find on the basis of competent testimony that appellant lived in the apartment.” Majority op., n.14 (emphasis in original). See also majority op.,---of 183 U.S.App.D.C., 684 of 562 F.2d.
Of course, the precise question is not whether Davis “lived” in the apartment, but the “regularity with which [he] occupied the place”. United States v. Holland, supra note 7, 144 U.S.App.D.C. at 227, 445 F.2d at 703. To establish constructive possession, the government must show, inter alia, that Davis spent enough time in the apartment to impute to him knowledge of the marijuana hidden in the closet and the LSD in the refrigerator. See text at notes 3^1 supra. If one reads the evidence to show that Davis slept in the apartment frequently enough to be presumed aware of the hidden marijuana and LSD, then there can be nothing suspicious about his paying rent.