United States v. Roderick L. Cochran ( 2012 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 14, 2012
No. 11-11923
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:10-cr-00055-CEH-DNF-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
RODERICK L. COCHRAN,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 14, 2012)
Before WILSON, ANDERSON and HIGGINBOTHAM,* Circuit Judges.
*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
WILSON, Circuit Judge:
Roderick Cochran was convicted for possessing with intent to distribute five
grams or more of cocaine base and possessing with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1). The cocaine and cocaine base at
issue were discovered when officers searched a residence; Cochran was standing
in the driveway of that residence at the time of the search. The government’s
theory of the case was that although Cochran lacked actual possession of the
contraband, he constructively possessed the drugs. This circuit’s pattern jury
instruction regarding constructive possession states: “‘Constructive possession’ of
a thing occurs if a person doesn’t have actual possession of it, but has both the
power and the intention to take control over it later.” 11th Cir. Pattern Jury
Instructions (Criminal), Special Instruction 6 (2010). The government requested
that an additional sentence be added: “Constructive possession of a thing also
occurs if a person exercises ownership, dominion, or control over a thing or
premises concealing the thing.” The district court permitted the instruction over
Cochran’s objection.
Cochran argues on appeal that this jury instruction was misleading as a
matter of law. He also argues that the district court abused its discretion by
admitting evidence of his prior drug-related offense, and he challenges the
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sufficiency of the evidence to sustain his convictions.
I.
On December 18, 2009, authorities executed a search warrant of the
residence at 110 Lucille Avenue while Cochran was standing in the driveway of
that home. Cochran was detained while officers conducted the search. Inside the
house, authorities found ammunition in a dresser drawer in one of the bedrooms; a
digital scale and a small quantity of cocaine in a dresser of another bedroom; small
bags containing cocaine and crack, two forks, and a measuring cup bearing drug
residue in the kitchen; and more bags of drugs and paraphernalia in a converted
living space that had previously been a garage.
Cochran was indicted and charged with possessing ammunition after having
been convicted of a felony, 18 U.S.C. §§ 922(g)(1), 924(e), and 2 (count one);
possessing with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii) and 18 U.S.C. § 2 (count two); and possessing with intent to
distribute cocaine, 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (count
three). Cochran pled not guilty, and the case proceeded to trial.
During trial, the government called Officer Candice Pettacio as a witness,
and she testified that she had been using binoculars to conduct surveillance of the
110 Lucille Avenue residence prior to the search on December 18, 2009. She
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stated that she was positioned about a block and a half away from the home and
had seen a black male, later identified as Cochran, exit and re-enter the residence
several times. On cross-examination, Cochran presented Pettacio with a number
of photographs of the area taken in 2010 and pointed out how trees and foliage
blocked the view of the residence from her alleged vantage point. Pettacio replied
that the photographs did not accurately depict what she recalled of the scene. She
also stated that she had returned to the neighborhood in August or September of
2010 and that new obstructions, such as cars and overgrown vegetation, had made
it impossible to see 110 Lucille Avenue from her prior point of observation. She
then reiterated her testimony that in 2009 she had been able to observe Cochran
leave and re-enter the house with the aid of her binoculars.
Following Pettacio’s testimony, members of the SWAT team who raided the
home testified that they had seen no one in the house other than a young child.
The government then called Officer Kelly Witt as a witness. He recounted that he
had assisted with the search and had discovered in the kitchen two forks, a
measuring cup bearing drug residue, and a cigar box containing a number of small
plastic bags filled with drugs. Witt also found drugs and paraphernalia in one of
the bedrooms of the home and in the converted garage. Witt further stated that
during the search he encountered a piece of mail sitting on the kitchen table. The
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envelope was addressed to both Roderick Cochran and Rodnesha Cochran at 110
Lucille Avenue and listed “Life Skills” as the sender. Witt testified that he
searched Cochran and found in Cochran’s pocket a key that unlocked the door of
the residence. He also obtained Cochran’s driver’s license, which reflects that
Cochran’s address is 116, rather than 110, Lucille Avenue. On cross-examination,
Witt testified that no contraband had been found in the living room and that the
drugs in the kitchen were found on top of a kitchen cabinet, near the ceiling, and
in a cigar box under the microwave stand. He also confirmed that Cochran’s
fingerprints were not detected on any of the items seized in the search.
The government also called Officer Dominic Zammit as a witness. Zammit
described the circumstances surrounding Cochran’s arrest in 2004, which involved
Cochran possessing packets of powder cocaine and marijuana.1 The district court
instructed the jury that Zammit’s evidence was only relevant to determine whether
Cochran had “the intent necessary for the crime charged, knowledge, motive, and
absence of mistake or accident.” After the government rested, Cochran moved for
a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The
district court denied the motion.
1
Prior to trial, the government filed a motion to admit evidence of Cochran’s 2004
offense. The district court granted that motion over Cochran’s objection.
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The defense then called Cochran’s daughter, Rodnesha Cochran. She
testified that she had lived at 110 Lucille Avenue with her uncle for two or three
months but had moved out a few weeks before the police search. During the time
she lived in the home, she attended an educational institution called Life Skills.
Rodnesha stated that Cochran lived with his mother at 116 Lucille Avenue but had
visited 110 Lucille Avenue many times. She also testified that she had seen drugs
in the home on many occasions, that the house was heavily trafficked in the
evenings, and that she had witnessed her uncle using drugs. The principal of Life
Skills then testified that letters sent to students were addressed using a mailing
system that automatically added the student’s listed contact person as a recipient
but otherwise utilized only the student’s street address.
The defense also called an investigator for the Federal Public Defender’s
Office who had photographed the area around 110 Lucille Avenue in August
2010. The investigator testified that it was impossible to view the residence from
Officer Pettacio’s alleged stake-out position.
The government called rebuttal witness Demeitra Battle, Rodnesha’s
juvenile probation officer. Battle testified that Rodnesha had reported that she and
her father both resided at 110 Lucille Avenue. Battle also stated that Rodnesha
had said that she wanted to move out of the house at 110 Lucille Avenue because
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“her father was having company that she didn’t approve of.” Another officer
testified that he had been sent to the residence to check on Rodnesha and had
witnessed Cochran in the home.
Following the close of evidence, the court discussed the proposed jury
instructions with the parties. The government requested that the jury be given a
possession instruction that consisted of the standard pattern instruction language
plus an additional sentence more tailored to the circumstances of the case:
The law recognizes several kinds of possession . . . . Actual
possession of a thing occurs if a person knowingly has direct physical
control of it. Constructive possession of a thing occurs if a person
doesn’t have actual possession of it but has both the power and the
intention to take control over it later. Constructive possession of a
thing also occurs if a person exercises ownership, dominion, or
control over a thing or premises concealing the thing.
Cochran argued in response that the addition of the final sentence to the pattern
instruction omitted the knowledge element and stripped the instruction of the
essential “power and intention to take control” language. He also contended that
although evidence of dominion or control over the premises where contraband is
located may serve as circumstantial evidence, it does not automatically establish
constructive possession. The district court permitted the instruction over
Cochran’s objection.
The court addressed the jury, beginning by advising it to follow all of the
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instructions as a whole. It read to the jury the definition of “knowingly” and later
in the instructions stated that the drug possession crimes required the defendant to
have “knowingly possessed” the drugs at issue. The court then recited another
paragraph of instructions before reaching its instruction regarding types of
possession, in which it delivered the objected-to language requested by the
government.
After the jury retired for deliberations, it submitted a question to the court:
“If you have free access to a home then do you have constructive possession of the
contents?” The district court replied that it could not answer the question and
instructed the jury to consult the jury instructions. During deliberations the next
day, the jury again sent a note to the district court, this time asking: “Regarding
Count 1 [the ammunition charges] does the definition of constructive possession
apply to the phrase ‘knowingly possess?’” Again the district court referred the
jury to the jury instructions, refusing to answer the question.
Ultimately, the jury returned a verdict finding Cochran not guilty of count
one, the ammunition charges, but guilty regarding count two and count three, the
drug offenses. Cochran was sentenced to 132 months in prison. This appeal
followed.
II.
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Cochran first argues, as he did below, that the jury instruction regarding
constructive possession was misleading as a matter of law. We review jury
instructions that were properly challenged below de novo to determine “whether
the instructions misstated the law or misled the jury to the prejudice of the
objecting party.” United States v. Felts, 579 F.3d 1341, 1342 (11th Cir. 2009) (per
curiam). We analyze the objected-to portion of the instructions “in light of the
entire charge” and we keep in mind “that isolated statements which appear
prejudicial when taken out of context may be innocuous when viewed in light of
the entire trial.” United States v. McCoy, 539 F.2d 1050, 1063 (5th Cir. 1976).2
We will reverse only if we have a “substantial and ineradicable doubt as to
whether the jury was properly guided in its deliberations.” United States v.
Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001) (quotation marks omitted).
We agree with Cochran that there were a number of problems with the given
constructive possession instruction. The standard pattern jury instruction in this
circuit regarding constructive possession is: “‘Constructive possession’ of a thing
occurs if a person doesn’t have actual possession of it, but has both the power and
the intention to take control over it later.” 11th Cir. Pattern Jury Instructions
2
The Eleventh Circuit has adopted as binding precedent all Fifth Circuit cases handed
down on or before September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).
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(Criminal), Special Instruction 6 (2010) (emphasis added). The government’s
suggested addition that, “[c]onstructive possession of a thing also occurs if a
person exercises ownership, dominion, or control over a thing or premises
concealing the thing,” eliminates the “power and the intention to take control over
it later” language. That omission is especially troubling given that the definition
of “constructive possession” immediately follows the instruction that “[a]ctual
possession of a thing occurs if a person knowingly has direct physical control of
it.” 11th Cir. Pattern Jury Instructions (Criminal), Special Instruction 6 (2010)
(emphasis added). Such a juxtaposition could create an inference that constructive
possession, as defined by the government’s instruction, lacks an intentionality
requirement.
Furthermore, the supplemented constructive possession instruction states
that control over the premises—rather than control over the contraband itself—is
sufficient to convict. Although we have found control of premises to be enough to
uphold a conviction on a sufficiency of the evidence challenge, see, e.g., United
States v. Poole, 878 F.2d 1389, 1392 (11th Cir. 1989) (per curiam), that does not
mean that the jury should be instructed that control of premises can serve as a sole
basis of conviction. We have indicated that the essence of constructive possession
is the power to control the contraband itself and that control of the premises
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simply permits an inference of that power. See United States v. Mieres-Borges,
919 F.2d 652, 657 (11th Cir. 1990) (“[C]onstructive possession . . . may be shown
circumstantially through evidence of ownership, dominion, or control over the
premises on which the substance is located.” (emphasis added)). It is the jury’s
choice and responsibility to draw inferences, see United States v. Henderson, 693
F.2d 1028, 1031 (11th Cir. 1982), and we disapprove of a jury instruction that
invades the jury’s province by implicitly mandating an inference.
Although we agree that district courts should utilize a constructive
possession instruction more precise than the one given in this case, we cannot say
that we are left with a “substantial and ineradicable doubt” as to whether the jury
was properly guided here. It is an established principle that we evaluate a jury
instruction in the context of the overall charge. See United States v. Park, 421
U.S. 658, 674, 95 S. Ct. 1903, 1912 (1975). Thus, when making our review we
employ a holistic approach, rather than “isolating and examining the deficiencies
of individual instructions.” Lomelo v. United States, 891 F.2d 1512, 1518 (11th
Cir. 1990) (quotation marks omitted). We find that although the wording of the
final sentence of the constructive possession instruction would have been more
clear if it included language about knowledge or intent, that flaw is mitigated by
the totality of the instructions. Because here the jury instructions stated in a
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different section that possession of the contraband had to be knowing, the failure
to reiterate that requirement does not constitute reversible error. Additionally, the
government during trial and in its closing argument repeatedly emphasized that it
needed to prove that Cochran knowingly possessed the cocaine and cocaine base.
See Park, 421 U.S. at 674, 95 S. Ct. at 1913 (“[I]n reviewing jury instructions, our
task is also to view the charge itself as part of the whole trial.”). The jury’s
decision to convict Cochran of the drug charges but acquit him of the ammunition
charges demonstrates an understanding of that instruction, given that the
ammunition was hidden in a bedroom dresser drawer while the drugs were located
in plain sight in the converted garage and present in common areas of the home.
On the whole, we find that the wording of the jury instructions created a
difficulty—a difficulty that might have been avoided had the district court
answered the jury’s questions. However, we do not find that the jury was actually
misled or that Cochran was prejudiced by the instruction, given the circumstances
of the case and the fact that other provisions of the jury instructions laid out the
proper elements of the offense.
III.
Cochran next argues that the district court erred in admitting evidence of his
prior drug offense. We review the district court’s admission of Rule 404(b)
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evidence for abuse of discretion, United States v. Brown, 587 F.3d 1082, 1091
(11th Cir. 2009), and use a three-part test in our evaluation. “First, the evidence
must be relevant to an issue other than the defendant’s character.” United States v.
Miller, 959 F.2d 1535, 1538 (11th Cir. 1992) (en banc). Second, “there must be
sufficient proof so that a jury could find that the defendant committed the extrinsic
act.” Id. “Third, the evidence must possess probative value that is not
substantially outweighed by its undue prejudice, and the evidence must meet the
other requirements of Rule 403.” Id.The government in this case was tardy in filing notice that it wished to
introduce prior crimes knowledge, but it claimed that its belatedness was due to
the fact that it had just learned that Cochran intended to raise as a defense the
argument that he did not live at 110 Lucille Avenue. Cochran contends that such
evidence is not relevant to the issue of where he resided. However, Cochran pled
not guilty, and “[a] defendant who enters a not guilty plea makes intent a material
issue.” United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995).
Cochran also contends that his 2004 offense was too remote to be probative
and that the offense was dissimilar because it involved different drugs. We cannot
agree. We have approved of the introduction of evidence regarding acts more
remote than those at issue here. See, e.g., United States v. Matthews, 431 F.3d
131296, 1311–12 (11th Cir. 2005) (per curiam) (offense was eight years prior);
United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (offense was
fifteen years prior). We have also held that prior convictions for drug trafficking
are considered highly probative of intent to commit the charged drug trafficking
offenses. Brown, 587 F.3d at 1091. Because the contested evidence was relevant,
sufficiently supported, and more probative than prejudicial, we find that the
district court did not abuse its discretion in granting its admission.
IV.
Finally, Cochran contends that the evidence presented at trial is not
sufficient to support his conviction. We review de novo whether there is sufficient
evidence to support the jury’s verdict and whether the district court properly
denied Cochran’s motions for a judgment of acquittal. United States v. Merrill,
513 F.3d 1293, 1299 (11th Cir. 2008). In doing so, we examine the evidence “in
the light most favorable to the government, with all reasonable inferences and
credibility choices made in the government’s favor.” United States v. Ortiz, 318
F.3d 1030, 1036 (11th Cir. 2003) (per curiam). We affirm a verdict if a reasonable
trier of fact could conclude that the evidence establishes guilt beyond a reasonable
doubt. Id.To support a conviction under 21 U.S.C. § 841(a)(1), the government had to
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show that Cochran had knowing possession of the drugs and an intent to distribute
them. See United States v. Faust, 456 F.3d 1342, 1345 (11th Cir. 2006).
Although Cochran acknowledges that a possession conviction may be upheld
where the government has shown that the defendant had dominion and control
over the premises containing the contraband, see United States v. Clay, 355 F.3d
1281, 1284 (11th Cir. 2004) (per curiam), Cochran argues that no reasonable jury
could have concluded that he enjoyed such dominion and control. He contends
that no evidence linked him to any of the drugs found within the house and that
“mere presence in the area of contraband or awareness of its location is not
sufficient to establish possession.” United States v. Gardiner, 955 F.2d 1492,
1495 (11th Cir. 1992) (quotation marks omitted). He also challenges the
credibility of Pettacio’s testimony regarding her observation of 110 Lucille
Avenue from her vantage point a block and a half away.
We disagree with Cochran’s assertion that no evidence tied him to the
contraband. During trial, the government presented evidence that Cochran was
found standing in the driveway of the residence where the contraband was located
with a key to the home in his pocket. Officer Pettacio testified that she had seen
him enter and exit the house a number of times just before it was searched.
Because we do not find her testimony that she was able to observe the house using
15
binoculars to be “incredible as a matter of law,” that is, “relat[ing] to facts that
[she] could not have possibly observed or events that could not have occurred
under the laws of nature,” we will not disturb the jury’s findings. United States v.
Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (per curiam) (quotation marks
omitted). Additionally, it was shown that the drugs were present in common areas
of the house and located in plain view in the converted garage. A letter was found
within the residence that was addressed to Cochran, and Cochran’s daughter
acknowledged that he frequented the home. Finally, evidence was presented that
Cochran had been convicted of prior drug-related crimes, which bears on his
intent.
It is true that the defense presented testimony that contradicted the
government’s case, but “all conflicts in the evidence must defer to the jury’s
resolution of the weight of the evidence and the credibility of the witnesses.”
United States v. Pearson, 746 F.2d 787, 794 (11th Cir. 1984). “It is not necessary
that the evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, provided that a reasonable
trier of fact could find that the evidence established guilt beyond a reasonable
doubt.” United States v. Harris, 20 F.3d 445, 452 (11th Cir. 1994). We find the
evidence here sufficient to sustain Cochran’s convictions.
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V.
In conclusion, although we disapprove of the constructive possession
instruction given to the jury, we do not find that under the circumstances of this
particular case it misled the jury or prejudiced Cochran. We also find that the
district court committed no abuse of discretion in admitting the Rule 404(b)
evidence and that there is sufficient evidence to uphold Cochran’s convictions.
AFFIRMED.
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