United States v. William D. Morgan , 581 F.2d 933 ( 1978 )

MacKINNON, Circuit Judge,

concurring:

I concur in the result of the majority opinion and generally in its analysis that the statement in the affidavit filed by the Government to support the search warrant is not hearsay under Rule 801(d)(2)(B) of the new Federal Rules of Evidence, and hence was admissible in appellant’s defense.

However, in the course of the opinion there are several observations and statements, not necessary to the decision, which could be read as carrying meanings with which I disagree. First, the following is stated at page 934 of the opinion:

A search of the basement resulted in seizure of seventy-seven additional such pills and $30 cash, found in a shaving kit secreted in a hole in the ceiling, Tr. 17; $4,280 cash, found in a fuse box, Tr. 42; $410 cash, found in a dresser drawer, Tr. 15; the birth certificate of a Kelsey Eth-eridge, found in an unidentified article of clothing on a chair, Tr. 265; and Ether-idge’s school identification, found on top of a television, Tr. 266. No fingerprints were taken from any of these particular items, Tr. 47-48, and no fingerprints at all were introduced at trial.

Later it is stated at page 936:

No fingerprints of his were found on any of the items concealed in the basement.

In many cases, the absence of fingerprint evidence is of no moment, as the situation involved may not involve circumstances where fingerprints would exist or otherwise would be salvageable. Reading over the list of “particular items” regarding which the opinion states “no fingerprints at all were introduced at trial” demonstrates that this is such a case. With one possible exception, none of the items listed are ordinarily conducive to the retention of fingerprints. This is true of the pills, cash, birth certificate of Etheridge, unidentified article of clothing, and the school identification of Etheridge. And Morgan’s fingerprints on Etheridge’s birth certificate and school identification would have had little or no significance. Thus, only the shaving kit might have made the Government’s case stronger if it had been shown to have Morgan’s fingerprints. There was, however, no showing in this record that the kit was composed of material that should be expected to acquire and retain evidence of fingerprints. The fact that no fingerprints were taken from any of these particular items or were introduced at trial is almost completely meaningless. See United States v. Lee, 166 U.S.App.D.C. 67, 71, 509 F.2d 400, 404 (1974), cert. denied, 420 U.S. 1006, 95 S.Ct. 1451, 43 L.Ed.2d 765 (1975).

The absence of fingerprints is one of those arguments that is frequently advanced when a guilty defendant cannot point to any real weakness in the prosecution’s case. The theory it seeks to advance to the jury and appellate court is that the Government’s case is weak because it did not produce some conclusive fingerprint evidence which is implicitly suggested, usually without any proof, as something that could have been obtained easily if the defendant had actually been involved and the officers not negligent. Not so. As here, most of the “items” that are so readily pointed to do not retain fingerprints; and with those articles that do, and which are actually directly connected with the offense, it must be remembered that those guilty of criminal offenses are very frequently careful not to leave fingerprints. Thus, the absence of fingerprints may really be an indication of the professionalism of the accused. Actually, a major criminal case in this district with significant fingerprint evidence is a rare exception. Yet, at infrequent intervals, we have a surfacing of claims that some significance should be given, in determining the guilt or innocence, of an accused, to the fact that there was an absence of fingerprint testimony. The argument may be valid in rare instances, but this case is not one of them. Hence, I disassociate myself from whatever inference might exist' from the statement in the opinion noting the absence of fingerprint testimony that the verdict was not reliable as a result of that absence. That the case might have been stronger with some unquestioned fingerprint testimony is self-evident, but its absence does not weaken the weight of the Government’s case.

The opinion also makes several references to the circumstantial evidence that supports the verdict. I do not read these statements as inferring in any respect whatsoever that because proof of an offense in some respects is based on circumstantial evidence, there is something weak or deficient about the resultant verdict. That circumstantial evidence is frequently used in narcotics prosecutions is not startling. People who engage in these narcotics offenses do not draw pictures. They do not publicly advertise that they have narcotics for sale or maintain books and records of their criminal activities. Major elements of their offenses are most frequently proven by circumstantial evidence, which in many instances is more trustworthy and reliable than direct evidence, such as some eyewitness testimony, for instance. It is also the only method of proof of certain elements of numerous crimes. Circumstantial evidence is nothing more than a rational inference from certain facts — the application of common sense inferences from reliable eviden-tiary facts. There is no reason to denigrate the verdict here because the jury drew the rational inferences that were apparent from the face of the evidence.

At page 936, the opinion states that when “two or more people” have access to drugs so that “any one, or all of them might be criminally culpable . . the threshold question is Who had possession?” I do not read this statement as conveying the impression that the inquiry in such cases must seek to determine which particular individual had sole possession; such a position would be erroneous. All that need be determined is whether the accused had possession. It is not necessary to determine that any single individual had sole possession — joint possession by two or more might suffice depending on the charge and joint possession in narcotics cases is very common. United States v. Davis, 183 U.S.App.D.C. 162, 562 F.2d 681 (1977).

I also do not read the statement at page 936 that “it is not clear whether the jury found that appellant intended to distribute the twelve pills ... or the seventy-seven pills . . . ” as carrying an inference that the amount appellant intended to distribute affected the reliability of the verdict. Actually, as between these two alternatives, it is immaterial whether he intended to distribute only the twelve pills, or only the seventy-seven pills, or both. The court charged the jury that a guilty verdict could be returned if they found that he knowingly and intentionally possessed with specific intent to distribute “some measure-able amount of the controlled substance” (Tr. 296-97). The evidence of record indicated that either the pills seized from the floor in the hallway or those seized from the ceiling in the basement were “measure-able amounts” sufficient to support an inference that they were possessed “for distribution” (Tr. 110-11). Since the jury was properly charged and a verdict could rest properly on either quantity, or the total of all the pills, it is of no consequence that the record does not indicate which of the three alternatives was found by the jury.

I do not read these various statements in the opinion as containing these potential inferences of incorrect and immaterial content. Hence, I am able to concur in the result and the reasoning upon which the holding is based.