United States v. Martorano, Raymond, A/K/A Lon John ( 1983 )

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

Appellant challenges his conviction for possession of a controlled substance, phenyl-2-propanone (P-2-P), with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). Appellant contends that the evidence at trial was insufficient to prove that he had possession of the P-2-P because the government never surrendered dominion and control over it and appellant therefore never had the ability to actually or constructively possess it. We reject appellant’s contentions and will affirm the district court.

I.

Raymond Martorano and two co-conspirators, John Berkery and Frank Vadino, were indicted for conspiring to distribute and to possess with intent to distribute P-2-P in violation of 21 U.S.C. § 846; they were also indicted for possession of P-2-P with intent to distribute it in violation of 21 U.S.C. § 841(a)(1).¹ Martorano was tried before a jury that found him guilty of the conspiracy and possession charges. The district court denied Martorano’s post-trial motions for acquittal and for a new trial, United States v. Martorano, 541 F.Supp. 1226, 1230 (E.D. Pa.1982), and sentenced him to consecutive five-year terms of imprisonment followed by a three-year term of special parole. Martorano does not contest his conspiracy conviction. He challenges only his conviction under 21 U.S.C. § 841(a)(1) for possession of a controlled substance with intent to distribute it.

II.

The facts of this case are uncontested. In June 1981 Martorano initiated² the purchase of 52 gallons of P-2-P from Ronald Raiton, a large distributor of P-2-P in the Philadelphia area. From October 1980 to June 1981, Raiton sold some 200 gallons of P — 2-P to Martorano’s co-conspirator, John Berkery, for which Martorano guaranteed payment. Unbeknown to Martorano and Berkery, Raiton became an undercover informant early in 1981. Martorano met with Raiton on two occasions, June 19 and July 1,1981, to discuss the details of Martorano’s prospective purchase of the P-2-P. The two men agreed to a plan devised by Marto-rano under which Raiton would rent a van, place the P-2-P in the van and park the van near Philadelphia’s Rittenhouse Square. Raiton was then to meet Martorano in the Square at 1 p.m. on August 1, 1981 to turn over the keys and registration to the van in exchange for a paper bag containing payment for the P-2-P which would be given to Raiton by an agent of Martorano.

Pursuant to Martorano’s plan, Raiton rented a van on July 28,1981. However, he delivered the van to F.B.I. agents who loaded it with 52 gallons of P-2-P acquired from a federal storage facility in Florida. The F.B.I. agents placed a specially purchased padlock on the rear doors of the van. They drove the van to a location near Rit-tenhouse Square where they parked and maintained uninterrupted surveillance of the van.

The agents gave the keys to the van and the lock to Raiton and told him where the van was parked. Raiton then went to Rit-tenhouse Square and met Martorano as scheduled. After writing the location of the van on a piece of paper at Martorano’s request, Raiton accompanied Martorano to a park bench in Rittenhouse Square where Vadino was sitting holding a shoebox containing $100,000. Martorano took the box from Vadino and handed it to Raiton; Mar-torano then gave Vadino the paper with the location of the van written on it and told Vadino to “check out” the van.

Vadino went with Marco DeTullio to inspect the van. In the meantime Raiton and Martorano completed the transaction in Rit-tenhouse Square. Martorano handed Rai-ton an additional $4,000 in cash, and Raiton gave the keys to the van and the padlock to Martorano. Martorano later gave these keys to DeTullio who returned to the van. DeTullio unlocked and entered the van. He sat in the van for 1 to IV2 minutes before he was apprehended by F.B.I. agents and Philadelphia police who were in the area of the van to maintain surveillance of it and to prevent its removal. They removed DeTullio from the van and placed him under arrest, and they seized the van and the P-2-P. Martorano and Vadino sped away from the scene, but they were later apprehended.

III.

It is well settled that when a defendant is charged with possession of a controlled substance with intent to distribute it in violation of 21 U.S.C. § 841(a)(1), possession can be either actual or constructive. United States v. Raper, 676 F.2d 841, 847 (D.C.Cir.1982); United States v. Grayson, 597 F.2d 1225, 1229 (9th Cir.), cert. denied, 444 U.S. 873, 875, 100 S.Ct. 153, 157, 62 L.Ed.2d 99, 102 (1979); United States v. Crippen, 459 F.2d 387, 1388 (3d Cir.1972). Constructive possession may be shown through either direct or circumstantial evidence. United States v. Raper, 676 F.2d at 847; United States v. Grayson, 597 F.2d at 1229; United States v. Davis, 461 F.2d 1026, 1035 (3d Cir.1972). Constructive possession may be found if the evidence shows that the defendant “was knowingly in a position, or had the right to exercise ‘dominion and control’ of the drug either personally or through others.” United States v. Raper, 676 F.2d at 847.

Martorano challenges his conviction on the grounds that these facts are insufficient to prove that he had possession of the P-2-P. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether a jury could reasonably infer from the evidence that the defendant is guilty of the offense with which he is charged. United States v. Davis, 461 F.2d at 1035. The evidence must be construed in the light most favorable to the government. Id. at 1036.

The government concedes that Martorano did not have actual possession of the P-2-P. Thus, the crucial issue before us is whether the evidence was sufficient for the jury to find that Martorano had constructive possession of the P-2-P. Martorano insists that he did not have constructive possession because the P-2-P remained at all times within the dominion and control of the F.B.I. Martorano’s claim is predicated on the theory that constructive possession entails dominion and control giving the alleged constructive possessor the power to dispose of the drug. United States v. Batimana, 623 F.2d 1366, 1369 (9th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 617, 66 L.Ed.2d 500 (1980); United States v. Barnett, 468 F.2d 1153, 1155 (9th Cir.1972); Arellanes v. United States, 302 F.2d 603, 606 (9th Cir.1962). Although Martorano and his co-conspirators expected DeTullio to drive away in the van that contained the P-2-P, Martorano claims that at no time did DeTullio possess the power to do so because of the presence of the law enforcement officers who were determined not to allow the van to be driven away. Thus, the basis of Martorano’s claim is that the conspirators did not exercise actual dominion and control over the P-2-P because they did not acquire the power to dispose of it. Therefore, Martorano contends that he did not have constructive possession of the P-2-P.

The government, on the other hand, argues the theory of constructive possession adopted by the court below. Relying on United States v. Moreno, 649 F.2d 309, 312 (5th Cir.1981) and United States v. Crippen, 459 F.2d at 1388, the district court held that “[constructive possession may be established by a showing of ownership, dominion, or control over the contraband ... or over the vehicle in which the contraband was concealed.” United States v. Martorano, 541 F.Supp. at 1228. The court interpreted “dominion, or control” to mean “the ability to reduce [a controlled] substance to actual possession ...." Appendix at 146a.

The government insists that the ability to distribute or dispose of the P-2-P free of police interference is not necessary to show constructive possession because constructive possession of the P-2-P occurred at the moment that Martorano had the ability to reduce it to actual possession. It argues that Martorano’s ability to reduce the P-2-P to actual possession can be shown in two ways. It therefore offers two theories on which Martorano’s constructive possession can be based. First, the government contends that Martorano acquired constructive possession when Raiton gave him the keys to the van and the padlock. Second, it contends that Martorano had constructive possession of the P-2-P by virtue of DeTul-lio’s actual possession of the van and the P-2-P that it contained. The government notes that Martorano gave the keys to his agent, DeTullio; that DeTullio actually entered the van in possession of these keys; that DeTullio inserted the key in the ignition. DeTullio need only have started the engine and driven away to remove the van and the P-2-P from the place where the van was parked. The ultimate legal issue thus becomes whether the evidence was sufficient for the jury to find that Martorano had dominion and control of the P-2-P even though DeTullio did not start the van and drive it out of its parking spot.

IV.

Judicial interpretations of the nature of “dominion and control” which constitutes constructive possession are conflicting. Martorano relies on the Ninth Circuit’s definition of constructive possession as “dominion and control ... so as to give power of disposal of the drug.” Arellanes v. United States, 302 F.2d at 606; see also United States v. Batimana, 623 F.2d at 1369; United States v. Barnett, 468 F.2d at 1155. He believes that, under this theory, the evidence in this case fails to establish constructive possession.

The Ninth Circuit’s theory of constructive possession on which Martorano relies is not necessarily applicable to this case because its theory was developed and applied to determine the degree of appellant’s participation in crimes committed by others. In Arellanes v. United States, supra, for example, defendant was the wife of a man convicted of importing and possessing heroin and marijuana in violation of the Narcotic Drugs Import and Export Act. She was convicted, inter alia, on evidence that she occupied an apartment with her husband in which drugs were found and had accompanied her husband on a trip in a car in which other drugs were discovered. The issue in Arellanes was whether defendant’s presence with her husband and the drugs was “a conclusively incriminating circumstance,” 302 F.2d at 606, sufficient to “show the possession or control which the government must establish to raise the presumption of guilty knowledge.” Id. at 606-07. (Emphasis in original.) The court held that it was not because “Mrs Arellanes’ presence with both [her husband and the narcotics] is as fully explained by her attachment to her husband as it might be by a control over the drugs.” Id. at 606. The court defined dominion and control as the ability to produce the drug for sale as a means of determining whether the defendant had guilty knowledge of the drugs and participated in the crime.

Thus, even if we were to apply the theory in Arellanes to this case, a jury still could have found that Martorano had constructive possession of the P-2-P. Martorano admits that the “evidence [was] sufficient to show an attempt by Martorano through DeTullio to possess the P2P,” Brief on behalf of Appellants at 13, and that he participated in the sale of the P-2-P. Martorano was not acting as a philanthropist to benefit the people in Rittenhouse Square. The record establishes that Martorano handed over $104,000 to Raiton with the intent to possess the P-2-P for the purpose of distributing it. Therefore, on these facts, Martorano’s presence at the scene of the transaction is “a conclusively incriminating circumstance,” Arellanes v. United States, 302 F.2d at 606, to satisfy the test of “dominion or control ” required by the court in Arellanes.

However, Arellanes is clearly distinguishable from the instant case. In Arellanes, the court was “pass[ing] upon the meaning of the word ‘possession’ as used in 21 U.S.C. §§ 174 and 176a.” Id. at 606. This statute has since been repealed and is not relevant to the instant case. Moreover, the issue before us is the proper definition of “con-' structive. possession,” not “actual possession.” Finally, the question in this case is not whether Martorano had guilty knowledge of and participated in a crime.

United States v. Barnett, supra, can be distinguished on similar grounds. The question in Barnett was whether appellant’s participation in a drug sale was sufficient to constitute a violation of the now repealed 21 U.S.C. § 174. The court asserted

that a finding of possession turns upon whether

‘One [has] a working relationship or a sufficient association with those having physical custody of the drugs so as to enable him to assure their production, without difficulty, to a customer .... But a casual facilitator of a sale, who knows a given principal possesses and trades in narcotics but who lacks the working relationship with that principal that enables an assurance of delivery, may not be held to have dominion and control over the drug and cannot be said to have possession of it.’

United States v. Barnett, 468 F.2d at 1155, quoting Hill v. United States, 379 F.2d 811, 814 (9th Cir.1967). The court found that Barnett’s association with his co-defendants was insufficient to give him dominion and control over, and therefore, possession of the drug. However, in the instant case, Martorano does not challenge the sufficiency of his association with DeTullio. Indeed, he could not successfully raise such a challenge because the record demonstrates that DeTullio was Martorano’s agent and that he was under Martorano’s control. Therefore, Martorano could have been found guilty under the theory applied in Barnett because he was able to assure customers that he could produce the P-2-P barring unforeseen police interference.

In United States v. Batimana, supra, the third case on which Martorano relies, appellants acted as lookouts for their co-conspirator who purchased heroin from a police informant for the purpose of distributing it in violation of 21 U.S.C. § 841(a)(1). Although appellants were present at the sale and the principal stated that appellants were to sell the heroin the next day, the court concluded that the appellants did not assert dominion and control over the heroin.

The facts of Batimana are not inconsistent with a finding of constructive possession in this case. In Batimana, the conspirators were in a hotel room with the informant/seller; the heroin was delivered; the informant/seller took possession of the heroin, but he never relinquished control; DEA agents entered the hotel room and arrested the conspirators within minutes of their delivering the heroin. The evidence shows that none of the conspirators took actual possession of the heroin. The record is also devoid of evidence showing that a purchase and sale of the heroin was effected before the arrests. Moreover, appellants did not participate in a conversation between the principal and the informant that might have resulted in the purchase and sale. Therefore, the appellants, and possibly even the principal, did not have dominion and control that might have enabled them to take active possession let alone to dispose of the drug.

Batimana, therefore, is distinguishable from the instant case. Here, the purchase and sale were completed; Martorano’s agent was in sole possession of the van and of the keys to the van in which the P-2-P was contained; he was in sole possession of the key to the lock that secured the P-2-P. In short, the government agents here had relinquished actual possession of the P-2-P to Martorano and his co-conspirators.

The interpretation of dominion and control as the ability to reduce an object to actual possession relied upon by the district court was affirmed in cases that were based on the same statute and that are factually more similar to the instant case than those relied upon by appellant. This theory was used in those cases to decide the same issue that is before us: whether the appellants had dominion and control sufficient to attribute to them constructive possession of a controlled substance with the intent to distribute it. It is this theory which we adopt today in interpreting constructive possession. Applying this theory to the facts of this case, we conclude that Martorano acquired constructive possession of the P-2-P when he acquired actual possession of the keys to the van and to the padlock. He remained in constructive possession after he gave the keys to his agents who subsequently took actual possession of the van. Our conclusion finds support in the following cases.

For example, in United States v. Moreno, supra, appellant directed eo-eonspirators in a plan to load and transport 1936 pounds of marijuana that was owned by appellant’s brother. Before the co-conspirators reached their destination, they were stopped by border patrol agents who discovered the marijuana. Appellant and the other co-conspirators were indicted for conspiracy to possess marijuana with intent to distribute it, and for possession of marijuana with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1).

They were convicted, and appellant challenged his conviction for possession of marijuana with intent to distribute it on the ground that the evidence failed to prove that he had actual or constructive possession of the marijuana. The court upheld Moreno’s conviction after finding that he played an “integral part of the narcotics distribution operation and ... enjoyed a close and continuous working relationship with those ... who may have had actual physical possession of the marijuana.” United States v. Moreno, 649 F.2d at 313. The court noted that Moreno, as did Marto-rano in the instant case, “instruct[ed] and monitor[ed] the progress of the men who had actual possession of the marijuana ... .” He also had the responsibility to pay them for their services. The court held that

[pjhysical custody of narcotics by an employee or agent whom one dominates, or whose actions one can control, is sufficient to constitute constructive possession by the principal.

Id.

The theory of Moreno, supra, is applicable to the instant case in which DeTullio was Martorano’s agent and was subject to Mar-torano’s control. Martorano monitored De-Tullio’s actions. DeTullio exercised dominion and control over the P-2-P by virtue of his actual possession of the van in which it was contained. Therefore, under the theory of Moreno, a jury could find that Marto-rano had constructive possession of the P-2-P.

Our conclusion finds additional support in United States v. Martinez, 588 F.2d 495 (5th Cir.1979). In Martinez one Harmon was stopped at a Texas border patrol checkpoint and detained for questioning after the agent detected the odor of marijuana emanating from the trunk of the car Harmon was driving. However, Harmon did not have the trunk key. Appellant was driving another car through the same checkpoint at approximately the same time. He was stopped also. The agent learned that appellant possessed the key to the trunk of Harmon’s car as well as the keys to two suitcases and two chests that were found in the trunk, all of which contained marijuana. Appellant was indicted, tried and convicted of knowingly or intentionally possessing a controlled substance with intent to distribute it in violation of 21 U.S.C. § 841(a)(1).

The court rejected appellant’s challenge to his conviction on the grounds that the evidence failed to prove that he had possession of the marijuana. It concluded that “constructive possession is the ability to reduce an object to actual possession.” Id. at 498. The court reasoned that

[although appellant neither owned nor drove the car in which the contraband was found, he possessed the trunk key to such car. He also possessed keys which unlocked two chests containing contraband found in the trunk of the ear.

Id. at 498-99. The court concluded that “[ajppellant thus shared dominion and control over the vehicle and the marijuana.” Id. at 499.

In the instant case, Raiton gave the keys to the van and the lock to Martorano. At that point Martorano had the ability to reduce the van and the P-2-P to actual possession. While the mere possession of the keys by Martorano was arguably enough to attribute to him constructive possession under Martinez, Martorano’s subsequent giving of the keys to DeTullio and the latter’s taking actual possession of the van containing the P-2-P make such a conclusion more compelling.

Moreno and Martinez are arguably distinguishable from the instant case because the appellants’ agents in those cases had the kind of dominion and control that Martora-no claims he did not have on the facts of the instant case. However, a case recently decided in the Eighth Circuit raised the exact same issue as does Martorano, and involved strikingly similar facts. The court there upheld the appellant’s conviction using the same theory as we do today.

Appellant in United States v. Jones, 676 F.2d 327 (8th Cir.1982), cert. denied, - U.S. -, 103 S.Ct. 71, 74 L.Ed.2d 71 (1982), purchased 200 pounds of marijuana from DEA agents. The agents delivered the marijuana in two unmarked cars. Appellant parked his van alongside of the agents’ cars. The agents gave the trunk keys to appellant when he paid them for the marijuana. Appellant transferred the marijuana from the undercover cars to his van, and the agents then arrested appellant and two accomplices.

Appellant challenged his conviction for possession of a controlled substance with the intent to distribute it in violation of 21 U.S.C. §§ 841(a)(1) and 846. He contended, as Martorano argues in the instant case, “that the evidence was insufficient as a matter of law, to establish ‘possession’ because the government agent at all times had control of the bales of marijuana.” United States v. Jones, 676 F.2d at 332.

The court denied appellant’s appeal and held:

The evidence was sufficient to show that Jones obtained constructive possession when he was given the key to the agent’s car trunk and obtained actual possession when he loaded the bales of marijuana into the van.

Appellants’ claims in both cases are identical: Because of the alleged impossibility of their escaping with the controlled substance they did not have dominion and control over it. Of particular importance to the instant case, therefore, is the court’s conclusion in Jones that “[t]he fact that the agents intended to arrest Jones and recover control of the marijuana does not negate the fact, that for however short a period of time, Jones was in actual control of the marijuana.” Id.

This finding was made under circumstances similar to those before us. While Jones is not binding authority, it does support the district court’s holding in this case that

[receiving a key to the van in exchange for $104,000, having that key in one’s possession, and then giving that key to an associate, or agent, who enters and inspects the van with the present ability to drive it away constitutes constructive possession .... He was prevented from doing so only because government agents seized the van as his agent took actual possession. This seizure terminated Mar-torano’s brief dominion over the contraband but that does not mean such dominion never existed.

United States v. Martorano, 541 F.Supp. at 1229-30. The district court noted that “it was possession with intent to distribute, and not the separate offense of distribution, of which Martorano was found guilty.” Id. at 1230. The court correctly found that the conspirators were arrested after they had completed all of the acts they were required to perform to commit this crime. That they were arrested before they had the opportunity to dispose of the P-2-P does not negate their possession of it with the intent to distribute it.

Martorano’s petition thus reduces to his insistence that the agents afford him and his co-conspirators an opportunity to dispose of the controlled substance before Martorano can be convicted of possession with the intent to distribute it. This contention defies common sense. It is particularly unmeritorious on the facts before us. a case of police entrapment. Martorano initiated the transaction; he devised the plan by which the transaction was executed; every act that had to be performed to complete the transaction and the crime was accomplished. To require also that the police allow the criminals to escape with the drugs would place an impossible burden on the police and on the courts seeking to enforce criminal statutes as well as contribute to the very evil that the statute is intended to eliminate.

For the foregoing reasons, the decision of the district court will be affirmed.

1 . Berkery was indicted for nine counts of possession of P-2-P and four counts of possession of methamphetamine. He has not been tried on this indictment and is a fugitive. After his case was severed from Martorano, Vadino was tried without a jury and was found guilty of possession. He was sentenced to five years imprisonment.

2 . The dissent obliquely characterizes this as a case of entrapment and gives the impression that Martorano was somehow “baited” into purchasing the P-2-P. Typescript at 1. The record demonstrates that such a characterization is erroneous. The dissent makes other factual misstatements and, in addition, focuses on irrelevancies. For example, it mentions that Raiton is “a notorious long-term professional criminal.” Id. at 1-2. Martorano had had other illegal business dealings with Raiton before the purchase for which Martorano now stands convicted. Neither Martorano nor Raiton is a saint, but their notoriety is not an issue in determining possession of the P-2-P. The dissent asserts that the method of transferring the P-2-P was suggested by Raiton. Typescript at 4. However, the plan, including the method of transfer, was devised by Martorano. Appendix at 40-42. We also disagree with the dissent’s assertion that Martorano had greater control over the P-2-P than “any other passerby in Rittenhouse Square,” typescript at 6, because he and his agents had possession of the keys, not “for a different vehicle,” id. at 5, but for the vehicle containing the P-2-P, and not for “a different padlock,” id., but for the padlock that secured the P-2-P. Furthermore, no evidence was adduced at trial or during oral argument that suggested that the van was mechanically inoperative in any way as the dissent speculates might have been the case. Id. at 6 and fn. 1.

Finally, we are not advocating and we are unfamiliar with a “doctrine of constructive criminality” to which the dissent refers. Typescript at 8. This case concerns the meaning of constructive possession as it related to 21 U.S.C. § 841(a)(1). This case, like all criminal cases, must be analyzed in light of the applicable substantive statutes and cases. As a philosophical proposition, there is merit in the dissent’s concern about the manipulative pyramiding of offenses arising out of a specific criminal transaction. However, it is not without significance that the dissent does not cite even one case in American law which supports its conclusion of law. In contrast, though perhaps not elegantly, we have attempted to analyze all of the relevant cases which establish the law and articulate the legal theories as to whether conduct does or does not constitute possession of a controlled substance with intent to distribute it. We think we are stating the law as it is, rather than articulating a jurisprudential theory not supported by the relevant statutes and case law.