• U.S. Court of Appeals for the 2nd Circuit
  • 12-3128cr
  • Apr 10 2014 (Date Decided)

Evidence that a defendant was extremely nervous and repeatedly requested that his wife be allowed to take his motor vehicle and leave the scene can be sufficient to find that the defendant had “constructive possession” of drugs in the motor vehicle. After conducting controlled purchases, police obtained a warrant to arrest the owner of an auto repair shop. Police discovered 18 bags of cocaine in the business office. The defendant, whose Jeep was undergoing repairs, appeared extremely nervous and asked seven times that his wife be allowed to take the Jeep and leave. Police found three bags of cocaine on the defendant’s person and cocaine in the Jeep. Telephone records established that the defendant contacted the owner of the auto repair shop 300 times between July and December 2010. The government charged the defendant with possession with intent to distribute 500 grams or more of cocaine. The defendant was convicted and moved for judgment of acquittal. The District Court, Hall, J., found that the defendant’s extreme nervousness and seven requests that officers permit his wife to take the Jeep and leave were sufficient to find that the defendant knew that there were drugs in the Jeep and that he constructively possessed them. The defendant appealed and argued that the government failed to prove he had constructive possession. The 2nd Circuit reviewed de novo. To convict, the jury had to find beyond a reasonable doubt that the defendant “knowingly ha[d] the power and the intention . . . to exercise dominion and control over [the 500 grams or more of cocaine],” and intended to distribute the cocaine, pursuant to United States v. Navarrete, a 1997 decision of the 2nd Circuit. “[The defendant’s] panicked requests that his wife be permitted to take the Jeep, which he owned,” wrote the 2nd Circuit, “are sufficient for a jury to find possession in the form of `power and the intention . . . to exercise . . . control.’ ” The 2nd Circuit affirmed the judgment of the District Court. Leo Ahern represented the defendant. Michael Runowicz, Edward Chang and Deirdre Daly represented the government.