Case 1:08-cr-00065-PLF Document 35 Filed 09/26/08 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

:
UNITED STATES OF AMERICA : Criminal No.: 08-065 (PLF)
:
v. :
:
DELANTE WHITE : Trial Date September 18, 2008
Defendant. :
:
DEFENDANT WHITE’S MEMORANDUM IN SUPPORT OF
HIS MOTION FOR JUDGMENT OF ACQUITTAL

COMES NOW the defendant Delante White, by and through counsel, Charles F. Daum,

respectfully asking this Court to grant his Motion for Judgment of Acquittal pursuant to Rule 29

of the Federal Rules of Criminal Procedure. In support of this Motion, this Memorandum of

Points and Authorities is submitted.

ISSUE

1. The Government’s evidence has been limited to proving that the defendant was an occasional

occupant at 637 Hamlin St., NE, apartment #2. However, the evidence demonstrates that

multiple people occupied and/or had access to this apartment during the relevant time period. Of

these people, it is clear that at least two people were occupying the bedroom in that apartment on

or around February 23, 2008. Therefore, given the current state of the Government’s evidence

and the presence of multiple occupants, the issue here is whether there is sufficient evidence to

support a conviction on the Government’s theory of constructive possession.

FACTUAL BACKGROUND

On February 14, 2008, Officer Abdalla filed an affidavit in support of the Metropolitan

Police Department's request for a warrant to search 637 Hamlin St., NE, apartment #2,

Washington, D.C. The Court granted Officer Abdalla a warrant to search the residence, which is
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a one bedroom apartment with two beds and three bureaus in the one bedroom. The warrant was

executed on February 23, 2008. According to the Government, the search of the residence

recovered approximately, 124.95 grams of cocaine base (crack); a magazine with .40 caliber

ammunition; a magazine with .9mm ammunition; an empty ammunition box; a digital scale;

gloves; a shoebox containing plates and razors; a bullet; $2,000.00 in United States currency;

mail matter addressed to the defendant; photographs; men's clothing; and a pair of Gucci shoes.

The shoebox and its contents were recovered outside of the apartment on the porch, and the rest

of the items were recovered from the bedroom of 637 Hamlin St., NE, apartment #2. Based on

this evidence, the Government charged the defendant with one count of possession with intent to

distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(A)(iii).

Given that the above listed evidence was not found on the person of any of the occupants

of 637 Hamlin St., NE, the Government alleges that one or more of the occupants constructively

possessed it. The parties agree that Ms. Evelyn Clowney, the defendant’s grandmother, resides

at the home, but they disagree about who else lives at that address. From the outset of this

investigation, the Government has suspected, and now alleges, that the defendant was an

occupant of 637 Hamlin St., NE and that he was the possessor of the cocaine recovered from that

address. The Government’s case began under the theory that the defendant and Ms. Evelyn

Clowney were the only residents in the apartment, and that the defendant was the sole possessor

of the items seized from the apartment. Given the introduction of photographic evidence

suggesting that Jerome White, the defendant’s brother, possessed the cocaine base approximately

forty-eight hours prior the search and seizure, it appears that the Government is now pursuing a
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theory of joint constructive possession with both the defendant and Jerome White being the

possessors.

During this trial, the Government’s case has focused almost exclusively on establishing

that the defendant was an occupant of 637 Hamlin St., NE, apartment #2 on or around February

23, 2008. To that end, the Government has introduced the following items seized during the

February 23, 2008 search of 637 Hamlin St., NE: 1) mail matter bearing the defendant’s name, 2)

pictures of the defendant and his friends, 3) a pair of Gucci shoes, 4) a plate with what the

Government claims is the defendant’s fingerprint on it, 5) a driver’s license bearing the

defendant’s name and the claim that his address is 637 Hamlin St., NE, 6) a rental application for

a different apartment on which the defendant is listed as an emergency contact with an address of

637 Hamlin St., NE, and 7) the testimony of two officers who claim to have often seen the

defendant in the area of 637 Hamlin St., NE for extended periods of time, late at night and who

also claim that the defendant informed them that he lived at 637 Hamlin St., NE, apartment #2.

The Government has not presented any evidence linking the defendant directly to the seized

cocaine base. Nor have they presented evidence directly linking the defendant to any criminal

enterprise, let alone the possession or distribution of cocaine base.

ANALYSIS

I. Introduction and Overview of Argument

The argument begins with a brief recitation of the legal standard for adjudicating a

motion for judgment of acquittal. It then recites the Government’s burden of proof with respect

to the elements of possession of cocaine base with intent to distribute. Next, it explains the

requisite legal standard for proving constructive possession of drugs found in an apartment or

room with multiple occupants, noting that mere proof of residency in that apartment or room is
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generally insufficient to support a conviction. The next subsection applies this legal standard to

the facts of this case and concludes that, based on the controlling case law, the Government has

failed to provide the jury and the Court with sufficient evidence to sustain a conviction for

possession of the cocaine recovered from 637 Hamlin St., NE, apartment #2 based on its theory

of constructive possession. It concludes with the defendant’s request that the Court grant his

motion for judgment of acquittal.

II. Legal Standard

A court should only grant a defendant’s motion for judgment of acquittal “where the

evidence is such that, viewing it in the light most favorable to the government, a reasonable trier

of fact could not have found guilt by a reasonable doubt.” United States v. Maxwell, 920 F.2d

1028, 1035 (D.C. Cir. 1990). Stated differently, the trial court should give “full play to the right

of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact.”

United States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985).

To convict the defendant of illegal possession of cocaine base with the intent to

distribute, the Government must prove beyond a reasonable doubt that the defendant knowingly

or intentionally possessed the cocaine base and that he had the specific intent to distribute it. See

21 U.S.C. § 841(a)(1); United States v. Burch, 156 F.3d 1315, 1324 (D.C. Cir. 1998). The

parties essentially agree that that the possessor of the cocaine base intended to distribute it. The

contested issue is whether the defendant was the possessor. Because the drugs were not found

on the defendant’s person or within his immediate reach, the Government has proceeded under

the theory that the defendant constructively possessed them, which is a permissible strategy but

can carry with it special evidentiary requirements.

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A conviction based on constructive possession requires the Government to present

evidence of the defendant’s “ability to exercise knowing dominion and control over the items in

question.” United States v. Wahl, 290 F.3d 370, 376 (D.C. Cir. 2002) (quoting United States v.

Morris, 977 F.2d 617, 619 (D.C. Cir. 1992)). Thus, the constructive possession inquiry is broken

down to the following two elements: 1) knowledge of the presence of the contraband, and 2)

demonstrated dominion and control over the contraband. In re Sealed Case, 105 F.3d 1460,

1463-64 (D.C. Cir. 1997). “In most constructive possession cases, the defendant’s knowledge of

the contraband flows from its being in plain view at the site of the defendant’s arrest.” In re

Sealed Case, 105 F.3d at 1463 (citing United States v. Walker, 99 F.3d 439, 441 (D.C. Cir.

1996); United States v. Dunn, 846 F.2d 761, 764 (D.C. Cir. 1988)). However, when the items in

question are drugs that are hidden and are recovered from an area occupied by multiple people,

the evidence must adequately support the belief that “the accused had a substantial voice vis-à-

vis” those drugs or “some appreciable ability to guide [the drugs’] destiny.” United States v.

Staten, 581 F.2d 878, 883, 884 (D.C. Cir. 1978). In other words, where there are multiple

occupants, the Government cannot satisfy its burden of proof by simply establishing that the

defendant is one of the occupants of the area in which the contraband was found; rather, it must

present evidence that specifically indicates that the defendant knows of the presence of the

contraband and exerts some control over it. Any such inquiry into the sufficiency of the

defendant’s knowledge and control over the seized drugs is necessarily a case-specific factual

inquiry, but the court has provided some general guidance in this area.

First, the court has clearly stated that the fact that the contraband was recovered from the

defendant’s home is not independently sufficient to prove that he knew of its presence and

exercised dominion and control over it. United States v. Wahl, 290 F.3d at 376. Second, the
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court has explained that mere proximity to the contraband to the defendant is insufficient to

establish dominion and control over that contraband. In re Sealed Case, 105 F.3d at 1463. To

establish the defendant’s control over the contraband, the court looks for evidence of “some

action, some word, or some conduct that links the individual to the [contraband] and indicates

that he had some stake in [it], some power over [it].” Id. (quoting United States v. Thorne, 997

F.2d 1504, 1510 (D.C. Cir. 1993)) (alterations in original) (internal quotations and citations

omitted). The court will also look to the following additional factors to establish dominion and

control: “proof of motive, a gesture implying control, evasive conduct, or a statement indicating

involvement in an enterprise.” Id. (quoting United States v. Morris, 977 F.2d 617, 620 (D.C. Cir.

1992)) (internal quotes and citations omitted). A brief examination of the relevant case law and

the evidence in the record in this case demonstrates that the Government has failed to establish 1)

that the defendant had knowledge of the presence of the drugs in apartment #2 and 2) that the

defendant exercised any degree of dominion or control over those drugs.

III. The Government Has Failed to Present Sufficient Evidence Linking the
Defendant to a Criminal Enterprise, Requiring This Court to Grant His Motion
for Judgment of Acquittal.

The first element of constructive possession is knowledge of the presence of the

contraband in question. Id. at 1463-64. The second element of constructive possession is the

ability to exercise dominion and control over the contraband. Id. at 1464. The D.C. Circuit has

found the existence of such knowledge and control in several cases for a myriad of reasons,

including 1) an admission of knowledge; 1 2) “a gesture implying control,” 2 3) “a statement

indicating involvement in a criminal enterprise” related the suspected offense, 3 4) proximity of

1
In re Sealed Case, 105 F.3d 1460, 1464 (D.C. Cir. 1997).
2
United States v. Booker, 436 F.3d 238, 242 (D.C. Cir. 2006).
3
Id.
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the contraband to the defendant at the time of arrest, 4 5) evidence that the defendant “sold the

kind of drug of which the stash [of contraband in question] consisted, and did so in the very

apartment where the stash was located and in the presence of [occupant-]confederates,” 5 6)

evidence that the contraband sold by the defendant came from the same stash that the

Government alleges the defendant constructively possessed, 6 7) recovery of a substantial amount

of money from the defendant’s person in denominations suggesting that the defendant was

engaged in the sale of contraband, 7 8) recovery of contraband from the defendant’s person that is

identical to the stash of contraband that the Government alleges the defendant constructively

possessed, 8 and 9) officers’ observation of the defendant directing a person to a nearby park

where he sold crack cocaine to an undercover officer. 9 The Government has not presented

evidence showing the presence of any of these factors that could lead to a finding of knowledge

or dominion and control.

Under either party’s theory of the case, multiple people occupied the bedroom at 637

Hamlin St., NE, apartment #2 on or around February 23, 2008. The Government contends that

the defendant and Evelyn Clowney occupied the apartment, and the defense asserts that Jerome

White and Evelyn Clowney were the occupants. As noted above, the Government’s evidence

has been exclusively dedicated to proving that the defendant occasionally resided in 637 Hamlin

4
Id.
5
United States v. Gomez, No. 04-3063, slip op., at 4 (D.C. Cir. Dec. 13, 2005)
6
Id.
7
See id. at 5.
8
United States v. Staten, 581 F.2d 878, 884 (D.C. Cir. 1978) (finding constructive possession where the defendant
had $165 and a distribution quantity of heroin, which was one of the three types of drugs found in the apartment, on
his person).
9
United States v. Thorne, 997 F.2d 1504 (D.C. Cir. 1993) (finding sufficient evidence to support defendant’s
conviction based on constructive possession of a stash of crack cocaine located in a bag on the floor of a closet in a
bedroom that was shared with multiple occupants in part because the defendant was observed directing another
individual to a park where he sold crack cocaine to an undercover officer).
 Case 1:08-cr-00065-PLF Document 35 Filed 09/26/08 Page 8 of 10

St., NE., apartment #2 (photographs, shoes, mail matter, etc …) on or around February 23, 2008.

Accepting for purposes of this motion that the Government has sufficiently proven that the

defendant was an occupant of 637 Hamlin St., NE, apartment #2 on or around February 23, 2008

and that Jerome White resided elsewhere, the Government is still left with the fact that the

cocaine base was recovered from the only bedroom in the house, in which there are two beds and

in which Evelyn Clowney is an occupant. Thus, even under its own theory of the case, the

Government is still left with a room with multiple occupants. Furthermore, the drugs were

hidden in the room and were not in plain view, removing the possibility that all occupants of the

room were presumptively aware of their presence and exercised some degree of dominion and

control over them. See Staten 581 F.2d at 884 n.55. Stated differently, it is clear that multiple

people occupied the bedroom in apartment #2 and that cocaine base was hidden in that room, but

if the Government is to prove that one of the occupants knew about the hidden drugs and

exercised dominion and control over them, then it must establish more than the fact that that

person occupied the bedroom. With respect to its case against the defendant, the Government

has failed to carry this burden.

The Government has failed to directly link the defendant to the cocaine base either

through physical evidence or through eyewitness testimony. The closest it came was when it

introduced evidence that the defendant’s fingerprint was found on a ceramic plate found on the

porch. However, given that the plate did not contain any cocaine base residue or show any signs

of use in the illegal possession and/or distribution of cocaine base, it is merely evidence that the

defendant has handled dishware in the apartment at some time in the past, which at best helps the

Government establish that he was an occupant in the apartment. Whatever probative value it
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has, it certainly does not even begin to establish the defendant’s knowledge of the presence of

the hidden stash of cocaine base in the bedroom of apartment #2.

The Government’s next best piece of evidence to establish knowledge is the pair of Gucci

shoes that it believed belonged to Mr. White. First, even if the shoes were the defendant’s, there

presence in the bedroom cannot possibly be sufficient evidence that the defendant knew about

the presence of a hidden stash of cocaine base that was also in the bedroom. Second, the defense

has amply demonstrated that the shoes do not belong to the defendant. The shoes recovered

from apartment #2 are too big to be the defendant’s, and Ms. Robertson, his cohabitating

girlfriend, brought the defendant’s smaller, yet otherwise identical, pair of Gucci shoes from

their apartment in Hyattsville, Maryland and had them admitted into evidence and shown the

jury. Thus, under the defense’s reading of the case law, the Government has failed to present

sufficient evident of the defendant’s knowledge of the presence of the cocaine base in the

bedroom, which was occupied by multiple people, to sustain a conviction based on a theory of

constructive possession.

The Government has also failed to present evidence that the defendant exercised

dominion and control over the contraband on or around February 23, 2008. As with its case

establishing knowledge, the Government’s claim that the defendant exercised dominion and

control over the contraband rests exclusively on its belief that the defendant occupied the

bedroom in apartment #2. The Government has not presented evidence of any “action, … word,

or … conduct that links the [defendant] to the [cocaine base] and indicates that he had some

stake in [it], some power over [it].” See Thorne, 997 F.2d at 1510. By comparison, the defense

presented photographic evidence of Jerome White exercising dominion and control over what

appears to be the Government’s main pieces of evidence approximately forty-eight hours prior to
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their seizure. Irrespective of the weight the Court grants the defense’s photos of Jerome White,

the defense’s review of the case law detailed above strongly suggests that mere residency or

occupancy of the area in which the contraband was found is insufficient to establish dominion or

control in a constructive possession case involving multiple occupants for the same reasons as it

is insufficient to establish knowledge in such a case. Consequently, this Court should grant the

defendant’s motion for judgment of acquittal.

CONCLUSION

For all the reasons stated herein, the defendant respectfully requests that the Court grant

his Motion for Judgment of Acquittal.

Respectfully Submitted,

_______________________

Charles F. Daum, Esquire

736 5th St. NE
Washington, D.C. 20002
DCB #952481
Tel: 202-546-8886
Fax: 202-546-0330