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Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant, with whom A.J. Kramer, Federal
Public Defender, was on the briefs.
Jeanne M. Hauch, Assistant U.S. Attorney, argued the
cause for appellee, with whom Eric H. Holder, Jr., U.S.
Attorney, John R. Fisher and Roy W. McLeese, III, Assistant
U.S. Attorneys, were on the brief.
Before: Wald, Ginsburg and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge : Appellant Darvis Orlando Dingle
appeals his conviction by a jury of possession of cocaine base
with intent to distribute, 21 U.S.C. § 841(a), on the principal
ground that the evidence was insufficient to establish that he
either possessed any drugs, or aided and abetted his co-
defendant in possessing drugs. He also challenges the dis-
trict court's failure sua sponte to instruct on the lesser
included offense of possession and its drug-quantity attribu-
tion at sentencing. We hold that the evidence was sufficient
to convict Dingle as an aider and abettor, and that his
challenges to the instructions and his sentence are meritless;
accordingly, we affirm.
Dingle was arrested after the police executed a search
warrant for an apartment at 1435 Sheridan Street in North-
west Washington. Dingle, who did not own or live in the
apartment, was found there along with his co-defendant,
Gregory Boykin, and a small quantity of drugs. During the
search, the police observed Boykin throwing a larger quantity
of drugs out the window of the apartment. At the first trial,
the jury convicted Boykin, but was unable to reach a verdict
as to Dingle and the district court declared a mistrial. On
retrial, a second jury convicted Dingle, and the district court
sentenced him to 100 months' imprisonment.
The government's evidence at the second trial established
that a team of officers led by Detective Milton Norris went to
the door of the apartment, where Norris knocked and an-
nounced, "Police, search warrant." At that point, Norris
heard footsteps inside that sounded as though a person were
running toward the rear of the apartment. Norris tried to
open the door, but it was locked. At that point, he instructed
another officer to force the door open with a sledgehammer.
The officer struck the door once, and a voice inside the
apartment said, "Wait a minute, wait a minute," or words to
as though the speaker were moving away from the door. At
about the same time, officers outside the building observed a
man, later identified as Boykin, tossing something out of the
apartment window.
The officers forced the door open with the sledgehammer.
When they entered the apartment, which was well-kept and
lightly furnished, Dingle was standing near the doorway next
to a small bar, and Boykin was coming out of the back
bedroom. Scattered on the floor of the living room, in the
hallway between the living room and the bedroom, and on a
window ledge in the bedroom, were several ziplock bags
containing small amounts of cocaine base. The police also
found a plastic wrapping containing 3.5 grams of cocaine base
on the bed in the bedroom, and a number of empty ziplock
bags in a dresser drawer in the bedroom. Outside the
bedroom window, the police found a plastic wrapping contain-
ing 43.04 grams of cocaine base and smaller quantities of
cocaine base in ziplock bags. In addition, a razor blade and
plate, both coated with cocaine residue, were on the bar next
to Dingle. The police also recovered a pager and $645 on
Dingle's person.
The government's narcotics expert testified that crack co-
caine is typically packaged in small ziplock bags for street-
level distribution. He explained that drug dealers typically
break cocaine down into individual dosage units using a razor
blade or other cutting implement, and that experienced drug
dealers typically do not need a scale to separate cocaine into
individual doses. Prior to being packaged in individual doses,
crack cocaine is often stored in "bulk" form in a larger plastic
bag or container. The expert further explained that drug
dealers will pay others to use their residences to perform this
packaging process. Finally, he explained that it is common
for drug buyers and sellers to contact one another using a
pager. In the expert's opinion, the evidence found in the
apartment was consistent with a drug distribution operation,
based on the quantity of drugs found and the manner of
packaging.
Dingle testified that he went to the apartment to visit some
friends, Donald Stewart and Brenda Kellogg, and their one-
and-a-half-year-old daughter, who lived in the apartment. He
described Stewart and Kellogg as "real good friends," whom
he had known for five years and visited two to three times a
week. When he arrived, both the front door of the apartment
building and the door to the apartment were unlocked. The
apartment lights were on, and the radio was playing, so
Dingle went inside. He decided to "play a game on Mr.
Stewart" by locking the door to "teach[ ] him a lesson."
After a time, Boykin knocked on the door, and Dingle, who
recognized Boykin as a friend of Kellogg, let him inside the
apartment. Boykin went back toward the bedroom, and
Dingle sat down on a bar stool in the living room. Dingle
then heard the police knock at the door, and said, "Who is it?"
The officers identified themselves, and he said, "Wait a
minute," and unlatched the door. Once the door was un-
latched, the officers knocked it open.
Dingle also claimed that he was planning to pay the $645 to
his wife, to whom he owed about $700 in child support. He
testified that he had borrowed $300 from his father, and
earned the rest doing "side jobs" cleaning carpets. He
claimed that he had the pager so that his family and his
employers could contact him.
In rebuttal, Officer Gerard Burke testified that the police
did not find a baby's crib, toys, furniture, or clothes, or any
women's clothes in the apartment. While the police did find a
bill with Donald Stewart's name in the apartment, they were
unable to locate Stewart himself; Burke had unsuccessfully
attempted to contact Stewart both at the time of Dingle's
arrest and during the trial. He also testified that the door to
the apartment building had been left open by undercover
officers so that the police could execute the search warrant.
In assessing the sufficiency of the evidence, the court views
the evidence in the light most favorable to the government,
drawing all reasonable inferences in its favor. See, e.g.,
Our inquiry is limited to the question of whether "any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 319 (1979). Where a defendant presents evidence in
his defense, the jury is entitled to consider all of the evidence,
and on appeal the court does likewise, looking to the entire
record, and not simply to the evidence in the government's
case-in-chief. United States v. Foster, 783 F.2d 1082, 1085
(D.C. Cir. 1986) (en banc).
Dingle contends that there was insufficient evidence to
convict him of possession with intent to distribute cocaine
base because the government showed merely that he was
present with Boykin in a small apartment where drugs were
found. The government responds that there was sufficient
evidence to convict Dingle of either constructively possessing
the drugs in the apartment jointly with Boykin, or aiding and
abetting Boykin in possessing the drugs. Of course, the
"[m]ere presence of the accused on the premises, or simply
his proximity to the drug," United States v. Staten, 581 F.2d
878, 884 (D.C. Cir. 1978), is alone insufficient to establish
either constructive possession or aiding and abetting. United
States v. Thorne, 997 F.2d 1504, 1510 (D.C. Cir.), cert. denied,
510 U.S. 999 (1993); United States v. Poston, 902 F.2d 90, 95
(D.C. Cir. 1990). To establish constructive possession, the
government had to show not only that Dingle knew of the
drugs, but that he was in a position to exercise dominion and
control over them. United States v. Lucas, 67 F.3d 956, 959
(D.C. Cir. 1995). "There must be some action, some word, or
some conduct that links the individual to the narcotics and
indicates that he had some stake in them, some power over
them." United States v. Pardo, 636 F.2d 535, 549 (D.C. Cir.
1980). To establish aiding and abetting, the government had
to prove both that Boykin was guilty as a principal and that
Dingle had "sufficient knowledge and participation to indicate
that [he] knowingly and willfully participated in the offense in
a manner that indicated that he intended to make it succeed."
United States v. Raper, 676 F.2d 841, 849 (D.C. Cir. 1982).
The evidence is clearly sufficient to establish that Dingle
knew of the drugs since several ziplock bags containing
cocaine base were in plain view on the living room floor near
where he was standing. The only question is whether there
was sufficient evidence that Dingle took any action that would
indicate either an ability to exercise dominion and control
over the drugs, or an effort to assist Boykin in possessing the
drugs. The court has considered a defendant's ownership of
or residence in premises where drugs are found in plain view
to be sufficient evidence of dominion and control to establish
constructive possession. See, e.g., Walker, 99 F.3d at 441;
United States v. Jenkins, 928 F.2d 1175, 1179-80 (D.C. Cir.
1991). Evidence suggesting that a defendant has regular
access to the premises, such as possession of a key, may also
be sufficient to establish constructive possession. See United
States v. Lindsey, 47 F.3d 440, 445 (D.C. Cir.), vacated on
other grounds sub nom. Robinson v. United States, 116
S. Ct. 665 (1995). Here there was no evidence that Dingle
owned or resided in the apartment, or that he had regular
access to it. Nor is Dingle's case like United States v. Dunn,
846 F.2d 761 (D.C. Cir. 1988), on which the government relies,
where the defendant was observed pitching things into a
nearby room where drugs and a gun were found. Id. at 764.
The police did not observe any actions by Dingle that suggest
such physical control over the drugs.
The government focuses on the fact that Dingle, by his own
admission, shouted "wait a minute, wait a minute," when the
police started to break down the door. The government
characterizes this as an attempt by Dingle to stall the police
to give Boykin the opportunity to dispose of the drugs. Cf.
United States v. Washington, 12 F.3d 1128, 1136-37 (D.C.
Cir.), cert. denied, 513 U.S. 828 (1994). As Dingle contends,
standing alone this evidence would be insufficient to establish
his guilt beyond a reasonable doubt because any occupant of
an apartment might respond in a similar manner to an
attempt by the police to break down the door. However,
Dingle's testimony provided further evidence that he was
actively assisting Boykin in the possession of drugs. Dingle
acknowledged that upon entering the apartment, he locked
over the apartment and its contents. He later opened the
door to admit Boykin, and then relocked it. Because the
expert's testimony made clear that the apartment bore all the
hallmarks of a drug packaging and distribution center, the
jury could reasonably have concluded that Dingle was actively
trying to assist Boykin. Dingle's possession of a large quanti-
ty of cash and a pager, which the expert described as a tool of
the drug distribution trade, were also suggestive of his in-
volvement. 1 Washington, 12 F.3d at 1137; Thorne, 997 F.2d
at 1512. Taking all of these circumstances into account, the
jury could reasonably conclude that Dingle's statement, "wait
a minute, wait a minute," at the same time that Boykin was
attempting to dispose of the drugs, was an attempt to stall
the police.
Dingle's reliance on United States v. Zeigler, 994 F.2d 845
(D.C. Cir. 1993), is misplaced. There the police searched an
apartment that had previously been divided into two units,
and found in one of the units cocaine, a gun, $740 in cash, and
a razor blade in a locked briefcase inside a locked laundry
room. Id. at 846. Zeigler resided in the other unit, and the
government presented no evidence that she ever entered the
laundry room or had the combination to the locks on the door
or the briefcase. Id. at 848. The court rejected the govern-
ment's constructive possession theory, holding the evidence
insufficient to establish either knowledge of the drugs, or
dominion or control over them. Id. As noted, Dingle's
knowledge of the drugs, which were in plain view throughout
the apartment, is clear, and based on Dingle's description of
his activities, the jury could conclude that he knew of Boy-
kin's drug possession and sought to assist him.
The evidence against Dingle is comparable to the evidence
in Washington. Washington was riding in the front passen-
ger seat of a car as it attempted to elude police. 12 F.3d at
1131. A co-defendant who was sitting in the back seat
jumped out of the car, and then ran alongside it for about a
block before throwing a bag of drugs into the car through the
driver's side window. Id. Washington acknowledged in his
testimony that he had pulled the bag through the window.
Id. at 1137. The court held that his admission, combined with
Washington's possession of $586 and a pager purchased by
the driver of the car, was sufficient to establish aiding and
abetting. Id. Here, as in Washington, the defendant's testi-
mony as to his actions, in conjunction with his presence on
the scene and his possession of cash and a pager, is sufficient
to establish aiding and abetting.
Furthermore, the jury was entitled to take into account the
government's rebuttal evidence in assessing Dingle's claim of
innocent presence. See Foster, 783 F.2d at 1085. Dingle
testified that he went to the apartment to visit his friends,
Stewart and Kellogg, and their one-and-a-half-year-old
daughter. He claimed that Stewart and Kellogg were good
friends whom he visited several times a week. Yet when the
police searched the apartment, they found no evidence sug-
gesting that either a baby or an adult woman resided in the
apartment. Indeed, the only evidence to suggest that either
Stewart or Kellogg had ever resided in the apartment was a
single bill in Stewart's name. Officer Burke also testified
that he repeatedly attempted to contact Stewart at a tele-
phone number Dingle had provided under oath in front of the
jury during the second trial, but was unable to reach him or
determine a corresponding address. Based on the expert
testimony, the jury could reasonably have concluded that the
apartment was being used for drug packaging operations, and
that Officer Burke's rebuttal testimony eviscerated Dingle's
explanation that he was merely in the apartment for a
friendly social visit.
In Zeigler, the court held that any negative inferences that
a jury may draw from the demeanor of a defendant who
testifies should not ordinarily be considered in a sufficiency
1511. The court reasoned that "[t]here is no principled way
of deciding when the government's proof, less than enough to
sustain the conviction, is nevertheless enough to allow adding
negative inferences from the defendant's testimony to fill the
gaps." Zeigler, 994 F.2d at 850. Contrary to Dingle's con-
tention, this rule poses no obstacle to appellate consideration
of the government's rebuttal evidence. The Zeigler rule does
not apply where "the defendant's testimony, on its face, [is]
utterly inconsistent, incoherent, contradictory, or implausi-
ble." Id. at 849. While Dingle's testimony was not internally
inconsistent, the government's rebuttal evidence made it ex-
tremely implausible. A jury viewing the government's evi-
dence could reasonably find that Dingle's account was false,
regardless of his demeanor, and that he was in the apartment
for illicit purposes.
With or without considering the implausibility of Dingle's
explanation for his presence in the apartment, the jury could
reasonably conclude that he aided and abetted Boykin in the
possession of drugs with the intent to distribute them. Thus,
because we hold that the evidence was sufficient to support
Dingle's conviction on that basis, the court need not consider
whether the jury could also have reasonably found that
Dingle had constructive possession of the drugs. Griffin v.
United States, 502 U.S. 46, 56-57 (1991); Walker, 99 F.3d at
442.
Dingle's remaining contentions do not require extensive
discussion. His contention that the district court erred by
failing sua sponte to give an instruction on the lesser included
offense of simple possession is meritless. Because Dingle
neither asked for such an instruction nor objected to the
district court's failure to give one, our review is for plain
error, and we find none. Fed. R. Crim. P. 30, 52; United
States v. Campbell, 684 F.2d 141, 148 (D.C. Cir. 1982); see
also United States v. Olano, 507 U.S. 725, 732-37 (1993). It
has long been the rule in this circuit that "[i]n general, the
offense unless one of the parties requests it, since that charge
is not inevitably required in our trials, but is an issue best
resolved, in our adversary system, by permitting counsel to
decide on tactics." Walker v. United States, 418 F.2d 1116,
1119 (D.C. Cir. 1969). In deciding whether to request such
an instruction, defense counsel must make a strategic choice:
giving the instruction may decrease the chance that the jury
will convict for the greater offense, but it also may decrease
the chance of an outright acquittal. Here, defense counsel
adverted to precisely such a choice during a colloquy with the
district court about the verdict form; defense counsel main-
tained that the government could not show, as the indictment
charged, that Dingle possessed with intent to distribute 50
grams, and that a special verdict form on drug quantity was
therefore appropriate. Although the district court rejected
the special verdict form request, defense counsel did not seek
an instruction on simple possession, possibly because Dingle
had testified that he did not use cocaine and that he had
simply come to the apartment to visit his friends. Defense
counsel then chose to argue to the jury that the government's
evidence was insufficient and Dingle was simply in the wrong
place at the wrong time. In view of that strategic decision,
Dingle has not demonstrated that it was plain error for the
district court not to give a lesser included offense instruction.
Finally, Dingle's contention that the district court erred in
attributing to him, for purposes of sentencing, the entire
quantity of drugs that Boykin threw out the window, in
addition to the much smaller quantities found on the living
room floor, is meritless. The evidence was sufficient to
establish that Dingle aided and abetted Boykin; he is there-
fore responsible for the same quantity of drugs that Boykin
possessed. 18 U.S.C. § 2; U.S. Sentencing Guidelines Man-
ual §§ 1B1.3, 2X2.1 (1995); see also United States v. Nieto,
60 F.3d 1464, 1469 n.4 (10th Cir. 1995), cert. denied, 116 S. Ct.
793 (1996); United States v. Pierson, 53 F.3d 62, 64-65 (4th
Cir. 1995). Because the district court's finding that Boykin
and Dingle jointly possessed all of the cocaine in the apart-
ment, except for the rock found on the bed in the bedroom, is
966 F.2d 682, 688-89 (D.C. Cir.), cert. denied, 506 U.S. 901
(1992), the district court properly sentenced both defendants
in the guidelines range appropriate for possession of 35 to 50
grams of cocaine base.
Accordingly, we affirm the judgment of conviction.
While many people possess pagers or cash for legitimate
reasons, see United States v. Brown, 16 F.3d 423, 431 (D.C. Cir.),
cert. denied, 513 U.S. 900 (1994), in this circuit possession of such
items is probative evidence of both possession and intent to distrib-
ute. United States v. Crowder, 87 F.3d 1405, 1412 (D.C. Cir. 1996)
(en banc), vacated on other grounds, 117 S. Ct. 760 (1997).