Source: cases/21usc841/f3d-57-516-us-v-kitchen.case
Case source: https://www.neochart.com/catalog/cases/f3d/volume_57/0516_01/index.html
And here, the essential proof of possession that we require is some factor indicating that Kitchen had the authority or the ability to exercise control over the contraband.
In most cases of actual possession, because the defendant physically holds or carries the narcotics, his control over them is presumed. But to state that control is presumed is not to suggest that actual possession can be established when it is completely absent.
Although Kitchen held the cocaine in his hand, he did not yet have a recognized authority to exert control over it.
Instead, Kitchen’s momentary holding was in the context of inspection, not delivery.
The constructive possession cases teach that a defendant must have ultimate control over the drugs. This requirement translates into the right, or the recognized authority within the “criminal milieu,” to possess the drugs in question.
Kitchen’s intent to purchase, without more, is insufficient to establish possession because it overlooks the required element of dominion or control.
We believe that although Kitchen held the drugs for a moment, he neither controlled them nor had recognized authority over them.
casedsl 1 case /f3d/57/0516-01 name United States v. Kitchen cite 57 F.3d 516 (1995) court United States Court of Appeals for the Seventh Circuit date 1995-06-07 url catalog/cases/f3d/volume_57/0516_01/index.html source ir/caselaw/f3d_57.jsonl sha1=36188f635dba081563a0147aaf836e76402a3259 chars=30239 law 21usc841 (a)(1) role applied posture criminal; jury conviction for possession of cocaine with intent to distribute (reverse-buy sting); defendant appeals sufficiency of the evidence on possession only result claimant-lost element possession : not-satisfied [no-evidence] variant actual/momentary-handling-during-inspection-before-assent theory actual possession (holding a kilogram for 2-3 seconds) fact @16249..16460 [cuts-against absent] | Kitchen showed Casali the money and then handed it to his coconspirator, Dow-dell. Casali admitted that at no point did either Kitchen or Dowdell offer Griffin or him the money or attempt to hand the money over. fact @3454..3560 [supports] | The government suggests that Kitchen picked up one of the kilograms of cocaine for “two or three seconds.” fact @3561..3799 [cuts-against] | All agree that Kitchen made a comment expressing concern about the drug’s purity — that he was worried about “slabs” (apparently one of the most desirable forms of cocaine). At that point, Casali and Fernandez placed Kitchen under arrest. fact @17055..17189 [cuts-against absent] | Casali admitted that Kitchen never stated that he would complete the transaction or made a similar affirmative comment to that effect. rule @20652..20824 | And here, the essential proof of possession that we require is some factor indicating that Kitchen had the authority or the ability to exercise control over the contraband. rule @21556..21819 | In most cases of actual possession, because the defendant physically holds or carries the narcotics, his control over them is presumed. But to state that control is presumed is not to suggest that actual possession can be established when it is completely absent. held @22766..22881 | Although Kitchen held the cocaine in his hand, he did not yet have a recognized authority to exert control over it. held @20044..20128 | Instead, Kitchen’s momentary holding was in the context of inspection, not delivery. gloss Sufficiency reversed: physical holding alone is not actual possession where the buyer in a reverse sting has neither paid nor assented; conduct was that of a prospective buyer inspecting goods. Court says payment, verbal assent, or acts consistent with carrying the drugs away would change the result. element possession : not-satisfied [no-evidence] variant constructive/no-recognized-authority-over-sellers-drugs theory constructive possession (intent to purchase + cash in hand) fact @1801..1894 [supports] | After further negotiations, Kitchen agreed to purchase two kilograms of cocaine from Griffin. fact @16470..16582 [cuts-against] | Instead, Kitchen left the money with Dowdell and proceeded to another location with Casali to examine the drugs. rule @21871..22106 | The constructive possession cases teach that a defendant must have ultimate control over the drugs. This requirement translates into the right, or the recognized authority within the “criminal milieu,” to possess the drugs in question. rule @24433..24582 | Kitchen’s intent to purchase, without more, is insufficient to establish possession because it overlooks the required element of dominion or control. held @26670..26798 | We believe that although Kitchen held the drugs for a moment, he neither controlled them nor had recognized authority over them. gloss Intent to buy (negotiations, prior dealing, arriving with $14,000) shows at most attempted possession; the court notes the case "fits more neatly into an attempt paradigm" (the jury had rejected attempt). element knowledge : not-reached gloss Not contested on appeal. element intent-to-distribute : not-reached gloss Not contested on appeal; the court treats evidence of intent to purchase as irrelevant to possession. element substance : not-reached misfit Roughly half the opinion (and the only constructive-possession holding in the government's favour) concerns 18 U.S.C. § 922(g)(1) firearms found in a shared bedroom; that analysis defines "constructive possession" for both statutes but belongs to another law, so the affirmed firearm holding is not recorded here. misfit The court relates possession to a different offence (attempted possession under § 846) as the better fit; a "lesser/alternative offence would have been satisfied" relation cannot be expressed. misfit The key fact (holding the kilogram 2-3 seconds) was disputed; the court assumes the government's version on sufficiency review. Polarity ([supports]) does not help: a `fact` line cannot mark a fact as "assumed in the verdict-winner's favour".