United States v. Kitchen

57 F.3d 516 (1995) United States Court of Appeals for the Seventh Circuit 1995-06-07

criminal; jury conviction for felon in possession of two handguns found in the bedroom of his girlfriend's house (plus a 21 U.S.C. 841 cocaine count annotated separately); defendant appeals sufficiency of the evidence on possession only; firearm conviction affirmed (result: claimant-won)

Facts

2 Actual or constructive possession satisfied proved
Both weapons were found in a bedroom on the first floor of the residence. The .357 magnum was discovered in the bed area, leaning up against the back of the headboard. The .9 millimeter was recovered from a dresser drawer along with an additional magazine of ammunition.
2 Actual or constructive possession satisfied proved
Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others....
2 Actual or constructive possession satisfied proved
In many of the recorded drug conversations with Kitchen, agents had reached him by calling the telephone number at that address. According to the government, Kitchen had stated that he lived at that address. Agents in fact saw Kitchen at that address on numerous occasions.
2 Actual or constructive possession satisfied proved
The search revealed, in addition to the firearms, a number of Kitchen’s possessions — his El Rukn bracelet, bills and papers bearing his name and various articles of men’s clothing.
2 Actual or constructive possession satisfied proved
Kitchen argues that he in fact lived with his mother in Robbins, Illinois, and only visited Williams occasionally.
2 Actual or constructive possession satisfied proved
It is not material, contrary to Kitchen’s assertions, that he was incarcerated at the time the agents actually seized the guns.
2 Actual or constructive possession satisfied proved
If he in fact resided at Williams’s home, then he had the power to exercise control over the two firearms.
2 Actual or constructive possession satisfied proved
The fact that Williams, too, had access to the firearms fails to negate the inference that Kitchen did as well.
2 Actual or constructive possession satisfied proved
The jury might have determined that he lived at the residence and occupied the bedroom where the guns were located. Under these circumstances, we believe that Kitchen constructively possessed the guns in question.
2 Actual or constructive possession satisfied proved
Because the evidence established that Kitchen resided in the home in which the police located the firearms, it was sufficient to support Kitchen’s conviction for the possession of a firearm.
4 Possession in or affecting commerce satisfied conceded
(3) that the firearm had traveled in or affected interstate commerce.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
After further negotiations, Kitchen agreed to purchase two kilograms of cocaine from Griffin.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
The government suggests that Kitchen picked up one of the kilograms of cocaine for “two or three seconds.”
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
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.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
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.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
Instead, Kitchen left the money with Dowdell and proceeded to another location with Casali to examine the drugs.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
Casali admitted that Kitchen never stated that he would complete the transaction or made a similar affirmative comment to that effect.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
Instead, Kitchen’s momentary holding was in the context of inspection, not delivery.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
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.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
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.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
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.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
Although Kitchen held the cocaine in his hand, he did not yet have a recognized authority to exert control over it.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
Kitchen’s intent to purchase, without more, is insufficient to establish possession because it overlooks the required element of dominion or control.
3 Possession (actual, constructive, sole, or joint dominion and control) not no-evidence
We believe that although Kitchen held the drugs for a moment, he neither controlled them nor had recognized authority over them.