Whose Stuff Is This? 

By Monte E. Hester; Jan 2000

     Wayne Fricke and I just finished a trial in federal court which included a charge of possession of methamphetamine with intent to deliver.

     The evidence established that packaged methamphetamine was found in the master bedroom, as were various items that are used in the process of manufacturing methamphetamine.  It was also established that the home was the residence of our client where he resided with his girlfriend.  At the time the methamphetamine was discovered, the only occupant of the house was the girlfriend who was asleep in the master bedroom.  There was evidence that our client had been at the house earlier the day of the search, and testimony from witnesses cooperating with the government indicated that our client manufactured methamphetamine at the house in the recent past.

     At the close of the government’s case we requested a dismissal of the charge of possession with intent to deliver.  Our argument was that it was only speculation at best as to whether the drugs were for our client’s personal use, the personal use of the girlfriend or for delivery to others.  Our position was substantiated by our cited cases, United States v. Walker, 993 F.2d 196, 199 (9^th Cir. 1993) citing United States v. Castillo, 886 F.2d 1071, 1086 (9^th Cir. 1988) and United States v. Vasquez-Chan, 978 F.2d 546, 550 (9^th Cir. 1992).

     The court, after reviewing our memorandum, presented an unpublished opinion to the parties and requested argument. 

     The unpublished opinion, United States v. Hazellette, 956 F.2d 275 (9^th Cir. 1992),  reversed a conviction of possession with intent to deliver.  The evidence from a search of the defendant’s apartment produced a vial of cocaine and four firearms.  The defendant was sharing a room in the apartment with a woman.  The vial of cocaine was on a dresser next to his checkbook and other male items.  Neither the vial, nor the firearms, carried the defendant’s fingerprints.  The court held that this evidence was insufficient to prove that he alone possessed any of these items.

     Although the Hazellete case has no precedential value because of its status as an unpublished opinion, it serves as an indication that the 9th Circuit is not so willing to uphold convictions on constructive possession charges when others have equal access to the controlled substances.

     Our motion for dismissal was granted.