Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1991)

MEMORANDUM^** 

Glenn Nolan Richards appeals his conviction of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). We reverse.

Richards argues that there was insufficient evidence of his possession of the cocaine to support a conviction. Where there is a claim of insufficient evidence, we review the record, in the light most favorable to the government, to determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt of each essential element of the crime. United States v. Douglass, 780 F.2d 1472, 1476 (9th Cir. 1986).

Both parties agree that to sustain the conviction, the government must prove that Richards had dominion and control of the cocaine. See United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1988). Dominion and control may be proved by actual physical custody or constructive possession. Castillo, 866 F.2d at 1086 (citation omitted). Constructive possession may be established through circumstantial evidence showing sufficient dominion and control to give the power of disposal. Id. (citation omitted). However, " [m]ere proximity to contraband, presence on property where it is found and association with a person or persons having control of it are all insufficient to establish constructive possession." Id. (quotation omitted).

The evidence produced at trial was that the search of the house occupied by Richards and his wife revealed four kilograms of cocaine in a vent in the wall. There was no evidence that either Richards or his wife knew of the presence of the cocaine.

Richards cites a number of Ninth Circuit cases to support his argument. In Delgado v. United States, 327 F.2d 641 (9th Cir. 1964), marijuana was found in the drawer of a nightstand in a bedroom shared by two defendants. The room was used at all times by both defendants and there was no evidence to connect the marijuana to either of them specifically. We held that neither defendant could be convicted because it was pure speculation as to which had possession of the marijuana.

In United States v. Valenzuela, 596 F.2d 824 (9th Cir.), cert. denied sub nom Lizarraga v. United States, 441 U.S. 965 (1979), heroin was found in the garage of a house where a husband and wife lived. We upheld the husband's conviction because the heroin was in a bag bearing his name, but we reversed the wife's conviction because proof of joint occupancy was not enough to show dominion and control over the drugs.

In United States v. Behanna, 814 F.2d 1318 (9th Cir. 1987), a machine gun was found in a nylon bag on the floor behind the driver's seat of a car in which there were a driver and a passenger. Both were convicted of possession of the weapon. We affirmed the conviction of the driver, but reversed as to the passenger because "the government must do more than show that the defendant was present as a passenger in the vehicle and within reach of the weapon." Id. at 1320. See also Arellanes v. United States, 302 F.2d 603 (9th Cir.), cert. denied, 371 U.S. 930 (1952) (Husband-driver of car had exclusive dominion and control and thus could be convicted of possession of drugs found therein; wife-passenger, because she was not driving, could not).

In the present case, the cocaine was found in a wall in the den of the house where Richards and his wife lived. The government suggests no evidence indicating any control or knowledge of the cocaine on the part of Richards and does not attempt to distinguish the instant case from Delgado or the other possession cases cited by Richards. There is not sufficient evidence that Richards possessed the cocaine.

REVERSED.