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United States v. Dorman

United States Court of Appeals, District of Columbia Circuit

June 23, 2017

United States of America, Appellee
Harold A. Dorman, Appellant

          Argued March 10, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:13-cr-00334-1)

          Tony Axam Jr., Assistant Federal Public Defender, argued the cause for appellant. With him on the brief was A.J. Kramer, Federal Public Defender.

          James A. Ewing, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman, Suzanne Grealy Curt, Anthony Scarpelli, and George P. Eliopoulos, Assistant U.S. Attorneys.

          Before: Rogers, Millett and Pillard, Circuit Judges.

          Rogers, Circuit Judge

         The principal question in this appeal is whether the government met its burden to show beyond a reasonable doubt that Harold A. Dorman constructively possessed PCP seized from the laundry room of his mother's home. Constructive possession of unlawful controlled substances is an expansive concept that this court has held requires a showing of more than mere residence in a jointly occupied home where drugs and guns are found in generally accessible areas and are not in plain view. Because Dorman's constructive possession of a gun and ambiguous apology to his mother fail to fill the evidentiary void, we reverse in part and remand for resentencing.


         The seizure of the drugs and firearms from Dorman's mother's home resulted from an investigation of a robbery at a Kay Jewelers store in Maryland on October 22, 2013. Two diamond rings were taken from the fingers of a sales clerk, and the robber was captured on video getting into a white Dodge Charger. The car was identified as a rental car on loan to Dorman's father. Dorman matched the physical description of the robber, and was known by law enforcement to be facing charges in Pennsylvania for the attempted robbery of a jewelry store. Another videotape showed Dorman exiting the Dodge Charger at a 7-11 convenience store in Maryland two days after the robbery. The Dodge Charger was also spotted by FBI Special Agent Catherine Hanna several days before the robbery in an area she knew to be frequented by Dorman, with whom she had previous interactions. With a GPS tracking system, the Dodge Charger was found parked near 2317 Chester Street, S.E., Washington, D.C., which public records (including a prior arrest record) listed as Dorman's address. FBI agents subsequently observed the car parked across the street from that address.

         The home at 2317 Chester Street, S.E. consisted of two floors and a basement. The basement, which was not locked off from the main floor, included a family room and closet at the base of the stairs, and a laundry room and a bedroom off a hallway; it also had an external exit at the rear. The entrance to the basement bedroom was around a corner from the laundry room. The bedroom contained men's sneakers and clothing, as well as judicial court papers in Dorman's name, and was decorated with a painting of him playing football.

         Pursuant to the execution of a search warrant for 2317 Chester Street, S.E., law enforcement officers seized an array of contraband unrelated to the Kay Jewelers robbery: (1) a Glock 9-millimeter handgun loaded with a 30-round extended magazine hidden underneath a couch cushion in the living room on the first floor; (2) a one-ounce vial of PCP on the living room floor either inside or behind a vase, among other drug paraphernalia (approximately fifty glass vials in a large plastic bag, and scales and small plastic baggies in a baby formula container) elsewhere in the room; (3) an empty gun box for a Glock .40 caliber handgun on the basement stairs; (4) a loaded Ruger 9-millimeter pistol wedged between the mattress and box spring of the bed in the basement bedroom, with a digital scale, plastic baggies, and boxes of .40 caliber Smith and Wesson ammunition nearby; (5) a 15.2 ounce Tropicana juice bottle filled to the brim with PCP on the floor of the basement laundry room; and (6) a trash bag containing fifty or more empty prescription pill bottles for oxymorphone underneath a blanket in the hallway in the basement. Although the search did not produce the stolen rings, packaging and price tags for jewelry from other stores was found in the home.

         Dorman was indicted on three counts: Count 1, unlawful possession with intent to distribute 100 grams or more of PCP, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(iv); Count 2, unlawful possession of a firearm or ammunition by a person convicted of a felony, in violation of 18 U.S.C. § 922(g)(1); and Count 3, using, carrying, and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). The district court denied his motion to suppress the items seized during the search.

         At trial, Dorman's mother appeared as a government witness. She testified that her son stayed in many places, but conceded to having told the grand jury that 2317 Chester Street, S.E. was his "home base." Trial Tr. 107 (July 9, 2014). She had "fixed up" the basement bedroom for him, id. at 122, and identified as his some of the items in the room. She also explained that when at her home, although he did not always sleep in the basement bedroom, to her knowledge no one else slept there. Multiple individuals had keys to the home, including Dorman's father and Cleavan Hill, a family friend who lived at the home; the son of Dorman's mother's boyfriend also had a key and temporarily lived at the home in 2012, but had apparently lost the key since then. Only Dorman and his mother had keys to the basement bedroom, although she admitted on cross-examination that the door "was open all the time." Id. at 151. Dorman, his mother, Hill, the mother's boyfriend, and possibly the boyfriend's son did laundry in the basement laundry room. Various other individuals also frequented 2317 Chester Street, S.E., including Dorman's friends regardless of whether he was there at the time. Hill testified that on several occasions he had let people in the home at Dorman's request when no one else was there.

         The jury found Dorman guilty as charged, and the district court denied his motions for acquittal and a new trial. Considering Counts 1 and 2 together, the district court sentenced Dorman to concurrent terms of seventy months' imprisonment on each of these counts, and to a consecutive term of sixty months' imprisonment on Count 3, and thirty-six months' supervised release. Dorman appeals, ...

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