D.D.C.: Example of distancing the client from drugs but maintaining standing

Like walking a tightrope: United States v. Thorne, 2020 U.S. Dist. LEXIS 4291 (D.D.C. Jan. 10, 2020):

The government seeks to use the fact of the defendant’s 1999 conviction and evidence about the underlying circumstances to prove his knowledge, intent, and opportunity. See Gov’t’s Mot. I at 31-35. These are well-established non-propensity purposes for the admission of a defendant’s prior drug trafficking conviction, and the D.C. Circuit has deemed such evidence particularly probative when, as here, the government must show constructive possession of illegal narcotics. Indeed, in this case, the government must rely on circumstantial evidence, such as records of cell phone contacts from Suspect-1 to a phone registered to Dou Perfect at times when Suspect-1 was communicating with his narcotics supplier, surveillance of the defendant together with Suspect-1 on the date of the November 29, 2018 heroin transaction, and surveillance of the defendant at the Foote Street location on two other occasions. Notably, the defendant was not observed actually handling the heroin purchased in the two November 2018 transactions and was not present at the Foote Street location when the firearms and multi-kilogram quantities of heroin and marijuana were found. The owner and resident of the Foote Street duplex, Witness-1, has attributed ownership of this contraband to the defendant but, given her obvious motivations to shift the blame away from herself and her 18 year-old son, a jury may discount the credibility of those statements. These circumstances indicate the beginnings of an apparent defense, alluded to during the pretrial motions practice, that the defendant did not exercise constructive possession of the contraband.8

8. For instance, the defendant’s motion to suppress the evidence seized at the Foote Street location contended that the government had not established a nexus between the defendant and that location adequate to support the search warrant. Specifically, the defendant challenged the warrant’s reliance on a database search used to identify residences associated with the defendant’s name because that search returned multiple addresses so associated, including the Foote Street location. See Def.’s Omnibus Reply to Gov’t’s Responses to Def.’s Pretrial Mots. at 7, ECF No. 57. The defendant argued that the Foote Street location “was way down on the pecking order for where he lived,” Hr’g Tr. at 17:18-19 (Dec. 12, 2019), an effort to distance himself from this location that prompted the government to raise the issue of the defendant’s Article III’s standing to seek suppression of the seized evidence, id. at 32:10-19; see also id. at 32:21-25 (observation by the Court that the defense counsel “has walked that line very professionally … to protect her standing at the same time challenging the warrant”). At trial, the defendant may well push this argument further.

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